desegregation, or where the opportunity is not available to all students without regard to race, color or national origin. No arrangement will be made, or permission granted, by this school system for any students living in another school system to attend school in this system, where this would tend to limit desegregation, or where the opportunity is not available to all students without regard to race, color or national origin.

17. Violations To Be Reported

It is a violation of our desegregation plan for any school official or teacher to influence or dissuade any person from choosing a school where a desegregated education can be obtained, or to threaten any person with penalties or promise favors for any choice made. It is also a violation of Federal regulations for any person to intimidate, threaten, coerce, retaliate or discriminate against any individual for the purpose of interfering with the free making of a choice of a desegregated school. Any person having any knowledge of any violation of these prohibitions should report the facts immediately by mail or phone to the Equal Educational Opportunities Program, U.S. Office of Education, Washington, D.C. 20202 (telephone 202-962-0333). The name of any person reporting any violation will not be disclosed without his consent. Any other violation of the desegregation plan or other discrimination based on race, color, or national origin in the school system is also a violation of Federal requirements, and should likewise be reported. Anyone with a complaint to report should first bring it to the attention of State or local school officials, unless he feels it would not be helpful to do so. If State or local officials do not correct the violation promptly, any person familiar with the facts of the violation should report them immediately to the U.S. Office of Education at the above address or phone number.

APPENDIX IV

Opinion of the U.S. Court of Appeals for the Fifth Circuit as Released by the Clerk of the Court on Dec. 29, 1966 [the Printed Slip Opinion, Which May Reflect Some Editing, Was Not Available at the Time of the Printing of This Record.]

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 23345

UNITED STATES OF AMERICA AND LINDA STOUT, BY HER FATHER AND NEXT FRIEND, BLEVIN STOUT; APPELLANTS

v.

JEFFERSON COUNTY BOARD OF EDUCATION, ET AL., APPELLEES

No. 23331

UNITED STATES OF AMERICA, APPELLANT

v.

THE BOARD OF EDUCATION OF THE CITY OF FAIRFIELD, ET AL., APPELLEES

No. 23335

UNITED STATES OF AMERICA, APPELLANT

v.

THE BOARD OF EDUCATION OF THE CITY OF BESSEMER, ET AL., APPELLEES

Appeals from the United States District Court for the Northern District of Alabama

No. 23274

UNITED STATES OF AMERICA, APPELLANT

v.

CADDO PARISH SCHOOL BOARD, ET AL., APPELLEES

No. 23365

UNITED STATES OF AMERICA, APPELLANT

v.

THE BOSSIER PARISH SCHOOL BOARD, ET AL., APPELLEES

No. 23173

MARGARET M. JOHNSON, ET AL., APPELLANTS

v.

JACKSON PARISH SCHOOL Board, ET AL., APPELLEES

No. 23192

YVORNIA DECAROL BANKS, ET AL., APPELLANTS

v.

CLAIBORNE PARISH SCHOOL BOARD, ET AL., APPELLEES

Appeals from the United States District Court for the Western District of Louisiana

Before WISDOM and THORNBERRY, Circuit Judges, and Cox,* District Judge. WISDOM, Circuit Judge:

Once again the court is called upon to review school desegregation plans to determine whether the plans meet constitutional standards. The distinctive feature of these cases, consolidated on appeal, is that they require us to reexamine school desegregation standards in the light of the Civil Rights Act of 1964 and the Guidelines of the United States Office of Education, Department of Health, Education, and Welfare (HEW).

When the U.S. Supreme Court in 1954 decided Brown v. Board of Education1 the members of the High School Class of 1966 had not entered the first grade. Brown I held that separate schools for Negro children were "inherently unequal". Negro children, said the Court, have the "personal and present" right to equal educational oportunities with white children in a racially nondiscriminatory public school system. For all but a handful of Negro members of the High School Class of '66 this right has been "of such stuff as dreams are made on".3

3

"The Brown case is misread and misapplied when it is construed simply to confer upon Negro pupils the right to be considered for admission to a white school". The United States Constitution, as construed in Brown, requires public school systems to integrate students, faculties, facilities, and activities. If

*William Harold Cox, U.S. District Judge for the Southern District of Mississippi, sitting by designation.

1 Brown v. Board of Education, 1954, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (Brown I).

2 347 U.S. at 495.

In

3 The cases consolidated for appeal involve Alabama and Louisiana public schools. Alabama, as of December 1965, there were 1.250 Negro pupils, out of a state-wide total of 295,848, actually enrolled in schools with 559.123 white students, 0.43% of the eligible Negro enrollment. In Louisiana there were 2,187 Negro children, out of a total of 318,651, enrolled in school with 483,941 white children, 0.69% of the total eligible. Southern Education Reporting Service, Statistical Summary of Segregation-Desegregation in the Southern and Border Area from 1954 to the present, 15th Rev. p. 2, Dec. 1965. See Appendix B, Rate of Change and Status of Segregation. In each of the seven cases before this Court no start was made toward desegregation of the schools until 1965, eleven years after Brown. In all these cases, the start was a consequence of a court order obtained only after vigorous opposition by school officials.

Braxton v. Board of Education. S.D. Fla. 1962, 7 Race Rel. L. Rep. 675, aff'd 326 F. 2d 616, cert. den'd 377 U.S. 924 (1964). Senator Humphrey cited this case in explaining Section 604 of The Civil Rights Act of 1964. See Section IV D of this opinion.

5 The mystique that has developed over the supposed difference between "desegregation" and "integration", originated in Briggs v. Elliott, E.D.S.C. 1955, 132 F. Supp 776: "The Constitution *** does not require integration. It merely forbids segregation". 132 F. Supp. at. This dictum is a product of the narrow view that Fourteenth Amendment rights are only individual rights; that therefore Negro school children individually must exhaust their administrative remedies and will not be allowed to bring class action suits to desegregate a school system. See Section IIIA of this opinion.

The Supreme Court did not use either word in Brown. But the Court did quote with approval a statement of the district court in which "integrated" was used as we use it here. For ten years after Brown the Court carefully refrained from using "integration" or "integrated". Then in 1964 in Griffin v. County School Board of Prince Edward County, 375 U.S. 391, 84 S. Ct. 400, 11 L. Ed. 2d 409, the Court noted that "the Board of Supervisors decided not to levy taxes or appropriate funds for integrated public schools", i.e. schools under a desegregation order. There is not one Supreme Court decision which can be fairly construed to show that the Court distinguished "desegregation" from "integration", in term or by even the most gossamer implication.

Brown I left any doubt as to the affirmative duty of states to furnish a fully integrated education to Negroes as a class, Brown II resolved that doubt. A state with a dual attendance system, one for whites and one for Negroes, must "effectuate a transition to a [single] racially nondiscriminatory system.' The two Brown decisions established equalization of educational opportunities as a high priority goal for all of the states and compelled seventeen states, which by law had segregated public schools, to take affirmative action to reorganize their schools into a unitary, nonracial system.

The only school desegregation plan that meets constitutional standards is one that works. By helping public schools to meet that test, by assisting the courts in their independent evaluation of school desegregation plans, and by accelerating the progress but simplifying the process of desegregation the HEW Guidelines offer new hope to Negro school children long denied their constitutional rights. A national effort, bringing together Congress, the executive, and the judiciary may make meaningful the right of Negro children to equal educational opportunities. The courts acting alone have failed.

We hold, again, in determining whether school desegregation plans meet the standards of Brown and other decisions of the Supreme Court," that courts in this circuit should give "great weight" to HEW Guidelines.R Such deference is consistent with the exercise of traditional judicial powers and functions. HEW Guidelines are based on decisions of this and other courts, are formulated to stay within the scope of the Civil Rights Act of 1964, are prepared in detail by experts

Counsel for the Alabama defendants assert that "desegregation" and "integration" are terms of art. They struggle valiantly to define these words: "By 'desegregation' we mean the duty imposed by Brown upon schools which previously compelled segregation to take affirmative steps to eliminate such compulsory segregation so as to allow the admission of students to schools on a non-racial admission basis. By 'integration' we mean the actual placing of or attendance by Negro students in schools with whites."

Mani

They can do so only by narrowing the definitions to the point of inadequacy. festly, the duty to desegregate schools extends beyond the mere "admission" of Negro students on a non-racial. basis. As for "integration", manifestly a desegregation plan must include some arrangement for the attendance of Negroes in formerly white schools.

In this opinion we use the words "integration" and "desegregation" interchangeably That is the way they are used in the vernacular. That is the way they are defined in Webster's Third New International Dictionary: "'integrate' to 'desegregate' ". "The Civil Rights Commission follows this usage: for example, "The Office of Education * * * standards *** should * * * ensure that free choice plans are adequate to disestablish dual, racially segregated school systems *** to achieve substantial integration in such systems." U.S. Comm. Survey of School Desegregation 1965–66. p. 54.

The Eighth Circuit used "integration" interchangeably with "desegregation" in Smith v. Board of Education of Morrilton, 8 Cir. 1966, 365 F. 2d 770. So did the Third Circuit in Evans v. Ennis, 3 Cir. 1960, 281 F. 2d 385. See also Brown v. County School Board of Frederick County, Va., W.D.Va. 1965, 245 F. Supp. 549. The Courts in Dowell v. School Board of Oklahoma Public Schools. W.D.Okla. 1965. 244 F. Supp 971 and Dove v. Parham, 8 Cir. 1960. 282 F. 2d 256 (and the Civil Rights Commission), speak of a school board's duty to "disestablish segregation". This term accurately "implies that the existing imbalance is a result of past segregation policies, and, because of this, school boards have an affirmative duty to remedy racial balance". Note, Discrimination in the Hiring and Assignment of Teachers in Public School Systems, 64 Mich. L. Rev. 691 (1966). (Emphasis added.)

We use the terms "integration" and "desegregation" of formerly segregated public schools to mean the conversion of a de jure segregated dual system to a unitary, nonracial (nondiscriminatory) system-lock, stock, and barrel students, faculty, staff, facilities, programs, and activities. The proper governmental objective of the conversion is to offer educational opportunities on equal terms to all.

As we see it, the law imposes an absolute duty to desegregate, that is, disestablish segregation. And an absolute duty to integrate, in the sense that a disproportionate concentration of Negroes in certain schools cannot be ignored; racial mixing of students is a high priority educational goal. The law does not require a maximum of racial mixing or striking a racial balance accurately reflecting the racial composition of the community or the school population. It does not require that each and every child shall attend a racially balanced school. This, we take it. is the sense in which the Civil Rights Commission used the phrase "substantial-integration".

As long as school boards understand the objective of desegregation and the necessity for complete disestablishment of segregation by converting the dual system to a nonracial unitary system. the nomenclature is unimportant. The criterion for determining the validity of a provision in a desegregation plan is whether it is reasonably related to the obiective. We emphasize, therefore, the governmental objective and the specifics of the conversion process, rather than the imagery evoked by the peiorative "integration". This area of the law cannot be made to turn unon a quibble devised over ten years ago bv a court that misread Brown, misapplied the class action doctrine in the school desegregation cases, and did not foresee the development of the law of equal opportunities.

Brown v. Board of Education, 1955, 349 U.S. 294, 301, 75 S. Ct. 753, 99 L. Ed. 1083 (Brown II).

7 Especially Cooper v. Aaron. 1958. 358 U.S. 1. 78 S. Ct. 1399. 3 L. Ed. 2d 3: Bradley v. School Board of Richmond, 1965, 382 U.S. 103, 86 S. Ct. 224, 15 L. Ed. 2d 187; Rogers v. Paul. 1965. 382 U.S. 198. 86 S. Ct. 358. 15 L. Ed. 2d 265.

8 Singleton v. Jackson Municipal Separate School District, 5 Cir. 1965, 348 F. 2d 729 (Singleton I).

in education and school administration, and are intended by Congress and the executive to be part of a coordinated national program. These Guidelines present the best system available for uniform application, the best aid to the courts in evaluating the validity of a school desegregation plan and the progress made under that plan.

HEW regulations provide that schools applying for financial assistance must comply with certain requirements. However, the requirements for elementary or secondary schools "shall be deemed to be satisfied if such school or school system is subject to a final order of a court of the United States for the desegregation of such school or school system ***"* This regulation causes our decisions to have a two-fold impact on school desegregation. Our decisions determine not only (1) the standards schools must comply with under Brown but also (2) the standards these schools must comply with to qualify for federal financial assistance. Schools therefore automatically qualify for federal aid whenever a final court order desegregating the school has been entered in the litigation and the school authorities agree to comply with the order. Because of the second consequence of our decisions and because of our duty to cooperate with Congress and with the executive in enforcing Congressional objectives, strong policy considerations support our holding that the standards of courtsupervised desegregation should not be lower than the standards of HEW-supervised desegregation. The guidelines, of course, cannot bind the courts; we are not abdicating any judicial responsibilities.10 But we hold that HEW's standards are substantially the same as this Court's standards. They are required by the Constitution and, as we construe them, are within the scope of the Civil Rights Act of 1964. In evaluating desegregation plans, district courts should make few exceptions to the Guidelines and should carefully tailor those so as not to defeat the policies of HEW or the holding of this Court.

Case by case over the last twelve years, courts have increased their understanding of the desegregation process." Less and less have courts accepted the question-begging distinction between "desegregation" and "integration" as a sanctuary for school boards fleeing from their constitutional duty to establish an integrated, nonracial school system.12 With the benefit of this experience and because of the importance of the instant cases,13 the Court has restudied the School Segregation Cases. We have reexamined the nature of the Negro's right to equal educational opportunities and the extent of the correlative affirmative duty of the state to furnish equal educational opportunities. We have taken a close look at the background and objectives of the Civil Rights Act of 1964.

We approach decisionmaking here with humility. Many intelligent men of good will who have dedicated their lives to public education are deeply concerned for fear that a doctrinaire approach to desegregating schools may lower educational standards or even destroy public schools in some areas. These educators and school administrators may fail to understand all of the legal implications of Brown, but they understand the grim realities of the problems that complicate their task.

The Court is not unaware of the gravity of their problems, especially in rural counties where there has not been even token desegregation. (1) Some determined opponents of desegregation would scuttle public education rather than send their children to schools with Negro children. These men flee to the suburbs, reinforcing urban neighborhood school patterns. (2) Private schools aided by state grants, have mushroomed in some states in this circuit." The

9 45A C.F.R. § 80.4 (c) (1964).

10 In Singleton I, to avoid any such inference, we said: "The judiciary has of course functions and duties distinct from those of the executive department * * * Absent legal questions, the United States Office of Education is better qualified. * * 348 F. 2d

at 731.

11 "The rule has become the later the start, the shorter the time allowed for transition." Lockett v. Board of Education, 5 Cir. 1965, 342 F. 2d 225, 228.

12 See Section IIIA and footnote 5.

13 The Court asked counsel in these consolidated cases and in five other cases for briefs on the following questions:

(a) To what extent, consistent with judicial prerogatives and obligations, statutory and constitutional, is it permissible and desirable for a Federal court (trial or appellate) to give weight to or to rely on HEW guidelines and policies in cases before the court? (b) If permissible and desirable, what practical means and methods do you suggest that Federal courts (trial and appellate) should follow in making HEW guidelines and policies judicially effective?

14 Alabama provides tuition grants of $185 a year and Louisiana $360 a year to students attending private schools. "Only Florida and Texas report no obvious cases of private schools formed to avoid desegregation in public schools." Up to the school year 1965–66, Louisiana had "some 11,000 pupils already receiving state tuition grants to attend private