Boson v. Rippy

• Citation: 285 F.2d 43
• Decision Date: 05 January 1961
• Docket Number: No. 18467.,18467.
• Parties: Sandra Craig BOSON et al., Appellants, v. Dr. Edwin L. RIPPY, As President of the Board of Trustees of the Dallas Independent School District, Dallas County, Texas, et al., Appellees. Dr. Edwin L. RIPPY, As President of the Board of Trustees of the Dallas Independent School District, Dallas County, Texas, et al., Appellants, v. Sandra Craig BOSON et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

285 F.2d 43 (1960)

Sandra Craig BOSON et al., Appellants, v. Dr. Edwin L. RIPPY, As President of the Board of Trustees of the Dallas Independent School District, Dallas County, Texas, et al., Appellees.

Dr. Edwin L. RIPPY, As President of the Board of Trustees of the Dallas Independent School District, Dallas County, Texas, et al., Appellants, v. Sandra Craig BOSON et al., Appellees.

No. 18467.

United States Court of Appeals Fifth Circuit.

November 30, 1960.

Supplemental Opinion December 7, 1960.

Rehearing Denied January 5, 1961.

W. J. Durham, C. B. Bunkley, Jr., Dallas, Tex., Thurgood Marshall, New York City, Elwood H. Chisolm, New York City, of counsel, for appellants.

Henry W. Strasburger, Mark Martin, Dallas, Tex., Royal H. Brin, Jr., Dallas, Tex., Strasburger, Price Kelton, Miller & Martin, Dallas, Tex., of counsel, for appellees-appellants, Dr. Edwin L. Rippy, and others.

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

RIVES, Chief Judge.

This action seeking an end to enforced racial segregation in the public schools of the Dallas Independent School District was first dismissed without prejudice by the district court in September 1955.¹ This Court reversed with directions to afford the parties a full hearing.² The Supreme Court denied certiorari.³

After hearing the testimony, the district court again dismissed the action without prejudice.⁴ This Court reversed with directions that the district court enter an order requiring the defendants to desegregate the schools under their jurisdiction "with all deliberate speed."⁵

The district court construed such directions to require immediate en masse desegregation, and, accordingly, against its own expressed better judgment, entered an order enjoining the defendants "from requiring or permitting segregation of the races in any school under their supervision, beginning and not before the mid-Winter school term of 1957-58." That order was again reversed by this Court with more specific directions to accord the school authorities "a reasonable further opportunity promptly to meet their primary responsibility in the premises, and then if the plaintiffs, or others similarly situated, should claim that the school authorities have failed in any respect to perform their duty, there should be a full and fair hearing in which evidence may be offered by any and all parties, and further that the Court should retain jurisdiction to require compliance with its judgment."⁶

The district court then entered a general order requiring desegregation "with all deliberate speed." No further court proceedings appear until some thirteen months later, when the plaintiffs filed their "motion for further relief" praying for immediate desegregation of the public schools. The district court denied immediate desegregation, but retained jurisdiction and recessed the hearing from August 4, 1959, to the first Monday in April 1960. Upon appeal this Court modified the order of the district court "so as to require the defendants to `make a prompt and reasonable start toward full compliance' with its injunction order of April 16th, 1958, and to that end, within thirty days from the date on which the present judgment of this Court of Appeals becomes final, to submit a plan for effectuating a transition to a racially nondiscriminatory school system; and further that the District Court, within thirty days after the submission of such plan, hold a full hearing upon the plan so submitted and on any objections which may be filed thereto."⁷ In conformity with such an order, the defendant school authorities filed in the district court a twelve-year, "stair-step" plan of desegregation starting with the first grade in September 1961, and proceeding by the desegregation of one additional grade a year until all twelve grades in all public schools have been desegregated.⁸

The district court disapproved this plan and required the defendants to file "an alternate desegregation plan more in keeping with the Court's oral opinion."⁹ The alternate plan was promptly filed, providing for the separating and grouping of the schools into white, Negro and mixed schools, and for canvassing parents and pupils in order to learn "who does and who does not want integration, and thereby give all concerned what they prefer, as far as is practical and possible."¹⁰

The district court expressed the opinion that the holding of an election under Article 2900a of Vernon's Ann.Revised Civil Statutes of Texas should not be made a condition of a plan of desegregation, again rejected Plan No. 1, and ordered the defendants to amend Plan No. 2 by eliminating the paragraphs which make an election and favorable result conditions of the plan. In conformity with such opinion and order, the defendants re-submitted both plans amended so as not to depend upon the outcome of an election. The district court again rejected Plan No. 1, overruled the objections of the plaintiffs to Plan No. 2 as amended, and approved that plan. The plaintiffs appeal from the approval of Plan No. 2 as amended, and the defendants appeal from the disapproval of Plan No. 1 as amended.

We agree with the district court that the holding of an election under Article 2900a of the Revised Civil Statutes of Texas should not be made a condition of a plan of desegregation. It goes without saying that recognition and enforcement of constitutional rights cannot be made contingent upon the result of any election.¹¹

Plan No. 2 as amended, which was approved by the district court, would continue the practice of enforced segregation in the all white and all Negro schools and would require the operation of mixed schools if parents and pupils of both races so desired. That plan evidences a total misconception of the nature of the constitutional rights asserted by the plaintiffs. Negro children have no constitutional right to the attendance of white children with them in the public schools. Their constitutional right to "the equal protection of the laws" is the right to stand equal before the laws of the State; that is, to be treated simply as individuals without regard to race or color. The dissenting view of the elder Mr. Justice Harlan in Plessy v. Ferguson, 1895, 163 U.S. 537, 559, 16 S.Ct. 1138, 1146, 41 L.Ed. 256, has been proved by history to express the true meaning of our Constitution:

"* * * There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."

Instead of removing the forbidden classification according to race or color, that plan adds another such classification. Virtually the same plan has already been condemned in the Southern District of Texas and by this Court. Houston Independent School District, et al. v. Ross, 5 Cir., 1960, 282 F.2d 95, 96. State support of schools in which segregation of the pupils is required by law cannot be squared with the constitutional command of equal protection of the laws. Cooper v. Aaron, 1958, 358 U.S. 1, 19, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19.¹² The district court's approval of Plan No. 2 as amended must be reversed.

As to Plan No. 1 as amended we are of the opinion that paragraph 6, quoted in the margin,¹³ should be stricken because its provisions recognize race as an absolute ground for the transfer of students, and its application might tend to perpetuate racial discrimination. Compare Kelley v. Board of Education of City of Nashville, 1959, 361 U.S. 924, 80 S.Ct. 293, 4 L.Ed.2d 240.

The brief on behalf of the school authorities states: "Plan No. 1 represents the first choice and best judgment of the School Board in exercising `the primary responsibility for elucidating, assessing and solving' the `varied local school problems,' placed upon local school authorities by the Supreme Court's opinion in the Brown case." On the other hand, the appellants insist that the district court "should have ordered the Dallas School authorities to admit appellants and all other Negroes similarly situated to public schools under their supervision on a racially nondiscriminatory basis at the start of the ensuing school term." The appellants further pray — and with much reason, in view of the frustrating history of this litigation — that this Court should here render a definite judgment. We are reluctant to substitute our judgment for that of the district court, and are willing to do so only to the extent necessary to assure a prompt start toward full compliance and reasonable, even though conservative, progress toward bringing about the end of racial segregation in the public schools "with all deliberate speed." See Brown v. Board of Education, 1955, 349 U.S. 294, 299, 75 S.Ct. 753, 99 L.Ed. 1083. To that end we direct that the district court approve Plan No. 1 as amended, eliminating therefrom paragraph 6 quoted in footnote 13, supra.

In so directing, we do not mean to approve the twelve-year, stair-step plan "insofar as it postpones full integration." See Evans v. Ennis, 3 Cir., 1960, 281 F.2d 385, 389. The district court has not expressly passed on whether that much delay is necessary, or whether the speed is too deliberate. It retains jurisdiction of the action during the transition. See Kelley v. Board of Education of City of Nashville, supra; Aaron v. Cooper, 8 Cir., 1957, 243 F.2d 361, 364. After the approval of Plan No. 1 as amended, with the elimination of paragraph 6, the future orders of the district court should be governed by the rule so well stated in Brown v. Board of Education, 1955, 349 U.S. 294, 300, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083:

"The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith

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