Stell v. Savannah-Chatham County Bd. of Ed., 20557

• Citation: 333 F.2d 55
• Decision Date: 23 July 1964
• Docket Number: 20871.,No. 20557,20557
• Parties: Ralph STELL et al., Appellants, v. SAVANNAH-CHATHAM COUNTY BOARD OF EDUCATION et al. and Lawrence Roberts et al., Appellees. Carolyn Eleanor HARRIS et al., Appellants, v. Linda Sue GIBSON et al., Appellees. GLYNN COUNTY BOARD OF EDUCATION et al., Appellants, v. Linda Sue GIBSON et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

333 F.2d 55 (1964)

Ralph STELL et al., Appellants, v. SAVANNAH-CHATHAM COUNTY BOARD OF EDUCATION et al. and Lawrence Roberts et al., Appellees.

Carolyn Eleanor HARRIS et al., Appellants, v. Linda Sue GIBSON et al., Appellees.

GLYNN COUNTY BOARD OF EDUCATION et al., Appellants, v. Linda Sue GIBSON et al., Appellees.

Nos. 20557, 20871.

United States Court of Appeals Fifth Circuit.

June 18, 1964.

Rehearing Denied July 23, 1964.

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E. H. Gadsden, B. Clarence Mayfield, Savannah, Ga., Constance B. Motley, Jack Greenberg, Derrick A. Bell, Jr., New York City, Donald L. Hollowell and Horace T. Ward, Atlanta, Ga., for appellants.

J. Walter Cowart, Savannah, Ga., Charles J. Bloch, Macon, Ga., E. Freeman Leverett, Deputy Asst. Atty. Gen. of Georgia, Elberton, Ga., R. Basil Morris, Savannah, Ga., George Stephen Leonard, Washington, D. C., R. Carter Pittman, Dalton, Ga., Eugene Cook, Atty. Gen., of George, Bernard N. Nightingale, Brunswick, Ga., Barrie L. Jones, Alma, Ga., Alan B. Smith, Brunswick, Ga., for appellees.

Before MARIS,^* GEWIN and BELL, Circuit Judges.

Rehearing Denied in No. 20557, July 23, 1964.

GRIFFIN B. BELL, Circuit Judge:

These appeals present issues arising out of a suit to desegregate the public school system of Savannah and Chatham County, Georgia (No. 20.557); and a suit to prevent the desegregation of the school system of Glynn County (Brunswick), Georgia (No. 20,871). The issues which are common to both cases will be considered together, while others, peculiar to the particular case, will be the subject of separate discussion.

The facts may be briefly stated. The appeal in the Savannah case is from an order of the District Court denying a preliminary injunction against the continued operation of a compulsory biracial school system. The denial was based on the affirmative defense, asserted by white intervenors, that disparate scores as between white and Negro pupils made on educational achievement and psychometric intelligence tests given in the Savannah schools warranted the classification of the schools for rational educational purposes on a basis which resulted only incidentally in a system separate for white and Negro children. We granted temporary relief pending the determination of the appeal. Stell v. Savannah-Chatham County Board of Education, 5 Cir., 1963, 318 F.2d 425. The District Court then entered the injunctive order directed by this court.¹

The school board then put a plan into effect desegregating the twelfth grade with the beginning of school in September, 1963. All students in that grade were given an opportunity to apply for transfer to any senior high school in the system, and the applications were to be granted or denied with reference to numerous assignment criteria. The plan adopted was based on the original Atlanta plan. See Calhoun v. Latimer, 5 Cir., 1963, 321 F.2d 302. Appellants objected to the plan in toto but the District Court was of the view that it was without jurisdiction to accept or reject the plan. Twenty-four Negro students applied for transfer. Twenty-one were approved. Nineteen were transferred to two formerly all white high schools under the plan, the other two having declined to transfer. The other three transfers were denied for scholastic reasons.

The posture of the case on submission of the plan was that the District Court had dismissed the complaint in the interim between our granting emergency relief and when the hearing on the plan was proposed. However, the prior order of the court requiring the submission of a plan by the school board was preserved in the order of dismissal pending an appeal of the order of dismissal. Notice of appeal from the refusal of the court to approve or disapprove the plan was filed. Notice of appeal had previously been filed from the order denying the preliminary injunction. No appeal was taken from the order thereafter dismissing the complaint.

Appellants contend that they were entitled to the preliminary injunction sought in the first instance, and that the board should have been required to submit a plan of desegregation encompassing transfers in all grades on some reasonable non-racial basis; with students entering the system for the first time to be assigned without regard to race; and with school zone lines being drawn on a non-racial basis as to the first four grades in September, 1964 and as to at least two grades per year thereafter.

The school board takes the position that the case is moot because no appeal was taken from the order dismissing the complaint; and asserts that there was no error in denying the injunction sought because the school board had made a good faith start toward desegregation. It is also urged that the sufficiency of the plan as submitted to the District Court is not now before this court for consideration.

The intervenors seek to support the findings and conclusion of the District Court that the evidence warranted the prior classification of the schools which only incidentally had been on the basis of race.

In the Glynn County case we have the situation of the District Court having enjoined the school board from effecting a voluntary plan of desegregation relative to the eleventh and twelfth grades to begin in September, 1963 in the only white high school. This suit was commenced by white parents individually and on behalf of their minor children after the school board had announced that the transfer applications of the six minor Negro intervenors would be granted. It was alleged that desegregation of the school would be detrimental to both races, and the prayer, as was that of the intervenors in the Savannah case, was for an injunction against the operation of a "compulsory racially integrated school system",² or in the alternative, that the school system be reorganized into a tertiary system, i. e., some schools for white, others for Negroes, and others for whites and Negroes with attendance being based on choice.

The Negro students who had been accepted for transfer were permitted to intervene. They sought the dissolution of the temporary restraining order against desegregation, and the entry of one on their behalf to the end that the school board be required to submit a plan for the reorganization of the entire school system on a non-racial basis. Their motion for preliminary injunction is still pending.

The District Court entered an order requiring the school board to prepare and submit a plan for the reorganization of the school system along non-racial lines with no applicant for transfer to be excluded solely on the grounds of color or other criteria unrelated to education. The plan was to be prepared only after hearings by the school board sitting as a school court pursuant to Georgia Code § 32-910.³ The intervenors considered this to be inadequate, and after the filing of notice of appeal we granted temporary relief pending determination of the appeal. The order enjoining the proposed desegregation was vacated with direction to the District Court that the school board be restrained from refusing to admit the six Negro students in September, 1963. Harris v. Gibson, 5 Cir., 1963, 322 F.2d 780.

These intervenors now contend that the District Court erred in originally enjoining their school transfers, and in referring the matter of school desegregation back to the school board under the school administrative procedure statute. Ga.Code, § 32-910, supra. They complain of the failure of the school board to bring in a plan of desegregation for the entire school system, and, of course, are opposed to the position taken by the plaintiffs in their suit, which is the same as that of the intervenors in the Savannah case that classification on the basis of race is lawful where the educational aptitudes warrant the classification. The school board takes the position that the order of the District Court is erroneous and impermissible, that it was error to permit the intervention, and that the mandated order of injunction against the school board should be dissolved, and the school board allowed to go forward with the voluntary plan of desegregation free of the instant litigation.

I. ISSUES SEPARATE TO THE RESPECTIVE CASES

The position of the Savannah board that its preliminary planning amounted to a good faith start toward desegregation is insufficient as an alternative reason for the denial of the temporary injunction. The short reply to the argument that the delay in desegregation was caused by the laws of Georgia to the contrary is that they have not served to impede desegregation since 1961. Both the University of Georgia and the Atlanta school system were desegregated in 1961. Holmes v. Danner, M.D.Ga., 1961, 191 F.Supp. 394; Calhoun v. Latimer, supra.

Neither is there merit in the position that the case is moot because no appeal was taken from the order of dismissal entered after the appeal to this court, and after entry of an injunction by the District Court at the direction of this court by way of interim relief. The order of dismissal expressly preserved that injunctive order which necessarily required the existence of a complaint for its support. Moreover, another notice of appeal was thereafter filed when the District Court refused to consider the merits of the plan submitted by the school board. We have then the following sequence of events: an appeal pending in this court, a dismissal of the complaint by the District Court, and an additional appeal growing out of action in the District Court with respect to the appeal pending. We hold that the pendency of the appeal in this court which involved the same question as the dismissal order was adequate to preserve the appeal, and that our holding here will render the order of dismissal moot.⁴ The case of Dempsey v. Guaranty Trust Company, 7 Cir., 1942, 131 F.2d 103, is not to the contrary as it turned on the fact of a question arising in the District Court under an amended complaint filed...