LAY, Circuit Judge.
Our attention is once again directed to the problem of school desegregation. This case was presented to us once before, see Kemp v. Beasley, 8 Cir., 352 F.2d 14, decided in October 1965 (hereinafter referred to as Kemp I). Basically, its history since that time represents an apparent failure by both parties to cooperate in carrying out the mandate of this court for an immediate
The Supreme Court in Brown II recognized the supervisory powers of the district courts in "implementation of the governing constitutional principles" because of their knowledge and proximity to local conditions whereby they can best offer "judicial appraisal." 349 U. S. at 299, 75 S.Ct. at 756. But Brown II recognized first and foremost that "School authorities have the primary responsibility for elucidating, assessing and solving these problems * * *." Id. We have attempted to follow this principle in this Circuit, fully recognizing that even the district courts do not have the expertise or time to become the alter ego of school boards in carrying out educational policies.
However, as we indicated in Clark v. Board of Education, 369 F.2d 661 (8 Cir. 1966), transitional periods for gradual integration of grades and faculty are no longer meaningful excuses for school boards ordered to get on with their task of equal education for all. We are here now. We must now face the problems with realistic and practical resolution. Laudatory goals and ritualistic phraselogy will no longer rule the day. Within these principles we proceed to review the recurring problems before us.
Freedom of Choice.
Appellants challenge the Board's use of the freedom of choice plan. There is no need to repeat our observations made in Kemp I. Clark, and Kelley v. Altheimer, 378 F.2d 483 (8 Cir. 1967), concerning the constitutional validity of freedom of choice plans. At the present time, we are still not persuaded that such plans are objectionable per se. But recognition must now be made that the only permissible program is one that works. Or as often repeated, "the proof of the pudding is in the eating." Once again, we give a freedom of choice plan tentative approval solely as a transitional program to achieve a unitary school system. As said in Kemp I, it is still in the "experimental stage" and as such can only serve as an "interim measure" and as "a permissible method at this stage." 352 F.2d at 21. School boards must recognize the constitutional inadequacy of maintaining school systems where the formerly all white school has the appearance of only token integration and the all Negro school is still perpetuated as a segregated unit. It becomes judicial hypocrisy to approve a plan which simply continues the status quo under the guise that the segregation is no longer coerced. Where "freedom of choice" does not implement, or produce meaningful advance toward the ultimate goal of a racially integrated school system, it cannot be said to work in the constitutional sense.
Sometimes goals become elusive when obscured in the controversy over the mechanics with which we pursue them. Many times solutions become obtainable when we simply recall why we want to get there. With intended repetition, we recall principles which relate advantages common to all races.
2. "Today, education is perhaps the most important function of state and local governments." Id. at 493, 74 S.Ct. at 691.
3. "It is the very foundation of good citizenship." Id. at 493, 74 S.Ct. at 691.
4. "Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. Id. at 493, 74 S.Ct. at 691.
5. "To separate [grade and high school children] from others of similar age and qualification solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Id. at 494, 74 S.Ct. at 691.
6. "Segregation in public education is not reasonably related to any proper governmental objective. * * *" Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).
7. "Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other `tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does." Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 691.
But goals cannot be accomplished with present attitudes. Once again the School Board relies upon the now discarded approach of Briggs, first refuted in this Circuit in 1965, when Judge Gibson, in Kemp I, speaking for this Court, said:
See also our repudiation of this view in Kelley v. Altheimer, 378 F.2d 483 (8 Cir. 1967), and in Yarbrough v. Hulbert-West Memphis School District, 380 F.2d 962 (8 Cir. 1967). See specifically the concurring opinion at p. 969.
In the present case appellants urge that they were restricted by the trial court in presenting evidence as to the degree of success of the Board's plan. We recognize the discretion of the District Court to hold separate hearings on the form of the plan itself and the question of good faith efforts of the School Board under a plan. Although the two issues generally coalesce, in the instant case we feel the District Court was simply trying to sift the chaff from the wheat to arrive at the wording of an acceptable plan as of August 1967. The misunderstanding between court and counsel apparently arose from the delay in the hearing of the plan filed by the Board in December 1965. Appellants were attempting to support their objections to the filed plan by evidence of ineffectiveness over two years of operative experience under the plan. Appellants urged that Negro families were intimidated and afraid to exercise their free
We have sufficient facts before us to pass on both the plan submitted as well as the questioned implementation of this Court's prior decree. We do this to avoid "splintering" of issues on appeal. Cf. A. L. Mechling Barge Lines, Inc. v. United States, 376 U.S. 375, 383, 84 S.Ct. 874, 11 L.Ed.2d 788 (1964).
In the El Dorado School District, the record shows that the freedom of choice plan started in 1965 resulted in 11 Negro children moving into white schools in 1965-66; 97 children transferring by 1966-67; and a total of 293 moving in 1967-68. Under our first opinion, the school year 1967-68 now in session is the first year providing free choice for all grades. Appellees urge that their plan has resulted in 13.6% of integration and in comparison to other school districts this is sufficient progress. We disagree.
However, the disturbing factor is not found in the insufficient number of Negro children moving into white schools. The combined Washington Junior and Senior High School is still providing a racially isolated education to approximately 900 Negro students. In the third year after Bradley v. School Board, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965) and Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265 (1965), the high school still has an all Negro faculty. In addition, in the six Negro elementary schools the pupils attend under the same racial pattern as before. These schools must still be considered all Negro schools existing in a school system that was created under law requiring separation of races. It becomes self-deception to say that freedom of choice is successfully desegregating these schools. Perpetuation of the all Negro school in a formerly de jure segregated school system is simply constitutionally impermissible.
Thus, we must recognize "freedom of choice" for what it is. It may yet serve as a permissible means to the desired end, but it is certainly not the goal itself.
If desegregation continues at the present pace, the District Court is instructed to see that affirmative steps be taken to supplement or substitute for the current program. There must be positive recognition by school officials of their responsibility to create a nondiscriminatory school system. It is not our role to direct the actual means by which this is to be accomplished. This belongs in the hands of the District Court and the School Board. The District Court is available to continually process ideas and cooperative efforts to accomplish the same. We are not that flexible. What might work for one district could result in mere resegregation for another. But we repeat that further affirmative planning and study is necessary. Community wide planning is essential. H. E.W. is available to offer helpful solutions.
We now pass to the mechanics of the plan submitted:
Lateral Transfer and Notice.
Appellants complain of inadequate notice provisions. In Clark we specifically held that,
Notice of "freedom of choice" within the Board's plan is basically as follows:
The "freedom of choice" plan places the primary burden of desegregation upon the Negro family. As long as this type of plan has been adopted we stress the desirability of eliminating every possible deterrent to its success. In Clark we there approved permissive choice for students not changing school levels as an administrative deviation from the H.E.W. guidelines of mandatory choice. We nevertheless required the extent of the notice to be the same for all students. We are now faced with evidence of a plan that has not functioned with measured success. We can do no less here.
We feel adequate notice should be in substantial compliance with the H.E.W. guidelines (see Kemp I at 18-19 of 352 F.2d) by directing to every parent either by first class mail or by delivery of the letter and choice form to the pupil with adequate safeguard to assure delivery to the parent. This additional requirement should not be a great burden on the School Board as appellees describe this only as a "minimal administrative detail." Provisions for public notice as required by the trial court should likewise be followed.
However, interrelated to notice is the action of the Board when the student fails to exercise the choice. In Kemp I we held that the failure of the plan to provide for some nonracial basis for assignment, if the "freedom of choice" was
We cited the H.E.W. guidelines of assignment to the school "nearest their homes or on the basis of nonracial attendance zones." We then said, "If a child is to be given a meaningful choice, this choice must be afforded annually." Judge Gibson said:
After three years of operation we fail to see any substantial progress in the elimination of the dual attendance zones as discussed in Kemp I. Merely saying they are to be eliminated obviously does not accomplish the task.
In Clark we said as long as every student was afforded an annual right to transfer schools, it was not required that he annually exercise that right. We approved a plan which required only those students entering new school levels to be assigned to schools closest to their residence upon failure to exercise their choice. All other students remained in their previously chosen schools. In doing this, we gave deference to the administrative problems.
Where a plan is working with measurable success, perhaps the deviation from that policy would not merit change. We do make strong suggestion for the Board and the District Court to consider the complete adoption of the H.E.W. guidelines in this area. We discuss this only as suggestive circumstance to affirmatively improve the operative effects of the plan of desegregation involved. If the School Board can more effectively speed desegregation by other means, it is not only their prerogative, but their responsibility to do so.
We turn now to other features of appellees' plan. Appellants challenge alleged deficiencies in other areas since this Court's decree in 1965.
Appellees pledge a biracial bus system. Yet, out of twenty-one buses, each
Small and Inadequate Schools.
There is no evidence within the record to support appellants' charge in this regard.
Pupil-Teacher Ratios and Overcrowding.
Appellants claim there is a major discrepancy between the white and Negro schools as to pupil-teacher ratios. We feel there is insufficient evidence on this record to demonstrate that these conditions will be perpetuated. Further implementation of freedom of choice should relieve this condition. We are certain that the School Board and its administrators are as interested in the highest level of education for all children as is humanly possible. Of course, any apprehension or perpetuation of unequal ratios which smacks of discrimination can always be brought to the District Court's attention for appropriate relief.
It is true appellees' plan does not set forth any objective standards to measure "overcrowding" such as would require transfer by reason of a rejected preference of any student exercising his choice of schools. However, the District Court has observed:
We feel this is in substantial compliance to the guideline principles. Of course, once again, only the plan that works is the right one.
In Kemp I we placed confidence in the School Board, believing that the inadequate faculty integration would "be corrected by the Board during the transitional period." 352 F.2d 22. In November and December, 1965, the Supreme Court handed down Bradley v. School Bd. of City of Richmond, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 and Rogers v. Paul, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265, respectively. The Supreme Court observed that racial allocation of faculty "renders inadequate an otherwise constitutional pupil desegregation plan * * *." 382 U.S. at 200, 86 S.Ct. at 360.
At the commencement of the 1967-68 term, despite specific objections filed by appellants back in December 1965, the first token steps to desegregate the faculties of the El Dorado schools were undertaken. At that time six white teachers were assigned to three Negro schools, two at the Washington Junior High and two each at Fairview and Carver elementary schools. This leaves Washington High School, an all Negro enrollment and four all Negro elementary schools with an all Negro faculty. At El Dorado High School, and at both of the predominantly white junior highs, as well as one elementary school, there are no Negroes on the faculty. For the first time one Negro staff member was assigned to each of six other predominantly white schools.
Our suggestions in Kelley, repeated here, are not rigid ones. Local conditions may command different considerations. However, it is not enough to file a plan only incorporating the policy statements set out in Clark and Yarbrough. A plan should not only specify "a positive commitment to a reasonable program"; it should also state what that program is. This embodies (1) the steps to be carried out, and (2) the time schedule to be followed in doing so. Cf. Bowman v. County School Bd., 4 Cir., 382 F.2d 326, 328 n. 4.
Appellees urge in their brief:
This rationale adopts the earlier Fourth Circuit view in Bradley v. School Bd., 345 F.2d 310, 320 (1965), when it said:
This view was promptly rejected and the case reversed by the Supreme Court. Bradley v. School Bd., 382 U.S. 103, 105, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965).
Appellees' argument that racial balance is not mandated demonstrates continued misconstruction of their constitutional obligation under Brown, as interpreted by this Court in Kemp, Clark, Kelley and Yarbrough.
Appellees repeat, as they did in Kemp I, that to require positive action of integration would require assignment by races, which would be "racial discrimination"
In view of appellees' continued argument, we feel the plan filed in the District Court
The present plan as filed envisages both (1) filling vacancies and (2) assignment of staff. These are positive steps by which faculty desegregation can take place, and represent an adequate statement of intent. The "good faith" test must await their results.
However, this amended plan was not filed until June 1967. There can be no doubt that the faculty desegregation contemplated is two years late under this Court's mandate in Kemp I. Instead of just seeing the start of faculty desegregation, we had every reason to expect that the transition would be complete in 1967-68.
Appellants have therefore asked for injunctive relief for the Spring semester of 1968. This Court advanced this case on its appellate docket to consider this request. Although we are not unsympathetic to appellants' plea,
We now briefly address ourselves to the meaning of "racial balance." Argument is strenuously repeated that assignment by race completely disregards the standards of qualification of the teacher-applicant. In the face of our prior holdings, this contention only raises argument for argument's sake. Surely all recognize that quality of education for any student depends on many factors, not the least of which is the competence of his teacher. We reaffirm the principle that faculty selection must remain for the broad and sensitive expertise of the School Board and its officials. However, refusal to transfer or assign white staff to minority schools or Negro staff to majority classrooms cannot be justified on the argument that educational standards would thereby be lowered. Any teacher qualified to teach white children ought to be competent to teach Negroes and vice-versa. We are concerned with standards of equal education for all students — whether they be white or Negro. The argument for providing superior education for either race alone does not attract or persuade us.
"Racial balance" can perhaps be measured more adequately by what it is not than by definition of what it is.
What then may be said to be that measure of racial balance necessary to meet constitutional standards? It is misleading to think that "balance" means exact symmetry or equilibrium of the races. Numerical quotas or percentages, although appealing for their simplicity, lack that equitable flexibility which is still needed for a selective distribution of qualified teachers for particular faculty roles.
The court's role in striking a racial balance of faculty is not the perplexing judicial task normally faced in the ordinary resolution of conflicting claims. Here there no longer exist conflicting interests between the parties. Their goal must be the same: a wholly desegregated school system. When the predominant race of the students attending a particular school continues to serve as the predicate for the Board assignment of a teacher, then equal opportunity is denied. If a predominantly Negro faculty continues to create a pervasive influence on the students' choice of school, then equal opportunity is denied. It is the simple recognition that all students and teachers must be treated alike. This guaranty has always been aimed at undue favor or class privilege. Thus, the real determinant of racial balance becomes only the measurable application of equal protection of the law. Appraisal of conformity to this principle is not new and should not be difficult within the judicial process.
In conclusion we hold: (1) that serious consideration should be given by the School Board and the District Court to a more positive program to eliminate segregation in all of the schools within the El Dorado school system;
Our opinion is in no way intended to preclude either party from further evidentiary hearings if deemed necessary for proper implementation of the plan. Nor do we order it. In fact, if the parties will accept this Court's opinion in the spirit in which it is intended, no further evidentiary hearings should be necessary, unless the Court desires further information for implementing a more effective program. Pointing toward a more cooperative atmosphere and in balancing all circumstances, we deny appellants' request for attorney fees at this time.
This case is remanded to the continuing jurisdiction of the District Court in conformity with this opinion.
Although a plan was filed in December 1965, the first time any plan was actually approved by the District Court was in August 1967. And despite this Court's strong reference to the H.E.W. guidelines, the original plan filed was deficient in many particulars, the most obvious being the complete absence of steps to integrate the faculty.
"Nor is separation without evil to the whites. The prejudice of color is nursed when it should be stifled. * * * the school itself must practice the lesson [of equality]. Children learn by example more than by precept. How precious the example which teaches that all are equal in rights. But this can be only where all commingle in the common school as in common citizenship. * * * There should be no separate school. It is not enough that all should be taught alike; they must all be taught together. * * * nor can they receive equal quantities of knowledge in the same way, except at the common school."
Speech of Sen. Sumner, Cong. Globe, 42nd Cong., 2d Sess. 384 (1872).
"Four (4) white public school music teachers are teaching two days each week in the elementary schools where Negro staff members are in the majority.
"One white strings music teacher teaches part-time at Washington High School.
"One white elementary library coordinator works part-time in the elementary libraries where Negro staff members are in the majority." Report filed October 2, 1967.