United States v. BOARD OF EDUCATION, ISD NO. 1, TC, O.

• Decision Date: 08 September 1970
• Docket Number: No. 338-69.,338-69.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. BOARD OF EDUCATION, INDEPENDENT SCHOOL DISTRICT NO. 1, TULSA COUNTY, OKLAHOMA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

429 F.2d 1253 (1970)

UNITED STATES of America, Plaintiff-Appellant, v. BOARD OF EDUCATION, INDEPENDENT SCHOOL DISTRICT NO. 1, TULSA COUNTY, OKLAHOMA, et al., Defendants-Appellees.

No. 338-69.

United States Court of Appeals, Tenth Circuit.

July 28, 1970.

Rehearing Denied September 8, 1970.

J. Harold Flannery, Jr., Washington, D. C. (Jerris Leonard, Asst. Atty. Gen., David L. Norman, Deputy Asst. Atty. Gen., Lawrence McSoud, U. S. Atty., John A. Bleveans, Charles Quaintance, and Bernard Shapiro, U. S. Dept. of Justice, Washington, D. C., were with him on the brief), for appellant.

C. H. Rosenstein, Tulsa, Okl. (David L. Fist, Tulsa, Okl., was with him on the brief), for appellees.

Before LEWIS, Chief Judge, and HILL and SETH, Circuit Judges.

LEWIS, Chief Judge.

By this appeal, the United States challenges the dismissal of its complaint by the United States District Court for the Northern District of Oklahoma. The suit was initiated pursuant to section 407 of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6¹ and the complaint alleged that the appellee School District had engaged in racial discrimination in its operation of the Tulsa schools, violative of the fourteenth amendment. The School District's formulation of attendance zones, administration of transfers, construction of new schools and assignment of faculty were cited as the specific elements of this discrimination. Accordingly, the appellant sought the imposition of a constitutionally acceptable level of integration of the white and Negro races within the Tulsa public schools. After trial, the district court denied that relief and dismissed the complaint, holding that none of the specific practices mentioned above was unconstitutional, either in conception or as administered. The overall policy upon which these practices were premised, the "neighborhood school attendance plan," was similarly upheld even though it tended to perpetuate a high degree of racial duality within the school system. The district court conceded that clear instances of what it termed "racial unbalance" were extant at the time suit was filed. The court held that such racial unbalance was constitutionally excused in this case since it resulted from the impartial, good faith administration of a neighborhood school plan.

This decision and its supportive reasoning are inconsistent with current constitutional standards and gravely inapposite to the spirit of the cases in which these standards have been enunciated.² The judgment is therefore reversed and the cause remanded with orders to reinitiate proceedings consistent with the views expressed herein.

In order to approach the issues raised by this appeal, we must first outline the factual complex from which those issues evolved. The public school system operated by the appellees is comprised of 9 high schools, 21 junior high schools, and 75 elementary schools. During the 1968-69 school year, the total enrollment was 79,497; 87.6% of these students were white and 12.4% Negro. Of the 3,298 teachers within the school system, 88.1% were white and 11.9% Negro. As indicated above, the allocation of students and teachers among the schools was based on the "neighborhood school attendance plan." The hypothesis of this plan is that

boundary lines for a school attendance district * * * are established to embrace as nearly as possible the area surrounding the school and taking into consideration such factors as the school capacity, number of students in the area, natural barriers to the movement of students from home to school and potential of an increase or decrease in student population in the future. (District Court Mem.Op., R. 735-36).

Implementation of this policy within the context of the generalized residential segregation which exists in Tulsa has effected a nearly equivalent level of segregation in the public schools. And none of the specific practices complained of by appellant has served to ameliorate this basic condition. The magnitude of racial separation that continues to exist in the Tulsa public school system is reflected in all of the component policies and practices detailed below.

Attendance Zones

The Negro population of Tulsa is concentrated in a compact, well-defined area of north Tulsa. The enforcement of racially restrictive covenants by the Oklahoma courts prior to 1954 and continued discriminatory housing practices constitute a major cause of this concentrated racial isolation.³ Washington High School, Carver Junior High School, Dunbar, Bunche and Johnson elementary schools were constructed within this area prior to 1955. During the 1955-56 school year, a common attendance zone was drawn around the junior and senior high schools which encompassed the attendance zones of all of the Negro elementary schools that had been established under the former system of explicit, legally mandated segregation. This zone included none of the attendance areas of the white schools established under the former system. The only Negro school not included in this all-black feeder system was South Haven Elementary located in southwest Tulsa which served a smaller but similarly constrained Negro population.⁴

Although some modifications have been made in the attendance zones that were superimposed on the north Tulsa Negro neighborhood, the schools within this area remain nearly all black. No white student attended any of the formerly separate Negro schools until 1966 when one white student was enrolled at Johnson Elementary School.

The fixing of attendance zones to correspond with racial residential patterns has rendered the "neighborhood school plan," as administered in these areas, highly inconsistent in many cases with the stated goals of that plan. For example, under the present policy of the School District, zones are to be shaped so as "to embrace as nearly as possible the area surrounding the school." (Dist.Ct.Mem.Op., supra, p. 7). Until 1960, Negro students who lived approximately one and a half miles from the all-white Monroe Junior High attended school at all-Negro Carver Junior High, approximately four miles distance from the same area. This situation terminated not because of the alteration of the attendance zones, but because of the construction of a new junior high school, Marian Anderson, within the Negro zone. No white student has ever attended Anderson Junior High. Until the 1967-68 school year, no white student attended Johnson Elementary.⁵ White students living less than three blocks from Johnson were included in the all-white Osage Elementary attendance zone. Osage was seven blocks from the same area.

Another aim of the neighborhood plan is to avoid "natural barriers to the movement of students from home to school." (Mem.Op., supra). However, railroad tracks bisected the attendance zones of six of the Negro schools. Negro children residing in the Johnson Elementary zone were required to cross two sets of railroad tracks in traveling the one mile between this area of the attendance zone and the school. In 1967 a part of this area was incorporated in the Lowell Elementary zone. The Lowell School was only two blocks from this area. The Johnson zone is still transected by one set of railroad tracks.

Construction of New Schools

Due to their location and constructed capacities, all of the schools built in Tulsa after 1955 opened with student bodies of one race.⁶ Douglas Elementary, Woods Elementary and Anderson Junior High were constructed within the Washington High School attendance zone. The student bodies of these schools have been virtually all black since they were opened. Six new schools⁷ were built in the area surrounding the Washington attendance zone and opened with nearly all-white student bodies. Five new elementary schools relatively distant from the Washington zone have been constructed since 1965 and each opened with an all-white student body and faculty. All of the schools built in the Washington attendance zone have been named in honor of prominent Negros. All of the schools surrounding this area have been named after whites.

As found by the court below, one of the stated goals implicit in the neighborhood school plan was to draw attendance zones so as to make optimum use of school capacities. McLain Senior High School was constructed north of Washington High School and opened in 1959 with a boundary line abutting the north and northwest edges of the Washington attendance zone. McLain was built with a capacity of 1,290 students and opened with an all-white student body of 610. At the same time, Washington High School was 20% over-enrolled. Rather than adjusting the McLain-Washington boundary to alleviate this over-enrollment, the School District constructed an addition to Washington which opened in 1959 with room for the excess students, all of them Negro. In 1959, Lindsey Elementary was constructed four blocks from the boundary of the all-Negro Bunche attendance zone. The student capacity of the Lindsey School was less than one-half that of the average newly constructed elementary school in Tulsa. At that time the Bunche facilities were being used by 1,318 Negro students, when its capacity was 660. Lindsey opened with three Negro students. Monroe Junior High, built a mile and a half from the northern edge of the Carver Junior High attendance zone, opened with an all-white student body of less than the capacity for which it was built (1,020 capacity, enrollment 959). During the same school year, 1,016 Negro students attended Carver which had a capacity of 840 students. To relieve the over-enrollment at Carver, Anderson Junior High was built in 1960 — its attendance zone carved entirely out of the Carver zone and its opening student body all black.

Transfers

Until 1965 the school board allowed "minority to majority" transfers whereby a student whose race constituted a minority in the school he would normally attend could transfer to a school where his race was in the majority. This policy...