Henry v. Clarksdale Municipal Separate School District, 29165.

• Decision Date: 05 October 1970
• Docket Number: No. 29165.,29165.
• Parties: Rebecca E. HENRY et al., Plaintiffs-Appellants-Cross-Appellees, v. The CLARKSDALE MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees-Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

433 F.2d 387 (1970)

Rebecca E. HENRY et al., Plaintiffs-Appellants-Cross-Appellees, v. The CLARKSDALE MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees-Cross-Appellants.

No. 29165.

United States Court of Appeals, Fifth Circuit.

August 12, 1970.

Rehearing Denied and Rehearing Denied October 5, 1970.

Melvyn R. Leventhal, Reuben V. Anderson, Fred L. Banks, Jr., Jackson, Miss., for plaintiffs-appellants-cross-appellees.

Other interested parties: Jerris Leonard, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Jack Greenberg, Norman Chachkin, New York City.

Semmes Luckett, Leon L. Porter, Jr., Clarksdale, Miss., Hardy Lott, Greenwood, Miss., for defendants-appellees-cross-appellants.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied October 5, 1970.

SIMPSON, Circuit Judge:

Following the limited remand accomplished by our April 15, 1970 order in this school desegregation case, Henry, et al. v. Clarksdale Municipal Separate School District, et al., 5 Cir., 1970, 425 F.2d 698 (Clarksdale II) the district court conducted a hearing upon the Special Master's Report and the exceptions thereto on April 24 and on May 8, 1970, entered its findings of fact and conclusions of law in a memorandum opinion and order. Thereafter the supplemental record was filed in this Court and further briefs have been received from the parties under a court-imposed accelerated briefing schedule, under the procedures detailed in Part III of Singleton III (Singleton v. Jackson Municipal Separate School District, 5 Cir. 1969, 419 F.2d 1211). See Rule 2, F.R.App. Proc. Under extensions granted by the Court at the urgent requests of the parties the last brief was filed with the Clerk on July 22, 1970. The case is disposed of as an extraordinary matter upon consideration of the record and briefs. Singleton III, supra, and Rule 2, F.R. A.P.

The opening of the 1970-71 school term is less than a short month in the future. In order to meet the already overdue deadlines imposed by Alexander,¹ Singleton III, supra, and Carter² so that complete conversion of this district to a unitary school system³ may be accomplished by the beginning of the new term, we must act with dispatch. Time limitations will require prompt action by the School Board under the stringent requirements of the district court upon our remand.

Our directions to the district court upon remand from the prior appeal of this matter, Henry v. Clarksdale Municipal Separate School District, 5 Cir. 1969, 409 F.2d 682 (Clarksdale I) were as follows:

"* * * the Board bears the burden of taking corrective action. An effective plan should produce desegregated faculties, staff, facilities, transportation, and school activities (such as athletics) along with integrated student bodies. If there are still all-Negro schools, or only a small fraction of Negroes enrolled in white schools, or no substantial integration of faculties and school activities then, as a matter of law, the existing plan fails to meet constitutional standards as established in Green and its companion cases. The board should consider redrawing its attendance-zone boundaries, incorporating a majority-to-minority transfer provision in its plan, closing all-Negro schools, consolidating and pairing schools, rotating principals, and taking other measures to overcome the defects of the present system. As to its attendance zones, zone boundaries or feeder patterns designed or used to perpetuate or promote segregation shall be discontinued, and such zone lines shall be redrawn, wherever feasible, to maximize desegregation or eliminate segregation. No zone boundaries or feeder patterns which maintain what is essentially a segregated school structure shall be used. Braxton v. Board of Public Instruction of Duval County, M.D.Fla.1967." 409 F. 2d at 689.

The district court's directions to its Special Master referred to him:

"the task of aiding the court to develop a new student desegregation plan applicable to all 12 grades of the Clarksdale Municipal Separate School District, effective for the school year beginning September 1970 and thereafter. Said plan must produce a unitary school system in which no child is effectively excluded from attending any school because of his race or color; and, to be constitutional, the plan must provide for no schools attended solely by Negro students and no formerly all-white schools attended only by a small number of Negro students; that is, there must not be `white\' schools or `Negro\' schools, but just schools".

These directions were clear.

But the Special Master by his report failed completely to follow them with respect to the elementary schools of the district. See column 3 of the tables collected in footnote 11, infra.

The district judge held a hearing on the Special Master's report, exceptions thereto and argument thereon. His decision of May 8, 1970, from which this appeal is taken, confirmed the Special Master's report and adopted the school plan proposed by it. This was error under our instructions on remand in Clarksdale I.

The Special Master was an educator, not a lawyer, but his testimony indicates that he read and interpreted Ellis⁴ to permit complete disregard of our earlier express requirements with respect to the elementary schools of the Clarksdale Municipal School District. The district judge also gave undue weight to Ellis (perhaps because he misapprehended the significance of the Master's findings, see footnote 6, infra), with the result that he failed to follow our clear directions to him in Clarksdale I as well as the constitutional requirement already clearly present in the case as explicated by the Supreme Court in Green and further clarified in the interim by several decisions by this Court and by the Supreme Court.⁵

The plan recommended by the Special Master⁶ did implement desegregation of the senior and junior high schools by proposing to make the former Clarksdale junior and senior high schools (formerly all white) into a single senior high school for the entire district, and by proposing to make Higgins junior and senior high schools (formerly all black) into a single junior high school for the whole district. It proposed to leave unchanged the totally (or nearly so) segregated elementary school program under the zoning system already disapproved by Clarksdale I and indeed by the district court's order of January 10, but now sought to be restored to acceptability and brought forward under the Ellis neighborhood school or geographical proximity or "equal distance zoning" label. No change with respect to the elementary schools of Clarksdale would occur except the nomenclature employed. The racial makeup of pupils attending the several elementary schools would continue exactly as before. The student bodies of Heidelberg, Kirkpatrick and Oakhurst elementary schools would continue all white, serving grades from 1 to 6, in the same neighborhoods as under the former school board plan. Similarly, Oliver, Myrtle Hall, Riverton, and Booker T. Washington elementary schools would continue all black in student body, each serving Negro students from its immediate environs.⁷

The sole change of any note as to the elementary schools is adoption of a majority-minority transfer policy. We approve this provision without reservation and direct that it be continued. However, much, much more must be accomplished by the September, 1970 school opening date in order to convert this district into a unitary system.

The result achieved and approved in Ellis v. Board of Public Instruction, Orange County, Florida, supra, represented this Court's appraisal of the maximum that could be accomplished in converting to a unitary system under the facts in that case. Orange County, Florida, is a countywide district including a heavily populated metropolitan core and numerous outlying smaller population centers. It involved 2913 teachers and a student population of 36,498 in junior and senior high schools, 43,822 in elementary schools and 2548 in vocational and special educational classes, for a total school population of 82,868. The maximum desegregation possible of accomplishment in such a school system as Orange County bears little relation to the factual situation in this case.

Here we deal with a compact district of four square miles whose boundaries are coterminous with the city limits of Clarksdale, containing a school population of about 5300, roughly 3169 blacks and 2106 whites, formerly housed in seven elementary schools, three junior high schools and two senior high schools. At its widest points, the district (and the city) measures about 2 miles north to south and about 4 miles east to west. Ellis has its place when it is properly applied,⁸ but reliance upon it by the district judge in the situation here totally ignores the real key to Ellis, the strong caveat of footnote 7, 423 F.2d at page 408:

"7. Under the facts of this case, it happens that the school board\'s choice of a neighborhood assignment system is adequate to convert the Orange County school system from a dual to a unitary system. This decision does not preclude the employment of differing assignment methods in other school districts to bring about unitary systems. There are many variables in the student assignment approach necessary to bring about unitary school systems. The answer in each case turns in the final analysis, as here, on all of the facts including those which are peculiar to the particular system." (Emphasis supplied)

The size and physical makeup of the district here under consideration markedly resemble that of the City of Monroe, Louisiana, whose school plan was recently reviewed by this Court in Andrews, et al. v. City of Monroe, et al., 5 Cir. 1970, 425 F.2d 1017. Monroe is a larger city with a school population of about 11,000, made up of approximately 5750 white pupils and 5250 black pupils, with twelve elementary schools,...