United States v. State of Mississippi (Smith County School District), Sylvarena Baptist Academy

425 agree. apparent 1702, 1708, Ryan, re It is Code, and 495 cannot Sections upheld presented we as three the admission at spectively. identification, argument post-arrest issues, appellant’s trial voice sole handwriting prearraignment exemplar, he confrontations in- that volving that a voluntarily physical exemplars completed for two officers “are stages’ prosecution investigating forgery, ad at ‘critical check presence of consti- of his which the counsel is mitted trial in violation Sixth tutionally required”. right counsel, F.2d at coun 1014. Amendment since 478 to him at the sel was not made available appealed from is The conviction writing sample time the was taken. Affirmed. provide Failure access to counsel here, maintains, Snider runs afoul of

doctrine v. outlined United States

Wade, 1967, 1926, 218, 388 U.S. 87 S.Ct.

18 L.Ed.2d 1149 Califor Gilbert v. nia, 1967, S.Ct.1951, 263, 388 87 18 U.S. 1178,

L.Ed.2d that “an is enti accused stage

tled to counsel at critical prosecution”, and that evidence ob America, UNITED STATES stage” tained at such a “critical without Plaintiff-Appellee, presence and assistance of counsel v. may not be admitted trial. See Sim (Smith et al. STATE OF MISSISSIPPI mons States, 1968, v. United 390 U.S. District), Defendants- 377, 382-383, 967, 970, 88 S.Ct. 19 L. Appellants, 1247, Ed.2d 1252. Sylvarena Baptist Academy, Defendant- Appellant. appellant’s struggle fit No. 72-2521. pre-arraignment his confrontation with in the exclusionary Wade-Gilbert rule is Appeals, United States Court of thwarted Court’s deci Fifth Circuit. Kirby sion in Illinois, v. 1972, 406 U.S. 23, Aug. 1974. 682, 1877, 92 411, S.Ct. 32 L.Ed.2d holding Court’s in United States v. Ryan, 1973, 5 Cir. Kirby 478 F.2d 1008. instructs person’s that “a Sixth and right Fourteenth Amendment to counsel only

attaches at or after the time that adversary judicial proceedings have been against

initiated him”.1 406 U.S. at 688, 1881, 92 S.Ct. 32 L.Ed.2d at 417.

Here, the handwriting exemplar was

taken before Snider was even arrested. Yet since he was suspicion, under

appellant argues, this was nonetheless a stage prosecution”.

“critical We say, exemplar 1. istic”; taking This course, is not of an is not in to safe guard against right terrogation patently accused’s Miranda’s self-incrimi without nation Amendment, California, under right 1967, the Fifth ambit. U.S. Gilbert v. immediately 263, 266-267, 1951, 1953, counsel upon not attach 18 L.Ed. 87 S.Ct. Illinois, arrest. Arizona, 1966, 1178, 1183; Kirby See Miranda v. 2d see 682, 688, 1877, 1881, 16 L.Ed.2d protects But against only 416-417; Miranda accused L.Ed.2d United States compulsory Ryan, self-incrimination F.2d Cir. in-custody interrogation. result Thus, rights Hand no Fifth are at is Amendment writing “identifying physical is an character sue here. tice, C., Washington, plaintiff-ap- D.

pellee. BROWN, Before Judge, Chief WISDOM, GEWIN, BELL, THORN- BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, SIMPSON, CLARK, RONEY Judges. GEE, Circuit Judge: GEWIN, Circuit County, Mississippi Board Smith (hereinafter Supervisors “Super- visors”) public leased an unused facility Sylvarena to the Civic Center (hereinafter Association the “Associa- tion”). Thereafter, the Association sub- facility Sylvarena Bap- leased the to the (hereinafter Academy tist the “Acade- my”), private segregated a school, to house students its and teachers. In re- sponse developments, to these the United Department States Justice filed complaint seeking to have the sublease by executed the Association to the Acad- emy alleged set aside because it that the impeded sublease the effectiveness of mandating the district court’s order County the Smith schools. The district original set aside court Supervisors lease between the basing and the Association the relief granted finding sublease between my Association and the Acade- attempts pro- “chilled” meaningful integration vide for . County appeal, Smith schools. On panel recognizing court, while this impermissible state involvement leasing arrange- from resulted grant- ments, determined that the relief inappro- ed the district court was Ladner, Atty. Jr., Sp. Heber Asst. priate. opinion provided panel Summer, Miss., Atty. Gen., F.A. Gen. enjoined should from Jackson, Miss., for of Miss. the State denying admission student on Oates, Bay Miss., Springs, Marvin M. (5th basis of See F.2d race. Roberts, Hattiesburg, Miss., Syl- M. 1973). Subsequently Cir. this case was n Baptist Academy. varena placed we conclude that en banc. Since Pittman, Raleigh, Miss., L. D. panel opinion required relief Bd. School precise adequately does not address Atty., Hauberg, as issues involved disclosed Robert E. U. S. Jack- Miss., record, opinion son, Rinzel, is vacated and this Daniel H. F. Richard Rights Swan, Ruzicho, to the district court case is remanded Andrew J. Civil Keeling, Div., Dept, Thomas with directions. M. Jus- Academy, ment between the I segregated school, the Association re appeal we On must cancelled.1 appropriate equi quired to ascertain should a district relief table II grant its determination a result Dis School the Smith entity, government a local district”) (hereinafter “the school trict desegre currently directive under a economically in that it was determined facilities, impermissi gate operating several of to continue feasible agree leasing through bly involved including Sylvarena schools, its rural academy ment with Syl Therefore, it ordered School.2 ha an educational to afford established its students closed and varena School seeking an for those white students ven nearby of Ra town transferred leigh. integrated newly escape Sylvarena Since pronounce previous system. Our land”, the section located on “sixteenth concerning involvement with ments state control of reverted back segregated private demonstrate schools Supervisors, Supervisors.3 The act the government by local that covert efforts ing trustees, sixteenth sec must lease as the effectiveness officials circumvent of benefit lands for the exclusive tion through desegregation decrees of school public of In furtherance education. public leasing school of or the the sale 4, duties, fiduciary on March their flight” academies to “white Supervisors into a lease the entered Those seek will who not be sanctioned. agreement the the for with Association previously the continue or re-establish (cid:127)to Sylvarena The As rental of the School. through segregated pri order discarded persons composed white was of sociation prohibited from receiv vate means Sylvarena The in the area.4 who lived Superintendent government largesse ing in endeav their district, school government that are Local units ors. arrange Tally, approved the Mr. lease unitary operate under court mandates provided for a term of ment. The lease twenty-five years duty emphatic systems school have an annual rental with responsibility to that their assure and apparently the of five dollars. It was undertakings pri relationships or original intent of to use the Association aid, encourage, respect parties in vate facilitate, no Sylvarena exclusively vil the lage meetinghouse as a School in the establishment or result public and social for operation of community activities. events and other recognized and these schools. With Throughout 1970, the the enunciated, summer of guiding principles neighbor- County residents of Smith abundantly the to us that clear ing Jasper County confronted with were sound discretion court acted within desegrega- leasing reality arrange- the of imminent recognizing the the in that Mississippi, pend delayed the sixteenth section of in tliis case We our decision township perpetu- ing in in has been aside each set the decision of the public ity Montgomery, for the benefit of the schools Gilmore S. (1974) title is vested the state. See Miss.Const. in Ct. 41 L.Ed.2d 304 .which exceptions, art. some the § here 211. With similar one volved presented. issues legislature state has vested control of such supervisors. in the local of land board Sylvarena composed of 2. The School (1973). § Miss.Code 29-3-1 buildings. three located in the east- It was Cooper Duckworth, way portion County 4. Mr. President half ern of Smith about Association, membership County) Bay Raleigh (Smith that testified between many Springs (Jasper County). residents of Association was limited to Similar community dwindling Sylvarena schools, experienced former students of rural it had Sylvarena way closing denied he School. enrollment. related in desegregation from the Associa- excluded that blacks were from economic resulted but tion, expediency. were no black did admit there he members. public Department schools. Justice their United States tion in fact repeatedly meetings telephoned During July, held counsel for several we.re Supervisors school board and the in- were interested those residents who forming creating response him that felt Government school desegregation. lease After violated the district school conferences, previously desegregation organizational court’s issued these initial However, pleas order. for movement these action school members unresponsive fell on deaf Associa- ears. with officials conferred discovering purpose Thus on October Govern- tion petitioned ment be inter- whether the Association would supplemental pursuant leasing Sylvarena relief to that School ested jurisdiction buildings court’s retention of in its the future site for August Following requiring academy. 1970 order the im- some tentative ne- arrangement desegregation gotiations, mediate Smith an informal County System. The Government between two consummated requested groups whereby academy cancel the the court leaders between and the possession the Association Acade- take immediate could my claiming grounds the lease interfered and commence the neces- previous sary repairs with the deteriorated buildings order ,occupancy in the white students Smith fall year. schools enrolled all- in- forces academy thereby undermining corporated white under law nam- ing desegregation pedagogic Sylva- of their venture effectiveness its order. the Baptist Academy. rena May 3, 1972, On court With unusual zeal the members the of findings made fact conclusions of of and Academy donated their time and labors law in which the be it canceled lease repairs the needed of the school Supervisors tween the the buildings. membership The of issuance emphasized Association.5 court The capital shares furnished the initial out- that sec under law sixteenth lay purchase that was needed to those proceeds arising tion lands or the by materials that were not donated civ- ex their rental are to be utilized for the ic-minded citizens the area. As a public clusive of the schools in benefit consequence community of the concerted Finding Mississippi. that lease was the effort, Academy open the was able to its good executed to the faith Association doors for the fall semester. by Supervisors, the the court neverthe Academy and the en-' Association then superintendent less held that once the of agreement tered into a formal written receiving the board commenced January 15, leasing on proper- the payments Academy, he, rental from the ty Academy to the a term twen- Supervisors the school board and the ty-two years, period the of time which duty were under an in affirmative to remained under the Association’s lease sure that the did not sublessee use the Supervisors. with the This re- sublease buildings in a manner which quired an annual rental five dol- “chilling op would have on effect” the paid directly by Academy lars to the recently desegregated eration the superintendent of schools. effect, schools. the court government Sylvarena’s metamorphosis found that local the effective County through Supervisors’ formerly public pri- Smith the from a facilitated, go academy lease to Association had vate did not un- the encouraged stages During development the estab effectuated noticed. the Academy. impor- private school, representatives lishment More pursuant Supervisors, Academy the the United 5. The the As- motion and the parties October sociation were made defendant States filed on March order of district the desegre- ensuring a white alternative tant, the sub concluded the court gated public its found- education. Since interfered with lease ing Academy operated Smith, integration has the been orders and Academy only. Covington County white Various students Jasper, Newton and deny attempted to officials trial Systems.6 against blacks. The discriminated A of the record demonstrates review show, however, student facts by the district court that the facts found body white; teaching staff is is all supported amply substantial evi only white; and, Academy plays all time the dence. that at the It evident sports. all-white academies other Thus, Supervisors property to leased Academy effectively has Association, no that the one aware goal. achieved its buildings eventually school cupied by private would be oc segregated academy. court, appeal, panel of On while However, the same conclusion can not be recognizing Supervisors had be respect drawn with sublease from impermissibly come entwined with Academy. the Association At the Academy, activities of the nevertheless time the sublease executed both necessary modify deemed it the relief Academy Association realized by the which had been ordered district buildings used to would be panel court.9 vacated body.7 Many house an all-white student setting order be aside Jasper residents of Smith counties Supervis tween Association and extremely upset prospect were over the re ors remanded directions to attending integrated of their children Academy quire the students admit public schools. Private schools were regard grant being without to their race. We very rapid pace established at a during rehearing summer 1970 in ed en banc to determine Mississippi.8 panel correctly had followed whether previous precedents our in this increas beyond peradventure It that both litigated ingly area state involvement the Association and the initiat- segregated private with academies. relationship ed their with the intent of private in Mis- figures Academy all-white schools number of 6. The enrollment of the for sissippi. four-county He observed: the area included: Smith Coun- expe- Mississippi ty 48; Jasper County 234'; have Private schools Newton — — years. growth County ; in recent Covington County a marked rienced —4 —3. year, recently school as the 1963-1964 As Hendry, 7. Mr. Norman H. President of the .; private only . . schools were 17 there Academy, desegregation the testified that or- 2,362 was students. the total enrollment inducing der one of the chief was factors nonpublic schools 916 students these resulted the establishment Negro, were en- and 192 these were of Academy. questioned Government counsel special retarded, or- schools for rolled Hendry private Mr. on whether “the acade- Sep- By phaned, abandoned children. my segregated private academy is a at the private the number tember of of present Hendry responded, time[.]” “That to 155 schools had increased non-Oatholie right.” Further Government counsel population at estimated a student with quizzed, they going “Did know was virtually Appellees 42,000, all white. academy?” Hendry replied, an “An all-white do chal- officials] [various Probably yes.” all-white —no. fully lenge docu- the statement which Cooper Duckworth denied that the Associa- appellants’ brief, cre- that “the mented acquired property pur- tion had the for the [private] enlargement these ation pose private school, establishing a he did simultaneously with academies major occurred group at his admit the time leased the pub- in the events premises Academy, he to the was aware that added; (Emphasis . .” . lic schools. private it would be used as a school. omitted). at 93 footnotes Harrison, In Norwood L.Ed.2d at 727. S.Ct. (1973), 37 L.Ed.2d 723 Chief 1973). (5th Burger F.2d 941 Cir. the rise in See 476 Justice noted dramatic the Brighton dens on the black residents III who were denied access to facilities Analysis proper relief which' Accordingly, school. granted by district court should be proper remedy court determined that the where it has demonstrated that been set such a situation was to aside the inextricably connected state has become property transfer. segregated in- educational with begin Wright v. with stitutions must In v. Tate McNeal School Dis- City Brighton, Alabama, 441 F.2d 447 trict, (5th 1972), 460 F.2d Cir. 1971). (5th Brighton concerned Cir. again court was confronted sale of abandoned school devising appropriate task of relief Brighton city the Hoover proper- where sells a state Academy, private, In all-white school. ty ultimately becomes situs July ap- Hoover officials segregated for a In Tate school. government city proached the with an the local school board advertised for bids building. In offer to response the unused of an unused sale was Academy’s proposal, the purely closed educational and eco- Brighton city council authorized Steward, nomic reasons. Harold who mayor Hoover for to lease school to acting secretly pri- on behalf of a years purchase option two with an highest academy, vate submitted bid period. the end of the lease accordingly property the school transferred to him. The record demon- Wright immediately complaint filed strated that the board had no notice that seeking in the to have the property employed the school would preliminary lease set ing At a hear- aside. housing academy. court, presid- before the district Moreover, the district court found ing judge intimated that a lease of the private Academy in- would not private Academy would school to vio- attempts desegregate terfere with principles proscribing late well-settled system. Originally, the local school segrega- state involvement with majority set of the Tate court aside the Attempting prevent tion. the taint sale of to the Acade- proposed that would adhere to the leas- original my. Upon opin- rehearing, the ing arrangement, city agreed to sell requir- ion was modified with directions Following the school to Hoover. ing ap- admit all sale, approved the district court plicants on merit and without re- based finding transaction in- constitutional gard (5th 460 F.2d race. Cir. firmities. 1972). the district court found Tate appeal, On this court reversed and re- as facts the school authorities acted manded to the district court with direc- good according in selling to faith and law in to tions set the sale aside. The court property the and the consid- County, first noted that Jefferson the paid eration therefor not inade- county Brighton located, in which was quate. public proper The after sale going through long the and laborious plaintiffs advertisement and none of the objected desegregating system. task of its school Moreover, pur- the to the sale. city The record the established that fa- brought litiga- the chasers were not into fully thers were aware of the to use apparent initially tion and with the put. which the school would be knowledge plaintiffs expended the of fact, only In the sale had effectuat- been money substantial of at a time sums ed after the district court had informed plaintiffs objected when the could have parties leasing arrangement the that a to the did not do More im- sale but so. impermissible. would be The sale had portant, that the the court found facilitating encourag- the effect of and any integra- sale did not interfere with ing segre- the establishment of tion decree. In Tate our we adhered gated academy. placed special Wright. holding It bur- in permit public grant goal the of school remedies the different, property nominal rental to an insti- the are ed in following two cases the practices the exclusion principles tution which be distilled Moreover, unlike a sale Brighton blacks. account Tate and good First, faith, a part varying final and can be made the results. on-going relationship recognize lease involves that a cannot cases state both establishment, involvement all intimate between

provide means for leasing parties encouragement with facilitation, concerned or continua arrangement. Academy paid Here,- private segregated school. tion of a su- Second, granted of five dollars to the a nominal rent the nature of relief Ap- perintendent board. from that accorded in Tate does differ government placed divergent pellee offi- Brighton. the local results had re- unique equities that their actions cials notice attributable factors, .presented aid sulted substantial each case. Two . appropri- good to take the officials failed but faith on behalf of school board insure that effect selling property ate action to the fact desegrega- previous any desegregation the district court’s not the sale did affect not vitiated their orders, provided tion order would be a basis Tate private par- subsequent merely with requiring relations regard applicants ties. admit all without Brighton race instead of the more severe Thus, a Tate case this is not remedy mandating that the sale good property in state sold where the actually sum, set In if a state aside. interest whatsoev faith and retained knowing property property sells that the Furthermore, in property. in the er will be used for the establishment segregated academy Tate court in the district dicated earlier actually or the sale interfere did the sale found that desegregation interferes with Here, in desegregation orders. its with contrast, public system must then sale court determined be set aside. leasing arrangement have would principles de- With these fundamental attempts to “chilling effect” on a provide lineated, we are firm in our desegregated public belief educa for a the district court aside should have set system. latitude must tion granted Wide the lease between the Association at in its to a district Academy. arrange- three-party appropriate tempts provide remedial on-going ment revealed here involved suit. relief a school encouraged facilitated, state aid which is buttressed here The result we reach and resulted in the establishment in Norwood the recent decision continuation Harrison, academy. The facts demonstrate that reversing F. (1973), L.Ed.2d 723 Association, generous recipient (three-judge (N.D.Miss.1972) Supp. 1003 public largesse through public use court). that decision rental, facilities for had sublet nominal guidance provided on both knowledge with the quality interaction of state seg- it would be used house a pro contravenes academies scriptions regated academy recently de- within the protection equal clause segregated public system. concomitantly proper relief the by a district accorded should be re- which Furthermore the state retained imper that this determines versionary prem- once it court interest in the leased exists. Mississippi involvement missible state ises. At least since attending pub Nonuood, students black has held sixteenth section challenged Mississippi the public perpetuity lic schools the benefit of text program providing free supra. It state’s school education. n. 3 See attending pri- allegedly laudatory perversion to children books would be a of that segregated withm the schools state. the vate Mississippi students presump- remained provided tively desegregated had free textbooks schools. 1942, long all students since before

to appeal, Supreme On a unanimous duty under an affirmative state was rejected Court the lower court’s reliance system. dismantle its dual to on the establishment clause and conclud Moreover, apparent the free that was particular program ed that whether the system devised not facil- textbook was to governmental aid or involvement un support or establishment of itate scrutiny actually prompted der the exo private im- academies but to dus of white students to acade general prove quality educational legally mies was irrelevant.11 Chief dispensed to all within the state students Burger Justice found distinction be regardless attended. of the school granting tween free textbooks to dis recognizing plaintiffs, The black criminatory private academies and free right grants to attend students tuition both since “are a form of schools, compass limited of their inuring financial assistance to the bene challenge supplementation to the state’s fit of the schools themselves.” white-flight of free textbooks to acade types Both sig of assistance furnished organized recently mies which had been support nificant forms of to the discrim of the school inatory to thwart the effectiveness Furthermore, academies. immediately responsibility de boards’ segregate distinguished Chief Justice textbooks public A three- schools.10 general from other services bestowed plaintiffs judge re court denied the police protection a state such as fire holding program lief the textbook that may readily since acquired textbooks not interfere did violate or with the opinion from sources. The duty desegregate since clearly state’s deciding states whether a provided to textbooks were the children particular government service violates particular private not the schools duty becoming state’s to refrain from Relying children attended. private discrimination, involved with part opinions on the dis court must look nature of the aid tinguishing parochial aid to schools scrutiny. under students, from aid to individual the dis accepted The Court the dis trict court held that aid to the latter plain trict court’s conclusion that regard constitutionally permissible tiffs had failed demonstrate that free composition of the less student encouraged flight, textbooks had white private school that was attended. The rejected legal significance but placed emphasis lower decisive plaintiffs’ the district court attached to plaintiffs the fact had failed to proof. omission Court stated pro demonstrate that the free textbook succinctly that, gram encouraged facilitated flight public white from the schools. the Constitution does not permit Plaintiffs’ failure to establish that white aid discrimination State precise public students would not have left the even is no when there causal relationship even schools without aid free state financial between controlling given weight. textbooks was aid to a and the contin- Finally, well-being three-judge tribunal ued noted of that school. A State grant tangible program pre type that the textbook had not fi- vented the if aid nancial aid here involved significant tendency Mississippi schools has a since over facili- 90% interesting Douglas 10. It note record Mr. and Mr. Justice Bren- Justice filing result nan concurred in the without case establishes opinion. receiving at free textbooks opinion. time of the L. Ed.2d at 732. regardless support private mo- reinforce, Thus state’s initial tate, undertaking programs tive in- discrimination.13 goals, inquiry volved nonracial a court’s not should Thus court’s examination should be directed to the result of actual in to whether state be addressed motivating activity the state and not the encourages actually white stu volvement initiating particular reason for state system public school dents to flee the Mississippi involvement concerned. had regardless aid, but whether presumptively pro- established a gram neutral partici proclivities individual dispensing in textbooks 1942. academies, pants private “has in the Subsequent private events in the tendency facilitate, significant rein to changed movement within the state support force, discrimina program neutral to active state involve- protection proscriptions Equal tion.” pervasive private ment with discrimina- that is the to aid limited state not again tion. Once the Court demonstrat- motivating withdrawal force for white looking importance ed the to re- public im but more from the schools largesse. sult of a state’s portantly such aid to restricts though stu the white academies even Conjointly, the Court dis to attend dents decision legal significance missed the derived particular is not aid influenced oper from the Mississippi fact that now granted. unitary system. ates a It con sympa was the Court sys Mississippi cluded that textbook goal laudatory in to the state’s thetic tem was infirm because it aided in the to all students suring quality education continuation of school discrimi attended, they it regardless the school discharge nation. its A state does not “good the conclusion responsibilities simply in firm was constitutional aas erected not be eradicating system could intentions” the dual it but neutral state’s on a an attack barrier must make that it does likewise certain govern system “organization resulted aid and contin not aid private dis with system private separate involvement mental uation of a legal Disagreeing with duty Therefore, crimination. significance schools.” state’s by the state disengage ascribed itself from the program had system” continuing free textbook fact that “school one regard racial unitary sys without established been achievement Burger motives, conclud respon Justice Chief tem does diminish the state’s not sibility ed: manner. Finally, rejected be Equal would Protection Clause the Court promise involvement on the establishment if state reliance sterile activity possible private cases, could and remanded case clause altogether Mississippi require of from constitutional directions shielded grant scrutiny simply free its ultimate textbooks because to refuse ficials attending private schools some but end not discrimination children integrated.17 higher goal.15 not which are fact showing Id., a school is at must be no 13. there 413 U.S. at 93 S.Ct. reading integrated. of the Court’s fact Our at L.Ed.2d 732. remand, however, us conclude leads 14. Id. unique posture caused all Id. 15. aid to state Plaintiffs attacked case. attempt in a blanket schools white Id., enjoined. The Court all to have recognized schools L.Ed.2d at 733. in fact that some schools discriminating of race. basis re- contends the Court’s recognized its remand that stated a boiler mand that a school with factors, “among affirm- plate other schools should all states it admits clause which policies atively regard enough admission thus declare to race is without

435 parts, challenge The same factors which contributed to confines its Supreme segre Court’s determination that state’s involvement with program gated Mississippi textbook was education and not does seek substantially present infirm are in Academy. have blacks admitted to the In both instances the First, program both challenge case. the textbook is direct leasing agreement the initial now ed toward the character of the state’s originated neutral, under a review recipient connection with the goal. validity nonracial basis While the and does seek to not address the program admittedly textbook insti recipient’s poli vel non of the admission quality of tuted insure a minimum cies. Therefore the relief ordered must education, Supervisors in the instant be fashioned with a consideration of the pursuant Mississippi Supreme case law leased in issue focus. As the Court required disengage an abandoned school As in Norwood state ment, sociation without overtones of racial of affirmations nondiscrimin Second, atory standards, discrimination. both these on admission’s so must we. going in Fourth, required state ventures culminated an il in Norwood the Court largesse union licit of the state with elimination of the state’s even through changes though subsequent showing in education had there been no aof complexion govern the educational which ema causal connection between the groundswell flight nated from the tremendous mental aid and white and the nec essary desegre in to establish acade interference with school gation In neither situation did state mies. would flow from such a finding. intend the ultimate result but both it contrast, Here in there has part showing encouragement held must nevertheless ac been a be of both resulting objectionable countable for the an interference Third, consequences.18 attempts desegregated States court’s United to insure in this case like its Norwood counter education in the school districts con- racially practices, Similarly cases, the number 18. state other minority religiously rejected attempts students has Court a school board’s identifiable and such data other relevant as is consistent to isolate its conduct from constitutional at- ground opinion.” 471, program tack on with this Id. at 93 413 U.S. under challenge (emphasis 2813, at S.Ct. 37 L.Ed.2d initiated non-racial rea- added) required Wright City Thus the sons. Court more than v. of Em- Council simple particular poria, 451, 462, 2196, 2203, a a statement additionally (1972), placed did not discriminate an af 33 L.Ed.2d 61 but the Court showing proper perspective importance firmative statement number of minority actually purpose prompted students in attendance. attached to the g. See, Hudson, F.Supp. particular activity pro- e. Cook 365 855 institution a (N.D.Miss.1973). gram program we intimate when it is revealed that judgment Cook, impact holding in an on the actual undesirable a Judge opinion ICeady’s attempts unitary indicates the lit to achieve a system. receiving mus test for free textbooks Mis Justice Stewart observed for sissippi opinion after the Norwood is actual Court that: integration upon . schools. . . [The has] Id. focused Similarly, consistently rejected purpose we have or motivation —of effect —not determining schools’ incantations it does not school board’s action simply adopted permissible discriminate because it has whether method of dis- nondiseriminatory mantling system. to admis a dual statement The ex- [school] Wright City Brighton, permissible purpose sions. See istence Ala cannot bama, (5th 1971) ; impermissi- 441 F.2d 449 Cir. sustain an action has City Montgomery, added) (Emphasis Gilmore v. F.2d ble 473 effect. (5th granted 1973), Thus, regardless 832 cert. 414 Cir. U.S. motives which (1973), prompt particular activity, 94 L.Ed.2d af 38 145 the initiation aof part judicial scrutiny firmed in and remanded with directions must directed toward the consequences proceedings, for further the school board’s actions. S. (1974) ; Ct. 41 L.Ed.2d Graham v. Evangeline Board, Parish F.2d (5th 1973). Cir. part present present court affirmed the relevant facts This Hence the cerned. holding. Judge requiring district court’s of the compelling for reasons more writing present for the Clark court stated: were than state disinvolvement schools’ coffers. nue used cilities and pended it saved 337 sequence of the could problem school vate to utilize use case, serting ting tal relief to the cilities more gration Gilmore, Alabama quiring S.Ct. recipients. to all and fire services that are in buildings Such gate. under an affirmative other for white students aging gated public stances are Montgomery’s Montgomery [provided] aid to vate, segregated ment and Our money Norwood. district court found that from ticket sales to increase F.Supp. 22, 24 the district segregated schools to 2416, services are v. city’s regardless sporting sporting conclusions previous and its Supreme Court’s that the city governmental integration similar park black Montgomery, constitutionally permit protection filed are not the capital additionally provided reve- 41 L.Ed.2d aid operation facilitating park seeking to avoid facilities residents an action for arrangement: events mandate Montgomery to the one was substantial because district court’s events Finally, schools. orders. city’s court held of the character would have school board outlays are further a far facilities provided schools, which size type of who most because as an policy 417 which could schools duty to (M.D.Ala.1972). 304 their establish- cry requiring opinion in large textbooks In in the instant city Montgomery, officials thus are that the U.S. violated by resolving (1974). alternative schools supplemen- generalized exclusively sports the effect to be ex- buttressed place aas addition, amounts order desegre- desegre- park provided and all a state. encour- permit- 556, of the police clubs inte- con- pri- city pri- fa- Gil- like in- as- fa- re- 94 In schools tenanced. 556, clusions cilities erating 473 tions gomery’s certiorari spect Aaron, U.S. 391 ^[430] cantly impede Ed.2d 5 were 263 actions ficials judgment of the District U.S. tion, manded Montgomery modified, tion, 784, 253 F.Supp. desegregation ly Montgomery County ed cution of the school “impede, subject to.special established enjoin schools to frustrate state involvement with crimination of the Because F.2d Particularly important 94 against Montgomery to eliminate racial omitted). F.Supp. held: (1969). Certainly, 787 232 225, contravene an by private and could not be responsible with directions to affirm S.Ct. the exclusive use of the sporting reached were aware of this Board 832, any organizations on their actions city’s policies operated 647 capacity (CA5 sub nom. F.Supp. 705 The of the court’s thwart or frustrate (1958); 400 F.2d 89 2416, U.S. [a state assistance 835 306 reaffirmed (M.D.Ala.1968), County integration plan mandat- S.Ct. of New 1968), As order. education, had aided the events. See schools (5th (M.D.Ala.1966); 41 part of all-white federal courts scrutiny. in this progress 437-438, Green outstanding United States 1670, L.Ed.2d 1, Board of Educa Board school city. reversed Cir. (M.D.Ala.1964); S.Ct. which seeing judicially coun- this would court with 402 F.2d Kent Court such schools prior See Carr for fund 1973) 23 L.Ed.2d and is the case, Court, order Cooper of Educa district].” city’s of school legal goal, any serves It well aff’d as County, park mandate the exe- signifi granted County private direct private school Mont- (cita- gen- light 782, fact con- 395 289 of dis- re re- fa- L. v. v. is' 716; [1689], 1693-1694, 20 L.Ed.2d Thus Norwood and Gilmore and previous holding Brighton Alexander v. pro Holmes Board our Education, setting vide basis for aside the lease Any (1969). 24 L.Ed.2d 19 between the Association and the Acade arrangement, my. implemented by state All the facts found signifi- level, supported fully by officials at court were cantly perpetuate Nevertheless, tends to record. a dual we do not feel system, support legal whatever manner the facts found constitutionally impermissible. conclusion that lease between rights Supervisors constitutional of chil- and the “[T]he Association must be against opinion dren not In to be discriminated our' cancelled. lease is subject by . not can neither be nullified to the infirmities found openly directly by legis- the district and state court. The sublease between judicial Academy the or Association the lators state executive or the is arrangement officers, indirectly by approved which can not be nor nullified through seg- and must be them set aside. evasive schemes for regation attempted ‘ingen- whether Initially the United not States did ” iously ingenuously.’ Cooper or seek a cancellation of lease between Aaron, U.S., S.Ct., 358 at 78 Supervisors and Association. At the any tangible 1409. This means that hearing sug- below, the conducted court assistance, general- state outside the gested possibility this and Government government might pro- ized services agreed that counsel such remedial action private segregated vide to in schools would be consistent with the Govern- schools, common with other and with position. ment’s constitutionally citizens, prohib- all is significant is It that the district court' significant tendency ited if it “a has Supervisors found leased facilitate, reinforce, support buildings the unused to the Asso private discrimination.” Norwood good faith ciation edge without knowl Harrison, 93 S.Ct. subsequently that it be used would 2804, 2811, (1973). L.Ed.2d to house a school. challenge limited Government’s obligation The constitutional of the property to the use of the the Acade “requires State it to steer clear Giving my "full and not the Association. only operating system the old dual evidence consideration to record racially segregated schools, but also court; it the facts found giving significant aid institu- only constitutional is clear us that practice tions that racial other in- infirmity related which established Id., vidious discrimination.” agreement subsequent be lease S.Ct., at 2812. Academy. tween Association and challenged The Government has never 556, 568, right to use of the Association (1974) (footnotes 41 L.Ed.2d 304 omit actually premises or the made use leased ted). County like Mont Since Smith Ac of the Association. impermissibly gomery has become entan apparent cordingly, to us it is gled private segregation, with disentan set aside the court should have glement remedy only is the sound which interfered not have sublease and should problem adequately will address Supervisors the lease between presented. and the Association.19 De- We intimate no view of the constitutional district court. Counsel for the validity partment that, the lease between the Association of Justice informed objection Supervisors and the under the decision have no to the Civic Center “We having using Gilmore and á similar state action cases. Association they case, long as instant that was not the issue tried former as COLEMAN, Judge,

IV Circuit with whom SIMPSON, Judges, DYER and Circuit proscribed state involve Where join, concurring dissenting part seg ment is found to exist with regated academies, part. appropriate relief panel I awas member persons to re accorded black must be original opinion rendered govern and branch” the move “root in. case, Mississip- United State States v. it mani in whatever form ment’s aid pi, Cir., 1973, designed 476 F.2d 941. there- I should be fests itself. Relief myself privilege fore avail placed response into to the issues fo commenting opinion goal on the en banc now equitable of an cus. ultimate about to be situations, handed down. to make in such decree private enterprises dedicated to those original it Since accord with the segregated schools, private in fact heartily panel opinion, in that I concur case, panel well as in name. In this opinion part en banc re- opinion merely required the original verses the cancellation of plate” promise make “boiler lease from the Smith Board in its admission would not discriminate policies. Supervisors Sylvarena to Civic Cen- economic In and the cultural ter. County, this relief is milieu of Smith Only the of the cancellation lease from patently insufficient. Sylvarena Syl- Civic Center Academy and circumstances the facts Under varena remains for discussion. it is difficult to disclosed the record highly is to be Our Brother Gewin by the conclude that a mere declaration unusually complimented lucid for an Academy accept minority ap- that it will analysis underlying facts and of of the any appreciable plicants would result in regret- prior to It is be court decisions. change composition in the racial expo- however, splendid ted, a such Academy’s body, especially in student recognize the one decisive fails to sition charges. admission view of current is the Court now feature of the case: assuming Moreover, inde- even economic directing a lease the cancellation of be- Academy’s pendence, policy obvious private parties lease in which tween —a segregation its scholas- which infects agency or or of the State no officer very sports programs like- tic would and authority, any power, or had ly any black child chill the ambition of participation. was in- state action No square might I this with a to attend volved. cannot who entertain desire Fourteenth Amendment. classes there. Sylva- say that the It no answer is remanded This cause is (and Academy) lands rena Civic Center modify order its directions court with for the benefit held trust setting the Su- the lease between aside township. of that schoolchildren to or- pervisors the Association title, paramount un- As to the Asso- between der that the sublease true, doubtedly v. Madison is Jones voided. and the ciation (1895). So. 87 County, 72 Miss. respects, or-

all other Nevertheless, same constitutional der is affirmed. fur- such lands prohibition sale of may they leased part provides that part, ther reversed Affirmed years for specified term with directions. remanded prosecuted on the focused case don’t sub-lease cognizable present could object the Association have don’t AAre to that. AVe school. deprivations us. not before leasing property objection constitutional any to their properly using property.” AVhether or gross sura, proceeds (1883). proscribe, to be covered It does how- funds, Mississippi ever, every into the state action “of kind” that operates deny any equal Constitution of citizen the § protection of Ibid. the laws. This years March three On proscription applies de on state action eight days prior to our decision jure well de as because facto Wright City Brighton, F.2d formally ‘private’ “[c]onduct good Supervisors, the Board of govern- become so entwined Sylvarena faith, the former leased policies impregnated mental so Sylvarena Civic Center governmental with a character as to statutory term of Association subject become to the constitutional twenty-five years. Thereafter, for that placed upon limitations state action.” time, period county or state offi- Newton, 296, 299, Evans exercise, any power, had, or could cial 486, 488, 15 L.Ed.2d 373 authority, dominion, or control over the (1966). present In the we case must land, any if it use of the more than city determine whether the of Mont- similarily private indi- leased to a been gomery engaged discriminatory ac- imaginable purpose vidual what- tivity desegrega- parks violative nothing ever. There could be sinister tion order. must also We decide charge rental on this about the nominal city’s whether involvement acreage, occupied by an small abandoned alleged discriminatory activity seg- severely limited utili- regated private pri- schools and other Moreover, granting ty. when it came to through groups, providing vate lease, the Board entitled to take facilities, recreational constitutes that, into consideration the fact like all subject “state action” to constitutional other rural schools in exis- limitation. prior 1953, tence to residents community brings had been taxed for the con- It also to the fore another building struction of the in the first appearing opinion: statement that place. county No state or funds could “The District not have Court does gone have into the construction of the authority carte blanche to administer building. specific, To more be city simply facilities because there is legalized, Supervisors simply Board of past present or discrimination. The manner, community in a formal use limiting prudential usual tenets they of citizens which had al- judicial power must of be exercise paid ready for at the tax win- collector’s any in this other.” observed case as Additionally, disputed it dow. is not. [Footnote 10]. spent Academy $25,000 in labor that publicly true owned If this be as to and materials for' the rehabilitation and true, equally facilities, if not it is more improvement the old house. school belonging legally so, to to a facilities doing, in en banc is Court What private group specified term of for a purportedly Fourteenth exercise years. (for- power, to cancel Amendment is v. Neither do I understand Norwood group private feit) a lease from one Harrison, 455, 2804, 37 413 U.S. individuals to another. 723, require forfeiture of L.Ed.2d other lan- of some This reminds us right. private property Norwood this City guage appearing v. Gilmore right private schools have the held that supra: Montgomery, operate. of Mis- The State to exist and Equal sissippi The to discontinue Protection Clause was not ordered pro- private Pri- supplying Fourteenth Amendment does not schools. books required simply in- hibit the invasion of vate schools were “[individual rights.” Rights Cases, pro- approval dividual a certification Civil submit declaring 18, 3, affirmatively 11, 21, cedure, L.Ed. constitu- 109 U.S. 3 27 S.Ct. 440 gree one, policies acceptable

tionally to order Bank admission Union National Matthews, 621, supplying practices, and other rele- 98 U.S. 25 188 L.Ed. (1878); indeed, a forfeiture en vant data. be only forced when within both letter and being Academy Sylvarena re- is law, spirit of the States v. Auto United rights in real quired its vested to forfeit Financing, mobile S.Ct. together la- property, fruits of with the pro 83 L.Ed. A forfeiture proper- money expended on that bor and ceeding quasi-criminal is in character amounting $25,000. This ty, only penaliz and can be directed toward on another issue met and decided ing someone for the commission Cir., Tate, field in McNeal v. against law, Plym offense One 1958 Judge panel, a divided F.2d 568. There Pa., outh Sedan v. Com. dissenting, sale of invalidated Gewin 14 L.Ed.2d property in Tate public school former against operate It is not the law to County, Mississippi, and directed right reconveyed private school; protected Tate it is a property be law, Harrison, supra. This This was Norwood County of Education. Board enjoin operation of the because cannot nothing a forfeiture less than Co.urt Sylvarena authority by lawfully operat- which as'a no lawful there was voluntarily school, simply or ed it so orders it could have Tate purchase pro- building, involuntarily forfeit school refunded improvements result, made price pay duces at that location the same for the rights. plus property The ultimate loss of owners. petition rehear- that on outcome ing publicly if Even this were opera- upheld but the sale was operated owned or within the thus on a discrimina- of a tion ap Amendment, remedy, Fourteenth specific enjoined. tory basis was plied literally times, is not hundreds that the language, F.2d at property require to forfeit but to injunction should: operated it a constitutional " provide if . . manner. Even if we are brush aside . Thyatira used of this status op- school, shall Amend such school shove across Fourteenth any gap, remedy discrimination ment erated without upon case, applied based as was or character should be kind origin, Tate, supra, creed, or national done in and as race, color McNeal v. school shall in Nor such done Court and the doors ap- qualified Harrison, supra. open all to all v. times wood equal plicants on basis.” Sylvarena Academy has instant panel decided When lease, is the case not surrendered remedy directed applied appeal, it legally moot, we were informed at not supra. difference McNeal, It makes disputed, argument, that after oral good sale faith involved that McNeal directing panel the constitu- decision it sold private individual, later who group. to a Sylvarena property, the tional use That and the site was abandoned good happened There was here. what Thus, moved to another location. association, to a lease faith using a dead school as is now private school. it to which leased holding Four- that it has the vehicle for itself, imprisonment for- authority to obliter- than Amendment Other teenth rights is the property by judicial be- ate, decree, of real transactions feiture highly penal possible parties. Further, reme- of all most tween Hunter, accomplished dies, Bennett obliteration (1869); commanding forfei- L.Ed. 672 the forfeiture Wall. eq- being perfectly capable court of in a con- favored and a used are not tures this, my concep- always de- uity in the last reluctant stitutional manner. To rights tion constitutional will not al- me

low to assent. portion majori- concur I opinion

ty undisturbed, which leaves do, the lease from the Board of Sylvarena

Supervisors to the Civic Asso-

ciation. opinion part of

I dissent to that

which directs forfeiture of the Academy.

from the Association to etc., al., Jr., et GOODEN,

Bennie Stone Plaintiffs-Appellees-Cross Appellants, etc., UNIVERSITY,

MISSISSIPPI STATE Defendants-Appellants- al., et Appellees. Cross

No. 73-2108. Appeals,

United States Court

Fifth Circuit.

Aug.

Rehearing Rehearing Eh Banc Denied Oct. Summer, Atty. Gen., F. A. A. Wm.

Allain, Atty. Gen., Asst. Ed Davis First Noble, Jr., Atty. Gen., Sp. Jackson, Asst. Miss., defendants-appellants. Melvyn Leventhal, Jackson, Miss., R. Greenberg, City, New York Jack plaintiff s-appellees. CLARK, BELL, Before DYER and Judges. Circuit PER CURIAM: Plaintiffs, at- three black students Clarksdale, tending public Mis- sissippi, com- a class sued behalf of throughout prised the State of “students aggrieved by who policies practices of defendants complaint, complained of herein.”

Case Details

Case Name: United States v. State of Mississippi (Smith County School District), Sylvarena Baptist Academy

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 23, 1974

Citation: 499 F.2d 425

Docket Number: 72-2521

Court Abbreviation: 5th Cir.