Carr v. Montgomery County Board of Education, 74-2633

Decision Date11 April 1975
Docket NumberNo. 74-2633,74-2633
Citation511 F.2d 1374
PartiesArlam CARR, Jr., a minor by Arlam Carr and Johnnie Carr, etc. et al., Plaintiffs-Appellants, National Education Association Inc., Intervenor, Penelope Anne Jenkins et al., Intervenors-Appellants, v. MONTGOMERY COUNTY BOARD OF EDUCATION et al., etc., Defendants-Appellees, United States of America, Amicus Curiae.
CourtU.S. Court of Appeals — Fifth Circuit

Howard A. Mandell, Montgomery, Ala., for Penelope A. Jenkins, and others.

Joseph D. Phelps, Vaughan Hill Robinson, Montgomery, Ala., for Montgomery Cty. Bd. of Education, and others.

Ira DeMent, U.S. Atty., Montgomery, Ala., Robert Pressman, Atty., Civ. Rights Div., U.S. Dept. of Justice, Washington, D.C., amicus curiae for U.S.A.

Appeals from the United States District Court for the Middle District of Alabama; Frank M. Johnson, Jr., Chief Judge.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT

OF ALABAMA, NORTHERN DIVISION

ARLAM CARR, JR., ET AL., Plaintiffs,

NATIONAL EDUCATION ASSOCIATION, INC.; PENELOPE ANNE

JENKINS; ET AL., Plaintiff-Intervenors,

UNITED STATES OF AMERICA, Amicus Curiae,

v.

MONTGOMERY COUNTY BOARD OF EDUCATION, ET AL., Defendants.

CIVIL ACTION NO. 2072-N

JUDGMENT

Pursuant to the findings of fact and conclusions of law made and entered in a memorandum opinion filed in this cause this date, it is the order, judgment and decree of this Court that:

1. The plans presented by the plaintiffs and plaintiff-intervenors for the further desegration of the Montgomery County school system be and are hereby rejected.

2. The plan presented by the defendant Montgomery County Board of Education on January 15, 1974, revised on March 29, 1974, and modified on May 8, 1974, be and is hereby approved and ordered implemented.

3. The school board's plan will be implemented forthwith, with the student assignments to the various schools within the system to be effective with the commencement of the 1974-75 school year.

4. The school board will file with this Court on September 15, 1974, and on February 15, 1975, and on said dates each year thereafter, written reports reflecting the actual student and teacher assignments, by race, in each school in the system.

5. The costs incurred in this proceeding be and they are hereby taxed one-half against the plaintiffs and one-half against the plaintiff-intervenors.

Done, this the 22nd day of May, 1974.

(s) Frank M. Johnson

UNITED STATES DISTRICT JUDGE

GOLDBERG, Circuit Judge (dissenting):

Respectfully, but without equivocation, I dissent.

This suit was brought in 1964 to desegregate the public schools in Montgomery County, Alabama. Its progress has been recorded at several stages in opinions by the able District Judge, by this Court, and by the Supreme Court. 1 In August, 1973, the district court ordered the parties then in this case--the plaintiffs, the defendant School Board, and the United States--to submit proposals for further desegregation of the Montgomery County system in light of decisions by this Court and the Supreme Court since the entry in 1970 of the last comprehensive order in the case. One week later, plaintiffs-intervenors, Jenkins, et al., filed their motion to intervene, which was granted in February, 1974. During the first four months of 1974, plaintiffs, plaintiffs-intervenors, and the School Board each prepared and proposed new pupil assignment plans. Hearings were held on each plan in April. The School Board amended its plan in response to prodding from the Bench, and in an order entered May 22, 1974, and opinion reported at 377 F.Supp. 1123, the district court adopted the School Board plan, as amended, in its entirety. Costs were taxed half against the plaintiffs and half against the plaintiffs-intervenors.

The plaintiffs, the plaintiffs-intervenors, and the United States appeal, arguing between them that the district court erred in adopting the School Board's plan for the assignment of elementary and high school students, that the School Board assignment plan saddles black elementary school students with a disproportionate transportation burden, and that costs should have been taxed against the School Board.

I would hold that the district court should not have adopted the School Board's proposed assignment plan for the elementary grades because it fell short of establishing a unitary school system, and there was no sufficient finding that no workable alternative could be implemented. The record indicates additionally that the School Board plan for the assignment of junior high students, as implemented, fails to comply with constitutional mandates. Accordingly, I would remand to the district court for further proceedings to develop workable unitary school assignment plans for the elementary and junior high grades. In light of this I would find it unnecessary at this time to pass on the appellants' claims of unequal transportation burdens. I would vacate the district court's award of costs in favor of the School Board, to permit the entry of an appropriate award after the further proceedings on remand.

I Background

For the 1973-74 term, Montgomery County public schools enrolled 36.016 students, 17,042 (47%) of whom were black, and 18,974 (53%) white, in some 54 regular schools, organized along a 1-6, 7-9, 10-12 pattern. The 36 elementary schools enrolled 18,449 students (9,279, or 50%, black), the 13 junior high schools, 9,644 (4,390, or 45%, black), and the 5 high schools 7,923 (3,373, or 43%), black) 2 All but 7 of the schools then in sue stood within the corporate limits of the City of Montgomery, and the total county population is similarly concentrated within the City.

The student population residing in the area of Montgomery County outside the City is predominantly black. Within the City the student population is predominantly white: the eastern half of the City is more concentratedly white; most of the western half is virtually all-black; and a narrow integrated corridor running North-South bisects the City. Under the desegregation plan adopted in 1970 and effective in 1973-74, most pupils within the City were assigned to neighborhood schools. Outside the City, school children in all but the extreme south of the county 3 were organized into "periphery zones." Most of these "periphery zones." Most of these "periphery zone" students were bused to schools in the City, and they made up the majority of the 11,176 students (31%) bused by the county. 4

Implementation of the neighborhood-assignment based plan adopted in 1970 left a high number of all-one-race or virtually all-one-race schools. The record discloses that in the Spring of 1974, 15 elementary schools were 87% or more black, and 6 were 87% or more white; 6 junior highs were 94% or more black, another was 85% black, and 1 was 90% white; 1 senior high was 99% black, and another was 86% black. Responding to these conditions, in its order below the district court replaced its 1970 plan with the School Board's most current proposal. That plan adheres to the techniques employed in the 1970 plan, and, unlike the plans suggested by the plaintiffs and plaintiffs-intervenors, eschews pairing or clustering of schools.

At the high school level, the School Board plan employes rezoning and peripheral reassignments to reduce the percentages of black students at each City school to 33-48%; only Montgomery County High School, in the extreme south of the County, retains an 87% black student body. 5 None of the appellants question the propriety of this high school plan, and it requires no further discussion. Rather, this appeal was brought to test the constitutional sufficiency of the School Board's student assignment plans for the elementary and junior high levels. I will discuss each of the two educational stages in turn.

II Elementary School Plan

The plaintiffs and plaintiffs-intervenors each proposed alternative plans for assignment of elementary school students. Each plan aimed at eliminating "racially identifiable" schools, defined at the outset by each plan's architect as a school whose racial balance varied more than 10-15% from the racial make-up of the county-wide student body for that level. Neither plan clung strictly to such statistical profiles, however, and each left at least one virtually all-black elementary school.

The plaintiffs' plan was directed only toward the elementary schools within the City. It generally retained the zone lines drawn by the School Board, but changed assigned patterns within those zones through pairing and clustering, and some modification of peripheral assignments, to reach a 24-66% black concentration in each city school. The district court calculated that implementation of the plaintiffs' plan would require reassignment of 43% of the elementary school population and additional transportation of 28% of the elementary student body. The district court concluded that the plaintiffs' plan was designed "for the sole purpose of attaining a strict racial balance in each elementary school involved," 377 F.Supp. at 1129, and that the increased busing, large scale reassignment of students and teachers, and the "fracturization of grade structure" inherent in pairing and clustering, "be disruptive to the educational processes and would place an excessive and unnecessarily heavy administrative burden on the school system." Id.

The plaintiffs-intervenors proposed a more complicated overhaul of elementary school assignments. Their plans abandoned the School Board zone lines, replacing them with two sets of new zones: one set of strip zones, running generally North-South, for grades 1-3; another set of strip zones, running generally...

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