Allen v. Board of Public Instruction

432 F.2d 362, 1970 U.S. App. LEXIS 7654
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 18, 1970
DocketNo. 30032
StatusPublished
Cited by7 cases

This text of 432 F.2d 362 (Allen v. Board of Public Instruction) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Board of Public Instruction, 432 F.2d 362, 1970 U.S. App. LEXIS 7654 (5th Cir. 1970).

Opinions

GOLDBERG, Circuit Judge:

We consider here the plan of desegregation ordered for Broward County, Florida, by the district court.1 The Broward County School System is a county-wide system serving a largely urban and rapidly growing area of the Florida “Gold Coast.” During the 1969-70 school year the Board of Public Instruction of Broward County operated 115 schools to educate more than 112,000 students, approximately 77 percent white and 23 percent black. Under the Board’s projections for the 1970-71 school year, 116 schools will educate more than 118,000 students, approximately 78 percent white and 22 percent black. A substantial percentage of the students in the Broward County system are transported to and from school by bus.

The present desegregation suit was filed by Negro plaintiffs on January 9, 1970. The first hearing to consider this action was held on January 16, 1970. As a result of facts adduced at that hearing the district court found that the Board was operating a dual school system. The Board was ordered to file by February 16, 1970, “a comprehensive plan to establish a unitary school system” in Broward County. The court suggested that the Board, in formulating its plan, consult with the Florida School Desegregation Consulting Center at the University of Miami.

A plan was duly submitted, objections were filed with the court, and a hearing was held on March 3,1970. At that hearing the court expressed the view that it needed more information to measure the plan against constitutional standards. The Board was directed to “consult and cooperate with and accept the aid of” the Florida School Desegregation Consulting Center in revising its plan “with special emphasis on eliminating the remaining all-black elementary schools.” The Center was requested to make a report with recommendations “designed to assure a desegregation plan which meets the constitutional standard of a unitary system.”

Pursuant to the court’s directives, the Board filed an amended plan and the Center submitted its recommendations. The principal difference between the two proposals was in their approach to the problem of desegregating all-black and overwhelmingly black elementary schools. The Center suggested use of school pairing as a means of desegregating these elementary schools, but the Board’s plan rejected pairing. The plan submitted by the Board merely amended some of the discretionary zone lines which had previously been proposed.

The court held a hearing on April 3, 1970, to consider the Board plan and the Center’s proposal. At that hearing the court heard the views of the Board, the Center, the plaintiffs, and various parties who had been allowed to intervene. On April 30, 1970, the court entered its final order. With regard to the hotly disputed issue of student desegregation in the elementary schools, the court’s order rejected the Center’s approach and accepted the boundaries of school attendance zones as proposed in the Board’s amended plan. From that order plaintiffs have perfected this appeal. An appeal has also been tak[365]*365en by intervenors Blanche Ely High School Parent Teachers Association and Irene S. Clark.

THE DISTRICT COURT’S ORDER

With respect to faculty, staff, transportation, extracurricular activities, and facilities, the desegregation order entered by the district court on April 30, 1970, is unexceptional and is not challenged by any of the parties. Except for the problem noted in the next paragraph of this opinion, the order is in compliance with all of our Singleton 2 requirements, including the requirement that faculty and staff members be assigned in such a manner that the ratio of whites to blacks in each school is substantially the same as the ratio of whites to blacks in the entire system.3 The order further provides for a bi-racial committee of twelve members — six blacks and six whites — to be appointed by the court to make recommendations to the Board with respect to such matters as “the operation of [the] majority to minority pupil transfer rule, the transportation system, and selection of school sites.” The record indicates that this committee has been appointed, and it is apparently functioning now.

Although the parties have not put it in issue, we note one deficiency in the district court’s order. This deficiency has to do with the majority-to-minority transfer provision. The order approves the following transfer rule:

1. Any pupil, with parental consent, shall have the right to transfer from a school at which his race is in the majority to the next nearest school at which his race is in the minority and the board shall furnish free transportation provided the distance involved meets state transportation statutes.
2. Other reassignment requests will be considered providing the request does not involve the transfer of a pupil [from a school] in which his race is in the minority to a school in which his race is in the majority.

This provision is not entirely in accord with our recent decisions. See Hightower v. West, 5 Cir. 1970, 430 F.2d 552; Carr v. Montgomery County Board of Education, 5 Cir. 1970, 429 F.2d 382; Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1970, 430 F.2d 883; Singleton v. Jackson Municipal Separate School District, 5 Cir. 1970, 426 F.2d 1364. On remand the district court’s order must be modified to make it clear that (1) any pupil shall have the right to transfer from a school at which his race is in the majority to any school (not just the next nearest school) at which his race is in the minority and (2) transferees shall be given priority for space.4

STUDENT DESEGREGATION: SECONDARY SCHOOLS

Student assignment to secondary schools — high schools, junior high schools, and middle schools — presents no problem on this appeal. The plain[366]*366tiffs are not unhappy with the court-approved plan insofar as it relates to pupil assignment to secondary schools, and our examination of this aspect of the plan does not disclose any deficiencies to be remedied.

The intervenors, however, raise an issue with regard to the closing of Blanche Ely High School. Blanche Ely, located in a black neighborhood in Pompano Beach, has been a junior-senior high school. During the 1969-70 school year its student enrollment was 100 percent black. For the 1970-71 school year the court approved the Board’s proposal to close the school as a high school facility, send its students elsewhere, and use the building to house the Coleman Elementary School. Intervenors object to the closing of Blanche Ely High School, arguing (1) that the community which has been served by the school will suffer if the school ceases to exist and (2) that the district court was erroneous in finding that the Blanche Ely physical plant is not an adequate secondary school facility.

We are not persuaded that we should order the district court to require the reopening of Blanche Ely as a high school.

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Related

Arthur v. Nyquist
473 F. Supp. 830 (W.D. New York, 1979)
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574 F.2d 804 (Fifth Circuit, 1978)
Smiley v. Vollert
453 F. Supp. 463 (S.D. Texas, 1978)
Carr v. Montgomery County Board Of Education
511 F.2d 1374 (Fifth Circuit, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
432 F.2d 362, 1970 U.S. App. LEXIS 7654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-board-of-public-instruction-ca5-1970.