Onesephor Broussard v. The Houston Independent School District

al., Onesephor et BROUSSARD Appellants, HOUSTON INDEPENDENT al., et DISTRICT SCHOOL Appellees.

No. 24018. Appeals States Court

United Fifth Circuit.

May Mandell, Joseph Tita, L.

Arthur Wil- Wood, ap- Jr., Houston, for Tex., liam L. pellants. White, Reynolds, Reynolds, H.

Joe Cook, Houston, Tex., appel- Allen & lees. Schulman,

Ronald and Al Hous Cohen ton, Tex., Anne and Robert L. Carter Feldman, City, cu New York amici G. riae. WISDOM, Before Circuit RIVES Judge.

Judges, CONNALLY, District Judge: CONNALLY, District This action was in the United filed District Court for States the Southern injunction District of Texas as a suit against Independent Houston number District. are a pupils District, of that of the colored race, proceeding who have filed the as a purpose Its class action. restain District and and em- its officers condemning ployees acquiring from land, soliciting accepting from bids, bids distributing letting funds, contracts doing any other acts in furtherance program an extensive the construc- improvement of new schools tion and and modernization of other with- sought This the District. relief was allegation upon program new construction and rehabilitation —in particular the location of a number of 818 designed by trict) desegregate schools—was the Houston schools. perpetuate promote Following hearings and facto de a series of the Dis segregation directing al- schools. It was trict Court entered an order

leged desegregated that such de facto de- the schools be aon prived right one-grade-per-year beginning basis, minor of with integrated school, year September to deprived an and thus the school 1960, with attend process equal complete desegregation by them of due to be effected protection appeal, laws. After full 1971. On this action of the trial hearing consisting days Independ of seven trial and court was affirmed [Houston including inspection by Ross, Cir., an the trial ent School District 5 282 judge1 locations, including (1960)]. 2of some 17 F.2d 95 Since time vigorously plan desegregation the four or five most attack- has been acceler by plaintiffs, injunctive ated, large by ed voluntary re- measure ac Board,3 lief was denied.8 We affirm. tion so that the time at (June 1966) only grade of trial the ninth bring presented To the issues thus segregated, remained and with re proper focus, background into some maining vestige begin to be eradicated necessary. The Board of Education ning year September with the school Independent the Houston District 1967.4 composed of seven elected members. charged by op- operation It is The record shows that there is in law with the sys- plan, pursu- eration and maintenance of the a freedom of choice regardless geographic tem ant stúdent, within its which a limits. This place may reg- approximately residence, square is an area of his race or 311 miles, including District, Houston, ister at most of school within the merely by metropolitan notifying Texas area. excess of the school authori- choice, persons geo- by having one ties of million reside within its the stu- graphic appear Approximately dent boundaries. at school of his choice 230,000 schools, opening day.5 scholastics attend its average approximate- with an increase appear While it would at first blush ly 10,000 per year. students plan that such a would be calculated to largest sixth nation. school district in the overcrowding of the more lead trial, operated At the time of it in excess popular schools, experience the Board’s (elementary, high junior of 200 schools large has shown that in measure the stu- high throughout schools), located prefer prox- dents to attend the school District. imity homes, to their and in no instance had admission been denied a school At the time Brown v. Board of Edu of one’s choice reason of overcrowd- cation, 347 U.S. S.Ct. ing. (1954), L.Ed. 873 the Houston schools completely segregated by law, were popula- state With some variations due to boundary system. densities, policy dual Follow tion it has been ing Brown, space on December 1956 a suit the Board to the location of its elementary was ap- filed in the States District United schools intervals of at mile; proximately junior high Court for the of Tex Southern District one schools (C.A. 10444, miles; Ross Trus at v. Board of intervals of two and senior Independent high tees, Houston Dis schools at three mile intervals Hannay, Additionally, steps The Honorable Allen B. able the Board had taken experienced integrate judge. trial its school faculties its program, athletic each of which had until opinion reported 2. The District largely recently segregated. remained F.Supp. (1966). true the time trial for all This was “voluntary” in 3. At least such action was stated, grades except ninth, and, court ordered. the sense that was not exception expires with the 1966-67 year. inevitably history, experience that sub- shown throughout Thus had the District. necessary pre- stantial new construction many are located approximately years. sections, four at intervals of dominantly residential colored Preceding in the amount issues had been predominantly residential others in the amount million in of a §39 in areas still others sections, and commingled pattern.® of million in 1959. §32 racial mixed reno- Similarly, and construction new the plaintiffs’ case. This was thrust of the through- even-handedly applied vation is developing After fact that certain the white, District, in some the some out popula- of colored schools areas dense commingled negro areas. some and overcrowded, and that con- tion were the scholastics, regardless of most As of the program contemplated re- struction the race, prefer to attend the their by lief this erection of of situation vicinity,6 the racial immediate their enlargement by, new schools close or the body composition each of of student existing testimony facilities, of of reflects, com- the racial general, school position sociologists psychiatrists several was and neighborhood wherein of witnesses, eminently offered. These all located. such school is qualified in fields, their testified sub- program for the construction The need re- stance that a colored child would not undisputed that is not denied. good attending ceive as an education existing many are facilities of the predominantly, completely, or colored overtaxed; rapid- grossly some of areas attending a school as he more would ly inadequately increasing population are thoroughly integrated Hence school.8 served, at all. or served not argument con- advanced that the of struction of a new school in an area May the voters of On negro making population, dense an old by Independent School District Houston serviceable, efficient, school more more popular the issuance election authorized attractive, would, or more effect, con- con- bonds for of some million §59 negro stitute a denial child resid- program purposes. con- struction ing integrated-type in such area of the templated the construction of number education to which he was entitled. new, schools, at at others new sites; class- of new old the construction attainments, Despite pedagogic their cafeterias, rooms, en- the addition any experi- none of these witnesses had etc.; campuses, largement re- They ence as a school administrator. existing refurbishing pairing fa- familiarity had little with the overall cilities fifty still other locations. Some building program. No could or one project. in the schools were involved suggestion would venture a as to where any largest single questioned or how one of the sites was the bond While this They purpose in the Board’s should relocated. showed little issue “fringe Anglo- mately Latin-American, Examples within schools 49% 49% equal approximately American, negro. having areas” 2% negro students white and numbers of plaintiffs’ testimony 7. This is wit- Elementary, McGregor Gar- Kashmere nesses, and confirmed School Board High, High, Lockett Junior-Senior dens records. High. Rogers Junior Elementary witnesses further testified that furnishes These Brock objective example interesting the Board should take as its effect which of the change pattern achievement of the same white will in residential prevailed prin- in each school as Originally attended colored ratio school. children, scholastics cipally overall census number white white, complex- (namely within the District negro children increased 70% negro). They changed neighborhood from further testified ion 30% by bussing predom- should be achieved Now it colored. interesting inantly residential negro. ex- students outside Another areas, expedients pattern if ineffec- ample were racial other mixed of a approxi- McReynolds tive. School. relatively high be taken into some other section awareness of factor to with a a school other ratio of location of colored-to-white students. Con- account in the composition convenience, of the area. than siderations traffic haz- the racial ards, only witnesses which these or the wishes of student answer they parents disregarded. question his could how should be offer to Such locating simply high problem would have would to attend a solve child say ratio school, was to should colored-to-white negro predominantly do this because he not be located in given negro. area;9 say was a that if further they (the experts) time could no doubt The Constitution does re find a location. better quire result, such a and we entertain seri policy The defense was that the permit ous it doubt that would it. Ra past Board, present, was to particular cial imbalance a school does they build the need schoools where were not, itself, deprivation evidence a of they ed, e., i. where would be con most rights. Zoning plans constitutional fair particularly venient the students, ly consistently up arrived at have been years. those of tender was shown held, though might racial imbalance re a addition to the need Charlotte-Meeklenberg sult. Swann v. given area, many in a considerations Ed., (4th 1966); Bd. of 369 F.2d 29 Cir. play par came into of a the selection Springfield School Committee v. Barks Among (a) ticular site. others were dale, (1st 1965); 348 F.2d 261 Cir. Board, economics—-in some cases the City Wheeler v. Durham Board of Educa foresight, previously acquired prop had tion, (4th 1965); 346 F.2d 768 Cir. Gil erty needed, not then but held for future City Hope liam v. School Board of might profitably use which be availed Virginia, well, (4th 345 F.2d 325 Cir. (b) accessibility time, of at this 1965); Downs v. Board Ed. of Kansas including the condition of convenience — City, (10th 1964); 336 F.2d 988 Cir. streets, avoidance traffic haz Gary, Indiana, Bell v. School (c) ards, etc., and coordination with the (7th 1963). 324 F.2d 209 Cir. City Planning Commission, with realtors planning developers new subdivisions adopted Houston has a zon not large developments, population where ing plan. Rather, the Houston might anticipated. increases be On plan, may a child attend the convincing evidence, Judge abundant and negro his choice. Those children who Hannay found that the Board had been wish to attend a school distance guided only by proper such considera homes, high from with a colored- these, tions as and denied relief. Deal may ratio, negro do so. But those Ed., Bd. of 369 F.2d 55 Cincinnnati children who wish to a school attend (6th 1966); Cir. Board of Clark v. Educ. close to their homes have constitutional Rock, (8th of Little 369 F.2d 661 Cir. too; they might rights, well assert 1966); Sealy Dept. of Public Instruc rights against such (3rd 1958). tion of 252 F.2d Pa., Cir. which refused to construct needed carefully analyzed, plain- simply When in their area it because position simply by negro largely tiffs’ would this. No be attended stu built, schools be old dents. This should would be discrimination improved, densely vengeance, solely populated with a colored based on account area, areas. The child race. Brown resident such v. Board regardless (1954). wishes, necessity his And U.S. S.Ct. 686 must be to attend school in discrimination to constitute would great ghetto-type These witnesses all seem to have a found no conditions any affinity “ghetto”. They vicinity the word sites which he repeatedly referred certain sections of visited. Hannay Judge city by that term. hold, him to them. It is for decide whether hold, have us advantage. The individual every attend it be to his child in Houston chosen, perhaps, of his is still master fate.12 his the school of choice— his best convenient, because it is because validity of the defendant good girl attends, foot- it has because plan is at Board’s of choice freedom team, sufficient other ball or for argued plaintiffs. It is tacked living except children those reason— completed in that when new schools are they Ward; and to hold that the Fifth sections, con bewill too colored them chosen for attend the school must attractive; venient too and under determined because what others have produce freedom of choicewill tend student a favorable colored-white segregation. high of de facto incidence press for in- In their zeal to ratio ?10 we freedom of Hence observe that a tegration all levels and of the races at plan- -fairly choice and non-discrimina — social, things scholastic, business, in all — torily specific administered—has had the good many persons, some of marital — will, completely recently approval of court as as the sight rights lose en banc consideration United States integrated those who desire to do Ed., F.2d v. Jefferson Bd. of pro- moment. Constitution 1967), (5th court where recognition right, also. tects said: given by by statute in decree and Court goal a in “Freedom of choice is not negro’s years constitutional recent an A is a means to end. itself. It segregation in from enforced freedom right to has no inalienable schoolchild public education, the trans- field of A of choice choose his school. freedom voting, jury portation, in re- service plan is one but tools available may privilege he lated areas to which is stage to school officials at this integration, levels, enjoy. But at these converting process dual concept which, is not a to like Procrustes’ Negroes separate schools for fitted, every bed, re- individual be must unitary system. The whites into a gardless negro pre- If a of his desires. governmental objective of this conver- today, in fers to rear of the bus ride opportunities on sion is—educational may compelled a for- he not be to take equal terms to all. criterion may; vote, he seat. If he to ward wishes determining provi- validity of may but he not to cast his desegregation plan sion in is a school by feel ballot those who it would be to reasonably provision re- whether his, their, he do Of that so. benefit objec- accomplishing to this lated recognition, may he inter- most recent 13 tive.” marry with one of another race.11 rights, Constitution affords him these While we that “a schoolchild reiterate recognized recently. right until his does not has to no inalienable choose impose obligation school”, corollary an on him to exercise- we where add the that Bradley Reynolds Sims, (1914); 10. Board of of Rich- L.Ed. 169 377 v. School v. (4th 1965). mond, 1362, 533, F.2d 310 L.Ed.2d 506 U.S. 84 S.Ct. 12 (1964); Shelley Kraemer, 334 U.S. v. Virginia, Loving v. Commonwealth (1948). 836, 1, L.Ed. 1161 68 S.Ct. 12, 1817, 1824, L.Ed. 388 U.S. 87 S.Ct. Judge Wisdom, language And see the 12, 1967), (June 2d 1010 states, where Singleton speaking this Court Constitution, free our “Under Municipal Separate Dis- School Jackson marry, marry, person to dom p. (1966), trict, 871: 355 F.2d 865 with the individ race resides another history stage in the of de- “At infringed ual cannot deep segregation ‘free- South added.) (Emphasis State.” acceptable plan is dom of choice an to board use is entitled method for a school “It the individual who integrate duty fulfilling equal protection laws.” Mc its school ” Topeka system.’ Atchison, Fe & Santa Cabe 69, Co., and cases there cited. R. 35 S.Ct. 285 U.S. glit- captive. the law or af- chains held rules the School that them Board right others,14 not be ter of the obscured loose- ford rhetoric negro denied to the child of his ness of their because bonds. race. laymen many I if doubt understand Indeed, plan, Houston as de- question-begging distinction between “de- authorities, scribed appear the school it would segregation” “integration”. “integrated, unitary that vernacular there is no here, But distinction. every .system” provided, where in other similar situations open every affords lay child. states, the board the ef- understood opportunities equal “educational lawyers’ Briggs. reading fect of their obligation That terms all.” is the of As stated in “There the Board’s brief: the Board.15 duty is no on the Dis- affirmative School trict consider race the selection of right, The action of the trial court was sites”; be an affirma- and is leading integration.1 tive act Affirmed. years In the that first followed the (dissenting). WISDOM Desegregation cases, Brown v. respectfully I dissent. U.S. apologists 74 S.Ct. for token de scarcely possible It seems Delphic could rationalize the great Fifth Circuit a city school board judge Briggs Briggs riddle in Brown.2 found eye say could look a way offered a middle in a difficult tran spending sixty million dollars sitionary period. spe And the lack buildings the board need not con- Supreme cific directions in the Court’s patterns sider residential racial aas rele- along in Brown mandate with a district vant factor in the of school selection equitable power pri court’s inherent knows, sites. The Houston mary responsibility tailoring everyone decrees knows, that the location of seemingly gave to individual cases infe highly seg- schools is relevant to school rior courts wide latitude in regation. their han dling desegregation plans. of school Lat understand, though I can I can not ac- case-by-ease er slowly, the devel explanation cept, Board’s of its deci- opment law, Supreme of the Court Briggs sion. The Board relied on the put scope limits on the of an inferior * * * dictum: “The Constitution authority court’s to bless action to token integration. require merely not does desegregate schools.3 Briggs forbids discrimination.” El- v. liott, ameliorating There is no E.D.S.C.1955, F.Supp. reason for 776. majority’s Many throughout other decision. offends the boards law as it willing existed in South this circuit at the have been victims of the Briggs argued time appeal.4 case word-magic. was They on embraced the egregiously It offends the law more now.5 gucli 14. here. the case The challenge do not g. freedom choice See, Cooper Aaron, 1958, 3. e. applied question students, to white nor 1, 5; 1401, U.S. 78 S.Ct. 3 L.Ed.2d construction white or mixed Bradley City v. School Board of Rich residential areas. mond, 1965, 224, 103, 382 U.S. 86 S.Ct. 187; Rogers Paul, 1965, L.Ed.2d County 15. United States v. Jefferson Bd. 198, 358, 382 U.S. 86 S.Ct. L.Ed.2d Ed., supra, p. 390, 380 F.2d en banc 265. consideration. United States v. Jefferson Board 1. The Board’s brief states: “there 372 F.2d legal one issue. That is whether issue banc, aff’d en 380 F.2d cert. not or district has this af- denied sub nom. Parish School Caddo duty integrate firmative to the races”. Briggs original page was one of the 5. See note 5 on Desegregation cases. previ- safety access, the use such I. ously property, acquired coordina- presents case question this broad The Planning Commis- tion with the pub- of a administrators whether the doubts the relevance sion.6a No one duty system under a take lic school relationship other- criteria. But a such desegregate the action to affirmative in it- be insufficient wise rational up to faced The Board school district. standards —if self meet constitutional question be- narrow this issue.6 The past freeze-in its effect is to discrimina- whether, in a context fore the Court example, relation- tion. For a rational involving necessarily of alterna- choice literacy ship citizen- between exists sites tives, should select a school board administered) ship (fairly tests tending dual effects to erase the right enjoin use to vote. But we segregated legalized system such tests freeze a voters’ when into tending to main- sites or is to select free registration system past the effects desegrega- (or segregation tain tion). token Again, a rational rela- discrimination.7 recognized pres- The Board tionship may preservation exist between issue, but resolved it ence of this determining peace of schools. race consideration of argument. was The That Little Rock’s integrative act an affirmative Supreme Court held that was not not taken. that need enough.8 My sweep the issues under brothers Negro plaintiffs charge The do not rug. Board with Nor I. bad faith. do whether does not discuss Court lawyers ; acted on advice of its right wrong ac- to rest its was lawyers Briggs relied on de- duty to take on the lack of tions cisions in this circuit which followed might lead affirmative action Briggs. integration. not dis- does Briggs most, however, At addressed it- decision cuss the' Board’s deliberate duty, self to a school board’s its disregard site the racial factors in school power. duty And dealt my try Instead, brothers selection. justify negative duty Board’s minimum, by finding action the Board’s duty complainant, individual administering its relationship sites rational between the factors, selected cei’tain nonracial Judge Davis on. But as Tuttle said States, 1967, 389 v. United U.S. Board v. Board Commissioners 103; 67, 840, Lee 88 S.Ct. 19 L.Ed.2d County, 1966, Mobile 5 Cir. F.2d 364 County v. Macon * “* * 896, there 901: is a hollow 1966, F.Supp. 743; 1964, 231 M.D.Ala. superficially appealing sound to the state- 458; 727; 1967, F.Supp. F.Supp. 267 253 designed ment school areas v. of Public Instruction Braxton safety high- observing factors, such as 1962, County, Race of Duval M.D.Fla. 7 ways, railroads, streams, matter etc. No 1964, Rel.L.Rep. 675, aff’d 5 326 be, many how such barriers there denied, 924, 616, 84 F.2d cert. 377 U.S. prevent grave none them so as to 1223, 216. L.Ed.2d 12 S.Ct. ‘area’ white child whose school 5. Public Education v. Board of Stell Negro crossing barrier en- from and County and the Savannah rolling in even the nearest school 486; 1967, Chatham, F.2d 387 5 Cir. though intervening it be ‘areas’ several v. Board School Commissioners Davis away.” 1968, County, 393 F.2d 5 Cir. of Mobile Louisiana, 690; v. Board of Public 7. United States See United States v. State of Fla., County, 1963, F.Supp. 353, 5 Cir. of Polk Instruction E.D.La. 225 380 aff’d 25768, April 1968, 709; 18]. 145, 817, [No. 395 F.2d 66 U.S. 85 S.Ct. 13 L.Ed.2d Mississippi, S.D.Miss. United States 6. footnote 1. See 1964, F.Supp. 925, rev’d 380 U.S. 229 Many proper 6a. are relevant factors 808, 13 L.Ed.2d 85 S.Ct. 717. safety, acces- of school sites: selection Cooper Aaron, 1958, property, 358 U.S. city sibility, economical use of city planners, so 3 L.Ed.2d 5. S.Ct. coordination provide equal This take affirmative action conclusion an de- inevitable velopment. already (Negro had opportunities We fac- educational to all class) ulty by eradicating integration public school children as a Ob- schools. vestiges integration sys- viously, faculty and effects dual ac- cannot be complished action, segregated tem of without schools. affirmative affecting system whole, a school as a II. taking based on into account racial Briggs composition For most school stood faculties.9 boards bridge, repelling like Horatius respect With to site selection city invaders fathers cut while down schools, majority the decision bridge him and behind fortified the flatly contrary this case is to Jefferson. city. However, early in 1966 this Court provides: The bane en decree Jefferson Singleton Briggs. criticized v. Jackson NEW CONSTRUCTION Municipal Separate District, defendants, Cir., The con- to the extent In 355 F.2d December proper operation argued sistent with the month ease was before this system whole, appeal, repudiated Briggs. school shall this Court substantially locate United Bd. States v. Jefferson expand any existing Ed., 1966, schools with Cir., F.2d objective eradicating vestiges 1967, adopted banc, Court en in March system. of the dual panel’s opinion decree, spe- cifically overruled earlier decisions explained provision We in the earlier Briggs. the extent followed opinion: We said: gov- Here race is relevant, because the purpose Negroes ernmental is to offer The Court that boards and of- holds equal opportunities. educational administering ficials schools in end, means to that such as disestab- duty this circuit the affirmative lishing segregation among students, the Fourteenth Amendment distributing equita- the better teachers bring unitary integrated, about bly, equalizing facilities, ap- selecting system there in which are no propriate schools, locations Negro no schools and white schools— avoiding resegregation must necessari- just Expressions in our schools. earli- ly be based on race. School officials opinions distinguishing er in- between composition have to know racial tegration desegregation yield must populátions duty recog- to this affirmative we now racial distribution within the school fulfilling duty nize. it is not district. The Courts and can- HEW enough for school authorities to offer good progress not measure faith or Negro opportunity children the to at- taking race without into account. formerly tend all-white schools. The F.2d at 877. overcoming necessity of effects of majority’s dual this circuit decision on the Houston requires integration faculties, program of school fa- construction is also flat- ly cilities, activities, contrary three-judge and well stu- to a de- court’s ninety-nine systems dents. earlier de- cision To the extent that school in (more Alabama, problems cisions of this a state with racial language in opinions, of the than the least as difficult as those in Texas. holdings) County

effect In of the conflict with Lee v. Macon Board of Edu- cation, view, 458, F.Supp. this overruled. M.D.Ala.1967, the 267 decisions 380 F.2d at 389. unanimous court state officials ordered Bradley 1965, 198, Board of of 358, 9. See School 382 86 U.S. S.Ct. 15 Richmond, S.Ct. U.S. 86 L.Ed.2d 187; Rogers Paul, L.Ed.2d 1962 a approval the con- district court issued decree of sites for to withhold enjoining expansion the Jacksonville School of schools struction or “Approving making budgets, from funds capacity light judged if, of the in available, approving employment con- facilities, existing the residence of the programs, ap- tracts and construction students, sites and the alternative proving policies, programs curricula not, available, construction will the designed sup- perpetuate, maintain or prop- with the extent consistent the system port operated a school on a ra- system operation school as a er of the cially segregated basis”. This Court whole, further the disestablishment approved the decree. of Public encouraged enforced or state County, Instruction Duval Fla. v. the and eliminate school Braxton, 5 F.2d We past en- state enforced or effects of argument appellants “The said: here couraged racial discrimination largely to the effect that no court system. public school State’s * * expressly required has heretofore enjoined reliance also further court planning of schools and finances to surveys upon conducted accord- operation avoid racial the schools. of this Court in ance with the standards * * * argument This falls far wide F.Supp. approval of sites. 267 of the mark.” F.2d at at 480-481. subject construction, On the of school firmly This Court has stood behind these decisions do not stand alone. said, panel Jefferson.10 We have “No Ed et al. v. Board of Public 10. See Stell proceed particular Leave with con- page ucation, al., supra, et 492 of 387 projects may prior struction be obtained respect provisions of F.2d. “[W]ith completion survey upon to the of the decree, VII of Section dealing showing Court, appellees Jefferson construction, [t]here with new particular building projects that will provi requiring is no basis for perpetuating not have the effect of part of the to be a sions of section segregation.” racial affecting operation February 24, order Dougherty 1968, in Carr v. Mont- County system. Other gomery County Board of wise, in the fu be faced M.D.Ala., the court “The evi- found: the Court accompli board a purchased after ture with may the defend- reflects fait further dence entered into land and new to construct have continued ants having schools; existing expand schools without for new contracts complied schools requirements wrong nothing certainly, with the with there provision.” except the construction 12, 1968, in Davis v. Board of proposed March ca- limited with schools new pacities Cir., Mobile, geared Commissioners white School the estimated predom- a decree community 690 this Court entered 393 F.2d containing located in needs and following provision: inantly neighborhoods ex- and the existing CONSTRUCTION located pansion neighborhoods with the Negro To extent consistent vio- predominantly operation proper spirit letter and the both late will, whole, Montgomery the school board designing plan as locating desegregation schools, Examples System. of this School facilities, existing expanding con- Davis the Jefferson construction are the schools, solidating Elementary ob- Crump do so School, High the Peter past ject eradicating Elementary discrimination the Southlawn effecting desegregation. neigh- and of predominantly white School—all Haynes- not fail to consolidate expansion board will borhoods—and desegregation High would re- schools because Carver Road ville Negro sult. predominantly School, both approves as the Court such time Until these neighborhoods. location survey plan capacities on the conducted based proposed and their herein, pursuant con- IV to section construction of this effect cause suspended all for struction shall perpetuate dual school expansion to building projects planned at which ac- Montgomery upon system race based * * * not been com- has tual construction System. All of County School menced. fail- the defendants that this means * * * authority system of this has the the school seek a whole” to permit provisions vestiges means from those to to deviation eradicate the of the system. necessary give dual decree deal with which is to Jefferson policy.” consideration matters of substance to the race of stu- relating to new dents. our most recent decision is clear from this record construction, United States that neither the state board nor the appellee sought carry of Polk of Public Instruction to out this af- 25768, County, Fla., obligation, proceed- F.2d 66 firmative [No. before ing April Judge speaking 1968], with the Tuttle, construction of this al- pro- ready planned Court, quoted approval school. regarding vision of the decree Jefferson III. pointed construction, then out: new admittedly Here the Board declined to appellee inasmuch contends that patterns.11a consider racial residential planning as the Negro Instead, it chose the centers of race, made reference to there without areas, present projected, residential part of was no conscious effort on the many building new schools. This sys- perpetuate the dual the Board to program was carried out a school dis require- not tem. This does meet the illusory trict where an freedom of choice court order. There is an ments plan, comply one that does not with the overriding duty, all other affirmative many respects, standards Jefferson respect to the lo- considerations with desegregat has resulted in token schools, except cating Negro where of new ion.12 A few children attend many operation schools, “proper white chil inconsistent with duty discharge judicially affirmative the op been ed to liave condemned —their ef- places upon ground them to eliminate fort not to be on law frustrated system.” permissible that race not a eration of a dual school considera- provision: tion. not This is order contains ‘consideration of race’ Court’s approval which * * * will obtain the Constitution “The school board discountenances. legally Superintendent protected of Edu there is no from the State pro segregation. prior letting vested interest were, If contracts for there cation ceeding any then Brown v. Board of Education with the construction existing on numerous decisions based that additions to school or pointless. will, Superintendent case would be Courts will not The State school. upon say ap receipt proposals, one breath that take of such systems may practice segregation, proposals propriate re on said action nothing 1967, quired the next that do en March decree County eliminate it.” Wanner v. in Lee et al. Macon tered Arlington County, Va., F.Supp. 458, Board of al., 4 Cir. Education et F.2d 454-455. 470-472, 480-481. respects 12. In a number of the Houston Dougherty County Board of 11. Gaines v. plan falls far short of the standards re- F.2d 5 Cir. quired by Assignments Jefferson. are initially constitutionally on made the basis of race. The 11 a. “If a school board plan require system does not all to make students of racial to institute a forbidden an annual choice. only 26,000 out The Board sent bound use of artificial parents per ary lines, letters or notice forbidden is likewise 236,000 students; in a district of these petuate has been so that inexplicit stultifying no were and contained choice to hold It would stituted. * * * up forms. Bus routes “were set ar move to undo that a board segregated “present artificially rangements on basis” to ef contrived transportation transportation policy segregation, or maintain fect ground continue”, now will routes force with the this interference Westmoreland, quo as Dr. Assistant Director ‘consideration involve status Transportation, authorities, recog for Negro testified. Some. of race.’ When seg- existing are 20 miles to children bussed nizing con historic fact schools, gregated although segre design there on the are based ditions illegal much closer races, white schools homes. gate undo these act to plan given parents. especially No notice of the conditions conditions — peripher- plan great choiee therefore was not mass of resegregate, dren question fact al but was the central to re Negro continue in Houston children in select- Board should have considered in that education the inferior ceive ing schooling.13 school sites. The foreseeable segregated new delibly part of genuflecting free- effect of mere toward plan “freedom of choice” Houston’s carrying of out new dom choice while existing superimposed dual at- was existing building program to freeze was Superintendent of zones. The tendance “Negro” patterns. schools school Old school that the various testified Schools Negro schools and are to continue as boundary now determine lines which being Negro for all- schools built new assignment “are to schools of children Negro student bodies.14 vestiges schools did have when of Negro plaintiffs The law”; taken segregated that They position. for pretty moderate did ask “maintained lines have been these bussing. modestly They cross-town ask- The since 1964”. much on the same basis pat- ed the Board consider to residential apologies, in its asserts no Board with any terns of as one of a number relevant selecting “In school sites brief, factors in the site selection of Dis- Houston School new schools complaint schools.15 The asked trict, segregation a factor”. was not injunction against an construction freedom of the Houston’s failure every yet requested per cation has that child Approximately cent of all (cid:127) ‘neighborhood’ Negro attend to his at- children in Houston school neighborhood per if all-Negro school Negro school is a Two cent schools. tend Every junior high integrated school. Board of Education schools. attend every right assign integrated has per claimed the to senior cent attend One trial, white child to a than the high school other As of the date of the schools. neighborhood secondary assignment school under such circum- to schools yet, suggested stances. And when dual racial boundaries. on the old based Negro Negro neighbor- that children in Jefferson, at F.2d permitted 5 Cir. 14. In hoods be segregated pattern to break out of the boards, utiliz- we “Here school said their own race assigned zoning system, ing ‘inherently unequal’ the dual order to avoid the Negro Negro schools and ‘separate teachers facili- education educational Negro neighborhoods as suitable ties,’ selected the answer too often is that Negro schools. ‘neighborhood in which to locate areas their children should attend ” Negroes the concentration Of course school.’ neighborhood in the increased Review of rela- the record and Exhibits together. effect came Transportation, Pupil Assignment, Cause and school. tive to therefore, circuit, the location placement plan’, In this Negro the ‘choice new Negro faculties schools in- schools leaves little doubt to the neighborhoods Negro clearly white schools tent of the local district —it is perpetuate segregation neighborhoods be de- cannot any in white cost. The fortuity.” concept neighborhood scribed as unfortunate is but an- Commissioners illegal of School Davis end. other means toward that County, F.2d Mobile plaintiffs Negro Court, 15. The chil- Tuttle, contend 896, 901, Judge living dren are bussed spoken near white schools means as a observed: “When up Negro to fourteen miles schools and Negro require continue children to Negro living vicinity that white children near Negro attend a ‘neigh- schools are bussed to white schools. homes, spoken as a it is Negro plan Board counters that children plan. When the borhood’ permits may get Negro off the busses to attend his child leave a white along way which ‘neighborhood’ a white school to attend ap- with the freedom attend accordance ‘neighborhood’ it becomes in another parent plan. of choice ‘neighborhood’ some- building- every again. thing member of divided the As else neighbor- projects categories: (1) knows, into three there are this court city every expanded facilities areas in the South hoods heavy Negroes (as Negro and concentration of both contain which South acknowledged people. the board come these far as has So White building program Court, in con- of Edu- would result no Board of this attention pro- integrated, unitary public in manner all an “in such a as will facilities segregation perpetuate system and mote substantially delay desegregation”. based on school administrators and/or ways affirmatively finding to make plan work. IV. Black nationalists and white racists majority in of the Court When the contrary, integration to the rel- is plaintiffs’ request rejected for case injunctive objective It evant. is an educational pending appeal relief imperative. well as a constitutional building program became a Board’s fait accompli. By therefore Houston now plan desegregation for continued token SUPPLEMENTAL OPINION. by program is near- school site selective CONNALLY, Judge. District ing completion. not It is too late however survey for the situation Board to While I the issues consider both expedients propose to undo the presented fact of law this rec- building policy. fully effects of its ord to have been discussed and clearly original opinion, decided a note of not late to sound It is too Wisdom, Judge the dissent of constitutes in cities boards other caution to school an the defendant indictment of large-scale may adopt con- which majori- Board ty and an accusation that deference, program. I With struction disregarded” “flatly accept- herein suggest boards bear that such school I ed law this Circuit.1 Hence feel an majority’s ir- decision is mind appropriate. The additional word Jefferson, Ma- Lee v. with reconcilable for theme indictment of the defend- Education, County con Board sufficiently ant that it is not Board is fully Braxton-, recent decisions and that integration oriented, and the con- charge, general spe- support Jefferson, trary findings court, of the trial cifically It is construction. as to school looking that what it has done toward not late heed these decisions. too desegregation good not done in has been I in this cir- all school boards remind faith.2 on Houston relied cuit declining authority Briggs for should be borne mind that the as its plan, freedom take affirmative action overcome of choice the bona seg- system jure application, here, fides of its is at issue effects of the dual de Briggs regated all, only peripheral fallen. if at But has in a sense. schools. construction, bridge squarely entirely sepa- issue is a There resting Constitution, connecting pending rate action since 1956 in the Negroes designed lead District Court of the Southern District whites and starting Texas, young problems chil- races, the dren, where most two harmonious, peaceful, desegregation upon civil- attendant to a of this largest bridge plan That ized school district have existence. south opportunities for equal been amicably, solved and where educational the solu- “ (1) example, For . . . tlie foreseeable Board’s tinued necessarily policy, future); (2) projects, unyielding ... trans- areas, parently Negro dodge planned segregated to maintain residential patterns segrega- (2) illusory schools.” “Houston’s free- which will reinforce tion; having plan.” (3) (3) projects dom of “A an uncertain choice freedom plan segregation. (such Houston’s) choice effect on experts graceless genuflection a committee toward the asked for study unitary integrated public system projects determine these requires.” segregation. the Constitution effect on steps No mention is made of the taken States v. Jef United As announced faculty integration, integration toward ferson program, the designed the bus athletic F.2d 385. exercise to facilitate the plan, freedom choice etc. lieve, considerations general approval additional had tions The Houston (1960); heretofore mentioned. Ross Court, 282 F.2d 95 only party in- Board is not the (1963). Dyer, F.2d 191 litigation or would in this who terested this here is whether is at issue What injunction by adversely affected plan- program, million construction $59 ned, plaintiffs There are which the seek. long begun financed, before subcontrac- hundreds contractors giving controversy had rise to Jefferson whose tors, of laborers and thousands opinion, matured, which while project disrupted if this work would be ultimately Circuit, in the law this became 230,000 scholastics were halted.4 author, lay in the heart of its dormant improved which need the facilities contrary enjoined as should be Jeffer- (or were) in of construction. the course son.3 by Their interests would not be served granting injunction. imposed duty on school au- Jefferson with thorities “to the extent consistent And what is the alternative ? proper operation of the school sug- plaintiffs offer none. There is no affirmatively as a whole” to consider the gestion Tract A would be a better proposed which new location effect expansion compari- site than Tract B. is no There might upon question accessibility, price, son of or of integration; of possible and to choose between plaintiffs other factor. The ask that which would alternatives delay, so that someone search for integration promote tend to student plaintiffs might other sites which the perhaps more bodies. This mandate is more this consider suitable. Whether clearly spelled out United States years require six would six months or of Polk Board of Public Instruction Meanwhile, district disclosed. (5th Cir., County, Florida, F.2d 66 pay would be on its interest 1968). Admittedly, April 18, Hous- debt, million and all of those whom $59 ton school authorities did not affirma- deprived of the new it serves would be tively factor, this but followed consider a court facilities. We do not feel that by then sanctioned both practice, equity should lend its hand to selecting custom, law sites which programs result. Other construction will the needs of all of the best serve selected, begun, since and other sites Board’s scholastics of the district. The should, They has been written. Jefferson good seeking faith neither to attract will, with no doubt be undertaken of either race to nor divert scholastics in mind. should not be its mandate given particular af- or from a school is found unfairly to a retroactive effect upon firmatively trial court good penalize program undertaken in question then abundant evidence. The compliance faith and full law equity en- court of should whether a as it then existed. magnitude, join program well of this all, granting injunc- After of an way, the school authori- because discretion of tion rests sound sufficient ties were prescience endowed with accordance with by Court to be exercised anticipate Jefferson light principles equitable years. answer two We would and circumstances all facts negative. required, we be- This bane Jefferson chronology March 1967 —en 3. The is as follows: opinion. May 24, present action filed 19G6— Court; District that not a n word interesting to note July 13, opinion 1966 —District as to whether been said has heretofore filed; willing post were able damage protect against December 1966 —first Jefferson if bond to opinion; injunction wrongfully. be issued party January present to this is not action United States sub- 1967 — Court; mitted to this action. especially here since case.5 That is true constitutional

the record shows

rights pro- of the students are otherwise adequate freedom of choice

tected

plan. opinion, abusing In our from far discretion,

its the District Court acted

properly under cir- facts and all

cumstances of this case.

NATIONAL LABOR RELATIONS BOARD, Petitioner, COMPANY,

CONTINENTAL NUT Respondent.

No. 22338. Appeals

United States

Ninth Circuit.

May 22, 1968. (argued), Davison Arthur A. Horo witz, Attys., Ordman, Arnold Gen. Coun Rehearing July 8, Denied sel, Manoli, L. Associate Gen. Dominick

Counsel, Mallet-Prevost, Asst. Marcel Washington, Counsel, N.L.R.B., Gen. D.C., Roy Hoffman, Director, O. N.L.R. B., Francisco, Cal., appellant. San Littler, Wesley (argued) J. Fastiff Gladstein, Fastiff, Mendelson Ander- & sen, Francisco, Sibbett, Leonard & San Cal., appellee. Judge MADDEN,

Before United Claims, States Court of and MERRILL BROWNING, Judges. Circuit Judge: MADDEN, Labor Relations Board National court, pursuant petitioned has § 10(e) of Relations the National Labor Act, seq., et for en- U.S. Code § forcement of the Board’s court directing respondent, order Continen- bargain collectively Company, tal Nut Union, Local with Warehousemen’s Am.Jur., Injunctions 14; Montgomery, § 43 O.J.S. Alabama Gil- Injunctions 370; more, § P.2d 5th Cir.

Case Details

Case Name: Onesephor Broussard v. The Houston Independent School District

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 30, 1968

Citation: 395 F.2d 817

Docket Number: 24018

Court Abbreviation: 5th Cir.