Davis v. East Baton Rouge Parish School Board, s. 80-3922

• Decision Date: 15 December 1983
• Docket Number: 81-3476,82-3298 and 82-3412,Nos. 80-3922,s. 80-3922
• Citation: 721 F.2d 1425
• Parties: 15 Ed. Law Rep. 40 Clifford Eugene DAVIS, Jr., et al., Plaintiffs-Appellees, v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al., Defendants-Appellants. Clifford Eugene DAVIS, Jr., Plaintiff-Appellee, and Dr. D'Orsay D. Bryant, et al., Plaintiffs-Appellees, Cross-Appellants, and United States of America, Plaintiff-Appellee, v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al., Defendants-Appellants, Cross- Appellees, Parents For Neighborhood Schools, Inc., A Louisiana Corporation, Movant- Appellant. Clifford Eugene DAVIS, Jr., et al., Plaintiffs-Appellees, and United States of America, Intervenor-Appellee, v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1425

721 F.2d 1425

15 Ed. Law Rep. 40

Clifford Eugene DAVIS, Jr., et al., Plaintiffs-Appellees, v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al., Defendants-Appellants.

Clifford Eugene DAVIS, Jr., Plaintiff-Appellee,

and

Dr. D'Orsay D. Bryant, et al., Plaintiffs-Appellees, Cross-Appellants, and United States of America, Plaintiff-Appellee, v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al.,

Defendants-Appellants, Cross- Appellees,

Parents For Neighborhood Schools, Inc., A Louisiana

Corporation, Movant- Appellant.

Clifford Eugene DAVIS, Jr., et al., Plaintiffs-Appellees, and United States of America, Intervenor-Appellee, v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al., Defendants-Appellants.

Nos. 80-3922, 81-3476, 82-3298 and 82-3412.

United States Court of Appeals, Fifth Circuit.

Dec. 15, 1983.

John F. Ward, Jr., Baton Rouge, La., for East Baton Rouge Parish school bd.

Robert L. Hammonds, Baton Rouge, La., for East Baton Rouge Parish School Bd. in Nos. 82-3298 and 82-3412.

Franz Marshall, Sandra Lynn Beber, James Philip Turner, Dept. of Justice, Washington, D.C., C. Michael Hill, Asst. U.S. Atty., Baton Rouge, La., for plaintiffs-appellees in No. 80-3922.

Jack N. Rogers, Michael R. Connelly, Baton Rouge, La., for Parents for Neighborhood Schools, Inc.

Standford O. Bardwell, Jr., Baton Rouge, La., for U.S. in No. 83-3412.

Theodore M. Shaw, NAACP Legal Defense Fund, New York City, for plaintiffs-appellees in No. 80-3922.

Bill Lann Lee, Jack Greensberg, NAACP Legal Defense Fund, New York City, for plaintiffs-appellees in No. 80-3922 and plaintiffs-appellees cross-appellants in No. 81-3476.

Napoleon Bonaparte Williams, Jr., NAACP Legal Defense Fund, New York City, for plaintiffs-appellees cross-appellants in No. 81-3476, plaintiffs-appellees in No. 82-3298, and NAACP in No. 82-3412.

J. Harvie Wilkinson, III, Deputy Asst. Atty. Gen., of Justice, Civ. Rights Div., Washington, D.C., for plaintiffs-appellees in No. 80-3922 and U.S. in No. 81-3476.

Mildred M. Matesich, Atty., Dept. of Justice, Civ. Rights Div., Washington, D.C., for plaintiffs-appellees in No. 80-3922, and U.S. in Nos. 82-3298 and 82-3412.

Brian K. Landsberg and Marie Klimesz, Attys., Civ. Rights Div., Appellate Sect., Dept. of Justice, Washington, D.C., for U.S. in Nos. 82-3298 and 82-3412.

Robert C. Williams, Baton Rouge, La., for plaintiffs-appellees in No. 80-3922, plaintiffs-appellees cross-appellees in No. 81-3476, and plaintiffs-appellees in Nos. 82-3298 and 82-3412.

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

Before REAVLEY, RANDALL and HIGGINBOTHAM, Circuit Judges.

REAVLEY, Circuit Judge:

This twenty-seven year old school desegregation case is before the court for the fourth time. We are now called upon to review the district court's 1980 summary judgment that the East Baton Rouge Parish (EBRP) school system remained a dual system and to review the district court's imposition of a detailed plan for achieving the measure of desegregation required by the Constitution. Also before us is that court's denial of a motion to intervene filed by a group of citizens of Baton Rouge. We affirm each decision and remand the cause to the district court for further proceedings.

I. The Story Thus Far

The East Baton Rouge Parish school system was historically segregated by law. This action was filed in 1956, just after the Supreme Court's landmark Brown decisions. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ); Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II ). The early history of the litigation has been recounted in previous decisions of this court and need not now be repeated. See Davis v. East Baton Rouge Parish School Board, 570 F.2d 1260 (5th Cir.1978), cert denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979); East Baton Rouge Parish School Board v. Davis, 287 F.2d 380 (5th Cir.), cert. denied, 368 U.S. 831, 82 S.Ct. 54, 7 L.Ed.2d 34 (1961).

In 1970, acting pursuant to court order, the Board responded to our decision 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), by formulating and instituting with district court approval a plan coupling neighborhood attendance zones with a majority-to-minority transfer provision allowing a student to transfer from a school in which his was the majority race to one in which his race was in the minority. Four years later, plaintiffs ¹ filed what was by that time their fifth motion for further relief. They alleged that the 1970 plan was not desegregating the system effectively. Specifically, they cited the many one-race or substantially one-race schools remaining in the system, and asserted that the Board had built new schools in the white areas of the parish while allowing the black or predominantly black schools to deteriorate. They also alleged that the Board was assigning less experienced teachers to black or predominantly black schools. The Board opposed further relief, arguing that it imposed no affirmative racial barriers to admission to any of its schools and that conscious racial balancing was illegal under Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I ). It also sought dismissal of the case on the ground that the EBRP schools had been operated as a unitary system during each of the four school years since the 1970 plan went into effect.

The district court held a hearing and on August 14, 1974 appointed the Louisiana Educational Laboratory (LEL) to review the EBRP school system and to recommend steps to bring it into compliance with the court's previous desegregation orders and with "present constitutional requirements." ² Upon receiving LEL's interim report, the district court granted preliminary relief in February 1975. It ordered the Board to appoint a black to fill a vacant policy-making position on the Board's staff and to provide public transportation to those students electing to take advantage of the majority-to-minority transfer provision. ³ After an evidentiary hearing and further briefing, the district court found that the Board had done everything constitutionally necessary to eliminate EBRP's dual school system. The court therefore declared the system unitary and dismissed the case.

We vacated the district court's judgment and remanded for more specific findings. 570 F.2d 1260 (5th Cir.1978). Addressing student assignment first, we noted the presumption under Swann against the maintenance of a school system with substantially one-race schools. Id. at 1263; see Swann, 402 U.S. at 26, 91 S.Ct. at 1281. With that presumption in mind, three facts led us to vacate and remand: first, of the 110 schools in the parish fully 20 had student bodies comprised solely of black children; second, over half of the parish's schools had student bodies that were ninety percent or more of one race; and third, over half of the black children in the parish attended schools that were "essentially all black." 570 F.2d at 1263. For lack of specific findings, we could not conclude that the Board had met its heavy burden of justifying the continued existence of so many substantially one-race schools with so great an impact on the black children of the parish. We therefore directed the district court to evaluate whether any of the remaining one-race or essentially one-race schools could be eliminated by use of one or more alternatives to the neighborhood school concept. In this regard, we mentioned Swann 's examples of possible desegregation tools: "the remedial altering of attendance zones or the pairing and clustering of noncontiguous school zones." Id.; see Swann, 402 U.S. at 28-31, 91 S.Ct. at 1282-83. Finally, we noted the importance of specific findings "to allow us to determine rather than speculate that the law has been correctly applied." 570 F.2d at 1263-64 (quoting Golf City, Inc. v. Wilson Sporting Goods Co., 555 F.2d 426, 433 (5th Cir.1977)).

We reserved decision on appellant's claim that the seniority-based teacher reassignment plan then in effect had left the more experienced teachers in the white schools and sent those with comparatively less experience to the essentially all-black schools. We directed the lower court to consider the effect of this plan in light of the two purposes to be achieved--desegregation and quality education. We also included in our remand all other contentions made in plaintiff-intervenors' motion for further relief, including their allegations of discrimination in new school site selection and construction, in funding decisions, and in the use of the biracial committee.

Immediately upon our remand, both the United States ⁴ and, later, plaintiff-intervenors moved the district court to set a hearing and to require the Board to consider the alternative desegregation methods mentioned in our opinion. In July 1979, the district court entered an order proposed by plaintiff-intervenors requiring the Board to submit a report on possible alternative desegregation methods. While the Board was preparing that report, the United States moved to intervene pursuant to section 902 of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000h-2 (1976). The district court granted leave to intervene on March 11, 1980.

The Board's staff report, submitted in November 1979, concluded that the EBRP school system had already attained unitary status. In the alternative, it found the prospect of "pairing and clustering" to be "totally unsound from an educational and administrative viewpoint." It recommended the "magnet school" concept as "the most viable and feasible of the alternatives." The possible use of magnet schools--those with special programs to attract voluntary attendance across racial lines--was described in somewhat greater...