Petition — Clinton Municipal Separate School District v. United States

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IN Tht

Supreme Court of the United States

OOTOHEH TRAM, LOT?

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CLINTON MUNICIPAL SEPARATE SOHOOL Diario?

Petitioner

\

THE UNITED SPATTER OF AMERICA, et al

Neapondents

PETITION FOR A WRIT OF CERTIORARL TO

THE UNITED STATES COURT OF APPEALS

POR THE FIETH CIROCULT

JOHN TE Pox, TH

hOXN & GOWAN

Attorneye at Law

1406 Capital Towers Hullding

Poa Office Drawer UUh47

Jackson, Mississippi Havos

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Appendix \4

Table of Authoritioa

Papre

Wright v, Couneil of the City of Emporia :

407 U, 8, 461 (1078), ..., seneccece Oy 80, 88, 28

Pasadena City Hoard of Hducation v. Spangler

427 U, 8, 484 (107A) ccc ccc , 10, 11, 18, 18

Swann v, Charlotte Mecklenburg Hoard of

Hdueation 408 U.S, LOOT) oo... 10, 18, 18

Spencer v, Kugler

404 U, &, 1087, (1O7B) ccc c erence een 10

Dayton Hoard of Bducation v, Brinkman |

U, 8, , OO L Be td 861, O78, Ce,

i. tl 4) ERE REE ER ER ER ER ERE REE EI 10, 18

Milliken v, Bradley

G18 UB. TAT UIOTE) vv cece vere nnnnneenn 12

San Antonio Sehool District v, Nodriques

eR A Bll. ) eeeeEEEERERERERERER EEE Ia

IN THE

SUPREME COURT OF THE UNITED STATES

October erm, 1077

No, ..

CLINTON MUNICIPAL

SEPARATE SCHOOL DISTRICT

Petitioner

v,

THE UNITED STATES OF AMERICA, et al

Reapondenta

PETITION FOR A WRIT OF CERTIORARI

TO THE UNTTED STATES COURT OF APPEALS

POR THE FLETH CIRCUIT

Petitioner praye that a writ of certiorari laaue

to review the judgment of the United States Court

of Appeals for the Fifth Clreult entered in thie case

on September 26, 1977,

i INS Hb

The opinion of the United States District Court

for the Southern Dietrict of Miseisaippi which is un

reported, ia set out in the appendix, infra, p, 1, The

opinion of the United States Court of Appeals for

the Fifth Cireuit is reported at 660 Fad 1188 and

is set out in the appendix, infra, p, 27,

} weT

The judgment of the Court of Appeala waa

entered on September 86, 1977 (App, »p oa)

A timely petition for rehearing waa denied on Oct»

ober 88, 1977 (App, infra, p. 89), The juriadietion

of thie Court reata on 88 U.S.C, 1864 (1),

QUESTIONS PRESENTED

Conaiatent with Swann v. Meecklenbur

of Bdueation, righ v. Council of the Ci {

Kmporia, and Pasadena City Hoard of Nducation

_ hale. ean & separate aehool district; estab:

lished after the implementation of Court approved

HES W desegregation plan without segregative mo:

tives and utilising boundaries established by auch

plan, and which has operated a unitary educational

ayatem from ite inception; be enjoined from further

independent operation in order to pair aaid separate

achool district with several achoola from the County

achool district from which the separate achool dis

trict wae removed after the implementation of the

Court approved plan,

STATEMENT OF THE CASE

Petitioner Clinton Municipal Separate School

istrict (Hereinafter referred to as CMSSD) was

established in July, 1970. The boundaries, facilities,

faculty and pupil assignments adopted by the

©MSSD were those provided by a permanent HEW

desegregation plan approved by the Fifth Circuit

Court of Appeals, relative to Hinds County SD in

opinion delivered November 11, 1969, U. S. v. Hinds

County School Board, 423 F2d 1264 (5th Cir. 1969).

he HEW plan divided Hinds County into seven

distinct Attendance Zones, including the Clinton

Attendance Zone. That plan was implemented Jan-

wary 1, 1970. The provisions of the HEW plan have

been complied with by both Hinds County SD and

CMSSD to date.

The City of Clinton is located in Hinds County,

Mississippi, adjacent to the State Capital and largest

ity, Jackson, also located in Hinds County. Hinds

County is by far the most populous county in Mis-

aissippi. Geographically, Hinds is the third largest

of 82 counties in Mississippi, containing 876 square

miles. The City of Clinton has experienced pheno-

menal growth over the last decade.’ With increase

a The population of the City of Clinton has grown

from approximately 3,400 in 1960; approximately

7,000 in 1970; to more than 12,000 in 1976. (R-479-

480, Clinton School Exhibit No. 7). The estimate for

1980 is approximately 18,000. (R481). The geo-

— area of the City of Clinton has more than

oubled from 1970 to 1977. (R-484).

3

in the population of Clinton came a requirement for

additional educational facilities. As a part of the

Hinds County school distrtict, a county-wide vote

was necessary tq pass bond issues to finance the

construction of educational facilities needed in

Clinton. 24

CMSSD was established to assure the avail-

ability of finances as required in the construction of

needed faci ities and to return to Clinton local control

over the educational system. The CMSSD as es-

tablished has always and is operated as a non-dis-

criminatory unitary system where no child is assign-

ed to schools on the basis of race. The motives of the

local officials in establishing the CMSSD are not

under attack. 24 After the Court approved deseg-

regation plan was accepted and implemented, Jan-

uary 1, 1970, the City established its own separate

school district pursuant to State statutes, utilizing

the boundaries defined and assigned to it by the

2/ 4 bond issue to build Northside School at the City

of Clinton failed as a Hinds County issue three times

before passing by a narrow margin in 1968. In 1972

a CMSSD bond issue to build Eastside Elementary

School passed by an 83% majority on the first vote.

(R-487).

3/ Any suggestion that motive or intent was not

a factor considered by this Court in Emporia and

Scotland Neck overlooks the fact that the motive

issue was what apparently split this Court in those

cases decided the same day. Compare dissent in

Emporia with concurrence in Scotland Neck.

4

.

Court approved HEW plan“

Both the CMSSD and the Hinds County school

district are operating unitary systems. At the time

of the hearing before the District Court there existed

in Hinds County three schools out of a total of 17

which were virtually all black. None of these were

in the Clinton Attendance Zone (CMSSD). The three

primarily black schools were in two other and dif-

ferent attendance zones of the Hinds County SD.

The existence of these three all black schools re-

sulted apparently from non-attendance of whites

assigned to those schools. Those white have not,

however, attended school in the CMSSD. The posi-

tion of the U. S. is and has been throughout these

proceedings that the CMSSD should be dissolved

in order to facilitate pairing of the Clinton schools

with two of these black schools. The U. S. does not

contend that Hinds County is not a unitary system

as a whole, but merely that three schools out of

seventeen are primarily black. The U. S. does not

even contend that the existence of these three

schools is an effect of the creation of the CMSSD.

The U. S. contends that the CMSSD should be

4/ The Fifth Circuit's opinion acknowledges that

the local officials acted without segregative intent

at footnote 6: ““The District Court was correct in its

ruling that the timing of CMSSD’s separation could

not be used to establish an impermissible motive.

Indeed, our ruling assumes that the motives of the

Clinton MSSD are free from any taint. The question

is not one of motive but of effect...."’

dissolved in the hope of eliminating racial imbalance

in two of 17 County schools. =

During June, 1970, CMSSD advised the U. S.

of its intent to establish a separate school district.

On November 30, 1970, the CMSSD served notice to

the parties in cause number 76-4436, U. S. A. v

Hinds County School Board of its establishment,

by a motion filed with the Court of Appeals, Fifth

Circuit, to sever CMSSD. On September 27, 1972,

amicus curiae (NAACP Legal Defense and Edu-

cational Fund, Inc.) filed a motion to dissolve the

CMSSD. On April 23, 1976, the United States filed

a motion to enjoin the continued operation of the

CMSSD. Finally on May 19, 1976, an evidentiary

hearing regarding all motions was had before the

District Court. All parties submitted briefs and on

November 12, 1976, the District Court rendered its

opinion. Relying on Swann v . Charlotte Mecklen-

burg Board of Education, 402 U. S. 1 (1971), Wright

v. Council of the City of Emporia, 407 U. S. 451

(1972), and United States v. Scotland Neck City

Board of Education, 407 U. S. 484 (1972), the Dis-

trict Court found that the establishment of the

Clinton MSSD had had little disparate effect on the

remainder of the Hinds County District with the

exception of eliminating the majority to minority

5/ One of the three black school is within the area

annexed by the City of Jackson. Both Emporia and

Scotland Neck were addressed to the effect of the

separation on an entire school system not individual

schools.

transfer feature which feature was found by the

District Court to have been historically minimal.

The U. S. appealed.

A panel of the Court of Appeals for the Fifth

Circuit vacated and remanded the order of the Dis-

trict Court. It held that the District Court had

failed to use the proper standards to evaluate effect

and should keep in mind, on remand, the three tests

approved in Emporia.®&/ The Panel found error

also in the District Court’s “‘noting that the bound-

aries adopted by the Clinton MSSD were the same

as the zone boundaries drawn by HEW...” (App.,

infra, p. 4). In addition to the error found, two addi-

tional criteria were set forth by the Court of Apeals

which would require the District Court to measure

effect by ‘‘the broader impact of the permanency

of the CMSSD’s boundaries as opposed to the tenta-

tive nature of HEW boundaries.// The Panel also

noted that recent expansion of the corporate limits

‘of the City of Jackson in July, 1977 would have an

effect on the Hinds County school system and that

6/ The Fifth Circuit’s opinion (App. infra, p. 31) enu-

merated the criteria: (1) Changes in student com-

position (2) changes in educational quality (3) timing.

Those exact tests were thoroughly discussed in the

District Court’s opinion, (App. infra, pp. 17-18).

U/ Petitioners have found no authority in support

of such a position. Such a position obviously con-

templates period:. adjustment of attendance zones,

a position repeatedly rejected by this court. Swann,

Pasadena.

this demographic change should also be considered

in measuring effect upon the Hinds County SD.

Finally, the Court of Appeals enunciated its own

test to be applied on remand. This test would require

the District Court to find, before it could deny the

motion of the U. S., that “‘the separate existence

of the Clinton MSSD does not adversely affect the

ongoing desegregation process in the Hinds County

school district..." (App., infra, p. 31). The record

clearly reflects, and the District Court so found,

that since the inception of the CMSSD the per-

centage of blacks had increased in the CMSSD while

the percentage of blacks in Hinds County had de-

creased.8/ Therefore, the District Court had al-

ready made tliat factual determination for which

the Fifth Circuit felt remand necessary. (App., infra,

p. 24). <<

REASONS FOR GRANTING THE WRIT

Certiorari should be granted because the de-

cision of the Court of Appeals is in conflict with prior

decisions of the Supreme Court of the United States.

The question presented involves a determination

of whether local authorities are precluded from es-

8/The Black to White ratio in Hinds County SD in

November, 1970, was 66% Black to 34% White. The

ratio in December, 1975, was 58% Black to 42%

White. The Black to White ratio in Clinton Attend-

ance Zone in November, 1970, was 15% Black to

80% White. The ratio in December, 1975, was 19%

Black to 81% White.

tablishing a separate school district under Wright v.

Council of the City of Emporia, 407 U. S. 451 (1972),

after a state imposed dual school system has been

dismantled and a unitary system has been accepted

and implemented as defined by Pasadena City Board

of Education v. Spangler, 427 U. S. 424 (1976). The

Fifth Circuit’s opinion must assume, but neither the

Court of Appeals nor the District Court so found,

that a unitary system has not been established in

Hinds County, Mississippi. In as much as the opin-

ion of the Court of Appeals of the Fifth Circuit con-

tains statements in direct conflict with decisions of

this Court, a review and definition of the functions

of Appellate Courts in school litigation appears

emminently necessary. 2/

A unitary system is one which establishes a

9/The Fifth Circuit’s opinion does nothing more than

‘reverse the District Court. In essence it orders the

District Court to dissolve the CMSSD, stating that

the District Court did not use the proper standards

to evaluate effect although the District Court ap-

parently did consider those standards. See Note 6

supra. None of the District Court’s findings of facts

were questioned. Such action by the Fifth Circuit

is quite similar to ‘‘...vague dissatisfaction...’’ of the

Fourth Circuit with the District Court’s ruling in

Dayton Board of Education v. Brinkman,

U.S. , 53 L.Ed.2d 851, 97 St. Ct. 2766 (1977).

Both litigants and District Courts are in need of

elucidation by this Court of the proper allocation of

functions between the District Courts and Courts

of Appeal.

racially neutral ayatem of student assignment,

Pasadena, supra, The existence of a amall number

of one race or virtually one race sehoola within a

ayatem does not violate the constitution, Swann vy,

Charlotte Mecklenburg Hoard of Bdueation, 402

US, 1 (1071), Spencer v, Kugler, 404 U, 8, 1087,

(1072), Dayton Toard of Kdueation y. Hrinieman,

U.S, , oi L. ed.ad MO1, 7 8.04. v7 00

(1077), There ia no substantive constitutional right

io @ particular degree of racial balance of mix,

Swann, supra, A unitary ayatem ia one in whieh

racial discrimination through official action has

heen eliminated and students are assigned to schools

ona nonracial basis, Pasadena, Swann, supra.

The Opinion of the Court of Appeala, Miftth Clr

Cull, states that desegregation ia an "ongoing

process,” and "je often one of trial and error,..°,

where, presumably, numerous attempta may be re

quired to achieve desegregation and to eatabliah a

unitary syatem, In assuming, almost 4 yeara after

the Court approved plan creaced a unitary ayatem,

that Hinde County, Missiseippi, ie atill undergoing

desegregation, the Court of Appeala apparently

views desegregation as a process never-ending until

all schools reflect the racial composition of the com

munity, irrespective of the teachings of thie Court in

Swann, Emporia and Pasadena, supra,

The moat disturbing facet of the Fifth Cireuit's

opinion to Petitioners, and undoubtedly other local

achool officiala within that Court's juriadietion, ts

the statement relative to the effeet of annexation by

the City of Jackson of part of the Hinds County

10) ‘

School Dincriet Y lt wae apparently irrelevant to

the Fifth Clireult that CMSSD had absolutely no

control over the expansion of the corporate limite

of the City of Jackson whieh occurred seven years

alter the creation of CMSSD, Certainly any effect

on Hinds County Sehool District, and particularly

any effect on the relative percentages of black to

white students, caused by the annexation of some

of the Hinds County territory by the City of Jackson

cannot be attributed to CMSSD, Pasadena, supra,

Once a constitutionally sufficient unitary ayaten

wae implemented in Hinda County, in 1070, the

vitivenry of the City of Clinton merely exercised

righte expressly acknowledged in Emporia:

As already noted, our holding today does

not reat Upon a conclusion that the diaparity

in racial balance between the city and county

achoola resulting from separate ayateme

would, absent any other considerations, be

unacceptable, The City's creation of a sep

arate achool ayatem wae enjoined because

of the effect it would have had at the Ume

upon the effectiveness of the remedy orderec

to dismantle the dual ayatem that had long

existed in the area, Onee the unitary ayatem

has been established and accepted, it may

LO’ Phe Fifth Clreuit's opinion (App., infra, p. 40)

indicates that a casual connection existe bet ween the

separate existence of the CMSSD and the effeet on

the racial balance of Hinde County SD ereated by an:

nexation of part of Hinde County by the City of

Jackson,

1

——————————EE—E———eSoee

be that Emporia, if it atill desires to do ao,

may establish an independent ayatem,,..”’

Nmporia, supra at page 470,

The instant opinion of the Fifth Clreult goes

beyond any logical extension of ria, It clearly

contemplates perpetual juriadietion of the Court

to aseign students on a racial baaia, with the juris

dictional predicate for auch asaignmenta resting on

discriminatory activities of the 1960's and before,

This Court haa repeatedly held that quotas are not

constitutionally mandated; that a amall number

of one race achoola does not violate the conatitution;

and that in the absence of segregative actions on the

part of local authorities judicial intervention ia not

warranted, Swann, Pasadena, Nrinkman, supra,

The opinion of the Court of Appeals ignores the

interdiatrict ramificationa of ita deelaion, although

neither the CMSSD nor Hinds County have been

accused of racially diseriminatory acta, When read in

light of Milliken v, Hradley, 418 U, 8. 717 (1074),

and applied to the facta 7 this cane, Emporia re

quires a finding of segregative action to support an

interdiatrict remedy, Emporia expressly acknow:

lodyed that local control waa a relative factor entitled

to consideration, Thia factor wae apparently over

looked or ignored by the Fifth Cireult, Citing Ey

ria, along with Milliken and San Antonio Sehoo!

atriet Vv, He ipucr 41u,81 Tov thin Court

recently reaffirmed ite position in Hrinkman, aupra

that local autonomy of school districts whe

national tradition; and, for that reason local control

should be removed only upon proof of a conatitu:

tional violation,

Resolution of the queations presented ia of vital

importance to local offieiala charged with the dif

fioult task of providing quality education to the

achool children of this nation, Many of these officials

reside in communities where racial diserimination in

some form waa found to exiat in the past and which

communitios have undergone Court imposed rem:

edies to correct the same, As demographic change

resulting from migration within tha nation eon

tinues, local officiala are required to meet adminis:

trative and fiscal reaponalbilities in providing edu:

cation, Should these offielala be guilty of segre:

gative activities, and upon a proper showing, the

Courte can and should intervene,

Aa in the inatant case where achool officials

are not charged with segregative constitutional

violations, there le no baaie for judicial intervention,

Swann, Pasadena, supra Petitioners do not discount

{mal

the Importance 0 ntaining equal educational

opportunities for all children, They recognive and

practice compliance with the conatitutional require:

ment to eliminate racial diserimination and eatabliah

unitary school ayatema, However, in Hinds County,

Missisaippi, and particularly in CMSSD, thie wae

accompliahed almoat eight (4) yeare ago, A unitary

ayatem where no child (es assigned to a aehool on the

baal of that child's race haa been in effect from and

since the imple: entation of the Court approved

HESW desegregation plan in January, 1970,

The opinion of the Court of Appeala clearly in

divates that it asaumes juriadietion to perpetually

reassign students in school diatricta located in that

Cireuit on the basia of race, Such a position miscon:

ceiver the constitutional concept of a unitary ayatem,

lt faila to recognise the limite of judicial authority,

lt faile to follow the precedents of this Court,

Mor the reasona atated above, the petition for

certiorari should be granted,

Reapectfully submitted,

JOHN WH, POX, 1

rOX & GOWAN

Attorneya at Law

1406 Capital Towers Building

P.O, Drawer 82647

Jackson, Mississippi §0805

Attorneya for Petitioners

4

IN THE UNTTED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT

OF MISSISSIPPI

JACKSON DIVISION

UNITED STATES OF AMERICA

VS CIVIL ACTION NO, 4078(0)

HINDS COUNTY SCHOOL BOARD, BT AL

OPINION

- towing 7, ne _ iw Cireuit Court of

roala, owin y ® ee aon n

; : As ) ADA Preeti

seis of Minna to implement permanent plane

devised by the Office of Rducation, Department of

Health, Bdueation and Welfare, aa they pertained to

atudent and faculty asa enta, effective December

H1, 1040, 488 F.8d 1240, The Appellate Court retained

juriadiction, under ita docket Noa, 88080 and Baddd,

to inaure the prompt and faithful compliance with

‘ite order, with any suggested modifications to be

heard by thie Court for the purpose of making find

inge of fact with reapect thereto, and eubmitting

ite recommendation or disapproval to the Appellate

Court for ita review,

In an order dated February 25, 1076, with re:

apect to the Hinds County choo! distri, on the

0 ye Nave “ourt reviewed all orders

it had entered caheine to thie aechool district,

including an order of December 5, 1969, denyin ng

defendanta’ motion to modify the plan with rega

to faculiy asaignment, and on June 30, 1070, an

order disallowing interrogatories filed by amious

APA

curiae (NAACP Legal Defense and Educational

Mund, Ine), The Appellate Court noted that two

motions namely, (1) the motion of amicus curiae to

dissolve the Clinton Municipal Separate School

District, herein called Clinton MSSD, and for a new

plan of student assignment, filed on September

v7, 1072, and referred to the District Court on Oc»

tober 16, 1072 for findings of fact and recommen

dations, and (2) the motion of amicus curiae for

leave to intervene in this action aa a party»plaintiff

filed on February 0, 1079, were atill pending, and

indamuch as the creation of the Clinton MSSD had

never received judicial approval, transferred jurie

diction of the case to this Court to hear the pending

motions within 90 dave of the entry of ita Order,

The Order alao prov ided for the discontinuance of

reporta required by

, in the event

School Board, 4 hh ie oe .

Summary Reporte (Forme 101 and 102), along with

a report showing faculty and ataff assignments

as required by Hinds County if auch is not reflected

in the HEW Summary Reporta, are filed with the

district court and served on counsel for the plaintiff

and amicus curiae, and are retained by the diatrict

court for two years, or alternatively, the defendant

achool district may continue to file ite la Co

type of report annually, not later than November

iS of each year,

On April 26, 1076, the Appellate Court iseued a

supplemental order to include that in the event the

district court determined that amieus curiae had

authority to file and litigate ite pending motion to

dissolve the Clinton MSSD and for a new plan of

pupil assignment, then the district court waa di

rected to hear the motion within 00 dave of February

BS, 1076; and if the district court should determine

that amicus curiae did not have authority to file

APY

and litigate its motion, any subsequent similar

motion filed by proposed private plaintiff inter-

venors, if their motion is granted, or by the United

States shall be heard within 60 days of the date

upon which such motion is filed with the district

court.

Between January and June 1970, at the time the

desegregation plan for the Hinds County school

district, consisting of seven zones, with schools

covering grades 1 to 12 in each zone, was in effect

and being implemented, over which jurisdiction was

retained by the Appellate Court, the Clinton MSSD

was formed with district lines coterminus with the

zone lines of the Clinton Attendance Zone in the

Hinds County school district. For the record the

Court notes that on November 30, 1970, the Clinton

MSSD filed a motion with the Appellate Court for

recognition as a separate school district, the motion

containing allegations that all pertinent resolutions,

an ordinance of the City of Clinton, approval by the

Mississippi State Educational Finance Commission,

student and faculty assignments, school district

map, and descriptive boundary lines, copies being

attached to the motion had been forwarded in July

1970 to HEW and the Department of Justice. Al-

though a copy of this motion was filed in the district

court and copies served on plaintiff and amicus

curiae, unknown to this Court until the hearing

hereon, was the fact that the motion of the Clinton

MSSD was not heard by the Appellate Court nor

filed by its Clerk. This Court also notes that follow-

ing the motion of amicus curiae filed on September

27, 1972 with the Appellate Couft, but noticed for a

hearing before the district court on October 10, 1972,

seven days before the motion was referred to the

district court, the United States, as plaintiff, on

December 4, 1972, filed its response to the motion of

AP-3

amicus curiae with the Appeilate Court in which

it said: “If the desegregation of the one race schools

can be accomplished without participation of the

Clinton Municipal Separate School District, the

existence of that district may continue unchanged.

However, if it is determined that the creation of the

Clinton District was to defeat desegregation, the

Clinton District can be required to participate to the

extent necessary in further desegregation.’ On

February 8, 1973, the United States noticed the

depositions of Hinds County school district officials

to be taken, with various records to be brought to

the depositions. This notice was filed with the Ap-

pellate Court.

On April 5, 1976, after jurisdiction was trans-

ferred here, the United States filed a motion in this

Court to add as parties defendant the Clinton MSSD,

its superintendent and board of trustees, the City of

Clinton, and the State Educational Finance Com-

mission. In this motion the government asserted

that four black students, presumably in the Hinds

County school district, represented by their parents,

had, on February 9, 1973, filed a motion to intervene

as parties plaintiff with the Appellate Court. Such a

motion is not in the record before this Court, nor

has this Court seen it or a copy.

On April 23, 1976, the United States filed a

motion for supplemental relief with this Court asking

this Court to enjoin the continued operation of the

Clinton MSSD as a school system independent o!

the Hinds County school district and for an order

directing the Hinds County School Board to develop

and implement a plan of desegregation for the

1976-77 school year which meets the requirements

in Swann v. Charlotte Mecklenburg Board of Edu-

cation, 402 U.S. 1.

AP-4

On May 13, 1976, a consent decree was entered

into whereby the Clinton MSSD, its superintendent

and board of trustees, the City of Clinton, and the

State Educational Finance Commission agreed to

their joinder as parties defendant. All defendants

have since responded to the government's motion

for supplemental relief.

On May 14, 1976, the four black students, who

allegedly filed a motion in the Appellate Court to

intervene as parties plaintiff, filed an amended mo-

tion in this Court. These students attend the Bolton

Attendance Center in the Raymond Attendance

Zone in the Hinds County school district.

On notice to all parties, including attorneys

for amicus curiae and the black students, the attor-

neys being the same for both, this case was set for

hearing on Mav 19, 1976 on all motions, and heard

that day.

The motions before the Court were (1) the mo-

tions of NAACP (a) to participate as a party-plain-

tiff, (b) and to dissolve the Clinton MSSD and for

a new plan of student assignment transferred to this

Court under the order of the Appellate Court of

February 25, 1976; (2) the amended motion of the

four black students to intervene as party-plaintiffs;

and (3) the government’s motion for supplemental

relief filed pursuant to the Appellate Court’s amend-

ed order of April 26, 1976, seeking to enjoin the

continued operation of the Clinton MSSD and to

require the Hinds County School Board to develop

a new plan of desegregation.

At the hearing, the Court granted the motion of

NAACP Legal Defense and Educational Fund, Inc.,

as amicus curiae, t» participate in all phases of the

hearing and denied the amended motion of the black

students attending the Bolton Attendance Center

AP-5

to intervene as parties-plaintiff. Counsel for the

NAACP announced that it was adopting that part

of the government’s motion to dissolve the Clinton

MSSD and agreed with the government not to pro-

ceed on a new student assignment for the Hinds

County school district at this hearing. The govern-

ments position was that if the Court refused to

enjoin the operation of the Clinton MSSD, the

government would prefer to await a final decision of

the Mississippi Supreme Court on a case before it

involving the attempt by the City of Jackson to

annex an area including parts of both the Clinton

MSSD and the Hinds County school district before

proceeding with the matter of a new student assign-

ment plan for the Hinds County school district.

The position of counsel for the Hinds County school

district was that if the Court dissolved the Clinton

MSSD, it would need further time to respond to any

proposed new student assignment plan, and, if the

Court did not dissolve the Clinton MSSD, it would

have to await resolution of the Jackson annexation

case before considering a new student assignment

plan. The Court also granted the Clinton MSSD

and the City of Clinton the right to respond to the

motion of the NAACP to dissolve the MSSD and

for a new student assignment plan, which response

has been filed since the hearing.

On the agreement of all parties the hearing was

limited te the motion of the government and the

NAACP to dissolve the Clinton MSSD, at the con-

clusion of which the Court reserved ruling in order

to study the voluminous documentary evidence

offerea and post-trial briefs.

In the government’s motion for supplemental

relief, adopted by the NAACP, the government

charges that the purpose and effect of the creation

of the Clinton Municipal Separate School District

AP-6

was to impede the desegregation of the Hinds

County school district and to thwart the establish-

ment of a unitary school system in Hinds County

in that, (a) the Clinton MSSD began operation in

the 1970-71 school year as an 85% white school

system immediately adjacent to four all-black or

virtually all-black schools in Hinds County and cur-

rently serves a student population of over 80% white

while the four adjacent Hinds County schools remain

all-black or virtually so; (b) it eliminated the pos-

sibility of black students from Hinds County attend-

ing Clinton schools under the county school system's

majority to minority transfer plan; and (c) it es-

tablished a lower black to white faculty ratio in the

municipal district than in the Hinds County district.

As the government notes the HEW plan which

the Hinds County school district was directed to

adopt and implement, the student assignment plan

being effective as of the opening of schools in Sep-

tember 1970, created seven geographic attendance

zones in Hinds County, each served by one high

school, including a Clinton Attendance Zone that

- encompassed not only the corporate boundaries of

the City of Clinton, but surrounding territory. Be-

ginning on January 5, 1970, the local Clinton Board

of Education passed a resolution urging the creation

of a separate Clinton school district. 1/ This resolu-

tion urged the adoption of a school district, the bound-

aries of which would be identical to those of the

Clinton Attendance Center, in the plan offered by

HEW, and which was directed to be adopted and

implemented by the Fifth Circuit Court of Appeals.

1/ This local board, under the dual school system, had been

appointed by the | ads County School Board and exercised

such authority as was delegated to it by the Hinds County

School Board.

we BEST COPY AVAILABLE

In successive steps, the Clinton Board of Aldermen

passed a resolution creating a separate municipal

school district to be coterminous with the Clinton

Attendance Zone, enabling legislation was passed

by the Mississippi Legislature by virtue of Senate

Bill No. 2293, amending Section 6411-01, Mississippi

Code of 1942, now Section 37-7-637, Mississippi

Code of 1972, which was approved by the Governor,

and the new district received approval on May

18, 1970 from the Mississipi State Educational

Finance Commission, which also approved a minor

correction in the boundary description on June

15, 1970. The Hinds County School Board, which

had initially declined to approve the new school

district, did, on May 14, 1970, approve same “insofar

as this Board is authorized to do.’ The Clinton

MSSD began operation on July 1, 1970. On Decem-

ber 2, 1970, the newly created school district, in an

attempted compliance with reporting requirements

of the Fifth Circuit Court of Appeals in all school

re-districting plans o-er which it retained jurisdic-

tion, not only filed such a report with the Appellate

Court, but two days prior thereto, on November

30, 1970 forwarded its motion to the Appellate Court

to sever the Clinton MSSD from the Hinds County

school district and to recognize the Clinton MSSD

as a separate school entity. Copies of the motion

were mailed to HEW, the Department of Justice,

amicus curiae, and this Court. This is the motion

that the Clerk of the Appellate Court declined to

file.

The essence of this motion is that, as the result

of U. S. Census reports and an independent report

by planning consultants employed by the City of

Clinton to develop a comprehensive plan to aid in

the orderly development of the city and to establish

its ability to provide municipal services for its

AP-8

phenomenal population growth, the city recognized

the problem of providing school facilities for students

residing within its area and the area of the Clinton

Attendance Zone, now Clinton MSSD. 2/4 Between

1958 and 1970, three schools were built in the Clinton

Attendance Zone, namely, Clinton Park Elementary,

Northside Elementary, and Clinton High School.

The Clinton Junior High School, now Clinton Ele-

mentary, was not ready for occupancy prior to Sep-

tember 1970. 2/ It was built following the passage of

a bond issue by the citizenry of the entire Hinds

County school district, after three earlier proposed

bond issues had failed. This school initially opened

with 80% occupancy. Movants believed additional

facilities would be required. In recognition of its

growth and corresponding duty to provide adequate

school facilities the City determined to create its

own school district, not confined to the four square

mile area within the municipal corporate limits, but

to include the additional twenty square mile area

of the Clinton Attendance Zone as formulated by

HEW in its dismantling of the former dal school

system existing in the Hinds County school district

' and as directed by the Appellate Court.

From 1970 until February 1976, when the Appel-

late Court returned jurisdiction of the Hinds County

school district case to this Court with directions to

hear and resolve the issue of whether or not the

Clinton MSSD should be dissolved and to require

2/1. S. Census for the City of Clinton was 916 persons in 1940;

2,255 in 1950; 3,438 in 1960; and 7,525 in 1970, with a growth of

114% during the period 1960-1970. Projections for the future

are 18,551 in 1980 and 30,182 in 1985, with a present population

of 13,000; these figures appearing in the affidavit of Charles

G. Blass, current Mayor of Clinton.

3/ Eastside Elementary, housing grades 5-6, has since been built

with occupancy beginning in the 1973-74 school year.

AP-9

anew student assignment plan for the Hinds County

school district, the Clinton MSSD haa for over

“ix yeara continued to operate aa a racially deseg

regated separate municipal sehool distriet, filing

reporta with the Appellate Court in the time and

manner as required of the Hinds County sehool

district, At all times during this over aix-year period,

the Clinton MSSD has kept all parties advised of ita

status, inviting visite from HEW and Department

of Justice personnel,

In ite motion, not filed nor heard by the Appel

late Court during the aix yeara that Court retained

juriadietion, the Clinton MSSD recognived that ti

wan obligated to determine*the effect ite separation

from the Hinde County sehool ayatem had on the

balance of the Hinds County school district Inasmuch

ae ite schools, from the beginning had a majority

white attendance, whereas in the total student at

tendance in the Hinda County sehool diatriet, blacks

predominated over white, To show that this effect

wae but minimal at the moat, the motion contained

the following facta and atatiation:

A new subdivision in the northeast corner of the

district will infuse approximately 800 new families,

all black, inte the diatriet, Not including the atudenta

soned inte the Clinton Attendance Zone, 1 black

and 85 white new atudenta enrolled in the Clinton

MSSD in 1070 after thelr families relocated inte

the municipal district. In addition, 4 black and 0

white students, who resided in the Clinton Attend-

ance Zone but were enrolled in other schools in Hinds

County in 1969-70 in special education classes, en-

rolled in the municipal district in 1970 for special

education not previously available in the Clinton

Attendance Zone. Previously attending Hinds

County schools other than Clinton in 1969-70, 146

white students were zoned into the Clinton Attend-

AP-10

ance Zone for the year LO7071 in the TIEW plan

This figure included 10 enrolled in the firat grade

not previously enrolled in any sehool, Leaving the

Clinton Attendance Zone in 1000-70, were OU whites

who returned to Clinton schools and physically reside

in the Clinton MSSD, The motion reflected that

ae shown in the Clinton MSSD December 1, L070

statue report to the Appellate Court there were

U715 atudenta in attendance in the Clinton MSSD,

YYOK white and 417 black, uniformly enrolled in

approximately the same percentage throughout all

the district's sehoola and grades, In May 1070,

V4l atudenta were enrolled in the Clinton Attend

ance Zone, with a net gain in December 1070 of

U7 atudenta, 250 of whom were enumerated in the

above atatiatios, reflecting a net gain of 24 atudents

other than the 64 whites whe have moved back inte

the distriet, In actuality movante atated that aa ol

December 0, 1070, there were UO8 new atudente

in the district, not enumerated above; at the same

time (5 atudenta moved out of the district and were

not enrolled in the Clinven MSSD, Other than the

atudenta soned into the Clinton Attendance Zone

by HEW and the Appellate Court whieh directed

the implementation of the THEW plan, movante

reported that the only effeet on the remainder of the

Hinds County sehool avyatem wae that S48 atudenta

who formerly attended sehoola in the Hinds County

achool diatriet and whe did net live in Clinten, at

tended the Clinton MSSD in 1970, these 38 students

being only .003% of the toal of 13,036 students en-

rolled in the Hinds County school district as of

April 1970.

By way of summation, the Clinton MSSD, in its

motion which it tried to file in November 1970,

contended that, inasmuch as the creation of the new

AP-11

school diatriet with boundaries identical to that of

the Clinton Attendance Zone, had not materially

nor adversely affected the desegregation plan of the

Hinds County aehool district, and inasmuch aa the

Clinton MSSD wae being operated in a totally, de

segregated, unitary manner and upon «racially

non-diseriminatory manner, and because of the ex:

plosive population growth within the Clinton MSSD,

it wae Vital to the citivens of that area to have within

thelr power the ability to finance the construction

of needed new buildings and the operation and main:

tenance of exiating facilities without having to rely

upon the remainder of the Hinda County sehool

district for the passage of bond laaues,

lt wae not until September 1072, that amicus

curiae, Who had not been authorived by the Appellate

Court to participate in pleadings, filed ita motion

with the Appellate Court to dissolve the Clinton

MASS, erroneously noticed for a hearing before

the Diatriet Court before the motion wae referred to

the Diatries Court for resolution, and it wae not

until December 1078 that the government filed with

the Appellate Court ita reaponse to the motion of

amicus Curiae, at whieh time the government took

the equivocal position noted above,

During the period of 1970 to 1076, the Clinton

MASSD has aseumed ite portion of the Hinds County

achool district's bonded indebtedness, haa activated

its own school district tax assessment procedures,

has successfully passed a second $1,500,000.00 bond

issue of its own with a new school building under

construction to meet the requirements of its expected

population growth which has proved to be accurate,

has maintained and operated its schools for a total

expenditure of approximately $8,000,000.00 during

AP-12

the six-year period, 1 and has continued its schools

on an integrated basia with courses and services not

before available to it, and with an inerease of black

atudenta over the increase of white atudenta,

The government, joined in by amicus curiae,

sooke to undo all thia by ita motion of April 84, 1076,

and ite subsequent motion to add the Clinton MSSD,

ite superintendent and board of trustees, the City of

Clinton, and the Mississippi State Educational

inance Commission as additional parties defendant,

The government, by way of ite poatetrial brief,

none having been filed by amieua curiae, and in the

wealth of documentary evidence offered by the

wovernment at the hearing, contends that in Sep:

tember 1000, prior to the establishment of the

Clinton MSSD whose atudenta firat attended aehools

in this diatriet in September 1070, the Hinda County

school! district had an enrollment of 14,811 students,

54% of whom were black, When the separate Clinton

syatem began operation in the fall of 1070, it served

2,716 atudenta, 15% of whom were black, while the

Hinds County public aehool enrollment aa a con

sequence became 66% black, Hased on fall 1075

figures reported from the two diatrieta (1) enrollment

in the Clinton MSSD totale over 4,200, about 10%

black; (2) the Hinds County public aehool enrollment

in HA% black; (4) the latter district enrolla approxt

mately AA% of the black atudenta living tn the Lwo

districta; and (4) together, the two diatrieta in the

1076-76 aehool year enrolled 14,489 atudenta, 47%

of whom are black. The government contends that

4/ Capital improvements during the years 1970-76 total

$2,918,976.00. In the deposition of Virgil F. Belue, Superin-

tendent, taken in September 1973, he testified that the budget

of the Clintun MSSD in 1972 was $1,250,000.00, and in 1973

was $1,500,000.00.

AP-13

the formation of the Clinton MSSD ereated and

remains today a “white island’ in the midet of two

majority black school ayatema, Hinde County and

the City of Jackson on the eaat,

Geographically, the government has shown that

Sumner Hill High Sehool, in the Sumner Hill At

tendanece Zone, north of the Clinton MSSD, serving

grades 718, all black, ie approximately two miles by

road from both Clinton High Sehool, grades 012,

and Clinton Junior High Sehool, grades 74, Hinds

County's Lovett Blementary, alao in the Sumner Hill

Atvendance Zone, serving grades 1-6, with 2 whites

out of a total current enrollment of 668 atudenta,

in U6 miles from Clinton Park Elementary, grades

1-8, and Northaide Elementary, grades Sed, both in

the Clinton MSSD, From Lovett Elementary to

Hastaide Blementary, grades 6-6, in the Clinton

MSSD, the distance ia about 8 milea, Alao Weat

Side Elementary, in the Poreat Hill Attendance

Zone, swerving grades 1-0, le within 4 milea of the

three elementary schools in the Clinton MSSD,

Aw to physical planta moat of the aehoola in the

Clinton MSSD have been built since those in the

Hinds County ayatem and are in better condition

than Sumner Hill High Sehool and Weat Side Ble:

MeENLARY,

Under the dual aehool ayatem, that ia, prior

to the implementation of the THEW plan assigning

atudenta to sones, black atudenta, living in what ts

now the Clinton MSSD, attended Sumner Hill,

Lovett and West Side schools in the Hinds County

school system; white students living north of the

City of Clinton in what is now the Sumner Hill At-

tendance Zone, attended schools now located within

the Clinton MSSD. The county provided transporta-

tion to those students who were eligible for it under

AP-14

er eg =

the provisions of atate law, During the firat year of

operation of the Clinton MSSD, it contracted with

the Hinds County school district to furniah trane

portation for all eligible atudenta in the new district.

Currently, the Hinds County schoo! district provides

transportation to approximately 8o%% of the atudentea

attending Lovett and Sumner Hill, over L080 out of

the 1296 students enrolled at the two achoola, The

routes Which serve them range in one-way distance

from 11 to 35 miles, The Clinton MSSD presently

provides or contracts for tranaportation for over

1060 of ite atudenta, whe live not leas than one mile

from their assigned school, nearly 40% of ita enroll

ment, and contracta with a private firm for tran

portation for an additional number of studenta who

live within the Clinton MSSD, Heeause bus trans

portation wae used formerly to tranaport students

bo segregated schoola, and ia now used by both

school ayatema, the government save any objection

Lo busing now ta of little merit,

Murther, the government hae shown through

ite documentary and diapoaition evidence that the

eatabliahment of the Clinton MSSD hae eliminated

the majority to minority tranafer provision of the

Hinds County school desegregation plan insofar as

it related to the Clinton Attendance Zone, The policy

of the Clinton MSSD, ainee ite establishment has

heen not to accept auch tranafera from without the

diatrict exeept to allow prior tranaferees to continue

as long ae they furniahed their own tranaportation,

Finally, the government has shown that the

formation of the Clinton MSSD has resulted in a

lower black-white teacher ratio in that district than

for the remainder of the Hinds County school dis-

trict. In April 1970, 42% of the classroom teachers

assigned to the Clinton Attendance Zone were black.

AP-15

After the Clinton MSSD began ite operation in the

fall of 1070, it employed 106 fulltime classroom

teachers, S1% of them being black, while the ratio

in the balance of Hinds County school ayatem was

4% black, Currently the Clinton MSSD employe

vOO teachers, 39 of whom, or 19.6% are black, while

the Hinde County sehool avatem's faculty ia 46%

black,

The government's argument for enjoining the

continued operation of the Clinton MSSD ie that this

new district wae carved out of the Hinds County

achool district at a time when the Hinds County

whool district had not completed the diamantling of

a ayetem of enforced racial segregation, the iseue

being controlled by the decisions in Seay

{ ; WY ft hm ‘ ria, eh U, ‘3. ‘ an

motive of the City of Clinton officials reaponsible

for the creation of the new achool district wae to

meet the needa of ite growing population and to

furnieh a better public school ayatem of education

with more likelihood of the passage of necessary

bond iseues for ite own needa, the government not

only questions thie motive, inaamuch as the new

district wae formed coincidentally with the imple

mentation of the desegregation plan for the Hinds

County eehool district, thereby ineuring for the

Clinton MSSD a majority white atudent attendance,

but relies on the two above cited eases which hold

that ia not the teat, the eritioal factor being

the e effect that the carving out of a new diatrict has

on the remaining part of the system being disman-

tled. In Wright, following a court ordered desegre-

gation plan for Greenville County, Virginia in June

1969, the City of Emporia, lying near the center of

the county and whose schools were a part of the

AP-16

county schools, undertook to create a new school

district coterminus with its corporate boundaries.

There were 3,759 students enrolled in the unitary

system contemplated by the desegregation order of

whom 66% were black and 34% white. Had Emporia

been permitted to establish its separate school sys-

tem, 1,123 of the county-wide students would have

attended the city schools, increasing the white per-

centage in those schools to 48% It was undisputed

that the city schools would be operated on a unitary

basis. Throughout the month of July 1965. the city

continued necessary procedures toward implemen-

ting the separate system. On August 1, 1969, the

petitioners who had been instrumental in securing

the county-wide desegregation plan, filed a supple-

mental petition, adding city and school officials

of Emporia as additional defendants seeking to en-

join the withdrawal of Emporia students from the

county schools. The District Court, on August 8,

1970 found that the establishment of a separate

school system by the city would constitute an im-

permissible interference and frustration of its de-

segregation order for the county schools and issued a

preliminary injunction enjoining the defendants from

taking any action which would interfere in any man-

ner with its desegregation order, making this in-

junction permanent. The Appellate Court, reversed

finding that the issue rested on the ‘“‘dominant pur-

pose of the boundary realignment”, and finding

further that Emporia’s primary purpose was ‘‘be-

nign’’ and not a cover-up for racial discrimination.

The Supreme Court reversed the Appellate Court,

re-instating the District Court's injunction on the

basis that, in addition to the disparity in racial per-

centages, the proportion of whites in the county

schools might drop as county-school whites shifted

to private academies, while some whites might

AP-17

return to city schools from the academies they pre-

viously attended; that two formally all-white schools,

better equipped and better located than county

schools, were in Emporia, while all the schools in

the surrounding county were formerly all black;

and that Emporia, which long had the right to estab-

lish a separate school system, did not decide to do

so until the court’s order prevented the county from

continuing its long-maintained segregated system,

this last reason given despite the court’s focus upon

effect rather than motivation. This court also notes

that, as to the disparity in racial percentages, the

Supreme Court cited from its earlier decision in

Swann v. Mecklenburg Board of Education, 402

U. S. 1 (1971) that “‘[t] he constitutional command

to desegregate schools does not mean that every

school in every community must always reflect the

racial composition of the school system as a whole.

In U. S. v. Scotland Neck City Board of Edu-

cation, supra, the City of Scotland Neck, N.C., part

of the larger Halifax County school district, then in

the process of dismantling its dual school system,

undertook by virtue of a state statute enacted in

March 1969, authorizing the creation of new school

districts, to form its own. The United States, prior

to any court-ordered desegregation for the county-

wide schools, in June 1969, filed suit to desegregate

the county schools and to enjoin implementation

of the statute by the city. The district court en-

joined the statute as creating a refuge for white

students and promoting school segregation in the

county. The Appellate Court reversed, finding that

the statute’s impact on desegregation of the county s

dual system was minimal, and should not be re-

garded as an alternative desegregation plan for the

county since the statute was enacted by the legis-

AP-18

lature and not by the county school board. The

Supreme Court, in turn, reversed the Appellate Court

holding it unmaterial whether the legislature or the

school board initiated the action. In the 1968-69

school year, 10,655 students attended the county

schools, 77% being black, 22% white, and 1% Amer-

ican Indian. The effect of the state statute allowing

Halifax County to carve out a new district for the

Scotland Neck schools would have given a new unit

with 695 students, 57% white and 43% black. Under

a transfer plan devised by the Scotland Neck City

Board of Education, 360 students of whom only

10 were black, residing outside the city limits, ap-

plied to transfer into the city schools, while 44, all

black, applied to transfer out of the city to a nearby

school in the Halifax County school system. The

projected enrollment for the county schools was

2,948 students, of whom 78% were black. Had the

Statute been implemented by the Scotland Neck

schools, while its enrollment would have been 57%

. white, the schools remaining in the county would

have been 89% black. In referring to its decision of

the same day in Emporia, the Supreme Court said:

‘‘We have today held that any attempt by state or

local officials to carve out a new school district from

an existing district that is in the process of dismant-

ling a dual school system ‘must be judged according

to whether it hinders or furthers the process of

school desegregation: If the proposal would impede

the dismantling of a dual system, then a district

court, in the exercise of its remedial discretion, may

enjoin it from being carried out.’ ” (Underscoring

added). At the same time the Supreme Court empha-

sized its language in Swann that the district judges

or school authorities “should make every effort to

achieve the greatest possible degree of actual deseg-

regation.”’

AP-19

The Hinds County school board has made no

formal response to the government’s motion to dis-

solve the Clinton MSSD, having, perhaps: reluct-

antly, agreed to its creation. The Clinton city and

school officials protest that neither the Emporia nor

Scotland Neck holdings are controlling here, basic-

ally for two reasons: (1) the Clinton MSSD boundary

lines are exactly those of the Clinton Attendance

Center lines established in the HEW plan and ap-

proved by the Appellate Court, the projected attend-

ance for this zone in 1970-71, as one of seven attend-

ance zones in the county, being in the same white

to black proportion as the actual attendance while

operated as the Clinton MSSD, except for the 38

students, referred to above, 24 who formerly attend-

ed schools in the Hinds County school district and

attended the Clinton MSSD in 1970; in other words,

had not the Clinton MSSD been created, the same

majority of white students would have attended the

Clinton Attendance Center; and (2) the United

States had unconscionably waited six years to seek

dissolution of the Clinton MSSD after both HEW

and the Department of Justice were given direct

notice and knowledge of the existence of the Clinton

MSSD at the time it was created.

The Court is aware of language in Stout v. Jef-

ferson County Board of Education, 448 F.2d 403,

404 (1971), in which the Fifth Circuit Court of Ap-

peals, as a forerunner to the Emporia and Scotland

Neck decisions, said:

‘Likewise, where the formulation of splinter

o/ According to the HEW projected attendance for 1970-71,

1909 whites and 332 blacks were assigned to schools in the

Clinton Attendanced Center Zone. The actual attendance as of

November 11, 1970 in the Clinton MSSD consisted of 2,298

whites and 417 blacks, an increase percentage wise of black

attendance.

AP-20

school districts, albeit validly created under

state law, have the effect of thwarting the

implementation of an unitary school system,

the district court may not, consistent with

the teachings of Swann v. Charlotte-Meck-

lenburg, supra, recognize their creation.”

Hinds County, in comparison with other counties

in Mississippi, is the second largest county covering

877 square miles. Its boundaries are those of the

Actual Attendance - 11/19/70

Schools Grades W B T

Utica 7-12 110 361 471

Mixon 1-6 64 721 785

Terry 7-12 62 284 346

Perryman 1-6 18 423 441

Byram 1-12 568 227 795

_ Forest Hill 7-12 1060 283 1343

West Side 1-9 41 938 979

Van Winkle 1-6 211 79 290

Timberlawn 1-6 316 48 364

Oak Forest 1-6 518 0 518

Woodville 1-6 242 27 269

Sumner Hill 7-12 0 574 574

Lovett 1-6 0 662 662

Raymond 9-12 101 150 = 251

Carver 1-8 86 565 651

Edwards Att. Ctr. 1-9 0 788 788

Bolton 1-9 10 616 626

Clinton Hi. 9-12 675 112 787

Clinton Jr. Hi. 5-8 821 152 973

Northside 3-4 . 413 78 491

Clinton Park 1-2 389 75 464

AP-21

Actual Attendance - 12/19/75

Schools Grades W B T

Utica 7-12 86 483 569

Mixon 1-6 51 533 584

Terry 7-12 54 368 422

Perryman 1-6 44 340 384

Byram 1-12 798 220 1018

Forest Hill 7-12 1585 279 1864

West Side 1-9 19 655 674

Van Winkle 1-6 193 198 391

Timberlawn 1-6 398 42 440

Oak Forest 1-6 503 0 503

Woodville 1-6 414 34 448

Sumner Hill 7-12 0 652 652

Lovett 1-6 2 554 556

Raymond 9-12 112 195 307

Carver 1-8 138 426 564

Edwards Att. Ctr. 1-9 14 667 681

Bolton 1-9 0 383 383

Clinton Hi. 9-12 1080 161 1241

Clinton Jr. Hi. 7-8 673 159 832

Eastside 5-6 592 167 759

Northside 3-4 523 134 657

Clinton Park 1-2 577 176 753

county school district except for a portion on the

east side situated in the City of Jackson, leaving

792 square miles in the school district. Under the

court-ordered desegregation plan in 1970, students

were assigned to seven attendance zones, irregularly

shaped, primarily to insure that there be at least one

high school in each zone. These zones, including the

Clinton MSSD, with grade assignments and attend-

ance as of November 1970 and as of December 1975,

AP-22

POO nn eS 8

are shown below. The Utica Agricultural High

School, located in the Utica Zone, is not operated

by the Hinds County school district, but is under

a junior college board of trustees. It is attended by

black students in grades 10-12 throughout the dis-

trict, although the other zones each has a high school

servicing these two grades.

In the Byram Attendance Center Zone, with

one school serving grades 1-12, there is a white

majority attendance. In the Forest Hill Attendance

Center Zone, Oak Forest Elementary has an all white

attendance, and the remaining schools are majority

white, except for West Side Elementary and Van

Winkle Elementary which have a majority black

attendance. In the Raymond Attendance Center

Zone, all schools are majority black with one

Edwards Attendance Center, being all black. In the

Sumner Hill Attendance School Center, Bolton and

Sumner Hill are all black, with Edwards and Lovett

being predominantly black. In the Terry Attendance

‘ Center Zone, both Perryman and Terry High School

are predominantly black. In the Utica Attendance

Center Zone, Mixon Elementary and Utica High

School are majority black, and Utica Agricultural

High School is all black. In the Clinton MSSD, all

of the schools have a majority white attendance but

with a more uniform percentage of black attendance

than in any of the four zones of the Hinds County

school district with black majorities. Thus in the

seven zones, three were and are predominantly white

and four predominantly black.

These characteristics have not changed except

to the extent that the white and black attendance in

the Clinton MSSD has increased, the black attend-

ance in the Clinton MSSD has increased, the black

attendance having increased at a greater rate than

AP-23

the white. The Court accordingly finds that the

establishment of the Clinton MSSD has had little

disparate effect on the balance of the Hinds County

District, except for eliminating the majority to

minority feature of the original Court enforced plan.

The extent of this elimination in numbers of students

would be purely conjectural. Historically, the number

of such transfers in other southern Mississippi school

districts has been minimal.

Should this Court dissolve the Clinton MSSD

and return it to its former status, any new plan for

student assignment which would propose to pair

its schools with others of other zones, such as with

the Sumner Hill High School and Lovett Elementary

in the Sumner Hill Attendance Center Zone, and

with the West Side Elementary School in the Forest

Hill Attendance Center Zone, would require geo-

graphical changes in the zones and massive bussing

of 40 miles or more one way.

Both the government and the Hinds County

School Board have declined to offer a new plan in

view of the City of Jackson's recent annexation of for-

tv square miles of additional territory, 6/ now before

the U. S. Supreme Court, which includes Forest Hill

High School, Oak Forest Elementary, Timberlawn

Elementary, Van Winkle Elementary, West Side

Attendance Center, and Woodville Heights Elemen-

tary, and would affect the attendance at the Byram

Attendance Center, all in the Hinds County school

district, exclusive of the Clinton MSSD. According

to an exhibit in evidence, 4,470 students are included

6/ This annexation has been upheld by the Mississippi Supreme

Court. However, the Court is informed that the matter is either

on appeal to the United States Supreme Court and/or before

the Attorney General of the United States, by virtue of 42

USCA #1973ic).

AP-24

o te =

ee

in the proposed expansion with a racial composition

of 29% black and 70% white. It is projected that the

students remaining in the Hinds County school

district, will consist of 6,692 students, 82% black and

18% white.

The Supreme Court noted in Wright that peti-

tioners, in seeking to prevent a new district, filed

their petition promptly, as did the United States in

attacking the state statute in Scotland Neck. Neither

new district functioned as such. This Court recog-

nizes that in school cases the plea of estoppel, laches,

or waiver should not be interposed when any such

plea would have the effect of perpetuating consti-

tutional deprivations. Here, however the Clinton

MSSD has operated for six years without court

intervention. Its dissolution now would create mul-

tiple problems for the community. More importantly,

this Court finds that any new desegregation plan,

if offered by the Hinds County School District, the

United States, or amicus curiae, if the Clinton MSSD

were dissolved, would not result in any better racial

balance than now exists short of drawing newer

and larger zones with a concomitant increase in the

number of students to be bused over longer distances

than now prevail.

Accordingly, the Court concludes that in its

‘remedial discretion’’, it would be unjust to dissolve

the Clinton MSSD after its establishment for a

period of over six years in order to give objecting

parties the opportunity to offer a new assignment

plan on the assumption that such a plan might work

better than that offered by HEW and approved by

the Appellate Court; the Court, therefore, declines to

order that the Clinton MSSD be dissolved.

AP-25

An order to this effect may be submitted within

the time allowed by the local rules.

Dan M. Russell, Jr.

UNITED STATES DISTRICT JUDGE

DATE: November 12, 1976

AP-26

i ee

UNITED STATES of America,

Plaintiff-Appellant,

Vv

HINDS COUNTY SCHOOL BOARD

et al., Defendants,

Clinton Municipal Separate School

District, Defendants-Apellees.

No. 76-4436.

United States Court of Appeals,

Fifth Circuit.

Sept. 26, 1977.

United States brought action

seeking injunctive relief to dissolve

one school district and remerge it

into another school district. United

States District Court for the Southern

District of Mississippi, Dan M. Rus-

sell, Jr., J., denied relief, and United

States appealed. The Court of Ap-

peals held that in attempting to deter-

mine effect of school district's separa-

tion from another school district,

district court erred when it measured

effect by noting that boundaries

by separated school district were the

same as zone boundaries previously

drawn by Department of Health,

Education and Welfare; cause would

be remanded to permit district court

to consider whether school district,

by creating separate school district

with permanent boundaries and es-

tablishing barrier that prevented

schools from being part of the

majority-to-minority transfer program

hindered the process of school de-

segregation.

Vacated and remanded.

1. Schools and School Districts 13

In determining whether realign-

ment of school districts is discrimina-

tory, courts must evaluate the effects

of the action upon the dismantling of

the dual school systems involved.

2. Schools and Schoo! Districts 13

Process of desegregation of

schools is not a static process of lines

aud markers once set being fixed for

all time, but instead, the process is

often one of trial and error; if one set

of zones proves ineffective then

another must be drawn, and if neces-

sary, another, or some yet different

approach be tried.

3. Schools and School Districts 13

In attempting to determine effect

of school district’s separation from

another school district, district court

erred when it measured effect by

noting that boundaries adopted by

separated school district were the same

as zone boundaries previously drawn

by Department of Health, Education

and Welfare; cause would be remanded

to permit district court to consider

whether school district, by creating

separate school district with perma-

nent boundaries and establishing

barrier that prevented schools from

being part of the majority-to-minority

transfer program hindered the process

of school desegregation.

Robert E. Hauberg, U. S. Atty.,

Jackson, Miss., Walter W. Barnett,

Atty., Appellate Section, Civil Rights

Div., Dept. of Justice, Mark Gross,

Atty., Dept. of Justice, Burtis M.

Dougherty, Jr., Atty., Education

Section, Civil Rights Div., Dept. of

Justice, Washington, D. C., for plain-

tiff-appellant.

Robert C. Cannada, John M.

Putnam, Jackson, Miss., for Hinds

County School Bd.

AP-27

John H. Fox, III, Jackson, Miss.,

for Clinton Municipal Separate School

Dist. & City of Clinton.

Peter M. Stockett, Jr., Jackson,

Miss., for State Ed. Finance Comm.

Walter R. Bridgforth, Yazoo City,

Miss., Melvyn Leventhal, Fred L.

Banks, Jr., Jackson, Miss., for defen-

dants-appellees.

Appeal from the United States

District Court for the Southern Dis-

trict of Mississippi.

Before THORNBERRY, MOR-

GAN, and CLARK, Circuit Judges.

BY THE COURT:

The United States sought injunc-

tive relief to dissolve the Clinton

Municipal Separate School District

(Clinton MSSD) and remerge it into

the Hinds County School District

(Hinds County SD). This appeal comes

from an order of the district court

denying that relief. In reaching its

decision the district court did not use

the proper standards to evaluate the

effect of the independent existence of

the Clinton MSSD on the ongoing

process of dismantling the dual school

system in Hinds County. For that

reason we vacate the district court's

order and remand for further con-

sideration:

The Clinton MSSD was formed in

1970; before then it had been part of

the Hinds County SD. Within the

Hinds County SD there were several

local school districts, known as atten-

dance centers, each of which had a

board of trustees appointed by the

Hinds County School Board which de-

legated varying amounts of authority

to the local boards. Although altera-

tions had been made previously, after

1949 the Clinton Attendance Center

comprised the present area of the

Clinton MSSD, an additional area of

the Hinds County SD that today is

known as the Sumner Hill Attendance

Zone, and areas that have been incor-

porated into the City of Jackson Muni-

cipal Separate School District on the

east. Before desegregation orders

were entered, only white students at-

tended school in the City of Clinton.

White students who lived within the

area served by the Clinton Attendance

Center but outside the city were

bussed to the city schools. Black pupils

residing within the Attendance Center

area were transported to all-black

schools outside the City of Clinton.

Litigation to desegregate the

schools in the Hinds County SD began

in January 1967, with a complaint

filed by the United States against

the Hinds County School Board under

the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000a et seq. Initially the School

Board's desegregation efforts relied

upon freedom-of-choice plans. This

court, however, found those plans to be

inadequate in United States v. Hinds

County School Board, 417 F.2d 852

(5th Cir. 1969), a consolidated case

that included appeals from twenty-five

separate school desegregation cases

in Mississippi. Later that year, the

Supreme Court substituted a now-

and-at-once requirement for its pre-

vious all-deliberate-speed standard for

desegregating school systems. Alex-

ander v. Holmes County Board of

Education, 396 U.S. 19, 90 S.Ct. 29,

24 L.Ed.2d 19 (1969). Following that

decision this court directed that a

plan proposed by the United States

Department of Health, Education

1. Facts are taken from stipulations in

the record on appeal.

AP-28

ae

& Welfare be implemented no later

than December 31, 1969. United

States v. Hinds County School Board,

423 F.2d 1264 (5th Cir. 1969), cert.

denied, 396 U.S. 1032, 90 S.Ct. 612,

24 L.Ed.2d 531 (1970). This plan

divided the county into seven atten-

dance zones; students living within

each zone were to attend the school

within that zone, subject to the stan-

dard majority-to-minority transfer

proviso; students whose race was in

the majority in a school could transfer

into a school in which their race was in

the minority. One of the attendance

zones comprised the City of Clinton

plus some surrounding areas, but did

not include the former Sumner Hill

zone which contained two nearly all-

black schools.

On January 5, 1970, the local

Clinton Board of Education petitioned

the Mayor and Board of Aldermen of

the City of Clinton to establish a

school district independent from the

Hinds County SD. The Mayor and

Board of Aldermen then passed an

ordinance to create a separate district

with’ boundaries that were cotermi-

nous with those of the Clinton Atten-

dance Zone which would have been

created by the HEW plan. Next, the

state legislature passed a special act,

thinly guised as a general law, to

amend § 6411-01 of the Mississippi

Code of 1942 (now § 37-7-637, Missis-

sippi Code of 1972) to authorize the

creation of the Clinton MSSD.’ The

final step came on May 18, 1970, when

the state’s Education Finance Com-

mission approved the formation of the

Clinton MSSD.’ On July 1, 1970, the

Clinton MSSD began operation.

2. The Governor signed the law on April

3, 1970. The timing of the passage of this

The current phase of this sadly

protracted litigation began almost

five months later. On November 30,

1970, the Clinton MSSD sent the clerk

of this court a motion to sever the

Clinton MSSD from the Hinds County

SD. Contrary to the opinion of the

district court, that motion was filed

by the clerk of this court on December

2, 1970. On January 14, 1971, then-

Judge Griffin Bell wrote to counsel

for the Clinton MSSD and explained

that this court could not approve the

separation without the consent of the

other parties to the litigation. When

counsel for the Clinton MSSD at-

tempted to secure that consent, the

United States Department of Justice

declined to consent to the separation

pending the Supreme Court's decision

in other cases. With that letter from

the Department of Justice, dated

April 15, 1971, attempts to sever the

Clinton MSSD apparently ended.

The record reveals no further efforts

by the Clinton MSSD to press this

court for a decision. Thus, from its

inception the Clinton MSSD operated

independently of the Hinds County

SD without the requisite judicial

approval. See Stout v. United States

sic, Jefferson County Board of Edu-

cation], 448 F.2d 403, 404 (5th Cir.

1971).

law is important only insofar as its effect

on the process of desegregation. See p.

1192, infra. The Mississippi Constitution

forbids local and private school legisla-

tion. See Miss. Const. art. 4, § 90(p).

3. On June 15, 1970, the Commission

amended its earlier order to correct errors

in the description of the boundaries of the

district. The Hinds County School Board,

which had once refused to approve the

Clinton MSSD, did approve the new dis-

trict “insofar as this Board is authorized

to do ' on May 14, 1970.

AP-29

[1] Whatever the explanation for

the delay in seeking judicial approval,

as the district court quite properly

recognized, the delay itself cannot

determine the outcome of this case.

Instead, the courts must evaluate

“the effect of the action upon the dis-

mantling of the dual school systems

involved.”’ Wright v. Council of City

of Emporia, 407 U.S. 451, 92 S.Ct.

2196, 2203, 33 L.Ed.2d 51, 61 (1972)

(emphasis in original). Because of the

peculiar procedural status of this case,

the courts may see the actual results

of the separation rather than relying

on prediction as the Court did in

Emporia, supra, and its companion

case, United States v. Scotland Neck

City Board of Education, 407 U.S.

484, 92 S.Ct. 2214, 33 L.Ed.2d 75

(1972). Yet even here the district

court's view of the facts was clouded

by a pending annexation of part of

Hinds County by the City of Jackson.

Now we also know these results and

the Hinds County SD has lost an area

to the long-existing Jackson Munici-

pal Separate School District which

took, 4,470 students, 29% black and

71% white, from the Hinds County

SD:

4. Residents of the annexed area chal-

lenged the annexation, alleging that they

were denied equal protection because they

were not allowed to vote on the annexa-

tion. The Mississippi Supreme Curt re-

jected that challenge in Lowe v. City of

Jackson, 336 So.2d 490 (Miss.), cert.

denied, 429 U.S. 980, 97 S.Ct 493, 50

L.Ed.2d 589 (1976). Early in 1977 the dis-

trict court approved a plan of pupil as-

signment for the newly annexed area.

Singleton v. Jackson Municipal Separate

School District, Civ. Action No. 3379

(S.D.Miss., Jan. 31, 1977). No challenge

has been made to the effect of this annexa-

tion on the Hinds County SD.

{2, 3] Nevertheless, in attempt-

ing to determine the effect of Clinton

MSSD's separation, the district court

erred when it measured effect by

noting that the boundaries adopted

by the Clinton MSSD were the same

as the zone boundaries drawn by

HEW. The process of desegregation

is not a static process with lines and

markers once set being fixed for all

time. Instead the process is often one

of trial and error; if one set of zones

proves ineffective, then another must

be drawn and, if necessary, another,

or some yet different approach be

tried. The question here is whether

by creating a separate school district

whose lines were not subject to this

ongoing process, the Clinton MSSD

“hinders or furthers the process of

school desegregation.’’ Emporia,

supra, 407 U.S. at 460, 92 S.Ct. at

2202. By excising itself from the rest

of the Hinds County SD, the Clinton

MSSD instantly established a barrier

that prevented its schools from being

part of the majority-to-minority trans-

fer program. The effect of that fact

also must be considered along with

the broader impact of the permanency

of .the Clinton MSSD _ boundaries

(as apposed to the tentative nature of

the HEW boundaries).

In determining the effect of these

conditions on its overall ability to

achieve a unitary school system in

the Hinds County SD, the district

court should keep in mind the tests

approved in Emporia as they were

applied in Scotland Neck. In Emporia

the Court first noted the disparity in

the racial composition of the two

districts. But in saying that there

5. The county-wide system had a racial

composition of 34% white and 66% Negro.

AP-30

ee ee mend neue

was more to the case than the racial

disparities, the Court relied upon three

other tests to determine the permissi-

bility of the school district's separa-

tion: (1) changes in student compo-

sition, that is, whether the separation

of the school district caused a change

in the student composition of the dis-

tricts; (2) changes in educational

quality;-that is, whether the school

buildings, facilities, and other assets

taken into the splinter district are

superior to those in the surrounding

county; and (3) timing, that is,

whether the existence and operation

of the splinter district conveys to the

black students a message of their

inferiority. See Ross v. Houston

Independent School District, 559

F.2d 937 (5th Cir. 1977).

Emporia emphasizes that the

primary responsibility for evaluating

effect lies with the district court.

Therefore, we remand this case to that

court for further consideration. Unless

a determination can be made that the

separate existence of the Clinton

Emporia would have established a system

that was 48% white and 52% Negro,

leaving the remainder of the county 28%

white and 72% Negro. When Clinton

MSSD was part of the Hinds County SD

th omposition was 45% white and 55%

Negro. Clinton MSSD's departure left

the county SD 32% white and 68% Negro,

while the Clinton MSSD was 85% white

and 15% Negro. Those statistics were for

seven academic years ago. Current

estimates of the Hinds County SD (less

the area recently annexed by the City of

Jackson) show a composition of 18%

white and 82% Negro. If the Clinton

MSSD were part of Hinds County SD,

the ratio would be 43% white and 57%

Negro.

6. The district court was correct in its

ruling that the timing of the Clinton

MSSD does not adversely affect the

ongoing desegregation process in the

Hinds County SD, the Clinton MSSD

cannot continue to separate its

students, teachers, and assets from

that continuing effort. Nothing in

this opinion requires the disestablish-

ment of the Clinton MSSD as a legal

entity under Mississippi law. But, if

the district court finds that its separa-

tion acts to hinder desegregation,

the existence of the Clinton MSSD

cannot bar merger of any part or all

of the district’s pupils, faculties, and

facilities into the Hinds County SD.

If that be the conclusion of the district

court, obvious financial, contractual,

and other complications will ensue.

These must be considered and re-

solved in an orderly way. However,

neither such factors nor the difficul-

ties of resolving them can be weighed

in determining whether Clinton's

separate operation hinders the ful-

fillment of court-ordered desegrega-

tion.

VACATED and REMANDED.

MSSD's separation could not be used

to establish an impermissible motive.

Indeed, our ruling assumes that the

motives of the Clinton MSSD are free

from any taint. The question is not one of

motive but of effect.

7. The ‘‘proper role’ (see Stout v. Jeffer-

son County Bd. of Educ. 466 F.2d 1213,

1214 (5th Cir. 1972) for Clinton MSSD

in the desegregation of Hinds County

is not an all-or-nothing matter. For exam-

ple, it may be found best for it to assi-

milate Lovett and Sumner Hill into its

system, or to pair some of its schools

with these schools in preference to out-

right dissolution and assimilation by

Hinds — SD. Other viable alter-

nativee may be suggested by the parties.

The judgment as to which is best is as-

signed initially to the district court.

AP-31

Hrrited States Court of Appeals

FIFTH CIRCUIT

TEL 504-Se8.6514

EOWARDO W. WADSWORTH OFFICE OF THE CLERK 600 CAMP STREET

ccm NEW ORLEANS LA 70130

November 14, 1977

Mr. John H. Fox, III

Attorney at Law

Post Office Box 22547

Jackson, Mississippi 39205

No. 76-4436 - U.S.A. v. Hinds County School

Board, Et Al.

(Opinion Rendered - 9-26-77)

Dear Counsel:

With reference to your motion to stay issuance of the

Court's mandate filed on behalf of Clinton Municipal

Separate School District, the Court has directed that we

advise you that in accordance with the procedure set out

in Singleton v. Jackson Municipal Separate School District,

5th Circuit ) F. , the Court’s judgment as

mandate issued to the Clerk of the district court on

September 26, 1977, the date upon which the Court's opinion

was released.

Accordingly, it will be necessary that a motion to recall

and stay the mandate under Rule 41 F.R.A.P. be filed.

Also, a memorandum in support of the motion to recall and

stay mandate should be filed, setting forth good cause for

stay, and advising the Court which points are to be relied

upon on petition for certiorari.

Government counsel will be given 10 days from service of

the motion to recall and stay within which to respond.

Very truly yours, _

EDWARD W. WADSWORTH, Clerk

REW, JR:lgg Judicial Support Divisio

cc: Mr. Mark L. Gross

AP-32

ee ee oe ee

be ae em eke cea”

ee ee

EDWARD W. WADSWORTH

United States Court of Appeals

FIFTH CIRCUIT

TE 804-888-4814

OFFICE OF THE CLERK 600 CAMP STREET

i idl MEW ORLEANS. LA. 70180

October 28, 1977

TO ALL PARTIES LISTED BELOW:

NO 76-4436 - U.S.A. v. HINDS COUNTY SCHOOL BOARD,

CLINTON MUNICIPAL SEPARATE SCHOOL

DISTRICT

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.

Very truly yours,

EDVARD W. WADSWORTH, Clerk

w Lasrfarl agce

pu er

**on behalf of appellee, Clinton Municipal Separat

School District, ; ee

ec: Mr. Robert E. Hauberg

Mr. Walter W. Barnett

Mr. Mark L. Gross

Mr. Burtis M. Dougherty

Mr. Robert C. Cannada

Mr. John M. Putnam

Mr. John H. Fox, III

ar. Peter M. Stockett, Jr.

Mr. Walter R. Bridgforth

AP-33