Davis v. Board of School Commissioners of Mobile County, 26886
| Citation | 414 F.2d 609 |
| Decision Date | 20 June 1969 |
| Docket Number | 27491,No. 26886,27260.,26886 |
| Parties | Birdie Mae DAVIS et al., Appellants-Cross Appellees, United States of America et al., Appellants-Cross Appellees, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Appellees-Cross Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Vernol R. Jansen, Jr., U. S. Atty., Mobile, Ala., Stephen J. Pollak, Asst. Atty. Gen., Jerris Leonard, Asst. Attys. Gen., Frank M. Dunbaugh, Walter Gorman, David Bonderman, Attys., Dept. of Justice, Washington, D. C., David L. Norman, Deputy Asst. Atty. Gen., for appellants.
Jack Greenberg, Norman Amaker, Michael Davidson, New York City, Vernon Z. Crawford, Frankie Fields, Mobile, Ala., for appellants Birdie Mae Davis et al.
Abram L. Philips, Jr., Pierre Pelham, Palmer Pillans, George F. Wood, James D. Brooks, Mobile, Ala., for appellees.
Before JOHN R. BROWN, Chief Judge, DYER, Circuit Judge, and HUNTER, District Judge.
In No. 26,886 the District Court on July 29, 1968, entered an order formulating attendance zone lines for grades 1-8 in the city portion of the Mobile School System, adopted freedom of choice in the high school system, permitted transfer from a school into which a student was zoned if the student was in a racial minority of less than five percent, and continued a freedom of choice plan in the rural areas.
In Nos. 27,260 and 27,491 the District Court on December 20, 1968, and March 14, 1969, approved construction plans for the Howard and Toulminville schools respectively.
We consolidated and expedited these appeals for oral argument.
It is apparent that the District Court relied wholly upon and gave literal interpretation to the directive in our decision of March 12, 1968, 5 Cir., 393 F.2d 690, that new attendance zones be drawn on a non-racial basis and ignored the unequivocal directive to make a conscious effort in locating attendance zones to desegregate and eliminate past segregation. The record shows and the statistics prove that the attendance zones formulated by the District Court are constitutionally insufficient and unacceptable, and such zones must be redrawn.
In approving a freedom of choice plan for high school students the District Court failed to follow the mandate in our opinion that no distinction was to be drawn between elementary and high school students with respect to attendance zones, and that the same principles were to govern the assignment of students to secondary as to primary schools.
A provision permitting transfers from racial majority to racial minority schools is entirely proper and should be included in a plan.
The converse, transfers from racial minority to racial majority schools, permitted by the District Court, even when restricted to those instances when the racial minority is 5% or less, is erroneous. This is tantamount to an authorization to white students to resegregate and is impermissible as a means for the perpetration of segregation. Monroe v. Board of Commissioners, 1968, 391 U.S. 450, 88 S.Ct. 1700, 20 L. Ed.2d 733; Goss v. Board of Education, 1963, 373 U.S. 683, 83 S.Ct. 1405, 10 L. Ed.2d 632.
The freedom of choice plan for the rural schools approved by the District Court has singularly failed. Only about 6% of the rural Negro school population in Mobile County chose to attend traditionally white schools and no white children chose to attend traditionally Negro schools. Green v. County School Board, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, makes it clear that freedom of choice was an impermissible desegregation plan here.
With respect to the construction of new facilities in the Howard and Toulminville sites, whether these schools should be built as presently proposed, abandoned, or the location changed will largely depend on what the student demands will be after new attendance zones are established to eliminate past segregation. Until new attendance zones are formulated in accordance with this order, the order of this court enjoining the construction of the Howard school and the Toulminville project will be continued in effect.
Actually, the formulation of appropriate decrees in the cases before the Court present few, if any, justiciable issues of constitutional import. Such issues have been largely resolved. The difficulties involved in developing a proper decree concern basically practical operational questions and matters of educational administration. H.E.W., with its staff of trained educational experts "with their day to day experience with thousands of school systems", is far better qualified to deal with such operational and administrative problems than the Courts presided over by Judges, who, as one Court has phrased it, "do not have sufficient competence — they are not educators or school administrators — to know the right questions, much less the right answers." United States v. Jefferson County Board of Education, 5th Cir.1966, 372 F.2d 836, 855; * * *.
The orders of the District Court are reversed and the cases are remanded to the District Court with the following instructions:
1. This case shall receive the highest priority.
2. The District Court shall forthwith request the Office of Education of the United States Department of Health, Education and Welfare to collaborate with the Board of School Commissioners of Mobile County in the preparation of a plan to fully and affirmatively desegregate all public schools in Mobile County, urban and rural, together with comprehensive recommendations for locating and designing new schools, and expanding and consolidating existing schools to assist in eradicating past discrimination and effecting desegregation. The District Court shall further require the School Board...
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