Petition — Demopolis City School System v. United States

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Supreme Court, U. S.

FILED

NOV 4 1977

MICH CLERK

IN THE SUPREME COURT OF™ nel RODAK, J.

THE UNITED STATES

OCTOBER TERM, 1977

77-649 *

NO.

DEMOPOLIS CITY SCHOOL

SYSTEM,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

H. A. Lloyd,

Counsel for Petitioner

P. O. Drawer Z

Demopolis, Al., 36732

Of Counsel:

Lloyd, Dinning & Boggs

P. O. Drawer Z

Demopolis, Al., 36732

IN THE SUPREME COURT OF

THE UNITED STATES

OCTOBER TERM, 1977

NO.

DEMOPOLIS CITY SCHOOL

SYSTEM,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

H. A. Lloyd,

Counsel for Petitioner

P. O. Drawer Z

Demopolis, Al., 36732

Of Counsel:

Lloyd, Dinning & Boggs

P. O. Drawer Z

Demopolis, Al., 36732

INDEX

Page

Opinions below - -----+---°- 1-2

Jurisdiction -----+-+e-+-+e-e-- 2-3

Questions Presented - - - - --- - 3-13

Statutes, federal rules & regula-

tions involved - - ------ 13

Statement - -----+efefefere-- 14-22

Reasons for granting the writ - - 22-37

Conclusion - --\-+-f*efererere--r 37

Appendix - ----\-+-*+e-"eferrer-°- 38

A-8-©--© ce e& © © © © = = = 39

B----+-+-+-+e-e-+--- 49

C---+----- - eee 57

D---+--+-+-e+-+-+-+-+-- 62

i <sseceeesees be

CITATIONS

Austin Independent School District

v. U. S. 97 S.Ct. (1977)—- - = 23,26,27

Carr v. Montgomery County Board

of Education. 377 F.2d 1123- - - 30

Dayton Board cf Education v.

Brinkman. 45 U.S.L.W.4910(1977)- -8,9,10,

13, 22,23,24,27,28, 36

Green v. County School Board.391 U.S.

430, 88 S.ct.1689, 20 L.Ed. 2d.716

(1968) ------+-++-f2e-e-e 23

Lee v. Macon County Board of

Education(Tuscaloosa) 429 F2d 1218- 13,

14, 33

Linda Stout v. Jefferson County

Board of Education (Case #75-2978

(1976) ----f-f7fe+-77277°-° 31

Milliken v. Bradley 418 U.S.717,

738 (1974) ---+--+-+-e7--+e-° 23

CITATIONS (Cont'd.)

Spencer v. Kugler, 404 U.S.1027(1972) - 28

Swann v. Charlotte-Mecklenburg Board

Of Education, 402 U.S.1(1971)- - 4,5,10,

26, 28, 30

Washington v. Davis,426 U.S. 229,

239 (1976) -----+--- -- - 12,22,24

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO.

DEMOPOLIS CITY SCHOOL

SYSTEM,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Plaintiff-Intervenor,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, Demopolis City School Sys~

tem, prays that a Writ - Certiorari is-

sue to review the Judgments of ~_ United

States Court of Appeals for the Fifth Cir-

cuit entered in the above case on August

8, 1977.

OPINIONS BELOW.

The opinion of the District Court for

the Middle District of Alabama (Three-

Judge Panel), dated June 29, 1970 (R.4)

is unreported.

The opinion of the District Court for

the Southern District of Alabama, dated

December 29, 1976 (R.56) is unreported.

The opinion of the Court of Appeals for

the Fifth Circuit is not yet officially

reported but will be officially reported

in F. 2d -

The Order of the Court of Appeals for

the Fifth Circuit deny ine Petition for

Rehearing En Banc is unreported.

The Order of the Court of Appeals for

the Fifth Circuit denying Petitioner's

Motion for Recall and Stay of the Mandate

is unreported.

JURISDICTION

The Judgments of the Court of Appeals

for the Fifth Circuit were made and enter-

ed on August 8, 1977, and copies thereof

are appended to this Petition as Appendix

C at Pages 57-61. The jurisdiction of

this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

On the 29th day of June, 1970, a Three-

Judge Panel sitting as the District Court

for the Middle District of Alabama render-

ed its terminal order of desegregation in

this cause (Appendix A, Pages 39-48) and

the cause was then transferred to the Dis-

trict Court for the Southern District of

Alabama, the district in which the System

is geographically located. By order of

the District Court for the Southern Dis-

trict of Alabama, notice issued that the

cause would be removed from the docket un-

less objections were filed by any of the

parties. The Respondent, as Plaintiff-

Intervenor, requested an extension of time

for filing objections and on the 14th day

of July, 1975, filed an Application for

Order to Show Cause, setting out that since

the original desegregation order, the Swann

case had enunciated new and additional con-

stitutional standards which should be ap-

plied and that a new plan of desegregation

should be instituted for petitioner's

schools, citing the fact that the Eastside

Elementary School was still virtually all

black and Westside Elementary School was

virtually all white.

Respondent's position was that pairing

of the elementary schools was the only ac-

1. Swann v. Charlotte Mecklenburg Board

of Education, 402 U.S. 1 (1971)

ceptable method of further desegregating

the system, and that further desegregation

was required to meet constitutional stan-

dards of Pd

Petitioner's position was that the

racial imbalance alleged by Respondents

was not, in and of itself, a sufficient

showing to require or justify the over-

turning of the desegregation order of the

Three-Judge Panel of the 29th day of June,

1970 (to which Respondent had not filed

any objections or any appeal) ; that the

imbalance was a result of changes in demo-

graphic patterns, and large registrations

of whites in private schools; that the

burden was on Respondents to prove some

act of discrimination on the part of the

2. Swann v. Charlotte-Mecklenburg Board

of Education, Supra.

school authorities; that no constitutional

violations by the school authorities had

been shown by the Respondents; and that

even if any such actions on the part of

the school authorities had been shown, a

pairing of the elementary schools was en-

tirely unfeasible and would work an un-

reasonable hardship on the students as well

as the school system. The District Court,

after a full hearing, found no basis for

altering the Three-Judge Panel terminal

order of the 29th day of June, 1970, and

rendered its order on December 29, 1976

(Appendix, Pages 49-56 ), declaring the

system unitary and denying the Respondent's

request to pair the elementary schools.

As basis for its ruling, the District

Court found that the original Three-Judge

Court had before it for consideration the

same information now before it- the size

of the elementary schools, the distance to

be niineiat. Cine pairing would require

transporting these small children as much

as three miles, and other factors-— and

chose the present plan; that the school

board had not undertaken any procedure or

process that continued or enhanced segre-

gation; that prevailing facts had not

changed to any material degree since the

terminal order; and that unreasonable fi-

nancial burdens would result from pairing.

The Court of Appeals for the Fifth Cir-

cuit vacated the order of the District

Court and remanded the case to that Court

with directions that the elementary schools

be paired.

As basis for its ruling, the Fifth Cir-

cuit Court of Appeals took the position

that desegregation “had never begun" in

the elementary schools of Demopolis; that

the racial balance in the schools entitled

the Court to presume an “intent to discrim-

_3/

inate" on the part of local authorities,

that the principal laid down in Dayton

Board of Education v. Brinkman did not ap-

ply, and that the “evil was clearly system-

wide', thus requiring pairing. That Court

also recognized the fact, however, that

the two elementary schools were two and

one-fourth miles apart and were in a small

city “spanned by mostly walking distances".

3. ‘The Court of Appeals Order stated:

"In so extreme a case and on these

unique statistics, we think we are

entitled to presume an intent to dis-

criminate on the part of local author-

ities, and we do so."

4. Dayton Board of Education v. Brinkman,

45 U.S.L.W. 4910, 4913 (U.S.,June 28,

1977)

The evidence shows there is no public

transportation available to these small

children.

THE QUESTIONS PRESENTED ARE:

1. May the Court presume an “intent to

discriminate on the part of local author-

ities solely on the basis of racial im-

balance where segregation by law has long

since ceased, and in the light of recent

decisions such as Dayton Board of Education

v. Brinkman, 45 U.S.L.W. 4910,4913 (U.S.,

June 28, 1977)?

2. Where segregation by law has long

since ceased, wnat burdens of proof, if

any, must the Respondent meet in order to

entitle him to the fashioning of a system-

wide remedy? Has the Respondent in this

case met the required burden of proof to

justify the remedy mandated by the Court

of Appeals of the Fifth Circuit?

3. Did the terminal order of the Three-

Judge Court, dated June 29, 1970, as appli-

ed to the City of Demopolis School System

abuse any constitutional principles laid

down in Swann v. Charlotte-Mecklenburg

_3/

Board of Education?

4. Can the finding of the Court of Ap-

peals for the Fifth Circuit that the pro-

cedure laid down by the Supreme Court in

Brinkman is not applicable to the instant

case be sustained under the facts of this

case?

3S Is the same criteria to be used in

eliminating racial imbalance in an elemen-

5. Swann v. Charlotte-Mecklenburg Board

of Education, Supra.

6. Dayton Board of Education v. Brinkman,

Supra.

Rp ge

tary school as in schools attended by old-

er children?

6. Are the individual constitutional

rights of elementary students attending

school in a small city, such as Demopolis,

Alabama, to be preserved and treated in

the same manner as those of individual

elementary students in a large city, such

as Dayton, Ohio; especially in relation

to hazards, distance, and expense?

7. Does the evidence presented by the

record on appeal to the Circuit Court of

Appeals for the Fifth Circuit sufficient-

ly support its opinion nullifying the rul-

ing of the District Three-Judge Panel of

the 29th day of June, 1970, and overturn-

ing the findings and vacating the order

of the District Court of the 29th day of

December, 1976, and mandating a pairing

of the elementary schools in Demopolis?

8. Can the action of the Court of Ap-

peals for the Fifth Circuit be sustained

in this case when no complaint by any

parent has been shown by the evidence to

exist alleging that any child is being de-

prived of equal protection by these school

authorities; and where no evidence has

been adduced of discrimination on the part

of school authorities or of any act on

their part to preserve segregation?

9. Is the order entered by the Court cf

Appeals for the Fifth Circuit in the in-

stant case in conflict with the applicable

decisions of this Honorable Court in

Washington v. Davis and Dayton Board of

7. CivilRights Act of 1964 (42 USC 2000c-

6(a).

8. Washington v. Davis, 426 U.S.229,239

(1976) 12

_9/

Education v. Brinkman; and/or is it in

conflict with its own ruling in Lee v.

Macon County Board of Education (City of

Tuscaloosa School System, et al.) (429

F.2d 1218)

10. Does the order of the Court of Ap-

peals, in failing to give effect to the

findings of the District Court and basing

its decision on a "presumption of intent

to discriminate on the part of local au-

thorities" simply because of racial im-

balance reflect a departure from the accep-

ted and usual course of judicial proceed-

ings as to call for the exercise of this

Court's power of supervision?

STATUTES, FEDERAL RULES AND

REGULATIONS INVOLVED

Pertinent portions of the Civil Rights

Act of 1964 - 42 U.S.C. 2000c-6/a).

9. Cited Supra.

a ee:

STATEMENT

The suit out of which this petition

arises originated in 1963 in the Middle

District of Alabama as Lee v. Macon County

Board of Education - C.A. No. 604-E ‘M.D.

Ala.) The suit was originally under the

jurisdiction of a Three-Judge Court and

the Petitioner, through its Superintendent

and Board of Education, was made a party

Defendant, on October 14, 1968, for the

purpose of desegregating the system and

removing therefrom all vestiges of a dual

school system. After various hearings in

which the United States participated as

Plaintiff-Intervenor, and the submission

of various plans for desegregation, both

by the Defendant and by the government as

well as the then Plaintiff in the cause;

and consideration of the various enroll-

PRN Ree

ment statistics, capacity of the different

school plants in the system, geographical

and transportation matters, the Court did

not accept the desegregation plan of the

school system, nor of the government, but

on June 29, 1970, entered a final order of

desegregation based on a plan constituted

by the Court itself, whereby grades 7-12

were paired and housed in two formerly all

white schools located reasonably near the

geographical center of the system. A form-

erly all black school eiaiees on the East

side of the city was converted into an el-

ementary school housing grades 1-6, and

an existing elementary school on the West

side of the city was maintained as an ele-

mentary school housing grades 1-6. The

Court then chose its own geographic zone

line in such manner as to maximize desegre-

gation based upon the evidence submitted

to it as to the racial distribution of the

10/

students in the system.

The petitioners then proceeded to operate

the school system under the desegregation

order of the Three-Judge Court and the

cause was transferred on July 7, 1970, to

the United States District Court for the

Southern District of Alabama, the geograph-

ical area where the school system was lo-

cated. After the Three-Judge Court order

had been in force and effect for more than

five years, the United States, as Plaintiff-

Intervenor, filed an application for Order

to Show Cause on July 14, 1975, requestin,

that the petitioner school system be re-

quired to develop and implement a new plan

10. See Appendix A, Pages 39-48

of desegregation which would more fully

desegregate the two Demopolis elementary

schools. A considerable evidence was

thereupon developed in connection with

this Motion, including various hearings,

depositions and, at the Court's direction,

a report of the petitioner school system

dated June 21, 1976, setting out the re-

sult of petitioner school system's study

of the feasibility of various alternative

methods which may produce a greater degree

of actual desegregation. “(R. 30) As may

be readily seen from the record, the Dis-

trict Court made a full study of all fac-

tors involved in the matter, including

transcripts of the original 1970 hearings

before the Three Judge Court. A formal

hearing was held on December 7, 1976, and

the matter was taken under advisement by

the Court, which thereafter on December

29, 1976, entered its order denying the

injunctive relief sought by the United

States, Plaintiff-Intervenor, and finding

the Demopolis City School System to be a

: Ab/

unitary system (R. 56).

On January 13, 1977, Respondent, Plain-

tiff Intervenor, filed notice of appeal.

Petitioner requested oral argument, which

was not granted by the Court of Appeals.

Thereafter, on August 8, 1977, the Court

Of Appeals entered its order vacating the

District Court order, remanding the cause,

and directing the District Court to re-

quire the pairing of the two elementary

12/

schools in the system.

ll. See Appendix B, Pages 49-56

12. See Appendix C, Pages 57-61

This Petitioner timely filed a Motion

for Recall and Stay of the Mandate of the

Court of Appeals pending the —

Request for a Rehearing En ee This

Motion was denied by the Court of Appeals

on September 16, 1977.

In the meantime, this Petitioner had

timely filed with the Court of = its

Petition for Rehearing En ieee”

On October 4, 1977, the Court of Appeals

advised counsel for Petitioner that on

that date an order was entered, denying

the Petition for Rehearing and for Rehear-

15/

ing En Banc. A request for Oral Hearing

13. See Appendix D, Pages 62-72

14. See Appendix E, Pages 73-85

15. No original order has yet been re-

ceived by Petitioner, but see

Appendix F, Pages 86-87

Appeals found that the two elementary

on the part of this Petitioner in connec-

schools are about two and one-quarter miles

tion with the Petition for Rehearing was

apart by road, it related this fact to a

not granted by the Court of Appeals.

drive ‘under ten minutes“ and indicated in

The Court of Appeals, in its order, cit-

its order that the schools were separated

ed certain statistics pertaining to racial

by “no very significant barriers". The

balance in the two elementary schools for

| Record, however, shows that there is no

the school year 1970-71, 1974-75, and 1975- |

available transportation for the students

76. The Court's findings reflected a high

| (R.,Vol.2,Page 103); that students would

of thirteen black students attending the

have to walk as much as three miles in or-

Westside School in 1975-76. However, the

der to attend school if these elementary

Record shows that at the time of the hear-

schools were paired (R.,Vol.2,Page 102).

ao eee

ing of September 7, 1976, in the District

The Record also readily reflects (R.Vol.3,

Court, the testimony was at that time that

U. S. Exibits 5-10) that two large river

twenty-eight black students under the ma-

sloughs constitute barriers between the

jority to the minority transfer provision

' two elementary schools and are bridged by

alone were attending the formerly all

16/ only one arterial street. Also, that

white Westside School. While the Court of

there are no provisions for foot traffic

along that route (Appendix D, Page 66 & 71)

16. Record, Volume 2, Page 108.

The order does not appear to take into con-

sideration the fact that the Three-Judge

Court order was dated and rendered on June

29, 1970, which was during the vacation

period betwee the end of one school term

and the beginning of another; and that dur-

ing that period of time, the demographic

patterns changed, a factor over which the

local authorities had no control, so that

many of the white members of the Eastside

neighborhood were no longer residing in

that zone at the opening of school the fol-

lowing fall. (R.,Vol.2I, Pages 103 and 104)

REASONS FOR GRANTING THE WRIT

The decision below should be reviewed

because it is in conflict with the appli-

cable decisions of this Court as laid down

in Dayton Board of Education v. Brinkman,

Supra., Washington v. Davis, Supra., and

17/

others.

The Court of Appeals seeks to avoid a

conflict with the decision in Brinkman,

Supra. by assuming the position that that

decision does not apply in the instant

18/ |

case. Nevertheless, the Brinkman deci-

sion clearly places upon both the District

Court and the Court of Appeals the duty to

first determine whether there was any ac-

17. Green v. County School Board, 391 U.S.

430, 88 Sup.Ct.1689, 20 L.Ed.2d 716

(1968);

Austin Independent School District v.

United States, 97 Sup.Ct. (1977);

Milliken v. Bradley, 418 U.S. 717,738

(1974).

18. The Court of Appeals says:

“Here it is true segregation ‘by law'

has ceased, but all is as it was be-

fore it did. The only elementary

schools Demopolis has are one race

schools, and the black school is

about as black today and the white

school about as white as either ever

was.

tion in the conduct of the business of the

school board which was intended to, and did,

in fact, discriminate against minority pu-

pils, teachers or staff. In the instant

case, we are dealing with the question pri-

marily of whether or not the racial balance

in the two elementary schools resulted from

some discrimination practiced by the local

authorities. Both the Brinkman case and

the vashington case clearly set ont that if

such violations are found, the Court must

then determine a remedy designed to redress

the effect of such violations. The Court

of Appeals does not presume to find any

such violations on the part of local au-

thorities but simply takes the position

that it feels that it is entitled "to pre-

sume“ an intent to discriminate on the part

of local authorities. There has been no

finding that suth Gtontintontion did, in

fact, occur. On the contrary, the Dis-

trict Court with considerable more oppor-

tunity to examine and weigh all of the

facts in the particular case, in dealing

with the question of whether there were

any instances where the school board fail-

ed to strictly enforce attendance zoning,

stated: “The Court is satisfied from the

evidence that where this problem has exist-

ed, it has been substantially corrected,if

not totally so, and that diligence is being

employed by the school board to insure the

integrity of that part of the Court's prior

19/

order".

The areas in which the present decision

of the Court of Appeals conflicts with the

19. See Appendix B, Page 55

decisiorw of this Court may be divided in-

to two general areas, as follows: (1) In

many instances, the one race or virtually

One race school does not reflect a consti-

tutional violation but rather neighborhood

patterns and changes in demographic patterns

and other reasons beyond the control of

20/

school authorities. In Austin Independent

School District v. United States, 97 Sup.

Ct. (1977), it is stated: "The principal

cause of racial and ethnic imbalance in

urban public schools across the country,

north and south, is the imbalance in resi-

dential patterns. Such residential pat-

terns are typically beyond the control of

school authorities. For example, discrimi-

20. Swann v. CharlotteMecklenburg School

Board, Supra.

nation in housing- whether public or pri-

vate- cannot be attributed to school

authorities. Economic pressures and

voluntary preferences are the primary de-

terminants of residential patterns .* The

Court of Appeals in the instant case, has

erroneously concluded that the predominant-

ly one race schools, virtually by the fact

that they exist at all, justifies a conclu-

sion of an"intent to discriminate” on the

part of local authorities; while the evi-

dence is abundant and uncontroverted that

the situation existed as a result of change

in demographic patterns, as defined in

Austin Independent School District, Supra.

In the Dayton case, Supra., it was said

“It is clear from the findings of the Dis-

trict Court that Dayton is a racially mix-

ed community and that many of its schools

are either predominantly white or predomi-

nantly black. This fact, without more, of

course, does not offend the Constitution.

(Citing Spencer v. Kugler, 404 U.S. 1027

(1972); and Swann, Supra. at 24).

All of the above cited decisions of this

Court make it abundantly clear that the

mere existence of one race schools or pre-

dominantly one race schools is not an evil,

so as to offend the Constitution, without

more. It is, therefore, apparent that the

mere existence of such schools cannot cre-

ate any entitlement to presume an intent

to discriminate on the part of local au-

thorities.

In the Dayton case, Supra., this

Court clearly spelled out the responsibili-

ties of the District Court and of the Court

of Appeals in the matter of fitting the

remedy to the constitutional violation.

In the instant case, the decision of the

Court of Appeals fashions a system-wide

remedy without making a finding of any

action in the conduct of the business of

the school board which discriminated against

the minority pupils, basing its presump-

tion only upon the existence of one race

schools in the District which, in and of

itself, does not offend the Constitution.

We believe this shows a clear conflict

with recent decisions of this Court, such

as the Dayton case, Supra., wherein it is

stated: "The Court of Appeals seems to

have viewed the present structure of the

Dayton School System as a sort of ‘fruit

of the poisonous tree”, since some of the

racial imbalance that presently obtains

may have resulted in some part from the

three instances of segregative action found

by the District Court. But instead of tail-

oring a remedy commensurate to the three

specific violations, the Court of Appeals

imposed a system-wide remedy going beyond

their scope". In the instant case, there

are no specific violations found by any

SOurt to have existed other than the sim-

ple existence of a racial imbalance in the

elementary schools.

Tne decision below is also in conflict

with a number of decisions rendered in the

Fifth Circuit Court of Appeals generally

in support of the decisions of this Court

cited above. For instance, it was reitera-

ted in Carr v. Montgomery County Board of

Education, 377 Fed.2d 1123, that the Swann

case, Supra., as well as many of the more

recent school cases, readily recognizes

that minority groups are often found con-

centrated in one part of the city, and

that the existence of some one race or

virtually one race schools within a Dis-

trict is not in and of itself the mark of

a system that still practices segregation

by law. More specifically, in speaking

of one race schools in Jefferson County,

Alabama, in Linda Stout v. Jefferson County

Board of Education (Cause No. 75-2978 (1976)

the Fifth Circuit Court of Appeals stated:

“The true issue then is whether the plan

adopted by the Court below was,given the

circumstances, a permissible one. We con-

clude it was. In so concluding, our guid-

ing lights are the trial court's conclvs.ons

that the Jefferson County System has been

effectively desegregated and is unitary,

and that these three one race schools are

the products of geography and demography

alone. If these conclusions are sound,and

they appear to be, then any bussing of pu-

pils attending these schools would be order-

ed in the name of racial quotas or balan-

cing. The Constitution does not require

Sucn orders." In the instant decision by

the Court of Appeals, however, the findings

of the lower Court in regard to the question

of whether the petitioner system is unitary

was not accepted but was found to be clear-

1, erroneous. The only distinction in the

facts would be in the degree to which the

geography and demography might apply in re-

lation to a large school system vis-a-vis

a small school system such as the petition-

er system.

Bringing the matter a little closer to

home is the case of Lee v. Macon

County Board of Education (City of Tusca-

loosa School System), 429 Fed.2d 1218, et

seq. The facts in that case are almost

identical,if not completely so, with the

facts of the present case except for a dif-

ference in the size of the cities involved.

That case deals specifically with the ques-

tion of pairing of elementary schools in

the City of Tuscaloosa. In that case, the

Court of Appeals for the Fifth Circuit made

the following observation: "“It is obvious

that the HEW plan gave little consideration

to residential proximity and that many stu-

dents, white and black, would be required

to cross town at great distances, travers-

ing railroad and switchyard tracks, whereas,

under the school board plan, geographic

considerations were more realistic and

practical." The Court went on to say that

there was little dispute as to the basic

fairness of the geographic school zones

drawn by the Board. In criticism of the

HEW plan, the Court of Appeals stated:

‘Little consideration is given to geograph-

ic proximity in the proposed pairing of

Oakdale-Stillman Heights Elementary Schools.

Many of the students walk to school. Oak-

daie is a large zone territorially and ele-

mentary students living in the Southwestern

portion thereof would have to traverse great

distances to reach Stillman Heights School,

most being compelled to walk along U. §S.

Highway ll. élementary students living in

the upper half of Stillman Heights zone

would likewise traverse considerable dis-

tances and be compelled to use U. S. High-

way ll to reach Oakdale." The Court of

Appeals then concluded that the plans

adopted by the District Court were sound-

er and more practical than any of the

others recommended and were made in the

exercise of a reasonable discretion based

on considerable expertise in dealing with

numerous school desegregation cases.

The need for review in this particular

case is also highlighted by the need to re-

solve clearly whether the rights of indivi-

dual elementary school children living in

a school zone located in a city the size

of Dayton, Ohio, and the size of Tuscaloosa,

Alabama, are to be protected and treated

in a different manner from the rights of

individual school children of like age in

a school zone in a city the size of Demopo-

lis,Alabama. As Mr. Justice Brennan very

ably put it, in charging the Court with

its duties: “It should be flexible but

unflinching in its use of its equitable

powers, always conscious that it is the

rights of individual staat children that

are at stake and that it is the constitu-

tional right to equal treatment of all

21/

races that is being protected." In this

connecticn, the District Court in that

case had announced (without being contro-

verted by this Court) that certain guide-

lines were to be followed in the case of

elementary school students, among which

were: ‘2. Students should be transported

to the nearest available school; 3. No

student shculd is transported for a period

Ot time exceeding twenty minutes or two

miles, whichever is shorter." Yet, in

Ne imstant case, the effect of the man-

date by the Court of ..ppeals would be to

place elementary grade students in the po-

sition of having to walk as much as three

21. Dayton Board of Education v. Brinkman.

Supra. 36

miles or more in order to attend their

schools (Record, Vol 2I, Page 102), and

under most hazardous circumstances in all

kinds of weather. (Appendix D, Page 65)

CONCLUSION

For the reasons set forth above, it is

respectfully submitted that this Petition

for a Writ of Certiorari should be granted.

Attorney for Petitioner,

Demopolis City School System

P. O. Drawer Z

Demopolis, Alabama 36732

Of Counsel:

Lloyd, Dinning & Boggs

P. O. Drawer Z

Demopolis, Alabama 36732

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA, EASTERN

DIVISION

CIVIL ACTION NO. 604-E

CITY OF DEMOPOLIS SCHOOL SYSTEM

(Filed Jun 29, 1970, by R. C. Dobson,

Clerk)

ANTHONY T. LEE, ET AL.,

Plaintiffs,

UNITED STATES OF AMERICA,

APPEND [xX

Plaintiff-Intervenor

and Amicus Curiae,

NATIONAL EDUCATION ASSOCIATION, INC.,

Plaintiff-Intervenor,

vs.

MACON COUNTY BOARD OF EDUCATION, ET AL.,

‘ Defendants.

, ORDER

As required by the order of this

Court of August 6, 1969, the Demopolis

32 City Board of Education on December 22,1969,

filed its proposed plan, to be effective

with the commencement of the 1970-71 school

year, for the complete disestablishment of

of its dual school system based upon race.

On December 15, 1969, this Court found it

necessary to reject the proposal made by

the Demopolis City Board of Education and

ordered the United States, through its of-

fice of Education, to formulate and submit

a plan designed to disestablish completely

the dual school system operated by the

Demopolis City Board of Education not lat-

er than the commencement of the 1970-71

school year. On February 16, 1970, the

United States filed such a plan. The

Demopolis City Board of Education objected

thereto and filed an alternate plan. The

plaintiffs objected to the Board's alter-

nate plan. The several proposals, together

with the objections thereto, were heard by

this Court on March 27, 1970. After this

hearing and on April 3, 1970, this Court,

in a formal order, observed that a further

study of the Demopolis school system should

be made in an effort to formulate a more

feasible plan of desegregation than any of

the plans presented to tfis Court up until

that time. On May 27, 1970, the Demopolis

City Board of Education submitted a furth-

er alternate plan for the desegregation of

its school system, and on June 4, 1970,the

plaintiffs filed their written objections

thereto. On June 19, 1970, another hear-

ing was conducted in connection with the

Demopolis School System, and the matter is

now submitted.

Upon consideration of the several

plans of desegregation as filed with this

Court by the Demopolis City Board of Educa-

tion and the United States through its Of-

fice of Education, and the several objec-

tions filed to each of these plans, it is

the ORDER, JUDGMENT and DECREE of this

Court that commencing with the 1970-71

school year, the Demopolis City Board of

Education shall operate one high school

complex offering grades 7 through 12,

which high school shall be attended by

students of both races in said grades.

It is further ORDERED that this high

school complex use as its physical plant

the Demopolis High School and the old

Demopolis Elementary School.

It is further ORDERED that effec-

tive with the commencement of the 1970-71

school year, the Demopolis City Board of

Education shall operate two elementary

schools, each offering grades 1 through 6.

The zone line between the two elementary

schools shall be a line running south

along Cedar Street from the northern city

limits to U. S. Highway 80, thence east

along Highway 80 to Jefferson Road, thence

South along Jefferson Road to the southern

city limits. Students-of both races in

grades 1 through 6 residing east of said

line shall be assigned to the East Side

Elementary School--formerly the U.S.Jones

School--located at Jackson and Front

Streets. Students of both races attend-

ing grades 1 through 6 who reside west of

said zone line shall be assigned to the

West Side Elementary School located on

Cherokee Street and Mauvilla Drive.

It is further ORDERED that all

white students residing outside the city

limits of Demopolis who attend grades l

through 6 in the City of Demopolis school

system be assigned to the East Side Ele-

mentary School and that all black students

residing outside the city limits of Demop-

olis who attend grades 1 through 6 in the

City of Demopolis school system be assign-

ed to the West Side Elementary School. It

is further ORDERED that the Demopolis City

Board of Education enroll in the City of

Demopolis school system the black elemen-

tary school students who reside in the

Shortleaf area of Demopolis and who here-

tofore have been transported to and have

attended the John Essex School operated by

the Marengo County school system.

It is further ORDERED that the

plan of desegregation as hereinabove order-

ed implemented by the Demopolis City Board

of Education not later than the commence-

ment of the 1970-71 school year contain

the following supplemental provisions:

l. Desegregation of Faculty and

Other Staff.

The school board shall ainounce

and implement the following policies:

a. Effective not later than the

commencement of the 1970-71 school year

the principals, teachers, teacher-aides

and other staff members who work directly

with children at a school shall be so as-

signed that in no case will the racial

composition of a staff indicate that a

school is intended for Negro students or

white students. The Demopolis City Board

of Education shall assign the teaching

staff as above described so that the ratio

of Negro to white teachers in each school,

and the Negro-to-white ratio of other

staff members in each school, are substan-

tially the same as each such ratio is for

the teachers and other staff members in

the entire system.

The school system shall, to the ex-

tent necessary to carry out this aspect of

its desegregation plan, direct members of

its staff as a condition of continued em-

ployment tc accept any new assignments.

b. Staff members who work direct-

ly with school children and professional

staff who work on the administrative level

will be hired, assigned, promoted, paid,

demoted, and dismissed without regard to

race or color.

c. If there is to be a reduction

in the number of principals, teachers,

teacher-aides, or other professional staff

employed by the City of Demopolis school

system which will result in a dismissal or

demotion of any such staff members, the

staff member to be dismissed or demoted

must be selected on the basis of objective

and reasonable nondiscriminatory standards

from among all the staff of the school sys-

tem. In addition, if there is any such

dismissal or demotion, no staff vacancy

may be filled through recruitment of a per-

son Of a race or color different from that

of the individual dismissed or demoted un-

til each displaced staff member who is qual-

ified has had an opportunity to fill the

vacancy and has failed to accept an offer

to do so.

Prior to such a reduction, the

school board will develop or require the

development of nonracial objective criteria

to be used in selecting the staff member

who is to be dismissed or demoted. These

criteria shall be available for public in-

spection and shall be retained by the school

system. Theeschool system also shall re-

cord and preserve the evaluation of staff

members under the criteria. Such eval-

uation shall be made available upon request

to the dismissed or demoted employee.

“Demotion" as used above includes

any reassignment (1) under which the staff

member receives less pay or has less res-

ponsibility than under the assignment he

held previously, (2) which requires a less- iy

er degree of skill than did the assign-

ment he held previously, or (3) under

which the staff member is asked to teach

a subject or grade other than one for

which he is certified or for which he has

had substantial experience within a reason-

ably current period. in general and de-

pending upon the subject matter involved,

five years is such a reasonable period.

dad. In the event that the school

system, in connection with its conversion

to a unitary system, plans to dismiss or

demote personnel, as those terms are here-

inabove used, a report containing the

following information shall be filed with

the Court and served u,»on the parties by

July 15, 1970:

(1) The system's "“nonraltial on-

jective criteria" us°’d in selecting the f

staff member(s) dismissedc or demozed;

(2) The name, address, race, type

of certificate held, jiegree or degrees

held, total teaching experience and 2x-

perience in che system, and position dur-

ing the 1969-79 schoo. year of eacn person

to be dismissed, or denoted as hereinabove

defined, and in the case of a demotion,

the person's new position during the 1970-

71 school year and his salaries for 1969-

70 and 1970-71.

(3) The basis for the dismissal or

demotion of each person, including the pro-

cedure employed in applying the system's

“nonracial objective criteria";

(4) Whether or not the person to

be dismissed or demoted was offered any

otner staff vacancy; and, if so, the out-

come; and, if not, th2 mason.

2. Majority to Minority Transfer

Policy.

The school system shall permit a

student attending a scnool in which his

race 1s in the majority to choose to

attend another school, where space is avail-

able, and where his race is in the minor-

ity.

3 School Construction and Site

Selection.

All school construction, school

consolidation, and site selection (includ-

ing the location of any temporary class-

rooms) in the system shall be done in a

manner which will prevent the recurrence

of the dual school structure once this

desegregation plan is implemented.

4. Attendance Outside System of

Residence.

If the school district grants tran-

sfers to students living in the district

for their attendance at public schools out-

side the district, or if it permits trans-

fers into the district of students who

live outside the district, it shall do so

on a nondiscriminatory basis, except that

it shall not consent to transfers where

the cumulative effect will reduce deseg-

regation in either district or reinforce

the dual school system.

5. Services, Facilities, Activ-

ities, and Programs.

No student will be segregated or

discriminated against on account of race

or color in any service, facility, act-

ivity, or program (including transportation,

athletics, or other extracurricular act-

ivity) that may be conducted or sponsored

by or affiliated with the school in which

he is enrolled. A student attending school

for the first time on a desegregated basis

will not be subject to any disqualification

or waiting period for participation in

activities and programs, including ath-

letics, which might oth2rwise apply be-

cause he is a transfer or newly assigned

student except that such transferees shall

be subject to longstanding, nonracially

based rules of city, county, or state

athletic associations dealing with the

eligibility of transfer students for

athletic contests. All school use or

school sponsored use of athletic fields,

meeting rooms, and all other school-related

services, facilities, activities, and pro-

programs such as commencement exercises and

parent-teacher meetings which are open to

persons other than enrolled students, will

be open to all persons without regard to

race or color. All special educational

programs conducted by the school system

will be conducted without regard to race

or color.

It is further ORDERED that the

Demopolis City Board of Education file with

this Court, in writing, on or before Ausust

1, 1970, and furnish copies to counsel for

the plaintiff-intervenors, the United States

and the National Educational Association,

Inc., and the plaintiffs, a projection of

the enrollment in each of the schools to

be operated by the City of Demopolis school

system for the 1970-71 school year, and

the racial composition of the student body

and the faculty and staff members in each

of said schools. It is: further ORDERED

that the Demopolis City Board of Education

file with this Court on or before Sept-

ember 30, 1970, and furnish copies to

counsel for the plaintiff-intervenors and

the plaintiffs, a written report on the

actual enrollment in each of the schools

operated by the City of Demopolis school

System, and the racial composition of

the student body and the faculty and staff

members in each of said schools.

Done, this the 29th day of June,

1970.

/s/ Richard T. Rives

United States Circuit Judge

/s/ H. H. Grooms _________

United States District

Judge

/s/ Frank M. Johnson, Jr.

United States District

Judge

Me etl em ee

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR THE

SCUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ANTHONY T. LEE, ET AL., CIVIL ACTION

Plaintiffs, NO. 5945-70-H

VS.

DEMOPOLIS CITY SCHOOL

SYSTEM, ET AL.,

Defendants.

ORDER

On July 7, 1970 this case was

transferred from the Middle District of

Alabama to this Court to permit supervision

of a terminal order entered by a three

Judge Court wherein the school board was

instructed to effectuate the desegregation

plan set out in that order for the school

year commencing 1970-71. On August 22,

1972, a motion for further relief was filed

by the NEA and in September of 1972 a

motion for supplemental relief was filed by

the United States on behalf of plaintiffs

Anthony T. Lee and others, neither of which

attacked the desegregation order itself.

In October of 1972 this Court ordered the

parties to confer relative to their com-

plaints and to supply to the Court a memo

specifying the areas of disagreement and

the areas of agreement so that the Court

could then proceed to hear those areas

wherein the parties disagreed. The matter

then became dormant.

In March of 1975 the Court in-

structed the parties to show cause why the

case should not be dismissed for lack of

prosecution. This promptly created act-

ivity resulting in the final hearing on

December 7, 1976.

Under the three Judge Order the

high school and the junior high school

each consolidated into single facilities

to which all students attend. The ele-

mentary grades were broken into two fac-

ilities known, respectively, as East Side

Elementary and West Side Elementary. A

zone line was drawn essentially through

the center of Demopolis dividing the City

into the two districts. Those students

living east of this line were assigned to

East Side and those living to the west of

this line were assigned to West Side.

East Side is located near the line of

demarcation but West Side is located nearly

on the west boundary line of the City.

There have been collateral issues

that have arisen by virtue of that portion

of the Order allowing certain students

residing outside of the City of Demopolis

to attend schools in Demopolis because of

their proximity to the schools of the City,

vis-a-vis, the schools of the county, but

the Court is impressed that these issues

have been resolved and do not constitute a

further problem.

ee ee

_ The evidence demonstrates that the

original three Judge Court had before it

for its consideration the same information

that has now been presented to this Court:

namely, th2 size of the elementary schools;

the distance to be traveled; the fact that.

East Side was an all black school prior

to desegregation and West Side was an all

white school prior to desegregation: that

the East Side zone had approximately 160

white students zoned to attend East Side

and 52 black students zoned to attend West

Side; that East Side would have a total

of approximately 800 students zoned to

attend that school and West Side had a

total of approximately, 800 students zoned

to attend that school;>’that the HEW plan

would have moved the zone tine further

westwardly and increased the number of

whites to Se assigned to East Side but

in so doing it would have overcrowded Fast

Side by about 300 students; that the prox-

imity of the schools if paired would re-

quire transporting students as much as

three miles; that white flight was a po-

1. See transcript of March 27, 1970

hearing.

that bussing by the city was not fea-

Sible from the standpoint of expense;

that the county could contribute to

bussing; the effect of bussing;

BEST GOPY AVAILABLE

tential threat; and the many other points

that lend themselves to the argument that

one proposition or another would be the

more desirable. All of these same points

were considered by the three Judge Court

and the plan now in force opted for. No

appeal was perfected from the original

Order and no contest of any nature was

lodged until August 22, 1972 when the NEA

filed a motion for further relief charg-

ing, among other things, that the pro-

motion and demotion policies of the school

system, to be conducted pursuant to the

Singleton opinion, were being violated.

Later on September 21, 1972, a motion for

supplemental relief was filed on behalf

of Anthony T. Lee and others contending

that the school board was not enforcing

the Court Order in respects therein

specified.

On March 31, 197- the Department

of Justice advised the Court by pleading

that it desired to conduct investigations

into this case to see if there had been

any violations of the three Judge Court

Order and it wasn't until July 14, 1975

that Justice filed an application for

order to show cause why a new plan of

elementary student assignment ought not

be entered to further desegregate the

elementary schools. It was and 1S con-

tended that evolving law mandates such

change. For example, in an appendix to

the brief filed by the United States in

April of 1976 which was obtained from the

records on file in this cause, it appears

that the population at West Side Elemen-

tary went from a total of 511 for the

aioe, nek SARs Ow. oGratvelw —

at ste? VY te Te OE Rate

school year 1970-71 to a total of 456 for

the school year 1974-75 and Fast Side

Elementary went from 551 in 1970-71 school

year to 403 in 1974-75 school year. The

number of white students in the elementary

grades has decreased from a total of 495

in 1970 to 398 for a total attrition of

97 while the black populaticn has decreas-

ed from 573 in 1970 to 461 fox a total of

112.

If the schools are paired, the

rough estimate is that each school would

have a racial population of 199 white to

230 black or a rough 52% black population

whereas the middle school and the upper

school have a ratio of 45% to 47% black

respectively.

The easy thing for the Court to

do would be to simply say that the rea-

sonings employed by the three Judge Court

were erroneous; that the findings and

conclusions of that tribunal were based

on erroneous assumptions; that Swann v.

Charlotte Mecklenberg Board of Education,

402 U.S. 1 (1971) changed the law; that

the fact that the statistical information

available to that Court and the parties

though it has not changed materially,

placed no burden or requirement on the

plaintiffs totest the accuracy of the

conciusions of the Court through the

appellate processes; and that the fact

that the school board itself has not

undertaken any procedure or process that

continued or enhanced segregation is of

no importance in the equation and there-

fore the schools should forthwith be

paired to maximize desegregation. The

problem is, to so rule tips the veil on

this Court's understanding of what the

function of the Court is in litigious

matters of this type.

A terminal Order was entered and

the parties operated under it for more

than five years before there was any

attempt to question its basics. The facts

prevailing at the time the Order was en-

tered have not changed to any measurable

degree. The children of Demopolis have

operated under the benefits of that de-

segregated system. The population has

become acclimated to that operation.

Further tampering by imposing new finan-

cial burdens upon an already tightly bud-

geted system, together with the tential

los of muchly needed tax revenue~and the

real probability of accelerated attrition

with its concomitant loss of further

revenue from the State, all for no app-

reciable net gain, seems to be poor jus-

tification for this Court to now agree

with the 20-20 hindsight of a sometimes

visitor from Washington rather than agree-

ing with the collective judgments of

Judge Rives, Johnson and Grooms. This is

2. In 1977 the voters of Demopolis will

determine whether to continue a three-

mill special school tax due to expire

that year. A favorable vote is highly

questionable if the schools are paired.

(see transcript).

Oe ee ee ee ee ee a

eee ee ee ee

ATA PRM Hake Cetin Sattel E ee e

neta nas ttn ie

not to say that more presentable statis-

tics might not be accomplished in doing

what Washington wants, but it is to say

that the Court finds that the collective

wisdom of Judges Rives, Johnson and Grooms

is not so wide of the mark as would justi-

fy a finding that that judgment did not

establish a unitary system.

There are areas which the evidence

indicated do need attention however. The

assignment of faculty to the elementary

schools does not appear to this Court to

reflect a proper assignment contemplated

by the original decree, though some pro-

gress has been made towards this end,

The percentage of black teachers at East

Side decreased from 73% to 64% as of the

fall of 1974 and increased at West Side

from 25% to 33% during that same period

of time. The Court directs that the

school board update those statistics to

give the Court promptly the present

teacher assignment statistics and what

steps, if any, are now being taken to

more nearly equalize the faculty.

Some complaint has been registered

that the school board has not strictly

enforced the attendance zoning, but the

Court is satisfied from the evidence that

where this problem has existed it has been

substantially corrected, if not totally

so, and that diligence is being employed

by the school board to insure the integ-

rity of that part of the Court's prior

Order.

In the case of Youngblood v.

Board of Public instruction of Bay County,

448 F.2d 770 (5th Cir. 1971) the Court

of Appeals for the Fifth Circuit addresses

itself to the requirements for concluding

a desegregation case on the docket of the

Court. That case provided that after a

finding by the Court that a system was

a unitary system as contemplated by the

law and semi-annual reporting by the

school board of the conditions of the

operation of the system for a period of

three years had been accomplished that

the cause could be set for hearing on the

issues and if the facts then justified,

the cause could then be removed. Out of

an abundance of caution in an effort to

comply with this requirement of the law,

the Court now specifically finds that the

system in the City of Demopolis is a

unitary system and the school board is re-

quired to file with the Court on a semi-

annual basis commencing thirty days follow-

ing mid-term of this year and continuing

for a period of three years, reports of

the schools' activities in accordance

with those requirements as specified by

the Court of Appeals of the Fifth Circuit

in the case of United States v. Hinds

County School Board, 433 F.2d 611 (5th

Cir. 1970). The school board is further

directed that within sixty days of the

filing of the sixth such report that it

shall cause to be noticed a hearing before

the Court for the purpose of terminating

all further proceedings in this cause.

Done this 29th day of December,

ortred States ptstrict out

1976.

APPENDIX Cc

IN THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

ANTHONY T., LEE, ET AL.,

Plaintiffs,

UNITED STATES oF AMERICA,

Plaintiff-Inter-

venor-Appellant,

NATIONAL EDUCATION

ASSOCIATION, INC.,

Plaintiff~Inter-

venor,

versus

DEMOPOLIS CITY SCHOOL

SYSTEM, ET AL.,

De fendants-Appel-

lees.

Appeal from the United States District

Court for the Southern Distri

Dis¢eri

Alabama wieuiaes

August 8, 1977

Before BROWN, Chief Judge, MORGAN and GEE,

Circuit Judges. GEE, Circuit Judge:

Demopolis is a medium-sized town

in Western Alabama which, until 1969, oper-

ated a dual school system. AS a result of

a Court-ordered desegregation plan, all

students in grades 7-12 were assigned to

one junior and one senior high school.

These higher grades have operated since

on a desegregated basis. There had, be-

fore the Order, been three all-white

schools and one all-black one which served

all grades. The Order converted the former

black school and one of the former white

ones to elementary schools serving two

geographic zones. Under this plan, it has

worked out that the black school, East-

side, remains essentially all black. For

the school year 1970-71, it was 95% black,

climbing back a percentage point or so at

a time to 100% by 1974-75, but falling

back to 98% for 1975-76. The other ele-

mentary school, formerly white, remained

overwhelmingly so: percentages of black

students there ranged from a low of nine

in 1970-71 to a high of thirteen in 1974-

75 and 1975-76. These schools are about

two-and-one-quarter miles apart by road,

a drive of under ten minutes, and are

separated by no very significant barriers.

A substantial highway does divide them,

but it is controlled by traffic lights.

The school board has repeatedly stated

that only pairing will effectively deseg-

regate these schools. On these essential

and not seriously disputed facts, and with-

out subsidiary findings, the District

Court found the Demopolis system unitary.

Aa A A Na Ni. men eS tT

WA CHS eg eC et Es = ls SEARO Nel Rs ere ee ee att &

cna Wn dain 19 Oring:

So finding , it refused to order further

measures to alter the racial imbalance

in the elementary schools of this small

city, and the United States appeals,

This finding of the District Court

cannot stand. It is clearly erroneous.

See Dayton Board of Education v. Brinkman,

U.S. » 45 U.S.L.W. 4910, 4913

(U. S., June 28,1977). The District Court

had obviously hoped that its milder, earl-

ier Orders would have effect to desegre-

gate the elementary schools of Demopolis.

They have entirely failed. We do not here

contemplate a system including two or

three essentially one-race schools result-

ing from geographic or demographic acci-

dents and surviving as minor anomalies in

a broadly integrated program, despite

earnest planning and honest effort to

eliminate them and those like them, be-

cause practical considerations of hazard,

distance or expense ail but forbid their

elimination. Cf. Carr v. Montgomery

County Board of Education, 377F.Supp.

1123 (M.D. Ala. 1974), aff'd, 511 F.2a

1374 (Sth Cir.), cert. denied, 423 U.S.

986, 96 S.Ct. 394, 46 L.Ed. 2d 303 (1975);

Stout v. Jefferson County Board of Ed-

ucation, 537 F. 2d 800 (Sth Cir. 1976).

This is a case where, in a small city

Spanned by mostly walking distances, and

after eight years, elementary school

desegregation has never begun. Nor do

we think the procedure carefully laid

down by the Supreme Court in Brinkman,

Supra, for considering such cases as this

and the remedies to be granted in future

cases applies here. —

For the Court com-

The duty of both the District Court and

the Court of Appeals in a case such as

this, where mandatory segregation by

law of the races in the schools has

long ceased, is to first determine

whether there was any action in the can-

duct of the business of the school board

which was intended to, and did in fact,

discriminate against minority pupils,

teachers or staff. Washington v. Davis,

supra. All parties should be free to

introduce such additional testimony and

other evidence as the District Court

may deem appropriate. If such vio-

lations are found, the District Court

in the first instance, subject to re-

view by the Court of Appeals, must de-

termine how much incremental segre-

gative effect these violations had on

the racial distribution of the Dayton

school population as presently con-

stituted, when that distribution is

compared towhat it would have been in

the absence of such constitutional

violations. The remedy must be design-

ed to redress that difference, and only

if there fhas been a systemwide impact

may there be a systemwide remedy.

Keyes, supra, at 213.

45 U/S.L.W. at 4914.

mences its definitive pronouncement in

Brinkman with the words "in a case such

as this, where mandatory segregation by

saw Of the races has long since ceased...

45 U.S.L.W. at 4914, Here, it is true,

segregation “by law" has ceased, but all

is as it was before it @id. The only

elementary schocls Demopolis has are

one-race schools, and tne black school

is about as black today and the white

school about as white as either ever was

In so extreme a case and on these unique

Statistics, we think we are entitled to

presume an intent to discriminate on the

part of local authorities, and we do so.

It is plain (and practically admitted)

that no measure short of pairing the two

one-race elementary schools will produce

desegregation of them. Milder measures

have failed. The evil is clearly system-

wide, for all the elementary schools in

the system are involved, and all remain

effectively segregated. We therefore

vacate the Order of the District Court

and remand, with directions that the

elementary schools of Demopolis be paired

and for further proceedings not incon-

Sistent with this opinion. It is so

ORDERED.

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 77-1233

ANTHONY T. LEE, Be Slee

Plaintiffs,

UNITED STATES OF AMERICA,

Plaintiff-Intervenor-Appellant,

NATIONAL EDUCATION ASSOCIATION, INC.,

Plaintiff-Intervenor,

DEMOPOLIS CITY SCHOOL SYSTEM, Et al.,

De fendants-Appellees.

MOTION FOR RECALL AND STAY OF

MANDATE

ee ee rit

tne ade 8 cape a

MOTION FOR RECALL AND STAY OF MANDATE

TO THE HONORABLE JUDGES OF THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT:

Defendants- Appellees respectfully

present this, their application for, and

move the Court to enter, an Order recall-

ing and staying the Opinion Order and Man-

date heretofore issued in this case on

August 8, 1977, and in support of said

Motion, Petitioner represents unto the

Court as follows:

The Opinion Order of this honor-

able Court was issued as and for the man-

date on August 8, 1977, and was received

by the Petitioner on August 10, 1977.

Petitioner has filed simultaneous-

ly with the filing of this application a

Motion for Rehearing En Banc, seeking a

further review in connection with the

Order of Reversal heretofore issued,

In support of this application,

Petitioner adopts the grounds and argument

of the Motion for Rehearing En Banc which

are incorporated herein by reference.

As further grounds for its appli-

Cation, Petitioner respectfully represents

that under the terms of the Order of Re-

versal and Mandate heretofore issued,

Petitioner is required to pair its ele-

mentary schools. While no date is speci-

fied in the mandate for the pairing of

said elementary schools, the schools of

Petitioner open for their fall term on

August 26, 1977, and the Order-Mandate

was not received until August 10, 1977,

as aforesaid. It is physically impossible

for the school authorities to plan and

implement a pairing of its schools in the

short time left remaining from the date

of the Order Mandate to the opening of

school for the fall term.

Attached hereto and marked Exh ib-

its "A" through "C" inclusive, are Affi-

davits of the Superintendent of Education

and other officials of the school and .

municipality, detailing the need for this

application for a stay of the Order-Man-

date.

Wherefore, Petitioner prays that

this Honorable Court will recall its man-

@ate and stay the same pending a ruling

on Petition for Rehearing En Banc and

such other proceedings as may be finally

determined by this Honorable Court.

/s/ Hugh A. Lloyd

Attorney for Defendants

Appellees

Post Office Drawer Z

Demopolis, Alabama 36732

Ma ee ON el A me ee Oe TN oe

—

STATE OF ALABAMA

EXHIBIT "A"

MARENGO COUNTY

Before me the undersigned auth-

ority in and for said State and County

personally appeared A.A. Knight who,

having been first duly sworn, deposes on

oath and states as follows:

My name is A. A. Knight and I am

Superintendent Demopolis City Schools,

and, as such, am familiar with facts

Stated herein.

The Demopolis City School's

Elementary grades should not be paired

in a hurry for the following reasons:

Travel for many of the walking

students will be past a cemetary, over

two canal bridges, through at least a

mile of uninhabited road which would

be unduly dangerous to elementary school-

age children. In fact, three years ago

a rape-murder of a fifth grade child was

committed in this particular area during

daylight hours.

Unsupervised school children along

this route would be exposed to dangers of

dog bites, drowning in one of the canals,

being run over by automobile or truck or

worse,

The road (Maria Street), which is

the eastern boundary of westside Ele-

mentary School Campus, is a truck route,

heavily traveled by trucks to and from

Miller Lumber Co., Borden Chemical Company,

Demopolis Hickory Mill, Grain Elevator

for State Docks, River City Industries,

(a concrete Products Company) and Saunders

Truck Leasing Company.

There are no traffic lights from

South Main Avenue to the crossroads lead-

ing to State Docks and River City indus-

tries, a distance of over a mile by road.

There are no sidewalks along eith-

er of the three routes that traffic must

follow from Eastside to Westside and West-

side to Eastside in our City.

There has been no school trans-

portation in our City School Systems.

Of the 824 pupils in the two schools,

five hundred eighty-three (583) are not

eligible for State supported bus trans-

portation if such were available due to

their living within two miles of school.

A mass upheaval at this time would

be detrimental to the educational progress

of the children involved. This in itself,

is reason enough to leave present in force

now. Undue stress would be created by

sudden school environment changes. The

total school programs have been planned

with the zoned desegretation plan in mind;

and we shall be hard pressed to plan,

prepare and get set for a year's work on

an entirely different plan if pairing is

required by August 26th this year. Pupils

who have been notified of placement, etc.

and teachers who have been assigned and

lated ee ak ee ee

a, rl /

AM UGS ee A Ni Ite me iba tl i ae ape

prepared for one set -up will hardly be

able to adjust with Such short notice

A change of the maqni

gnitude set b

the Court must be dealt with carefully :

— Preferably Slowly. This can hardly

e€ done in the very short while from now

to the date set ‘

year. for school opening this

/s/ A. A. Knight

A. A. Knight

Superintendent

Demopolis City Schools

Subscribed and sw

Orn to before ;

18th day of August, 1977. me this

/s/ Bobbie w. Sanford

NOTARY PUBLIC

STATE AT LARGE

STATE OF ALABAMA

EXHIBIT "B"

MARENGO COUNTY

Before me the undersigned auth-

ority in and for said State and County

personally appeared Robert B. Templin

who, having been first duly sworn, deposes

on oath and states as follows:

My name is Robert R. Templin and

I am Principal, Westside Elementary School

and, as such, am familiar with facts stat-

ed herein.

(1) The immediate action for pair-

ing the schools on August 29,

1977, would be in my opinion

emotionally traumatic to the

students because of the lack

of appropriate time for pre-

paration.

(2) At this time, which is one

week away from the official

opening date for the school

year 1977-78, the confusion

on the part of the teachers,

staff and students is al-

ready great. Any immediate

move would be chaotic for

everyone involved.

(3) The community must have time

to prepare itself phycho-

logically for a move of such

magnitude, in order to main-

tain a practical resemblance

to our resent black and

white identity. The main-

tenance of acceptable racial

levels is crucial. If the

community has time to study

the situation, maybe we will

not have a high degree of

“white flight" from public

education.

(4) Time must be furnished for

appropriate sidewalks or bike

paths to be constructed to

give students a safe manner

to get from one school comm-

unity to another. Presently,

there is heavy industrial

traffic and no sidewalks or

bike paths. Two long bridges

must be crossed with no sat-

isfactory walks. Numerous

sharp curves are involved.

/s/ Robert B. Templin

Robert B. Templin

Principal, Westside

Elementary

Subscribed and sworn to before me this

18th day of August, 1977.

/s/ Bobbie W. Sanford

NOTARY PUBLIC

STATE AT LARGE

STATE OF ALABAMA ,

EXHIBIT "C

MARENGO COUNTY

Before me the undersigned auth-

ority in and for said State and County

personally appeared Chief A. E. Cooper

who, having been first duly sworn, deposes

on oath and states as follows:

My name is Chief A. E. Cooper and

I am Chief of Police, City of Demopolis,

and, as such, am familiar with facts

stated herein.

I, Chief A. E.Cooper, have been

Police Chief in the City of Demopolis,

Alabama since April 15, 1962, and was

Chief of Police for 10 years in another

jurisdiction prior to this. At the pre-

sent time, the Demopolis Police Department

consist of a police chief and an assistant

chief, and sixteen officers. This depart-

ment is entrusted with the police duties

of a city with approximately 8000 pop-

ulation. The City of Demopolis is approx-

imately 45% black and 55% white.

To go into pairing situation would

require a great deal of planning and

schooling for Demopolis officers in what

would be expected of them in the face of

any situation that may arise due to us

having no prior notice of this. A number

of our officers are on summer vacation at

this time and will not return until about

the 25th of August. Furthermore, the

Demopolis Police Department operates on a

budget that is prepared well in advance.

Our 1978 budget has already been submitted

and we did not request additional man-

power or money for some additional over-

time that we are sure this Order will

necessitate.

As the Court is well aware, the

City of Demopolis is a small City but is

Spread out over a very large land area.

The pairing of the schools will necessi-

tate children having to walk from one to

three miles unless bussingis provided.

Along the three routes to the Westside

School, for over 14 miles, there is not

one sidewalk for the use of students, or

any other pedestrians. Furthermore, there

are several bridges that these students

would have to travel that have no pro-

visions for foot travel.

As the department is now operating,

four men is about maximum for any one

shift and most of the time it is three

men. For these officers to try to patrol

the schoo.s and take care of the added

traffic on our inadequate streets and

roads, will be almost beyond our capacity

at this time. When added to their regular

duties moreover, at the present time, the

Demopolis Police Department is operating

the only ambulance service in Marengo

County and surrounding areas. This am-

bulance service has been a great drain

on our manpower and it cannot take second

place to any other service due to its

nature. I, as Chief of Police, need to

have time to approach the Council for

more men and vehicles to give adequate

police protection to our children and

citizens involved. We would further

need time for a schooling system within

our department to acquaint our officers

with these changes and to provide enforce-

ment of the Court's ruling. At this time,

I do not see how we can adequately do

these things in the short period of time

available us, but you may rest assured

that the Demopolis Police Department will

try in every way to meet their obligations

to the students, citizens, and the Courts

if it is within our power.

/s/ A. E. Cooper

Chief A. E. Cooper

Chief of Police

City of Demopolis

Subscribed and sworn to before

me this 18th day of August, 1977.

/s/ Bobbie W. Sanford

Notary Public

State at Large

aieueke: eetsall:

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

NO. 77-1233

ANTHONY T. LEE, Et al.,

Plaintiffs,

UNITED STATES OF AMERICA,

Plaintiff-Intervenor-Appellant,

NATIONAL EDUCATION ASSOCIATION, INC.,

Plaintiff-Intervenor,

DEMOPOLIS CITY SCHOOL SYSTEM, Et al.,

De fendants-Appellees.

PETITION FOR REHEARING EN BANC

STATEMENTS OF COUNSEL FOR REHEARING EN BANC

(Rule 12 F.R.A.P., Fifth Circuit Court

of Appeals)

I express a belief, based on a

reasoned and studied professional judgment,

that the panel decision is contrary to the

following decisions of the United States

Court of Appeals for the Fifth Circuit,

and the following decisions of the Supreme

Court of the United States, and that con-

Sideration by the full Court is necessary

to secure and maintain uniformity of

Gecisions in this Court:

Carr v. Montgomery County Board

of Education, 377 F.Supp. 1123,

511 F.2d 1374; (1974)

Stout v. Jefferson County Board

of Education, 537.F.2d 800; (1976)

Washington v. Davis, 426 U.S. 229

(1976)

Austin Independent School District

v. United States, 97 S.Ct. 517

(1977);

Dayton Board of Education, et al.,

v. Mark Brinkman, et al, 45 LW

4910 (June 27, 1977)

I express a belief, based on a

reasoned and studied professional judg-

ment, that this appeal involves one or

more questions of exceptional importance:

)

1. Are the rights of individual

school children attending school in a small

school district, to be defined and treat-

ed in the same manner as the rights of

individual school children in a large

City and a large school district?

2. Are the same criteria to be

used to eliminate the racial imbalance in

elementary schools as are used in junior

high schools and in high schools?

3. May the Court presume an in-

tent to discriminate on the part of local

authorities on the basis of racial im-

balance in some of the schools in a system

where all students in the district, in

grades 7-12, are assigned to one junior

and one senior high school and the auth-

Orities are operating two elementary

schools on a zone line established by the

lower Court?

4. In the instant case, where

mandatory segregation by law of the races

has long since ceased, what burden must

the Plaintiff-Appellant meet, if any,

to entitle him to a system-wide remedy?

/s/_H. A. Lloyd

Attorney of Record

for Demopolis City

School System

PETITION FOR REHEARING EN BANC

TO THE HONORABLE JUDGES OF THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT:

Demopolis City School System, the

De fendant-Appellee above named, presents

this, its Petition for a rehearing in the

above entitled cause; suggests to this

honorable Court that the same be heard

en banc; and, in support thereof, res-

pectfully shows:

The Court in its opinion of rever-

Sal herein has failed to take into consid-

eration the detailed findings of fact in

the Order of the lower Court dated Dec-

ember 29, 1976, and upon which that Order

was based.

The Court in its reversal opinion

failed to apply the principals laid down

in Carr v. Montgomery County Board of 3

Education, 511 F.2d 1374, and Stout v. :

Jefferson County Board of Education, 537

F. 2d 800 (1976), giving no weight to

geographic or demographic considerations,

including the practical considerations of

hazard, distance, and expense, all of

which are incorporated in the evidence

and in the findings of the lower Court

in this instant case.

Pe Par ee Le

Fs aed tha. BE 8 52

Ii!

The Order of Reversal in the in-

stant case is in conflict with the Carr

case and the Stout case previously de-

cided by this honorable Court.

The Order of Reversal in the in-

stant case is contrary to the decisions

laid down in the Supreme Court of the

United States in Washington v. Davis,

426 U.S. 229 (1976); Austin Independent

School District v. United States, 97

S.Ct. 517 (1977); and Dayton Board of

Education, Et al., v. Mark Brinkman, Et al.

45 LW 4910 (June 27, 1977).

The Court makes no finding of dis-

crimination on the part of local auth-

orities in the Reversal Crder, but simply

presumeSan intent to discriminate on the

part of the local authorities because of

the unique statistics involved in this

case. To presume an intent to discrimin-

ate without any finding of discrimination

is, in the opinion of the Petitioner,

clearly in conflict with Washington v.

Davis, Supra. and Brinkman, Supra.

The Court, in its opinion of re-

versal herein, cites the case of Brinkman,

Supra., as a basis for finding the Order

of the District Court erroneous; and, in

the opinion of Petitioner, this case does

not support such a ruling based upon the

facts and evidence adduced in the lower

Court.

VII

To require a pairing of the ele-

mentary schools in the Demopolis School

System would be unfeasible and contrary

to practical considerations.

ARGUMENT

This school is beforethis honor-

able Court after having operated under a

terminal Order of desegregation rendered

by a three-Judge panel in the Middle

District of Alabama more than seven years

ago, which Order has now been thoroughly

reviewed by the District Court for the

Southern District of Alabama, upon sev-

eral oral hearings, lengthy depositions

of various parties, and various briefs

and oral arguments of the parties. This

review culminated in the Order of the

lower Court, dated December 29, 1976

(Record, Vol. I, P. 56-62). This Court,

in its Reversal Order, recites the various

racial statistics in the elementary

schools involved; finds that the two

schools are two and a quarter miles apart

by road, a drive of under ten minutes;

and are separated by no very significant

barriers. The Court then concludes that

“on these essential and not seriously

disputed facts, and without subsidiary

findings" the lower Court found the

Demopolis System to be unitary. A

reference to tne Order of the lower

Court, however, shown in the Record

as above cited, reveals that the

Order does have recited therein find-

ings and conclusions which were quite

pertinent to a decision in this matter.

For instance, in referring therein to

the original three-Judge Order rendered

in 1970; "the facts prevailing at the

time the Order was entered have not

changed to any measurable degree".

(Record, Vol. 1, Page 60). The lower

Court further concluded from the evi-

dence (Record, Vol. 1, Page 59-60) that

the School Board itself had not under-

taken any procedure or process that

continued or enhanced segregation and

(Record, Vol. 1, Page 61) that, although

some complaint had been registered that

the School Board had not strictly en-

forced the attendance zoning, it was

found from the evidence that where this

problem had existed, it had been sub-

Stantially corrected, if not totally so;

and that diligence was being employed by

the School Board to insure the integrity

of that part of the Cart's prior Order.

The lower Court also found, as reflected

in its Order (Record, Vol. 1, Page 57),

that the original three-Judge Court had

before it for its consideratior. the same

information that was presented to the

lower Court in the instant case, namely

the size of the elementary schools, the

distance to be traveled, the fact that

the Eastside was an all-black school

prior to desegregation, and the Westside

was an all-white school prior to dese-

gregation, and the fact that the Eastside

zone (objectively established in the

Order of the three-Judge panel) had

approximately 160 white students zoned

to attend Eastside School and that the

Westside zone had 52 black students zoned

to attend that school. From these facts

and these findings, reflected in the low-

er Court's Order, and based upon the

latest statistics before the Court at the

time of that Order, it can be readily

seen that more black students were act-

ually attending the Westside School in

the 1975-76 school year than were even

anticipated by the three-Judge panel's

Order. Moreover, while the evidence is

not before the Court, the 1976-77 enroll-

ment report shows a substantial gain in

the attendance of black students in the

Westside School. On the other hand, the

projected 160 white students zoned to

attend the Eastside School were lost in

great degree, as shown by the evidence

in the Record, through demographic

changes in great measure, and through

registration in private schools in lesser

measure. This fact is not controverted

at all by the Plaintiffs.

Petitioner is of the opinion that

the Court is in error in failing to take

into consideration the findings of fact,

and the conclusions hereinabove detailed.

* SDs (PTR Ae Po

PORTE A Ree Me

On a

it - {it

The entire thrust of the Court's

reversal opinion is the assumption that

desegregation in the elementary schools

of Demopolis has entirely failed simply

because of the racial imbalance. The

cases of Carr, Supra. and Stout, Supra.,

as well as other more recent decisions,

do not accept the principa! that de-

segregation (or the establishment of a

unitary system) does not exist simply

becauw of racial imbalance. These dec-

isions give weight t>% practical con-

siderations of changes in demographic

patterns, geographic conditions, hazards,

distance, and expense, all of which may

be contributing factors accounting for

racial imbalance, and none of which are

attributable to discrimination or actions

to preserve segregation on tke part of

the school authorities. The Court has

either ignored or overlooked the exis-

tence of a number of the above mentioned

practical considerations which are clear-

ly shown by the evidence to be present

in the instant case; or, because this is

a small school system, these considera-

tions are not to be given the weight

which they were given in the Carr and

Stout cases. In any or either event,

the Court disposes of any similarity

between the cases by finding that the

Demopolis School System is not contem-

plated to be such a system ac those

mentioned in the above cited cases.

Petitioner submits, and strongly con-

tends, that the same causes and effects

creating the conclusions reached in Carr

and Stout are also applicable and present

in the instant case.

IV and V

In the Austin Independent School

District v. United States, Supra. the

Court stated:

"As suggested by this Court's re-

mand upon Washington v. Davis, Supra.,

the Court of Appeals may have erred by a

readiness to impute to school officials

a segregative intent far more pervasive

than the evidence justified. The Court

also seems to have erred in ordering a

desegregation plan far exceeding any

identifiable violations of constitutional

rights”.

The above cited case, as well as

the Brinkman case, makes it clear that

where segregation by law has ceased, it

is the task of the District Court, as

well as the Court of Appeals, to first

determine whether there has been any

action in the conduct of the business

of the school board which was intended

to, or did in fact, discriminate against

minority pupils. The lower Court found

no such discrimination as would justify

overturning the three-Judge panel Order

issued in 1970. In fact, witnesses of

both races testified as reflected by

the Record, that no cases of discrimina-

tion existed. If, indeed, such dis-

crimination did exist, it would then be

Et Nes a LA Ried a nll pear inst eS —

ld anh Gs RE 6 the ik Tac +

SO EBEY welt bihexidlin.

oe gE RRS. 00 Ft ve edd Atala yc: STI ol Nn as

batt AAs

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Se ee eee ee

incumbent upon the Court under the Austin

School case, as well as the others above

cited, to correct by balancing of the in-

dividual and collective interests, the

condition that offends the Constitution

and the scope of the remedy would be

determined by the nature of the violation.

Here, the evidence shows no such vio-

lations by the school authorities; yet,

the Court, in its reversal opinion, seeks

to impute an intent to discriminate to

the school authorities. The Petitioner

strongly contends that to uphold such

an Order would be contrary to the de-

cisions above cited.

The Order of Reversal recognizes

that segregation by law has ceased in the

instant case, yet goes on to observe:

“.eeDut all is as it was before it dia".

Petitioner is of the opinion that the

statement that “all is as it was before

it did" is not supported by the facts

in the instant case and that a racial

imbalance, in and of itself, cannot re-

move the instant case from the operation

of the principles laid down in Brinkman,

Supra.

VII

One important factor that must be

Strongly considered in the instant case

and has been repeatedly considered in

previous decisions, is the welfare of the

individual student. (See Austin Indepen-

dent School District, Supra., and Brink-

man, Supra.) Justice Brennan, in the

Brinkman case, reminded the District

Court to “always be conscious that it

is the rights of individual school

children that are at stake, and that

it is the Constitutional right to equal

treatment of all races that is being

protected. It is also to be noted in

that case that the District Court laid

down certain guidelines in the case of

elementary school students (45 LW, at

Page 4911, Footnote 2(3), specifying that

"no student should be transported for a

period of time exceeding 20 minutes, or

two miles, whichever is shorter". The

facts in the instant case show that

while the two elementary schools are two

and a quarter miles apart, some of the

smaller children in grades 1-6 would be

forced to walk three and sometimes four

miles, one way, to their school in the

event these schools were paired, and in

the event the child had no transporation.

This situation, coupled with the fact

that there are few, if any, sidewalks

along the routes to these schools, re-

quiring the students to walk on the sides

of the highways, would impose an unbear-

able burden on children of both races,

creating exposure to accidents and injury

and anxieties to both student and parent

which would not be justified from a

practical consideration simply to improve

racial balance. There are other practical

considerations abundantly shown in the

record, involving demographic patterns

and financial outlays beyond the cap-

abilities of the system which have been

overlooked in the present Reversal Order.

Moreover, Petitioner wishes to

emphasize that the majority to minority

provision of its desegregation Order, as

may be seen from the Record, is actively

being used by black students and has in-

creased over the years.

Wherefore, upon the foregoing

grounds, it is respectfully urged that

this Petition for Rehearing be granted,

and that the judgment of the District

Court be, upon further consideration,

affirmed.

/s/ H. A.Lloyd

Attorney for Petitioner and

De fendant-Appellee

Post Office Drawer Z

Demopolis, Alabama 36732

I, H. A. Lloyd, Attorney for the

Demopolis City School System, do hereby

certify that the foregoing Petition for

Rehearing of this cause is presented in

good faith and not for the purpose of

delay.

/s/ He. A.Lloyd

H. A.Lloyd

APPENDIX F

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

Edward W. Wadsworth Tel 504-589-6514

Clerk 600 Camp Street

New Orleans, La. 70130

October 4, 1977

TO ALL PARTIES LISTED BELOW:

No. 77-1233 - Anthony T. Lee, U.S.A.,

National Education Assoc.

v. Demopolis City School

System

Dear Counsel:

This is to advise that an order has this

day been entered denying the petition

for rehearing, and no member of the panel

nor Judge in regular active service on

the Court having requested that the Court

be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 12) the petition

for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate

Procedure for issuance and stay of the

mandate.

—

aan Site Gra ieles Aiegwvibe.

» eb Sa iatara as aia fi ois

iia ec... Sidr: MN ae SRO ie WOME Ie ote. eee

Very truly yours,

Edward Ww. Wadsworth,

Clerk

/s/

By Brenda M. Hauck

Deputy Clerk

*on behalf of appellees, Dem i

’ oOpolis

School System, , “—

cc: Messrs. Thomas M, Keeling

Burtis M. Dougherty

H. A. Lloyd

ait dehs

IN THE SUPREME COURT OF

THE UNITED STATES

OCTOBER TERM, 1977

NO.

DEMOPOLIS CiTY SCHOOL SYSTEM,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

PLAINTIFF-INTERVENOR,

Respondent.

CERTIFICATE OF SERVICE

I, H. A. Lloyd, one of the Attorneys for

Demopolis City School System, Petitioner

herein, and a member of the Bar of the

Supreme Court of the United States, here-

by certify that on the day of Novem-

ber, 1977, I served copies of the foregoing

Petition for Writ of Certiorari to the Su-

preme Court of the United States on the

several parties thereto as follows:

l. On the United States, by mailing

a copy in a duly addressed envelope, with

postage prepaid, to W. A. Kimbrough, Jr.,

Esquire, United States Attorney for the

Southern District of Alabama, P. O. Drawer

E, Mobile, Alabama; and by leaving a copy

thereof at the office of the Solicitor

General, Department of Justice, Washington,

D. C. 20530; and by leaving a copy thereof

at the office of Burtis M. Dougherty, Esquire,

Attorney of Record for Plaintiff-Intervenor,

Department of Justice, Washington, D.C.

20530.

2. On National Education Association,

Plaintiff-Intervenor, by mailing a copy in

a duly addressed envelope,with first class

postage prepaid, to its Attorney of Record,

Solomon S. Seay, Jr., Esquire, Gray, Seay,

& Langford, 352 Dexter Avenue, Montgomery,

Alabama 36104.

Attorney for Petitioner,

Demopolis City School System

P. O. Drawer Z

Demopolis, Alabama 36732

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