Bush v. Orleans Parish School Board, Civ. A. No. 3630.

• Decision Date: 18 May 1963
• Docket Number: Civ. A. No. 3630.
• Citation: 230 F. Supp. 509
• Parties: Earl Benjamin BUSH et al., Plaintiffs, v. ORLEANS PARISH SCHOOL BOARD et al., Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

230 F. Supp. 509

Earl Benjamin BUSH et al., Plaintiffs, v. ORLEANS PARISH SCHOOL BOARD et al., Defendants.

Civ. A. No. 3630.

United States District Court E. D. Louisiana.

May 18, 1963.

COPYRIGHT MATERIAL OMITTED

A. P. Tureaud, Ernest N. Morial, New Orleans, La., James Nabrit, III, New York City, for plaintiffs and plaintiff intervenors.

Alvin J. Liska, Ernest L. Salatich, New Orleans, La., for City of New Orleans et al.

Samuel I. Rosenberg, New Orleans, La., for Orleans Parish School Board.

FRANK B. ELLIS, District Judge.

In this proceeding, Defendant, Orleans Parish School Board, seeks court approval of its long-range plan for the operation of the Orleans Parish Schools on a non-discriminatory basis. Plaintiffs in this class action make certain objections to the plan in the form of objections to the plan as presented and in the form of petitions for further relief.

In essence, the Board's plan establishes a single-zone school system for the first and second grades for the school year 1963-64 and one additional grade each year thereafter. This is accomplished by a single-zone map for the first and second grades. All other grades are to remain under the dual-zone system until the grade-a-year program reaches them. Every student in the first and second grades is given the right to attend the school in his or her attendance district. Transfers from the attendance district to a school outside the attendance district, when in writing by some person responsible for the child, will be given careful consideration and granted where good cause therefor is shown and when transfer is practicable, consistent with sound school administration. The Board retains the right to modify the attendance district lines whenever necessary for the most efficient and economic use of the school plant in the face of changing population patterns and conditions resulting from the building of new schools. Registration day is to be no later than June 6, 1963, for the first and second grades and the Board proposes to make public its registration procedures. Lastly the plan will not become effective until approved by this Court.

Plaintiffs' objections are numerous, but concisely stated, are:

1) The eleven-year delay in complete desegregation cannot be supported as an administrative necessity.

2) There is no provision for conversion to a single-zone system for the first five grades in 1964 as provided by the orders of the Fifth Circuit Court of Appeals.

3) There is no provision for lateral transfer of children in grades above the first and second grades out of dual school districts.

4) There is no protection against discrimination by routinely assigning children in the first and second grades to their new attendance zone.

5) There is no provision for relief of over-crowding of negro schools.

6) There is no provision for desegregation of the kindergarten.

7) There is no provision for non-racial admission to schools for exceptional children.

8) There is no provision for non-racial admission to vocational schools, summer schools and night school.

9) There is no provision for non-racial assignment of teachers.

10) There is no provision for building new schools without regard to race.

11) School districts may be changed by the Board without safeguards against discrimination.

Insofar as the Board's single-zone maps for attendance districts and its registration for the school year 1963-64 are concerned, a final approval is premature. The evidence indicates without doubt that attendance figures for the new single zones are "guesstimates". Witnesses for the Board made it clear that normal school practice is to set up attendance districts based on prior facts which are projected forward. After registration the zones are altered to adjust to the facts adduced at registration. This means that certain zones will be shaped differently than those presently shown on the single-zone maps. To this procedure plaintiffs cannot reasonably object and the court approves this much of the plan as a rational method of school administration. However, plaintiffs object that such a procedure without more is a latent tool of discrimination. Of course, the Board cannot expect final approval of what it terms an estimate at best. The presumption is that the Board will apply the attendance districts without regard to race. If, after registration and the alteration of the maps, it appears that the Board has "gerrymandered" the attendance districts so as to continue segregated schooling, the time will be ripe for the court to correct the situation. Courts are quite capable of dealing with discrimination by gerrymandering. Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L.Ed.2d 110. Similarly, administration of a school board plan which does not achieve desegregation, but only leaves the pattern as before, is also within the competence of this court to correct. See Norwood v. Tucker, 8 Cir., 287 F.2d 798; Bush v. Orleans Parish School Board, 205 F.Supp. 893 aff'd in part, rev'd in part, 5 Cir., 308 F.2d 491. But the facts do not yet indicate any such discrimination and the evidence presently before the court is insufficient. What facts there are indicate that the Board will treat all students even-handedly. After extensive testimony and intensive interrogation by the Court it is established that every child in the first and second grade will be routinely assigned to the school in his attendance district on the single-zone map unless he actively, of his own volition, chooses another school. This is supported by Section 5 of the Board's plan which indicates that the method for attending a school outside one's school district will be by transfer. Hence, having confected zone lines on non-racial considerations, the Board will assign all children to the school in his or her attendance zone and permit a child to leave an attendance zone only through transfers. The Board also indicates that it has not determined the criteria for transfer. It is presumed that whatever they are, they will be non-racial. Some well-established guidelines can be mentioned. Transfer provisions must be applied to white and negro even-handedly. The fact that one's race is in the minority is not a grounds for transfer since it is based on race. Boson v. Rippy, 5 Cir., 285 F.2d 43; Dillard v. School Board of City of Charlottesville, 4 Cir., 308 F.2d 920. The bases for a requested transfer must be consonant with sound school administration. The Board indicates that its transfer program will concern itself with the efficient use of the school plant as well as the maximum freedom of choice among the students. The record indicates that freedom of transfer is the traditional policy of the Board within administrative limits. This being the case, within the limits of the broad outline aforementioned, this Court will leave the Board to its own devices with the clear understanding that the plaintiffs may request further relief at any time. Other than that, this Court need not say more. Needless to say if the Board acts differently than it has indicated the Court is open to the plaintiffs and the Court has made provision for this in its order. To this extent then the Board's single-zone plans are approved insofar as registration no later than June 6, 1963, is concerned.

Plaintiffs' objections (1), (2) and (3) deal specifically with defendant's long-range plan. Plaintiffs point out that the Board did not provide for transfers in the second and third grades for 1962-1963 and argue that the Court of Appeals intended that there be "an additional measure of desegregation." Bush v. Orleans Parish School Board, 5 Cir., supra at 502 of 308 F.2d. Hence they argue those children who would have had an opportunity to attend a desegregated school under the original May 16, 1960, order will forever be denied that right. Additionally, plaintiffs seek the total desegregation of the Orleans Parish Schools in 1963-1964, or, in the alternative, the right of lateral transfer above the single-zone grades one and two. The Board argues that the problems involved in converting a dual zone into a single-zone system are momentous. The record shows that since its earliest inception the school system in New Orleans has been run on a dual system based on race. Consequently the existing school plants often are within a block of each other since each school separately served the white and negro children of the area. Moreover the Board has been engaged in a massive building program to meet the ever-increasing number of educables in the Parish. Clearly the Board has adequately borne the burden of excusing itself from desegregating the total school system this year. Secondly, a program of lateral transfer compounds the problem. Now that the elimination of the dual-zone system is a reality the need for stop-gap measures such as lateral transfers is not so critical. Moreover it does not practically fit into the present plan for desegregation.

In the original opinion, The Fifth Circuit ordered the desegregation of the first five grades by 1964. On rehearing, the court emphasized that, considering the altered attitude of the Board, the long-range plan of the Board might alter the then existing court-approved plans. In addition, the Fifth Circuit observed that "unfortunately, at this moment in this case there is too large a gap between logic and experience." Bush v. Orleans Parish School Board, 5 Cir., supra at 501. Somewhat the same situation obtains at present. The Board's plans to adopt the single-zone system in the first and second grades is not based on true experience. Until the single-zone system is put into effect, it will be impossible to determine its precise effect. Hence it is premature to make definitive decisions on the longrange plan. That decision will be pretermitted until the results of the single-zone system can be evaluated in the light of at least some actual experience. It is, of course, to be understood that the...