Davis v. Board of Ed. of North Little Rock, Ark. School Dist.

• Decision Date: 23 March 1982
• Docket Number: No. 81-1875,81-1875
• Citation: 674 F.2d 684
• Parties: 3 Ed. Law Rep. 522 Robert J. DAVIS, Carnell Graves, Richard J. Graves, Vickie Ann Graves, Meredith D. Graves, Debra M. Graves and Kevin R. Graves, minors, by their father and next friend, Floyd Graves and Lorene Joshua, Appellants, v. BOARD OF EDUCATION OF the NORTH LITTLE ROCK, ARKANSAS, SCHOOL DISTRICT, apublic body corporate, and F. B. Wright, Superintendent of Schools of the NorthLittle Rock School District, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 684

674 F.2d 684

3 Ed. Law Rep. 522

Robert J. DAVIS, Carnell Graves, Richard J. Graves, Vickie Ann Graves, Meredith D. Graves, Debra M. Graves and Kevin R Graves, minors, by their father and next friend, Floyd Graves and Lorene Joshua, Appellants, v. BOARD OF EDUCATION OF the NORTH LITTLE ROCK, ARKANSAS SCHOOL DISTRICT, apublic body corporate, and F. B Wright, Superintendent of Schools of the NorthLittle Rock School District, Appellees.

No. 81-1875.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 14, 1982.

Decided March 23, 1982.

Robert V. Light, Little Rock, Ark., for appellees; Herschel H. Friday, Little Rock, Ark., of counsel.

John W. Walker, Little Rock, Ark., for appellants.

Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

The Board of Education of the North Little Rock School District sought permission from the district court to revise its desegregation plan. The Board wished to close one of its schools in order to ease administrative problems caused by declining enrollment and decreased funding. This motion was opposed on the grounds that it would place a disproportionate transportation burden on black students and because it would mean the closing of the only junior high in a black neighborhood. The district court, 502 F.Supp. 108, ¹ approved the proposed closing. We affirm.

I. PROCEDURAL OVERVIEW

The original complaint in the North Little Rock school desegregation case was filed in August 1968. Since that time, there has been ongoing litigation concerning, first, the nature of the desegregation plan to be adopted and, second, whether the plan has been faithfully implemented by the District and what revisions the District may properly install. See Graves v. Board of Education, 299 F.Supp. 843 (E.D.Ark.1969); Graves v. Board of Education, 302 F.Supp. 136 (E.D.Ark.1969); Davis v. Board of Education, 328 F.Supp. 1197 (E.D.Ark.1971), modified on appeal, 449 F.2d 500 (8th Cir. 1971) (en banc); Davis v. Board of Education, 362 F.Supp. 730 (E.D.Ark.1973); Davis v. Board of Education, 635 F.2d 730 (8th Cir. 1980), cert. denied, --- U.S. ----, 102 S.Ct. 413, 70 L.Ed.2d 223 (1981).

This is the third time that this suit has been before this court. On the first occasion our en banc court approved the desegregation plan adopted by the district court. The opinion clearly envisaged that on remand the district court was to retain jurisdiction. Davis v. Board of Education, supra, 449 F.2d at 502. In this case's second trip to the court of appeals this court determined that certain changes in student transportation and in employment, assignment and dismissal of faculty and staff were required. Again, the district court was instructed to retain jurisdiction until such time as the North Little Rock School District is thoroughly integrated. Davis v. Board of Education, supra, 635 F.2d at 733.

In May 1981, defendant Board of Education filed the motion which led to this appeal. The Board sought approval to close the present seventh grade center which was housed in the building known as the Jones School. The motion and an accompanying document stated that enrollment in the seventh, eighth and ninth grades had declined 781 students, from 3170 in 1971, when the desegregation plan was imposed, to 2389 students for the 1980-81 school year. The motion maintained that the closing of the Jones School was educationally sound because of the decline in enrollment and economically prudent because reductions in federal and state aid had forced the Board to reduce its budget by approximately $1 million.

The intervenor-plaintiff resisted this motion and asserted, in relevant part, that (1) the proposed closing would materially alter the desegregation plan "in that it will further burden black children who are already disproportionately burdened insofar as transportation is concerned," (2) the closing of the Jones School represented the School Board's "bad faith" in the way it had conducted desegregation in North Little Rock. Essentially, the plaintiff asserts that the school was adequate prior to desegregation and that the Board had an obligation to adequately maintain the Jones School.

A one-day hearing on the motion was held. George Miller, Superintendent of Schools; Andrew Power, Assistant Superintendent and George Stancil, President of the Board of Education, all testified in support of the motion. Power and Stancil are black. The appellants produced only one witness, plaintiff-intervenor Lorene Joshua. Joshua only gave testimony concerning her legal standing in this case. Following the hearing, the district court concluded:

The testimony of the movants amply supported their position that the District is faced with a budget reduction of $1,150,000; that the closing of Central would save the district approximately $340,000; that the Poplar Street facility is a more desirable site from the standpoint of physical facilities and location, and that it would require less maintenance and security costs. While it is true that slightly more blacks than whites (120 against 93) would be bused under the proposed plan than were bused in the 1980-81 school year, we do not regard these figures as significant or unduly impacting upon the black children.

This appeal followed. A stay pending appeal was denied.

II. FACTUAL BACKGROUND

The decision to close the Jones School affects the students in grades seven, eight and nine. The "Storm" plan, see Davis v. Board of Education, supra, 449 F.2d at 501, n.2, utilized five separate buildings to handle these three grades. Central Junior High, formerly located in the building known as the Jones School, was the seventh grade center. The seventh grade center was the school for all the seventh graders in the North Little Rock School District. Four other schools (Poplar Street, Ridge Road, Lakewood and Rose City) served the students in eighth and ninth grades. The Board's proposal closed the Jones School, shifted the seventh graders to the Poplar Street school and used the remaining three schools for eighth and ninth grade students.

The Jones School was located in the Dixie Addition of North Little Rock. It was the only junior high building in a black neighborhood. ² The main building of the Jones School was built in 1952. The gymnasium was built in the early 60s. The Jones School consists of three other buildings. Two were built with used lumber. The third is a "real old" elementary school.

The Poplar Street School is north and west of Jones but is still centrally located. ³ It is in a racially mixed neighborhood. Poplar Street was built shortly after World War II.

The three remaining junior high buildings are near the outer boundaries of the school district and could not be classified as centrally located.

The School Board's evidence indicated that it considered closing each of the five schools when it was clear that one school would have to be eliminated. However, they only seriously evaluated the consequences of closing the Jones or the Poplar Street schools. The list was limited to these two schools, according to the officials' testimony, because the Board and the administration believed a central location was vital for a school which all the seventh graders in the district would attend.

A study submitted to the School Board reported that the annual cost of operating and maintaining the Jones School was significantly higher than that incurred at Poplar Street. The cost to run Poplar Street was about $70,000 while the Jones School operation expense was approximately $120,000. ⁴ The study also stated that "needed repairs within five years" at Jones would cost about.$2.1 million while at Poplar Street the estimated expense was only $93,000.

Superintendent Miller also produced a report which compared the number of white and black students that would be transported if five schools were used for seventh through ninth grades with the number bused if Jones was closed. This report stated that 120 more blacks and 93 more whites were transported if the Jones School closing was approved. ⁵ Further, Superintendent Miller testified that the closing of Jones would save the District $340,000. He stated that this amount came from a reduction in costs of "staff, supplies, equipment and utilities." Miller was not able to provide details to support this claimed savings nor was he able to produce figures on how much would be realized if one of the other junior high buildings was closed.

III. DISCUSSION

It is beyond debate that the burden of desegregation should be shared as equally as possible between blacks and whites, Davis v. Board of Education, supra, 635 F.2d at 731-32; Clark v. Board of Education, 449 F.2d 493, 496, 499 (8th Cir. 1971) (en banc), cert. denied, 405 U.S. 936, 92 S.Ct. 954, 30 L.Ed.2d 812 (1972), and that any part or revision of a desegregation plan should be judged on the basis of whether it contributed to the establishment of a unitary system of education. See Milliken v. Bradley, 433 U.S. 267, 279-82, 97 S.Ct. 2749, 2756-58, 53 L.Ed.2d 745 (1977).

The application of these general principles is more difficult than merely stating them. The Tenth Circuit has listed the following factors which should be evaluated in such cases:

(1) the existence of valid nonracial educational reasons for closing school facilities located in predominantly black areas; (2) the condition and adequacy of the facilities at the school being closed; (3) whether the facilities to which the minority students were being transferred were adequate and whether the transfer would cause those facilities to be "overtaxed"; (4) whether the primary or sole reason for the school board's action was the fear that less constitutionally suspect solutions to segregation would lead to "white flight" from the school district; (5) whether the entire or primary burden of integration is placed on black students and teachers; and (6) whether the school board considered...