Appendix — Gibson v. Harris

Supreme Court brief1964

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APPENDIX 8

; OPINIONS OF COURTS BELOW

UNITED STATES COURT OF APPEALS

FIFTH. CIRCUIT

Raven Stent er au, Appellants,

° Vv.

SaVaANNAH-CHATHAM COUNTY Boaup or Kpceation ET AL...

Appr llees.

v3 “No. 2557. . -

. May 24: 1963.

*~- ” * . * .* : * * ‘i 7 o e

_ EF. H. Gadsden, B.. Chirence Maytieid, Savannah; Ga.,

C oustatice Baker Motley, New York City, for ap pellants.

tae ee Cowart, Savannah, Ga. Charles JJ. Bloc hi,

Macon, Ga. E. Freeman Leverett, Elbeston,, Ga., R. Basil

Morris, Savannah, Gas for appellees, . ‘9

Before Terrie, Chief Judge, and Rives and Bev. Cireuit

Judges. f ! * ee e

‘Terrier, Chief Judge. ° ——

This is a motion for an injunction to be entered by this

Court pending our consideration on the merits of an appeal -

from-an order of the District Court for {he Souther: bis

triet of Georgia dated May 13, 1963, denying appellants’

motion. for a preliminary infunetion requiring a prompt

start to the desegre wat ion of the Sayannah- ( ‘batham (* aunty

Schools. ;

a “hist Y h

A judgment denying’a motion for preliminary injunction

ds an appealable orders though interlocutory. 2S US CUA.

°$1292(1). This Court has thee power ‘to issue’ all, writs

necéssary or appropriate inaid of its jurisdiction and agree-

_able to the psages and ‘prineiples of law. 28 PASWCLA. es

W65l(a). An injunction pending appeal is such a Writ.

Aaron vy. Cooper, 8 Cir, 261 F.2d_97, 101. The power

granted to Courts of Appe a ander Section 1651, commonly

known as the *sAll Writs | statute is meant to ‘ used ons

in the exceptional case where’ there ix clear abuse of

cretion or usurpation ef- judicial power. B ankers Lif} &

Casualty Company v. Holland, 346 U:S. 379, 74 S.Ct.

98 L.Ed. 106. It should be invoked only in ‘textreme cases,"

LabBuy v. Hawes Leatner Company, 352 U.S. 249, 77 SA.

_ 3808, 1 Kd.2d. 290. This is such a case. \

The trial court made ‘the following finding of fact touch}

ing on the Critical question as to whether the primary an

secondary schoo of Savanbah-Chatham County are ra-|

cially segregated : 7 . - |

‘ |

**The primary and secondary public schools of Sa-| \

vannah-C ‘hathans County are divided into schools for

white pupils and schools for negro pupils arkl admis.

sioy: thereto is limited ty applicants of the respective

races.”" ro ; oss

The Supreme: Court of -the United States, in Brown v.

Borrd of Education of Topeka, 347 U.S. 485. 74 S.Ct. 686,

OS L.Ed. S75, said:

“We conclude that in the tield of public education the

doctrine of *separaté but equal’ has no place. Separate

educational facilities are inherently nnequal. There-’

fore, we hold that the plaintiffs and others similarly

situated for whom the action’ have been brought are,

by reason of the segregation complained of, deprived of

the equal protection’ of the laws. eu auteed by the,

Fourteenth Amendment."

This decision by the Supreme Conrt should have ended.

the matter for the district ceurt to the extent that upon

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ea eal

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itxmaking thisaletermivation its duty was then to do what

the Supreme Court diréeted to be done upon the, second

appearance of the Brown v. Board of Exucation case in the

Supreme Court, 549 U.S. 294, -at page 300. 75 S.Ct, F3,\

at page 7a; 99 L.Ed. 1083, where the Court *said: : \

<The @aurts will require that the defendants maks jt

prompt! and reasonable start toward full compliance

with our May.d7, 1954, riling. Once sueh ‘a Ktart has

been made, the courts may find that additional! time

is necessary to carry out tae ruling in an effective

manner.’ (kuphasis added). ;

. é “ : . “* -

Instead of doing thi- the trial court permitted an inte

vention by parties whose sole purpose for intervening wa-

to adduce proof as a factual basis for ay effort to ask the

Supreme Court to reverse its decision in Brows v. Topek

[3 doard of Education. ‘Pte court then perfnitted, OviL

in support of thi- approach hs- the intervenors, any fonivn|

‘the appellants" motion for preliminary injunction solely on .

the basis of sneh evidence, which, briefly stated, tended t

support the thesis that complianee with the guavas

Court's decision would be detrimerfal ta both the Negro

plaintiffs and ta-white quudents in the Savannah -Chathar

County school system, :

The, district court 6r the Southern District of Georgia

is bound by the decision of the United States Supreme

Court, as are we. Unless and until that Court pverrules

its deeision in Brown v. Topeka, no trial cour! may, upor

finding the existence of a segregated schoo! systeni, retrans

from acting as requirdd by the Supreme Court pe re ly iy

cause such distriet court may conelude that the Supreme

Courf erred either as to.its facts or as to the law.

It is, therefore. clear that on the- day of the entry by

the frial court of it- order if was a clear abfise of its di-

cretion for the trial court to deny appellant" motion toe

il prepminasy 1 Une ION requis sag the defendant Schoo!

. ‘of -

‘ . >

» ‘ 4 OM Tam Re re oe

+ nd

Board to make a prompteand reasonable start towiifd- de

<e ceregating the Savannah-C hachar: (ounty schools.

In suck cireumstances, beeause it Has now been more

than Nine years since the Supreme Ceurt made it plain what

° e- . . . . s ' .

the duties of the Boards ‘of Edueation are under sueh on

cupistatices, and beeanse any further delay inight prevent

“the enjoyme ‘ee the appe ‘Hiants gf their clear at aso!

the beginning Of a new se hool vearcin September, 140,

must determine what relief should Be granted in response

«< .

to this present motion.

We piles cae conelided that this Court’ has the

power to grunt ay njune tion pending the tinal hearing

the cise on the merits in the Court of Appeals. However, .

it is clearly moere’desirable for injunetive relief to

granted at the level of the triai court rather than by an ay

petlate court if the same necessary results can be accom

plished. “Iveluded in the powers of the Court ot Ap peal

under the ALl-Writ< Statate, is the power of the Court:

Appeals toframe thi: terms ofan injunction and direct isis

trial court to ente resuch injunction and niake it the order

the trial court. See 'Poledo Seale Co, v. omputing Sc vale

, ‘ ‘ a "@ey ‘ ‘ ~ nm a hl

Ca: Hi] | he OU, 4°) N.f Be 45s, bre LL. Kd. re h There the

Supreme Court saidQ «

Under Slol of the Judie] Code [the predecessor -

of the All-Writs statute] [the:Court at Appeals! liad

the reght-to issue all writs not specifically provided tor

hy statute whieh might be necessary for the exereise of

. its appellate jurisdiction. It could, therefore itself

have enjoined the Toledo € ‘gmpany trom in. cfering

with the exeeutron ef its own deere, Merrimac River

- sy

ee odede? i

Savings bank v. sl dayeCentér, 219 TUs,-

S.C, 295, 55 LK. 320}: or it could direct a District

Court to de so, as it dich” 26fF U.S; 399, 426, 43 8.0%

. 498, 465, (iv. L.Ed. 71%.

™~

‘

o : da -

We think. it appropriate, therefore,.to frame an in june.

tion and, direct bys inandate that this injunction be made the .

corder of, the Dis tric! Court. ; , my & : ‘

It is, therefore, ordered that ihe District Court for the

Southe rn District of Georgia enter the following judgine nt

and order:

2 The defendant, Savannah-Chatham County Board

of Edieation and the other individual defendants (raat

ing then! specitieally y atid their agents, servants, em

plovees, successors in office and those in concert with

them who shall receive notice of this order. be and they

are hereby restradied and etioined from requiring and

permitt dig segregationso! the races in any school under

ether supervision, from: and atter such time as may be

hecessarg to make arrangements for admisston of ehil

dren te@sueh schools on araciaily non-diseritninatory

basis with adil deliberate speed, as required bye atye Su

preme Court th Brown v. Board of Kelucation or

Topeka, 349 US. 204, 75 S.Ct. 750, 99 LD 1083. ,

ee further orde red,. adjudged and deereed that

said persons be and they gire hereby required to sub-

mit to this Court not iater than July Ar ie. at ‘pla

under’ whieh the said dere wndiints propose to make an

intinediate start in the desegregation of the schools of

Savannah-Chatham Qounty, whieh plon shall ineliude

a statement that the maintenance of separate sehools

tor the Negro and white chil iren of Savannah shall

ie completety ended with respect to at least one grade

during the ‘seheo! vedr commenéing September, 1,

aad with respeet toatl ene one aud litiqnal grade each

schoo! year thereatter.

Thi- order shail remain in effect unt! the final deter-

‘mination of the appeal of the within ease in the Court of

Appeals for the Firth © ireuit of the merits. ane until the

further order of this Court. During the pendeney of tht.

-enterésd? @n June 24, 196:

order the trial court is further directetl to enter sueh other

and further oraérs ax may be appropriate or necessary in

earrsing out the expressed terms of this order.

The Clerk is Girected to issue the mandate forthwith.

UNITED STATES COURT OF -APPEALS

? ORIFTH CIRCUIT

Binoy Mar Davis er an. iD pyiellants, °

“ # Vn . . ¢

BOARD OF Scireor, ComMissioxérs or Morir Country,

ALABAMA ET AL. Appellees,

No. 20657,

July 9, 1962, .

° On Rehearing Jniv is, 1963.

Disseriting Opinion July OU, 1963.

. * - —_-, - * oes a ar .

Vernon Z. Crayford, Mobile, Ala. C. B. Motley; New

York City, for appelianss

“George F. Wood, Mobile. ‘Ala. Joseph FP. Johnston. Bir-

minghani.Ala., for appellees.

Betore Brows, Wispom and Beni, Cfreuit’ Judges.

Pen Curiam.

Plaintiffs here seek an injunetion by this Court pendin—

our determination of the merits of an appeal from an order

» by the District Court for the

Southern District of Alabama. This suit driginated wher

Plaintiffs tiled a class “action seeking the desegregation of

the Mohile Connty schoo! sVstem, Plaintiffs sought an

immediate order requiring the Defendant Schoo! Commis.

“+s o .

sioners to Submit a plan of desegregation within thirty

days. This motion wa- denied by. the Distriet Court. In

the alternative, Plaintiffs sought a preliminary and per-

- manent injunction prohibiting the further operation of seg. -

regated: schools. The Court took this motion under sab-

mis-ien and ordered bricts to be tiled within a specitied time.

Plaintiffs appeated from this ruling asserting that, the

failure to immediately rule on the motion for preliminary

injunction amounted to a denial of the motion. Om that

‘appeal, this Court beld that the trial Judge had not abnsed

. Fourreenth Amendment.

hix diseretion. Davis v. Board of NSehool Coniuissioner~

of Mobile County, > Cir. 1463, 31S Flzd 65.

Subsequently, the District Court held a hearing:and made

the following determination. By-its order of .dume® 24, the

Court dented Viaintitts* motion for prelituinary injunction.

The ease was set for trial on Novernber 14, 1803 and

Defendants were directed **to present at the trial * it

specific plan for the oneration of the schools under their -

authority and ¢ control ona racially non-dise rimuin atpry beasts,

consistent with the principies established by the Supreme

(court, to commence not tater than ‘the beginn ng of the

14-05 schosl vear.’! It is from this order that Plaintiff-

have appealed té this Court, seektng in the meantime an

injunction requ: ring the Mobile ¢ ‘ounty schools to commence

integration not lager than September 1963.

We are in agreement with -Plaintiff’~ theory. “The 4»

fendant Board ha~ not couie forward with an aceeptalle

Teason way the integration program should be further

délayed. No one disputes that the public School of Mobile

County are presently operated on a segregated basi-.

“Tt is now more than nine ve ar since this Court hehi

in the first Brown decision © °F abe U e483. 748.01.

GS6, OS L.Ed. S72. that racial segregation in state public -

schools. violates the be yual !? aoepctan (Clause oof th:

Sy a

“Given the extende ! timp whieh has elapsed, it is far

from clear that the maswdate of the second Browrs de

cision [| 49°U LS. 294, 7H S.Ct. TAB. 99 Ld. 1083) re-

“quiring that desegregation proceed With tall deliberate

speed” would today be fully satistied by types of plans

or programs tor desegregation of public educationa!

facilities which eight vears ago might have been deemed

sufficient. Brown never contemplated that the concep

of “deliberate speed” would countenance indefinite delay

in elimination of racial barriers in sebools “ * * 0"

Watson v. City of Memphis. 1963,.373 U.S. 926, 83

S.CL 1314, 10 L.Rd.2d 529,

“Now "°° * eight vears after [the second Brown dee ,

cision) was rendered and over nine years after the

first Brown decision, the eontext in Whieh we must

Interpret aud apply. this language? Hall deliberate

speed” to plans for desegregation has sheen signifi

cantly altered.” (oss v. Board of Edueation of City

of Knoxville, L063, 375 US. 6s3. $3 S.Ct. 1405, 10

LBZ. 632, ta

The District Judge in his memorandum opinion diseusses

Iwo principal reasons why preliminary jniunetive relief

shoutd not now be granted. The first is thet there would,

be an intpossibie adniinistrative burden placed on the schoo!

system. The second is the Court's belief, based upon ex

perience over the past several Years in other race evil

rights matters, that if this aetion is not too hastily taken,

the problem will work itseif eut with no strife or similar

CONSE MEICES,

For reasons which bear on both of them, we think neither

of these grounds ix sufficient. The administrative problem

is Not ont © ceated by the Plaintiffs Thev have for nearly

a year sought without success to gt the school authorities

to desegregote the schools. The fact that the suit Was not,

filed until Mare 1963%i. not therefore of controlling im

portance, As to the second cronind, there is nothing om the

present record to afford either the District Idee or this.

Court any.assurance that the requested formheargnee will

prodnee effeetice results. The Defendants Ahave : even

answered as vel. They have tiled a motioti to dismiss for:

failure to state a claim. Although it seems to be acknowi

edged on all hands that a racially segregated <ystom is stall

Jnaintained, the Dete ndants” legal posttion under this mo-

tion is that the Plainfitf< have not set forth a elaim entitling’

- them to reef. So tar as this record Shows, the Defendant

school authorities have mot to this day ever neknowledged

that (a) the present system is constitutionally invalid or

(hy) that there ds any obligation on their part yo make any

changes At any time. At-this late date the Pigintitfs, wire

represent Negro children, who are presently Bete denied

constitutional rights. are entiiled to minimum effectice

relief. With the trial date now fixed in November. it Mmenn-

that effective refiet is denied for another schoo! veaur with

ho assuranee that even at such dater. date anything. but. a

reaffirmation of the teaching of the Brown-decision Bod bn

forthcoming. The Plaintiff. showed a clear cause entit!

them te interim relief pending a final hearing, and it was

an abuse of thie District Court's discretion not to enter

a preliminary injunction,

The °° All Writs*: statute, 28 U.S.C.A. £1651, vives fis

= power to,gr ont the relief. sought by Plaintiffs. Stell

v Savannah ‘hatham County Board of Edueation, 5 Cir,

Hag os F.2d 420.. However, as in that ease. we think it”

more appropriate to frame the mjunetion and direet by

mandate that this injunetion be made the order of the

Distriet Court.

It ix therefore, Orpeney that the Distriet Court for the

Southern District of Ajabama enter the following judgment

and order:

“The Defendant, Board of Sehool Commissioners of

Mobile County and the other individual Defendants

a 5 ie

. (naming ther -pevitically) and their agents, servants,

employees, suceessors in office and those in concert with

them who shall receive notice of this order. be and

they -are hereby restrained and. enjoiied trom requir-

ing and permitting segregation of the races’ in any

school under their supervision, from anid after such

time as may be necessary to make areangement~ for

admission of children to such schools on a racially nen-

discriminatory basis with ail deliherate speed. as ré

quired by the Supreme Court in Brow ¥. Board af

Miatication of Topeka, H 1a, 349 UGS. 24, 63 4 ee apes &

9 Led. T0s:3, d

‘Ttis further ordered, adjudged and decreed thiat

. said persons be and they are hereby required to. make:

an immediate start in the desegregation of the schoo!

of Mobile County, and that a plan be submitted tothe

District Court by August 1, 1963, whieh shall inelude:

oa statement that the maintenanee of separate schools

for the Negro and whit+ children of Mobile ¢ ‘ounty shall

be comipletely ended with respect to the first grade

during the school year commencing September 163,

and with respect toeat. least one sneeessively higher

-additional grade efich school year thereafter.

a~—

—

The District ourt meev modify thi~ order to detor“de-

gregation of rural! schools in Mobile 4 ‘onnty until Septem

ber 10d. should the District Court after further hearing

conclude that special planning of administrative problems

for rural schools in the county make it impracticable for,

such schools to start desegregation in-September 1063.

ee - this order shall remain in effect until the final determi--

nation of the appeal ef the within ease in the Court of

Appeals for the Fifth Cirenit on the merits,.and until the

‘urther order of this Court. During the pendeney of this

order the trial court is further directed to enter such other |

lla:

and further orders as fnay be appropriate or necessary in

.in ¢arryeig out the expressed terms af this order,

The Clerk ix dirvetest to psstie the rrandate forthwith.

Biss. Circuit Jn dice (dissenting),

JI dissent. Twould support the-view of The District dine

that -the time ‘remaining before the opening of <cheol ce

September | is insufficient to make the eHandve from: a seygre.

vated” to it ipserres rated school svete: as recnud Pte

the chance at disrip lon of thie educational process in

Moblule hikels to lie encoutnternved itt poliatanainege and oft wing

‘the: peeessary chatives on sach chert) netics outweighs

th: damage whielr mas be inenrred by Plainstitl. in wait-

iy Another year. Thu-. TP would not bela that the [}i~

triet Jindge abused his discretion. (The Joss ef the sear

ean be made up obs requiring that two grades be desegre

vated beginning dm Ud. Po would goin in the order af at

encompassed Thy change, - .

Time for the effeetuation of ofderly school matage-

tient procedire sts essential. and we should bie caretual fief

too give Vike ter a eo “it! Lt yes | ty wecbpeneal sae lninistea

tion at this Jate hour. Rewistratief for the upeotnit rer bern

has been comple ted, pen" =chool officials and staff- ure in

‘the vaeation season. This is particalorty so where we are

pares ite O1 B tnotion in a ease not filed until Mareh, Des,

: (iy Petition tor-Rehearing so

Pen (rnsam. .

This matter is before thy

A ‘ourt on thie petitioners” iy

plwation for a rehearing.

July fh, Va. this Court bs mintidate directed the Pstrict

“Court to enter an injunction and order requiring the Board

of Comniissioners of Mobile Counts to submit to the Dis-

‘triet Court by August 1. Me. a stepeledder plan for de

~egresaiiise the - public schools in Mobile, starting with:

= | 2a ° ‘

the first grade in September 1963.0 Three days later, an-

other panel of the Court decided. Armesteong vo Board of.

Madueation of the City of Birmingham, No, 20595, 5 Cir., —

Bild 2 Inethat case the Court declined te issue an in-

sunetion periding appeal whichowould goa so far as to pro-

“wide *' when aed how the complete tlesesrevation of

the public schools may be accomplished." The Court's

matidate requires the Birmingham School Board te “sub-

mit by August 1H 165. a plan for an imipediate start

in desegregation by appl&ing the Alabanra Pupil Plaee-

ment Daw to all school grades. ° ‘

At this initial stage in the travail of desegregating

tine publie schools in Alabama, the Schoel Boards of Mobile

and Birmingham face substantially the same social legal

and administrative difficulties. We express nocopinien of

the merits ef Uniifeormity in school despyregation ais against

a school board's tailoring a plati, and a trial) judge's

shaping a deeree, tor it a particular school “system.

Bat we have reached the ‘conclusion that at this early

point in the levaleproeveedings. at a fifue when: ne tehool

‘hoardsin Alabama has formulated any, plan. for deseygre-

vation, there should not be one law for Birniingham and

another for Mobile. We have decided therefore to con-

“orm the Mobile order to the Birmingham rder,

Aceardingly, the Court, amends the judgment and

order of iuly 2000. issued as the mandate, by des

Le-ting the following paragraph :

‘it is further orderéd, adjudged and deerced

that said persons be ame they are hereby required to

take an immediate startin the deseyregation of the

schesl_of Mobile County, and that a plan be sul-

mitted to the Distrietteagt by Anensf 1. 1965, which

shall include a? statement that the iaintesance of

separate schools for the Negro and white ehildren of |

Mobile County shall be completely ended with respect

to the first grade during the school year commencing

‘ x loa A ig @

Septe amber 1963, and with respect to at least one sue- ;

_cessively. higher additional grade each school sear

thereafter.” : .

and. in lieu thereof, directs the District Ceurt for thie

-Sonthern District of Alabama to enter the following para

craph as its judgment and order.

‘It is further ordered,. sade and decreed that

said persons be and they are hereby required to sub-

omit to this Court net later thai’ August 1), 15, “a

plen under which the said defendants p ropose to make

an immediate start in the slesegregation of the schools

f Mpbile County, Alabama, which plen shall. effec.

tively provide for the: carrsing inte effect not ‘hater

than the beginning of the school year commencing

September 1965 and thefeatter of the’ Alabama

Pupil Placement Law. as to all school grades: with-

- out racial discrimination, including ‘the admission

of new pupils entering the first wrade,” or coming -

into the County for the first time, om a nenracial

hasist’ Augr-tus v. Board of Public Instruction, 49

Cir. 1062, 306 Fizd soz, Soo (that! opinion deseribes

sue ‘h a plan which ha- he approved ana is -operat- .

“ing in Pensacola,-Florida).’ , :

As in the Birminghasr decision, the order contem-

plates a full hearing before the Pistriet Court. The

Shiatried Court will therefore go forward with the trial

already fixed for November 14, 1965.

. Exeey t to the extent expres sly ory atit: al hie Te ein, the ‘ie ti-

tioners’ application for a rehearing is denied.

The Clerk is directed to jesue the mandate, as amended,

fortnwith. fy eee) ae eee . .

Bui. Cireuit Judge (concurring in part and dissenting

an part),

The modifieation Jv the majority of thefr prior order

iw this case, compounds error,—Of course, I agree to the

l4a

; +.

modification to the extent that it may alleviate disruption —

of the educational process in Mobile during the 19153-1964

-chool term.

My understanding of this latest order is not altogether

clear. Tt appears to simply require activation, under seme

plan yet to be worked out, of. the Alabama School Placement

Law which was adopted by the Legislature of that State’

“1 1997, and which was approved as constitutional on its.

face in Shuttleworth [sie] v. Birmingham Board of Educa- -

tion, N.D.Ma., 1058, 162 F.Supp. 372, affirmed Sos US. 101,

“4 S.Ct. 22103 L.Ed 2d 145. It is not likely that any

appreciable amount of desegregation will take place undér

thai law at this late date. The protective measures

assured by “Judge ‘Lynne in. the Armstrong case of a

hearing on complaints if and where the plan or - law

is adniitfistered on the basis of race on five days No-

tice is not present ini Mobile. [t is an inherently com-"

plicated law providing many factors which may be con-

sidered in makiag pupil assignments. We have only

recently eliminated two of them in the Atlanta school case

where we said -that the use of scholastic: standards” and

personality interviews asa basis in transfer and as-.

signment were illegal per se when applied only to Negroes.

"de?

Calhoun _y- Latimer, KCir.. 1005, 321 Ftd 302. Others

—wereeliminated or limited when that ease was in the,

‘District Court. Calhoun v. Board of Education, N.D.Ga.,

ISS FeSupp. 401. Working out a tieaningful plan will

ot be easy, and will require more than the cursory and

“perfunctory treatment the case*has received here.

Moreover, wliat was done in Birmingham may or may

not’ be relevant to Mobile: The ease theré had been pend-

ing inethe District Court some three years. “The Dis-

trict Court conducted a hearing and had certain repre-

centations from the school board as to how the Pupil Place-

ment Law would be administered. Here no party has

ever mentioned usittg this law. The District Court nas

never considered it. :

o lda

This case is set tes trial on the merits in Novem! er, oA

pending motion to dismiss is set at the same time. The

District Court, has orgeréd the school board to propose

at that time a plan for desegregation of* the school

. system beginning in: September 1944 within the teachings

‘of the Supreme Court deci ‘isions on that subject.

It has. been the position of appellants ‘that. their

ultimate right to a desegregated school system is ‘cast

in doubt by the pending, motion to dismiss, and ‘the

fact that the case is set for trial on the merit= even

though the school systen# is now segregated. One ot

the real thritsts of the-appeal is their contention that they

cannot be- certain that dese eregation will become a reality

in the school term comme nejng in Sevtember 1964 because |

of this posture of the case. An order of the type

originally entered but taking desegregation effective

With the beginning of school in site 1964, and

in at -least two grades, should serve to. dispel this

‘doubt and the reeerd warrants such an order. In [sic] war-

rants nothing more. The school board would have the

opportunity in the interim of, formulating a desegregation

plan, subject to court approval, and making ready for: the

good faith adaptation of the plat.

The modifieation has been neither sought nor considered

and will come as a great surprise ‘to all” It will in all

probability be ineffective © TP doo not understand the in-

ordinate hurry in this ease, It has énly been pending

three and one chalf months. It has been to this court

twice in ,that short) time...

Probably ne party will consider the relief granted or

tenied to be a victory, but what has been done is at ‘the

expense of the judigial process. “AX Court of Appeals

Should not sit. as “a District Court in chancery ‘to’

mold and enfer an equitable decree ‘affecting an entire

eschool system in a metropolitan community without hear-

ing from the partivs on the mature of the deeree, and

16a

without facts before it to serve as a hasis for the decree. -

The All-Writs Statute, 25 US.C.A., £1651, does not au-

thorize this. It must contemplate rules of procedure, }10-

tice, record facts, and an opportnnity to be heard, all after

“time for consideration by, the. District Court. It wpplies

only in cases: of emergency. proportions. To state tis

belief is to at once demonstrate that | cannot join in

thee procedure here, Therefore,, | must dissent; except

as Otherwise stated. with the admonition that more

constitutional rights will be lost than gained: Jn the

long run by, departure from procedums which, hate

etood the test of. time. nnd’? whieh are ao part ‘of due

process Od Jaw as we hive heretafore known If. In

fact. more may be eventually Jost in this vefy case.

While this appeal must have beon considered as

presemung something in the nature of a judicial emergeney

‘in’the beginning: otherwise it would not have been twice

Cadvaneed over the many other case> pending in this conrt,

it is plain to me tliat it now has no emergency propértions.

I Would remand it te the District Court for action on the

Iwisis of ‘reasoned and informed discretion im ‘the light of

‘necessary facts and* argument, consistent wth the law

in the preniises and the gnidelities which | have set

out regarding September [Sr

CAMERGN, Cirenit Judge (dissenting).

(on July 11, We, I requeste ta hearing of this case en

bane hy writing all of the Jndges of the Court. in aetive

. . “

service as follows: ¢ ‘

_ *Parsuant io Rule 25(a) of this Court, 1 hereby:

initiate: consideration by each of the Cireuit: Judges

in active service of whether to order a hearing or re-

hearing of this ease en bane. Tneluded in thiggnotion ix”

the reqiest that the issuance Gf the mandate be stayed

uuti} the attitude’ of. the members of the Court can

he ascertained and that the Chief Judge proceed

to poll fhe’ Court on this motion. *% 7% *

z ae

q So . i

ra . ‘

4 = ‘

Pniheg

IVa : °

*Toam of the opinion * * * that the ease. was

not legally advanced “for hearing. or, placed on the

docket for hearing at the time it wae hear, it being

my understanding that the .order- was signed by

Judge Tuttle on June 2sth after the: judgment of

the district court ‘had heen entered June 4th.

‘T- think, teo, that there ix” considerable donht

about the “jurisdiction of this -panel ‘to hear the

cise, Dts my understanding that this panel had un-

der consideration «before we adjourned for the B ae

mer the Theron Lynd ease * * %* Its right to cousider

and adjucieate the Davis case is, TD thinks subject to

serious quiestion, . ;

‘PT assume that the record before the Court in New

- Orleans was’ sent up under onr Rule 2514). which is

a substantial reseript of Rule 7a jy. Federal Rules of

Civil Procedure. That portion of our Rales refers

only to a motion ‘for any intermediate, order.’ dodo

not think the arder which this Court slirected the dis-

trict court to enter can be classified as an intermediate

order, It seems to me it is the equivalent of a final

ghidgment granting ail of the ‘relief Which the plaintrits-

appellants would beentitled to under a hearing on the

merits and, in faet, dispenses with a hearing on the

merits, , ; of yee

Por these reasons and others, including the faet

that J ‘see from the. press that the appellees have made

or intend to make cacmotion for a hedring en bane. 1

respectfully make this request.” ‘

The panel of Judges Brows, Wispem. and Bris filed two

per cariam opinions, one dated July a 16a) in which

Judge Brut dissented, and the second filed July ds..

"1905 in whieh Judge Bio. conearred in part amd dis-

sented in part. - .

Seing advised that a majority of jhe ‘me inbers of

this Court in active Service mi hat snppoert. Wiv request

mee

_«

for ‘en. bane hearing, +} tespeetfully dissent. from the

action of the members of the Court in refusing to grant an

en bane hearing. ‘The principles disenssed in my dissed

ing opinion im, No, 20595, Xrmestrong et aloov. Board of

Kdueation of the City of Birmingham, et al. 5 Cir. -

ed —. are in mV judgement controlling in this case “also

and badopt that Opinion asa part of this one,

The panel to whieh this case was assignedthy the Chief

Judve en anty 1, 1960) was a panel designated be a

former term -‘df this Court. Assuming that it 4wa-

empowered to aet, during the: intervening time, on a

ended, it Wontd not, in omy -opinion, have jurisdietion

to hear the present Case urider especial designation bys

the Chief Juege acting alone. As stated in the Arn

- . strong case, it seems to me elear from the statutes ate!

the Supreme Conrt decisions cited there and the Rules of

ths Court, that the assignf€at of Judges and of eases

for-hearing is a matter entriisted solely to the Court as

a body. g /

To hold that one Judge is vested with authority to tix

the time @ie place where a case is te be heard, and to

select the Judges who shall hear itgis in omy jadement, to

decide That one man his power in exeess of any whieh

bas been eommitted te any imedividual under this gov-

ernment of taws.

lt ix clent. moreover, that tasre is no showing heee that

the ease is exeeptional or egtremie or which demeon-

é ;

0 eee

Pi “The within motion for an injunction Dendinig appeal is heréis

» set for Hearing before a pantbot this Corrt to hevonvened in New

Orleans: Louisiana: Puly os. Me to {Flies immediately after the

hoaring in the ease of United States v. Lend. 5 Cin. S22 Ftd ua

This 2sth day of’ dune, Mou. | . :

i “Etnert PP. Tuttle

“Chie? Judue

is . Fifth Coreuit”

: - 19a

e . “~ “a .

strates a clear abuse of discretion or usurpation of jyedl-

cial. power such us . patel of this Court thought it di.

pire in Stell et al. y, SavannaleC hat har

! Baineation et al. Mav 24, 1963, SIS Fed 4 re

1 respectfully dissent. . :

‘ ,

UNTTEY STATES COURT OF APPEALS

ae FIPTH CURCT EL

- , July 1, 1M ;

‘a, ad a .

“DwichtglArvstresa. Denise Armstrone, James

Miove Nrmetronue., Minors. by Jamies’

Sr.\their father and next friend, et al. Appetlants,

v. ;

This Buarn op Mevestion of the City of Birmingham, Jef

_ferson County, Alabama. the, Present: Members of fhe

said Bogrd afd Theo Ro Wright) Stiperintendent ot

Schools, City of Birmiteham, Alabamia, Appellees.

Rehearing Denied En Bane Junky 22. 1963,

Dissenting @pinion Juaby Sa, Maes,

Oy Petition for Intervention and Stay September 6) 1960.

o @ - * - . . . . -* . a .

W. 1. Williams, Jr. Birmingham. Ala. Erne-t Dv

sol, SY. Jacksonville, Ila; (ons tatice Poieket Motles, New

York City, for appellant~._ , 7 ;

Jor. Jotnstou, Reid}. Barnes. Birmingham, Ala. fo:

On oe

Before VPorrms. Chie?’ Judet amtRivis and Giewrs, Cis

crit judges, : é

hisis. Cirenit Jude. ror ,

‘The submissieu is upon the appellant.’ motion for an

pune tier peridinir aepepmece Prors the tolbowurg

entered on the 2sth day of May is;

Jacnier!

{ ‘ounty board

Arms! rome,’

Armstrong,’

ro " 20a

“In conformity with the memorandum opiuon of

the court contemporanecously entered herein,. it 1s

Orvennr, Apsvparo and Drerreien be the court that the

injunetive relief for. which plaintiffs pray ins their

own behalt and in behalf of others similarly situated, .

; = He dnd the same is hereby dened.

edt is further Orvenep, Apscpcen and Drcreen bs

the court that judisdiction of this aetion is hereds

retained for the purpose of permitting the fling of

such supplermern al coniplaint. if any. as might be en Z

tithed to be presented, in case of any Mcoustitational

applic! ion of the Niadsamia School Vinacement Liaw

auainst the plaintiffs, or others siumilaris: situated,

or oof any other unconstitutional aetion on th

: part oot defendant~ against crea "Tt ois) further

Orono. Apacmgen and Diokekoe by the cagrt that the

issues tenele red bx any suppeberierptar! abgstsoaces wit

be given ao freferred setting oi the docket of thi-

court and will be heard on tive. days" soe to de.

fondant." - * , ly

The opinion of the court stated that.” :

“This court will net sanction discrimination by ther

ithe Superintendent and Board of Kalucation in th

name of the placement daw but ot is unwillitis to grant

injunctive weltes ubtil ther wood faith hiss been tested

aL: it shonld be clemonstrated that it: ha- bears Tne

stitinticniaalls cota ieder the settled autherttie-

“the court wonld be compelied to order the sul

Mission of 2 ae wregation plan fer its appreval”

The distriet court affirmed that both the Sifperintender!

and thy Board tad assured the conrf that rescalations wes

“ornina’ the assiqnminee anil tpirpeste rast pupils bre three Bee

miinghar school svstert had been in etfeet sine Bune Tas

for the purpose of tmplementing the Alabama hiw. and

found that suflicteit time remained before the” epenine

2la ; .

of school in September 165 for the processing of applica-

tons for assignments and fransters in behalf of interested

indi vidtaal~. . roe 5

The opinion further stated that after application for

ussranment or tramste Yr Was tiaede by aopupil, or these au.

theorized te aet in his bebalt, to the school beard, judicial

remedies for the denial of constitutional right. could be

pureued «af once in the United States District Court with

Ouy pursue state court retnedios. : an

The opinion continued: ; ‘

durisdietion of thix aegion WH be rotamer for the

ermiiting the fifi of such supplemental

PUrpase of |

complaint ans. as macht be ertitied to be presented,

Incase OF any Uncoostituhonal application of the Ala-

hamia Sehooet Placement baw deat the plaimtit<. or

others simiariy situgted. cor ef ans other nneconstith

tional aetren en the Part of defendants again-t them

Vhe issties tendered bs gan. supplemental complains

will be given a preferred settine on the docket oof thi-

court aned will be dieard on tive iliays Hotige to defer al

gut-."° °

The distract. court ferther oe tioned the faet that th

Superimgenaer ; ‘and the Board had assured the comrt that

they stand ready te comply with the law when ans

160 8s

individtiadl’ sets the aalmumistnative maechiners an moti

My oaffidavit of the Superiptenmebeat spoealgane oot fehl:

oP the? Besrsd trhed am thos Carat. ity. stated:

Tt lthe Boar’ Wiis died i tepw. Perepecarend bas clea!

With the matter inut proper and arderbys magtuner wpe

- applications pursuant te the laws of Alabama aud tn

sae, Neil’ et Uae Piatriet Court ay Qhis cian~ Ss

o . * - ‘ ~-i8 t

Couns aos ats “Oops 1! distri ( oil} ~Tsateut

Toore this comrd paats reali WMautetive pelte oo Ubeet cacdrsaaa

. -

istrative remedies provided therein {in the Alabama

Schod! Placement Law must first have beer exhausted.’

That ruling was, directls contrary to ae decisions —

of this Court. See, among others, Gibson v. Board of

Public Instruction 6f Dade County, > Cir, 1957, AG Pid

O13, 142 on second appeal, 5 Cir, 1950, 272 F.zd 763, 767 2

Holland v. Board of Public Instruetion of Palm Beach

The appellees urge also that the judgment shonid be aftirmed

because the plaintiffs have not exhafisted their administrative fem-

edies under the Florida Pupil Assignment Law of 1956, Chapter

31380. Laws of Florjda. Second Extraortlinary Session 1956, FPS.A

§ 230.231 [230.232]. Nefthed that nor any/ ‘other law ®an justity

a Violation of the Constitution of the U hited States by the require:

ment of racial segregation in the public schools. Se long as that

requirement continues throughout the public school systent of

Dade County, it would be premature te vonsider the effect of the

Florida laws as to.the assizament of pupils to particalar se hagls *

Gibson v. Board of Public Instruction of Dade County, 4 Cir1957,

465 ey O13, O14-915. :

200) the first appeal in thie case. we said that se long as the

requirement of racial segregation continites throughout the publie

school system if Is: pretnature te consider the effeet of the law

providing for the assignment of pupils te particular schools See

O45 Fld at pages 14S 915 “Abyvis muisiv. tiless some legally non-

segregate) schools are provided, there can be ne constitutional as-

signment of a pupil to a partion lar school, We do not understand |

tha: the Fourth Cireuit has ruled te the contrary” The net effect

of it: culings, as We understand themes that the desegregation

of the public schools may eecur simultaneously with and be

accomplished by the good faith apphieation of the Taw providing

for the assigninent of pupils to particular schools Tf that under

standing Is correct. then We rea bils are:

“3 Se. Carson v. Waritek. x Cir. 1956, 23s F.2d T24:

Covington v. Edwards. 4 Cir.. 105%. 264 F.2d 780; Holts

Raleigh City Board of Education. 4 ¢ ir. 1859, 265 F.2d &

‘Alien v. County School Board of Prinee Edward County, Va’.

4 Cir., 1959, 266 F.2d 507."

Gibson vo Board of Pathe: Instruction, Dade County, Fla... > Ctr

W999, 272 F.2d 765, 765 pe

aKa opr.

0) mee

Board of Publie fpstruction, » Cir, 160, 277 Pivd 379,

County, Fla. 6 Cir, 15s, 255 Bid 720, 732.5 0 Maniings

2. 375. Augustus vo Board of Pablic fnstruction, 5 Cir.

1, oIMi Revd S62, 869: Bush ov. Orleans Parish Scheo!

Board, > Cir. 1, BUS Ftd JO 490.5008 The district

“court hoa instead, te rely upen a line of decision< fron

A three-judge district court’ recently held that the Alabama

School Placement Law is not unecotistitutional on its facc, bet eon-

chided ther ruling with a clear note of warniitz:

Bee

“All that tas been salt in this preset opinion ‘must be

» limited to the-constitutionality of the law apon its faée. The

School Placement law furnmhe- the legal machinery for an

orderly administration of the public schools in a constitutional

manner by the admission of qualitied pupils Hpon a Dasis of

. indvyidual. merit without regard to their race. or color, .We .

must presume that i will be se administered. If not. in some

future proceeding it is possible that itpmay be declared un

constitutional inf it. application. ~The responsibility rests pr:

marily upon the local schoo! boards, beat ultutiatels upon all,

of the people of the State.

Nothing said in that opinion confliets mn any way with this Court’.

earlier statement relative to the Floridn Pupil Assignment Laws

’

“8 9 @ © Neither that ner any others law ean justife: a Sieober

tion of the Coastitution of the Vaited Stateschy the requir

ment of racial segregatiet: 7 the public schools.” Gilwon +

Veard of Publis bustfuetion of Dade Counts. 5 Cir. 1957. 245

F.2d 913, 914."

Holland vo Board of Public Instruction, 5 Cir, 1955, 255 F.

73° : - 4

(Un. «

This Court, like both Jndge Wright and Judge. Ellis. con-

P e ’ .

demns the Pupil Plaggrient Act when. with a fanfare of trunipets,

it is hailed as the Histiament for earry ing out a desegrewat ben plan

Wh'--all the time the eatire publ knows that in-faet *t is being

Jsed t. mabitain segregation by aliowoige a littl token vrata

tion When the Act is appropreitel: applied. te individ ge

individuals, regardless of Traee. it has te’ Necesna ty relation to

desegregation at all" Busi ov. Orleans Varish Scoot bend a

Cir, 1962, 308 Ftd 491, 40

ethe Fourth Cirenitl which, aecording to the district court,

‘continued 14 apple the doctrine of eshaustion of ad

“ministrative remedies fairly and lawfully conducted.”” In

Gibson vo Board of Public Instruction, supra, 2720 F.cd

TH, TOT, no 4, we noted many of the same Fourth Cirenit

decisions and stated our understanding that they were not

contrary to the deeisions of this Fifth Cirenit. In any

event. on June 3, 103, shorth® after the district court's

decision, the Supgeme Court of the ‘United States put

bees copek chebaate the. prepositvor thet, ins schoo! desegrevgu

tion case, ois net tecessary to exhaust state udiministsn

tive remedies before seeking relief in the federal courts:

7 “We have previously indicated that relief under the

(ivi! Haight ~, Net oma pot) be detouted heenutises relpet

was not first sought under state hiw whieh provided

aoreniuendds We ‘stated in Monroe vo Pape. aaa Ls.

1G7, ISB. 81.0. 475, 482, 5 LB 492:

edt is ne answer that the State has a law. whieh

if enforced wonld give relet.. The federal renmiecds

ds supplementary to the state cemeds, and the latter

the fed

" nem toi ty first seomacht. am refused before

erai Ole ts mvoked 3 ;

“The cause ef “action alleged here i pleaded in

terms of 42 USC. gsc * °. .

That ds the statute that was ‘invelved in Morrae

Me Pape, Supra s dtd Wy reviewed its histor. at dength

im that cane. 265°US: 171 & bea. STO 473, -

Lod. 48. The purteses were xe ver al, rw Bele

override eertuin Kites of state laws. to provide a

>The distrier court cited Covingron + Edwards. 4 Cir. 144%

og Fd S80 Holt + Ralene City Board of Udueation. 4 C1

Hor G6 Fd Of MeCow e Gaweemsboro City Board of Education

gor (ee, 285 Fota er Jeffers y Whitley. 4 Cir 1462, 400 Food

G21 Wheeler. Durtiam Cis Board ut Bitivation. 4 Cir Die

Siw) Fad 80) :

ow?

a aH

remedy where state law was. inadequate, ‘to provide

ca federal remedy where the state remedy, though

adequate in theory, was not avaiable ini practiee’ (id.,

74. S82 S01. 477). and to provide remedy in the

federal courts supplementary to ans remedy any

State might have. Tdi, ISQIS5, <1 8.01. 480-48u.°

oe 90° The right alleged is ps plainly fedefal in

origin and nature as those vindicated in Brown v.

Poard of Kauention, 347 TUS. 485. 74 8.01. 680, Os

Ld. 873, Nor is the federal right: in any way en-

tangled in-a skein of state law that mast be untangled

before the federal case ean proceed. For petitioners

ussert that respondents have beet und are depriving

them of rights protected by the Four. eenth Aimend-

ment. Tt ts.immaterial whether respondents" conduet

-is legal or illegal as a matter of state law. Monroe

Vv. Paqy. sapra, 305 TOS. ITI-IST. ST OSACL 40%

Such claim- are entitled to be adjudicated in the

federal courts. Monfoe vo Pape. supra, 365 TUS, at

IS5. ST S.C at 481: bravle ve Browder, S52 0 US. (05,

Te S.Ct 145.0 LBL 4, affirming 142 Sapp. 707;

Borders v-Rippy, > Cir; 240 Fold 268. 271. Cf. ¢ ¢

Lane vv. Wilsom S07 TUS. 268, SSCL S72. 83 L.Ed.

VISt: Smith v. Allwright -221 TUS. 640, 4 S.e1 57,

SS L.Ed. $s7; Schnell v. Davis, 336 TLS. 955, 69 Suet

198, 95 Dk ei 1088 affirming ST ESupp. e202 Turnes

v. City of Memphis. o69 Us. co0, 82 8.01 SO. TLR.

3 roe

MeNeose 6 Board of Bducation for Commnnite Unit

’ “were

School District PST. 80 St. P40

Phe distriet eourt’< opinion referred te the remetance of

any Negro ahild “te Vaaives Thee ahiitaatives see Terapiscinice calagouat

= =

" As the district cotirt revogtized ino its option, the preset action

als proceeds tinder 42 17S C8

the integration of the public schools."’ The burden of

initiating desegrega.jons does not rest on Negro children:

or paresits or on Whites, but on the School Board. As said

in Brown v. Board of, Ediffation, 1955, 340 US. 204; 299,

79 S.Ct. 755, 750, WO LAB 10S3:

‘Full implementation of these constitutional prin-

ciples may require solution of varied local school

problems. School authorities have the primary respon-

sibility. for elucidating, assessing, and solving these

problems + courts will have to consider whether the

action of school authorities constitutes good - faith

implementation of the governing constitutional prin-

ciples.” :

“7

The long-standing order of responsibility. is ‘first the.

schoo] authorities, then the local district court, and lastly

the appellate courts."" “Rippy +. Bordees, 9 Cir, Por, 2)

b2d 690, GOS. oF

Furthér, as we said reeent!: iti speaking of the Atlanta

public: schools: .

“Our decision “must also be rendered upon a con-

‘sideration of the most recent pronouncements of the

Supréme Court, Goss v. Board of Education of City

of Knoxville, Tene. supra (35 S.Ct. 1405). and Wat-

sor y¥. City of Memphis, 273 U.S. 526, 85 Ct. 1514,

lo WRd.2d 529, which make it plain that the time

‘ayailable for the transition from segregate’ to deseg-

regated scheol systéms is, with the passage of -vear-

since the Brown cecisions,- beeor.ing more sharply

limited. Indeed, we so” stated in an opinion theretu-

fore rendered on May 24, 1%. Davis v. Board of

School Commissioners ef Mobile County, 5 Cir. 31s

Filtd 93.°°

Calhoun v. Lat: ely Cir., — F.2a —.

e _——

“a

In the light of the forpsoing well-established principles

-of law, we go to the undisputed faets as found by the dis-

‘trict ‘court:

‘The white population of ‘Birmingham-is 205,620.

the negro, 135,627. There are & high schools desig-

- nated * White’ with 409 teachers and 10ST pupils; 5

high schoe's designated ‘Negro’ with 278 teachers and

6,748 pupils; 50 elementary schools designated *White’ ”

with TS] teachers aml ZO.57S pupils: 42 elem ntary

schools designated ‘Negro’ with HOT teachers and

26907 pupils. Never at any time has a negro pupil

heen assigned or transferred to a <chool designated

‘White’ or-a white popil to a school designatest-

‘Negro.’ Without. exception white ins tiggtional per-

sonnel have been assigned onle to schools designated

White’ and negro instructional personnel only to

schools designated *Negro.t White’ schools are lo-

eated with reZerence’ to the concentration of white

population and negro sehools with reference to the

concentration of negro population. There are ovez-

lappings in the geozraphieal areas involved wherein

there. are white “schools in.closer proximity to the

residences of negro pupils that necro schools. The

» reverse situation obtains with respects to white pupils.

Notwithstanding, the custom, usage and practice his-

toricalls followed, sanetioned and expected by Super-

intendent and Board to be followed presently, result in

_Whjte pupils attending white schools atid negro pupils

negro schools. ad

“Td summarize. it graphically appears from the

testimony of I Theo Ro Wright, Superintendent of

Birmingham Publie Schools, that he and the Bir-

mingham Board of Education have operated a segre-

‘gated school svstem: based upon race in thes rest are

deing so now, and have formulated no plans t6 dis-

“continue such an operation.” '

one . ‘

This litigation has now been pending for more than

three vears. There must, at the very minimum, bea good

faith start toward according the plaintiffs and the ‘mem-

hers of the class represented by them their constitutional

rights so long delaved. Hewever, whether the delay which

has already oecurred is jusfified or not, it cannet be-com- .

pensated by hasty or precipitate action under the order

of this Court. Our action must be dictated by the Cou. .

eopt of ‘deliberate speed™* to the extent of not causing},

undue or unnecessary confusion in the administration of

the Birmingham publie schools to the injury of all of the* — %»

pupils,. white aud black. In the case of the’ Pensacola,

Klorida, School Sytem, we said on July 24, 1962, about -

ayear ago: ‘Tt is probably too late, without undue, con-

fusion, to require the elimination as to amy grade of such

ddual distriets in time for the 1962 fall term.'’ Agustus

v. Board of Publie Instruction. Cir, 1962, 306 F.2d S62,

Soo This same thought now hol Is true as to the Birming-

haar public schools.?

”

We decline, therefore, to issue an ‘injunction pending * -

appeal which would go so far as to provide that the

madiienance of separate schools for the Negro and white

children of Birmingham shall be completely ended with

_respeet to any grade, or when and hew the complete de.

sexregatian of thespnblie seh ols may. be accomphshed.

Such matrers can be more appropriately determined. apor

a hearing of this appeal on its merits when a full record-

will be available. It affirmatively appears-at this time,

however, on the fa + oft the opinion’and judgment of the

- *.

7 Superintendent of Schools of. the City of Birmingham . Theo

Wright. testitied bv afidavit-upon ‘the present m@fion at seme

Jength, conclucting- °° © © © the attempted og of any

fone grade in the.svstem at the commencement of te fall term this

year Would. be ereatiy disruptive of the whole school system. and

™

La)

extremely impracticable and injumious. if not impossible, for the

reasons stafed herein, and o& other afidavits of Slant." There

Was no cvontroverting Testimony

. Ua

district court, that the plaintiffs and the members of the

class répresented by thei are entitled to more than mere

expressions of opinion aml have a right to a judgment

legally enforcing the desegregation measures on which the

Board has virtually agreed,

In line with the procedure which we sirgaee as to the

Savannah, Geor; via, schools in Stell, etal’ vy. Savannah-

Chatham County Board of Kdneation, et ae 9 Cir, No,

Yhad, SIS Ftd 425, it is therefore Orne rep that the Dis<-

trict Court for. the Northern Distriet of Alabama enter

the following judgment and order

Thee defendants, The Board of Edneation of the

City of Birmingham, Jefferson County, Alabama, the

present members of said Board (naming them spree

cifieally) and Theo R.- Wright, Superintendént of

Schools, City of Birmingham, and their agents, serv.

ants, employees, suceessors in’ ofiee and those in eon.

cert with them who shall receive notice of this order,

Ie and they are “hereby restrained and bnjoined fron

requiring segregation gof the races in any se howl nnider

‘their supervision. frem and after such time as mists

% be necessary to make arrangements for admission of

Children to such schools on a rae lally nondiseriminss

tory nas six With all deliberate speed, iis Peus ined } tN the

Supreme Court in Brown v.. Board of Edueation of

Topeka, 349 US, 294 (75 Sat 753, 00 Loa boss’.

“Tt is further ordered, wd jndged and deereed that

; said persons be ane they are here Ty require “l to sub

mit te thi< Court not dater than Nugust 1. 14523, it

plan under which the “aid de Yendants propose to make

an immediate start in the desegregation of the <chools

of Birmingham, Jefferson Couniy.- Alabama, whieh

plan shall etfectively- spied for the carrying inte

as vot lates than the beginning of the <chool vear

commencing Septe mil er U0) amd thereafter of the

Mehama Pupil Placeme nut Law as te all school grades

‘ ,

‘the mandate issue-forthwith.

? |

ot ya

" of new: pupils entering theefirst grade, or coming into

the County for “the first time, on a nonracial basis,"

Augustus v. Board of Public Instruction, > Cir. 1962,

308 F.2d 862, 869° (that opinion. describes such a plan,

which has been approved and / As rn in Pensa-_

cola, Flor ida).’ . Pe

. ”~

Nothing contained in this opinion or in*the otder di-

rected to be issued’ by the district, court is intended to

_mean that voluntary segrexation: is unlaw fil or that the °

same is rot legally permissible. .

‘This order sl a effect until the final deter.

mination of the appeal of the above-styled case_ in -the

‘Court 6f Appeals tor the Fifth Cireuit on the ne ge

untit the further order of this Court.” Duriag the pend-

eney of this order the district gourt iw further directed to

enter such other and further orders as may be appropriate

or necessary in earry ing out the exp ressed terms of this

order. ae any ;

In. view of the,already long delay, it is ordered that

es r,

Motion granted.

: TUTTLE, Chief Judge (coneurring specially).

l,of course, join Judge Rives in the action ‘taken on “the ad

appellants” motion for injunction pending appeal, and ‘|

join him*in the order that is embodiéd in his opinion.

| agree w hol@e artedly with. all that is’said in his opinion,

except es it bg on the relief that is to’ be granted in

_ September, 1960.

It is‘now, as it has been from the start, the duty of the.

Board of Education to assume the primary responsibility ES

putting an end_to racially segregated schools. Brown vy:

Board of “Edueation of Topeka (1955) 349 US. 294, 299,

to S.Ct. 7535, 99 L wed. 1083. In a situation where such a

ola.

béard of education has completely failed to make such a

start, and, fortuitously or otherwise, the’ first appeal-

able order entered by a district court comes wate in the

school: year that the ‘Board. then attempts to say it is too

late to do anvthing by the following, school year, I think it

-is the duty ofan appellate court to’ require a maximum

effort by the Board to do what the law clearly requires of

it, rather thaw to: accept as a substitute for performance

a plea that the Board’ has not made necessary prepara-

tion t& permit orderly transition by the opening of the ,

fall term of school.

-T believe it wanld not be consistent with what this Court

has previously required in other situations if 1 did not

express the view, strongly held by me, that as a minimum

_the Board of Education of the City of Birmingham SS

be required by an injunction of the trial court to arrangé

‘that at least one grade of the pubiic &ctiools of that city

be completely desegregated by the abolition of dual schoo!

zones pending the appeai of this ease on the merits in this

Court. See Stell v. Savannah-( ‘hatham County Board of -

Education, et al., 5th Cyr. No. 20557, 3 318 F.2d 425 and see

Davis et al. v. Board of School Commissioners of Mobile

- County et mT Cir, 824 F.2d 356. De agian a®:

majority of the court does not require this refief, 1 join

in the order as written by my esteemed colleague, Judge

Rives. ;

Gikwix, Cireuit Judge (dissenting).

My brothers of the majority have spoken in such inac-

enrate and disapproving | terms With reference te the opin- ”

ion and order of the distingitished trial Judge of the North-

ern, District of Alabama Who tried this casé for several

days, that | find it not only. impossiblé to agree with them,

but also necessary to write this dissent-in order to inform

those who may be interested of my epinion of the actual

holding of the District Court.. The eases cited by the

majority condemn the opiniow wriiten by them. The opin- |

\ 2+) >

? rg diag veit ;

- < : or

ion and order of the District Caurf considered together as

they should be, destroy every reason ‘assérted. in the ma-

jority opinion for for the unusual action taken ‘n_ the

circumstances of this case by the: issuance of an injunction

pending appeal on the merits,

it. should be noted quickly that the ‘majority opinion

leaves little to be decided when the case reaches this court»

on. fie merits. Under the guise of **injunction pending

appeal’? that opinion substantially decides the case and

renders moot many questiois which could arise when the

case reaches the court for final decision after a review of

the record. © It. is recognized that injunetions pefiding

appeal may be used in e cece ptional and ertreme cases

- where there is a clearsabuse of discretion or usurpation of

judicial power. Such’ extreme, harsh and unnsual aetion

should never be taken as a substitute for a proper deci-

sion on the merits... The action in this, ease is” taken with.

out any pre fense ‘that the court’ has taken xo much was a

~ hurrie d glance at the reeord. There has not-been sufficient

time for*the-reeord to reach the court. In effect: my

brothers. of ‘the majority have concluded that this is an:

extreme and exceptional CASE, involying either an abuse of ‘

discretion or usurpation of judicial power. — Accordingly.

they, have ordered the District.Court to issue aS judgment

and order’? enjoining the Superintendent and Board of

-Edueation of Birmingham, and have directed *** *°* that

the mandate issue forthwith.”’ This drastic action ha-

heen taken ‘within a few days following the sybniission ot

the case on the motion for injunction— not on “the merits

As late as June 3, 1963,-the Supreme Court stated in Goss

v. The Board of Education of the City of henoxviile, Tenn.

373 ULS. 683, 83 s Ct. 1405, 10.1. Ed. 2d GOL, a se ‘hool seure-

gation case, a recognition. of:

“ee * * the muffifarious focal ditheulties and ‘variety af

obstacles’ which might arise in this transition * 5°."

a P @

soa : aes és

and the court furthe Yr stated:

‘* fm reaching this result we are not wimindful of Us - ons

—— — involved.’ ™

In the natant ease, this court has not even had thezoppor-

tunity to review the evidence which was before iheMtrial

——S judge for the purpose of eseeler sit any ‘variety of ob-

stacles’’ or ‘deep-rooted peoblems”’ which may be in-

volved. Thisgourt does not have sufficient facts. before it,

in the absence of the record, to render a decision “* guided

by equitable prin¢iples”’ anel ‘characterized by a practical

° ~ flexibility in shaping its remedies” -and°to exercise the

requisite facility: **for ud justing and reconciling’ public

"and private needs. Sip ‘

I, THe Oprxton and Orver or Tue District Covrr

The majority opinion quotes certain ‘excerpts from the

opinion of the court below, but the excerpts bisa do net.

‘fairly represent the opinion of that court. “The action of

the District Court in its, memorandum opinion! and order

may be summarized in ovtliné form as follows:

‘(a) The Districte Court stated that. the **starting point

in any school segregation case must be Brown-y. Board of

Education, 347 U.S. 483, 74 S.Ct: O86, 9S Lid. ST3 (L954),

the ee ar of Ps ye in Brown v. Board of

Fducation, 349 U.S. 204, Os . 103, 99 L, wed. LOSS (1955),

er sedababeinat ative pinion. : ooper Vv. Aaron, 308 U.S,

1, 73 S.Ct. 1401, 3 Lied. 5,19 (958 y"", and reeognized

that it was bound by the holdings in the cases cited.

4 660-0 @

(bh) Proper notice was taken of the fact that dix:

trict courts’ have -been invested with. and-are expected

honestly and fairly to exercise discreGon in the enormous

task of desegreg rating public ‘hols.’ * The opinion asserts

1 See Brown vy. Board of Education of Tepeka, 349° U.S. 294,.

aS. Ct. 753. oa

that the course to be followed in the discharge of such task

was ‘staked owt’? an an opinion written by Judge Rives in»

the case of ‘Shuttleswaerth v- Bi rmingham Board of Educa-

tion, 162 Supp. ot) (NA). Alas yons) aff’de by Supreme:

Court 358 ES. 101, 79 S.Ct D213 L..Ed.2d 149, wherein it 1s

unequivocally held: —

‘All that has been said in this present opinion must

he limited to the conistitutionalit y of the Taw wpa its

» face. The School Placement Law furnishes the legal!

machinery. for an orderly administration ‘ot the public

schools im a constitutional manner by the admission of °

qualitied pupils under a basis of individual merit with-

out? regard to their race or color: We must presume

that it will be se admini. tered. If not, in some future

stitutional in its application. The responsibility rest>

primarily upon: the jocal school boards, but ultimately

upon all of the people of the State.”’

proceeding it is possible that it may be declared uncon-*

tha, Alabama School Placement age A furnishes the

legal machinery for ar-erderly administ ration of the public

schools in ‘a constitutional manner by the admissioal of .

aualitied pupils upon a pasis of individual merit without

regard to their race or color.’ he court held that the

pupil, or those authorized to act in the pupil’s behalt,

should first. apply for assiqnmenf oY transfer; and that

before the court would grant injunctive relief, the

administrative remedies provided by the. Alabama: act

as modified and limited by the Court’s opinion and eras"

must first be used. : .

(d) The opinion clearly holds that after application for

assiqnmert or transfer is made by a pupil, or those author-

ized to act in his behalf, to the school board, judicial reme-

dies for the denial of: Constitutional rights can then be.

pursued at once in the United States District Court with-*

out pursuing state court remedies. The court observed the

F i -¢ ;

; erat

‘fact that this Court of Appe vals as been alert to strike

down deviations by district courts from the Constitutional!

principles. laid down in the Brown-case, and: asseftted that

the court had carefully read.and considered all of the deei-

- Sions by this Court of Appeals relative to the subject.

(e) The District Court correctly concluded that this

Court of Appeals? has not héretofore had cause to consider

whether the Alabama jaw has a permissible s scope of opera-

tion in the desegregation of “public schools, but it was noted

that the Fourth Circuit had dealt with a Similar. state act

in the-case of Carson v. Wariiek, 238 F.2d 724 (4 Cir. 1956),

which was cited with approval in the Shuttlesworth case.’

(f) The opinion and order squarely state that diserimi

. nation will not be. tolerated, and Tises the following jan-

guage in so holding:

“This court will not sanction discrimination by them

[the Superintendent and: Board of Edueation | in’ the

name of-thie placement law but it is unwilling to grant.

‘injunctive relief until their good faith has been tested.

ly it should be demonstrated that it has’ been uncon-

stitutionally applied, under the settled authorities the

court would be compelled to order the, submission of a

desegregation plan for its- approy Ris

The District Court aaa that both the Superintendent.

and the Boare had assured, the Court that regulations gov-

erning the assiqnment snd transfer of pupils in the Bir-.

-minghaim school system had been in effect since June 1958

for the purpose of impleme nting the Alabama law; and

found that sufficient time remained before the, opening of

school i in September 1963 forthe processing of applications

for assidnme nts and transfers in behalf of inter vested in-

div iduals. | .

nee —&

2 The Sp atslenwonth case was decided by a three judge District

Court and not by this court. The Shuttlesworth case was affirmed

by the Supreme Court. ;

Soa

(g) Jurisdiction of the action was retained ter the pur:

pose of hearing any complaint svhich might ‘be presented

oe * * in case of any. uncon@itutional application of. the

Alabama School PlacementsLaw against the plaintiffs, or

others similarly situated, or of any other unconstitutiorial

action on thy part of defendants against them.’’ The trial,

court ‘menti ned the fact that the Superintemdent and the

Board had. assured thr court that ‘** * * they stand ready

to comply with the law when any individual sets the admit-

istrative machinery in motion.*” By affidavit of the Super-

iniendent speaking on behalf of: the Board filed in this >

court, it is stated: ae K

“It [the Board] was and is now prepared to deal witht

the matter in a proper and orderly manner upon appli-—

cations pursuant to the laws of Alabama and the decree

: of the District Court in this ease.”’

= —

(h) In ease any complaint is made by any merson, the

issues tendered. theréhy are to be given *** * * a preferred

‘setting on the docket of this ‘court and will be heard on five

dars notice to defendants.”’

It is my considered opinion -that the action of the Dis-

trict Court fully complies with both Brown decisions, the

decision ithe Aaron ease, and is in complete accord with ~~~

Ahe previous holdings of this court. The trial court found

as a fact that acéording to the. uncontroverted record before

the court, that no Negro child; of anyone authorized to act

in his behalf, had applied for enrollmant we or transfer to

~.. any school designated White, and pursuéd the remedies .

_ afforded by the Alabama statute. It was further. found

as 2 fact that such retuctance to bring about integration -of

the public’ schools was not a ‘*blind adherence to tradi-

-tion’’,-but—that the- undisprted _evitdener—in the record

(which this ‘court has not yet seen) clearly shows that.

there is ‘very strong opposition to the mixing of the*races

in the schools. of Birmingham ov the part of citizens of all

races.” The, District Court rejected forthwith the opinio

—

Bee

or experts in the fields of psychology and anthropology in

‘whatever form insofar as they constitutesan attack upon —

the rules of law laid. down by the, Suprente Cou la? the

Brown and Aaron decisions.

A casual analysis of the opinion and-judganent of the

District Court should: convince anyone that the court has

not followed the“Alabama act blindly, but has used it onl?

insofar as it-**furnishés the legal machinery*’ for the de-

segregation of the-schools in a ¢ ‘onstitntional manner. The |

asignment and transfer of students from school to school,

and the right tu make objection to ai assignment already

made were covered ‘by the opinion. In their brief. the

Superintendent and Board admit and affirmatively assert

that the provisions of the Alabama act and’ the decree of

thé court ‘tare not restricted in apyilication to any grade or

‘grades * * *°’; that it ‘**.* * authorizes ‘application for

initial assiggnme nt to any schout by the entering first. grade

studtnts;’; and that there is ‘** * * no limitation on the

number of pupils who may apply for assigninent or trans-

fer. In my opinion, the plan outlined by the District Court

not only meets the standards reeentiv expressed by this

court in the ease of Calhoun vy. Latimer, 5 Cir., 32f F.2d.

'302,"but makes more liberal provisions with’ respect: to’

__assigament, transfer and objection to assignments previ-

ously made, beeause such provisions are applicable to all

‘grades in Birmingham. ~““~ *

A fair and’ proper. analysis of the ruling of the District

Court will reveal that it is not subject tothe eriticism that

- students’ cannot make application for assignment’ to a

school of their choice on entering the first grade as fle-

nounced in Bush v. Orleans Parish School Bos ard, 30S 4 2d—-

— 491, 5 Cir. 1962—Sueh applicants for assignment or trans-

fer are not impeded by dual schoo! districts gas was im-

volved -in Augustus v. Board of Pub. Inst. o® Eseambia

Co., 306 F.2d 862. 5 Cir. 1962: th’ plaintiffs ate not re-

quired to comply with the details of the Alabanja Place-

ment Law asx coudemned in Mannings v. Board of Pub.

” ‘ :

ona -

Inet. of Hillsborough ‘Co. Fla., 277 F.2a 370, 5, Cir. 1960;

- nor is there a failure to afford @ reasonable and conscious:

opportunity to pupils. to apply f or admission ‘to any sebool

to which they are eligible as eongemned in Gibson v. Board

of Pub. Inst. of Dade Co., Fla., 272 F.2d 763, 5 Cir. 195s.

It is true that the Brown decision laces first respon-

sibility to ilesegregate on the schoo! authorities ; but if, the

school authorities do not act, the district courts are fe-

‘quired to act. Admittedly, the ‘school authorities in Bir-

mingham: have not submitted a plan of deségregation. -

Their failure resulted in this lawsuit, and the District Court

c-has new directed the authorities to proceed with desegre-

gation as provided by the Alabama law and the decree

of the District Court. By ‘retaining jurisdiction of the case .

and ordering that any complaint will be. heard on five days’ _

notice, the District cburt has provided an effective and

speedy method of supervision. We know of no plan or

other remedy thich is calculated to give better relief. The

‘failure of the school authorities to act dges not require

" injunctive relief in cases where a method of desegregation

is outlined and. provided as was done in this case. Plans .

presented -by school boards are rarely ever approved in

toto. Even after plans are submitted by school authorities

-and revised by the courts, litigation seems to continue.

. ¢, , * : . . i

| I]. Toe Masorrry OPTNtox —

(a) Injunction’ Pending Appeal:

‘There is an‘aneient and classic principle long recognized:

by all courts with reference to the. granting of injunctions

whether at the trial or appellate ldel, forcefully stated

by Justice Baldwin, sitting at Circuit in the ¥ear 1830,

“in the case of Bonaparte Vv. Camden, SA. R..Co. (CCN.

1830) Fed.Cas.No.1,617, p. 821: F

_ ‘There is no power the exercise of which is: more

delicate, which requires greater caution, deliberation,

a. ape

“ne ey

and sound: dise ‘retion, or more: ‘cman’ ina doubtful

case, than the. i issuing an injunction; °° °.”’

Rule 62 F.R.Civ.P. deals with the question of .injune-

tion pending appeal. Subsection (c) of that rule relates’

» the powergof district courts to: issue ‘such injunctions

pending appeal. Subsection (g) of thé same rule deals

with the subject on the. appellate level. If is conceded that

a District Court (to.which the Federal Rules of | Civil

Procedury: geyerally apply) ‘max. grant—imjunctive relief ,_

pending an appeal, as previded by subsection (¢). Such’

ix. the holding of the Ninth Cireuit in United States

F]-0-Pathie Pharmact, 9 Cir. 1951,492 F.2d 62. In

. struing the rule and comme nfing on the last cited case, one

___of the leading commentaries on federal ‘practice and pro-

cedure s fates the rule to he as follows: * /

‘*In that. case the court also pointed out shat sgpellids

courts are not as well eeuigped as the trial court to

enforce an order of the ora question. Thus Rule

62(¢), allowing the appellate curt 4» make such orders,

- should be regarded as suppler yhtary to Rule 62(c).

‘In‘the normal case*partics shgild_ be required to seek -

. relief first from the trial court, w&h the appellate court

acting only if the ‘trial agit has erroneously re: fused ‘

to grant such relief.’ * UStuphasis added)

a 3 Au

% ’ Sf

“Vol. 3 3 Ped ‘Peastine &: Procedure, oes Fa. (iter. by

" Wright) .§ 1373, p- 466

It, should be emphasized and made crystal clear that there

is no showing hefore ns that. the appellants’ in this case

sought a relie fi in the trial court, ~ ¥e

8-Cumberland Tel. & Tel. Co. v. ix “PubsServ. Comm, 260 U.S. °

212, 43 S.Ct. 73, 77, 67 L. Ed. 217. isa case in which the Stipreme

Court rec ognized the fact that the trial court should first be ) Semes

for ad ‘h injunctive relief.s ®

/ “We, of course sa pprec iate that. notwithstanding a denial of

an injunction of its meritS,-a court may properly find that

- °

- F es

o -*

; ees : ¢ 40a -

‘ a ;

_My brothers of the ‘majority, have direéted the issuance

of a mandatory injunetion, which, af necessity, is of an

interlocutory nature, because this case has not been reached

Gi its merits. A clear statement’ of the law is contained

in W. Aw Mack, Ine. v. General Motors Corp.,’7 Cir. 1958, .

260° F.2d $86 as follows: s !

Re flax ice hee mandatory injunctions are. rarely_issued and

NN interlocutory mandatory injunctions are. even more

tarely issued, and neither except upen the clearest

equitable grounds.”” or he

See dlso Miami Beach Federal Savings & Loan Ass'n. Vv.

Callander, 5 Cir. 1958, 256 F.2d 410, The usual case arises

upon, an appeal from an order of the trial court granting

or denying a preliminary injunction and even in such cases,

the scope of review is limited. In re Tucker Corp. (Veen-

kant v. Yorke), 7 Cir. 1958, 256 F.2d 808; Mytinger &

Casselberry, Ine. v. Numanna Labs. Corp., 7 Cir. 1954,

pending a final determinatiog of the suit on the merits in a.

court of last resort, a balanee of convenience may be best

secured by maintaining the status quo and securing an equi-

table adjustment of: the finally adjudicated rights of. all con-

cerned, through the canditions of a bond. Hovey v. McDonald.,.

109 U.S. 150, 161 [3 8. Ct. 136, 27 L. Ed. 888, 891]; Equity:

Rule No. 74. Rul thegau wh ich is best and most conveniently

‘able to” exercise the nice *séretion needed to determine thes

balance, of convensentr is the one which has considered the -

. case on its merits and, therefore, is familiar with the record.”’

_ (Emphasis added )

See also Peay et al. v- Cox, 5 Cir. 1951, 190 F.2d 123, wherein the

court was dealing with the quest ion of injunctions and the exhaus-:

tion of administrative remedies and there held that an injunction

‘should ‘not issue. Tht court coneluded that state remedies which .

are administrative as distinguished from those. whieh -are judicial

should first be exhausted, because the exhaustion of administrative

remedies does not result in the matter becoming res judicata ;

citing with approval Bates, et al. v. Batte, et al., 5 Cir. 1951, 157

F.2d 142; Cook v. Davis, 5 Cir. 1949, 178 F.2d 595; ‘Shinholt,

etal. v. Angle, 5 C ir. 1937, 90 F.2d 297. ue at

“=

—.

fF Oy ——- Eke

215 F.2d 382; hg e et al. v. Cl

160° F.2d 35; Vol. 3 Fed. Practice

(Rev. by Wright) § 1373. ‘

& Perec dread Kd.

In directing the - District Court to issue a mandatory

- injunction pending determination of ‘the appeal in this ease -

on the merits, the majority claims. that it is acting ‘‘in

line with the. procedure which we fallowed *: **) in Stell

_ etal. v. Savannah-Chatham Co. Board of Education et al.,

5 Cér., 318 F.2d 425, May 24, 1963. (In making such an

assertion, the majority is clearly i error beeause | it. has»

overlooked the fact that’ the appeal in Stell .was ‘inter-

locutery as-provided by 28 U.S.C.A. 1292(1), from a judg-

ment of the District Court denying a motion for pre-

liminary injunction. The relief granted in Stell purports

to have been granted under the All Writs. Act 28 U.S.C.A.

"1651(a). That opinion recognizes that the All Writs Act:

was intended to be used only in the exceptional case where

there had been an abuse. of discretion: or usurpation of |.

judicial power, and should be used only in ‘‘extreme cases”?

. The authorities there cited, Bankers Life & Casualty Co.

v. Holland, 346-U.S. 379, 74 S.Ct. 145, 98 L.Ed. 106; and

* LaBuy v. Howes Leather Co.. 852 U.S. 249, 77 S.Ct. 309,

1 L.Ed.2d. 290, do. not ‘support the action of the majority

- in this case.

All'3 cases, Stell, Bankers Life, and LaBuy, involve

interlocutor ¥v appeals relating to the denial or. granting

of interlocutory relief. It°was never intended that, the

All Writs Act should be used as a substitute for appeats,

-and this is true ey@n though hards ship may ‘result from

delay. In any event, a heavy. burden is ‘placed upon those

who petition, for the writ to shoaw that their right to its

issuance is ‘‘elear ‘and undisputable”’ , - Although the writ

sought in Baikers Life was a wr if of iedieiane: the court

was speaking of the All Writs Act, 28 UsS.C.A. 1651 (a)

when. it there observed:

‘vsler Corp., 7 Cir. 1947, _

°*%

2a P

«* * © (Congress must have realized that in the course

of judicial decision sonie witerlocutory orders might

he errongous, < \(emphgsis. added) Ae «2

The court assumpd the existence of the difficulties of whieh

petitioner there éomplained, resulting in¢the creation of

many legal ‘and practical problems, butthe court observ ed:

“we * © but’ Congress must have ‘eontemplated those

conditions in providing that only final judgments are

nee:

The Court concluded :

“But it is. established that the ‘extraordinary writs

cannot be used as substitutes for appeals, Ex parte

‘Fahey, 332 U.S. 258, 259-260, [67 S.Ct. L558, 91 Y.Rd.

-2041-2043)] (1947), even though- hardship may result

from delay and perhaps unnecessary trial, ig

“States. Alkali “Export Assn. v. Unitéd States; 325°".

196, 202-203, [65 S.Ct. 1120, 89 L.Ed. 1554, 1560,. 61.

(1945) ; Rocky v: Evaporated Milk Assn., supra, {319

U.S. 21], at 31 [68 S.Ct. 938, 8 7 ..Ed. 1185]; and wwhat-

se may be done, without ‘he writ may not he’ done

with it.. Ex parte Rowland, 104 U.S. 604. 617 [26

L.Ed. 861, 866) (1882).” *4 (Emphasis added)

_ ‘Praditionally, injunctions nadie appeal have heen —

tienell in cases of extreme emergency, to avoid mootness,

to preserve the status quo, to protect the juri<diction of

the court: and in.the leading Cases on the subject, if nat

fall, injunctive relief pending appeal is granted only after

the. trial court has refused to grant interlocutory relief.

. Such a request was inade in the Stell case. No such action

_—

4 See also Casiiaitanit Tel. , Tel. Co. v. Seondelai Pub. Serv.

Gf Brice 260 U.S. 212, 43S. Ct. 75, 67 L. Ed? 217; and in re Phila-

i delphia. &' Reading Coal & ‘edi Co., 103 F.2d 901, 903. (3 Cir. |

1939); and Gree nev. Fair, 314 F.2d 200 (5 Cir. 163).

thi : rs 42a avs ens

was requested of the trial court in ‘the instant ease. Not

only is it unfair and inconsiderate for an appellate court

to grant such relief pending appeal when the trial court

has had no opportunity to pass upon the question, such re-

lief should never be granted as a substitute for an appeal.

If passing upon injunctive relief, the court should‘take no

action which will preclude fair. consideration on the merits.

‘As stated in -Mesabi Jron Co. v. Resérve Mining. Co., 8 Cir.

1959, 270 F. 2d 537 :

he wee a appellate court ols not to determine cru-

cial ——— conditioning the merits of the case * **,"?

oe.

If. this j is the, law in cases w here’ interlocutory relief i: is first’

sought in the trial court, such a rule should be more str ietiv

followed in cases where no interloctutory relief w as sought

in the lower court. Prior to the instant cise, such has been

our holding. As stated in Miami: Beach Federal Savings

& Loan Ass‘n, supra: 7 | ° ms

We have repeatedly held that an order for a fem-

porary injunction does not and cainot decide the

merits of the case.’ °°) \?

T's

This court has recently spoken concerning the éxtraordi-.

nary remedy of. injunction pending appeal in Greene y.

Fair, Feb. 18, 1963, 314 F.2d .200, and> there clearly stated

the controlling principles:

“The reason for the sparing use of this’ power is ay)-

parent. - ‘Litigants are, given the opportunity to try

their cases in a district court ‘and they vt given. an. *

unlimited right of appeal to the Courts ofAAppeal. The

rules of-this Court make possible a prompt hearing of

all regularly docketed appellate.cases. The rules pro-

vide for accelerated hearings in cakes in which cause

therefor is shown. The vindication, of private zights ,

“by litigation necessarily entails sgme delay. Laymen:

_ and courts alike regret any delay i in the vindication of

FN right that, isnot the natural and proper result from

“the érderly handling of the litigation. Historically

and traditionally within: our system of justice, appel-

late procedure ¢alls for the: shi pi of a case, the

furnishing ef the tri anseript of t ecord ‘to the ap-

pellate judges, ‘a full brigfing by ‘the appellant, with,

in opportunity for response to be made by the appel-

Jeo. and oral argument after ‘consideration of . the

records and briefs by the Court. The time requtted.

toe prosecute an appeal in ‘this manner is recognized

“ba ill to be time. wel] spent in the anny case,’

(bh) The ‘Paling and \ Mandate of the Majority:

The majority apinion asserts that nothing “eontained

therein is to be construed as enjoiming or restricting voliyn-

tary seg ‘egation. This Court is unequivocally committed

to the proposition “that voluntary segregation. is permissi-

ble. . Tae order and opinion before us for review do not re-

_ quire segregation, but most emphatically state that any

action onthe part of the Superintendent and Board *re-

quiring segr -egation.avill not, be tolerated. Accordingly. i

is difficult for me to see any useful purpose in issuing “the

“extraordinary ‘writ of injunction pending appe: al. .As a

matter of fact. in the case of Rippy v. Borders, 5: Cir: 1957, °

250 F.2d 690, this Court specifieally held that a district

court should not issue an order enjoining the school hoard

from ‘“permitting’’ segregation. Briggs v. Elliott, E.D.

S.C, 1955 (three-judge court composed of Parker and

Dobie, Cirenit Judges, and Timmerman, District Judge),

. 132 F Supp. 776; Avery v. Wichita Faths ‘Independent

" Schooi Dist. 5 C ir. 1957 (Judge Rives), 241 F.2d. 230;

Borders v. Rippy. 5 Cir, 1957 (Judge Rives), 247 F.2d 268;

Boson v. Rippy. 5 Cir. 1960 | Judge Rives), 285 F.2d 45.

As a matter of fact, the opinion and order clearly state

that the District Court ‘** * * will not sanction diserimi-_

nation * * 74" and the doors of the court are held open

. = e i -

toa

‘to hear any complaint ofs** * * any unconstitutional - “ip

plication of the Alabama School Placement Law against

the plaintiffs, or others similarly situated, or any other un-

constitutional action on tae part of the defendants against

them.”’ (Emphasis addod.)

The | casey, cited in the majority. opinion, particulary

Gibson (2 ‘apipeals), -Holland, Mannings, Augustus, and.

Bush, all denounce “the requirement of racial segregation

in the public schools.’ (Emphasis added.) In the first

Gibson appe: al, in speaking of. the Florida law, it Was.

stated. “** * * neither that nar any other law can justify

a violation of the Constitution of. “i United Statés by “ps é

requirement ‘of racial seqreqation in the public schools.

(Emphasis added.) To the same oftee was the second

ibson appeal.” pe opinion aye order now hefore us for

‘ :

ee Se

*in the first tibson case, for example, there was a rule of the

board directe i] to the. superintendent, yrincipals, and all

personnel, advigine them that. the public school sysfem of

scho

eted ona nonmnregrated hasis Tn the second Gibson

appeal, Judge Rives states that the racial factor wasimminent in

the consideration of the dssiguiment and transfer of pupils under

the plan there being considered. For examole, the application eon-

tained a blank space after the word *Sehool’’, and did not permit

‘

‘att * * * eonsecious prefe © see for continued segregation on a

voluntary basis."’ It was also sti ited that cerfaimsforms and School

records continued té emphasize “White and ‘‘Negre’?: and it

wag finally held thi it for all practical purposes“. * * * the require-

ment of rae “iil segregation in. the public sehools continue dj at tne

time of trial.’ (Emphasis added ) ty

Tn Holland, Judge Rives reaftirnggd that the Alabama Schoot

Placement Law is appreved ; Dut as to the Florida Pettpil . Assign-

ment Law, cited the first Gibson case as to ** * the requirement

of racial segregation in the publir schools * *° ar See Majority

opinion. é ;

The Mannings case related to a procedural question. There the

court dismissed the complaint without ‘affording the “plaintiffs an

“opportunity of making proof ot their allegations. . Accordingly.

te ; *

County, Florida ds will contimie. to be operated, maintained

‘ dha

. . ° . : a 7 . % ; . :' i

review doa not require segregation, but provide a means ot

. orderly desegregation.

The most Keeent decisions bearing on the issues before us

are two cases from our owil court, the Stell case, and ¢ ‘al-

houn v. Latimer, 5 Cir, 821 F.2d 302; and two Supreme -

Court cases, both decided on June 3, 1963, MeNeese v.

. «Board of Edeation,. involving an Ulinois statute, .an?

, vy. Board of Edueation of Knoxville, Tenn., 83 S.Ct.

1405. In addition: to the - distinguishing features in the

Stell ease which we have heretofore. mentioned, a reading:

of that opinion will show that admission and espena at

schools in Savannah-¢ ‘hatham County, Georgia, Wase re-

giired on a raeial basis, The opinion further stated ii

evidence was admitted and considered w hich *** * * tended

to support the thesis that compliance with the Supreme

Court's decision (Brown v. Board of Edueation) would

Hye detriment: al to the Negro plaintiffs and the white sti-

dents in the Sav annah- Chatham County school systetn."

The so-called Atlanta ‘Plan approved in the Latimer case

supports the deeree of the District Court. here involved.

As a matter of fact, the deeree of the District Court an-

thorizes a procedure for desegregation as to ali 12 ‘grades,

which the Atlanta-Plan does not. This | is not a eritieism of

the Milanta Plan. The Supreme ¢ ‘onrt and the deeision

‘ny Latimer. as well as numerous.-other. cases) reeognize

the well known tact that all eases are not alike. ">

whatevs r the complaint afeowed was considered? true undeP the

eres sina “a? na The complaint alleged compuisery racial segregation.

e In Anwustus, the “Wiorida Pupil Assigrment Law was still under

atrack and each year the Board passed a resolution assigning eaeh

pupil back to th ® school which be had pre iously attended, The

district . om tim Avaustus found that the racial factor Was a con-

“ sideration (a the assignmesit of students and that the Placement

Naw was being used fer that purpose :

In Bush, two district mdges amd the Court of Appeals found

. that the Plas pment Law there invelved was °° © * © being sed To

* ee? ahd there was no approval of the

. Piacement Law there involved such as the approval given the Ma-

bama Placement Law on Shuttlesworth,

maintain segregation

Ait

In the MeNeese ‘ease, the court was considering an ad- ;

‘jninistrative remedy provided by the Hlinois school code.

First, the court decided not to apply the rule announced

in Burford v. Sun Oi! Company, 3h) USS. 315, 65° S.Ct.

1098, S87 L.Ed. 1424 relating to abstineyee by a feeleral.

court in cases where state administrative remedies are

made available. ‘As to that question, the court found,

We have, however, in the present case no underlying

issue. of state law controlling this litigation.’’ The court

reasoned that ‘© * * * it is by no means clear that Hiinoi-

law provides petitioneys with an administrative rem:

edy sufficiently: adequate to preclude prior resort to a

federal court for the protection of their federal rights.”

The court concluded that the Hinois Jaw was no remedy

at all! MeNeese asserts that ‘fi ]t- would he anomalous to

~eonclude that such a remedy forecloses suit in the federal

courts when:the most it could produce is a state court

‘action that would have no such effect:"" The opinion ren-

dered sby the District ‘Courtsin the instant case does not

authorize or tolerate the. procedure eritieized in the Me

Neese tase. ‘Footnote: 2 of the District Court's opinion’.

provides, ‘After administrative remedies before the schoo!

- board have been exhansted, judicial remedies for deniuil

of constitutional rights may be yiursued af once in this

court without pursuing state court remedies.” (Kmphasi-

added) The MeNeese case didsnot hold or intimate that

_®1t was pointed out in the opinion that -hefore the question of

segregation-in a school on account of Trace could be presented to the

Superintendent of Bublic instruction, 50 residents of a school dis

‘trict, or 104) whichever is desser. were required to file a complaint

‘Any final decision by the Superintendent wes subject oO review

by the courts. The Superintendent himself apparently had ne

power te order eorrectitxcaction. His only function was to in--

vestigate, recommend ‘and report, He could give no remedy. ile

coultl make no controlling finding ef fact or law, and his reeom

mendatisns were not required te be followed by any. court) or

executive order. Numerous other deficienci¢s in the Hlineis law are

made clear by the opinion.

Asa ‘

it was unlawful for a district court fo require limited ad-

ininistrative proeedure such as that required by the holding

of the trial court in this case. Regardless of what we say,

school systems must be operated -by. school superintendents

and school boards, or by. some administrative ageney. All

adnfinistrative procedure is not unlawful. Indeed, schools

cannot operate without administrative procedure. As

stated in Latimer, ‘The courts are il] equipped-to run the

schools. fi

In the Gross case, the difficulty complained of related to

tranetfer provistons of the schook desegregation plan. Ax

there stated, *** * * by thé terms of the transfer provisions,

ca student. upon request, would be permitted, solely en the

basis of his own race. and the racial composition of the

school to which he has beer assigned by virtue ot rezoning,

to transter from such school, where he would be in a racial

minority, back to his former segregated school where his

race would be in the majority.”? The transfer system there

nnder attack was held to work only to the end that segrega-

tion would be perpetuated.” Transfers were available only

to those who wished to dttertd schools where their race ix

in the majority and *'* . * there is no provision wyereby

a student might transfer upon request toa school in which

his race is i the minorit, unless he qualifies for a ‘good

cause’ transfer’? The court concluded: | Pr at

PWe note that ifthe transfer provizions were made

- -available to all. students regardless of their race atid

regardless as well of the racial composition of the

school, to which -he requested transfer we would have

an entirely different case. Pupils could then at therr

option (or that of their parents) choose, entirely free

of any imposed racial considerations, to remain in the

*school of their zone or-transtfer to another.

* * * _* e o*

“Phis ix not to say that appropriate transfer provi-

sions, upon the parents’ request, consistent with sound

Sap

school administration and ng based upon any sthhe.

imposed racial conditions, would falls we ha

. - e

T find aie al the defects in the opimior and order ef the

District Court which are condemnéd in Goss,

‘ Il. Dray axp EMERGENCY ~

Considerable emphasis is placed upgn the anatter of de: ;

lav from the time the suit was initially filed in the District

Court on June 17, 1960, until a final decision was rendered .

on the merits on May 28, 1968. Briefs of the appellants

mention this delay and the majority opinion places empha-

sis on it. During the course of oral argument, appellants.

were interrogated by the court as to the delay involved, ariel

the court was assured by-counsel that no point was now be-

ing made with respect to delay. The matter continues to

arise however, in spite of the fact that we do not have the

record before; us to determine -if there ‘was unnecessary

delay. There is nothing to show that the parties litigant

sought an earlier hearing. We judiciaily know of the exe ol.

lent record of-the U.S. District Court for the Northern Dis-

trict of Alabama for the expedient dispate ‘+h of business. If

there has been unnecessary detay in this ¢ Ise, it constitutes

‘the exception rather than the+tle Pe cise of Nelson ¥.

Grooms: 4 Cir. 1962, 807 F.2d 76, may reveal some tacts’

touching the question of delay. In the Nelson- case the

parties sought a writ of tandamias. against U.S. District

Judge HM. 1H. Grooms, because he continued the Nelson case

pending hearing in the Armstrong case, rather than grant

the petitioners’ application for preliminary injunetion fifed

on June 13, 1962... The Nelson ease was decided by a pane!

‘of this court on August 17, 1962. In the Nelson ciise-it was

alleged that the Armstrong case (presently before us) had

heen pending since. June 17, 1960, but it was asserted that

counsel for Armstrong were W. 1. Williams, Jr: of Bir

mingham and Ernest D. Jackson, Srvot Jacksonville, Flor-

ida: whereas, counsel for Nelson were Constance Baker

‘

— —

Motley of New York, and Orzell, Billingsley ¢ Jr. and Peter

A. Hall of Birmingham. That fact was alleged as u reason

why the cases should net be consolidated.? The Nelson

case is no Jonger before us. because the plaintiffs have

moved from Birmingham and that case has been dismissed.’ -

“No attack had been made on theaction of the court with

respect thereto. Presently, in this case, the Armstrong:

case, Attorneys Williams and Jackson still appear of ree:

ord asx counsel for Armstrong; but in addition, George

White of Birmingham and Constanee, Baker Motley. [sic]

Jack Greenberg and Leroy D. Clark, all of New York, are

also counsel. No criticism is made, of the litigants or the

_ Jawyers involved as to the arrangements made fer handling

the cases. Of Course, the litigants ard. the lawyers are.

free to deal with each other. It is a singular ‘fact hew-

‘over, that at least two of the attorneys who originally filed.

the Armstrong case remain in it and so fflar as we know, |

no complaint was ever made of the delay involved. In

JIndge Grooms’ order it is recited that Judge Lynne would |

likely hear the Ae@instrong ease in October 1962, and the —

hearing was held int October 1962.8 Judge Grooms’

was entered in June 1962, and therefore everyone knew

of the proposed hearing date for the Armstrong case as”

early as June 12, 1962. On the other hand, one of the.

attorieys who handled the Nelson case where complaint

of delay was involved, and mandaimns sought. now appears

order —

7We quote from the petition’ for mandamus in the Nelson ease

filed be the same eounsel who orally argued the Armstréng case,

‘<Connsel forthe plaintiffs in the Armstrong case are not the

same as counsel for the petitioner here. Counsel for the plain.

tiffs in the Armstrong case are: W. L. Wiliams. Jr. 1630

/ Fourth Avenue. North. Birmingham. Alabama, and Ernest D

‘Jackson, Sr., 410 Broad Street, Jacksonville, Florida.”

8 The hearing before Judge Lianne was voncluded the latter part

of October, and the parties were given time to file briefs. in addi-

tion, the reeord of the testimony had to be transeribed.

ola.

in the Armstrong case. So far as we are able to determine

from anything before us, no complaint has ever been made,

prior to this time, of the alleged delay in the Armstrong

éase, Courts are often reluctant to force parties to trial

when the litigants on both sides prefer not to proceed. to

a trial, and many times cases are deliv ‘ol for the conven-

ience of the parties or for other legitimate reasons. Usually

~a change in counsel actively handling the case will result in

delay. We cannot determine these questions when w 0. have

not seen ‘the record.

Ce rtainly, there has been no delay in this court, On the .

26th day of. Jane 1963, this court considervd six (6) CASES.

all anslaned for argument: on an cméraqency basis. The—

six (6) eases are as foliows* , yee: ux

. ad + a P «\ . ae id , $ . :

1. Armstrong et?al. v. Board af Edueatisn of the City,

gf Birmingham, Jefferson County, Alabama, et al.

Decided in Distriet Court. on May .28, 1965 notice of

appeal filed une 5, 1963; xrotion for injunction pending

‘appeil filed on June 3. 1963; order assigning the case for

oral argument on June/26, 1965, ‘filed on June 5, 1962: and

full oral argument Was heard-on June 26, 1963.

3. W. G. Anderson et al. v. City of Albany et al. 9 Cir,

321 F.2d 649. .- _s . oe ;

Filed 8 July 24, 1962: the District Court he ard 3 vol

umes of testimony (over 1 SOO pages) and entered an order’

» Febraary 14. 1963; motion for in

or in the alternative te advance

ro argument on the Merits filed

dismissing the Gases

junction pending appeal

the case on the docket f

May ol, 1962: on June 5. 1963. an order was filed assigning

the case for hearnig on the tnerits on Inne 26, 1963: and

on June 26, 19635, the case Was extensively arg on they:

mera. .*. . ‘* i

This case relates to injunetive proceedings against tr

City of Albany with respect.to certain public facilities. One

alu

of the chiet compiaints ot the appellants when the suit was

initially filed, was the fact that the City of Albany had in:

effect ordinances requiring segregation of certain of the

facilities involved. . At the time ot argument, all such ordi-

nances had been repealed am&3there was ho compulsory

segregation of such facilities. In addition to extensive

oral arguinent on June 26, 1963, another petition, seeking

“an injunction pending appeal was, he ird before Judge Bell

and denied by him on June 13, 1963.

3. NAACP v. Thompson, Mayor of the City of Jackson, ©

) Mississippi, et al, 9 Cir, d2l F.2d 199.

Filed June 7, 1963: he: ining condue ted and relief f denied:

Uby U.S. Distriet Court on June 11, 1963; motion for. in-

junction perding appeal filed in this court, on®June 12,

1963; arder enter@® on June 14#2°1962, assigning the case

for hearing on‘the motion for June 26, 1963, at | Ww hich time

full argument was heard... ~~ ‘

Tho rélief sought is an injunction against the Mayor and

city officials of the City of Jackson, Mississippi, restrain-

ing and enjoining them from interfering with parades,

protests, street demonstratiénsand from arresting Negro

eitizens who refuse to leave private pbasinesses upon being

requested to-do so.

4. In the Matter of Application of Brown v. Ravtield,

Chief ef Police of City of Jackson, “Mi&sissippi (fn the

Matter of Application of, a hards y. Revfield), 5 Cir., 32 uD)

F.2a96. ; ‘

Petition for writ of habeas.corpns filed on June 7, 1963:

hearing eondueted and writ denied on June 12, 1968, at:

which’time the U.S, District Court refused to certify prob.

able cause: on June 13, 1963, a Judge of- this court signed |

a eertifieate of probable cause; motion for immediate hear-

ing filed on June 14, 1963; on June 14, 1963; niotion zranted .

and case Was assigned for mammals hearing on June 26,-

«6

dent . : *

1963; and on June 26, 1963, extended orai argument was

heard, : |

P ; x

This writ of habeas corpus sought the release of two

Meive citizens whe had been arrested in gonnection with

street demonstrations. No- effort was made to exhanst

” state remedies as required by law. because it was alleged

‘that “amembers of the various state eourts’’ of the State

of Mississippi could not give a fair hearing to the peti-

tioners, and that.an effort.to- obtain state re smedies would .

be futil® The petition also complained that the petitioners

were confined in segregated jails in contravention of their

constitutional rights. Aecording to affidavit of the Re-

~pormlent Rayfield, hoth wetitioner r-appellants were released

from custody-on Janes, 1963, by posting with the Clerk

ofthe Munie ‘ipal Court-of the City of Jackson, Mississippi,

an appearance bond in the sum of $100.00 for each of the |

- pellants. .

_ Kennedy Vv. OWwen, Cirenit Cosrt C ler. and Registrar.

Je iforson County, Mississippi. et al. 5 Cit, 32) F.2d 116.

(7 cases : consolidated) Vatiow apniications were filed

secking an order of the District Court compelling the pro-

dnetion of ree cards by clerks and registrars. Said petitions:

were filed on various dates, but some were filed in ‘the

month -6f May 1963 :- District Mourt held. hearing, and

entered deeree granting partial lief and denying some

relief sought on Jie 11, 1963; notice of appeal filed June

18, 13 2 motion for summarv_reversal filed in this court

June 4) 1963: order filed June 20, 1963. assigning the

cause for oral argument on June 26, 1963: and on June 26,

1963, extended oral arenment was he ard.

By reference to opinion already released, it weil Te oh.

served that the-only. aynestion re lated to the snfficiencey of a

demi ind by thre Attorney General which was addressed to

the parties in their capacity as clerks only: whereas, the

parties hel ! the ome position of elerk and registrar.

)

Aa.

;. United States v. Dallas County, Alabama, et al.

Complaint seeking injunction filed in U.S. Njstriet Court

‘for’the Southern District-of Alabama at 4: 30 P/M. on June

96, 1963; relief denied on “June 26, 1963; notice of appeal

filed June 26, 1963, and application nv bile to this court for

injunction at 9:00 P.M. June 26, 1965, at which time - ‘fall

oral argument was heard, — ot

Tn. this proceeding ‘the United States soumt to enjoin

the Cireuit Solicitor ofthe 4th Judicial Cireuit, the County

Solicitor of Dallas County, the St# Judge hav ing juris-

diction of the case, the Sheriff of Dallas County, Alabama,

and Dallas County, Alabama, from proseeuting a 19 year

old Negro youth on a charge of resisting - arrest and e-

gaging in conduct caleulated to cause a breach of the peace.

Although the alleged offense was committed on June 17. —

1963, and: the defendant ‘arrested on that. date, no effort

was made to, enjoin the presecution until June 26, 1963.

Tt should be noted that in 3 of the eases outlined, relief

was sought in the U.S. District Court. action ‘taken by the -

District’ Court, the case appealed, and full. oral argument

heard b¥ this court in 19 days or less. Opposing litigants

were required to appear before our court on unusually

short notice, without sufficient time, in some cases, to pre-

pare a brief. Some triefs were hurriedly prepared, trped .

and ‘filed on the day the case was submitted to this court.

renerally, administrative matters of the-eourt, and eases

whieh seek emergeney relief, are handled by the court with-

_out-formal oral argument. In the 6 cases mentioned, full

and extended oral argument was permitted.

There is another’ factor which I feel it is my duty -to

mention as a matter of information to attorneys who ap-

pear before our court.’ The arguments presented in some

"See ati of Judicial Ethies, -American Bar- Association.

“Canon No. 11: Handbook for Judges (4 ‘arroll, Ed. en) ) Amer-

ican. Judicature Society, p. 7. ri,

> dda ; e R

of the cases mentioned above contained insinuating over-

tones unfavorably reflecting oa both the Federal and. State

Judiciary, in certain localities, varying in degree from the *

barely audible tinkling of a distant eymbal to the erashing

noise of sounding brass. It is fundamental that lawyers

owe full allegiance to their clients and should use their

learning, skill, diligence, devotion, and ‘** * * all appropri-

ate legal means within the-law to protect and enforce legiti-

mate interests.” Lawyers are required in -fhe discharge

of their duties .to disagree with judges, to allege error, to |

attack the judges’ rulings and decisions, ‘and even to. render

just and proper criticism of such rulings, decisions and

judgments. But the Office of Judae, whether it be Federal

or State, requires the respect of the legal profession to the

end that the dignity and independence of the judiciary may

be maintained, regardless of the indit idnal wie may seeupy

_ such office at any given time. It is not appropriate, in my

‘opinion, for lawyers, who are officers of the courts, to con-

demn all of the courts of a statp,-or to refleet improperly

upon the courts generally by condemnation of such courts

as a class or group: Such arguments are highiy improper.

‘and are disapproved. si

At the time the above: mentioned 6 cases were being

heard, there were pending in-this court 260 cases which

could be ealendared-and heard during the summer recess.

-117 of such cases could be calendared@luring Jnily. ‘Fur-

-ther. in addition to the 260 ‘cases which have not been sub-

mitted thefe were, on June 26, 1968, 287 ¢asex which had

already been submitted to the court ‘but not decided. Same

- of the 2 237 cases were argued and submitted over a year

ago: 40 were submitted before January 1. 1965, and the

balance were submitted since’ January #1963. These 257

10 Gee Cove of Trial € ‘onduet _ American College of Trial Lawvers.

1962-63. :

" See Canons of Professional Ethies, American Bar Association,

Canon No. 1.

. % j ° ‘ .

™N

_ business affairs, taxes, property,

ae eee 6a ee

\ . -

cases are now “being considered by the cotirt. All of the

eases combined anake a total of almost 500 cases pending

in this court as of June 26, 1963. Consideration ,of. them

will come in‘the hormal course of the court's business, but

the, 6 cases outlined above received spegial ‘emergency at-

tention. The workload of this.court is¢urrently the heaviest

of any. Court of Appeals in-the nation. The record of this

court in hearing and deciding cases is as good as any.

aay cannot. long endure if certain clises are to be |

given & cial attentfon and’ considered on a preferential

basis. In the vast number of cases now pending before.

this courtrare matters of tremendous importance involving

ckronal injuries, life and

liberty. With, deference and full respect, } feel it is my

duty to express the opinion that the 6 ch&ses which were

‘fully argued on Jane 26, 1963, were not of such overwhelin-

ing pAportance as to take precedence over all other cases.

then pending ain this court. BN oes ee

. Pi

od TV. Es Banc HEearine . :

. Because ‘of the importance of this case -hoth as to the

motion. for injunction pending appeal and the merits of

the case on appeal not: yet heard, because, of the extraordi-

nary relief granted which conditions the merits of the case

before an examination of the record by the court, the.

‘

hurried and emergence? action taken by the court, the

‘

unique procedure involved, and for other reasons Which

appear to mé sufficient, I hereby request, as authorized by

Rule 25a of this court and the applicable ‘statutes,’ that

ROBE APE Ime as re ot

298 1%s.¢cA. $46. ‘Assignment of judges; divisions ; hearings :,

quorum :

fe) Cases and controversies shall be heard and determined,

" by a court of-tivision of not more than three judges. unless

a hearing or rehearing before the court in bang is ordered by a

majority of the cirenit judges of the cireuit ‘who are in active

service, A court in bane shall consist of all active. circuit

judges of the circuit.” . ;

aia

the court reconsider, rel: sheen decide this case En Bane,

‘ and I hereby initiate consideration of this request by each

of the Judges of the Court. See ‘United States v. New

York, N. H. & Hartford Railrogd Co., 2 Cire 9607271 F.2d

925; Puddu ¥, Royal Netherlands, ete., 2. Cir. 1962, 303

F.2d 752; Walters v. Moore-MeCormack Lines, Ine., 2 Cir. .

1963, 312 F.zd $93. i ae

Gk PETITION FOE REHEARING BY FV LL CO "RT:

Per Cr RIAM, a

One of the members of this Court, having in the dissent-

ing opinion requested a rehearing of the case er bane,

the Chief .Mdge polled the. Cireuit Judges of this Cireuit7>°

who are in active service to determine whether an en bane

rehearing should be ordered by a majority of such Judges,

ieee maority of the Judges of th* Circuit in active service,

- having voted against convening the Court en bane for, the

purpose of Such rehearing, the petition of -the appellees

for rehearing by the Court en bane i is Dysien.

The Petitfon for Rehearing is Denied. oe

a iwi: Circuit Judge. dissenting.

CAMERON, ‘Cireuit Judge - idinconkuae’,

On July 12, 1963 a panel of this Court composed of Chief

Judge Tuttle and Judges Rives.and Gewin filed an opinion

. and order in this case, ordering the District Court for the

Northern District“of Alabama to enter the judgment there-

in set forth. the opinionsbeing written by Jndge Rives, a

special -conetfrrence by Judge Tu tle, and a dissent by

Judge Gewin. Judgé Gewin requested that the Court i

- bane. reconsider and decide the ease and T joined in that.

request... The Chief Judge ‘advised that thé request had

. hbhen deniedeby a five to four vote of the members of the

Court.’ 1 respectfully dissent from the actiop of the mem-

bers of the Court in refusing this in banc hee amine: and from

” ’ sg

a",

' Ra :

the failure of the panel to grant the i banc hearing re-

~ quested by the appellees ina telegram to each of the Judges

of the Court prior to the. beginning of the hearing of the

“ase by the panel.

Since the filing of the epinion and order on July 12th

by the panel of three Judges the appe ‘ees have filed with

the clerk of this Court a petition for reb earing and recon-

sideration of the decision and order of the panel. Tam ad-

vised -that a sufficient number of the petitions for rehear ing

> was filed for the distribution, as requested by appellees,

of a copy of the petition to each of the Judges of the Court.

Tam further advised that no copies of the petition for. re-,

hearing were submitted to any of the Judges of the Court

‘except the members of the panebw hich. had heard the ease.

That panel has, with Judge Gewin dissenting, entered an

order declining the prayer for an te shane hearing-and de-

nving the rehearing; and org@ers have heen entered aceord-

ingly. = T respectfully ‘dissent from these actions. of .the

panel and the orders entered in, connection therewith.

The Aecision of this panel involves questions of proeed-

gre which have for some weeks plagued and are still plagn-

ing the Court. The Judges of the Court are sharply divided

on these qyestions and not only the lawyers of the Cirenit.

but the public seneyally, are displaying open concern with

respect, to inconsistent positions which they conceive are

heing taken by’ the Court.’ | feel constrained to present | in

as feature article dated at New Orleans and appearing th the

publiy press of Jniv 2). 1985. presents a wide ly helt fontion

of the situation. Excerpts from that article follow:

bone

“The US. Cirenit Court for the F: fth Cireyit has blazed

new legal trails for nearly a decade in the deep south -in the

civil rights struggle for which Negroes. are. now demonstrat-

ing ** ° : : p . .~

. “The Court’s ‘hard core’ majority has ‘moved at, every

opportunity, within its appellate power, * implement this

e school deeision, . “Its orders, some saith Qyoweent forced

—

is da ;

this dissent the result of some studies | have made cand

some Views I entertain with respect to those questions,

some of which have been so ably and exhatstively diseussed

by Judge Gewin in his dissenting opinion, in which 1 fully

concur. , =

The procedure followed by the majority here is one

which, in my opinion, is not sanctioned by the law. The

hearing’ before these three Judges was not an appeal.

Rather, it was what the Third Cirenit has termed seme-

thing ‘‘in the nature of an original proceedings * * *,""

It was: the substitutiqn of a hearing on ‘injunction pend-

ine appe al’* for a hearing on appeal. Theoretically the

appeal is still pending, but it’ is apparent that there is

little or nothing more to hear since the decision and order

of the majority of the panel are on ‘the merits of, the ease,

the riot-triggering admission of James Meredith to the Uni-

versity of Mississippi last wear: _

‘Tr often has mo@@d ahead of the Suprenie. Court to use

5 . : « ie :

the 1954 decision as aMinid Tine to order desegregation of other

facilities—buses, terminals. iibraries. city. auditoriums. parks

and playgrounds. * * *

“Tt has repeatedly overruled. and often sharply rebuked.

- Southern district-court judges who have refused tofaccept or

carry, out the Supreme Court's rulings. * * * E

. ‘The split was.exemplitied by she Court's recent

- lock over the “ssue of a jury: trial for Mississippi Governor

Ross Barnett on criminal contempt charges growing out of

his defiance Of its ofders-to integrate Ole Mis. * * %

**The four judges who opposed a jury trial for Barnetg have

stood together consistently in decisions on civil rights\

They are Chief Judge Tuttle and’ Judges Ric hard T. Rives

of Montgomery.” Alabama. John Minor W isdom of New (r-

leans, and John R. Brown of Houston. * * * 7°

‘Ase s.

Wises oor Judges will hereafter sometimes be referred .to- as

_ The Four. ae ;

* Two Guys feo ageidg’ m- Allentown, tae. v. MeGinley, 1959,

266 F "2d 427, 431-432 r, Note ;

-4 dead-

‘.

60a

deciding in full, without the benefit of any record of the

evidence in the lower court, the questions of law and fact

which were before that court in its extended hearing. This

phase of the vexatious problem before us has been so well

handled by Judge Gewin's-dissent that ] rest on what he

has Said, with a few supplementary remarks. Pisa

All of these unorthedox procedures have arisen in eases

involving racial problems. Attention is focused on several

of them in the five opinions written by members of this

Court in’No. 20240, United ‘States of America v. Ross R.

Barnett and Paul B. Johnson, Jr.. April 9, 1968, which

aggregates a total of one hundred thirty pages: while other

angles of the procedural questions were dealt with at some

length in United States v. Lynd, 5 Cir. 301 F.2d 818, and

the same ease decided July 9 and: 15, 1965 bx. a panel comn-

posed of Judges Brown, Wisdom and Bell, 321 F.2d 26.

The last sentence of Judge Bell's special concurrence in

the July 9th hearing characteriaes poignantly the dilemma

into which this Court has been plunged sitice it set itself,

the task of inventing special procedures for the handling

of such eases:

“This case serves as a classic example of the pit-

falls to be encountered, with the attendant disruption

and delays inthe orderlyoadministration of justiee,

‘chen courts depart from the time-tested processes of

law.”

Tlie present wave. of petitions for treatment according

to the new and unusual procedures deseribed in Judge

Gewin’s dissent, may be said to have been set off by an

order-granted by Chief Judge Tuttle on May 22; 1963 in

Xo. * * * Linda Cal Woeds by*Next Friend v. Theo f.

Wright, Superintendent of Schools of the City of Birming-

ham, The incomplete record of this case on file in this

Gee

Gla

Court states that, on May 21, 1963. this class action Was

brought against the Superintendent of Schools in the City

of Birmingham for an order enjoining hin frau) enforcing

a directive of the Board of Education 0 Birmingham sus-

pending the minor Linda Cal Woods and expelling or sus- .

pending approximately 1080 ‘other Negro students from

the public schools of. Birmingham on the alleg ground

- that they had been arrested for parading without a permit.

The order entered by the Judge of the District Court. on

May 22nd recites that the case came on for-hearing before

him on motion for temporary: restraining order and

prelitjinary injunction ‘and states that the praver for both

was: denied. Reproduced in the margin are excerpts from

this order-of the District Court.*

. After’ reciting its finding that those attending th: pubhie sehools

of Birmingham had been. cautioned not to sstay away from

school @uring the remaining weeks ‘ofe the session, the’ order

continues :

“This Court was shocked ta see hundreds of school ehildren

ranging in age ffom six to sixteen running loose and wild

withont direction over theAtreets of Birmingham and in. the

bisiness establishments. lt is due to the patience and good

judgment. of the people of Birmingham and the police officials

particularly that no one was seriously injured on Maw 7. 1962,

when the demonstrators were allewed by the police depart-

ment and city officials of Birmingham to parade within a

certain designated area, and the fiundreds of school children

in the parade refused .to stay within the boundaries of the

parade area, broke through the police and for some forty-five

minutes ran ‘wild over the € ity of Birmingham. - _—

“Whis Court cannot conceive of a Federal Conrt saving to

the Board of Education of the City, of Birmingham, made up

of dedicated, courageous, honorable men that they should take

ne action under the circaerstances and that the children who

deltberateby faite to attend school fol some several days should

not in any was be “punishe dour pe nal cd. White, students in

recent weeks have heen. susperided or expelled from the Bir-

“mingham high se hools for stmilar or lesser offenses. * * * This

Court. feels that the Board of Education of the City of Bir-

mingham-in its disciplinary problems deserves no interference

62a

The order signed by Chiet Judge Elbert P. Tuttle ‘on

the same day reeites in part the following:

‘The appellant * * * has made application to: me

to-grant an injunction * * * pending an appeal on the”

merits of the case in this Court. Appellant contends

that I have jurisdiction as 4 member of the Court of

Appeals for the Fifth Cireuit to grant such an in-

junction pending appeal under the terms of 28 U.S.C.A.

$1651(b). * °°

“Tt is-clear, therefore, that ‘the ‘Court of Appeal=

has jurisdiction of thist appeal within the contempla-

tion of Section 1651(b). 1, therefore, hold that I have

jurisdiction and the power to grant the relief here

sought, See Aaron v. Cooper, 8 Cir., 261 F.2d 97. See

«7 *

also Rule'62(z), Federal Rules of Civil Procedure,

from this Court so lon as it stays within reasonable. bounds.

The Court has been assured by the Board of Edueation ‘that

proper ofticials-are presently in the process of giving each‘and

every student who has been notified that he has been sus-

pended or expelled, a speedy, fair and comprehensive hearing

that the ‘students have been notified of the specific charges,

brought against them which. if proven, would justify dis-

% eipline or expulsion under the régulations or pol. y of the

Board of Education. '

“This Court has been advised that the suspension or ex-

pulsion of no child will be upheld by the schol Board, after

a hearing: due to prejudice, enger-6r in retaliation. _

“The Court feels that this is borne out by the fact that the

school Board in-adopting its poliey regis same time stipulated

that alk students, whether egpelled or suspended. would be

aliowed to make up the work thet they had lost in summer

- school. * * *® Furthermore, the Court finds that suspension, -

‘pending a hearing and op ortunity to make up the work in

the summer in any event Is not unduly harsh under the ¢ir-.

cumstances, taking into consideration the necessity of main-

taining the morale and efficient gperation of the school system

“It. is, therefore, at this time, ORDERED, ADJUDGED and’

Decrerp that: plaintift’s motion for a temporary restraining,

order bv, and the same is hereby denied.’’ {Emphasis added.

ie]

* 62a

“ Although on the record before me it appears shock-

ing that a Board of Education, interested in the edu-

cation of the children committed to its care, should

thus in effect destroy the value of que teri of schoo!-

ing for so many children at a time when alk persons

professionally interested in the educational process

and the welfare of yourg people are, bending their

efforts towards minimizing school dropouts and em-

phasizing the need for continuing education, the right

of the appellani to succeed here cannot be based upon

this consideration. If appellant ix entitled to an in-_

junction it must be based on my dete rmination that

there 1s @ clear right tothe relief sought in the trial

court /and-that an irreparablé injury will result fe

appellant and the class which she represents unless

the relief by injunction pending appedl is aranted.””

[Emphasis added.]° ° :

Judge Tuttle’. order contains these directives:

“It is Orperen that Theo R. Wright |and Lis agents,

ete.] * ¢ * are hereby enjoined from continuing te

enforce and carry into effect the order of the Board

of Edueation issued by letter on May 20, 1962 * * *

“The said appellee [and the others! afe further

Ordered to inform all principals of all schools in the

Birmingham school svstem who received the letter

of direction from respondent dated May 20, 1962. * **

that the letter of direction of Man 290, 1962. is rescinded

and revoked and all students affected thereby are to be

permitted to return to their respective Classes as reg-

“injar students immediately. -Pending the actual re-

scission of the said létter, appellee is ordered to make

known in any way available to him er to the said

students that then are permitted to return to scheol on

Thursday, May 2 23, 1963,

there was no refutation at all of the findings of tl

( 4 ame

str athe This order shall stay in efieet until the final

determination of this appeal on’ the merits or until the

further. order of the Court.”’ {Emphasis supplied. |

The file furnished me by the cle: ‘k’s office shows that thy

hearing before Judge Tuttle was had upon an unsworn

‘petition’? to which was: attached what was alleged to be ,

— 6- eon Ont

- copies of several letters of May 20th, one from the princi.

pal of Washington ‘School to Reverend Calvin W ‘ood’,

father and next friend of the. plaintiff, and others from the

superintendent of schools % other -sc ‘hool officials, all”)

ferring to the suspension or expulsion of children from a

schools in Birmingham because of. their participation in

the **demonstrations’” then taking. place in the streets of

Birmingham. The. onty proof conforming to the Rule<

governing granting of, temporary injunctions was an afii-

davit by Reverend ¢ ‘alvin Woods, all of. which refefred to

his daughter Linda-and her conduct. As far as /ean find

District

Judge concerning the conduct of the hundreds of students

besides Linda Cal Woods, the unexcused se ‘thool absenee-,

the representations to the Distract Court by the Board of

Edneation and the other ,important facts found by the

-eourt helow as the basis of its denial of the motion for the

temporary restraining order. There were no pleadings on

behalf of the sc ‘hool board, hecause there had been no serv-

ice of process or opportunity to file such pleadings.

Nev ertheless, ig a Tuttle entered an order finding thi it

there was no genuine dispute as to the fact that the: stu-

_dents inv olved w ere arrested for participating in a demon-

stration against polices, and practices of segregation either

hy the municipal government of Birmingham, ‘the school

system of Birmingham, or certain businesses in Birming-.

ham whose segregation policies had previously resulted

in the arrest of a number of Negro prisoners under either

ihe segregation statutes of the City of Birminghaim-or the

antitrespass laws of the State of Alabama.

. : Goa

Even assuming that there was an dppeal then pending

from the decree of the District. Court te this Court, there

was, in my opinion. jurisdiction in the Chiet Judae to

to hear or dispose of the motion for temporary imiunction,

especially ove granting the order he essaved to enter, ie

cluding, as -it does, nrovisio®s for tnandatory relic etter

“tively disposing of the cise on its merits. In’ the very

“Vafiire of thine. it awas_ingyitable that the School: Super.

interident would obey the fiat of the Vitel Judge of thi-

‘Court whether if'was backed by the authority, of the lave

or not. No aetion could be taken which would obliternats

the harm done -to the. Birtsingham sehool system by this

improvident order.

Unfortunately, efforts made by members of the Conrt

to obtain an ‘authoritative: ruling on the legality of thee

ordey from the Indi¢ial Counsel or.the fall Conrr were

thwarted by the opposition of The Four.’

The majerity in the instant ease cas has been trie in

similar decisions rendered in the past feavcweek~ placed

it~ rélianee choefiv upon ease No: 20557, Stell et al. v.

Savannah Chatham County Board of Education, et al. 5

Cir, 3ts Pitd 425. The ingunetive order issued be the

majority in the present ease is modeled upon the orde:

granted in the Stell ease. .Jindge Gewin, in his dissenteny

opinion here, shows clearly that the present case i not

controlled by the Stell case. In addition, T think that the

¢Bhe\ntry made on the Mr nites of the meeting of the Dudictal

Council for the Fifth Cireuit in New Orleans ou Mas va. 1963

follows - é ce : |

“The power of a single Carenit Judge to act in certgin in

stances including the power te grant grgunetive relief was

next discussed Tt was not possible te resolve the qnestion of

power by rule or otherwise dine ton even division among the

members of the Couneib as ta the presence or absence of such.

power, and becalise some felt that it was not the appropriate

subject matter of a rule

Goa

Stell ease should not be followed because it was illegally:

advanced and set for special hearing by the Chief Judge

before a panel selected end assigned by him alone... | am

unable to find any authority which 1s vested in the Chief

Judge sa to appoint a panel to heer a case orto ASSIS

a ease for hearing such as Was attempted by the Chiet

Judge in that case.

This Court is, of course, a creature of statute. The statute

providing for the assignment of Judges is 28 U.S.C. 8 4):

S46. Assignment of judges: divisions: hearing.

quorum os .

‘(n) Cirenit judges shall sit on the eourt and it

Wivisions in such order and at such times as the court

_ directs. )

“4h) In each circuit the eourt- may authorize the

hearing and determination of eases and controversies

hy separate divisions. eaay consisting of three judge-

Such divisions shall sit at the times and plaees and

hear the cases and controversies assigned as the court

directs. | . .

£ The order, as it appears in the file of the Stell case. is as follows

681 is ORDERID that the above entitled and numbered catise

he assigne! for hearing at Atlanta, (ieargia on Friday, May

oy 10% before a panel consisting of Judges Tuttle. Rives ane

‘Bell. ;

Elbert P. Tuttle

Cnr aeper,

. | 2 Ss. Coarty Appeals

to be tiled and entered as of 6/21."" :

Sree

“The panel before whom cases were being argued during the week

beginning May 20th Was th» one sitting at Houston, Texas com-—

posed of Judges Hutehesoti” Brown and Lumbard: |

Oia

“(¢) Cases and controversies shail be heard and

» determined? by a court or division of not more than

three judges, unless a hearing or rehearing before the

court in bane is ordered by a majority of the ctrenit,

judges of the cirenit who are inactive service. A court

in bane shall consist of-all active cirenit judges of the

circuit . s. ‘ .

: .*(d) A majority of the number of judges author-

ized to constitute a eourt or division thereof, as, pro-

vided in paragraph (c), shall constitute a quorum.

oe The Supré me Court Unterpreted this statute in the case

yon) of Western Pacifie Railroad Corporation et al. We-t-

corn Pacifie Railroad Company et al., 1953. 345 Us, Ai.

ITS, 73 S.K. 66, 661. 97 L.Bd. 986, confirming the

langnage of the: statute bs having the literal meaning of

the words used: . aM =

“This interpretation makes for an harmonions read

ing of the whole of $46. .In this Section, Congress

speaks to the Conrts of Appeals: the conrt, itself asa

body, is authorized to arrange its calendar and distrib.

ute its work among its memberskip: the court, itself,

a, asa body, may designate the places where it will sit.

- Ordinarily, added Congress, eases are to be heard hy

divisions of three. But Congress went further: it left

po doubt that the court, by a majority vote, could con

‘vene itself en, bane to hear or rehear partic ‘ali ir cases."

The Rules of this Court do not. as far as T ean find, pre

vide for‘the assignment of-tases for hearing er for the

assignment of jndges by the Chief Judge or any one

Judge’ En bane hearing: are provided for in Rule 2oa af”

The only rules E can tind relating to the gissignment of cases

72 * é ad

ié

'%- 5. ane of Judges are Rules 35. °6 and

“Rule 35. Assignment pf Cases.for Tearine

1. Thirty days prior to the opeming-of a “po Har session of

this court at Atlanta. Montgomers. Fort Worth, and Jackson

“J

a 68a | ee

the Rules of this Court. I find 1 no provision for advance.

ment of cases or taking them. up out of time either in the

statutes or in our Rules or in‘the Federal Rules of Civil

Procedure.’ - *

From the foregoing, it follows, 1 think, that the judg-

ment in the instant case should be Feversed because the

panel which decided it had: no. legal ex xistence and the

order setting it for hearing without a record and giving

‘it’ other préferential treatment was entered without au-

thority. It follows, moreover, that the judgment shonld

‘he reversed beeanse the precedents upon which it is

groundea were not valid decisions of this Court. we

ville, and thirty davs prior to the opening of the varione

Sessions at New Orleans. the clerk is directed toe assign ‘Cases

returimble at said places that are ready for hearing in such

manner as may be most convenient to expedite the business of

the court. :

‘2 “Any appeal returnable. at Atlanta, Montgomery. Fort

Worth. Jacksonville, or New Orleans may be’ assigned for

hearing at any other place of holding court for a more prompt

hearing. on ‘consent of the parties or on motion of either-party

or on the court's own motion.” P

“Rule 36. Assignment of Judges

“te = ordered that whenever a full eine h of three judges a

Shall not be made up by the attendance of the Associate. Jus-

tive of the Supreme Court assigned to the cireuit. and pf the

cireuit judges. so many of -the district “judges, as may be

necessary to make tip a full court ‘of three judges. are hereby

designated and assigned to sit in this court; provided, how-

ever, that the’ court may. at any time, by particular assign-

ment, designate any district judge to sit as aforesaid.’

‘Rule 17. Doeket

“The clerk shall enter upon” docket all case ases brought to

and pending in the court in their proper « chronotogic “al order,

and such docket shall be eailed at every term ‘eee

7 Rule 44, PROP. provides that precedence shall be given to

actions entitled: thereto by any statute of the United States.

Ya — ae

¢ Ill.

T think, too, that a solution of the probleis. facmy this,

Court will be helped by a study of the handling’ of Traci: 1

cases during the immediate past, in which period so much

haste has been made and so many procedural innovation-=

have bee. utilized that the general infpression has grown

up and has been expressed that this Court has one set of

procedures covering ‘racial cases and another set covering

all other eases. [, have accordingly made a study of the

cases as they appear in the Federal Repofter, Second

Series, involving contreversies heard before panels of this

Court bearing date within they two years: preceding the

hearing of the present case on Jiine Ki. 1962. LT believe this

survey to he correct. It covers twenty-five cases, which are

listed in ‘Appendix ** A” to this opinion. Of the twenty-tive

cases jisted, the majority of ‘the panel in twenty-two of them

was composed pf some combination of The Four, who con:

stitute a minority of the active’ Judges. Invonly two case~

did two of the remaining tive m embers of the Court sit to-

gether. ieee . . ;

Of the Cirenit Judges of this Cirenit, The — sat,

fifty-five times: the other five sat twelve times. The Four

wrote twenty-three of the twenty-five opinions, meluding

per curiams: Chief Judge Tuttle wrote sixtinelnding fotir

per curiams; Judge Rives wrote six, includin® two per

curiams: Judge Brown wrote four, and Judge Wisdom

wrote six, inchiding. one per enriam. The per curiam

drder (Appendix) tA‘; No. 21) adjudging Lieutenant

Governor Johnson to be in civil contempt was entered) by

a panel consisting of Judges Rives, B rown and Wrsdom,

and one of them’ wrote the opinion. Que per curiam Was

written by ene of the five remaiming Judges Gf this Court.

and one full opinion | was writte nu by a district judge.

IV. me

The handling hy Chief Judge Tuttle of three. judge lix-°

’

-. a

Y. 70a 2

“picture of the erusading spirit whigh [think has heen.

largely responsible for the errors here discussed and is .

relevant to the discussion of a solution of the problems be-

. fore us. The statute providing for, such courts is in these,

words: .° oo. . Re -

6¢ 2984. Three-judge district court: composition ;

procedure |

**In any action or proceeding required by Act of

Congress to bo. heard -and determined by a djstrict

court of three judges the composition and procedure of

the court, except as otherwise provided. by law, shall,

he as follows: —

641) The district jndge to whom the application far

jnjunction or othey relief is presented shall constitute

-one member. of siich court. On the filing of the applica;

tion, he shall, immediately notify the chief judge ¢

the circuit, who shall designate two other judges, at

least one of whom shall be a cireuit judge. Such

. of ’ <

_ judaes shall serve as members of the court to hear and.

determine the action or proceeding. * * ** (Em-.

phasis :.ided.}

In’ the performance of the ministerial duty so imposed

upon him, the universal practice, except in this Cirenit in

the last four years, has been for the Chief Jndge to appoint

the cirenit judge resident in the State for wvhich the dis-

_trict court ‘ix econstitntéd and one of the district judges

resident in such. state as ‘the other two members. 1. have

beet able to find no instance where this proeedure has not

heen followed except those here mentioned.

The State-of Mississippi has residing winthin its borders

one Cirenit Judge, three active District Judges, and one

senior District Judge designated for active service, all of

whom have been at ali times mentioned gitizens of Mis=t--

sippi, qualified for the pasitions they hold, and ready,

willing and able to perform the duties incident to-serviee

upon such a’ district, court.

Tia

Since November 9, 1961 and -prior tothe submission of’

the-instant case, three district courts of three judges have

heen constituted ty hear racifil-cases in Mississippi.”

For’ the first of these, District Courts of the United

States for the Southern District’ of Mississippi. JIndiges

Tuttle, Rives and Mize were designated: for the second,

Judges Rives, Brown and’ Mize were designaied: and for

the third; Judges. Brown, Wisdom and Cox were desig. - .

~. nated. A member of The Four Was substituted for the

resident Cireuit Judge.in each instanee, aiid another inem-

ber of The Four was substituted for the additional Dis-

trict Judge. The idea that the Chief Judge may thu-

gerrymander the United States Judges of a State in order

to accomplish a desired result is, 1 think. entirely foreign *~ *

to any just+concept of. the proper functioning: of the

judicial process. “te ;

; ees 2 we

If this Court is to regain the stature if owned on Muti

16, 1959 when Judge Hutcheson laid down the anti ot

Chief Judge’ it must, in any opinion, forsake the special

procedures which have been discussed and adhere to those

which are ‘time-tested’’ and legal. Up is important, I

think. that ‘‘the court as g body"’ on whom’ the respon

sibility rests take hold of the rob ten and solve it a s-

; 7

I, therefore, respectfully dissent. United States v. New

York, New Haven & Hartford Railroad Ca., 2: Cir, 1960),

276 F.2d 525: Puddu v. Royal Netherlands, Ete. 2 Cir.

1962,. 303. F.2d 752: ‘and Walters v. Moore McCormack

Lines, Ine., 2 Cir.. 1963, 312 F.2d 893. ?’

bad a s,s

een

“No. 3215.. Jackstn Division. Sonthern District. United “States

v, City of MeComb.’ etal. order entered 11-961; ; 4s

"No. €-3235, Jackson Division. Southern District. Reverend Clark

et al. v., Allén Thompson. Mavor, et al. order enteréd 1-23-62

No» C-3312, Jackson Division, Southern District, United States

v. State of Mississippi et al.. order entered [1-59-62

j2a

ae APPENDIX A =

1. Dixon v. Alabama ‘State Board of Education, Aug.

41961, 5 Cir, 294 F.2d 150. Expulsion . ef students for

demonstratit Cireuit Judges Rives, Cameron and Wis-

dom, Opinif by Judge Rives. ‘

-). Tnited States v. Wood, Oct. 27, 1961, 5 Cir, 299 F.2d

772. Voter registration. Circuit Judges Rives, Cameron

and Brown, Opinion by Judge Rives.

2° Meredith v, Fair, Jan. 12, 1962, 5 Cir, 298 F.2d 696.

School desegregation. Chief Jndge. Tuttle, Circuit Judges

Rives and Wisdom. Opinion by Judge Wisdom. |

4. Kennedy v. Bruce, Feb, 5, 1962, 5 Cir., 298 F.2d 860.

Voter registration. Chief: Judge Tut'le, Cireuit Judges

Rives and Wisdom. Opinion by Chief Judge Tuttle.

a. Stoudenmire y. Braxton, Mar. 9. 1962.5 Cir. 200 F.2d.

846. School ‘desegregation. Chief Jiadge Tuttle. Circuit

Judges Brown and Bell. Per curiam. | Boe ic

- o** " S i - - . .

G. United States v. Lynd, April 19, t962, 9 Cir.. 301 F.2d

S18, Voter registration. | Chief Judge Tuttle, Circuit

Judges Hutcheson and Wisdoii. Opinion by Chief Judge

Tuttle. a oe :

2 Christian v. Jemison, April 25, 1962, 5 Cir. 303 F.2d

59.. Local transportation desegreg: ion. Cireuit Judges

Rives, Brown and Wisdom. Opinion by, Judge Wisdom. :

8, State of Alabama v. United States, June 1, 1962, 5 Cir..

201 F.2d 583. Voter yegisttation. Cirenit Judges Rives.

éameron and Brown. Opinion by Judge Brown.

9. Meredith v. Fair, Feb. 12, 1962, 5Cir.. 305 F.2d 341."

School desegregation. ‘Chief Judge Tuttle, Cireuit Judges*

Rives and Wisdom. Per curiam. Mer An,

10. Meredith v.” Fair, June 95, 1962, 5 Cir., 309 F.2d

‘343. School desegregation, Cireuit Judges Brown and -

“ me

A “ Teak

Wisdom, * District Judge DeVane. Opinion by Judge

Wisdom. ,

11. Kennedy v. Lynd (and four other consolid ites! Cases),

July 11, 1962, 5 Cir., 306 F.2d 222: Voter registration.

Cireuit Judges Rives, Brown and Wisdom. Opinion, by

Judge Brown. .

“12. Meredith v. Fair, Jaly 27, 1962, 5 Cir. 306 F.2d, 374.

School desegregation—reeall of mandate, ete. Cirenit

Judges Brown, and Wisdom, District Judge DeVane.

Opinion by Judge ‘Wisdom.

. "3G uillory \ - Administrators of the Tulane U niversity

. of Louisiana, July 21, 1962, 5 Cir. 306 F.2d 489. School

desegregation. Circuit Judges C ameron, Brown and Wis-

‘dom Per curiam.

14. Augustus v. Board of Public Instruction, July 24,

Judge Tuttle, Cireuit Judges Rives and Brown. Opinion by

, Judge Rives. ore :

Nelson v. Grooms, Aug. 17. 1962, 5 ¢ it’, 307 F.2d 76.

Rha ap cL IOS Circuit Judges Rives,

Brown and Wisdoin. as main hy Judge ‘Rives.

16. Bush v. Orleans Parish School Board, hex 6, 1962,

5 Cir. 308 F.2d 4912 School desegregation. Cirenit

Judge® Rives, Brown and. Wisdom. Opinion by Judge

. Wisdom. ° & 2 . : . t i

17. Stone - Membe rs of Board of Eduéation, City of

Atlanta, Ga., ie 16, 1962, 5 Cir., 309 F.2d 638, School

desegregation. Chief Judge Tuttle, Cireuit Judge Brown,

District Judge Johnson. Per curiam.

18. Hanes v. Shuttlesworth, Nov. 16, 1962, 5 Cir. 319

F.2d 303. Park desegregation. Cireuit Judges - Rives,

Jones and Beil. Per curiam. . 9

j4a F

19. Ross v. Dyer, Dee. 98, 1962, 5 Cir, 3l2 F.2d 191.

School desegregation. Chief Judge Tuttle. Cireuit Judges

Hutcheson and Brown. Opinion by Judge Brown.

‘0, Potts v. Flax, Feb. 6, 1963, 5 Cir. 315 F.2d 28+.

School desegregation. Circuit Judges Brown and Bell,

District Judge Simpson. Opinion by Judge Brown.

21. Meredith v. Fair (United States v. Mississippi and

Panl B. Johnson, Jr.). Sept. 99, 1962, 5 Cir. 313 F.2d 554.

Civil contempt. Circuit Judges Rives. Brown and Wisdom.

-Per curiam. - . | y

-2 Clark v. Thompson, March 6, 1963, 5 Cir., 315 F.2d

637. Desegregation of public recreational facilities. Cir- -

cuit Judges Hutcheson, Gewin and District Judge Hannay.

Per curiam.

93. United States v. Dogan. Fan. 26, 1963, 5 Cir. 314: F.2d

767. Voter registration. Cirenit Judges Rive= and Wis-

dom, District, Judge Bootle. Opinion by Judge Bootle.

24. City of Shreveport vy. United States, 5 Cir., 1968, 316,

_F2d 928. Airport desegregation. Chief Judge Tuttle,

Cireuit Judges Rives and Moore.®. Per curiam.

a5, City of Shreveport v. United States. 5 Cir. 1962, 316

F.2d 928. Bus terminal’ desegregation. Chief Judge Tut-

He, Cirenit Iudges Rives and Moore.* Per curiam.

ADDENDUM TO APPENDIX A

“Since the printing of this dissenting opinion by the

Clerk on July 20, 1968, a Tess hurried examination of the

published reports of eases decided during the period

specified in the opinion has disclosed that four cases were

snadvertently omitted from Appendix ‘*A™. These were

called to the attention of the other Judges of this Court by

i a

* my letter of August 14,-1963. They are not included in

the computations dealt with in Part TTI of the opinion.

Following are the four omitted cases:

21.. Abernathy v Patterson, Oct. 31, 1961, 5 Cir., 295_

F.2d 452. Enjoining ‘fsegregated’’ state courts. Cireuit

Judges Riyes and Wisdom, District Judge Carswell.

Opinion by Judge Rives.

71;. United States ex rel. Seals v. Wiman, May 30, 1962, _

5 Cir., 304 F.2d 53, Exciusien of Negroes from state grand

“and petit juries. Cirenit Judges Rives, Brown and Wis-

-dom. -Opinion by Judge Rives. ; noe’

211., Coleman v. Kennedy, Feh. 13,1963, 5 Cir., 313 F.2d

867. Voter registration. Cireuit Judges Rives and Wis-

dom, District Judge Bootle. Per Curiain.

.231.. Greene v. Fair, Feb. 18, 1963, 5 Cir., 314 F.2d 200.

School desegregation. Chief Judge Tuttle, Cifenit Judges.

Jones and Bell. Per Curiam, alle

On Petition for Intervention and Stay

Before Wispom, Gewrs and Bett, Cireuit Judge.

Gewrs, Cirenit Jndge.

The Petition for Intervention aud Stay of the operation

of the plan of desegregation approve don August 19, 1968,

hy the United States Di-trict Court for the Northern Dis-

trict of Alabama. is hereby denied. Morin v. City of

Stuart. 5 Ctr, 1939, 112 F.2d 585: Holland ~ Board of

Public Instruction of Palm Beach County. 5 Cir., 1958. 258

-P2d 730; St. Helena Parish School Board vy, Hall. 5 Cir.

1961, 287 F.2d 376: McKenna +. Pan American Petrolemn .

Corp. 5 Cir. 1962. 308 F.2d 778. im

Tha . -

Under the original opinfon and ordér of the U.S. Dis-

trict Court for the Northern District of Alabama’, and

under the opinion of this Court rendered in this cause on

July 12, 1965, Negro children have the constitutional right

and the statutory right under the Alabama ‘Pupil Plaee-

inent Law to make application for transfer and enrollment

free of racia! discrimination. The issues involved here

have long been settle. py decisions of the U. S. Supreme

Court. Law and order eannot’ be preserved by vielding

to violence’ and disorder, nor by depriving individuals of

constitutional rights decreed to be vested in then py the

U.S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 20,

7S S.Ct. 1401, 8 L..Fd.2d 5, 19 (1958).

We have no trouble in taking judicial notice of the fact

that there are many upstanding, splendid, law-abiding,

citizens in Birmingham and throughout -the State of Ala- -

-bamma who are so firmly dedicated to the prinéiple of the

orderly process of the courts ana the law that they. refuse

to rebel against those laws which displease them. We also

“take judicial knowledge ‘of the fact that yiolenes and dis-

order have erupted in Birmingham. There is no indication

— € . .

‘in Judge Lyiine’s original opinion it was stated :

“This Court will not sanetion diserimination by them {the

Superintendent and Board of Education} in tbe name of the

Placement Law * * *°

+ Adequate time remains before the opening of the September,

19623. school term for the processing of applications for assign-

ments or transters in behalf of interested individuals. Juris:

diction of this action will be retained for the purpose of per-

mitting the filing of such supplemental com laint. if any. as

‘might be entitled to be presented, in vase of any uneconstitu-

tional application of the Alabama School Placement Law

against the plaintiffs. or others similarly situated, ‘or of any

other wneotistitutional action on the part of defendants against

them. The issues tendered by any supplemental complains

will be given a preferred setting on the doeket of this court

and will be beard-en tive days notice ty defendants."

dia

that the great bade of people of Alabama approve of law-

less conduct even though such conduct arises out of the

enforcement of laws «hich change customs ‘and traditions.

The question now is not approval or disapproval of the

jaw: but whether the law, order, and the edueational process

will prevail over v iolence and disorder. The howling winds

of hate and prejudice always make it diffieult to hear the

voices of the humble, the just, the fatr. the wise, the rea-

sonable, and the prude nt. We must net permit their

veices to be silenced by those who would incite mob violence.

“The best guarantee of civil peace is adherence to, and

“respect for, the law." W oe con et al. v.*City of Memphis

et al., 1968, 375 US. 026, 848 1314, 1320, 10 L.Bd.2d 529,

wed atiener is a great part of justice,” ~-but we are bound

by the most reeent statement of the U.S. Supreme Court

in Goss ¥. Board of Education of .the City of Knoxville,

Tennessee ‘(a unanimous opinion) 168, 375 US. 6800 85

S.Ct. 1405, 1409, 10 LL. d.2d 632, wherein the Court stated:

‘¢In reaching this result) we’ are ‘not unmindful of

the deep-rooted problem=- involved. Indeed, it was

em. “conside ‘ration for the multifarious loeal difficulties and

: variety of obstacles” which might arise in this transi-

tion that lec this Court eight vears ago to frame its

mandate in Brown in such language as ‘rood faith

compliance: at the earliest practicable date? and all

deliberate speed.” Brown v. Board of Eduneation, 349

TLS... [2O4) at 300, S01 [75 S.Ct, 753. 99> Led. 1083].

Now, however, 4 eight vears after this decree” was

rendered and over nine years ‘after the ‘first Brown

decision, the context in which we must interpret and

apply this language to ‘plans for desegregation has

been signifieantly altered’. :

The writer of thix opinion wishes to state that if Ha-~

hee 4) and is now his feeling that the opinion of the U. 8.

—_——+-——

2**Vartdbook for Judges”’ edited by Donald K. Carroll, Amer-

ican Judicature Seviety.

TSa

District Court for the Northern District’ of Alabama a*

originally entered in this cause should have been-afiirmed

for the following reasons .

1. The same was in full compliance with the derision=

of the U.S. Supreme Court’and of this Court.

2. The District Jadge being a resident of the area

involved is better qualified to consider and deal with

of obstacles’ which might arise in this transivon.”**

Under the opinion of the Jvistrict Court for-the North:

ern District of Alabaina originally entered in this case:

the opinion of the majority and the dissenting opinon

released on July 12, 19650 by this Court; the opinion in

Shuttlesworth v. Birmingham Board’ of Education, N.D-

Ala.1958, 162 F.Supp. 872; the Supreme Court cases herein,

cited: and numerous other decisions of the U.S. Supreme

- Court and the various Cireuit Courts of Appea!. the right-

of the plaintiff+ and those similarly situated to attend the

schools which have been designated for ‘their attendance

is clear and unequivocal.” Court orders, like constitutional

rights, cannot yield to violence, In the present’ Status of

this case the Board of Education of the City of Bir-

mingham, the present members of the Board and Theo Kk.

Wright, Superfntendent of Svhool=, their successors, ete.

must comply with the plan or desegregation approved by

the U.S. District Court for the Northern. Disfrict of

Alabama on August 19, 1963, in this cause,

A solution may be found in the following pronounce:

ment by Mr. Justice Frankfurter i bis ‘coneurring opinion

in-Cooper v. Aaron, supra: 7

“By working together, by sharing in a common effort,

men.of different minds and tempers, qven if they do

not reach agreement, acquire understanding and there-

by: tolerance of thetr differences.”” J:

—_———— -

8 Sep Goss v. Board of Education of the City of Knoxville, Ten-

nesser, SUPTS. .

‘ .

UNITED STATES COURT OF APPEALS °

| FIFTH CIRCUIT

Sept. 24,1963. - °° ot

oe =) -

CaroLtyN Eveaxon Harris, a minor, by Tayo Haris, her

guardian amd next friend..et al. dppeliantsdntercenors,

. ie

Lisps Sew Gipson and Beeson. Gipson, miners.by THomas

1. Gasson. their father and next friend, and ‘THoMas f..

Gipson, individually, et al. Plaatifs Appellees,

and

Giyxs County Bogro or Eeecarios, a puble body exixt

ing under the laws of Georgia, et al. Defendants Appeller >

. No. 20871.

Constanes Baker Motley. New York City) Donald 1.

Hollowell, Herace T. Ward, Atlanta, Gas, tor appellant

-Carter Pittinan. Dalton, Ga. Geo LL. Leonard Washing

ton, D.€.. BOON. Nightingale. Branswiek. Ga. Barrie L.

Jones, Alma, Ga. Alan Bo Smith. Brunswiek, Ga. for

Lppieilees,

—

Before Rives. Brows, and Biri. Crreait dudges.

Grieri DB. Bias. Crreuit Judge.

The minor appellant. are’six Negro efuildren presenth

enrolled in the public schools of Givnn County. Georgia. An

application for transter from the Negro hich school ty

Givnn Academy, the white high schoo! in tiivnn County on

“behalf of each iminor appellant, some to the eleventh ane

some to the twelfth grades. owas granted by the mappeites

Board of Education for the 1963-64 schotl vear whieh com

menced on August 25. 1963. Om August 27.7955. the appe

lew-plaintiffs secured from the Utited States. Distriet Court

for the Southern Distriet of Georgia a tempordry restrain

ing order, Without notices. enjoining the appellee Board of

Z Sou :

Edueation from permitting the transfers. “On September 6,

1063 that court entered an order stvled a” etree ordet

the effect of which was to continue the t@nporary strain.

ang order in foree to the end of preventing the trans fers.

sec ase of this aetion of the Distfiet Court the Board «at

- fdueation has been prevente al from going forward with its

voluntary plan of desegre seat lon. :

The “pre trial” order of September 6. 1964, was, in effert

the granting ef a preliminary mjunmetion, Our yurisdietien

in this regard i= based “on 2S USCA. $1202, Sims ve

Greene, 3 Cir. Ie. poo Fue ote. Seve alse Missours

Nawsas Teves R. Cow. Randolph sr. p9n0, s2 Pid Te

“We have thie power way ant UNV necessary Pe ‘lief 1 Laathing

irreparable damage te the animer Ayre Hants. Tithe 28,U.8.-

cA. £ 1651. The ° tprect rial “order is also a final onder

within the ameaning of 2S USCA. £9201 in that it deter

Hines substanth: al rights of the six miner Negro children.

and these right- will be irrepars ably dost if reliefas delaved

pemedimar final judaiaent. Sd nited States v. Wood, 0 Cir.

pag my Po Ted. 4683 cert, grat 200 S. Sie s2 St. ;

8 L:Kd.2d &: Ninneds \. Lund, Cir 96 sim bod 0)

woes Hodges v. Atlantic Coast Lin Railroad Ce ak ia

ye, BVO Fuld 455, 445 . :

Uyder the cehos) segregation entses. Hrown ve Board «!

Kducation, Le 347 (1S. 485, 44 SC. Hysti, fs Pade Sao:

249 1S. 204,75 S.C 7533, 00 LB? 1083. Cooper Vv: Aang.

1098, 338 EUS. 1. TS S01. 14 Pads, the i rraspaarabte

damage beim autaniee by aqyellants -consist- of being

forced to atte nd a racially seere ated school, No.com

parable injury will be suflered by the apy Ajee-plaintitfs if

the motion for injune tion fending appeal is ere pate Vhi-

court is of the opinton that there is a strone probabiltts

that the appellant-interve nots will altimately prevarl on this

appen! on the merits although tliat . question ix not new

decided...

Sha

It follows from whatewe have said that an*ihjunetion

ye ‘nding appeal should he granted. This will also solve

‘the dilemma of the Se ‘hool Board, caught as it is, between

Hs own voluntary plan and the preventative order of the

District Court, as expre ‘ssed in their request for diréetion,

To the end that the handling of the matter be restored to

jocal school authorities, see Calhoun v. Latimer, 321 F.2d

202 decided by this court on June 17, 1963, the ordérs here:

tofere issued by the Distriet Court as they ‘prohibit these

transfers are vacated, and following the procedure cthimed

in this court's decision in Stel/, ef at. v. Savannah hatham

( ‘unt Board ot Education, etal. 5 Cir. 1905. 518 F.2d 425

428) it ix ordered that the District Court for the Southe mm

District of (Georgia enter the following judgment and orde v:

Phe defendant-appellees -. Glenn County Hoard of

Education, a public body existing under the laws of

Georgia: W. A. Whitth. Chairman of the Glynn Coun

tv sina of Education, AJM. Harriss di. 8. WN. Sing

letery, G a Baumeardner. James Gilbert, yr. Hl

Moore, . » MeCook, Jr GC. M. Elizey. and Fdward,

“onl ay tietibers ofthe Glynn County soard of

Eduction and Ralph Hood, Superintendent of Se ‘hools

of Giynn- Ce ats. their agent=, servants, emplovees,

successors in offices and those, in concert with the m whe

chal) reeeive notice of this order be. and thew are here

by restrained and enjoined from refusiniu te advinit,

enroll or educate the said six miner appetlants in the |

Glynn Academy in thy ele venr D963 LUG4 from: and

after the opening of school on Menday. September Th.”

pig ees

Tis gett ‘f shall re sapere ino effect ufitil the final deter

Onination of the appeal of the within case in the Court of

_ Appeals for the Fifth Cirewitvon the merits, and until fur-

_ ther order of this court.

The Clerk is directed to issue the mandate forthwith.

Mint

, ‘Filed May 13, 1963.

IX THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN

DISTRICT OF GEORGIA, SAVANNAIL DIVISION.

Civit Action No. 1316

Ragpir Stevi, a minor by L. 8. Stes, Jae. his father and

2 . . next friend, et al. Plamtiffs, |

Vv. ; , i

Savansau-Caatuam Cousty Boarp or bpecation,

pr aL., Defendants,

and

Lawrencr. M. Ropers and Daste. Roserts, Minors, by

Aprienxe M. Roserts. their mother and next friend, et al.,

' ~ Interveners. oe

PRELIMINARY FINDINGS AND CONCLUSIONS °

This is a school desegregation case in which. plaintiff~

ask a mandatory injunction requiring total integration of

the schools edministered by the defendants. Interveners -

were made parties by the Court to be he: «don the predicted

injuries te white and negro pupils if tie relief demanded

‘in the complaint were to be granted.

The plaintitfs alleged injury to themsélves and others of

their class from the existing separation of white and negro

sehools in Savannah-Chatham County but did not offer.

proof in support of this gilegation, contending rather that

thix Court must conclusively presume such injury as a

matter of law from the findings of fact made by the

Supreme Court on the four factual situations brought

‘before it in Brown vy. Board of Education, 347 U.S. 488,

74.8. Ct. 686, 9S L. Ed. S75. :

+Interveners denied that the existing school asst.ninent

system caused injury to either white or negro pupils but

that serious injury would be suffered by students of both

races if the relief sought by plaintiffs were to he granted.

Interveners submitted on those points the expert testimony

of sociologists. psychologists, educator= and anatomists, .

each of whom was conceded by plaintiffs to be an anthority

in his field... The opinions expressed by these witnesses were

further supported in the record by publications and studies

either marked in evidenes or redid into the record. Plain-

tiffs offered no witnesses or authorities i rebuttal, main-

taininyr that whether any, educational or psychological. in-

jury would result to the students of either race from corm.

‘pulsory integration was irrelevant.

The defendant School Board took no position during the

hearing as between plaintiffs and interveners except as

stafed by its counsel in opey Court on May 13th—at the

conclusion Of the case.

Plaintiffs réquested early trial in order, that any relief

may be made available by -the Fall school termi and the ,

Court accordingly specially calendared and tried the issues

on May 9,10 and 13th.

‘sponse to plaintiffs’ further request for an early .

In.

fuling herein the following findings of fact aml conclusions

of law under Rule 52 of the Federal Rules of ‘Civil Proee-

dure are madeon a preliminary basis. The Court will issue

its formel- opinion and final findings within the next thirty

days. ° : |

- FINDINGS.

The Parties. :

1. The minor plaintiffs are negro students in the primary

or secondary publie schools 6f Savannal-Chatham Connty.

The minor interveners are whity students in the primary or

secondary white schools of Savannah Chatham County.

The defendant Board of Mducation and the individual

dt-fendants are in control of an

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