ELLIS, District Judge.
Defendant, Orleans Parish School Board, moves for a new trial of the issues decided by the April 9, 1962, order
of this Court, 204 F.Supp. 568 expanding the order of May 16, 1960, to include desegregation of the first six grades of defendant’s schools and enjoining the use of the Louisiana Pupil Placement Law
in defendant’s schools so long
as defendant maintains a dual school system based on race. Defendant assigns various errors of fact and law in the April 9 order. There is no serious contention in defendant’s motion or in its argument before the Court that proper disposition of this motion necessitates the taking of new testimony.
In the main defendant challenges the ultimate determinations of fact and law made by this Court on the prior record. A full and extensive trial with adequate briefing was given on first hearing and this Court can find no reason for reopening the hearing.
However, a Rule 59
motion for new trial may result in alteration of the findings and judgment without taking new testimony.
Moreover, this Court as presently constituted is competent to consider this motion and direct whatever relief or alteration it deems necessary.
The peculiar circumstances of this case, necessitating periodic full trials, the constant supervision of the Court,
and the ever-present balancing of individual and public interests
demand that this Court be able to examine what it must supervise and adjust according to the law and its allowable discretion.
Defendant’s first assignment of error is that this Court as previously constituted erred in finding that the separate school facilities provided for white and negro children in Orleans Parish were unequal. Therefore, defendant concludes, expanded desegregation based on such finding is erroneous.
The proposition presents the serious question of whether the existence of separate but equal facilities is an allowable consideration in granting delay of desegregation under the “all deliberate speed” test of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. In the second Brown decision the Supreme Court set down the allowable limits of delay.
Among the allowable considera
tion were “problems related to administration, arising from the physical condition of the school plant, the school transportation system, (and) personnel.” The implication is clear that where present facilities were incapable of immediate integration because of consequent overcrowding, or where sudden shifting of present pupil allotment would overtax personnel, a school board would be allowed time to work out a plan of physical equalization “on a non-racial basis.” However, there is nothing to suggest that a school board could constitutionally continue separate but equal facilities under the umbrella of the “deliberate speed” rule when it is admitted that negroes are living relatively near white schools which are below capacity. It should be noted that the condition of the Orleans Parish Schools is virtually the same as the condition of the schools in the cases which came before the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. The Supreme Court was unequivocal in its expression: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place.” Brown v. Board of Education, supra at 495, 74 S.Ct. at 692. The Fifth Circuit in the infancy of desegregation, held that existing separate but equal facilities were not grounds for dismissal of a desegregation suit for prematurity.
Defendants do not direct the Court’s attention to any case in which separate but equal facilities were an allowable consideration for delay under the “all deliberate speed” mandate, and we can find none. It is not within the power of this Court to perpetuate a repudiated constitutional doctrine by imposing it as a check rein on a superceding mandate of the Supreme Court.
The Board’s second challenge is that it has been complying with the Brown mandate by making a prompt and reasonable start towards desegregation. The Board alleges good faith compliance with the Brown order and concludes that the Board, not this Court, is the one to make plans to effectuate desegregation. A brief history of the law and the history of the case will illuminate the proposition. In the second Brown decision the Supreme Court stated that “ * * * the (district) courts will require that the (school boards) make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling.
Once a start has been made
the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the (school boards) to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.”
(Emphasis supplied). And further: “(The District Courts) will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.”
Subsequently in Cooper v. Aaron, 358 U.S. 1, 7, 78 S.Ct. 1401, 3 L.Ed.2d 5, the Court ordered that “ * * * (A) District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the pres
ent nonsegregated admission of all qualified Negro children. In such circumstances, however, the courts should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation, and had taken appropriate steps to put their program into effective operation.” And finally, “State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.”
There can be little doubt that the original conception of' the Supreme Court was that desegregation would be implemented by the school boards through plans devised by the boards and supervised by the District Courts.
The history of desegregation in New Orleans proves that this was not to be the case here.
The implementing decision in Brown was handed down on May 31, 1955.
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ELLIS, District Judge.
Defendant, Orleans Parish School Board, moves for a new trial of the issues decided by the April 9, 1962, order
of this Court, 204 F.Supp. 568 expanding the order of May 16, 1960, to include desegregation of the first six grades of defendant’s schools and enjoining the use of the Louisiana Pupil Placement Law
in defendant’s schools so long
as defendant maintains a dual school system based on race. Defendant assigns various errors of fact and law in the April 9 order. There is no serious contention in defendant’s motion or in its argument before the Court that proper disposition of this motion necessitates the taking of new testimony.
In the main defendant challenges the ultimate determinations of fact and law made by this Court on the prior record. A full and extensive trial with adequate briefing was given on first hearing and this Court can find no reason for reopening the hearing.
However, a Rule 59
motion for new trial may result in alteration of the findings and judgment without taking new testimony.
Moreover, this Court as presently constituted is competent to consider this motion and direct whatever relief or alteration it deems necessary.
The peculiar circumstances of this case, necessitating periodic full trials, the constant supervision of the Court,
and the ever-present balancing of individual and public interests
demand that this Court be able to examine what it must supervise and adjust according to the law and its allowable discretion.
Defendant’s first assignment of error is that this Court as previously constituted erred in finding that the separate school facilities provided for white and negro children in Orleans Parish were unequal. Therefore, defendant concludes, expanded desegregation based on such finding is erroneous.
The proposition presents the serious question of whether the existence of separate but equal facilities is an allowable consideration in granting delay of desegregation under the “all deliberate speed” test of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. In the second Brown decision the Supreme Court set down the allowable limits of delay.
Among the allowable considera
tion were “problems related to administration, arising from the physical condition of the school plant, the school transportation system, (and) personnel.” The implication is clear that where present facilities were incapable of immediate integration because of consequent overcrowding, or where sudden shifting of present pupil allotment would overtax personnel, a school board would be allowed time to work out a plan of physical equalization “on a non-racial basis.” However, there is nothing to suggest that a school board could constitutionally continue separate but equal facilities under the umbrella of the “deliberate speed” rule when it is admitted that negroes are living relatively near white schools which are below capacity. It should be noted that the condition of the Orleans Parish Schools is virtually the same as the condition of the schools in the cases which came before the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. The Supreme Court was unequivocal in its expression: “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place.” Brown v. Board of Education, supra at 495, 74 S.Ct. at 692. The Fifth Circuit in the infancy of desegregation, held that existing separate but equal facilities were not grounds for dismissal of a desegregation suit for prematurity.
Defendants do not direct the Court’s attention to any case in which separate but equal facilities were an allowable consideration for delay under the “all deliberate speed” mandate, and we can find none. It is not within the power of this Court to perpetuate a repudiated constitutional doctrine by imposing it as a check rein on a superceding mandate of the Supreme Court.
The Board’s second challenge is that it has been complying with the Brown mandate by making a prompt and reasonable start towards desegregation. The Board alleges good faith compliance with the Brown order and concludes that the Board, not this Court, is the one to make plans to effectuate desegregation. A brief history of the law and the history of the case will illuminate the proposition. In the second Brown decision the Supreme Court stated that “ * * * the (district) courts will require that the (school boards) make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling.
Once a start has been made
the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the (school boards) to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date.”
(Emphasis supplied). And further: “(The District Courts) will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system.”
Subsequently in Cooper v. Aaron, 358 U.S. 1, 7, 78 S.Ct. 1401, 3 L.Ed.2d 5, the Court ordered that “ * * * (A) District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the pres
ent nonsegregated admission of all qualified Negro children. In such circumstances, however, the courts should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation, and had taken appropriate steps to put their program into effective operation.” And finally, “State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.”
There can be little doubt that the original conception of' the Supreme Court was that desegregation would be implemented by the school boards through plans devised by the boards and supervised by the District Courts.
The history of desegregation in New Orleans proves that this was not to be the case here.
The implementing decision in Brown was handed down on May 31, 1955. On February 15, 1956, the Orleans Parish School Board was ordered to desegregate with all deliberate speed.
When no independent action was taken by the Board, this Court, on July 15, 1959, ordered the Board to file a plan of desegregation by May 16, 1960. When the Board failed to do that, this Court ordered the desegregation under its own plan on May 16, 1960. On August 27, 1960, a three-judge court ordered that the May 16, 1960, order be implemented.
The facts, as they develop, show that the Board, instead of implementing the Court’s plan, by allowing each child entering first grade to choose the school nearest his home, at his option, proceeded to assign all white children to white schools and all negro children to negro schools and allowing some negroes to transfer to previously all white schools after processing under the Louisiana Pupil Placement Law and such additional plans as the Board adopted.
Furthermore, the Board indicated at the hearing that it did not intend to file any desegregation plan with the Court in its foreseeable future.
It is an irresistable conclusion that the Board has never actually complied with any order of this Court (except as hereinafter shown by recent board action), nor had it ever entered into compliance with the Brown mandate as originally conceived. The Board seeks to excuse itself by referring to the efforts of the Louisiana Legislature to deter desegregation. The Board says that it was occupied with freeing itself from “massive resistance” legislation. While the circumstances may have been more extreme, the Little Rock School Board, faced with virtual civil war, likewise pleaded its good faith efforts at compliance and asked for more time to test Arkansas’
brand of massive resistance in the courts. The Supreme Court stated and disposed of the issue as follows:
“We are urged to uphold a suspension of the Little Rock School Board’s plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.”
While good faith is commendable, it is not a legal position.
This in no way seeks to impugn the Orleans Parish School Board which has provided such able leadership in times and places where leadership has been a scarcity. This discussion seeks only to illustrate where the duty and power to formulate plans for desegregation has, by law, come to rest. Within the duty to desegregate and to apply the rule of “all deliberate speed” it is the obligation of this Court to order a specific plan of integration which must be adhered to by the Board.
Since it has not been the lot of this case to proceed as the Supreme Court envisioned it would, then it must proceed to the ultimate desegregation of the Orleans Parish Public Schools through court-formulated plans. The Board’s good faith efforts have not legally divested this Court of its duty to formulate such a plan.
Very recently (May 14, 1962) the Orleans Parish Public School Board adopted a resolution of compliance with the order of May 16, I96 0,
and this is the very first affirmative compliance with Brown.
In its motion for a new trial the Board avers that the Louisiana Pupil Placement Law may be validly applied under the circumstances that heretofore existed in New Orleans. At the outset, the Board observes that the statute is constitutional on its face.
No one disputes this and the point was not at issue in the former trial of the case.
However, the application of the statute presents quite another case.
In New Orleans the statute was used solely for transfer, rather than
assignment
and transfer as required by the statute.
The statute was applied solely to negroes and in the context of a bi-racial system. It goes without saying that although “(the) School Placement Law furnishes the legal machinery for an orderly administration of the public schools in a constitutional manner,”
■ — •
“(the) obligation to disestablish imposed segregation is not met by applying placement or assignment standards, educational theories or other criteria so as to produce the result of leaving the previous racial situation existing as it was before.”
If pupil assignment cannot be made on the basis of race,
it irresistably follows that the prerequisite to assignment may not be applied along racial lines.
It does no good to say that the Pupil Placement Law is applied solely to transferees without regard to race when the procedure is so devised that the transferees are always negroes.
“If the criteria should be applied only to negroes seeking transfer or enrollment in particular schools and not to white children, the use of the criteria could not be sustained.”
At this juncture all pretense of constitutional application dissolves.
One issue seems settled beyond question. A Pupil Placement Law, even uniformly applied, does not represent compliance with the order of Brown. “That law (Pupil Placement) and the resolution do no more than furnish the legal machinery under which compliance may be started and effectuated. Indeed, there is nothing in either the Pupil Assignment Law or the Implementing Resolution clearly
inconsistent with a continuing policy
of compulsory racial segregation.”
An active plan of desegregation is the index of compliance. “Ob
viously the maintenance of a dual system of attendance areas based on race offends the constitutional rights of the plaintiffs and others similarly situated and cannot be tolerated. * * * In order that there may be no doubt about thfe matter, the enforced maintenance of such a dual system is here specifically condemned.”
“The Pupil Assignment Law might serve some purpose in the administration of a school system but it will not serve us a plan to convert a biracial system into a non-racial one.”
“Since that decision, (Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873) there cannot be ‘Negro’ schools and ‘white’ schools. There can now be only schools, requirements for admission to which must be on an equal basis without regard to race.”
This Court cannot countenance the present application of the Louisiana Pupil Placement Law in the present status of the Orleans Parish Schools. To believe that desegregation can be effected here with all deliberate speed through application of the Pupil Placement Law is indeed no more than “a speculative possibility wrapped in dissuasive qualifications.”
However, if dual school systems are eliminated and the Pupil Placement Law is administered even-handedly without overtones of race, the constitutional inhibition is alleviated. Once a child is given the opportunity to choose a school on a non-racial basis, he may be segregated according to academic ability. The mechanics of the plan to be constitutionally applied by the Board would also necessitate a dissolution of the dual schools system.
It remains to consider the expanded plan of April 9, 1962. As noted before, the discretion to formulate plans for desegregation has been vested in local officials even if such officials come to be the United States District Court.
All such officials are answerable to the Constitution, the public needs, and physical possibility. A new Court in a ease such as this must respond to these demands as it deems wise and proper, whatever may have gone before. It is in the exercise of that considered judgment that this Court views the present state of the record.
This Court is impressed with the magnitude of the administrative problem of suddenly turning tens of thousands of children free to choose their own schools, leaving the School Board to shepherd them into some workable order. However, the Board now finds itself able to accommodate the administration of the schools with the order of May 16, 1960. With this resolution the Orleans Parish School Board starts active compliance with the order of May 16, 1960. While it does not divest this Court of the duty to formulate plans of desegregation, it is a drastic departure from programs of the past. By this the Board supplements good faith with affirmative performance. The Board’s formal decision to comply with the orders of this Court coupled with the order handed down this day represents, to the Court’s satisfaction, an active plan of desegregation under Brown that will adequately protect plaintiffs’ rights as well as the aspirations for order sought by all reasonable men. The ox’der of May 16, 1960, is surely not full compliance with the mandate of Brown. Therefore, as more rational times settle on New Orleans the moment comes to turn our thoughts to “deliberate speed” once again. It is therefore the order of this Court that the order of April 9, 1962, be and the same is hereby modified as follows:
1) The order to desegregate the first six grades by September 1, 1962, is WITHDRAWN
2) Beginning with the opening of school in 1962, every child in the City of New Orleans entering the first grade
may attend the formerly all-white or formerly all-negro school nearest his home, at his option.
3) Each year, beginning with the opening of school in 1963, the children in one additional higher grade beginning with the second grade may attend the formerly all-white or formerly all-negro school nearest his home, at his option.
4) Children may be transferred from one school to another provided such transfers are not based on consideration of race.
5) Beginning in September of 1963 the dual system of separate geographical districts in the 1st and 2nd grades shall be abolished, and each year thereafter as each succeeding higher grade is integrated the dual system shall be abolished contemporaneously therewith.
6) The Louisiana Pupil Placement Law may be applied to any child only where dual school systems based on race have been eliminated and assignments are made without regard to race.