BOARD OF PUBLIC INSTRUCTION OF DUVAL CTY., FLA. v. Braxton, 25479.

• Decision Date: 29 August 1968
• Docket Number: No. 25479.,25479.
• Citation: 402 F.2d 900
• Parties: The BOARD OF PUBLIC INSTRUCTION OF DUVAL COUNTY, FLORIDA, Appellant, v. Daly BRAXTON and Sharon Braxton, minors, etc., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

402 F.2d 900 (1968)

The BOARD OF PUBLIC INSTRUCTION OF DUVAL COUNTY, FLORIDA, Appellant, v. Daly BRAXTON and Sharon Braxton, minors, etc., et al., Appellees.

No. 25479.

United States Court of Appeals Fifth Circuit.

August 29, 1968.

Elliott Adams, Jacksonville, Fla., for appellant.

Leroy D. Clark, William L. Robinson, New York City, J. Harold Flannery, Atty., Dept. of Justice, Washington, D. C., for appellees.

Before WISDOM and COLEMAN, Circuit Judges, and RUBIN, District Judge.

WISDOM, Circuit Judge:

In United States v. Jefferson County Board of Education¹ this Court, sitting en banc, gave a qualified approval to so-called "freedom of choice" plans for desegregating public schools. We noted that the "method has serious shortcomings" and suggested a decree to attempt to overcome these shortcomings.² We pointed out that a freedom of choice plan is "only a means to an end".³ It is "but one of the tools available to school officials at this stage of the process of converting the dual system of separate schools for Negroes and whites into a unitary system".⁴ (Original emphasis.) We observed, "The only school desegregation plan that meets constitutional standards is one that works".⁵ (Original emphasis.) School boards "have the affirmative duty under the Fourteenth Amendment" to find a desegregation plan that does work.⁶ Cf. Green v. School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716.

In this case the Board of Public Instruction of Duval County, Florida, combined a geographic attendance zone system with freedom of choice. On principle, the combination would seem to be an improvement over unadulterated freedom of choice.⁷ But the Duval County plan did not work. It resulted only in token desegregation. In particular, the Board's policy of permitting minority-to-majority transfers pointed toward resegregation. The district judge was fully aware of the history of the litigation, the ineffectiveness of the plan, and the Board's lack of enthusiasm for its affirmative duty to desegregate. He issued a decree containing the following provision for majority-to-minority transfers:

B. Minority Transfer Policy. The defendants shall on request permit any student to transfer from a school where students of his race are a majority to any other school within the system where students of his race are in a minority, and they may assign students on such basis.

Duval County School Board attacks this portion of the decree as racially discriminatory. We hold that this provision is a constitutionally valid and appropriate step toward "disestablishing" the dual system of segregated schools that prevails in Duval County.

I.

December 6, 1960, the Negro plaintiffs filed their original complaint asking for desegregation of public schools in Duval County (Jacksonville and its suburbs). After procedural preliminaries, the district court ordered the Board to present a desegregation plan by October 1962. The Board attacked the provisions of the desegregation order (1) prohibiting the assignment of teachers and staff on a racial basis and (2) prohibiting the Board's "approving budgets, making available funds, approving employment contracts and construction programs" to "maintain or support a school system operated on a racially segregated basis". We affirmed the judgment below. Board of Public Instruction of Duval County, Florida v. Braxton, 5 Cir. 1964, 326 F.2d 616.

The Board's plan established geographical school attendance areas for the assignment of children in desegregated grades of Duval County's schools. It provided for desegregation of grades one to six by the 1966-67 school year and one grade each year thereafter until the process was completed.

March 19, 1965, plaintiffs filed a Motion for Further Relief alleging that (1) the pace of desegregation was too slow, (2) the zones were drawn so as to perpetuate segregation, and (3) students were being permitted to transfer from their assigned zones so as to perpetuate segregation. After a hearing November 3 and 4, 1965, and argument February 5, 1966, the Court, January 24, 1967, issued its order and findings of facts. The Court found:

In September of 1965, approximately 118,000 students, of which about 30,000 were Negro, were enrolled in the public schools of Duval County, Florida. Approximately 137 Negro students were attending 12 previously all white schools. No white student attended any Negro school.

The Court also found that:

(1) In a number of instances, the attendance areas were so defined that they absolutely prevented any desegregation, or only the most token integration.

(2) Appellants made no initial assignments of white or Negro students to schools attended only or primarily by students of the opposite race. White students residing in the district or attendance area of Negro schools were not required to attend such schools, but they were assigned to, or freely permitted transfers to, other white schools. Similarly, Negro students residing in the district or attendance area of white schools were not required to attend such schools, but were assigned to, or freely permitted transfers to, other all-Negro schools.

(3) Appellants maintained certain inferior and inadequate school facilities for Negro students.

The district court entered a decree substantially similar to the decree this Court approved in Jefferson, except for modifications to reflect the fact that the Duval County Board initially assigned students by zones. The assignment provisions of the order are as follows:

I-Attendance Zones

Commencing with the 1967-68 school year, a single system of non-racial attendance zones shall be established for all grades. Zone boundaries or feeder patterns designed or used to perpetuate or promote segregation shall be discontinued, and such zone lines shall be redrawn, wherever feasible, to maximize desegregation or eliminate segregation. No zone boundaries or feeder patterns which maintain what is essentially a segregated school structure shall be used.

II-Assignment to School in Zone of Residence

Regardless of any previous attendance at another school, each student must be assigned to the school serving his zone of residence, and may be transferred to another school only in those cases which meet the following requirements:

A. Transfer for Special Needs. A student who requires a course of study not offered at the school serving his zone, or who is physically handicapped, may be permitted upon his written application, to transfer to another school which is designed to fit, or offers courses for, his special needs.

B. Minority Transfer Policy. The defendants shall on request permit any student to transfer from a school where students of his race are a majority to any other school within the system where students of his race are a minority, and they may assign students on such basis.

February 3, 1967, the Board moved for a new trial contending that the minority transfer provision was "contrary to the law in that it affirmatively imposes a discrimination by race as a criterion for transfer". The plaintiffs filed a new Motion for Further Relief alleging that defendants had failed to comply with the January 24th order in that they had not redrawn the gerrymandered attendance zone lines.

The court conducted hearings August 10 and 11, 1967, on both motions. In an order entered on August 22, 1967, the court treated the appellants' Motion for New Trial as one for modification or clarification and amended its prior order in several respects but left standing its earlier order that the Board permit majority to minority transfers.

In the same order the court granted appellees' later Motion for Further Relief. The court found:

(1) As indicated in the Affidavit of Robert L. Varn, filed herein February 3, 1967, * * * It does not appear that a general realignment of zone boundaries and feeder patterns has been undertaken as required by paragraph I-Attendance Zones * * * or that any attempt has been made to redraw lines to maximize desegregation or eliminate segregation.

* * * * * *

(5) It is convincing on the record before me that the defendant(s) * * * are either incapable or unwilling to undertake full and meaningful compliance with either the strict tenor or the broad objectives of the provisions of the January 24, 1967 order.

The court ordered that:

Defendants shall, without delay, request the assistance of the expert consultation of school administrators of the United States Department of Health, Education and Welfare, located at the University of Miami, under the South Florida Desegregation Center, for review of the system of assignment for the school year 1967-68 and subsequent years. Said study shall include revision of zone boundaries and feeder patterns, staff assignments, faculty assignments, new school construction, and Board practices generally with respect to desegregation of schools, all with a view to complete elimination of segregated schools and racially discriminatory practices in the operation of the Duval County School System.

After four years of court-ordered desegregation, 137 Negroes, .0045 percent of the Negro students, attended predominantly white schools. No whites attended predominantly Negro schools. The Duval Board makes no initial assignments of white or Negro students to schools attended only or predominantly by students of the opposite race. White and Negro students who reside in school districts containing schools where members of their race are a minority are not required to attend such schools. Instead, they are assigned to or freely permitted to transfer to schools where members of their race are a majority. It was in this context that the district court issued its desegregation order. It was apparent to the district court, as it is to us, that a unitary system could not be accomplished without using an alternative to freedom of choice that would take race into consideration in approving transfers. Although the...