Davis v. Board of School Com'rs of Mobile County, 25162

• Decision Date: 26 April 1968
• Docket Number: 25175.,No. 25162,25162
• Citation: 393 F.2d 690
• Parties: Birdie Mae DAVIS et al., Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Appellees. UNITED STATES of America, Appellant, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

393 F.2d 690 (1968)

Birdie Mae DAVIS et al., Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Appellees.

UNITED STATES of America, Appellant, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Appellees.

Nos. 25162, 25175.

United States Court of Appeals Fifth Circuit.

March 12, 1968.

As Modified on Denial of Rehearing April 26, 1968.

No. 25162:

Vernon Z. Crawford, Mobile, Ala., Charles H. Jones, Jr., New York City, Frank Dunbaugh, Walter Gorman, Attys., Dept. of Justice, Washington, D. C., Michael Davidson, New York City, Jack Greenberg, New York City, Frankie L. Fields, Mobile, Ala., Norman C. Amaker, New York City, John Doar, Asst. Atty. Gen., Owen M. Fiss, Brian K. Landsberg, Frank W. Hill, Attorneys, Department of Justice, Washington, D. C., for appellants.

Abram L. Philips, Jr., Mobile, Ala., Palmer Pillans, George F. Wood, Mobile, Ala., for appellees.

No. 25175:

Charles H. Jones, Jr., New York City, Vernol R. Jansen, Jr., U. S. Atty., Mobile, Ala., Walter Gorman, Frank M. Dunbaugh, Attys. Dept. of Justice, Washington, D. C., Vernon Z. Crawford, Mobile, Ala., Jack Greenberg, Michael Davidson, New York City, Frankie L. Fields, Mobile, Ala., Norman C. Amaker, New York City, John Doar, Asst. Atty. Gen., Owen M. Fiss, Brian K. Landsberg, Frank W. Hill, Attorneys, Department of Justice, Washington, D. C., for appellants.

A. L. Philips, Jr., Mobile, Ala., Palmer Pillans, George F. Wood, Mobile, Ala., for appellees.

Before MARIS,^* THORNBERRY and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge:

In the face of a vexing, continuing problem, this Court decreed that school boards in this Circuit have an affirmative duty to effectuate a transition to unitary racially nondiscriminatory school systems. This means integration of faculties, facilities, and activities, as well as students. The time for implementing programs that work is now. United States v. Jefferson County Board of Education, 5th Cir. 1967, 372 F.2d 836, aff'd en banc, 380 F.2d 385, cert. denied sub nom., Caddo Parish School Board v. United States, 1967, 389 U.S. 840, 88 S. Ct. 67, 19 L.Ed.2d 103.

With the law in mind, we turn once again to Mobile County, Alabama.¹ In 1966, another panel considered Mobile's plan for desegregation of schools and found it deficient in several respects:

Principal among these defects is the fact that even as to those grades which, under the plan, have actually become "desegregated" there is no true substance in the alleged desegregation. Less than two-tenths of one percent of the Negro children in the system are attending white schools. Another defect is the length of time that the plan would require to come to a final fruition; another is the option given to white students living within the "area" or "district" of a given school to transfer to another district or area to attend a white school there, without the granting of a similar option to a Negro child residing within the area of a Negro school to transfer to a white school outside the area; a further significant defect is the lack of provision for a Negro child to attend a school offering particular subjects if such subjects are taught only in white schools; and finally, there is the failure of the plan to start desegregation of the faculties of the schools.

Davis v. Board of School Commissioners of Mobile County, 5th Cir. 1966, 364 F.2d 896, 901. The school board attempted to meet these objections and to comply with the Court's decision by (a) drawing new boundary lines for some of the school attendance areas or geographic zones, (b) making optional schools outside of attendance areas available to Negroes as well as whites, and (c) taking steps toward gradual faculty desegregation. In the urban areas of the county, a Negro or white student can now attend (a) the school serving his attendance area, (b) the nearest formerly white school serving his residence, or (c) the nearest formerly Negro school serving his residence. The optional schools, i. e., the nearest formerly white and formerly Negro schools, are available only to students in the following categories: (a) Those enrolling for the first time in the Mobile Public School System; (b) those enrolling in the first grade; (c) those who change their residence from one attendance area to another; (d) those going from elementary to junior high school or from junior high school to senior high. Transfer subject to approval is available to students of any grade. In the rural areas of the county, a Negro or white student can attend (a) the nearest formerly white school serving his residence or (b) the nearest formerly Negro school serving his residence. Because of the relatively small number of schools and the widely scattered population, the board did not consider attendance areas practical for the rural areas. As for faculty desegregation, the board selected a small number of white and Negro teachers to whom to offer the option of transferring to a school in which students and teachers of the opposite race predominate.

The district court held that the boundary lines for the attendance areas had been drawn on a nonracial basis and that the school board's over-all plan for desegregation of students was in substantial compliance with the Fifth Circuit decisions. The court also held that the board had made an adequate start toward desegregation of faculty.² While many subsidiary issues are raised on this appeal, the fundamental ones are whether this Court can put its stamp of approval on the attendance-zone lines drawn by the school board and the free-choice plan engrafted onto attendance zones and whether it can affirm the finding that the board has made an adequate start toward desegregation of faculty.

I. Students

We look first to the results produced by appellee's plan for integrating students in Mobile County. The Mobile Public School System, the largest in Alabama, has 93 schools. In round numbers, there are 44,000 white students and 31,000 Negroes for a total of 75,000. According to appellee's figures for the current school year (1967-68), there are 33 biracial schools in the system as compared with 15 a year ago. 29,031 students attend biracial schools as compared with 15,650 in 1966-67. 27,023 of the students attending biracial schools are white and 2,008 are Negro. There are 692 Negroes attending schools of predominantly white enrollment and 4 white students attending schools of predominantly Negro enrollment. Accepting the fact that this Court uses the HEW guidelines as a yardstick for measuring the progress of desegregation in particular school districts, the school board argues that it has more than satisfied HEW percentages. While the Guidelines require that a district employing a freedom-of-choice plan for at least two years have 15 to 18 per cent of its student population in desegregated schools, Mobile now has 29,031 or 38 per cent of its students in biracial schools.

The percentage of total students in biracial schools is superficially acceptable, but beneath the surface the picture is not so good. In its per curiam adopting the panel's opinion in Jefferson County, this Court said that school desegregation can first be measured quantitatively, using percentages as a rough rule of thumb, but ultimately must be measured qualitatively, judging whether schools are still identifiable as white or Negro. 380 F.2d, at 389-390. Judging by the qualitative standard and by what we conceive to be the spirit of Jefferson County, we are unable to say that Mobile's plan is working so well as to make judicial interference unnecessary at this time. Two-thirds of the schools remain totally segregated and unquestionably identifiable as Negro or white; desegregation of the remaining schools has been so minimal that it would be generous to say they are no longer identifiable as Negro or white. Though Negroes comprise about 41 per cent of the student population, the crucial fact is that only 2,008 or 6.5 per cent of them are experiencing a desegregated education. Moreover, this figure of 6.5 per cent can realistically be reduced to 2 per cent (692) because 1,316 of the 2,008 Negroes attending biracial schools are in schools attended by only 4 white students. The only Negroes really experiencing a desegregated education are the 692 attending schools of predominantly white enrollment. Although this is 511 more than the number of Negroes who attended predominantly white schools last year (181), it is inarguable that the percentage of Negroes experiencing a desegregated education is still too low. The number of Negro children in school with white children is so far out of line with the ratio of Negro school children to white school children in the system as to make inescapable the inference that discrimination yet exists. See Jefferson County, supra, 372 F.2d, at 887.

Having found the results of the present plan unsatisfactory, we turn to the difficult question of what should be done. Our primary concern is to see that attendance zones in the urban areas of Mobile County be devised so as to create a unitary racially nondiscriminatory system. Appellee contends, and the district court found, that boundary lines for the zones were drawn on a nonracial basis, using objective criteria such as natural landmarks and safety factors; but there is no information in the record by which this Court can judge whether the district court's determination was correct or not. The school officials who testified were unable to state clearly what criteria they used in determining the location of the various lines, and they were unable to produce the source material — maps, charts, memoranda, etc. — they used. For the benefit of reviewing judges who may be unfamiliar with the city or county in question, it is essential that school officials be able to state what criteria were used in determining geographic zones and to produce evidence to support their statements. In this case, it will be necessary...