United States v. Desoto Parish School Board

BROWN, R. JOHN Chiеf Judge: appeal, In this we must determine wheth- er the is entitled to the addi- United States finding District Court’s affirm the We it seeks measures remedial tional plan has not began desegregation the 1970 Litigation suit. desegregation violation estab- cured the constitutional the United when January, ago and the conclusion lished over a decade the Civil under Title IV complaint filed a Given this 2000c-6, required. further relief is to that 1964,42 U.S.C. § Act of Rights conclusion, any suf- finding and and absent in DeSoto public desegregate effective, finding that no workable ap- ficient District Court Parish, Louisiana. feasibly can be plan alternative to the 1970 in 1970. proved the District implemented, we hold that a motion for filed 1975, the United States erred in to order additional refusing Court had relief, alleging further extreme measures to correct remedial the dual failed to eliminate to exist continue order and imbalances racial asking the District therefore We Parish schools. modifications. the DeSoto comprehensive implement and remand.1 reverse claimed the Government Specifically, ra- to eradicate failed had the defendants schools, comply failed identifiable

cially requirements assignment faculty with the I. Singleton for this Circuit established District, Separate School Municipal Jackson System Parish School The DeSoto banc), and (en Cir., 1969, 419 F.2d near the located parish is a rural DeSoto student segregated operate continued to In Texas.2 and between Louisiana border hearing, evidentiary an After system. began this 1967, when the United four of found that the District Court eight consisted suit, the school by attended were eleven schools parish’s In schools.3 all-black and seven all-white the racial bal- and that students only black on the ruled 1976, the District Court when Singleton -had by required of teachers ance relief, the further motion for Government’s The District achieved. not been schools.4 Five eleven operated school board the Government’s nonetheless denied Judge High School schools—All Saints of thеse relief, only that ordering for broad request (grades High School K-12), DeSoto (grades reexamine and (grades board High the defendant school School 7-12), Ward Second system. High School transportation modify Logansport-Rosenwald the student K-12), Elementary con- any changes K-12), and Johnson (grades not order Judge The did built originally assign- K-6) (grades of student methods cerning other School —were Judge District Court additional for blacks.5 require ment and refused four year, that, 1975-76 school The found faculty. integrate measures by attended were still these schools grant limited from this appeals Government a student students, the fifth had black of relief. 17:331-334, cases, 555, derived from practice held a Acts 1954 No. in school we 1. As is our Court, (repealed 1957). 1-4 §§ Until no white attended a member conference case, and, any student parties, DeSoto Parish in this attended counsel for the originally blacks; designated drafting during for superintendent In of schools. year, only pro 1969-70 school opinion, the conference black students wе have relied on ’ 3,720 (out parish) enrolled in the used a ceedings in contention to focus the issues option orig- parties agree. freedom of choice to attend schools facts on which the inally built for whites. Hall v. St. Helena Par- Bd., Cir., 1969, ish Sch. 417 F.2d 814. Logan, Indeed, years Gallo- students Texas, Sabine, way, communities small border, just buses to have taken across the schools, 4. Four traditionally two black and two Logansport High DeSoto Par- School in attend traditionally white, have been closed since this ish. litigation began. See note infra. Kindergarten was required that the Louisi- added to law 3. Until state each school that taught elementary grade segregated operated public on a schools be students in ana the 1973- year. 74 school (1932); LSA-R.S. 1§ basis. La.Const. Art. population percent that was 97 black.6 The the all-black schools in close are located schools originally built to serve white pupils proximity predomi- to schools that remain exclusively High (grades School nantly white.8 —Mansfield 8-12), (grades K-12), Stanley High School During term, faculty the 1975-76 12), High (grades Pelican School Stone- K— taught public members the DeSoto High (grades 12), Logans- wall School K— systemwide schools. The ratio of black to K-12), port High (grades School and Mans- white teachers segre- fifty-fifty. Elementary (grades K-7) field —had gated condition of the schools extended to ranging student bodies from approximately as faculty students; well as until percent percent 1975-76, to 85 white. In 1968, no white teachers were schools were parish attended a total traditionally and no black 5,880 students, percent of whom 60 teacher taught at a school built for white white, percent black and 40 a ratio that has students. after five school years of began.7 remained constant since this case operation under a desegregation decree, the As the points District Court’s 1970 order faculties of the traditionally black schools out, ranged there is little concentrated residential percent from 59 black, percent segregatiоn in while parish; popula- the black the faculties of the six traditionally tion is throughout scattered area. schools ranged percent from 81 to 71 Since all the schools were built under the white.9 system, dual are located so that each The 1970 Desegregation Plan area of the parish is served at least one traditionally white school 1970, and one tradition- In after protracted litigation,10 the ally result, black school. As a several of school board was comply ordered to with a 840, 1975, school, Saints, 385, denied, (en banc), fifth All 389 U.S. 6. cert. 389 67, 103, holding School, High originally 88 19 that school paired S.Ct. with Pelican duty to students, boards “have the affirmative bring ... compensate built for white to for de- integrated, unitary sys about an clining enrollments in both As schools. of Jan- Negro schools and tem in which there are no 1977, uary, High All Saints-Pelican School just District no white schools.” The 7-12) schools— (grades population had a student that approved on remand a freedom of choice Court time, percеnt was 82 black. At the same Peli- Bd., 1968, option, Conley v. Lake Charles Sch. Elementary can and All Saints W.D.La., F.Supp. 84; 293 the Fifth or Circuit body paired, resulting in a student that was 85 v. dered that this be reexamined in Adams percent black. Mathews, Cir., 1968, Dis 403 F.2d 181. The of choice trict Court’s reaffirmation of freedom figures by 7. Enrollment race and school since Parish Sch. was reversed in Hall v. St. Helena A, Appendix supra. 1970 are charted in Bd., Cir., 1969, 801, denied, cert. F.2d 904, 218, 180, the 24 L.Ed.2d and S.Ct. example, Logansport High 8. For (93 School light of case remanded for reconsideration in percent white) Logansport-Rosenwald and County duty articulated in v. Sch. Green High (100 percent black) School are 1.2 miles 430, 1968, County, Bd. of New Kent 391 U.S. apart; Elementary (74 per- Mansfield School 716, S.Ct. 20 L.Ed.2d to “come forward white), High (72 cent Mansfield School realistically plan promises work with a that white), Elementary (100 per- Johnson School ap then . now.” The District Court black), High cent (100 and per- DeSoto School proved plan by the school board formulated black) approximаtely cent are three-year implemented 1.5 miles from that was to be period; over High each (54 percent other. Pelican School in United States v. DeSoto Parish Sch. white) is Cir., 0.9 High Bd., miles from All Saints School held 420 F.2d this Court (100 percent black); Singleton plan inadequate light these schools have been in of paired Cir., Dist., Municipal Separate since this case was Sch. decided. Jackson 1211, 1217-18, (faculty and staff 419 F.2d desegregation accomplished effective to be Faculty distribution race and school since 1, 1970). February Singleton de allowed the Appendix B, 1970 is charted supra. segregation dis in several school of students February beyond tricts to be deferred progress litigation 10. The of this mirrors the portion reversed This of the decision was progress desegregation. of the law of school Supreme v. West Feliciana through jour- Court Carter repeated can be Both traced Bd., 1970, 396 U.S. neys Parish Sch. 608, the suit has made to this The Circuit. Fifth ordered injunction 24 L.Ed.2d 477. The Circuit District Court’s 1967 followed the deseg prеpare complete the school board decision of this in United States v. Jeffer- 1, 1970, County Educ., Cir., 1967, by February regation “in the event” F.2d son Bd. of it Mansfield constitutes one plan city on a of decree based areas: zone, contains three subzoned and plan Court.11 This the District submitted to area an all-black residential one surrounds to schools under one students assigned living there to Johnson assigns and children arrangements. Students three alternative High and Elementary School DeSoto zones established living within attendance black; School, completely which are designated attend a had to plan High assigns students to DeSoto second school, majority-to-minority subject area; from an all-black residential School who did not Students proviso.12 transfer of the zone covers the remainder third area attended live within a zoned predomi- students to the city, assigns and the bus the destination according to and nantly High white Mansfield School not live who did Finally, any student rode. Elementary At the hear- Mansfield School. his own trans- provided in a zoned area many ing, school officials admitted of his or the school could attend portation zoned to Mansfield Ele- the white students her choice.13 mentary Elementary, live closer to Johnson High and those zoned to Mansfield Zones Attendance High live closer to DeSoto School [Tr. zones four established The 1970 33-35.] hearing, the At the parish. within showing city comprises The second zone evidence presented United States in the west and south- noncontiguous, Logansport, located are the zones drew parish. are drawn of the portion zones west instances several Logans- ar- within residential for one subzone homogenous boundaries racially around part residential living there black port around the assign the children eas students to the for students of the area designated originally a school Logansport-Rosenwald principally children race, frequently and that of that city The remainder High School. primarily schools attended are zoned to white Lo- traditionally to the race was zoned of their own by students exclusively zone in The third High School. gansport closer located other schools when area, Stanley encompasses the parish the the zones of pattern their homes. region. in the southwestern also located this evidence. with consistent by signed by aspect bus routes: to school race and Supreme did reverse Court the bus that both each student would board the Singleton. was decid- after Carter On remand passed ap- closest to his home and that carried ed, readopted the Court the District race, incorporate 1969, modifying of his and would attend the proved students own it to in the routed. school to which bus was require implementation Singleton effec- and to February tive plan provided assignment by 13. The 1970 appeal the did not from The United zones, transportation, majority-to-minority and approving the de- 1970 order District Court’s option permitting living transfer. The students plan. segregаtion outside zoned areas to attend the school of they provided their choice if their own trans- requirement plan incorporated a 11. The 1970 portation was based on the school board’s in- reports annual to board make that the school terpretation of the Court order to mean that “if requirement has a District Court. Such the go a child rode the bus ... he must g., practice long in school cases. E. been the transported the school to which the bus him. of Educ., County Bd. v. Jefferson United States get bus, If he did not on the then he was not banc). (en Cir., 1967, A F.2d order, covered under . . the and requirements reporting more detailed set may he quested enroll at the school to which he re- December, by motion on ordered in [Deposition Superin- enrollment.” reports have used these We the Government. McLaren, Douglas tendent of Schools at 103.] findings reviewing and in District Court’s in understanding current conditions. Although concentra- is no monolithic there area, any single in there are tion of blaсks neighborhoods prior racially homogenous pockets to the zones existed 12. No attendance parish. plan. throughout as- Students were scattered revealed reports 1974-75, the school board’s zone, most this within living The students on buses be should to the that 129 white students white, assigned are of whom No white black schools. High formerly School. Stanley routed traditionally white buses; at- none rode such actually the Stonewall- student covers fourth zone Of the section school. formerly the northern black in tended a area Ward Second two into the buses 2,544 is divided who used The zone black students parish. principally (or percent) a encompasses term, first 1975-76 parts: assigns students and area on white residential Based formerly white schools. rode to traditionally it to living testimony within of bus driv- figures such and sur- School, the second and High at presented Stonewall ers and school officials area residential black largely a found that rounds District Court hearing, wholly it to the within the dual directs students had maintained the sсhool board High imple- School. prior Ward Second bus that existed 1970 decree. mentation of the contention To assess the Government’s any con- must be altered the zones The dual bus system was characterized meth- plan, the other stitutionally sufficient overlapping and circuitous routes. Two included assignment of student ods buses traveled down the same road or same examined. must also be general area, one picking up white students to take them school, to a traditionally white and one picking up black students to deliver Bus Routes them to a traditionally black school.16 Al- districts, large a many As in rural school though the plan prohibited routes by attending public portion of the students which “past” buses would be driven Parish ride school buses.15 school DeSoto attended by children of a race different living that students plan provided The 1970 those riding bus, prohibition area who did not furnish outside a zoned was circumvented by highly a literalistic would be transportation their own interpretation. Buses frеquently virtue of the bus rode. a routed circuitously to passing avoid directly contained two further limita- provision This in front of schools attended students of a transport- tions: no black student was to be race, different resulting in unnecessarily school, “past” ed formerly all-white long trips that ended at schools originally transported no white student was to be designated for children of the same race as school; “past” a no stu- formerly black the bus passengers. [Tr. 82-95.] stop dent use permitted would be particular, the Government directs our at- his home in other than the closest to one tention to the white students from Logans- order bus. riding particular to avoid port and Carthage, Texas who ride buses to the that under projected The school board predominantly Logansport white High School, would ride although this 352 white students the Logansport- all-black In Rosenwald formerly buses black schools. school is closer. routed to system containing only term, 3,500 rode buses approximately students In the 1975-76 of one race. Of the students, 449 black students who over 60 of the total school formerly traveled bus to white population, rode buses to school. Of (91 percent) carrying only rode on buses 2,544 black black, group, 1,073 were and were white. students. [Government Exhibit 7.] at [Tr. 61.] In segregation according addition to to stu- route rather to a bus were 16. Students passengers, dent the record reveals substantial testified particular officials bus. School a than segregation Seventy-three bus of bus drivers. stop, a child one if two buses come that employed drivers were the 1975-76 40; at bus to ride. [Tr. choose which could year; forty-four the black drivers who were Ray- Transportation Supervisor Deposition of carried no white children on their buses. 1975-76, per- Powell, over 90 mond 13.] Exhibit [Government 7.] using the white students the black and cent of The agreed District Court with the Unit- Faculty Assignments ed in finding “. . . the incorpo decree desegregation School Board has failed to achieve the racial ‍‌​‌‌​‌‌‌‌​​‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌​​​​‌‌​​​‌‌‌​​‌‌​​​‍Singleton v. of requirements the rated for in Singleton.” balance of teachers called District, Separate Municipal Jackson However, the District to Court declined or- 1211, 1217-18, the F.2d Cir., compliance Singleton der strict with the sys the must reflect of each school faculty requirements. Judge cited two reasons faculty of members racial ratio temwide gradual, yet for this steady, decision: accept reas faculty members must and that improvement the racial balance em signment as a condition continued faculties achieved most schools since hearing, At the 1976 ployment. to and his order “strict disinclination re neither officials admitted that board in either student mathematical ratios” met, the District and had been quirement faculty assignments. hope a Expressing which the “five schools found that Court future, rapid improvement for more serve to originally constructed essentially modified the the District Court to have substan continue black students declining of the decree terms faculty of black percentage higher tially Singletоn it incor- requirements enforce designed to which were the schools then porated. students, although ratio of serve ap is teachers ... law, to white errors of both fact and we Finding for and that no percent,” proximately 50 reverse. faculty a “black white school had merly percent.”

percentage than greater II. system When a school is found to Ruling The District Court’s On The Constitution, duty be in violation of the For Motion Further Relief of the responsible state officials is clear compelling: necessary steps “to take the ‘to background largely undis Against this facts, vestig eliminate from all public the District Court found that puted ” state-imposed Milliken segregation.’ the schools constructed es “[although 267, 290, all practically have all or Bradley, blacks remained v. S.Ct. U.S. order, it black even after the 2749, 2762, 745, 762, quoting 53 L.Ed.2d whether this situation results is unclear Charlotte-Mecklenburg Board of v. Swann the student attendance zones or from 1, 15, Education, 1971, S.Ct. U.S. transportation system. . . . 1267, 1275, [T]his If the is inclined to believe that trans the re duty, defaults in its school board has portation system been the con primary equally of the District Court sponsibility Stating tributor the one-race schools.” its compelling: use broad clear and implement has equitable powers the “School Board failed to dis flexible that, to the burdens remedy while sensitive system mantle the dual of student transpor prac that can result from decree and has to comply tation failed with the involved, “realisti promises limitations tical spirit order,” . . . County Sch. Green cally work now.” judge parties trial ordered the to reexamine 1968, 391 County, Bd. of New Kent for the plans the bus and submit 716; 430, 439, 20 L.Ed.2d circuitous, and overlapping, elimination of Swann, supra. denied the segregated routes. The Court from the requested relief Government’s Assignments Student operation continued of the attendance zones This the school option. plan the freedom of choice formulated The finding adopted by the District Court implicitly premised denial is on board pop in student expected rеsult aspects plan of the 1970 had 1970 that these rang schools formerly “primarily in” ulations or “resulted contribute[d]” black, percent percent 76 to 98.5 ing the schools. segregation of the continued 812 formerly white at the Charlotte-Mecklenburg Education, bodies Board of

and student to 90 per- supra, percent 54 402 91 ranging from S.Ct. at 28 schools actual statistics for en- L.Ed.2d at 572. As District cent white.17 ap- found, never results rollment show that the school board is unable to meet though modest proached expectations, question appeal these burden. The on is 1975-76, of the five In four were. whether the 1970 as plan, modified order, black; District any sig- remained 100 Court’s 1976 offers percent black schools promise schools nificant formerly eliminating remained 67 to the one-race pervade 85 white.18 schools that parish. board’s most report recent to the District Court reveals 1977-78, same four schools are The District Court that the found only by

still attended black students. composition racial “pri of the sсhools was authority’s proposed plan “Where marily” due the school board’s unconsti a unitary for from a dual conversion discriminatory tutional retention of system contemplates the continued exist- dual system. finding, So implicitly predom- some that are or ence of all finding that other aspects of the 1970 race, they of one inantly have the burden of challenged particular Government — showing that such school assignments are ly the attendance zones and the free choice genuinely nondiscriminatory option not cause the segre continued —did racial composition gation, [and] [the schools’] the Court ordered revisions in the present past not the result of discrimi- bus but to require routes refused more radi action their natory part.” on Swann v. cal plan. modifications in the 1970 We hold submitting plied following figures projections its to the as sup- expected February District Court the school board enrollment as 1970: Schools

Former Black Transported Total Percent Zoned B W B W B W B W 3 104 344 376 720 87 13 101 DeSoto 82 421 295 80 716 90 10 2 Johnson Longstreet- 14 14 122 122 89.7 10.3 Rosenwald 0 Logansport- 114 114 76.1 75 288 363 23.9 Rosenwald 33 33 92 8 Saints 382 382 All 0 12 164 647 811 98.5 1.5 10 Second Ward Former White Schools W W W B B B B W 213 200 300 619 32.6 67.4 87 419 Mansfield Elem. 73 65 131 344 27.6 72.4 58 279 Mansfield H. S. 0 Logansport 296 54 488 90 54 192 10 Stanley 72 245 173 56 18.6 81.4 56 0 54 Pelican 27.3 72.7 Stonewall figures year 18. The actual enrollment for each desegregation plan operat- in which this school Appendix ed attached as A.

813 The can be made. The bus routes were altered clearly erroneous. finding is this that several evidence that to the order. The racial dis- pursuant with 1976 replete is record to the in of no plan, addition tribution the schools showed almost of the 1970 aspects con- result, failing resulted in the as a even realize system, change to segregated by racial imbalance the very projections the modest cast tinuing and extreme merely the 1970 is finding sig- no that school board.19 Until is schools. There modified, no nificantly possibility is to succeed we see likely routes modifying the bus school ever itself of system of the this will rid composition altering racial in the finding vestiges state-imposed segregation.20 of the not believe such Wé do schools. transportation plan adjudication submitting lower court’s revised of 19. In its unitariness and 1976, presuming part an in board intent to the the school discriminate on the to projected District Court of local Demopolis City, attend authorities. In both 276 white students would DeSoto Parish and schools, by ended, resulting segregation in student law has the four all-black subsequently but neither ranging this event nor populations re- the schools from 87.7 at quired steps desegregate figures affirmative percent have black. attendance substantially altered the racial the balance of terms show that none the 1976-77 and 1977-78 Lee, In enrolled; schools. this factor was sufficient the these students have of Brinkman, distinguish and we believe it suffic- black. schools remain es here as well. Lee, however, rely Unlike system we need not simi- on a We find the state of school presumed intent to discriminate. The District system v. the before in Lee lar to this Court system found Court that the school remained 1977, Cir., System, City Demopolis dual and that the school board had maintained proce- 1053, the where we held that F.2d segregated bus routes. Because the District Supreme last term the Court set forth dures found that the Court neither attendance zones Brinkman, Dayton v. of Education Board in option played significant nor the free choice 2775, 420, 406, 2766, 1977, 433 U.S. S.Ct keeping system segregated, in role the school it 863, govern 851, extreme “so did L.Ed.2d aspects not consider did whether these other of “unique Brinkman statistics.” with case” such the 1970 against were intended to discriminate that: instructs reversing students. the denial of duty the Court both District of assign- relief from these methods of student this, Appeals as in a case such the Court of ment, presume they we need not mandatory segregation the law of where devised with an intent retained to discrimi- ceased, long is has in since races the schools nate, nor ask the District Court to make find- any whether there first determine ings present. on whether is such an intent Our of the business in the conduct action mandаte for further relief is based on the Dis- to, did which was intended school board systemwide finding trict Court’s clear of a vio- fact, minority pupils, against discriminate correcting only We lation. are not limited Davis, Washington su- or staff. teachers specific those have actions that been found 229, 2040, pra 96 S.Ct. 48 L.Ed.2d U.S. [426 intentionally discriminatory. Nor are we re- quired to send the case back to the District parties should be free to introduce All 597]. testimony and other evidence such additional that, findings considering Court for of fact the may appropriate. as the deem District Court any change lack of racial distribution found, If such the District violations seem to us to obvious. be instance, subject first to review Court in the “[W]here, here, as a constitutional violation Appeals, how determine the Court of must found, remedy has been does not ‘exceed’ segregative vi- much effect these incremental remedy if the violation is to cure tailored on the racial distribution of olations had Dayton ” the ‘condition thаt offends Constitution.’ presently population con- as 1977, 267, 282, Bradley, 433 U.S. Milliken v. stituted, compared that distribution when 745, 2749, 2758, S.Ct. II], 53 L.Ed.2d [Milliken have been in the absence to what it would 1974, Bradley, quoting Milliken v. 418 U.S. remedy violations. The such constitutional 717, 738, 1069, difference, S.Ct. designed to redress that must be I], that offends systemwide The condition [Milliken only has there been a and impact may if jure remedy. segregation systemwide Constitution is the de abe there Denver, Keyes schools. that must No. Colora- The remedial measures District [School 189], necessary do], supra S.Ct. U.S. at be ordered are “to restore the [93 those [413 posi- discriminatory 548]. 37 L.Ed.2d victims conduct to the [Emphasis enjoyed . in a added.] tion would have . pervasive jure Demopolis, that the de ra- felt free from In Lee v. II, segregation.” elementa- at composition of the two cial Milliken one-race ry reversing city justified at schools in a small 53 L.Ed.2d provide who can their own clearly transportation The attendance zones affect the has, if anything, greater effect cоmposition racial on the schools. The 1970 racial composition of the schools than projections assignment show that on the zones. Because almost all of the white within an attendance residence basis of areas, students live they outside zoned are pro- for a substantial zone would account essentially free to attend the school of their enroll in expected to portion of the- students hearing choice. Evidence at the 1976 indi- stu- Because fewer the various schools.21 arrangement, particularly cated that in buses, zoning rode the projected dents than overlapping combination with higher per- accounted for a assignments routes, allowed white in parish students projections than the centage of students “a number of ... options avoid no white students áre Virtually reveal.22 - school, attendance at a black schools, a formerly black zoned to attend without attending private school.” [Tr. of zone congruence result аchieved 29,118.] That these options were used is racially homogenous neigh- boundaries with 1970-76, clear: from only 13 white students borhoods and schools.23 formerly attended black schools.24 option “free choice” available to long stu- As as the attendance zone bounda- dents who do not live in a zoned area and ries are retained as drawn the free County Educ., projections assignment Cir., 1966, 836, 21. These show that on Bd. of 372 F.2d banc, 1967, 385, denied, aff'd en the basis of residence within an attendance 380 F.2d cert. 849, approximately zone would account for half the we do policy believe expected explains that such a students to enroll in the these four Mans- zone schools, boundaries. The zone lines deviate from field projected three-fourths of the students “neighborhood” lines; lines school, to follow Stanley racial to attend the one- many children live closer to a school assigned than the third of the students to Stonewall assigned one to attend under School, the zonе High percent the students system. long We recognized have that where projected Logansport-Rosenwald, to enroll at “some attending white students are schools lo percent assigned and 20 of the students greater cated distances from their home than High Ward Second School. See note infra. nearby body schools where the student is all Negro,” neighborhood school does Logansport-Rosenwald, example, 22. At for not exist. Instruction, Ellis v. Board of Public assigned by zoning black students constituted Cir., 1970, (Ellis I). 423 F.2d 206-207 percent projected of the total to enroll at the superintendent neighborhood admitted that the However, school. none of the 114 white stu- concept drawing as a basis for the zone “assigned” dents to the school bus route tempered by lines was another consideration: School, High zoning ever attended. At DeSoto assigned keep fleeing system. students from (344 black and 3 white deposition at [McLaren 77.] students) of the total number of students projected However, urges 24. The Government to enroll in 1970. 1970- an additional causing factor continuing segregated assigned none 104 white students condi- tion of reassignment the schools attended, is the resulting bus route of stu- in a total enroll- closed, students, dents from the ment four schools per- of 665 that have black more than litigation began. since this High cent of whom live Grand Cane within the area zoned to School, originally whites, built for Elementary, per- school. And at closed in Johnson 1967; Longstreet (421 High School, designated students) cent also black and 2 white whites, projected body assigned by closed in 1969. student Students were at- Grand Cane were tendance zone. None of the 82 attend white students Mansfield School, High projected attended, School, Elementary Mansfield enroll at school ever School, High resulting originally Stonewall all a total enrollment of 828 black intended students. for white Longstreet students. Students from High given School were a freedom of choice option. The other two during schools closed superintendent Douglas 23. The originally designated this suit were for black McLaren, testified that the zone lines were Longstreet-Rosenwald students: High School away drawn to move from the “freedom of closed in Community and Grand Cane concept” “neighborhood choice favor of a High School closed in 1971. approach.” deposition, Students from McLaren at 59. Longstreet-Rosenwald policy designed reassigned neighbor- While a to achieve to two well-recognized exclusively by students, schools attended hood schools has the benefits for students, see United States v. Jefferson while students Community from Grand Cane the over- their elimination.” remains, eliminating Demopolis Lee v. City option choice Cir., 1053, 1054; System, will not 5 557 F.2d routes and circuitous lapping also, see this school United v. County States Seminole condition segregated end the Dist., 992; Cir., 1977, 5 Sch. 553 F.2d Ellis option, v. free choice With the system. Instruction, Cir., 1972, Board of white stu- Public 5 provide continues to board school 878, attending denied, 1973, 966, F.2d cert. alternative U.S. easy with an dents 1438, remaining (Ellis II). in S.Ct. while L.Ed.2d 700 school formerly black a history of The system. school public parish shows in this barriers, efforts desegregation physical insuperable ‍‌​‌‌​‌‌‌‌​​‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌​​​​‌‌​​​‌‌‌​​‌‌​​​‍No dis failed consistently tances, have demographic white students or prevent that obstacles schools, while black traditionally assignment of students in ways to attend that to such schools in segregation present are zoned would alleviate the still students significant numbers. DeSoto Parish schools. We not dp believe that the board has shown that that the deny board does The school present represents situation the maximum racially around gerrymandered zones are desegregation practically achievable. Unit neighborhoods, or that homogenous ed County Seminole Sch. Dist. bus routes and the free choice overlapping supra, 553 F.2d at 995. These factors dis an option easy have afforded children tinguish the in situations which this Court attending the black alternative to schools to approved plans retained one-race Rather, “assigned.” were which schools. For example, Stout v. Jefferson arguments justi- makes a series of board Educ., Cir., 1976, County Bd. of 537 F.2d degree the minimal at- fy 800, we a approved plan left three plan. under the 1970 For the rea- tained elementary schools racially homogenous on below, none of these arguments sons stated findings that this resulted from “geography are sufficient to excuse the board from alone,” demography and that taking steps additional affirmative to de- relatively schools served small num segregate this school system. ber of system provided students in a is that even argument first if board’s schools; all desegregated high students with by the plan, as modified District the 1970 Montgomery County Carr v. Bd. of order, any does not eliminate Court’s Educ., 1974, M.D.Ala., F.Supp. schools, one-race this school or all of the 1132, aff’d, Cir., 511 F.2d cert. de unitary status. still achieve system could nied, 1975, S.Ct. to several our attention The board directs approved we the retention of a declaring this Court opinions recent small number of predominаntly black ele despite the continu- unitary systems mentary schools on findings that residential racially identifiable ing existence of several discrimination, patterns, not caused the ra These cannot aid schools. decisions DeSoto imbalance, that no alternative could cial .contemplate a Parish. “We do not here desegregation, and that achieve effectively system including essentially two or three completely would attend a student every resulting from geographic one-race high school. integrated demographic surviving accidents as broadly in a integrated minor anomalies contrast, over DeSoto, by despite planning earnest and hon- program, all-black attend pupils them and like the black est effort to eliminate those never be will plan, and, the current under them, considerations of practical because There school. desegregated hazard, all but expense exposed distance or forbid reassigned High rеassigned Mansfield School and to a black school or went to such a School, Elementary option. both schools under a freedom of choice Mansfield [Tr. 16-18; deposition, originally at McLaren intended for whites. at 108-114.] that no white student The record thus reveals the closed schools attended one of who plan, as 802. The 1970 modified by

no segregation, entrenched residential order, the District Court’s 1976 was devised several of the all-black schools are located with the flight para- fear of white as a proximity originally close to schools des- mount preserves consideration. ignated indicate, factors whites. Such dual and cannot be retained over a urges, and the Government that an alterna- more successful because approach of this tive relatively easy would be to imple- fear. ment. “In the conversion dual school

systems based on race to unitary school

systems, the continued existence of all- Assignments Faculty

black or virtually schools is all-black unac- ceptable where reasonable alternatives ex- urges that the The Government Dis Boykins Educ., ist.” Bd. of v. Fairfield declining trict in to insist that Court erred Cir., 1972, 1091, 1095, quoted 457 F.2d in comply immediately the school board with Board, Lemon v. Bossier Parish School 5 the that the Singleton requirements faculty Cir., 1978, 985, 987. 566 F.2d systemwide the of each school reflect racial that faculty

ratio of members and teachers The response repeat board’s is to the re as a condition accept reassignment of con frain it has 1968: sung any alterna agree since tinued We with the employment. tive measures promise to increase the Government. The District Court found amount of will desegregation lead to white gradual improvement sufficient had flight “resegregation” and the of the place taken since to make “strict schools. This argument must fail. It is the unnecessary mathematical ratios” and left law in the Supreme Court and in this Cir before, the school board to continue as with cuit that flight white “cannot . [be] hope rapid improvement for more accepted as a achieving reason for anything approach, particularly future. This a less than complete uprooting of the dual system by school the consistent fail marked public school system." United States v. measures, ure ignores of mild the fact that Educ., Scotland Neck of City Bd. 407 Singleton is a based on the command Con 484, 491, 2214, 2218, U.S. 92 S.Ct. stitution, set optional guidelines. not an of 75; Lee v. Macon County Educ., Bd. of long rejected We have since as ineffective Cir., 1972, 465 F.2d 369.25 apparently adopted by standard Court, desegregation

District progress speed.” with “all deliberate Alexander v. say This is not Educ., to that a school Holmes County board Bd. of 396 U.S. or Court must ignore likely danger (per curiam). of an 24 L.Ed.2d 19 exodus of white students from a school premise The District factual Court’s system. choosing between various “[I]n its denial of as to the faculty further relief permissible plans a chancellor may . open also to The statistics question. elect one calculated to minimize white boy testimony as to the situation present do not cotts. ... may He refuse to support expectation rapid an of more im- elect or con adopt permissible plan provement in the future the swift attain- one which dual be preserves fect ment faculty. of a While unitary there has cause of such Stout v. Jefferson fears.” been improvement some in faculty integra- 1976, Cir., Educ., County Bd. of 537 F.2d tion, the pace is and the degree slow by position desegregation failing imple impor- to to reveals the this rule 25. The reason for constitutionally necessary plan flight ment a has enforcing rigorously. “White of it tance impermissible.” Morgan Kerrigan, been expression opposition individuals in is an Cir., 1976, 401, 420, denied, 1977, cert. 530 F.2d community desegregation of the school inception 49 L.Ed.2d 386. system. of school S.Ct. . . . From op- desegregation litigation, accommodation term, 70 school In the 1975-76 board urges that if slight.26 required tra- faculty taught implement the white percent of the Singleton schools, requirements without ditionally delay, a form of flight tradi- white among the black teachers were faculty will result. Pоinting to sub- reports schools. Recent difficulties tionally black DeSoto Parish faces competing with nearby, the school mitted board reveal sub- wealthier no systems in attracting improvement.27 stantial addition to the and keeping qualified teachers, the board school board’s admitted failure ‍‌​‌‌​‌‌‌‌​​‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌​​​​‌‌​​​‌‌‌​​‌‌​​​‍to condition asserts that measures such on as employment willingness reassignment teachers’ to ac- to achieve compliance with cept reassignment, Singleton and failure to initiate will lead to large numbers of reassignments, faculty resignations. record contains evidence fear of faculty that when resistance to reassignment required desegregation meas ures, like closing most of fear of community resistance, the white cannot be teachers were reassigned traditionally allowed defeat an effective white schools and the blacks to des- in favor of a that is ignated for black unlikely students.28 The record to achieve a unitary system. also indicates that new teachers have not

been ways would increase

desegregatiоn; III. between 1969-70 and terms, 1975-76 school 57 percent Remedy newly hired white teachers were assigned to formerly and 92 percent of with the 1976 order plan, 1970 hired newly black teachers as- routes, deseg to revising the bus has failed signed to traditionally black schools.29 even to system, this school failed regate following faculty 1975-76, distribution existed: 1970-71, 26. In and in

1970-71 1975-76 Former Black Schools B W B W %B %B 2 89 13 5 16 72 Saints All 28.5 6 83 27 10 DeSoto 73 go- 3 26.5 30 11 73 Johnson Logansport- es 7 17 15 12 Rosenwald 59 3 37 93 33 9 Ward 79 Second

Former White Schools B W B W %B %B Logansport 28 23 8 21 8 26 24 8 21.5 27 9 Elem. 27 Mansfield 6 18.5 24 6 22 H. S. 21 Mansfield 10 38 4 13 6 24 Pelican Stanley 10 33 5 11 5 31 10 33 17 5 26 6 Stonewall figures faculty distribution in the 28. Tr. at 27. The 108-113. and 1977-78 school terms are included 1976-77 Appendix B. deposition 29. McLaren at 154—56. 818 1972, Cir., 878, Instruction, F.2d cert. results, is projected achieve the modest denied, 1438, 1973, 966, U.S. inadequate. constitutionally therefore II); Henry v. Clarksdale (Ellis L.Ed.2d 700 further relief. order Court must District 1969, Dist., Cir., Municipal Sch. Separate appro an question to the We now turn 940, 682, denied, cert. 396 U.S. F.2d uncon remedy. The Government’s priate 375, 242. The zones should S.Ct. 24 L.Ed.2d that several alterna assertion is tradicted discharge affirmativе be redesigned easily implemented begin be

tives could . duty. process “The schools. The disestablishing the one-race error; is trial and if one set often one of to the major objection Govern board’s ineffective, must proves zones then another of white flight, the fear proposals, ment’s another, and, necessary, be if drawn a refusal make justify not sufficient tried.” approach be yet some different remand, attempt. parties such an On Bd., 5 County United v. Hinds Sch. to devise and are directed and the Court 1188, Cir., 1977, F.2d that, implement comprehensive Second, we believe provi the District means whatever reasonable sion by which all living students outside seg will end appropriate, Court deems zoned areas who can furnish their own school system. of this regated condition transportation are allowed to attend the Dist., Indep. Corpus Christi Sch. Cisneros school of their choice must be eliminated. 142, (en banc), 152-53 Cir., F.2d We agree with the argument Government’s denied, 1973, 413 cert. S.Ct. provision such a is similar to the “free- formulating such transfer” practice invalidated in Monroe v. equitable powers plan, the District Court’s Board of Commissioners, 1968, 391 U.S. sufficiently shape its decrees flexible S.Ct. 20 L.Ed.2d and to the in a fashion that will minimize dislocations free choice policy held unacceptable process. and burdens on the educational Green v. County Bd., Sch. supra, 391 U.S. v. 433 Bradley, supra, Milliken at 280 U.S. 430, 439-41, at 88 1689, S.Ct. 1694-96, at 20 15, 2757, n. 97 53 S.Ct. at L.Ed.2d at 756. 716, L.Ed.2d at 724-26. Like a free trans we While cannot and do not re- wish to fer or free provision, choice the option al any specific quire plan, there are several lows DeSoto students to avoid attending that steps must be taken to the satisfy the schools to which they are assigned ac constitutional requirements desegrega- for cording routes; to the bus it is “implicit an tion. invitation ... to the com [to return] Assignments

Student old, fortable security established dis First, zones cannot criminatory pattern.” Monroe, supra, the attendance 391 Geographic 459, at 1705, drawn. U.S. at presently as 88 S.Ct. 20 L.Ed.2d at remain assign student a of Green and Monroe principle used as method state the zones impede governs where that be here: “if retained it cannot be shown cannot ment indeed, deseg a that such a choice process; or free transfer the [free option] attendance will further incorporating delay rather than con regation nonracial, version to a unitary, boundaries nondiscrimi unless is insufficient zones natory possible system, it “greatest must be held unac to achieve are drawn taking ceptable.” 459, 1705, into 391 at desegregation, U.S. 88 S.Ct. at of actual degree 20 L.Ed.2d at 739. No showing of the situation.” such is practicalities account Commissioners, case, possible in this and the free choice v. Board of School Davis 1289, 1292, option cannot remain in 33, 37, constitutionally 1971, 91 S.Ct. 402 U.S. Educ., plan.30 valid 581; v. Board of 577, Swann L.Ed.2d 1267, 28 28-29, 91 S.Ct. 402 U.S. at supra, specific steps remedial More Public 573-74; of v. Board Ellis L.Ed.2d must development await further factual District, Cir., Municipal Separate son A freedom of has on occasiоn choice 1969, 1211, 28361, (No. g., Singleton 419 F.2d St. Jack- John held sufficient. E. v. been as a effectiveness ratios,” their matical can stage, we At Court.31 the District vestiges eliminating starting point methods effective that only conclude as faculty student in both segregation such parish, areas In some available. Moreover, question. beyond is signments assign that Mansfield, zones city as such ratios require not Singleton does homes their nearest schools to the children rather, it permanently; be maintained integration. increased promise offer “contemplates an reassignment initial so traditionally areas, schools where In other every the racial ratio at school reflects within located races are serving separate ratio, systemwide followed the utili other, pair each miles of one and one-half zation of a non-discriminatory hiring, fir and effec a feasible to be appear ing would ing, assignment increase unduly policy thereafter.” that would remedy tive Al students.32 United County on the Wilсox burdens Bd. of travel remedy as a required is not though pairing Educ., Cir., 1974, 575, 580, 494 F.2d cert. resort,” all-black or virtu “where of “first denied, 1031, 512, U.S. zoning remain under a schools ally all-black case, L.Ed.2d 306. In this the board never desegregate practicable it is plan, but began to comply with requirements. these by using all of the black some or We remand with instructions Singleton must be used.” the tool pairing, tool of is to be enforced accordance with its 865, 868, Cir., 1972, Potts, 464 F.2d Flax v. terms, without further delay. 1007, 433, denied, 409 U.S. S.Ct. cert. The order of the District re- Allen v. Board of Pub quoting versed insofar as it denied the relief sought. Cir., 1970, Instruction, 432 F.2d lic The case is remanded with instructions that denied, S.Ct. cert. adopt and implement the District Court [Emphasis 29 L.Ed.2d 123. added]. comprehensive plan to eliminate the one- Assignments race schools in Faculty bring DeSoto Parish unitary status to the demanded We have erroneous the Dis held the Constitution. refusal to further relief grant ‍‌​‌‌​‌‌‌‌​​‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌​​​​‌‌​​​‌‌‌​​‌‌​​​‍trict Court’s PART, AFFIRMED IN REVERSED IN not to from the board’s admitted decision PART, AND REMANDED. we share the Singleton. with While comply “strict mathe- ordering Court’s dislike Appendix A to follow. Parish, case, Baptist La.). mand, In this the Court par- District Court should direct the plan requiring used such a as an alternative to ties to part reconsider the bus routes as one the division of a small number comprehensive of white stu desegregation plan new re- among part pre quired. dents five schools in one of a dominantly system, part black school isolated part reconsideration, As of this again we integrated system by from the remainder of the draw the school board’s attention to the stu- Mississippi River, geographic a formidable dents from Texas who attend school in DeSoto distinguished barrier. This case was later They Parish. must be to schools in a a free choice disallowed on a basis that requirement fashion that satisfies not applies here as well: . . . School “[t]he desegregated system, of a but also the yet objectively Board has to demonstrate its provision decree, of the 1970 common to most operate will to in a manner calcu desegregation plans, providing that: remedy past discriminatory practices lated to grants If the school district transfers to stu- unitary and achieve If status. ... living dents in the district for their attendance when this School Board removes itself from the district, public schools outside the or if it contempt, may shadow of the District Court permits transfers into the district of students racially then consider whether a neutral free district, who live outside the it shall do so on a bring dom of choice could be of benefit in basis, non-discriminatory except it shall ing unitary system. day about a . . . That not consent to transfers where the cumulative yet has not arrived.” United States v. Wilcox effect will reduce in either dis- County Educ., Cir., 1974, Bd. of 494 F.2d system. trict or reinforce the dual school denied, cert. 419 U.S. 8, infra, description 32. See note for a of the 42 L.Ed.2d 306. schools and the distances between them. We urges modi- that even as The Government cognizant presented difficulties operate maintain fied, still routes the bus the Stonewall High Schools, and Second Ward do not at least segregation apart. miles 12.8 are located which affirmatively desegregation. On the re- aid

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GEE, Judge Circuit (specially concur- SOUTHERN DISTRIBUTING ‍‌​‌‌​‌‌‌‌​​‌‌‌‌​​‌​‌‌​​​‌‌‌‌‌​​​​‌‌​​​‌‌‌​​‌‌​​​‍ring): COMPANY, INC., al., et Plaintiffs-Appellants,

I concur in the opinion and write briefly and only my to note how reading of Brink- 1man on bears this case. There can be SOUTHDOWN, INC., al., et little doubt that the drastic and unfortu- Defendants-Appellees. nate means “bussing for racial balance” No. 77-2673. can required be in a case where the existing Appeals, United States imbalance sought to be corrected results Fifth Circuit. present remaining intent —or the ef- past fects of intent —to discriminate by race 7, 1978. June on the part of controlling those poli- cy. Mere statistical imbalance race does

not, in my view, justify such remedy.

But where exists, extreme imbalance as

here Lee,2 where, and as in as here and Lee,

as in persisted it has essentially unbro-

ken milder remedies since the abolition jure

of de segregation, powerful it is evi-

dence that such an intent either presently

exists or persists undisturbed from the old- dispensation.

er If extreme, sufficiently

least where patterns residential po-

larized, here, as it may be overwhelming

evidence of such an presently intent operat-

ing. I find it here, overwhelming as in Lee.

I therefore concur, believing that Brink-

man, which incorporates the language cited

at footnote above, is not at war with our

holding.- Dayton Board of Education v. Brinkman, (1977). 2. Lee v. F.2d Demopolis City (5th Cir. 1977). System,

Case Details

Case Name: United States v. Desoto Parish School Board

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 2, 1978

Citation: 574 F.2d 804

Docket Number: 76-3471

Court Abbreviation: 5th Cir.