United States v. Greenwood Municipal Separate Sch. Dist., 25714.

• Citation: 406 F.2d 1086
• Decision Date: 05 March 1969
• Docket Number: No. 25714.,25714.
• Parties: UNITED STATES of America, Appellant, v. GREENWOOD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Appellees. GREENWOOD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

406 F.2d 1086 (1969)

UNITED STATES of America, Appellant, v. GREENWOOD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Appellees.

GREENWOOD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Appellants, v. UNITED STATES of America, Appellee.

No. 25714.

United States Court of Appeals Fifth Circuit.

February 4, 1969.

Rehearing Denied March 5, 1969.

H. M. Ray, U. S. Atty., Oxford, Miss., Stephen J. Pollack, Asst. Atty. Gen., Nathan Lewin, Atty., Dept. of Justice, Washington, D. C., Dorothy Battle Rankin, Carol R. Aronoff, Attys., Department of Justice, Washington, D. C., for appellants.

Hardy Lott, of Lott, Sanders & Gwin, Greenwood, Miss., William A. Allain, Asst. Atty. Gen., Jackson, Miss., for appellees.

Before JOHN R. BROWN, Chief Judge, THORNBERRY, Circuit Judge, and TAYLOR, District Judge.

THORNBERRY, Circuit Judge:

At issue in this case is the school desegregation plan approved by the district court for the Greenwood Municipal Separate School District in Greenwood, Mississippi. Before evaluating the merits of the plan, we must pass on procedural questions raised by the distinguished counsel for the school district. First, he argues that the action should have been dismissed for the Government's refusal to produce any evidence to establish its right to file suit under Section 407 of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6. Speaking exclusively to appellate jurisdiction, he argues that the Government cannot complain in this Court of an action taken by the district court at its own request. Specifically, the contention is that the Government should not be allowed to attack the adequacy of Jefferson-type freedom of choice and ask this Court to prescribe a new attendance plan when the Jefferson decree was approved by the district court on the Government's motion.¹

Section 407² provides generally that when the Attorney General is satisfied he has received meritorious complaints from the parents of children in a school system to the effect that the children are being deprived by the school board of the equal protection of the laws and when he is further satisfied that the parents are unable to initiate legal proceedings themselves, he may, after notifying the school board of the complaints and issuing a certificate verifying the existence of the complaints, file suit in federal district court. In August, 1966, Attorney General Katzenbach issued the certificate required by the statute³ and filed suit in the court below. The school board filed an answer in which it denied that any children in the system were being deprived of equal protection of the laws. In addition, it filed interrogatories and a motion to produce under Rules 33 and 34 in order to elicit the names of the complainants and the precise nature of their complaints. In essence, these motions were designed to test the validity of the Attorney General's certificate. But the trial judge said he did not believe Congress intended the certificate to be subject to judicial review and therefore sustained the Government's objections to the motions.

The legislative history of section 407 supports the court's ruling:

As a prerequisite to suit, the Attorney General would be required to certify that the signers of the complaint were "unable to initiate and maintain appropriate legal proceedings" for relief, and that the institution of an action would materially further the public policy favoring the orderly achievement of desegregation in public education. It is not intended that determinations on which the certification was based should be reviewable. H.R. Report No. 914, 88th Cong., 1st Sess., pp. 23-24, 1964 U.S. Code Congressional and Administrative News, at 2355, 2399 (emphasis added).

Senator Humphrey, the floor manager of the bill in the Senate, added:

The bill requires the Attorney General to state in his complaint that he has received a complaint and that in his judgment the persons who complained are unable to initiate or maintain appropriate legal proceedings. These statements by the Attorney General will not be subject to challenge either by the defendants or by the court. Under no circumstances will the Attorney General be required to reveal the names of the particular complainants. 110 Cong.Rec. 6543 (March 30, 1964) (Emphasis added).

While conceding that this legislative history may preclude discovery of the complainants' names and make unassailable the assertion that they are unable to initiate and maintain legal proceedings for themselves, the school board contends that the nature of the complaints should nevertheless be discoverable. However, the portion of the House Report cited above conveys the broad implication that none of the determinations on which the Attorney General's certificate is based were intended to be reviewable. In order to assure the anonymity of the complaining Negro parents, Congress vested authority in the Attorney General to make a final determination as to whether the complaints he receives merit legal action, whether the complainants would be unable to initiate a suit themselves, and whether a suit would advance the desegregation of schools. Having issued a certificate in conformity with the statute, he acquires standing to sue. If it develops that no children in the school district are being denied equal protection of the laws, then no relief will be granted. This was the position taken by the court below and by another district court which considered the same question. See United States by Katzenbach v. Junction City School District, W.D.Ark.1966, 253 F.Supp. 766. We agree.

In urging that disclosure should have been required or else the suit dismissed, appellant points out that the Attorney General must certify that the school district has "had a reasonable time to adjust the conditions alleged in the complaints." How, queries counsel, can he truthfully make such an assertion when he has prevented the school district from even attempting to adjust conditions by refusing to disclose the names of the complainants and the nature of their complaints? If disclosure were required, the school board might be able to make proper adjustments and thus avoid an expensive, time-consuming lawsuit. The answer to this argument is that disclosure of the names of the complainants and the exact language of their complaints is unnecessary because the school board knows, has known since 1954, what Negro parents mean when they allege generally that their children are being denied equal protection of the laws. They mean that all-Negro schools yet exist, that faculties have not been integrated, and that other characteristics of the dual system remain. When the Attorney General certifies that in his opinion the school district has had a reasonable time to adjust the conditions complained of, he means simply that in all these years the school district has not made enough progress toward establishing a unitary nondiscriminatory system. The school board cannot adjust conditions and avoid the lawsuit by negotiating with the particular parents who have complained. Seeing their names and the precise language of their complaints will not give the board any information it cannot get by looking at conditions in the schools, specifically at the extent of desegregation of students, teachers, and activities. The progress of desegregation is what school cases are all about; the school board knows this and does not need to examine the complaints received by the Attorney General to know what is being charged. If the board is convinced the lawsuit is without redeeming merit, it can offer objective evidence to this effect. Again, we hold that the board has no right, nor have the courts any right, to examine the information which triggered the Attorney General's certificate.⁴

We turn now to the school board's contention that the Government should not be heard to challenge the adequacy of freedom of choice when the model decree for freedom of choice was entered on its own motion. As the board says, the Government urged the adoption of the model decree for freedom of choice in the court below but now takes the position that freedom of choice should be abandoned in favor of some other attendance plan because it has not brought about an acceptable degree of integration. For the proposition that where freedom of choice has not worked it must give way to a different attendance plan, the Government relies on Supreme Court cases decided after the district court's decision in this case. See Monroe v. Board of Commissioners of City of Jackson, 1968, 391 U.S. 450, 88 S.Ct. 1700, 1701, 20 L.Ed.2d 733; Raney v. Board of Education of Gould School District, 1968, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727; Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716.⁵ As we understand the school board, it does not deny that its future litigation must be governed by Green and Raney but it does contend that on this appeal the Court is in no position to prescribe a particular attendance plan to replace freedom of choice. We agree that the posture of the case is such that we cannot prescribe a particular plan to be implemented by the district court and the school board. But since the case is properly before us and since we must remand for reasons quite apart from the inadequacy of freedom of choice, we hasten to emphasize that on remand the proceedings must be controlled by Green and Raney, as well as recent Fifth Circuit decisions. Going a step further, we will express the view that these recent decisions foreclose the use of freedom of choice in Greenwood because it has produced so little in the way of meaningful desegregation. On remand, of course, the school board will have an opportunity to be heard as to the attendance plan it considers most desirable. It is our impression that in objecting to the Government's appeal from that part of the district court's decision granting the relief for which it asked, the school board...