Carr v. Montgomery County Board of Education, Civ. A. No. 2072-N.

• Court: United States District Courts. 11th Circuit. Middle District of Alabama
• Writing for the Court: Howard A. Mandell, Montgomery, Ala., for Penelope Anne Jenkins and others
• Citation: 377 F. Supp. 1123
• Parties: Arlam CARR, Jr., et al., Plaintiffs, National Education Association, Inc., and Penelope Anne Jenkins, et al., Plaintiff-Intervenors. United States of America, Amicus Curiae, v. MONTGOMERY COUNTY BOARD OF EDUCATION, et al., Defendants.
• Docket Number: Civ. A. No. 2072-N.
• Decision Date: 22 May 1974

377 F. Supp. 1123

Arlam CARR, Jr., et al., Plaintiffs,
National Education Association, Inc., and Penelope Anne Jenkins, et al., Plaintiff-Intervenors.
United States of America, Amicus Curiae,
v.
MONTGOMERY COUNTY BOARD OF EDUCATION, et al., Defendants.

Civ. A. No. 2072-N.

United States District Court, M. D. Alabama, N. D.

May 22, 1974.

377 F. Supp. 1124

Fred D. Gray and Solomon S. Seay, Jr. (Gray, Seay & Langford), Montgomery, Ala. and Tuskegee, Ala., for plaintiffs. These attys. also represent plaintiff-intervenor National Education Assn., Inc.

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

Ira DeMent, U. S. Atty., and Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., Brian K. Landsberg, Joseph D. Rich and William C. Graves, Attys., Civil Rights Div., Dept. of Justice, Washington, D. C., for the United States.

Vaughan Hill Robison and Joseph D. Phelps (Robison, Belser, Brewer & Phelps), Montgomery, Ala., for the defendants.

OPINION

JOHNSON, Chief Judge.

This school desegregation case, having been previously before this Court and

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the appellate courts upon several occasions, is again submitted. The present submission is upon the pleadings, the evidence presented orally over a period of several days, and the briefs and arguments of the parties. Upon this submission this Court now makes appropriate findings of fact and conclusions of law. As authorized by Rule 52, Federal Rules of Civil Procedure, these findings and conclusions are incorporated in this memorandum opinion

I. HISTORY OF CASE

This case was originally filed in May, 1964, when a group of black children and their parents, with the United States participating as amicus curiae, asked this Court to enjoin the Montgomery County Board of Education from "continuing the policy, practice, custom, and usage of maintaining and operating a compulsory biracial school system."¹ Although ten years had passed since the Supreme Court's decision in Brown v. Board of Education,² the schools of Montgomery County, as was true in many areas of the United States, were completely segregated; one set of schools was operated exclusively for white students and staffed entirely by white teachers, and one set was operated for black students and staffed by black teachers. Thus, on July 31, 1964, this Court declared that the Montgomery schools were being operated in violation of the law of the United States and enjoined defendants from continuing to operate these schools on a racially segregated basis.³ But this Court fully "realized that desegregation of the public schools cut across the social fabric of this community and that there were both administrative and other practical problems for the board to cope with in order to comply with the law."⁴ Consequently, the board was allowed to proceed with desegregation in a gradual manner. A freedom-of-choice plan proposed by the board as the means for integrating four grades was accepted.

Almost two years later, on March 22, 1966, this Court ordered that the freedom-of-choice plan be implemented in 10 of the 12 grades for the 1966-67 school year and that the plan be fully operative throughout the system commencing with the fall of 1967.⁵ In addition, this Court decreed that:

Race or color will henceforth not be a factor in hiring, assignment, reassignment, promotion, demotion, or dismissal of teachers and other professional staff, with the exception that assignments shall be made in order to eliminate the effects of past discrimination.⁶

On August 17, 1967, and February 7, 1968, the United States requested this Court to require defendants to take further steps to disestablish the dual school system in Montgomery County. Upon review of the record, this Court found that the school board had failed to discharge

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its affirmative duty to eliminate the dual school system.⁷ Under the freedom-of-choice plan, only 550 blacks were attending traditionally white schools. No white children were attending traditionally black schools. Of the approximately 550 black teachers and 815 white teachers, only 32 were teaching in schools that were predominantly of the opposite race

On the basis of this evidence, it was found necessary to establish specific requirements governing minimum amounts of progress in future desegregation efforts. First, this Court ordered that the board must move toward a goal under which the ratio of white to black faculty members in each school was substantially the same as it was throughout the system.

Second, the school board was required to obtain approval from the State Superintendent of Education prior to the construction of any new school or any additions to existing schools.

Third, the board was ordered to eliminate race as a factor in the assignment of students to school buses and in its designation of bus routes. Finally, this Court observed that the board's freedom-of-choice plan was not working and that unless the plan became more effective in eliminating the dual school system, the Court would have no alternative except to order some other plan.⁸

For the first time in this case, defendants appealed this Court's order.⁹ On appeal, the Fifth Circuit affirmed the March 2, 1968, order.¹⁰ A petition for rehearing en banc was denied by the Fifth Circuit.¹¹ Finally, the Supreme Court granted certiorari and also affirmed this Court's order.¹²

In the summer of 1969, plaintiffs and the United States again filed motions asking this Court to require the board to take additional steps to disestablish Montgomery's dual school system.

An evidentiary hearing was held on February 24, 1970, to consider plans submitted by the United States and the board. The board's plan essentially adopted the basic elements of the plan proposed by the government experts with some minor changes and refinements.¹³ Under the board's

377 F. Supp. 1127

projections for the 1970-71 school year, this plan provided that there would be no all-white schools in the county and only one all-black school. Over plaintiffs' objections that this plan did not go far enough in eliminating the dual school system, this Court approved the board's plan with some modifications of its own.¹⁴ On appeal, the Fifth Circuit affirmed this Court's decision to implement the board's plan.¹⁵ The Fifth Circuit added the following cautionary note

Once a school board has acted, however, the courts have a solemn obligation to determine whether the structure designed by the school board will house a unitary school system. This obligation is unremitting, and there can be no abdication, no matter how temporary. Accordingly, any imprimatur of judicial approval must be entered with the caveat that until construction of a unitary system is completed, change orders, when appropriate, will be issued to ensure that the designed structure in fact accommodates a unitary system and not a bifurcated one.¹⁶

Since this Court's order of February 25, 1970, the board's plan has remained largely unaltered. The board has worked with plaintiffs and the United States in an effort to keep its plan updated, and changes in attendance zones and school facilities have been proposed and approved by this Court. But changes in the facts of this case—largely changes in residential patterns—and recent clarifications by the Fifth Circuit and the Supreme Court of the obligation of a school board to establish a unitary school system now necessitate an overall evaluation of this system's compliance with the requirements of the law. Accordingly, on August 29, 1973, all parties were ordered to submit their suggestions and proposals for the further desegregation of the Montgomery system.

It is important at this point to emphasize two factors that have characterized this continuing litigation. First, this Court has often recognized the practical problems and administrative difficulties in eliminating a dual school system that had been closely tied to long-established social patterns.¹⁷ A successful school system demands support from the community—both black and white. To facilitate this support, this Court has attempted to avoid imposing rigid or inflexible requirements on the board and, where possible, has allowed the parties to work out their own differences. In this way, this Court has constantly strived for a workable solution to the problems encountered in converting from a dual system to a "unitary system in which racial discrimination would be eliminated root and branch."

Second, all the parties to this litigation share the same goal: establishment of a "desegretated, unitary and nonracial school system."¹⁸ Every court that has reviewed the record of this litigation has observed that the differences between the parties have been unusually

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small.¹⁹ Moreover, the Montgomery County School Board has been repeatedly complimented for its good faith efforts to comply with the requirements of the law.²⁰ It is worthy of pride that the ten-year history of this case has been characterized throughout by cooperation from all the participants

II. AN ANALYSIS OF THE PLANS BEFORE THE COURT

A number of desegregation proposals have been submitted for the Court's consideration. In evaluating these proposals, it is important to keep in mind that the real controversy now presented centers around the operation of the elementary schools.

On January 15, 1974, the defendant board submitted its initial proposal, and the United States submitted a number of detailed suggestions. On February 14, 1974, the United States submitted a response to the defendants' first proposal, which incorporated additional desegregation suggestions. On February 16, 1974, the plaintiffs submitted their plan. On March 29, 1974, the defendants submitted their second plan, which was a revision of their January 15 proposal. On April 1, 1974, the plaintiff-intervenors submitted their proposal. In addition, the United States proposed a high school...