# Petition — Clinton Municipal Separate School District v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0304%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 951 ## Text love IN Tht Supreme Court of the United States OOTOHEH TRAM, LOT? ». @€2" 980 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 ee i sn i : . oe 0 > eS ae ee eee See = Ty | AAPEREREREEEEEERER EERE EERE TE NS eos cs os wauceseeaneetebetsseee © Queationa Premented (Coc c ccc c cc c vce vnc Statement Of Case civics ccc ccvvveeveeveeae & Neasone for Granting the Welt cocoon A SETS IR Pens den a Ge 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0304%3A1. Public record. Not legal advice.