Harvest v. BOARD OF PUBLIC INSTRUC. OF MANATEE CO., FLA.

• Decision Date: 11 April 1970
• Docket Number: No. 65-12 Civ. T.,65-12 Civ. T.
• Citation: 312 F. Supp. 269
• Parties: Caroline HARVEST, Mosella Harvest and Phillip Harvest, minors, by Mose Harvest, their father and next friend, and Sally Marie Rhodes and Lillie Francine Rhodes, minors, by John Rhodes, their father and next friend, and Mary Elizabeth Curtis, a minor, by Johnye M. Curtis, her mother and next friend, Plaintiffs, v. BOARD OF PUBLIC INSTRUCTION OF MANATEE COUNTY, FLORIDA, a public body corporate, and J. Hartley Blackburn, Superintendent of Schools of Manatee County, Florida, and Walter W. Council, Chairman of the Board of Public Instruction of Manatee County, Florida, Defendants.
• Court: U.S. District Court — Middle District of Florida

312 F. Supp. 269

Caroline HARVEST, Mosella Harvest and Phillip Harvest, minors, by Mose Harvest, their father and next friend, and Sally Marie Rhodes and Lillie Francine Rhodes, minors, by John Rhodes, their father and next friend, and Mary Elizabeth Curtis, a minor, by Johnye M. Curtis, her mother and next friend, Plaintiffs, v. BOARD OF PUBLIC INSTRUCTION OF MANATEE COUNTY, FLORIDA, a public body corporate, and J. Hartley Blackburn, Superintendent of Schools of Manatee County, Florida, and Walter W. Council, Chairman of the Board of Public Instruction of Manatee County, Florida, Defendants.

No. 65-12 Civ. T.

United States District Court, M. D. Florida, Tampa Division.

February 26, 1970.

Order Appointing and Designating April 6, 1970.

Order to Show Cause April 6, 1970.

On Motion to Continue Hearing April 7, 1970.

Judgment of Civil Contempt April 11, 1970.

On Motion to Transfer April 11, 1970.

Additional Judgment of Civil Contempt April 11, 1970.

COPYRIGHT MATERIAL OMITTED

Earl M. Johnson, Jacksonville, Fla., Drew S. Days, III, New York City, for plaintiffs.

Kenneth W. Cleary, Dye, Dye, Smith, Cleary, Scott & Matthews, Bradenton, Fla., for defendants.

Jerome Pratt, Palmetto, Fla., for Intervenors.

Order Appointing and Designating the United States as Amicus Curiae April 6, 1970.

On Motion to Transfer to Supreme Court of United States April 11, 1970.

ON MOTIONS FOR NEW TRIAL AND STAY

KRENTZMAN, District Judge.

On February 10, 1970 Intervenors Mrs. Maryann Mona and others erroneously describing themselves as "Interpleaders," filed a motion for new trial and rehearing of the Court's order entered January 29, 1970. Reduced of surplusage, the basic points raised in the motion are as follows:

1. The "Order was silent as to the disposition of the validity of Florida Statute 230.232(2) F.S.A.," which statute requires the school officials "to consider the education, health and welfare of the individual pupil in a particular school district as a primary consideration" in school assignment.

2. The Order "over-extended the Court's authority in ordering a plan which would require enforced bussing" by forcing the defendants to "violate the 1964 Civil Rights Act," which "specifically prohibits the rights of any agency of the government, including all courts thereof, from ordering any plan which would require a forced bussing situation."

3. "Prior to the Order heretofore entered by this Court there had been no racial disturbances or riots in the community and subsequent to said Order we have had constant disturbances in the racially integrated areas in Manatee County which the Interpleaders (sic) believe have occurred as a result of the Order of this Court."

4. The "Order of this Court fails to take into consideration or was silent upon whether or not Manatee did in fact operate its school system without regard to color or creed of its students."

On February 20, 1970, intervenors filed an amendment to the motion for new trial and rehearing.

On February 24, 1970, defendants filed a Notice of Appeal of the Order of January 29, 1970. Defendants also filed a motion to stay the order pending the appeal, and attached a memorandum in support of the motion.

INTERVENORS' MOTION FOR NEW TRIAL AND REHEARING

Point 1.

This allegation is that the Court failed to consider the validity of part of Florida's Pupil Assignment Law. Apparently intervenors contend there is some sort of conflict between that law and the Court's order of January 29, 1970, and that therefore the defendants are placed in a dilemma, not knowing who to obey.

While there is no real conflict suggested to the Court, if in fact there is, then such statute would have to be of no effect to the extent that it frustrates the implementation of a constitutional mandate.

"The school board protests that it is powerless to do what we ask because of state laws. * * * Of course, one answer to the argument that state laws prevent the board from taking the necessary affirmative steps is that local * * * statutes may not be interposed to frustrate a constitutional mandate. * * * a state law is invalid to the extent that it frustrates the implementation of a constitutional mandate." United States v. Greenwood Municipal Separate School Dist., 406 F.2d 1086, 1093 (5 Cir. 1969); see In re Advisory Opinion to the Governor, 150 So.2d 721, 722 (Fla. 1963); Advisory Opinion of Attorney General of Florida, Feb. 2, 1970.

It has been the law of the land for over 150 years that when federal court orders conflict with state law, the federal mandates prevail. Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816). Therefore, assuming that Section 230.232(2), Florida Statutes, F. S.A., in any way interfered with the Court's order of January 29, 1970, the Court did not have to make a ruling thereon, because it was and is crystal clear that the defendants are to obey the orders of this Court.

Point 2.

Intervenors' second point is that Section 407(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000c-6(a), the so-called antibussing proviso, prohibits the Court from ordering a desegregation plan into effect which entails bussing. That proviso reads:

"* * * provided that nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards."

Intervenors' reliance on Section 407(a) is misplaced; Section 407(a) does not limit the power of this Court to disestablish school segregation, and the courts have been holding so for at least four years. The most cursory examination of Section 407(a) reveals:

A. SECTION 407(a) DOES NOT LIMIT THE POWERS OF FEDERAL COURTS

The anti-bussing proviso does not on its face prohibit the courts from doing anything, but only stresses that the Civil Rights Act is not to be construed as a conferral of new power.

"The language of the proviso indicates that its purpose was to prevent the implication that Section 407(a) enlarged the powers of the federal courts. * * * The proviso merely explains that Section 407(a) is not to be construed to enlarge the powers of the courts; it does not limit those powers." Keyes v. School Dist. Number One, Denver, Colo., 303 F.Supp. 289, 298 (D.Colo.1969), preliminary injunction stayed (10 Cir. 1969), stay of preliminary injunction vacated, 396 U.S. 1215, 90 S.Ct. 12, 24 L.Ed.2d 37 (1969).

"In other words," the Fifth Circuit has said, "the Act is not to be construed as authorizing a statutory duty to reduce racial imbalance by bussing." United States v. Jefferson County Board of Education, 372 F.2d 836, 880 n. 96 (5 Cir. 1966).

The legislative history of the Civil Rights Act also demonstrates that the anti-bussing proviso does not curtail the powers of the courts. Senator Humphrey, the Act's floor leader as a bill, said:

"This addition seeks simply to preclude an inference that the title confers new authority to deal with `racial imbalance' in schools, and should serve to soothe fears that Title IV might be read to empower the Federal Government to order the bussing of children around a city in order to achieve a certain racial balance or mix in schools." United States v. Jefferson County Board of Education, supra, at 881.

B. SECTION 407(a) DOES NOT APPLY TO THE INSTANT CASE

Section 407(a), by its very terms, refers to actions brought under the Civil Rights Act of 1964. It has no application to actions not brought under that act. Keyes v. School Dist. Number One, etc., supra, 303 F.Supp. 289, 298. The present case is brought pursuant to 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, not the Civil Rights Act of 1964. The Court relies for its authority in issuing its desegregation orders not on the Act but on its inherent powers to correct deprivations of constitutional rights. "The equitable powers of the courts exist independently of the Civil Rights Act of 1964." United States v. Jefferson County Board of Education, supra, 372 F.2d at 880. In other words, "The equitable powers of the courts in directing compliance with constitutional mandates exist independent of the 1964 Civil Rights Act." Keyes v. School Dist. Number One, etc., supra, 303 F.Supp. 289, 298.

C. SECTION 407(a) APPLIES ONLY TO BUSSING TO ACHIEVE RACIAL BALANCE

The anti-bussing proviso applies only to a special type of bussing, not bussing in general. In particular, the proviso applies only where the sole purpose of the court-ordered bussing is to achieve a racial balance, that is, to arbitrarily obtain a certain racial mix, for the sole purpose of having a certain percentage of black and white students in a particular school. The provision "applies * * * only to transportation across school lines to achieve racial balance." United States v. Jefferson County Board of Education, supra, 372 F.2d at 880. It follows that courts may order bussing where the purpose is not racial balance—where the purpose is, for example, to end state-imposed segregation or its vestiges.

"Defendants next contend that they have no constitutional duty to bus pupils, in the District, to achieve a racial balance. It is true that 42 U.S.C. § 2000c-6 withholds power from officials and courts of the United States to order transportation of pupils from one school to another for the purpose of achieving racial balance. However, this question is not before us. Although we recognize that past residential segregation itself, in the District, severely unbalanced racially the school population, the district court's judgment is directed at the unlawful segregation that it found to be unconstitutional, by means of a plan which to some extent will distribute pupils throughout the District, presumably by bus. This is not done to achieve racial balance, although that may

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