Virgie Lee Valley, United States of America, Intervenor-Appellee v. Rapides Parish School Board, and Clyde Holloway, Intervenors-Appellants

issues, the confusion of by prejudice, unfair memorandum written from evidence a 7, 1977, may properly court etc. Thus the district manager May on Michelin’s district to be redacted mem- the memorandum require 42. The plaintiffs offered as Exhibit activi- are irrelevant or portions sales either because plaintiff’s orandum concerned against protected defendant’s dis- in the evils prepared by would result ties and event, that how- his comments or both. manager by trict to set forth Rule corpo- ever, improper the use of his mate- recommendations for the elimination originally the district court superior. by rate The district be made rial should paragraphs agreement all but two plaintiff’s found admissible the requiring without memorandum,26 that the ex- and ruled the should be admitted. and the balance plaintiff agreed if hibit would be admitted REMANDED. AND REVERSED However, paragraphs. to delete those two its ob- press continued to when defendant the entire

jection, court ruled the district variety on

document inadmissible

grounds. admissible, we do not think

Even if this evidence ruling excluding that the VALLEY, al., Virgie et Lee the state reversible error because would be Plaintiffs-Appellees, largely ments it contains are cumulative mana regarding other evidence the district America, States of United to de ger’s reports and recommendations Intervenor-Appellee, We would thus not management. fendant’s we point the were it not that order consider BOARD, et PARISH SCHOOL RAPIDES that the unlikely a retrial at which it is not al., Defendants-Appellants, again. exhibit will be offered In our view memorandum admission, Rule as an under admissible Holloway, al., Clyde et Evidence, 801(d)(2)(C) (D), Fed.Rules of Intervenors-Appellants. defendant, unfavorable to whether or not No. 81-3462. (a) that it is shown either that

provided manager was authorized to make district Appeals, United States Court (b) concerning subject, statement Fifth Circuit. by the memorandum was made defend March agent concerning subject ant’s within during the existence of scope agency of his Rehearing En Banc Rehearing and If either of those agency relationship. 29, 1983. April Denied met, court, re conditions is on trial, as an should admit the memorandum

exhibit. The statement’s status as a non- turn,

hearsay admission does not as believed, proof

district court on that a com

pany superior actually relied on the memo course, admissibility

randum. Of subject

memorandum is to the limitations it rele

of Fed.R.Evid. 402 and value not be probative

vant and that danger

substantially outweighed leged sale paragraphs all related to the al- antitrust violations 26. The two ruled inadmissitíle legedly solely passenger of truck tires. related to the sale of tires irrelevant because the al- and were ruled Opinion Rehearing on Denial of Banc, En

Rehearing

Clark, Judge, Chief dissenting filed

opinion. Ward, Jr., Hammonds,

John F. Robert L. La., Rouge, Baton Rapides for Parish School Bd. Alexandria, La.,

Christopher Roy, Paul R. Baier, La., Rouge, Baton for Clyde Hollo- way et al. Alexandria, Berry,

Louis Valley for et al. Marshall, Franz R. Litigation Gen. Sec- tion, Div., Rights Civil Dennis J. Dimsey, William Bradford Reynolds, Brian K. Section, Landsberg, Appellate Rights Civ. Div., Justice, Dept, D.C., Washington, the U.S. CLARK,

Before Judge, Chief POLITZ RANDALL, and Circuit Judges. POLITZ, Judge: Circuit For the sixth time we aspect review an the litigation, initiated in involving the desegregation public of the schools in Rapides Parish, Louisiana. In Valley v. Board, Rapides Parish (5th denied, Cir.1981), 939, 102 cert. 455 U.S. (1982) 71 L.Ed.2d 650 (Rapides I), we the finding affirmed and conclusion by district court1 that the vestiges of a state-imposed system dual school had not eradicated, fully been sanctioning most components of the remedial program fash by ioned the district court. We reversed in part and remanded in order that district and, court might reconsider if re-imposed, explain greater detail that portion of its order the closure directing of Lincoln Wil- F.Supp. (W.D.La.1980), part, Cir.1981), denied, 1. 499 affd in cert. 102 S.Ct. remanded, part (5th rev’d in and 646 F.2d 925 liams, Hill, and, a predominantly black K-8 school in of Lincoln Williams and Forest Cheneyville, predomi- and the closure of the the event the court adhered to its 1980 Hill, nantly white K-8 school in Forest cou- decision, rejecting the bases for explain pled with the transfer of students from alternatives, such we stated: these two elementary schools to an easily, We cannot lend our sanction so Lecompte, middle school in community however, portions to those located midway Cheneyville between involving pupils and facilities in Wards 3 Forest Hill. Here, described, and 4. as we have Following post-remand evidentiary predomi- court elected to close a district hearing, the district court re- reviewed and school, Hill, nantly white rural jected proposed various alternatives school, predominantly black Lincoln parties readopted original plan. On Williams, equidistant in different di- appeal, the school board and Forest Hill Lecompte, from the town of rections intervenors2 focus their attack on the to transfer their court’s reopen refusal the Hill Forest determine, far as we can the schools. As Elementary Concluding School. the only justification closing for Lincoln Wil- remedy imposed was commensurate with predominance pu- liams was its of black violation, the constitutional we affirm. pils. The court admitted that Forest Hill Lecompte is more modern than Elemen- Background Facts the latter as tary, having but described exposition A detailed of the factual and “much location for of in- purposes better procedural of history protracted litiga- this of tegration,” in terms distance for bus- tion is set forth opinion, in our earlier re- ing reassigned pupils. of Alternatives ported at 646 today F.2d 945. Our review are mentioned. only sparingly focuses on the legality of the district court’s are an findings These insufficient fac- solution to the thorny problem presented by approve closing tual basis on which to the the continued existence of Lincoln of Forest Hill and Lincoln Williams. as virtually (92.9%). all-black school In Equally effective alternatives exist assessment, its earlier the district court closing which would avoid the of a mod- found no white students in the available facility intercommunity ern and the Cheneyville desegregate area to Lincoln kindergarten pupils. transfer of These Williams, and elected to close the school and and, explored should be on remand if the reassign pupils to Lecompte Elementary present plan, district court adheres to its (K-3) Raymond and Carter High Junior specific rejection for their should reasons (4-8), Lecompte. both in 499 F.Supp. given. cannot ignore be We district At the same time the court determined to disregard neighborhood of consid- reassign the population student of Forest erations for rural schools in this con- Hill, 8.3%, minority with a enrollment of desegregation text. .. . meas- Specific Lecompte two schools. Aside from Le- ures in southeastern Rapides Parish compte’s location, central the district court in the full light should re-examined of cited no supportive reasons for the transfer range mitigating equitable considera- of Forest Hill students to Lecompte and tions. concomitant closure of that educational fa- cility.3 646 F.2d at 940-41. remand, directing the district court received the district court to consider On

the various dismantling alternatives to evidence from the Forest Hill additional participated hearing 2. We earlier affirmed the district court’s denial on remand and in court, briefing argument of the Forest Hill residents’ and oral before this motion to inter- remand, vene. 646 F.2d at 941-42. On 1966, high underly- 3. Since all school students this district court reconsidered the reasons portion Rapides ing southeast Parish have vol- ruling granted its initial Forest untarily desegregated Rapides attended the residents leave to intervene. The intervenors High Lecompte. School in

1225 intervenors, 1267,28 (1971); various S.Ct. 554 proposals Rapides reviewed the L.Ed.2d I. submitted, the student To discharge weighty responsibility, and reinstated as- Poland, signments Cheneyville, obliged expunge public for the Le- from the compte vestiges and Forest Hill communities.4 The schools all unlawful segregation. Swann; judge trial conviction that County reiterated his Lee v. Macon Board of dismantling (5th Cir.1980); Williams and the Lincoln assimilation into the of its United v. DeSoto Parish States School Board, (5th Cir.), denied, schools was the reasonable alternative cert. perpetuation of Lincoln Williams as a 58 L.Ed.2d U.S. racially identifiable school. Determined to effect equitable an distribution of the bur- reviewing a trial When court’s de den of desegregation, the district court re- segregation remedy, we limited to as mained convinced that Hill’s stu- certaining whether the court abused its dis assigned dents should also be to the Le- Bradley, cretion. Milliken v. See U.S. compte schools. (1977); L.Ed.2d 745 Having previously Rapides decided in I that “the scope Swann. We are mindful constitutionally goal mandated equitable power district court’s to remedy educational has unitization been past broad, breadth wrongs is and flexi Parish,5 we Rapides achieved in need only bility equitable are inherent remedies.” appropriateness address the remedy Swann, 15, 91 S.Ct. at 1276. ordered. Parish See United States v. DeSoto Board. “free to re-assess the Although dis

Guidons law, trict findings court’s conclusions of part of Failure on the school au of fact unless accepted they must be are implement clearly thorities to v. constitutionally erroneous.” Ross Houston Inde system pendent Dist., 218, prescribed unitary brings (5th school into 699 F.2d 226 School play Cir.1983), full of the trial panoply (citing Pullman-Standard v. power. Swint, remedial v. 273, 1781, Swann Charlotte-Meck 456 102 72 U.S. S.Ct. 1, lenburg Board of 402 (1982)). U.S. Rapides plan provided Lecompte I we described the relevant fea- The for Elementa- original plan facility, ry tures of the district court’s for to become a K-3 and for Carter desegregating Rapides schools, Raymond grades several Parish to serve 4-8. Lincoln Wil- plan designed and the closed, pupils conditions the was to liams its K-8 and were ameliorate: Lecompte schools. transferred to the Forest closed, pupils with its was also transfer- promulgation Before of the Ward 3 Elementary Lecompte Ray- red and to Carter Lecompte town of contained three Pupils Lecompte Raymond, the Poland School in Elementary, mond. grades Carter Rapides Rapides High High Lecompte Elementary 9-12 were shifted to School. Raymond pupils School. Carter each served in grades major provisions K-8 earlier under orders. Each 646 F.2d at 933. All of this majority pupils plan, amendments, together school had a range of black in the with certain minor approximately per of 60 incorporated cent. The were the framework in Cheneyville, Lincoln Williams in remedy. School some court’s 1981 Lecompte, 10 miles to the southeast served pupils grades all area 5. That in K-8. The school this action remains remedial black, phase approximately distinguishes City was ... and is the it from Pasadena 93% “spur” Spangler, 424, in this additional relief area of the Board of Education v. parish. (1976), About the distance same to the west where a 49 L.Ed.2d community Hill, achieved, is unitary system and subse had been which school contained a K-8 with a black quent precipitated by racial were imbalances percentage only High attendance 8.3. demographic changes rather than the acts or school students from communities both went board. See United omissions of the school Rapides High Lecompte. on to School in Valdosta, States v. Board of Education Geor Lecompte in Northeast of Ward 2 is the com- denied, Cir.), gia, (5th cert. 576 F.2d 37 munity Poland, which had a K-12 school 99 S.Ct. 58 L.Ed.2d percent with 9.6 in black attendance. (5th Cir.1977). retention The judge’s insight

A trial into local con 553 F.2d virtually all-black of all-black is defer ditions to be accorded substantial unac system is nonetheless within a dual by ence. remedy While the fashioned reasonable alternatives ceptable where awkward, court “may administratively be be United States DeSoto implemented. inconvenient, in some and even bizarre” Board; Par Lemon v. Bossier Parish School cases, may impose “and burdens on some Cir.1978). Bd., (5th ish School ... all awkwardness and inconvenience Dist., Indept. Denison Price v. School See cannot in period be avoided the interim Cir.1982). (5th adjustments being when remedial made to systems.” eliminate the dual school approved by the dis plans Various Swann, 402 U.S. at at 1282. long history of this trict court over pri not realize one of their litigation did Appellate review of Cheney- desegregation of the mary goals: court’s exercise of its discretion in broad 1975 to attempt The court’s in ville schools. formulating desegregation plan guided objective by closing the ma accomplish this tripartite set in Millik analysis forth (K- Cheneyville High white jority teachings, en. Consistent with Milliken’s 12), assigning residing all children remedial order must carefully tailored to un Cheneyville proved to Lincoln the constitutionally correct infirm condi because of an exodus of white successful tion, segregation restore the victims of on original hearing, again pupils. On positions they enjoyed would have ab remand, the district court concluded conduct, and, proscribed sent where impermissible condition constitutionally congruent precepts, with constitutional ac by pairing remedied or cluster could not be commodate the interest of officials in Poland, ing with the school administering judicial their affairs without pool “white” school.6 Absent a accessible interference. students, opted white the court available reassign living Cheneyville students east of Lincoln Williams Poland, which was reduced to a K-6 It is axiomatic that the existence and to transfer Poland’s seventh facility, racially homogeneous of a few schools with eighth grade students Jones Street system per in a school is not se offensive to These increased Po assignments School. Dayton the Constitution. Board of Educa from population land’s black student 9.6% Brinkman, 406, tion v. 433 obviously U.S. 97 S.Ct. The district court was to 36.8%. 2766, (1977); remand, persuaded, 53 L.Ed.2d 851 United both before and after States Board; segre v. Parish viable alternative to a DeSoto School United that District, remaining for the K-6 stu- County gated v. education States Seminole School Accord, 1980, (5th Cir.1976). arriving Houston in 800 Ross v. 6. at this conclusion (in seeking likely Independent reduction court took into consideration the recur- School Dist. flight” phenomenon rence of the “white if Lin- the district in the number of one-race ignore coln clustered or Williams and Poland were diminished white enroll court could paired. flight”); This rationale was reaffirmed in the United ment attributable to “white post-remand objection (a court’s decision. No DeSoto Parish School Board States v. finding interposed been in ignore likely danger has to the court’s an exodus of need not of regard. system). this See white children from a school High School Parents Assn. of Andrew Jackson Generally speaking, community opposition to Ambach, (2d Cir.1979); Higgins 598 F.2d 705 v. desegregation of which takes the form white City Education of the Grand v. Board of flight justify will not a district court’s failure to Cir.1974). Cognizant (6th Rapids, non-unitary 508 compel the total elimination of a which the trial as we are of the deference to system. school United States v. Scotland Neck knowledge complex on-the-spot Education, 484, of this City court’s Board of 407 U.S. 92 S.Ct. Swann, entitled, gainsay cannot 2214, (1972). situation is we nonethe- We have clustering pairing judgment with judge, choosing that or its less held the trial that produce practice not more among permissible plans, may “in Poland would select one calcu- Stout, desegregation.” at boycotts. 537 F.2d but less lated to minimize white Stout v. County Jefferson Board of 537 F.2d 802.

1227 Omaha, (8th Cir.) was them District of 521 F.2d 530 Cheneyville reassign dents in denied, Lecompte. to the schools in cert. Lecompte L.Ed.2d Because Ele pres- Nothing in the attests to the record and Carter were mentary Raymond approx barriers, ence of or geographic demographic black, 60% use imately pairing cluster distances,

insuperable travel excessive techniques to white ing transfer students to times, might or other factors which militate Lincoln Williams would have served only to against the resort to a “nor- busing, court’s percentage further skew black accepted poli- mal and tool of educational However, schools. both Lecompte these Swann, cy,” at 1282. physically schools could absorb the relative Indeed, is nine Cheneyville approximately ly small number of Lincoln Williams stu Lecompte miles south of and is connected considered, dents. All relevant factors we by a major highway, portion of which is to close multi-laned. conclude decision Lincoln nothing There is to indicate and to transportation reassign students to former Lincoln Lecompte Williams students to was within the ambit of presented Lecompte the dis any kind logistical expansive trict difficulty. authority.7 remedial Student busing over substantial distances is com-

monplace in Forest Hill portion the southeastern Parish, Rapides population where dif- having an Once confected antidote for fused and some live many families miles ills, the Cheneyville’s segregative court was school desegre- facilities. Absent the with yet confronted another dilemma —the wrinkle, gation busing traditionally has projected minority increase in enrollment in warmly public been received as a welcome Lecompte schools occasioned the in- service, particularly by living in families students flux of from Lincoln Williams. rural areas. ineluctably This led to the court’s considera- predominantly tion of white student

The record reflects that the ef Hill, body at Forest desegregate approximately forts to Poland were nine progress ing Lecompte. Viewing well. The court’s obvious reluctance to miles west the Che- disrupt part neyville, of the total Forest Hill and parish reasonable. as eminently integral single United elements of a educational See Stout; v. United network,8 States States v. School the court to eradicate all resolved thereof, Invoking array judicial approval a formidable of Fifth Circuit as but does not di- precedent, authority board Lin- contends that minish court’s traditional coln palliative Williams could not be reasons closed for as to dismantle one-race schools relating Swann; e.g., Morgan its racial character. See Arvizu v. segregation. See v. District, Independent Waco McDonough, (1st Cir.1982); 495 F.2d 689 F.2d 265 Lem- (5th 1974); Cir. Ellis v. Board Public Parish on v. Bossier School Board. See also Orange County, Florida, Instruction of (3d McCunney, F.2d Mitchell Cir. Cir.1972), (5th denied, rt. 1981) (closure homogeneous black and white ce 1438, (1973); 93 S.Ct. Lee v. approved). It follows that the court’s County Education, Macon Board 448 F.2d utilization of school as a remedial closure de- (5th Cir.1971); County 746 Mims v. Duval vice, perpetuating rather than as a means of Board, (5th Cir.1971); School F.2d 447 1330 not, system, dual did in contradistinction to the Municipal Separate Bell v. West Point School Hills, argument by advanced counsel District, (5th Cir.1971); 446 F.2d 1362 Gordon deprive pupils function to of either school of Board, v. Jefferson Parish Davis School 446 right equal protection their to of the law. (5th Cir.1971); Wright F.2d 266 v. Board of Fla., Co., Public Instruction Alachua 431 approved implementa- 8. We the district court’s (5th Cir.1970); F.2d 1200 Natchi I, Robertson v. parish-wide remedy Rapides tion of Board, (5th toches Parish School 431 F.2d 1111 parish op- entire based on evidence that “[t]he Cir.1970); Ouzts, (5th Hilson v. 431 F.2d 955 segregated system past, a dual erated as Cir.1970); Montgomery County Carr v. Board vestiges that the not been eradi- and ... have (5th Cir.1970). 429 F.2d 382 required.” cated ‘root branch’ as authority prohibits This line of violation a school at 938. Once constitutional of this shown, racially board’s closure of schools the identifiable dimension had been court was em- Poland, discriminatory Cheneyville, purposes, powered as “black” for as well to embrace Le- 1228 by grades

traces of 5-8 bused to Lincoln segregation unconstitutional Williams. Un- dismantling facility Forest Hill’s K-8 suggestion, Lecompte grade der 4 shifting Lecompte. its students to The For- white, all Lincoln would become almost est Hill intervenors and the school board (School 1-4 all black Board grades challenge the the court’s conclusion 1). series of plan suggestions Yet another assignment elementary of all and middle sought specific grade the establishment of within the re- tri-community configurations Lecompte at Forest Hill and gion Lecompte accompanied by Williams, through the closure of Lincoln Hill, closing the of Forest the offered most and the creation of K-5 schools at Forest prospect desegre- reasonable of successful Lecompte, Hill and a 6-8 school at Carter gation, contending proposals they Raymond, and a K-6 school at Poland effectively submitted would function more (School 3), 2 plans anticipating Board remedy the discrimination found to exist. transportation Lecompte of 78 and 108 None parties take with the issue Hill, respectively. children to Forest district court’s unequivocal rejection of the plans by None of the the school suggested suggestion school board’s initial that Le board or the Forest Hill intervenors ade- compte Elementary be closed and its stu quately insure a fair reconciliation of the transported dents Among to Forest Hill. competing interests involved. Some of the influencing factors this decision were proposals unfairly would have burdened mi- adequacy of Lecompte Elementary’s fa nority proba- students. Others would in all cilities, location, its central and the relative bility precipitated have a reversion to the ease busing Forest Hill students to Le impermissible quo status perpetuation —the compte. Given the of a lack feasible alter essentially Lincoln Williams as an one- native closure, to Lincoln Williams’ race spread equally school. None would out, impelled to seek within prac desegregation. burden of limitations, tical an equitable allocation of the burden of desegregation by declining to contrast, By way devel close a majority second black school. Arvi oped court, by precious with little of the District, zu v. Independent Waco 495 assistance right expect it had a from the (5th Cir.1974); F.2d 499 Corpus Cisneros v. parties, equidistant transpor envisions the District, Christi Independent School equivalent tation of an number of white (5th Cir.1972) (en banc), cert. de age and black students in the same bracket. nied, 37 L.Ed.2d The plan anticipates an even-handed Landis, Brice v. See desegrega distribution of the travails of F.Supp. (N.D.Cal.1969) (when minority tion. See United v. Texas Education States school being closed has adequate facilities Agency, (5th Cir.1972) (en 467 F.2d 848 bused, and white closing students not un banc). justified). McCunney, also Mitchell v. See (3d Cir.1981) (“school F.2d board suggestions urged Other on remand were obligation has an implement a student by eliminated the court for similar reasons. reassignment plan that will not dislocate suggestions One series of called for the black significantly students more than selective busing specified of a number of students”). white Plans submitted black children or Wood- school board and the intervenors would not (Forest worth to Forest Hill plans achieve desegregation the measure of real 4). suggestion Another advocated istically rejection by attainable. Thus their maintenance of Lincoln Williams and For- the district court did not constitute error or schools, est Hill as K-8 and Lecompte Ele- school, an abuse of mentary as a K-4 discretion. See Davis v. Board with black Lecompte grades Commissioners, 33, from K-4 bused to of School 402 91 U.S. Hill, and white pupils Lecompte 1289, (1971). S.Ct. 28 L.Ed.2d 577

compte single plan. and Forest Hill within a remedial

1229 Perhaps the problematic pro- feasibility most of all of a remedial variety of methods posals rejected evaluated lending judicial imprimatur before their court concerns the survival of both Lincoln propagation or maintenance of one-race Williams and Forest Hill as racially identifi- Estes, elementary Tasby schools. v. 572 able pro- K-3 institutions. Pursuant to this (5th Cir.1978), F.2d 1010 cert. dism. sub nom posal, first suggested by private plain- v. Metropolitan Estes Branches of the Dal espoused by tiffs and later the Forest Hill NAACP, 437, 716, las 444 100 62 U.S. S.Ct. intervenors, children the early elementa- Swann; (1980). L.Ed.2d 626 Lee v. See ry grades would attend schools within their Macon County Board Education. See neighborhoods. While the opinion court’s also Davis v. East Baton Rouge Parish provides guidance no as rationale Bd., (5th Cir.1978), 570 F.2d 1260 underlying its disallowance neighborhood 1016, denied, 1114, cert. 439 U.S. 99 S.Ct. 57 independent our examination of the (1979) L.Ed.2d 72 (elementary, middle persuades record us of the appropriateness high schools). of the position. court’s one of transportation, Student Though mindful worthy of the the “desegregation approved by tools” community values inherent in a neighbor Court, Supreme cannot be as discounted school, hood the maintenance of such values valid alternative to the education of ele supersede not serve to the constitution mentary school children in a en segregated imperative desegregation. al See vironment unless the record demonstrates Swann; Rapides I. We need hardly remind that “the time or distance of travel is so of that mandate at this point, nearly three as great to either risk the health of the decades after Brown v. Board of Educat significantly impinge children or on the ed ion.9 Federal obliged courts are to “make ucational process.” Swann 402 at 30- U.S. every effort to achieve the greatest possible 1283; 31, 91 at United v. Texas S.Ct. States degree of actual desegregation, taking into (5th Cir.1976), Educ. 532 Agency, F.2d 380 practicalities account the of the situation.” denied, 3106, 915, cert. 443 U.S. 99 61 S.Ct. Davis, 37, 402 at 91 U.S. S.Ct. at 1292. This (1979). Rap- L.Ed.2d 879 As we observed constitutionally oper erected barrier to the I, acceptable length ides and time of segregated ation of applies to all travel will perforce vary age with the of the children within system, including the school posed children and the risk to their health. elementary grades. those in Kelley v. Met 646 F.2d at 939. ropolitan County Board of Education of To buttress their contention that Tenn., Nashville and Davidson County, 687 an impose would excessive bur- - (6th Cir.1982), denied, F.2d 814 cert. students, den on Forest Hill K-3 the inter- -, 834, U.S. 1027 S.Ct. L.Ed.2d (1) venors chil- offered evidence that: some (1983); States, Adams v. United dren travel approximately would one hour (8th Cir.), denied, 826, cert. direction, (2) traveling each buses between 88, (1980). S.Ct. L.Ed.2d 29 Lee See Forest Hill and must traverse a Education; County Macon Board of An track, (3) railroad the Forest Hill school derson v. Dougherty County Board of Edu embodied the most treasured characteristics cation, (5th Cir.1980); F.2d 225 United and qualities surrounding of the communi- Valdosta, States v. Board of Education of ty. Photographs were offered to show the Ga., (5th denied, 576 F.2d 37 Cir.), cert. buildings. condition of the Forest Hill school 1007, 622, U.S. (1978); Mills v. County Polk impressed sincerity Board Edu We are with the cation, 575 (5th Cir.1978). Since depth feeling displayed by the Forest “desegregation plans cannot parents. be limited to Hill The record attests to the fine school,” Swann, the walk-in quality citizenship of these interve- 91 S.Ct. at explore courts must They law-abiding supportive nors. 9. 347 U.S. 74 98 L.Ed. 873

of our Balancing simply get Constitution and laws. students on already buses loaded the equities when their dealing with small with their older brothers and sisters.” children particularly is a arduous task. Our Finally, the district court found painstaking review of the neverthe- record Leeompte Raymond Elementary Carter and less discloses no evidence to contradict the structurally capable to be and sound finding, respect district court’s with to the accommodating assigned.11 all students Ac residing children within 2.5 miles of the upon cordingly, consideration all of the heart of Forest Hill or the along highway to factors, foregoing we must concur in the Leeompte,10that “the burden of busing oth- judgment district court’s the that interve ers into greater Forest Hill is far than legitimate nors’ preserving interest in their busing Hill Forest students to Leeompte.” instance, must, in neighborhood school this proposals The by advanced the school yield requirement to the constitutional board and intervenors contemplate the white, all parish, children in the black and transportation of black students from Le- desegregated experi share in a educational compte to Forest Hill high- over the same ence. way as dangerous is claimed to be arid We thus conclude that the district court’s overly long for the transportation of Forest Hill assign decision to students Hill to Leeompte. students We are not the Leeompte schools and close Forest persuaded that burdens risks of a its school was reasonable exercise of vary depending travel on the direction of equitable The record in this discretion. travel complexion and the of the travelers. supports case the court’s conviction that of further, We note court, as did the district offered, all proposals can best that the older students riding have been expected be to achieve the mandated con- school Leeompte bus to a for number of unitary system. version to a years. High from School students the For- AFFIRMED. est Hill area have been to Leeompte bused voluntarily since the school year, 1966-67 CLARK, Judge, dissenting: Chief eighth graders seventh and must also now I respectfully from dissent. The mandate of bused Forest Hill. The bur- den panel, this F.2d busing elementary prior school chil- court’s con- just dren is did by previous panel minimized trols this as it the district establish- busing ment of for Although majority the older children. court. starts its As rea- the district soning court stated: “The elementary by quoting paragraph crucial pertaining 10. The intervenors attack the court’s dence inclusion to the time distance of in its decree of the younger residing estimated 50 students who travel for children in the fore- Creek, Bay live in the Mill Bennett areas, Blue going equities we cannot assess the areas, Lake Road to the west and south of tripártite deseg- their assimilation in the court’s government Forest Hill. The concedes motion, regation program. Upon proper how- busing “the time and distance of these students ever, the court wish to reconsider its as- point would be considerable.” As intervenors signment of students from these remote locali- out, findings by no were made the district court Leeompte ties to schools. burden, any, transportation on the if sustained by these children. Forest evidence in Hill’s intervenors, According to the regard assistance, us affords little inasmuch as Leeompte inspection of the schools was trip distinguish the bus drivers’ tickets not do persuaded. an abuse of discretion. We are not elementary, junior high high between dispute Forest Hill residents do not the court’s children, school all of ride the whom same findings adequacy to the of these as map provide buses. Nor does the submitted findings by are in which fact corroborated premise evaluating sufficient the nature and proffered Leeompte photographs. If Elementa- imposed extent of the burden on the children ry disrepair and Lincoln were age, putative vis-a-vis either their health harm, presented palpable risk of we are cer- any potentially upon risks or deleterious effects subject process. tain that board would testimony the educational The on this children such hazards. Lemon v. Bossier issue served routes describe the trav- living outlying eled Board. Parish School children environs light paucity of Forest Hill. of evi- mandate, equitable powers it has course a court’s applied that its letter or Of are past wrongs very constitutional remedy to the district court’s order on remand spirit v. Charlotte-Mecklenburg broad. Swann today. which is before us for review 1, 15, Bd. of U.S. S.Ct. Specifically, prior mandate vacated 1267, 1275-76, (1971). L.Ed.2d 554 Of closing the order the Lincoln Williams and course all reasonable methods to achieve required Forest Hill schools and the district this end are available. North Carolina (1) give regard court to: to neighborhood Swann, 402 Bd. of Education v. State considerations for rural 646 F.2d at 43, 46, 1284, 1286, 944; (2) equita- take into consideration such (1971). of school premises These are basic length ble factors as and time of “[t]he desegregation Supreme law. The Court age travel in chil- light ... of the and this court have often held courts dren, and the risk to health and probable children, pursuing goal may this bus reshuf impingement process,” on the educational cluster, faculty, pair, fle rezone and close 939; (3) only employ id. at the “harsh reme- powers type schools. But a court’s in this dy” closing rural schools “if absolutely of Rather, they of case are not unlimited. to achieve necessary goal unitary of a proper objectives. confined to the case system after all other alterna- reasonable bar, not, at court’s as it de task 940; explored;” (4) tives have been id. at clared, integrated to achieve an student “explicitly justification state its for order- school, body every remedy or even to 940; ing (5) a school closed” id. at and of racial imbalance that every problem reexamine closing Swann, its of Lincoln Williams system. exist within the school su light pra schools “in of the full 402 U.S. at 91 S.Ct. at 1280. Rath er, range eradicating segregation it was limited to mitigating equitable considera- past practices. cause school board Ross (id. 941) tions” because the district District, Independent v. Houston findings that Lincoln Williams had (5th Cir.1983). F.2d 227-28 In school predominance of black and that Le- desegregation cases the court’s unnatural compte Elementary was older than Forest a super role becomes that of school board Hill but was “much the better location for It is a temporary school administrator. purposes integration” formed an insuffi- played circumspec which must be with role cient closings, basis to sustain the id. at 940. damage tion care for the which over- remand, On the district court wrote a children, parents broad remedial bans do to new, longer opinion in changed which it who have offended no one. and communities added words but I cannot find in them even great power The existence of does not change any one substance to show that every permit its fullest exercise in case. complied court with these commands. objectives Because the court has limited appeal majority imper- On this has role, remedy scope and a limited missibly present approval substituted its fit the nature it devises must be tailored to prior panel’s rejection of the same and extent of the constitutional violation closing edict on the same basic dis- Gautreaux, found. Hills v. findings trict court premises. and erroneous 293-94, 1538, 1544-45, 47 L.Ed.2d The net result this court has now prior panel The mandate re- a district affirmed court order that failed to the district court to reexamine that quired tailor remedy to the constitutional closing its order Lincoln Williams portion of wrong identified this case. The conse- light range Hill in of the full and Forest quences are that innocents suffer and the it de- mitigating equitable circumstances brought disrepute. judg- law is into The court, not required scribed. It the district again ment should have been vacated court, all other explore appellate remanded, explicit the cause this time with reinstated alternatives before it reasonable facility “closing to limit appropriate remedy” directions relief to an the “harsh expense of local and maintained at the remedy. built they have been to this taxpayers.” single Why put Not a one of the “full then range mitigating, equitable circumstanc- integration, grief? For (and many) required es” there to be were prospect It saw no other reasonable said. distinguished was discussed or or considered Lincoln Williams integrate to because applied. really The district court did no paring Lincoln Williams had prior order put more the wine of words in the new than flight. white But been defeated closings old skin of school it saw no because students now Cheneyville parents who remedy integrate other to Williams. Lincoln it. plead keep their school did not leave to plea keep When district court reordered the their to their school Why must closing of the Wil- Forest Hill and Lincoln At the base of open go opposite unheeded? liams these two communities lost pleas Hill triangle, of the Forest their schools. both Children from com- parents keep who also want to students and must many munities now be miles bussed Why? were equally ignored. their school their Expert placed homes. evidence remedy” imposed the “harsh Why must in this record on remand established that weighing range the “full on them without closing school, a town’s only especially one equitable they of considerations” mitigating settlement, in a located small traumatizes equitable brought forward? effect an “[T]o the whole town. The costs are greatest to majority of the burden” the distribution school-aged the families that include chil- says. punishment I can see that the inflict- dren, but repercussions hurtful extend compara- on the citizens of Forest Hill is ed throughout the community. punishment Cheney- ble inflicted to the on communities, Parents in both “burdened” ville, equity cannot spark but I detect a white, predominately predo- one the other the coals of heads heaping in sorrow on the black, minately asked the court to leave community. The shows either record open, their schools at their young- least for without contradiction that the Forest est petitions ignored. children. Their were predominantly area became white because children, These ranging age from kinder- in the change community’s of a economic- garten through elementary grades, early nothing conditions which had to industrial early, buses, must rise board drive past do with schools. Cf. Pasadena Board City community their go school houses and into a 424, 436, Spangler, Education town distant and then the journey reverse 2697, 2704-05, 49 L.Ed.2d evenings. will two spend Some hours the Lincoln nor Neither on day the school bus. Their names are Hill school or the Forest was constructed not recorded. Their family situations are to evade The desegregation. maintained needs, not hopes, detailed. Their their their has never school board used either are rights dashed without If discussion. purposes. punishment for racial The five-year-old gets sick or her forgets coat or fits no or the these innocents crime of their her her parents lunch wants to contact making. district’s she must make a long telephone distance years For this school district has eighteen reach call to her home. It seems small injunctive been under the edicts federal for solace the majority suggest to that some has not violated one. fault courts. It The high school-aged such children have perceived shortcomings dis- any who will siblings be on the with them bus trict, the doorstep lies of the federal part way. remarkable, Much more I courts, district, the school or its staff think, children, is parents, the fact that the Moreover, patrons. courts no one delude damaged and communities who are so did justice when but themselves in the name of way not cause contribute in to the any wholesale they adjustments make to conceived constitutional wrong court intimate, differing rights individual and Indeed, sought remedy. citizens. If edict and the hundreds of this latest majority court both state that else, people altogether proves nothing prove again of Forest Hill it will have been law-abiding guilt. totally inadequate and free of courts institution assumption The of the district court and injunctions with broad the nu- to resolve merous, rights majority which the that there was no alternative complex, interrelated was erroneous. comprise closing a “school case.” Lincoln Williams white flight by The threat of children to be “princi- The as its accepted district bussed from to Lincoln Williams adoption of a pal purpose ... justify rejection plan any does not of this greatest which achieves the amount of inte- more than the threat that from For- gration.” wrong. Integration This was go Lecompte Elementary est Hill won’t not a constitutional command.' race One Cheneyville or the threat that blacks from which past are not the result of plan. will not follow the court’s Of course segregation keep do not a school district ignore the court was not a like- required Swann, being from unitary. supra, It pupil flight. happened lihood of had 25-26, at 1280-81. This country may happen before. In a free it premise false led the district court to close again. A court’s school order can mandate patrons. Lincoln Williams to its As errors county performance officials in the of their do, it, turn, prone to caused the duties, map it can zone and it boundaries closing bring further error of Forest Hill to can fence in but it cannot command misery company. wrongs The two do single go single student to to a school for right. make a a single day. the pity. accepting More’s Even the dis- But just as United States Scotland premise duty trict court’s erroneous of a to City Neck Bd. of integrate, plan achieving theoretical 2214, 2218, integration remedy was not the best availa- (1972) that flight establishes cannot be ac- disruptive ble. A less solution was identi- cepted achieving anything as a reason for fied parties. Under the school less than complete uprooting of dual plan, board’s third from predomi- children system, accepted school it cannot be as a nantly black zones in the areas reaching past wrong reason for to be could have been bussed to Forest Hill. This equally remedied when a less disruptive, plan supplemented could have been plan effective is available. It cannot do so suggested manner aby group Cheney- wrong because a that exceeds the remedy ville citizens proposed who the Le- clear righted precedent be violates compte elementary schools be closed. If Supreme and this court. It cannot Court do approach used, had been that communi- so here because the district court’s order ty could have eighth retained a seventh and disobeys controlling pri- mandate of the grade school and four-year high school for panel. The court did not demonstrate their own children as well as those from that its more effective likely Cheneyville and Forest Hill. from Children than the possible plan that would close predominantly white areas in the Lecompte Indeed, Lecompte’s one of schools. the rec- region could have been bussed to Lincoln quite contrary. ord indicates to the Williams. closing Instead of the only communities, just schools in two one of the In years thirteen on this court I have three Lecompte area participated schools would have in the affirmance of a number been Raymond closed. Carter of public desegregation plans. and Le- school Most compte High been, are, could have theory continued to serve have as most successful in the area. bussing only. Instead of children from I remain readily nevertheless obedi- communities, two only children from my obligation one ent to follow precedent. area would have had to be bussed. As the But that me keep knowing does not observed, court aptly zones, the road mileage everyone pairs, be- what clusters knows— tween these greater bussing communities is no are workable remedies for one direction than the other. Statistically, desegregation only school in extreme cases. dealing desired racial mixture could have problem been When the is reduced to achieved in both people good schools. with will who have done no

wrong, neighborhood maximum use of the is the key assuring equal

school educa- opportunity. equality oppor-

tional That

tunity is the constitutional lodestar. cases, precedent

some prior dis- actions proscribe

trict will the maximum

preservation neighborhood This schools. clearly not such prior panel a case. The

established the district court should

have followed its should we. mandate. So

SECURITY INDUSTRIAL INSURANCE

COMPANY, Plaintiff-Appellee, America,

UNITED STATES of

Defendant-Appellant. 81-3804,

Nos. 81-3805.

United Appeals, States Court of

Fifth Circuit.

April

Case Details

Case Name: Virgie Lee Valley, United States of America, Intervenor-Appellee v. Rapides Parish School Board, and Clyde Holloway, Intervenors-Appellants

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 30, 1983

Citation: 702 F.2d 1221

Docket Number: 81-3462

Court Abbreviation: 5th Cir.