Montgomery County Board of Education v. Carr

402 F.2d 782

Opinions

THORNBERRY, Circuit Judge

(dissenting) :

The imposition of a specific ratio for each school as the ultimate objective of faculty integration is a new step for this Circuit, but it represents the considered judgment of a district judge who was familiar with the Montgomery schools, had heard testimony, and was making an honest effort to advance the conversion to a unitary racially nondiscriminatory system as required by the Constitution. Having found the objections to this part of the decree rather unpersuasive,¹ I would affirm the district court. To the extent that the majority have entered modifications, I respectfully and in all deference dissent.

In Jefferson County, this Court stated the importance of faculty integration as forcefully as our language permits:

Yet until school authorities recognize and carry out their affirmative duty to integrate faculties as well as facilities, there is not the slightest possibility of their ever establishing an operative nondiscriminatory school system.

372 F.2d at 892. The general obligations of local boards were articulated, but the formulation of more specific provisions, 1. e., provisions that would ultimately get the job done, was left to the boards and district courts:

It is essential that school officials (1) cease practicing racial discrimination in the hiring and assignment of new faculty members and (2) take affirmative programmatic steps to correct existing effects of past racial assignment. If these two requirements are prescribed, the district court should be able to add specifics to meet the particular situation the case presents. (Emphasis added.)

372 F.2d at 893. In this case, the district judge saw in the record a lack of progress in the crucial area of faculty integration 2 and a need for specific directions. His solution was to set a three-to-two ratio as the ultimate objective for each school, and I see no basis in the record or the cases for modifying his determination. To be sure, he was experimenting, but I believe this to be experimentation within the spirit of Jefferson County.

I do not regard United States v. Board of Education of Bessemer as good authority for eliminating the numerical ratios. While language in that opinion suggests the Court was not disposed to deviate in either direction from the Jefferson decree, it must be remembered that the district judge had not directed the board to go beyond the stage of allowing voluntary transfers of teachers willing to teach in schools of the opposite race. Being unfamiliar with the school system and having before it a record over a year old, the appellate court could do no more than impose the Jefferson decree with emphasis on the point that the school board must reassign teachers if the desired results are not achieved through voluntary transfers. Unlike a district judge who has detailed firsthand knowledge of schools and school officials in his area, our Court simply is not equipped at this time to determine specific objectives. Where a district judge has formulated specific provisions on the basis of a record, it is contrary to our decisions to eliminate them in favor of more general provisions. As stated by this Court in a civil rights case of another kind, a district court “has not merely the power but the duty to render a decree which will so¹ far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Pullum v. Greene, 5th Cir. 1968, 396 F.2d 251 [June 18, 1968], quoting from Louisiana v. United States, 380 U.S. 145 at 154, 85 S.Ct. 817 at 822, 13 L.Ed.2d 709.

Footnotes

1

. The school board acknowledges that it must desegregate faculty so that no school is identifiable as being tailored for a heavy concentration of Negro or white students, but says that specific ratios are not required by the cases and would be achieved at the cost of quality education. Also, it is predicted that there will be a general exodus of teachers to other parts of the state. The latter point seems to assume that which is not the case, namely, that school boards in other parts of the state are not obligated to integrate the faculty of each school. As I try to show by this dissent, nothing in the cases precludes numerical ratios. Indeed, the cases require district courts to devise specific provisions to implement the general requirements of Jefferson. The final argument that quality education will be sacrificed seems to be based more on speculation than evidence. I would point out that the district court’s order requires by way of a final objective that the ratio of white to Negro teachers in each school be “substantially the same as it is throughout the system.” Once the job has been largely accomplished, i.e., once the three-to-two ratio has been approached in each school, I think the language of the decree leaves room for flexibility based on administrative necessity.

2

. The latest figures indicate that 39 of 1,-365 teachers in the system are teaching in schools of the opposite race.

1

. United States v. Jefferson County Board of Educ., 5 Cir., 1966, 372 F.2d 836 (Jefferson I) aff’d en banc, 5 Cir., 1967, 380 F.2d 385 (Jefferson IX), cert. denied sub nom., Caddo Parish School Bd. v. United States, 1967, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103.

2

. United States v. Board of Educ. of Bessemer, 5 Cir., 1968, 396 F.2d 44, [June 3, 1968].