Broussard v. Houston Independent School District

Decision Date30 May 1968
Docket NumberNo. 24018.,24018.
Citation395 F.2d 817
PartiesOnesephor BROUSSARD et al., Appellants, v. The HOUSTON INDEPENDENT SCHOOL DISTRICT et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Arthur Mandell, Joseph L. Tita, William L. Wood, Jr., Houston, Tex., for appellants.

Joe H. Reynolds, and Reynolds, White, Allen & Cook, Houston, Tex., for appellees.

Ronald Cohen and Al Schulman, Houston, Tex., and Robert L. Carter and Anne G. Feldman, New York City, amici curiae.

Before RIVES and WISDOM, Circuit Judges, and CONNALLY, District Judge.

CONNALLY, District Judge:

This action was filed in the United States District Court for the Southern District of Texas as a suit for injunction against the Houston Independent School District. The plaintiffs are a number of pupils of that District, of the colored race, who have filed the proceeding as a class action. Its purpose is to restain the School District and its officers and employees from acquiring and condemning land, from soliciting bids, accepting bids or distributing funds, letting contracts or doing any other acts in furtherance of an extensive program for the construction of new schools and the improvement and modernization of other schools within the District. This relief was sought upon the allegation that the program of new construction and rehabilitation — in particular the location of a number of new schools — was designed by the Board to promote and to perpetuate de facto segregation in the schools. It was alleged that such de facto segregation deprived the minor plaintiffs of their right to attend an integrated school, and thus deprived them of due process and equal protection of the laws. After a full hearing consisting of seven trial days and including an inspection by the trial judge1 of some 17 locations, including the four or five most vigorously attacked by the plaintiffs, the injunctive relief was denied.2 We affirm.

To bring the issues thus presented into proper focus, some background is necessary. The Board of Education of the Houston Independent School District is composed of seven elected members. It is charged by law with the operation and maintenance of the public school system within its geographic limits. This is an area of approximately 311 square miles, including most of the Houston, Texas metropolitan area. In excess of one million persons reside within its geographic boundaries. Approximately 230,000 scholastics attend its schools, with an average increase of approximately 10,000 students per year. It is the sixth largest school district in the nation. At the time of trial, it operated in excess of 200 schools (elementary, junior high and high schools), located throughout the District.

At the time of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Houston schools were completely segregated by state law, with a dual boundary system. Following Brown, on December 26, 1956 a suit was filed in the United States District Court for the Southern District of Texas (C.A. 10444, Ross v. Board of Trustees, Houston Independent School District) to desegregate the Houston schools. Following a series of hearings the District Court entered an order directing that the schools be desegregated on a one-grade-per-year basis, beginning with the school year of September 1960, with complete desegregation to be effected by 1971. On appeal, this action of the trial court was affirmed Houston Independent School District v. Ross, 5 Cir., 282 F.2d 95 (1960). Since that time the plan of desegregation has been accelerated, in large measure by voluntary action by the Board,3 so that at the time of trial (June 1966) only the ninth grade remained segregated, and with that remaining vestige to be eradicated beginning with the school year of September 1967.4

The record shows that there is in operation a freedom of choice plan, pursuant to which a student, regardless of his race or place of residence, may register at any school within the District, merely by notifying the school authorities of the choice, and by having the student appear at the school of his choice on opening day.5

While it would appear at first blush that such a plan would be calculated to lead to overcrowding of some of the more popular schools, the Board's experience has shown that in large measure the students prefer to attend the school in proximity to their homes, and in no instance had admission been denied to a school of one's choice by reason of overcrowding.

With some variations due to population densities, it has been the policy of the Board to space the location of its elementary schools at intervals of approximately one mile; junior high schools at intervals of two miles; and senior high schools at three mile intervals throughout the District. Thus inevitably many of the schools are located in predominantly colored residential sections, others in predominantly white residential sections, and still others in areas of a mixed or commingled racial pattern.6 Similarly, the new construction and renovation is even-handedly applied throughout the District, some in white, some in negro and some in commingled areas. As most of the scholastics, regardless of their race, prefer to attend the school in their immediate vicinity,7 the racial composition of the student body of each school reflects, in general, the racial composition of the neighborhood wherein such school is located.

The need for the construction program is not denied. It is undisputed that many of the existing school facilities are grossly overtaxed; some areas of rapidly increasing population are inadequately served, or served not at all.

On May 19, 1965, the voters of the Houston Independent School District by popular election authorized the issuance of some $59 million in bonds for construction purposes. The program contemplated the construction of a number of new schools, some at new, others at old sites; the construction of new class-rooms, the addition of cafeterias, the enlargement of campuses, etc.; and the repairing and refurbishing of existing facilities at still other locations. Some fifty schools were involved in the project.

While this was the largest single bond issue for this purpose in the Board's history, experience had shown that substantial new construction was necessary at intervals of approximately four years. Preceding issues had been in the amount of $39 million in 1963 and in the amount of $32 million in 1959.

This was the thrust of plaintiffs' case. After developing the fact that certain schools in areas of dense colored population were overcrowded, and that the construction program contemplated the relief of this situation by the erection of new schools close by, or the enlargement of existing facilities, the testimony of several sociologists and psychiatrists was offered. These witnesses, all eminently qualified in their fields, testified in substance that a colored child would not receive as good an education attending a completely, or predominantly, colored school as he would attending a more thoroughly integrated school.8 Hence the argument was advanced that the construction of a new school in an area of dense negro population, or making an old school more serviceable, more efficient, or more attractive, would, in effect, constitute a denial to the negro child residing in such area of the integrated-type education to which he was entitled.

Despite their pedagogic attainments, none of these witnesses had any experience as a school administrator. They had little familiarity with the overall building program. No one could or would venture a suggestion as to where or how any one of the questioned sites should be relocated. They showed little awareness of any factor to be taken into account in the location of a school other than the racial composition of the area. The only answer which these witnesses could offer to the question as to how they would solve the problem of locating the new schools was to say that they should not be located in a predominantly negro area;9 and to say further that if given time they (the experts) could no doubt find a better location.

The defense was that the policy of the School Board, past and present, was to build the schools where they were needed, i. e., where they would be most convenient for the students, particularly those of tender years. It was shown that in addition to the need for a school in a given area, many considerations came into play in the selection of a particular site. Among others were (a) economics — in some cases the Board, with foresight, had previously acquired property not then needed, but held for future use which might profitably be availed of at this time, (b) accessibility and convenience — including the condition of the streets, the avoidance of traffic hazards, etc., and (c) coordination with the City Planning Commission, with realtors and developers planning new subdivisions and developments, where large population increases might be anticipated. On abundant and convincing evidence, Judge Hannay found that the Board had been guided only by such proper considerations as these, and denied relief. Deal v. Cincinnnati Bd. of Ed., 369 F.2d 55 (6th Cir. 1966); Clark v. Board of Educ. of Little Rock, 369 F.2d 661 (8th Cir. 1966); Sealy v. Dept. of Public Instruction of Pa., 252 F.2d 898 (3rd Cir. 1958).

When carefully analyzed, the plaintiffs' position is simply this. No new schools should be built, or old schools improved, in densely populated colored areas. The child resident in such area, regardless of his wishes, of necessity must be required to attend a school in some other section with a relatively high ratio of colored-to-white students. Considerations of convenience, of traffic hazards, or the wishes of the student and his parents should be disregarded. Such child simply would have to attend a high ratio colored-to-white school, and would be required to do this only because he was a negro.

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5 cases
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    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 21 Enero 1970
    ...410 F.2d 626 (5th Cir. 1969); Anthony v. Marshall County Bd. of Education, 409 F.2d 1287 (5th Cir. 1969); Broussard v. Houston Independent School Dist., 395 F.2d 817 (5th Cir. 1968). 11 United States v. Jefferson County, supra, N. 10. 12 Singleton v. Jackson, supra, N. 3. 12A If we had been......
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    • U.S. District Court — Western District of Texas
    • 16 Agosto 1973
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