Thompson v. School Board

498 F.2d 195

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 31, 1974
• Docket: No. 74-1005
• Status: Published

Opinions

PER CURIAM:

In Thompson v. School Board of City of Newport News, Va. (4th Cir. 1972) 465 F.2d 83, we remanded this proceeding, instituted to achieve the desegregation of the public schools of the City of Newport News, to the District Court with direction that the Court should consider and make findings on these two issues:

(1) Whether, after considering any alternate plan submitted by the plaintiffs, and taking into consideration the ages of the pupils involved, the problems of transportation and the educational program itself, any plan other than neighborhood zoning was practical for grades 1 and 2 in such school system?

(2) Whether groupings of grades 3, 4 and 5 in formerly identifiable white schools and grades 6 and 7 in formerly black identifiable schools under the plan of desegregation “were based on non-discriminatory grounds” ?

I.

The District Court, on remand, held a hearing, allowed the plaintiffs to submit their alternative plan for the assignment of pupils in the first and second grades, and, after considering the evidence submitted in support of that alternative plan, found that it, prepared concededly without consideration of the difficulties of transportation “as a factor” and without any substantial familiarity with the school district’s physical facilities or even special education programs, was neither “practical” nor “feasible”.¹ It proceeded to review in some detail the facts developed in connection with the Board’s plan for neighborhood assignment of pupils in these two grades both at previous hearings and at the hearing held after remand, and, on that record, it reaffirmed the neighborhood plan previously developed, basing such finding on “three factors — (1) the transportation problems within the city, (2) the educational process, and . (3) the health and ages of the very young children who would be transported * * *.” Such findings are not clearly erroneous and must be affirmed.

II.

The District Court was instructed, also, that on remand, it should make findings on whether the assignments of grades 3 to 7 “were based on non-discriminatory grounds.” At the hearing held after remand, the School Board stated the reasons that led to its grouping of these grades. As explained by the school officials directly concerned in the drafting of the Board’s plan, these reasons were:

“ * * * Well, the original testimony pointed out the uniqueness of Newport News with regard to shape and the housing patterns that had developed in the city, the almost complete separation of the races.

With a ratio of thirty-six and a fraction to sixty-three and a fraction, or roughly 60-40 or three to two, it becomes obvious that if you are going to take two widely separated areas and mix them in any manner that would approach that, it is necessary to vacate 60 percent of the classrooms in the black area and 40 percent of the classrooms in the white area and transport to that enough blacks and whites to fill those classrooms and replace them.

So it became a three to two ratio.

Now, with five grades involved, that falls into a three to two pattern very readily. Anything else caused us— causes us very quickly to arrive at a point where we exchange white children for white children. So we tried to — this was why we originally selected two grades instead of three and had a two-five split to give us the three-two pattern.

The question of who should go first was a matter of choice.” (Tr. pp. 141-2.)

The District Court concluded that the grouping of these grades was satisfactorily explained” in the testimony of the school officials, and it accordingly found “that the distribution of the white and black children for grades three through seven was nondiseriminatory.” We find no error in this conclusion. We might observe as we did in the earlier opinion herein² that the grade distribution as approved is similar to that approved in Allen v. Asheville City Board of Education (4th Cir. 1970) 434 F.2d 902; Clark v. Board of Education of Little Rock School Dist. (8th Cir. 1971) 449 F.2d 493, and Hart v. County School Board of Arlington Co., Virginia (D.C.Va.1971) 329 F.Supp. 953, aff., 459 F.2d 981 (4th Cir.), cited in the earlier opinion in this case.

The orders of the District Court, from which this appeal is taken, are accordingly affirmed.

Affirmed.

1 . Dr. Strickler, who prepared on behalf of the plaintiffs the alternative plan, testified that, in designing the plan, he “eliminated * * * as a factor” any difficulties of transportation and justified his action by stating that, in his opinion, “time and distance of travel” were not proper matters for consideration even when preparing a plan for pupils as young and immature as first and second grade students. Under his plan, some of these pupils would have had travel time, including loading time, of almost two and a half hours a day, and the mean travel time for all such pupils in the school system would have been almost two hours. It was Dr. Strickler’s view, as testified to by him, that transportation of pupils in the first and second grades in order to establish a fixed ratio in each school, regardless of “time and distance of travel”, was the overriding eonsideration in preparing a plan of desegregation. Cf., however, Northcross v. Board of Education of Memphis (6th Cir. 1971), 444 F.2d 1179, 1183, and 466 F.2d 890, cert. denied, 416 U.S. 962, 94 S.Ct. 1982, 40 L.Ed. 2d 313 (1974). It was, also, suggested that these elementary pupils were already being bussed in substantial numbers. This argument would disregard the fact that this bus-sing was within the neighborhood zones and involved no considerable distances or time; the transportation was not from the tip of the uniquely shaped school district where the so-called black pupils were concentrated to the distant zones of the areas where the greater number of whites lived (the mean distance would be over twelve miles).

2 . 465 F.2d at p. 85.