333 F.2d 661 (6th Cir. 1964), 15558, Northcross v. Board of Ed. of City of Memphis
| Citation | 333 F.2d 661 |
| Party Name | Deborah A. NORTHCROSS et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF MEMPHIS et al., Defendants-Appellees. |
| Case Date | June 12, 1964 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
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Derrick Bell, New York City, (A. W. Willis, Jr., R. B. Sugarmon, Jr., Memphis, Tenn., Jack Greenberg, Constance Baker Motley, Derrick A. Bell, Jr., New York City, on the brief; H. T. Lockard, B. L. Hooks, B. F. Jones, Memphis, Tenn., of counsel), for appellants.
Jack Petree, Memphis, Tenn., Evans, Petree & Cobb, Memphis, Tenn., of counsel, for appellees.
Before WEICK, Chief Judge, and CECIL and O'SULLIVAN, Circuit Judges.
CECIL, Circuit Judge.
This cause was previously before this Court on appeal from the United States District Court for the Western District of Tennessee. The subject of that appeal was the desegregation of the public schools of Memphis. We reversed the judgment of the District Court and remanded the case with instructions to enjoin the appellee Board of Education from operating a bi-racial school system or in the alternative to require the Board to adopt a plan looking toward the reorganization of the schools on a nonracial basis. Northcross v. Board of Education of the City of Memphis, 6 Cir., 302 F.2d 818, cert. den., 370 U.S. 944, 82 S.Ct. 1586, 8 L.Ed.2d 810. Upon remand the district judge conducted a hearing and approved a proposed plan of operation submitted by the Board. This appeal is from the judgment of approval of the plan 1 by the District Court.
One of the assignments of error concerns the approval by the District Court of the new school-zone lines fixed by the Board. It was provided in the plan that the Board would immediately establish school zones or districts based upon the location of school buildings with a single geographical boundary for each school according to the latest scholastic census for grades 1, 2 and 3. This is an essential step and probably the most important one in organizing schools on a non-racial basis. We said in our former opinion, 302 F.2d at p. 823: 'Minimal requirements for non-racial schools are geographic zoning, according to the capacity and facilities of the buildings and admission to a school according to residence as a matter of right.' The Board did abolish dual zone lines but the appellants claim that the new zones were formed by irregular lines or by gerrymandering so as to preserve segregated schools.
In rezoning on a unitary basis, the Board, according to the testimony of Mr. Galbreath, president, gave consideration to: 1. utilization of the buildings, 2. proximity of pupils to the schools to be attended, 3. zones drawn with a view to disturbing the people of the community as little as possible, 4. natural boundaries, and 5. the interests of the community, pupils and school board. Dr. Floyd L. Bass, Dean of LeMoyne College in Memphis, testified on behalf of the appellants. Dr. Bass had made a suggested zoning map from information furnished to him by the Board. The factors which he took into consideration were: 1. optimum use of planned or existing facilities, 2. convenient attendance of children
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of school age, 3. the essential limitation of natural and structural hazards to the safety of children, and 4. the deliberate elimination of irregularity in boundary lines which suggests gerrymandering for any purpose. In constructing his zones, Dr. Bass had before him the new zone lines of the Board which he reviewed with reference to the criteria used by him in making his map. Dr. Bass prepared three maps, one for the grades from 1 to 6, one for grades 7, 8 and 9, and one for senior high schools. We will consider here only the one for grades 1 to 6.
Dr. Bass testified that in about forty schools his zone lines were practically identical with those of the Board and that any attempt to zone these schools would leave them almost totally white. There were about 39 schools so situated that there was a possibility of zoning them so as to get either a maximum or minimum amount of desegregation. Dr. Bass suggested that the Board's lines for these schools had the appearance of gerrymandering so as to preserve a maximum amount of segregation.
Dr. Bass, in his testimony, analyzed the Board's zoning of the Vollentine and the Klondike schools to illustrate his point. Vollentine was predominantly white and Klondike was predominantly Negro. There is a peak in the Vollentine zone which extends into the Klondike area. The residents zoned off in this peak are predominantly white. The pupil ratio per room in the Vollentine school is nineteen, while the ratio in Klondike is twenty-four. Dr. Bass cited this as a failure to fully utilize the Vollentine building. If this line had been drawn straight, it would have put twenty white students in the Klondike zone. Dr. Bass gave similar testimony with reference to the Springdale and the Hollywood schools, both white, and Hyde Park, a Negro school. He would transfer, according to his zoning, ninety-seven students from Vollentine to Hyde Park, twenty students from Vollentine to Klondike, and one hundred and thirty from Hyde Park to Hollywood. Dr. Bass mentioned specifically several other schools and said that to a greater or lesser degree the situation described concerning Vollentine, Klondike and Hyde Park was true of all of the forty zones where there was a possibility of having more or less desegregation.
Dr. Bass repeatedly qualified his opinion and judgment. He said, concerning zoning, it is a 'judgmental thing' and that two individuals constructing boundary lines will come up with many similarities and a few differences, because of the factors involved. He also said: 'Now, as I say, you can't construct lines which are perfect squares and perfect rectangles, and may run around just as they are in here.' Finally he said: 'Facilities which are available to the local school systems were, of course, also not available to me.' * * * 'Yes, the equipment which they have at their disposal to carry out the functions of administration, the administrative assistants who also provide additional intelligence with respect to this kind of thing. Not being part of the school system, there are many things of this sort which I could not take into account.'
There is persuasive evidence here tending to show that zoning was accomplished for the purpose of preserving segregation to some extent. Dr. Bass was very fair and candid in his testimony. He testified to his overall conclusion without giving specifically the factors which led him to his determination with reference to each school. On the whole, there is not sufficient evidence before us to determine on a school-by-school basis that zoning lines were arbitrarily drawn without consideration for pertinent factors and for the purpose of defeating desegregation. However, in the one example we have cited, Vollentine and Klondike, it appears obvious that the zones are gerrymandered to preserve a maximum amount of segregation. We cannot draw school-zone lines. That is a discretionary function of the school board. We cannot say from the evidence before us that the Board abused its discretion but the evidence of Dr. Bass is
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sufficiently challenging to require the Board to submit evidence of its application of acceptable criteria for the formation of the boundaries of the forty schools here involved. Where challenged the burden of proof is on the Board to demonstrate that the zone lines of each school were not drawn with a view to preserve a maximum amount of segregation. Where the Board is under compulsion to desegregate the schools (1st Brown case, Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873) we do not think that drawing zone lines in such a manner as to disturb the people as little as possible is a proper factor in rezoning the schools. Nor do we think that preserving school loyalties, as defined by the Board, is a proper criterion. We cannot approve the zoning as adopted by the Board nor are we prepared to say that it has been arbitrarily done in order to retain the maximum amount of segregation.
This phase of the case will be remanded to the District Court with instructions to take further testimony on the question of zoning.
Another assignment of error is that the trial judge erred in approving the Board's plan of a grade a year desegregation. It is claimed that this does not now comply with the Supreme Court's current interpretation of desegregation with all deliberate speed, as required by the second Brown case (349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083).
The Board's plan was submitted to the District Court on August 31, 1962. It provided for desegregation of grades 1, 2 and 3 for the school year beginning in September, 1962. Grade 4 was to be desegregated in 1963 and thereafter one grade a year would be desegregated until all grades in all schools were desegregated. The Board of its own volition has accelerated this schedule and is now, according to the testimony of Mr. Galbreath, president of the Board, unequivocally committed to the desegregation of the 6th grade in September, 1964. The Board is to be commended for this action and we have no reason to believe that it would not further accelerate the schedule.
However, if it does not further voluntarily accelerate the schedule, it will be September of 1970 before desegregation extends through all of the grades of senior high school. It has been ten years since the first Brown decision and nine years since the second one in which the Court said that desegregation should be accomplished with all deliberate speed. The Court had in mind that there would be administrative problems involving facilities etc., but assumed that school boards would make immediate plans for complying with the Court's order.
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