Bell v. West Point Municipal Separate School District, 30175.

• Decision Date: 08 July 1971
• Docket Number: No. 30175.,30175.
• Parties: Hugh Larry BELL et al., Plaintiffs-Appellants, v. WEST POINT MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 1362 (1971)

Hugh Larry BELL et al., Plaintiffs-Appellants, v. WEST POINT MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.

No. 30175.

United States Court of Appeals, Fifth Circuit.

July 8, 1971.

Fred L. Banks, Jr., Melvyn R. Leventhal, Reuben V. Anderson and John A. Nichols, Jackson, Miss., Jonathan Shapiro, Jack Greenberg, James Nabrit, III, Norman Chachkin, New York City, for plaintiffs-appellants.

Thomas J. Tubb, West Point, Miss., for defendants-appellees.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

In this school desegregation case the issue is whether the Board of Trustees for the West Point, Mississippi School District may validly close two schools as part of a plan to establish a unitary school system within the requirements of Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, and Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed. 2d 19.

By an order entered on May 8, 1970, the District court refused to alter West Point's desegregation plan which had been in operation since the court's previous order of January 21, 1970. The plan assigns all students in the district (1,852 whites, 2,388 blacks) to five different schools according to grade attended. Racial segregation is virtually impossible since all the children in a particular grade attend the same school irrespective of the physical location of the student's home within the district.

However, the West Point school plan closed two schools¹ solely because of the fear on the part of the Board of Trustees that whites would not attend these formerly all-Negro schools located within the black neighborhood. As a result of the schools being closed, less classroom space became available so that the remaining five schools were forced to conduct classes on a "split session"² or "two shift a day" basis.

The closing of these schools for purely racial reasons is impermissible under Brown v. Board of Education of Topeka, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, which commands that the public school systems operate free from racial discrimination. While it is undisputed that a particular school may be terminated for sound educational reasons, an otherwise useful building may not be closed merely because the school board speculates that whites will refuse to attend the location. Such action constitutes racial discrimination in violation of the Fourteenth Amendment.

Accordingly, we hold that Fifth Street Junior and Senior High School and Northside Elementary School cannot be closed for the reasons shown in the record below.

The case is hereby remanded to the district court with directions to formulate a school desegregation plan not inconsistent with this order.

Remanded with directions.

CLARK, Circuit Judge (specially concurring):

Under our recent decision in Lee v. Macon County Board of Education, F.2d 746 (5 Cir. 1971) (Part IV), not published at the time the district court acted in this cause, I agree that the present state of the record requires reversal. However my concurrence is based upon the understanding that this mandate does not deprive the district judge of discretion to determine whether he will hold additional hearings or consider additional evidence if such hearings or evidence might show that sound educational principles underlay the temporary discontinuance of the...