Theodore Whitmore Stanley v. Darlington County School District, Elaine Whittenberg v. School District of Greenville County, Etc.

424 F.2d 195

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 18, 1970
• Docket: 13904, 13905
• Status: Published

Opinions

ORDER

HAYNSWORTH, Chief Judge.

We consolidated these appeals for hearing and disposition in light of Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (Oct. 29, 1969), and Nesbit v. Statesville City Bd. of Educ., 418 F.2d 1040 (4th Cir., Dec. 2, 1969).

In Alexander the Supreme Court held that “the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.” In Carter v. West Feliciana Parish School Bd., 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (Jan. 14, 1970), the Supreme Court reemphasized the immediacy of its holding in Alexander. It vacated an order of the United States Court of Appeals for the Fifth Circuit, sitting en banc, permitting pupil integration to be deferred until the opening of the new school year in September 1970. The Court of Appeals for the Fifth Circuit was held to have misconstrued the Supreme Court’s decision in Alexander, and complete student integration was held to be required in those eases by February 1,1970.

These decisions leave us with no discretion to consider delays in pupil integration until September 1970. Whatever the state of progress in a particular school district and whatever the disruption which will be occasioned by the immediate reassignment of teachers and pupils in mid-year, there remains no judicial discretion to postpone immediate implementation of the constitutional principles as announced in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Alexander v. Holmes County Bd. of Educ., 396 U.S. 79, 90 S.Ct. 29, 24 L.Ed.2d 19 (Oct. 29, 1969); Carter v. West Feliciana Parish School Bd., 396 U.S. 290, 90 S.Ct. 608 (Jan. 14, 1970.

Accordingly, it is adjudged, ordered and decreed:

1. Each of the school districts shall submit to the District Court a plan for unitary schools on or before January 23, 1970;

A. The plan for Darlington may be based upon proposal B submitted by the Department of Health, Education and Welfare, or upon any other plan that will create a unitary school system;

B. The plan for Greenville may be based upon the revised plan submitted by the school board or upon any other plan that will create a unitary school system;

C. All plans must include provisions for the integration of the faculty so that the ratio of Negro and white faculty members of each school shall be approximately the same as the ratio throughout the system. In determining the ratio, exceptions may be made for specialized faculty positions;

2. The plaintiffs and the Department of Health, Education, and Welfare may file responses to the plans on or before January 28, 1970;

3. The District Judge will conduct a hearing in each of these cases on February 2, 1970 to enable him to determine the effectiveness of the proposed plans and to consider any objections which may have been filed ;

4. On or before February 5, 1970, the District Judge shall enter an order in each of these cases approving a plan selected by him to attain a unitary school system and requiring its implementation on February 9, 1970, with leave, however, to postpone the effective date of the implementation of all or any part of a particular plan until February 16, 1970, if for good cause shown the District Judge finds that, to the extent that such postponement of implementation of the plan is allowed, it could not be achieved earlier;

5. The District Court’s order shall not be stayed pending any appeal which may be taken to this court, but, in the event of an appeal, modification of the order may be sought in this court by a motion accompanied by a request for immediate consideration.

The judgments are vacated* and the cases remanded for further proceedings consistent with this order.

Let the mandate issue forthwith.