Acree v. Drummond, Civ. A. No. 1179.

• Decision Date: 13 January 1972
• Docket Number: Civ. A. No. 1179.
• Citation: 336 F. Supp. 1275
• Parties: Robert L. ACREE et al., Plaintiffs, v. Ann Gunter DRUMMOND et al., Plaintiffs in Intervention, v. COUNTY BOARD OF EDUCATION OF RICHMOND COUNTY, GEORGIA, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

336 F. Supp. 1275

Robert L. ACREE et al., Plaintiffs, v. Ann Gunter DRUMMOND et al., Plaintiffs in Intervention, v. COUNTY BOARD OF EDUCATION OF RICHMOND COUNTY, GEORGIA, et al., Defendants.

Civ. A. No. 1179.

United States District Court, S. D. Georgia, Augusta Division.

January 13, 1972.

John H. Ruffin, Jr., Augusta, Ga., for plaintiffs.

O. Torbitt Ivey, Jr., Augusta, Ga., for intervenors.

Franklin H. Pierce, Augusta, Ga., for defendants.

ORDER

LAWRENCE, Chief Judge.

This case has been around since 1964. I came into it in the Fall of 1968.

At that time a freedom of choice plan was in effect in Richmond County schools. The total enrollment of white and black children in 1967-1968 was approximately 35,750 students. Of 12,250 Negro students in the school population 5.5% chose to attend previously all-white schools. With one exception no white student had exercised freedom of choice to attend a previously all-black school.

Judge Scarlett held hearings in the Spring of 1968 on a motion by plaintiffs to adjudge the School Board in contempt and for summary judgment. He denied such relief. On appeal the Fifth Circuit reversed that ruling. See 399 F.2d 151. The appellate court said:

". . . we think it quite appropriate to point to the fact on the undisputed statistics presented to us it is clear that, with respect to the Richmond County Board of Education, a plan of desegregating the schools, generally known as `the freedom of choice' plan, has not worked. It has not produced a unitary school system in which there are no longer Negro schools and white schools, generally known and recognized by all as such. Under these circumstances, it becomes the duty of the respondent Board, not only under the Supreme Court decisions above referred to, but under our Jefferson decree, to take additional important and effective steps."

After the ruling was handed down the Fifth Circuit Court of Appeals assigned the case to me. A hearing was held at Augusta in December, 1968. I said that freedom of choice was impermissible. It had not worked. The Supreme Court had made this clear in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 where the highest Court ruled that freedom of choice must be an effective device promising "meaningful and immediate progress toward disestablishing state-imposed segregation." The Court said that "The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now."

I did not rule out freedom of choice altogether but stated that I would "give consideration to a plan formulated by the Board which combines automatic assignment of pupils within designated geographical zones and a limited freedom of choice of schools." See Acree v. County Board of Education of Richmond County, Georgia, 294 F.Supp. 1034. I directed that a zone or attendance area system be put into effect for the 1969-1970 school year.

On June 16, 1969, a hearing on the Board's plan was held at Augusta. Plaintiffs objected to it in toto. On July 14, 1969, I approved the plan presented as a temporary expedient. See 301 F.Supp. 1285. I pointed out:

"The decisions of the Court of Appeals for the Fifth Circuit say that geographic zones are acceptable only if they tend to disestablish rather than reinforce the dual system of segregated schools. Davis v. Board of School Commissioners of Mobile County, 393 F.2d 690; United States of America v. Greenwood Municipal Separate School District, 406 F.2d 1086 (Feb. 4, 1969); Henry v. Clarksdale Municipal Separate School District, 409 F.2d 682. A school board must strive for promotion of desegregation and `conscious effort should be made to move boundary lines and change feeder patterns which tend to preserve segregation.' See 393 F.2d at 694."

I further stated:

"I think the wisest thing to do at this time, certainly the most expedient, is to approve temporarily the Board's new zone system and permit same to go into effect at the beginning of the coming (1969-70) school year. We will soon thereafter be able to judge its effects. Because of possible constitutional infirmities of the zoning plan it will not be permanent and this is not a final order."

My Order of July 16, 1969, directed the School Board and Superintendent to apply immediately to the Office of Education, H.E.W., for professional counselling and assistance looking to development of a satisfactory and legal plan at an early date.

Before such a plan could be developed and presented the plaintiffs filed an appeal to the Court of Appeals for the Fifth Circuit. This was in March, 1970. On July 15th of that year that Court remanded the case. See 443 F.2d 1360. The higher Court said:

"Having examined the record and the briefs of counsel in the above styled and numbered cause, this Court is left with a very definite and indelible impression—the Richmond County, Georgia public schools are racially identifiable, both as to the faculty and the composition of the respective student bodies. If there is any hope remaining for the Richmond County public schools to operate as a unitary system by the commencement of the new school year—prompt and immediate action is required."

In compliance with the Order by the Fifth Circuit a hearing was held and evidence introduced on July 30, 1970. On August 3rd I approved a plan recommended by Health, Education and Welfare which I modified to include additional pairing. It was essentially a neighborhood plan. The Fifth Circuit had gone along with something similar in the case of Ellis v. Board of Public Instruction of Orange County, Florida, 423 F.2d 203. I took that route. The plan in question was to be implemented at the 1970-1971 school year.

My Order of August 3, 1970, in the Acree case was appealed to the Fifth Circuit. Meanwhile, the "busing" and racial ratio cases, including Swann v. Charlotte-Mecklenburg Board of Education, had reached the Supreme Court of the United States. The Court of Appeals held its ruling in abeyance pending a decision in Swann and the other cases. It was handed down by the Supreme Court on April 20, 1971. See 402 U.S. 1-48, 91 S.Ct. 1267, 28 L.Ed.2d 554. That decision made it clear (I quote the syllabus in Swann) that:

(a) While the existence of a small number of one-race, or virtually one-race, schools does not in itself denote a system that still practices segregation by law, the court should scrutinize such schools and require the school authorities to satisfy the court that the racial composition does not result from present or past discriminatory action on their part.¹

(b) A student assignment plan is not acceptable merely because it appears to be neutral, for such a plan may fail to counteract the continuing effects of past school segregation. The pairing and grouping of noncontiguous zones is a permissible tool.

(c) The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not effectively dismantle the dual school system is supported by the record, and the remedial technique of requiring bus transportation as a tool of school desegregation was within that court's power to provide equitable relief.

On July 1, 1971, 443 F.2d 1360, the Court of Appeals for this Circuit disapproved the plan which this Court had approved in July, 1970, to be put into effect during the current school year. It remanded the case, stating:

"The judgment of the district court as it relates to student and faculty assignment is vacated and the case is remanded with direction that the district court required the school board forthwith to constitute and implement a student and faculty assignment plan that complies with the principles established in Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554; Carter v. West Feliciana Parish School Board, 5 Cir., 1970, 432 F.2d 875, and Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 419 F.2d 1211, insofar as they relate to the issues presented in this case."

The Court of Appeals has said that the prevailing system is a dual and an unconstitutional one. The racial statistics bear this out beyond all doubt. They reveal that in the elementary schools during the 1970-1971 year seventeen were predominantly white and nine predominantly black.² There were four all-black elementary schools and one all-white. In eleven elementary schools the minority attendance was 5% or less of the whole and in three other schools the minority ratio was 10% or less of the entire school population.³ On the secondary school level in 1970-1971, out of seventeen schools there was one all-black and two 99% black schools. There were six predominantly white schools in which the Negro ratio was less than 10% and two predominantly black schools with an attendance by white students of 6% or less. Two other secondary schools had a white ratio of 88% of the school population.

The current school year has produced inevitably (since the same plan is in effect) the same segregated picture. The projected attendance indicated that there are forty-one schools in which white students predominate. They have a total enrollment of 24,721 of whom 20,648 are white and 4,073 are black. In eighteen black schools in the system which have a total enrollment of 12,941 there are 360 white students (2.8%).

Following the decision of the Circuit Court of Appeals on July 1, 1971, I promptly ordered the Board to present a student and faculty assignment plan to this Court not later than July 21, 1971. I assigned a hearing on it for July 28th. Subsequently, upon oral request I extended to August 26th the time for presentation of such a plan. A hearing was held on that date.

To my amazement, the H.E.W. officials did not show up at the August 26, 1971, hearing. Without notice or excuse and at whose behest I do not know they did a disappearing act. The Board's...