Rebecca E. Henry v. The Clarksdale Municipal Separate School District
409 F.2d 682
5th Cir.
1969
Check Treatment

*2 Before THORNBERRY, WISDOM and Judges, COX,* Circuit District Judge. WISDOM, Judge: Circuit demonstrates, As this case adoption geographic school board’s of a zoning system instead of a “freedom of guarantee choice” is not a desegregation. “Geographic effective zoning, any other attendance like adopted by in this board Cir cuit, acceptable only tends to disestablish rather than reinforce the segregated schools.” Municipal United States Greenwood Separate District, Cir. 406 F.2d Davis v. Board of County, School Commissioners Mobile recognized we many geographic zoning that in instances improvement offers “administrative Cox, Judge Mississippi, *William States District Harold the Southern District of sitting by designation. desegregation” greater required States, ish School Board v. United a new effort to draw 389 19 L.Ed.2d make basis so that 103. Much what said in our zone lines “on a nonracial promote applies de- that ease attendance-area seg- desegregation perpetuate plan. than held that school rather We *3 duty” regation”. officials have to “affirmative reorganize their schools into “an inte- court found Here district unitary system grated, in which school good in that the school board acted faith. Negro no there are and no white schools good not But non-compliance faith does excuse a board’s just schools”. 380 F.2d at 389. schools— its affirmative with recognized that freedom-of-choice We system. liquidate Good the dual shortcomings” plans have “serious only a in faith is relevant suggested attempt a detailed order gredient desegregation acceptable of an shortcomings. to overcome some of the plan. out, pointed “The school de- We segregation order, that meets constitution- under court the Clarks- In (Orig- Municipal Separate al standards is one that District works.” dale School emphasis.) Mississippi at Re- inal 372 F.2d 847. redrew its attendance zoning cently, adopted geographic under- Court has zones system desegregating a “affirmative scored school board’s as the basis duty” today year, “to a In of that come forward with schools. fall realistically single promises work, enrolled a child in Clarksdale was realistically promises to work now”. in school members (Original County Again, spring emphasis.) semes- Green v. other race. County, single year, Vir- Board of Kent ter of 1964-65 a School New ginia, 1968, in a child enrolled school attended S.Ct. was In this 20 L.Ed.2d 716. Green the children other race. When April in freedom of choice case tried found that “Negro” five schools used Kent ineffec- attended in New alternatives, suggested children includ- in Clarksdale and 2100 white tive along zoning, might bring ing about a attended white schools two Negro girls “speedier had transferred conversion who effective more high course, unitary, system] to non- school to obtain a the dual [of Negro high system”.1 Latin, not racial school available school. allocating geographic system A pragmatic solu students this consider Jefferson el “haphazard”2 em tion that avoids the plans operation choice ed freedom of administering ent a freedom of County, Biloxi, Jackson, and Leake in Mississippi, pu on the individual choice pil’s based parish in other capricious perhaps considered throughout county school districts this to attend. A a school selection circuit. United v. Jefferson recently observed: Louisiana County Board of pick a method of banc, If this Court must assigning adopted en F.2d within students 385, cert. denied Caddo Par- sub nom. objection allowing carefully “Although stated, such a device no 1. The court prove operation.” Green v. experience general itself under ‘freedom County, 391 of New Kent School Board been as to in to date has choice’ In areas U.S. at 1695. of de a tool dicate its ineffectiveness may is substan- where residential segregation, instances there well be tial, free freedom of choice or transfer de as an effective in which it can serve desegregation. aid promise of aid it offers real vice. Where desegregation program to effectuate Municipal Singleton Jackson 2. v. See system state-imposed Separate District, dual of a conversion might unitary, F.2d there to a nonracial barring district, put schools.5 tried to an end very circumstances, by requiring unusual could such differences inte- imagine gration inappropri- faculty stock, no “lock, method more and barrel”: ate, unreasonable, (part VIII), facilities, services, more more needless- and staff ly every respect, programs wasteful than the extracurricular activities system. (part equalization (part “free-choice” so-called Moses V), and school Washington Board, VI).6 Similarly, requires Parish School “dis- mantling” F.Supp. state-imposed sys- E.D.La. tem “root and branch”. Historically, compulsory atten appeal issue this centers on the invariably pre zone almost dance geographic zones established in the vailed districts clearly The record es- board. circuit3 —until Brown4 an end ordered pupils living tablishes that all in each *4 segregation. But an attendance required zone are to attend the school plan may zone also fail to work. When recognized in that in zone. As Jef- in does not succeed ferson, however, such factors resi- converting unitary system dual into patterns, mushrooming the of dential system, ways the school find board must private schools, minority-to-ma- and a for the to succeed. jority policy may bring transfer about plaintiffs The contend that the atten- exclusively a school attended or almost zone dance Clarksdale extends by exclusively race, al- students of one promises They allege it cannot fulfill. though originally the zone etched out also zones were drawn supply students purpose and have had the of main- effect racially have been mixed. taining identity the racial of each for- merly is formerly Negro Clarksdale bisected from white and the north- school. by east to the southwest a main line plaintiffs raised additional issues of Illinois Central Railroad. Com- district court. One concerned mercial Industrial establishments desegregation speed place of take adjacent to both northern lie issue, course, Clarksdale. This is of tracks, southern railroad ac- side The time is now. As settled: centuating the division of the residen- it, “delays puts longer are no tolerable * ** tial areas of Elevated town. tracks this late at [and] an embankment add this division. provide meaningful fails to assur- date prompt of ance effective disestab- is also bisected Clarksdale Sun- lishment of also intol- running is north-south flower River through city. 391 U.S. S.Ct. at erable’. 88 half The southern 1694. Other issues in city the district court line of is divided another qualitative running north-south, involved differences be- railroad tracks “Negro” tween “white” grade on the same which is built Washington (elementary, junior high, high See Moses Parish School level Board, E.D.La.1967, F.Supp. schools). 276 v. Bessemer Meador, also Education, See Constitution Board of 396 F. Assignment Pupils Schools, Washington Parish, to Public 44; 2d Moses v. (1959). F.Supp. 17; Va.L.Rev. D.La.1967, 517 E. n. 9. The court found § HEW Guidelines (Brown 4. Brown v. Board of Education appellants’ complaint in the merit I), 74 S.Ct. segregated that, teachers were but held 873; II, L.Ed. Brown having been because of teacher contracts 99 L.Ed. 1083. year, faculty signed for the 1965-66 de 5. The order of the district correct- temporarily should be de number ed a of deficiencies in the admin- ferred. by providing istration of schools equalization teacher-salary curricula, especially 6. See United States v. Besse scales, teacher-pupil ratios, per mer Board of pupil expenditures for of each F. 2d 44. surrounding are four child will those tracks. The result lands. There cross crossing beginning-: grade underpasses from the one was obvious desegre- produce transversing zoning railroad token embanked could gation. Only underpasses of these one tracks. River, west Sunflower plaintiffs attempted prove central busi- is next to the river. The purpose that the the board’s draw behind northern half of in the district ness present perpet zone lines is Clarksdale, east the Sunflower dual, segregated uate a bridges span the river Two River. They allege that Clarksdale.7 certain southern sections the northern and both Negro pockets of residences north of the community. purposefully removed tracks were Traditionally, most residents through purchase, deannexation, or ur city of the Illinois lived south have by public so ban renewal authorities majority great tracks, Central while Negroes at that no would reside lived north residents have the white half zones of the northern tendance board’s the school the tracks. Under proposed agree no school attendance-zone with the Clarksdale.8 We July zoning ordinance, only pupils living 7. A enacted in north serve Clarksdale, de-annexed of these students tracks. New *5 property Negroes. where on East Second Street the The estimated that are Board City Negroes lived; only Negro the and Coun- the ty purchased December 1964 one ele- in mentary by eligible homes demolished the school child rea- was County elementary Jail; and the near the located of residence to attend an son City purchased serving only pupils. the homes and demolished now white school adjoining Park, annexing approved high in Tuxedo after the The district court containing elementary white residences. territories zones the zones school any knowledge of the The Board denies Illinois Central located north of city action, City tracks, adding requirements officials that all equalized not in- maintain the ordinance was that that school facilities be stu- desegregation. seeking to affect school tended courses not offered their dents assigned right given schools Higgins High School, containing 8. The where courses are transfer to schools such Negro pupils grades 7-12, is all temporarily approved The order offered. tracks, south these while the located of of Il- school zones located south containing high all the white schools tracks, required recon- linois but Central public high pupils are located school of board and these zones sideration elementary north of the tracks. Por “predicated zones a resubmission of Hall, Washington schools, Oliver, of utilization available school efficient Negro containing Riverton, all ele- nondiscriminatory racially on a facilities mentary pupils, of the are located south in accordance education basis sound tracks. of the Illinois Central’s Three provided princples”. The order further elementary serving white four elementary notwithstanding that, sub- pupils north are of the tracks. located north the Illinois located of districts elementary school, fourth Eliza The approved, tracks had been Central Clark, residential is located a white was boundaries Board free to revise these south Based on of tracks. section necessary to accommodate provided Board statistics in March elementary changes in attendance Negro high pupils, but two all of the Illinois Central zones located south high school, eligible of total to attend ap- costs to order awarded tracks. of attend live south the Illinois tracks jurisdiction pellants and retained way, Higgins, and if the has its might for additional orders which case Higgins. effect will continue appropriate. In become Negro zoning one white and four elemen- re- Board submitted its 1965 the October tary south of the Illinois schools located plan elementary attendance vised Negroes will Central tracks is that of the Illinois zones located south Cen- serving traditionally assigned to schools change The sole recommend- tral tracks. majority great Negro pupils dividing the zone line ed was that pupils assigned to white will be Eliza school from the white Clark The three Eliza School. white remaining Clark that, Myrtle Hall school be eradicated elementary schools lo- September all first and Illinois tracks effective cated north Central adopt ir- evidence on this issue That the Board has is chosen sup- achieving relevant, disruption the reasons method but minimal judge’s porting pattern conclusion. old is evident its long delay making any in- It is irrelevant because ultimate effort what- * * desegregate quiry has not whether the school soever board *. action, found rational basis its some The Court concluded that “free trans- fulfilling its the board fer”, choice”, whether like “freedom can have * * duty spelled steps, to take place desegregated plan no in a affirmative Green, out in and fortified plan “if it cannot be shown that trans- find realistic measures delay will further rather than conver- formerly jure segregat- form de unitary, nonracial, sion to nondiscrim- ** “unitary, ed non- into a inatory system public racial education”. only elementary In Clarksdale two likely Monroe Board of Commissioners be attended Jackson, children of both races. All other schools “Negro”, correspond- a will 20 L.Ed.2d be “white” or Green, companion present case to the school to their status before the Tennessee, city Jackson, adopted. board for the It is evident then involving the board established attendance here not fulfilled has duty, spelled according Green, zones to certain estab- out “to come drawn containing promises lished criteria free- forward with a real- istically work, provision. promises transfer The schools Jack- realis- identity, tically son their racial work now.” retained integration. token The basic criteria the school board Court, focusing on as- the free-transfer (1) used this case were rational: pect observed: buildings; maximum utilization of school Plainly, (2) density proximi- re- population; (3) does not meet spondent’s ty schools; (4) take “affirmative natural *6 steps might boundaries; (5) to whatever be and of stu- welfare unitary a requires convert to in which This dents. fifth criterion con- racial would elimi- discrimination be sideration of attractive nuisances and nated root v. presence public and branch.” health hazards. The of County Board, supra, transportation 391 U.S. School for school children would Only p. 437-438, weight given at 1694. be relevant the to be by dismantling state-imposed proximity By token, criterion. the same boundaries, that can end be achieved. And natural such tax as the dis- manifestly, Washington that end has not been used in Par- tricts Moses here, ap- ish, achieved nor does the are not to be confused “his- proved boundaries, by the lower courts i. torical” e. those have junior meaning- high promise historically Negro separated schools white and * * * doing progress ful safety Finally, towards so. residential areas.9 haz- grade pupils second in the combined children from Eliza Clark with assigned approximate zone pupils be to the Eliza Clark grades Myrtle parents school and all three Hall be would that white through Myrtle assigned be six would refuse to send their children to the Appellants promptly Hall school. filed school and would move their residences objections to the revised contend- areas north of the Illinois Central justifica- greater where, shows, there was no tracks evidence retaining Negroes tion for housing. the zone of lines could obtain elementary that, other while original eradication of the line between the 9. The school board’s would Myrtle ap- irregularly Hall and Eliza Clark zones have contained drawn peared advantages boundary surrounding to have from an edu- all-white desegregational standpoint, cational residential area south of railroad practical assigning zig- boundary effect of the 115 tracks. This have would compulsion desegregate may of applicable be to students ards (1st differing degrees, case, ages Brown Brown v. Board various community Topeka, history vis-a- Education of action 873) taken into S.Ct. be 98 L.Ed. we do those should vis hazards drawing rele- think that a zone No one doubts lines consideration.10 relationship people manner as But a to disturb the as little of such criteria. vance rezoning possible proper insufficient factor rational otherwise v. Board of meet standards— schools.” Northcross itself to constitutional City Memphis, past discrim- Education of freeze-in its effect tois example, a rational rela- F.2d 661. In Davis v. Board For ination. tionship literacy Mobile, or citi- School Ala- Commissioners exists between administered) bama, (fairly zenship 393 F.2d 690 we con- tests enjoin primary right sidered our “to see But concern vote. they into zones in the areas when freeze attendance urban use such tests * * * registration system the effects devised so as create [are] a voters’ unitary racially sys- nondiscriminatory past discrimination. tem.” We held: criteri But a sixth basic there is accept policy promotion of We therefore use: the board’s on the Board did not desegregation. Davis, regard Stell, Jefferson, decision in this on but insist Bessemer, survey County, Carr, Braxton, and new zone Polk effort draw Greenwood, on Adams, and other lines a nonracial so that the basis Graves Court,11 promote and now attendance-area de- cases decided segregation perpetuate of New rather than Green v. School segregation. County, require authorities It intended that at- Kent according designed tend that will tendance areas be action to take affirmative sys vestiges the dual strictly objective to eradicate criteria with given example, choice tem. For caveat should conscious effort alternatives, a draw board should boundary made to move lines schools, lines, consoli new zone locate change patterns tend feeder change patterns, schools, feeder date preserve segregation. F.2d at 694. reduce that will resort to other measures Health, Dept, stated As U. S. tending past patterns effect Education, Welfare, in its Policies deseg (or token maintain Elementary Secondary Com- regation). is under the Board “Where *7 F.Supp. Mississippi, S.D.Miss.1964, unpaved 229 ¡sagged roads; in followed 808, 925, 128, rev’d 380 U.S. sum, the white cut between would have it neighboring Negro 13 L.Ed.2d 717. areas. residential zone, disapproved this 11. Duval Board of Public Instruction reasons. obvious County, Braxton, v. Florida 5 Cir. 900; example, F.2d Board Public 402 Stell v. a bound- the use as 10. For while ary in Education Savannah tracks railroad the elevated Chatham, reasonable, 387 appear 5 Cir. would Clarksdale appearance 486; against F.2d United v. Board of States measured must be Fla., County, crossing history Public of Polk Instruction past children of school Montgomery 66; go 5 395 F.2d for their Cir. to a school tracks those Carr, disregarded Having v. 5 Cir. Education race. 1; United v. Bessemer impediments 400 F.2d States to main- order tracks as Education, schools, Board of 5 Cir. purity of its tain the racial 44; Mathews, Adams v. F.2d turn around board cannot 181; impenetrable 403 F.2d v. Walton Graves when tracks consider County Board of perpetuate ra- doing former will so Jefferson, Davis purity. v. State States See United cial body F.Supp. E.D.La.1963, this Louisiana, Greenwood are cited in the opinion. S.Ct. 380 U.S. aff’d 709; State L.Ed.2d pliance Rights long elapsed with Title VI of the Civil schools. A time has' since (March 1968): trial, partly Act of 1964 because Court de- this layed rendering order to decision systems responsible for are as- enlightenment obtain further from the suring is adminis- the extent it Supreme subject Court on the of attend- tratively feasible, the zone boundaries against ance zones as freedom of vestiges perpetuate do not of a plans. delay, choice view of the among dual school and that structure justice believe that the interests of re- arrange- attendance zone various quire that the case be remanded for a possible, ments which establish- hearing to the effectiveness determine promotes es the one elimi- which best today’s of the Clarksdale factual nation of its dual school structure. setting light and in the of Green and Bearing in mind historical other Supreme decisions background state-compelled education and of this Court. The Board should segregation, al consideration race bear mind that it bears the burden of provide adequate rem proving existing plan desegre- that its edy that will erase or minimize the ef gation adequate now “to convert [the system. fects of the “The dual school system] unitary system to a merely power court has not but the racial discrimination would be render decree which so possible far as eliminate discrimina eliminated root and If branch”. tory past effects of as well as bar promise “realistically does not like discrimination in the future.” now”, work the Board bears bur- Louisiana, 1965, United States v. State of taking den of corrective An action. 145, 154, 817, 822, desegre- effective produce should zoning L.Ed.2d A school board’s gated faculties, staff, facilities, trans- policy may appear neutral but portation, (such and school activites as desegregation fact tend to retard be athletics) along integrated student custom-segre cause it binds gated neighborhoods. all-Negro bodies. If there are still situation, In this schools, a small fraction of Ne- the board’s failure to take corrective groes schools, enrolled or no giving action amounts State’s of integration substantial segre of faculties and ficial sanction continued school gation, contrary then, to the mandate of this activities a matter of law, existing Court.12 Black to meet con- fails nationalists and white racists notwith stitutional standards as established in integration standing, school is relevant: companion Green and its cases. The objective It is an well educational as a redrawing board should consider its at- imperative. constitutional boundaries, incorporating tendance-zone majority-to-minority provi- transfer

At the time case was segregated closing plan,13 all-Negro tried sion in Clarksdale still had *8 segregation] greater impact 1966, 12. [of “The 369 F.2d 55 and Downs v. law; Education, 1964, when sanction for it has the of the Board of 336 separating policy ground they is usu F.2d races 988 on the dealt ally interpreted “innocently denoting seg- inferi with arrived at de facto ority group.” I, regation negro purpose’ Brown 347 ‘no with intention or 494, segregate Negro pupils at Strau U.S. 74 S.Ct. 691. See from White”. 1880, Virginia, dissenting opinion 100 der v. of West The State cites here with 303, approval Bell, L.Ed. 664. also United 25 See Deal and Downs. States v. of Cook District School County, Illinois, 1968, Cir. “If school officials district 1125, in which the dis Seventh Circuit should find that segregated their still has district Gary, tinguished only Bell faculties and or by 1963, 209, integration, F.2d followed token Cir. their affirmative Education, requires Deal v. Cincinnati Board of take corrective action them to schools, pairing consolidating transcripts tire record and and with exhibits taking designated schools, by rotating principals, appellants, was and it is and presumed they complain ap- other the defects of and measures to overcome peal opinions present system. pre- attend- from the As and orders viously zones, ance stated. patterns de- or feeder zone boundaries long year has The 1965-1966 school signed pro- perpetuate or used passed, been since and school laws have discontinued, segregation shall be mote updated strengthened and on oc- several redrawn, shall be and zone lines such people casions interim. deseg- feasible, to maximize wherever regation acquiesced Clarksdale in the man- have segregation. No or eliminate Brown date of the patterns zone or feeder boundaries good displayed and faith decision have essentially a which maintain what is respect and com- effort record to this segregated school structure shall ply requirements. trial with such Board of Public used. Braxton v. thoroughly judge very carefully very and County, M.D.Fla. Instruction of Duval very skillfully assayed of the facts and F.Supp. case in such circumstances in this Accordingly, this case remand old, plan, years four now judg- entry knowledge judicial full obligation law his proceedings ment or consistent further A com- in the connection. opinion. by pletely voluntary advisory this opinion would be

Court under circumstances improper. The is unwarranted COX, District WILLIAM HAROLD law, judge trial knew but Judge (dissenting). knew circumstances and drew facts and argued before school case was This unquestionably support inferences which May presented to this Court judgment in this his sound decision and present- other eases with the nearly very equal case. Clarksdale has a Court what ed to and decided population, has and also and white de- generally known as large very population and even Chinese voluntarily This case been cision.1 has large population in the area. Indian intervening through time held up in These school zones which were set dispose any effort to the Court without plans natural bar- these school followed August prior time. On of 1965, to this on an elevated riers such as a railroad Clayton, F. Honorable Claude diagonally (north- right-of-way running opinion en- judge,2 trial issued bisecting through southwest) east permanent consequent for a tered a order dividing city; another railroad segrega- injunction aspects, of to end all part city, southern and Sunflower Clarksdale, public tion dividing city An on the west. River Mississippi. December On by appellants to' con- made effort was issued, an order another was lines of these vince the Court some approval of the final entered for gerrymandered, were the facts clear- year 1965-1966. city ly in this record that streets show given appeal Notice of to this Court dividing the school lines for were used as or- plaintiffs “from this Court’s many zones, cases 14,1965.” en- December der entered States v. Jefferson try of choice freedom an alternative al., (5 CA) 372 F.2d et geographic-attendance plan, as a two, denied 389 U.S. F.2d cert. a combination L.Ed.2d 103. acceptable *9 Plan, other or some Princeton by perhaps substitute, an educa- aided Clayton in- 2. F. Honorable Claude I, park.” F.2d at 372 to the on November tional ducted Ap- of the United Court bench 895-896. peals for the Fifth Circuit. street; judge people did lived on both of the in this sides case which is not abun- dantly they supported propriety by that when themselves and as to its found particular facts and zone that in a circumstances this record.4 obliged simply It is to attend schools usurp children were this Court to regardless predominance making function in that zone of the trial court in highly experienced findings its and well of race. The own and conclusions of the judge carefully examined facts and informed trial circumstances in- this case dependently plans approved findings and them for the of the these and conclu- year jurist. sions of that that indicated and observed able It trial must nothing plaintiffs be to of- had better remembered that the United States seg- complete Appeals statute, Court of fer toward eradication of is a creature of regation only statutory appel- and is center in- vested the attendance with jurisdiction court, appellate late as volved. an original jurisdiction and not as a court of opinions the trial and orders of as a trial court. 28 1292. U.S.C.A. § judge carefully comply were drafted injunction requirements case, plaintiff In an with of the of Civil is en- finding may 52(a) justly titled to Rule and con- such relief as to of facts as be due case, injunctions him at time of clusions of the trial of the law where by declaratory by expression and not There cited involved. is not a case majority gratuitous counsel, basis, this Court on a or to found in the without be regard case, to the facts and ex- of the in this or circumstances that isting time, may independent at the has been found research justify knowledge- judge or not support any or a trial as inference conclusion law, certainly zones, able of fa- to the and more effect that these school as entirely facts, plans, miliar with the contained to reach these school with Surely, perfectly different conclusion. these and natural boundaries barriers, case ex- accepted Monroe case be should not have been pected analysis approved in- they careful and time to receive as were at the telligent proper plain- consideration Court. accusations application by anything appellees the trial court when called tiffs that these had criteria; upon apply acquisition to consider whatever do with nothing buildings surely county dilapidated found there is some safely public park,3 of those can be for use of either cases which the land as a ap- plans appellees anything said to condemn which were that these had what- chang- proved municipality trial court for the in 1965 ever to do year ing having any boundary in this case. effect 1965-1966 school simply upon record plans completely facts as disclosed in this without these support any in- judge properly held. do not such conclusion merit as the trial contrary simply nothing here.7 There the trial ference to court, park along 7. all of facts sides of The trial 3. This both Sunflower being clearly it, project before will cost circumstances a recreation River as impregnable accord- criticism under and one-third million dollars one clearly rule, ing fact found as a estimate. erroneous to recent evidentiary hearing full on a provides: 52(a) “Find- Civil Rule Yet were Clarksdale unless of facts shall not set aside proper, and afforded an education regard clearly shall erroneous and due given opportunity each child at an attendance center the trial he judge credibility part unitary system completely of a with- witnesses.” regard compliance out to race and in with the Brown cases. The fur- of New 5. Green v. School Board County, Virginia, ther Kent found that the natural barriers 1689, 20 L.Ed.2d 716. S.Ct. these school zones constituted the lines boundaries; their v. Board Commissioners Monroe Jackson, Tennessee, gerrymandered, boundaries were 1700, 20 L.Ed.2d 733. the school authorities had done noth- *10 1223, 216, that is in this record 12 L.Ed.2d it is said: There no evidence S.Ct. any anybody anything point “Plaintiffs are school dis- did in this unable rights any court of decision which has laid down the to effect the trict vested resulting principle justifies that their or to which claim colored child affect Gary segregation. nothing duty Certainly there is an on the de affirmative facto realign System any law, recast or has done or force School been under any public authority purpose power areas for the of mix of districts or or even ing blending Negroes in a or and whites contribute thereto. This Court is called upon pass judgment plan school.” In on these Gilliam School Virginia, years Hopewell, old. of of Clarksdale schools four Board now (4CA) require held: and doubtless 325 the Court These F.2d necessary updating. require “The receive some The Constitution does not surely neighborhood or in suit does not aid encour- abandonment of age preserve any aspect transportation or or of from the foster of any segregation solely purpose of of the races under sort area to another compulsion. application mixing of of An That honest the races in the schools.” principle freedom of choice as a sound American Deal was followed in v. Cincin certainly satisfy principle (6CA) should all vest- nati Board 369 F.2d rights persons. ed of all cert. S.Ct. denied 389 U.S. 114; 19 L.Ed.2d and in Downs v. Board surely decision, is Under Green Education, (10CA) cert. non-delegable 898, 13 L. denied 380 U.S. nobody a sound else to devise board reached The same result Ed.2d 800. compliance with workable City of Gilliam v. existing No court has decisional law. Virginia, supra, Hopewell, where yet mix- there said that must forced opinion of the trial court was vacated ing any particular ratio of the races question in without on such contrary expressed stu- wishes 15 L.Ed.2d parents There both races! dents evidentiary hear because of a lack of an ing much, either constitutional could not be at bar The case in the trial court. judicial American, fiat. in such a hearing evidentiary was accorded full finds, the trial the Court as When judge far more experienced trial acting found, here board pan competent of this member than good plan had real faith and problem judge weigh el to dismantling the state im- prospects for pages of the cold this record. prac- posed earliest at the date, principle meet all would of choice was ticable of freedom then requirements of the announcement last decisions heralded in the Jefferson subject. Supreme this case and companion Court cases were argued presented to this were principle fide facto de bona nothing time. There approved in four at wrong same has been a means principle as has with Circuits and vestige enforced contrary. uprooting every state aught In Bell said never (7CA) Gary, Indiana, segregation. The trouble City of v. School working oeca- instances in most cert. denied F.2d Mon- in tlie Green and to these and circumstances to make these boundaries way. any particular or even do not condemn roe decisions work school zones designed disapprove under such conclusion zones were These school years grew gradually through Monroe rea- facts here. say principles destiny be distorted of the commu- of economic son given percent of children nity nothing or ratio trial in view. The else approved judge must as a mathematical where to race exist zones these thus equation to meet disparities population all circumstances nat- under to race requirements existed, urally grew law. were ac- segregation. cepted The facts as de facto *11 insincere, upon half- less than cumbent the school to estab- sioned an board part proposed plan promises school lish hearted, on the of some effort really meaningful plan progress to see that such authorities and immediate disestablishing imposed al- should be toward No devious devices worked. state engrafted segregation;” upon plan to such a lowed to be “where the court being expression acting good keep honest finds the it board to in be faith parent proposed plan pros- free will choice real to have pects dismantling school to be attend- state-imposed child as to the in practicable If these Clarksdale dual ed.8 school ‘at the earliest date,’ plan may pro- freedom of as afforded child a choice then the said (as center does principles the desired attendance vide effective relief.” These plan), simply newly such a would are not consonant with the any just impervious It principles criticism. seem devised found for the first experi- upon board, majority opinion time in is incumbent as here. people, to enced school devise majority or do not reverse vacate constitu-. “work” within valid opinion court, and order of the trial limits. It should not be tional but remand the to the trial court case closed, any public tó school have respects and in such I But in- concur. just any to accommo- or school new built sofar as the trial court is directed board date a workable judgment enter a consistent with and in authority to power should have conformity majority opinion, I to the permit an- from one zone transfers very respectfully First, dissent: because existing facilities limits of other within majority opinion in this state of rec- to race. as and without discrimination dicta; dicta, ord is mere if not obiter sug- observations, response to in These gested majority opinion second, because as- changes contained requires sumes that the law mix- forced majority opinion, doubtless vul- ing in these Clarksdale in some being as criticism nerable to. dicta, same undesignated satisfy ratio to race to as dicta. obiter desegrega- present requirements as to these matter of de- schools as a tion majority suggestion cisional law. “incorporating a ma- consider the board provision in jority-to-minority transfer majority Obviously, delay plan” distortion deference a is with awaiting any such an announcement of and is of Brown reaches farthest principles from the principle completely a sound untenable majority support their United principles an- law.9 constitutional rewarding. or was not fruitful in- it is are: “[That] nounced Green had to in 1968 said that Significantly, declaration of Con- as a overcome racial imbalance as a condition policy “Departments gressional precedent obtaining of La- Federal funds Health, bor, any State, and Welfare Education otherwise available to 90-557; Act, (P.L. Appropriations district, 1969” or school.” 969; IV-General Provi- 82 Stat. Title part unchanged sions), said: 409. No “Sec. Amendment 9. An Fourteenth Act the funds contained States Constitution students, busing force abolish- used to violated said the Justice of the Chief any any school, every speaking force stu- ment of or to member United States any elementary attending or secon- it was com- dent of the Court in 1927 where particular dary plained policy school to attend a based the state had parents organic against his or her which ex- the choice of law and statutes parent overcome racial im- from attendance order to cluded a colored child Rice, part Gong No of the funds balance. Sec. 410. at a white school. Lum in this Act shall be used to L.Ed. 172. contained students, Brown, busing the abolishment decided the case force impression. of stu- one of first school or the attendance in order dents at a prog- meaningful promise immediate imposed disestablishing state toward ress thought Judge Clayton segregation. *12 in 1965 as a fact

found exactly satisfaction to his entire did nothing bet- plaintiffs had then hearing all he said after offer as ter to receiving testimony finding case, evidence capriciously arbitrarily and clearly when erroneous aside brushed is, abundantly supported, as it is so affirm I would record. proof in this remand. Appellant, INC.,

HOWFIELD,

v. al., et of America

UNITED STATES Appellees. AHMANSON, President H.

William Inc., etc., Appellants, Howfield, al., et America STATES

UNITED Appellees. 22609, 22602.

Nos. Appeals Ninth Circuit. 19, 1969.

March