Lee v. Macon County Board of Education

• Decision Date: 20 September 1971
• Docket Number: No. 30154.,30154.
• Citation: 448 F.2d 746
• Parties: Anthony T. LEE et al., Plaintiffs, United States of America, Plaintiff-Intervenor-Appellants, National Education Association, Inc., Plaintiff-Intervenor, v. MACON COUNTY BOARD OF EDUCATION et al., and Calhoun County School System, Defendant-Appellee, and City of Oxford School System, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

448 F.2d 746 (1971)

Anthony T. LEE et al., Plaintiffs United States of America, Plaintiff-Intervenor-Appellants National Education Association, Inc., Plaintiff-Intervenor, v. MACON COUNTY BOARD OF EDUCATION et al., and Calhoun County School System, Defendant-Appellee, and City of Oxford School System, Defendant-Appellee.

No. 30154.

United States Court of Appeals, Fifth Circuit.

June 29, 1971.

Rehearing and Rehearing September 20, 1971.

Wayman G. Sherrer, U. S. Atty., E. Ray Acton, Asst. U. S. Atty., Birmingham, Ala., Robert Pressman, Atty., Dept. of Justice, Civil Rights Div., Washington, D. C., Solomon S. Seay, Jr., Montgomery, Ala., T. W. Thagard, Jr., Montgomery, Ala., for appellant.

H. R. Burnham, John R. Phillips, Anniston, Ala., for appellee.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc September 20, 1971.

WISDOM, Circuit Judge:

This school desegregation case¹ involves the student assignment provisions of the plan for desegregating the public schools in Calhoun County, Alabama. The United States, plaintiff-intervenor, appeals from that portion of the court's order which would have the effect of leaving approximately 45 percent of this small district's Negro students in two virtually all-black schools; pairing alternatives would fully segregate both schools.² We feel compelled to reverse the district court on this issue.

I.

Calhoun County, in northeastern Alabama, has a county school system serving rural areas and incorporated municipalities not having their own separate systems. There are five school systems in the county, the Calhoun County system and four city systems. In 1969-70, the county board operated 24 schools, of which two were all-black and ten all-white. The system had about 11,322 white and 1573 black students (12 percent). Over 1000 of the blacks were in the two all-black schools.³ At issue here is the assignment of the students in these two schools, the Calhoun County Training School and the Thankful School. Necessarily involved in any desegregation plan are the formerly all-white schools in Oxford and Mechanicsville School, which is in a rural area. These schools lie closest to the all-black schools and present the most feasible opportunity for achieving desegregation by pairing.

Calhoun County Training School is located in all-black Hobson City, an incorporated town on the edge of Oxford City. Hobson City had a population of 770 in 1960; today it is thought to have double that population. County Training has served the black students not only of Hobson City but also of Oxford and other areas. Oxford Elementary School and Oxford High School, located on a common site, have served whites from Oxford and outlying areas. County Training and the Oxford schools are 1.6 miles apart by road.

Because of the school district's rural character and the board's previous maintenance of a segregated school system, the county has provided extensive school bus transportation for students. Of the almost 13,000 students in the county system 10,000 or 77.6 percent were bussed to school in 1969-70. Approximately the same percentage of students were bussed to the Oxford schools as in the system as a whole. Some of these students were picked up within the city boundaries.

Past de jure segregation and residential patterns have shaped the context of this case. In 1899 Hobson City, which had been part of Oxford, was separately incorporated after the area's black residents were gerrymandered out of Oxford, according to undisputed testimony in the record. Custom continued the residential segregation: Hobson City has remained all-black and in Oxford blacks (five percent of the population) live only in the section closest to the Oxford-Hobson border.

Oxford had an independent school system until 1932 when its schools became part of the county system. During this past school year, while the county system was under court order to submit plans for county-wide desegregation, Oxford established a city school system under a City Board of Education. This board requested the Calhoun County Board to transfer control of the two Oxford schools to the new board. The takeover became effective July 1, 1970. The city school board has urged that its status as an independent entity is relevant to desegregation proposals.

The other all-black school, Thankful School, is to the north of County Training. Thankful served 278 black children in grades 1-6 in the 1969-70 school year. Thankful is approximately one mile from Mechanicsville School, which has been serving 595 white children. During the 1969-70 school year, 510 of these were bussed to school. There are several other formerly all-white county elementary schools within a radius of about three miles of Thankful.

The issues in this case can best be considered by describing the plans submitted to the three-judge court by the various parties.

Under orders of the Court, the Calhoun County Board of Education, January 12, 1970, submitted a plan proposing the closing of the two black schools,⁴ County Training and Thankful, and distributing the students from these schools among a number of the other county schools.⁵ The Oxford schools would have received a number of the black students from County Training. The Oxford Board of Education, which asserts its separate identity with respect to sending its students to County Training, concurred in the plan. The school closing plan would result in an extended day-school schedule at Oxford High to house 1595 pupils in grades 7 to 12. While the plan indicated a capacity of 1840-1860 at Oxford High based upon the extended day scheduling, the Building Information Form for that school for the 1969-70 school year, stated that the maximum capacity was 1230. The plan would assign 1070 children to Oxford Elementary, with a regular capacity of 810, 1035 including 7 portable and 2 temporary rooms.

The plaintiffs and the United States objected to closing Calhoun County and Thankful on the ground that it was racially motivated and would impose an unconstitutional burden on the Negroes. The conclusion that the proposed closing was racially motivated was based on the fact that the facilities to be closed were physically adequate and that the county board's justifications included the argument that whites would resist going to school in facilities formerly used by blacks. As an alternative, the plaintiffs and plaintiff-intervenors suggested various pairing plans that would link County Training with the Oxford Elementary and High Schools, and link Thankful School with Mechanicsville School.⁶ On February 10, 1970, the court ordered the system to show cause why this alternative should not be implemented, noting that "the school system's plan appears to impose an unnecessary burden on the children of both races solely to avoid assigning white students to a formerly black school. The imposition of such a burden, when based on racial factors, violates the Fourteenth Amendment."

According to the county superintendent of schools, the Thankful School, built in 1953, is "in good condition," has a "good" site and its "landscaping is fine". The Mechanicsville School, which would absorb more than 100 students if Thankful were closed, is located about one mile from Thankful. Its site is not as attractive as the one at Thankful. A portion of the Calhoun County Training School was built in 1945 and the remainder in the 1950's and 1960's. It might cost a million dollars to build a structure like Calhoun County Training at present. The system does not presently have available money for new construction. The court stated in the terminal order of June 12, 1970, that County Training had "an excellent physical plant. * * *"

The County System gave three reasons for opposing the pairing. (1) Whites would flee from the public schools.⁷ (2) It would be expensive to convert the Training School to an elementary school. (3) Hobson City's two percent license tax, covering teachers, would make it difficult to acquire suitable teachers. The Oxford system opposed the pairing for a number of reasons. (1) It agreed with the county board that whites would flee the public schools.⁸ (2) Hobson City is a separate town with its own government. (3) The Oxford System would not have elementary grades, thereby making it difficult to attract industry. (4) Pairing would require bussing; some students live 3 or 4 miles from County Training; the Oxford system did not intend to operate buses.

The county board then proposed a new plan that would keep both County Training and Thankful open for grades 1-6. Under this plan, student assignments would be based on geographic attendance zones. Since the zone boundaries followed historic neighborhood boundaries, their projected effect was to make County Training all-black and Thankful virtually so.⁹ Children in grades 7 to 12 formerly attending these schools would be distributed to the formerly white schools according to the original county proposal.

After a hearing the district court entered a single order for the Calhoun County and Oxford systems accepting the county board's plan except for an amendment providing that the board operate County Training for grades 1 to 12 instead of 1 to 6. The order stated that "the evidence * * * reflects that County Training is an excellent physical plant". The effect of the order is to continue the school's all-black character serving grades 1 to 12 and to deprive approximately 200 black students of the integration provided by the county plan.¹⁰ Under the plan, approximately 45 percent of the black students in the system will be assigned to Thankful and County Training, 29.4 percent to all-black County Training for their entire school careers.

II.

The first issue we discuss is whether Oxford's secession from the Calhoun County school system requires that its schools be treated as an independent system. Oxford asserts its freedom to keep its pupils in schools...