Photo | John L. Leflore Papers, The Doy Leale McCall Rare Book and Manuscript Library, University of South Alabama.
Fifty years after the Birdie Mae Davis case was argued in front of the U.S. Supreme Court, and after 34 years of litigation, Mobile’s desegregation plan shows mixed results.
Editor’s Note: This is the first installment in a Lagniappe series examining the effects of the Birdie Mae Davis case on the Mobile County Public School System and its racial makeup, 50 years after it was argued in front of the U.S. Supreme Court.
The Mobile County Public School System wasn’t facing a unique problem, but it needed a unique solution. It was October 1970, 16 years after the U.S. Supreme Court ruled in Brown v. Board of Education that segregation in public schools was unconstitutional.
Across the country, hundreds of school districts were still under court orders to desegregate, but in spite of an order to do so “with all deliberate speed,” change was slow to come.
In 1956, two years after the Brown ruling, a White woman named Dorothy Danner attempted to enroll her adopted Black daughter in an all-White school in Mobile, but was rejected by the school board. In May 1963, the parents of 23 Black students filed a lawsuit claiming Mobile County continued to operate a “dual school system,” where the majority of schools in the system remained one race.
The resulting case, Birdie Mae Davis v. Board of School Commissioners of Mobile County, was named on behalf of the first student to appear in the list of plaintiffs. It would not be dismissed until 1997, nearly 34 years after it was filed.
As an initial response to the lawsuit, the school board announced it would aim to desegregate one grade per year, beginning with the 12th and working backward to kindergarten. At the same time, the board adopted a “freedom of choice” plan to allow parents to send their children to any school in the system, but according to a report from the time in the Mobile Press-Register, only 624 of the county’s roughly 30,000 Black students enrolled in predominantly White schools in the 1967-68 school year.
At that point, the Department of Justice intervened in the case, claiming the county maintained a dual system where student assignments were based on “neighborhood schools” and geographic attendance zones.
Notably, 94 percent of the system’s Black students lived east of Interstate 65 and north of Interstate 10, and several schools within those boundaries had no White students at all.
Curiously, both the district court and the Fifth Circuit Court of Appeals (now the Eleventh), approved desegregation plans, which “treated the western section as isolated from the eastern, with unified geographic zones and providing no transportation of students for desegregation purposes.”
The plaintiffs in the Davis case, then represented by the National Association for the Advancement of Colored People (NAACP), appealed the plan to the U.S. Supreme Court. So it was — 50 years ago this week — the parties met in Washington, D.C., to argue the facts.
SUPREME COURT HEARING
On Oct. 17, 1970, noted civil rights attorney Jack Greenberg, then the director counsel for the NAACP Legal and Education Defense Fund, admitted the racial disparity in Mobile had improved slightly for the 1970-71 school year, but he urged the court to take a different approach.
“At all stages of this litigation, the courts and the parties including the school board have treated metropolitan Mobile as a separate matter,” he argued. “The question presented to this court is whether in this school system, where the entire spectrum of school assignment techniques have been used in the past to maintain racial segregation — noncontiguous zoning, satellite zoning, pairing, busing, a bewildering array of deviations in grades, structure, portable classrooms, school closings, school construction — whether those techniques, which have been employed in the service of segregation, now ought to be used in the service of integration.”
Greenberg, who worked alongside Thurgood Marshall at the NAACP before Marshall became the court’s first Black associate justice, had successfully lobbied the court for favorable rulings in other school desegregation cases, including Brown.
In 1962, Greenberg won a favorable ruling for Black students in Memphis, Tennessee. He returned in 1968 to win desegregation cases for Black students in Gould, Arkansas, Jackson, Tennessee, and New Kent County, Virginia. In 1969 he went back and won similar cases for students in Montgomery County, Alabama, and Holmes County, Mississippi. But Mobile was more complicated, he said.
“Under the Fifth Circuit’s plan, nearly two-thirds of Black elementary school students attended ‘all-Black’ schools,” he testified, or schools where fewer than 10 percent of the enrollment was White. “Almost all Black children are separated from the preponderant White portion of the city by Interstate 65.”
Meanwhile, the situation in high schools “seems far worse than projected” under the government’s plan, Greenberg said, where more than 6,700 Black students attended all-Black junior high or high schools.
“Therefore, we have a situation in which the preponderant number of Black students in metropolitan Mobile will be spending half of their education — the elementary years — in all-Black schools,” he said. “And the so-called palliative of ‘integrated’ junior high and high school education, which does not — in any event — cure denial of constitutional rights for the first six years, will in fact not exist for them.”
Greenberg went on to list the predominantly Black elementary schools in the system including Robbins, Ella Grant, Brazier, Palmer, Stanton Road, Fonvielle, Caldwell and Council. Predominately White schools at the time included Indian Springs, Forest Hill, Mary B. Austin, Kate Shepard, Morningside, Mertz, Westlawn and Williams.
“The question for this court is whether — in a school system which has been segregated by law until 1954 and which remained completely segregated until 1969 and which is still now overwhelmingly segregated as the result of a so-called ‘final’ desegregation plan under which it now operates — this court, supervising district courts sitting in equity, should fashion an effective remedy to forever end the unconstitutional administration of the school system so far as race is concerned,” he concluded.
Chief Justice Warren Burger wondered whether any court-ordered remedy could stick. He didn’t use the term “White flight,” but suggested any order the court prescribed may eventually be negated by the continued trend of middle-class families — overwhelmingly White — relocating from urban areas.
“I suppose Mobile is no exception to what is true in almost every large community in the country that there is a more or less constant movement of people, sometimes described as an upward movement … How does the district court in performing this function keep track of the changes that would flow from that?” he asked.
Greenberg initially suggested it wouldn’t be the court’s responsibility, but when Burger pressed the question, he acknowledged it may take some degree of policing, much like “an antitrust decree or a water rights case.”
“Will a period arrive sometime in history in which the court will no longer ever have to look at it again?” Greenberg asked rhetorically. “I imagine that at some point it would arrive, but now one year after Mobile has first taken a step going only as far as it has, I suggest, it’s premature to consider that question.”
In a light moment, Alabama native and Associate Justice Hugo Black offered an anecdote from an unnamed municipality in his home state, where Blacks controlled every level of government.
“There was a village in Alabama that I lived in — it was 100 percent colored,” he said. “They had a mayor who was colored, they had a board of aldermen who was colored. Would it be your view that a place like that would have to come under the rule which you are asking for?”
Greenberg told Black any proposed rules were unlikely to be applied elsewhere, reminding the court the Fifth Circuit had also ordered any desegregation plan must be both “feasible” and “workable.”
“It worked pretty well the way they had it,” Black quipped, sending laughter through the chamber.
The following day, Solicitor General Erwin N. Griswold picked up the argument on behalf of the government and he came out swinging.
“I assume it is entirely plain … that we do not support the [Board of Education] here and never have,” he said. “We have been with the counsel for the petitioners here fighting against the dilatory tactics of this board for the past three years and we still are.”
Griswold emphasized the difference between de jure segregation and de facto segregation — in other words, caused by law or caused by circumstance — suggesting Mobile had some of both. But he wasn’t necessarily jumping on Greenberg’s bandwagon.
“Mr. Greenberg said yesterday that under his plan in three years, everything would be straightened out,” Griswold said. “I can guarantee that it won’t be. Under his plan … there will be shifts and adjustments and it will have to be followed. One of the problems, it seems to me in this area, is not to require too much. If you require too much, you aggravate the problems of movement and withdrawal. If you set up a system which provides a good deal of elimination of past discrimination and provide some hope that it might be reasonably stable, you may achieve a great deal more in the long run than if you adopt the standard which counsel for the petitioners have advanced.”
Then it was Abram Philips’s turn. The Mobile County Public School System’s own attorney had never argued in front of the Supreme Court, but he was blunt with his argument and concise enough to yield some of his time to another Mobile attorney, Sam Stockman, who represented the parent-teacher association (PTA).
“We ask that the judgment be overturned and sent back to the district court for the formulation of a new plan within the light of certain principles that we hope the court would reaffirm,” Philips said.
He rebutted some of Greenberg’s assertions, arguing the annual pupil assignment plan was changed frequently because the court ordered it several times since 1966.
“Since 1967 the student assignment portion of these plans have been devised by someone other than the school — the district court, the court of appeals, the Department of Health Education and Welfare (HEW) or the Department of Justice,” Philips argued. “Since January 1970, we have been ordered to implement six different plans of student assignment in the desegregation process. It’s not the board that has been changing the plan. They are merely attempting to the best of their ability to carry out the orders of the court.”
Chief Justice Burger interjected.
“Let me make sure I understand you,” he said. “Are you telling us that the board has been ordered to implement six different plans during this year, all relating to the same subject matter and the same area?”
“Yes,” Philips said. “They take different approaches. They draw different zones … Several were superseded before they could be placed into implementation. Others, the steps towards implementation began and then they were superseded.”
Despite the barrage of court orders, Philips reported there had been “something of a result” during the past three years.
“Craighead School … is 76 percent Black,” he said. “This in the time of the dual school system was an all-White school. Leinkauf is 64 percent Black but at one time was an all-White school. Old Shell Road is 80 percent Black but at one time was an all-White school. Palmer at one time was an all-White school, is now listed by Mr. Greenberg as all Black. Glendale at one time was an all-White school, now listed by Mr. Greenberg at 70 percent Black and the same pattern goes throughout.”
In response to questions from Justice Marshall, Philips admitted the system was segregated until recently, “but we have disestablished the dual system; we have disestablished the dual zones.”
Desegregation was further complicated by White parents and students who wouldn’t comply with school assignments, he said. Blount High School’s actual enrollment in 1970 was 2,033 Black students and 41 White students, he said, but the zone drawn by the court and assigned to the school should have attracted 1,233 Black students and 1,041 White students.
Philips couldn’t answer where the additional 800 Black students came from, but took an educated guess at where the 1,000 missing White students went.
“We know as the record has indicated and as I have indicated in my brief, this school system, since 1965, when the population of Mobile … has continued to increase since 1965, the school enrollment has gone down,” he said. “We’re now some 10,000 students less than we had in 1965. We know that many of the students have enrolled in private school. We know that many of these students who were supposed to be in the Blount zone as assigned by the court have simply moved their residence, some within this county, some to other places, perhaps some to other parts of the country that have not yet faced this problem.”
Philips said in response to the litigation, some court orders suggested the school system should close all-Black schools completely, and “cross bus” both White and Black students wherever they were needed to achieve balance. He asked for the plan to be sent back to district court, “for formulation of a plan in light of certain principles which we hope would eliminate some very grossly gerrymandered zones.”
But he also warned that without a compulsory attendance law or a law restricting all people from moving their residence, “the balancing process can never end.”
Speaking on behalf of the PTA, Stockman expressed frustration with every court order.
“The number of changes that we have seen in the last few months is absolutely devastating,” he said. “I don’t think any one of us in this courtroom could live with the changes that these people have had to face.”
Stockman said parents often learned about student assignments when court orders were published in the newspaper and if they had several children, they may have been assigned to different schools every year. He suggested parents largely supported the concept of neighborhood schools, but only if they provided a quality education.
“Every parent feels an obligation to participate in the educational institution to which his child attends and this is an obligation that you feel in Mobile as much as any other community,” he said. “That they feel an obligation to participate as a community in every school and no matter which school it is, whether it’s biracial or whether it’s uniracial. They participate in the activities and the tragedy of the whole thing is … Mobile is losing to private schools and otherwise.”
Stockman continued to argue the key to solving the issue was not busing or zoning or closing schools, but eliminating the race equation altogether.
“It’s not the issue of whether or not a child is bused one mile or two miles or four miles or 20 miles,” he said. “The issue is a fundamental constitutional right of the individual to be compelled to attend any particular school solely on the basis of race … and this is being made the basis of this whole plan. The school board and the courts have tried to tackle this problem for seven years and it’s a physical impossibility to put children in schools under the plan proposed by the petitioners.”
A RULING, BUT NOT RESULTS
Ultimately, the court sided with Greenberg. On April 20, 1971, the ruling stated the court of appeals “erred in treating the eastern part of metropolitan Mobile in isolation from the rest of the school system, and in not adequately considering the possible use of all available techniques to achieve the maximum amount of practicable desegregation.”
As a result, “inadequate consideration was given to the possible use of bus transportation and split zoning. For these reasons, we reverse the judgment of the court of appeals as to the parts dealing with student assignment, and remand the case for the development of a decree ‘that promises realistically to work, and promises realistically to work now.’”
But it didn’t work immediately, or anytime soon. A new federal judge, William Brevard Hand, was appointed to the bench in Mobile in 1971 and took over the case. After a three-year period, the parties disagreed on whether a “unitary system” had been established. Additional lawsuits were filed against the school system to seek equality in school administrative and support positions and for elections to the board of school commissioners.
In 1975, the plaintiffs filed a motion for additional relief, noting 11 historically Black schools remained segregated. It wasn’t until 1978 that the first two Black school board members were elected and the parties began to work on a compromise. In 1981, LeFlore High School opened a magnet school within its traditional school and shortly thereafter, the school board tasked community committees with drafting a final plan.
While those efforts were ongoing in 1983, Hand appointed a special master to attempt to negotiate a settlement. In 1985, the court of appeals rejected yet another appeal, as the Department of Justice argued the system still had not achieved unitary status. The next year, Hand clarified there were still shortcomings in both student and principal assignments.
But by 1987, the school board and community committees had conceived a plan the government would consider: converting several majority Black schools into magnet schools with limited enrollment, specialized curriculum and high-performance standards. The magnets would be open to Black and White students, by application only.
The Mobile Plan, as it was known, was approved by Hand in 1988 and within the following four years, magnet schools were opened at Council Traditional School, Phillips Preparatory School, Dunbar School, Old Shell Road School, Chickasaw and Clark. Hand ordered a four-year monitoring period and on March 27, 1997, finally ruled the system had achieved unitary status and ordered the case dismissed. The school board voted along racial lines to accept the settlement.
“I voted against it primarily because the agreement was entered into by the superintendent and attorneys without any discussion and also, I saw nothing that said we would maintain and promote desegregation in our school system going forward,” recalled Hazel Fournier, a Black school board member from 1990 to 2008, and one of two who voted against the settlement. “At that point in time, we were misled and told ‘all is well.’ But all was never well. It still isn’t. We made a concerted effort to set up the magnet schools and that is something to be extremely proud of, but not all the children who want to go are able to get in. I left the board more than 18 years ago but the thing that makes it work is a curriculum every child wants and every child is entitled to.”
Lee Taylor is a career educator in Mobile who helped launch the magnet school concept and was chosen as the first principal of Council Traditional School.
“During the time I was there the Birdie Mae Davis case was always in the background,” she said. “The court would never accept what was submitted and when the central office was faced with another round of busing, they came up with the idea of magnet schools.
“The central office chose the teachers and they developed curriculum and parameters for the magnets. Students had to apply and were selected at random. We had to maintain 50/50 with the races and it was K-5. The teacher core had to be desegregated according to court guidelines. We started in the fall of ’89 and it turned out to be a rousing success.”
Taylor said over time, the school system also became increasingly lax with transfer requests, so students who wanted to try different traditional schools had that option as well.
But today, 23 years after the Birdie Mae Davis case was dismissed, several schools in Mobile County remain identifiable by one race.
Of the system’s 12 high schools, five have more than 90 percent Black students: Blount, LeFlore, B.C. Rain, Vigor and Williams. Four of the system’s 16 middle schools remain identifiably Black: Chastang-Fournier, Mobile County Training School, Pillans and Booker T. Washington.
Of the county’s 50 elementary schools, 15 remain identifiably Black: Calloway-Smith, Craighead, Collins-Rhodes, Forest Hill, George Hall, Grant, Florence Howard, Halloway, John Will, Leinkauf, Maryvale, Morningside, W.D. Robbins, Spencer-Westlawn and Whitley. Meanwhile, Breitling, Dauphin Island, J.E. Turner, Hollinger’s Island and Tanner Williams elementary schools are more than 90 percent White.
Coincidentally, all seven “failing” schools in Mobile County listed on the state’s annual report card issued last November are identifiably Black. The magnet schools, on the other hand, are some of the highest scoring in the county.
“I certainly think equability is what the system wants to achieve,” Taylor said. “My personal opinion is we have to have high expectations for our children because they are very capable, and we shouldn’t cripple them with low expectations. The magnet schools work, but it does leave other schools behind.”
Taylor said the ongoing, unresolved issue of race is hard to ignore.
“Right now, today, you could take the most liberal-minded person dedicated to putting aside race, but when it comes to their kids, if their White child could come to a community school they may be able to love and adore, but they would be in the minority — many of them just can’t do it,” she said. “I don’t know if you want to put that in the paper, but it’s the truth. With the Birdie Mae Davis case, we did not integrate. We desegregated. It’s technical but there’s an important difference.”
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