Downs v. Board of Education of Kansas City, 7536.

• Citation: 336 F.2d 988
• Decision Date: 25 September 1964
• Docket Number: No. 7536.,7536.
• Parties: Ernest Leon DOWNS, minor, by his parents and next friends, Wallace Downs and Emma Downs, Preston E. Knox, minor, by his parents and next friends, Everett Knox and Annabelle Knox, Shirley Phillips, minor, by her parents and next friends, Lee Phillips, Sr., and Ernestine Phillips, Lorraine Jackson, minor, by her parents and next friends, Lefelt Jackson and Lenora Jackson, George L. Boyd, minor, by his father and next friend, Thomas A. Boyd, Willene Bill, minor, by her mother and next friend, Luella Bill, Ronald Stephenson, minor, by his mother and next friend, Creadale Stephenson, Billy C. Gatson, minor, by his parents and next friends, Carlston Gatson and Zella R. Gatson, Mary Frances Carter, minor, by her parents and next friends, Frances Pollard and John Pollard, Linda Stuart, minor, by her parents and next friends, Joseph Stuart and Marilouise Stuart, Dwight C. Hatchett, minor, by his parents and next friends, Earia Hatchett, Sr., and Ella Mae Hatchett, Marvin Jackson, minor, by his parents and next friends, Andrew D. Jackson and Ella Mae Jackson, Tommie Lee Benson, minor, by his mother and next friend, Louise Benson, Carolyn Jean Miles, minor, by her parents and next friends, Jim Miles and Cleo Miles, Luther W. Peghee, Jr., minor, by his parents and next friends, Luther W. Peghee, Sr., and Lizzie Peghee, Appellants, v. The BOARD OF EDUCATION OF KANSAS CITY, of the State of Kansas, a corporation, Ralph Fulton, Roy Edwards, Jr., Joe Vaughan, Ralph Evans, Robert Fothergill and Lee C. Berns, Members of the Board of Education of the City of Kansas City, of the State of Kansas, F. L. Schlagle, Superintendent, G. W. Corporon, and William W. Boone, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

336 F.2d 988 (1964)

Ernest Leon DOWNS, minor, by his parents and next friends, Wallace Downs and Emma Downs, Preston E. Knox, minor, by his parents and next friends, Everett Knox and Annabelle Knox, Shirley Phillips, minor, by her parents and next friends, Lee Phillips, Sr., and Ernestine Phillips, Lorraine Jackson, minor, by her parents and next friends, Lefelt Jackson and Lenora Jackson, George L. Boyd, minor, by his father and next friend, Thomas A. Boyd, Willene Bill, minor, by her mother and next friend, Luella Bill, Ronald Stephenson, minor, by his mother and next friend, Creadale Stephenson, Billy C. Gatson, minor, by his parents and next friends, Carlston Gatson and Zella R. Gatson, Mary Frances Carter, minor, by her parents and next friends, Frances Pollard and John Pollard, Linda Stuart, minor, by her parents and next friends, Joseph Stuart and Marilouise Stuart, Dwight C. Hatchett, minor, by his parents and next friends, Earia Hatchett, Sr., and Ella Mae Hatchett, Marvin Jackson, minor, by his parents and next friends, Andrew D. Jackson and Ella Mae Jackson, Tommie Lee Benson, minor, by his mother and next friend, Louise Benson, Carolyn Jean Miles, minor, by her parents and next friends, Jim Miles and Cleo Miles, Luther W. Peghee, Jr., minor, by his parents and next friends, Luther W. Peghee, Sr., and Lizzie Peghee, Appellants, v. The BOARD OF EDUCATION OF KANSAS CITY, of the State of Kansas, a corporation, Ralph Fulton, Roy Edwards, Jr., Joe Vaughan, Ralph Evans, Robert Fothergill and Lee C. Berns, Members of the Board of Education of the City of Kansas City, of the State of Kansas, F. L. Schlagle, Superintendent, G. W. Corporon, and William W. Boone, Appellees.

No. 7536.

United States Court of Appeals Tenth Circuit.

September 25, 1964.

COPYRIGHT MATERIAL OMITTED

James P. Davis, Kansas City, Kan., and Robert L. Carter, New York City (Samuel C. Jackson, Topeka, Kan., Joan Franklin, Maria L. Marcus and Barbara A. Morris, New York City, on the brief), for appellants.

Willard L. Phillips, Kansas City, Kan. (P. B. McAnany, Thomas M. Van Cleave, Jr., James J. Lysaught, and John J. Jurcyk, Jr., Kansas City, Kan., on the brief), for appellees.

Before MURRAH, Chief Judge, and PICKETT and HILL, Circuit Judges.

HILL, Circuit Judge.

This class action was brought below by a group of Negro children, through their parents and next friends, to enjoin the appellee Board of Education from continuing certain alleged discriminatory practices in the administration of the Kansas City, Kansas, school system. The relief sought was granted in part and denied in part. The appeal is from that portion of the decree denying the class relief as sought.

Because of the broad attack made upon the administration of the school system, it is necessary to detail the evidence adduced at the trial below.

The public schools operated by the Board of Education of Kansas City, Kansas, consist of elementary, junior high and high schools as well as a junior college. The entire school system was operated on a segregated basis for many years prior to 1951. The pupils and faculty of each school were all of one race. In 1951 the Board merged the two previously segregated junior colleges into one integrated junior college. The two junior colleges had been located in the same buildings as the segregated high schools and each of them had its own faculty which reflected the racial composition of the student body. The teachers taught in both the high school and the junior college. After the two junior colleges were merged into one junior college in a separate building, the faculty of the one integrated junior college became all white and the Negro teachers were retained but became full-time teachers in the segregated high school.

During the period from 1951 to 1954, the Board operated four high schools, six junior high schools and thirty-eight elementary schools on a segregated basis. Three of the high schools — Rosedale, Argentine and Wyandotte — were white and one high school — Sumner — was Negro. As to the six junior high schools, Rosedale, Argentine, Central, West and Northwest were composed of white students and Northeast was Negro. Seven of the thirty-eight elementary schools were Negro: Douglass, Grant, Stowe, Dunbar, Kealing, Attucks and Lincoln. The remaining thirty-one elementary schools, including Hawthorne, were white. Throughout this period of time, no Negro children attended Hawthorne Elementary School or Northwest Junior High School and no white children attended Northeast Junior High School. Again, the faculties of all of the schools reflected the racial composition of the respective student bodies.

On August 2, 1954, and subsequent to the decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, the Board initiated a policy whereby the school system was to be integrated "as rapidly as classroom space can be provided" and it empowered the Superintendent of Schools to implement that policy. In his reports to the Board on November 21, 1955, May 7, 1956 and March 3, 1958, the Superintendent recited that integration of the school system was accomplished in four steps. First; the merging and integration of the Junior College at the opening of school on September 10, 1951, prior to the decision in Brown and the resulting declaration of policy. Second; the establishment of tentative boundary lines between formerly Negro and formerly white segregated schools based upon geographic lines, and not race, which resulted in the integration of all kindergarten students, of all first grade students with the exception of those attending two named schools, where studies indicated that housing might not be available, of all 7th grade students in all of the junior high schools and of all 3 grades in all of the high schools. In addition, all of the grades in one elementary school were integrated. Students were permitted to attend the school located in the district in which they were a resident or had previously attended before the change in boundary lines so as to avoid unnecessary and undesirable psychological effects upon them. According to the November 21, 1955, report, this second step resulted in 232 Negro children attending schools which were formerly all white and, of this number, 165 students were in the elementary schools and 67 students were in the junior high and high schools. It also resulted in the attendance of Negro children at 16 of the 30 elementary schools that were formerly all white and in all 5 of the junior high and high schools that were formerly all white. These results were accomplished by the opening of school in September, 1954. Third; by the opening of school in September, 1955, all of the elementary grades were integrated in all of the elementary schools except one, where housing was inadequate, and all of the grades of all of the junior high schools were integrated. The total number of elementary schools having no Negro students dropped from 14 to 11, even though 2 new schools were opened in areas having no Negro residents, and the number of Negro students attending formerly white schools in the elementary and secondary grades increased from 232 to 619. The number of Negro students from kindergarten through Junior College attending formerly white segregated schools increased from 302 in September, 1954, to 703 in September, 1955, and one white student attended the formerly all Negro high school, Sumner. It was noted that, as integration proceeded, further adjustments in the boundary lines of the schools would be almost inevitable because of housing accommodations. Fourth; by the opening of school in September, 1956, the school district boundary lines were defined, all students were required to attend the school of the district in which they resided, unless granted a permit to attend elsewhere, and permits were issued to students who desired to continue attendance at Sumner High School, regardless of where they resided. In addition, the greater part of the bus transportation was discontinued.

The school system operates on what is known as the "neighborhood school policy" and the "feeder school policy". Under the neighborhood school policy, boundary lines for a school attendance district are established as nearly as possible in the area surrounding the school and it takes into consideration such factors as school capacity, number of students, natural barriers, such as rivers and railroad lines, and the possibility of increase or decrease in population. Any student living within the boundaries of that school district may attend the school as a matter of right and ordinarily is required to do so. The feeder school policy means that all of the students who graduate from a given elementary school must attend the same designated junior high school and all of the students who graduate from a given junior high school must attend the same designated senior high school.

The junior high schools involved in this litigation are West, Northwest and Northeast. They are located on an east-west line in the north part of the city. The Hawthorne Elementary School is directly involved in this litigation. Its boundary lines were established by the Board on August 5, 1957, for the school year of 1957-1958 and were to remain in effect until changed. Prior to 1960, Hawthorne was a predominantly white school and was staffed by white personnel. Under the "feeder" system students graduating from Hawthorne were required to attend Northwest Junior High School and, thereafter, Wyandotte High School, both of which were and are predominantly white schools.

In about 1956, the city commenced two slum clearance projects covering areas in which almost all of the residents were Negroes. Consequently, under the neighborhood school policy most of the elementary schools located in those areas were attended by Negro children and under the feeder school policy most of these...