Ross v. Eckels, 30080.

• Decision Date: 01 March 1971
• Docket Number: No. 30080.,30080.
• Parties: Delores ROSS et al., Plaintiffs-Appellants, United States of America, Plaintiff-Intervenor-Appellant, v. Robert Y. ECKELS, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.2d 1140 (1970)

Delores ROSS et al., Plaintiffs-Appellants, United States of America, Plaintiff-Intervenor-Appellant, v. Robert Y. ECKELS, etc., et al., Defendants-Appellees.

No. 30080.

United States Court of Appeals, Fifth Circuit.

August 25, 1970.

Stay Denied March 1, 1971.

Brian K. Landsberg, Civil Rights Div., Dept. of Justice, Washington, D. C., Jack Greenberg, James M. Nabrit, III, Conrad K. Harper, Norman J. Chachkin, New York City, Weldon H. Berry, Houston, Tex., for appellants.

Anthony J. P. Farris, U. S. Atty., Jerris Leonard, Asst. Atty. Gen., David L. Norman, Deputy Asst. Atty. Gen., John M. Rosenberg, David D. Gregory, Bernard H. Shapiro, Joseph B. Scott, Attys., U. S. Dept. of Justice, Washington, D. C., for the United States.

Ernest H. Cannon, W. James Kronzer, Houston, Tex., for appellees.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

Stay Denied March 1, 1971. See 91 S.Ct. 924.

PER CURIAM:

This school desegregation case concerns the proper method for unitizing the composition of student bodies in the schools operated by the Houston Independent School District.¹

DESCRIPTION

The Houston Independent School District is the sixth largest school district in the United States in terms of pupil enrollment, having approximately 235,000 students. The district meanders along, inside and outside the city limits of Houston, Texas. It contains 230 schools located on 225 campuses. With minor special exceptions, each school contains one of three basic grade structures — elementary, encompassing Kindergarten or 1st grade through 6th grade — junior high, containing grades 7 through 9 — or senior high, composed of grades 10 through 12. During the 1969-70 school year the district employed 8,994 teachers, 2,882 of whom were Negroes. The student demographic information developed in this record is less than crystal clear, but the latest figures submitted by the school district, which should be the most reliable index, show a pupil enrollment of 71,961 Negroes, 157,031 whites, and 6,888 pupils whose race is unknown. The United States estimates that there are approximately 36,000 students in the system who are Spanish surnamed Americans who are statistically included within the white enumeration figures.

Typical of urban school districts nationwide, extensive patterns of racially segregated housing exist within this district. The areas of all or predominately Negro residences extend from the center of the city in a southerly direction to the county line, from the center of the city northeast to the district boundary, and in an area along and west of I-45 North. With the exception on one relatively small area in the far western portion of the district, the west half, the north central and the southeast portions of the district contain all or substantially all white residents. The only figures reflecting residential patterns for Spanish surnamed Americans are the reporting forms covering the Fall 1969 school survey required under Title VI of the Civil Rights Act of 1964. These reports show that the heaviest residential concentrations of this ethnic group are located in the north central and northeastern portion of the city. In most instances these neighborhoods are adjacent to neighborhoods which are inhabited predominantly by Negroes.

Almost the entirety of the Spring Branch and the Northeast Houston School Districts are located within the city limits of the City of Houston but outside of the district limits of the Houston Independent School District. Substantial portions of the Cypress-Fair-banks and Pasadena School Districts are similarly located within the city but outside the school district. The district and the city are bordered by four other independent school districts — Alief, Kathy, Aldine and Galena Park; and the district, city and county adjoin school districts in Ft. Bend and Brazoria Counties. In all, there are 22 separate school districts in Harris County. The City and Houston School District limits include some separately incorporated municipalities which are served by the District.²

JUDICIAL HISTORY

The district has been in litigation on matters involving racial integration at various times since December 26, 1956. Prior to court interdiction the district operated a traditional dual school system with both student bodies and faculties segregated by race into all-Negro and all-white components by means of overlapping racially segregated attendance zones. In 1960 the district court ordered implementation of a grade per year transfer plan which allowed voluntary transfers to the school maintained for the opposite race within the student's attendance zone. The desegregation process was originally scheduled to be completed in 1972.³ In 1962 this Court reversed a district court order permitting a limited exception to the grade per year plan, which required elementary school children to attend the same school attended by their older brothers or sisters.⁴ Although the timetable of additional grade coverage of the voluntary transfer plan was later accelerated, dual geographic attendance zones remained in effect under Court orders through the end of the 1966-67 school year.⁵

In 1966 a complaint was filed seeking to enjoin certain aspects of a 59,000,000 dollar school construction program on the ground that they were racially discriminatory. The complaint was dismissed and the dismissal was affirmed by this Court.⁶

On June 2, 1967, the United States was granted leave to intervene and on September 5, 1967 he district court promulgated a Jefferson County⁷ type decree. Through the 1969-70 school year the district continued to be operated under this court order on a systemwide freedom of choice plan.

PAST RESULTS

The figures as of December 1969 showed that out of 170 elementary schools in the system, 95 had student bodies with 10% or fewer Negro students while 44 schools had student bodies with 10% or fewer white students. At the junior high level school level 19 of the system's 36 schools had student bodies with 10% or fewer Negro students and 11 schools had student bodies with 10% or fewer white students. Out of the 24 high schools in the district 12 had student bodies with 10% or fewer Negro students and 7 had student bodies with fewer than 10% white students. 77% of the Negro students in the entire system still attended schools that had student bodies composed of more than 90% Negroes.

PROPOSALS OF THE PARTIES

Seven plans to govern student body composition were proposed to the district court.

The Plaintiffs' Plan

The following description is taken verbatim from the district court's opinion, which the parties agree is a fair summary.

"Plaintiffs\' plan is based upon the premise that the law requires that every school in the District shall have the same ratio of white to Negro students as prevails throughout the District. For practical purposes plaintiffs\' counsel concedes that some margin must be allowed, and suggests that this margin should be no more than 10% above or below. Thus every school would have a ratio of white to Negro students ranging from 57% white — 43% Negro to 77% white — 23% Negro.

"Further recognizing the realities of the situation, however, the computerized plan of plaintiffs does not go this far, by reason of the admittedly prohibitive costs involved. The plan as submitted would result in no school having a student body in excess of 50% Negro. In light of the geographical size of the District and the residential patterns which prevail, to accomplish this result would require the daily busing of an estimated 44,000 students, approximately 34,000 white and 10,000 Negro. The plan is designed to restrict the maximum haul to a distance of 10 miles from the home of any student, and as not to overtax the capacity of any given school."

The Stolee Plan

This plan was developed at the request of the United States by Dr. Michael J. Stolee, Director of the Florida School Desegregation Consulting Center. Because of the limitations of time and the unavailability of some pertinent facts, Dr. Stolee's ultimate recommendations were incomplete in several respects. The plan was presented more to demonstrate an approach to solving the problem rather than as a comprehensive solution. The plan included a combination of the principles of zoning, pairing and bussing. The zones were gerrymandered and pairing and bussing were utilized to increase the incidence of racial integration.

Zoning was used exclusively in senior high schools. The result was to eliminate the existing all-Negro high schools and all but one all-white high school. Except for this school, the white high school populations varied from 30 to 60%. Zoning was used with respect to junior high schools except for two which would be paired. The result was to eliminate every all-Negro junior high, but 3 all-white junior high facilities would remain. The white population of the remaining schools would vary from 50 to 70%. At the elementary level, 27 schools were to be zoned and 51 were to be paired. This required extensive bussing which was to be accomplished by having the children walk to the school nearest their home to board busses to the school they would ultimately attend. Dr. Stolee's plan did not detail how to achieve the elimination of 26 predominantly Negro elementary schools and a number of all and predominantly white elementary schools but merely made the general recommendation that additional district bussing capacity be acquired and utilized to eliminate this condition. The number of students to be bussed, transportation distances and expenses to the district do not appear in the evidence. Dr. Stolee also recommended that predominantly white Cage and predominantly Negro J. W. Jones elementary schools be closed.

The TEDTAC Plan

The Texas Educational Desegregation Technical Assistance Center (TEDTAC) is an agency funded by the Department of Health, Education and Welfare located at the University of...