Allen v. Asheville City Board of Education, 14497.

• Decision Date: 02 November 1970
• Docket Number: No. 14497.,14497.
• Citation: 434 F.2d 902
• Parties: B. Lee ALLEN et al., Appellants, v. The ASHEVILLE CITY BOARD OF EDUCATION, a public body corporate, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

434 F.2d 902 (1970)

B. Lee ALLEN et al., Appellants, v. The ASHEVILLE CITY BOARD OF EDUCATION, a public body corporate, Appellee.

No. 14497.

United States Court of Appeals, Fourth Circuit.

Argued September 16, 1970.

Decided November 2, 1970.

James E. Ferguson, II, Charlotte, N. C. (J. LeVonne Chambers, and Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., Robert Harrell, Ruben J. Dailey, Asheville, N. C., Conrad O. Pearson, Durham, N. C., Jack Greenberg and James M. Nabrit, III, New York City, on brief), for appellants.

William C. Morris, Jr., Asheville, N. C. (Williams, Morris & Golding, Asheville, N. C., on brief), for appellee.

Before BOREMAN, BRYAN and CRAVEN, Circuit Judges.

CRAVEN, Circuit Judge:

This is another school case, but a distinctive one. In Asheville, North Carolina, there are neither black schools nor white schools, just schools. Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). The Asheville City Board of Education operates 12 schools, the characteristics of which are set out in the margin.¹ According to the Chairman of the Board, the purpose of the school board's plan, approved by the district court, was to "eliminate the all-white school" and to "eliminate all segregated schools and to balance the racial mix as nearly as possible." That the purpose has been fully achieved is obvious from an examination of the racial characteristics of each school set out below. The population ratio throughout the school system is 30 percent black and 70 percent white.

In Chambers v. Iredell County Board of Education, 9 Cir., 423 F.2d 613 (1970), we expressed doubt "that many school systems have achieved a higher degree of integration than presently prevails in Iredell County." Asheville tops Iredell. Doubtless Asheville is at or near the pinnacle of arithmetical desegregation in America.

I.

We do not yet know to what extent the inferior federal courts must examine the minutiae of integration in the schools. After the Supreme Court established "the fundamental principle that racial discrimination in public education is unconstitutional * * * ", Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the Court was silent for some eight years with respect to the application of the principle.² In Goss v. Board of Education of Knoxville, Tennessee, 373 U. S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963), the Court destroyed the minority to majority transfer privilege which had served as an escape hatch for the few white students who had been assigned to predominantly Negro schools. One year later the Court in Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), nullified the tuition grant scheme for frustrating school desegregation, and a year later in Bradley v. School Board of City of Richmond, Virginia, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965), the Court indicated that integration of teaching staffs is an essential step in the abolition of a dual school system. No other pronouncements were forthcoming from the Court for another three-year period until a trilogy of decisions announced in 1968 undertook to define "the thrust of Brown II" in light of contemporary circumstances. Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Raney v. Board of Education of Gould School District, Arkansas, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Board of Commissioners of Jackson, Tennessee, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). It was held that "school boards * * * operating state-compelled dual systems were * * * clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 437, 438, 88 S.Ct. 1689 (1968). Mere adoption of a freedom of choice plan of operation was ruled to be insufficient to meet this affirmative duty; rather, the school boards must "come forward with a plan that promises realistically to work, and promises realistically to work now," Id. at 439, 88 S.Ct. at 1694, meaning, apparently, that it must "work" by producing substantially integrated student bodies, faculties and programs in the schools. Although the Court rejected freedom of choice programs in all three of the school systems involved in the cases, the Court did not hold that choice plans are unconstitutional per se, but rather that such a plan is not acceptable if it has failed to eliminate the dual school system in fact, and if "there are reasonably available other ways * * * promising speedier and more effective conversion to a unitary, non-racial school system, * * *" Id. at 441, 88 S.Ct. at 1696.

The last word spoken by the Court is that in Northcross v. Board of Education of Memphis, Tennessee City Schools, 397 U.S. 232, 90 S.Ct. 891, 25 L.Ed.2d 246 (1970). In a concurring opinion the Chief Justice stated that a unitary school system had been defined by the Court to be "one `within which no person is to be effectively excluded from any school because of race or color'", citing Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). If that is the definition then the phrase in Green v. County School Board of New Kent County, Virginia, 391 U.S. 430, 88 S.Ct. 1689 (1968), "without a `white' school and a `Negro' school, but just schools" would appear to be exhortation.

With this background, it is plain to see that the Asheville City School Board has gone further down the road toward desegregation than any school board has ever been compelled to go, and probably much further than could be required. Although no one can say with any degree of certainty that there may not be some all-black and/or all-white schools within a unitary system, the Asheville Board has chosen that there be none. Although no one can say with certainty that any particular racial balance must be achieved, the Asheville Board has chosen parity. The questions characterized by the Chief Justice in Memphis as being unresolved have been answered by the Asheville City School Board favorably to integration.³

II.

Able counsel for plaintiffs are unable to fault the Board's plan other than a complaint with respect to the closing of two previously all-black schools and the impact of their closing, in the context of the rest of the plan, upon black students. For purposes of analysis plaintiffs formulate this complaint as presenting two questions to the Court, the first of which is whether the district court erred in approving the invidious selection of two all-black schools for closing.

We reject plaintiffs' contention that the school board has unfairly discriminated against black children in the selection of schools to be closed and that the district court should have compelled the closing of different schools in order to achieve the principle of Brown II.

In the first place, we think the mechanics of integration, where the purpose is obviously to implement the Brown II principle and effectively achieves that end, is ordinarily a matter within the discretion of school administrators. The question is not whether we might have selected different schools for extinction, nor even whether substantial evidence supports the Board's decision, but is instead whether the Board's decision is so plainly unfair that it clearly amounts to invidious discrimination in violation of the equal protection clause.

We are unable to perceive any invidious discrimination in the Board's plan. All students, black and white, attend one high school. All students, black and white, attend one 9th grade school. All students, black and white, attend two 7th and 8th grade schools, located on each side of the French Broad River, and without significant difference in racial balance. All students, black and white, attend one sixth grade school, with the insignificant exception of Newton School which continues to embrace the 6th grade and is itself in substantial racial balance.

South French Broad High School and Hill Street School were formerly all-black schools and are now being attended by all students, black and white, in the 9th and 6th grades respectively, except for the Newton School students previously noted. The white students coming to these formerly all-black schools have as far to travel as do the black pupils who now attend formerly all-white schools.

In order to accomplish racial balance the school board decided that it was necessary to close three schools, Livingston Street and Herring, formerly all-black, and Newton Elementary School, formerly all-white. After plaintiffs objected to the proposed plan on the basis of the closing of the two all-black schools and the failure to provide transportation,⁴ the Board modified the plan on December 29, 1969, to provide for the continued operation of the Newton Elementary School with the two black schools remaining closed.

The Board says that the criteria used by it for determining which schools to use and which to close were (a) achievement of racial balance; (b) elimination of excess classrooms; (c) the size and...