Brunson v. Board of Tr. of Sch. D. No. 1 of Clarendon Co., SC

• Decision Date: 05 June 1970
• Docket Number: No. 14571.,14571.
• Citation: 429 F.2d 820
• Parties: Bobby BRUNSON, Elizabeth Brunson and Ellis Brunson, by McQueen Brunson, their father and next friend, et al., Appellees, v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 OF CLARENDON COUNTY, SOUTH CAROLINA, L. B. McCord, County Superintendent of Education; C. E. Buttes, District Superintendent of Education; J. W. Sconyers, Chairman Board of Trustees; C. N. Plowden, W. A. Brunson, Henry Everett, and L. Richardson, Members of the Board of Trustees, Appellants, United States of America, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

429 F.2d 820 (1970)

Bobby BRUNSON, Elizabeth Brunson and Ellis Brunson, by McQueen Brunson, their father and next friend, et al., Appellees, v. BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 1 OF CLARENDON COUNTY, SOUTH CAROLINA, L. B. McCord, County Superintendent of Education; C. E. Buttes, District Superintendent of Education; J. W. Sconyers, Chairman Board of Trustees; C. N. Plowden, W. A. Brunson, Henry Everett, and L. Richardson, Members of the Board of Trustees, Appellants United States of America, Amicus Curiae.

No. 14571.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1970.

Decided June 5, 1970.

David W. Robinson, Columbia, S. C., for appellants.

Vilma Martinez Singer, New York City, (Matthew J. Perry, Lincoln C. Jenkins, Jr., Columbia, S. C., Mordecia Johnson, Florence, S. C., Jack Greenberg, Norman Chachkin and Michael Davidson, New York City, on brief) for appellees.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER, CRAVEN and BUTZNER, Circuit Judges.

By authority of a majority of the Court, it is ordered:

1. That the judgment of the District Court be, and it hereby is, affirmed.

2. That the right is reserved by each of the Judges to file an opinion expressing his individual views.

By direction of a majority of the Court.

CRAVEN, Circuit Judge, with whom HAYNSWORTH, Chief Judge, and BRYAN, Circuit Judge, join, concurring and dissenting:

I agree with the district court that the school board's freedom of choice plan was inadequate and ineffective, as judged by the standard of Green v. New Kent County Board of Education, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), to dismantle its dual school system and establish a unitary one. I do not agree, however, with the district court's approval of the desegregation plan proposed by the Department of Health, Education and Welfare.

As of September 1969, there were 2408 black students and 256 white students enrolled in the system. Summerton Elementary School remained a virtually all-white school with 145 white students and 12 Negro students in attendance. Summerton High School was racially "desegregated" in a similar fashion with 111 white students and 16 Negro students. The other four schools in the system were 100 percent black. The school board's freedom of choice plan has, therefore, resulted in token desegregation only.

Just as the school board plan has achieved too little, so also the HEW plan, approved by the district court and affirmed on appeal, attempts too much. If all of the 256 white students currently in the system remain there, and that seems doubtful as will be explained below, the result under the approved plan will be a heavy majority of black students in each school with the percentage of white students in each school ranging from 5 percent to 17 percent. This may be "desegregation," but it is not, in my opinion, "integration."¹

It is true that constitutional principles may not be allowed to yield to community opposition. Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968); Walker v. County School Board of Brunswick County, 413 F.2d 53 (4th Cir. 1969). It is equally true, however, that judges in fashioning remedies cannot successfully ignore reality. I do not suggest that the constitutional right of the black students in Clarendon District No. 1 to attend a non-racial school system may be disregarded. Quite the contrary, I would attempt to implement that right as nearly as is physically possible by creating a system with two "integrated" schools rather than a system with only "black" schools.² The extreme remedy proposed by HEW and approved by this court threatens to swallow up, rather than vindicate, the constitutional mandate for integrated schools in Clarendon District No. 1. There is reason, even beyond the ten to one ratio of black to white students in the district, to doubt that the HEW plan can ever be effective. In 1969, 110 white students fled the public school system in favor of a parochial private school in Summerton, leaving only 256 white students in the public schools. Counsel now advises in oral argument that approximately 100 more white students have made application to the parochial school for admission in September 1970. If this is a correct prognosis, it suggests to me that some degree of moderation in selecting a remedy is more likely to accomplish the desired result, a unitary, non-racial public school system, than is unyielding fidelity to the arithmetic of race. It will be ironic, and contrary to the spirit of Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), if the result of application of the Brown constitutional principle in this case is simply to accomplish an all-black school system.

The threat of flight from the public school system ordinarily should not be allowed to influence the selection of the plan or its judicial approval. It is relevant here only because the whites constitute such a small minority. The crucial consideration, however, is that the approved plan will serve the constitutional purpose poorly even if the handful of whites remain to attend each of the schools, for they are so few that a distribution of them cannot succeed in altering the essentially black character of each school.

I would remand to the district court with instructions to require the school board to submit a pupil assignment plan attaining in one high school and in one elementary school an undiscriminating racial mix³ to the extent feasible. Such a practical approach to the problem would, I believe, greatly diminish the temptation to flee the system. Judging from experiences in other school systems, the parents of most white students would probably accept integration in the form of an educationally optimum racial mix and adjust to it rather than bear the financial burden of removing their children to a private school.

The principle that no child should be excluded from any school because of his race calls for some recognition of a right of choice here. No black child who wishes to attend one of the "white" schools should be excluded. If it appears that their number would be insufficient to produce integration, then other black children may be assigned involuntarily to those schools to bring the ratio up to an acceptable level. If a larger number of the black children wished to attend one of the "white" schools, however, I do not think any one of them could be excluded.

With that caveat, I believe that a remand with such directions would serve the basic constitutional principle much more faithfully than a random scattering of so small a minority of whites among all the schools, which thereafter will be all-black schools for all practical purposes whether or not the whites remain in the system.

From Dred Scott through Brown II and beyond^3a I read the social and constitutional history of the nation and its Negro citizens as does Judge Sobeloff in his special concurrence. I think we grasp it the same way and even with the same hope for the future.

Perhaps my hope is too idealistic: that there can be achieved, even in Clarendon County, some degree of mutual respect, trust, confidence, even friendship, between black and white children. It won't occur without their knowing each other, and concededly there will be little contact under the HEW plan.

The living insult to black people inherent in segregation as one aspect of prejudice will be eradicated when black and white pepole come to know and understand each other as one people in one nation. In that endeavor I am unwilling to write off even one county in one state. I would keep the Brown principle and apply it to the maximum extent practicable in Clarendon County.

Separate concurring opinion of SOBELOFF, Circuit Judge:

This case is the lineal descendant of Briggs v. Elliot, one of the four cases consolidated in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).¹ That it is still being litigated at this date, nineteen years since Briggs was initiated and sixteen years after the decision in Brown, is a most sobering thought.

The sole prayer of the Board's appeal was that it be allowed to retain a freedom of choice plan that never has worked and never will. For many years the fountainhead of freedom of choice was Judge Parker's famous dictum on the remand of Briggs itself.² But the era of freedom of choice as a barrier to integration is over, Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and the Briggs pronouncement is dead. Walker v. County School Board of Brunswick County, 413 F.2d 53, 54 n. 2 (4th Cir. 1969). As its appeal shows, the Clarendon County Board, so closely associated with the doctrine from its genesis, is as yet unprepared to recognized its demise.

This appeal was the first to be reached for hearing after our decision in Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 138 (4th Cir. 1970). At oral argument counsel urged that to jettison freedom of choice and force white children to attend schools in which they would be a minority would be "unreasonable" under the standard newly announced in Swann. I ventured in Swann that "handed a new litigable issue — the so-called reasonableness of a proposed plan — school boards can be expected to exploit it to the hilt," 431 F.2d at 154. Thus the prediction has already been realized.

Nevertheless, it is not so much what the Board has said but what my dissenting colleagues say that prompts this response. The dissenters agree that the Board's freedom of choice plan is deficient, but they consider the remedy too strong. As they point out, we are threatened in this case with an exodus of white students that tends to convert the court-ordered integration into an exercise in futility. Understandably my Brethren grope for a practical solution; but this desire has caused them to seize on an idea which, I am...