Cunningham v. Grayson

Decision Date23 August 1976
Docket Number75-2188,76-1413 and 76-1414,Nos. 75-2032,s. 75-2032
Citation541 F.2d 538
PartiesCynthia CUNNINGHAM and Richard N. Morgan, Plaintiffs-Appellants, v. Ernest GRAYSON and Jefferson County Board of Education et al., Defendants-Appellees. NEWBURG AREA COUNCIL, INC., et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, KENTUCKY, Defendant-Appellant, L. J. Hollenbach, III, County Judge, Intervenor. John E. HAYCRAFT et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, KENTUCKY, Defendant-Appellant. John E. HAYCRAFT et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, KENTUCKY, et al., Defendants, Anchorage Independent School District and Elizabeth Ewing, Superintendent, Intervening Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Kyle T. Hubbard, Louisville, Ky., for Cynthia Cunningham and Richard morgan.

James T. Robertson, Louisville, Ky., for intervenors.

John Fulton, Will H. Fulton, Henry A. Triplett, Hogan, Taylor, Denzer & Bennett, E. Preston Young, Louisville, Ky., for Ernest Grayson and Board of Ed. of Jefferson County et al.

John G. O'Mara, Thomas L. Hogan, Louisville, Ky., for Newburg Area Council, Inc. et al.

J. Bruce Miller, Ben J. Talbott, Jr., Middleton, Reutlinger & Baird, Louisville, Ky., for intervenor L. J. Hollenbach, III.

Darryl Owens, Galen Martin, Thomas Hogan and John G. O'Mara, Louisville, Ky., for John E. Haycraft et al.

J. Donald Dinning, James W. Stites, Jr., J. Bissell Roberts, Stites, McElwain & Fowler, Louisville, Ky., for Anchorage Ind. School Dist. et al.

Before PHILLIPS, Chief Judge, and PECK and McCREE, Circuit Judges.

JOHN W. PECK, Circuit Judge.

On December 28, 1973, this court reversed the district court's dismissals of plaintiffs' (No. 75-2188) separate complaints designed to desegregate purportedly dual school systems in Louisville and Jefferson County. We remanded to the district court with directions to eliminate "all vestiges of state-imposed segregation," caveating that "state-created school district lines shall impose no barrier." 489 F.2d 925, 932. After the Supreme Court vacated the opinion of December 28, 1973, in light of Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), this court on December 11, 1974, reinstated (with minor modifications) its opinion of December 28, 1973. 510 F.2d 1358. The Supreme Court denied certiorari. 421 U.S. 931, 95 S.Ct. 1658, 44 L.Ed.2d 88 (1975).

The Kentucky State Board of Education on February 28, 1975, ordered the merger of the Jefferson County and Louisville Boards of Education, effective April 1, 1975, but because of the boards' "different views and positions as to the type and nature of the desegregation plan (the district c)ourt should order, if any," the district court on March 31, 1975, directed the Jefferson County Board of Education (JCBE) and Louisville Board of Education (LBE) to "retain their (pre-April 1, 1975) legal identities" for the desegregation litigation.

JCBE and LBE filed separate desegregation plans with the district court, but on July 30, 1975, the district judge, rejecting the parties' proposals as being constitutionally insufficient, formulated his own desegregation plan. In order to insure black enrollments in the 20 per cent black system in each elementary school of between 12 and 40 per cent and in each secondary school of between 12.5 and 35 per cent, the district judge required pupil transportation from district (neighborhood) schools to assigned schools ("busing"). The plan exempted black and white pupils attending sixteen elementary and twelve secondary schools within the racial guidelines from being bused. The plan also, inter alia, ordered the closing of twelve schools, provided for racial balance in teacher and administrative assignments, and exempted from busing pupils participating in certain programs, such as Headstart, alternative schools, teenage parents, and rehabilitation schools. JCBE has appealed from the desegregation order (No. 75-2188), and from a district court order requiring it to pay $60,000 to various plaintiffs' attorneys as attorneys' fees (No. 76-1413).

Consolidated with Nos. 75-2188 and 76-1413 in the instant opinion are plaintiffs' appeal from a district court order dismissing intervening defendant Anchorage Independent School District (AISD) (No. 76-1414), and the appeal of two white pupils, subject to the district court busing plan, from the district court dismissal of their civil rights complaint (No. 75-2032). We affirm in all four appeals.

The Desegregation Order (No. 75-2188)

JCBE claims that the district judge erred in imposing the desegregation plan of July 30, 1975, because the plan exceeds the violation, purportedly being limited in pre-merger Jefferson County to three schools; because the district judge imposed "arbitrary racial ratios" rather than using the systemwide racial composition as a "starting point" in formulating the plan; and because the plan inequitably burdens blacks in general, some blacks more than other blacks, and some whites more than other whites by "busing" blacks more than whites, some blacks (nine years) more than other blacks (eight years), and some whites (two years) more than other whites (one year). 1 At oral argument, JCBE contended that the district judge erred in rejecting its desegregation plan, the Jefferson Education Trip (JET), as constitutionally inadequate. However, we find no error in rejecting JET and no abuse of the remedial discretion of the district judge in imposing his desegregation plan.

Assuming that the district judge was obligated to accept JET should it be constitutionally sufficient, 2 the judge properly rejected JET, as originally formulated, 3 because it provides only for "part-time desegregation." JET provided that elementary pupils would spend "at least one hour" at their undesegregated neighborhood school; then each class, with its teacher, would board a speaker-equipped bus for continued instruction and transportation to an assigned "away" school, spend three and one-half to four hours at the "away" school for instruction and lunch, and then return by bus to the neighborhood school. Middle and high school pupils would similarly be transported to assigned "away" schools for "four periods of instruction and lunch," but they would be assigned as individuals, rather than by classrooms. JET unfortunately fails to convert schools in a school system, found to be de jure segregated, from "a 'white' school (or) a 'Negro' school, (to) just schools." Green v. County School Bd., 391 U.S. 430, 442, 88 S.Ct. 1689, 1696, 20 L.Ed.2d 716, 726 (1968). The Tenth Circuit in Keyes v. School District No. 1, 521 F.2d 465, 475-479 (10th Cir. 1975), cert. denied, 423 U.S. 946, 96 S.Ct. 806, 46 L.Ed.2d 280 (1976), found a similar court-adopted "half-day" plan to be constitutionally insufficient.

"The claimed advantage of the court's part-time desegregation program over the same program run full-time is continuous neighborhood contact with school facilities. Part-time pairing offers easier access to school inasmuch as each student would attend his neighborhood school for at least a portion of every day. The neighborhood school arguably would remain viable as an afterschool playground and as the focus for extracurricular and parent activity. Although we acknowledge such neighborhood contact to be important, we cannot place it above the constitutional rights of children to attend desegregated schools. We perceive those rights to include full-time attendance in a desegregated setting." 521 F.2d at 478.

See Morgan v. Kerrigan, 530 F.2d 401, 410 (1st Cir. 1976); Brinkman v. Gilligan, 518 F.2d 853 (6th Cir. 1975); Tasby v. Estes, 517 F.2d 92, 104 (5th Cir.), cert. denied, 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975); United States v. Texas Educ. Ass'n, 467 F.2d 848, 872-873 (5th Cir. 1972); United States v. Board of Educ., 431 F.2d 59, 61 (5th Cir. 1970); Dowell v. Board of Educ., 338 F.Supp. 1256 (W.D.Okla.), aff'd, 465 F.2d 1012 (10th Cir.), cert. denied, 409 U.S. 1041, 93 S.Ct. 526, 34 L.Ed.2d 490 (1972).

Since JCBE failed to propose a constitutionally sufficient desegregation plan, "the scope of a district court's equitable powers to remedy past wrongs (was) broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554, 566 (1971). The plan adopted was "well within (the district judge's) judicial discretion." Kelley v. Metropolitan County Bd. of Educ., 463 F.2d 732, 746 (6th Cir. 1972), cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1973).

We reject JCBE's claim that the district judge promulgated an " excessive" remedy by formulating a county-wide desegregation plan. JCBE claims that the finding of de jure segregation in Louisville-Jefferson County was limited to three of 103 schools in the former Jefferson County school system, but admits that approximately 85 per cent of the 61 schools in the former Louisville school system were "racially identifiable" in a system which had "formerly practiced segregation by law." In Keyes, supra, 521 F.2d 465, the Tenth Circuit sustained a district court's adoption of a system-wide desegregation plan even though the de jure segregation was limited to "a single corner of the school district."

"Whether a school system is illegally segregated by reason of statutory separation of the races or by reason of past segregative acts of school authorities, the scope of the remedy must in either case be system-wide. . . .

"(T)he School Board urges us to adopt special remedial standards for cases of non-statutory de jure segregation and to limit the remedy to direct results of the Board's segregative acts in Park Hill. We believe the Board's suggestion would saddle the plaintiffs, in the remedy phase of their case, with the burden of...

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