Donald Jerome THOMAS et al., Plaintiffs-Appellees,
v.
WEST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellants.
No. 28572.
United States Court of Appeals, Fifth Circuit.
March 4, 1970.
Order March 24, 1970.
John F. Ward, Jr., Jack P. F. Gremillion, Atty. Gen. of La., Baton Rouge, La., Samuel Cashio, Dist. Atty., Plaquemine, La., for appellants.
A. P. Tureaud, New Orleans, La., Norman Chachkin, William Bennett Turner, Jack Greenberg, New York City, Patrick C. Hardie, U. S. Dept. of Justice, New Orleans, La., for appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
PER CURIAM:
This case is one of those remanded to the District Court for adoption of a new desegregation plan in Hall v. St. Helena Parish School Board, 417 F.2d 801 (5th Cir. 1969). On remand the School Board was unwilling to submit to the District Court any proposed plan other than the Board's desire to continue operating in substantially the same manner as the Hall case had held unconstitutional. The District Court gave the Board additional time and notified it that a plan proposed by HEW must be put into effect if the Board presented no alternative plan. The Board adhered to its original position. The District Court then ordered the Board to operate the schools under the HEW plan commencing with the 1969-70 school year.
The Board has appealed. The appellees have filed a motion for summary affirmance. We dispose of the case pursuant to Rule 2, FRAP. The Board raises no new legal issues but requests that we overrule or modify prior decisions of this court and disregard mandates of the Supreme Court. Also it asserts that operation under the HEW plan has failed to produce a unitary school system. But that claim has not been presented to or tried by the District Court, which was the proper place for it to be asserted in the first instance. In any event there is no record presented to us on the basis of which we could decide that the assertion of the School Board is or is not correct.
The judgment of the District Court is affirmed.
ORDER
The motion of appellees for double costs and attorneys' fees is denied.
