# Appendix — Carr v. Montgomery County Board of Education

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 986

## Text

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SUPREM: arava

SEP 25 1815

IN THE |
Supreme Court of the suit ‘States
October Term, 1975

No% 52 4 % 6

Artam Carr, Jr., et al.,
and

PENELOPE ANNE JENKINS, et al.,
Petitioners,
vs.

Montcomery County Boarp or Epvcation, et al.

APPENDIX TO THE PETITION FOR A
WRIT OF CERTIORARI

JacK GREENBERG
James M. Nasrit, III
Drew S. Days, III
CHARLES STEPHEN Rauston
Metvyn LeEvENTHAL
10 Columbus Circle
New York, New York 10019

Sotomon S. Seay, JR.

Frep T. Gray
Gray, Seay and Langford
352 Dexter Avenue
Montgomery, Alabama 36104

Howarp A. MANDELL
212 Washington Building
P.O. Box 1904
Montgomery, Alabama 36103

Attorneys for Petitioners

—— ——

—_——_— a =

eee

INDEX

Opinion of District Court dated May 22, 1974 ............ la
Opinion of Court of Appeals dated April 11, 1975 ... 44a

Opinion of Court of Appeals dated June 27, 1975 ...... 78a

Opinion dated May 22, 1974

Artam Carr, JR, et al.,
Plaintiffs,

Nationa, Epvcation Association, Inc., AND
PreneLoPpeE ANNE JENKINS, et al.,

Plaintiff-Intervenors,

Unitep States oF AMERICA,
Amicus Curtiak,

Vv.

Montcomery County Boarp or Epvucation, ef al.,

Defendants.

Civ. A. No. 2072-N.

United States District Court,
M. D. Alabama, N. D.

May 22, 1974.

Oprnion
Jounson, Chief Judge.

This school desegregation case, having been previously
before this Court and the appellate courts upon several
occasions, is again submitted. The present submission is
upon the pleadings, the evidence presented orally over a
period of several days, and the briefs and arguments of
the parties. Upon this submission this Court now makes
appropriate findings of fact and conclusions of law. As
authorized by Rule 52, Federal Rules of Civil Procedure,
these findings and conclusions are incorporated in this
memorandum opinion.

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2a
Opinion dated May 22, 1974

I. History or Case

This case was originally filed in May, 1964, when a group
of black children and their parents, with the United States
participating as amicus curiae, asked this Court to enjoin
the Montgomery County Board of Education from “con-
tinuing the policy, practice, custom, and usage of main-
taining and operating a compulsory biracial school
system.” ' Although ten years had passed since the
Supreme Court’s decision in Brown v. Board of Educa-
tion,? the schools of Montgomery County, as was true in
many areas of the United States, were completely segre-
gated; one set of schools was operated exclusively for white
students and staffed entirely by white teachers, and one set
was operated for black students and staffed by black
teachers. Thus, on July 31, 1964, this Court declared that
the Montgomery schools were being operated in violation
of the law of the United States and enjoined defendants
from continuing to operate these schools on a racially
segregated basis.’ But this Court fully “realized that
desegregation of the publie schools cut across the social
fabric of this community and that there were both ad-
ministrative and other practical problems for the hoard to
cope with in order to comply with the law.”‘ Conse-
quently, the board was allowed to proceed with desegrega-
tion in a gradual manner. A freedom-of-choice plan pro-

* Carr v. Montgomery County Board of Education, 232 F.Supp.
705 (M.D.Ala. 1964).

* 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

* At the time this Court entered its order in July, 1964, there
were approximately 25,000 white students and 15,000 black stu-
dents attending the Montgomery County school system.

* 289 F.Supp. at 657.

RETESTED EEL Te nn i ae kt ie ee a

— : — —— Sed SRNR FRU us ee |

3a
Opinion dated May 22, 1974

posed by the board as the means for integrating four
grades was accepted.

Almost two years later, on March 22, 1966, this Court
ordered that the freedom-of-choice plan be implemented
in 10 of the 12 grades for the 1966-67 school year and that
the plan be fully operative throughout the system com-
mencing with the fall of 1967.6 In addition, this Court

decreed that:

Race or color will henceforth not be a factor in
hiring, assignment, reassignment, promotion, demo-
tion, or dismissal of teachers and other professional
staff, with the exception that assignments shall be
made in order to eliminate the effects of past dis-
crimination.®

On August 17, 1967, and February 7, 1968, the United
States requested this Court to require defendants to take
further steps to disestablish the dual school system in
Montgomery County. Upon review of the record, this
Court found that the school board had failed to discharge
its affirmative duty to eliminate the dual school system.’

* Carr v. Montgomery County Board of Education, 253 F.Supp.
306 (M.D.Ala. 1966).

® Jd. at 310. This decree originally required the process of de-
segregating the faculty and professional staffs to commence with
the school year 1966-67. But when the Fifth Circuit subsequently
allowed the Mobile County system until the school vear 1967-68
to end its poiicy of hiring and assigning teachers and staff by
race, this Court, on its own motion, modified the March 22 order
to give the Montgomery board an additional year before requiring
desegregation of the system’s faculty and staff. Again, this Court
was cognizant of the administrative problems and practical rami-
fications of its order, and thus sought to give the board some addi-
tional time in which to meet its constitutional obligation to de-
segregate Montgomery's dual school system.

7 Carr v. Montgomery County Board of Education, 289 F.Supp.
647 (M.D.Ala. 1968).

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4a
Opinion dated May 22, 1974

Under the freedom-of-choice plan, only 550 blacks were
attending traditionally white schools. No white children
were attending traditionally black schools. Of the ap-
proximaiely 550 black teachers and 815 white teachers,
only 32 were teaching in schools that were predominantly
of the opposite race.

On the basis of this evidence, it was found necessary to
establish specific requirements governing minimum amounts
of progress in future desegregation efforts. First, this
Court ordered that the board must move toward a goal
under which the ratio of white to black faculty members
in each school was substantially the same as it was through-
out the system.

Second, the school board was required to obtain ap-
proval from the State Superintendent of Education prior
to the construction of any new school or any additions to
existing schools.

Third, the board was ordered to eliminate race as a
factor in the assignment of students to school buses and
in its designation of bus routes. Finally, this Court
observed that the board’s freedom-of-choice plan was not
working and that unless the plan became more effective in
eliminating the dual school system, the Court would have
no alternative except to order some other plan.®

For the first time in this case, defendants appealed this
Court’s order.® On appeal, the Fifth Circuit affirmed the

8In its supplemental order granting partial stay of the order
pending appeal, this Court observed that the board had attempted
to operate part of the Montgomery system under the freedom-of-
choice plan and part under the neighborhood school plan. Under
this scheme, the board sought to perpetuate a series of segregated
schools in exclusively white neighborhoods. Needless to say, this
Court found this to be an egregious violation of the board’s af-
firmative duty to establish a unitary school system.

® This fact is significant in that it underscores the efforts of the
Montgomery board to comply with the law as reflected by the

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5a
Opinion dated May 22, 1974

March 2, 1968, order.’® A petition for rehearing en banc
was denied by the Fifth Circuit." Finally, the Supreme
Court granted certiorari and also affirmed this Court’s
order.”

In the summer of 1969, plaintiffs and the United States
again filed motions asking this Court to require the board
to take additional steps to disestablish Montgomery’s dual
school system.

An evidentiary hearing was held on February 24, 1970,
to consider plans submitted by the United States and the
board. The board’s plan essentially adopted the basic
elements of the plan proposed by the government experts ;

mandates of this Court. Unlike many school boards that opposed
desegregation at every step, the Montgomery County Board of
Edueation recognized that it had an affirmative duty to desegre-
gate its school system. As the Fifth Cireuit noted on appeal,
“good faith conduct on the part of any litigant in any court, es-
pecially in a court of equity and, more particularly, in the sensi-
tive area of desegregation, is a vital element for appropriate con-
sideration.” 400 F.2d 1, 2 (5th Cir. 1968),

Although the board contended that this Court’s order was un-
precedented in its imposition of “ratio” requirements, this Court
was firmly convinced that its order was “the minimum the appli-
cable law will allow under the peculiar facts and cireumstances
presented and that each and every feature of the order and
injunction entered in this case on February 24, 1968, is not only
authorized but required by the applicable law.” 289 F.Supp. at
660 (emphasis added).

400 F.2d 1, 8 (5th Cir. 1968).
1402 F.2d 782 (5th Cir. 1968).

.
ES LOE BOAO ILE OEE NI OEE, DE OE

12 United States v. Montgomery County Board of Education,
395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969). The Supreme
Court concluded its opinion by noting that “it is good to be able
to decide a case with the feelings we have about this one. The
differences between the parties are exceedingly narrow.” Jd. at
236.

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6a
Opinion dated May 22, 1974

with some minor changes and refinements.’* Under the
board’s projections for the 1970-71 school year, this plan
provided that there would be no all-white schools in the
county and only one all-black school. Over plaintiffs’ objec-
tions that this plan did not go far enough in eliminating
the dual school system, this Court approved the board’s
plan with some modifications of its own.’* On appeal, the
Fifth Cireuit affirmed this Court’s decision to implement
the board’s plan.** The Fifth Circuit added the following
cautionary note:

Once a school board has acted, however, the courts
have a solemn obligation to determine whether the
structure designed by the school board will house a
unitary school system. This obligation is unremitting,
and there can be no abdication, no matter how
temporary. Accordingly, any imprimatur of judicial
approval must be entered with the caveat that until
construction of a unitary system is completed, change
orders, when appropriate, will be issued to ensure that
the designed structure in fact accommodates a unitary
system and not a bifurcated one."*

18 This plan included proposals to close certain schools in the
system, to pair several rural schools, to adopt neighborhood zoning
of the schools within the city of Montgomery, and to transport
students from non-zoned rural areas to schools within the city.

Tn its order, this Court made clear that the law does not re-
quire racial balance or similar student ratios throughout a school
system. “Complete disestablishment of the dual school system to
the extent that it is based upon race is required.”

18 429 F.2d 382 (5th Cir. 1970). In addition, the Cireuit Court
directed that the majority-to-minority transfer provisions of the
plan be altered to reflect a change in the law since this Court’s
order of February 25, 1970.

16 429 F.2d at 386.

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7a
Opinion dated May 22, 1974

Since this Court’s order of February 25, 1970, the board’s
plan has remained largely unaltered. The board has
worked with plaintiffs and the United States in an effort
to keep its plan updated, and changes in attendance zones
and school facilities have been proposed and approved by
this Court. But changes in the facts of this case—largely
changes in residential patterns—and recent clarifications
by the Fifth Cireuit and the Supreme Court of the obliga-
tion of a school board to establish a unitary school
system now necessitate an overall evaluation of this sys-
tem’s compliance with the requirements of the law. Ac-
cordingly, on August 29, 1973, all parties were ordered to
submit their suggestions and proposals for the further
desegregation of the Montgomery system.

It is important at this point to emphasize two factors
that have characterized this continuing litigation. First,
this Court has often recognized the practical problems and
administrative difficulties in eliminating a dual school
system that had been closely tied to long-established social
patterns.*7 A successful school system demands support
from the community—hboth black and white. To facilitate
this support, this Court has attempted to avoid imposing
rigid or inflexible requirements on the board and, where
possible, has allowed the parties to work out their own
differences. In this way, this Court has constantly strived
for a workable solution to the problems encountered in
converting from a dual system to a “unitary system in
which racial discrimination would be eliminated root and
branch.”

Second, all the parties to this litigation share the same
goal: establishment of a “desegretated, unitary and nonra-

17 See, e.g., 289 F.Supp. at 657. See also note 6, supra.

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Opinion dated May 22, 1974

cial school system.” '* Every court that has reviewed the
record of this litigation has observed that the differences
between the parties have been unusually small.’* More-
over, the Montgomery County School Board has been
repeatedly complimented for its good faith efforts to
comply with the requirements of the law.” It is worthy of
pride that the ten-year history of this case has been
characterized throughout by cooperation from all the
participants.

II. An ANAL‘YsIs or THE PLans Berore THE Court

A number of desegregation proposals have been sub-
mitted for the Court’s consideration. In evaluating these
proposals, it is important to keep in mind that the real
controversy now presented centers around the operation
of the elementary schools.

On January 15, 1974, the defendant board submitted its
initial proposal, and the United States submitted a number
of det: ‘led suggestions. On February 14, 1974, the United

18 Brief for the board before the Supreme Court. See 395 U.S.
225, 236, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1968).

1° 395 U.S. at 236. See note 12, supra. 400 F.2d at 2; 429 F.2d
at 386-387.

2° This Court has often complimented the board on its perform-
ance of its constitutional obligation to desegregate the Montgom-
ery schools. See 400 F.2d at 3 n. 3. Appellate courts, upon the
review of this record, have similarly expressed their approval of
the board’s good faith efforts throughout these proceedings. See
395 U.S. at 230, 236; 400 F.2d at 2-3. An example of this ap-
proval by the Fifth Cireuit: “If more district courts and more
school boards had been as sensitive as those here involved to the
requirements of the law, the path to the goal of school desegrega-
tion in this circuit would have been infinitely smoother than it
had been.” Carr v. Montgomery County Board of Education, 429
F.2d 382 (5th Cir. 1970).

Re SS a

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9a
Opinion dated May 22, 1974

States submitted a response to the defendants’ first pro-
posal, which incorporated additional desegregation sug-
gestions. On February 16, 1974, the plaintiffs submitted
their plan. On March 29, 1974, the defendants submitted
their second plan, which was a revision of their January 15
proposal. On April 1, 1974, the plaintiff-intervenors sub-
mitted their proposal. In addition, the United States pro-
posed a high school desegregation plan devised by au-
thorities at the Maxwell Air Force Base in February and
March, 1974. By letter of April 5, 1974, to the Court, the
United States withdrew this proposal. Finally, on May 8,
1974, the school board presented to the Court certain
modifications and adjustments to its March 29, 1974, plan.

A. Plaintiffs’ Plan

Plaintiffs’ proposed plan was devised by Dr. Gordon
Foster, Director of the University of Miami Title IV
Desegregation Center. The Foster plan at the senior and
junior high school levels in general starts with the existing
board proposal and seeks to achieve greater desegregation
by the rerouting of existing bus routes and the reassign-
ment of students to other schools which would require
considerable increase in transportation. On the high school
level, the Foster plan does not differ significantly from the
board’s plan. At the elementary level, through a combina-
tion of pairing of contiguous schools and clustering and
pairing of noncontiguous schools, the Foster plan proposes
to desegregate the schools within the svstem within the “15
percent” guidelines established by Dr. Foster. Dr. Foster
testified that contiguous pairing was used wherever pos-
sible to minimize transportation. However, because of the
degree of residential segregation in Montgomery, this was

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10a
Opinion dated May 22, 1974

felt by Dr. Foster to be feasible in only three instances.
The pairing and clustering of elementary schools was the
means used by Dr. Foster to bring each elementary school
in each paired or clustered group, under his plan, within
one-tenth of one perce.t of the exact racial percentage in
each of the schools paired or clustered with two exceptions.
The exact racial balance varies by two-tenths of one per-
cent in these exceptions. The schools paired or clustered
ranged in grade structures one-two, one-three, one-four,
three-six, four-six, five-six, and 11 elementary schools under
the plaintiffs’ plan are grades one-six. The evidence re-
flects that the pairing or clustering of schools as proposed
by the plaintiffs’ plan would require extensive cross-city
busing from beyond the westernmost part of the city to
beyond the easternmost part of the city and the same is
true from east to west. Elementary children at all grade
levels, one through six, would be involved in this cross-
city busing. It is evident, and this Court finds, that
fracturization of grade structure and the pairing and
clustering of schools in the Montgomery school system, as
proposed by the plaintiffs, is for the sole purpose of at-
taining a strict racial balance in each elementary school
involved.

Forty-three percent of the total number of elementary
students enrolled in the Montgomery school system would
be reassigned under the plaintiffs’ plan. The plan would
also necessitate the reassignment of a large number of
elementary teachers since the teachers within the system
should continue to teach at the grade levels where they
have attained the greatest competency. This Court is im-
pressed that the plaintiffs’ plan would be disruptive to the
educational processes and would place an excessive and

lla
Opinion dated May 22, 1974

unnecessarily heavy administrative burden on the school
system.

The plaintiffs’ plan for the junior high school level
adopts basically the defendant board’s plan with certain
significant changes. These changes consist of new cross-
city and cross-county busing. This busing is proposed by
the plaintiffs in order to bring the projected percentages
of black students enrolled in each junior high school within
the system within the 15 percent tolerance allowed under
Dr. Foster’s plan.*! Dr. Foster’s proposal would require
a reassignment of 36 percent of the total junior high school
enrollment in the system.

Dr. Foster proposes a plan of desegregation at high
school level which requires noncontiguous and satellite
zoning to more racially balance each high school. To
accomplish this, 22 percent of all high school students would
be reassigned from schools they presently attend.

Following is a summary of newly assigned and addi-
tionally transported students under the plaintiffs’ plan:

Percentage of Total

Grade Level Number Reassigned Enrollment Reassigned
1-6 7,555 43
7-9 3,493 36
10-12 1,637 22

*1' Dr. Foster uses a 15 percent variation or tolerance to deter-
mine the racial identifiability of the elementary and junior high
schools in the system. That is to say, any elementary or junior
high school with an enrollment of less than 33.5 pereent black is
racially identifiable as white. If the enrollment is more than 63.5
percent black the school is racially identifiable, according to Dr.
Foster, as black. These variations are determined on the elemen-
tary and junior high school levels on the basis that 48.5 percent
of the total elementary and junior high school students enrolled in
the system are black and that 45.5 percent of the total high school
enrollment is black.

12a
Opinion dated May 22, 1974

A total of 12,685 students, or 36 percent of the total en-
rollment in the Montgomery school system, would be reas-
signed under the plaintiffs’ plan.

The students requiring additional transportation under
the plaintiffs’ plan are as follows:

Elementary (1-6) 5,204
Junior High School (7-9) 1,642
Senior High School (10-12) 350

B. Plaintiff-Intervenors’ Plan

The plaintiff-intervenors’ plan was prepared by Dr.
Larry Winecoff, a professor at the University of South
Carolina. Dr. Winecoff originally submitted two plans,
Plan A, with Plan A Alternate, and Plan B. Dr. Winecoff
abandoned Plan B, and no evidence was offered in support
of that plan. Dr. Winecoff set similar guidelines to those
used by Dr. Foster in determining those schools which he
considered to be racially identifiable in the Montgomery
school system.** However, Dr. Winecoff used 10 to 14 per-
cent as his tolerance in determining racial identifiability.

At the elementary level the grade structure of each
elementary school within the system is fracturized under
the plaintiff-intervenors’ Plan A. This is done by dividing
the existing one through six elementary grades into one
through three centers and four through six centers, Dr.
Winecoff also uses the rezoning technique of strip zones
running generally vertically for grades one-three and
elongated horizontally for grades four-six. He also uses
noncontiguous satellite zoning in his one-three grades Plan
A. The evidence reflects that four of the 16 elementary
schools within the system, serving grades one-three, would

22 See note 21, supra.

13a
Opinion dated May 22, 1974

still be racially identifiable according to Dr. Winecoff’s
standards under his Plan A, one-three.

In Plan A, one-three alternate, Dr. Winecoff uses the
same zone lines as used in his Plan A, one-three. Judged
by his tolerances, 11 of the 16 schools serving grades one-
three within the system would continue to be racially
identifiable under Dr. Winecoff’s Plan A, one-three alter-
nate.

Plaintiff-intervenors’ Plan A, four-six, uses elongated
horizontal zones extending from the east side of the city to
the west side of the city. This type of strip zoning would
of necessity require substantial additional transportation
and would also result in many elementary children having
to walk a considerable distance farther to school. In some
instances they would be required to walk past another
elementary school serving grades one-three. Under this
proposal, five of 18 schools serving grades four-six would
continue to be racially identifiable according to Dr. Wine-
coff’s tolerances.

The evidence reflects that from 60 to 70 percent of all
elementary school students within the Montgomery system
would be reassigned under plaintiff-intervenors’ Plan A,
one-three or one-three alternate, and Plan LB ZBI BIS EN TL EDL LOL LOP ELLIO 4 , :

49a
Opinion dated April 11, 1975

organized into “periphery zones.” Most of these “periph-
ery zone” students were bused to schools in the City, and
they made up the majority of the 11,176 students (31%)
bused by the county.‘

Implementation of the neighborhood assignment based
plan adopted in 1970 left a high number of all-one-race or
virtually all-one-race schools. The record discloses that in
the Spring of 1974, 15 elementary schools were 87% or
more black, and 6 were 87% or more white; 6 junior highs
were 94% or more black, another was 85% black, and 1
was 90% white; 1 senior high was 99% black, and another
was 86% black. Responding to these conditions, in its order
below the district court replaced its 1970 plan with the
School Board’s most current proposal. That plan adheres
to the techniques employed in the 1970 plan, and, unlike
the plans suggested by the plaintiffs and plaintiffs-inter-
venors, eschews pairing or clustering of schools.

At the high school level, the School Board plan employs
rezoning and peripheral reassignments to reduce the per-
centages of black students at each City school to 33-48% ;
only Montgomery County Hich School, in the extreme south
of the County, retains an 87% black student body.’ None
of the appellants question the propriety of this high school
plan, and it requires no further discussion. Rather, this
appeal was brought to test the constitutional sufficiency of
the School Board’s student assignment plans for the ele-
mentary and junior high levels. I will discuss each of the
two educational stages in turn.

‘During the 1973-74 term, some 5.388 elementary school stu-
dents, 3,759 junior high students, and 2.029 senior high students
were bused.

® See Appendix C; sce also note 35 infra.

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50a
Opinion dated April 11, 1975

II
Elementary School Plan

The plaintiffs and plaintiffs-intervenors each proposed
alternative plans for assignment of elementary school stu-
dents. Each plan aimed at eliminating “racially identifi-
able” schools, defined at the outset by each plan’s architect
as a school whose racial balance varied more than 10-15%
from the racial make-up of the county-wide student body
for that level. Neither plan clung strictly to such statistical
profiles, however, and each left at least one virtually all-
black elementary school.

The plaintiffs’ plan was directed only toward the ele-
mentary schools within the City. It generally retained the
zone lines drawn by the School Board, but changed assign-
ment patterns within those zones through pairing and clus-
tering, and some modification of peripheral assignments,
to reach a 24-66% black concentration in each city school.
The district court caleulated that implementation of the
plaintiffs’ plan would require reassignment of 43% of the
elementary school population and additional transportation
of 28% of the elementary student body. The district court
concluded that the plaintiffs’ plan was designed “for the
sole purpose of attaining a strict racial balance in each
elementary school] involved,” 377 F.Supp. at 1129, and that
the increased busing, large scale reassignment of students
and teachers, and the “fracturization of grade structure”
inherent in pairing and clustering, “be disruptive to the
educational processes and would place an excessive and
unnecessarily heavy administrative burden on the school
system.” Id.

The plaintiffs-intervenors proposed a more complicated
overhaul of elementary schoo! assignments. Their plans

5la
Opinion dated April 11, 1975

abandoned the School Board zone lines, replacing them with
two sets of new zones: one set of strip zones, running gen-
erally North-South, for grades 1-3; another set of strip
zones, running generally East-West, for grades 4-6. Utiliz-
ing this basie network the plaintiffs-intervenors offered
two possible plans. The simpler plan merely assigned stu-
dents to the school within their proposed contiguous zone.
This left 400 black students in grades 4-6 in a school 81%
black, and 2233 of the black primary grade 1-3 children in
schools 84% or more black. The plaintiffs-intervenors’
alternative, and preferred, plan retained their grade 4-6
zone pattern and the single 81% black school, but added
satellite zoning to the primary grade assignments, reduc-
ing to 402 the total of black students in one 84% black
primary school. The plaintiffs-intervenors’ plan offered
transportation advantages over the plantiffs’ plan, requir-
ing additional busing for only 11% of the elementary school
students, according to the district court. There was evi-
dence that the plaintiffs-intervenors’ plan would prove the
more likely thwarted in practice, however, and the district
court found that implementation of either of the plaintiff-
intervenors’ plans would involve reassignment of 60-70%
of all of the elementary school population. The district
court entered no specific findings as to the workability of
the plaintiffs-intervenors’ plans.

The School Board plan adopted by the district court for
the assignment of elementary school children furthers de-
segregation by closing 5 previously virtually all-black ele-
mentary schools and assigning some pupils from these
schools to predominantly white schools, and by reassigning
some 400 black students at another virtually all-black school
to 4 predominantly white schools. Under this plan, how-
ever, 55% of the black students were projected to be en-

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52a
Opinion dated April 11, 1975

rolled at elementary schools 87% or more black, and 44%
were expected to attend elementary schools 93% or more
black. The statistics showing actual enrollment as of Sep-
tember 15, 1974, demonstrate that the true profiles are
slightly worse.6 Under the School Board plan no white
elementary school students were reassigned to a school
that would remain predominantly black. The School Board
estimated that its elementary school plan would produce
a significant net reduction of transportation.

A
Unitary School System

As the Supreme Court established in Green v. School
Bd. of New Kent County, 1968, 391 U.S. 430, 436, 88 S.Ct.
1689, 1693, 20 L.Ed.2d 716, 722, “The transition to a uni-
tary, nonracial system of public education . .. is the ulti-
mate end to be brought about” in school desegregation
eases. In this pursuit the school authorities and district
court “will... necessarily be concerned with the elimina-
tion of one-race schools.” Swann v. Charlotte-Mecklenburg
Bd. of Edue., 1971, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28
L.Ed.2d 554, 572. The district court, relying on Ellis v.
Board of Publie Instrue. of Orange County, 5 Cir. 1970,
423 F.2d 203 (Eilis I), coneluded, however, that the per-
sistence of virtually all-black elementary schools in Mont-
gomery County under the School Board’s “neighborhood
assignment” plan did not prevent that system from reach-
ing the unitary status mandated by Green. I disagree.

6 See Appendix A & note 37 infra.

53a
Opinion dated April 11, 1975

Ellis I approved, as modified,’ a student desegregation
plan for Orange County, Florida, which was based on
neighborhood school assignments and ieft several virtually
all-black schools. We held that “[u]nder the facts of this
case, it happens that the school board’s choice of a neigh-
borhood assignment system is adequate to convert the Or-
ange County school system from a dual to a unitary sys-
tem.” 423 F.2d at 208, n. 7. Ellis I did not, however,
automatically sanctify any “neighborhood school” student
assignment plan which placed the same percentages of stu-
dents in fully integrated schools. Rather, as we explicitly
cautioned,

There are many variables in the student assignment
approach necessary to bring about unitary school sys-
tems. The answer in each case turns, in the final anal-
ysis, as here, on all of the facts including those which
are peculiar to the particular system.

423 F.2d at 208, n. 7. This passage has become a refrain
in our school desegregation decisions.* Indeed, our school
desegregation cases are too numerous, their facts, figures,
and conditions too particular, and our remedies too flexibly
ashioned, to lend themselves to a simple sorting into neat
rows. But I believe that the weight of our pre-Sirann
decisions adopting and adapting the neighborhood assign-
ment approach of Ellis I do not permit us to certify the
School Board’s plan for Montgomery as the achievement

7 The district court’s opinion below, 377 F.Supp. at 1137 n.36.
erroneously reads the Ellis I opinion as approving the degree of
desegregation under the Orange County plan without modifica-
tion.

® See, e.g., Henry v. Clarksdale Mun. Sep. Sch. Dist.. 5 Cir.
1970, 433 F.2d 387, 390; Andrews v. City of Monroe, 5 Cir. 1970,
425 F.2d 1017, 1019.

D4a
Opinion dated April 11, 1975

of a unitary system.’ As we concluded in Allen v. Board of
Public Instrue. of Broward County, 5 Cir. 1970, 482 F.2d
362, “In the conversion from dual school systems based
on race to unitary school systems, the continued existence
of all-black or virtually all-black schools is unacceptable
where reasonable alternatives exist.” '°

Even were the School Board’s plan adequate to achieve
a unitary school system under Ellis I and the cases im-
mediately following it, however, I think it manifest that the
School Board’s plan cannot stand after Swann, Davis v.
Board of School Comm’rs of Mobile County, 1971, 402 U.S.
33, 91 S.Ct. 1289, 28 L.Ed.2d 577, and Keyes v. School Dis-
trict No. 1, 1973, 418 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548.
Swann shed new light on the constitutional requisites in
school desegregation cases, and since Swann we have re-
fused to accept mere compliance with our decision in Ellis J
as the mark of a school board plan’s constitutional suffi-

* See, e.g., Ross vy. Eckels, 5 Cir, 1970, 434 F.2d 1140, cert.
denied, 1971, 402 U.S, 953, 91 S.Ct. 1614, 29 L.Ed.2d 123; Valley
v. Rapides, 5 Cir, 1970, 484 F.2d 144; Conley vy. Lake Charles
School Bd., 5 Cir, 1970, 434 F.2d 35; Allen v. Board of Public
Instrue. of Broward County, 5 Cir, 1970, 432 F.2d 362, cert,
denied, 1971, 402 U.S, 952, 91 S.Ct. 1609, 1612, 29 L.Ed.2d 123;
Pate v. Dade County School Bd. 5 Cir, 1970, 434 F.2d 1151,
cert. denied, 1971, 402 U.S. 953, 91 S.Ct. 1613, 29 L.Ed.2d 123;
Bradley yv. Board of Publie Instrue. of Pinellas County, 5 Cir.
1970, 431 F.2d 1377, cert. denied, 1971, 402 U.S, 943, 91 S.Ct.
1608, 29 L.Ed2d 111; Hightower v. West, 5 Cir. 1970, 430 F.2d
552; Mannings v. Board of Public Instrue. of Hillsborough County,
5 Cir, 1970, 427 F.2d 874. In each of these “neighborhood assign-
ment” cases we required that the concentration of black students
attending virtually all-black schools be reduced far below the level
accomplished under the School Board plan for Montgomery. This
is not, of course, to disregard the complex of other variables present
in each case. See also Wright v. Board of Publie Instrue, of
Alachua County, 5 Cir. 1970, 431 F.2d 1200.

© Quoted with approval in Boykins v. Fairfield Bd. of Edue.,
5 Cir. 1972, 457 F.2d 1091, 1095.

es Sy:

Opinion dated April 11, 1975

ciency. Indeed, we held Ellis v. Board of Publie Instrue.
of Orange County, 5 “ir. 1972, 465 F.2d 878, cert. denied,
1973, 410 U.S. 966, 93 S.Ct. 1488, 35 L.Ed.2d 700 (Ellis IT),
that the school board was obliged to desegregate each all-
black school remaining in Orange County under our prior
holding.'! See also Dandridge v. Jefferson Parish School
Bd., 5 Cir. 1972, 456 F.2d 552, 554,'* cert. denied, 1972, 409
U.S. 978, 93 8.Ct. 306, 34 L.Ed.2d 240,

The concentration of black students in virtually all-black
schools contradicts the assertion that the School Board’s
plan for Montgomery establishes a unitary school system
under these controlling standards. Compare, e.g., Swann,
supra; Davis, supra; Ellis IT, supra; Flax v. Potts, 5 Cir.
1972, 464 F.2d 865, 869, cert. denied, 1972, 409 U.S. 1007,
93 S.Ct. 483, 34 L.Ed.2d 299 (middle schools, high schools) ;
Dandridge v. Jefferson Parish School Bd., 5 Cir. 1972, 456
F.2d 552, cert. denied, 1972, 409 U.S. 978, 98 S.Ct. 306, 34
L.Ed.2d 240; cases cited, note 9 supra; see also Keyes v.
School Dist. No. 1, 1973, 413 U.S. 189, 199, n. 10, 93 S.Ct.
2686, 2692, 37 L.Md.2d 548, 558. The teaching of Swann
and Keyes is that no school which reflects vestigial dis-
crimination through its virtually single-race student body
can be omitted from a desegregation plan unless inclusion
is unworkable: where desegregation is possible we ean

"We found the Orange County system could be unitary, how-
ever, although two elementary schools, to which 7% of the sys-
tem’s black elementary students were assigned, continued with
79% black enrollments, where 14% of the system’s black students
had employed the majority to minority transfer program.

12 Compare Lee v. Macon County Bd. of Educ. (Anniston), 5
Cir. 1973, 483 F.2d 244 (post-Swann), with Lee v. Macon County
Bd. of Edue. (Anniston), 5 Cir. 1970, 429 F.2d 1218 (pre-Swann).
But ef. Lee v. Macon County Bd. of Edue. (Troy), 5 Cir. 1973,
475 F.2d 748 (apparently denying interim relief only).

:

ak aa

OOO L LTE RET Eg NG ODO

1 hs a eae

— a ee i aa oe 2 cae

56a
Opinion dated April 11, 1975

tolerate no abandonment of some given portion of students
locked into a uniracial educational experience,

In appraising a school board’s plan we are, of course,
attentive to conditions other than racial concentrations. |
cannot agree, however, with the suggestion that compliance
with the remaining five of the six requirements established
in Green v. School Board of New Kent County, 1968, 391
U.S. 480, 435, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716, 722—
“faculty, staff, transportation, extra-curricular activities
and facilities’—can immunize the School Board’s plan."
So to conclude would ignore that “[i]Jn Green the court
spoke in terms of the whole system,” Ellis 1, 423 F.2d at
204, and would disregard the recognition that student as-
signment is the most important single aspect of a desegre-
gated school] system. Our cases have always required com-
pliance with all six particulars.’* The School Board addi-
tionally argues that the secondary schools in Montgomery
County are desegregated, and points out that we have taken
note of thorough integration at the secondary level, in
some cases approving assignment plans which left some
all-black primary schools, See Lee vy. City of Troy Bad.

8 See 377 F.Supp. at 1138, T assume arquendo that the Board
plan complies with the remaining five benchmarks enumerated in
Groen,

™ Sec, ¢.g., Ellis IT, supra; Valley v. Rapides, 5 Cir, 1970, 434
F.2d 144; Allen v. Board of Publie Instrue. of Broward County,
5 Cir, 1970, 432 F.2d 362, cert. denied, 1971, 402 1.8, 952, 91
S.Ct. 1609, 1612, 29 1..Ed.2d 123; Pate v. Dade County School
Bd., 5 Cir. 1970, 434 F.2d 1151, cert. denied, 1971, 402 U.S. 953,
91 S.Ct. 1613, 29 L.Ed.2d 123; Henry v. Clarksdale Mun. Sep.
School Dist., 5 Cir. 1970, 433 F.2d 387; Bradley v. Board of Pub-
lie Instrue. of Pinellas County, 5 Cir. 1970, 431 F.2d 1377, cert.
denied, 1971, 402 U.S. 943, 91 S.Ct. 1608, 29 L.Ed.2d 111; City of
Monroe v. Andrews, 5 Cir. 1970, 425 F.2d 1017. See generally
Singleton +. Jackson Mun. Sup. School Dist., 5 Cir. (en bane)
1970, 419 ¥.2d 1211.

57a
Opinion dated April 11, 1975

of Edue., 5 Cir. 1970, 482 F.2d 819, 822; Hightower v. West,
5 Cir. 1970, 430 F.2d 552, 555. This argument also fails
here, Even assuming arguendo that the secondary schools
in Montgomery County were fully integrated, we would as
in the pre-Swann cases relied upon by the School Board,
attach little weight to that consideration. Moreover, as it
has become quite clear, “{T]his court has, with limited
exceptions [not applicable here] disapproved of school
board plans which exclude a certain age grouping from
school desegregation.” Arvizu vy. Waco Indep. School Dist.,
5 Cir. 1974, 495 F.2d 499, 503..° In the light of Swann and
our developed case law, it is manifest that the progressive
integration of Montgomery’s high schools is no excuse for
the continued failure to desegregate at the elementary
level."®

In sum, a neighborhood school assignment plan may be
adequate if it establishes a unitary school system; but
such assignment is not ‘per se adequate.” Davis v. Board
of School Comm'rs of Mobile County, 1971, 402 U.S. at 37,
91 S.Ct. at 1292, 28 L.Ed.2d at 581. A review of the cir-
cumstances of the Montgomery County system, particularly

Th some eases it may prove necessary to avoid transportation
of school children of very tender age, sce generally Swann, 402
U.S, at 31, 91. 8.Ct. at 1283, 28 1. Ed.2d at 575; Cisneros v. Corpus
Christi Indep, School Dist., 5 Cir. (en bane) 1972, 467 F.2d 142,
153, cert. denied, 1973, 413 U.S, 922, 93 S.Ct. 3052, 37 L.Ed.2d
1044, But such exceptions are carefully limited, sce, ¢.g.. Flax
v. Potts. 5 Cir., 1972, 464 F.2d 865, 869, cert. denied, 1972, 409
U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299; Lockett v. Board of
Edue. of Muscogee County School Dist.. 5 Cir. 1971, 447 F.2d
472, 473; cf. Lee v. Macon County Bd. of Edue., 5 Cir, 1973, 475
F.2d 748 (apparently denying interim relief only).

In cases where racially identifiable primary schools cannot
feasibly be eradicated, of course, a district court should endeavor
particularly to insure that students from such schools will gradu-
ate to fully integrated schools.

58a
Opinion dated April 11, 1975

the concentration of black elementary students in virtually
all-black schools, reveals that the School Board plan ap-
proved by the district court was insufficient to achieve a
unitary school] system as required under Green and Swann.
Such a plan can stand only if its lack of unitary status
is not attributable to state action, or if no further remedy
is workable.

B
Residential Patterns

The district court declined to require further desegrega-
tion of the remaining virtually all-black elementary schools
in Montgomery County, in part because it considered the
persistence of those schools to be ‘fa result of residential
patterns and not of the school board’s action—either past
or present.” 377 F.Supp. at 1182. Because the district
court’s opinion offers no supporting discussion, it is un-
clear whether the district court believed that the present
existence of virtually all-black schools could be laid in part
to residential patterns established during the period of
statutory school segregation yet not induced by that state
action, or that the development ef racially identifiable
neighborhoods since the onset of efforts to integrate the
schools had precipitated the virtually all-black schools."
In either event, I think the district court erred in its legal
determination.

Aware that “[p]eople gravitate toward school facilities,
just as schools are located in response to the needs of
people,” the Supreme Court has recognized that

17 The record discloses that of the 11 elementary schools which
retain a projected black population over 80% under the School
Board’s “neighborhood assignment” plan, & (all but Bellinger
Hill, Davis, and Pintlala) had been black schools before 1970.

”

RB A De

PCED

59a
Opinion dated April 11, 1975

[t]he location of schools may ... influence the patterns
of residential development of a metropolitan area and
have important impact on composition of inner-city
neighborhoods.

In the past, choices in this respect have been used
as a potent weapon for creating or maintaining a state-
segregated school system.

Swann, 402 U.S. at 20, 21, 91 S.Ct. at 1278, 28 L.Ed.2d at
569.
Moreover,

[A] connection between past segregative acts and pres-
ent segregation may be present even when not appar-
ent and .. . close examination is required before
concluding that the connection does not exist. Inten-
tional school segregation in the past may have been
a factor in creating a natural environment for the
growth of further segregation.

Keyes, 413 U.S. 189, 211, 93 St.Ct. 2686, 2699, 37 L.Ed.2d
d48, 565.
Accordingly, the Swann Court held that while

the existence of some small number of one-race, or vir-
tually one race, schools within a district is not in and
of itself the mark of a system that practices segrega-
tion by law [,] ... in a system with a history of seg-
regation the need for remedial criteria of sufficient
specificity to assure a school authority’s compliance
with its constitutional duty warrants a presumption
against schools that are substantially disproportionate
in their racial composition, Where the school author-
ity’s proposed plan for conversion from a dual to a
unitary system contemplates the continued existence
of some schools that are all or predominantly of one

60a
Opinion dated April 11, 1975

race, they have the burden of showing that such as-
signments are genuinely nondiscriminatory. The court
should scrutinize such schools, and the burden upon
the school authorities will be to satisfy the court that
their racial composition is not the resultt of present or
past discriminatory action on their part.

Swann, 402 U.S. at 26, 91 S.Ct. at 1281, 28 LL.Ed.2d at 572.
The School Board may satisfy its burden “omly by showing
that its past segregative acts did not create or contribute
to the current segregated condition of . . . [particular]
schools.” Keyes, 413 U.S. at 211, 93 S.Ct. at 2699, 37
L.Ed.2d at 565.

There is no evidence to support a conclusion that the
existence of virtually all-black neighborhood elementary
schools, so far as they derive from residential patterns
etched before school desegregation, is innocent of past dis-
criminatory action by the School Board. The opinion below
lacks the detailed factual findings by the district court which
should reflect the “close scrutiny” required under Swann
and Aeyes, and the record bears no evidence to support the
conclusion that the link between past and present segrega-
tion has been severed. While there is much evidence of
the residential separations between whites and blacks in
Montgomery, which in some cases shows that those pat-
terns are not new, evidence of this sort is insufficient to
overcome the presumption established in Swann connect-
ing the development of persistently segregated residential
patterns with state-mandated school segregation. Sce also
Dandridge v. Jefferson Parish School Bd., 5 Cir, 1972, 456
F.2d 552, cert. denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34
L.Ed. 240.

These principles establish equally well that racial segre-
gation in the Montgomery County elementary schools can-

UNECE RELIED CPANEL IN RE No EY

6la
Opinion dated April 11, 1975

not be excused on the ground that segregated residential
patterns of some neighborhoods from which the one-race
neighborhood schools draw have crystallized as the result
of population shifts by private residents since the court’s
initiation of school desegregation. Such an argument has
previously been rejected by this Court.’® To be sure, the
Supreme Court has made clear that after a school system
attains unitary status,

the communities served by such [a system may not]
remain demographically stable [;] ... in a growing,
mobile society, few will do so. Neither school authori-
ties nor district courts are constitutionally required
to make year-by-year adjustments of the racial eompo-
sition of student bodies once the affirmative duty to
desegregate has been accomplished and racial diserimi-
nation through official action is eliminated from the
system.

Swann, 402 U.S. at 31-32, 91 S.Ct. at 1283, 28 L.Ed.2d at
575.

But in Montgomery a unitary system has never been
achieved, for “[t]he vestiges of state-imposed segregation
[have not] been eliminated from the assignment of elemen-
tary school students,” Flax v. Potts, 5 Cir. 1972, 464 F.2d
865, 868, cert. denied, 1972, 409 U.S. 1007, 93 S.Ct. 483, 34

L.Eid.2d 299, as required under Swann.”

8 See Flax v. Potts, 5 Cir. 1972, 464 F.2d 865, 868, cert. denied.
1972, 409 U.S. 1007, 98 S.Ct. 433, 34 L.Fd2d 299: cf. Boyd v.
Pointe Coupee Parish School Bd., 5 Cir. 1974, 505 F.2d 632:
Hereford v. Huntsville Bd. of Edue., 5 Cir, 1974. 504 F.2d 857;
Adams v. Rankin, 5 Cir. 1973, 485 F.2d 324.

Cf, Ellis v. Board of Publie Instrue. of Orange County, 5
Cir. 1972, 465 F.2d 878, 879-80, cert. denied, 1973, 410 U.S. 966.

eee |

62a
Opinion dated April 11, 1975

C
Remedy

Because the School Board’s proposed elementary school
plan falls short of achieving a unitary system, and this
failing cannot be attributed solely to private action, the
district court should have ordered an appropriate alterna-
tive plan. As we have said before Swann and reiterated
after, “[i]n the conversion from dual school systems based
on race to unitary school systems, the continued exist-
ence of all-black or virtually all-black schools is unaccept-
able where reasonable alternatives exist.” *°

The district court discarded the plans proposed by the
plaintiffs and plaintiffs-intervenors, after determining that
they aimed at balancing black/white student populations
on abstract ratios, rather than simply creating a unitary
assignment plan. Although the plaintiffs and plaintiffs-
intervenors protest that their use of ratios as indicators
of residually discriminatory school assignments remained

93 S.Ct. 1438, 35 L.Ed.2d 700 (Ellis IT); Dandridge v. Jefferson
Parish School Bd., 5 Cir., 1972, 456 F.2d 552, 554, cert. denied,
1972, 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240. Moreover, there
is even some indication of Montgomery County School Board
action since the onset of court-ordered desegregation which may
tend to perpetuate the dual system. As the district court found
at a prior stage in this litigation, the location and extent of con-
struction and expansion of elementary and secondary schools in
Montgomery County have “been designed to perpetuate, and have
the effect of perpetuating, the dual school svstem.” Carr. v.
Montgomery County Bd. of Educ., M.D.Ala. 1968, 289 F.Supp.
647, 652. See generally, Swann, 402 U.S. at 18-21, 91 S.Ct. at
1277, 28 L.Ed.2d at 568-70; cf. Keyes, 413 U.S. at 201-05, 93 S.Ct.
at 2694-2695, 37 L.Ed.2d at 559-61.

20 Allen v. Board of Educ. of Broward County, 5 Cir. 1970, 432
F.2d 362, 367, cert. denied, 1971, 402 U.S. 952, 91 S.Ct. 1609,
1612, 29 L.Ed.2d 123, quoted in Bovkins v. Fairfield Bd. of Educ.,
5 Cir. 1972, 457 F.2d 1091, 1095.

ee

ELLE AES IE LOPLI LOT ENE IN LET I ASIST TD On

63a
Opinion dated April 11, 1975

within the bounds approved by the Supreme Court in
Swann, 402 U.S. at 22-25, 91 S.Ct. at 1279-1280, 28 L.Ed.2d
at 570-72, I would not hold that the district court abused
its discretion in choosing not to follow those plans. Nev-
ertheless, the elimination of those proposals did not re-
lieve the district court of its duty to exercise its “broad
power to fashion a remedy that will assure a unitary
school system,” and to “make every effort to achieve the
greatest possible degree of actual desegregation and .. .
[eliminate] one-race schools.” Swann, 404 U.S. at 16, 26,
91 S.Ct. at 1281, 28 L.Ed.2d at 567, 572. Upon determin-
ing that none of the alternatives presented was satisfac-
tory, the district court should have held further proceed-
ings to forge a workable and effective plan. See Cisneros
v. Corpus Christi Indep. School Dist., 5 Cir. (en bane)
1972, 467 F.2d 142, 152, cert. denied, 1973, 413 U.S. 922,
93 S.Ct. 3052, 37 L.Ed.2d 1044. The district court should
support its failure so to proceed only by a conclusion
that no further desegregation of the elementary school
population was workable on any plan.

The School Board has consistently maintained that no
workable means exists for increasing desegregation in the
elementary schools, and the district court agreed, finding
“that the remaining predominantly black schools cannot
be effectively desegregated in ‘a practical and workable
manner’ and that the School Board plan achieved ‘the
greatest possible degree of actual desegregation, taking
into account the ‘practicalities of the situation.” 377 F.
Supp. at 1135. These conclusions are drawn on insuffi-
cient or improper factual considerations, however, and are
thus inadequate as a matter of law.

The district court reasoned that any further elementary
school desegregation would require cross-busing of black
and white students which “would not, under the circum-

Bs hi kd idl

CRE ARB OO LEI A 5 La TG UB Ie OE MPN

ee eae ae

64a
Opinion dated April 11, 1975

stances of this case, accomplish any realistically stable
desegregation.” 377 F.Supp. at 1132.*° The opinion ear-
ries no discussion or subsidiary findings to explain its
concern with the stability of desegregation. Apparently
the district court was persuaded by the School Board’s
attempt*? to demonstrate that busing of white children
into black neighborhoods to attend traditionally black
schools would in many cases be met with withdrawal of
white students from those schools. But it is well settled
that the threat of “white flight,” however likely, cannot
validate an otherwise insufficient desegregation remedy.”*
To the extent that it considered white flight as a factor re-
quiring the moderation of desegregation otherwise to be
ordered, the district court was in error.

The opinion below does not sufficiently explicate the re-
maining factors (other than stability) that the district
court appraised and the reasoning it followed in deter-
mining that no further elementary school desegregation
was feasible beyond that suggested by the School Board.
The district court simply specified the totals of children
to be reassigned and the number of students to be newly

a

*1 The district court also forecast that the plans of the plain-
tiffs and plaintiffs-intervenors would provide only “an extremely
unstable desegregated system.” 377 F.Supp. at 1131.

2 See, e.g., Transcript, April 24, 1974, at 240.

*3 See, e.g., Monroe v. Board of Commissioners of City of Jack-
son, 1968, 391 U.S. 450, 459, 88 S.Ct. 1700, 1704, 20 L.Ed.2d 733.
739; Lee v. Macon County Bd. of Edue. (Marengo), 5 Cir. 1972,
465 F.2d 369; United States v. Hinds County School Bd.. 5 Cir.
1969, 417 F.2d 852, 858, cert. denied, 1970, 396 U.S. 1032, 90 S.Ct.
612, 24 L.Ed.2d 531; Lee v. Macon County Bd. of Educ. (Pick-
ens), M.D.Ala. (3 judge) 1970, 317 F.Supp. 95, 98-99. Cf.. e.¢.,
Boyd v. Pointe Coupee Parish School Bd., 5 Cir. 1974, 505 F.2d
632; Hereford v. Huntsville Bd. of Edue., 5 Cir. 1974, 504 F.2d
857; Adams v. Rankin, 5 Cir. 1973, 485 F.2d 324.

Denar RANEY IAL PTOI MEE BIR LE ETH I EINE PET RRO

65a
Opinion dated April 11, 1975

bused under the plaintiffs’ and plaintiffs-intervenors’ plans ;
observed without any specific findings that busing would
involve a substantial increase in the time and distance that
students would have to travel to school; and then concluded
that the plaintiffs’—but not the plaintiffs-intervenors’—
plan ‘“‘would be disruptive to the educational processes and
would place an excessive and unnecessarily heavy admin-
istrative burden on the schoo] system.” These findings are
an inadequate foundation on which the rest either a deter-
mination of the unworkability of the proposed plans or a
conclusion that no improvement of the Board’s solution
could be obtained. Nor does the face of the record reveal
any inherent obstacle to the progress of all further desegre-
gation in Montgomery through the instruments of zoning,
pairing, and busing. Each of these tools has been approved
in Swann, 402 U.S. at 27-29, 91 S.Ct. at 1281-82, 28 L.Ed.2d
at 573-74, and Cisneros v. Corpus Christi Indep. School
Dist., 5 Cir. (en banc) 1972, 467 F.2d 142, 152-53, cert. de-
nied, 1973, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d 1044, and
repeatedly utilized in this circuit.

We have, where necessary, required both rezoning** and
pairing or clustering;*° and while pairing may not be the

24 See, e.g., Conley v. Lake Charles School Bd., 5 Cir. 1970, 434
F.2d 35, 39-41; Valley v. Rapides Parish School Bd., 5 Cir. 1970,
434 F.2d 144, 147; Pate v. Dade County School Bd., 5 Cir. 1970,
434 F.2d 1151, 1158, cert. denied, 1971, 402 U.S. 953, 91 S.Ct.
1613, 29 L.Ed.2d 123; Bradley v. Board of Publie Instrue. of
Pinellas County, 5 Cir. 1970, 431 F.2d 1377, 1381-83, cert. denied,
1971, 402 U.S. 943, 91 S.Ct. 1608, 29 L.Ed.2d 111. Sce also
Wright v. Board of Public Instrue. of Alachua County, 5 Cir.
1970, 431 F.2d 1200.

25 Sec, e.g., Weaver v. Board of Public Instruc. of Brevard
County, 5 Cir. 1972, 467 F.2d 473, cert. denied, 1973, 410 U.S.
982, 93 S.Ct. 1498, 36 L.Ed.2d 177; Flax v. Poits, 5 Cir. 1972,
464 F.2d 865, 868-69, cert. denied, 1972, 409 U.S. 1007, 93 S.Ct.
433, 34 L.Ed.2d 299; Ross v Eckels, 5 Cir. 1970, 434 F.2d 1140,

LAS HET AMR oR amavewrnwnng

66a
Opinion dated April 11, 1975

remedy of first resort,** we have said and repeated that
“where all-black or virtually all-black schools remain under
a zoning plan, but it is practicable to desegregate some or
all of the black schools by using the tool of pairing, the
tool must be used.” *? The record, insofar as it reveals the
administrative practicalities associated with rezoning and
pairing or clustering, does not appear to preclude the im-
position of all measures beyond those desired by the School
3oard. The record fails to indicate in any way how Mont-
gomery’s situation differs from the conditions existing in
any of the many other school districts in which we have
specified that these measures be employed. Indeed, exami-
nation of the record suggests the feasibility of their util-
ization in several instances.** Accordingly, I would hold

1148, cert. denied, 1971, 402 U.S. 953, 91 S.Ct. 1614, 29 L.Ed.2d
123; Henry v. Clarksdale Mun. Sep. School Dist., 5 Cir. 1970,
433 F.2d 387, 394-95; Allen v. Board of Publie Instruc. of Brow-
ard County, 5 Cir. 1970, 482 F.2d 362, 367-71 (citing additional
cases), cert. denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 1612, 29
L.Ed.2d 123. See also Miller v. Board of Edue. of Gadsden, 5 Cir.
1973, 482 F.2d 1234; Boykins v. Fairfield Bd. of Edue., 5 Cir.
1972, 457 F.2d 1091, 1095; Andrews v. City of Monroe, 5 Cir.
1970, 425 F.2d 1017, 1021.

76 Allen v. Board of Public Instrue. of Broward County, 5 Cir.
1970, 432 F.2d 362, 367, cert. denied, 1971, 402 U.S. 952, 91 S.Ct.
1609, 29 L.Ed.2d 123, quoted in Flax v. Potts, 5 Cir. 1972, 464
F.2d 865, 868, cert. denied 1972, 409 U.S. 1007, 93 S.Ct. 433, 34
L.Ed.2d 299, and Boykins v. Fairfield Board of Edue., 5 Cir.
1972, 457 F.2d 1091, 1095.

27 See Cisneros v. Corpus Christi Indep. School Dist., 5 Cir.
(en bane) 1972, 467 F.2d 142, 153, cert. denied, 1973, 413 U.S.
922, 93 S.Ct. 3052, 37 L.Ed.2d 1044; Conley v. Lake Charles
School Bd., 5 Cir. 1970, 434 F.2d 35, 39.

“8 In regard to the initial administrative difficulties associated
with re-zoning and pairing, we emphasize “t]he fact that a
temporary, albeit difficult, burden may be placed on the School
Board in the initial administration of the plan . . . does not
justify in these circumstances the continuation of a less than

PA tT LL REM DIA DIGI SL MO SO SL LEG ILA ER IEF B80 a 4 WEF eH

GAEDE LEE LE LLL I LED LD IOI EEE AMEE te Ne a aia aa

67a
Opinion dated April 11, 1975

that the district court erred in approving the School Board
plan, and remand the cause for implementation of a con-
stitutionally sufficient plan.

The district court entered no specifie findings regarding
the extent in time or miles*® of additional busing required
to implement any of the desegregation plans before it, nor
did it express any conclusions as to whether “the time or
distance of travel [under any possible plan was] so great
as to either risk the health of the children or significantly
impinge on the educational process.” Swann, 402 U.S. at
30-31, 91 S.Ct. at 1283, 28 L.Ed.2d at 575. Certainly it is
clear that the School Board plan employs less than the
maximum busing possible, since it anticipates a significant
reduction in elementary school student busing in the year
of implementation. Accordingly, I would direct that in
analyzing remedies for desegregation of the Montgomery
schools on remand, the district court should consider the
implementation of additional busing as necessary to accom-
plish new zoning, pairing, or clustering.*°

unitary school system and the resulting denial of an equal edu-
cational opportunity to a certain segment of the [County] chil-
dren.” Dandridge v. Jefferson Parish School Bd., E.D.La. 1971.
332 F.Supp. 590, 592, stay denied, 1971, 404 U.S. 1219, 92 S.Ct.
18, 19, 30 L.Ed.2d 23, 24 (Marshall, J.. in chambers: quoting
cited language with approval). aff'd, 5 Cir. 1972, 456 F.2d 552,
cert. denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240.

2° See Cisneros v. Corpus Christi Indep. School Dist.. 5 Cir.
1972, 467 F.2d 142, 153, cert. denied, 1973, 413 U.S. 922. 93 S.Ct.
3052, 37 L.Ed.2d 1044.

*° Significantly, the extent—in terms of the number of pupils
involved, and apparently the length of the trips—of additional
elementary student busing envisioned in connection with the
plaintiffs’-intervenors’ plan very closely parallels the increase in
elementary school busing under the desegregation plan imple-
mented in Swann, as reflected in the opinions in the Supreme
Court, 402 U.S. at 29-31, 91 S.Ct. at 1282-1283, 28 L.Ed.2d at
574-75, and the Fourth Circuit, 1970, 431 F.2d 138, 144-47.

aR en |

68a
Opinion dated April 11, 1975

To summarize, I would hold that the district court erred
in adopting the School Board plan, because that plan falls
short of the constitutional mark, and because there is no
indication of the unworkability of a Constitutional remedy.
I do not believe the district court’s result can be upheld on
any of the arguments advanced, whether independently or
cumulatively considered. If there be no other way to de-
segregate, the tools of pairing and clustering must be used
to relieve the barricaded and beleaguered blacks from their
school garrisons. These mixing mechanisms have received
judicial blessing, and they must be employed unless mani-
festly unusable for constitutional reasons, Other innova-
tions may be considered. Nothing to achieve the constitu-
tional mandate to desegregate can be avoided because of
whimsy, white flight and fright, inconvenience, annoyance
or any other actual or conjured excuse. Desegregation of
education is a constitutional necessity and not an optional
luxury, and bland generalities will not suffice to justify
segregated schools.

I would be unwilling to require the immediate implemen-
tation of any of the alternative elementary school plans
presented, however, in light of the district court’s deter-
mination that the plans of the plaintiffs and plaintiffs-
intervenors were generated to achieve racial ratios beyond
and in contravention of the mandate of Siann, in light of
the state of the record, and in light of the opportunity re-
maining for the district court to refine and meld the various
plans before it.*! Rather I would remand the case to the
district court for further proceedings to develop a proper
plan. We have in the past required specific and detailed

31 Cf. Adams v. Rankin County Bd. of Edne., 5 Cir. 1973. 485
F.2d 324. 326; Andrews v. City of Monroe, 5 Cir., 1970, 425 F.2d
1017, 1021.

69a
Opinion dated April 11, 1975

findings to accompany the district court’s selection of a
desegregation remedy that promises to be less effective
than alternative plans for establishing a unitary school
system. This requirement is meant to secure to the re-
viewing court the full advantages of the factual appraisals
and perspective of the particularly well-situated trial court,
in order to maximize the benefits of the district court’s
informed discretion. Cf. Brown v. Board of Educ. of
Topeka, 1955, 349 U.S. 294, 299-300, 75 S.Ct. 753, 759-756,
99 J,.Ed. 1083, 1105-06 (Brown II). Thus I would direct
that, if the district court should approve on remand a plan
less than fully effective in establishing a unitary school
system in Montgomery County, it must support its conclu-
sion with precise and detailed findings of fact, keeping in
mind Swann’s heavy burden upon school officials to legit-
imate any less than thorough desegregation plan on
grounds of unworkability :**

All things being equal, with no history of discrimina-
tion, it might well be desirable to assign pupils to
schools nearest their homes. But all things are not
equal in a system that has been deliberately con-
structed and maintained to enforce racial segregation.
The remedy for such segregation may be administra-
tively awkward, inconvenient, and even bizarre in
some situations and may impose burdens on some; but

22 See, c.g., Adams v. Rankin County Bd. of Edue., 5 Cir. 1973,
485 F.2d 324. 326: Boykins v. Fairfield Bd. of Edue., 5 Cir. 1972,
457 F.2d 1091, 1097; Andrews v. City of Monroe, 5 Cir, 1970, 425
F.2d 101%, 1021; ef. also, Winston-Salem /Forsyth County Bd. of
Educ., 1971, 404 U.S. 1221, 1226-27, 92 S.Ct. 1236, 1239, 31 L.Ed.
2d 441, 446 (Burger, C. J., in chambers).

33 See also Green v. School Bd. of New Kent County, 1968, 391
U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716, 724.

he IAT NEEL OEE NO NIELS ALIBE | PLLA LENIN AR BENE SIR AN a

70a
Opinion dated April 11, 1975

all awkwardness and inconvenience cannot be avoided
in the interim period when remedial adjustments are
being made to eliminate the dual school system.

402 U.S. at 28, 91 S.Ct. at 1282, 28 L.Ed.2d at 573. Many
practicalities affect the judgment and aims of school au-
thorities in pursuing their daily occupation of maintaining
a pragmatic educational system. But when the constitu-
tionally mandated establishment of a unitary school system
rests in the balance, workaday practicalities are no longer
determinative factors. The conservation of such daily effi-
ciencies may have been a considered objective in the days
of Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct. 1138,
41 L.Ed. 256, but Brown v. Board of Educ. of Topeka, 1954,
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), has
taken us down a new road. Brown and its post-adolescent
progeny have imposed upon school authorities and courts
an affirmative duty to see that such stumbling blocks in
the path of desegregation are relegated to a footnote in
history. As we observed in a prior J/ontgomery case,™
“This obligation is unremitting, and there ean be no abdica-
tion, no matter how temporary.” A school board’s plan
may have any number of advantages when appraised in
ordinary perspective, but these give way where they im-
pede the progress of desegregation; convenience as well as
custom must bend to constitutional prescription.

Given my resolution of this aspect ef the attack on the
School Board’s plan for the elementary grades, I would
find it unnecessary to consider at this time whether that
plan imposes a discriminatorily harsh burden on the black
students.

34 Carr v. Montgomery County Bd. of Edue., 5 Cir. 1970, 429
F.2d 382, 386.

REO EE IE II EOL II ES DEFOE RIEL PIE, Te PEN EEG

LA EAB PE FE Oe

71a
Opinion dated April 11, 1975

Ill
Junior High School Plan

The junior high school student assignment plan in effect
in the Spring of 1974 left over half of the black students
in 7 junior high schools which were over 85% black. The
School Board plan, as implemented by the district court,
proposed to reduce this concentration through rezoning,
peripheral reassignments, and the elimination of three
black schools; the district court projected that McIntyre
Junior High, enrolling 792 of the County’s black junior
high students (18%) would remain the only junior high
facility®® more than 80% black under the School Board
plan.

Both the plaintiffs and plaintiffs-intervenors submitted
alternative plans for desegregation at the junior high level.
The plaintiffs proposed to modify the basie School Board
plan through additional busing to achieve a closer racial
balance at McIntyre and two other junior high schools left
substantially black under the Board pian, Bellingrath and
Baldwin. The plaintiffs-intervenors projected a 65% black
student body at McIntyre, and a less than 60% black en-
rollment at each of 8 other junior high schools within the

*° The district court’s opinion, following the style of the School
Board plan, treats the some 252 (233 black, 19 white) junior high
school students in attendance at the Montgomery County High
facility as senior high school students. The apparent premise to
this treatment is that “[i]t is conceded by all parties that Mont-
gomery County High School . . . cannot be effectively desogre-
gated because of its isolation.” 377 F.Supp. at 1138, n. 37. This
conclusion is not contested here, although the plaintiffs-interve-
nors’ plan did propose to reduce the junior high class at Mont-
gomery County High from 927 to 82% black. My figures follow
the style of the district court.

RN Dera

eae meas. raceme

a 5S Se ROE AEC EE TAS 1 FIT NEI TAY EAE OLEH S BIR Es PER RI SE a HE + el een ¥ aie UR Ra ~ “——

72a
Opinion dated April 11, 1975

City, under a plan of new elongated but continuous strip
zones, With transportation to be provided within each zone
where necessary. In adopting the School Board plan for
the junior high schools, the district court dismissed these
alternative proposals as too inflexibly wedded to abstract
racial balancing, and suggested that they were unfeasible.
Emphasizing the isolation of MeIntyre as the only vir-
tually all-black junior high remaining under the School
Board plan, the district court held that “under the cireum-
stances that exist in the Montgomery school system” no
further requirement of desegregation could be imposed
upon the County. 377 F.Supp. at 1139.*

Unfortunately, the data revealing the actual desegrega-
tion at the junior high schools accomplished under the
School Board plan, as of September 15, 1974, show that
“the circumstances” have changed.** False to predictions,

*6 The district court found that the plaintiffs’ proposed plan
would require reassignment of 36% of the junior high student
body, and additional transportation of about 17% ; the plaintiffs-
intervenors plan was forecast to require reassignment of 50-60%
and additional busing of some 20%. (The plaintiffs-intervenors
assert that the opinion below is clearly erroneous in its computa-
tion of busing required under their junior high plan; I would
not pass on the issue at this time.) The district court did not
enter any findings regarding the proportion of students reassigned,
projected to be reassigned, or newly transported under the School
Board plan. Nor does the opinion below reveal any specific con-
clusions regarding the significance of the burdens in reassigning
or transporting additional students, except that the MeIntyre
facility “is impossible to effectively desegregate in a stable and
workable manner.” 377 F.Supp. at 1132.

37 See Appendix B. The actual enrollment figures as of Sep-
tember 15, 1974, are taken from the School Board’s October 1,
1974, report to the District Court, per that court’s order. These
figures are not challenged by any other parties. See Davis v.
Board of School Comm’rs of Mobile County, 1971, 402 U.S. 33, 37,
91 S.Ct. 1289, 1291, 28 L.Ed.2d 577, 580. This data is utilized in
Appendices A, B, and C.

ee eeeeeeeeeEEerO

73a
Opinion dated April 11, 1975

the student body at McIntyre Junior High is 98% black,
Baldwin is 85% black, and Bellingrath is, as I compute it,**
81% black. Thus, more than a quarter of the black junior
high school students in the City*’ are locked in schools 85%
or more black, and nearly 40% in schools 80% or more
black.

I would not pass now on the academic question of the
acceptability of the School Board plan as proposed and im-
plemented by the district court. It is now clear that the
School Board plan has been unsuccessful, as implemented,
in accomplishing desegregation at the junior high level,"
and there is no indication on the record that the present
circumstances are beyond remedy. As the previous dis-
cussion of the elementary school plan should make clear,
the School Board plan for the junior high schools cannot

*8 The actual enrollment figures for Bellingrath, as of Septem-
ber 15, 1974, are estimations. According to the district court's
opinion, projected attendance at the Bellingrath facility was to
be 215 (115 black, 109 white) at the elementary level and 1049
(659 black, 390 white) at the junior high level. Actual enrollment
as of September 15, 1974, listed by the School Board is a com-
bined total of 911 (681 black, 230 white) students; no breakdown
is given as to grade levels.

The total actual attendance at Bellingrath is considerably lower
than the total projected attendance. The net over-projection is
93 black students (12% of projection), and 260 white students
(53% of projection). In estimating actual attendance. T have.
conservatively, attributed the total decrease to the junior high
level, where the enrollment was projected to be 62°¢ black. and
for which the zone was to be significantly shifted for 1974-75.
1 would, of course, direct that on remand the district court pro-
ceed to determine the actual enrollment figures with certainty.

3° These percentages do not include the junior high students at
the Montgomery County Senior High facility. See note 35 infra.

*° Cf., ¢.g., Boyd v. Pointe Coupee Parish School, 5 Cir. 1974,
505 F.2d 632; Hereford v. Huntsville Bd. of Educ., 5 Cir. 1974.
304 F.2d 857; Adams v.- Rankin County Bd. of Edue., 5 Cir.
1973, 485 F.2d 324, 325-26.

PERN eR AteIoN eters &: TES ER

jens

Da > ere

Re tah EGE? TAI AOD ALOE LON AR et haat FALE AOE EE Ba apt PC eet EE

74a
Opinion dated April 11, 1975

stand as it appears, unless improvement is unworkable.
The record does not suggest what remedial plan might be
employed at this stage. I would leave that difficulty for
resolution by the district court, following whatever fur-
ther proceedings it might find to be necessary. I would
emphasize again, however, that the district court’s order
should be accompanied with supporting findings and con-
clusions of sufficient precision and detail to fully apprise
a reviewing court of its reasons and understanding.

IV
Conclusion

We deal here with a school system whose roots were
segregated by law. There is no indication that those roots
have withered away, and that the racial separation in the
present system is anything but the fruit of a tainted crop.
The School Board still plans to cultivate its gardens sep-
arately; and it does not promise ever to integrate in any
future season. Rather, its plan guarantees perennial one-
race educational experiences for over a third of the black
students within its elementary and junior high schools.
Desegregation is not impossible in Montgomery. It might
be uncomfortable, expensive, disturbing, or even disconcert-
ing. But these words are not amendments to the Four-
teenth Amendment’s commands. Much progress has been
made in Montgomery school desegregation, but medals
earned for past performance cannot justify contemporary
failure. I am confident that our respected, scholarly, and
courageous trial judge did not hesitate to apply the law
correctly as he saw it to the facts before him in Mont-
gomery. I firmly believe, however, that that view of the

75a
Opinion dated April 11, 1975

law is erroneous and in conflict with previous decisions of
the Court and the Supreme Court of the United States.

I would reverse the order of the district court insofar
as it adopts and implements the School Board plans for
elementary and junior high schools in Montgomery County,
and remand the cause for such further proceedings as
would be necessary to bring Montgomery County to a uni-
tary system. In order to permit the district court to re-
consider its award of costs against the plaintiffs and plain-
tiffs-intervenors in light of further proceedings, I would
vacate the judgment awarding costs in favor of the School
Board.

PELE RYO IE Yaar 4

Adoptio. of the School Board plan produces the following profi'es of the

76a

Opinion dated April 11, 1975

APPENDIX A

School

Bear

Reltinger Hill
Pe'lingrath

B. T. Weshington
Capitol Hgts
Carver

Catoma
Chisolm

Crump

Naisy Lawrence
Oivrida
Nanvelly

Davis

Dunbar

Fews

Flowers

Floyd

Forest Ave.
Harrison

Hayne ville Rd.
Head

Highland Ave.
Highland Gardens
Johnson
Loveless
MacMillan
Morningview
Paterson
Peterson
Pintlala
Soutiiawn
Eastern By-Pass
Vaughan Rd.

Total

Normal

Capacity

630
300
1,230”
420
570
760
240
810
990
720
639
739
636
660
720
730
1,350 ®
430
750
1,200
699
390
1,020
660
1,140
399
600
810
600
270
600

750

elementary school student bodies:

Projected Enroliment

flack

186
186
115
255
119
421
63
326
263
445
153
236
615
340
640
169
148
172
184
669
148
115
335
175
902
205
134
566
175
204
223
149
_183

9,224

write

505
43
100
4
192
2
154
555
703
7
$23
404
91
51

9,160

So Black

27%
81%
53%
98%
38%
99%
29%
37%
27%
98%
26%
32%
87%
87%
99%
23%
32%
40%
30%
95%
25%
30%
33%
24%
99%.
65%
22%
94%
37%
93%
31%
20%

32%

50%

Actual Enrollment 9/15/74 *

Black

185
211
115°
232
112
411
54
376
246
403
143
254
637
328
641
170
1354
169
255
795
111
118
310
168
876
195
110
550
149
196
260
149°
199

———

9,164

White % Black
407 31%
35 86%
100 ¢ 53%
5 98%
178 39%
5 99%
153 26%
505 43%
745 25%
8 98%
$21 25%
512 33%
45 - 93%
34 1%
3 100%
533 24%
2754 33%
233 36%
357 42%
21 97%.
339 25%
237 33%
513 38%
527 24%
6 99%.
75 72%
427 20%
36 94%
322 32%
4 98%
427 38%
589 * 20%
59 27%
8,676 51%

ee

| 77a
Opinion dated April 11, 1975
APPENDIX B

Adoption of f the Schoo! Board plan produces the following profiles of the
junior high school student bodics:

Projected Enrollment Actual Enroliment 9/15/74 *
Normal
School Capacity Black White % Black Black White % Black
Baldwin 780 290 107 73% 275 45 85%
Bellingrath 1,230" 659 390 62% 566 * 130° B1%
Capt. sts. 1,200 442 730 38% 345 742 32%
Carver 660 350 545 39% 354 538 40%
Cloverdale 1,170 437 875 33% 476 £9) 35%
Floyd 1,350" 286 541 35% 2644 4674 36%
G. Washington 1,290 357 782 31% 409 904 31%
Goodwyn 1,500 540 1,031 34% 564 917 3k Ye
Houston Hill 570 210 383 35% 248 307 45%
Melntyre 1,500 792 14 98%. 881 15 98%
Montgoniery Cty Hich® = -— — a — es = Sagi
Total 4,365 5,398 45% 4,382 4,959 47%
APPENDIX. C
Adoption of the Schoo! Board plan produces the fot'uwing profiles of the
senior higit school student bodies:
Projected Tnroliment Actua! Enroltiment 9/15/74 *
Normat
Schoo! Capacity Black White. % Biack Bleck = White %_ Black
Carver Sr. 1,100 439 600 39% 616 673 48%
Jeit. Gavis Sr. 2,109 €66 1,426 Ste €5? 1,44) 37%
lanie, Sr. 2,250 817 1,068 43% 677 801 45%60
Lee Sr. 2,300 929 1,569 37% £15 1,650 337%
Mentcormery Cty High’ 570 ck ie &6% 399 ae _ 87%
Tetal 3,452 4,777 42% 3,349 4,620 42%

Footnotes to Appendices
* See note 37.
* These figures represent normal capacity for combined elementary and junior high grades

€ Estimated figures. For their computation sce note 38.

Accerding to the disirict court’s opisior projected attendan-e ai the Floyd
the elementary Wvcl, end 629 (288 black, 541 white)
at the junior high level. Actual enroliment listed by the School Poard is a combined totai cf 1141
(399 black, 742 white) students; no break-down 15 given as to grade levels. For sake of simplicity,
iN estimating actual crrofiment I have simply reduced the projected enrot'ments of siudents at both
levels proporticnaily, according to projected and actual enroliments, by race. 1 would, «f course, crect
thal en remcnd the district court should proceed te determine the actua! enroliment figures with cer-

* Estimated figures
facility was to be 467 (148 black, 319 wivte? at

tainty.
* Projected figures. No actual figures given.
* See note 37.

RE AR PRCT RF EE RCE EI

AE AOTR RES

»

me peut

78a

Opinion dated June 27, 1975

ArRLAM Carr, JR., a minor by Arlam Carr
and Johnnie Carr, etc., et al.,

Plaintif's-Appellants,

NationaL Epvucation Association, Inc.,

Intervenor,

PENELOPE ANNE JENKINS, ET AL.,
Intervenors-A ppellants,
v.
Montoomery County Boarp or EnvucaTIon, ET AL., ETC.,

Defendants-A ppellees,

Unitrep States or AMERICA,

Amicus Curiae.

No. 74-2633.

United States Court of Appeals,
Fifth Circuit.

June 27, 1975.

Own Petition ror REHEARING AND PETITION ror REHEARING
EN BANC

Before Gewrn, Gotpperc and Dyer, Circuit Judges.

Per CurRIAM:

The Petition for Rehearing is denied and the Court hav-
ing been polled at the request of one of the members of the

sg

79a
Opinion dated June 27, 1975

Court and a majority of the Circuit Judges who are in
regular active service and not having voted in favor of it,
(Rule 35 Federal Rules of Appellate Procedure; Local
Fifth Cireuit Rule 12) the Petition for Rehearing En Banc
is also denied.

Before Brown, Chief Judge, and Wispom, Grwiy, Bett,
THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD,
Dyer, Stmpson, Morcan, CLark, Roney and Gee, Circuit
Judges.

GotpBerG, Circuit Judge, with whom Browy, Chief
Judge and Wispom and “¥iornperry, Circuit Judges, join
(dissenting) : ‘

I respectfully dissent from the order denying the petition
for rehearing and petition for rehearing en bance, for the
reason stated in my dissenting opinion, 511 F.2d 1374.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1604%3A3. Public record. Not legal advice.