flight of white children to these new schools and to established private and parochial schools promotes resegregation. (3) Many white teachers prefer not to teach in Negro schools. They are tempted to seek employment at white schools or to retire. (4) Many Negro children, for various reasons, prefer to finish school where they started. (5) The gap between white and Negro scholastic achievements causes all sorts of difficulties. There is no consolation in the fact that the gap depends on the socio-economic status of Negroes at least as much as it depends on inferior Negro schools.

No court can have a confident solution for a legal problem so closely interwoven with political, social, and moral threads as the problem of establishing fair, workable standards for undoing de jure school segregation in the South. The Civil Rights Act of 1964 and the HEW Guidelines are belated but invaluable helps in arriving at a neutral, principled decision consistent with the dimensions of the problem, traditional judicial functions, and the U.S. Constitution. We grasp the nettle.

"No army is stronger than an idea whose time has come." 15 Ten years after Brown, came the Civil Rights Act of 1964.16 Congress decided that the time had come for a sweeping civil rights advance, including national legislation to speed up desegregation of public schools and to put teeth into enforcement of desegregation." Titles IV and VI together constitute the congressional alternative to court-supervised desegregation. These sections of the law mobilize in aid of desegregation the United States Office of Education and the Nation's purse. A. Title IV authorizes the Office of Education to give technical and financial assistance to local school systems in the process of desegregation.18 Title VI requires all federal agencies administering any grant-in-aid program to see to it that there is no racial discrimination by any school or other recipient of federal financial aid.1 School boards cannot, however, by giving up federal aid, avoid the policy that produced federal aid to schools; Title IV authorizes the Attorney General to sue, in the name of the United States, to desegregate a public school or school system.20 More clearly and effectively than either of the schools." This number will be significantly increased as a result of pending litigation over school desegregation in Plaquemines Parish. Leeson, Private Schools Continue to Increase in the South, Southern Education Report, November 1966, p. 23. In Louisiana, students attending parochial schools do not receive tuition grants.

15 In a press meeting May 19, 1964, to discuss the Civil Rights bill, Senator Everett Dirksen so paraphrased, "On résiste á l'invasion des armées; on résiste pas a l'invasion des idées." Victor Hugo, Histoire d'um crime: Conclusion: La Chute, Ch. 10 (1877). Senator Dirksen then said, "Let editors rave at will and let states fulminate at will, but the time has come, and it can't be stopped." Cong. Quarterly Service, Resolution in Civil Rights 63 (1965).

16 H.R. 7152, Pub. L. 88-352, 78 Stat. 243; approved July 2, 1964.

17 "[I]n the last decade it has become increasingly clear that progress has been too slow and that national legislation is required to meet a national need which becomes ever more obvious. That need is evidenced, on the one hand, by a growing impatience by the victims of discrimination with its continuance and, on the other hand, by a growing recognition on the part of all of our people of the incompatibility of such discrimination with our ideals and the principles to which this country is dedicated. A number of provisions of the Constitution of the United States clearly supply the means 'to secure these rights,' and H.R. 7152, as amended, resting upon this authority, is designed as a step toward eradicating significant areas of discrimination on a nationwide basis. It is general in application and national in scope." House Judiciary Committee Report No. 914, to Accompany H.R. 7152. 2 U.S. Code Congressional and Administrative News, 88th Cong. 2nd Sess. 1964, 2393. *** The transition from all-Negro to integrated schools is at best a difficult problem of adjustment for teachers and students alike. * * *We have tried to point out that the progress in school desegregation so well commenced in the period 1954-57 has been grinding to a halt. The trend observed in 1957-59 toward desegregation by court order rather than by voluntary action has continued. It is not healthy nor right in this country to require the local residents of a community to carry the sole burden and face alone the hazards of commencing costly litigation to compel school desegregation. After all, it is the responsibility of the Federal Government to protect constitutional rights. ** Additional Views on H.R. 7152 of Hon. William M. McCulloch. Hon. John V. Lindsay, Hon. William T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor, Hon. Charles MCC. Mathias, Hon. James E. Bromwell." Ibid., 2487.

*

18 78 Stat. 246-99. 42 U.S.C. § 2000c (1964).

*

19 78 Stat. 252-53, 42 U.S.C. § 2000d (1964). Section 601 states: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Section 602 states: "Each to any program or activity * is authorized and directed to effectuate the provisions of Federal department and agency which is empowered to extend Federal financial assistance to any program or activity * * is authorized and directed to effectuate the provisions of Section 601 with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives or the statute authorizing the financial assistance in connection with which the action is taken. ***"

20 78 Stat. 246-49, 42 U.S.C. § 2000c (1964). In addition, Title IX authorizes the Attorney General to intervene in private suits where persons have alleged denial of equal protection of the laws under the 14th Amendment where he certifies that the case is of "general public interest.' 78 Stat. 266, Title IX § 902, 42 U.S.C. § 2000h-2 (1964).

other two coordinate branches of Government, Congress speaks as the Voice of the Nation." The national policy is plain: formerly de jure segregated public school systems based on dual attendance zones must shift to a unitary, nonracial system-with or without federal funds.

The Chief Executive acted promptly to carry into effect the Chief Legislature's mandate. President Lyndon B. Johnson signed the bill into law July 2, 1964, only a few hours after Congress had finally approved it. In the signing ceremony broadcast to the Nation, the President said: "We believe all men are entitled to the blessings of liberty, yet millions are being deprived of those blessings-not because of their own failures, but because of the color of their skins. *** [I]t cannot continue." " At the request of President Johnson, Vice President Hubert H. Humphrey submitted a report to the President "On the Coordination of Civil Rights Activities in the Federal Government" recommending the creation of a Council on Equal Opportunity. The report concludes that "the very breadth of the Federal Government's effort, involving a multiplicity of programs" necessary to carry out the 1964 Act had created a "problem of coordination." The President approved the recommendation that instead of creating a new agency there be a general coordination of effort.22 Later, the President noted that the federal departments and agencies had "adopted uniform and consistent regulations implementing Title VI *** [in] a coordinated program of enforcement." He directed the Attorney General to "coordinate” the various federal programs in the adoption of "consistent and uniform policies. practices and procedures with respect to the enforcement of Title VI. ** *** In April 1965 Congress for the first time in its history adopted a law providing general federal aid-a billion dollars a year-for elementary and secondary schools. It is a fair assumption that Congress would not have taken this step had Title VI not established the principle that schools receiving federal assistance must meet uniform national standards for desegregation."

24

26

25

To make Title VI effective, the Department of Health, Education, and Welfare (HEW) adopted the regulation, "Non-discrimination in Federally assisted Programs." This regulation directs the Commissioner of Education to approve applications for financial assistance to public schools only if the school or school system agrees to comply with a court order, if any, outstanding against it, or submits a desegregation plan satisfactory to the Commissioner."

To make the regulation effective, by assisting the Office of Education in determining whether a school qualifies for federal financial aid and by informing school boards of HEW requirements, HEW formulated certain standards or guidelines. In April 1965, nearly a year after the Act was signed, HEW published its first Guidelines, "General Statement of Policies under Title VI of the Civil Rights Act of 1964 respecting Desegregation of Elementary and Secondary Schools. 28 These Guidelines fixed the fall of 1967 as the target date for total desegregation of all grades. In March 1966 HEW issued "Revised Guidelines" to correct most of the major flaws revealed in the first year of operation under Title VI.29

B. The HEW Guidelines raise the question: To what extent should a court, in determining whether to approve a school desegregation plan, give weight to the HEW Guidelines? We adhere to the answer this Court gave in four earlier cases. The HEW Guidelines are "minimum standards", representing for the most part standards the Supreme Court and this Court established before the Guide

21 N.Y. Times, July 3, 1964, p. 1.

22 Executive Order 11197, Feb. 9, 1965, 30 F.R. 1721.

23 Executive Order No. 11247, Sept. 28, 1965, 30 F.R. 12327.

24 The Elementary and Secondary Education Act of 1965, 79 Stat. 27.

25 "The Elementary and Secondary Education Act of 1965 greatly increased the amount of federal money available for public schools, and did so in accordance with a formula that pumps the lion's share of the money to low-income areas such as the Deep South. Consequently, Title VI of the Civil Rights Act of 1964 has become the main instrument for accelerating and completing the desegregation of Southern public schools." The New Republic, April 9, 1966 (Professor Alexander M. Bickel).

26 45 C.F.R. 80, Dec. 4, 1964, 64 F.R. 12539.

27 "Every application for Federal financial assistance to carry out a program to which this part applies *** shall as a condition to its approval ** * contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this part. ***" 45 C.F.R. § 80.4 (a) (1964).

28 U.S Department of Health, Education, and Welfare, Office of Education, General Statement of Policies under Title VI of the Civil Rights Act of 1964 Respecting Desegregation of Elementary and Secondary Schools, April, 1965. It is quoted in full in Price v. Denison, 5 Cir. 1965, 348 F. 2d at 1010.

29 Revised Statement of Policies for School Desegregation Plans Under Title VI of the Civil Rights Act of 1964. March 1966.

lines were promulgated." Again we hold, "we attach great weight" to the Guidelines. Singleton v. Jackson Municipal Separate School District, 5 Cir. 1965, 348 F.2d 729 (Singleton I). "We put these standards to work *** [Plans] should be modeled after the Commissioner of Education's requirements *** [Exceptions to the guidelines should be] confined to those rare cases presenting justiciable, not operational, questions * * * The applicable standard is essentially the HEW formulae." Price v. Denison Independent School District Board of Education, 5 Cir. 1965, 348 F. 2d 1010. "We consider it to be in the best interest of all concerned that School Boards meet the minimum standards of the Office of Education * * * In certain school districts and in certain respects, HEW standards may be too low to meet the requirements established by the Supreme Court and by this Court *** [But we also] consider it important to make clear that *** we do not abdicate our judicial responsibility for determining whether a school desegregation plan violates federally guaranteed rights." Singleton v. Jackson Municipal Separate School District, 5 Cir. 1966, 355 F. 2d 815 (Singleton II). In Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1966, 364 F. 2d 896, the most recent school case before this Court, we approved Singleton I and II and Price v. Denison and ordered certain changes in the school plan in conformity with the HEW Guidelines.

Courts in other circuits are in substantial agreement with this Court. In Kemp v. Beasley, 8 Cir. 1965, 352 F. 2d 14, 18-19, the Court said: "The court agrees that these [HEW] standards must be heavily relied upon *** [T]he courts should endeavor to model their standards after those promulgated by the executive. They are not bound, however, and when circumstances dictate, the courts may require something more, less or different from the H.E.W. guidelines." (Emphasis added.) Concurring, Judge Larson observed: "However, that 'something different' should rarely, if ever be less than what is contemplated by the H.E.W. standards." 352 F. 2d at 23. Smith v. Board of Education of Morrilton, 8 Cir. 1966, 365 F. 2d 770 reaffirms that the Guidelines "are entitled to serious judicial deference".

Although the Court of Appeals for the Fourth Circuit has not yet considered the effect of the HEW standards, district courts in that circuit have relied on the guidelines. See Kier v. County School Board of Augusta County, W.D. Va. 1966, 249 F. Supp. 239; Wright v. County School Board of Greenville County, Civil Action, E.D. Va. 1966, 252 F. Supp. 378; Miller v. Clarendon County School District No. 2, Civil Action No. 8752, April 21, 1966, D. of S.C. In Miller, one of the most recent of these cases, the court said:

"The orderly progress of desegregation is best served if school systems desegregating under court order are required to meet the minimum standards promulgated for systems that desegregate voluntarily. Without directing absolute adherence to the "Revised Standards" guidelines at this juncture, this court will welcome their inclusion in any new, amended, or substitute plan which may be adopted and submitted."

In this circuit, the school problem arises from state action. This Court has not had to deal with nonracially motivated de facto segregation, that is, racial imbalance resulting fortuitously in a school system based on a single neighborhood school serving all white and Negro children in a certain attendance area or neighborhood. For this circuit, the HEW Guidelines offer, for the first time, the prospect that the transition from a de jure segregated dual system to a unitary integrated system may be carried out effectively, promptly, and in an orderly manner. See Appendix B, Rate of Change and Status of Desegregation.

II.

We read Title VI as a congressional mandate for change change in pace and method of enforcing desegregation. The 1964 Act does not disavow court-supervised desegregation. On the contrary, Congress recognized that to the courts belongs the last word in any case or controversy." But Congress was dissatisfied

30 In Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1966, 364 F. 2d 896, Judge Tuttle, for the Court, noted that "for many a year, it has been apparent to all concerned that the requirements of Singleton and Denison were the minimum standards to apply."

31 Title IV, § 407, 42 U.S.C. § 2000 (c) authorizing the Attorney General to bring suit, on receipt of a written complaint, would seem to imply this conclusion. Section 409 preserves the right of individual citizens "to sue for or obtain relief" against discrimina tion in public education. HEW Regulations provide: "In any case in which a final order of a court of the United States for the desegregation of such school or school system is entered after submission of such a plan, such a plan shall be revised to conform to such final order, including any future modification of such order." 45A C.F.R. § 80.4 (c) (1964).

32

with the slow progress inherent in the judicial adversary process. Congress therefore fashioned a new method of enforcement to be administered not on a case by case basis as in the courts but, generally, by federal agencies operating on a national scale and having a special competence in education and administration. Congress looked to these agencies to shoulder the additional enforcement burdens resulting from the shift to high gear in school desegregation.

33

34

A. Congress was well aware that it was time for a change. In the decade following Brown court-supervised desegregation made qualitative progress: responsible Southern leaders accepted desegregation as a settled constitutional principle. Quantitively, the results were meagre. The statistics speak eloquently. See Appendix B, Rate of Change and Status of Desegregation. In 1965 the public school districts in the consolidated cases now before this Court had a school population of 155,782 school children, 59,361 of whom were Negro. Yet under the existing court-approved desegregation plans, only 110 Negro children in these districts, 0.19 per cent of the school population, attend former "white" schools.3 In 1965 there was no faculty desegregation in any of these school districts; indeed, none of the 30,500 Negro teachers in Alabama, Louisiana. and Mississippi served with any of the 65,400 white teachers in those states. In the 1963-64 school year, the eleven states of the Confederacy had 1.17 per cent of their Negro students in schools with white students. In 1964–65, undoubtedly because of the effect of the 1964 Act, the percentage doubled, reaching 2.25. For the 1965-66 school year, this time because of HEW Guidelines, the percentage reached 6.01 per cent. In 1965-66 the entire region encompassing the Southern and border states had 10.9 per cent of their Negro children in school with white children; 1,555 biracial school districts out of 3,031 in the Southern and border states were still fully segregated; 3,101,043 Negro children in the region attended all-Negro schools. But the states of Alabama, Louisiana, and Mississippi, still had less than one per cent of their Negro enrollment attending schools with white students.37

36

The dead hand of the old past and the closed fist of the recent past account for some of the slow progress. There are other reasons-as obvious to Congress as to courts. (1) Local loyalties compelled school authorities, and elected

32 See footnote 17.

33 "The Federal courts have been responsible for great qualitative advances in civil rights: the lack has been in quantitative implementation-in enabling the individual to avail himself of these great decisions." Bernhard and Natalie, Between Rights and Remedies. 53 Georgetown L. Jour. 915, 916 (1965). "It is the concensus of the judges on the firing line, so to speak, that one phase in the administration of the law-the establishment phase, characterized by permissive tokenism, by a sort of minimal judicial holding of the line while the political process did, as it must, the main job of establishment-this phase has been closed out" Bickel, The Decade of School Desegregation, 64 Colum. L. Rev. 193 (1964). The changes of the past decade have disappointed the most optimistic hopes, but they have been dramatically sweeping nonetheless. Gellhorn, A Decade of Desegregation-Retrospect and Prospect, 9 Utah L. Rev. 3 (1964). "What makes one uneasy of course," is the truly awesome magnitude of what has yet to be done." Quoted in Pollak, Ten Years After the Decision, 24 Fed. Bar Jour. 123 (1964).

(Affidavit of St. John Barrett, Attorney, Department of Justice, attached to Motion to Consolidate and Expedite Appeals.)

35 U.S. Dept. of Health, Education and Welfare, Office of Education Release, Table 3. September 27, 1965. In the 11 states of the Confederacy there are 1800 Negro teachers. 1.8 per cent of all the Negro teachers in Southern schools, assigned to schools with biracial faculties. By contrast, in the border states (Delaware, Kentucky, Maryland, Missouri, Oklahoma, and West Virginia) 51 per cent of the Negro teachers now teach white students. Ibid.

36 Southern Education Reporting Service, Statistical Summary, Dec. 1965 U.S. Commis sion on Civil Rights, Survey of School Desegregation in the Southern and Border States 1965-66. P. 1.

37 See footnote 3. See Appendix B, Rate of Change and Status of Desegregation.

officials, to make a public record of unwillingness to act. But even school authorities willing to act have moved slowly because of uncertainty as to the scope of their duty to act affirmatively. This is attributable to (a) a misplaced reliance on the Briggs dictum that the Constitution "does not require integration",38 (b) a misunderstanding of the Brown II mandate, desegregate with "due deliberate speed", and (c) a mistaken notion that transfers under the Pupil Placement Laws satisfy desegregation requirements." (2) Case by case development of the law is a poor sort of medium for reasonably prompt and uniform desegregation. There are natural limits to effective legal action. Courts cannot give advisory opinions, and the disciplined exercise of the judicial function properly makes courts reluctant to move forward in an area of the law bordering the periphery of the judicial domain. (3) The contempt power is ill-suited to served as the chief means of enforcing desegregation. Judges naturally shrink from using it against citizens willing to accept the thankless, painful resonsibility of serving on a school board."1 (4) School desegregation plans are often woefully inadequate; they rarely provide necessary detailed instructions and specific answers to administrative problems."2 And most judges do not have sufficient competence they are not educators or school administrators to know the right questions, much less the right answers. (5) But one reason more than any other has held back desegregation of public schools on

38 See Section III A of this opinion.

42

39 In Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1966, 364 F. 2d 896, 898, Judge Tuttle, for the Court, said: "This is the fourth appearance of this case before this court. This present appeal, coming as it does from an order of the trial court entered nearly eighteen months ago, on March 31, 1965, points up, among other things, the utter impracticability of a continued exercise by the courts of the responsibility for supervising the manner in which segregated school systems break out of the policy of complete segregation into gradual steps of compliance and towards complete compliance with the constitutional requirements of Brown v. Board of Education, 347 U.S. 483. One of the reasons for the impracticability of this method of overseeing the transitional stages of operations of the School boards involved is that, under the Supreme Court's 'deliberate speed' pro. visions, it has been the duty of the appellate courts to interpret and reinterpret this language as time has grown apace, it now being the twelfth school year since the Supreme Court's decision."

40 "The pupil assignment acts have been the principal obstacle to desegregation in the South." United States v. Commission on Civil Rights, Civil Rights U.S.A.-Public Schools, Southern States 15, 1962. See Note, The Federal Courts and Integration of Southern Schools: Troubled Status of the Pupil Placement Acts, 62 Colum. L. Rev. 1448, 1471-73 (1962); Bush v. Orleans Parish School Board, 5 Cir. 1962, 308 F. 2d 491. Such laws allow a few carefully screened Negro children, on their application, to transfer to white schools from the segregated schools to which the Negroes were initially unconstitutionally assigned. Often, even after six to eight years of no desegregation, these transfers were limited to a grade a year. When this law first came before us we held it to be unconstitutional. Bush v. Orleans Parish School Board, E.D. La. 1956, 138 F. Supp. 337, aff'd 242 F. 2d 156, cert. den'd 354 U.S. 921 (1957). Later, in a narrowly focused opinion, we held that the Alabama version was constitutional on its face. Shuttlesworth v. Birmingham Board of Education, N.D. Ala. 1958, 162 F. Supp. 372, aff'd without opposition, 358 U.S. 101 (1958). As long ago as 1959 and 1960 this Court disapproved of such act as a reasonable start toward full compliance. Gibson v. Board of Public Instruction of Dade County, 272 F. 2d 763; Manning v. Board of Public Instruction, 277 F. 2d 370. See also Bush v. Orleans Parish School Board, 5 Cir., 1961, 308 F. 2d 491; Evers v. Jackson Municipal Separate School Dist., 5 Cir. 1964, 328 F. 2d 408. "[T]he entire public knows that in fact [the Louisiana law] * * * is being used to maintain segregation. *** It is not a plan for desegregation at all." Bush v. Orleans Parish School Board, 308 F. 2d at 499-500. [The unedited opinion continued footnote 40 as follows:] statutes aimed at defeating desegregation. There were five extra sessions of the Louisiana legislature in 1960. After the School Board had for three years failed to comply with an order to submit a plan, the district judge wrote one himself. The able judge simply said: "All children [entering New Orleans public schools *** may attend either the formerly all white public school nearest their homes, or the formerly all Negro public school nearest their homes, at their option. B. Children may be transferred from one school to another, provided such transfers are not based on race." Cf. Note 38.

*

42 For example, the order of the exceptionally able district judge in Bush. See footnote 39. Judge Bohanon underscored this point in Dowell v. School Board of Oklahoma City, W.D. Okla. 1965, 244 F. Supp. 971, 976: "The plan submitted to this Court *** is not a plan, but a statement of policy. School desegregation is a difficult and complicated matter, and, as the record shows, cannot be accomplished by a statement of policy. ¶ Desegregation of public schools in a system as large as Oklahoma City requires a definite and positive plan providing definable and ascertainable goals to be achieved within a definite time according to a prepared procedure and with responsibilities clearly designated."