Hull v. Quitman County Board of Education

1 F.3d 1450

Opinions

EDITH H. JONES, Circuit Judge:

When the school board of Quitman County, Mississippi, voted unanimously to close its only remaining public school with a significant white student population, both black and white parents of students at the school complained. Their school, Crowder Elementary and Junior High, was the most academically proficient and racially balanced school in the district at that time. It was also by far the smallest school in a district chafing from serious financial problems. The district court refused to enjoin Crowder from being closed. The question before us is whether the district court abused its discretion in holding that the school board could choose to close Crowder consistent with its duty under a federal desegregation order. Unpalatable as that choice seems from an educational standpoint, this court sits not to review the wisdom of a school board’s actions, but their constitutionality. We affirm the district court’s order.

I.

The public schools of Quitman County have been operating under a federal court desegregation order since 1969. A 1986 court order permitted the school district to close three of its four formerly all-white schools, Lambert, Marks, and Sledge.¹ Crowder, the fourth, remained open. The district continues to operate three other combined elementary and junior high schools, Southside, Westside, and Falcon, as well as Quitman County High School.

No doubt a major reason schools were closing is that the county’s total population fell from 15,888 in 1970 to 10,490 in 1990. The racial mix remained relatively stable. Of those aged 17 and under in 1970, 33% were white and 67% were black. In 1990, the proportions were 29% and 71%, respectively. But because disproportionately white private schools sprang up after the 1969 desegregation order, by 1990, whites comprised a bare 10% of the district’s 2,164 students.

At Crowder, whites remained a majority of the student population. In March, 1991, when the school board voted to close the school, it had 110 white students (73%) and 40 black students (27%). By contrast, the other three elementary and junior high schools in the district had much larger and overwhelmingly black student populations. At Southside there were 523 black students (90%) and 58 white students (10%); at West-side, 434 black (94%), 28 white (6%); and at Falcon, 436 black (98%), 9 white (2%). At Quitman County High School, 509 students were black (97%) and 17 were white (3%).

Crowder’s enrollment was declining steadily, from 238 students in 1986 to 150 students by 1991. At the district court’s hearing on whether to close Crowder, parents attributed this decline in part to uncertainty over whether the district would keep the school open. The school board had first publicly considered closing Crowder after receiving a consultant’s recommendation in 1989.

Crowder’s academic record is unmatched in Quitman County schools. Its students have fared better than all other students in the district on standardized tests. Its black students also scored significantly higher by standardized measures than other black students in the district.

In late 1990, faced with dire fiscal straits, the Quitman County School Board proposed closing Crowder and sending its students who chose to remain in the public schools elsewhere in the district. Ms. Sandra Biffle, the district’s secretary, testified at the hearing below that closing Crowder would save the district $325,860.00, including savings in teachers’ salaries, maintenance, insurance and repairs. Certain ambiguities and possible omissions from these calculations render uncertain the total amount saved. Nevertheless, the school district argued that its finances would be jeopardized unless it closed Crowder, and the district court agreed with this assessment.

Some of the district’s savings from closing Crowder come from the expected loss of students who officials anticipated would choose to go to private school or would move to an adjoining public school district rather than transfer to one of the other public schools in Quitman County. Biffle stated that the district expected that Crowder’s forty black students would transfer to one of the other three elementary or junior high schools, and nearly all of the 110 white students would drop out of Quitman County schools.

The school board failed explicitly to consider the effect of its decision to close Crowder upon the district court’s longstanding desegregation order. Superintendent Wright testified that the district considered only the potential financial benefit of closing Crowder, not its effect on desegregation. It has never been asserted, however, that the board, three of whose five members are black, decided to close Crowder for the purpose of hindering desegregation.

The appellants, plaintiff-intervenor families of black children attending Crowder, challenged the school district’s decision in federal court, seeking a preliminary injunction barring closure of Crowder. On July 18, 1991, the district court denied the preliminary injunction. This appeal ensued.

II.

Before a preliminary injunction may issue, the plaintiffs must show that (1) there is a substantial likelihood they will prevail ultimately on the merits, (2) there is a substantial danger they will suffer irreparable injury if an injunction does not issue, (3) the threatened injury outweighs any harm to the defendant resulting from the injunction, and (4) the injunction will not harm the public interest. Roho, Inc. v. Marquis, 902 F.2d 356, 358 (5th Cir.1990). The district court concluded that the appellants failed to meet any of these requirements. Whether the injunction was properly denied is tested under an abuse of discretion standard.²

The district court held that the plaintiff-intervenors failed to state a relevant constitutional claim. One black parent who testified at the hearing stated that he wanted his child to continue attending school with white children.³ Other plaintiff parents stated only that they preferred their children to attend Crowder because it was closer to home and a good school. The court construed these parents’ position most generously as a request that it impose a duty on the school board to maintain a system that (a) reflects the racial population of Quitman County in each school and (b) discourages white flight from the schools that remain open. The district court correctly held that the first noted duty does not exist in desegregation law. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 24, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971). We agree that the second duty, which might also be characterized as a duty not to perpetuate or re-establish a dual system, was not violated on the facts of this case.

The Supreme Court has stated that as long as a school district remains under the superintendence of a federal desegregation order, it has a duty “to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system.” Freeman v. Pitts, - U.S. -, -, 112 S.Ct. 1430, 1443, 118 L.Ed.2d 108 (1992). Eliminating unconstitutional separate student attendance patterns has been a keystone of this remedy. Freeman, — U.S. at —, 112 S.Ct. at 1445.⁴ The Supreme Court has recognized, however, that federal court injunctive power “may be exercised only on the basis of a constitutional violation,” and that the “nature of the violation determines the scope of the remedy.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. at 16, 91 S.Ct. at 1276. Consequently, a district court may at some point decline to order “further remedies in the area of student assignments where racial imbalance is not traceable, in a proximate way, to constitutional violations.” Freeman, — U.S. at —, 112 S.Ct. at 1446. The Court also observed that “with the passage of time the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, ...” Id. Freeman placed the burden of proof on the school district to show that a “current imbalance is not traceable, in a proximate way,” to the prior constitutional violation. — U.S. at —, 112 S.Ct. at 1447. Freeman urged an intensely practical, fact-specific approach to these decisions, and it rejected the notion that “awkward,” “inconvenient,” or “even bizarre” measures must be employed to achieve racially balanced school assignments “in the late phases of carrying out a decree, when the imbalance is attributable neither to the prior de jure system nor to a later violation by the school district but rather to independent demographic forces.” — U.S. at —, 112 S.Ct. at 1447. Freeman reinforced the Court’s decision a year earlier to permit a district court to relinquish supervision under a desegregation decree if “the vestiges of discrimination [have] been eliminated to the extent practicable.” Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 249, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (1991).

Freeman and Dowell might be technically distinguished from the case before us on the ground that those cases considered the circumstances under which federal court control of a school district may finally be relinquished. This appeal does not present exactly that issue, for Quitman County has not sought to terminate its desegregation case.⁵ This court used to evaluate termination of desegregation decrees under the global inquiry whether the school district had achieved “unitary” status. See, e.g., Mon-teilh, 848 F.2d at 629 and n. 7 (citing cases). Freeman and Dowell make clear, however, that there is no longer magic in the phrase unitary status, which had spawned much uncertainty and a conflict among the circuits. See Comment, 2 Seton Hall Const. L.J. 337 (1991). Following Freeman, the lower courts have discretion to terminate a desegregation ease if a school board has consistently complied with a court decree in good faith and has eliminated the vestiges of past discrimination to the extent “practicable.” Freeman created a framework in which equitable decrees will not remain in effect perpetually and school districts can be returned to local control. We believe the same considerations—good faith compliance, practicability of further desegregation, and local control— are also pertinent to determining whether a particular school board action, in a district that has long lived with a desegregation decree but failed to seek dismissal of the case, sufficiently comports with the goals of the decree. The tests of practicability and good faith should inform, as they did here, a district court’s exercise of its equitable powers where a desegregation decree has been in effect for some years. Indeed, it would be peculiar if a school district such as Quitman County’s could qualify for termination of its desegregation decree under Freeman and Dowell but, allegedly bowing to older precedents, could not adjust school boundaries to remedy a financial crisis.

But even if we rely upon caselaw that emphasized the duty to desegregate, there has been no hard and fast rule preventing legitimate school closings. The decision to open or close schools, like the reordering of student assignments in Freeman or Dowell, is often undertaken because of changing school populations. Facing this demographic problem in the context of school construction or consolidation decisions, our court has counselled that such decisions may not be used to perpetuate or reestablish the dual system, Monteilh, 848 F.2d at 631, quoting Swann, supra, 402 U.S. at 21, 91 S.Ct. at 1278; Davis v. East Baton Rouge Parish Sch. Bd., 721 F.2d 1425, 1435 (5th Cir.1983). On the other hand, there is no constitutional duty to achieve maximum desegregation or to achieve an ideal racial balance in the schools. Monteilh, 848 F.2d at 632. This court has also recognized limits imposed upon desegregation efforts by population changes and the reality of white flight, holding that “school officials who have taken effective action have no affirmative fourteenth-amendment duty to respond to the private actions of those who vote with their feet.” Ross v. Houston Independent Sch. District, 699 F.2d 218, 288 (5th Cir.1983), citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).⁶

Based on these principles, the Quit-man County School Board had no duty to keep Crowder open in order to maintain one partially integrated school housing fewer than 7% of the district’s students. Crowder’s racial mix was a statistical fluke: even if the entire white school-age population of Quit-man County had attended public school, they still made up only 29% of that population in 1990. No party has asserted that any of the Quitman County schools or their attendance zones were affected by deliberately discriminatory line-drawing at any time since the advent of the desegregation decree. No one has asserted either that the board ever violated the desegregation decree in any other way or that it was motivated by an intent to resegregate when it unanimously decided to close Crowder. Finally, appellants have not demonstrated that the district court’s finding of financial necessity to close Crowder was clearly erroneous.

The next question is whether the board had the duty to close another elementary-junior high school or to seek another remedy for its financial problems in such a way as to maximize the impact on the schools’ desegregation. While the duty to avoid actions that would deliberately reinvigorate segregation remains constant, a school board need not create financially impossible situations or engage in “heroic measures” to comply with that duty. See Freeman, — U.S. at —, 112 S.Ct. at 1447. Although the plaintiff-intervenors assert that the board could have moved more black children to Crowder, increasing its cost-effectiveness, they did not effectively challenge the board’s emphatic denial that it could operate four elementary schools. Yet to keep Crowder open would require either that result or a closure of one of the other three schools, which would precipitate massive student relocations. Crowder’s enrollment had been declining steadily for five years before the court’s hearing on closure. The school board would have been striking in the dark, at best, to order one of the other three, much larger schools closed and to transfer hundreds of children around the county in the hope that white children would continue to attend an expanded Crowder.⁷

Quitman County does not offer the prospect of alternative methods for desegregation that we have discussed in connection with approving the unitary status of school districts such as those in Houston and Fort Worth or in declaring dissatisfaction with the progress of desegregation in Baton Rouge. See, Ross, supra; Flax v. Potts, 915 F.2d 155 (5th Cir.1990); Davis v. East Baton Rouge, supra. The possibility of creating magnet schools, the existence of a more racially balanced overall population, a stable or growing population, a large tax base—none of those factors is present in Quitman County. White school-age pupils had declined to less than 10% of the Quitman County school population at the time of the district court hearing. If the 110 white children all left the public system after Crowder’s closing fewer than 5% white students would remain. The possible reduction from a 10% to 5% white student population, while regrettable, imposes no significant detriment to the pre-existing potential for desegregation.⁸ Conversely, taking costly steps to try to retain the additional 5% of white students at Crowder could achieve only a pyrrhic victory in a virtually all-black school system. Further desegregation of the district is not practicable at this time, while closing Crowder had but a minor impact on the racial balance of the district.

For these reasons, we conclude that plaintiff-intervenors did not establish a substantial likelihood that they could prevail on the merits of their case.

Although their failure on this point is sufficient ground to affirm the district court’s denial of injunctive relief, we also rely upon the court’s assessment of the balance of hardships and the public interest. The court was not clearly erroneous in finding that closing Crowder would enable the district to conserve its scarce financial resources, while leaving the school open would jeopardize the district and thus penalize all of the non-Crowder students. The testimony underlying this finding was earlier noted and, although challenged on some points by plaintiff-intervenors, was not significantly rebutted. Quitman County could not afford to keep open a marginal population school. Doing so would come at the expense of over 90% of the district’s students who did not attend Crowder.

This case closely resembles the recent decision of the Eleventh Circuit that permitted closure of a marginally populated school and its consolidation with another school in the district over the objections that this action violated a desegregation decree. Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090 (11th Cir.1992). Neither there nor here was the board’s decision made in defiance of the decree, and in each case it was not economically or educationally sensible to keep a tiny school open.

CONCLUSION

For the foregoing reasons, the judgment of the district court denying preliminary injunc-tive relief is AFFIRMED.

Footnotes

1

. Apart from these orders, and another entered in 1972, the district court record is sparse. The 1986 order mandated the school board to submit annual reports to the district court to document its progress toward desegregation. The school board submitted its first — and last — report on October 8, 1986. At the hearing to consider closing Crowder, the district's attorney attributed this lapse to forgetfulness and a change of attorneys after 1986.

2

. In another case dealing with the school board’s request for a district court order to consolidate schools, this court reviewed the order under the clearly erroneous standard. Monteilh v. St. Landry Parish Sch. Bd., 848 F.2d 625, 632 (5th Cir.1988). Monteilh is harmonious with previous decisions of our court, e.g. Copeland v. Lincoln Parish Sch. Bd., 598 F.2d 977, 981 (5th Cir.1979) and United States v. Hendry County Sch. Dist., 504 F.2d 550, 554 (5th Cir.1974), which together reviewed the desegregative impact of school opening or closing as a factual finding and the court’s decision to permit such actions under an abuse of discretion standard. See, also, Harris v. Crenshaw County Bd. of Educ., 968 F.2d 1090, 1098 (11th Cir.1992). The procedural posture of this case, hence our standard of review, is similar because the court’s order was denominated as an order (and opinion) denying the preliminary injunction request of the plaintiff-intervenors against the Quitman County School Board.

3

. The court observed that white children do attend the other schools in the county, though in much smaller numbers.

4

. The Court has also considered factors such as a school system’s faculty and staff make-up, transportation, extracurricular activities and facilities critical in determining whether the mandate of desegregation has been met. Green v. New Kent County Sch. Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Freeman v. Pitts, supra, passim.

5

. The dissent takes us to task for applying Freeman and Dowell in what it believes to be a distinguishable situation, that of the closure of a school during an ongoing, albeit petrified, desegregation process, as opposed to termination of the federal decree. We believe those cases state an approach to equitable desegregation decrees which does apply to this case to the extent and for reasons stated in the text. Inconsistently, the dissent eagerly cites concurring opinions from Freeman in support of its position.

6

. The Ross formula for unitary status thus expresses a “practicability” test that the Supreme Court implicitly approved. See Price v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1314 (5th Cir.1991), citing Ross and Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991).

7

. The dissent asserts that there was insufficient evidence in the record to permit the district court to ascertain the potential effects of closing Crowder upon the district's overall desegregation and to consider alternatives to closure. We disagree. The court took testimony from two district representatives and five witnesses offered by the plaintiffs, from which a very complete picture of the district emerges.

8

. In Ross, for instance, this court approved termination of a desegregation decree when 55 out of 226 schools in Houston had a black population exceeding 90%; in Flax, this court held that the Fort Worth Independent School District, third largest in Texas, was unitary despite the existence of 14 out of 98 schools in which there were over 80% black students. 915 F.2d at 160-61. In Flax, as in this case, a large majority of students were minorities and white flight had been significant. 915 F.2d at 162.