380 F.2d 955 (6th Cir. 1967), 17118, Monroe v. Board of Com'rs, City of Jackson, Tennessee
|Docket Nº:||17118, 17119.|
|Citation:||380 F.2d 955|
|Party Name:||Brenda K. MONROE et al., Plaintiffs-Appellants, v. BOARD OF COMMISSIONERS, CITY OF JACKSON, TENNESSEE, et al., and County Board of Education, Madison County, Tennessee, et al., Defendants-Appellees.|
|Case Date:||July 21, 1967|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Z. Alexander Looby, Nashville, Tenn. (Jack Greenberg, James M. Nabrit, III, and Michael Meltsner, New York City, Gerald A. Smith, Baltimore, Md., and Avon N. Williams, Jr., Nashville, Tenn., on the brief), for appellants.
Russell Rice, Jackson, Tenn., for Board of Com'rs of City of Jackson and others.
Jack Manhein, Sr., Jackson, Tenn., for County Board of Education of Madison County and others.
Before O'SULLIVAN, PHILLIPS and PECK, Circuit Judges.
O'SULLIVAN, Circuit Judge.
In 1963 a suit was filed by Brenda K. Monroe and others, Negro children and their parents, to bring about the desegregation of the public schools of the City of Jackson, and of Madison County, Tennessee. 1
The District Court required the school authorities to submit plans to accomplish desegregation and ultimately granted the relief sought by approving parts of a submitted plan and ordering other steps to be taken. Separate opinions were written, one involving the City of Jackson schools, reported as Monroe v. Board of Commissioners of the City of Jackson, Tennessee, et al., 221 F.Supp. 968 (W.D.Ten..1963) and the other relating to Madison County schools, reported in Monroe v. Board of Commissioners, etc., et al., 229 F.Supp. 580 (W.D.Tenn.1964). Appeals to this Court from these cases were dismissed by agreement. Obedient to the above decision, all grades of the schools involved have been desegregated.
The litigation with which we now deal arises from Motions for Further Relief filed in the District Court by plaintiffs. By these motions, plaintiffs sought to accomplish greater integration of the school children, desegregation of the teaching staffs, and the enjoining of described practices of the school authorities which were alleged to be violative of the District Judge's original decrees and contrary to new developments in the law. The District Judge, again, dealt separately with the city and the county schools in disposing of the Motions for Further Relief. His decision as to the city schools is reported in Monroe v. Board of Commissioners, City of Jackson, 244 F.Supp. 353 (W.D.Tenn.1965) and as to the County Schools in Monroe v. Board of Education, Madison County, Tennessee, et al., 269 F.Supp. 758 (W.D.Tenn.1965). These are the cases before us on this appeal; the plaintiffs are the appellants. These opinions, with the earlier ones reported at 221 F.Supp. 968 and 229 F.Supp. 580, supra, set out the facts and we will restate them only where needed to discuss the present contentions of the plaintiffs-appellants.
1) Compulsory integration.
Appellants argue that the courts must now, by reconsidering the implications of the Brown v. Board of Education decisions in 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and upon their own evaluation of the commands of the Fourteenth Amendment, require school authorities to take affirmative steps to eradicate that racial imbalance in their schools which is the product of the residential pattern of the Negro and white neighborhoods. The District Judge's opinion discusses pertinent authorities and concludes that the Fourteenth Amendment did not command compulsory integration of all of the schools regardless of an honestly composed unitary neighborhood system and a freedom of choice plan. We agree with his conclusion. We have so recently expressed our like view in Deal et al. v. Cincinnati Board of Education, 369 F.2d 55 (CA 6, 1966), petition for cert. filed, 35 LW 3394 (U.S. May 5, 1967) (No. 1358), that we will not here repeat Chief Judge Weick's careful exposition of the relevant law of this and other circuits. He concluded 'We read Brown as prohibiting only enforced segregation.' 369 F.2d at 60. We are at once aware that we were there dealing with the Cincinnati schools which had been desegregated long before Brown, whereas we consider here Tennessee schools desegregated only after and in obedience to Brown. We are not persuaded, however, that we should devise a mathematical rule that will impose a different and more stringent duty upon states which, prior to Brown, maintained a de jure biracial school system, then upon those in which the racial imbalance in its schools has come about from so-called
de facto segregation-- this to be true even though the current problem be the same in each state.
We are asked to follow United States v. Jefferson County Board of Education, 372 F.2d 836 (CA 5, 1966), which seems to hold that the pre-Brown biracial states must obey a different rule than those which desegregated earlier or never did segregate. This decision decrees a dramatic writ calling for mandatory and immediate integration. In so doing, it distinguished Bell v. School City of Gary, Indiana, 324 F.2d 209 (CA 7, 1963), cert. den. 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216, on the ground that no pre-Brown de jure segregation had existed in the City of Gary, Indiana. 372 F.2d at 873. It would probably find like distinction in our Deal decision because of Cincinnati's long ago desegregation of its schools. We, however, have applied the rule of Deal to the schools of Tennessee. In Mapp v. Board of Education, 373 F.2d 75, 78 (CA 6, 1967) Judge Weick said,
'To the extent that plaintiffs' contention is based on the assumption that the School Board is under a constitutional duty to balance the races in the school system in conformity with some mathematical formula, it is in conflict with our recent decision in Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966).'
However ugly and evil the biracial school systems appear in contemporary thinking, they were, as Jefferson, supra, concedes, de jure and were once found lawful in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), and such was the law for 58 years thereafter. To apply a disparate rule because these early systems are now forbidden by Brown would be in the nature of imposing a judicial Bill of Attainder. Such proscriptions are forbidden to the legislatures of the states and the nation-- U.S.Const. Art. I, Section 9, Clause 3 and Section 10, Clause 1. Neither, in our view, would such decrees comport with our current views of equal treatment before the law.
This is not to say that Tennessee school authorities can dishonestly construct or deliberately contrive a system for the purpose of perpetuating a 'maximum amount' of its pre-Brown segregation. Northcross v. Board of Education of City of Memphis, 333 F.2d 661, 664 (CA 6, 1964). But to the extent that United States v. Jefferson County Board of Education, and the decisions reviewed therein, are factually analogous and express a rule of law contrary to our view herein and in Deal, we respectfully decline to follow them.
Appellants assert that while giving surface obedience to the establishment of a unitary zoning system and freedom of choice, the school officials of the City of Jackson had been guilty of 'gerrymandering' in order 'to preserve a maximum amount of segregation.' Were this true, it would be violative of the law. Northcross v. Board of Education of City of Memphis, 302 F.2d 818, 823 (CA 6, 1962), cert. den. 370 U.S. 944, 82 S.Ct. 1586, 8 L.Ed.2d 810, and Northcross v. Board of Education of City of Memphis, 333 F.2d 661, 664 (CA 6, 1964). The District Judge in the instant matter did hold that as to some boundary lines 'there appears to be gerrymandering.' Monroe v. Board of Commissioners, City of Jackson, supra, 244 F.Supp. at 361. As to these instances, he ordered changes in the school zone lines. Ic. at 361, 362. But, as to the junior high schools, he concluded,
'that the proposed junior high school zones proposed by defendants do not amount to unconstitutional gerrymandering.' 244 F.Supp. at 362.
Without making our own recitation of the relevant evidence, we express our agreement with the District Judge.
3) Faculty desegregation.
In the accomplishment of desegregation in the involved schools, there remain some that are attended only by Negro and others only by white children. The teaching staff...
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