Rehearing En Banc Denied May 9, 1967.
HEANEY, Circuit Judge.
On February 15, 1966, the appellants, Negro citizens and residents of Altheimer Public School District No. 22, Jefferson County, Arkansas, initiated a class action suit in equity pursuant to Title 42, U.S.C. § 1983. In their Complaint, they asked for a preliminary and permanent injunction enjoining the Altheimer Public School District and the J. E. Stowers Construction Company from continuing plans to construct, and from constructing, separate elementary schools for white and Negro students.
The Altheimer School District includes the town of Altheimer together with a
Prior to the 1965-66 school year, the District maintained totally racially segregated schools. Negro students were taught in a complex known as the Martin School, and white students in a complex known as the Altheimer School.
In response to the enactment of Title VI of the Civil Rights Act of 1964 and the promulgation of guidelines by the Department of Health, Education and Welfare (H.E.W.) implementing Title VI, the Altheimer School District submitted a voluntary plan of desegregation
During the first year's operation of the "freedom of choice" plan (1965-66), two Negro elementary students and four Negro high school students requested assignment to Altheimer. No white students requested assignment to Martin. All the Negro requests were granted.
In 1966-67, twenty-three Negro students requested and were granted admittance to Altheimer Elementary School and twenty-four Negro pupils requested and were granted admittance to the Altheimer High School. No white students requested a transfer to Martin, which remained 100% Negro.
Apart from a few white teachers who teach in the all-Negro school, the faculty of the District remains segregated.
The trial court supported its dismissal of the appellants' Complaint on the following grounds:
(1) The Board of Education, by adopting a "freedom of choice" plan under which the doors of the formerly all-white school were opened to Negroes, satisfied the requirements of the Fourteenth Amendment. If Briggs v. Elliott, 132 F.Supp. 776 (E.D.S.C.1955) is still good law, the Commissioner of Education is going further than the Constitution requires by seeking to fully integrate public school student bodies and faculties and to eliminate dual school facilities.
(2) The H.E.W. Guidelines adopted by the School District (the Court stated it assumed they would be enforced and obeyed) are a prompt and reasonable start towards the elimination of unconstitutional racial discrimination within a reasonable time and is within the tolerance, if not beyond, the requirements of Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955)
(3) The responsibility for the enforcement of the guidelines rests with the Department of Health, Education and Welfare. Since the guidelines may go beyond what the Constitution requires by requiring that there be full integration of public school student bodies and faculties and the elimination of dual facilities, the Court will leave their enforcement to H.E.W.
VALIDITY OF FREEDOM OF CHOICE PLAN
The appellants do not challenge the constitutionality of "freedom of choice" plans per se;
At the outset, we emphasize that this Court has rejected the Briggs approach. Judge Gibson, writing in Kemp v. Beasley, 352 F.2d 14, 21 (8th Cir. 1965), stated:
The Briggs dictum has also been rejected by the Fifth Circuit, United States et al. v. Jefferson County Bd. of Education et al., Civil No. 23345, 1966, 372 F.2d 836, rehearing held March, 1967, 380 F.2d 385; Singleton v. Jackson Municipal Separate School District, 348 F.2d 729, 730, n. 5 (5th Cir. 1965); the Tenth Circuit in Board of Education of Oklahoma City Public Schools et al. v. Dowell et al., Civil No. 8523, 10th Cir., 1967 375 F.2d 158 and the Third Circuit in Evans v. Ennis, 281 F.2d 385 (3rd Cir. 1960), cert denied 364 U.S. 802, 81 S.Ct. 27, 5 L.Ed.2d 36 (1961).
Secondly, we have made it clear that a Board of Education does not satisfy its constitutional obligation to desegregate by simply opening the doors of a formerly all-white school to Negroes.
Thirdly, this Court has stated that it will rely heavily on H.E.W. Guidelines. In this case, however, the record indicates that compliance has been less than complete.
Finally, this Court has made it clear that under their continuing responsibility to protect the constitutional rights of parties who appeal to it for protection, District Courts should retain jurisdiction in school segregation cases to insure (1) that a constitutionally acceptable plan is adopted, and (2) that it is operated in a constitutionally permissible fashion so that the goal of a desegregated, non-racially operated school system is rapidly and finally achieved. Clark v. Board of Education of Little Rock School Dist., supra 369 F.2d at 671.
In the light of this background, the appellants urge that the "freedom of choice" plan cannot effectively desegregate the schools in this District. They ask that we require the Board of Education to take action immediately to integrate all of the elementary classes at one site and the secondary classes at the other. Though this solution has great appeal because of its simplicity, and obvious efficiency, we are not prepared to hold at this time, in view of our recent decisions in Smith v. Board of Education of Morrilton Sch. Dist. No. 32, 365 F.2d 770 (8th Cir. 1966); Clark v. Board of Education of Little Rock, supra; and Kemp v. Beasley, supra, that desegregation in accordance with the Constitution cannot be accomplished if students are permitted to attend the schools of their choice. See also, Lee et al. v. Macon County Board of Education et al., Civil No. 604-E, 267 F.Supp. 458 (D.C. E.D.Ala.1967). In so holding, we make
We turn then to consider the steps which must be taken by the appellee School District to fulfill its constitutional responsibilities, and to eliminate present obstacles to a "free choice" by parents and students.
The faculty of the District is still largely segregated on the basis of race.
Negro teachers are paid less than white teachers of comparable education, training, teaching experience and tasks,
The Board of Education took no steps to desegregate the faculty in the decade from Brown to the passage of the 1964 Civil Rights Act, and has taken only token steps since 1964.
Only three Negro teachers and six white teachers, currently employed by the Board, were on the faculty at the time of Brown. Thus, the Board has had numerous opportunities to desegregate the faculty when hiring and assigning new teachers. Instead of doing so, it continued to hire and assign on the basis of race.
While the Board of Education committed itself before the District Court and this Court to equalize salaries, no similar commitment has been made with respect to the class size or faculty desegregation;
The Court, in Brown v. County School Board of Frederick County, Va., 245 F.Supp. 549, 560 (W.D.Va.1965), stated:
It may be added, that the converse is also true, that an all-white faculty in a school attended exclusively by whites in the past denotes that school as a "white school."
The Supreme Court and four Circuit Courts, including our own, have made it clear that a school District may not continue a segregated teaching staff.
In Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, supra, the Court indicated problems relating to relocating staff to be one reason for permitting the desegregation process to proceed with all deliberate speed.
In Bradley v. School Board of City of Richmond, 345 F.2d 310 (4th Cir. 1965), the Fourth Circuit refused to consider the issue of faculty assignment by race. The Supreme Court, in a per curiam reversal of that case, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965) held that faculty segregation had a direct impact on a desegregation plan, and that it was improper for the trial court to approve a desegregation plan without inquiring into the matter of faculty segregation. In reaching this conclusion, the Court in a unanimous opinion, commented that "there is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely speculative." It emphasized the urgency of its ruling by stating that "delays in desegregation of school systems are no longer tolerable." 382 U.S., supra, at 105, 86 S.Ct. at 226.
In Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265 (1965), the Supreme Court extended the undelayed right to challenge teacher segregation to students who had not yet themselves been affected by the school board's gradual desegregation plan. In protecting the right of students to be taught in schools staffed on a non-racial basis, the Court, at page 200, 86 S.Ct. at 360, said:
The Fourth, Fifth and Tenth Circuits have also held that race must be eliminated as a basis for the employment and assignment of teachers, administrators and other personnel. Board of Education of Oklahoma City Public Schools et al. v. Dowell et al., supra; United States et al. v. Jefferson County Board of Education et al., supra; Wheeler v. Durham City Board of Education, 363 F.2d 738, 741 (4th Cir. 1966); Chambers v. Hendersonville City Board of Education, 364 F.2d 189 (4th Cir. 1966); Singleton v. Jackson Municipal Separate School District, supra; Board of Public Instruction of Duval County, Fla., et al. v. Braxton et al., 326 F.2d 616 (5th Cir. 1964), cert. denied 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964). See also, Northcross v. Board of Education of the City of Memphis, Tenn., 333 F.2d 661 (6th Cir. 1964); Jackson v. School Board, City of Lynchburg, Va., 321 F.2d 230 (4th Cir. 1963); Mapp v. Board of Education, City of Chattanooga, Tenn., 319 F.2d 571, 576 (6th Cir. 1963); Augustus et al. v. Board of Public Instructions of Escambia County, Fla., et al., 306 F.2d 862 (5th Cir. 1962); Christmas v. Board of Education of Hartford County, Md., 231 F.Supp. 331 (D.C., D.Md., 1964); 53 Va.L.Rev. 1 (1967).
Our own Court's decisions on the obligation to desegregate faculties are unequivocal.
In Kemp v. Beasley, supra, 352 F.2d at 22, Judge Gibson said:
In Smith v. Board of Education of Morrilton Sch. Dist. No. 32, supra, 365 F. 2d at 778, Judge Blackmun said:
And, in Clark v. Board of Education of Little Rock School Dist., supra, 369 F.2d at 669-670, Judge Gibson stated:
From these decisions, it is clear that affirmative action must be taken by the Board of Education to eliminate segregation of the faculty. While this may well be the most difficult problem in the desegregation process,
We cannot permit the difficulties involved in desegregating the faculties to deter us from achieving what the Constitution requires. To facilitate faculty desegregation, we urge that the full understanding and cooperation of the Negro and white faculty be sought. Experience has indicated that where an effort is made to obtain such cooperation, it is given, that the task is made easier and that the results are more productive.
The New Construction:
The School Board began discussions regarding construction of new elementary classrooms in 1957. The planning for these classrooms proceeded on the basis that since the Martin and Altheimer Elementary Schools would continue to be segregated, a larger number of classrooms were needed for the Martin complex.
Final action on construction was not taken until after April, 1965, at which time the Board decided to construct two new buildings, each containing eight elementary classrooms and related facilities at the Martin site, and a single building containing six elementary classrooms and related facilities at the Altheimer site.
A school bond election was scheduled for September 28, 1965. Prior to the election, one P.T.A. meeting was held at each school for discussion of the building program. The "Pine Bluff Commercial," a newspaper of local distribution, carried stories of the construction plans in the July 22, September 26, and September 28, 1965, issues.
Prior to the bond election, a mimeographed notice urging parents to vote on the issue was sent home with the school child. Proper legal notices of the election also appeared in the local newspapers.
Only 230 voters cast ballots in the election in which the bond issue was approved. Following approval, the Board contracted with the J. E. Stowers Construction Company for building the facilities. Five days after letting of the contract, the appellants filed the present suit to enjoin construction, contending that the building plan would tend to perpetuate racial segregation.
The school superintendent testified that the Board (1) did not consider alternative building plans, (2) did not consider whether the construction would aid or hinder desegregation, and (3) was mainly concerned with the need to build the facilities. He stated that by adopting the "freedom of choice" plan, the Board had done all that was necessary to comply with the law. He said that the Board would meet any problem of overcrowding when it arose but that at present, there was space for approximately sixty or seventy additional students at the Altheimer complex. He indicated that if the number of applicants for either school exceeded available space, those pupils living nearest the overcrowded school would be assigned to it.
The appellants' expert witness
The trial judge rejected these arguments. In dismissing the Complaint, he stated:
We cannot agree with the reasons advanced by the trial court in support of its decision. (1) The court's conclusion that both sites (unless clearly required) will be used for the benefit of both races is totally unsupported by the evidence and is contradicted by the court in its opinion.
Nor do the facts sustain the trial court's finding that the new buildings were not designed to perpetuate segregation.
The new buildings were the product of a ten-year building program begun when the District operated on a segregated basis. The Board made no changes in the plans in response to the mandate of the Supreme Court in Brown or any subsequent decisions by either the Supreme Court or this Court. Nor did the Civil Rights Act of 1964 cause the Board to alter its plans even though it finally agreed to desegregate the school system by indicating acceptance of the guidelines.
The trial court determined that if given a choice, white students would remain in an all-white school or a predominantly all-white school. The superintendent's testimony indicates the Board was also aware of this axiom.
Indeed, the Board limited the size of Altheimer Elementary School to the point where it is impossible for it to meet the standards established in the H.E.W. Guidelines. Under the guidelines, an enrollment of from 150 to 180 students in a minority situation by the fall of 1967 would be deemed satisfactory progress. Since no white students can be expected to request a transfer to Martin under the "freedom of choice" plan, all 150 to 180 would be Negroes enrolling at Altheimer. Overcrowding would be the result.
We would add that the lower court should have recognized the problems inherent in the Board's construction plans and required them to be modified to meet constitutional standards. Undue reliance on the "deliberate speed" language in the Brown case, plus adherence to the dictum in Briggs, has resulted in a decision which makes it more difficult to achieve a non-racially operated school system.
It is clear that school construction is a proper matter for judicial consideration. Wheeler v. Durham City Board of Education, 346 F.2d 768 (4th Cir. 1965); Board of Public Instruction
Relying upon Wheeler, the District Court in Wright v. County School Board of Greenville County, Va., 252 F.Supp. 378, 384 (E.D.Va.1966) said:
We conclude that the construction of the new classrooms by the Board of Education had the effect of helping to perpetuate a segregated school system and should not have been permitted by the lower court.
The fact remains, however, that error or no, new elementary classroom buildings have been constructed on the two sites and a plan which permits the best possible use of existing facilities in a constitutional manner must now be devised.
The Board of Education transports rural students to and from their homes precisely as it did during the many years it operated a segregated school system. It was inefficient and costly then. It is just as inefficient and costly now. Running two school buses down the same country road, one to pick up and deliver Martin students and the other to pick up and deliver next door neighbors attending Altheimer, is a luxury that this impoverished school could not afford in the past and cannot afford now. The difference is that, before Brown, the Board had the same right to operate segregated school buses as it had to operate segregated schools. While we have no authority to strike down transportation systems because they are costly and inefficient, we must strike them down if their operation serves to discourage the desegregation of the school system.
It has been said that the school bus is a principal factor in perpetuating school segregation in many areas of the South. See, United States et al. v. Macon County Board of Education et al., supra; Franklin v. Barbour County Board of Education, 259 F.Supp. 545 (M.D.Ala.1966); Harris v. Crenshaw County Board of Education, 259 F.Supp. 167 (M.D.Ala. 1966); Carr v. Montgomery County Board of Education, 253 F.Supp. 306 (M.D.Ala.1966); Harris v. Bullock County Board of Education, 253 F.Supp. 276 (M.D.Ala.1966); Wright v. County School Board of Greenville County, 252 F.Supp. 378 (E.D.Va.1966); 53 Va.L. Rev. 82 (1967); 1 Racial Isolation in the Public Schools, a report of the United States Commission on Civil Rights (1967), p. 67.
Reasoning compels a finding that the school bus is so being used here. Neither students nor adults can be expected to interpret the Board's action in continuation of this expensive and inefficient system as being anything other than an act designed to maintain, insofar as it is possible, the segregated transportation of students. While we approve, at this time, the right of students to select the school that they desire to attend, we do not approve of their right to select the bus in which they ride to school. The appellee School District has an obligation to operate its buses on a non-racial basis and we do not believe it has done so.
We are not confronted here with a situation in which the appellee School District is being asked to bus children from one neighborhood to another to overcome the effects of defacto segregation, caused by racially segregated housing patterns, thus Downs v. Board
The policies and practices of the appellee School District with respect to students, faculty, facilities, transportation and school expenditures have been designed to discourage the desegregation of the school system, and have had that effect.
The decision of the District Court dismissing the appellants' Complaint is, therefore, reversed and remanded for action consistent with this decision. The District Court shall retain jurisdiction to insure that the appellee School District carries out a detailed plan for the operation of the school system in a constitutional manner so that the goal of a desegregated school system is rapidly and finally achieved. When the goal is achieved, the District Court may relinquish jurisdiction, and the appellee shall be relieved of its obligation to file the reports on plans required by this decision with the District Court.
The plan approved by the District Court shall be consistent with, and in no event less stringent than, the one set forth in the H.E.W. Guidelines, heretofore accepted by the appellee School District. The plan, if the trial court desires, may be identical to that set forth in the guidelines. In any event, the plan, including the sections of the guidelines adopted by the court, shall be embodied in a decree and shall contain, in addition to the matter previously referred to, provisions incorporating the requirements set forth below. Annual reports shall be filed with the Clerk of Court and served on the opposing parties thereto no later than April 15, of each year, provided that an initial report shall be filed no later than October 31, 1967. Such reports shall be in a form prescribed by the District Court, and shall contain such information as the court feels necessary to enable it to determine whether the Board is complying with the decree.
The use of the "freedom of choice" plan, as outlined in the guidelines and as accepted by the appellee School District, is approved and may be used unless and until it becomes clear that the school system cannot be desegregated under such guidelines.
Uniform standards shall be developed for use in determining whether a class or school is overcrowded, and for use in determining the distance from home to school.
The faculty shall be completely desegregated no later than the beginning of the 1969-70 school year.
(1) Vacancies at Altheimer shall, when possible, be filled by the employment of qualified and competent Negro classroom teachers for such vacancies and, at Martin, by the employment of qualified and competent white classroom teachers for such vacancies.
(3) Should the desegregation process result in the closing of either school, or the shutting down of a particular grade in either school, displaced personnel shall, at the minimum, be absorbed in vacancies appearing in the system.
(4) Inequalities between white and Negro teachers with respect to salaries and teaching load based on racial considerations shall be eliminated.
The existing transportation plan shall be discontinued at the end of the present school year, and a new plan inaugurated consistent with this opinion.
CONSTRUCTION AND USE OF FACILITIES
(1) Plans for the construction of additional facilities shall be submitted to the District Court for approval. Any new facilities shall, consistent with the proper operation of the school system, be designed and built with the objective of eradicating the vestiges of the dual system and of eliminating the effects of segregation.
(2) Students at Martin shall be permitted to make reasonable use of library facilities at Altheimer until such time as equal facilities at Martin School are provided.
(1) The appellee School District shall take prompt steps: (a) to provide library facilities for the Martin School which are substantially equal to those at Altheimer, (b) to equalize pupil-teacher ratios and pupil-classroom ratios between the Martin and Altheimer Schools, and (c) to secure a prompt accreditation of the Martin School equal to that currently held by Altheimer School.
(2) By October of each year, the appellee School District shall serve on the opposing parties, and file with the Clerk of Court, a report showing pupil-teacher ratios, pupil-classroom ratios, and teacher expenditures both as to operating and capital improvement costs; and, if there are any substantial differences between Martin and Altheimer Schools, the appellee School District shall outline the steps which it will take to eliminate said inequalities and state the time it will take to eliminate them.
H. E. W. GUIDELINES
Nothing in this opinion shall be considered as relieving the appellee School District of any obligations that it has under the Civil Rights Act of 1964, including the responsibility of complying with the H. E. W. Guidelines, which they have voluntarily agreed to follow. To the extent that this opinion may constitute approval of said guidelines, it is not intended to deny a day in court to any person in asserting any individual rights or to
Reversed and remanded for action consistent with this decision.
On Petition for Rehearing
Appellees' petition for rehearing en banc or by a panel of the Court is denied. After a careful review of appellees' petition and facts of the case, we are of the opinion that the decision is not in conflict with earlier decisions of this Court, and follows decisions of the United States Supreme Court.
The appellees do not specifically complain of the decision insofar as it relates to transportation policies, school facilities or faculty. They do object to the decision as it relates to students.
With respect to students, this Court rejected the appellants' request that we require immediate and total integration of the school systems by converting one of the schools into a high school and the other into an elementary school, and held that appellee School District could continue the use of the "freedom of choice plan" previously accepted by it unless and until it becomes clear that the school system cannot be desegregated under such a plan.
A letter of February 13, 1967, from the Deputy Special Assistant to the Secretary for Civil Rights, Department of Health, Education and Welfare, to the appellants, indicates that the District was not in compliance with the guidelines:
"1. The Altheimer school district has filed a Form 441-B which constitutes a commitment to conform with the school desegregation guidelines issued by the Office of Education. Title VI requires adequate performance as well as the promises contained in the written assurances filed with this office.
"2. Based on the statistics set forth below, the Office of Education has not been able to make a finding that this district is presently in compliance with Title VI:
Teachers 2 schools in district 1965-66 1966-67 1966-67 White 376 406 White-21 2 teachers part-time Negro 909 1009 Negro-41 1 full-time across racial lines Desegregation 6 (.66%) 47 (4.6%)
"3. The Altheimer district is one of a group of approximately 50 school districts whose desegregation performance is sufficiently poor so that they have been scheduled for early review. * * *"
"Negro children who attend predominantly Negro schools do not achieve as well as other children, Negro and white. * * *
"* * * Negro children believe that their schools are stigmatized and regarded as inferior by the community as a whole. Their belief is shared by their parents and by their teachers. And their belief is founded in fact.
"* * * Negroes in this country were first enslaved, later segregated by law, and now are segregated and discriminated against by a combination of governmental and private action. They do not reside today in ghettos as the result of an exercise of free choice and the attendance of their children in racially isolated schools is not an accident of fate wholly unconnected with deliberate segregation and other forms of discrimination. In the light of this history, the feelings of stigma generated in Negro children by attendance at racially isolated schools are realistic and cannot easily be overcome." 1 RACIAL ISOLATION IN THE PUBLIC SCHOOLS, A REPORT OF THE UNITED STATES COMMISSION ON CIVIL RIGHTS (1967), p. 193.
PER PUPIL COST
Per pupil cost at Altheimer High School was approximately $390, as compared to $192 at Martin, for the year ending June, 1965. At Altheimer Elementary School, the cost was about $265 per pupil as compared to $165 per pupil at Martin.
Altheimer has received accreditation by the North Central Association (N.C.A.), which is the highest rating of schools in its section of the nation. Martin is not so accredited, primarily because of its inadequate library.
STUDENT-TEACHER RATIO Martin Elementary School 1-23 Martin High School 1-22 Altheimer Elementary School 1-26 Altheimer High School 1-17
Four years later, in a case involving the public parks of Memphis, the Court observed:
One year later, in the Prince Edward County case, the Court noted that: