Brown v. BOARD OF EDUCATION OF CITY OF BESSEMER, ALA., 71-2892.

• Decision Date: 11 July 1972
• Docket Number: No. 71-2892.,71-2892.
• Parties: Doris Elaine BROWN et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF BESSEMER, ALABAMA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 382 (1972)

Doris Elaine BROWN et al., Plaintiffs-Appellants, v. The BOARD OF EDUCATION OF the CITY OF BESSEMER, ALABAMA, et al., Defendants-Appellees.

No. 71-2892.

United States Court of Appeals, Fifth Circuit.

July 11, 1972.

David H. Hood, Jr., Bessemer, Ala., Oscar W. Adams, Jr., U. W. Clemon, Birmingham, Ala., Jack Greenberg, James M. Nabrit, III, Norman Amaker, Norman J. Chachkin, New York City, Theodore Garrish, David L. Norman, Asst. Atty. Gen., Brian K. Landsberg, Thomas M. Keeling, Michael A. Sterlacci, Dept. of Justice, Washington, D. C., for plaintiffs-appellants.

J. Howard McEniry, Bessemer Ala., for defendants-appellees.

Before THORNBERRY, CLARK and INGRAHAM, Circuit Judges.

BY THE COURT:

We are again faced with the school desegregation problems of the City of Bessemer, Alabama. On July 16, 1971, 5 Cir., 446 F.2d 75, we vacated and remanded an appeal in this case to the district court for reconsideration in light of the Supreme Court's decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). On remand the district court ordered the defendant Board to prepare a plan showing geographical zoning proposals and projected enrollment by race for all schools involved. The Board's plan was filed and after an informal conference the plan, as it related to secondary schools, was modified by the court in accordance with recommendations of the intervenor United States. The Board objected to the modification, mainly because it would be unable to transport students to the schools in their zones, and it thus filed a motion to amend the plan announced by the court from the bench.

The court amended its decree of August 30, 1971, and included the following provision:

"(d) In the event by September 10, 1971, transportation is not reasonably available at moderate cost to a student assigned to a high school facility which exceeds by at least 1.5 miles the distance from his place of residence to the other high school facility operated by defendant Board of Education, that student shall be allowed upon request to the Board the right to attend the high school which is nearer to his residence. Distances to the two high schools from a student\'s place of residence shall be measured by road distance along paved roads which are in existence at the date of this order. In determining availability of transportation consideration shall be given to transportation as may hereafter be provided by action of the City Council of the City of Bessemer, by the City Board of Education of the City of Bessemer, by local civic or church groups, or other voluntary associations, or by groups of parents or persons interested in assisting in transportation, or by extension of routes of public bus services within the City of Bessemer. No requirement is made under this order directing that the City of Bessemer or the defendant Board of Education provide such transportation (this primarily due to the fact that neither governmental agency has in the past used busing to foster segregation of schools), but at the same time neither the City nor the City Board of Education shall in any wise restrict or discourage the providing of transportation through other sources and, for example, shall not refuse to give their consent to any application for extended bus routes from public bus facilities."

Plaintiffs appeal from the court's decree, asserting that the court erred by failing to require the Board to provide transportation for students who live considerable distances from the schools to which they are assigned in contravention of an otherwise efficacious desegregation plan. Plaintiffs also challenge the court's failure to require that transportation be provided for majority to minority transferees.

The School Board on the other hand urges that a school system which has never operated a transportation system, and that did not promote a dual system by use of buses, cannot be required to furnish transportation to meet the constitutional requirement of a unitary school system.

This court has recently spoken to the precise issue raised by this appeal. In United States v. Greenwood Municipal Separate School District, 460 F.2d 1205 (5th Cir., 1972), plaintiffs appealed from a district court refusal to order that transportation be provided to elementary students who were placed in...