Petition — Marengo County Board of Education v. Lee
Supreme Court brief1979
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Bupreme Court, UL &
FILED
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
i aisswtine 78 - 16 73
MARENGO COUNTY BOARD OF EDUCATION,
Petitioner,
V.
ANTHONY T. LEE,
Plaintiff,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
NATIONAL EDUCATION ASSOCIATION, INC..,
Plaintiff-Intervenor,
Respondents.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
for the Fifth Circuit
H. A. LLOYD
P. 0. Drawer Z
Demopolis, Alabama 36732
Counsel for Petitioner
Of Counsel:
LLOYD, DINNING & BOGGS
P. 0. Drawer Z
Demopolis, Alabama 36732
St. Louis Law Printing Co.. Inc.. 812 Olive Street 63101 314-231-4477
——————
TABLE OF CONTENTS
Page
ET ee ar ne ear ee 1
EISELE Ng NE a a 2
Questions Presented for Review ................0.5. 2
Statutes, Federal Rules & Regulations Involved ........ 3
a rg Why G1 wie ba. Wes 45 0% 6 50.6 8 3 4
Suamemrotem G6 66 Lower Courts .. 2... cee eee 5
EE rag ne ee 6
eS we aig NW kW Gx a W866 v6 de 8 Oe 18
Appendix A—Opinion (D.C., M.D., Ala., June 12, 1970) A-1
Appendix B—Opinion (D.C., S.D., Ala., August 7, 1978) A-12
Appendix C—Notice of Appeal .................55. A-52
Appendix D—Motion for Summary Reversal .......... A-54
Appendix E—Motion to Dismiss Appeal ............ A-58
Appendix F—Opinion (C.A., Fifth Cir., February 5, 1979) A-60
Appendix G—Certificate of Service ...............45. A-67
Table of Cases Cited
Aaron v. Cooper, Eighth Circuit, 1957, 243 Fed. 2d 361 10
Booker v. State of Tennessee, Board of Education, Sixth
Ciscuit, 1957, 240 Fed. 2d 689 .................. 10
Brown v. Board of Education, 1955, 349 U.S. 294, 75
ES ae Se a 9
Brown v. Ripey, Fifth Circuit, 1956, 233 Fed.2d 796 .... 10
Calhoun v. Cook, 362 Fed. Supp. 1249 (1973) ........ 15, 16
Catlin v. United States, 1945, 324 U.S. 229; 65 S.Ct. 631
(cited in Taylor v. Board of Education of the City of New
PE 5 00a rs Ue AERO) aE oh Oe Or a 6
Clemons v. Board of Education of Hillsboro, Sixth Cir-
oh TS Dae PO BOR a so nt ac ewes s Weee Was 10
Cobbledick v. United States, 309 U.S. 323, 60 S. Ct. 540
CRE ac inva. Cks Relbed kee Ot Oi ee 6
Evans v. Buchanan, 582 Fed 2d 750 (1978) .......... 13,17
Harris v. St. John the Baptist Parish, Louisiana, 419 Fed.
2a 30%, LAER Chee Cree, FP vas ka weds ewes 16
Hightower v. West, 430 Fed. 2d 552 (Fifth Circuit, 1970) 16
Holland v. Board of Public Instruction, Fifth Circuit, 1958,
BPG PU: AR SOE epics ca ncnb aces es ehnaee «aba peea 10
Lee v. Macon County Board of Education, 429 Fed. 2d
eee, 8 Beer rea ye Ts reer 4,145
Lee v. Marengo County Board of Education, 454 Fed.
GES socie cdvaneo enh e¥ 4a wee where eh ae raeon 8,11
Love v. Dade County School Board, 447 Fed. 2d 150
> ERP EE TCU TP every Tree ey 16
Singleton v. Jackson Municipal Separate School District,
GED FU. BS GRA FIG i ke ha soe iwi evigcio’s 15
Stout v. Jefferson County Board of Education, Fifth Cir-
GD, FOr PU MG 8 biel es caves el Leases 17
Taylor v. Board of Education of the City of New Rochelle,
ro. eB fF fil eRe ee er ee 6, 8,9
e
United States v. State of Georgia, No. 12974 (N.D. Ga.) .. 16
ill
Miscellaneous Cited
Se Ne REE rc CaM RN AA Ce hw eon A ee ks 2
eT oe ae a | es re 2, 3, 5, 6, 11
Oe I koe cad tne kee dee cera 3
ee ere eee eee ee 5
N THE
l
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978
ne et
MARENGO COUNTY BOARD OF EDUCATION,
Petitioner,
v.
ANTHONY T. LEE,
Plaintiff,
UNITED STATES OF AMERICA,
Plaintiff-Intervenor,
NATIONAL EDUCATION ASSOCIATION, INC.,
Plaintiff-Intervenor,
Respondents.
PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals
for the Fifth Circuit
Petitioner, Marengo County Board of Education, prays that
a Writ of Certiorari issue to review the Judgments of the United
States Court of Appeals for the Fifth Circuit entered in the
above case on the Sth day of February, 1979.
OPINIONS BELOW
1. The opinion of the District Court for the Middle District
of Alabama (Three-Judge Panel), dated June 12, 1970, is un-
reported. A copy is attached hereto as Appendage A.
pe
2. The opinion of the District Court for the Southern Dis-
trict of Alabama, dated August 7, 1978, which is reported at
454 Fed. Supp. 918.
3. The opinion of the Court of Appeals for the Fifth Cir-
cuit, dated February 5, 1979, and reported at 588 Fed. 2d
1134,
JURISDICTION
The basis upon which the jurisdiction of this Honorable
Court is invoked is to seek review of the Judgments of the
United States Court of Appeals, Fifth Circuit, dated February
5, 1979, a copy of which is appended to this Petition and
designated Appendage F. This review is sought under the pro-
visions of 28 U.S.C. 1254(1).
QUESTIONS PRESENTED FOR REVIEW
1. Did the Court of Appeals err in denying Petitioner’s
Motion to dismiss the appeal of the United States of America
from the District Court’s Order of August 7, 1978?
2. Whether the Order of the District Court of August 7,
1978, constituted an “Order Denying Injunctive Relief” so as
to make it an appealable order under 28 U.S.C.A., Sec. 1291,
1292(a)?
3. Does the Record on Appeal sustain the Court of Ap-
peals’ Ruling reversing the Order of the District Court of Au-
gust 7, 1978?
4. Did the Court of Appeals. err in undertaking to evaluate
the matter de novo based upon facts which came into existence
subsequent to the District Court’s Order appealed from and
subsequent to the filing of the Appeal; and making the evalu-
ation of such matter the entire basis for its finding?
oe, eal
5. Did the Court of Appeals err in overruling the District
Court’s Judgment in fashioning an equitable remedy in this
cause by concluding only one month after the District Court’s
Order was implemented that the freedom of choice assignment
portion of his plan “has not worked”?
6. Is the ruling of the Court of Appeals in conflict with pre-
vious rulings within its own jurisdiction and in other jurisdic-
tions of the nation?
7. Has the Court of Appeals erred in failing to defer to the
trial court’s exercise of remedial discretion in the formulation
of a desegregation remedy?
STATUTES, FEDERAL RULES AND
REGULATIONS INVOLVED
1. 28 U.S.C.A. 1291, vesting in the various Courts of Ap-
peals jurisdiction to review all final decisions of the District
Courts.
2. 28 U.S.C.A. 1292:
“(a) The Courts of Appeals shall have jurisdiction of ap-
peals from: (1) Interlocutory Orders of the District Courts
of the United States, the United States District Court for
the District of the Canal Zone, the District Court of Guam,
and the District Court of the Virgin Islands, or of the Judges
thereof, granting, continuing, modifying, refusing or dis-
solving injunctions, or refusing to dissolve or modify injunc-
tions, except where a direct review may be had in the Su-
preme Court;”
3. 42 U.S.C. 2000(c)-6(a) (Pertinent portions of the Civil
Rights Act of 1964).
STATEMENT OF THE CASE
The suit out of which this Petition arises originated in 1963
in the state-wide litigation of Lee v. Macon County Board of
Education, Civil Action No. 604-E (M.D. Ala.) which was
heard by a three-judge panel. This Petitioner became a party
defendant in that litigation in the late 1960's.
On June 12, 1970, that Court entered its terminal order.}
(See Appendage A). The Court thereupon transferred the case
into the District Court for the Southern District of Alabama,
and the Petitioner has been under the jurisdiction of that Court
since 1970, Various orders were therzafter entered and various
proceedings were had, culminating in the order of the District
Court dated August 7, 1978 (see Appendage B). All interme-
diate proceedings prior to August 7, 1978, are more specifi-
cally detailed in the above mentioned District Court Order
attached as Appendage B.
During the course of the litigation from 1970 to the present
date, the school physical plants comprising the school system
have dwindled from 15 in number to 5. Student enrollment in
the system is 80% black and 20% white. Of the 5 schools now
remaining, 3 are all black, 1 is predominantly black and 1 is
predominantly white with a black enrollment cf some 30% to
40%.
From 1970 to the present time, the United States has acted
as Plaintiff-Intervenor in this litigation and, in virtually all in-
stances, has been the sole mover and complainer in regard to the
progress of desegregation in the system.
All Findings of Facts preliminarily detailed by the District
Court in its Order of August 7, 1978, insofar as they apply to
' The terminal order was authored by Circuit Judge Richard Rives
and Chief Judge Frank Johnson of the Middle District of Alabama.
an ae
the history of the case, in the interest of brevity, are adopted
herein by reference.?
On August 14, 1978, the United States filed its notice of
appeal from the District Court's Judgment entered August 7,
1978. (See Appendage C.)
On August 18, 1978, the United States filed its Motion for
Summary Reversal. (Appendage D) On or about September 7,
1978, Petitioner filed its Motion to Dismiss the Appeal. (Ap-
pendage E)
After oral arguments, the Court of Appeals requested Peti-
tioner to furnish attendance figures for the current school year,
which was then less than one month in progress. This request
directed that the attendance figures be broken down according
to schools and also according to elementary and high school
grades. These figures were compiled on September 22, 1978,
and are documented in Appendage F hereafter mentioned.
Thereafter, on February 5, 1979 the Court of Appeals
rendered its opinion which is attached hereto as Appendage F.
JURISDICTION AS TO LOWER COURTS
The Trial Court has jurisdiction by virtue of 42 USCA, 1983
and 2000a-6. The Court of Appeals assumed jurisdiction under
28 USCA 1291, 1292(a).
2 See Appendage B.
ARGUMENT
(Questions 1 and 2)
The Court of Appeals erred in denying Petitioner's Motion to
Dismiss the Appeal filed by the United States of America from
the Order of the District Court for the Southern District of
Alabama, dated August 7, 1978.
Finality as a condition of review is a historic characteristic
of Federal Appellate procedure. It was written into the first
Judiciary Act and has been departed from only when observance
of it would practically defeat the right to any review at all.*
The purpose and foundation of this policy is not in merely
technical conceptions of “finality”. It is one against piece-meal
litigation. The case is not to be sent up in fragments. Reasons
other than conservation of judicial energy sustain the limitation.
One is elimination of delays caused by interlocutory appeals.*
A “final decision” within 28 U.S.C. 1291, the basic statute
authorizing appeals to the Courts of Appeals has been defined as
“one which ends the litigation on the merits and leaves nothing
for the Court to do but execute the judgment”.®
The Court of Appeals in the instant case assumed this juris-
diction under the provisions of 28 U.S.C. 1292 (a), taking the
position that the District Couct denied the injunctive relief
sought by the Government as to student assignment.
% Taylor v. Board of Education of the City of New Rochelle, 288
Fed. 2d 600 (1961); citing Cobbledick v. United States, 309 U.S.
323, 60 S.Ct. 540 (1940).
* Catlin v. United States, 1945, 324 U.S. 229, 65 S.Ct. 631 (cited
in Taylor v. Board of Education of the City of New Rochelle, supra).
* Catlin v. United States, supra.
le, ieee
The United States, in its Motion for Supplemental Relief,
filed in 1977, and which was the initial basis for the present
Court Ruling, reads, in part, as follows:
“The United States . . . moves this Court for entry of
an order requiring the Defendants . . . to develop, adopt
and implement . . . a new plan of student and faculty
assignment which will effectively desegregate the public
schools operated by Marengo County Board of Education
and thereby bring the system into compliance with current
constitutional standards . ‘
The United States prevailed in the trial court, the issues being
decided in the Plaintiff's favor in that Court.
The lower court thereupon fashioned its remedy by virtue
of “judicial intervention into the affairs of the Marengo County
Board of Education”, and entered upon a “tightly monitored”
program calculated to effectively desegregate the public schools
operated by Marengo County Board of Education and to
bring the system into compliance with constitutional standards.
A reference to various aspects of the lower court’s ruling
reveals that the lower court’s approach still left the quantum
of relief to be more fully determined as the results of the moni-
toring would dictate from time to time. For instance, the
court anticipated the construction of one central facility and
required the Board to make periodic reports as to the progress
of acquiring such a facility, and further directed as follows:
“Until a central facility can be constructed, the Court
elects to take a constitutional approach to the problem
. . all students presenting themselves to the educational
processers of Marengo County shall have an equal op-
portunity to obtain an education of equal quality to that
of any other students in the system which the Board must
provide at any institution or establishment that they elect
Bans ee
to attend that the School Board can presently afford to
operate.””®
The lower court, in its opinion, also stated:
“The Court is of the opinion that freedom of choice ought
to be implemented in Marengo County so that its effec-
tiveness as a desegregation tool may be properly assessed.”*
It is quite obvious from the tenor of the lower court’s ruling
generally, as well as the specific examples set out above, that
the quantum of relief was to be flexible and continuing. For
instance, if that facet of the remedy having to do with freedom
of choice, even though such method has not been declared
unconstitutional, should prove to be ineffective under the pres-
ent circumstances of this school system, further alternatives
under the District Court’s ruling would be forthcoming. Ulti-
mately, however, the remedy provided for one central school
plant, the progress of which the lower court was also moni-
toring.
In the case of Taylor v. Board of Education of the City of
New Rochelle (cited supra), a school desegregation case, the
court had ruled that the Plaintiff's rights had been violated,
and commenced to fashion a remedy by requiring the School
Board to come forward with a further desegregation plan. At
that point, the School Board appealed the cause and the Court,
in dismissing the appeal, stated as follows:
“An order adjudging liability but leaving the quantum
of relief still to be determined has been a classic example
of non-finality and non-appealability from the time of
Chief Justice Marshall to our own.”
6 Lee v. Marengo County Board of Education, 454 Fed. Suppl.,
918.
* Lee v. Marengo County Board of Education, supra.
=
Parenthetically, it is to be noted that the United States, in its
Motion for Supplemental Relief, did not request that any
specific plan which it promulgated be adopted, but simply a
remedy for the constitutional violations it had alleged existed.
Further, the United States does not argue that the relief detailed
in the lower court’s order of August 7, 1978, is unconstitutional;
only that the United States considered its own method of relief
to be more effective. Petitioner contends that, in assessing
whether this amounts to “denial of injunctive relief’, there
is no logical distinction between the facts in Taylor, supra, —
where the remedy which the trial court there commenced to
fashion required the production of a plan by the school board,
and the instant case where the Court itself has orchestrated a
constitutional plan as a preliminary step, but subject to tight
monitoring under its own judicial intervention to assess the
permissibility of it in the course of implementation by the
school board. It cannot be denied that if, after the full quantum
of relief has been determined under the lower court’s order,
the same proves ineffective in desegregating the Marengo County
Schools further, the United States will then have ample oppor-
tunity to seek supplemental relief at that time, and i° the same
is denied, to appeal therefrom.
The United States contends, and in the instant case, the Court
of Appeals agrees, that the lower court’s ruling was an “order
denying injunctive relief sought by the Government” and ‘was,
therefore, appealable under 28 U.S.C. 1292(a). A definitive
case dealing with the above cited statute as it applies to school
desegregation cases is Taylor v. Board of Education of the City
of New Rochelle, supra, rendered in the United States Court
of Appeals for the Second Circuit. In treating the question as it
applies to desegregation cases, the Court in that case stated:
“Our review of the cases that have reached Appellate
Courts in the wake of Brown v. Board of Education, supra
and its supplement, 1955, 349 U.S. 294, 75 S. Ct. 753,
=
has revealed only one in which jurisdiction may have been
taken under such circumstances as here. In Clemons v.
Board of Education of Hillsboro, Sixth Circuit, 1956, 228
Fed. 2d 853; Brown v. Ripey, Fifth Circuit, 1956, 233
Fed. 2d 796; Booker v. State of Tennessee, Board of Edu-
cation, Sixth Circuit, 1957, 240 Fed. 2d 689, and Holland
v. Board of Public Instruction, Fifth Circuit, 1958, 258
Fed. 2d 730, the appeals were from final orders denying in-
junctive relief. In Aaron v. Cooper, Eighth Circuit, 1957,
243 Fed. 2d 361, an injunction was denied because of a
voluntary plan offered by the Little Rock School District,
which the District Court found satisfactory, but jurisdiction
was retained; since the order denied an injunction, it was,
therefore, appealable whether it was deemed final or inter-
locutory.”
Can it be said in the case at bar that the lower court has
entered an order denying injunctive relief to the United States,
when the relief sought in its Petition was “a new plan of student
and faculty assignment which will effectively desegregate the
public schools . . . and thereby bring the system into com-
pliance with current constitutional standards . . .”? While
this may possibly be interpreted as a request for a modification
of an existing injunction, mandatory in nature, nevertheless,
the lower court has not denied the injunctive relief sought by
the Government in its Petition, but has undertaken the im-
plementation of the relief sought preliminarily in a form
different from that which the Justice Department itself con-
siders more effective. The relief sought to be accomplished
was to effectively and constitutionally desegregate the public
schools, not the pairing of the public schools. On the other
hand, the Lower Court, having found pairing not to be feasible
as to certain specific schools, nevertheless granted injunctive
relief in the manner already described above, calculated to ac-
complish the relief sought; therefore, there was nothing from
which to appeal.
aoe:
The lower court has not denied the injunctive relief actu-
ally sought by the Government. Therefore, its ruling does
not come within the purview of 28 U.S.C. 1292(a); and the
appeal should have been dismissed.
(Questions 3, 4, 5 and 7)
Petitioner contends that the Record on Appeal does not sus-
tain the ruling of the Court of Appeals reversing the judg-
ments of the lower court in this cause. Rather, it has obtained
evidence, after the Appeal and after the Record was sent up,
dealing with the result of the first step in the implementation
of the very order which is appealed from, has considered and
evaluated this evidence de novo, and has used that evaluation
as the sole basis for reversal of the lower court’s ruling.
More specifically, in initiating the substantive portion of its
reversal order, the Court of Appeals stated:
“Marengo County has a small rural school system, largely
black, with approximately 80% black students and 20%
white students. Following oral argument at our direction,
the Marengo County Board submitted attendance figures
for the past three years in the school system. Those for
the current school year are included, having been compiled
one month (on September 22, 1978) after school convened
for the present school year.”*®
Thereafter, the above mentioned evidence was reproduced in
the margin of the opinion. The Court then concluded:
“The statistics graphically indicate that the presently court-
ordered freedom of choice assignment plan is not working
to achieve desegregation, and that a majority of the schools
in the system are entirely black while the others are pre-
dominantly white.”
“ Lee, et al. v. Marengo County Board of Education, 588 Fed.
2d 1134.
an 13
The Court of Appeals further concluded:
“The Court’s Order appealed from in the instant case pro-
duced no effective result, as the student enrollment figures
for the present school year furnished us by the Board amply
demonstrate. Accordingly, the Motion of the United States
for Summary Reversal is granted.”
The statistics referred to will reflect that there are five school
facilities in the system, each with student bodies ranging from
kindergarten to the Twelfth Grade. While the Court of Appeals
has evaluated these statistics to show that a majority of the
schools in the system are entirely black while the others are pre-
dominantly white, this is not reflected exactly in that manner
by the statistics. A. L. Johnson High, John Essex High and
Marengo High are indeed all black. Sweet Water High is pre-
dominantly black and Marengo County High is predominantly
white but integrated to the extent that more than 30% of its
students are black. Given the unique circumstances of this
case,® it is not unusual to expect some all-black school facilities
—-after all, the county is virtually all-black. It should suffice
to say, however, that all of the school facilities are integrated so
that no white student attends a school that is not integrated.
The District Court in the case at bar is intimately familiar
with the facts and circumstances surrounding the problems of
desegregation in the Marengo County School System, having
had this matter under his jurisdiction over a period of many
years. In addition, he is intimately familiar with the desegrega-
tion problems in the surrounding areas, inasmuch as they have
also been under his jurisdiction over a period of years. He has
personally observed the effects of various devices calculated to
remove all vestiges of segregation and discrimination from these
systems. He has observed and analyzed the results of the vari-
® The System is 80% black and 20% white; largely rural; with
the whites being accumulated in two small town concentrations.
eee | aan
ous approaches to the problem. It is, therefore, in keeping with
sound judgment and good judicial practice that the approval
of a school desegregation plan in the instant case be committed
to the exercise of his sound discretion.'° Indeed, as stated in
Evans v. Buchanan, supra.
“A school desegregation case does not differ fundamentally
from other cases involving framing of equitable remedies
to repair denial of a constitutional right . . . formulation
of a practical and effective school desegregation remedy is
an undertaking peculiarly within the province of the trial
court, and, on appeal, the reviewing court must defer to
the trial court’s exercise of remedial discretion if it has ap-
plied proper legal precepts and remained within determined
legal boundaries.”
Nevertheless, the Court in the present instance has summarily
reversed the lower court’s ruling, and this apparently not on
the basis of the Record sent up on Appeal, but on supplemental
information and evidence of facts which took place subsequent
to the Appeal and which, moreover, furnished incomplete facts
as to the results of the lower court’s ruling occurring only within
one month subsequent to the time it was initiated.
It is stated law that a Court of Appeals, as a court review-
ing a school desegregation order, is not empowered to consider
the matter de novo.!!
In the absence of a specific finding that the trial court acted
in an arbitrary or unreasonable manner in exercising his dis-
cretion in regard to fashioning a desegregation plan, Petitioner
contends that the Court of Appeals erred in substituting its own
judgment, based on a cursory enrollment report one month
10 Evans v. Buchanan, 582 Fed.2d 750 (1978).
‘1 Evans v. Buchanan, supra, at P. 760.
us Aiea
after the implementation of the lower court’s remedy, submitted
to it subsequent to oral arguments; as opposed to a remedy
fashioned by the lower court based upon years of experience
with this school system and many months of work in accumu-
lating evidence, analysing feasibilities, and formulating the
remedy.
The District Court in his Finding of Facts concluded that
the plan proposed by the United States was not a feasible alterna-
tive. While the Court of Appeals has indicated no basis for
nullifying this Finding of Fact, it has, nevertheless, ruled that
if the Marengo County Board of Education fails to file a con-
stitutionally acceptable student assignment plan within thirty
days, the plar proposed by the United States must be imple-
mented. In the light of the fact that the lower court has found
it necessary to judicially intervene and has fashioned a desegre-
gation plan as its own remedy (a course of action with which
the Court of Appeals agrees); then the summary action of the
Court of Appeals in nullifying the remedy amounts to nothing
more than a consideration of this matter de novo by the Court
of Appeals.
(Question No. 6)
While freedom of choice approaches have been declared to
be ineffective, based on the particular facts of individual cases,
such an approach has nowhere been declared unconstitutional.
It must be conceded, however, that in virtually all desegrega-
tion cases, the doctrine is that each case must be considered
on its own particular facts and no one desegregation plan will
apply to all school systems. In the instant case, however, no
case has been cited wherein freedom of choice has been deter-
mined to be ineffective involving a school system with similar
unique circumstances as those which exist in the Marengo
County System. Those unique circumstances primarily are that
the total enrollment in the System is virtually all black, being
<—
80% black and 20% white; that the whites are situated largely
in two small town concentrations; that the area is highly rural
and that there are only five school facilities in the System.
Nevertheless, cases with these unique circumstances have been
before the Fifth Circuit or within its jurisdiction. One of the
most notable of these is that portion of Singleton v. Jackson
Municipal Separate School District (419 Fed. 2d 1211) (1970),
which deals with the St. John the Baptist Parish, Louisiana
(No. 28361). A portion of the system is on the east bank of
the Mississippi River and a portion is on the west bank. The
Mississippi River is a natural barrier. In that case, Judge Ains-
worth of the Fifth Circuit Court of Appeals made the follow-
ing observation:
“As to the west bank schools, the present enrollment is
1626 Negro and 156 whites. The whites, under freedom
of choice, all attend the same school, one of five schools
on the west bank. The 156 whites are in a school with
406 Negroes. We affirm as to this part of the plan. We
do not believe it necessary to divide this small number
of whites already in a desegregated minority position
amongst the five schools.”
Another case of note with similar unique circumstances in-
sofar as the ratio is concerned is the case of Calhoun v. Cook,
362 Fed. Supp. 1249 (1973). In that case, the Court said:
“The plan incorporates the mandatory Fifth Circuit pro-
visions of majority to minority transfer (United States v.
Jefferson County Board of Education, 372 Fed. 2d 836,
Fifth Circuit, 1966) and faculty and staff desegregation.
(Singleton v. Jackson Municipal Separate School District,
419 Fed. 2d 1211 (Fifth Circuit, 1970). It also provides a
reasonable pupil assignment plan considering the small per-
centage of white children (21%) now remaining in the
system, and all white pupils are assigned to integrated
school. This preponderance of blacks is in itself a unique
poet ee
situation. Under such circumstances, it is not necessary
to distribute the remaining minority whites pro rata through-
out the entire system. Harris v. St. John the Baptist Parish,
Louisiana, 419 Fed 2d 1211, 1221 (Fifth Circuit, 1969);
Lee v. Macon County Board of Education, 429 Fed. 2d
1218 (Fifth Circuit, 1970); Hightower v. West, 430 Fed.
2d 552 (Fifth Circuit, 1970); Love v. Dade County School
Board, 447 Fed. 2d 150 Fifth Circuit, 1971) cert. den.
405 U.S. 1064, 92 S. Ct. 1493, 31 L.Ed. 2d 794; United
States v. State of Georgia, No. 12974 (N.D.Ga.) .. .”
In line with the reasoning in connection with the St. John the
Baptist Parish case, supra and the Calhoun case, supra, the lower
court in the case at bar, setting out his remedy, stated:
“It is not practical to give each school in an 80% black
system a sprinkling of whites in order to be able to say
social engineering works and each school is integrated.
You can say that the schools are desegregated, however, by
giving each student an equal opportunity to obtain an equal
education.”
The decision of the Court of Appeals in the instant case does
not reflect that any consideration was accorded the Findings
of Fact reflected in the lower court’s order which caused him
to formulate the remedy in this desegregation case. Such
factors include the unique circumstances in this system making
it virtually on all fours with the physical facts existing in the
St. John the Baptist Parish case, cited supra, and the Calhoun
case, supra. In addition, those factors included lack of feasi-
bility of pairing due to bussing difficulties, overcrowding and
other physical and economic factors. Also included in the choice
of remedies was the element of white flight, thereby losing the
progress already made in desegregation. This particular element
in the instant case was not speculative but was based on actual
experience in the surrounding areas when the United States
plan was instituted.
pay. ee
These failures on the part of the Court of Appeals are in
conflict with the Second Circuit case of Evans v. Buchanan,
cited supra, wherein that Court stated:
“Formulation of a practical and effective remedy is an
undertaking peculiarly within the province of the trial
court, and we intend to defer to the Court’s exercise of
remedial discretion if it has applied the proper legal pre-
cepts and remained within determined legal boundaries.”
While the Court of Appeals, in its opinion, made no mention
of any of the above factors and while white flight cannot
be accepted for achieving anything less than complete uprooting
of a dual public school system, nevertheless, in choosing between
various permissible plans, the Court may select the one which
is calculated to minimize white boycotts.”
In this connection, the reasoning of Judges Johnson and Rives
in the June 12, 1970 Court Order pertaining to Marengo
County should be specifically noted and evaluated (See Ap-
pendix, p. A-6, 7), when they stated therein:
“In the past eighteen months, the United States Court
of Appeals for the Fifth Circuit, under which Court’s
decisions this Court is expressly bound, has reversed district
courts in scores of cases for attempting to innovate with the
theory of gradualism such as the Marengo County school
board here suggests. Thus, we find ourselves under a com-
pulsion that requires the entry of an order in this school
desegregation case that will probably result in an all-black
student body, where nothing in the way of desegregation is
accomplished and where neither the white students nor
black students are benefited. However, the United States,
through the United States Department of Justice, insists
'2 Stout v. Jefferson County Board of Education, Fifth Circuit,
537 Fed.2d 800.
pe
upon a strict application of these legal principles to the
Marengo County school system. Faced with these clear
mandates from the appellate courts and the insistence of
the Government that they be applied, we have no alternative
except to apply them.”
Many years have passed since that prophetic observation
and considerable progress has been made in the area of de-
segregation in Marengo County. The Lower Court’s order of
August 7, 1978 seeks to preserve the desegregation presently
existing in this system and to improve upon it through his own
continuing judicial monitoring. That, also is the objective
sought in this petition.
CONCLUSION
For the reasons set forth above, it is respectfully submitted
that this Petition for Writ of Certiorari should be granted.
H. A. LLOYD
P. O. Drawer Z
Demopolis, Alabama 36732
Attorney for Petitioner, Marengo
County Board of Education
Of Counsel:
LLOYD, DINNING & BOGGS
P. O. Drawer Z
Demopolis, Alabama 36732
APPENDIX
®
aS eee
APPENDIX A
In the United States District Court for the Middle
District of Alabama, Eastern Division
Anthony T. Lee, et al.,
Plaintiffs, |
United States of America,
Plaintiff-Intervenor
and Amicus Curiae, Civil Action
National Education Association, Inc., | No. 604-E
Plaintiff-Intervenor, | Marengo County
vs. . School System
Macon County Board of Education, et
al.,
Defendaiis.
Order
(Filed June 12, 1970)
As required by the order of this Court of August 6, 1969, the
United States, through its Office of Education, filed on Decem-
ber 1, 1969, a proposed plan for the effective and complete dis-
establishment not later than the commencement of the 1970-71
school year of the dual school system based upon race operated
by the Marengo County Board of Education. As allowed by the
order of this Court of December 10, 1969, the plaintiffs and the
National Education Association, Inc., as plaintiff-intervenor,
filed their written objections to the plan as proposed by the
United States, and the Marengo County school board on Janu-
ary 24, 1970, filed an alternative plan for the desegregation of
the Marengo County dual school system. On March 3, 1970,
eae
this Court ordered the United States, through its Office of Edu-
cation, to file a further plan; this plan was filed on April 3,
1970.
An analysis of the school board’s alternative pian reflects that
the Board proposes to establish four schoo! zones for the opera-
tion of its school system, where black students outnumber white
students approximately four to one.! The Board proposes to
assign and transport the white students throughout the school
system to the Marengo County High School at Thomaston,
Alabama, and to the Sweet Water High School at Sweet Water,
Alabama; the Board proposes, further, that the student body in
each of these schools be composed of 75% white students and
25% Negro students. The Board further proposes that during
the 1972-73 school year additional Negro students be assigned
to the point that they constitute 35% of the student body in
these two schools, and that there will be an annual progressive
reduction of white students by 5% and an increase of Negro
students by 5% until these two schools are composed of 50%
white students and 50% Negro students. The Board proposes
that the remaining schools in the system, approximately nine,
continue to operate with only Negroes attending them.
The plan as filed by the United States on April 3, 1970, also
proposes to establish zones, with the requirement that the stu-
dents residing in these zones, both black and white, attend the
school that offers the appropriate grade within the zone in which
they reside. The projected enrollment, according to the plan of
the United States, for each of the schools to be operated by the
Marengo County Board of Education is set out in the appendix
attached to this order.
1 The latest figures furnished this Court reflect that there are ap-
proximately 736 white sudents and 3,050 black students enrolled in
the Marengo County school system.
— =
While the proposel of the Marengo County Board of Educa-
tion will possibly result in some of the white students remaining
in the public school system of Marengo County, it will “freeze”
a large majority of the Negro students in all-Negro schools. The
Board’s proposal when analyzed is nothing more than a plan to
assign Negro students for the 1970-71 school year to the Ma-
rengo County and Sweet Water High Schools up to the point
where Negro students will constitute 25% of the total student
enrollment in each of these schools. The argument in support of
the proposal of the Board is that when the student body in any
given school is predominantly black the white students will flee.
The law is clear that “white flight” or the threat thereof from
the public school system is not a valid consideration when
formulating a plan for a unitary school system. Hostility to racial
desegregation will not excuse a court or a school board for failing
to accomplish desegregation in the manner and to the extent
required by the Constitution. Cooper v. Aaron, 358 U.S. 1
(1958). The Supreme Court wrote most explicitly in Monroe
v. Board of Commissioners, 391 U.S. 450 (1968):
Respondent’s argument in this Court reveals its purpose.
We are frankly told in the Brief that without the transfer
option it is apprehended that white students will flee the
school system altcgether. “But it should go without saying
that the vitality of these constitutional principles cannot
be allowed to yield simply because of disagreement with
them.” Brown II, at 300.
In Anthony v. Marshall County Board of Education, 409 F.2d
1287 (1969), the United States Court of Appeals for the Fifth
Circuit reversed the lower court for basing its ruling, in part,
on the fact that the white students would flee from the public
schools where Negro pupils heavily preponderated; and, again,
the Fifth Circuit, in United States v. Indianola Municipal Sepa-
rate School District, 410 F.2d 626, wrote on this point as
foilows:
ay ee
The school board explicitly argues that the faculty de-
segregation requirements we impose today will result in
wholesale withdrawal of white students from the school
system. The board believes that this will cause the schools
to lose the public support they need to function effectively.
The principal answer to these speculations is that those
who disagree with constitutional imperatives cannot avoid
their application. Monrve v. Board of Commissioners of
City of Jackson, Tenn., et al., supra, note 3, 391 US.
450, 88 S.Ct. 1700, 20 L.Ed. 2d at 739. Our system of
a government of laws surely could not survive if it were
otherwise.
The most recent treatment of such a plan and argument as the
Marengo County Board of Education now presents to this
Court was given by the Fifth Circuit in United States v. Hinds
County School Board, 417 F.2d 852 (1969) (the Mississippi
school cases). There, the Fifth Circuit wrote:
In the same vein is the contention similarly based on
surveys and opinion testimony of educators that on stated
percentages (e.g., 20%, 30%, 70%, etc.), integration of
Negroes (either from influx of Negroes into white schools
or whites into Negro schools), there will be an exodus of
white students up to the point of almost 100% Negro
schools. This, like community response or hostility or
scholastic achievement disparities, is but a repetition of
contentions long since rejected in Cooper v. Aaron, 1958,
358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed. 2d 5; Stell v. Sa-
vannah-Chatham County Bd. of Ed., 5 Cir., 1964, 333
F.2d 55, 61; and United States v. Jefferson County Bd.
of Ed., 5 Cir., 1969, 417 F.2d 834 [June 26, 1969}.
The plan as proposed by the United States, filed April 3,
1970, meets the minimum constitutional requirements. Since
the school board’s plan does not, the plan proposed by the
United States of necessity will be ordered implemented by the
= pe
Board not later than the commencement of the 1970-71 school
year.
Each member of this Court is acutely aware of the customs
and traditions of the people in this section of our country. We
enter this order in this case with the full realization that, effec-
tive with the commencement of the 1970-71 school year, the
student body in the Marengo County school system will, in all
probability, be composed of only Negro students. However,
on numerous occasions district courts have been given explicit
mandates, both by the Supreme Court of the United States and
the several circuit courts—particularly the Fifth Circuit—as
to what will be and what will not be constitutionally acceptable
timetables and methods in the desegregation of public school
systems. Our experience in this state-wide school case teaches
that with the cooperation of the local schoo] boards, which we
have in most instances received, these constitutional principles
can be implemented without serious disruption of the school
systems’ operation and to the advantage, economically, ad-
ministratively and educationally, of all concerned. However,
in school systems such as the one operated by the Marengo
County Board of Education, the implementation of these con-
stitutional mandates will in all probability result, at least for
the time being, in an all-black attended school system. Of
course, this is not good for either race. We have searched for
a solution but have found none. The Supreme Court of the
United States in Green v. County School Board of New Kent
County, 391 U.S. 430, put district courts and boards of edu-
cation under this injunction:
The Board must be required to formulate a new plan
and, in light of other courses which appear open to the
Board, such as zoning, fashion steps which promise re-
alistically to convert promptly to a system without a
“white” school and a “Negro” school, but just schools.
[Footnote omitted.]
eS ee
~
Alexander v. Holmes County Board of Education, 396 U.S.
19 (1969), puts this Court in the position of not being able
to accept even that portion of the Board’s plan that provides
for progressive increase of Negro students in a desegregated
facility:
Against this background the Court of Appeals should
have denied all motions for additional time because con-
tinued operation of segregated schools under a standard
of allowing “all deliberate speed” for desegregation is no
longer constitutionally permissible. Under explicit hold-
ings of this Court the obligation of every school district
is to terminate dual school systems at once and to operate
now and hereafter only unitary schools. Griffin v. School
Board, 377 U.S. 218, 234 (1964); Green v. County
School Board of New Kent County, 391 U.S. 430, 438-
439, 442 (1968).
On this point, in Dowell v. Board of Education of Oklahoma
City Public Schools, 396 U.S. 269 (1969), the Supreme Court
re-emphasized the timing involved in cases such as these:
The burden on a school board is to desegregate an un-
constitutional dual system at once.
In the past eighteen months, the United States Court of Appeals
for the Fifth Circuit, under which Court’s decisions this Court
is expressly bound, has reversed district courts in scores of
cases for attempting to innovate with the theory of gradualism
such as the Marengo County school board here suggests.? Thus,
* United States v. Jefferson County Board of Education, 380 F.
2d 385 (1967); Adams v. Mathews, 403 F.2d 181 (1968); United
States v. Greenwood Municipal Separate School District, 406 F.2d
1086 (1969); Henry v. Clarksdale Municipal Separate School Dist.,
409 F.2d 682 (1969); Anthony v. Marshall County Board of Edu-
cation, 409 F.2d 1287 (1969); United States v. Indianola Municipal
Separate School District, 410 F.2d 626 (1969); Plaquemines Parish
School Board v. United States, 415 F.2d 817 (1969); United States
v. Jefferson County Board of Education, 417 F.2d 834 (1969);
United States v. Choctaw County Board of Education, 417 F.2d 838
a a ont
we find ourselves under a compulsion that requires the entry
of an order in this school desegregation case that will probably
result in an all-black student body, where nothing in the way
of desegregation is accomplished and where neither the white
students nor black students are benefited. However, the United
States, through the United States Department of Justice, insists
upon a strict application of these legal principles to the Mar-
engo County school system. Faced with these clear mandates
from the appellate courts and the insistence of the Government
that they be applied, we have no alternative except to apply
them.
Accordingly, it is the ORDER, JUDGMENT and DECREE
of this Court that the plan filed by the United States, through
its Office of Education, on April 3, 1970, as the same relates
to the Marengo County school system, be and the same is
hereby approved as to Sections I, I, II, IV, V and VII. It
is further ORDERED that the Marengo County Board of Ed-
ucation, the individual members thereof and its superintendent,
implement said plan of desegregation as hereinafter ordered
supplemented, not later than the commencement of the school
year 1970-71.
It is further ORDERED that said plan be supplemented as
follows:
(1969); United States v. Board of Education of Baldwin County,
417 F.2d 848 (1969); United States v. Hinds County School Board,
417 F.2d 852 (1969); Singleton v. Jackson Municipal Separate
School District, 419 F.2d 1211 (1969); Hilson v. Ouzts, No. 28,491,
January 6, 1970; United States v. Tunica County School District,
No. 28,912, January 6, 1970; Bivins v. Bibb County Board of Edu-
cation & Thomie v. Houston County Board of Education, No. 29,-
121, February 5, 1970; Ellis v. Board of Public Instruction of Or-
ange County, Fla., No. 29,124, February 17, 1970; United States v.
Board of Education of Baldwin County, Ga., No. 28,880, March 9,
1970.
—s
1. Desegregation of Faculty and Other Staff
[Following paragraph numbered 3 in Section III, en-
titled “Faculty Desegregation”)
4. In the event that the system, in connection with its
conversion to a unitary system, plans to dismiss or de-
mote personnel, as those terms are used in the preceding
numbered paragraph, a report containing the following
information shall be filed with the Court and served upon
the parties by July 15, 1970:
a. the system’s “nonracial objective criteria” used
in selecting the staff member(s) dismissed or demoted;
b. the name, address, race, type of certificate held,
degree or degrees held, total teaching experience and
experience in the system and position during the
1969-70 school year of each person to be dismissed,
or demoted, as defined in the preceding numbered
paragraph; and in the case of a demotion, the per-
son’s new position during the 1970-71 school year
and his salaries for 1969-70 and 1970-71;
c. the basis for the dismissal or demotion of each
person, including the procedure employed in apply-
ing the system’s “nonracial objective criteria”;
d. whether or not the person to be dismissed or
demoted was offered any other staff vacancy; and,
if so, the outcome; and, if not, the reason.
2. Majority to Minority Transfer Policy
The school system shall permit a student attending a school
in which his race is in the majority to choose to attend another
school, where space is available and where his race is in the
minority.
ayy see
3. Services, Facilities, Activities and Programs
No student will be segregated or discriminated against on
account of race or color in any service, facility, activity or
program (including transportation, athletics, or other extra-
curricular activity) that may be conducted or sponsored by or
affiliated with the school in which he is enrolled. A student
attending school for the first time on a desegregated basis will
not be subject to any disqualification or waiting period for
participation in activities and programs, including athletics,
which might otherwise apply because he is a transfer or newly
assigned student except that such transferees shall be subject
to longstanding, non-racially based rules of city, county or
state athletic associations dealing with the cligibility of transfer
students for athletic contests. All school use or school-spon-
sored use of athletic fields, meeting rooms, and all other school-
related services, facilities, activities and programs such as com-
mencement exercises and parent-teacher meetings which are
open to persons other than enrolled students, will be open to
all persons without regard to race or color. All special edu-
cational programs conducted by the school system will be
conducted without regard to race or color.
It is further ORDERED that the Marengo County Board
of Education file with this Court, in writing, on or before
July 1, 1970, and furnish copies to counsel for the plaintiffs
and the plaintiff-intervenors, the United States and the National
Education Association, Inc., a projection of the enrollment in
- each of the schools to be operated by the Marengo County
school system for the 1970-71 school year, and the racial com-
position of the student body and the faculty and staff members
in each of said schools. It is further ORDERED that the Mar-
engo County Board of Education file with this Court on or
before September 30, 1970, and furnish copies to counsel for
the plaintiffs and the plaintiff-intervenors, a written report on
the actual enrollment in each of the schools operated by the
— A-10 —
Marengo County school system, and the racial composition of
the student body and the faculty and staff members in each
of said schools.
Done, this the 12th day of June, 1970.
/s/ (illegible)
United States Circuit Judge
/s/ H. H. GROOMS
United States District Judge
/s/ (Illegible)
United States District Judge
Attest: A True Copy.
Certified to June 12, 1970.
Clerk, U. S. District Court,
Middle District of Alabama.
By SARA P. BUSH
Deputy Clerk
Appendix
MARENGO COUNTY SCHOOL SYSTEM
PROJECTED ENROLLMENT 1970-71 SCHOOL YEAR
Student Enrollment
Name of School Grades White Negro _ Total
ZONE I:
Marengo High 8-12 219 402 621
Sweet Water 4-7 179 395 574
Coxheath 1-3 104 303 407
Totals 502 1100 1602
NOTE: Putnam and Myrtlewood may be used for other edu-
cational purposes, such as a materials center, special education,
— A-11 —
adult education, etc. or other purposes which the school district
may choose.
ZONE II:
Marengo County 10-12 65 248 313
Marengo Co. Training 1-9 169 706 825
Faunsdale 1-6 . 121 121
Totals 234 1075 1309
*NOTE: Zone to be drawn by local school district on a non-
discriminatory basis. The attendance map for the Marengo
County High reflects a number of white students residing near
Faunsdale Attendance Center.
ZONE III:
John Essex and
Jefferson Complex 1-12 0 736 736
Palmetto 1-6 ° 139 139
Totals a 875 875
*NOTE: Zone to be drawn by local school district on a non-
discriminatory basis. The attendance maps supplied by the school
district do not show any white students residing in this area.
— A-12 —
APPENDIX B
In the United States District Court for the
Southern District of Alabama
Northern Division
Anthony T. Lee, et al., )
Plaintiffs,
United States of America,
Plaintiff-Intervenor,
National Education Assoc., L
Plaintiff-Intervenor,
Marengo County Board of Education,
et al.,
Civil Action
No. 5945-70-H
Defendants.
JUDGMENT
This matter came on for trial before the Court, Honorable
W. B. Hand, District Judge, presiding, and the issues having
been duly tried, in accordance with the Findings of Fact and
Conclusions of Law, and Remedy entered this day, it is
ORDERED, ADJUDGED and DECREED that the plan of
desegregation for Marengo County Schools, set out supra in
the Remedy provisions be implemented immediately. It is fur-
ther ORDERED that the defendant Board report by letter to
the Court no later than August 18, 1978 its progress on this
matter, and that the parties appear before the Court in Selma,
Alabama on August 25, 1978, at 9:00 a.m. for further con-
sideration of this matter. All costs of this action are taxed against
the defendants.
The Court expressly retains jurisdiction of this cause to enter
all necessary and further orders to effectuate or monitor the
Remedy mandated by today’s judgment.
— A-13 —
DONE this 7th day of August, 1978.
/s/ W. B. HAND
United States District Judge
U. S. District Court
Sou. Dist. Ala.
Filed and Entered This the
7th Day of August, 1978
Minute Entry No. 47,013
WILLIAM J. O’CONNOR, Clerk
By: /s/ G. WALTON
Deputy Clerk
In the United States District Court for the
Southern District of Alabama
Northern Division
Anthony T. Lee, et al., >
Plaintiffs,
United States of America,
Plaintiff-Intervenor,
Nati ‘nal Education Assoc.,
Plaintiff-Intervenor,
Ma :ngo County. Board of Education,
e. al.,
Civil Action
No. 5945-70-H
Defendants. }
This matter is presently submitted for the Court’s consider-
ation of the motion for supplemental relief filed on April 4,
1977 by the intervenor United States of America. The Court
heard testimony and received various articles of documentary
evidence at the hearing in Selma, Alabama, on May 8, 1978.
The Court having considered such testimony and evidence, the
<< ifirldine
post-trial memoranda of law filed by counsel for all parties,
and the depositions on file with the Court, together with the
applicable law, finds as follows:
FINDINGS OF FACT
1. Marengo County Board of Education [hereinafter Board]
was an original party defendant in the state-wide litigation of
Lee v. Macon County Board of Education, Civil Action No.
604-E (M.D. Ala.) (three judge panel) instituted in the last
1960's. At the time this lawsuit was filed the Board operated
a dual school system perpetuating segregation of the races
by providing completely separate educational facilities for white
students and black students. _
2. A decree entered by the three judge panel on March 22,
1967 permanently enjoined state officials from discriminating
on the basis of race in the operation and conduct of the public
schools in Alabama.’ In response to this, the Board adopted a
freedom of choice program by which students were allowed to
elect the school that they would attend (Plan of April 6, 1967).
On August 28, 1968 a majority of the three judge panel’ en-
tered a decree denying the plaintiffs’ motion for abandonment
of the freedom of choice policy, ordering the acceleration of
faculty desegregation, and ordering the closing of certain Negro
1 The defendants were required by the decree to “take affirmative
action to disestablish all state enforced or encouraged public school
segregation and to eliminate the effects of past state enforced or en-
couraged racial discrimination in their activities and their operation
of the public school systems throughout the State.” (Decree of March
22, 1967, p.2). Marengo County was among the systems required
by the decree to adopt a desegregation plan for the 1967-68 school
year (id., at p. 7), and the three judge panel’s proposal (id., Exhibit
oe conceived the freedom of choice plan later instituted in Marengo
ounty.
2 Circuit Judge Richard Rives and District Judge Frank Johnson
authored this decree.
— A-15 —
schools. A later order of the panel found that the Board was
in substantial compliance with this order (Order of December
16, 1968).
On August 6, 1969 the panel ordered the United States to
file a plan whereby the dual system then existing in Marengo
County might be effectively and completely disestablished. The
plan was filed on December 1, 1969 and the Board was or-
dered to show cause why such plan ought not be implemented.
On June 12, 1970 the Court entered its terminal order adopt-
ing the desegregation plan under which the Board was to op-
erate® and transferred the case to this Court.
3. The desegregation plan accepted by the three judge panel
called for the division of Marengo County into three separate
school zones:
(a) Zone 1: This zone comprises the southwest area of Ma-
rengo County. It is boarded by Choctaw and Clarke Counties
to the West and South, and by the other two zones to the
North and East. The feeder schools of Sweetwater, Coxheath,
Putnam and Myrtlewood were in this zone. Coxheath was to
encompass grades 1 to 3, Sweetwater grades 4 to 7, and Put-
nam and Myrtlewood were to be used for other educational
purposes. High school students (8-12) were to attend Marengo
High School.
(b) Zone 2: This zone comprises the eastern area of Marengo
County. It is bordered by Wilcox and Perry Counties to the
East, and by Hale County to the North. The western boundary
bordered on zones 1 and 2. This zone included the feeder
* The plan adopted by the panel was, for the most part, that of
the United States Office of Education, but the panel added provi-
sions concerning faculty assignment, majority to minority transfers,
and other matters.
+ Zone 1’s eastern boundary touches briefly on the Wilcox County
line.
— A-16 —
schools of Marengo County Training (1-9) and Faunsdale (1-6),
with high school students attending Marengo County High
School (10-12).
(c) Zone 3: This zone comprises the northwestern area of
Marengo County. It is bordered by zones 1 and 2 to the
South and East, by Choctaw and Sumter Counties to the West,
and by Greene and Hale Counties to the North. Jefferson and
Palmetto were the feeder schools for this zone, with John Essex
High School as the high school facility.
Beyond the student assignment plan, the desegregation plan
touched on other areas:
(a) Faculty assignment;®
(b) Transportation—‘“bus routes and the assignment of stu-
dents to buses will be designed to insure the transportation of
all eligible pupils on a non-segregated and otherwise non-dis-
criminatory basis.”
(c) School construction and site selection—all construction
or selection to be “done in a manner which will prevent the
recurrence of the dual school structure once this desegregation
plan is implemented.”
(d) Majority to minority transfer policy—such transfers re-
quired to be allowed; and
(e) Attendance outside the system of residence—permissible
where such transfers are allowed on a non-discriminatory basis,
unless the cumulative effect of such transfers will either reduce
desegregation in either district or reinforce the dual school
system.
4. On August 5, 1970, this Court modified the foregoing
plan in the following respects:
° The panel required, for the most part, compliance with the fac-
ulty and staff provisions set out in Singleton v. Jackson Municipal
Separate School District, 419 F.2d 1211 (Sth Cir. 1970).
— 1 ee
(a) Student Assignment: In Zone 1, Marengo High School
and the Sweetwater-Coxheath complex were both to house
grades 1-12;° in Zone 2, Marengo County High and Marengo
County Training (Amelia Johnson High School) were to house
grades 1-12, while Faunsdale housed grades 1-6;‘ in Zone 3,
the desegregation plan was not sought to be modified.
(b) Faculty Desegregation: Employment, reassignment, and
transfers were to be done on a non-discriminatory basis on
requirements and qualifications not related to creed or race.
These modifications were rejected by the Fifth Circuit on
June 15, 1971, when it vacated and remanded the case to this
Court for implementation of a constitutional plan of student
assignment and for conformity of faculty assignment to the
mandate of Singleton v. Jackson Municipal Separate School
District, 419 F.2d 1211, 1219 (Sth Cir. 1969).
5. On June 17, 1971 the Board was ordered by this Court
to comply with the mandate of the Fifth Circuit by adopting
a desegregation plan compatible with the rules set out in Swann
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1,
91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and Singleton, supra,
and the Board was required to file semiannual reports to the
Court similar to those required in United States v. Hinds County
School Board, 433 F.2d 611, 618-19 (Sth Cir. 1970). This
prompted the amended plan by the Board by which students
would be exposed to one or two desegregated classes per day,
but, for the most part the schools themselves would remain
6 In this zone, the Putnam School was to be closed and consoli-
dated with the Sweetwater-Coxheath complex. The Myrtlewood
School was to be closed and its students were to be «ent to the Lin-
den City School System. Some interchanging was to occur on the
Sweetwater and Coxheath campuses, since most subjects were offered
only at one or the other.
* Pupils from the two high schools were to interchange campuses
for required subjects and extracurricular activities that were offered
at only one campus.
— A-18 —
racially segregated.* The District Court accepted this plan on
August 30, 1971, but the Fifth Circuit rejected the plan, Lee
v. Macon County Board of Education, 465 F.2d 369 (Sth
Cir. 1972), ordering that the previously proposed HEW plan
be implemented unless the Board either produced a more effec-
tive plan or demonstrated the unworkability of the HEW plan.
Thereafter, by an order dated September 14, 1972, this Court
directed the Board to implement the desegregation plan pro-
posed by the HEW office of education for Marengo County
schools.
6. On November 16, 1972 the Board filed a new proposed
desegregation plan that provided by the acceptance of black
students in the two predominately white facilities (Sweetwater
and Marengo County High) up to the maximum capacity of
such facilities. The plan would alter Sweetwater from 95%
to 73% white and Marengo County High from 95% to 77%
white. After a hearing and on stipulation by the parties, this
Court entered an order on July 16, 1973 adopting the plan under
which the Board now operates.
This plan retained the zones drawn by HEW. In Zone 1,
Marengo County High School was to continue to serve grades
1-12, as was Sweetwater High School. In 1973-74 students in
grades 1-6 were to be assigned in such a manner that Sweet-
water was 35% black. In 1974-75 grades 1-6 at Sweetwater
and Coxheath were to be paired, with three grades at each
school. In grades 10-12 there was to be no duplication of
required courses at the two campuses, but rather the required
courses were to be equitably allocated between thie two schools.
There was also to be no duplication of courses in grades 7-9
between Coxheath and Sweetwater. In Zone 2, the same man-
S The Board proposed in Zone 1 to convene all students in all
grades at one school for one required class, then to return them tc
their respective schools. The same proposal was advanced for stu-
dents in Zone 2.
— A-19 —
date with respect to duplication of courses and equitable allo-
cation of courses applied to grades 9-12 and 7-8. In 1973-74
students in grades 1-6 were to be assigned in such a manner
that Marengo County High School was 35% black in those
grades. Grades 1-6 in Marengo County High School and
Marengo County Training (Amelia Johnson High School) were
tentatively to be paired for the 1974-75 school year. No altera-
tions were made in the HEW plan for Zone 3. The Court made
no changes in the HEW plan with respect to faculty assign-
ment, majority to minority transfer, transportation, school con-
struction and site selection, or attendance outside the zone
of residence, but the Court did require the filing of semi-annual
reports similar to those required by Hinds County, supra.
The student assignment portion of the plan was amended by
a consent order on September 6, 1974 to provide that all
courses in grades 7-9 (other than vocational subjects) at
Sweetwater and Coxheath were to be taught at the Coxheath
campus, with all faculties similarly transferred, that the com-
bined students of Marengo and Sweetwater High Schooi be
broken down into integrated sections for the teaching of re-
quired high school courses,® that grades 1-6 at Coxheath be
closed with students therein to attend Sweetwater, that students
from the Marengo High area attending grades 1-6 at Sweetwater
have the option of attending 1-6 at Marengo, that all courses
in grades 7-8 and all required and vocational courses in grades
9-12 at Marengo County High and Marengo County Training
(Amelia Johnson High School) were to be allocated so that
entire grades would be bussed at one time with the combined
studenis of both schools to be broken down into integrated
sections, and that Faunsdale and Palmetto Elementary Schools
be closed with the students therein assigned to other schools
within the zone or in the Linden City School System. The
® Such a plan required the bussing of entire grades from one
school to the other, but the effect was to eliminate any course dupli-
cation in required or vocational courses.
— A-20 —
Marengo County schools have been operated and maintained
under the terms of this amended plan since 1974.
7. On February 10, 1977, this Court determined that the
Marengo County School System had been desegregated and
unitary in nature, if not since the 1970 terminal order, then at
least since July 16, 1973. The United States’ objections to
this determination were overruled as coming too late, and the
decision was not appealed. |
8. On April 4, 1977, the government filed the motion for
supplemental relief that is presently before the Court. In the
motion, the government requests that the Court order the
defendant Board to develop, adopt, and implement a new
plan of student and faculty assignment to effectively desegregate
the public schools operated by the Marengo County Board of
Education in order that they might be brought into compliance
with the constitutional standards set out in Swann, supra, and
Cisneros v. Corpus Christi Independent School District, 467
F.2d 142 (Sth Cir. 1972). As a basis for the relief requested,
the government makes the following allegations:
(a) The Board operates overlapping transportation routes
for schools of like grade structure, thereby maintaining
the racial identities of the affected schools;
(b) The Board operates overlapping transportation routes
for both the Marengo County and the Linden City School
Systems, thereby aiding in the maintenance of the dual
system in both districts;
(c) The Board operates segregated classrooms based
on race;
(d) The Board has failed or refused to comply with the
course-sharing provisions of the 1973 and 1974 orders
of this Court with respect to classes at Sweetwater and
Marengo High Schools and at Marengo County High
ae *, | eo
School and Marengo County Training School (Amelia
Johnson High School);
(e) The Board assigns its faculty to schools so as to
reflect the race of students in attendance at each school;
and
(f) Educationally sound, administratively feasible, and
constitutionally proper alternatives are available to effec-
tuate the desegregation of Marengo County schools.
For purposes of clarity, continuity, and convenience, the Court
has elected to enter separate findings with respect to each
allegation made by the government.
A. Transportation
9. The Marengo County Board of Education maintains and
operates transportation routes both for its own system and for
the Linden City School System. See Lee v. Linden City School
System, Civil Action No. 5945-70-H (S.D. Ala., July 13, 1978).
Responsibility for implementation of the routes is vested
jointly in Marengo County Superintendent Fred Ramsey and
Linden City Superintendent Paul Whitcomb.
10. The government’s first allegation with respect to the
Board’s transportation policies is that the Board has operated
“overlapping transportation routes for schools of like grade
structure, which has the effect of maintaining the racial identi-
ties of the affected schools.” (Motion for Supplemental Relief,
April 4, 1977).
11. On the question of overlapping routes, the government
relies almost exclusively upon transportation maps furnished by
the defendants to the government that depict the routes followed
in the various zones (intervenor’s Exhibits 20-24).
Intervenor’s Exhibits 20 and 23 consist of two maps depict-
ing the transportation routes utilized with respect to Marengo
— A-22 —
High School and Sweetwater High School, respectively. Ex-
hibit 20, relating to routes going to Marengo High, shows that
most routes are in the southwest corner of the county. How-
ever, bus number 126 originates in the southeast corner of the
county and, after picking up several students in that area, pro-
ceeds directly past Sweetwater High and picks up students in
that area on the way to Marengo County High. Exhibit 23,
relating to routes going to Sweetwater High, shows that such
routes encompass the entire southern area of Marengo County.
The Sweetwater buses travel most of the same roads used by
the Marengo buses and stop in many of the same areas. There
are Sweetwater buses that drive directly past Marengo High
School. Indeed, many students living within one mile of
Marengo High are transported to Sweetwater High, and two
Sweetwater routes actually originate in Dixon’s Mill, where
Marengo High is situated.
Intervenor’s Exhibits 21 and 24 reflect the routes employed
for the transportation of students to the Zone 2 schools. Ex-
hibit 21 reflects the routes going to Marengo County High
in Thomaston. Initially, it is clear that the Marengo County
High routes overlap with the Marengo High routes in the areas
of Magnolia, Hampdon and Moores Valley in the southwest
corner of Marengo County. Such students are clearly within
Zone 2 by virtue of assignment zone lines previously drawn by
this Court, so the Marengo High buses are clearly transporting
Zone 2 students to Zone 1 schools. At the other end of the
county Exhibit 21 reveals that students from the John Essex
zone (Zone 3) are being transported to Marengo County High.
This is evidenced by the fact that bus number 139 picks up
students in the areas of Old Spring Hill, Alfalfa, and the out-
skirts of Demopolis, all of which are in the John Essex zone.
Such transportation, since it is composed mostly of white stu-
dents, is in violation of prior orders of this Court. Additionally,
such routes overlap with routes utilized in Zone 3. Finally,
testimony of one bus driver who transports to Marengo County
— A-23 —
High revealed that all 64 students on her bus are white (deposi-
tion of Ruth Allen, intervenor’s Exhibit 5 at page 11), an un-
likely result in a system that is 80% black. Exhibit 24 reflects
the routes utilized to transport students to and from Amelia
Johnson High School in Thomaston. The only impropriety
revealed by this Exhibit is the fact that 31 students from the
Shiloh area, a Zone 1 area that is served by both Marengo
and Sweetwater routes, are being transported to Johnson High
School in Zone 2. This is in violation of the terms of the
prior court orders in that it fails to respect the assignment zone
lines previously drawn and overlaps with other routes. Beyond
this, the Court finds no impropriety revealed by the Johnson
routes.
Exhibit 22 reveals the routes utilized in Zone 3. All of these
routes are within Zone 3 and are proper, the only overlap
being the Marengo County High bus, mentioned above, that
has been transporting from outside of Zone 2.
12. From the evidence adduced by intervenor’s Exhibits
20-24, it is clear that the defendant Board is in violation of
prior court orders in some respects of its transportation policies.
The transportation of students residing in one zone to a school
in another zone must cease. The evidence is clear that such
students could just as easily be transported to a school in their
attendance zone and that the utilization of such out of zone
routes imposes additional economic burdens on the Board that
need not exist. An additional consideration, in view of the
deposition of Ruth Allen, supra, is segregation of the races
aboard the buses. There is no direct evidence that this resulted
from Board policy, but the implication drawn from the figures
is a strong one. Further, the Board put on no evidence to ex-
plain this situation.
13. The second contention of the government with respect
to Board transportation policies is that the Marengo County
—
routes overlap with those of the Linden City School System
to the extent that maintenance of the dual system in both dis-
tricts is aided.
Although intervenor’s Exhibit 25 indicates that some overlapping
between such routes is occurring in the town of Jefferson, the
government has elected to abandon this contention in view of its
interest in the remedy available in the case of Lee v. Linden City
School System, Civil Action No. 5945-70-H (S.D. Ala.). See
intervenor’s post-trial brief, at page 6 n. 5 (May 30, 1978). In
view of this, the Court enters no finding with respect to the
alleged overlapping between Zone 3 routes and Linden City
routes.
B. Segregation of Classrooms by Race
14. Although the government raised this issue in its April
4, 1977 motion for supplemental relief, no evidence was put on
concerning such segregated classrooms and the contention was
not advanced by either the pre-trial or the post-trial briefs of
the government. The complete lack of evidence requires a find-
ing by the Court that the government has also abandoned this
contention.
C. Course-Sharing
15. As mentioned above, the consent order of September 6,
1974 required the Board to pair required coursts between Ma-
rengo High School and Sweetwater High School in Zone 1 and
between Marengo County High School and Amelia Love John-
son High School in Zone 2, and to pair all courses in grades
7 and 8 in Marengo County High and Johnson in Zone 2.
16. In response to this consent order, the Board has adopted
programs that can be characterized only as salutary at best. The
— A-25 —
programs in effect in the two zones require separate considera-
tion:
(a) Zone 1—The precise language of the 1974 consent order
with respect to this zone is, in pertinent part, as follows:
All provisions of the July 16, 1973 order governing de-
segregation in grades 7-12 will remain in full force and
effect under this Order.!° However, to facilitate the elim-
ination of course duplication in grades 7-9 between Cox-
heath Junior High and Sweetwater beginning in 1974-75,
all classes for grades 7-9 at Sweetwater and Coxheath, with
the exception of vocational subjects will be taught on the
Coxheath campus. Faculty presently assigned to grades 7-9
at Sweetwater will be assigned to Coxheath.
To facilitate the elimination of course duplication in
required and vocational courses in grades 10-12 between
Sweetwater High and Marengo High, beginning in 1974-
75 entire grades will be bussed one time and the com-
bined students of both schools in that grade will be broken
down into integrated sections of not more than 35 students
to each section.
The program actually initiated by the Board in this zone
varied significantly from the terms of this court order. Initially,
it is clear that the Board employed course-sharing on a voluntary
basis, with each student having the option whether he or she
wished to participate (deposition of Marcus Walters, intervenor’s
Exhibit 16, at p. 20; deposition of J. J. Evans, intervenor’s Ex-
10 The 1973 order set up the tri-zone plan and required, inter
alia, that there be no duplication of required courses or of voca-
tional home economics or agribusiness in grades 10-12 at Marengo
and Sweetwater; that the required courses of English, Social Studies,
and Physical Education be equitably allocated between the two
schools; and that courses in grades 7-9 at Sweetwater and Coxheath
be equitably allocated to the extent that there be no course duplica-
tion in these grades. Lee v. Marengo County Board of Education,
Civil Action No. 5945-70-H (S.D. Ala., July 16, i973).
— A-26 —
hibit 4, at p. 24). The understanding of one principal charged
with implementation of the program’! was that the purpose of
the bussing was to achieve a 50% /50% racial balance in certain
classes. (Walters’ deposition, intervenor’s Exhibit 16, at p. 16).
The program adopted in Zone 1 called for the bussing of
classes of Marengo High students to the Sweetwater High campus
for certain required courses, and classes of Sweetwater High
students to the Marengo High campus for other required
courses.!2_ Once the composite classes were situated, team teach-
ing was employed—the composite class was taught, alternatively,
by a Sweetwater teacher and a Marengo teacher (Deposition of
Woodrow Campbell, intervenor’s Exhibit 1, at pp. 9-10; Evans’
Deposition, intervenor’s Exhibit 4, at pp. 14-15; Walters’ Depo-
sition, intervenor’s Exhibit 16, at p. 29). The team teachers co-
operate in the formation of course outline, teaching, and assign-
ments, but each teacher is responsible for the grading of the
students from his or her own school (Deposition of Willa John-
son, intervenor’s Exhibit 2, at p. 9; Deposition of Emma Wheath-
ersby, intervenor’s Exhibit 3, at p. 7; Deposition of Ella John-
son, intervenor’s Exhibit 12, at p. 12; Deposition of William
Michael Green, intervenor’s Exhibit 15, at p. 11).
11 Although the Superintendent of the Board has conceded that
the primary responsibility for the course-sharing program is his
(Deposition of Fred Ramsey, intervenor’s Exhibit 18, at p. 15), the
evidence is clear that day-to-day oversight was vested in the Princi-
pals at Marengo and Sweetwater High Schools.
12 Exhibit 1 to the deposition of J. J. Evans, intervenor’s Exhibit
4, reveals the following breakdown of shared courses at Marengo
and Sweetwater High Schools:
Marengo High School Sweetwater High Schooi
1 1th Grade Social Studies 10th Grade English
12th Grade Social Studies 11th Grade English
10th Grade Girls’ Phys. Ed. 12th Grade English
12th Grade Girls’ Phys. Ed. 1 1th Grade Girls’ Phys. Ed.
10th Grade Boys’ Phys. Ed. 11th Grade Boys’ Phys. Ed.
12th Grade Boys’ Phys. Ed.
aay. pe
The salutariness of this program, if not evident in the segre-
gated nature of the program set out above, is made clear in
the manner in which the course-sharing was made available.
While the 1974 consent order was absolute, not leaving room
for exceptions, it is clear that course-sharing program was con-
ducted on an irregular, rather than daily, basis (Campbell depo-
sition, intervenor’s Exhibit 1, at p. 18; W. Johnson deposition,
intervenor’s Exhibit 2, at p. 15; Wheathersby deposition, inter-
venor’s Exhibit 3, at p. 10; Green deposition, intervenor’s depo-
sition, Exhibit 15, at p. 8). Indeed, one team teaching deponent
could not even recall the last time prior to the deposition that
wer Class had participated in the course-sharing (Wheathersby
deposition, intervenor’s Exhibit 3, at p. 11). The decision with
respect to whether courses will be shared on a particular day lies
with the principals (Campbell deposition, intervenor’s Exhibit 1,
at 1. 22; E. Johnson deposition, intervenor’s Exhibit 12, at p.
13; deposition of Christopher Jenkins, intervenor’s Exhibit 13,
at p. 10; deposition of Eugene Grace, intervenor’s Exhibit 14,
at p. 10; Walters’ deposition, intervenor’s Exhibit 16, at p.
10; deposition of Cecil Kimbrough, intervenor’s Exhibit 17,
at p. 17), and such sharing has often been cancelled on the basis
of inclement weather or school activities (Walters’ deposition,
intervenor’s Exhibit 16, at p. 10). The evidence does not reveal
why inclement weather might preclude bussing between the
schools when it did not prevent the original transportation of the
students to the school in the morning.
The Court also notes, as a matter of course, that there re-
mained during the 1977-78 school year duplication of courses
with respect to required courses at Marengo and Sweetwater
High School (J. J. Evans’ deposition, intervenor’s Exhibit 4,
at pp. 23-24; E. Johnson deposition, intervenor’s Exhibit 12, at
pp. 7-8; Walters’ deposition, intervenor’s Exhibit 16, at p. 34).
(b) Zone 2—The precise language of the 1974 consent order
with respect to this zone is, in pertinent part, as follows:
— A-28 —
All provisions of the July 16, 1973 order governing de-
segregation in grades 7-12 will continue in full force and
effect.1* Beginning in the 1974-75 school year, in the same
manner as described above for Zone 1, all courses in grades
7-8 and all required and vocational courses in grades 9-12
in Marengo County High and Marengo County Training
School (Amelia Love Johnson High School) are to be al-
located so that entire grades will be bussed at one time
and the combined students of both schools in that grade
will be then broken down into integrated sections of not
more than 35 stud »* .o each section.
While the Court fix.* “se program adopted in Zone 2 more in
line with what was inte.ced by the 1974 consent order, this
program also varies significantly from the terms of the order.
Zone 2 also appears to employ voluntary course-sharing, at least
with respect to those Marengo County High students who par-
ticipated (Deposition of Ruth Stephens, defendant's Exhibit 1,
at p. 9), although this assertion is contested by one principal
who stated that all Marengo County High students participated
(Deposition of Brad Stephens, intervenor’s Exhibit 6, at p. 9).
In light of the overall program adopted, the Court does not
consider this to be a crucial issue.
There are few distinctions between the program in Zone 1
and that in Zone 2. The chief difference is that team teaching
was not used in Zone 2; rather each composite class had one
teacher who graded students from his or her own school and
students from the other school (Deposition of Allie Lewis, in-
tervenor’s Exhibit 10, at p. 10; Deposition of Barbara Hildreth,
13 The July 16, 1973 order required in this zone that, inter alia,
there was to be no duplication of required courses or of vocational
home economics or agribusiness in grades 9-12 and no duplication
of courses in grades 7-8, with such courses to be equitably allocated
between the two campuses in Zone 2. Lee v. Marengo County Board
of Education, C.A. 5945-70-H (S.D. Ala., July 16, 1973).
— A-29 —
intervenor’s Exhibit li, at pp. 11 & 13). In the selection of
teachers, a student opting for a white teacher in one required
course would receive a black teacher in the other required course
(B. Stephens’ deposition, intervenor’s Exhibit 6, at p. 16). An-
other difference is an apparent lack of voluntariness of partici-
pation and equality of participation. While it is not clear
whether all Marengo County High students are required to par-
ticipate, as noted above, it is clear that only the most intelligent
Johnson High students participate, and that they are required
to participate (Deposition of Richard Coates, intervenor’s Ex-
hibit 7, at pp. 12-15). Principal Coates of Johnson High School
revealed that his classes are divided, on the basis of grades, into
“A” and “B” sections, and that only “A” section students, the
brightest, were involved in the course-sharing (/d. at 14 & 15).
In most other respects, there has been little difference be-
tween ®ourse-sharing in Zone | and in Zone 2. All required
courses at the high school level were involved,'* but not all
of the junior high classes were shared (B. Stephens’ Deposition,
intervenor’s Exhibit 6, at p. 12). The principals had primary
oversight responsibility for the course-sharing provisions,'® and
dictated when the sharing was to occur (Deposition of Ruth
Allen, intervenor’s Exhibit 5, at p. 8; Deposition of James
‘4 Only a partial list of the courses shared in Zone 2 has been
revealed by the evidence. The deposition of Richard Coates, inter-
venors’ Exhibit 7, at pp. 18-24, reveals that the following courses
were shared at the school under which they are listed:
Johnson High School Marengo County High School
10th Grade English 7th Grade English
11th Grade English 8th Grade English
12th Grade English 9th Grade English
| 1th Grade Social Studies
12th Grade Social Studies
10th Grade Phys. Ed.
11th Grade Phys. Ed.
'* See Note 13, supra.
— A-30 —
Amexander, intervenor’s Exhibit 9, at p. 103. As in Zone 1,
sharing has been cancelled upon the principal’s order for
weather or school activity reasons (Allen deposition, inter-
venor’s Exhibit 5, at p. 12; Alexander deposition, intervenor’s
Exhibit 9, at p. 9). One final distinction between Zone 1 and
Zone 2 is that it is clear that there was only one day of course-
sharing during the 1976-77 school year (Lewis Deposition, in-
tervenor’s Exhibit 10, at p. 9; Hildreth Deposition, intervenor’s
Exhibit 11, at. p. 17), although Principal Coates of Johnson
stated that all English classes in grades 7-12 were shared (Coates’
deposition, intervenor’s Exhibit 7, at pp. 30 and 37). Finally,
it is clear that there was duplication of courses at Marengo
County and Johnson High School in courses not involving the
sharing program (Coates’ deposition, intervenor’s Exhibit 7, at
p. 10; Lewis deposition, intervenor’s Exhibit 10, at p. 7; Hil-
dreth deposition, intervenor’s Exhibit 11, at p. 8).
17. The findings to be extracted from these programs are
neither extreme nor complex. The Board has not complied with
the terms of the 1974 consent order or its 1973 progenitor.
The lack of compliance results not from a discriminatory in-
tent on the part of the Board, but rather from a misunderstand-
ing or misapplication of the terms of the prior orders. While
the Court considered the terms to be straightforward and clear,
the depositions of various individuals involved indicate a com-
plete failure to grasp the essence of the Court’s order. The
Board superintendent considered the Zone 1 course-sharing
provisions as aimed at making Sweetwater High School a ma-
jority black school (Ramsey deposition, intervenor’s Exhibit 18,
at p. 13). At least two principals viewed the class-sharing pro-
gram as seeking a 50% /50% recial composition in the shared
courses (Coates deposition, intervenor’s Exhibit 7, at p. 9;
Walters’ deposition, intervenor’s Exhibit 16, at p. 16). These
conclusions were entirely incorrect. In order that further mis-
understanding not occur, the remedy provisions of this deci-
sion, infra, contain specific responsibilities for the Board.
— A-31 —
18. The purpose of the course-sharing order of 1974 was to
attempt to provide Marengo County students with a desegre-
gated education. Prior to the entry of this order, the Court
made personal visits to each of the facilities maintained by the
defendant Board to try to formulate a remedy providing de-
segregation through the use of existing facilities. Having viewed
the facilities, the Court concluded that pairing of schools was
not a viable remedy because of the nature of the facilities.
Most of the schools were constructed as 1-12 facilities, and the
internal facilities were equally so constructed. Most of the
facilities are old and are not readily adaptable to alteration for
the purpose of modifying the grade configuration therein. Since
the Court was convinced that pairing of the schools themselves
was not feasible from a facility standpoint, the course-sharing
order was adopted as the most effective reasonable alternative
desegregation technique. At the time that course-sharing was
implemented, the Court was confident that its conclusions
with respect to utilization of the facilities was shared by the
Department of Justice. Apparently, the government has changed
its mind.
Without admitting that the course-sharing provisions of the
1973 and 1974 orders have not been complied with, the Super-
intendent suggested in his testimony at trial that the course-
sharing programs ought to be abolished. The suggestion is
grounded in the fact that such sharing is no longer an effective
desegregation tool in Zone 1 because Sweetwater High School
is now majority black, and because the opening this year of the
countywide vocational center in Linden and the subsequent
transportation considerations raised by it make the continua-
tion of the sharing both economically and logistically infeasible.
The opening of the vocational center will require the trans-
portation of many students at all county schools to Linden at
various times of the day and then return them to their respec-
tive schools later. The availability of buses for this endeavor
— A-32 —
will seriously hamper efforts to share courses, since Marengo
High is eight miles from Sweetwater and Marengo County is
one mile from Johnson, both requiring bussing. The schedul-
ing and transportation problems involved in continued sharing
would appear to be insurmountable.
D. Faculty Assignment
19. Under this contention, the government has alleged that
the Board assigns its faculty to schools so as to reflect the race
of students in attendance at each school in violation of prior
orders of this Court and the three judge panel respecting
faculty assignments. The terminal order of the three judge
. panel entered June 20, 1970, in adopting the plan proposed
by HEW, provided, in pertinent part, that:
1. The principals, teachers, teacher-aides and other staff
who work directly with children at a school shall be so
assigned that in no case will the racial composition of a
staff indicate that a school is intended for Negro students
or for White students. The district shall assign the staff
described above so that the ratio of Negro to White teach-
ers in each school, and the ratio of other staff in each,
are substantially the same ratio as to the teachers and
other staff, respectively, in the entire school system... .
20. Reports from the Marengo County Board of Education
(intervenor’s Exhibits 26-36) reveal the following figures with
respect to student assignment in the Marengo County School
System:
— A-33 —
ZONE 1
Merengo Sweetwater Total
i Se B W
March 1974
963 0 100/0 155 536 22/78 1118 536
October 1974
739 0 100/0 632 485 43/57 1101 485
March 1975
763 0 100/0 364 475 43/57 1127 475
October 1975
720 0 100/0 423 437 49/S5i 1143 437
March 1976
731 0 100/0 425 440 49/51 1156 440
October 1976
739 0 100/0 433 452 49/51 1172 452
March 1977
748 0 100/0 436 460 49/51 1184 460
ZONE 2
Marengo Co. Amelia Johnson Total
BW % BW % B W
March 1974
67 311 18/82 674 0 100/0 741 311
October 1974
173 303 37/63 673 0 100/0 846 303
March 1975
191 304 39/61 695 0 100/0 886 304
October 1975
169 328 34/66 694 0 100/0 863 328
March 1976
170 342 33/67 701 0 100/0 871 342
October 1976
142 315 31/69 678 0 100/0 820 315
March 1977
143 322 31/69 690 O 100/0 833 322
%
68/32
70/30
70/30
72/28
72/28
72/28
72/28
%
70/30
74/26
74/26
72/28
72/28
72/28
72/28
ses Se an
ZONE 3
John Essex
BW %
March 1974 632 0 100/0
October 1974 613 0 100/0
March 1975 520 0 100/0
October 1975 533 0 100/0
March 1976 506 0 100/0
October 1976 436 1 100/0
March 1977 441 1 1090/0
The reports reflect that Marengo High in Zone 1, Marengo
County Training (Amelia Johnson) in Zone 2, and John Essex
in Zone 3 are all-black schools and have been since the 1974
orders, while Sweetwater and Marengo County High Schools,
white schools under the de jure dual system, remain majority
white.!®
21. The same reports reveal the following breakdown by
race of faculty members during the same period:
16 The Marengo County Superintendent is of the opinion that
Sweetwater is now majority black (Testimony of Fred Ramsey on
5-8-78, Transcript at p. 14). While this may be true for the 1977-78
school year, it is not indicated by any of the records presently before
the Court.
Bis.
a ee
Zone 1
Marenge Sweetwater Total
BW%& BW % BW &
March 1974 Not Available!‘ 57 28 67/33
October 1974 Not Available 52 30 63/37
March 1975 Not Available 53 30 64/36
October 1975 36 1 97/3 17 29 37/63 53 30 64/36
March 1976 37 0 100/0 17 29 37/63 54 29 65/35
October 1976 37 0 100/0 17 29 37/65 54 29 65/35
March 1977 37 0 100/0 17 28 38/62 54 28 66/34
Zone 2
Marengo County Amelia Johnson _ Total
BW%eBW &%& BW &
March 1974 Not Available!> 41 17 71/29
October 1974 Not Available 44 21 68/32
March 1975 Not Available 44 21 68/32
October 1975 7 20 26/74 37 0 100/0 44 20 69/31
March 1976 7 20 26/74 37 0 100/0 44 20 69/31
October 1976 6 21 78/22 37 0 100/0 43 21 67/33
March 1977 6 21 78/22 37 0 100/0 43 21 67/33
17 The Board listed only the total number of teachers at Cox-
heath, Sweetwater, and Marengo High without an individual break-
down until the Board report of October. 1975.
18 The Board reported only the total number of teachers at Ma-
rengo County High and Johnson High without an individual break-
down until the report of October, 1975.
— A-36 —
Zone 3
John Essex
BW %
March 1974 26 5 84/16
October 1974 28 4 87/13
March 1975 28 4 87/13
October 1975 27 5 86/14
March 1976 27 5 86/14
October 1976 25 3 89/11
March 1977 25 3 89/1!
A simple viewing of figures would tend to indicate that Marengo
High, Johnson High, and John Essex, traditionally black under
the de jure segregated system, remain identifiable as black
schools by the composition of their faculties. Similarly, the
figures with respect to Sweetwater High and Marengo County
High indicate that these traditionally white schools are still
identifiable as such. This alone violates the terms of the 1970
terminal order. Additionally, however, the figures reveal a
violation of the second portion of the assignment provisions in
that it is clear that no effort has been made to make the ratio
of blacks to white at each school substantially similar to the
ratio of the system as a whole. The existence of two schools with
predominately white faculties in a system that has a 70% /30%
black faculty to white faculty ratio is sufficient to negate any
argument that the Board has complied.
One of the major reasons underlying this violation of the
terminal order has been the lack of adequate supervision by the
Board. In questions of faculty assignment, the Board gives a
great deal of responsibility to the principals at each school and
to the local trustees (Ramsey Deposition, intervenor’s Exhibit
18, at pp. 26-28). The principal or the trustees recommend
to the Superintendent, who passes the recommendations on to the
Board. Such recommendations are generally accepted by the
— A-37 —
Board. While this process itself is not improper, the Board’s
usage of it to evade the requirements of the 1970 terminal order
certainly is.
Conclusions of Law
1. This Court has jurisdiction over the subject matter of this
lawsuit and the parties hereto by virtue of Title 42, U.S.C.A.,
§§ 1983 and 2000a-6. As with the Findings of Fact above,
considerations of clarity and conciseness dictate that the Con-
clusions of Law with respect to each issue be entered separately.
A. Transportation
2. The Court is of the opinion that the defendant Board is
in violation of prior orders of this Court respecting the trans-
portation of students in at least three respects. First, the evidence
has made it clear that buses serving Marengo County High
School in Zone 2 are crossing attendance zone lines and trans-
porting to that school students who should properly be at-
tending John Essex in Zone 3. Additionally, it is clear that Zone
1 buses are picking up Zone 2 students in the Magnolia, Hamp-
don, and Moores Valley area and transporting them to Marengo
High School in Zone 1. The crossing of zone lines is in direct
violation of prior orders of this Court and cannot be con-
tinued.'® A second area of violation results from the segrega-
'9 The Court notes that not only has the Board been guilty of
failing to respect the attendance zone lines, but further does not be-
lieve the Court meant what it said when the lines were drawn. Tes-
timony of the Superintendent (Ramsey Deposition, intervenor’s Ex-
hibit 18, at pp. 7-8) indicates that he did not conceive of there
being any specific boundaries in the county system and that student
assignment was based on tradition, with students in any given area
attending the school that has always served that area. However, in
view of the remedy adopted, infra, rescinding the use of zone lines,
the Court notes that such violations will not be able to occur in the
future.
— A-38 —
tion of students on the school bus driven by Ruth Allen. It is
inconceivable that a bus route in a system that is 80% black
could, without preconceived effort, have all white passengers.
Since transportation is a basic component of education in rural
counties such as Marengo County, the Court is convinced that
all students must be transported on a nonsegregated and other-
wise nondiscriminatory basis. See Singleton v. Jackson Mu-
nicipal Separate School District, 419 F.2d 1211, 1218 (Sth
Cir. 1970). A final violation revealed by the evidence relates
to the overlapping of bus routes in both Zones 1 and 2. It is
clear that in Zone 1, the buses travel many miles more than is
necessary, since the Sweetwater routes cover all of the attend-
ance zone and the Marengo routes do the same. The apparent
intent behind the extensive routes is to achieve minimal de-
segregation on some buses, leaving most others all black (See,
e.g., Alexander Deposition, intervenor’s Exhibit 9, at p. 12;
Kimbrough Deposition, intervenor’s Exhibit 17, at p. 6). It is
clear that but for these overlapping routes there would be no
all-black schoois in Marengo County.*°
B. Course-Sharing
3. The findings of fact set out above demonstrate clearly
that the defendant Board has made no substantial effort at com-
pliance with prior court orders dealing with course-sharing, but
“0 Whether the white students would attend the majority black
schools is a separate question which, in light of this Court’s experi-
ence with the Wilcox County School System, would most probably
be answered in the negative. See United States v. Wilcox County
Board of Education, Civil Action No. 3934-65-H (S.D. Ala.). Thus
the Court faces limited options: some desegregation through artifi-
cial maintenance of majority white schools in a majority black sys-
tem; or complete segregation to the extent that the system will have
only black students. In view of the prevailing law in the Fifth Cir-
cuit, e.g., Lee v. Tuscaloosa City School System, slip no. 5179 (Sth
Cir., June 19, 1978), the first alternative is no longer open to this
Court since the maintenance of such schools precludes a unitary
system.
— A-39 —
rather have implemented programs aimed at results not intended
by this Court. Beyond this, it appears from the Superintendent's
testimony that future course-sharing would be impractical in
light of the opening of the area vocational center. In view of
this, and in view of the remedy adopted witth respect to student
assignment, infra, the Court is of the opinion that these viola-
tions need not be remedied, and that past orders of this Court
requiring such sharing are due to be and the same are hereby
RESCINDED.
C. Faculty Assignment
4. There is no question but that the faculty assignment por-
tion of the 1970 terminal order has not been complied with
to the extent that the Board appears to have engaged in racially
motivated considerations in making its assignments. Such pro-
cedures, intentional or otherwise, violate the terminal order and
the dictates of Singleton v. Jackson Municipal Separate School
System, 419 F.2d 1211, 1218 (Sth Cir. 1970), and must be
remedied.
REMEDY
The Findings of Fact and Conclusions of Law set out above
have convinced the Court that judicial intervention in the
affairs of the Marengo County Board of Education is required.
The evidence presented to the Court is conclusive that the
Board has done little in complying with the orders of this
Court aimed at providing a unitized, desegregated school system.
Indeed, the posture of the defendant Board can best be char-
acterized as “obdurately obstinate,” an attitude less than novel
in this judicial district. See, e.g., United States v. Wilcox
County Board of Education, 494 F.2d 575, 580 (Sth Cir.
1974). Were this strictly a question of this Court weighing the
performance of the Board in light of past orders, it would be
— A-40 —
simple to conclude that the Board should receive failing marks.
However, the Court's task is not so simple, for having con-
cluded that the Board has failed to effectively desegregate its
schools, and with the evidence making it patently clear that in
the absence of strong and convincing court action no such
effective desegregation shall be forthcoming, and in light of the
Board’s contention that the prior plan is now infeasible, it is
incumbent upon this Court to adopt and implement a new
plan for the Marengo County schools that can be strictly en-
forced. Such a conclusion should not be read as an abdication
of this Court’s view that the 1974 plan was a proper desegrega-
tion technique, but rather that the ineffective assistance of the
Board has dictated the imposition of new remedial action.
The litigants have been of little aid to this Court in this re-
spect. The Board has continually demonstrated its disinclina-
tion to implement effective desegregation ; olicies beyond the
superficial program now existing under which all white students
and some black students are provided, to some extent, a de-
segregated education. The government, on the other hand,
while recognizing fully the problem confronting the Court, has
come forward with a desegregation plan that does not, in this
Court’s experience, promise to work. Whether it results from
animosity between the parties herein or overlitigiousness, the
Court is of the opinion that the opposing forces have lost sight
of the ultimate question, the fundamental right to education
of school children. |
The Court begins its analysis with the fundamental rule
that equal educational opportunity in the public schools must
be afforded to all children, regardless of their race or color.
Brown v. Board of Education of Topeka, 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed.2d 873 (1954); United States v. Jefferson
County Board of Education, 372 F.2d 836 (Sth Cir. 1966).
The objective sought, and one that this Court is convinced the
litigants herein have lost sight of, is to eliminate from all public
a fee
schools all vestiges of state-imposed segregation so that all stu-
dents have an equal opportunity to obtain a nondiscriminatory
education. Swann v. Charlotte-Mecklenburg Board of Educa-
tion, 402 U.S. 1, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 581
(1971); Green v. County School Board oy New Kent County,
391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Monroe
v. Board of School Commr’s of the City of Jackson, 391 U.S.
450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). The burden
of effectuating such a desegregated system rests first with the
school board, Bradley v. School Board of the City of Richmond,
416 US. 596, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1973);
Monroe, supra; but where, as here, the school board has de-
faulted on its obligation to desegregate its schools, the Court
must intervene to preserve fundamental rights. Dayton Board
of Education v. Brinkman, — U.S. —, 97 S.Ct. 2766, 53 L.Ed.
2d 851 (1977); Davis v. Board of School Commr's of Mobile
County, 402 U.S. 33, 9? S.Ct. 1289, 28 L.Ed.2d 577 (1971).
Accordingly, it again falls upon this Court to effectuate a work-
able plan for Marengo County.
In developing a desegregation plan the Court is to guided
by equitable principles. Milliken v. Bradley, — U.S. —, 97
S.Ct. 2749, 53 L.Ed.2d 745 (1977), citing Brown v. Board
of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083
(1955) (Brown, II). Chief Justice Burger, in Milliken, re-
quired that in applying such equitable principles, the Court
be cognizant of three factors:
In the first place, like other equitable remedies, the nature
of the desegregation remedy is to be determined by the
nature and the scope of the constitutional violation . . .
The remedy must therefore be related to “the condition
alleged to offend the Constitution . . .” Milliken I, [418
U.S.] at 738, 41 L.Ed.2d 1069, 94 S.Ct. 3112. Second,
the decree must indeed be remedial in nature, that is, it
must be designed as nearly as possible “to restore the
—
victims of discriminatory conduct to the position they
would have occupied in the absence of such conduct.” /d.
at 746, 41 L.Ed.2d 1069, 94 S.Ct. 3112. Third, the
federal courts in devising a remedy must take into account
the interests of state and local authorities in managing
their own affairs, consistent with the Constitution.
— US. —, 53 L.Ed.2d at 755-56 (citation and footnotes
omitted) (emphasis in original). Beyond this the Court is required
to adopt a plan that realistically promises to work. Davis, supra
at 38, 28 L.Ed.2d at 581, citing Green, supra at 479, 20 L.Ed.
2d at 724. The effectiveness of any plan is debatable until
some period of time has passed after imposition, but this Court
is convinced that hindsight can be just as effective a tool as
foresight, so the plan that the Court adopts today, infra, is
predicated to a great extent upon this Court’s experience with
desegregation in this and other systems.
Since 1971 this Court has struggled to find a solution to the
desegregation problems applicable to Marengo County. Personal
visitations have been made to most, if not all, of the educational
facilities in the county, so the Court is intimately familiar with
the facility capabilities. The attributes and shortcomings of each
facility have been noted and the Court has struggled long hours
with members of the educational establishment as well as the
attorneys in an effort to effectuate a solution. This county is a
rural county within the true meaning of that term. Besides the
cities of Linden and Demopolis, which have their own city
school systems, Thomaston is the largest urban area, having a
population of less than 900. Myrtlewood, served largely by the
Linden City system, has a population of under 350. Sweetwater
has 250 residents, and from there the concentration of popu-
lation drops dramatically. You can literally ride for miles and
not see any evidence of human habitation. The ratio of black
to white in the county, as reflected by the student population
in the public schools, is 80% black and 20% white. There are
— A-43 —
presently six public schools serving the county school children.
This demographic situation is crucial in understanding the task
confronting the Court in effectuating a remedy in this case.
Before effectuating a remedy, it is incumbent upon the
Court to consider the relative efficacy of all available desegre-
gation techniques. Davis, supra at 37, 28 L.Ed.2d at 581, citing
Swann, supra at 22-31, 28 L.Ed.2d at 570-75. The remedies
available for this task, as mentioned above, are limited only by
what promises realistically to work.
The technique suggested by the government calls for the
pairing of schools in Zones 1 and 2. This technique, which
seeks to achieve desegregation by combining various grades of
various schools, has frequently received endorsement in this
judicial circuit. See, e.g., United States v. Columbus Municipal
Separate School District, 558 F.2d 228 (Sth Cir. 1977); Lee v.
Demopolis City School System, 557 F.2d 1053 (Sth Cir. 1977);
United States v. Texas Education Agency, 512 F.2d 896 (Sth
Cir. 1975); Darville v. Dade County School Board, 497 F.2d
1002 (Sth Cir. 1974); Lee v. Macon County Board of Educa-
tion, 448 F.2d 746 (Sth Cir. 1971). Indeed, pairing was, to a
limited extent, the essence of the remedy ordered in this system
by this Court’s decrees of 1973 and 1974. That plan was in-
effectual largely due to the lack of interest on the part of the
School Board. The plan proposed by the government has cer-
tain redeeming values, most notably that transportation routes
presently in use would not require substantial alteration and
that most students would have to go no further to attend
schools this years than they did in the past school year. The
Court detects only two flaws in the government’s plan, but the
flaws are of such magnitude that the Court is convinced that
such pian does not promise realistically to work, as required by
Davis and Green, supra. The first problem lies in the size and
nature of the facilities involved in the proposed pairing. In
— A-44 —
Zone 1, the government would house students in grades K-3
(382 students) and 10-12 (378 students) in the Marengo High
School facility, with students in grades 4-6 (377 students) at-
tending the Sweetwater High facility and students in grades
7-9 (394 students) attending Sweetwater Junior High (Cox-
heath). According to the government’s capacity figures, the
authority for which is uncited, such pairing would result in
overcrowded conditions only at Sweetwater Junior High School.
What the government fails to assess in its post-trial brief sug-
gesting the pairing, however, is the effect of using the Marengo
High facility, ostensibly constructed for grades 1-12, as a K-3
and 10-12 facility. Assuming arguendo the validity of the gov-
ernment’s capacity figures, the Marengo High facility was con-
structed with a view toward serving approximately 200 students
in grades 10-12. There is no evidence in the record, nor can
the Court conclude from its visitation of the facility, that such
facility can effectively serve 378 students at those grade levels.
The same problem results in Zone 2, where the government
seeks to make the Marengo County High School facility, orig-
inally built to house grades 1-12, a 10-12 facility. Such pairing
would, in the words of the Superintendent, amount to no more
than “storing bodies,” and would not be in the best interests of
sound educational administration. A second, more compelling,
problem apparent to the Court is the distinct possibility of white
flight in the wake of such pairing. The government's statistics
reveal that pairing, even if available in view of the present fa-
cilities, would result in each school in Zones 1 and 2 being
about 30% white and 70% black. From this Court’s experi-
ence, see United States v. Wilcox County Board of Education,
Civil Action No. 3934-65-H (S.D. Ala.)}, such a student assign-
ment ratio would result in the exodus of a large part, if not all,
of the white students from the Marengo County School System.
While this Court recognizes that fear of potential “white flight”
cannot lie as the basis for failure to effectively desegregate a
school system, United States v. Scotland Neck City Board of
a Ad3 im
Education, 407 U.S. 484, 491, 92 S.Ct. 2214, 33 L.Ed.2d 75,
81 (i972), there is no question but that the choice of one con-
stitutional plan over another may be predicated upon an intent
to minimize the effects of any white boycott. Stout v. Jefferson
County Board of Education, 537 F.2d 800, 802 (Sth Cir. 1976).
The recent teachings of Regents of the University of California
v. Bakke, 46 U.S.L.W. 4896, 4907-08 (U.S. Sup. Ct., June 28,
1978) indicate the importance of a diverse student body, al-
though that decision is certainly distinguishable as dealing with
a medical education as opposed to elementary or secondary edu-
cation. In any event, before this Court will allow the Marengo
County School System to degenerate into a one race system
offering white students nothing and black students little more
than was available under the dual system, the Court intends to
make full use of its powers of experimentation to seek to achieve
a desegregated and unitary system in which both races will
participate. See United States v. Montgomery County Board of
Education, 395 U.S. 225, 89 S.Ct. 1620, 23 L.Ed.2d 263
(1969). On this basis, and on the probability that pairing would
overtax the existing facilities, the Court is of the opinion that
the pairing plan suggested by the government is not the ap-
propriate plan.
A second remedial alternative is attendance district zoning.
See Youngblood v. Board of Public Instruction of Bay County,
430 F.2d 625 (Sth Cir. 1970); Lee v. Macon County Board
of Education, 429 F.2d 1218 (Sth Cir. 1970); Mannings v.
Board of Public Instruction of Hillsborough County, 427 F.2d
874 (Sth Cir. 1970); Ellis v. Board of Instruction of Orange
County, 423 F.2d 203 (Sth Cir. 1970). This remedy is pres-
ently in force in most of the systems within this Court’s juris-
diction, see, e.g., Lee v. Dallas County Board of Education,
Civil Action No. 5945-70-H (S.D. Ala. March 3, 1978), and
was the remedy prescribed for the Marengo County System by
the terminal order of the three judge panel. The Court consid-
—S oe
ered this remedy in connection with the matter sub judice, and
even went so far as to draw tentative sub-zone lines creating
two attendance zones in both Zones 1 and 2. The advantages
of this remedy would be similar to those made available by the
pairing proposal supra. Additionally, it is not clear that such
a remedy would overtax the facilities to the extent that pairing
would. However, since the splitting up of the white students in
the two zones would most likely lead to the white exodus men-
tioned above, the Court cannot reasonably accept this plan any
more than it would accept pairing as a plan that realistically
promises to work.
The Court conceives of each of the foregoing desegregation
tools as efforts at social engineering. Social engineering under
the demographic circumstances presently existing in Marengo
County will not work because not only do you close the system
to a large number of students who desire and need a public
education, but you provide the basis for the disestablishment of
the public school system as a whole since you remove a nec-
essary underpinning of that system—public support. Whoever
conceived the idea of social engineering in the education area
could not have possible conceived the ultimate result as being
the abolition of public education for the white race and the
establishment of all-black schools. It is not practical to give
each school in an 80% black system a sprinkling of whites in
order to be able to say social engineering works and each school
is integrated. You can say that the schools are desegregated,
however, by giving each student an equal opportunity to obtain
an equal education.
The ultimate solution to the desegregation efforts in Marengo
County is the establishment of a central system in the county
to which all students shall be assigned. Indeed, this was an
alternative proposed by the Board in the early 1970's. The prob-
lem with this is that Marengo County is not a rich county and
cannot undertake this endeavor unaided. Therefore, the Court
_
aay ©"
is convinced that if social engineering is to be allowed to take
its course in Marengo County then a central facility must ulti-
mately be established at such time as the United States gov-
ernment, which appears to be the only party having objections
to the past efforts of the Marengo County School Board, pro-
vides financial assistance to the state and county to make such
construction feasible. The Court suspects that such contribu-
tion will be a long time coming. However, in the interest of
speeding up the day when a county wide facility can be con-
structed, the Court hereby orders the defendant Board to come
forward with a plan by no later than November 17, 1978, by
which such a facility might be constructed and a report reflect-
ing the results of its efforts at obtaining the necessary funding.
Until a central facility can be constructed the Court elects
to take a constitutional approach to the problem—all students
presenting themselves to the educational processes of Marengo
County shall have an equal opportunity to obtain an education
of equal quality to that of any other students in the system
which the Board must provide at any institution or establish-
ment that they elect to attend that the School Board can pres-
ently afford to operate. This remedy is pure and simple free-
dom of choice, which, when combined with completely deseg-
regated faculties, desegregated transportation facilities, and
facilities maintained on a nondiscriminatory basis, should com-
bine to provide each student with an educational opportunity
equal to that of each and every other student within the system.
This possible novel approach today in this system will have no
deleterious effect on the desegregation efforts elsewhere for the
reason that if not adopted the system will end up an all one
race system as in Wilcox County where blacks now are bussed
100 miles from an all-black area to an all-black school.
The freedom of choice plan has enjoyed considerable dis-
repute in the past ten years, commencing with Green v. County
School Board of New Kent County, 391 U.S. 430, 88 S.Ct.
ne |
1689, 20 L.Ed.2d 716 (1968), and its companion cases, Raney
vy. Board of Education of the Gould School District, 391 U.S.
443, 88 S.Ct. 1697, 20 L.Ed.2d 729 (1968), and Monroe v.
Board of Commissioners of the City of Jackson, 391 U.S. 450,
88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). In Green, the Court
did not hold freedom of choice unconstitutionai, but found
rather that it was impermissible only to the extent that it failed
“to undo segregation.” 391 U.S. at 440, 20 L.Fd.2d at 725.
The Court noted that such plans had been largely ineffective as
a desegregation tool, but opined that “there may well be in-
stances in which it can serve as an effective device.” Id. The
words of Justice Brennan, speaking for an unanimous Court,
are quite instructive:
Where it offers a real promise of aiding a desegregation
program to effectuate conversion of a state-imposed dual
system to a unitary, nonracial system there might be no
objection to allowing such a device to prove itself in oper-
ation. On the other hand, if there are reasonably avail-
able other ways, such for illustration as zoning, promising
speedier and more effective conversion to a unitary non-
racial school system, “freedom of choice” must be held un-
acceptable.
Id. at 440-41, 20 L.Ed.2d at 725. Since this Court is con-
vinced that any other desegregation technique promises only a
white boycott of the public school system in Marengo County
and a return for black students to a system not substantially
different from that afforded them under the dual system, the
Court is of the opinion that freedom of choice ought to be
implemented in Marengo County so that its effectiveness as a
desegregation tool may be properly assessed. In view of the
past lack of cooperation that this Court has received from the
Board, the plan will have to be tightly monitored, but the Court
is confident that proper safeguards can be afforded.
Accordingly, it is the order of this Court that, commencing
with the 1978-79 school year, and for each year thereafter un-
/ — A-49 —
til directed otherwise by this Court or until the completion of
a central facility, each student attending schools within the
Marengo County School System shall attend the school of his
choice, up to facility capacities. All zone lines previously drawn
by this Court are hereby abolished, and the Board will provide
to each student requisite transportation to the facility of that
student’s choice. The Board will mail to each student a form
listing the schools which may be attended, and each student
shall return the form to the Board listing a first, second, and
third choice. The following capacity limits will be observed in
each school:
School Grades Capacity
Marengo High School K-12 780, 60 per grade
Sweetwater High School 1-6,10-12 540, 60 per grade
Coxheath Junior High 7-9 270, 90 per grade
Johnson High School K-12 845, 65 per grade
Marengo County High K-12 390, 30 per grade
John Essex High School K-12 585, 45 per grade
The Court expects that this plan will lead to somewhat of an
inverse white flight in that most elections by students will be
racially motivated. Such elections may well result in any of
the schools receiving more elections than its facility can main-
tain. In the event this occurs, the names of students selecting
that particular facility will be drawn at random during a meet-
ing of Board and government attorneys. Those students not
afforded their first choice will b. placed in the pool of appli-
cants for their second choice, and so on. Any conduct by the
Board, or any of its agents, which might encourage any student
to opt for one school as opposed to any other will be deemed
a violation of this order. After the first year that the program
has been in effect, a student will continue to attend the school
chosen this year, with Coxheath Junior High and Sweetwater
High School to be considered one school for this purpose.
— A-50 —
With respect to faculty assignments, the Board is hereby or-
dered, under penalty of contempt, to comply with prior orders
of this Court so that the racial balance of the faculty and staff
at each school in the system is the same. As was the case pre-
viously, any teacher refusing a transfer may be required to
seek employment elsewhere. On this point, the Board is hereby
ORDERED to report to the Court immediately upon receipt
of this decision its proposed faculty assignments for the 1978-79
school year, and the Board may expect court ordered transfers
if the assignments are not in compliance with prior orders.
Finally, with respect to transportation, the Court orders the
Board to come forward with a desegregated, nondiscriminatory
transportation plan for the bussing of students. The Court does
not expect to find any all-white buses in the system without
a compelling explanation, and the Board is ordered to end its
practice of overlapping its routes to so segregate its buses. Any
violation of this order will be dealt with sternly. Such plan
should be filed with the Court as soon as possible, so that it
may be approved for the coming school year.
All prior orders of this Court not touching on student as-
signment, including majority to minority transfer provisions,
remain in full force.
The Board is hereby directed to report to the Court within
two weeks of receipt of this decision the form to be used by
the Board in eliciting the school selections from the students.
Thereafter the Board is to provide the Court with a breakdown
showing the number of elections, by grade, made for each
school. The Board is reminded that any default on its part, or
on the part of its agents, with respect to this desegregation plan
will subject the Board to the contempt powers of this Court,
and the Court intends to carefully monitor this program so that
freedom of choice does not become illusory. C.f., United States
v. Jefferson County Board of Education, 372 F.2d 836 (Sth
Cir. 1966).
— A-51 —
The Court will hold a hearing on this matter at 9:00 a.m.
on Friday, August 25, 1978, in the United States Courthouse,
Selma, Alabama, at which time the Court will consider any
suggestions the parties may have to further the purposes of this
program, and at which time the Court will expect to hear from
the Board on its progress thus far.
DONE this 7th day of August, 1978.
/s/ W. B. HAND
United States District Court
U. S. Dist. Court
Sou. Dist. of Ala.
Filed and Entered This the
7th Day of August, 1978
Minute Entry No. 47,012
WILLIAM J. O’CONNOR, Clerk
By: /s/ G. WALTER
Deputy Clerk
— A-52 —
APPENDIX C
In the United States District Court for the
Southern District of Alabama
Northern Division
Anthony T. Lee, et al., )
Plaintiffs,
United States of America,
Plaintiff-Intervenor,
: ; Mid \ Civil Action
National Education Association, Inc., No. 5945-70-H
Plaintiff-Intervenor,
Marengo County Board of Education,
et al.,
Defendants. |
Notice of Appeal
Notice is hereby given that the United States of America,
plaintiff-intervenor herein, hereby appeals to the United States
Court of Appeals for the Fifth Circuit from this Court’s judgment
entered herein on August 7, 1978.
Respectfully submitted,
JAMES P. TURNER
Deputy Assistant Attorney General
/s/ BURTIS M. DOUGHERTY
JOSEPH D. RICH
BURTIS M. DOUGHERTY
JOSHUA P. BOGIN
Attorneys
Department of Justice
Washington, D.C. 20530
WILLIAM A. KIMBROUGH
United States Attorney
— A-53 —
Certificate of Service
I hereby certify that I have served a copy of the foregoing
Notice of Appeal to the below-named counsel of record by
depositing a copy in the United States mail, postage prepaid,
addressed as follows:
Solomon S. Seay, Jr., Esquire
Gray, Seay & Langford
352 Dexter Avenue
Montgomery, Alabama 36104
Hugh A. Lloyd, Esquire
Lloyd, Dinning & Boggs
Post Office Drawer Z
Demopolis, Alabama 36732
This the 14th day of August, 1978.
/s/* Burtis M. Dougherty
Burtis M. Dougherty
Attorney
Department of Justice
Washington, D. C. 20530
a A-S4ian
APPENDIX D
In the
United States Court of Appeals
For the Fifth Circuit
Anthony T. Lee, et al.,
Plaintiffs,
United States of America,
Plaintiff-Intervenor-Appellant,
National Education Association, Inc.,
Plaintiff-Intervenor,
Vv.
Marengo County Board of Education,
Defendants-Appellees.
On Appeal from the United States District Court
for the Southern District of Alabama
Northern Division
Motion for Summary Reversal
The United States, plaintiff-intervenor-appellant, hereby re-
spectfully moves this Court to summarily reverse the August 7,
1978 judgment of the court below ordering the immediate im-
plementation of a freedom of choice attendance plan by the
Marengo County School System. As grounds for this Motion,
the United States shows the following:
1. On August 7, i978, the United States District Court for
the Southern District of Alabama (W. B. Hand, J.) entered its
Findings of Fact, Conclusions of Law, and Judgment in the
above-captioned matter. The district court concluded that the
— ht
defendant Marengo County Board of Education has continued
to operate its schools in a constitutionally infirm manner, in
violation of that court’s order of September 6, 1974. The court
specifically tound violations relating to student assignment,
faculty assignments, and transportation of students.
2. Regarding the teacher assignment and transportation vio-
lations, the court ordered the defendant to implement imme-
diately Singleton*-type provisions relating to assignment of
teachers and staff, and “to come forward with a desegregated,
nondiscriminatory transportation plan for the bussing of stu-
dents.” Lee v. Marengo County Board of Education, C.A. No.
5945-70-H at 37 (S.D. Ala. Aug. 7, 1978) [hereinafter referred
to as Order]. The United States does not appeal from those
portions of the Order. However, in addressing the defendant's
violation regarding the assignment of students, the district court
rejected a proposed pairing plan offered by the United States
and instead directed immediate implementation of a remedy
which it characterized as “pure and simple freedom of choice.”
Id. at 34.
3. On August 15, 1978, the United States filed a timely
notice of appeal from the district court’s judgment.
4. The law and the record in this case make manifest the
conclusion that a freedom of choice plan cannot and will not
effectively dismantle the dual system which still prevails in the
Marengo County schools, and that practical, effective, alterna-
tive desegregation remedies exist which should be immediately
implemented in this distict. Alexander v. Holmes County Board
of Education, 396 U.S. 19 (1969); Green v. County School
Board, 391 U.S. 430 (1968); Raney v. Board of Education,
391 U.S. 443 (1968); Singleton, supra. Further, it is clear
* Singleton v. Jackson Municipal Separate School ‘District, 419
F. 2d 1211 (Sth Cir. 1969), rev’d on other grounds sub nom. Carter
v. West Feliciana Parish School Board, 396 U.S. 390 (1970).
— A-56 —
that the court below impermissibly devised its freedom of choice
plan “with the fear of white flight as its paramount considera-
tion.” United States v. DeSoto Parish School Board, 574 F. 2d
804, 816 (Sth Cir. 1978).
5. The United States, believing that time is of the essence
iu this matter (the 1978-79 school year is scheduled to begin
in Marengo County on August 28, 1978), that the fundamental
constitutional rights of the school children of Marengo County
are in jeopardy for yet another school year, and that this appeal
presents no “new issue even resembling a constitutional issue
in this much litigated field,” respectfully moves this Court for
summary reversal of that part of the district court’s order re-
lating to student assignment. United States v. Hinds County
School Board, 417 F. 2d 852, 857 (Sth Cir. 1969); Groendyke
Transport, Inc. v. Davis, 406 F. 2d 1158, 1161-63 (Sth Cir.
1969). See Isbell Enterprises, Inc. v. Citizens Casualty of N.Y.,
431 F. 2d 409 (Sth Cir. 1970); Murphy v. Houma Well Service,
409 F. 2d 804, 805-08 (Sth Cir. 1969); Fifth Circuit Rule 18.
6. In the event the Court elects not to grant summary re-
versal prior to the opening of school on August 28, 1978, we
request the Cou.t to enter an order directing the continued
operation of the Marengo County school system in accordance
with the 1974 Order of the court below pending a final ruling
on this appeal.
7. The basis of this motion is more fully set out in the
attached memorandum, which is incorporated herein.
WHEREFORE, the United States respectfully urges this
Court to enter immediately an order reversing the district court’s
judgment of August 7, 1978 insofar as it relates to student as-
signment, and directing the implementation, effective with the
commencement of the 1978-79 school year, of the proposed
— A-57 —
desegregation plan of the United States, the only constitutionally
acceptable plan in the record of this case.
Respectfully submitted,
JAMES P. TURNER
Acting Assistant Attorney General
WILLIAM A. KIMBROUGH
United States Attorney
/s/ JOSHUA P. BOGIN
WALTER W. BARNETT
FRANZ R. MARSHALL
BURTIS M. DOUGHERTY
JOSHUA P. BOGIN
Attorneys
Department of Justice
Washington, D. C. 20530
— A-58 —
APPENDIX E
In the United States Court of Appeals
for the Fifth Circuit
No. 78-2787
Anthony T. Lee, et al., Plaintiffs,
United States of America, Plaintiff-Intervenor-Appellant,
National Education Association, Inc., Plaintiff-Intervenor,
Vv.
Marengo County Board of Education, et al.,
Defendants-Appellees.
On Appeal from the United States District Court
for the Southern District of Alabama
Northern Division
MOTION TO DISMISS APPEAL
Marengo County Board of Education, Defendant-Appellee,
respectfully moves this Court to dismiss the appeal heretofore
filed by the United States, Plaintiff-Intervenor, from Judgment
of the United States District Court for the Southern District of
Alabama, Northern Division, rendered in this cause on August
7, 1978. As grounds for this Motion, the Marengo County
Board of Education shows as follows:
1. The Court of Appeals is without jurisdiction of this cause
under 28 USCA Section 1291.
2. The said Judgment of August 7, 1978 is interlocutory
in nature, is not a final decision, and is therefore not subject
to appeal.
—w——
— A-59 —
3. This action was initiated by Petition for Further Relief
filed by Plaintiff United States of America and the Order ap-
pealed from was entered based on issues decided in the Plain-
tiffs favor.
The basis for this Motion is set out in the attached Brief
which is incorporated herein.
Respectfully submitted,
/s/ H. A. LLOYD
H. A. LLOYD
LLOYD, DINNING & BOGGS
Post Office Drawer Z
Demopolis, Alabama 36732
Attorneys for Defendants-Appellees,
Marengo County Board of
Education
Certificate of Service
I do hereby certify that I have on this 7th day of September,
1978, served a copy of the foregoing pleading on Counsel for
all parties to this proceeding by mailing the same by United
States mail properly addressed and first class postage prepaid.
/s/ H. A. Lloyd
Lloyd, Dinning & Boggs
P. O. Drawer Z
Demopolis, Alabama 36732
Attorneys for Defendants-Appellees,
Marengo County Board of
Education |
— A-60 —
APPENDIX F
Lee v. United States
Anthony T. Lee, et al.,
Plaintiffs,
United States of America,
Plaintiff-Intervenor-Appellant,
National Education Association, Inc.,
Plaintiff-Intervenor,
Vv.
Marengo County Board of Education, et al.,
Defendants-Appellees.
No. 78-2787.
United States Court of Appeals,
Fifth Circuit.
Feb. 5, 1979.
In a school desegregation case, the United States appealed
from a portion of the order of the United States District Court
for the Southern District of Alabama at Selma, William Brevard
Hand, J., and moved for summary reversal. The Court of
Appeals, Ainsworth, Circuit Judge, held that: (1) an order
denying injunctive relief sought by the Government as to stu-
dent assignment was an appealable order, and (2) where it was
clear that freedom-of-choice student assignment had not worked
in the county public school system insofar as desegregation was
concerned, no effective result having followed the District Court’s
earlier order which had directed implementation of a freedom-
of-choice student assignment plan, it was necessary to remand
for further consideration and evidentiary hearing if necessary
— A-61 —
and to offer the county board of education opportunity to file
a student assignment plan constitutionally acceptable.
Reversed and remanded.
1. Schools and School Districts Key 13(21)
Where it was clear that freedom-of-choice student assign-
ment had not worked in county public school system insofar
as desewregation was concerned, no effective result having fol-
lowed court’s order which had directed implementation of
freedom-of-choice student assignment plan, it was necessary
to remand for further consideration and evidentiary hearing if
necessary and to offer county board of education opportunity
to file student assignment plan constitutionally acceptable.
2. Federal Courts Key 558
Order denying injunctive relief sought by Government as to
student assignment in school desegregation case was an appeal-
able order. 28 U.S.C.A. §§ 1291, 1292(a).
Appeal from the United States District Court for the Southern
District of Alabama.
Before AINSWORTH, GODBOLD and HILL, Circuit
Judges.
AINSWORTH, Circuit Judge:
This is an appeal by the United States from that portion of
the district court’s order dated August 7, 1978 which pertains
to student assignment in the public school system of Marengo
County, Alabama. The district court’s order is comprehensive
— A-62 —
in numerous phases of the desegregation process in the county’s
school system which relate not only to student assignment but
also to faculty assignment, transportation, school construction
and site selection and majority to minority transfer. The Gov-
ernment has moved for summary reversal of the district court’s
order as it pertains to student assignment, its principal objection
being to that portion of the order which directs implementation
of a freedom-of-choice student assignment plan.
The defendant, Marengo County Board of Education, has
filed a motion for dismissal of the appeal of the United States
on the ground that the district court’s order is not an appealable
order, is interlocutory and not a final decision, and this court
is therefore without jurisdiction under 28 U.S.C. § 1291. We
expedited the case and have duly heard oral argument.
As the Government points out in its brief, historically this
case arises out of the original lawsuit, Lee v. Macon County
Board of Education, 221 F.Supp. 297 (M.D.Ala.), filed in 1963,
which involved the constitutionality of the segregated school sys-
tems throughout the State of Alabama. The matter was then be-
fore a three-judge court which authorized freedom of choice as
a proper tool of desegregation. However, following the Supreme
Court’s decision in Green v. County School Board, 391 U.S.
430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968)! which cast doubt
upon the effectiveness of freedom-of-choice plans, further hear-
ings were held and an order was issued June 12, 1970 which
adopted the proposed plan by the Government for use in the
1970-71 school year. Shortly thereafter, on June 19, 1970, the
case was transferred from the three-judge court to the district
court for the Southern District of Alabama. When the district
1 See also Raney v. Board of Education of Gould School District,
391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v.
Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.
2d 733 (1968), and Alexander v. Holmes County Board of Educa-
tion 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).
— A-63 —
court then modified the order again permitting freedom of choice,
we vacated the order and remanded the case on June 14, 1971
directing compliance with the principles established in Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.
Ct. 1267, 28 L.Ed.2d 554 (1971). See 443 F.2d 1367 (5 Cir.
1971). The case was again before us in 1972, when we re-
versed and remanded the matter for implementation of a work-
able plan. See 465 F.2d 369 (5 Cir. 1972). Thus the present
order appealed from represents the third time this case is before
us on the issue of student assignment.
Marengo County has a small rural school system, largely black,
with approximately 80% black students and 20% white stu-
dents. Following oral argument, at our direction the Marengo
County Board submitted attendance figures for the past three
years in the school system. Those for the current school year are
included, having been compiled one month (on September 22,
1978) after school convened for the present school year. They
are reproduced in the margin.
1976-1977
K-6 7-12
SCHOOL Black White %Black Black White % Black
Sweet Water High 309 216 59 129 233 36
Marengo County Hi 132 176 43 13. 138 9
A. L. Johnson High 307 0 100 380 0 100
John Essex High 203 0 100 238 l 100
Marengo High 858 0 100 388 0 100
1977-1978
K-6 7-12
SCHOOL Black White %Black Black White % Black
Sweet Water High 309 214 59 126 214 37
Marengo County Hi 128 174 42 as. Soe 7
A. L. Johnson High 271 0 100 378 0 100
John Essex High 181 0 100 232 0 i00
Marengo High 368 0 100 381 0 100
inn i ine
The statistics graphically indicate that the presently court-
ordered freedom-of-choice assignment plan is not working to
achieve desegregation, and that a majority of the schools in
the system are entirely black while the others are predominantly
white. This condition has been true throughout the three-year
period shown in the statistical summary in footnote 2 supra.
Essentially the same condition has existed throughout the his-
tory of the school system since the first attempts at desegre-
gation by court action. The district court in its recent order
of August 7, 1978 observed:
The Findings of Fact and Conclusions of Law set vut
above have convinced the Court that judicial interven-
tion in the affairs of the Marengo County Board of Edu-
cation is required. The evidence presented to the Court
is conclusive that the Board has done little in complying
with the orders of this Court aimed at providing a unit-
ized, desegregated school system. Indeed, the posture of
the defendant Board can best be characterized as “obdu-
rately obstinate,” an attitude less than novel in this ju-
dicial district.
We agree with the district judge in this regard. Thus the
segregated status of the school system is clearly the result of
discrimination on the part of the Board, both past and present.
We are aware of the difficulty involved in desegregating this
school system, and certainly the district judge deserves high
marks for his efforts in the matter. Nevertheless, we disagree
with the conclusion he has reached.
1978-1979 (as of 9-22-78)
K-6 7-12
SCHOOL Black White %Black Black White % Black
Sweet Water High 285 181 61 164 193 46
Merango County Hi 94 133 41 15 122 11
A. L. Johnson High 274 0 100 340 0 100
John Essex High 183 0 100 220 0 100
Merango High 365 0 100 378 0 100
— A-65 —
In his order the district judge quotes from Green v. County
School Board, 391 U.S. 430, 440-41, 88 S.Ct. 1689, 1696,
20 L.Ed.2d 716 (1968), a passage from Mr. Justice Brennan’s
opinion therein which is “instructive” in the present case. The
quotation tollows:
Where it offers real promise of aiding a desegregation
program to effectuate conversion of a state-imposed dual
system to a unitary, non-racial system there might be no
objection to allowing such a device to prove itself in op-
eration. On the other hand, if there are reasonably avail-
able other ways, such for illustration as zoning, promising
speedier and more effective conversion to a unitary, non-
racial school system, “freedom of choice” must be held
unacceptable.
{1] It is clear that freedom-of-choice student assignment has
not worked in the Marengo County Public School System in-
sofar as desegregation is concerned. The court’s order appealed
from in the instant case produced no effective result, as the
student enrollment figures for the present school year furnished
us by the Board amply demonstrate. Accordingly, the motion
of the United States for summary reversal is granted.*
[2] The motion of the defendant Board for dismissal of the
appeal is denied. The district court’s order is appealable under
28 U.S.C. § 1292(a) since the district court denied the injunctive
relief sought by the Government as to student assignment.
3 On other occasions this court has refused to approve freedom-
of-choice plans. The Government has cited as examples, cases to
this effect, as follows: United States v. DeSoto Parish School Board,
5 Cir., 1978, 574 F.2d 804; Harkless v. Sweeny Independent School
District, 5 Cir., 1977, 554 F.2d 1353; Lemon v. Bossier Parish
School Board, 5 Cir., 1971, 446 F.2d 911; Singleton v. Jackson
Municipal Separate School District, 5 Cir., 1969, 419 F.2d 1211;
Hall v. St. Helena Parish School Board, 5 Cir., 1969, 417 F.2d
801, cert. denied, 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180
(1970).
— A-66 —
Under the circumstances, we are obliged to remand this case
to the district court for further consideration and an evidentiary
hearing if that be necessary. The court shall forthwith enter an
order directing that the Marengo County Board of Education
file a student assignment plan within thirty days which is con-
stitutionally acceptable. Should the Board fail to file a plan
within the time limit prescribed, the district court will have no
alternative but to order implementation of the plan proposed
by the United States—to be implemented in the next school
year.
REVERSED AND REMANDED FOR FURTHER PRO-
CEEDINGS.
— A-67 —
APPENDIX G
In the
Supreme Court of the United States
Marengo County Board of Education,
Petitioner,
V.
Anthony T. Lee,
Plaintiff,
United States of America,
Plaintiff-Intervenor,
National Education Association, Inc.,
Plaintiff-Intervenor,
Respondents.
Certificate of Service
I, H. A. Lloyd, one of the Attorneys for Marengo County
Board of Education, Petitioner herein, and a member of the
Bar of the Supreme Court of the United States, hereby certify
that one the day of May, 1979, I served copies of the fore-
going Petition for Writ of Certiorari to the Supreme Court of
the United States on the several parties thereto as follows:
1. On the United States, by mailing a copy in a duly ad-
dressed envelope, with postage prepaid, to W. A. Kimbrough,
Jr., Esquire, United States Attorney for the Southern District
of Alabama, P. O. Drawer E, Mobile, Alabama; and by mailing
a copy in a duly addressed envelope; with postage prepaid, to
the Solicitor General, Department of Justice, Washington, D. C.
20530; ard by mailing a copy in a duly addressed envelope,
— A-68 —
with postage prepaid, to Burtis M. Dougherty, Esquire, Attorney
of Record for Plaintiff-Intervenor, Department of Justice, Wash-
ington, D. C. 20530.
2. On Anthony T. Lee, et al., Plaintiffs, and on National Edu-
cation Association, Plaintiff-Intervenor, by mailing a copy in a
duly addressed envelope, with first class postage prepaid, to
its Attorney of Record, Solomon S. Seay, Jr., Esquire, Gray,
Seay & Langford, 352 Dexter Avenue, Montgomery, Alabama
36104.
/s/ H. A. LLOYD
P. O. Drawer Z
Demopolis, Alabama 36732
Attorney for Petitioner,
Marengo County Board of Education
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.