Board of Public Instruction of Duval County, Fla. v. Braxton

• Decision Date: 20 February 1964
• Docket Number: No. 20294.,20294.
• Citation: 326 F.2d 616
• Parties: BOARD OF PUBLIC INSTRUCTION OF DUVAL COUNTY, FLORIDA, et al., Appellants, v. Daly N. BRAXTON and Sharon Braxton, Minors, by Sadie Braxton, their mother and next friend, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

326 F.2d 616 (1964)

BOARD OF PUBLIC INSTRUCTION OF DUVAL COUNTY, FLORIDA, et al., Appellants, v. Daly N. BRAXTON and Sharon Braxton, Minors, by Sadie Braxton, their mother and next friend, et al., Appellees.

No. 20294.

United States Court of Appeals Fifth Circuit.

January 10, 1964.

Rehearing Denied February 20, 1964.

Elliott Adams, Davisson F. Dunlap, Fred H. Kent, of Ulmer, Murchison, Kent, Ashby & Ball, Jacksonville, Fla., for appellants.

Earl M. Johnson, Jacksonville, Fla., Constance Baker Motley, New York City, Leroy D. Clark, New York City, for appellees.

Before TUTTLE, Chief Judge, JONES, Circuit Judge, and JOHNSON, District Judge.

TUTTLE, Chief Judge.

This is an appeal by the Board of Education from an order of the trial court requiring a start in the desegregation of the public school system of Duval County, Florida, of which the city of Jacksonville is the county seat. The basis of the appeal is that by including a prohibition against approving budgets, making available funds, and otherwise providing the physical facilities to "maintain or support a school system operated on a racially segregated basis" and by prohibiting "the assignment of teachers, principals, and other supervising or supporting personnel to schools on the basis of the race and color of the" said persons or the race and color of the pupils attending the respective schools, the trial court went too far. This, it is asserted, results both because there was a lack of a finding of facts warranting these two injunctive orders and also because there is nothing in the decided school desegregation cases that warrants such broad orders of injunction.

In point of fact, relatively little was required to be done by the Board of Education immediately by the trial court's injunctive order.¹ It outlined under paragraphs A, B, C, D, and E certain prohibited acts. Under paragraph F, it prohibited applying the criteria of the Florida Pupil Assignment Law other than uniformly and without racial discrimination. The order made only the requirements of paragraph F applicable immediately, but it then required that the defendants "on or before October 30, 1962, submit to the Court for its consideration a detailed and comprehensive plan for putting subparagraphs A, B, C, D and E of paragraph 3 above into effect throughout the Duval County public school system."

Appellants, recognizing as they do, the binding authority of Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and the many decisions of this Court interpreting and giving effect to that landmark decision, do not contest that part of the trial court's order that is included in the first lettered paragraphs, A, B and C. Nor do they complain of paragraph F, which requires them to apply the criteria of the Florida Pupil Assignment Law non-racially. They do complain of being required to submit a plan which includes the requirements under paragraphs D and E. The principal attack is made on that provision which prohibits the assigning of teachers, principals and other supervising or supporting personnel to schools on the basis of race.

We are faced in limine with the question whether we have before us an appealable order. While neither party raises the issue, since both apparently desire to have this Court's ruling on the question at issue, absence of an appealable order denies this Court of jurisdiction and must be noticed by the Court itself. It is plain that much of the order of the trial court is deferred in point of time. To this extent it may be said that the litigants may have an opportunity to prevail upon the Court prior to the actual effectuation of these parts of the order to request that they may be modified. To that extent they may be considered to be interlocutory orders. However, it was much the same kind of an order that came before this Court in Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156.² Although the Orleans Parish order required immediate acceptance of the principle of non-segregated schools, it is obvious that the order allowed the Board time to put it into effect. Clearly implying that arrangements should be started at once, the trial court nevertheless fixed the date after which there were to be no further distinctions based on race at "such time as may be necessary to make arrangements for admission of children to such schools on a racially nondiscriminatory basis with all deliberate speed as required by the decision of the Supreme Court in Brown v. Board of Education." Nevertheless, in that appeal and also in a subsequent one in which the validity of the order was attacked by reason of the failure of the successful plaintiffs to post the bond required in the original order, this Court has not considered the order one that is not appealable by reason of not being an injunctive order. Of course, neither the order in the Bush case nor the one before us here is a final order in the sense that nothing further is left to be done by the trial court. It is appealable, therefore, if at all, only under the provisions of 28 U.S.C.A. § 1292(a) (1). That section gives Courts of Appeal jurisdiction over "interlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions * * *." It thus becomes necessary for us to determine whether the order of the trial court is one which "grants an injunction."

In light of our treatment of the order in the Bush case, it seems that there would be little question but that the order here appealed from falls within the language of 28 U.S.C.A. § 1292(a) (1), were it not for a well considered case decided by the Court of Appeals for the Second Circuit, Taylor v. Board of Education, etc., 2 Cir., 288 F.2d 600. In that case, involving an order relating to the school system for the City of New Rochelle, New York,³ that court, one judge dissenting, raised the issue of appealability on its own motion and decided that Judge Kaufman's order in the trial court ordering the submission of a plan did not amount to mandatory injunction.

Of course, it should be made plain here that paragraph F of the order before us did require immediate application of the Florida Pupil Assignment Law. If the appellant, Board, had appealed from the effect of this part of the order there would be no doubt about the appealability. It has not, however, appealed from this provision of the order, thus leaving as the basis for its appeal only subparagraph (c) of paragraph 4, which requires them "on or before October 30, 1962, to submit to the court for its consideration a detailed and comprehensive plan for putting subparagraphs A, B, C, D and E of paragraph 3 above into effect throughout the Duval County public school system."

The clear difference between the order before us and that in the New Rochelle case is that the trial court did expressly include in its order the following language in paragraph 3:

"The defendants, The Board of Public Instruction of Duval County, Florida * * * are, with respect to the public school system of Duval County, Florida, enjoined and restrained permanently from allowing, permitting or committing all, or any of the following:"

Then follow the lettered paragraphs which are quoted in Footnote 1 above. Then, although the trial court provided that the provisions of subparagraphs A, B, C, D and E "shall not be effective until the further order of this Court" it then said, "The defendants are directed, on or before October 30, 1962, to submit to the Court for its consideration a detailed and comprehensive plan for putting subparagraphs A, B, C, D and E of paragraph 3 above into effect throughout the Duval County public school system." Thus it is that having enjoined the doing of the acts mentioned in the lettered paragraphs and having deferred the date on which the injunction should go into effect, the Court positively and affirmatively directed that a plan be submitted that would provide for carrying out the paragraphs that were to be later effectuated. We conclude that the ordering of the plan dealing expressly with these prohibited acts amounts to a mandatory injunction. To the extent that this may differ with the understanding of what constitutes an injunction as expressed by the Court of Appeals for the Second Circuit, we must respectfully disagree with its views. We think, however, that there is no real conflict because, as that Court said, "Whether Judge Kaufman's direction for the submission of a plan on April 14 is a mandatory injunction requires, in the first instance, interpretation of what was said." What was said here was quite different from the limited statement made by Judge Kaufman in his decree.

Having concluded that this is an appealable order, we come next to the merits of the controversy. Stated in general terms, that question is whether the decision of the United States Supreme Court in Brown v. Board of Education of Topeka, Kansas, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and the subsequent appearance of the same case, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, or other authoritative decisions of that or this court, authorize an order by a trial court, once it has found the existence of a dual system of schools operated on a racially segregated basis, to include in its order seeking to remedy such a situation a prohibition against the assignment of teachers and other personnel on a racial basis and to prohibit the financing and physical arrangement of schools on a racial basis. We think the answer to this question is clear. The Supreme Court's solution of the question of the manner "in which relief is to be accorded" under its original decision in that connection was expressed as follows:

"While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a

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