Fort Bend Independent School Dist. v. City of Stafford, 78-2346

• Decision Date: 26 April 1979
• Docket Number: No. 78-2346,78-2346
• Citation: 594 F.2d 73
• Parties: FORT BEND INDEPENDENT SCHOOL DISTRICT et al., Plaintiffs-Appellees, v. CITY OF STAFFORD et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 73

594 F.2d 73

FORT BEND INDEPENDENT SCHOOL DISTRICT et al., Plaintiffs-Appellees, v. CITY OF STAFFORD et al., Defendants-Appellants.

No. 78-2346.

United States Court of Appeals, Fifth Circuit.

April 26, 1979.

Rehearing and Rehearing En Banc Denied May 31, 1979.

William A. Olson, Houston, Tex., for defendants-appellants.

Reynolds, Allen & Cook, Michael K. Swan, Houston, Tex., for Fort Bend Independent School Dist. & John Duncum.

Hoover, Cox & Miller, Dermot Rigg, Houston, Tex., for Michael McKenzie, Don H. Keasler, Steven C. Keasler, Don McGinity, Willie Walker.

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

Before AINSWORTH, GODBOLD and HILL, Circuit Judges.

GODBOLD, Circuit Judge:

The town of Stafford, Texas, historically a part of the Fort Bend Independent School District (FBISD) determined to break away and form its own school district. The district court enjoined the breakaway. We reverse and remand.

The parties agree that Stafford complied with all relevant state requirements for establishing a school district. Also, Stafford notified the Commissioner of Education of the State of Texas that it intended to form its own district. Pursuant to the mandate in U. S. v. State of Texas, 447 F.2d 441 (CA5, 1971), Cert. denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972), the Commissioner investigated the effects of the split-off in both Stafford and FBISD and concluded that creation of the new district would not violate the State of Texas mandate. FBISD attempted to appeal the Commissioner's decision to the State Board of Education, but the Board concluded that it had no jurisdiction. FBISD then brought the present action against Stafford claiming that, in violation of the Fourteenth Amendment, the breakaway plan would impede its efforts to desegregate. ¹

Creation of a separate school district which will impede the dismantling of a segregated system operating under court order will be enjoined. Wright v. Council of the City of Emporia, 407 U.S. 451, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). In U. S. v. Scotland Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75 (1972), decided the same day, creation of a new school district was enjoined although the "parent" system was not operating under court order. The parent was, however, "then in the process of dismantling a dual school system," Id. at 485, 92 S.Ct. at 2215, 33 L.Ed.2d at 78. The new Scotland Neck district was legislatively authorized in March 1969, approved by the voters in April 1969, and was proposed to begin operating in the fall of 1969. Since 1968 the parent system had been in negotiation with the Justice Department, and an agreement had been reached that would desegregate the parent system by the opening of the school year in the fall of 1969. Creation of the new district impeded the plan in progress.

Creation of a new district is not a constitutional violation, however, merely because at some time in the past the parent district engaged in discrimination. Once a district achieves unitary status, the methods, means and procedures employed to reach that status are not frozen and unchangeable, immunized from the consequences of subsequent racially neutral attempts to alter or divide the district.

The parties agree that prior to 1965 FBISD was a segregated system and that since 1965 it has been operating under a desegregation plan submitted to and approved by HEW. Its last all-black school was closed in 1969. ²

FBISD has never been subject to court-ordered desegregation. The present suit is its first. The district court considered, however, that the split-off of Stafford could be a constitutional violation even though, FBISD, the parent district, was not under a court-ordered desegregation plan. It held:

The fact of FBISD's voluntary participation in the dismantling of its dual school system in no way diminishes FBISD's constitutional obligation to do so, as mandated by the Supreme Court in Brown v. Board of Education, 347 U.S. 483 (74 S.Ct. 686, 98 L.Ed. 873) (1954). The Court in Green v. School Board of New Kent County, 391 U.S. 430 (88 S.Ct. 1689, 20 L.Ed.2d 716) (1968), charged "(s) chool boards . . . then operating state-compelled dual systems . . . with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." The Board of Trustees of FBISD is clearly so charged. In U. S. v. Scotland Neck City Board of Education et al., 407 U.S. 484 (92 S.Ct. 2214, 33 L.Ed.2d 75) (1972) decided the same day as Emporia, Halifax County was not under a court-ordered desegregation plan. There the "parent" school district had entered into an agreement with the United States Department of Justice to implement a plan designed to dismantle its dual school system. Though the context of Emporia and many other cases is that the "parent" district was under a court-ordered desegregation plan, there is no language in those opinions which limits this court from deciding the issue because FBISD chose to voluntarily comply with the law. Any assertion by Stafford that the posture of this case is altered by that fact is without merit.

449 F.Supp. at 381.

The foregoing conclusion by the district court would be correct if the Fort Bend system has never attained unitary status. The court found:

Implementation of the Stafford Municipal School District will interfere with an (sic) impede Fort Bend Independent School District's Efforts to achieve and maintain a unitary school system. (Emphasis added)

Id. at 380.

The thrust of this court's inquiry, however, is . . . what the impact of SMSD will have on the goal of equal education for all students, a goal which FBISD Is in the continual process of achieving. (Emphasis added.)

Id. at 379.

Stafford's withdrawal from FBISD will severely disrupt The progress FBISD has made in dismantling and removing the effects of a dual system. (Emphasis added.)

Id. at 382.

These statements imply that the process of desegregating the system has not been completed. However, the court made no express findings that constitutional violations remain uncorrected, and the parties are not able to point out to us hard evidence that would justify our making such a finding at the appellate level. The court did not find that the efforts of Stafford to create a new district are racially motivated, and the parties concede that there is no such motivation. The court found that in several ways the withdrawal of Stafford will have an erosive effect upon steps FBISD has taken pursuant to the plan approved by HEW in 1965. As the district court succinctly put it, FBISD asserts that the new district "will have a negative effect on the continued implementation of its desegregation plan." Id. at 377. The court found there would be fewer black students in each grade in Stafford than there are in FBISD, and that without...