Flax v. Potts, 89-7006

• Decision Date: 24 October 1990
• Docket Number: No. 89-7006,89-7006
• Parties: 63 Ed. Law Rep. 23 Arlene FLAX, Etc., et al., Plaintiffs-Appellants, v. W.S. POTTS, et al., Defendants, Fort Worth Independent School District, a Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 155

915 F.2d 155

63 Ed. Law Rep. 23

Arlene FLAX, Etc., et al., Plaintiffs-Appellants, v. W.S. POTTS, et al., Defendants,

Fort Worth Independent School District, a Corporation,

Defendant-Appellee.

No. 89-7006.

United States Court of Appeals, Fifth Circuit.

Oct. 24, 1990.

Leon Haley, Jr., Ft. Worth, Tex., for plaintiffs-appellants.

David B. Owen, Quillin, Owen & Thompson, Ft. Worth, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, DUHE, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

In this school desegregation case, the Fort Worth Branch of the National Association for the Advancement of Colored People (NAACP) appeals the district court's order declaring the Fort Worth Independent School District (FWISD) "unitary in every respect, except for the existence of a homogeneous student population." (Flax v. Potts, 725 F.Supp. 322, 330 (N.D.Tex.1989) Such a population is not constitutionally required, the court explained "when the school district has made intensive efforts to eliminate one-race schools and further measures would be both impractical and detrimental to education." Id. Based on its findings of fact and conclusions of law, the district court declared that the FWISD had no policy or practice of discrimination in student, faculty, or staff assignments; in transportation; in extra-curricular activities; or in school facilities. Stating that the declaration of unitary status required the federal court soon to cease supervising the FWISD, the court, nevertheless, retained jurisdiction for a further three years as this court mandated in Youngblood v. Board of Pub. Instruction, 448 F.2d 770 (5th Cir.1971). The district court also assured the plaintiffs that it would not dismiss the case without providing them both notice and an opportunity to show cause why the court should further delay dismissing the case. Finding no reversible error, we affirm.

I

Because our most recent opinion in this litigation comprehensively related the facts and proceedings in the thirty years from filing to termination of busing, we see no need to repeat that narrative. ¹ To bring it up to date, however, we provide the facts and proceedings bearing only on this latest dispute. ²

In 1988 when it resolved the busing issue, the district court indicated that it intended to reexamine the entire desegregation plan. See Flax v. Potts, 680 F.Supp. 820 (N.D.Tex.1988), aff'd, 864 F.2d 1157 (5th Cir.1989). To that end, the court sua sponte entered an order on March 2, 1988, designating a period for filing motions for any modification, revision, or amendment to the School District's plan. Order dated Mar. 2, 1988, Flax v. Potts, Civil Action No. 4205-E. On July 26, 1988, the court granted the parties' requests for changes in the use and allocation of quality funds and for adjustments in school boundary lines and attendance zones. Order dated July 26, 1988, Flax v. Potts, Civil Action No. 4205-E. While denying the proposed modifications regarding black-to-white faculty ratios, the court modified the plan to allow a 20%, rather than a 10%, variance in the faculty ratio requirements in any one school. Id.

In its July 26, 1988, order, the district court also scheduled a hearing on both the FWISD motion for a declaration of unitary status and the plaintiffs' and intervenors' motions for additional modifications to the desegregation plan. On April 12-13 and 17-20, 1989, the court held an evidentiary hearing on the motion to declare the FWISD unitary. ³ Its Memorandum Opinion and Order, entered on Sept. 27, 1989, declared "that the former dual school system has been dismantled and that the vestiges of de jure segregation have been removed 'root and branch.' " Flax v. Potts, 725 F.Supp. 322, 323. The plaintiffs timely filed notice of appeal on October 25, 1989.

II

Unitariness is a finding of fact which we review under the clearly erroneous standard. Ross v. Houston Indep. School Dist., 699 F.2d 218, 225-26 (5th Cir.1983) (citing Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982)). Factual findings in school desegregation cases are entitled to great deference on review, especially when, as in this case, the presiding judge has supervised the case for many years. See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 457 n. 6, 99 S.Ct. 2941, 2946 n. 6, 61 L.Ed.2d 666 (1979). Furthermore, this court stressed in an earlier opinion in this case that deference is also "particularly appropriate where, as here, the implementation of the desegregation plan has continued for fifteen years without any allegations of intentional segregation on the part of the FWISD. In fact, the School District has been commended many times by the courts for its dedication to the elimination of inequality in its schools." Flax, 864 F.2d at 1160.

In a unitary school district, "schools are not identifiable by race[,] and students and faculty are assigned in a manner that eliminates the vestiges of past segregation." Monteilh v. St. Landry Parish School Bd., 848 F.2d 625, 629 (5th Cir.1988) (quoting United States v. Lawrence County School Dist., 799 F.2d 1031, 1034 (5th Cir.1986)). A district court in this circuit does not dismiss a school desegregation case until at least three years after it has declared the system unitary. Youngblood v. Board of Pub. Instruction, 448 F.2d 770, 771 (5th Cir.1971).

On appeal the NAACP claims that the "totality of deficiencies" within the FWISD indicates that the system is not yet a unitary one. The NAACP challenges the district court's findings on student, faculty, and staff assignments. It also argues that the FWISD's practice of building too many new schools in black neighborhoods, when the District knows that these schools will be more than 98% one-race schools, causes racial imbalance.

Totality of Deficiencies

Before we turn to those individual aspects of the unitariness question which the NAACP raises, we address the NAACP's charge that the "totality of deficiencies" in the desegregation plan precludes a finding of unitary status. The NAACP's contention resembles that which this circuit and the tenth and first circuits have explicitly rejected--that a school system cannot achieve unitary status incrementally. United States v. Overton, 834 F.2d 1171 (5th Cir.1987); Ross v. Houston Indep. School Dist., 699 F.2d 218 (5th Cir.1983); Keyes v. School Dist. No. 1, 895 F.2d 659 (10th Cir.1990), petition for cert. filed, 58 U.S.L.W. 3725 (U.S. Apr. 30, 1990) (No. 89-1698); Morgan v. Nucci, 831 F.2d 313 (1st Cir.1987); contra Pitts v. Freeman, 887 F.2d 1438, 1446-47 (11th Cir.1989) (rejecting the First Circuit's ruling that school systems may achieve unitary status incrementally), petition for cert. filed, 58 U.S.L.W. 3531 (U.S. Feb. 12, 1990) (No. 89-1290).

This circuit has addressed the issue of achieving unitary status incrementally on at least two occasions. In Overton, 834 F.2d 1171, 1177 (1987), we agreed with the First Circuit's conclusion in Morgan, 831 F.2d 313 (1987), that a school system can achieve unitary status incrementally and that, when it does so, the court will abdicate its supervisory role as to the aspect of the desegregation plan proclaimed unitary. Similarly, we had earlier held in Ross, 699 F.2d at 228, that--given "the undisputed fact that [the Houston Independent School District] is unitary in every aspect but the existence of a homogeneous student population"--the district court had not erroneously declared the District unitary. Implicit in our earlier decisions lies the assumption that both particular aspects of the desegregation plan and the overall plan itself may be unitary even when particular aspects contain deficiencies that are not serious or when further measures to render an aspect unitary are not practicable and would be detrimental to education.

Decisions in the tenth and first circuits reinforce our conclusion. Earlier this year the Tenth Circuit also held that achieving unitary status incrementally is possible. Keyes, 895 F.2d at 666 (1990). The court in Keyes ruled that a district court can declare a school district "unitary in certain aspects, even though other aspects remain nonunitary." Id. The Keyes court reasoned that because a remedy must be tailored to fit the scope of the violation, id. (citing Milliken v. Bradley, 433 U.S. 267, 280-81, 282, 97 S.Ct. 2749, 2757-58, 2758, 53 L.Ed.2d 745 (1977); Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851 (1977)), the court must relinquish supervisory control over a particular school district policy once the need to supervise that policy closely ceases. Id.

The First Circuit stated that the Supreme Court's decision in Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), required it to reject the contention that a failure to achieve unitariness in other areas justified the district court's continuing to impose a plan in an area in which a school board had achieved unitariness. Morgan, 831 F.2d at 318; contra Pitts, 887 F.2d at 1447 (in Spangler Court "simply refused to approve" the Board's rigid student assignment requirement and did not support incremental approach). The Court in Spangler stated that in attaining unitary status in student assignments, though not in other facets of the Board's operations, the district court had "fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns." Spangler, 427 U.S. at 437, 96 S.Ct. at 2705.

Spangler addressed "the extent of a district court's authority in imposing a plan designed to achieve a unitary school system." Id. at 429, 96 S.Ct. at 2701. More specifically, the Supreme Court disagreed with a divided panel of the Ninth Circuit which had ruled "that the district court had not abused its discretion in refusing to grant so much of the petitioner's motion...