Allen v. Board of Public Instruction of Broward Co., Fla., 30032.
| Decision Date | 24 September 1970 |
| Docket Number | No. 30032.,30032. |
| Citation | 432 F.2d 362 |
| Parties | Frederick ALLEN and Timothy Allen, minors, etc., et al., Plaintiffs-Appellants-Cross Appellees, v. BOARD OF PUBLIC INSTRUCTION OF BROWARD COUNTY, FLORIDA, etc., et al., Defendants-Appellees, Blanche Ely High School Parent Teachers Association and Irene S. Clarke, Defendants-Appellees-Cross Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. George Allen, Fort Lauderdale, Fla., Jack Greenberg, Norman J. Chachkin, Drew S. Days, III., New York City, N. Y., for plaintiffs-appellants.
Thomas A. Thomas, Hollywood, Fla., Arthur S. Seppi, Fort Lauderdale, Fla., for other interested parties.
W. M. O'Bryan, Fleming, O'Bryan & Fleming, Mendez, Shaw, Marko & Stephany, Fort Lauderdale, Fla., for defendants-appellees.
John R. Young, Hamilton, James, Merkle & Young, West Palm Beach, Fla., for cross-appellants Blanche Ely Parent Teachers Assn. and Irene S. Clark.
Before GEWIN, GOLDBERG and DYER, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied September 24, 1970.
We consider here the plan of desegregation ordered for Broward County, Florida, by the district court.1 The Broward County School System is a county-wide system serving a largely urban and rapidly growing area of the Florida "Gold Coast." During the 1969-70 school year the Board of Public Instruction of Broward County operated 115 schools to educate more than 112,000 students, approximately 77 percent white and 23 percent black. Under the Board's projections for the 1970-71 school year, 116 schools will educate more than 118,000 students, approximately 78 percent white and 22 percent black. A substantial percentage of the students in the Broward County system are transported to and from school by bus.
The present desegregation suit was filed by Negro plaintiffs on January 9, 1970. The first hearing to consider this action was held on January 16, 1970. As a result of facts adduced at that hearing the district court found that the Board was operating a dual school system. The Board was ordered to file by February 16, 1970, "a comprehensive plan to establish a unitary school system" in Broward County. The court suggested that the Board, in formulating its plan, consult with the Florida School Desegregation Consulting Center at the University of Miami.
A plan was duly submitted, objections were filed with the court, and a hearing was held on March 3, 1970. At that hearing the court expressed the view that it needed more information to measure the plan against constitutional standards. The Board was directed to "consult and cooperate with and accept the aid of" the Florida School Desegregation Consulting Center in revising its plan "with special emphasis on eliminating the remaining all-black elementary schools." The Center was requested to make a report with recommendations "designed to assure a desegregation plan which meets the constitutional standard of a unitary system."
Pursuant to the court's directives, the Board filed an amended plan and the Center submitted its recommendations. The principal difference between the two proposals was in their approach to the problem of desegregating all-black and overwhelmingly black elementary schools. The Center suggested use of school pairing as a means of desegregating these elementary schools, but the Board's plan rejected pairing. The plan submitted by the Board merely amended some of the discretionary zone lines which had previously been proposed.
The court held a hearing on April 3, 1970, to consider the Board plan and the Center's proposal. At that hearing the court heard the views of the Board, the Center, the plaintiffs, and various parties who had been allowed to intervene. On April 30, 1970, the court entered its final order. With regard to the hotly disputed issue of student desegregation in the elementary schools, the court's order rejected the Center's approach and accepted the boundaries of school attendance zones as proposed in the Board's amended plan. From that order plaintiffs have perfected this appeal. An appeal has also been taken by intervenors Blanche Ely High School Parent Teachers Association and Irene S. Clark.
With respect to faculty, staff, transportation, extracurricular activities, and facilities, the desegregation order entered by the district court on April 30, 1970, is unexceptional and is no challenged by any of the parties. Except for the problem noted in the next paragraph of this opinion, the order is in compliance with all of our Singleton2 requirements, including the requirement that faculty and staff members be assigned in such a manner that the ratio of whites to blacks in each school is substantially the same as the ratio of whites to blacks in the entire system.3 The order further provides for a bi-racial committee of twelve members — six blacks and six whites — to be appointed by the court to make recommendations to the Board with respect to such matters as "the operation of the majority to minority pupil transfer rule, the transportation system, and selection of school sites." The record indicates that this committee has been appointed, and it is apparently functioning now.
Although the parties have not put it in issue, we note one deficiency in the district court's order. This deficiency has to do with the majority-to-minority transfer provision. The order approves the following transfer rule:
This provision is not entirely in accord with our recent decisions. See Hightower v. West, 5 Cir. 1970, 430 F.2d 552; Carr v. Montgomery County Board of Education, 5 Cir. 1970, 429 F.2d 382; Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1970, 430 F.2d 883; Singleton v. Jackson Municipal Separate School District, 5 Cir. 1970, 426 F. 2d 1364. On remand the district court's order must be modified to make it clear that (1) any pupil shall have the right to transfer from a school at which his race is in the majority to any school (not just the next nearest school) at which his race is in the minority and (2) transferees shall be given priority for space.4
STUDENT DESEGREGATION: SECONDARY SCHOOLS
Student assignment to secondary schools — high schools, junior high schools, and middle schools — presents no problem on this appeal. The plaintiffs are not unhappy with the court-approved plan insofar as it relates to pupil assignment to secondary schools, and our examination of this aspect of the plan does not disclose any deficiencies to be remedied.
The intervenors, however, raise an issue with regard to the closing of Blanche Ely High School. Blanche Ely, located in a black neighborhood in Pompano Beach, has been a junior-senior high school. During the 1969-70 school year its student enrollment was 100 percent black. For the 1970-71 school year the court approved the Board's proposal to close the school as a high school facility, send its students elsewhere, and use the building to house the Coleman Elementary School. Intervenors object to the closing of Blanche Ely High School, arguing (1) that the community which has been served by the school will suffer if the school ceases to exist and (2) that the district court was erroneous in finding that the Blanche Ely physical plant is not an adequate secondary school facility.
We are not persuaded that we should order the district court to require the reopening of Blanche Ely as a high school. There is nothing in the record to indicate that the Board's decision to close Blanche Ely was based on anything other than sound educational criteria. Moreover, the record amply supports the district court's finding that the Blanche Ely facility is not an adequate physical facility for conducting a high school program. In the light of these factors we find no merit in the intervenors' objection to the closing of the school.
The real bone of contention in this case is student assignment at the elementary school level. As we have noted, the Florida School Desegregation Consulting Center, whose recommendations were generally endorsed by the plaintiffs, recommended the use of the pairing/clustering technique to desegregate all-black and virtually all-black schools, but the school board strongly opposed the use of this technique at the elementary level. The district court agreed with the Board's position vis-a-vis pairing, requiring only that the Board redraw some of its discretionary zone lines. The results achieved under the amended zoning plan approved by the district court are decidedly unimpressive. Of the 83 elementary schools projected for the 1970-71 school year, 13 are to have an enrollment that is 90 percent or more black. The projected student enrollment for these schools is as follows:
Percentage
School and Location Black White Total Black
Carver Ranches
(in South Area) 663 37 700 95%
C. A. Moore
(in South Area) 598 0 598 100%
Broward Estates
(in Central Area) 779 78 857 91%
Dillard
(in Central Area) 982 3 985 99%
Larkdale
(in Central Area) 1054 0 1054 100%
Lincoln Park
(in Central Area) 892 0 892 100%
Rock Island
(in Central Area) 642 50 692 93%
Sabal Palm
(in Central Area) 632 25...To continue reading
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Carr v. Montgomery County Board of Education, 74-2633
...the School Board's plan for Montgomery as the achievement of a unitary system. 9 As we concluded in Allen v. Board of Public Instruc. of Broward County, 5 Cir.1970, 432 F.2d 362, "In the conversion from dual school systems based on race to unitary school systems, the continued existence of ......
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Carr v. Montgomery County Board of Education, Civ. A. No. 2072-N.
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