Davis v. East Baton Rouge Parish School Bd.

• Decision Date: 07 April 1978
• Docket Number: No. 75-3610,75-3610
• Parties: Clifford Eugene DAVIS, Jr., et al., Plaintiffs, Dr. D'Orsay Bryant and Alphonso O. Potter, Plaintiffs-Intervenors-Appellants, v. EAST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1260

570 F.2d 1260

Clifford Eugene DAVIS, Jr., et al., Plaintiffs, Dr. D'Orsay Bryant and Alphonso O. Potter, Plaintiffs-Intervenors-Appellants, v. EAST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellees.

No. 75-3610.

United States Court of Appeals, Fifth Circuit.

April 7, 1978.

Robert C. Williams, Murphy W. Bell, Baton Rouge, La., for plaintiffs- intervenors-appellants.

John F. Ward, Jr., Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before COLEMAN, TJOFLAT, and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

In the proceedings below, the district court found that the East Baton Rouge Parish school system is a unitary system being operated on a nondiscriminatory basis and dismissed this case with prejudice. The intervenors appeal from the district court's order; they claim that the school system is not and never has been unitary. ¹

Like so many school desegregation suits in this circuit, this case has been in the federal courts for many years. The suit was instituted in 1956, following the Supreme Court's decisions in Brown v. Board of Education (Brown I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and Brown v. Board of Education (Brown II), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). In the course of this protracted litigation, the district court has entered various injunctive orders, keeping pace with the evolving law in this area as espoused by the Supreme Court and this circuit. ²

The East Baton Rouge Parish school system was last before this court in a consolidated case decided in 1967. United States v. Jefferson County Board of Education, 380 F.2d 385 (5th Cir. 1967) (en banc), modifying, 372 F.2d 836 (1966). This court remanded the case to the district court in 1967, with instructions that the district court enforce the affirmative duty of the

boards and officials administering public schools . . . to bring about an integrated, unitary school system in which there are no Negro schools and no white schools just schools. . . . The necessity of overcoming the effects of the dual school system in this circuit requires integration of faculties, facilities, and activities, as well as students.

Id. at 389 (footnotes omitted). Following this court's remand, East Baton Rouge Parish operated a combined geographic zone and freedom-of-choice school assignment plan. Davis v. East Baton Rouge Parish School Board, 269 F.Supp. 60 (M.D.La.1967). Two years later, this court held in Hall v. St. Helena Parish School Board, 417 F.2d 801 (5th Cir.), cert. denied, 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180 (1969), that a freedom of choice plan was unacceptable when it did not effectively desegregate the school system. Following the Hall decision, in 1970 the East Baton Rouge Parish School Board established a biracial committee, the Public Education Study Committee, which created two biracial subcommittees to consider separately the problems of student and faculty desegregation. The biracial committee formulated a proposed school desegregation plan that was unanimously approved by the school board and submitted to the district court, which adopted it on July 22, 1970. Second supp. record at 30. No appeal was taken.

The 1970 plan provided for desegregation of faculty, staff, transportation, extracurricular activities, student body composition, and school facilities. Student assignment was based primarily on the neighborhood school concept, under which children would attend the school closest to their place of residence. A majority-to-minority transfer provision was also incorporated into the plan, allowing a child attending a school in which the majority of students were of his race to transfer to a school in which he would be in the minority.

In 1974, the intervenors filed a motion for further relief. Drawn in general terms, the motion alleged that the 1970 plan was not desegregating the school system effectively. This contention was based primarily on two grounds. First, in East Baton Rouge Parish there still exist many one-race or substantially one-race schools. Second, the present teacher reassignment plan, although desegregating the faculty, places less experienced teachers in the "black" schools, thereby allegedly lowering the quality of education.

On August 14, 1974, the district judge designated the Louisiana Educational Laboratory (LEL) as a court-appointed expert to assist the court in the case and directed LEL to file an interim report by January 1, 1975, indicating any immediate remedies that the court should impose. Based upon the recommendations made by LEL, the district court entered an interim order on February 26, 1975. ³ After the LEL filed its final report, the district court set a final hearing on the intervenors' motion for supplemental relief and challenge to the LEL study. This hearing was held on June 18, 1975. Four witnesses testified: the LEL officer who supervised the study, the school board superintendent, and two witnesses not directly involved in either the LEL study or the administration of the school system. At the conclusion of the hearing, the district judge requested briefing from the parties.

On August 21, 1975, the district court handed down the order that is the basis of this appeal. 398 F.Supp. 1013 (M.D.La.1975). The district judge stated that the interim relief ordered in February had been fully complied with, that the biracial committee was in the process of studying further desegregation techniques (e. g., alteration of attendance zones, reassignment of teachers, and clustering of schools), and that the school board had already done everything that the Constitution mandates in eliminating a dual school system. He declared the system to be unitary and held

that under Brown II 's mandate that the federal courts retain jurisdiction over a school system pending its transition from a dual to a unitary system, the East Baton Rouge Parish school system was no longer appropriately within his jurisdiction. Accordingly, he dismissed the suit with prejudice.

I. Student Assignment

The main thrust of the intervenors' attack on East Baton Rouge Parish's school desegregation is the large number of substantially one-race schools. The record discloses that the East Baton Rouge Parish school system serves both the city of Baton Rouge and the parish of East Baton Rouge. The parish contains 468.35 square miles, is irregularly shaped, and is approximately thirty miles from north to south and twenty miles from east to west. Along with the city of Baton rouge, there are suburban and rural areas in the parish. There are approximately 70,000 students enrolled in the school system, of which some 36,000 are transported daily by provision of the school board. The racial mix is approximately sixty-five percent white, thirty-five percent black.

Of the approximately 110 schools in the system, twenty have student bodies comprised solely of black children. In addition, over half of the schools have student bodies that are ninety percent or more of one race, and over half of the black students attend schools that are essentially all black.

In its order dismissing the case, the court below commended the neighborhood school plan now utilized by the school board without determining whether further eradication of the vestiges of past discrimination, which are evidenced by the one-race schools, could be accomplished by means of the "desegregation tools" approved in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). See also, Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); United States v. Mississippi, 567 F.2d 1276 (5th Cir. 1978).

There is a presumption under Swann against the maintenance of a school system with substantially one-race schools. The Supreme Court declared as follows:

Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.

402 U.S. at 26, 91 S.Ct. at 1281. In the absence of explicit and specific findings by the district court, we are unable to determine whether the school board has met its burden and whether these schools have been subjected to the close...