409 F.2d 682 (5th Cir. 1969), 23255, Henry v. Clarksdale Municipal Separate School Dist.

Docket Nº:23255.
Citation:409 F.2d 682
Party Name:Rebecca E. HENRY et al., Appellants, v. The CLARKSDALE MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Appellees.
Case Date:March 06, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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409 F.2d 682 (5th Cir. 1969)

Rebecca E. HENRY et al., Appellants,



No. 23255.

United States Court of Appeals, Fifth Circuit.

March 6, 1969

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Henry M. Aronson, Jackson, Miss., Derrick A. Bell, Jr., Jack Greenberg, James M. Nabrit III, Melvyn Zarr, New York City, R. Jess Brown, Jackson, Miss., for appellants, Conrad K. Harper, New York City, of counsel.

Semmes Luckett, Clarksdale, Miss., for appellees.

Before WISDOM and THORNBERRY, Circuit Judges, and COX, [a1] District Judge.

WISDOM, Circuit Judge:

As this case demonstrates, a school board's adoption of a geographic zoning system instead of a 'freedom of choice' system is not a guarantee of effective desegregation. 'Geographic zoning, like any other attendance plan adopted by a school board in this Circuit, is acceptable only if it tends to disestablish rather than reinforce the dual system of segregated schools.' United States v. Greenwood Municipal Separate School District, 5 Cir. 1968, 406 F.2d 1086. In Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1968, 393 F.2d 690, we recognized that in many instances geographic zoning offers 'administrative improvement and

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greater desegregation' but required the Board to make a new effort to draw zone lines 'on a nonracial basis so that the attendance-area plan will promote desegregation rather than perpetuate segregation'.

Here the district court found that the school board acted in good faith. But good faith does not excuse a board's non-compliance with its affirmative duty to liquidate the dual system. Good faith is relevant only as a necessary ingredient of an acceptable desegregation plan.

In 1964, under court order, the Clarksdale Municipal Separate School District of Mississippi redrew its attendance zones and adopted the geographic zoning system as the basis for desegregating its schools. In the fall of that year, not a single child in Clarksdale was enrolled in any school with members of the other race. Again, for the spring semester of the 1964-65 year, not a single child was enrolled in a school attended by children of the other race. When this case was tried in April 1965, 2800 Negro pupils attended the five 'Negro' schools in Clarksdale and 2100 white children attended white schools along with two Negro girls who had transferred to the white high school to obtain a course, Latin, not available in the Negro high school.

In Jefferson this Court considered freedom of choice plans in operation in Jackson, Biloxi, and Leake County, Mississippi, and in other parish and county school districts throughout this circuit. United States v. Jefferson County Board of Education, 5 Cir. 1966, 372 F.2d 836, adopted en banc,380 F.2d 385, cert. denied sub nom. Caddo Parish School Board v. United States, 1967, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103. Much of what we said in our opinion in that case applies to any school desegregation plan. We held that school officials have an 'affirmative duty' to reorganize their schools into 'an integrated, unitary school system in which there are no Negro schools and no white schools-- just schools'. 380 F.2d at 389. We recognized that freedom-of-choice plans have 'serious shortcomings' and suggested a detailed order to attempt to overcome some of the shortcomings. We pointed out, 'The only school desegregation plan that meets constitutional standards is one that works.' (Original emphasis.) 372 F.2d at 847. Recently, the Supreme Court has underscored a school board's 'affirmative duty' today 'to come forward with a plan that promises realistically to work, and promises realistically to work now'. (Original emphasis.) Green v. County School Board of New Kent County, Virginia, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716. In Green the Court found that the freedom of choice plan used in New Kent County was ineffective and suggested alternatives, including zoning, that might bring about a 'speedier and more effective conversion (of the dual system) to a unitary, nonracial school system'. 1

A geographic system of allocating students to schools is a pragmatic solution that avoids the 'haphazard' 2 element in administering a freedom of choice plan based on the individual pupil's considered or perhaps capricious selection of a school to attend. A district court in Louisiana recently observed:

If this Court must pick a method of assigning students to schools within

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a particular school district, barring very unusual circumstances, we could imagine no method more inappropriate, more unreasonable, more needlessly wasteful in every respect, than the so-called 'free-choice' system. Moses v. Washington Parish School Board, E.D.La. 1967, 276 F.Supp. 834.

Historically, a compulsory attendance zone system almost invariably prevailed in the school districts in this circuit 3 -- until Brown 4 ordered an end to school segregation. But an attendance zone plan also may fail to work. When a particular plan does not succeed in converting a dual system into a unitary system, the school board must find ways for the plan to succeed.

The plaintiffs content that the attendance zone plan in Clarksdale extends promises it cannot fulfill. They allege also that the zones were drawn for the purpose and have had the effect of maintaining the racial identity of each formerly white and formerly Negro school.

The plaintiffs raised additional issues in the district court. One concerned the speed of desegregation to take place in Clarksdale. This issue, of course, is settled: The time is now. As Green puts it, 'delays are no longer tolerable * * * (and) a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable'. 391 U.S. at 438, 88 S.Ct. at 1694. Other issues in the district court involved the qualitative differences between 'white' schools and 'Negro' schools. 5 Jefferson tried to put an end to such differences by requiring integration 'lock, stock, and barrel': faculty and staff (part VIII), services, facilities, extracurricular activities and programs (part V), and school equalization (part VI). 6 Similarly, green requires 'dismantling' of the state-imposed dual system 'root and branch'.

The issue on this appeal centers on the geographic zones established by the school board. The record clearly establishes that all pupils living in each zone are required to attend the school in that zone. As we recognized in Jefferson, however, such factors as residential patterns, the mushrooming of private schools, and a minority-to-majority transfer policy may bring about a school attended exclusively or almost exclusively by students of one race, although the zone originally etched out to supply students for that school may have been racially mixed.

Clarksdale is bisected from the northeast to the southwest by a main line of the Illinois Central Railroad. Commercial and Industrial establishments lie adjacent to both the northern and southern side of the railroad tracks, accentuating the division of the residential areas of the town. Elevated tracks on an embankment add to this division.

Clarksdale is also bisected by the Sunflower River running north-south through the city. The southern half of the city is divided by another line of railroad tracks running north-south, which is built on the same grade as

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the surrounding lands. There are four underpasses and one grade crossing transversing the embanked railroad tracks. Only one of these underpasses is west of the Sunflower River, and it is next to the river. The central business district is in the northern half of Clarksdale, and easy of the Sunflower River. Two bridges span the river in both the northern and southern sections of the community.

Traditionally, most Negro residents in the city have lived south of the Illinois Central tracks, while the great majority of the white residents have lived north of the tracks. Under the school board's proposed attendance-zone plan, no school child will cross those tracks. The result was obvious from the beginning: the zoning could produce only token desegregation.

The plaintiffs attempted to prove that the purpose behind the board's drawing of the present zone lines is to perpetuate a dual, segregated school system in Clarksdale. 7 They allege that certain pockets of Negro residences north of the tracks were purposefully removed through deannexation, purchase, or urban renewal by public authorities so that no Negroes would reside in the attendance zones of the northern half of Clarksdale. 8 We agree with the district

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court that evidence on this issue is irrelevant, but not for the reasons supporting the district judge's conclusion. It is irrelevant because the ultimate inquiry is not whether the school board has found some rational basis for its action, but whether the board is fulfilling its duty to take affirmative steps, spelled out in Jefferson and fortified by Green, to find realistic measures that will transform its formerly de jure dual segregated school system into a 'unitary, nonracial system of public education'.

In Monroe v. Board of Commissioners of the City of Jackson, 1968, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733, a companion case to Green, the school board for the city of Jackson, Tennessee, established a plan involving attendance zones drawn according to certain established criteria and containing a free-transfer provision. The schools of Jackson retained their racial identity, with only token integration. The Supreme Court, focusing on the free-transfer aspect of the plan, observed:

Plainly, the plan does not meet respondent's 'affirmative duty to take whatever...

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