# Appendix — Gibson v. Harris

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1964
- **Citation:** 376 U.S. 908

## Text

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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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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: : \

» ‘ 4 OM Tam Re re oe
°

4

+ nd
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Board to make a prompteand reasonable start towiifd- de

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.

4}
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

.

+

a

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 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% *
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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

© ease whi it had under consideration ‘whyn the tert
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 /

1

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!

oe

{ ‘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

a
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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 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.

al

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 decisionThe 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) :

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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, 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’ 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).
9

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

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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

6

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- |

we

.
\ 2+) >

? rg diag veit ;
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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.”’

(c) Expressly stating that the law of this case is that

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.

et

#

” ‘ :
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

- °
Ss

- 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.

e

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, 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

¢

c

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

a

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.

Wy

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

ta
a
school administration and ng based upon any sthhe.
imposed racial conditions, would falls we ha

e
~
¥

. - 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

‘
U

— —

Wa

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,
© « before this court: aa , see
‘

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.

a

)

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.” . ;

é

>

*

4

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",

DB

' 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

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.

H.

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: |

a

Oia

s

“(¢) 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”

a
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

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-°

trict courts in. the Stat©@of Mississippi is a, part of the

°
’

-. 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 ’ 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
© © * the multifarious local difficulties and *vaniety
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. .

?

‘ .
Ta
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,

F
oy

—

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

os

Za
, ‘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

Sa

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. ° : |

3
- 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 and didminister the primary

and secondary public schools in Savannah Chatham Counts

Sti’

6

. my Es : - . . ‘
and have the necessary authority to place. in effect any. °

-orders of this Court with respect thereto. . "ee

The Schools.

» ‘The Primary and seeondary public schools of Savan-
nah-Chatham County are ‘divided into. schools for white
pipits and schools for. negro pupils and admission thereto

ix limited té applicants of the respective races. The evi-

dence does flot show any application of any negro to schools
operated for whites.

* 2 The ¢ooching and administrative staffs of the white
and negro schools are white and negro respectively up to
and including the direct assistants to fhe Superintendent of
Schools. Principals of both negro and white schools are
part ‘of the Superintendent's staff and participate in the
adaptation of their particular scliools to pupil requirements
and the edueational effectiveness of the several part [sic] of
the school system. The schools are equal in all respects
éxeept as toa slight advantage in favor of the negro teach.

“ing staff in terms of graduate training and salaries. The -

same total eyrriculum is made available torall Schools. Re-
sponsiveness to the aptitudes and needs of the pupils in
each is: secured by arranging a choice of elective subject
[sie] to be selected by the school on the “basis of student
a and guidance counseling.

f ° re ' 6 e
Student Test Grouping.

4. All pupils in, three significant grades of the Savannah
Chatham County school system have been tested annualls
since 1954 for psychometric intelligence and correlative
academic achievement fhrough a battery of nationally ae-
cepted tests administered by local personnel, supervised
and processed by the University of Georgia. This: program
was initiated prior to May, 1954 at the request of the Super:
intendent of Schools for Savannah-Chathgm County as
part of a comprehensive study of mental growth and. school

achievement for pupil placement and course selection and
content recommendations. The result of this testing pro-
gram has been considered by the Savannal-Chatham Coun-
‘ty Board of Education imarranging school curricula res pon-
sive to the abilities and learting characteristies of the two
student groups: © “2

.
oh. The psychometric test results have conclusively dem-
onstrated that the differences-ehet ween white and negro
“students. in learning capabilities and school performance
vary in increasing degree from the pre-sehool period
through the completion of high sthool. The differences be-
‘twooen white and negrg students weré consistent on all types
of tests and increased with chronglogical age at ae.
‘dietable and. constant rate, The negro overlap of the
median whity scores dropped from approximately Foo in
the lowest grades to 2° in the highest and indicated that
the negro group renched an edueational plateau approxt-
mately four years befere the white group, When a speeral
cootrol group was selected for identity of age and intelli-
genes quotient in the lower grades, the negro students
lagged. by. two to four years when the entire group reached
the I2th grade. * | we os, ee , j

’
°

G. The tests covered general intelligenee, reading and
arithmetic achievement, and mental maturity. On the last.
the white average was 20) points above the negro average,
The achievement tests showed majer ability pattern differ
erees, On reading comprehension and arithmetic funda-
mentals there was virtually no overlay between the two
groups.. a an

Basix of Test Variations, .

7. These differences in test results in Savannal-Chatham
County are not the result of the @dueational system or of

‘ ar 8 o “ye . ° * o
the social or economic differences in status or in environ.

ment of the students. These, test results "agree on a point
for point basis with, substantially identical results obtained

en

Sba- 4

from similar tests made in other areas of this country and |
abroad and in both segregated and integrated situations.
Additionally, quantitative and qualitative distinctions in
‘the Savannah-Chatham aud other test results’ have shown
the same variation in learning rates befween the two ethnic
groups even after the socio-economic factors. of the test

students had been equated. aa
—.

%; All.the evidence before the Court was to the effect
that thesfferences in test results between the white and
negro students is attributable in large part to hereditary
factors, predictably resulting Troma difference’ in’ the
. physiological and psychological characteristics of the two
races. The evidence establishes and the Court so finds that
of the tWwenty-point difference in maturity test results be
tweeh negro and white students in Savannah-Chatham .
County a negligible portion can be attributed to environ-
mental factors. Furthermore no evidence whatsoever was
offered to this Court to show that racial integration pf the-——
schools could reduce these differences. Substantially all the
difference between these two groups of clilidren is inherent
“nthe individuals and must be dealt with by the devendants
as an unchangeable factor in programming the schools for
the best educational results:

: _ Group Integration.

9, The students in Savannah-Chatham County sehools
are 6660 white, 40% negro, A school class mixed on. this
_basis would have a median progress rate 12,points below

that of the former white class, and 8 points above the
progress rate of the comparable former negro class. Two
thirds of the negro students would fail in this situation,
partienlarly. in the upper grades. This would place in the
May 28, 1963. 2

Jackson, Sr., Jacksonville, Fla. for plaintiffs.

J. M. Breckenridge City Atty., Cabaniss & Johnston, Jo-.
seph F, Johnston, Lange, Simpson, Robinson & Somerville,
Reid B. Barnes and Ormond Somerville, Birmingham, Ala.,

. for defendants.

.

Lyxye, District Judge. Lee
When the Armstrong case (CLA. 9678) was ealled for trial
on October 3,' 1962, plaintitf® im the Nelson ‘case (C.A,
10,188). moved for an order of consolidation or joint trial.
Since it appeared that these actions involved common ques-
tions’of law and fact the court entered an oral order con-
_solidating them for purpose of trial only and expressly
provided therein that all evidence offered and all objections
thereto on any grounds made by any party would be deemed
to have been offered and made in each case separately.

Resting jitisdiction upon 28 U.S.C.A. § 1343(3) and pro-
ceeding under 42 U.S.G.A. § 1983, plaintiffs in each case
brought a class action against defendants essentially to

-_

%
~

100a

¢
.

join-them from continuing’ “their poliey, practice, custom
and usage of operating a compulsory biracial school system
in the City of ‘Birmingham.

By stipulation-of all counsel of record each case was sub-
mitted for the judgment of the court upon the prayer for
final injunctive relief apon the pleadings and the. proof,
While written answers in behalf of defendants had not been
filed in the Nelson: case it was orally stated that’ their an-
swers in the Armstrong case tendered all relevant issues
except for'the insistence that plaintiffs in the Nelson case
had no standing to maintain their action for vindication of
their individual-rights or to represent a class. ’

- Faced with this threshold question, the court directed
that evidence first be offered relating to the status of the
Nelson childgen, Agnes and Oswald, of the ages of sixteen
and twelve? respectively. Consisting entirely’ of the testi-
mony of their father, Reverend T..N. Nelson, careful con-
sideration thereof results in ‘the finding of the court that
each of such children had de parted Birmingham for De-
troit several weeks’ before the filing of the complaint in
their behalf ;. that throughout the trial they were. living
there w ith their sister and attending the ‘public schools of.
Wayne County, Michigan, and that there; is no reasonable
probability of their return to Birmingham.

Since the father has no standing to sue for the depriva-,
tion of the eivil rights of his children, Brown yv. Board of
Trustees of LaGrange Ind. Sch. Dist., 17 F.2d 20 (5th Cir.
1951) and the children, recognized as the real parties plain-
‘tiff, were not at the time of the filing of the compiaint and
are not now pupils in or affected by the public school system
_ of Birminghan, it follows that neither has shown an injury
to himself and that neither has standing to represent the |

elass.. McCabe vy. Atchison, T: & S. F.- Ry. Co., 235 U.S. 151,
35 S.Ct. 69, 59 L.Ed. 169 (1914): Doremus v. Board of Edu-
‘cation, 342 U.S. 429, 432, 72 S.Ct. 394, 96 L.Ed. 475 (4952) ;

lla

Bailey vy. Patterson: WOU, S. BLL SZS.Ct. 549, 7 L.Ed. 2d 512
(1962); Conley v. Gibson, 2O FRED. SL (SLD. Texas, 1961).

f” Therefore, a separate order will be entered in the Nelson
case Vacating the consolidation and dismissing the action
for plaintiffs’ lack of standing to “ without. prejudice,
however, to their right to intervene or file’a supplemental
complaint in the Armstrong case in the-tvent of the return
of either to Birmingham, as wiil hereinafter more fully
appear. ‘

‘With respect to standing ti coniplain, mattets stand dif-
ferently in the Armstrong Gase. Although it was stipulated .
at the trial tha? the Shuttlesworth children, Ruby Fred-
ericka and F red L. Jr. .. and Carolyn Nash are no longer in
the Birmingham public school system and do not intend to
return thereto, it is tindisputed that the Armstrong chil-
dren, Dwi ght, Denise, James, Jr. and Floyd, have’ con-
tinuously been and are presently enrolled in such system.
They have an equitable right to maintain this suit as‘a
class action. 4

Plaintiffs rely upon. undisputed fagis in the record which -
are reprodaced in capsulated form, The white population
of Birmingham is 205,620; the Negro, 135,627. There are.
S high schools designated “W hite” with 409 teachers and
10,081 pupils; 5 high. schools designated “Negro” with 278
teachers and 6,748 pupils; 50 elementary schools designated
‘White’ with ¢Sk te a ‘hers and 29.578 pupils; 42 elementary
schools designated “Negro” with 697 teachers and 26,967
pupils. Never at any time has a Negro pupil been assigned
or transferred to a sehool dé signee d “White” or a white
pupi! to a school de ‘signated “Negro”. Without exception .
white instructional personnel have been assigned only to
schools designated “White” and Negro instructional per- !
sonnel only to schools designated “Negro”. White schools
are located with reference to’ the concentration of white
population and Negro schools with reference’ to the concen-
tration of Negro population, There ‘are overlappings (in

us

9 F ‘ 7

102a

the geograpiaal areas involved wherein there are whité
schools in. closer, proximity’ to’ the residences of Negro

.pupils than Negro schools. The -reverse situation obtains

with respect to white pupils. Notwithstanding, the custom,
usage and practice historically Poliowed, sanctioned and ex-

pected by Superintendent ind Board to be followed present-
ly, result in white pupils attending white schools and Negro
pupils Negro schools. : |

To summarize, it graphically appears from the testumony
of Dr: Theo R.. Wright, Superintendent of ‘Birmingham
‘Public Schools, that he and the Birmirgham Board of

*ducation have Gperated a segregated schoo] system based

. upon race in the past, are doing so now,'and have formu-

lated no plans to discontinue such an operation. | ’

For their part, the real defendants, Superintendent and
Board, advert to the allegation of the complaint that “the
plaintiffs herein have not exhausted the administrative .
remedy [sic] provided by the Alabama School Pla¢ement
Law”? and point to the uncontroverted evidence in this,

_record that at no time has any Negro child, gr anyone

, authorized to act ‘in his behalf, applied for enrollment in

or transfer to any. school designated “White” and pursued
the remedies afforded by such statute. Their reluctance to
. take the initiative in bringing abcat the integration of the ;
public schools stems from something more than blind
adherence to tradition. There is undisputed evidence in this
record that there is a “very strong opposition” on the part
of “citizens of all races” to thre mixing of the different races
in the schools. In addition, all witnesses who have been
intimately associated with the operation of the local system
over the period of many Years expressed thé opinion that
indiscriminate mixing of the races would create many prob-
lems that would be detrimental to the interests of both

7
.

a

1 Code of Ala., tit. 52, § 6111) et seq.

—*108a

groups, predicting the results of such a: procedure. by the
use of adjectives ranging from *‘ ‘chaotic™ to “catastrophie”.

Charts. re prése nting the results. of Kuhlmann. Anderson.
Tests administered to pups upon entering the first grade,
California Mental Maturity Tests, Stanford Achievement
Tests, and California Achievement Tests, all administered
without reference to pe ‘nding litigation, comparing the per-
formances of whité ‘and Nebro papils in the same grade
groups, were received in evidence as relevant to the con-
tention of defendants that there: are distinct differences in
the average or mean mental abilities of the two groups .
which they are obliged to take into account in maintaining
a sound educational program.

Of course the starting. point ‘in any school segregation
case must he Brown v. Beard of Education, 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed. 873- (1954), the imple menting decree of
the court. Brown v. Board of Education, 349 ‘US. 294, 75
S.Ct. 753, 99 L.Ed. 1083 (1955), and its reinterpretive _—
ion in Cooper v: Aaron, 398 U.S.T, 78 S.Ct. 1401, 3 L .Ed. 2 mot
5, 19 (1958). “The basie premise of the court was expressed
* in simple, uncemplics ited language: “Separate educational
facilities are inherently vaequal.” From it there flowed
freely and naturally the enunciation of the constitutional
principle: “Therefore, we hold that the plaintiffs and others
“simitarly situated for-whem the actions have been brought — _
are, by reason of the segregation complained ot, deprived:
of the equal protaction of the laws guaranteed by the Four-
teenth Amendme 347 U.S. at page 495 , 14 S.Ct. at
page 692.

Insofar as the opinions of experts in the fields of psy-
chology and anthropology, in de position, hook and pamphlet
“form, may constitute an attack upon the major premise of
‘the court, they are rejected out of hand. It would be super-
erogation to Jabor the obvious, that this co@rt is hound by
the opinions and judgments of the,Supreme Court.

/

€° 104a

But the problem does not end there, for district eourts
have been iivested with and are exfected honestly and fair-
Iv to exercise dis.@etion in the enormous task of desegregat-
ing public schonls. The course which the court should fol-

‘low was staked out in its opinion in Shuttlesworle v. Bir-
mingham Board of Education, 162 F.Supp. 372, 384 (N.D.

Ala.1958) wherein Judge Rives, as its organ, concluded with
the pithy)statement: Se

? °

“All that has been said in this present opinion must
he limited to the. constitutionality of the law upon its
face. The School Placement Law furnishes the legal
machinery for an orderly adininistration o§ the public
schools in a constitutional manner by the admission of
qualitied pupils upon a basis of individual merit with-
out regard ‘to their race or color. We must. presume
that it will be so administered. If not, in some future
-proceeditig: it is “possible that it may be deeiared
unconstitutional in its application. The responsibility
rests! primarily upon the local school boards, but ulti-

. mately upon all of the people of the State.”

The Supreme Court. on direct appeal, granted the motion
to affirm and affirmed the judgment upon the limited .
= grounds, quoted directly above, on which this court rested —

its decision. Shuttlesworth v. Birmingham Bd, of Educa-

tion, 358 U.S. 101, 79 S(t. 221, 3 L.Ed2d 145 (1958).

As this court sees it, the law of this case is that the Ala-

~ bama Schooi. Placement Law “furnishes the legal machinery

for-an orderly administration of the public schools in.a con-
stitutional manner by the admission of qualified pupils
upon a basis of ‘individual merit without regard to their

_raee or color”. Under that taw-the initiative is with -the

individual pupil, or those authorized to act in his behalf, to
apply for assignment or transfer. Befére this court may

a - 7

ou . |
_ grant injunctive refiet, the adminisfrative remedies pro-

15a

vided therein must first have been exhausted

Although the Court of

Appeals for. the Fifth C ireuit has

on frequent occasions come to grips with school segréga-
‘tion-problems and has been especially alert to strike down
deviations -by district courts from the constitutional norm

: . ee ° ° any,.as might be entitled to be prese nted, In case of any

unconstitutional application of the Alabama School Place-
ment Law against the plaintiffs, or others similarly situ-
ated, or.of any other unconstitutional action on the part
of defendants against them. The issues tendered by any
supplemental complaint will be given a preferred setting’
on the docket of this court. and will be heard on five days
notice to defendants.

.
Failure of the parents or guardian to appear at the ee = be
deemed a withdrawal of the application.- *

8. Hearings may be conducted before the board, or -before a
‘committee of*not less than three members thereof, or a ime amber
thereo?, or such person as the. board may designate as a hearing
examiner as prov ided hy_law. flearings will be held at such ‘times
‘and. gehen or its committee or hearing examiner may
lawtully de ine and may be adjourned from time to time for the
convenience of parties, witnesses, or the board or hearing examiner;
prov ided however that nothing herein shall preclude any applicant
trom filing a request for hearing in aecordance with Section 7 of the
Placement Act and the right to heve sueh hearing held beginning

“with the time prescribed therein.

9. Unless post ponement is requested by the parents or guardian,
the board will notify them-of its decision witltin twenty days after
the conclusion of the hearing. Exceptions to the decision of the
board may be filed, as allowed by law, within five days of notice of
the board’s decision, and the board shall meet within fifteen days of
the receipt of the exceptions to seneder the same.

1092

cr] nn 7. —

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF, GEORGIA, BRUNSWICK DIVISION
Lixpa Sur Gipson, by next friend, et al., Plaintiff's,

Vv.

_* Giyx» County Boakp or Epucation, et ul., Defendants.

U.S. Distri¢t Court, Brunswick Division
~Filed In Offiee,
September G, 1968
‘/s/ Mary R. Cross
~ Deputy Clerk/ ;
: oe
: PRE-TRIAL ORDER =

UPON the pleadifgs, the motion for acronis and
papers” submitted in support thereof, upon the arguments
and admissions of counsel for the parties and intervenors
made at a pre-trial hearing held this 6th day of Septe mber,

_ - 1963, pursuant to Rule 16 of the Federal Rules of Civil

Procedure, it is:

Onpenep, x

“1. -The motion for intervention is granted, and the
objections of. defendants thereto are overruled. The

Intervenors shall serve copies of their pleadings upon
the other parties-to the action and shall designate I. T.
Ward, 859). Hunter Street, N..W., Atlanta, Georgia for
service of further papers in the action. The eaption
of the-oase shall be deemed amended accordingly.

2. Defendants shall prepare ‘and submit to the Court
‘with reasonable promptness a plan for reorganization
of the schools subject to their jurisdiction along non-
racial lines which ‘shall. not. exclude from transfer
between schools any -applicant therefor solely on the
grounds of color or "other criterion unrelated to the

19a

educational and physical advancement and yettbeing .

— of the children converned.” Open hearings theredn

shall be held by defendants sitting as a school court

pursuant to Sec. 32-910 of the Georgia Code Anno?.as’ —

amended, and both pla*ntiffs arid intervenors ‘shall be

’ afforded full-oppertunity to be heard ‘therei ‘in on the

contentions contained in their pleadings.

-

yendants shall report such plan to the Court for
oval and shall give two weeks notice of hear--
ing before this Court thereon to all other parties. De-

fendants shall further recommend to the Court at such.
time whether to.approve or reject the prior transte ror-.
cers as being in accord with or outside-the ambit of °

_the plan so recommended, Plaintiffs and intervenors

shall serve and file exceptions t& the report not’ less
than two, (2) days before the date notice | for. hearing
thereon. Poe ee tn |

4. The issues reseryed for trial herein under thé
pleadings of plaintiffs and intefvenors shall be limited -
to those contained in their exeeptions-and the evidence

‘to be received thereon shall be limited to that contained

in the transeript made before the Board.

d. All other question, s shall be held in abeyance pend-
ing the coming in of the Board! s report and the hear ing
thereon. ;

</ F. Ms Searterr,
Uiited States. District Judqe.

. September 6, 1963. _ ‘asi .

ATTEST: A TRUE COPY

Certified to September 6, 1963
“/s/ Mary R. Cross
Deputy Clerk.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1424%3A3. Public record. Not legal advice.