Ellis v. Board of Public Instruction of Orange Co., Fla., 29124.

• Citation: 423 F.2d 203
• Decision Date: 17 February 1970
• Docket Number: No. 29124.,29124.
• Parties: Evelyn R. ELLIS, a minor, et al., Plaintiffs-Appellants, v. The BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, FLORIDA, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

423 F.2d 203 (1970)

Evelyn R. ELLIS, a minor, et al., Plaintiffs-Appellants, v. The BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, FLORIDA, Defendant-Appellee.

No. 29124.

United States Court of Appeals, Fifth Circuit.

February 17, 1970.

Norris D. Woolfork, III, Orlanda, Fla., Jack Greenberg, Norman Chachkin, James M. Nabrit, III, Drew S. Days, III, New York City, for plaintiffs-appellants.

James W. Markel, Winter Park, Fla., Joel H. Sharp, Charles R. Fawsett, Orlando, Fla., for defendant-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

BELL, Circuit Judge:

The issue presented in this case is whether the Orange County Florida public school system is now unitary. The answer depends on a review of the posture of the system in light of two controlling decisions of the Supreme Court.¹ In Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, the mechanics of what must be done to bring about a unitary system were outlined. They were stated in terms of eliminating the racial identification of the schools in a dual system in six particulars: composition of student bodies, faculty, staff, transportation, extracurricular activities, and facilities. 391 U.S. at 435, 88 S.Ct. It was such dual systems, organized and operated by the states acting through local school boards and school officials, which were held unconstitutional in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), and which were ordered abolished in Brown v. Board of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II).

In Green the court spoke in terms of the whole system — of converting to a unitary, nonracial school system from a dual system. Then, in Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, the court pointed to the end to be achieved. The result, if a constitutionally acceptable system may be said to exist, must be that the school system no longer operates as a dual system based on race or color but as a "unitary school * * * system within which no person is to be effectively excluded from any school because of race or color." 396 U.S. at p. 20, 90 S.Ct. at p. 30, 24 L.Ed. 2d at p. 21.

Tested in this frame of reference, we conclude that the Orange County school system falls short of being a unitary system only in one respect: A part of the student desegregation plan. It follows that the motion for injunction pending appeal will be denied so as to afford the district court, along with the school board, an opportunity to complete the conversion from a dual to a unitary system. We take the case for final decision on the merits.² The judgment of the district court will be affirmed in part, reversed in part, and the case remanded to the district court with direction.

I. THE ORANGE COUNTY SCHOOL SYSTEM

This system covers the whole of Orange County including the urban areas of Orlanda, Winter Park, Winter Garden and Apopka, as well as rural areas embraced in a county having a land area of 910 square miles, or almost the size of Rhode Island (1,049 square miles). The system is comprised of 26 secondary schools, 66 elementary schools, 3 vocational schools and 3 special education schools, or a total of 98 separate schools. There are 68,012 white and 14,856 Negro students in the system, or a total of 82,868 students as of the present time (February 2, 1970). The racial ratio of students is approximately 82 per cent white -18 per cent Negro. There are a total of 3,563 teachers in the system, 2,913 white and 650 Negro, or much the same racial ratio as students.

On February 1, teachers were transferred so as to establish a substantial racial ratio in each school.³ As an example, Jones High School which has a student population of 1,136 Negro students and 121 white students, now has a faculty composed of 66 white teachers and 14 Negro teachers, 82.5 per cent white and 17.5 per cent Negro. The greatest percentage departure in the system (Orange Center Elementary School) from the system-wide faculty ratio would involve the change of three faculty positions to be exact. Attached as Appendix I is the present faculty population by school and race.

In our recent decision in Singleton v. Jackson Municipal Separate School District, 5 Cir., 1969, 419 F.2d 1211 (consolidated cases en banc) Nos. 26285 et al., dated December 1, 1969, in order to mandate compliance with the Green and Alexander v. Holmes County decisions, we required, not later than February 1, 1970, that the faculty and staff be desegregated on the following basis:

"Effective not later than February 1, 1970, the principals, teachers, teacher-aides and other staff who work directly with children at a school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for Negro students or white students. For the remainder of the 1969-70 school year the district shall assign the staff described above so that the ratio of Negro to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively, in the entire school system."

The Orange County system has complied with this directive as to faculty and staff. It has also agreed to comply in full with the Singleton provision as to continuing non-discriminatory practices in maintaining and replacing faculty and staff.

We also required that transportation systems, in those school districts having transportation systems, be designed to insure the transportation of all eligible pupils on a non-segregated and otherwise non-discriminatory basis. Orange County has been in compliance with this directive since 1964. In addition, a bi-racial committee will review the transportation system from time to time to insure non-discriminatory operation.⁴

It also appears that all extracurricular activities, including sports, are being operated on a non-segregated basis and this is likewise true as to facilities.

The requirement of Singleton that all school construction, school consolidation and site selection (including the location of any temporary classroom) in the system be done in a manner which will prevent the recurrence of the dual school structure by taking into consideration residential housing patterns has also been adopted by Orange County. The bi-racial committee will consider and review matters falling into this category. Fn. 4, supra.

These facts demonstrate full compliance with five of the six criteria of Green: Faculty, staff, transportation, extracurricular activities and facilities, leaving only the question of student body composition.

In order to facilitate the integration of student bodies, we required a majority to minority transfer policy in Singleton as follows:

"The school district shall permit a student attending a school in which his race is in the majority to choose to attend another school, where space is available, and where his race is in the minority."

This policy is designed to facilitate the integration of all-white and all-Negro student body schools. The Orange County system has exceeded this directive. A majority to minority transfer rule has been promulgated wherein any transferee is to be furnished free transportation, and all parents have been notified of this provision. Moreover, the transferee is given absolute priority for space and thus the transfer is not dependent on space being available. Again, under the plan of desegregation, the bi-racial committee will review the operation of this rule from time to time in the interest of fairness and effectiveness. Fn. 4, supra.

This leaves for discussion the question whether the Orange County plan of student desegregation is deficient to the extent that it prevents the systems from being unitary. It is urged that all student assignment is on a neighborhood school basis, subject, of course, to the majority to minority transfer rule. The defendant school officials wish to maintain such a basis of assignment.

It was not clear from the opinion and findings of the district court that the defendants were in fact maintaining a neighborhood school system as we would define such a system. A neighborhood school system cannot be a system where variances are allowed to permit children a choice of not attending the nearest school to his or her residence and thereby avoiding assignment to a formerly Negro or formerly white school as the case may be.

The sum of the present assignment system is that ten elementary schools and one junior high school remain with all-Negro student bodies. There is no high school with an all-Negro student body. It appears that 7,518 Negro students attend these eleven schools (ten elementary and one junior high) with the result that 51 per cent of the total of 14,856 Negro students are assigned to schools having all-Negro student bodies.⁵

In order to have full facts available, as to neighborhood assignment and the results obtained on a school to school basis, we required the district court, by order dated January 30, 1970, to file supplemental findings of fact within five days addressed to the specifics. They were promptly filed after a further hearing in the district court on short notice. These supplemental findings demonstrate that variances are now allowed from the neighborhood school assignment system with the result that some white students are attending schools located greater distances from their home than nearby schools where the student body is all Negro. As will be seen, this cannot be permitted in a school system operated on a neighborhood basis.

If not permitted in Orange County, eight of the eleven schools having all-Negro student bodies will have integrated student bodies. The percentage of Negro students attending schools having integrated student bodies will increase from 49 to 84 per cent. Moreover, the increase will be even greater if...