Calhoun v. Cook

• Citation: 522 F.2d 717
• Decision Date: 23 October 1975
• Docket Number: No. 74-2784,74-2784
• Parties: Vivian CALHOUN et al., Plaintiffs-Appellants, Deborah Birt et al., Intervenors-Appellants, Emma Armour et al., Intervenors-Appellants, v. Ed S. COOK et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 717

522 F.2d 717

Vivian CALHOUN et al., Plaintiffs-Appellants, Deborah Birt et al., Intervenors-Appellants, Emma Armour et al., Intervenors-Appellants, v. Ed S. COOK et al., Defendants-Appellees.

No. 74-2784.

United States Court of Appeals, Fifth Circuit.

Oct. 23, 1975.

Elizabeth R. Rindskopf, New Haven, Conn., John R. Myer, Atlanta, Ga., Norman J. Chachkin, Jack Greenberg, James M. Nabrit, III, New York City, for Vivian Calhoun and others.

Margie Pitts Hames, Glenna L. Stone, Atlanta, Ga., for Emma Armour and others.

Warren C. Fortson, Prentiss Q. Yancey, Jr., Bruce H. Beerman, Atlanta, Ga., for defendants-appellees.

On Appeal from the United States District Court for the Northern District of Georgia.

Before WISDOM, THORNBERRY and CLARK, Circuit Judges:

CLARK, Circuit Judge:

Since 1958 when this school desegregation suit was filed, the winds of legal effort have driven wave after wave of judicial rhetoric against the patrons of the Atlanta public school system. Today hindsight highlights the resulting erosion, revealing that every judicial design for achieving racial desegregation in this system has failed. A totally segregated system which contained 115,000 pupils in 1958 has mutated to a substantially segregated system serving only 80,000 students today. A system with a 70% White pupil majority when the litigation began has now become a district in which more than 85% Of the students are black. Notwithstanding the lack of success in integrating these classrooms, our task is to test whether the plan approved for district operation realistically promises effective protection Now for the right of the pupils to a nondiscriminatory education.

Almost predictably, changing circumstances during these years of litigation have dissolved the initial unity of the plaintiffs' position. This is most graphically demonstrated by the fact that the instant appeal is taken from a district court order which adopts a plan developed and agreed to between a substantial number of locally represented black plaintiffs and the school district's officials, the present majority of whom are black. The moving force behind the present appeal, the original counsel for the plaintiff class, emphasize that the plan approved and implemented by the district court was and still is objected to by them as constitutionally inadequate. They urge that reasonably available techniques to achieve further school desegregation, particularly the transportation, zoning and pairing of white students into predominantly black schools, have not been utilized. Finally, they emphasize such desegregation as has been accomplished under the plan approved has been effected entirely by the transportation of black pupils to predominantly white schools.

The district has been operated under the plan in question for the past 2 years. Its principal objective to achieve at least 30% Black enrollment in every majority white school in the system has been substantially met. The plan also achieved a goal of strengthening a program to encourage voluntary transfers by pupils of the majority race group in any school into any other school in which their race was in the minority. However, the flow in this transfer program has been only from black to white schools. The plan's success in these achievements has had little effect on the all, or substantially all, black schools. Out of 148 schools in the city system, Atlanta still operates 92 schools with student bodies which are over 90% Black.

Following a suggestion initially advanced by the district court in July, 1971 (N.D.Ga., 332 F.Supp. 804 at 809), a separate action was brought before a three judge district court styled Armour v. Nix, Civil No. 16708, (N.D.Ga.). It seeks to combine or consolidate the Atlanta school system with the public educational facilities in neighboring communities. The order presently on appeal reserved any ruling on the question of such consolidation pending the outcome of the three judge action and notes that "all matters pertaining to the metropolitan school systems have been severed from this proceeding and are reserved for further resolution in Armour."

The district court found the plan submitted by the parties to be constitutionally realistic and viable for the Atlanta school district, and to accord with the prior directives of this court in this case. It therefore adjudicated that "the Atlanta school district was unitary and has purged itself of all vestiges of the formerly state imposed dual system." Appellants urge that...