Stay of Court of Appeals' judgment affirming District Court's
order directing applicants to take affirmative action to eliminate
all vestiges of discrimination from Texas public schools is denied,
as the order does no more than endeavor to realize the directive of
the Fourteenth Amendment and the decisions of this Court that
racial discrimination in the public schools must be eliminated root
See: 321 F.
and 330 F.
MR. JUSTICE BLACK, Circuit Justice.
The Commissioner of Education of the State of Texas and the
Texas Education Agency make application for a stay of the judgment
of the United States Court of Appeals for the Fifth Circuit
affirming the order of the United States District Court for the
Eastern District of Texas which directed the applicants to take
certain affirmative action to eliminate all vestiges of
discrimination from the public schools within the State. The State
of Texas provides for the supervision of state education and the
distribution of state educational funds through the Texas Education
Agency under the direction of the Commissioner of Education. The
United States brought this action against applicants on March 6,
1970, to enforce Title VI of the Civil Rights Act of 1964, 78 Stat.
252, 42 U.S.C. § 2000d et seq.,
and the Fourteenth
Amendment of the United States Constitution. The District Court, on
April 20, 1971, issued its order directing the Commissioner and the
Texas Education Agency to take certain specified steps to withhold
funds and accreditation from school districts which failed to
Page 404 U. S. 1207
meet their constitutional obligation to eliminate remaining
vestiges of the dual school system. The District Court order dealt
with the areas of student transfers, changes in school district
boundaries, school transportation, extracurricular activities,
faculty and staff practices, student assignments, curricula and
compensatory education. The United States Court of Appeals for the
Fifth Circuit, with certain minor alterations, unanimously affirmed
the order of the District Court. The Commissioner and the Texas
Education Agency then applied to the Fifth Circuit for a stay of
its order pending action by this Court on the applicants' petition
for certiorari yet to be filed. The Court of Appeals refused the
stay. The application for stay has now been presented to me as the
Circuit Justice for the Fifth Circuit.
It would be very difficult for me to suspend the order of the
District Court that, in my view, does no more than endeavor to
realize the directive of the Fourteenth Amendment and the decisions
of this Court that racial discrimination in the public schools must
be eliminated root and branch. Green v. County School Board of
New Kent County, 391 U. S. 430
391 U. S.
-438 (1968); see Swann v. Charlotte-Mecklenburg
Board of Education, 402 U. S. 1
United States v. Montgomery County Board of Education,
395 U. S. 225
(1969). I cannot say that four Members of this Court are likely to
vote to hear this case and undo what has been ordered by the
District Court and Court of Appeals below.
My views need not be expressed at length. The question of
granting certiorari will have to be decided by this Court when the
petition properly reaches us. For me, as one Member of this Court,
to grant a stay now would mean inordinate delay and would
unjustifiably further postpone the termination of the dual school
system that the order below was intended to accomplish. The
Page 404 U. S. 1208
Court's opinion and order are comprehensive and well reasoned.
In my judgment, the facts found by the District Court, which do not
appear to be materially disputed by the applicants, fully justify
Under these circumstances, I deny the stay and let the matter
await final decision before the full Court when the petition for
certiorari is properly presented for consideration. The stay is
It is so ordered.