The Board of Public Instruction of Duval County, Florida v. Daly Braxton and Sharon Braxton, Minors, Etc.

402 F.2d 900, 1968 U.S. App. LEXIS 5667

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 29, 1968
• Docket: 25479_1
• Status: Published

Opinions

WISDOM, Circuit Judge:

In United States v. Jefferson County Board of, Education¹ this Court, sitting en banc, gave a qualified approval to so-called “freedom of choice” plans for desegregating public schools. We noted that the “method has serious shortcomings” and suggested a decree to attempt to overcome these shortcomings.² We pointed out that a freedom of choice plan is “[only] a means to an end”.³ It 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”.⁴ (Original emphasis.) We observed, “The only school desegregation plan that meets constitutional standards is one that works’’.5 (Original emphasis.) School boards “have the affirmative duty under the Fourteenth Amendment” to find a desegregation plan that does work.⁶ Cf. Green v. School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716.

In this case the Board of Public Instruction of Duval County, Florida, combined a geographic attendance zone system with freedom of choice. On principle, the combination would seem to be an improvement over unadulterated freedom of choice.⁷ But the Duval County plan did not work. It resulted only in token desegregation. In particular, the Board’s policy of permitting minority-to-majority transfers pointed toward re-segregation. The district judge was fully aware of the history of the litigation, the ineffectiveness of the plan, and the Board’s lack of enthusiasm for its affirmative duty to desegregate. He issued a decree containing the following provision for majority-to-minority transfers:

B. Minority Transfer Policy. The defendants shall on request permit any student to transfer from a school where students of his race are a majority to any other school within the system where students of his race are in a minority, and they may assign students on such basis.

Duval County School Board attacks this portion of the decree as racially discriminatory. We hold that this provision is a constitutionally valid and appropriate step toward “disestablishing” the dual system of segregated schools that prevails in Duval County.

I.

December 6, 1960, the Negro plaintiffs filed their original complaint asking for desegregation of public schools in Duval County (Jacksonville and its suburbs). After procedural preliminaries, the district court ordered the Board to present a desegregation plan by October 1962. The Board attacked the provisions of the desegregation order (1) prohibiting the assignment of teachers and staff on a racial basis and (2) prohibiting the Board’s “approving budgets, making available funds, approving employment contracts and construction programs” to “maintain or support a school system operated on a racially segregated basis”. We affirmed the judgment below. Board of Public Instruction of Duval County, Florida v. Braxton, 5 Cir. 1964, 326 F.2d 616.

The Board’s plan established geographical school attendance areas for the assignment of children in desegregated grades of Duval County’s schools. It provided for desegregation of grades one to six by the 1966-67 school year and one grade each year thereafter until the process was completed.

March 19, 1965, plaintiffs filed a Motion for Further Relief alleging that (1) the pace of desegregation was too slow, (2) the zones were drawn so as to perpetuate segregation, and (3) students were being permitted to transfer from their assigned zones so as to perpetuate segregation. After a hearing November 3 and 4, 1965, and argument February 5, 1966, the Court, January 24, 1967, issued its order and findings of facts.

The Court found:

In September of 1965, approximately 118,000 students, of which about 30,-000 were Negro, were enrolled in the public schools of Duval County, Florida. Approximately 137 Negro students were attending 12 previously all white schools. No white student attended any Negro school.

The Court also found that:

(1) In a number of instances, the attendance areas were so defined that they absolutely prevented any desegregation, or only the most token integration.

(2) Appellants made no initial assignments of white or Negro students to schools attended only or primarily by students of the opposite race. White students residing in the district or attendance area of Negro schools were not required to attend such schools, but they were assigned to, or freely permitted transfers to, other white schools. Similarly, Negro students residing in the district or attendance area of white schools were not required to attend such schools, but were assigned to, or freely permitted transfers to, other all-Negro schools.

(3) Appellants maintained certain inferior and inadequate school facilities for Negro students.

The district court entered a decree substantially similar to the decree this Court approved in Jefferson, except for modifications to reflect the fact that the Duval County Board initially assigned students by zones. The assignment provisions of the order are as follows:

I-Attendance Zones

Commencing with the 1967-68 school year, a single system of nonracial attendance zones shall be established for all grades. Zone boundaries or feeder patterns designed or used to perpetuate or promote segregation shall be discontinued, and such zone lines shall be redrawn, wherever feasible, to maximize desegregation or eliminate segregation. No zone boundaries or feeder patterns which maintain what is essentially a segregated school structure shall be used.

II-Assignment to School in Zone of Residence

Regardless of any previous attendance at another school, each student must be assigned to the school serving his zone of residence, and may be transferred to another school only in those cases which meet the following requirements:

A. Transfer for Special Needs. A student who requires a course, of study not offered at the school serving his zone, or who is physically handicapped, may be permitted upon his written application, to transfer to another school which is designed to fit, or offers courses, for, his special needs.

B. Minority Transfer Policy. The defendants shall on request permit any student to transfer from a school where students of his race are a majority to any other school within the system where students of his race are a minority, and they may assign students on such basis.

February 3, 1967, the Board moved for a new trial contending that the minority transfer provision was “contrary to the law [in that] it affirmatively imposes a discrimination by race as a criterion for transfer”. The plaintiffs filed a new Motion for Further Relief alleging that defendants had failed to comply with the January 24th order in that they had not redrawn the gerrymandered attendance zone lines.

The court conducted hearings August 10 and 11, 1967, on both motions. In an order entered on August 22, 1967, the court treated the appellants’ Motion for New Trial as one for modification or clarification and amended its prior order in several respects but left standing its earlier order that the Board permit majority to minority transfers.

In the same order the court granted appellees’ later Motion for Further Relief. The court found:

(1) As indicated in the Affidavit of Robert L. Varn, filed herein February 3, 1967, * * * It does not appear that a general realignment of zone boundaries and feeder patterns has been undertaken as required by paragraph I-Attendance Zones * * * or that any attempt has been made to redraw lines to maximize desegregation or eliminate segregation.

* * * * * *

(5) It is convincing on the record before me that the defendant(s) * * * are either incapable or unwilling to undertake full and meaningful compliance with either the strict tenor or the broad objectives of the provisions of the January 24, 1967 order.

The court ordered that:

Defendants shall, without delay, request the assistance of the expert consultation of school administrators of the United States Department of Health, Education and Welfare, located at the University of Miami, under the South Florida Desegregation Center, for review of the system of assignment for the school year 1967-68 and subsequent years. Said study shall include revision of zone boundaries and feeder patterns, staff assignments, faculty assignments, new school construction, and Board practices generally with respect to desegregation of schools, all with a view to complete elimination of segregated schools and racially discriminatory practices in the operation of the Duval County School System.

After four years of court-ordered desegregation, 137 Negroes, .0045 percent of the Negro students, attended predominantly white schools. No whites attended predominantly Negro schools. The Duval Board makes no initial assignments of white or Negro students to schools attended only or predominantly by students of the opposite race. White and Negro students who reside in school districts containing schools where members of their race are a minority are not required to attend such schools. Instead, they are assigned to or freely permitted to transfer to schools where members of their race are a majority. It was in this context that the district court issued its desegregation order. It was apparent to the district court, as it is to us, that a unitary system could not be accomplished without using an alternative to freedom of choice that would take race into consideration in approving transfers. Although the majority-to-minority transfer policy necessarily takes race into consideration, the plan does not discriminate between races.

II.

Turning again to Jefferson II, we note that we said:

The Court holds that boards and officials administering public schools in this circuit have the affirmative duty under the Fourteenth Amendment to bring about an integrated, unitary school system in which there are no Negro schools and no white schools— just schools. * * * 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.

* * * If the plan is ineffective, longer on promises than performance, the school officials charged with initiating and administering a unitary system have not met the constitutional requirements of the Fourteenth Amendment; they should try other tools.

380 F.2d at 389.

The Duval County Board’s plan was “longer on promises than on performance”. The district court’s majority-to-minority provision transfer is reasonably related to accomplishing the constitutional imperative of converting the dual system into a unitary, integrated system. Indeed, in the circumstances of this case, this policy may be necessary to correct the flaws in the Board’s desegregation plan.

The district court found that geographic attendance zones had been drawn to “absolutely prevent any school desegregation whatever, or permit only the most ‘token’ integration”. The court cited two instances where the boundaries of school zones had been “fixed along the streets separating white and Negro residential areas so as to exclude Negro students”. The court also found that the Board favored a student’s transferring out of his zone if he was in a minority race at the school in that zone.

The district court adopted two pragmatic solutions. First, it ordered the Board to establish a single system of non-raeial attendance zones for all grades. “[Z]one boundaries or feeder patterns designed or used to perpetuate or promote segregation shall be discontinued, and such zone lines shall be redrawn, wherever feasible to maximize desegregation or eliminate desegregation”. Second, the court strictly limited the right to transfer out of a zone to two special situations — i. e., a majority-to-minority transfer and a transfer to obtain a course of study or a special program not available at the neighborhood school. A majority-to-minority transfer policy similar to that decreed below is especially proper in this circuit, because of the residential patterns of many of our cities. In this situation, when it is not feasible to draw zone lines so as to completely eliminate segregation, a majority-to-minority transfer policy tends to promote desegregation. It allows students, or their parents, to exercise a right of transfer from a school where their race is a majority to a school where their race is a minority. It requires a lagging school board to take affirmative steps to do away with the vestiges of the dual system of separate schools for Negroes and whites.

III.

In Board of Education of Oklahoma City Public Schools v. Dowell, et al., 10 Cir. 1967, 375 F.2d 158, cert. den. 387 U.S. 931, 87 S.Ct. 2054, 18 L.Ed.2d 993 (1967) the facts closely paralleled the facts in the instant case. The Court considered and upheld an order requiring the school board to establish a minority transfer policy along with other affirmative steps to disestablish segregation in the public schools:

The attendance line boundaries, as pointed out by the trial judge, had the effect in some instances of locking the Negro pupils into totally segregated schools. In other attendance districts which were not totally segregated the operation of the (majority) transfer plan naturally led to a higher percentage of segregation in those schools.

375 F.2d at 165.

The Court then held that “[u]nder the factual situation here we have no hesitancy in sustaining the trial court’s authority to compel the board to take specific action in compliance with the decree of the Court so long as such compelled action can be said to be necessary for the elimination of the unconstitutional evils pointed out in the Court’s decree”. 375 F.2d at 166.

The minority transfer policy has been incorporated into the HEW Guidelines and is presently in effect in all counties having voluntary desegregation plans based on geographic attendance zones. See, Revised School Desegregation Plans Under Title VI of the Civil Rights Act of 1964, § 181.33. This Court has held that the Guidelines “establish minimum standards clearly applicable to disestablishing state-sanctioned segregation”. Jefferson II, 380 F.2d at 390. The pertinent guideline provision in effect at the time of the order below and this appeal provided:

Minority Transfer Policy. A school system may (1) permit any student to transfer from a school where students of his race are a majority to any other school, within the system, where students of his race are a minority, or (2) assign students on such basis.

The Board relies on Goss v. Board of Education of the City of Knoxville, Tennessee, 1963, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632. In Goss, however, white students were permitted to transfer from predominantly Negro schools to predominantly white schools and Negroes from predominantly white to predominantly Negro’ schools. The majority transfer policy directly supported racial segregation in public schools. The Supreme Court gave it short shrift:

It is readily apparent that the transfer system proposed lends itself to perpetuation of segregation. Indeed, the provisions can work only toward that end * * * As the Superintendent of Davidson County’s schools agreed, the effect of the racial transfer plan was “to permit a child (or his parents) to choose segregation outside of his zone but not to choose integration outside of his zone.” Here the right of transfer, which operates solely on the basis of a racial classification, is a one-way ticket leading to but one destination, i. e., the majority race of the transferee and continued segregation.

373 U.S. at 684-687, 83 S.Ct. at 1408, 10 L.Ed.2d at 635.

The district court order in this case plainly has the opposite effect: a student transferring from a school where his race is in the majority to one where it is in the minority is contributing to the desegregation of the school system.

There is no merit to the Board’s argument that race may not be taken into account for purposes of transferring students. In some situations, there is no way of undoing the effects of past discrimination except by taking race into account.⁸ As we pointed out in Jefferson I:

The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate governmental purpose.

Jefferson I, 372 F.2d at 876.

Here, in order to undo the effects of past discrimination, race may be taken into account in the manner directed by the plan approved by the district court, that is, by permitting each student whose race is the same as that of a majority of his schoolmates to transfer to a school where his race is not in a majority.

The Supreme Court has now slain all of the dragons the Board found so formidable. In Green v. School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, the Court held that school boards have the affirmative duty of taking whatever steps should be necessary to effect the transition from a dual school system to a unitary system. In that case 15 percent of the Negro children attended predominantly white schools. In New Kent County, as in Duval County, no white children attended Negro schools.

We affirm the holding of the court below with respect to the transfer policy. We remand the case, however, to enable the district court to reconsider the entire plan in the light of Green v. School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716.

1 . United States v. Jefferson County Board of Education (Jefferson I), 5 Cir. 1966, 372 F.2d 836, adopted with clarifications on rehearing en banc (Jefferson II), 1967, 380 F.2d 385, cert. denied sub. nom. Caddo Parish School Board v. United States, 1967, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103.

2 . 'We added: “Indeed, the ‘slow pace of integration in the Southern and border States is in large measure attributable to the manner in which free choice plans * * * have operated’ [Rep. U.S. Comm, on Civil Bights, Survey of Desegregation in the Southern and Border States — 1965-66, p. 511. When such plans leave school officials with a broad area of uncontrolled discretion, this method of desegregation is better suited than any other to preserve the essentials of the dual school system while giving paper compliance with the duty to desegregate.” Jefferson I, 372 F.2d at 888.

3 . Jefferson II, 380 F.2d at 390.

4 . Id.

5 . Jefferson I, 372 F.2d at 847. Cf., “The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work nmo”. (Emphasis in the original.) Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1694.

6 . Jefferson II, 380 F.2d at 389.

7 . In Singleton v. Jackson Municipal Separate School District, 5 Cir. 1966, 355 F.2d 865, 871, we characterized freedom of choice as a “haphazard basis” for administering public school. More recently a district court that has had considerable experience with school desegregation observed : “If this Court must pick a method of assigning students to schools within a particular school district, barring ' very unusual circumstances, we could imagine no method more inappropriate, more unreasonable, more needlessly wasteful in every respect, than the so-called ‘free-choice’ system. * * * Under a ‘free-choice’ system, the school board cannot know or estimate the number of students who will want to attend any school, or the identity of those who will eventually get their choice. Consequently, the board cannot make plans for the transportation of students to schools, plan curricula, or even plan such things as lunch allotments and schedules; moreover, since in no case except by purest coincidence will an appropriate distribution of students result, and each school will have either more or less than the number it is designed to efficiently handle, many students at the end of the free-choice period have to be re-assigned to schools other than those of their choice- — • this time on a strict geographical-proximity basis, see the Jefferson County decree, thus burdening the board, in the middle of what should be a period of firming up the system and making final adjustments, with the awesome task of determining which students will have to be transferred and which schools will receive them. Until that final task is completed, neither the board nor any of the students can be sure of which school they will be attending; and many students will in the end be denied the very ‘free choice’ the system is supposed to provide them”. Moses v. Washington Parish School Board, E.D.La.1967, 276 F.Supp. 834.

8 . For example, the “freezing principle” in voters’ registration cases. United States v. Louisiana, E.D.La.1963, 225 F. Supp. 353, aff’d 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709.