Borders v. Board of Ed. of Prince George's County

Decision Date15 May 1972
Docket NumberNo. 130,130
Citation265 Md. 488,290 A.2d 510
PartiesEugene BORDERS et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY et al.
CourtMaryland Court of Appeals

Charles A. Dukes, Jr., Hyattsville (Dukes, Troese, Mann & Wilson, Jo B. Fogel and Lawrence J. Hogan, Hyattsville, on the brief), for appellants.

Paul M. Nussbaum, Mt. Rainier (Stanley H. Goldstein, Mt. Rainier, on the brief), for appellees.

Argued before HAMMOND, C. J., and BARNES, FINAN *, SINGLEY and SMITH, JJ.

FINAN *, Judge.

The present appeal arises from a hearing and determination upon remand of Borders v. Board of Education, 259 Md. 256, 269 A.2d 570 (1970), a case which we, in a Per Curiam opinion, characterized as involving 'inverse racial discrimination.' The original actions were brought under the Declaratory Judgment Act, Code (1971 Repl.Vol.) Art. 31A. The lower court had sustained the defendant's demurrers to the declarations which, in view of Merc.-Safe Dep. & Tr. Co. v. Reg. of Wills, 257 Md. 454, 459, 263 A.2d 543 (1970); Garrett County Sanitary Dist., Inc. v. Mayor and Town Council of Oakland, 249 Md. 400, 240 A.2d 228 (1968); and Hunt v. Montgomery County, 248 Md. 403, 237 A.2d 35 (1968), we held inappropriate and directed that upon remand a declaration of the rights of the parties be made after a full evidentiary hearing. Not being satisfied with the declaration of their rights on remand, as delineated by the lower court, the complainants again appeal. The two actions originally filed were consolidated on the first appeal. This Court also suggested that upon remand, the Circuit Court for Prince George's County delay its determination of the case until after the disposition by the Supreme Court of the United States of Swann v. Charlotte-Mecklenburg Board of Education, and its related companion cases. As we shall later discuss, the Supreme Court has now disposed of Swann et al. v. Charlotte-Mecklenburg Board of Education et al., No. 281; McDaniel, Superintendent of Schools et al. v. Barresi et al., No. 420; Davis et al. v. Board of School Commissioners of Mobile County et al., No. 436; Moore et al. v. Charlotte-Mecklenburg Board of Education et al., No. 444; and North Carolina State Board of Education et al. v. Swann et al., No. 498, all decided April 20, 1971, and reported at 402 U.S. 1, et seq., 91 S.Ct. 1267, et seq., 28 L.Ed.2d 554, et seq. (1971).

The appellants, complainants below, are the parents of school age children in the Cheverly and Radiant Valley sections of Prince George's County. They alleged in their petition for declaratory and injunctive relief that through redistricting, their children, solely because they are members of the white race, are being transferred from the schools they previously attended to the two remaining all black schools in the County; namely, Fairmont Heights High School and Mary Bethune Junior High School. They claim this redistricting by the Board of Education of Prince George's County (Board) is in violation of: the Fourteenth Amendment of the United States Constituion; Article 2, Maryland Declaration of Rights; 20 U.S.C. § 884; and Title IV, 1964 Civil Rights Act, § 601 et seq. The Board and Board of County Commissioners for Prince George's County were the original defendants; however, on January 28, 1971, the lower court dismissed, without prejudice, the suit as to the Board of County Commissioners.

The manner in which the appellants attempt to cast the issues points out the weakness in their case. They would frame the issues as follows:

'1. Is the transfer of students in a manner which requires a longer school day, some personal danger in terms of traffic safety, and other personal inconveniences which are not visited on fellow-students in the same local area, a violation of these students' constitutional rights, when the transfer is effected solely as a result of and on the basis of the skin color of the child?

'2. Is a member or members of Prince George's County School Board exempt from constitutional sanctions protecting individual rights when he or they purport to act in compliance with the request of federal authorities?'

In point of fact, these issues are contrived, as they embrace gratuitous assumptions which place the appellants' case in a more favorable light, but assumptions which are not warranted from a reading of the record. With regard to the first issue, counsel for the appellants admit they have not made out a case of constitutional hardship to the student resulting from the busing; and, as we read the record, it does not justify the conclusion that a desire to achieve 'racial balance' was the sole reason for busing the children. The second issue which calls for a legal consideration of the immunity or exemption attached to the action of the Board from constitutional sanctions protecting the rights of individuals when its actions are in response to a demand or request from the federal authorities, is one we are not required to reach as, in actuality, all that is before us is whether the Board was unduly influenced by any undue pressures exerted upon it by the Department of Health, Education and Welfare (HEW). We shall answer this last mentioned question in the course of this opinion, however, we view the basic issue before us as the one simply stated by the court below, namely:

'Is the Board of Education constitutionally prohibited from taking race into account in establishing attendance lines for the purpose of reducing segregation in public schools?'

Before discussing the legal ramifications attendant upon the redrawing of the school attendance lines, it is necessary to turn again to a consideration of the facts in this case. The lower court summarized its interpretation of the facts as follows:

'Resolution of the factual dispute will involve no prolixity. We find that the Board sought a better racial balance in the two remaining all black schools in the County * * * and that to achieve this proper and justified purpose, changes were made in the attendance zones, that the routes, distances and time schedules followed by the buses which implement the changes in attendance boundaries result in no substantial hardship, that the members of the Board were not subjected to any coercion or improper influence, and that the Board's paramount consideration was the proper education of the students.'

The record extract comprises some 497 pages of testimony and exhibits. We do not intend to dwell in detail upon the facts other than to set forth some observations necessary for an understanding of the conclusions which we reach. The resolution of the Board, directing the transfer of children from other schools to Fairmont Heights High School and to Mary Bethune Junior High School, around which this controversy revolves, was passed on November 11, 1969, at a meeting attended by 9 members of the Board. Five members of the Board voted in favor of the resolution, 3 against (including the President of the Board) and 1 member abstained from voting. In our opinion, and this view was obviously shared by the circuit court, the record reveals that the achievement of racial balance was not the sole consideration of the majority of the Board members in voting for the resolution, nor were they threatened or intimidated by the actions of HEW in pursuing this course of action.

Mr. James Galoto, a member of the Board, acknowledged that he felt there was a 'moral obligation to desegregate these schools'; however, he testified that although achieving a degree of racial balance was one reason for the Board's action, that there were others. In fact at one point he said that there was a 'conglomerate of reasons.' He also said that he knew of no specific threat on the part of HEW to suspend the allotment of funds.

Another member of the Board, Dr. Joseph Righton Robertson, Jr., testified that he viewed desegregation of schools as 'educationally sound' and noted that in the instant case it was done 'to redraw the attendance areas so as to achieve meaningful balance of the races not only in Fairmont Heights but also in Bladensburg and other schools.' He likewise stated that his vote was 'by no means' based upon the threat of resulting loss of federal funds.

Mrs. Joanne T. Goldsmit stated that she was not pressured by HEW officials in casting her affirmative vote. She likewise stated that she voted in the manner in which she did because she thought that the children being transferred 'were going to gain tremendously in educational benefits.' She likewise stated that she really did not consider the transportation of the students as being properly characterized as 'busing,' as the distance of the transportation was inconsequential. She also reiterated that one of the reasons for transporting the students to Fairmont Heights was because of the 'overcrowded situation at Bladensburg Senior High School.'

Mrs. Ruth S. Wolf, a member of the Board at the time of the adoption of the resolution, and president of the Board at the time she testified, was emphatic in her testimony that the achieving of racial balance in the two schools affected was not the primary reason for her voting for the resolution. She cited the fact that Fairmont Heights was not being used to its capacity and that generally she felt that the transfer of students to both schools was educationally sound and was a necessity for the purpose of teaching children 'how to live in a multi-ethnic society.' Mrs. Wolf likewise minimized the pressures that HEW played in the Board's decision.

Finally, Mr. Jesse J. Warr, also one of the Board members voting with the majority, stated that he voted his own personal convictions and that achieving racial balance was just one facet that motivated him. He referred to other considerations such as educational philosophy, change in book selections and teacher ratio. He was clear in his recollection that HEW did not threaten to withhold specific funds in order to force compliance with its...

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2 cases
  • Gaspin v. Browning
    • United States
    • Maryland Court of Appeals
    • 17 Mayo 1972
    ... ... involved in this appeal from the Circuit Court for Prince George's County (Mathias, J.) are whether appellants, ... ...
  • Jackson v. State
    • United States
    • Court of Special Appeals of Maryland
    • 29 Octubre 2008
    ...REPORTS: (1) Comptroller v. Campanella, 265 Md. 478, 290 A.2d 475 (1972), "Decided May 12, 1972," (2) Borders v. Bd. of Educ. of Prince George's County, 265 Md. 488, 290 A.2d 510 (1972), "Decided May 15, 1972," and (3) James v. Thurn, 265 Md. 501, 290 A.2d 490 (1972), "Decided May 15, 1972.......

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