Lee v. Macon County Board of Education, Civ. A. No. 604-E.

• Court: U.S. District Court — Middle District of Alabama
• Writing for the Court: PER CURIAM
• Citation: Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D. Ala. 1967)
• Decision Date: 22 March 1967
• Docket Number: Civ. A. No. 604-E.
• Parties: Anthony T. LEE and Henry A. Lee, by Detroit Lee and Hattie M. Lee, their parents and next friends et al., Plaintiffs, United States of America, Plaintiff-Intervenor and Amicus Curiae, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants.

267 F. Supp. 458

Anthony T. LEE and Henry A. Lee, by Detroit Lee and Hattie M. Lee, their parents and next friends et al., Plaintiffs United States of America, Plaintiff-Intervenor and Amicus Curiae, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants.

Civ. A. No. 604-E.

United States District Court M. D. Alabama, E. D.

March 22, 1967.

Fred D. Gray (Gray & Seay), Montgomery, Ala., Jack Greenberg, Charles H. Jones, Jr., Melvyn Zarr and Henry M. Aronson, New York City, for plaintiffs.

Ben Hardeman, U. S. Atty., Montgomery, Ala., John Doar, Asst. Atty. Gen., and St. John Barrett, Brian K. Landsberg, Robert D. Owen and John M. Rosenberg, Attys., United States Dept. of Justice, Washington, D. C., for the United States.

Richmond M. Flowers, Atty. Gen., and Gordon Madison and Robert P. Bradley, Asst. Attys. Gen., of Alabama, Montgomery, Ala., for the Macon County Board of Education and individual members.

Maury D. Smith, O. J. Goodwyn, John S. Bowman and Charles M. Crook (Goodwyn, Smith & Bowman), Montgomery, Ala., John C. Satterfield, Yazoo City, Miss., and A. Hugh Maddox, Legal Adviser to Governor Wallace, State of Alabama, Montgomery, Ala., for George Wallace Lurleen Burns Wallace as Governor and as President of the Alabama State Board of Education.

Maury D. Smith, O. J. Goodwyn, John S. Bowman and Charles M. Crook (Goodwyn, Smith & Bowman), Montgomery, Ala., Marion Rushton and James Garrett (Rushton, Stakely & Johnston), Montgomery, Ala., for Alabama State Board of Education and individual members.

Before RIVES, Circuit Judge, and GROOMS and JOHNSON, District Judges.

PER CURIAM.

In these supplementary proceedings, this Court is once again called upon to consider whether the defendants¹ Lurleen Burns Wallace as Governor of the State of Alabama and as President of the Alabama State Board of Education, Ernest Stone as Secretary and Executive Officer of the Alabama State Board of Education (sometimes referred to as the State Superintendent of Education), and the individual members of the Alabama State Board of Education, have continued, and are continuing, to use their authority to operate throughout the State of Alabama a dual school system based on race.

This Court is also once again called upon to pass upon the constitutional validity of a tuition grant law (Title 52, § 61(8), Code of Alabama) passed by the Legislature of the State of Alabama and approved by the Governor on September 1, 1965.

I. PROCEDURAL HISTORY

This action was commenced over four years ago by Negro parents of school-age children, against the Macon County Board of Education, seeking to desegregate the public schools in Macon County, Alabama. In July 1963 the United States was added as a party and as amicus curiae in order that the public interest in the administration of justice would be represented. After a full hearing, this Court in August 1963 made its findings and conclusions and ordered the public schools in Macon County, Alabama, desegregated. Lee, et al. (Plaintiffs, United States of America, Plaintiff and Amicus Curiae) v. Macon County Board of Education, MD Ala., August 22, 1963, 221 F.Supp. 297. Thereafter, on three separate occasions during the 1963-64 school year, this Court found it necessary to enjoin state officials from various forms of interference with the peaceful and orderly desegregation of schools in Macon County.²

In February 1964 plaintiffs filed a supplemental complaint, adding as defendants George C. Wallace as President of the Alabama State Board of Education, Austin R. Meadows, Executive Officer and Secretary of the Alabama State Board of Education, and other individual members of the State Board of Education. In this supplemental complaint the plaintiffs requested this Court (1) to enjoin these defendants from operating a dual school system based upon race throughout the State of Alabama, (2) to enter an order requiring state-wide desegregation of schools in the State of Alabama, (3) to enjoin the use of state funds to perpetuate the dual school system, and (4) to enjoin as unconstitutional the tuition grant law of the State of Alabama (Chapter 4B §§ 61(13) through 61(21), Title 52, Code of Alabama). At this stage of the proceeding, the Chief Judge of the United States Court of Appeals for the Fifth Circuit, in response to a request of the district judge, constituted a three-judge court pursuant to §§ 2281 and 2284, Title 28, United States Code.

After an oral hearing, a review of the evidence and arguments of counsel, this Court in July 1964³ made its findings and conclusions to the effect that there was a dual school system based upon race that was maintained and operated throughout the State of Alabama and that it was the policy of the state and, in particular, the Governor, George C. Wallace, as President of the Alabama State Board of Education; Austin R. Meadows, Secretary and Executive Officer of the Alabama State Board of Education, and the individual members of the Alabama State Board of Education, to promote and encourage the implementation of that racial policy in the operation of the Alabama public schools. It was also concluded that Alabama's tuition grant law was nothing more than a sham established for the purpose of financing with state funds a white school system in the State of Alabama. Accordingly, the defendant state officials were enjoined from:

Interfering with, preventing or obstructing by any means, the elimination of racial discrimination by local school officials in any school district in the State of Alabama;

Approving, authorizing or paying any tuition grant or grant-in-aid under the provisions of Chapter 4B Sections 61(13) through 61(21) of Title 52 of the Alabama Code for the attendance of any person in a school in which enrollment or attendance is limited or restricted upon the basis of race or color;

Failing, in the exercise of its control and supervision over the public schools of the State, to use such control and supervision in such a manner as to promote and encourage the elimination of racial discrimination in the public schools, rather than to prevent and discourage the elimination of such discrimination.

In August 1966 the United States of America was permitted to file a supplemental complaint in intervention wherein the United States as a party attacked the constitutionality of Alabama's new tuition grant statute⁴ passed after this Court enjoined, in its order of July 1964, the paying of any tuition grant or grant-in-aid under the provisions of Chapter 4B, Title 52 of the Alabama Code. The complaint in intervention by the United States attacked the new statute on the basis that it was for no purpose other than to perpetuate racial segregation in the public schools of Alabama. This aspect of the case was submitted on stipulation and is discussed later in this opinion.

In September 1966 and in November 1966, the plaintiffs filed additional supplemental complaints again asking for a state-wide desegregation order and an injunction against the use of state funds to support a dual school system. Following extensive discovery by all parties, the case was heard in November 1966 and is now submitted upon the evidence and the parties' oral arguments and briefs.

II. FACTUAL HISTORY

In the July 1964 order, this Court found that the defendant George C. Wallace, President of the Alabama State Board of Education, the State Board of Education, the several individual members thereof, and the Secretary and Executive Officer of the Alabama Board of Education, Austin R. Meadows, had demonstrated that they had enormous authority and power over the actual operation of the various local school systems throughout the state. This conclusion was based on the actual assumption or usurpation of authority by these defendants over the local school boards exemplified by their total control, when they chose to exert it, over the Macon County school system, and also by the general statutory power granted to these various officials to supervise and control the public schools in the State of Alabama. Examples of the Governor's actions and control, as found previously by this Court, are:

As stated above, acting pursuant to this Court's order, the defendant Macon County Board of Education assigned 13 Negro pupils to the Tuskegee Public High School. These pupils were assigned in grades eight through twelve and were scheduled to begin school on September 2, 1963. Early on the morning of September 2, an Alabama State trooper visited the home of Macon County Superintendent Pruitt and presented him with an order of Governor George C. Wallace, who is also under the law of Alabama the ex officio President of the Alabama State Board of Education. This Executive Order stated, in part, as follows:

WHEREAS, there now exist in the State of Alabama conditions calculated to result in a disruption of the peace and tranquility of this State and to occasion peril to the lives and property of the citizens thereof, this situation resulting from the threat of forced and unwarranted integration of the public schools of this State; and,

* * * * * *

NOW, THEREFORE, I, George C. Wallace, as Governor of the State of Alabama, and in conformity with the Constitutional and statutory power vested in me as Governor of said State, do hereby order and direct the Macon County Board of Education, Macon County, Alabama, to delay the opening of Tuskegee High School for a period of one week, until, to-wit: Monday, September 9, 1963, with the sole and express purpose of allowing the Governor of the State of Alabama to preserve the peace, maintain domestic tranquility and to protect the lives and property of all citizens of the State of Alabama.

DONE this the 2nd day of September, A. D., 1963 /s/ George C. Wallace GEORGE C. WALLACE, AS GOVERNOR OF THE STATE OF ALABAMA

Acting upon this direction of Governor Wallace, the State troopers surrounded the Tuskegee High School, and neither the pupils nor teachers were permitted

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