Banks v. Muncie Community Schools
| Decision Date | 08 July 1970 |
| Docket Number | No. 18058.,18058. |
| Citation | 433 F.2d 292 |
| Parties | David BANKS b/n/f Rosemary Banks et al., Plaintiffs-Appellants, v. MUNCIE COMMUNITY SCHOOLS, a corporation, N. Durward Cory as school superintendent, Raymond E. Rothhaar as school board member, Jack Peckinpaugh as school board member, J. Wesley Wray as school board member, Mrs. Carolyn Kelly as school board member, and Samuel L. Reed as school board member, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James Manahan, Dewitt, Richards & Manahan, Indianapolis, Ind., for appellants.
Frank E. Gilkison, Muncie, Ind., R. Stanley Lawton, Indianapolis, Ind., John B. Beasley, Frank E. Gilkison, Jr., Muncie, Ind., Donald F. Elliott, Jr., Indianapolis, Ind., for defendants-appellees, White, Haymond, Pierce, Beasley & Gilkison, Muncie, Ind., Ice, Miller, Donadio & Ryan, Indianapolis, Ind., of counsel.
Before SWYGERT, Chief Judge, MAJOR, Senior Circuit Judge, and CAMPBELL, Senior District Judge.1
Plaintiffs brought this class action in the district court alleging racial discrimination and seeking a declaratory judgment and injunction prohibiting the defendants from: (1) constructing a third high school in Muncie, Indiana, which would allegedly upset the current racial balance in the two existing schools; (2) bussing elementary school pupils to schools not nearest their homes without a showing that such bussing was not conducted to maintain or promote racial or socio-economic segregation; and (3) permitting the use of Confederate symbols or other "racially or politically inflammable" symbols at Muncie Southside High School. The district court, after trial, held for the defendants and plaintiffs brought this appeal.
Muncie is located in the northcentral part of Indiana and has a population of approximately 67,000. The Black population is about eight and one-half per cent and about ninety per cent of the Negroes living in the Muncie area reside in one of two neighborhoods: the "Whitely Area" and the "Industry Area." Pursuant to a study conducted in 1959 and up-dated in 1968,2 the Muncie high schools are being transformed from the former single-school system to what will eventually be a three-high-school system. The original high school, Muncie Central, accommodated all students in grades nine through twelve until 1962, when the first of the three new schools, Muncie Southside, was constructed. Northwest High School is presently under construction and will be opened for the Fall 1970 term. Central will be replaced by 1972 by a new facility, Minnetristra, located near the present site.
Before Southside was constructed, the single high school in existence was, of course, perfectly integrated. After its construction, the district boundaries for Southside High School resulted in an equal percentage of Negroes — thirteen per cent — attending each school.
Plaintiffs allege that the selection of the site for the new Northwest High School was racially motivated,3 and, regardless of motivation, the site selected for Northwest High School results in and promotes de facto segregation of that facility. We think plaintiffs' argument fails on both points.
First, the record discloses substantial evidence to support the conclusion by the district court that the board was not racially motivated when it chose the site for the new school. Plaintiffs fail to offer evidence of a history of racial segregation and the undisputed facts demonstrate that in the past the Muncie high school system has enjoyed nearperfect integration. Although the site of Northwest High School is located in an all-White area, the school board and the superintendent have given their assurances that the district lines will be drawn to insure racial balance. In March 1968, before the institution of the present action, the board publicly stated its opposition to segregation and its continuing commitment to equal education without regard to race or economic status. The resolution also stated the merits of the basing of selection of schoolsites and districts primarily on geographic and population factors, and continued:
In an affidavit before the district court, the superintendent stated:
Rational attendance areas for the new Northwest High School, for the proposed new high school intended to be located on the Minnetrista site and for the present Southside High School can and will be drawn in keeping with the policies of the Muncie Community Schools as hereunder stated and in a manner that will not adversely effect the racial balance now existing in the Muncie Community high schools.
On cross-examination the superintendent stated that spot-districting or gerrymandering would be required to maintain racial integration at Northwest High School.4 Other evidence contradicting plaintiffs' allegation of unlawful racial motivation included examples of efforts made by the board, on the junior high school and elementary levels, to maintain as much integration as possible consistent with the neighborhood school concept.
In light of this record, plaintiffs' allegation that de facto segregation will result from the construction of Northwest High School is unfounded, or, at least, premature. The factor most strongly supporting this allegation is the location of the school in an all-White area. However, the evidence supports the conclusion that the site was not chosen to promote racial segregation, but rather that the decision was based on the Flesher study,5 which relied on nondiscriminatory reasons, in recommending the three-high-school plan.6
We hold, therefore, that the evidence presented at trial supports the finding of fact by the court below that, "The Plaintiffs have not established by the greater weight of the evidence that there now is or will be racial discrimination in the high school system."
We also agree with the district court in pointing out that future events may justify future judicial intervention. Thus, if it could be demonstrated that the policy of nonsubsidized transportation for high school students has the effect of precluding attendance at Northwest High School by a sufficient percentage of Black students in the new district, affirmative relief might be appropriate. Specifically, the present plan to assign Black students who live in the Whitely Area to Northwest High School without providing transportation might, in effect, be the same as a token "freedom of choice" or "free transfer" plan as was condemned in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); and Monroe v. Board of Commissioners of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). See United States v. School District 151 of Cook County, Illinois, supra, 404 F.2d at 1135.
Although we appreciate plaintiffs' present position in suspecting that the board's decision was racially motivated, their suspicions have not risen to the level of proof required by the law to justify judicial intervention at this time.7 As contrasted with cases such as United States v. School District 151, supra, plaintiffs did not demonstrate by objective proof that action by the school board was taken primarily for the purpose of furthering segregation.
The instant case involves an attempt to halt possible future segregation at the incipient stages, and thereby prevent irreparable harm to the children attending the schools in question. The thrust of plaintiffs' complaint is that integration was easy or even inevitable with one or two schools, but that future expansion of the high school system will require a genuine commitment by the local school authorities to maintain integration. Although the school board has no constitutional duty to select school sites or make other educational decisions for "the sole purpose of relieving racial imbalance which it did not cause," Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), "it does not follow from the absence of duty to achieve racial balance that a Board may deliberately select sites to achieve racial segregation." United States v. School District 151, supra, 404 F.2d at 1133. The absence of proof of such unlawful motivation, compelled by the prematurity of the litigation, will not preclude the plaintiffs, or others similarly situated, from bringing an action if such proof becomes available in the future. As the First Circuit stated in Springfield School Commission v. Barksdale, 348 F. 2d 261, 265-266 (1st Cir. 1965):
Even though we believe no order to be presently required, the question arises whether we should nonetheless retain jurisdiction against future eventualities. * * * If defendants permanently disregard their previously announced purpose to reduce imbalance so far as educationally feasible, a new action may be brought to...
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