Gaines v. Dougherty County Board of Education, 20984.

• Citation: 334 F.2d 983
• Decision Date: 27 August 1964
• Docket Number: No. 20984.,20984.
• Parties: Shirley GAINES et al., Appellants, v. DOUGHERTY COUNTY BOARD OF EDUCATION et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

334 F.2d 983 (1964)

Shirley GAINES et al., Appellants, v. DOUGHERTY COUNTY BOARD OF EDUCATION et al., Appellees.

No. 20984.

United States Court of Appeals Fifth Circuit.

July 31, 1964.

Motion to Recall Mandate and Rehearing Denied August 27, 1964.

Donald L. Hollowell, Atlanta, Ga., C. B. King, Albany, Ga., Constance Baker Motley, Derrick A. Bell, Jr., Norman C. Amaker, New York City, for appellants.

Jesse W. Walters, Albany, Ga., Perry, Walters & Langstaff, Albany, Ga., for appellees.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and CARSWELL, District Judge.

TUTTLE, Chief Judge.

Immediately following the submission of this case on appeal we entered an opinion and order pending a decision by the United States Supreme Court in Calhoun v. Latimer, 5 Cir., 321 F.2d 302, the case dealing with the Atlanta school system. The Court has now decided that case, 84 S.Ct. 1235. As we indicated in our prior opinion in this case, 329 F.2d 823, the Supreme Court gave primary consideration in the Calhoun case to the question whether the Atlanta plan, still having eight years to run before bringing a final end to the segregated schools in the city of Atlanta, met the requirements of the "deliberate speed test" announced by the Court in the second appearance of Brown v. Topeka Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. In vacating the judgment of this Court in Calhoun v. Latimer, the Supreme Court remanded the case to the district court for its reconsideration in light of the Supreme Court's recent pronouncements indicating that greater speed in implementing the Brown decision is now required.

In dealing with this matter the Court said:

"Although Atlanta\'s commendable effort to effect desegregation is recognized, the District Court on remand, must, of course, test the entire Atlanta plan by the considerations discussed in Watson v. City of Memphis, 373 U.S. 526, 529, 83 S.Ct. 1314, 1316, 10 L.Ed.2d 529; Goss v. Board of Education, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632, and Griffin v. County School Board of Prince Edward County, 84 S.Ct. 1226, decided subsequent to the District Court\'s approval of the plan. In Goss, supra, 373 U.S. at 689, 83 S.Ct. at 1409, we said: `We are not unmindful of the deep-rooted problems involved. Indeed, it was consideration for the multifarious local difficulties and "variety of obstacles" which might arise in this transition that led this Court eight years ago to frame its mandate in Brown in such language as "good faith compliance at the earliest practicable date" and "all deliberate speed." Brown v. Board of Education, 349 U.S., at 300, 301, 75 S.Ct. 753, at 756. Now, however, eight years after this decree was rendered and over nine years after the first Brown decision, the context in which we must interpret and apply this language to plans for desegregation has been significantly altered. Compare Watson v. City of Memphis, supra.\'"

Thus it is that the Supreme Court vacated the approval by this Court of the Atlanta plan, which had eight years remaining to effect a final end of segregated schooling. The necessary conclusion to be reached from this judgment of the Court is that for a school system which is beginning its plan of desegregation ten years after the second Brown decision, more speed and less deliberation is required. Cf. Griffin v. County School Board of Prince Edward County, supra, 84 S.Ct. 1226, in which the Supreme Court said:

"There has been entirely too much deliberation and not enough speed in enforcing the constitutional rights which we held in Brown v. Board of Education, supra, had been denied Prince Edward County Negro children."

The Court also stated:

"The time for `mere deliberate speed" has run out, and that phrase can no longer justify denying these Prince Edward County school children their constitutional rights to an education equal to that afforded by the public schools in the other parts of Virginia."

This Court has already recognized the essential change of pace required by the Supreme Court's decision in Calhoun v. Latimer. In three opinions published on June 18th of this year, in the cases of Stell et al. v. Savannah-Chatham County Board of Education et al., 5 Cir., 333 F.2d 55, Harris et al. v. Linda Sue Gibson et al. (companion cases dealt with in single opinion dealing with the Savannah school system and the Brunswick school system in the state of Georgia); Davis et al. v. Board of School Commissioners of Mobile County et al., 5 Cir., 333 F.2d 53, and Armstrong et al. v. Board of Education of City of Birmingham, Alabama et al., 5 Cir., 333 F.2d 47, another panel of this Court dealt extensively with the need for speeding up desegregation plans in the several school boards therein involved.

While the requirement for speeding up the plans of desegregation must be uniformly applied in all school systems in which litigation reaches the courts of this Circuit, the degree of such speedup must remain somewhat flexible. We have carefully considered the record in this case, and conclude that a minimum requirement for the Board of Education of Dougherty County is that it desegregate the first two grades of school as heretofore required by the preliminary order entered by this Court, and that it also commence desegregation with the twelfth grade, in order that every Negro child in the Dougherty County School System have at least an opportunity to enjoy a desegregated education during his school career. We conclude that this can be accomplished very simply by the trial court's entering an injunction along the following terms:

"ORDER

"The order heretofore entered by this Court is vacated and the following order is substituted in its place:

"(1) Any assignments that have heretofore been made by the defendants of Negro children to formerly all-white schools in the first and second grades for the fall term shall be carried out.

"(2) In the operation of the schools by the defendants the following provisions shall be put into effect for the fall term, 1964:

"(a) Each person attending the vocational schools operated by defendants shall have the choice of attending the school of his choice, whether the formerly Negro or the formerly white vocational school.

"(b) Each child attending the first grade and each child attending the second grade of the schools operated by the defendants shall have the choice of attending either the nearest formerly Negro school, or the nearest formerly white school, provided that if there is insufficient space in any school as a result of the making of such choice, preference in granting such choice shall be solely on the basis of proximity of the child to the school.

"(c) In each following year, two more grades shall be added to the plan of operation as set out in sub-paragraph (b) hereof.

"(d) The defendants shall grant the same choice to the pupils who will enter the twelfth grade of school as is provided for the first and second grades in sub-paragraph (b) hereof, and each successive year an additional grade shall be added to the plan, progressing to...