Forsyth County Board of Education v. Scott 8212 274

• Decision Date: 31 August 1971
• Docket Number: WINSTON-SALEM,No. 71,71
• Citation: 92 S.Ct. 1236,404 U.S. 1221,31 L.Ed.2d 441
• Parties: /FORSYTH COUNTY BOARD OF EDUCATION v. Catherine SCOTT et al. —274
• Court: U.S. Supreme Court

404 U.S. 1221

92 S.Ct. 1236

31 L.Ed.2d 441

WINSTON-SALEM/FORSYTH COUNTY BOARD OF EDUCATION

v Catherine SCOTT et al.

No. 71—274.

Aug. 31, 1971.

THE CHIEF JUSTICE, Circuit Justice.

The Board of Education of the Forsyth County, North Carolina, school system has applied for a stay of a decision of the United States Court of Appeals for the Fourth Circuit, dated June 10, 1971, 444 F.2d 99, and subsequent orders of the United States District Court for the Middle District of North Carolina entered pursuant thereto, pending disposition of the Board's petition for writ of certiorari to review the decision of the Court of Appeals. The operative order of the District Court is dated July 26, 1971; it adopts a plan for pupil assignment designed to desegregate the public schools of Forsyth County. The affected schools were already scheduled to open Monday, August 30.

The application for a stay was filed August 23, 1971, and the response thereto on August 26, 1971, making that date the earliest possible date for this Court or a Justice to act on the stay.

The background is of some importance.

Respondents, who are Negro pupils and parents in the school system, commenced action alleging that the School Board was operating a dual school system, and seeking appropriate relief. The school system embraces both rural and urban areas in a county school system. The District Court found that in December 1969 there were 67 schools in the system with approximately 50,000 students. The total student population was 72.5% white and 27.5% Negro. Of the schools, 15 were all-Negro and seven were all-white. Of the remaining schools, 31 had less than 5% of the minority race. The school system was operated under a geographical attendance zone system, with freedom-of-choice transfer provisions for all students regardless of race.

Prior to this Court's holding in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), the plaintiffs submitted a plan devised by their consultant, Dr. Larsen; it was designed to achieve as closely as possible a mathematical racial balance in all of the schools of the system equal to that in the system as a whole. It employed satellite zoning and extensive cross-busing. The District Court, 317 F.Supp. 453, rejected the plan as not constitutionally required and unduly burdensome.

The School Board then submitted its plan for the 1970—u971 school year to the court for approval. It retained geographic zoning and freedom-of-choice transfer provisions, but with certain modifications allowing priority to majority-to-minority transfers and increasing the racial 'balance' of several schools. The District Court in 1970 approved the Board's plan, subject to alterations which prevented minority-to-majority transfers, made changes affecting three attendance zones, and added a requirement that the Board create 'innovative' programs designed to increase racial contact of students.

In rejecting the Larsen plan and approving the modified Board plan, the District Court found that the boundaries of the attendance zones had been drawn in good faith and without regard to racial considerations, and to ensure that, so far as possible, pupils attended the schools nearest their home, taking into account physical barriers, boundaries, and obstacles that might endanger children in the course of reaching their schools. The District Court at that time was of the view of that the 'neighborhood' school concept could not be the basis of assignment if residence in a neighborhood was denied or compelled because of race, but went on to find that the racial concentration of Negroes was not caused by public or private discrimination or state action but by economic factors and the desire of Negroes to live in their own neighborhoods rather than in predominantly white neighborhoods. That finding has not been reviewed. Finally, the District Court found that the School Board had acted consistently in good faith, and was of the view that good faith 'is a vital element in properly evaluating local judgment in devising compliance plans.' 317 F.Supp. 453, 476 (1970).

The District Court's order was rendered in the summer of 1970 and all parties appealed to the Court of Appeals for the Fourth Circuit. While that appeal was pending, this Court decided Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and related cases. See Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); McDaniel v. Barresi 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971); North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971).

In light of the Swann holding, the Court of Appeals by per curiam opinion en banc remanded this and several other cases to their respective district courts with instructions to receive from the school boards new plans 'which will give effect to Swann and Davis.' 444 F.2d 99, 100 (1971). In its remand, the Court of Appeals stated in part:

'It is now clear, we think, that in school systems that have previously been operated separately as to the races by reason of state action, 'the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation.' Davis, supra, at 37.

'If the district court approves a plan achieving less actual desegregation than would be achieved under an alternate proposed plan it shall find facts that are thought to make impracticable the achieving of a greater degree of integration, especially if there remain any schools all or predominately of one race.

'In Winston-Salem/Forsyth County, the school board may fashion its plan on the Larsen plan with necessary modifications and refinements or adopt a plan of its choice which will meet the requirements of Swann and Davis.' 444 F.2d, at 100—102.

On remand, the District Court interpreted the order of the Court of Appeals to mean that because the State of North Carolina formerly had state-enforced dual school systems, declared unconstitutional in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the pupil assignment plan in Forsyth County had to be substantially revised to 'achieve the greatest possible degree of desegregation.' It concluded that:

'Despite the substantial difference between the findings of this Court, which formed the predicate for this Court's June 25, 1970 opinion in this case, and the findings which form the predicate of the decision of the District Court in Swann, it is apparent that it is as 'practicable' to desegregate all the public schools in the Winston-Salem/Forsyth County system as in the Charlotte-Mecklenburg system and that the appellate courts will accept no less. Consequently, this Court can approve no less. . . .'

The District Court then ordered the School Board to comply with the time schedule set by the Court of Appeals in submitting the required plan. Just why the District Judge undertook an independent, subjective analysis of how this case compared factually with the Swann case—something he could not do adequately without an examination of a comprehensive record not before him—is not clear.

The school authorities, declaring that they considered themselves 'required' to do so, adopted a revised pupil assignment plan which was expressly designed 'to achieve a racial balance throughout the system which will be acceptable to the Court.' (Emphasis added.) Prior to the adoption of the revised plan, the school system transported about 18,000 pupils per day in about 216 buses. The drafters of the revised plan estimated that it would require at a minimum, with use of staggered school openings, 157 additional buses to transport approximately 16,000 additional pupils.

The Board submitted the plan to the District Court under protest and voiced strong objections to its adoption. A Board resolution submitted with the plan stated in conclusion that it was submitted to 'accomplish the required objective of achieving a racial balance in the public schools . . . (but it) is not a sound or desirable plan, and should not be required . . .' (Emphasis added.) On July 26, 1971, the District Court accepted the plan, noting that it was 'strikingly similar' to the Larsen plan which it had previously refused to implement as not constitutionally required.

On August 23, the School Board applied to me, as Circuit Justice, for a stay pending disposition by the Court of its petition for writ of certiorari, filed the same day, seeking review of the remand order of the Court of Appeals; the response was received, as previoulsy noted, August 26, 1971. The Board states that it has not applied previously to either the District Court or the Court of Appeals for a stay because the language of the decisions and orders of those courts makes it clear that neither would grant a stay and because there was not time to do so prior to the opening of the new school year.

In its present posture this stay application, like that presented to Mr. Justice Black and acted on by him August 19, 1971, in Corpus Christi Independent School District v. Cisneros, 404 U.S. 1211, 92 S.Ct. 9, 30 L.Ed.2d 15, 'is in an undesirable state of confusion. . . .'

To begin with, no reasons appear why this application was not presented to me at an earlier date, assuming that I accept the explanation tendered for failure to...