Augustus v. Board of Public Instruction, 19408.

Decision Date24 July 1962
Docket NumberNo. 19408.,19408.
PartiesKaren Renee AUGUSTUS, a Minor, by Charles A. Augustus, her father, and next friend, et al., Appellants, v. The BOARD OF PUBLIC INSTRUCTION OF ESCAMBIA COUNTY, FLORIDA, et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Charles F. Wilson, Pensacola, Fla., Constance Baker Motley, Jack Greenberg, and Derrick A. Bell, Jr., New York City, for appellants.

J. Edwin Holsberry, of Holsberry & Emmanuel, William Fisher, of Fisher & Hepner, Bert Lane, of Beggs, Lane, Daniel, Middlebrooks & Gaines, Richard H. Merritt, Pensacola, Fla., for appellees.

Before TUTTLE, Chief Judge, and RIVES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment modifying and approving what was proposed as a plan for the desegregation of the public schools operated under the supervision of The Board of Public Instruction of Escambia County, Florida. Pensacola is the County's largest city. The school population of the County totals approximately 37,000, of which about 28,521 are white and 8,557 Negro. In Pensacola the schools are divided into elementary, junior high, and senior high schools. There are two Negro schools in the County outside of Pensacola at which junior high school programs are offered, Carver located at Century and Ransom located at Cantonment. One technical high school in Pensacola has white pupils only enrolled. The Negro high schools, however, offer some technical programs. The Board has under its jurisdiction two junior colleges, one limited to white and the other to Negro students. It also operates adult education programs under a single director but with separate programs for white and for Negro adults.

Children of both races who live two miles or more from the schools to which they are assigned are eligible for transportation. Buses which pick up children of one race do not pick up those of the other race.

Negro teachers and principals are assigned to Negro schools, and white teachers and principals are assigned to white schools. Professional training courses are conducted separately for the two races. In some special committees that work on administration problems they meet together. There are thirty-six special teachers who work with retarded children, crippled children, those hard of hearing or who suffer from speech defects or sight impairment. No particular teachers are assigned for special work with intellectually gifted children. The evidence does not contain a breakdown of these special teachers as between Negroes and whites. There are three Negroes in supervisory capacities above the level of principal, one of whom supervises the Negro elementary schools, and the other two are visiting teachers working in the area of attendance and with problems that arise between schools and homes.

The curricula for the two races are the same in all the schools. The qualifications of teachers are the same, and the salaries paid Negro and white teachers who have similar qualifications are the same. General achievement tests are given in the fourth, sixth, and ninth grades, and a senior placement test in the twelfth grade. In relation to the individual grades, the white and Negro pupils measure up alike on an average.

Prior to the enactment of the Pupil Assignment Law,1 white and Negro children were assigned to separate schools on the basis of race, in compliance with Chapter 19355, Laws of Florida, Act of 1939, which provided:

"The schools for white children and the schools for negro children shall be conducted separately. No individual, body of individuals, corporation, or association shall conduct within this state any school of any grade — public, private, or parochial — wherein white persons and Negroes are instructed or boarded in the same building or taught in the same classes or at the same time by the same teachers."

Beginning August 22, 1956, one month after the Pupil Assignment Law was approved, the Board has each year adopted a resolution "incorporating that Law" for the succeeding year, and assigning each pupil back to the school which he previously attended. As a result of this blanket assignment, all Negro pupils were reassigned to Negro schools and all white pupils to white schools. Children new to the school system were assigned pursuant to application made by the parent for admission of the child to a school and subject to the criteria set forth in the Pupil Assignment Law. The school system was completely segregated in fact when the complaint in the present case was filed on February 1, 1960.

The complaint was filed on behalf of twelve minor Negro pupils by their parents and next friends against the Board of Public Instruction of Escambia County, Florida, and its members and the County Superintendent of Public Instruction. The district court sustained the motion of the defendants to strike from the complaint the allegations relating to the assignment of teachers, principals and other school personnel on the basis of race2 and the prayer for relief based on those allegations.3

Thereafter an answer was filed and a pre-trial conference held. Pursuant to that conference a hearing was set,

"* * * to determine the following issue of fact:
"(a) Whether or not the plaintiff children, or one of them, were, or have been or are being, denied admission to O. J. Semmes Elementary School of Escambia County due to race.
"(b) On this issue the parties agree to submit testimony of no more than three (3) witnesses to the side.
"(2) The Board of Public Instruction of Escambia County, Florida, will come prepared to advise the Court as to matters inherent in the development of a plan for the assignment of pupils in accordance with the Constitution of the United States and to advise the Court as to a specific date in which it can formally submit such plan to it for the consideration of the Court."

After the hearing and the arguments, the court ordered the testimony transcribed. On March 17, 1961, the court entered its order as follows:

"Based upon the depositions filed in this cause and upon the testimony presented at hearing on January 16, 1961, the Court finds that plaintiffs have established on this record that applications for admission to and transfer within the public schools of Escambia County, Florida, are acted upon by the Board of Public Instruction, on consideration of the race or color of the individual applicants in violation of the constitutional rights of said applicants as provided by the Supreme Court of the United States in Brown v. Board of Education of Topeka, 347 U.S. 483 74 S. Ct. 686, 98 L.Ed. 873, and subsequent cases.
"Therefore, in consideration of the foregoing, the Board of Public Instruction of Escambia County, Florida, is hereby granted a period of ninety days from the date of this order to submit to this Court for its consideration `a plan whereby the plaintiffs and members of the class represented by them are hereafter afforded a reasonable and conscious opportunity to apply for admission to\', or transfer to, `any schools for which they are eligible without regard to their race or color, and to have that choice fairly considered by enrolling authorities,\' in accordance with the United States Court of Appeals, Fifth Circuit, opinion in Gibson v. Board of Public Instruction, Dade County, Florida, 272 F.2d 763."

Pursuant to that order, the Board on June 14, 1961, submitted to the court a resolution adopted that day by the Board, as follows:

"1. That upon approval by The United States District Court for the Northern District of Florida, on October 1, 1961, or at such other time as may be directed by the Court, the following letter shall be mailed by the Superintendent of Public Instruction of Escambia County, Florida, to the parents or guardians of each child who, according to the school records, will attend the public schools of Escambia County, Florida, during the 1961-1962 school term, to-wit:
"Dear Parents or Guardians:
"This letter is being sent pursuant to Order of the United States District Court for the Northern District of Florida.
"In order to facilitate the fall opening of school, we have a procedure known as Spring Registration which takes place during the 4th week of April in 1962. At that time, a Pupil Assignment Card is completed at the school for each pupil enrolled.
"While it is the function of the School Administration to recommend assignments, a parent\'s preference of schools will be fairly considered. You are herewith advised that you are being afforded a reasonable and conscious opportunity to apply for admission to any school for which your child is eligible without regard to race or color and to have that choice fairly considered by the Board of Public Instruction. If you wish to exercise your right of preference, you must go to the school your child is attending at the time of the Spring Registration and sign a Parent School Preference Card during the period from 23rd through 27th of April, 1962.
"The Pupil Assignment Law provides for numerous criteria in the individual assignments of pupils, such as attendance areas, transportation facilities, uniform testing, available facilities, scholastic aptitude, and numerous other factors, except race.
"Should the School Administration recommend assignment of your child to a school other than the one you have requested, you will be notified by letter prior to the fall opening of school. In that event you have the right to request, in writing, an appearance before the Board of Public Instruction to have your preference further considered. If such a request for hearing is received, you will be notified of the time and place of the hearing.
"Application for Reassignment may be made at any time when a change of residence address or other material change in circumstance arises."

The plaintiffs objected to this plan, and filed a proposed plan which provided, first, for the reassignment of all pupils "on the basis of school capacity and...

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