Brinkman v. Gilligan
| Decision Date | 26 July 1976 |
| Docket Number | No. 76-1854,76-1854 |
| Citation | 539 F.2d 1084 |
| Parties | Mark BRINKMAN et al., Plaintiffs-Appellees, v. John J. GILLIGAN and Dayton Board of Education et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David C. Greer, Leo F. Krebs, Bieser, Greer & Landis, Dayton, Ohio, for defendants-appellants.
Louis R. Lucas, Ratner, Sugarmon, Lucas & Salky, Memphis, Tenn., John A. Dziamba, Willimantic, Conn., Nathaniel R. Jones, New York City, Richard Austin, Dayton, Ohio, Paul R. Dimond, O'Brien, Moran & Dimond, Ann Arbor, Mich., for plaintiffs-appellees.
Before PHILLIPS, Chief Judge, PECK and LIVELY, Circuit Judges.
The Dayton, Ohio Board of Education (the Board) appeals from a judgment of the district court entered on March 25, 1976 which implemented its desegregation order and judgment of December 29, 1975. This court has considered two previous appeals in this litigation and our opinions are published at 503 F.2d 684 (1974) and 518 F.2d 853 (1975). This court concluded that the desegregation order from which the second appeal was taken (by the plaintiffs) was inadequate and we remanded the case to the district court with specific instructions, as follows:
On remand we direct that the court adopt a systemwide plan for the 1976-77 school year that will conform to the previous mandate of this court and to the decisions of the Supreme Court in Keyes and Swann. We direct that this plan be adopted not later than December 31, 1975, so that it may be placed in effect at the beginning of the new school year in September 1976. 518 F.2d at 857.
After considering a plan proposed by the plaintiffs and one "submitted" but not "proposed" or "recommended" by the Board, the district court filed an order and a judgment on December 29, 1975. The judgment provided, in part, as follows:
A school system composed of schools where the attendance meets the district ratio plus or minus 15% is a desegregated system as contemplated in Keyes v. School District No. 1 and Swann v. Charlotte-Mecklenburg Board of Education.
Variations from the foregoing may be permitted in exceptional circumstances without destroying the desegregation of such systems.
The judgment also permitted high school students already enrolled at a particular school to graduate from that school regardless of attendance zone boundaries. The judgment contained guidelines to be followed "wherever possible for elementary students":
1. Students may attend neighborhood walk-in schools in those neighborhoods where the schools already have the approved ratio;
2. Students should be transported to the nearest available school.
3. No student should be transported for a period of time exceeding twenty (20) minutes, or two (2) miles, whichever is shorter.
Dr. John A. Finger, Jr. was appointed Master to establish attendance zones and a citizens board was authorized to monitor "the plan."
On March 15, 1976 the Master filed a report containing recommended desegregation plans for the elementary schools and the high schools of the Dayton system. The report contemplated achieving desegregation of the elementary schools by a combination of redefining attendance areas and the pairing of schools. Under the plan proposed for the high schools attendance zones would be the primary tool. In a judgment entered March 25, 1976 the district court adopted the portion of the Master's report dealing with the elementary schools and approved the Master's recommended zone changes. However, the Board was given the option of making annual exchanges between paired schools without a movement of teachers or semi-annual exchanges of both pupils and teachers as recommended by the Master. The judgment also permitted the Board to implement high school desegregation by employing an assignment program by specific attendance districts rather than following the Master's proposal of permitting school selection by students plus random assignments as necessary to achieve the mandated plus or minus 15% range. The court denied the Board's proposal for a three year phase-in of the elementary school plan.
The March 25 judgment contained this additional provision:
IV FURTHER PROPOSALS: No determination herein shall be deemed to bar the submission of any other plan to this Court that would be consistent with the standards set forth in the order of December 29, 1975. The Court will at all times entertain a motion by any party for consideration of any specific procedure and approval will be freely granted so long as the restrictions above set forth are adhered to.
On appeal the Board argues that the remedy ordered by the district court exceeds the scope of the violations. It is argued that the district court has adopted a fixed percentage formula to achieve racial balance in the Dayton schools contrary to the holding of the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The Board relies particularly upon the Court's statement that the constitutional requirement for school desegregation does not mean that "every school in every community must always reflect the racial composition of the school system as a whole." Id. at 24, 91 S.Ct. at 1280.
This court has previously held that the practices of the Dayton school system constituted de jure segregation, citing Keyes v. School District No. 1, Denver, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Brinkman, supra, 518 F.2d at 854. Though this court ordered systemwide desegregation, the Board proposed no plan to achieve this mandate and made no showing of the existence of conditions related to the topography of the Dayton area, location of natural or artificial barriers, geographic isolation or similar considerations which might militate against an order requiring cross-district transportation of pupils. Compare Goss v. Board of Education of Knoxville, 482 F.2d 1044 (6th Cir. 1973), cert. denied, 414 U.S. 1171, 94 S.Ct. 933, 39 L.Ed.2d 120 (1974).
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