Chambers v. Iredell County Board of Education, 14243.

• Decision Date: 27 February 1970
• Docket Number: No. 14243.,14243.
• Citation: 423 F.2d 613
• Parties: Terry Ann CHAMBERS et al., Appellants, v. IREDELL COUNTY BOARD OF EDUCATION, a public body corporate of Iredell County, North Carolina, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

423 F.2d 613 (1970)

Terry Ann CHAMBERS et al., Appellants, v. IREDELL COUNTY BOARD OF EDUCATION, a public body corporate of Iredell County, North Carolina, Appellee.

No. 14243.

United States Court of Appeals, Fourth Circuit.

Argued February 4, 1970.

Decided February 27, 1970.

James E. Lanning and J. LeVonne Chambers, Charlotte, N.C. (James E. Ferguson, II, and Adam Stein, Chambers, Stein, Ferguson & Lanning, Charlotte, N.C., Conrad O. Pearson, Durham, N.C., Jack Greenberg, James M. Nabrit, III, and Norman Chachkin, New York City, on brief), for appellants.

Jay F. Frank and Frederick G. Chamblee, Statesville, N.C. (Marcus L. Nash, and Chamblee, Nash & Frank, Statesville, N.C., on brief), for appellee.

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

CRAVEN, Circuit Judge:

The question presented by this school case is whether Iredell County has established a unitary school system. We think that a unitary system has been substantially achieved, and affirm the decision of the district court.

The situation in the Iredell County school system is as follows: There are 18 schools in the system. All of these schools, except Unity Elementary School, are fully integrated at present. There are 9,647 students in the system of which 1,802 (23 percent) are black and 7,845 (77 percent) are white. The system operated under HEW approved freedom-of-choice plans from 1964 through the 1967-68 school year. In 1968-69 the school board adopted an approved zoning and freedom-of-choice plan. For 1969-70 the board has implemented a pure zoning plan that also was approved by HEW. The degree of integration achieved is demonstrated by an examination of the current racial structures of the various schools in the system.¹ The faculties are integrated in a ratio approximating the racial ratio among students in each school. No qualified black teacher applicant has been denied a job by the Board of Education or its staff, and there is no proof in the record of any discrimination in teacher employment. For 1969-70, all black teacher applicants were hired except one who was objectively unqualified and who applied after all of the available positions had been filled. Black teachers are employed throughout the system in approximately the same ratio to white teachers as black students to white students.

There is only one flaw in the unitary system adopted and already implemented by the school board: Unity School remains all black with 285 students.² Thus 1,517 black students have been fully integrated (84.2 percent) while 285 black students (15.8 percent) remain in an all-black school. The district judge found that the school board's decision to operate Unity School as an all-black school for the 1969-70 school year only was not racially motivated, and credited the explanation of the school board. Unity will be replaced by New East Elementary School, which is already well under construction and will be ready for occupancy by September 1970. East will absorb Unity's 285 black students and a part of the students from three other elementary schools: Cool Springs, Ebenezer and Wayside. The result in September 1970 will be a new integrated school (East) with approximately 285 blacks and 475 whites.

The district judge found that the closing of Unity was not racially motivated but was instead based on these considerations: (1) Unity is only 200 yards from the Statesville city limits, is adjacent to a scrap metal salvage yard, and is located on an inadequately small site (12 acres); (2) six of the 26 rooms at Unity are of obsolete wooden construction and are not fireproof; (3) Unity is not well situated relative to major thoroughfares; (4) a new school is needed to serve an expanding suburban population growth. It is urged upon us that the finding of the district judge is clearly erroneous. Appellants allege that the decision to close Unity was racially motivated because it arose out of a disinclination to put white pupils into a previously all-black school. This contention is not persuasive in light of the fact that the school board has already integrated Amity School, which was previously all-black and is now two-thirds white. There appears to have been no pattern of simply closing black schools because they have been black.

More difficult to justify than the closing of Unity is the failure of the Board of Education to "pair" it with Cool Springs, Ebenezer and Wayside Schools for the 1969-70 school year. Again the district judge credited the noninvidious explanation of the board. Unity was not allowed to remain all black during the last year of its operation in order to perpetuate one or more all-white schools. Wayside and Cool Springs are "racially balanced," i. e., the racial ratio among their students approximates that among all the students in the system, and Ebenezer has about half as many blacks as would be necessary for racial "balance." Ebenezer and Wayside are overcrowded and could not accommodate students from Unity. Although Cool Springs is operating at less than full capacity, it is located ten miles from Unity and almost that far from Ebenezer and Wayside. Moving white students from these schools to Unity, as suggested by appellants, could result in more racial mixing, but not necessarily in proportion to the racial mix in the entire school population. Unity's physical shortcomings have been described. Whether the Board of Education was motivated by valid educational considerations or by racial bias was an inference to be drawn from the facts by the district judge. In the context of the obvious good faith of the board and its effectiveness in otherwise completely disestablishing the former dual school system, we cannot say his decision was clearly erroneous.

It is true that absent reasonable effectiveness in disestablishing a segregated school system good intentions are of no avail. But here, in contrast to other cases we distinguish below, a remarkable degree of integration is now an accomplished fact. In all of the following cases, the challenge to the proposed plan of desegregation was directed to the inefficacy of freedom of choice.³ In Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (4th Cir., Dec. 2, 1969), 64 percent of the black students in grades one through six remained in a segregated situation. In Thompson v. Durham County Board of Education, 418 F.2d 1040 (4th Cir., Dec. 2, 1969), 86.4 percent of the black students in grades one through six remained in four all-black schools. In Ziglar v. Reidsville Board of Education, 418 F.2d 1040 (4th Cir., Dec. 2, 1969), 50 percent of the black children in grades one through five attended an all-black elementary school. In Tucker v. County School Bd. of Amherst County, 418 F.2d 1040 (4th Cir., Dec. 2, 1969), 76 percent of the black students in grades one through seven attended overwhelmingly black schools. In Traynum v. County School Board of Halifax County, 418 F.2d 1040 (4th Cir., Dec. 2, 1969), 93 percent of the blacks in grades eight through 12 attended an all-black school. In Stanley v. Darlington County School District, 424 F.2d 195 (4th Cir., Jan. 26, 1970), only seven percent of all black students in the system attended school with white students. In Whittenberg v. Greenville County School District, 424 F.2d 195 (4th Cir., Jan. 26, 1970), only 33 percent of all blacks attended integrated schools.

We think it also significant that in none of the cases that have previously come before us has there been an HEW approved terminal plan for integration actually implemented and put into operation. Furthermore, Iredell's terminal plan was adopted without prodding from the courts. That the Iredell County Board of Education has been responsible and conscientious in its efforts to achieve a unitary system is made plain by a letter inserted in the record from the Department of Health, Education and Welfare, Office for Civil Rights, set out in the margin.⁴ Contained in the letter is this sentence: "You Superintendent of the Iredell County Schools, your school board, and your staff are to be commended for the leadership you have shown in meeting the provisions of Title VI of the Civil Rights Act of 1964." We agree. Indeed, we think it doubtful that many school systems have achieved a higher degree of integration than presently prevails in Iredell County. The test is whether a given plan "promises realistically to work, and promises realistically to work now." Green v. County School Board of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). We think this plan works sufficiently well now to deserve the label of a unitary system.

We decline to order the integration of Unity School now, refuse to enjoin the construction of East Elementary School, and find no basis for issuance of an injunction against discriminatory hiring and administrative practices.

Affirmed.

SOBELOFF and WINTER, Circuit Judges (dissenting):

In refusing to order the integration of Unity School the majority's thesis is essentially that, since defendant has achieved substantial realization of a unitary school system, it should be rewarded for its good faith efforts to date by not requiring it now to do that which is presently feasible and presently required to bring it into greater compliance with the decisions of the Supreme Court and of this Court. This reasoning we emphatically reject. We dissent from each link in its chain.

Defendant's legal obligation to achieve a unitary system arose in 1954 with the decision in Brown I (Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873), and its duty to proceed to that goal arose in 1955 with the advent of Brown II (Brown v. Board of Ed. of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083). It did not begin to meet this obligation until 1964, when it instituted a freedom of choice plan. The majority concludes that, as a result of...