Onesephor Broussard v. The Houston Independent School District

395 F.2d 817, 1968 U.S. App. LEXIS 6720

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 30, 1968
• Docket: 24018
• Status: Published

Opinions

CONNALLY, District Judge:

This action was filed in the United States District Court for the Southern District of Texas as a suit for injunction against the Houston Independent School District. The plaintiffs are a number of pupils of that District, of the colored race, who have filed the proceeding as a class action. Its purpose is to restain the School District and its officers and employees from acquiring and condemning land, from soliciting bids, accepting bids or distributing funds, letting contracts or doing any other acts in furtherance of an extensive program for the construction of new schools and the improvement and modernization of other schools within the District. This relief was sought upon the allegation that the program of new construction and rehabilitation — in particular the location of a number of new schools — was designed by the Board to promote and to perpetuate de facto segregation in the schools. It was alleged that such de facto segregation deprived the minor plaintiffs of their right to attend an integrated school, and thus deprived them of due process and equal protection of the laws. After a full hearing consisting of seven trial days and including an inspection by the trial judge^{1 2}of some 17 locations, including the four or five most vigorously attacked by the plaintiffs, the injunctive relief was denied.⁸ We affirm.

To bring the issues thus presented into proper focus, some background is necessary. The Board of Education of the Houston Independent School District is composed of seven elected members. It is charged by law with the operation and maintenance of the public school system within its geographic limits. This is an area of approximately 311 square miles, including most of the Houston, Texas metropolitan area. In excess of one million persons reside within its geographic boundaries. Approximately 230,000 scholastics attend its schools, with an average increase of approximately 10,000 students per year. It is the sixth largest school district in the nation. At the time of trial, it operated in excess of 200 schools (elementary, junior high and high schools), located throughout the District.

At the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Houston schools were completely segregated by state law, with a dual boundary system. Following Brown, on December 26, 1956 a suit was filed in the United States District Court for the Southern District of Texas (C.A. 10444, Ross v. Board of Trustees, Houston Independent School District) to desegregate the Houston schools. Following a series of hearings the District Court entered an order directing that the schools be desegregated on a one-grade-per-year basis, beginning with the school year of September 1960, with complete desegregation to be effected by 1971. On appeal, this action of the trial court was affirmed [Houston Independent School District v. Ross, 5 Cir., 282 F.2d 95 (1960)]. Since that time the plan of desegregation has been accelerated, in large measure by voluntary action by the Board,³ so that at the time of trial (June 1966) only the ninth grade remained segregated, and with that remaining vestige to be eradicated beginning with the school year of September 1967.⁴

The record shows that there is in operation a freedom of choice plan, pursuant to which a stúdent, regardless of his race or place of residence, may register at any school within the District, merely by notifying the school authorities of the choice, and by having the student appear at the school of his choice on opening day.⁵

While it would appear at first blush that such a plan would be calculated to lead to overcrowding of some of the more popular schools, the Board’s experience has shown that in large measure the students prefer to attend the school in proximity to their homes, and in no instance had admission been denied to a school of one’s choice by reason of overcrowding.

With some variations due to population densities, it has been the policy of the Board to space the location of its elementary schools at intervals of approximately one mile; junior high schools at intervals of two miles; and senior high schools at three mile intervals throughout the District. Thus inevitably many of the schools are located in predominantly colored residential sections, others in predominantly white residential sections, and still others in areas of a mixed or commingled racial pattern.® Similarly, the new construction and renovation is even-handedly applied throughout the District, some in white, some in negro and some in commingled areas. As most of the scholastics, regardless of their race, prefer to attend the school in their immediate vicinity,^{6 7} the racial composition of the student body of each school reflects, in general, the racial composition of the neighborhood wherein such school is located.

The need for the construction program is not denied. It is undisputed that many of the existing school facilities are grossly overtaxed; some areas of rapidly increasing population are inadequately served, or served not at all.

On May 19, 1965, the voters of the Houston Independent School District by popular election authorized the issuance of some §59 million in bonds for construction purposes. The program contemplated the construction of a number of new schools, some at new, others at old sites; the construction of new classrooms, the addition of cafeterias, the enlargement of campuses, etc.; and the repairing and refurbishing of existing facilities at still other locations. Some fifty schools were involved in the project.

While this was the largest single bond issue for this purpose in the Board’s history, experience had shown that substantial new construction was necessary at intervals of approximately four years. Preceding issues had been in the amount of §39 million in 1963 and in the amount of §32 million in 1959.

This was the thrust of plaintiffs’ case. After developing the fact that certain schools in areas of dense colored population were overcrowded, and that the construction program contemplated the relief of this situation by the erection of new schools close by, or the enlargement of existing facilities, the testimony of several sociologists and psychiatrists was offered. These witnesses, all eminently qualified in their fields, testified in substance that a colored child would not receive as good an education attending a completely, or predominantly, colored school as he would attending a more thoroughly integrated school.⁸ Hence the argument was advanced that the construction of a new school in an area of dense negro population, or making an old school more serviceable, more efficient, or more attractive, would, in effect, constitute a denial to the negro child residing in such area of the integrated-type education to which he was entitled.

Despite their pedagogic attainments, none of these witnesses had any experience as a school administrator. They had little familiarity with the overall building program. No one could or would venture a suggestion as to where or how any one of the questioned sites should be relocated. They showed little awareness of any factor to be taken into account in the location of a school other than the racial composition of the area. The only answer which these witnesses could offer to the question as to how they would solve the problem of locating the new schools was to say that they should not be located in a predominantly negro area;⁹ and to say further that if given time they (the experts) could no doubt find a better location.

The defense was that the policy of the School Board, past and present, was to build the schoools where they were needed, i. e., where they would be most convenient for the students, particularly those of tender years. It was shown that in addition to the need for a school in a given area, many considerations came into play in the selection of a particular site. Among others were (a) economics — -in some cases the Board, with foresight, had previously acquired property not then needed, but held for future use which might profitably be availed of at this time, (b) accessibility and convenience — including the condition of the streets, the avoidance of traffic hazards, etc., and (c) coordination with the City Planning Commission, with realtors and developers planning new subdivisions and developments, where large population increases might be anticipated. On abundant and convincing evidence, Judge Hannay found that the Board had been guided only by such proper considerations as these, and denied relief. Deal v. Cincinnnati Bd. of Ed., 369 F.2d 55 (6th Cir. 1966); Clark v. Board of Educ. of Little Rock, 369 F.2d 661 (8th Cir. 1966); Sealy v. Dept. of Public Instruction of Pa., 252 F.2d 898 (3rd Cir. 1958).

When carefully analyzed, the plaintiffs’ position is simply this. No new schools should be built, or old schools improved, in densely populated colored areas. The child resident in such area, regardless of his wishes, of necessity must be required to attend a school in some other section with a relatively high ratio of colored-to-white students. Considerations of convenience, of traffic hazards, or the wishes of the student and his parents should be disregarded. Such child simply would have to attend a high ratio colored-to-white school, and would be required to do this only because he was a negro.

The Constitution does not require such a result, and we entertain serious doubt that it would permit it. Racial imbalance in a particular school does not, in itself, evidence a deprivation of constitutional rights. Zoning plans fairly arrived at have been consistently upheld, though racial imbalance might result. Swann v. Charlotte-Meeklenberg Bd. of Ed., 369 F.2d 29 (4th Cir. 1966); Springfield School Committee v. Barksdale, 348 F.2d 261 (1st Cir. 1965); Wheeler v. Durham City Board of Education, 346 F.2d 768 (4th Cir. 1965); Gilliam v. School Board of City of Hopewell, Virginia, 345 F.2d 325 (4th Cir. 1965); Downs v. Board of Ed. of Kansas City, 336 F.2d 988 (10th Cir. 1964); Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963).

Houston has not adopted a zoning plan. Rather, under the Houston plan, a child may attend the school of his choice. Those negro children who wish to attend a school some distance from their homes, with a high colored-white ratio, may do so. But those negro children who wish to attend a school close to their homes have constitutional rights, too; and they well might assert such rights against a School Board which refused to construct a needed school in their area simply because it would be attended largely by negro students. This would be discrimination with a vengeance, based solely on account of race. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686 (1954). And would it not constitute discrimination to hold, as plaintiffs would have us hold, that every child in Houston may attend the school of his choice — chosen, perhaps, because it is convenient, because his best girl attends, because it has a good football team, or for any other sufficient reason — except those children living in the Fifth Ward; and to hold that they must attend the school chosen for them because of what others have determined to be a favorable colored-white student ratio ?¹⁰ In their zeal to press for integration of the races at all levels and in all things — scholastic, business, social, marital — many persons, some of good will, completely lose sight of the rights of those who do not desire to be integrated at the moment. The Constitution protects that right, also. The recognition given by Court decree and by statute in recent years to the negro’s constitutional freedom from enforced segregation in the field of public education, public transportation, voting, jury service and in related areas is to a privilege which he may enjoy. But integration, at these levels, is not a concept to which, like Procrustes’ bed, every individual must be fitted, regardless of his desires. If a negro prefers to ride in the rear of the bus today, he may not be compelled to take a forward seat. If he wishes to vote, he may; but he may not be required to cast his ballot by those who feel it would be to his, or their, benefit that he do so. Of most recent recognition, he may intermarry with one of another race.¹¹ The Constitution affords him these rights, not recognized until recently. It does not impose an obligation on him to exercise-them. It is for him to decide whether it be to his advantage. The individual is still the master of his fate.¹²

The validity of the defendant Board’s freedom of choice plan is attacked by the plaintiffs. It is argued that when new schools are completed in the colored sections, they will be too convenient and too attractive; and under the freedom of choice will tend to produce a high incidence of de facto segregation. Hence we observe that a freedom of choice plan- — -fairly and non-discriminatorily administered — has had the specific approval of this court as recently as the en banc consideration of United States v. Jefferson County Bd. of Ed., 380 F.2d 385 (5th Cir. 1967), where the court said:

“Freedom of choice is not a goal in itself. It is a means to an end. A schoolchild has no inalienable right to choose his school. A freedom of choice plan is but one of the tools available to school officials at this stage of the process of converting the dual system of separate schools for Negroes and whites into a unitary system. The governmental objective of this conversion is — educational opportunities on equal terms to all. The criterion for determining the validity of a provision in a school desegregation plan is whether the provision is reasonably related to accomplishing this objective.” ¹³

While we reiterate that “a schoolchild has no inalienable right to choose his school”, we add the corollary that where the law or rules of the School Board afford this right to others,¹⁴ it may not be denied to the negro child because of his race.

Indeed, under the Houston plan, as described by the school authorities, it would appear that an “integrated, unitary school .system” is provided, where every school is open to every child. It affords “educational opportunities on equal terms to all.” That is the obligation of the Board.¹⁵

The action of the trial court was right, and is

Affirmed.

1 . The Honorable Allen B. Hannay, an able and experienced trial judge.

2 . The District Court opinion is reported 262 F.Supp. 266 (1966).

3 . At least such action was “voluntary” in the sense that it was not court ordered.

4 . Additionally, the Board had taken steps to integrate its school faculties and its athletic program, each of which had until recently remained largely segregated.

5 . This was true at the time of trial for all grades except the ninth, and, as stated, this exception expires with the 1966-67 school year.

6 . Examples of schools within “fringe areas” and having approximately equal numbers of white and negro students are McGregor Elementary, Kashmere Gardens High, Lockett Junior-Senior High, Rogers Junior High.

Brock Elementary School furnishes an interesting example of the effect which a change in residential pattern will have on a school. Originally attended principally by white children, the number of negro children increased as the complexion of the neighborhood changed from white to colored. Now it is predominantly negro. Another interesting example of a mixed racial pattern is that of McReynolds School. It is approximately 49% Latin-American, 49% Anglo-American, and 2% negro.

7 . This is the testimony of plaintiffs’ witnesses, and confirmed by School Board records.

8 . These witnesses further testified that the Board should take as its objective the achievement of the same white to colored ratio in each school as prevailed in the overall census of the scholastics within the District (namely 70% white, 30% negro). They further testified that this should be achieved by bussing the students outside of their residential areas, if other expedients were ineffective.

9 . These witnesses all seem to have a great affinity for the word “ghetto”. They repeatedly referred to certain sections of this city by that term. Judge Hannay found no ghetto-type conditions in the vicinity of any of the sites which he visited.

10 . Bradley v. School Board of City of Richmond, 345 F.2d 310 (4th Cir. 1965).

11 . Loving v. Commonwealth of Virginia, 388 U.S. 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010 (June 12, 1967), where the Court states, “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” (Emphasis added.)

12 . “It is the individual who is entitled to the equal protection of the laws.” McCabe v. Atchison, Topeka & Santa Fe R. Co., 285 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).

13 . And see the language of Judge Wisdom, speaking for this Court in Singleton v. Jackson Municipal Separate School District, 355 F.2d 865 (1966), at p. 871:

“At this stage in the history of desegregation in the deep South a ‘freedom of choice plan is an acceptable method for a school board to use in fulfilling its duty to integrate the school system.’ ”

and cases there cited.

14 . gucli is the case here. The plaintiffs do not challenge the freedom of choice as applied to white students, nor question the new construction in white or in mixed residential areas.

15 . United States v. Jefferson County Bd. of Ed., supra, 380 F.2d p. 390, en banc consideration.