Petition for Writ of Certiorari — Tyler Independent School District v. Justice, U. S. District Judge

‘In The ©

SUPREME COURT ——*

OF THE UNITED STATES —

TYLER INDEPENDENT SCHOOL DISTRICT ET AL.,

Petitioners,

v.

HONORABLE WILLIAM WAYNE JUSTICE, UNITED

STATES JUDGE For THE EASTERN DISTRICT OF

_TExas, TYLER DWision,

.R espondent:

_ Petition for Certiorari to the United States

Court of Civil Appeals for the Fifth Circuit and.

Petition for Writ of Mandamus — or Prohibition

MarsHALL SPIvey,

1101 Peoples Bank Building _

' Tyler, Texas 75701 —

Attorney for Petitioners .

SUBJECT INDEX

: : 3 Page

List of Authorities OE dene

Lis The Opinion Below . é. i ae

Jurisdiction of the Court | ae eee

The Questions Presented for Review 7

cinta of the Case pee hee oe

A. The Trial Court Proceedings 4,5

B. Facts Pertinent to the Issues Presented 5

C. Decision of the Court of Appeals ~ 5,6 |

Reasons for Granting the Writ 6, 7, 8, 9, 10, 11, 12

Conclusion pera : 2, 18, 14

Certificate of Service . Mies

| Appendix

i | 2 7

LIST OF AUTHORITIES

picaie VS, -Seamans, (C.C.A., 5th ie 1969) 4a. ;

F. 2d 767 10

Lisa vs. Sines es Leather Company, aie ) 352

US 249,. 256; 77 S. Ct. 309 1, 8 10

: Schlagenhaut vs. Holder (1964) 85 8. Ch 24 8,10.

’ United States VS. Raymond A. O'Connor (COA +s

- 2d 1961), 291 F. 2d 520, 100 A. L.R. 2d, 858. 10

Universal Oil Production eae vs. Hall,

(C:C.A., 8th Cir. 1935) 76 F. 2d 258, 265; cer-

tiorari denied, 296 U.S. 261, 663; 56 S. Ct. 143,

169, 80 -L. Ed. 441, 412. . ee ee

Webster Bisesilohr V3. Batis ie C.A. 3rd Cir.

1944), 145 F.2d 316 8

In The

SUPREME COURT

OF THE UNITED STATES |

‘No.

TYLER INDEPENDENT ScHoot DIsTRIcT ET AL.,

Pcie.

U.

HONORABLE WILLIAM WAYNE JUSTICE, UNITED

' STATES JUDGE For THE EASTERN DISTRICT OF

Texas, TYLER DIVISION, _ |

| . Respondent.

- Petition for Certiorari to the United States

‘Court of Cwil Appeals for the Fifth Circuit and

Petition for Writ of Mandamus and/or Prohibition

To THE “HONORABLE SUPREME Court

OF THE UNITED STATEs:

Comes now Tyler Independent School District, Board:

of Trustees of Tyler Independent School District, J.- |

2

~DoNALp GuINN, E. ‘W. CLAWATER, LEMUEL C, Hutcu-.

INS, THoMAS SprouLe, Martin THEDFORD, Martin

L. Epwarps, and VERNON V. Goss, as Petitioners, and

pray that the Court issue a Writ of Certiorari to review

' the Judgment of the United States Court of Appeals

for the Fifth Circuit rendered on January 12, 1972, in

the above styled cause, and in the alternative, issue a

Writ of Mandamus and/or Prohibition.

As grounds for granting a Writ of Certiorari or, in

_ the alternative, a Writ of Mandaiius.and/or Prohibi-

tion in this cause, the Petitioners would show the Court

as follows:

THE OPINION BELOW © .

The opinion of the United States Court of Appeals

for the Fifth Circuit is not reported and constitutes no

more than an order of denial of the Petitioners’ Petition,

for Writ of Mandamus and/or Prohibition filed in wit

Court.

JURISDICTION OF THE COURT |

The jurisdiction of this Court is invoked under the

provisions of 28 USC 1254(1) and 28 USC 165fa).

THE QUESTIONS PRESENTED FOR REVIEW

(1) Whether or not the Court of Appeals abused

its discretion in failing to grant the Petition for Writ of

Mandamus and/or Prohibition commanding the Hon-

orable William Wayne Justice, Judge.of the United

States District Court for the Kastern District of Texas,

Tyler Division, to vacate an Order dated December 17,

1971, and prohibiting him from entering an Order :

whereby the Court-appointed bi-racial ommittee shall ©

become an agent or master in chancery rs said pr oceed-

ings. oe

(2) Whether or not the Order herein complained, of

constituted a violation of Rule 53b of the Federal Rules

of Civil, Procedure. . .

(3) Whether or not the said Honorable William

Wayne Justice had the power as a District Judge to

‘ designate a bi-racial committee as an agent for the

Court and to convey unto such agent the ian

‘granted by such Order.

° (4) Whether or not such Order herein complained of —

constituted an abuse of discretion by the said Honor-

able William Wayne Justice and a usurpation of power |

by him. - : ee, ©

(5) Whether or not this Honorable Court should

exercise its powers and grant, in its discretion, a Writ of

‘Mandamus and/or Prohibition requiring the said Hgn-

orable William Wayne Justice to vacate said Order for’

the same reasons specified in the earlier application to

the United States Court of Appeals for the Fifth Cir-_

cuit. a A, Page A-1)

a &

__ STATEMENT OF THE CASE

A. The Trial Court Proceedings: |

Your Petitioners are the party: defendants in a con-

solidated action instituted in the United: States District

Court for the Eastern District of Texas, Tyler Division,

on'July 8, 1971. On July 8,. 1971, he Honorable William _

Wayne Justice, Judge of said District, duly entered an

Order appointing a bi-racial committee to function as

an advisory board to the school board. (Appendix B, ‘

. Page B- | . By subsequent order dated July 15, 1971,

the Court amended its order by directing the method of

nominations to the bi-racial committee (Appendix C,

PageC- | | | aa

The Court, without hearing.and without notice here-

in, entered its Order dated December 17, 1971, for the °

purported purpose of clarifying duties, responsibilities

and authority of the bi-racial committee. —

. D,PageD« |

The December 17. Order (Appendix D, Page D- |

provided that the bi-racial committee shall be an.agent

of the Court and the advice and recommendation of

such bi-racial committee shall serve as a basis for final.

action by the board or by the Court relating to matters

in the above styled suit. Such order went on to provide

._ that meetings, discussions and deliberations of the com-

mittee shall be conducted in executive session. No pro-

visions were made for the Petitioners to hear any evi-

dence or testimony submitted to the committee, nor to + ~

3.

* cross-examine any of the witnesses, nor to present any

testimony on their behalf. The committee was directed

to review certain areas as set out in the Order but no

specific: problem, controversy or issues were referred to

them, no such issues being in litigation at that time.

The Order further provided that to fulfill its duties; the

committee shall meet at least once each month. —

B. Fac acts Pertinent to the Issues Presented:

. *(1) There were no exceptional conditions existing in

the above numbered cause which warranted a reference -

‘to a master in chancery.

(2) The Order specifically provided that the bi-racial

committee was to formulate its Opinions and recom-

mendations from meetings and hearings conducted out- © ~

side of the presence of your Petitioners and that your

Petitioners were not given the right to hear testimony,

to cross-exqmine witnesses and to present their evidence

as to any issue before the bi-racial committee.

(3) No specific areas for inv eotigntions. were set out .

by the Order.

(4) The bi-racial committee was made up of persons

* who were not disinterested as required. by law.

(5), Such Order was entered without notice to any |

of the*parties or any opportunity for hearing thereon.

C. Décision of the Court of Appeals:

The Court of Appeals, on January 12, 1972, sniheiied

a Memorandum Order which simply denied the Peti-

tad

6:

: shamans’ suplicetidth for Writ of Mandamus and/or Pro-

hibition. 7

REASONS FOR GRANTING THE WRIT

The specific order herein complained of, unfortunate-

-ly, does not place a designation on the bi-racial com-

mittee other than an “agent”. Since the Federal Rules.

of Civil Procedure has no provisions for the appoint-

ment or.designation of an agent of the Court, per se, it

must be presumed from the similarities of power that

the Court was appointing the bi-racial committee to

serve as a master in chancery under the provisions of

Rule 53, Federal Rules of. Civil Procedure.

Based on the above assumption, stich Order of refer-

ence was and is in violation of Rule 53 of the Federal

Rules of Civjl Procedure, for the following reasons:

A. Such reference is not required by any ex¢eptional

conditions existing in the above numbered cases. ©

B. The powers contained in such reference consti-

tutes a violation of Petitioner’s right to due process of

- law as provided in the Fourteenth Amendment to the

Constitution of the United Stater of America in that

’ the bi-racial committee was to formulate its opinions

and recommendations from meetings and hearings con-

ducted outside of the presence of the Petitioners with

the Petitioners being given rio right to hear testimony,

to cross-examine witnesses and to present their evi-

dence as to any issue before the bi-racial committee.

C. The bi-racial committee is not directed by the

‘Order of the Court to a specific area or areas for its’

_ examination, but such direction was so broad and so

general as to constitute the bi-racial committee ‘as a

quasi tribunal for investigation of problems which may

_ or may not arise in the future, but which are not in

controversy at this time.

-D. The bi-racial committee is not qualified to serve

- as a master in chancery in that it was appointed from

. nominations.made by parties to the éases. in chief;

therefore, not disinterested persons as required by law:

E. The Order further provided thai the advice and

recommendations of the bi-racial committee will serve

as a basis for final action by the Board or by the Court,

thereby giving the report of ‘the bi-racial committee the

effect of a master’s report, which master’s report is by

law binding upon the Court unless clearly erroneous.

F. That the Order was entered without notice to any

parties and without any opportunity for hearing there-

on. .

Since this Honorable Court has the duty to formulate

the Federal Rules of Civil Procedure, it goes without

sayirig that it has the power to enforce these rules. A

particular case in point is the decision by this Court in

LaBuy vs. Howes Leather Company (1957) 352 US. -

249, 256; 77 S. ct. 309, 313, wherein the Court stated:

“As this ‘Court pointed out, in. Los Angeles Brush

Manufacturing Corporation vs. James, 1927, 272°

8

US 701, 706; 47 S. Ct. 286, 288, 71 L. Ed. 481:

AP hes (W) here the subject concerns the enforce-

ment of the * * * (r)ules which by. law it is the

duty .of this court to. formulate and put in force,

mandamus should issue to prevent such action

thereunder.so palpably improper as to place it be-

' yond the scope of the rule invoked.’ ”

This Court also recognized its right to use the discre-

tionary writ of mandamus to bring about: compliance

with a rule of: civil procedure in the case of Schlagen-

hauf vs. Holder (1964) 85 S. Ct. 234.

Not only did the reference to the bi-racial committee

occur without the existence of exceptional conditions,

La Buy, supra., but, the order set up the bi-racial com-

mittee as an administrative or investigative body there-

by allowing the committee to function in such a_

, capacity even though the Court itself is prohibited

from functioning in an administrative or investigative

capacity. Webster Eisenlohr vs. Kalodner, (C. C. A.

3rd Cir. 1944), 145 F. 2nd 316.

Another glaring ‘abuse of the Court’s discretion in

the Order of reference was the complete denial of pro-

cedural due process guaranteed by the Constitution of .

the United States of America. ‘The District Court re-

quired the bi-racial committee to hold its meetings in

executive session and ‘did not require the bi-racial.com-

mittee to conduct open hearings on issues coming be-

- fore them. While complying with the order of reference,

the bi-racial committee could formulate an opinion and

deliver a report to the District Court: upon which said

9

Court would base its order without providing to your |

applicants an opportunity to be heard or to hear the

witnesses appearing before the bi-racial committee.

This constitutes a clear denial of procedural due process’

*__.. aad constitutes. ablatant abuse of discretion and usur-—

‘pation of power. by, the trial court. ©

The very manner by which the bi-racial committee

was selected emphasizes the Court’s total disregard of

the provisions of Rule 53, supra. Instead of an impartial

person or persons to function as a master in chancery, -

the Court selected a committee of local citizens from a

group recommended. by the parties. A master in chan-

_cery’s sole function is to aid the Court of his appoint-

ment; he should never serve as a servant of the liti-

gants. Universal Oil Production Company _vs. Hall.

(C. C. A., 8th Cir. 1935) 76 F. 2d 258, 265; certiorari

denied, 296 U.S. 261, 663; 56 S. Ct. 143, 169, 80 L. Ed.

441, 472. :

' While it is clear from ‘the very order itself that the

Trial Court abused its discretion and was guilty of

unsurpation of power by failing to follow Rule 53, sup-

ra., your. applicants acknowledge their burden to show

this Court why the extraordinary Writ of Mandamus

and Prohibition should issue in this particular cause.

It has often been said that there are three basic ele-

ments which must exist in order for a Court to. be justi-

fied in issuing a Writ of Mandamus. These three are

(1)-a clear right in the Plaintiff to the relief sought;

10

(2) a clear duty on the part of the Defendant to do

the act in question; and (3) no other adequate remedy

available. Carter vs. Seamans, (C. C. A:, 5th Cir., 1969) -

411 F. 2d 767. In regard to- the third element, it is furth-

er stated that the alternative remedy must be adequate

and capable of affording full relief. Carter vs. ‘Seamans,

supra. a

It is apparently well settled that an or si appointing

a master in chancery, in and of itself, is not appealable.

For this reason, such complaints pertaining to a master

in chancery have consistently been attacked by peti-

tions for Writ of Mandamus and/or Prohibition. U. S.

vs, Raymond A. O'Connor (C. C. A. 2d Cir. 1961) 291

F. 2d 520, 100 A. 'L. R. 2d, 858.

In both the LaBuy vs. Howes Leather Company,

supra, and’ Schlagenhaud vs. Holder, supra, this Court,

in the exercise of its discretion, chose to issue the ex-

traordinary Writ of Mandamus in order to insure com-

pliance with its own rules of civil procedure. The La-

Buy case, supra, is particularly appropriate in-that it in-

yolved the reference to a master in chancery wherein

__ this Court “found that the required cnceptions! condi-

tions were not present..

In the case in chief, the District Court has presided

over the integration of the Tyler Independent School

District and has more familiarity with the related

‘problems than any other individual or individuals. Your

applicants do not quarrel with the right of the District

nal

11

Court to appoint a bi-racial committee as a tool to as-

sist in the community in solving its problems relating —

- to its school system. However, this is not what the .Dis-

trict Court has done. By the December 17 Order, the

bi-racial committee became an extension of the Court

with power far beyond an advisory committee: Con-

troversies which arise in the future can well be decided

by action of the committee without the benefit of the

judicial process. A party aggrieved by an Order based

on the recommendation of the bi- racial committee will

be forced to accept same without ever being heard, or

be relegated to an expensive appeal! with a limited rec-

ord at best. ; | }

.

The foregoing relates also the final requirement of

an adequate remedy. Although it is’ clear that the Dis-

trict Court has abused its discretion and has been suilty

of a usurpation of power, your applicants realize they

have the burden of convincing this Court it is necessary

to grant the relief herein prayed for. When the cir-

cumstances are examined from a practical point of view,

your applicants find themselves in a. position where

their every action is subject to the scrutiny of a com-

_mittee of laymen without the benefit of due process.

With the powers conferred by the December 17th Ord-

er, this committee can substitute its opinions for those

‘. of the School District and Board of Trustees. The

State of Texas provides that the schools are to be man-

aged by duly elected officials subject, of course, to judi-

cial review. By no means should a group of laymen

12

chosen, in effect, by adversaries be allowed to take

over the management of the Tyler Independent School |

system. Unfortunately, if the December 17th. Order is _

allowed to continue in effect, such would. be the case.

CONCLUSION

It is anticipated that the opponents to the applica-

tion will attempt to make a civil rights case out of the

matter. However, such i is plainly not the case. Even in

a case where such extraordinary circumstances exist

that warrants a reference to a master, the least that

should be required is that such reference follow the

rules set by.this Court so that the parties are afforded

due process and thus given the opportunity for justice

. to prevail. Such is not the case in this cause. ‘The fact

-that the District Court has chosen to disregard the

specific instruction of this Court and the established

law pertaining to master in chancery, is plain on the

face of the Order itself. Regardless of what the Trial

Judge intended, his Order created a quasi judicial en- -

tity which has more power in the administrative and

investigate areas than the Court itself. The net effect

of such Order is to remove.the Board of Trustees as

the head of the School District and substitute a group

of laymen who are not responsible to people of the

School District or the State of Texas. Neither Con-

gress nor this. Court has approved this manner of con-

- trol. The preceding statements are the real issue in the

case and the sole reason for this application. Unless

4

13

this Court exercises its discretion and grants the Writ

herein requested, a District Court Order will be allowed

to stand which ignores this Court’s rules and the well

established case law; however, the real harm will be

to the citizens of Tyler, Texas, who have been de-

prived of their control of the school system by this 1 im-

proper and erroneous Order.

Insignificant’ as this case may: seem at first blush,

when compared with monumental cases pending be-

_ fore this Honorable Court, the issues herein presented

~ can have far reaching effect on our whole system of

Government. To allow the Order to stand by refusing

this Application, will be the same as giving silent ap-

proval to a method whereby a District Court can,

—_threugh an-agent, review-and-eontrol _duly-elected of-—————

fiicials and a political subdivision of a State, not for

alleged misconduct or failure to follow the law of the

- land, but merely because they might not follow the

‘wish of the Trial Judge or special interest group.

Normally, the reasons given by Courts in appointing

bi-racial committees are to assist the various elements

of the community in harmoniously working toward an .

integrated school system. As this Court well knows,

there are a great many ways and methods of attempt-

ing this—some reasonable and some unreasonable—

some work harmoniously—some create great disunity

and disruption. The Courts have at best a very delicate

problem. To allow a bi-racial committee to assume the

14

“erroneous power given it by this Court, even if it were

constitutional (which is vigorously denied) would in-

’ variably substitute the Judgment of the Committee for

that of the duly elected school officials. It in effect pre-

judges the action, of the duly elected officials and as-

sumes that whenever an issue occurs that the elected

officials will improperly decide it. ts

Therefore, for the foregoing reasons, it is ened that ;

this Petition for Writ of Certiorari and in the alterna- -

tive, the Application for Writ of Mandamus and/or

Prohibition be granted and that upon final hearing, the

Judgment of the Court of Appeals be reversed and that

the Writ of Reencemus thereof be issued by this Honor-

able Court.

Respectfully Submitted,

Witson, MILLER, SPIVEY,

SHEEHY and KNOWLES.

Marshall Spivey-

© 15

CERTIFICATE OF SERVICE

I certify that three copies eagh of the foregoing Peti-

tion for Certiorari to the United States Court of Ap-

peals For the Fifth Circuit.and Petition for Writ of ©

Mandamus and/or Prohibition were served upon The |

Honorable William Wayne Justice, Judge of the United

' States District Court for the Eastern District of Texas,

Tyler Division, Federal Building, Tyler, Texas 75701;

Mr. Ken T. Miller, Bryant Petroleum Building, Tyler,

Texas 75701; Attorney for Curtis Dunn et al; and Mr.

Roby Hadden, United States Department of J uistice

Federal Building, Tyler, Texas 75701, by placing the

same in the United States Mail, properly addressed

. and postage prepaid, on this the ay of April,

1972..

Marshall Spivey ;

A-1

APPENDIX A

U.S. COURT OF APPEALS ~—

FILED

Jan. 12 ,72

EDWARD W. WADSWORTH

CLERK

. In The

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-1006

TYLER INDEPENDENT SCHOOL DISTRICT, ET AL.,

Petitioners,

versus |

HONORABLE WILLIAM WAYNE JUSTICE, UNITED

STATES JUDGE FOR THE EASTERN DIsTRICT

oF TEXAS, TYLER DIVISION,

| Respondent.

Appeal from the United States District Court for

the Eastern District of Texas.

Before THORNBERRY, MORGAN and CLARK, Cir-

cuit Judges. _~

BY THE COURT: |

IT IS ORDERED that the petition for writ of

mandamus filed in the above styled and numbered

cause is hereby denied. |

Bl

APPENDIX B

: FILED :

U.S. DISTRICT COURT

EASTERN DISTRICT OF TEXAS

JUL 8 1971

JAMES R. COONEY, CLERK

In the

UNITED STATES COURT OF APPEALS

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

CIVIL ACTION NO. 5176

UNITED STATES OF AMERICA

v. ees

TYLER INDEPENDENT SCHOOL DISTRICT, ET AL.,

MEMORANDUM OPINION AND ORDER

On April 12, 1971, plaintiff filed a motion for sup-

plemental relief in this case. In their motion the* Unit-

"ed States asked the Court to supplement the July 21,-

1970 order of this court in this case by (1) requiring

the maintenance of all activities, curricular and extra-

curricular, on a non-segregated and otherwise non-

discriminatory basis and -(2) requiring the establish-

_ ment of a bi-racial committee charged with the respon-

sibility of reviewing the operations of the school district

relevant to the achievement of a unitary school system.

‘A TRUE COPY I CERTIFY

JAMES R. COONEY, CLERK

U.S. DISTRICT COURT

EASTERN DISTRICT, TEXAS

By Joyce Almaraz

*

‘B-2

The hearing on this motion was consolidated pur-

sugnt to Rule 42(a) of the Federal Rules of Civil Pro-

0 with the hearing on a motion for preliminary

injunction in the case of Dunn, et al. v. Tyler Inde-

pendent School District, et al., Civil Action No: 5285

(E. D. Tex.) inasmuch as common issues of fact were

raised in each motion.

The factual setting for this motion is set forth in

the recent opinion of May 27, 1971 in the Dunn case.

Evidence at the hearing indicated that upon the clos-

ing of Scott High School, pursuant to this court’s

order of July 27, 1970 (as modified on August 10, 1970),

distinctions between the former Scott students re-

assigned to Tyler High School and white students who

traditionally attend Tyler have been expressed in both

the feelings and actions of the students and school

- officials. Consequently, there was an increasing dicho-

tomy between some black students and some white stu-

dents and faculty during the school year. _ 3

It was in this context that a cheerleader election was

held at Tyler High School on March 23, 1971.' The

ballot prepared for this election listed four black candi-

dates separately from ten white candidates and in-

structed the students to vote for four white and two

black students. While this type of election insured |

~ ‘During the 1970-71 school year the cheerleading squad at Tyler

Ta ee eed tom appeinted to the Sonit cheerleading

team prior to the court order of July 27, 1970 were added to the

Tyler squad upon their reassignment to Tyler in September 1970.

B-3

black representation on the cheerleading squad, the

racial distinction on the ballot reemphasized the

dichotomy between the former Scott students and the

“Tyler” students and increased the already existing

tensions arising from this dichotomy. The facts sur-

rounding the student protest and the suspensions aris-

‘ing from this protest have already been set forth in

the Dunn opinion of May 27, 1971.

Defendant school district has not opposed the re-

“quested amendment to this court’s earlier orders in

this case as it pertains to extracurricular activities. Ob-

jection has been raised, however, to the formation of a

bi-racial committee on the grounds that such’a commit-

tee would serve no useful function. Yet, the testimony .

at the joint hearing on this motion and the motion in

the Dunn case consistently shows a lack of communica-

tion between the black and white community in ad-

justing to the transition from a dual to unitary system.

The need for a bi-racial committee to facilitate in the

resolution of the present disagreement is more than

clear in this situation. The mere fact that,a dispute

arising out of a cheerleader election has been brought

before the federal courts speaks loudly of the need for

some mechanism wherein issues affecting the conver-—

sion of the school district to a unitary system can be.

- brought out, discussed, and, hopefully, resolved with-

out need for litigation. The advisability of establishing

bi-racial ce“mittees has been clearly stated by the

B-4

Fifth Circuit Court of Appeals. Ellis v. yoo of Public

~ Instruction of Orange County, 423 F. 2d 203 (5th Cir.

1970); United States v. Hinds County School Board,

417 F. 2d 852 (5th Cir. 1970); “Singleton .v. Jackson

Municipal School District, 426 F. 2d 1364 (5th Cir.

1970) ; Hightower v. West, 430 F. 2d 552 (5th Cir. 1970) ;

Davis and United States v. Mobile County, 482 F. 2d

883 (5th Cir. 1970). In requiring the formation of such

a committee in Valley v. Rapides Parish School Board,

313 F. Supp. 1193, 1206 (W.D. La. 1970) the district

court observed that to many black students, there ap-

pears to be an “inability of the white man, even faintly,

- to comprehend w hat gnaws at the heart and soul of

the black man, but [that] this coin has two sides and

often black people cannot comprehend that whites also ~

experience. frustration and injustice. Communication

between the races is difficult on today’s market. That

is why it is so important that a bi-racial committee. be

activated.” This committee can be “charged with the

responsibility of investigating; consulting and advising

with the school bdéard periodically with respect to all

matters tending to promote a unitary system...” Id.’

. at 1206.. |

More recently, Judge Scott, in the.case of M onteilh,

et al. v. St. Landry Parish School Board, C.A. No.

10,912 (W.D. La. March 25, 1971) created a bi-racial

committee in order to: .

(1) Insure adequate wud impartial eventiqntion

and_ responsible recommendations on such |

B-5

racially oriented problems as. may be referred

to it; :

(2) Create an avenue of communication betweén

the Black and White elements of the com- -

munity regarding the solution of such prob-

lems;

(3) Afford local citizens an effective means of

settling and solving the problems of their own

schools through their own efforts rather than

through the adversary machinery and in the

controversial atmosphere of the Courts; and

(4) Promote an environment of understanding and

common purpose between the Black and

White elements of the community so that a

superior public school system. may continue

to function in St. Landry Parish, Louisiana.

The duty to achieve the goal of raceless public

schools and the burden of obtaining such is on school

boards, either alone or in conjunction with cooperative

efforts of parent organizations, bi-racial committees or

other similar groups, and the burden of obtaining such

end should not be placed on the judiciary. United

States v. Board of Education of the City of Bessemer,

396 F.'2d 44 (5th Cir. 1969), appeal after remand, 417

F. 2d 46 (1970). That a school board be required to

have the benefit of community and school committees

to assist in the affirmative transition to a unitary

school system is not unreasonable.

B- 6

Therefore, it is hereby ORDERED, ADJUSTED

and DECREED that:

1. Defendant school ‘board is hereby enjoined from .

maintaining and conducting all activities, curricular

and extracurricular, on a segregated or otherwise dis-

- criminatory basis, so that no student is effectively ex-

cluded fram attending or participating in any school

— on the basis of race,-color or national origin.

3 bi-racial committee shall be established -con-

sisting f sixteen persons, composed of an equal num-

~~ ber of black and white persons. Sixteen nominations

shall be submitted. to the Court by plaintiffs in the

Dunn case and sixteen nominations shall be submitted

bythe school. board. These submissions shall contain

pertinent ‘information about the background of each

nominee, including race, age, educational background,

number of children in the school system, employment

and community organizations to which he ,or she be-

‘longs. The members of the bi-racial committee shall

be representative of a cross-section of the Tyler com-

munity.

After the committee is appointed, tiny shall select

a chairman. The chairman shall alternate annually be-

_tween a black and white chairman. Each member shall

be appointed for a two year term, and shall be eligible

for re-appointment. In the event of a vacancy created

by an expired term, death, disability, resignation or re-

moval by the court for cause, such vacancy shall be

filled by a person of the same race as the member ‘he or

she is replacing. | -

B-7 >

The bi-racial committee shall be charged with the °

responsibility for discussing ways and means. of |

fchieving inter-racial harmony and understanding:

among students, teachers, and patrons, “and shall

function as an advisory body to the school board. The

committee shall review all areas of school operation

‘relevant to the achievement o a unitary school sys-

tem, and shall investigate and review any complaint

directed to them concerning this operation. They shall

advise the school board of their findings and conclu-

sions. 3

3. Upon its appointment, the bi-racial committee

shall investigate and review the cheerleader election at

Tyler High School and make a report to the school

board with findings and conclusions as to the most

equitable means of resolving this dispute. |

4, By not later than August 15, 1971, the school board

shall report to the court their recommendations for re-

solving the cheerleading dispute, including in the re-

port recommendations made by the bi-racial committee. —

The court shall give substantial ‘weight to the findings

and conclusions of the bi-racial committee in resolving

the dispute, and in resolving further problems which

might be brought to its attention regarding the opera-

tion.of the Tyler School Systeni.

SIGNED and ENTERED this 8th day of July, 1971.

Wm. Wayne Justice

UNITED STATES DISTRICT JUDGE

C-1

APPENDIX C

FILED

U.S. DISTRICT COURT - *

2ASTERN DISTRICT OF TEXAS

JUL 15 1971

JAMES R. COONEY, CLERK

- BY JOYCE ALMARAZ

DEPUTY

In The

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

CIVIL ACTION NO. 5176 —

Unrrep STATES OF AMERICA

ow

Tyier Inperenpent ScHoor District, ef AL,

AMENDMENT OF ORDER ENTERED JULY 8, 1971

The Order of the Court dated July 8, 1971, is hereby

amended as follows: A

The sixteen (16) nominations submitted to the

Court by the Plaintiffs in the Dunn Case shall be com-

posed of eight (8) white and eight (8) black nominees.

The sixteen (16) nominations submitted to the Court

by the School Board shall be composed of eight (8)

white and eight (8) black nominees. .

The nominations by the Plaintiffs in the Dunn Case.

and the nominations by the School Board shall be sub-

mitted to the Court not later than July 23, 1971.

C-2

Except as herein amended the Order of the Court

dated. July 8, 1971, shall in all respects remain the .

same. :

SIGNED and ENTERED this 15th day of July,

i971. |

Original Signed by Wm. Wayne Justice

JUDGE, UNITED STATES DISTRICT COURT

A TRUE COPY I CERTIFY

aA TERN Otte TEXAS

DEPUTY JOYCE ALMARAZ

D-1

APPENDIX D

FILED

U.S. DISTRICT COURT

EASTERN DISTRICT OF TEXAS

= DEC 17 1971 .

JAMES R. COONEY, CLERK

BY MYRA BARTON

DEPUTY

‘In The

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

CIVIL ACTION NO. 5176

Untrep STATES OF AMERICA

° v. fe

‘. "TYLER INDEPENDENT ScHOOL DISTRICT, ET AL,

Ps

CIVIL ACTION NO. 5285

Curtis DUNN, ET AL,

; v-

TYLER INDEPENDENT SCHOOL DISTRICT, ET AL, -

ORDER CLARIFYING DUTIES, RESPONSIBILITIES

AND AUTHORITY OF BI-RACIAL COMMITTEE

On November 19, 1971, this court received a letter

from Chairman James C. Wynne, Jr., on behalf of his

A TRUE COPY I CERTIFY

JAMES R. COONEY, CLERK

U.S. DISTRICT COURT

EASTERN DISTRICT, TEXAS

BY MYRA BARTON

DEPUTY

D-2

committee, requesting additional clarification of the

duties and responsibilities of the Bi-Racial Committee

‘ordered by the court on July 8, 1971, and appointed on

August 3, 1971. In response to that letter, the following

additionah guidelines are provided and compliance

ORDERED: |

1. The Bi-Racial Committee shall no longer be

exclusively an advisory body to the Board of Edu-

cation and administration of the Tyler Independ-

ent School District, but is charged with the re-

sponsibility of acting as an agent of this court to

advise and make recommendations to the court in

the transition of the District to a unitary status.

2. The Committee shall carefully review the fol-

lowing areas, which the Supreme Court has ruled

may reflect the racial policies and practices of a

school system: (1) faculty and staff, (2) trans-

portation of students, (3) extracurricular activities,

(4) school facilities, and (5) student assignments.

Other areas which: may appear relevant from time

to time or may be refe to them by the court

or the Board of Education may also be reviewed.

3. Meetings, discussions and deliberations of the

Committee shall be conducted in executive session;

and its‘recommendations to the court on any mat- .

ters coming before it shall be considered privileged

and not released to the press or otherwise made

public except through the orders of this court.

4. The Committee may receive referrals or com,

laints from the school administration or Board o

education, the court, or individual citizens in the

community. They are authorized to hold hearings

and conduct public meetings from time to time

as they deem, necessary. In investigating com-

“

D3 me Far

stibinn they are.encouraged to take advantage of ©

— grievance procedures.

5. In order to fulfill its duties, the Committee

shall meet at least once each month and shall make

.. formal reports to this court and the Board of Edu-

cation at least once each quarter.

6. The Committee shall adopt its own rules of

procedure to govern its meetings where not spe-

cified in this and prior orders. By-laws shall be

filed with the court or with the Board of Educa-

tion.

It is further ORDERED that the Board of Educa-

tion of the Tyler Independent School District, the

. Superintendent of Schools, all other officials, teachers,

agents and employees of the District, and all other

persons acting in concert with them, cooperate fully

with the Committee to effectuate its purposes and ob-

jectives. To this end, the Board shall designate not less

than one nor more than three persons, who shall be

members of the Board of Education or members of the

administrative staff\of the Tyler Independent School

District, to act as liasion between the Bi-Racial Com-

mittee and Board of Education, and to attend the

meetings of the Bi-Racial Committee: when requested

to do so by the Committee.

‘The Community Relations Service (CRS), Depart-

ment of Justice, by and through its Regional Director,

Mr. Larry Ramirez, 1100 Commerce Street, Dallas,

Texas 75202, is hereby requested by the court to meet

with the Committee. within 15 days after the date of -

ot.

this order to assist in its ienenrenins and additional

organization. ° - ; :

. The Court believes that the Bi-Racial Committee .

- will provide a valuable and. necessary service to the

court and to-the Board of Education, and more im-

portantly, to the school children and parents of the

Tyler Independent School District. It is not the pur-

pose of the Committee to supersede the Board. Its ad-

vice and recommendations, reached objectively and in

a non-partisan manner; will serve, however, as a basis

for final action by the Board or by the Court in matters

relating to the desegregation process.

. Let the foregoing’ be served upon the Tyler Inde-

pendent School District School Board, by and through

its President, Lemuel Hutchins, and upon the Super-

. intendent of Schools, James Plyler, members of the

_ Bi-Racial Committee, and all other parties through -

their attorneys of record, by certified mail.

SIGNED and ENTERED this 17th day of Desue-

ber, 1971.

Wm. Wayne Justice

UNITED STATES DISTRICT JUDGE

°