ELLIS v. BOARD OF PUBLIC INSTRUCTION OF ORANGE CO., FLA.

No. 29124.

423 F.2d 203 (1970)

Evelyn R. ELLIS, a minor, et al., Plaintiffs-Appellants, v. The BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, FLORIDA, Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

February 17, 1970.


Attorney(s) appearing for the Case

Norris D. Woolfork, III, Orlanda, Fla., Jack Greenberg, Norman Chachkin, James M. Nabrit, III, Drew S. Days, III, New York City, for plaintiffs-appellants.

James W. Markel, Winter Park, Fla., Joel H. Sharp, Charles R. Fawsett, Orlando, Fla., for defendant-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.


BELL, Circuit Judge:

The issue presented in this case is whether the Orange County Florida public school system is now unitary. The answer depends on a review of the posture of the system in light of two controlling decisions of the Supreme Court.1 In Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, the mechanics of what must be done to bring about a unitary system were outlined. They were stated in terms of eliminating the racial identification of the schools in a dual system in six particulars: composition of student bodies, faculty, staff, transportation, extracurricular activities, and facilities. 391 U.S. at 435, 88 S.Ct. It was such dual systems, organized and operated by the states acting through local school boards and school officials, which were held unconstitutional in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), and which were ordered abolished in Brown v. Board of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II).

In Green the court spoke in terms of the whole system — of converting to a unitary, nonracial school system from a dual system. Then, in Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, the court pointed to the end to be achieved. The result, if a constitutionally acceptable system may be said to exist, must be that the school system no longer operates as a dual system based on race or color but as a "unitary school * * * [system] within which no person is to be effectively excluded from any school because of race or color." 396 U.S. at p. 20, 90 S.Ct. at p. 30, 24 L.Ed. 2d at p. 21.

Tested in this frame of reference, we conclude that the Orange County school system falls short of being a unitary system only in one respect: A part of the student desegregation plan. It follows that the motion for injunction pending appeal will be denied so as to afford the district court, along with the school board, an opportunity to complete the conversion from a dual to a unitary system. We take the case for final decision on the merits.2 The judgment of the district court will be affirmed in part, reversed in part, and the case remanded to the district court with direction.

I.

THE ORANGE COUNTY SCHOOL SYSTEM

This system covers the whole of Orange County including the urban areas of Orlanda, Winter Park, Winter Garden and Apopka, as well as rural areas embraced in a county having a land area of 910 square miles, or almost the size of Rhode Island (1,049 square miles). The system is comprised of 26 secondary schools, 66 elementary schools, 3 vocational schools and 3 special education schools, or a total of 98 separate schools. There are 68,012 white and 14,856 Negro students in the system, or a total of 82,868 students as of the present time (February 2, 1970). The racial ratio of students is approximately 82 per cent white -18 per cent Negro. There are a total of 3,563 teachers in the system, 2,913 white and 650 Negro, or much the same racial ratio as students.

On February 1, teachers were transferred so as to establish a substantial racial ratio in each school.3 As an example, Jones High School which has a student population of 1,136 Negro students and 121 white students, now has a faculty composed of 66 white teachers and 14 Negro teachers, 82.5 per cent white and 17.5 per cent Negro. The greatest percentage departure in the system (Orange Center Elementary School) from the system-wide faculty ratio would involve the change of three faculty positions to be exact. Attached as Appendix I is the present faculty population by school and race.

In our recent decision in Singleton v. Jackson Municipal Separate School District, 5 Cir., 1969, 419 F.2d 1211 (consolidated cases en banc) [Nos. 26285 et al., dated December 1, 1969], in order to mandate compliance with the Green and Alexander v. Holmes County decisions, we required, not later than February 1, 1970, that the faculty and staff be desegregated on the following basis:

"Effective not later than February 1, 1970, the principals, teachers, teacher-aides and other staff who work directly with children at a school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for Negro students or white students. For the remainder of the 1969-70 school year the district shall assign the staff described above so that the ratio of Negro to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively, in the entire school system."

The Orange County system has complied with this directive as to faculty and staff. It has also agreed to comply in full with the Singleton provision as to continuing non-discriminatory practices in maintaining and replacing faculty and staff.

We also required that transportation systems, in those school districts having transportation systems, be designed to insure the transportation of all eligible pupils on a non-segregated and otherwise non-discriminatory basis. Orange County has been in compliance with this directive since 1964. In addition, a bi-racial committee will review the transportation system from time to time to insure non-discriminatory operation.4

It also appears that all extracurricular activities, including sports, are being operated on a non-segregated basis and this is likewise true as to facilities.

The requirement of Singleton that all school construction, school consolidation and site selection (including the location of any temporary classroom) in the system be done in a manner which will prevent the recurrence of the dual school structure by taking into consideration residential housing patterns has also been adopted by Orange County. The bi-racial committee will consider and review matters falling into this category. Fn. 4, supra.

These facts demonstrate full compliance with five of the six criteria of Green: Faculty, staff, transportation, extracurricular activities and facilities, leaving only the question of student body composition.

In order to facilitate the integration of student bodies, we required a majority to minority transfer policy in Singleton as follows:

"The school district shall permit a student attending a school in which his race is in the majority to choose to attend another school, where space is available, and where his race is in the minority."

This policy is designed to facilitate the integration of all-white and all-Negro student body schools. The Orange County system has exceeded this directive. A majority to minority transfer rule has been promulgated wherein any transferee is to be furnished free transportation, and all parents have been notified of this provision. Moreover, the transferee is given absolute priority for space and thus the transfer is not dependent on space being available. Again, under the plan of desegregation, the bi-racial committee will review the operation of this rule from time to time in the interest of fairness and effectiveness. Fn. 4, supra.

This leaves for discussion the question whether the Orange County plan of student desegregation is deficient to the extent that it prevents the systems from being unitary. It is urged that all student assignment is on a neighborhood school basis, subject, of course, to the majority to minority transfer rule. The defendant school officials wish to maintain such a basis of assignment.

It was not clear from the opinion and findings of the district court that the defendants were in fact maintaining a neighborhood school system as we would define such a system. A neighborhood school system cannot be a system where variances are allowed to permit children a choice of not attending the nearest school to his or her residence and thereby avoiding assignment to a formerly Negro or formerly white school as the case may be.

The sum of the present assignment system is that ten elementary schools and one junior high school remain with all-Negro student bodies. There is no high school with an all-Negro student body. It appears that 7,518 Negro students attend these eleven schools (ten elementary and one junior high) with the result that 51 per cent of the total of 14,856 Negro students are assigned to schools having all-Negro student bodies.5

In order to have full facts available, as to neighborhood assignment and the results obtained on a school to school basis, we required the district court, by order dated January 30, 1970, to file supplemental findings of fact within five days addressed to the specifics. They were promptly filed after a further hearing in the district court on short notice. These supplemental findings demonstrate that variances are now allowed from the neighborhood school assignment system with the result that some white students are attending schools located greater distances from their home than nearby schools where the student body is all Negro. As will be seen, this cannot be permitted in a school system operated on a neighborhood basis.

If not permitted in Orange County, eight of the eleven schools having all-Negro student bodies will have integrated student bodies. The percentage of Negro students attending schools having integrated student bodies will increase from 49 to 84 per cent. Moreover, the increase will be even greater if students avail themselves of the majority to minority transfer rule.

II.

THE NEIGHBORHOOD SCHOOL SYSTEM

In the typical southern dual school system in operation prior to Brown I and II, the student was assigned to attend the school nearest his or her home. This so-called neighborhood assignment system was designed to eliminate transportation costs and to permit the student to remain as near home as possible. Under the dual system as ruled unconstitutional, a Negro student would be assigned to the nearest Negro school to his or her home and a white student would be assigned to the nearest white school. Negro students might pass a white school or schools en route to a Negro school. White students might pass a Negro school or schools en route to the white school. Under a neighborhood assignment basis in a unitary system, the student must attend the nearest school whether it be a formerly white school or a formerly Negro school. Orange County is generally using this approach but it is now apparent, under the current plan, that it is not being correctly observed.

As stated, based on the supplemental findings of fact, it appears that a true neighborhood assignment system, assigning students to the school nearest the student's home up to the capacity of the given school, will result in the desegregation of eight of the remaining eleven all-Negro student body schools in the Orange County system, leaving three elementary schools. In four of these eight schools, the number of whites assigned would be somewhat greater if an equidistance rule between schools was used as a basis for assignment rather than the capacity of the school.6 This would necessitate, however, increasing the size of the four schools in question.

Stated differently, under equidistance assignment, zone lines would be located equi-distant between two schools and all students within the zone would attend a given school without regard to the capacity of the school. On the other hand, under the nearest school to student assignment basis, the assignment would be limited by the capacity of the school, and those unable to be accommodated would go to the next nearest school to the home. We hold that the assignment system must take into consideration the existing capacity of the schools. Whether to expand present facilities is a question for the school authorities.

We also hold that the neighborhood system, based on school capacity, must be observed without exception. This will prevent any variance based on traffic conditions, such as are disclosed in the supplemental findings of fact with respect to 53 students who should go to Callahan school, or by zone line locations as is the case with five children who should be assigned to the Webster Avenue school. Variances by arbitrary zone lines, or for reasons of traffic, while reasonable on their face, may destroy the integrity and the stability of the entire assignment plan. If Orange County wishes to maintain a neighborhood assignment system, then it must do so without variances. Each student in the system must be assigned to attend the school nearest his or her home, limited only by the capacity of the school, and then to the next nearest school.

There are a number of all-white student body schools in the Orange County system. This is due to the preponderant white student population (82 per cent), and to residential patterns. The three all-Negro student body schools which will remain, if the neighborhood assignment system is properly invoked, are also the result of residential patterns. The majority to minority transfer provision under the leadership of the bi-racial committee is a tool to alleviate these conditions now. Site location, also under the guidance of the bi-racial committee, will guarantee elimination in the future. In addition, open housing, Title VIII, Civil Rights Act of 1968, 42 U.S.C.A. § 3601 et seq., Jones v. Alfred H. Mayer Co., 1968, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, will serve to prevent neighborhood entrapment.

A view of the student body status of the eleven schools which now have all-Negro student bodies, once this order has been effectuated, can be had from Appendix II, attached. The present status of all of the schools in the system is reflected in Appendix III. The figures shown have not been adjusted to reflect what we are now requiring.

III.

DEFICIENCIES TO BE REMEDIED

We conclude that five of the six elements which go to make up a unitary system have been accomplished in the Orange County system: faculty, staff, transportation, extracurricular activities, and facilities. We conclude also that the sixth element, student desegregation, will be accomplished once the district court requires and ascertains as a fact that the neighborhood student assignment system, based on the definition herein contained, is invoked and the transfers made necessary thereby have been made.7

Once done, and when the district court, by the standards herein stated, has made its own conclusion as to the system being unitary, the district court must retain jurisdiction for a reasonable time to insure that the system is operated in a constitutional manner. As the Supreme Court said in Green, "* * * whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that the state-imposed segregation has been completely removed." 391 U.S. at 439, 88 S.Ct. at 1695.

Affirmed in part; reversed in part; remanded with direction.

APPENDIX I

          Orange County Public Schools

     INSTRUCTIONAL POSITIONS AS OF 1-27-70

Secondary Schools                White       Black     Total

Apopka Memorial                   54          9         63
Apopka Junior                     30          9         39
Boone                             74         12         86
Carver Junior                     41          8         49
Cherokee Junior                   43          6         49
Colonial                          92         14        106
Conway Junior                     50          8         58
Edgewater                         74         12         86
Evans                             76         12         88
Glenridge Junior                  47          7         54
Howard Junior                     47          7         54
Jackson Junior                    56          8         64
Jones                             66         14         80
Lakeview                          44          7         51
Lee Junior                        43          7         50
Lockhart Junior                   32          5         37
Maitland Junior                   36          5         41
Meadowbrook Junior                44          5         49
Memorial Junior                   48          7         55
Mid-Florida Tech                  58          9         67
Oak Ridge                         87         13        100
Ocoee                             43          6         49
Robinswood Junior                 46          7         53
Union Park Junior                 45          7         52
Vocational                        27          4         31
Walker                            58          6         64
Winter Park Junior                31          5         36
Winter Park Senior               105         16        121
Wymore                            21          7         28
                                 ____       ____      ____
TOTALS:                          1518       242       1760
 
Elementary Schools               White       Black     Total

Aloma                             25          8         33
Audubon Park                      22          7         29
Azalea Park                       14          7         21
Blankner                          21          6         28
Bonneville                        14          4         18
Brookshire                        22          7         29
Callahan                          15          5         20
Catalina                          21          6         27
Cheney                            21          6         27
Chickasaw                         25          8         33
Columbia                          12          4         16
Conway                            23          6         29
Cypress Park                       9          3         12
Delaney                           12          4         16
Dillard Street                    12          4         16
Dommerich                         26          8         34
Dover Shores                      25          8         33
Dream Lake                        28          9         37
Durrance                          24          7         31
Eccleston                         27          8         35
Engelwood                         25          3         28
Fern Creek                        24          7         31
Forrest Park                      19          3         22

Gateway                           25          3         28
Grand Avenue                      14          7         21
Hiawassee                         23          7         29
Hillcrest                         12          3         15
Holden Street                     25          7         32
Hungerford                        15          5         20
Ivey Lane                         23          7         30
Kaley                             17          6         23
Killarney                         24          7         31
Lake Como                         22          6         28
Lake Silver                       23          7         30
Lake Sybelia                      15          4         19
Lake Weston                       20          6         26
Lakemont                          25          7         32
Lancaster                         28          9         37
Lockhart                          17          5         22
Lovell                            27          8         35
McCoy                             22          7         29
Magnolia                          10          4         14
Maxey                             16          5         21
Ocoee                             13          4         17
Orange Center                     26          2         28
Orlo Vista                        21          6         27
Pershing                          24          7         31
Pine Castle                       22          6         28
Pine Hills                        24          7         31
Pineloch                          24          7         31
Princeton                         15          4         19
Ray                               22          6         28
Richmond Heights                  23          7         30
Ridgewood Park                    19          6         25
 
Riverside                         15          4         19
Rock Lake                         24          7         31
Rolling Hills                     23          7         30
Sadler                            21          7         28
Shenandoah                        18          5         23
Spring Lake                       22          6         28
Tangelo Park                      21          7         28
Tildenville                       15          4         19
Union Park                        25          7         32
Washington Shores                 26          8         34
Webster Avenue                    14          4         18
Wheatley                          23          7         30
Windermere                        16          5         21
Winter Garden                     12          4         16
Zellwood                          18          6         24
                                ____        ____      ____
TOTALS                          1395        408       1803
TOTAL COUNTY:
Elementary                      1395        408       1803
Secondary                       1518        242       1760
                                ____       ____       ____
TOTALS                          2913        650       3563

APPENDIX II

                School Population, By Race and Proximity Area

                                                               Proximity  Proximity  Proximity
                                  Present  Present  Present  Area       Area       Area
School                 Grades     White    Black    Total    White      Black      Total

Carver Jr.              7-9        1       1143    1144      47        1100       1147
Callahan Elem.          K-6        1        389     390     101*        404        452
Eccleston Elem.         1-6        0        904     904       0         889        889
Holden St. Elem.        K-6        1        717     718       0         725        725
Hungerford Elem.        K-6        0        448     448     141         353        494
Maxey Elem.             K-6        1        468     469      38         461        499
Org. Cen. Elem.         1-6        0        716     716      50         655        705
Rich. Hts. Elem.        K-6        0        703     703      22         692        714
Wash. Shs. Elem.        K-6        0        797     797       0         783        783
Web. Ave. Elem.         1-6        3        410     413      76**       352        423
Wheatley Elem.          K-6        0        824     824      29         811        840

APPENDIX III

             School Population, By Race, As Of February 2, 1970

SECONDARY

School                    Grades   White    Black     Total

Apopka Memorial High         9-12      903      366      1269
Apopka Junior High           7- 8      664      355      1019
Boone High                  10-12     1869      102      1971
Carver Junior High           7- 9        1     1143      1144
Cherokee Junior High         7- 9      741      244       985
Colonial High               10-12     2355        6      2361
Conway Junior High           7- 9     1417        9      1426
Edgewater High              10-12     1720      209      1929
Evans High                  10-12     1908       17      1925
Glenridge Junior High        7- 9     1325        3      1328
Howard Junior High           7- 9      813      364      1177
Jackson Junior High          7- 9     1597        3      1600
Jones High                  10-12      121     1136      1257
Lakeview High                7-12      847      229      1076
Lee Junior High              7- 9      932      240      1172
Lockhart Junior High         7- 9      656      127       783
Maitland Junior High         7- 9      895       69       964
Meadowbrook Junior High      7- 9     1150        0      1150
Memorial Junior High         7- 9     1003      266      1269
Oak Ridge High              10-12     1986      149      2135
Ocoee High                   7-12      855      265      1120
Robinswood Junior High       7- 9     1213       11      1224
Union Park Junior High       7- 9     1179        0      1179
Walker Junior High           7- 9     1591       33      1624
Winter Park High            10-12     2462      113      2575
Winter Park Junior High      7- 9      652      184       836
                                     _____    _____    ______
          Total                      30855     5643     36498
 
ELEMENTARY

School             Grades   White   Black    Total

Aloma                1-6     869      2        871
Audubon Park         K-6     802      0        802
Azalea Park          K-6     854      2        856
Blankner             1-6     689      2        691
Bonneville           K-6     450      0        450
Brookshire           1-6     722      1        723
Callahan             K-6       1    389        390
Catalina             K-6     667     21        688
Cheney               K-6     718      0        718
Chickasaw            K-6     857      0        857
Columbia             1-6     432      0        432
Conway               K-6     760      0        760
Cypress Park         1-6     207     50        257
Delaney              K-6     277     71        348
Dillard Street       4-6     272     79        351
Dommerich            K-6     898     16        914
Dover Shores         1-6     821      0        821
Dream Lake           K-6     862     84        946
Durrance             1-6     742     28        770
Eccleston            1-6       0    904        904
Engelwood            K-6     736      2        738
Fern Creek           K-6     817      3        820
Grand Avenue         1-6     188    233        421
Hiawassee            1-6     798      0        798
Hillcrest            1-6     328      1        329
Holden Street        K-6       1    717        718
Hungerford           1-6       0    448        448
Ivey Lane            1-6     173    499        672
Kaley                K-6     479      1        480
Killarney            1-6     808      4        812
Lake Como            1-6     751      0        751

School             Grades   White   Black    Total

Lake Silver          1-6     787      1        788
Lake Sybelia         1-6     474     32        506
Lake Weston          K-6     715     24        739
Lakemont             1-6     708    103        811
Lancaster            1-6    1005      2       1007
Lockhart             K-6     530      0        530
Lovell               K-6     898      6        904
McCoy                1-6     769      0        769
Maxey                1-6       1    468        469
Ocoee                1-6     365      1        366
Orange Center        K-6       0    716        716
Orlo Vista           1-6     746      0        746
Pershing             K-6     817      2        819
Pine Castle          K-6     751      1        752
Pine Hills           1-6     809      1        810
Pineloch             1-6     738      0        738
Princeton            K-6     480      9        489
Ray                  1-6     722      8        730
Richmond Heights     1-6       0    703        703
Ridgewood Park       1-6     638      3        641
Riverside            1-6     547      5        552
Rock Lake            1-6     234    236        470
Rolling Hills        K-6     600      1        601
Sadler               1-6     776      0        776
Shenandoah           1-6     490     14        504
Spring Lake          1-6     695      1        696
Tangelo Park         K-6     532    199        731
Tildenville          K-6     279    164        443
Union Park           1-6     878      4        882
Washington Shores    K-6       0    797        797
Webster Avenue       1-6       3    410        413
Wheatley             K-6       0    824        824
 
School                    Grades   White   Black    Total

Windermere                  1-6     538      8        546
Winter Garden               1-3     336     80        416
Zellwood                    1-6     354    248        602
                                  _____   ____      _____
        Total                     35194   8628      43822

VOCATIONAL

Mid-Florida Tech                   1076     47       1123
Vocational                          390    208        598
Wymore Tech                          63    233        296
                                  _____   ____      _____
         Total                     1529    488       2017

SPECIAL EDUCATION

Forrest Park                        117     15        132
Gateway                             172     19        191
Magnolia Special Education
    Center                          145     63        208
                                  _____  _____      _____
          Total                     434     97        531
                          White    Black   Total

Secondary                 30855     5643   36498
Elementary                35194     8628   43822
Vocational                 1529      488    2017
Special Education           434       97     531
                         ______   ______  ______
Total                    68,012   14,856  82,868

FootNotes


1. Lower court decisions, if any, which may be inconsistent with these Supreme Court decisions on the requirments for comverting from dual to unitary systems obviously must yield to the principles there enunciated.
2. Under the stringent requirements of Alexander v. Holmes County Board of Education, supra, which this court has carried out in United States v. Hinds County School Board, 5 Cir., 1969, 423 F.2d 1264 [Nos. 28030, 28042, Nov. 7, 1969], this court has judicially determined that the ordinary procedures for appellate review in school segregation cases have to be suitably adapted to assure that each system, whose case is before us, "begin immediately to operate as unitary school systems." Upon consideration of the record, the court has proceeded to dispose of this case as an extraordinary matter. Rule 2, FRAP.
3. The transfers are complete with the exception of 25 teachers whose transfer orders are being reviewed on the basis of hardship.
4. The bi-racial committee is constituted by the district court from names submitted by the parties to this suit. The membership of thirty will be divided equally between whites and Negroes. The chairmanship is to alternate annually between a white chairman and a Negro chairman. The committee is to review the operation of the transportation system and the majority to minority transfer rule, and also is charged with responsibility in the area of selecting school sites. The committee is authorized to hold hearings and make recommendations to the school board in connection with any of these activities.
5. Five of the eleven schools have three or less white students in attendance but we, as did the district court, considered these as schools with all-Negro student bodies.
6. There would be 44 additional white students in Orange Center, 143 additional in Webster, 9 in Wheatley, and 90 in Carver.
7. Under the facts of this case, it happens that the school board's choice of a neighborhood assignment system is adequate to convert the Orange County school system from a dual to a unitary system. This decision does not preclude the employment of differing assignment methods in other school districts to bring about unitary systems. There are many variables in the student assignment approach necessary to bring about unitary school systems. The answer in each case turns, in the final analysis, as here, on all of the facts including those which are peculiar to the particular system.
* Includes 53 now in other schools by reason of variance based on traffic conditions.
** Includes 5 now in another school because of location of zone line.

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