Flax v. Potts, 88-1188

• Decision Date: 26 January 1989
• Docket Number: No. 88-1188,88-1188
• Citation: 864 F.2d 1157
• Parties: , 51 Ed. Law Rep. 78 Arlene FLAX, Etc., et al., Plaintiffs-Appellants, v. W.S. POTTS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1157

864 F.2d 1157

57 USLW 2484, 51 Ed. Law Rep. 78

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

No. 88-1188.

United States Court of Appeals Fifth Circuit.

Jan. 26, 1989.

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

David Owen, Quillin, Owen & Thompson, Fort Worth, Tex., for Ft. Worth Independent School Dist.

Marie K. McElderry, David K. Flynn, Washington, D.C., for amicus curiae, U.S.

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

Before WILLIAMS, HIGGINBOTHAM and SMITH, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

In this appeal we must evaluate the circumstances under which a desegregation plan may be altered to eliminate busing in a school district which has not been declared unitary but which has operated an approved desegregation plan effectively for a number of years. Specifically, plaintiffs appeal a district court's decision that modified the Fort Worth Independent School District's (FWISD) Desegregation Plan by terminating the remaining busing of some 1233 elementary students for desegregation purposes. 680 F.Supp. 820. We affirm the district court's decision, finding no abuse of discretion by the district judge in deciding modification was proper.

I. Facts and Prior Proceedings

In 1959, a school desegregation action was filed against the FWISD. In 1962, a federal district court declared the dual system unconstitutional, Flax v. Potts, 204 F.Supp. 458, 461 (N.D.Tex.1962), aff'd, 313 F.2d 284 (5th Cir.1963). The school district then adopted a "stair-step" plan in 1963 and voluntarily accelerated the plan so that all grades were involved by 1967.

In 1970, the plaintiffs requested further relief. A plan was suggested and was approved by the district court in the same year. Upon appeal we reversed and remanded with directions to implement a "student assignment plan and a faculty assignment plan that complies with the principles established in Swann v. Charlotte-Mecklenberg Board of Education...." Flax v. Potts, 450 F.2d 1118, 1118-19 (5th Cir.1971). Another plan was then submitted in 1971, but this Court found the plan still fell short of the mandate of Swann that "all vestiges of state-imposed segregation be eliminated from the public schools." The court noted that the proposed plan left 12,000 of the district's 21,000 black students in sixteen virtually all-black schools. Flax v. Potts, 464 F.2d 865, 866 (5th Cir.), cert. denied, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299 (1972).

On August 23, 1973, the district court approved a plan in accordance with this Court's directives. The plan called for the clustering of the remaining all-black schools with predominately white schools. The plan also included a provision for majority-to-minority transfers and a provision requiring faculty assignments in each school to reflect the ratio of white to black teachers in the school district as a whole. From 1973 to 1983, additional modifications were made to the plan. ¹

In 1983, the parties filed a joint motion amending the desegregation plan that the court approved with minor modifications. Flax v. Potts, 567 F.Supp. 859 (N.D.Tex.1983). ² The amendments (1983 Amendments) allowed 30 neighborhood elementary schools that had previously been part of the busing program to "stand-alone," based on the natural integration that was occurring in those neighborhoods. It set aside for educational enhancement the $1.5 million saved by the reduction in busing. It also authorized additional magnet schools, strengthened preschool programs, and provided for monitoring provisions.

This appeal involves nineteen of the elementary schools that were clustered or paired by the 1983 Amendments. Eleven schools in historically white neighborhoods were clustered or paired with eight schools in predominantly black neighborhoods. Around 1233 students, all in the second and third grades, were still being bused for desegregation purposes. ³ These students constituted approximately 2% of the student body of the School District. This busing improved the majority-minority ratios at the clustered schools, and no student was bused more than one year.

In July 1987, the court sua sponte set a hearing for reviewing this portion of the 1983 Amendments. Following the hearing, the court disbanded the clusters and discontinued the busing of the second and third grade students. The elementary schools returned to a neighborhood system of assignment. The court included in its order a provision requiring that the money saved from the discontinuance of busing be used for enrichment programs at the minority schools. Order dated July 10, 1987, Flax v. Potts, Civil Action No. 4205-E, at 4. ⁴

The district court reasoned that the usefulness of busing no longer outweighed its costs even though the termination of busing actually would result in an immediate but temporary increase by more than ten percent in the number of students of the predominant race in several of the nineteen schools. ⁵ Basing its decision on the desegregation plan as a whole, the district court found busing to be only a small part of the overall plan and to have little impact. ⁶

The court found busing was losing its effectiveness because of changed demographics in the FWISD. Since 1983, the trend toward greater neighborhood integration had continued, particularly in the eleven historically white neighborhoods. The court found busing disruptive to these integrated neighborhoods. At the time of the district court's decision, 674 students were being bused away from the 11 substantially integrated neighborhoods into the clusters. Thirteen percent of the students being bused into the predominately black areas were black students and 4% of the students being bused out of the predominantly black schools were white students.

The district court also noted the lower enrollment of students in the FWISD as a whole, particularly white students, while the county in which the school district is located continued to grow. ⁷ There are 32,000 fewer white students in the FWISD as a whole today than there were in 1968, with the number of black students remaining the same and the number of hispanics increasing by 10,000. ⁸ More dramatically, there was a 43% loss of enrollment from first to second grade in the elementary schools implementing the busing for desegregation purposes. This loss of enrollment was not limited to white students, suggesting a dissatisfaction by all students with busing.

Underlying the district court's conclusion was its awareness of the difficulty of the busing that was being implemented. The busing involved was cross-town travel. The district court found the longest one-way distance to be around 13.8 miles with at least one student riding the bus more than three hours a day. The shortest distance was found to be around 2.3 miles one way, but even on this trip, the student was on the bus for over an hour per day. The average one-way distance found by the court was 9.3 miles, and the median round trip was found to be over an hour. The annual cost of the busing was $313,462, with a net cost of $175,000 to the FWISD.

II. Weight to be given the District Court's Determination

A motion for modification of a decree is addressed to the discretion of the district court and may be overturned on appeal only for an abuse of that discretion. Sullivan v. Houston Independent School Dist., 475 F.2d 1071, 1078 (5th Cir.), cert. denied, 414 U.S. 1032, 94 S.Ct. 461, 38 L.Ed.2d 323 (1973).

The findings by the district court are given considerable deference by this Court since it is the district court that is most familiar with the litigation and the local conditions. See Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955). The current presiding district judge has overseen the school district's actions since 1975.

Deference by this Court 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. See Flax v. Potts, 464 F.2d at 866. The School District has operated a comprehensive desegregation plan for a considerable length of time and is moving close to the declaration of unitary status. ⁹ Indeed, the School District is in compliance with all the requirements of the desegregation plan. ¹⁰

III. The District Court's Determination: Not an Abuse of Discretion

A. Applicable Law for Modification of the Plan

Because the termination of this limited busing, at least in the short term, will have the effect of decreasing integration, the pre-unitary FWISD was under a "heavy burden" to justify this change in the court ordered plan. It had to show its actions "serve[d] important and legitimate ends" that outweighed the resegregative effects of the change. Dayton Board of Education v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979) (citing Wright v. Council of Emporia, 407 U.S. 451, 467, 92 S.Ct. 2196, 2206, 33 L.Ed.2d 51 (1972)). The court was under a duty to "scrutinize" the action to ensure that the modification was not the result of present or past discriminatory action. Swann v. Charlotte-Mecklenberg, 402 U.S. 1, 25-26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971).

The mere fact that the action decreased racial integration, of course, does not outlaw it. There is no constitutional mandate that each school in the school district reflect the racial composition of the school district as a whole. Id. at 24, 91 S.Ct. at 1280. As this Court has recently reiterated, a " 'school board's constitutional duty is to cure the continuing effects of the dual school system, not to achieve an ideal racial balance.' " Monteilh v. St. Landry Parish School Board, ...