372 F.2d 836 (5th Cir. 1966), 23345, United States v. Jefferson County Bd. of Educ.

Docket Nº:23345, 23331, 23335, 23274, 23365, 23173, 23192.
Citation:372 F.2d 836
Party Name:UNITED STATES of America and Linda Stout, by her father and next friend, Blevin Stout, Appellants, v. JEFFERSON COUNTY BOARD OF EDUCATION et al., Appellees. UNITED STATES of America, Appellant, v. The BOARD OF EDUCATION OF the CITY OF FAIRFIELD et al., Appellees. UNITED STATES of America, Appellant, v. The BOARD OF EDUCATION OF the CITY OF BESSEMER
Case Date:December 29, 1966
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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372 F.2d 836 (5th Cir. 1966)

UNITED STATES of America and Linda Stout, by her father and next friend, Blevin Stout, Appellants,

v.

JEFFERSON COUNTY BOARD OF EDUCATION et al., Appellees.

UNITED STATES of America, Appellant,

v.

The BOARD OF EDUCATION OF the CITY OF FAIRFIELD et al., Appellees.

UNITED STATES of America, Appellant,

v.

The BOARD OF EDUCATION OF the CITY OF BESSEMER et al., Appellees.

UNITED STATES of America, Appellant,

v.

CADDO PARISH SCHOOL BOARD et al., Appellees.

UNITED STATES of America, Appellant,

v.

The BOSSIER PARISH SCHOOL BOARD et al., Appellees.

Margaret M. JOHNSON et al., Appellants,

v.

JACKSON PARISH SCHOOL BOARD et al., Appellees.

Yvornia Decarol BANKS et al., Appellants,

v.

CLAIBORNE PARISH SCHOOL BOARD et al., Appellees.

Nos. 23345, 23331, 23335, 23274, 23365, 23173, 23192.

United States Court of Appeals, Fifth Circuit.

December 29, 1966

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No. 23345:

Macon L. Weaver, U.S. Atty., Birmingham, Ala., Norman C. Amaker, New York City, David L. Norman, Atty., Dept. of Justice, Washington, D.C., for appellants.

Maurice F. Bishop, Birmingham, Ala., John C. Satterfield, Yazoo City, Miss., George Rogers, Birmingham, Ala., for appellees.

No. 23331:

Macon L. Weaver, U.S. Atty., Demetrius C. Newton, Orzell Billingsley, Jr., Birmingham, Ala., David L. Norman, Atty., Dept. of Justice John Doar, Asst. Atty. Gen., St. John Barrett, Joel M. Finkelstein, Brian K. Landsberg, Charles R. Nesson, Attys., Dept. of Justice, Washington, D.C., for appellant.

Maurice F. Bishop, Birmingham, Ala., John C. Satterfield, Yazoo City, Miss., George Rogers, Birmingham, Ala., for appellees.

No. 23335:

Macon L. Weaver, U.S. Atty., Birmingham, Ala., David L. Norman, Atty., Dept. of Justice, Washington, D.C., Oscar W. Adams, Jr., Birmingham, Ala., for appellant.

Reid B. Barnes, Birmingham, Ala., John C. Satterfield, Yazoo City, Miss., William G. Somerville, Jr., Birmingham, Ala., J. Howard McEniry, Jr., Bessemer, Ala., for appellees.

No. 23274:

David L. Norman, Atty., Dept. of Justice, Washington, D.C., Norman Amaker, Charles H. Jones, Jr., New York City, A. P. Tureaud, New Orleans, La., for appellant.

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John A. Richardson, Shreveport, La., for appellees.

No. 23365:

David L. Norman, Atty., Dept. of Justice, Washington, D.C., James M. Nabrit, III, New York City, for appellant.

J. Bennett Johnston, Jr., Shreveport, La., Jack P. F. Gremillion, Baton Rouge, La., for appellees.

No. 23173:

Alvin J. Bronstein, Jackson, Miss., Harris David, New Orleans, La., Carl Rachlin, New York City, David Norman, Atty., Dept. of Justice, Washington, D.C., for appellants.

Fred L. Jackson, Homer, La., William H. Baker, Jonesboro, La., Teddy W. Airhart, Asst. Atty. Gen., Baton Rouge, La., for appellees.

No. 23192:

Alvin J. Bronstein, Jackson, Miss., Carl Rachlin, New York City, Harris David, New Orleans, La., David Norman, Atty., Dept. of Justice, Washington, D.C., Robert F. Collins, New Orleans, La., for appellants.

Jack P. F. Gremillion, Atty. Gen., Thomas McFerrin, Sr., Asst. Atty. Gen., Harry Kron, Jr., Asst. Atty. Gen., Baton Rouge, La., Fred L. Jackson, Homer, La., Teddy W. Airhart, Jr., Asst. Atty. Gen., Baton Rouge, La., for appellees.

Before WISDOM and THORNBERRY, Circuit Judges, and COX, [*] District Judge.

WISDOM, Circuit Judge:

Once again the Court is called upon to review school desegregation plans to determine whether the plans meet constitutional standards. The distinctive feature of these cases, consolidated on appeal, is that they also require us to reexamine school desegregation standards in the light of the Civil Rights Act of 1964 and the Guidelines of the United States Office of Education, Department of Health, Education, and Welfare (HEW).

When the United States Supreme Court in 1954 decided Brown v. Board of Education 1 the members of the High School Class of 1966 had not entered the first grade. Brown I held that separate schools for Negro children were 'inherently unequal'. 2 Negro children, said the Court, have the 'personal and present' right to equal educational opportunities with white children in a racially nondiscriminatory public school system. For all but a handful of Negro members of the High School Class of '66 this right has been 'of such stuff as dreams are made on'. 3

"The Brown case is misread and misapplied when it is construed simply to confer upon Negro pupils the right to be considered for admission to a white school". 4 The United States Constitution,

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as construed in Brown, requires public school systems to integrate students, faculties, facilities, and activities. 5 If Brown I left any doubt as to the affirmative duty of states to furnish a fully integrated education to Negroes as

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a class, Brown II resolved that doubt. A state with a dual attendance system, one for whites and one for Negroes, must 'effectuate a transition to a (unitary) racially nondiscriminatory school system.' 6 The two Brown decisions established equalization of educational opportunities as a high priority goal for all of the states and compelled seventeen states, which by law had segregated public schools, to take affirmative action to reorganize their schools into a unitary, nonracial system.

The only school desegregation plan that meets constitutional standards is one that works. By helping public schools to meet that test, by assisting the courts in their independent evaluation of school desegregation plans, and by accelerating the progress but simplifying the process of desegregation the HEW Guidelines offer new hope to Negro school children long denied their constitutional rights. A national effort, bringing together Congress, the executive, and the judiciary may be able to make meaningful the right of Negro children to equal educational opportunities. The courts acting alone have failed.

We hold, again, in determining whether school desegregation plans meet the standards of Brown and other decisions of the Supreme Court, 7 that courts in this circuit should give 'great weight' to HEW Guidelines. 8 Such deference is consistent with the exercise of traditional judicial powers and functions. HEW Guidelines are based on decisions of this and other courts, are formulated to stay within the scope of the Civil Rights Act of 1964, are prepared in detail by experts in education and school administration, and are intended by Congress and the executive to be part of a coordinated national program. The Guidelines present the best system available for uniform application, and the best aid to the courts in evaluating the validity of a school desegregation plan and the progress made under that plan.

HEW regulations provide that schools applying for financial assistance must comply with certain requirements. However, the requirements for elementary or secondary schools 'shall be deemed to be satisfied if such school or school system is subject t a final order of a court of the United States for the desegregation of such school or school system * * *.' 9 This regulation causes our decisions to have a twofold impact on school desegregation. Our decisions determine not only (1) the standards

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schools must comply with under Brown but also (2) the standards these schools must comply with to qualify for federal financial assistance. Schools automatically qualify for federal aid whenever a final court order desegregating the school has been entered in the litigation and the school authorities agree to comply with the order. Because of the second consequence of our decisions and because of our duty to cooperate with Congress and with the executive in enforcing Congressional objectives, strong policy considerations support our holding that the standards of court-supervised desegregation should not be lower than the standards of HEW-supervised desegregation. The Guidelines, of course, cannot bind the courts; we are not abdicating any judicial responsibilities. 10 But we hold that HEW's standards are substantially the same as this Court's standards. They are required by the Constitution and, as we construe them, are within the scope of the Civil Rights Act of 1964. In evaluating desegregation plans, district courts should make few exceptions to the Guidelines and should carefully tailor those so as not to defeat the policies of HEW or the holding of this Court.

Case by case over the last twelve years, courts have increased their understanding of the desegregation process. 11 Less and less have courts accepted the question-begging distinction between 'desegregation' and 'integration' as a sanctuary for school boards fleeing from their constitutional duty to establish an integrated, non-racial school system. 12 With the benefit of this experience, the Court has restudied the School Segregation Cases. We have reexamined the nature of the Negro's right to equal educational opportunities and the extent of the correlative affirmative duty of the state to furnish equal educational opportunities. We have taken a close look at the background and objectives of the Civil Rights Act of 1964. 13

We approach decision-making here with humility. Many intelligent men of good will who have dedicated their lives to public education are deeply concerned for fear that a doctrinaire approach to desegregating schools may lower educational...

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