B. Lee Allen v. The Asheville City Board of Education, a Public Body Corporate

434 F.2d 902, 1970 U.S. App. LEXIS 6671
CourtCourt of Appeals for the Fourth Circuit
DecidedNovember 2, 1970
Docket14497
StatusPublished
Cited by25 cases

This text of 434 F.2d 902 (B. Lee Allen v. The Asheville City Board of Education, a Public Body Corporate) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B. Lee Allen v. The Asheville City Board of Education, a Public Body Corporate, 434 F.2d 902, 1970 U.S. App. LEXIS 6671 (4th Cir. 1970).

Opinion

CRAVEN, Circuit Judge:

This is another school case, but a distinctive one. In Asheville, North Carolina, there are neither black schools nor white schools, just schools. Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). The Ashe-ville City Board of Education operates 12 schools, the characteristics of which are set out in the margin. 1 According to the Chairman of the Board, the purpose of the school board’s plan, approved by the district court, was to “eliminate the all-white school” and to “eliminate all segregated schools and to balance the racial mix as nearly as possible.” That the purpose has been fully achieved is obvious from an examination of the racial characteristics of each school set out below. The population ratio throughout the school system is 30 percent black and 70 percent white.

In Chambers v. Iredell County Board of Education, 9 Cir., 423 F.2d 613 (1970), we expressed doubt “that many school systems have achieved a higher degree of integration than presently prevails in Iredell County.” Asheville tops Iredell. Doubtless Asheville is at or near the pinnacle of arithmetical desegregation in America.

I.

We do not yet know to what extent the inferior federal courts must examine the minutiae of integration in the schools. After the Supreme Court established “the fundamental principle that racial discrimination in public education is unconstitutional * * * ”, Brown v. Board of Education of Topeka, 349 U.S. *904 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the Court was silent for some eight years with respect to the application of the principle. 2 In Goss v. Board of Education of Knoxville, Tennessee, 373 U. S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963), the Court destroyed the minority to majority transfer privilege which had served as an escape hatch for the few white students who had been assigned to predominantly Negro schools. One year later the Court in Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), nullified the tuition grant scheme for frustrating school desegregation, and a year later in Bradley v. School Board of City of Richmond, Virginia, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965), the Court indicated that integration of teaching staffs is an essential step in the abolition of a dual school system. No other pronouncements were forthcoming from the Court for another three-year period until a trilogy of decisions announced in 1968 undertook to define “the thrust of Brown 11” in light of contemporary circumstances. Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education of Gould School District, Arkansas, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Board of Commissioners of Jackson, Tennessee, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). It was held that “[sjchool boards ? * * operating state-compelled dual systems were * * * clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 437, 438, 88 S.Ct. 1689 (1968). Mere adoption of a freedom of choice plan of operation was ruled to be insufficient to meet this aff irmative duty; rather, the school boards must “come forward with a plan that promises realistically to work, and promises realistically to work now,” Id. at 439, 88 S.Ct. at 1694, meaning, apparently, that it must “work” by producing substantially integrated student bodies, faculties and programs in the schools. Although the Court rejected freedom of choice programs in all three of the school systems involved in the cases, the Court did not hold that choice plans are unconstitutional per se, but rather that such a plan is not acceptable if it has failed to eliminate the dual school system in fact, and if “there are reasonably available other ways * * * promising speedier and more effective conversion to a unitary, non-racial school system, * * *” Id. at 441, 88 S.Ct. at 1696.

The last word spoken by the Court is that in Northcross v. Board of Education of Memphis, Tennessee City Schools, 397 U.S. 232, 90 S.Ct. 891, 25 L.Ed.2d 246 (1970). In a concurring opinion the Chief Justice stated that a unitary school system had been defined by the Court to be “one ‘within which no person is to be effectively excluded from any school because of race or color’ ”, citing Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). If that is the definition then the phrase in Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 88 S.Ct. 1689 (1968), “without a ‘white’ school and a ‘Negro’ school, but just schools” would appear to be exhortation.

With this background, it is plain to see that the Asheville City School Board has gone further down the road toward désegrégatión than any school board has ever been compelled to go, and probably much further than could be required. Although no one can say with any degree of certainty that there may not be some all-black and/or all-white schools within a unitary system, the Asheville Board *905 has chosen that there be none. Although no one can say with certainty that any particular racial balance must be achieved, the Asheville Board has chosen parity. The questions characterized by the Chief Justice in Memphis as being unresolved have been answered by the Asheville City School Board favorably to integration. 3

II.

Able counsel for plaintiffs are unable to fault the Board's plan other than a complaint with respect to the closing of two previously all-black schools and the impact of their closing, in the context of the rest of the plan, upon black students.

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Bluebook (online)
434 F.2d 902, 1970 U.S. App. LEXIS 6671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/b-lee-allen-v-the-asheville-city-board-of-education-a-public-body-ca4-1970.