Montgomery County Board of Education v. Carr, 25865.

• Citation: 400 F.2d 1
• Decision Date: 01 November 1968
• Docket Number: No. 25865.,25865.
• Parties: MONTGOMERY COUNTY BOARD OF EDUCATION et al., Appellants, v. Arlam CARR, Jr., a minor, by Arlam Carr, and Johnnie Carr, his parents and next friends, et al., Appellees. UNITED STATES of America, Appellant, v. MONTGOMERY COUNTY BOARD OF EDUCATION et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

400 F.2d 1 (1968)

MONTGOMERY COUNTY BOARD OF EDUCATION et al., Appellants, v. Arlam CARR, Jr., a minor, by Arlam Carr, and Johnnie Carr, his parents and next friends, et al., Appellees.

UNITED STATES of America, Appellant, v. MONTGOMERY COUNTY BOARD OF EDUCATION et al., Appellees.

No. 25865.

United States Court of Appeals Fifth Circuit.

August 1, 1968.

Rehearing Denied November 1, 1968.

V. H. Robison, Joseph Phelps, Montgomery, Ala., for appellants.

Frank D. Allen, Jr., Nathan Lewin, Atty., Dept. of Justice, Washington, D. C., Fred D. Gray, Montgomery, Alabama, Charles Jones, Jr., New York City, for appellees.

Before GEWIN and THORNBERRY, Circuit Judges, and ELLIOTT, District Judge.

Rehearing Denied En Banc November 1, 1968. See 402 F.2d 782.

GEWIN, Circuit Judge:

The United States and appellees filed motions in the United States District Court for the Middle District of Alabama on August 17, 1967, and February 7, 1968, requesting the district court to require appellants to take further steps to eliminate the dual school system in Montgomery County, Alabama. Hearings were held on September 5, 1967 and February 9, 1968. The district court entered its order on February 24, 1968, amended March 2, 1968, granting specific relief in the areas of faculty desegregation, student teacher and substitute teacher desegregation, school construction, student transportation, and student choices regarding newly constructed schools. This appeal followed. We affirm the order of the district court as hereinafter modified.

We see no need to recite the history of the school board's efforts to comply with the constitutional mandate to desegregate its public schools. However, we note that progress has been made and that the school board has been complimented on its good faith efforts. We do not wish unduly to emphasize or de-emphasize good faith on the part of this particular board of education, but we do take note of the fact that this is the very first time it has been before this court. This case does not bear the "many service stripes" mentioned in United States v. Board of Education of Bessemer, 5 Cir. 1968, 396 F.2d 44. See also Davis v. Board of School Commissioners of Mobile County, 393 F.2d 690 (5 Cir. 1968).¹ In our view, good faith conduct on the part of any litigant in any court, especially a court of equity and, more particularly, in the sensitive area of desegregation, is a vital element for appropriate consideration. Our feeling with respect to good faith is buttressed by the recent decision of the Supreme Court in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).² Some five times, during the period from 1964 to 1967, the district court publicly complimented the Montgomery County School Board on its efforts toward achieving desegregation.³

It is not necessary to discuss all of the provisions of the district court's order. Appellants challenge that portion of the order which directs them (1) to assign and transfer faculty members, student teachers, and substitute teachers throughout all schools in the system and from one school to another according to a fixed mathematical ratio based on race, and (2) to give affirmative preference to Negro students who choose to attend a newly constructed high school. That part of the court's order challenged on appeal is set forth below:

I. FACULTY AND STAFF

A. Statement of Objective.

In achieving the objective of the school system, that the pattern of teacher assignments to any particular school shall not be identifiable as tailored for a heavy concentration of either Negro or white pupils in the school, the school board will be guided by the ratio of Negro to white faculty members in the school system as a whole.

The school board will accomplish faculty desegregation by hiring and assigning faculty members so that in each school the ratio of white to Negro faculty members is substantially the same as it is throughout the system. At present, the ratio is approximately 3 to 2. This will be accomplished in accordance with the schedule set out below.

B. Schedule for Faculty Desegregation.

1. 1968-69. At every school with fewer than 12 teachers, the board will have at least one full-time teacher whose race is different from the race of the majority of the faculty and staff members at the school.

At every school with 12 or more teachers, the race of at least one of every six faculty and staff members will be different from the race of the majority of the faculty and staff members at the school. This Court will reserve, for the time being, other specific faculty and staff desegregation requirements for future years.

C. Means of Accomplishment.

If the school board is unable to achieve faculty desegregation by inducing voluntary transfers or by filling vacancies, then it will do so by the assignment and transfer of teachers from one school to another.

D. Substitute Teachers.

Commencing in September, 1968, with the 1968-69 school year, the ratio of the number of days taught by white substitute teachers to the number of days taught by Negro substitute teachers at each school during each semester will be substantially the same as the ratio of white substitute teachers to Negro substitute teachers on the list of substitute teachers at the beginning of the semester.

Commencing with the 1968-69 school year, the board will not use an individual as a substitute teacher in the Montgomery Public Schools if he will consent to substitute only at predominantly white schools or only at predominantly Negro schools.

E. Student Teachers.

Commencing in September, 1968, with the 1968-69 school year, the ratio of white to Negro student teachers each semester in each school that uses student teachers will be substantially the same as the ratio of white and Negro student teachers throughout the system.

F. Night Schools.

Commencing June 1, 1968, the ratio of white to Negro faculty members at each night school will be substantially the same as the ratio of white to Negro faculty members throughout the night-school program.

IV. JEFFERSON DAVIS HIGH SCHOOL, PETER CRUMP SCHOOL, AND SOUTHLAWN SCHOOL

D. Honoring Choices.

The school board will honor the choices of each Negro student who chooses to attend Jefferson Davis High School during the 1968-69 school year, in the absence of compelling circumstances approved by the Court on the school board\'s motion.

The district court denied appellees' request that the ratio of white to Negro faculty members in new schools be approximately three to two in their first year of operation. Appellees have cross-appealed on this issue.

I ASSIGNMENT OF TEACHERS

It is clear from the record and briefs that appellants fully recognize that they have the affirmative duty to desegregate the faculties throughout their entire school system. They have been striving to carry out this duty by seeking and encouraging voluntary transfers of teachers and by requesting new teachers to accept positions in schools where their race is in the minority. Appellants further recognize that they have the legal right to compel faculty assignment if voluntary placement is not effective.⁴ However, appellants object to the district court's order requiring assignment of teachers on the ground that such is not in keeping with sound and quality school administration. We quote from appellants' brief:

In Beckett v. School Board of City of Norfolk, Virginia, 269 F.Supp. 118 at page 139 (E.D.Va. May, 1967) the Court stated, in considering faculty desegregation:

However, in line with the most recent Wheeler case Wheeler v. Durham City Board of Education, 4 Cir., 363 F.2d 738, the School Board has not adopted the tactic of compelling a teacher to transfer. Moreover, such a practice would not be in accord with sound educational principles. (Emphasis supplied.)

The question of whether a school board is obligated to assign teachers to schools where their race is in the minority when efforts to persuade teachers voluntarily to accept such positions fail, has recently been before this court. United States v. Board of Educ. of Bessemer, supra. That opinion answers the above question with an emphatic yes. We quote:

The School Boards do not meet their duty by soliciting volunteers. For the fact remains that the "responsibility for faculty desegregation, just as the responsibility of student desegregation, lies ultimately with the board, not the teachers." Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1968, 393 F.2d 690. So there will be no mistake about it we spell out that Jefferson stands for the proposition that there is an affirmative duty on the part of the School Boards to do everything — the word is everything — within their power to meet the decree-imposed complete desegregation of faculties. It is not, it cannot be, left to the voluntariness of teacher applicants or transfers.

We therefore find no error in the court's order requiring the assignment of teachers since efforts to achieve faculty desegregation by voluntary means have failed.

II FIXED MATHEMATICAL RATIO

Appellants strenuously object to the imposition of the mathematical ratios contained in the district court's order. They contend that such ratios are arbitrary and unwarranted in view of their extensive plans to desegregate their faculties, their showing of good faith, and the overall achievment of progress in the area. In addition, appellants submit that a fixed ratio does not take into consideration the availability of teaching personnel or the complexity of school administration, and that it ignores the goal of quality education and other similar factors which are inevitably involved in the operation of a school system.

After extensive hearings, the court below found that desegregation of faculties in the Montgomery County school system was lagging and that appellants had failed to comply with earlier orders of the court requiring full faculty desegregation. In...