Petition for Writ of Certiorari — County Board of Education of Richmond County v. Acree

7 sol 79-7940 | FILED

D

JuL 14 wre

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

No.

COUNTY BOARD OF EDUCATION OF

RICHMOND COUNTY, GEORGIA, ET AL.,

Petitioners

versus

ROBERT L. ACREE, ET AL.,

Respondents

versus

ANN GUNTER DRUMMOND, ET AL.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI

INDEX

sthite: fi»

TO PETITION

Opinions Below tote eeeeeeeeeece

Jurisdiction oe

Questions Presented ee ease neces

Statement +2. 22. 68/22 ee Be!

Reasons for Granting

This | ee aS

Conclusion

TO APPENDIX

Order of District Court

Opinion of Fifth Circuit..

Denial of Motion for

Rehearing

Page. -

TABLE .OF CASES

Acree v County Board of Education

of Richmond County, et al., 458 :

F.2d 486 ee 2 A-34 0

Swann Vv Charlotte-Mecklenburg _ 2s

County, etc., 402 U.S. 1;.91....-.. +}

S Ct. 1267; 39 Law Week 4437......2, §

Winston-Salem/Forsyth Board

of Education v Scott, et al ESees?.

404 U.S. 1221; 92 S.Ct. 1236......5, 8

IN, THE.

SUPREME COUNT OF THE UNITED STATES

October Term 1972

NOL 28 Gi

COUNTY BOARD OF EDUCATION ‘OF

RICHMOND: COUNTY, GEORGIA, ‘BT: AL.

- Petitioners

: versus went ge

ROBERT. ‘L. “ACREE ; ‘BT. AL.

Respondents

versus

ANN GUNTER DRUMMOND, ET AL.,

Respondents

PETITION FOR-A WRIT OF CERTIORARI

TO THE UNITED STATES ‘COURT “OF : dy all

FOR THE FIFTH CIRCUIT’

PETITION FOR CERTIORARI

The Petitioners, County Board of

Education of Richmond County, Georgia,

respectfully pray that a writ of certiorari

issue to review the judgment and opinion

x

of the United States Court of Appeals

for. the Fifth Circuit entered March 3], 1972; .

cohearigg, aie April 18, 1972 (Appendix

B. Dp. ;

OPINIONS BELOW

The basic decision involved here is that

of the United States Court of Appeals for

the Fifth Circuit, 458 F.2d 486 (Appendix

B, p. A-34).. The District Court establish-

ed and approved a plan for the desegregation

of the County School System insofar as the

elementary schools were concerned. At the

time of the decision which is here con-

plained of, no plan for desegregation of the

secondary schools had been adopted by the

District Court (Appendix A. p. A-1 ). The

District Court had been ordered on July 1, B71

to put into effect a plan that compiled with

the principles established in Swann v

Charlotte-Mecklenburg County, ete., 402 U.S,

1; 91 S Ct. 1267; 39 Law Week 4437. All

parties appealed from the decisionof the

District Court, each relying on an interpre

tation of Swann. The Fifth Circuit affine

and remanded the case to the District

Court on the basis of its interpretation of

the requirements of Swann.

_ JURISDICTION

The jurisdiction of this court is

invoked under 28 USCA Sec. 1254 (1).

QUESTIONS PRESENTED

«$.

A. Whether the Fifth Circuit has

correctly interpreted the intent of this

court as set out in Swann?

B. Whether the Fifth Circuit has

correctly interpreted that portion of Swann

which states as follows:

"An objection to transportation of

students may have vitality when the time

or distance of travel is so great as to

risk either the health of the children

or significantly impinge on the edu-

cational process... It hardly needs

stating that the limits on time of travel

will vary with many factors, but proba-

bly with none more than the age of the

students."

C. Whether the Fifth Circuit has erred

in affirming a partial. plan of desegregation

affecting only elementary schools insofar,

as it could not be determined at the time

of the decision whether the elementary plan

when combined with the secondary plan

would be constitutional.

D. Whether the present elementary schodl

plan should be reversed and remanded insofar

as the present elementary plan is adminis-

tratively and financially impossible to

perform and does not meet the guidelines

laid down in the Swann decision.

STATEMENT

This case has been in the courts since

1964 at which time a freedom of choice plan

~f-

was in effect in Richnons County, Georgia.)

eae

&

Subsequent to 1964, ‘the plan has been

refined and modified several times. The

issue in question before this court’is‘a ©

result of the Order of January 13; 1972 of «.

the District Court (Appendix A, p. A-1 ):

and the last decision of the Fifth Circuit

(Appendix B, p. A-34) in which the decision

of the District Court wa: affirmed and ~. -

remanded.

4

«EE

Petitioner believes that the Fifth

Circuit has misconstrued the intent of :

Swann and that their decision oversteps: the

bounds of latitude and guidelines presented

in Swann. This is the thrust of this

petition.

oh.

REASONS FOR GRANTING THIS WRIT

The granting of the writ of certiorari

offers this court an opportunity to (1)

refine its decision in the case of Swann v

charlotte-Meeklenburg Board of Education,

402 U.S. 1; 91 S.Ct. 1267; 39 Law Week

4437; (2) to determine the limits and

requirements set by Swann relating to the

distances Of bussing allowed; (3) to

determine and define when the transportation

of students significantly impinges on the

educational process; (4) to determine the

limits to which bussing may be consti-

tutionally used as a tool of desegregation

if other workable tools of desegregation

are available to the court; (5) to refine

the decision in the case of Wineton-Salem/

Forsyth County Board of Education v Scott

et at 404 U.S. 1221; 92 S.Ct. 1236

The petitioner contended on appeal

before the Fifth Circuit that its school

system meets constitutional standards.

Petitioner further contended that Swann

did not require extensive transportation

of students as proposed by the District

Court. Therefore, to decide the basic

legal issue presented by this petition,

it must be determined whether the Fifth

Circuit has misconstrued the intent of this

Court in Swann, an important Federal

Question within the meaning of Rule 19 (1)

(b}). Furthermore, there is an overwhelming

necessity to determine and define exactly

when the transportation of students impairs

the health and welfare.of such students and

is.

significantly impinges an the

process.

Paradise s Cho Oper arte iy hie 2

--( ke fe ‘of:Petitioner hat

trans pian impose

upon » whem. i @

by any standard: | ocomparsion j

more severe than’ the Plan approved by t

Comenewares afst4 dn dae wid Choa

averaged “about seven miles and would

“not over 35 minutes at the most.” '

ly, both transportation times and dicta

in Charlotte-Mecklenburg County actually) i)

decreased with implementation of court .;cl»

ordered desegregation. Such is not the «at»

situation in Richmond County, Georgia. - §/ ft»

ton eE

Prior to the implementation of the onder)

of the District Court, bus routes in’ Richemd

County were of reasonable distances and fabs

travel times. Rural school district routes:

were somewhat longer, but took less time to.

travel because of open roads and an absence:

of traffic congestion. The rural school :+

districts are not affected by the Court’s §-

order as they already meet Cons ti tutional: «:

Standards. rm

: ers + %

as

clustered tH a — bee 5)

and Nati sat ils (arades e ted

|

in a. arene area. | Flora oF. -7).is

located in, the asenke ro

distance .o of otreved between. Floyd 7ouane Garrett

is 6.4 miles each way. distance mee

not take Pe Be feldovea He i: eaejectue

route tha . followed to a tf ay “of

he scdent ve6 be _and @livered

to se echoal . tote eee ‘trip. sions the

actual route will be. somewhat more than

12.8 miles. See Se

In addition to the distances stated

immediately above, the bus routes would.

have to be made thr h congested downtown

traffic and intersections which would add

considerable travel time to each Erdp

There are no freeways or interstate hi

as were available in Charlotte upon which

the students could be transported to

shorten travel time.

Anotkes-sisiiar example of the severity

of the court-ordered trans sperrsssen plan

is Zone B of Phase III. is Zone

poxse

involves the clustering and pairing of four

elementary schools. Walker (grades 5- site.

Lamar (grades 1-3), Monte Sano [( pea -

and Lake Forest Drive (grades 1- tas”

Forest Drive School is located 2 a surburban

area while Walker is located in the cent

of Augusta. The distance of bepeta --

tween Lake Forest Drive and Walker is

miles each way {round trip 11.8 aites);°2

This does not take into consideration.

actual bus route which in this instance _

will oS Sealstasec, longer because of

pick- rements, . oo

Again, as in the ‘T aatee ex te, bus

routes of necessity will be th

gested downtown traffic and intersections?

which will add considerable travel cing

All of the bus routes explained above

will be much longer than any previously .

operated under the old theapportetion se

system. Many of the students affected by ©

the order of the District Court had not iat

previously been transported,

*

i?

y

~

;

.

»

The two examples above explained are

not peculiar. All of the Zones pose

Similar severe problems.

The bus routes illustrated above will

each take an average daily travel time of

approximately two hours. Although all bus

route distances and travel times have not —

yet been computed, the examples above cited

are sufficient in and of themselves to

allow this Court to determine‘whether the

poder. 3 (0 in Richmond County, Georgia,

téhtly offensive to constitutional

standards as school facilities are avail-

ablé at lesser distances. Winston-Salen/

Foreyth County Board of Education v Seott

et al. 404 U.S. 1221; 92 S.Ct. 1236.

-~

-9-

The above examples also present the

legitimate questions as to whether the

linits of Svann have been atecees

and misapplied in our case. s is

patently clear in considering the length

of time involved, the length of the bus

routes, the fact that the bus routes are

through heavy traffic and the fact that

the students involved in this massive

transportation are the youngest children

in the school systen.

Similarly, this Court in Swann held

that “the constitutional command to

desegregate schools does not mean that

every community must always reflect the

racial composition of the school system

as a whole.” Yet in the affected elemen-

tary schools in Richmond County, Georgia,

that is exactly what has happened.

The racial composition of students in

Richmond County is approximately 60% white

and 40% black. Under Plan III, adopted

by the District Court for the elementary

schools, however, this ratio is expressly

fixed. The ratios of black students in

each of these schools are as follows:

Zone A 40.8%

Zone 46.1%

Zone 44.4%

Zone 43.7%

Zone 44.0%

Zone 30.2%

Zone 38.8%

Zone H 43.1%

Zone I 40,18 <a

It thus is clear that the plan as —

approved contains an almost. exact ratio ee

of black to white students in almost .

every instance. This result was not in- ~~

tended by Swann and thus, this case gives

the Court a chance to clarify its meaning

in Swann,

With each example given, the severity

and unreasonableness of the plan, as

adopted, becomes clearer. To illustrate

this point, it is necessary only to

demonstrate the transportation statistics

including costs. The desegregation plan

was to be implemented in three phases and

therefore for convenience the statistics

are broken down into phases.

Phase I

Two thousand,two hundred thirty-one

students were ordered transported under

this phase of the plan. To implement

the actual transportation, it was necessary

to add 15 additional buses and drivers.

Also six shop personnel were added to enable

the school board to implement Phase lI.

The Director of Transportation had

estimated it would take 14 additional buses

to handle Phase I and his estimate was

almost entirely accurate.

Furthermore, the implementation of Phase

I added 67,000 additional bus miles from

February 15, 1972 (the day of implementation

through the end of May 1972, a period of only

three and one-half months.

eR.

The increased operating costs, for

three and one-half months, not including

the cost of buses, was $38,500.00 for

Phase I.

Phase II

One thousand and forty-four students

were ordered transported under this phase

of the plan. To implement the actual

transportation, it was necessary to add

13 additional buses and drivers. It had

been estimated that only seven additional

buses would be needed for this phase of

implementation, but the Director of

Transportation, had severely underestimated

the actual needs.

Furthermore, the implementation of Phase

II added 38,010 additional bus miles from

March 15, 1972 (the day of implementation)

through the end of May, 1972, a period of

only two and one-half months.

The increased operating costs for these

two and one-half months was $38,500.00,

excluding the cost of additional buses.

Phase III

Phase III is by far the largest of the

phases that are to be implemented in the

elementary schools as a result of the Court

order. It is to be implemented with the

beginning of the school term, 1972. Six

thousand and twenty-three students will be

transported under this phase of the plan.

-17-

To implement the actual transportation, ae

will necessary to add 42 buses and» ss:t

drivers. 8 One, es , » ei

t2o93 dp

| otem

Furthermore, the implementation of :

Phase III, will add 380,100 additional

transportation miles over a nine month

period. ;

The increased pepe nens «ape oo added - >

by Phase III for coming school term =i:

will be $218,420.00, not including the « +)

cost of additional buses. AW

> eye

Although Phase III, is based on >i qm

estimates, it is noted that all estimates «1.

have been proven accurate by actual : om

experience in Phases I and II, with any

miscalculations resulting in under-

estimates rather than overestimates. bi

Phases I, II and III Combined

The combined increased operating costs,

not including the purchase of new school

buses, is $278,920.00.

If the schools are to operate on a

normal opening time schedule, the total

costs of new buses needed for all three

phases is $787,500.00 (Phase I, $175,000.00;

Phase II, $87,500.00; Phase III, $525,000.00%

7

7

-13-

This sant Se

iders at entire transportation

codget for the 1971-72 school term was

$617,000.00. The transportation budget

for the coming school year is $905,000.00,

almost a 50 per cent increase. s figure,

however, barely provides mfficient funds

to cover the added operation costs of

$278,920.00.

Although the school board has been and

is making attempts to obtain additional

funds, it has been unable to do so.

If the schools in the system operate

on @ regular basis with all schools in the

system Opening at the same time, the cost

of new buses needed to implement the

integration plans will be $787,500.00.

If the schools operate on a staggered

opening schedule, the total cost of new

buses needed for implementation of this

plan will $525,000.00.

If school hours were staggered, however,

the results would be disasterous to the

students and violate the principles laid

down in Swann.

The school hours, however, will have

to be staggered if some assistance and

relief is not given the school system

because the school system simply does

have the funds or means available to

purchase the buses that the new plan

would require. All of this is unnecessary

in the light of the fact that there are

other methods of desegregation that would

-14-

accomplish the constitutional results: ..7

required yet still leave room for. @ ©) %biem

reasonable desegregation plan that’ (0) fsb).

provided for and allowed quality education,:

The following hours would be those pets:

in operation if staggering the opening 364

hours of school’occurred, ae

Take In Let Out

High School 7:30 a.m. 2: 15. P.M .

Junior High 8:30 a.m. 3:15 Pa.

Upper Elementary 9:30 a.m, 4:15 p.m, |

Primary Elementary 9:30 a.m, 4:15 Ps,

It is obvious that the staggering of

opening hours would create overwhelming

problems for the students, their parents .-

and the Board of Education. Yet, if the

elementary plan is implemented, the

board would have no alternative but to

stagger the hours and to stagger them

at least to the extent stated above.

Some students would have to board their

school bus by 6:30 a.m., while others

would not arrive home until 5:30 p.m.

Additionally, parents of more than one

child in school may have as much as a

three hour lapse between the time a bus

picked up their first child and their

last. There may also be a difference

of two hours in the times the children

arrived home from school.

Petitioner can find nothing in the

constitutional cht pee mon dit that would

envision nor require such hardships.

Such a result aS enviSioned by this’ plan

would without doubt affect the healt

and welfare of the students involved and

would very significantly impinge on the

educational process.

One other undesirable feature of the

adopted plan is that under it students

must attend a multitude of schools to be

eligible for graduation, Under the old

system, a child attended a minimum of

three schools Soigecnserz: junior high

and high). Under the present plan, ele-

mentary school children alone will have

to attend a minimum of three elementary

schools with many attending a minimum of

four elementary schools. Under Zones A and

B of the elementary plan, each student in

these Zones will attend a minimum of four

elementary schools. No stability for either

the student, teachers or administration of

educational programs is allowed.

Had the secondary schools been clustered

and paired, the results would be even more

disastrous because a secondary clustering

plan would have required that a student

attend a minimum of seven or eight schools

before earning a degree. Fortunately, the

secondary plan approved by the District Court

does not have many of the constitutional

infirmities and drawbacks found in the presat

elementary plan. It is for this reason that

other methods should be examined to determine

i? +

s

Se:

yet Sig iethe’,

chmond County. es -

“CONELUSTON

This case is of paramount public. ...

importance.. The dementary plan ordered ‘

into effect is severe and goes beyond what |

petitioner contends to be the limits of

Swann. od ;

The ues tions presented in this petition.

will, if favorably decided, enable not only

this *$chool system, but other school relat

under court order to aetely implement .

desegregation ‘plans with clear cut.

“€onstitutional standards that define

-17-

specifically’ thei limits on) the: use of

transportation of Students for the purpose

of ochievink racial balance; define when

the use’ of) transportation: as: a means: of « |

desegregation: has .a, de: ntal; effect, upon

the health, and: welfare! of: the: students;.....

define when vthe” Of. transportation, as a.

tool of 4 a pec aenee om + ca rd ni

impinge) upon: ‘the e ational process; and,

would present: guidelines: that. would. allow.

increased use Of more reasonable methods...

of desegregation, © 4660 2S} syeu

BL; 33

%

It is the’ desire of this school board to.

be able to operate under a constitutional

plan that is reasonable and which preserves

quality education for all students and it is

in the public interest that definite guide-

lines be set in this case.by this Court.

“Resp ctively submitted,

Big.

FRANKLIN H. PIERCE

Southern Finance Building

Augusta,. Georgia 30902

ONARD O. FLETCHER, JR. J

McGAHEE , PLUNKETT, BENNING

§ FLETCHER

P. O. Box 1661

Augusta, Georgia 30903

RaBAsie et ig tartadk £ Bettis: Sota

< racer ari that: Ihave a

ay’ ow: tten' se uUnNSe Ll fOr

speed nts with ragiie aire Bsa, pa ‘ag

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atite of Same: babs rcae sdirense te

pad hpohiansh witha 2

addressed’ to J.° Hy 4 ‘01 7 fai

Bteere Augusta, sbasteia’ *30902; grad a te

Torbitt Ivey, Jr., Suite 500, The | S00”

Building, i ope Georgia;: spaki ah:

‘ This” ae _ day ‘of July, 1972.

Southerh Piheice’ Building |

SUERSER Bporgia =

on . ;

-McGAHEE, PLUNKETT, BENNIN

& FLETCHER

P. 0, Box 1661

Augusta, Georgia 30903 ° ~

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FORTHE’ ‘SOUTHERN: DISTRICT OF GEORGTA °

AUGUSTA DIVISION .

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ee ae

ROBERT EN Near oate RUGS

ii oie 2 PA Sntitrs

versus

ANN GUNTER DRUMMOND, ET AL

. Plaintifés: in

Hisye Intervention

: versus '

COUNTY, BOARD OF EDUCATION OF

RICHMOND COUNTY... GEORGIA, ET. AL.,

Defendants

Order from the United States District Court

for the Southern District of ‘Georgia

(January 13, 1972)

Before Judge LAWRENCE

A-1 =

This case has been around since 1964. ©

I came into it in the Fall of 1968. At ~~

that time a freedom of choice plan was in

effect in Richmond County Schools. The es

total enrollment of white and black child- —

ren in 1967-1968 was approximately 55,750

students. Of 12,250 Negro students in ;

the schdéol population 5.5% chose RS Bete

previously ali-white schools. With on

exception no white student has exercised

freedom of choice to attend a previously

all-black school.

Judge Scarlett held hearings in the

Spring of 1968 on a motion by plaintiffs

to adjudge the School Board in contempt

and for summary judgment. He denied such

relief. On appeal the Fifth Circuit re-

versed that ruling. See 399 F.2d 151.

The appellate court said:

"...we think it quite appropriate to

point to the fact on the undisputed

statistics presented to us it is clear

that, with respect to the Richmond

County Board of Education, a plan of

desegregating the schools, generally

known as ‘the freedom of choice’ plan

has not worked. It has not produced

a unitary school system in which there

are no longer Negro schools and white

schools, generally known and recog-

nized by all of such. Under these

circumstances, it becomes the duty

of the poogensees Board, not only

under the Supreme court decisions

above referred to, but under our

Jefferson decree, to take addition-

al important and effective steps."

(fol. 2) After the ruling was handed

down the Fifth Circuit Court

of Appeals assigned the case

to me. A hearing was held at Augusta

Jee LU >. .

where the highest Court that -free-

dom of choice must be an effective de-

vice p ng "meaningful and immediate

pogress towa disestablishing state-

sed segregation." The Court said that

The burden on a school board today is to

come forward with a — that promises

realistically to work, and promises real-

istically to work now.”

I did not rule out freedom of choice

altogether but stated that I would "give

consideration to a plan formulated by

the Board which ines automatic assign-

sent of pupils within designated geograph-

ical zones and a limited freedom of choice

rected that a

zone or attendance area system be put into

effect for the 1969-1970 school year.

of schools." See Acree v. County Board

of Education of Richmond County, Georgia,

a F. Supp. 1034. T di ted

On June 16, 1969, a hearing on the

Board's plan was held at Augusta. Plain-

tiffs objected to it in toto. On July

14, 1969, I approved the plan presented

as a temporary expedient. See 301 F.

Supp. 1285. I pointed out:

"The decisions of the Court of Appeals

for the Fifth Circuit say that _

graphic zones are acceptable on y

if they tend to disestablish rather

than reinforce the dual system of

segregated schools. Davis v. Board

of School Commissioners of Mobiie

ounty, ° ; United States

and ccenbetines sesere sued ebreate ora

to move boundary lines and ch > Sed apt

feeder patterns which tend to p Tve o>

segregation.' See 393 F.2d at 694." 73 g0

Cts

i?

I further stated:

ee

“I think the wisest thing to do at this«.

time, certainly the most expedient, is):

to approve abioeaans the Board's new

zone system Tmit same to go into)

effect at the bepianite of the c

(1969-70) school year. We will soon ~

thereafter be able to judge its effects ai:

Because of possible constitutional

informities of the zoning plan it will «>:

not be permanent and this is not a

final order."

My Order of July 16, 1969, directed

the School Board and Superintendent to

apply immediately to the Office of Educa-

tion, H.E.W., for professional counselling

and assistance looking to development of :«/

, satisfactory and legal plan at an early § |:

ate. sf

(fol. 3) Before such a plan could be

developed and presented the

plaintiffs filed an appeal to

the Court of Appeals for the Fifth Circuit.

This was in March, 1970. On July list of

that year that Court remanded the case.

See 443 F.2d 1360. The higher Court said:

“Having examined the record and the

briefs of counsel in the above styled

A-4-!

and numbered cause, this Geustesoctott > ey

with «very definite and indelible sey

a a a ae ee re ot? ,wal

—s iecscSoolks are eidenti-

fiab = seSuGhs 2Sn0dl Ofse08 sthe : 3

a enadl othe ‘respective student

bodies. -/8f*there-ts ‘femsining

for the Richmond County schools

to operate as nant

commencement of the new school-year <« |

prompt and immediate eeign 15s required’

n compliance with the Osaee ty the

Fifth Circuit a hearing was held and

evidence introduced on July 30, 1970. On

August 3rd I Suuppeeeee a plan recommended

y Health, ion and Welfare which I

vrai fied to include additional pairing.

vas essentiall on ween ae rae plan. Te

Fifth Circuit ae with some-

thing similar mae case lis v.

Board of Public Instruction

County, Florida, 425 F.2a 203. 1 task tha that

re the STE 3

route. pian in question was to be

implemented at the 1970-1971 school year.

My Order of August 3, 1970, in the Acree

case was appealed to the Fifth Circuit. ~~

Meanwhile, the “busing” and racial ratio

cases, including Swann v. Charlotte-

Mecklenburg Board of Education had reached

the Supreme Court of the United States.

The Court of Appeals held its ruling in

abeyance pending a decision in Swann and

the other cases. It was handed down by

the Supreme Court on April 20, 1971. See

402 U.S. 1-48. That decision "made it

clear (I quote the syllabus in Swann)

that:

(a) While the existence of a small

number of one-race, or virtually one-

A-$-A

race jachoals dees metisin cbtuel Sedenate bas =

senee Serre

i Sa ahd

shears

posities “result sineseppacentien:

past discriminatory raction:on hate: ae

hSoksersiidaqy ~tnweed sae-ahthyed?> +0}

(b):22A student. assignment plancie ‘not

eccoptehbewanaly because it appears to. .

be ‘neutral, for sucha plan may fail to.

counteract the ‘continuing effects of past.

school segregation. The pairing and eto

_ of eho visieu" vie zones abe! a . Ht

Ce. x00 OF e; si¥s

seer 4). Ac) “the District Court's ; con-. ‘<

. sClusion that assignment of ©. +

children to «the school nesrest ra

their home serving their grade would not §:; >

effectively dismantle the dual school gn ide

system is supported by the record, and | «4.

the «remedial technique of requiring bus i,

transportation as a tool of school deseg- ..

regation was within that court's power to 4

provide equitable relief.

On July 1, 1971, the Court of Appeals

for this Circuit disapproved the plan

which this Court had spoons in a

1970, ‘to be put into effect during the

1. The Fifth Circuit has been telling us,

for years that "if in a school district

there. are still all-Negro schools or only

a small fraction of Negroes enrolled in

white schools... then as a matter of law

the existing plan fails to meet consti-

tutional standards established in Green."

Adams v. Mathews, 403 F.2d 181.

A-6

current ‘school: ae Temanded the

case, “svating?:

S a 2 > sf : 23 [8

"The: fd ts er taal distinc court as

clears see

ne case is

with direction that the dis-

trict tourt require the school board

forthwith to’ constitute’ and implement

a student and faculty assignment plan

that complies with t pelecipise

established in Swann Vv otte-

_&

. z 4 i ° 2d

aia 307 Law. Week. 4437E er v. West

Feliciana’ Parish School Boar -

relate. rye the issues

presented in this case."

The Court of Appeals has said that

the prevailing system is a dual and an

unconstitutional one. The racial statis-

tics bear this out beyond all doubt. They

reveal that in the elementary schools dur-

ing the 1970-1971 year seventeen were

predominantly white and nine predominantly

black. There were four all-black elemen-

tary schools and one ali-white. In eleven

elementary schools the minority attend-

ance was S% or less of the whole and in

three other schools the minority ratio

was 10% or less of the entire school

2. I have used an 85% ratio as illustra-

ting a predominantly white or predomin-

antly black school.

Ar Jy,

wan A pe

schools, 2. there was es

> a : As)

effect)- the same segregated cture;

projected ctfondence indicated that. —

are forty-one schools in pages white =»

students predominate. They haye a total,

enrollment of repidag of whom 20,648 OFS...

white and 4,073 are black. Ine

black schools..in the ersten, which h %

total enrollment of 12,941 there are 60.

white students (2.8%).

(fol. 5) Following the decision of the aa

Circuit Court of Appeals.on .....,

July 1, 1971, I.promptly. order- .

ed the Board to present a student and...

faculty assignment plan to this Court not.

later than July 21, Pio7i. I assigned a...

hearing on it for July 28th... Subsequent-...

ly, upon oral request I extended to

August 26th the time. for presentation.of

— a plan. A hearing was held on that

te.

To my amazement, the H.E.W. officials

did not show up at the August 26, 1971,

3. For example, at Southside this year,

these are 680 students of whom 8 ire

lack.

uggest “to the Court for the integ- ~~

ration the school system and his ‘reply

was, "Freedom of Choice.” The plan pre-

sented by the School Superintendent at

the “hearing™ on August 26th last was to

keep the ool zones as they were except

for two or three minor changes as to

boundaries. One of them would have trans-

ferred about 100 white students to an all-

black high school. This plan, so learned

counsel for the Board informed me, made the

system a unitary one, if it was not al-

ready such.

In Acree v. County Board of Education

of Ri r J . e

Court of Appeals said: "We think it not

necessary to do more than call the atten-

tion of the respondent here to the ex-

tremely important obligation which is

once more placed on the Board to assume

its full responsibility to do all that is

reasonably feasible, and now, to bring an

end to the dual system of white and Negro

schools in Richmond County." The Richmond

County Board and its Superintendent have

abdicated their responsibility. They

have been contemptuous and intransigent.

They have chosen to ignore the Constitu-

tion and the courts. Apparently, they,

together with a segment of the population

A-9,

of Richmond County, deem,themselves above...

and beyond the law, .The. Fourteenth Amend-

ment is not to.a opp }y.: to. sehete. who Had at§ 2:

not to. their lik E> cturacwaiy :

At the. ‘conclusion of epee ners "pidiieg”

I stated that this Court would employ its.

own experts at the Board's $s expense to do ..,

what it and the school.officials refused...

to do in the way of devis aplanof .

desegregation. Five days later the Court

obtained the services of two well-known

educators, experienced in desegregation

planning, Dr. J. Howard Munzer and Myrl G.

Herman of the faculty of Rhode Island

College.

*1

il

(fol. 6) Alternative plans were present-

ed in the Munzer-Herman sugges-

tions which were filed in this

Court on September 27, 1971. . The several

Plans do not set out to establish any set

numerical ratio of blacks to whites. How-

ever, through clustering and pairing it

achieves a not dissimilar result.

Four elementary school plans are pro-

posed. Plan I involves an unacceptable

minimum amount of integration. Plan II

involves more desegragation and Plan III

(which I am adopting) even more. Plan IV

would provide for maximum desegregation

embraced and involved all but two elemen-

tary schools.

Two plans were presented for desegre-

gation of the secondary schools. The

plan is the same for the following schools:

Josey, Murphey, Butler, Tutt, Langord,

Richmond Academy and Laney. "Under both

Plan I and Plan II at the secondary level

the schools mentioned would house the

following grades.

A-10

‘| Josey ’= Grades 8-9

oO» Murphey»- Grade 10

Butler ‘= ‘Grades 11-12

' Tutt + Grades ‘8-9 |

Langford - Grades 8-9

' Richmond Academy - Grades 11-12

Laney - Grade 10:

In both Plan I and Plan II Tubman will

house grade 8 and Johnson grade 9. How-

ever, under Plan I Tubman would have 511

students, 50% black, and Johnson would

have 492 students, 45% black, whereas

under Plan II Tubman has 461 students, 45%

black, and Johnson has 442 students, 39%

black. The basic difference in the two

secondary school Plans is that Plan I

does not involve Sandbar Ferry or Sego

whereas under Plan II these two schools

are paired in such a way that Sandbar

Ferry is grade 8 and Sego is grade 9.

After the plans were filed, I asked the

parties for their analysis, comments and

criticisms. The plaintiffs complained,

among other things, that presently all-

black Laney and Josey were reduced in sta-

tus from graduating high schools and that

this was not done in the case of any pre-

dominantly white senior high school.

The Board's response was of expected

quality and content. It raises every

carping, contumacious objection conceiv-

able. It is a mishmash and embranglement

of letters from individual members of the

Board, the Superintendent and principals

opposing desegregation of the system.

There are resolutions, letters, speeches,

newspaper clippings, et cetera. The res-

ponse contributes less than nothing to

the difficult problem the Board faced

but fled.

A-+11

BALD Peeve lo October j’ 19725**

mitted sa -group<of’ whiten:

at sreats Tiettaterverysahe: are’®

ensosed:! to: ingthough they :say they are

not opposed to-integration m6... I

will addi th tcif there is *s “+4 to: disses.

mantle a \dual scheol system, and ‘the: Rich- :

mond County Board perpetuated: ‘one long

akeeri dey ae decision*in Br VG i

» 347.0.S.-483, Tam Retiavarecd.

ow t Nes etlonet tepisaates vescterie

be achieved without substantially increas-,;;

ing the Stqanper tether of students. se oved

‘Aeon ‘suggestion, the Intevenors. pre-3.

sented a plan for consideration. It 18. inetd

entitled “Quality: Education Plan for the-5..«>»

People of Richmond County, Georgia." The.

plan is nothing more than Freedom of: Satay

both for students and faculty. Since the -

Intervenors. have a right of appeal from niet

this Order the higher court can enlighten

us as to my evaluation of the “plan” pro~

posed... Anyone who has even casually

examined the decisions of the. United States.

Supreme Court and of the Court of Appeals

for this Circuit must know that choice

plans are not constitutionally acceptable

in a case such as this. In fact, the

latter Court said exactly as much con-

cerning the Richmond County system. See

399 F.2d 1582.

On October 8, 1971, Dr.Munzer and Mr.

Herman returned to Augusta to confer

with the Court concerning-—the proposed

desegregation plans. On the same day,

with counsel and the Superintendent of .

Schools present, the plans were explained...

and discussed by the experts in. the ah

courtroom. ee

A full evidentiary hearing was held on». 4

Ab 12

December: 16-17), for the purpose» of! con-">

sidering @, plan» and: for hedring: evidence...

Intervenors testified as to the effect’ .--

of the: Munzer-Herman> plans. on»the: R.O:T.C. |

programand on-the exceptional children ~~

and model» reading» programs, The- Director |

of Transportation stated: that: the Rich-» .

nond County school system has: 97-buses,

including’ four: assigned: to: special educa+

tion. ‘Bighty-three operate daily and.

there are 10 spdre buses:. In ‘the: last

school year more than 12,000 students of

a total of 34,619 were bussed. It was

estimated that under the proposed plan 27

new buses would be required: at a-cost of

$12,400 each with an engtiel “operational

cost of $5,000 per buss4. Under Plan III,

5,681 additional* elementary students

would be transported. On the secondary

level, Plan .I contemplates bussing of

1,664 additional high school and junior

high students. Plan II (secondary).

calls for the transportation of 2,150

more students than are now being bussed.

The estimates of increased transporta-

tion

(fol. 8) needs are possibly over-

estimated by Dr. Munzer and

Mr. Herman.

4. The same objection as to cost of in-

creased transportation was made in the

Savannah case. With staggered bus sche-

dules, the increased needs have been hand-

led (though with difficulty) by the exist-

ing equipment. The Chatham County system

has approximately the same number of buses

as Richmond County and about the same en-

rollment. . | cs

ARIS

Counsel ‘requested the Court to delay*o%

pice penne eh ete A erent ge BoB

cussions’ among ‘the parties as: to devis-: 9 /¢:

‘ing’ one’{particularly on’ the secondary =<

school’ level) “which would be satis factory(':

I granted a: twenty-day extension forthe |

purpose: That period*has passed without:>::

any’ agreement ‘being reached,* Of course, ©.

in any’‘event, the parties would not:be:' '

permitted to stipulate away the mandate

of the Consittution as’ to establishment :

of a unitary school system - one in which

there are neither white nor black schools; '

just schools. ony

On July 1, 1971, the Fifth Circuit :

ordered that this Court require the Rich-»

mond County School Board "forthwith" to ,

constitute and implement a constitutional:

student assignment plan. That means now,

at once, without delay or interval. Be-

cause of the Board's wilful failure to

carry out its constitutional duty the

mandate of the higher Court could not be

complied with. To obviate the system

being closed down indefinitely I permitted

the carrying on of a dual system at the

beginning of the year. It is still in

effect.

Last June I handed down an Order which

fully integrated the secondary schools

in the Chatham County system (with one

necessary exception). I delayed action

on the elementary level as the Board wish-

ed more’ time and had not been able to

agree on a plan. My decision was appealed

and the ruling reversed. This Court was

instructed to "forthwith" desegregate

the elementary as well as secondary

schools. This was done by the Court

early in September, 1971. The situation

A-14

in the Chatham County school case differs

only from the Richmond County case in. < |:

that the former involved the. beginning of ©

a school year and the latter the middle

of such a year..... .»

I realize that February is.a poor time

to revolutionize a school system. Signi-

ficant educational problems are especially

involved in massive changes in student

populations of senior high schools during

the academic year. Student schedules

have already been planned for the year.

Athletic programs have been developed and

implemented. Seniors have spent one half

of the year in present locations and have

planned senior year activities, including

ordering rings and yearbooks.

But a start must be and will be made.

It will commence with certain elementary

schools and will be effectuated in three

phases. Phase One of Plan III proposed

by the Court's experts will be implement-

ed not later than February 15, 1972. The

initial implementation will apply to two

clusters of elementary schools represent-

ed by Zone A (Telfair, Evans, Milledge

and Houghton) and by Zone D (White,

Wilkerson Gardens and Bungalow Road

elementary schools). Iwill comment sub-—-

sequently on the closing of Houghton

-elementary.

(fol. 9) Phase Two will be implemented

on or before March 15, 1972. - -—&

This Phase involves Zones E

and I under Plan III. The elementary

schools affected are Jenkins and Fleming

which will be paired and Griggs and

Southside which will likewise be paired

on or before March 15th next.

A-15

Plan III as related to other elemen-

tary schools in the system will be imple-

mented on September 1, 1972.

Below is reviewed the effect of Plan

III on the elementary schools with special

relation to pupil population and available

classroom space.

PHASE ONE, PLAN III

ELEMENTARY SCHOOLS

Zone A

At the evidentiary hearing on December

16, 1971, objections were raised by the

Intervenors to the closing of Houghton

elementary as proposed in each of the

four elementary plans involving Zone A.

ponents thereof did not believe that

the three other elementary schools in the

Zone (Evans, Telfair and Milledge) would

be —- of housing both regular classes

and the special education classes, partic-

ularly the special education pupils at

Evans.

An analysis of pupil population and

available space in Zone A is set out be-

low. It indicates that there is adequate

space at Telfair, Evans and Milledge for

all pupils, including special education

children.

Pupils

r

Plan Grade Needs 1971

Telfair 431 6-7 17 31-2

Evans 433 4-5 17 72-11

Milledge 658 1-3 26 0-0

Rms. Needed

Plan and Rooms Rooms

Sp. Ed. '71 Available +/-

Telfair 19 19 0

Evans 28 23 -5

Milledge 26 31 +S

73 73

As appears in the above table, there is

a shortage of classrooms at Evans Elemen-

tary should no special education children

be moved from that school. There

are at least two solutions to

(fol. 10) this problem. Solution one

would require the movement of

five special education classes from Evans

to Milledge. Solution two would call for

movement of the fourth grade from Evans to

Milledge, that is to say, the fourth grade

as presented in the Munzer-Herman Plan III.

With ~..¥ to solution one, no change

from Plan III as originally presented is

required other than the movement of the

special education children as referred to

ove.

A-17

Under the second solution, the follow-

ing attendance results would obtain:

Telfair

Same as in original Plan

Milledge

Grades

Total

Percentage

of Blacks

Evans

Total 212

Percentage

of Blacks 40.6%

The Court leaves to the Board of Educa-

tion (or Superintendent) the matter of

determining whether Houghton Elementary

should or should not be closed. If it is

closed (and the evidence satisfies the

Court that it is substandard) solution

one which involves no change from the Plan

as originally presented as related to

A-18

standard classrooms and grades seems pre-

ferable. If it showld be determined not

to close Houghton and if it should be in-

cluded in Zone A along with Telfair, Evans

and rg the following distribution

S indicated by the Plan:

of pupils

Telfair

Grade "

6 124

7 121

245

Total

Percentage of Blacks

Evans

Grade "

3 102

Total

Percentage of Blacks

Houghton

Grade "

4 121

S 126

247

Total

39.5%

186

433

Percentage of Blacks 43.0%

—

Grade W B

1 183 91

2 154 91

307 182

Total 489

Percentage of Blacks 37.2%

(fol. 11) Telfair Evans

Teachers-Children Teachers -Children

Sp .Ed. 2 14 6 6

Rooms

Avail. 19 23

Rooms

Needed 19 18

Houghton Mil ledge

Teachers-Children Teachers -Children

Sp.Ed. 0 0 0 0

Rooms

Avail. 22 31

Rooms

Needed 17 20

Zone A presents no serious transporta-

tion problem. The distances are not great

between the clustered schools.

_ A-20

Zone D

Under Pian III

Gardens and Bungai

schools are Clustered,

Zone D, White, Wilkinson

ow Road elementa

The Zone e

races

a rather small geographical area and trans -

rtation distances are relatively short.

ere is no indication of space problems

resulting from special education pupils.

The plan proposed for clustering of

these three elementary schools in

is adopted and will be implemented at the

same time as Zone A, that is, on or before

The pupil population

in the four schools in Zone D as related

to available space will be pecans ty

P

February 14, 1972.

as is shown in the original

illustrated in the table below:

It is

Class Sp.Ed.'71

Pupils

per

Plan

White 78S

Wilkinson

Gardens 576

Bungalow

Road 579

5-6

1-2

Room Children/

Grades Needs Teachers

31 0-1

23 0-1

23 16-1

3-4

White

——_

Wilkinson

Gardens 23** 24 +1

alow

nent 24 29 +5

(fol. 12) PHASE TWO, ELEMENTARY

Zone E

Phase Two of the implementation of Pla

III is approved and adopted and will be

implemented not later than March 15, 1972.

This Phase relates to Zone E and Zone I.

Zome E is made up of Jenkins and Flen-

ing elementary which will be paired. No

problem exists in respect to special edu-

cation pupils.

* The last column shows the number of roo

in excess (+) if Plan III is implemented

and if the special education population as

of the Fall of 1971 does not move. The nim

Sign indicates the room shortage.

** I assume that no classroom is needed

since no grouping of special education

children is indicated for these schools.

A-22

An analysis of pupil ation and

available pupil space in the pairing of

Jenkins and Fleming appears below:

Pupils Class Sp. Ed.

per Room for '71

Plan Grade Needs Ch/Tchr.

332 1-3 13 15-2

320 4-7 13 22-2

Rms .Needed

Plan and Rooms Rooms

Sp.Ed.'71 Avail. + or -

Jenkins 15 0

Fleming 15

Zone I

Zone I involves the pairing of Griggs

and Southside Elementary schools. The

transportation problem presents greater

distances than Zones A, Dor E. Griggs

and Southside are located approximately

4.2 miles straight line distance from

each other. The analysis of pupil popu-

lation and available space indicates the

following with respect to this Zone:

Class Sp. Ed.

Room for ‘71

Grade Needs Ch/Tchr.

5-6 18 17-2

Southside 650 1-4 26 0-0

A-23

Rms. Needed

Plan and Rooms Rooms

Sp. Ed. ‘71 Avail. + or -

Griggs 20 21 +1

Southside 26 15 -11

As indicated by the above table, there

is a shortage of eleven rooms at South-

side. The school district data furnished

by the Superintendent's office shows that

Southside has fifteen rooms. This would

give it a capacity of 37S pupils on the

basis of 25 pupils r classroom. How-

ever, it is noted that at the present

time the school has an enroll-

(fol. 13) ment of 675. It follows that

there must be more than fifteen

classrooms at Southside elementary. Plan

III, Zone I, indicates a school popula-

tion of 650 at Southside which is smaller

than the present enrollment figure.

PHASE THREE, ELEMENTARY

The third and final phase of desegre-

gation of the elementary schools in

Richmond County involves Zones B, C, F,

G, H and the Alternative Zone outlined

on page 45 of the original plan of deseg-

regation. Phase Three will be fully in-

plemented on September 1, 1972. I have

deferred the desegregation of the schools

in these zones until the beginning of the

next school year and in doing so have

taken into consideration the fact that

the transposition from a dual system to a

unitary system will involve adjustments

A-24

of a major character and that it is im-

practical and unwise to convert the system

overnight at mid-year.

Zones B, C and F in Plan Three present

no space or special education problems.

An analysis of pupil population and space

availability in regard to the four Zones

in question shows as follows:

Zone B

Pupils Class Sp.Ed.'71

per Room Children/

Plan Grade Needs Teachers

932 5-7 38 43-3

411 1-3 16 10-1

Monte Sano 544 3-4 22 ' 0-0

Lake F.Dr. 267 1-2 11 0-0

Rms. Needed

Plan and

Sp. Ed. '71

Walker

Lamar

Monte Sano

Lake F.Dr.

Collins:

Bayvale

Copeland

Collins

Bayvale

Copeland

(fol. 14)

Craig

Hains

Craig

A-25

Zone C

Pupils Class

per Room Children/

Plan Grade Needs Teachers

951 5-7 38 $935 Ah

684 1-3 27 0-0

554 3-4 22 0-0

Rms. Needed

Plan and Rooms Rooms .

Sp. Ed. *71 Avail. + or -

40 41 +] os ine

27 29 +2

22 23 +1

Zone F

Pupils Class Sp.Ed.'71

per Room Children/

Plan Grade Needs Teachers

506 1-3 20 0-0

692 4-7 28 0-0

Rms. Needed 2

Plan and Rooms Rooms ©

Sp. Ed. ‘71 Avail. + or -

20 20 0

28 30 +2

A-26

Zone G

zone G; Plan III, clusters. Weed,

Robinson and Merry elementary schools.

An analysis of pupil population and avail-

able space in Zone G shows:

Pupils Class Sp.Ed.'71

per Room Children/

Plan Grade Needs Teachers

143 5 6 0-0

294 6-7 18 40-4

523 1-4 21 0-0

Rms, Needed

Plan and Rooms Rooms

Sp. Ed. '71 Avail. + or -

6

Robinson 22

Merry 21

No space or special education problems

are involved in Zone G. A problem does

exist which grows out of the need of six

additional classrooms for special educa-

tional pupils at Robinson. Acceptable

solutions include the following:

(1) Move 6 classes for special

education to Weed Elementary School or

(2) Move Grade 6 to Weed Elementary

School.

The Board of Education may adopt one

or the other of these solutions.

A-27

Zone H

Zone H clusters Floyd, Garrett and —

National Hills elementary schools.’ Pupil

population and availiable space analysis

indicates the following as to Zone H:--«

Pupils Class Sp.Ed.'71

per Room Children/

Plan Grade Needs_ Teachers

Floyd 309 6-7 12 0-0

Garrett 466 3-5 19 20-3. 608

National tS

Hills 305 1-2 12 0-0

Rms. Needed

Plan and Rooms Rooms

Sp. Ed. '71 Avail. + or -

Floyd 12 23 41€

Garrett 22 20 -2

National

Hills 12 14 +2

(fol. 15) There is an indicated short-

age of two classrooms at

Garrett. Solutions for this :

problem include:

(1) The~shifting of two special -

education classes to Floyd Elementary

School or to National Hills.

(2) The shifting of Grade 5 from

Garrett to Floyd Elementary School.

The Board of Educationmay adopt one

or the other of these possible solutions.

A-28

ALTERNATIVE PLAN

(See pages 45 and 46 of original

Munzer-Herman Plan) ~~~

The Alternative Plan includes Glenn

Hills, Terrace Manor and Wheeless Road

schools. The percentages of black

pupils in Glenn Hills and Terrace Manor

are high, averaging 48.1 per cent in

the two schools. If these schools should

be combined with Wheeless Road School

which is predominantly white, the aver-

age percentage of black pupils would be

34.2. There is presently a total enroll-

ment of 1,684 pupils in the three schools

and a capacity of 1,650 according to

schools data. Consequently, there is

a need for two additional classrooms

which, logically, would accommodate a

class at Glenn Hill School and a class

at Wheeless Road School.

The result of combining Glenn Hills,

Terrace Manor and Wheeless Road schools

according to an analysis of pupil popu-

lation and available space is shown be-

low:

Pupils Class Sp.Ed.'71

per Room Children/

Plan Grade Needs Teachers

Terrace

Manor 508 1-2 20 0-1

Glenn

Hills 340 3-4 13 0-0

Wheeless

Road 836 4-7 33 0-1

A-29

Rms. Needed

Plan and Rooms Rooms

Sp. Ed. ‘71 Avail. + or -

eT ae

20 21

14 13

33 32

SECONDARY SCHOOLS

The desegregation of the secondary

school system in Richmond County presents

the same difficulties that is experienc-

ed in any large urban school district.

the

problems stem not only from

(fol. 16) vestiges of State-imposed

segregation but from the prac-

‘tice since 1954 of school boards per-

petuating dual systems by building

schools designed to draw either from the

white or the black school population,

not from both. New schools have been

erected with resulting preservation of a

segregated system. By and large, the

Negro schools lie in the heart of a dense-

ly populated black area of Augusta.

ite schools follow residential patterns.

Lack of new and more strategically locat-

ed middle grade schools compound the

problem.

Irrespective of obstacles, the Four-

teenth Amendment, @&s construed By federal

courts, demands that the dual system now

in existence be “wiped out root and

branch" and “not tomorrow but now." How-

ever, you cannot in one day chop down

A-30

and dig up the stump of a tree which

rooted two centuries ago. Desegregation

will be delayed on the segondary level

until September 1, 1972. It must be

fully accomplished by that date and will

be. As I stated on another occasion, it

is phantasy approaching autism to think

that the Constitution of the United

States treats Augusta differently from

other places where a dual system is the

result of de jure school segregation.

Richmond County is no different from 42

other school districts in the Southern

District of Georgia in which desegrega-

tion is now an accomplished fact; admitted-

ly with travail in certain cases.

Earlier in this Order, I referred to

some of the difficultits of mid-year de-

segregation, particularly high schools.

At this time and during the current school

year it would be chaotic, if not impossible

to implement any major plan in respect to

desegregation of secondary schools in

Richmond County. More than that, there

is at present no plan before the Court

upon which it can act. Dr. Munzer and

Mr.Herman presented two alternative plans

for desegregation of secondary schools

but at the hearing on December 16th last

the possibility was raised that there

might be discrimination against the plain-

tiffs in that Josey and Laney High

Schools, which are all-black or prac-

tically so, would no longer be graduating

schools whereas none of the predominantly

white senior high schools have been thus

5. Of course, in event of appeal and

reversal of this Order the Board must

be prepared to desegregate all schools

during this year.

A-31

treated in the plans. I have asked that

the experts suggest alternative plans as

to the secondary schools in the Richmond

County system dealing with that problens.

(fol. 17) ORDER

(1) It is ordered and decreed that

the aa acvane oe of the elementary

schools in the Richmond County system

shall be in accordance with this Order.

Defendants are directed promptly to take

all necessary steps to the end that Plan

III shall be lemented in the three

phases described in this Order. No stay

will be granted pending any appeal by

any party from this Order.

(2) Responsibility as to implementa-

tion will be and is imposed upon the

Board and the Superintendent of Schools

and they are ordered to fully and time-

ly implement Plan III for the elementary

schools. If the Board does not act

promptly fn’ any case in which any dis-

cretionary authority is conferred upon

it by this Order, the discretion in

that respect will be exercised by the

Superintendent and he is directed in any

such instance to act and full respon-

sibility is imposed upon hin.

(3) Minor adjustments in the Plan

may be made by defendants as to alter-

nate assignments in the instance of

special education classes provided that

the desegregation levels outlined in the

plans are maintained.

(4) The Superintendent of Schools

shall file a report in writing with this

Court on January 19, 1972, detailing

A-32

what has been done by him and by the

defendant Board since this Order was

signed in preparing, planning and carry-

ing out the implementation of Phase One

and Phase Two of Plan III. Similar

written reports shall be filed by him

at the end of each successive three-day

period after such date until further

order of this Court.

($) Meanwhile,the Court will con-

tinue to consider and to endeavor to

formulate and develop a feasible and

sound plan of desegregation for the

secondary schools in the system. At the

earliest practicable time an Order in

that respect will be entered. The secon-

dary school plan apeteves and ordered

by the Court will be implemented by

defendants on September 1, 1972.

(6) The defendant Board and the

Superintendent will file in this Court

within 15 days a report showing the

total enrollment during the present

school year in every school in the sys-

tem and the number of blacks and whites

in each such school. The report will

also include information as to racial

composition of faculty and staff in the

schools.

(fol. 18) (7) It is further ordered

that the Board shall immed-

iately review existing staff

and faculty racial ratios and shall

forthwith comply, on a system-wide

basis, with the provisions for “Deseg-

regation of Faculty and Other Staff"

as set forth in Singleton v. Jackson

mnie pal see chool District, et

a *> . ifr. . e

A-33

School Board is directed to file simi-«»

annual reports during each school year .

similar to those required in United ,

States v. Hinds eounty School Board (s

ir. > > . J .

(8) The pending motions filed by the

plaintiffs for appointment of a receiver

for the Richmond County system and for

adjudging the defendants in contempt

will be held in abeyance, at least for

the present.

(9) The evidence at the hearing on

December 16, 1971, indicates that there

are numerous instances where pupils are

attending schools in zones outside their

actual residence. The Board, Superin-

tendent and school officials are order-

ed promptly to undertake corrective

measures in respect to boundary obser-

vance. A report in that respect shall

be furnished not later than February 1,

1972.

(10) The motion for award of attor-

ney's fees to plaintiff's counsel is

granted. The amount of the fee will be

settled on affidavits or, if necessary,

following a hearing on the subject.

(11) The defendant Board will, as

a part of the costs in the case, pay

the compensation and expenses of

Messrs. Munzer and Herman for their

services to this Court and same are

assessed as costs against defendants.

This 13th day of January, 1972.

ALEXANDER A. LAWRENCE

DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

A-34

APPENDIX B

United States Court of Appeals

“Ne. 72-1211

ROBERT L. ACREE, ET AL.,

Cross Appellees,

| ANN GUNTER DRUMMOND, ET AL.,

Intervenors-Appellees-

Cross Appellants.

Appeals from the United States District Court for the

Southern District of Georgia

(March 31, 1972)

Before BROWN, Chief Judge, MORGAN and

INGRAHAM, Circuit Judges.

and of Title IV of the Civil Rights Act of 1964."

In Swann v. Charlotte-Mecklenburg Board of Educa-

tion, 402 U.S. 1 (1971), the Court made quite clear that

bussing is an available tool for use by district courts

in achieving school desegregation. In the instant case

the district court utilized this tool along with the pair-

ing, clustering and zoning methods long authorized by

the Supreme Court and this court. Swann v. Charlotte-

Mecklenburg Board of Education, supra; Davis »v.

Board of School Commissioners of Mobile County, 402

US. 33 (1971); Boykins v. Fairfield Board of Educa-

tion, ___. F.2d _____ (5th Cir., 1972) [No. 71-3028, Feb.

23, 1972]; Singleton v. Jackson Municipal Separate

School District, 432 F.2d 927 (5th Cir., 1970).

142 U.S.C. § 2000c.

The argument that the equity powers of federal dis-

trict courts have been limited by Title IV of the Civil

Rights Act of 1964 has been rejected in Swann, where

the Court found no intent on the part of Congress to

restrict the powers of federal courts to enforce the

equal protection clause or “to withdraw from courts

their historic equitable remedial powers.” 402 U.S. at

17.

The board and intervenors contend, however, that

the district court’s order irreparably harms “quality

education” in Richmond County. The district court

should not, and did not, permit the use of such plati-

tudes to perpetuate a dual school system, nor could

it permit defendants to rely on the inferiority of cer-

tain school facilities to which children were to be trans-

ferred as a justification for continued racial discrim-

ination. The Court in Swann stated unequivocally:

“In default by the school authorities of their

obligation to proffer acceptable remedies, a

district court has broad power to fashion a

remedy that will assure a unitary school sys-

tem. 402 U.S. at 16.”

The Richmond County Board of Education has operat-

ed and continues to operate a de jure as well as a

de facto segregated system, and has long been under

order to desegregate. See Acree v. County Board of

Education of Richmond County, Ga., 399 F.2d 151 (5th

Cir., 1968). Despite a clear duty, the board has offered

No viable constitutional alternative to the plan imple-

mented by the court below, but instead has engaged

in oundnet only. Sesiened. $e dierupt and delep- thn

% is

Nig Sie fat ni es ana ge lal

court and the evidence presented, we are of the firm

view that there is no indication whatsoever that the

transportation required as a result of the court’s plan

would adversely affect the health of the children-or

impinge on the educational process. We are also con-

vinced that a good faith effort. by the school board

will overcome any logistical problems that might .a-

The issues raised by plaintiffs have been dealt with

by our prior order of February 8, 1972, in which we

required the district court to consider plaintiffs’ alter-

nate plan along with those submitted by the court’s

experts in the development of a unitary system for

the secondary schools of Richmond County.

We too recognize the practical problems. which

forced the district court to delay implementation of

@ plan for the secondary schools, and there are now

little more than two months remaining in the school

year. However, in view of the serious delays which

have occurred in this case over past years, we order

that a plan be developed immediately for the secon-

dary schools, that some demonstrable progress be

made now* and that a schedule be adopted forthwith

in order that a constitutional plan will be implemented

at the beginning of the 1972-73 school year.

2For example, transportation facilities needed as a result of the

plan should be arranged, funds applied for, budget changes

contemplated, etc.

Fe ee a nel Deans days eamneent anys

pliance and cooperation from, the school board in im-

plementing a plan for the secondary schools and in

carrying out the three phases of its desegregation plan

for the elementary schools of Richmond County.*

The order of the district court of January 13, 1972

is AFFIRMED as modified herein.

The mandate shall issue forthwith.

1972) [No. 71-2561, March 8, 1972].

A-39°

APPENDIX C

>t s0%3

SIN THE b UNITED STATES: COURT OF PREALS

| “POR THE FIFTH ‘erreur’ ae

ae IBIS ¢

“ F , ve chee Peete

= = FY Ko, a ” ae 8S oe or ne

5 ‘ 7 34 ry ees ee Soak

— — atss Sg57 Se ee

a 9? ~ ey i+ 3 “ORT ,

ROBERT L. ACREE, Er. Abe, *

Piaintiffs-Appellants-

Cross Appellees, —..

versus |

COUNTY BOARD OF EDUCATION OF RICHMOND

COUNTY, GEORGIA, ET AL., |

Defendants -Appellees-~

Cross Appellants,

versus

ANN GUNTER DRUMMOND, ET AL.,

Intervenors -Appellees-

Cross Appellants.

Appeal from the United States District

Court for the Southern District

of Georgia.

(April 18, 1972)

Before BROWN, Chief Judge, MORGAN and

INGRAHAM, Circuit Judges.

Py tery a gt Ee Neen ee

A-40

oa Pann > nugget ee ia

IT IS ORDERED that the petition for

rehearing and motion for a more definite

ruling filed by the County Board of

Education of Richmond County, Georgia,

in the above cause is hereby denied.

Filed April 18, 1972

EDWARD W. WADSWORTH,

Clerk