Monroe v. Board of Com., City of Jackson, Civ. No. 1327.

• Decision Date: 30 July 1965
• Docket Number: Civ. No. 1327.
• Parties: Brenda Kay MONROE et al. v. BOARD OF COMMISSIONERS, CITY OF JACKSON, Jackson, TENNESSEE.
• Court: U.S. District Court — Western District of Tennessee

244 F. Supp. 353

Brenda Kay MONROE et al. v. BOARD OF COMMISSIONERS, CITY OF JACKSON, Jackson, TENNESSEE.

Civ. No. 1327.

United States District Court W. D. Tennessee, E. D.

July 30, 1965.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Z. Alexander Looby and Avon N. Williams, Jr., Nashville, Tenn., J. Emmett Ballard, Jackson, Tenn., Jack Greenberg, Constance Baker Motley, James M. Nabritt, III, New York City, for plaintiffs.

Russell Rice, Jackson, Tenn., for defendants.

BAILEY BROWN, District Judge.

Plaintiffs have filed motions for additional relief, which raise these issues:

1. Whether the assignment and transfer plan and policies as actually carried out by the defendants violate plaintiffs' constitutional rights, and if so, to what extent must the plan or policies be amended;

2. Whether the amended unitary zones for elementary schools and the proposed unitary zones for junior high schools are gerrymandered to maximize segregation and thereby violate plaintiffs' constitutional rights;

3. Whether the plan for gradual desegregation heretofore approved by the court, viewed as of now, meets the constitutional standard of "all deliberate speed";

4. Whether plaintiffs are entitled, under the Constitution, to an order requiring the desegregation of faculty, administrative and supporting personnel, and faculty in-service training programs;

5. Whether plaintiffs are entitled, under the Constitution, to an order prohibiting segregation in curricular and extra-curricular activities;

6. Whether plaintiffs are entitled to recover attorneys fees incurred in connection with these motions.

We will dispose of these issues in the order in which they are set out above.

At the outset it should be noted, as we have indicated, that plaintiffs are asserting Fourteenth Amendment rights alone, and are asserting no rights under any Act of Congress.

In dealing with the multifarious issues that may be presented in school desegregation cases, there frequently is difficulty in deciding a particular issue even if the applicable principle of law has been fairly well crystalized. This is especially true in this field because, even though so crystalized, an applicable principle is of necessity a general principle which must be applied to myriad factual situations. More difficulty is encountered, however, when an underlying general principle has not yet become clear. An example of this is the lack of complete clarity as to whether the Constitution requires only an abolition of compulsory segregation based on race or requires something more. This general question must first be answered before we can deal with the assignment and transfer issue and the gerrymandering issue.

This court has heretofore considered the question as to whether the Constitution requires only an abolition of compulsory segregation based on race. Vick et al. v. Board of Education of Obion County, Tennessee, 205 F.Supp. 436 (W.D.Tenn.1962); Monroe et al. v. City of Jackson, Tennessee, 221 F.Supp. 968 (W.D.Tenn.1963); and Monroe et al. v. Board of Com'rs of Jackson, Tenn., 229 F.Supp. 580 (W.D.Tenn.1964). The latter two opinions were rendered at earlier stages of the separate proceedings in this action. We concluded in these opinions that abolition of segregation based on race is all that the Constitution requires. We based this conclusion not only on our interpretation of the second Brown opinion (Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1954)) and Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401, 3 L.Ed.2d 5, (1958), but also on the now famous specific statement to that effect in Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C.1955), which was a per curiam opinion by a three-judge court presided over by Judge Parker of the Court of Appeals for the Fourth Circuit. However, plaintiffs again earnestly contend that the Constitution requires an integrated education, and so we have taken this occasion again to review the law.

We find that the following opinions, among others, cite and approve the statement in Briggs v. Elliott, supra, to the effect that the Constitution requires only an abolition of compulsory segregation based on race: Kelley v. Board of Education of Nashville, 270 F.2d 209, 226 (6th Cir. 1959); Bell et al. v. School City of Gary, 324 F.2d 209, 213 (7th Cir. 1963); Griffin v. Board of Supervisors of Prince Edward County, 322 F.2d 332, 336 (4th Cir. 1963); Dillard v. School Board of City of Charlottesville, 308 F. 2d 920, dissent at p. 926 (4th Cir. 1962); Boson v. Rippy, 285 F.2d 43, 48 (5th Cir. 1960); Avery v. Wichita Falls Independent School Dist., 241 F.2d 230, 233 (5th Cir. 1957); Armstrong v. Board of Education of Birmingham, 323 F.2d 333, dissent at p. 346 (5th Cir. 1963); Taylor v. Board of Education of New Rochelle, 294 F.2d 36, dissent at p. 47 (2nd Cir. 1961). It is interesting to note that the Fifth Circuit in a very recent case (Singleton v. Jackson Municipal Separate School Dist., 348 F.2d 729, decided June 22, 1965), recognizing that it had more than once approved the statement in Briggs, said that it now "should be laid to rest" and that "* * * the second Brown opinion clearly imposes on public school authorities the duty to provide an integrated school system." There is other authority in support of the view now taken by the Fifth Circuit, but the clear weight of authority in the Courts of Appeal and District Courts supports the view taken in Briggs and, as stated, our Court of Appeals in the Kelley case, supra, seems to subscribe to the Briggs view.

This question as to what the Constitution requires comes into sharper focus in two different contexts: one is a situation in which "honestly" arrived at unitary zones result in de facto school segregation because of existing racial housing patterns; the other is a situation in which a voluntary assignment and transfer provision, not based on race, results in the continuance of segregation. In Northcross et al. v. Board of Education of Memphis, 333 F.2d 661 (6th Cir. 1964) our Court of Appeals recognized that there is no constitutional obligation to draw zone lines to maximize integration. See also, to the same effect, Downs et al. v. Board of Education of Kansas City, 336 F.2d 988 (10th Cir. 1964), cert. denied 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800 (1965). The Supreme Court has not dealt specifically with the first situation, but it has done so with the second. In Goss et al. v. Board of Education of City of Knoxville, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963), the Supreme Court struck down transfer provisions which allowed pupils who, under the rezoning, would be required to attend a school in which they would be in a racial minority to transfer to a school in which they would be in a racial majority. In so doing, the Court said at pp. 686-687, 83 S.Ct. at p. 1408:

"It is readily apparent that the transfer system proposed lends itself to perpetuation of segregation. Indeed, the provisions can work only toward that end. While transfers are available to those who choose to attend school where their race is in the majority, there is no provision whereby a student might transfer upon request to a school in which his race is in a minority, unless he qualifies for a `good cause' transfer. As the Superintendent of Davidson County's schools agreed, the effect of the racial transfer plan was `to permit a child or his parents to choose segregation outside of his zone but not to choose integration outside of his zone.' Here the right of transfer, which operates solely on the basis of a racial classification, is a one-way ticket leading to but one destination, i. e., the majority race of the transferee and continued segregation. This Court has decided that state-imposed separation in public schools is inherently unequal and results in discrimination in violation of the Fourteenth Amendment. Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180 (1954). Our task then is to decide whether these transfer provisions are likewise unconstitutional.

In doing so, we note that if the transfer provisions were made available to all students regardless of their race and regardless as well of the racial composition of the school to which he requested transfer we would have an entirely different case. Pupils could then at their option (or that of their parents) choose, entirely free of any imposed racial considerations, to remain in the school of their zone or to transfer to another. "Classifications based on race for purposes of transfers between public schools, as here, violate the Equal Protection Clause of the Fourteenth Amendment."

And the Court further said at pp. 688-689, 83 S.Ct. at p. 1409:

"The alleged equality — which we view as only superficial — of enabling each race to transfer from a desegregated to a segregated school does not save the plans. Like arguments were made without success in Brown 347 U.S. 483, 74 S.Ct. 686, 98 L. Ed. 873, 38 A.L.R.2d 1180, supra, in support of the separate but equal educational program. Not only is race the factor upon which the transfer plans operate, but also the plans lack a provision whereby a student might with equal facility transfer from a segregated to a desegregated school. The obvious one-way operation of these two factors in combination underscores the purely racial character and purpose of the transfer provisions. We hold that the transfer plans promote discrimination and are therefore invalid.

"This is not to say that appropriate transfer provisions, upon the parents' request, consistent with sound school administration and not based upon any state-imposed racial conditions, would fall. Likewise, we would have a different case here if the transfer provisions were unrestricted, allowing transfers to or from any school regardless of the race of the majority therein. But no official transfer plan or provision of which racial segregation is the

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