United States v. Indianola Municipal Separate School District, Indianola Municipal Separate School District v. United States
410 F.2d 626
5th Cir.
1969
Check Treatment

*2 C., ord ington, appellants. reflects that for current for D. year Negro living there are no children Crosthwait, Jr., B. Oscar Frank O. residing in Zone II and no white children Miss., Townsend, Indianola, Semmes in Zone I. Students in the free-choice Miss., appellee. Luckett, Clarksdale, for area chose to attend schools in which SIMPSON, Before DYER and Circuit predominant this, their race was Judge. Judges, CABOT, District pattern combined with the residential city, resulted in not one child in Judge: SIMPSON, Circuit receiving the Indianola School District integrated experience an educational dur- principal appeal is The issue on this ing year.2 the 1968-1969 school desegregation adequacy the school approved by plan for court We state at the outset that Indianola, Mississippi, present plan operation of the Indian Companion District. is- ola School District concern and school sues constitutionally Supreme defective. The objections faculty desegre- board trilogy Court’s recent of cases demon gation aspects de- of the district court’s strates “the on burden a school cree. today board to come forward with a desegregation plan adopted plan promises realistically work, The geo- promises realistically Board combines to work now.” Indianola School zoning living graphic pupils (Original emphasis). for within Green 430, County, limits of Indianola free Board of Kent New 391 U.S. living 439, 1689, 1694, choice for students all outside 88 S.Ct. 20 L.Ed.2d city (1968). plan promise within the board’s limits but A does jurisdiction. geographic realistically There are two presently to work now if it zones, high provides desegregation each of which contains no whatever. elementary and an school.1 Two of the four in Indianola are irregular entirely Negro. two are divided an zones The other two do along Negro east-west line drawn railroad not have one student. The school fairly bayou, candidly track and a wide Indian expects admits lit (See Bayou. map appendix). tle, change At the any, quo. in the status Not adoption plan’s only time of in 1965- prospect does this no offer eight liv- working there were now, virtually white students it offers no ing prospect working. in the attendance zone south of this of ever Elementary geographic 1. are Loekard In one zone It should be noted that High produced School which School and Indianola have zones no only by presently inception white are attended whatever since their and that Elementary possible students. Carver white with the ex- all-Negro Gentry High ception of two Mexican children have schools, predominantly Negro zone. in the other are located chosen to attend schools. very produced had slightest integration prior cur- 3. Green v. School Board of New Kent 1965-1966, County, In no chil- rent school 391 U.S. 88 S.Ct. desegregated (1968) Raney In ; schools. attended dren 20 L.Ed.2d 716 v. Board 1966-1967, Negro children chose to six of Education of Gould School where their race was attend schools 88 S.Ct. 20 L.Ed.2d predominant Negro (1968) ; at- children ten Monroe v. Board of Com- predominantly Jackson, Tenn., un- white schools tended missioners of 1967-1968, In three der court order. U.S. 88 S.Ct. 20 L.Ed.2d 733 pre- (1968). children chose to attend elementary dominantly school. safety Board’s board advances concern

The school sev nondiseriminatory children who rail- reasons its would have cross eral geo bayou road tracks or a order implement combined to attend cision weight, entitled find graphic-zoning, As this but we free-choice unconvincing however, develop- recently stated, it ing in the context of *3 plan’s plan appropriate accepted if the for a cannot be reasons implementation in substan Indianola. Until school to result when the fails comply desegregation. board took its to first action tial 4 years the Brown decision of eleven ear- are there still in district “If school a lier, freely students of both races crossed only all-Negro frac- or a small schools these in hazards order to the maintain Negroes in white enrolled of tion purity racial of schools. Cf. Indianola’s integration schools, no substantial or Henry v. Clarksdale then, school activities of faculties District, supra, 409 F.2d at n. existing plan law, a matter the as of p. addition, In testi- 688. uncontradicted constitutional standards to meet fails mony pass through shows that no trains (Emphasis in as Green.” established city remotely the at time close to added). activity prog- when school would be in Mathews, Adams ress. Because of the location of the Despite what have 188. city’s schools, some white must students said, appropriate to just we believe busy Highway cross U. S. 82 in order consid- of on some the factors comment to attend schools Zone II. in Those stu- adopting the in ered the city protected by assignment dents are of among stressed, plan. other The board police safety during patrol children, safety things, (1) the arrangement hours. Some of this sort (2) proximity to schools residences employed could be if tracks existing (3) utilization maximum bayou prove safety to more of haz- Certainly, of these is a facilities. each ard than is in shown this record. any plan which relevant for consideration The record that the reveals southwest adopt. How- hereafter the board composed corner of Zone II is of white ever, or even all none these factors might students who attend in schools overriding impor- combined are dividing Zone I if the line were contin- the Indianola of the one factor tance along ued railroad tracks instead effective Board did consider: bayou.5 Moreover, diverted follow the Henry promotion of See exercising those white students freedom Municipal Separate School v. Clarksdale of choice all in chose attend schools 409 F.2d 682 5 Cir. regardless Zone II of their closeness It that draw- is clear 1969]. [March Thus, proximity them. we do not see dividing ing city zone into two line residence as a crucial factor.6 racially not the sectors is identifiable open promising most course action for the As maximum of ex- utilization isting facilities, this school board. the record shows (Brown of Education 4. Brown v. Board is a of Indianola town of about I) persons. 10,000 pupil residing 98 L.Ed. No within (1954). corporate limits is more mile than a from in the district. apparent- whether 5. The record is unclear as to in students area free-choice actually ly away live closer in this area more than students live a mile from “Negro” schools, Mississippi permits or “white” schools. schools law provide transportation brief that admits in its The school board school board to equidistant from least lives one student so situated. The en- map ap- comprises and Loekard. See tire Carver an area pendix approximate square 3,- of these location miles. There are approximate pupils residing district, their dis- residences includ- ing 2,708 Negro zones. the two tances from schools children 1.017 students.

,629 plan provides zoning. tain geographic the current no aid toward the basic idea reaching goal. pupil so, If class- zone lines could be drawn north pupil promote greater desegre- south room and to teacher ratios between so toas gation. “Negro” present and the “white” A modification of the gradually equal- adopted closely could have so as to fol- equaliza- 1965-1966, low the ized since and the railroad and to tracks extend be- yond tion of this was not the result limits of Indianola.9 Rather, portable geographic were em- classrooms Whatever zones are contem- High plated, ployed Gentry and Carver school board must realize that Elementary geographic zoning acceptable “only more it tends to teachers were hired for schools. disestablish rather than re- Thus, always segregated inforce did not Board’s dual goals for which it attain nonracial schools”. United States v. Greenwood *4 Municipal Separate District, was selected. School su- ;pra Henry Municipal v. Clarksdale repeat We the obvious. It is an Separate District, supra. School Guide- duty of each school board in affirmative this lines for the board have been established vestiges circuit to abolish the by this Davis v. Board of School state-compelled and to estab County, Ala., Commissioners of Mobile unitary lish a which achieves supra, There, note 7. said we desegregation. substantial United surveys school board must make to deter- Municipal Separate States v. Greenwood mine the racial character of its residen- 1969, District et 5 406 School Cir. tial areas and that zone lines must be 4, Anthony [February 1969]; F.2d 1086 promote desegregation drawn to rather County et al. v. Marshall Board Edu perpetuate segregation. Although than cation, [April 1969, 5 Cir. 409 F.2d 1287 approved we objective the use of such 15, very least, At 1969]. this means safety factors, criteria as we added this obligation this school board has an “ * * * caveat: a conscious effort to see that schools in its district remain boundary should be made to move lines longer all-Negro or all-white change patterns feeder tend enrolling only an infinitesimal preserve segregation.” F.2d 393 Negro fraction of students.7 694. See also Board of Public Instruc- many There are alternatives County tion of Braxton, Duval v. may the school board.8 It to re- decide note 7. duty imposed 7. This minimum has been supra; Anthony v. Marshall Count y long decisions, and restated Education, supra. Board of including, others, among United States regard 8. We do not freedom of choice as County, 1966, v. Jefferson 5 Cir. 372 a viable alternative. The record is clear 836, F.2d aff’d reh. en 380 F.2d banc aspect the freedom of choice 385, cert. den. sub nom. Cuddo Parish produce any Indianola has failed to States, School Board v. United meaningful steps toward 840, (1967); 88 19 L.Ed.2d 103 See note infra. Freedom of choice v. Stell Savannah-Chatham Board among at best seems be the least ef- Education, 486; 5 387 F.2d Cir. desegregate any fective methods to Davis v. Board of Commissioners School in this circuit. Moses See v. County, Ala., of Mobile 5 Cir. Washington Board, Parish School 276 690; F.2d 393 United States Board v. F.Supp. (E.D.La.1967) ; Singleton 834 Ala., City Bessemer, of Education of v. Jackson School Dis- Montgomery 44; 5 Cir. F.2d trict, 5 Cir. 355 F.2d County Carr, Board of Education v. 1; Cir. F.2d Board of Pub population 9. The student in the free-choice County lic Instruction of Duval Brax v. zone outside limits ton, 900; Adams predominantly Negro. Indianola is any Thus, Mathews, supra; United v. States extension of zone line would Municipal Separate Greenwood Negro pupils have to result in more at- District, supra; Henry tending v. Clarksdale Lockard and Indianola than at Separate present. important being consider heavy We as tailored for a concen- incorpora- tration of district to include or white students.” majority minority tion of transfer Greenwood, Municipal United States finally provision into whatever District, supra, 406 F.2d adopted. given Consideration should be goal at 1094. This must be accom- park creation an educational plished by beginning of the 1970- pairing or do schools. While we 1971 school United States v. Board proper not plan, what is a undertake to decide Ala., Bessemer, Education of urge close consideration supra, note 7. pairing plan. as Communities as small We realize that with elementary two Indianola may this directive be difficult. It high unusually two schools are well suit- be more difficult because board has grades example, ed for such a For long waited so to take affirmative through assigned one four could actively action. The school board must Elementary School, grades Lockard qualified seek out instructors who are through eight, five to Carver. Grades willing to teach children of color. Gentry assigned nine and ten could High voluntary approach demonstrably grades eleven and adequate, and the school board must twelve, to Indianola. everything power do within its to recruit Both the and the school reassign provide teachers so *5 the trial board are dissatisfied with degree faculty for a substantial of inte ruling desegrega- respect gration. court’s with to may quickly dis- tion of faculties. We government objects to that complaints. pose of the school board's portion of the trial court’s order which nothing than The school board less asks authorizes the school board to withhold this to be excused from with approval of teacher contracts unless such holding in Needless Court’s Jefferson. help faculty desegrega achieve contracts say, knowingly permitted to not we have government tion. The desires that the comply school to to board refuse approval directive to withhold in certain begin Jefferson, to with and we will not mandatory. circumstances be made We today. that do so The record shows agree the that school board must with there no teachers at either are approval of hold teacher contracts if that Lockard or Indianola schools. One necessary racially is more to achieve bal half-day present teacher is a responsi anced faculties. “The board’s Gentry, teachers and there are not white bility optional: is not It must withhold purposes, For and at Carver. all intents approval necessary of if contracts to segregated racially these schools have faculty desegregation.” achieve United recognized judge faculties. trial As States v. Greenwood today, reemphasize here such and as we 406 F.2d at 1094. longer permissible a no situation is Further, the board must transfer schools in this circuit.10 reassign and teachers between unitary sys- “The transformation necessary. its district if State pass until the not come to tem will taking prevent laws hinder or which faculty of each board has balanced steps “may of we have outlined above not faculty identifiable so that no is school interposed to frustrate a constitution- faculty suggests that assignment 10. The board faculty racial of members is inappropriate merely for Carver pu not an inducement attract Gentry, record shows that since the pils and to a school where their race is a attended minority, policy white students have ever no but is an essential re these schools educationally or will gardless attend ever both constituent and con composition of stitutionally the racial of of final of con faculty. misapprehends verting unitary system. The board to a school function of teacher Non (dis- al mandate.” v. United States Green- 402 F.2d 782 [November 1968] wood, Municipal Separate senting opinion 786). School Dis- p. The district trict, supra; by plan adopted United States Board court must evaluate Bessemer, City supra. light. Education the school in this board Potential unitary system good for a faith are explicitly The school ar yardsticks any prospec- not the gues faculty re They plans tive are to be measured. impose today quirements we will result in single they must meet one criterion: wholesale withdrawal of white must work now. system. from the board be by directing that We conclude this lieves that cause will require court the school district they public support need func lose delay board without formulate a effectively. principal tion answer guidelines expressed in this within the speculations who dis these is that those opinion. year The 1970-1971 imperatives agree with constitutional off, progress yet not no far has application. Monroe cannot avoid their unitary system made toward of Commissioners Board substantially desegregated stu with both Jackson, Tenn., al., supra, note teaching In ad dent bodies and staffs. 20 L.Ed.2d U.S. dition, remind both the district court of a 739. Our deseg and regation school board effective surely not survive it were could laws requires as defined Jefferson Further, compe otherwise. there only integration faculty, staff none as to tent evidence and can be integration services, students, also operating vitality district facilities, in extracurricular activities principles, under constitutional since cluding athletics, transportation and all attempted yet com full community’s aspects educa other principles. pliance The atti program. tional regions can be tudes individuals con logic. The district should changed by persuasion court We hearings fur make duct additional white resi are not convinced *6 findings ther on the a new any city fact choice wherever dents of Indianola or plan the Indianola School Board the destruction located would choose system ex still the dual eliminate its their school over ists. The should be evaluated new constitutional mandates. Clarksdale, light Green, Greenwood, We do not intimate view today. Anthony, what we have said good faith this should treat school The district court good 1965. But faith not since high as entitled cases faith is relevant standard. “Good quickly priority11 so should est move necessary ingredient of an ac as a op approved that a new desegregation plan.” Henry ceptable 19,69-1970 school erable Clarksdale reversed, judgment court below ex 409 F.2d 684. We District pro for further and ceedings remanded the case only good faith, require pect but not opin not inconsistent with sys positive the dual action to dismantle ion. in Indianola. of school tem attendance REHEARING FOR PETITION ON liquidation such a Evidence accompanying FOR REHEAR- AND PETITION unitary sys operation EN BANC. ING at all schools of biracial tem attendance forthcoming. We must be PER CURIAM: impose any per ratio or Rehearing absolute do centage is denied Petition for Judge requirement, are firm but panel nor of this no member proc point reached regular the Court on service in having active polled “where it of school ess requested spirit, (Rule the bodies which banc, Federal rehearing en on Procedure; County Local Montgomery Appellate Board of count.” Rules 12) Petition Rule peti Fifth Circuit on et al. v. Carr Education banc, Rehearing is denied. rehearing Banc En en tions for Mathews, supra, 11. Adams

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