Lee v. Macon County Bd. of Ed.

• Decision Date: 07 May 1980
• Docket Number: No. 79-2499,79-2499
• Citation: 616 F.2d 805
• Parties: Anthony T. LEE et al., Plaintiffs, United States of America, Plaintiff-Intervenor-Appellant, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 805

616 F.2d 805

Anthony T. LEE et al., Plaintiffs United States of America, Plaintiff-Intervenor-Appellant, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants-Appellees.

No. 79-2499.

United States Court of Appeals Fifth Circuit.

May 7, 1980.

J. R. Brooks, U. S. Atty., Birmingham, Ala., James P. Turner, Deputy Asst. Atty. Gen., Michael B. Wise, John C. Hoyle, General Litigation Section, Civil Rights Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-intervenor-appellant.

Phelps, Owens & Jenkins, Sam M. Phelps, J. Russell Gibson, III, Tuscaloosa, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before GEE, FAY and VANCE, Circuit Judges.

FAY, Circuit Judge:

Among the individual school districts added as defendants during the tortuous course of this statewide school desegregation case was the Tuscaloosa City School System, joined in 1969. In Lee v. Macon County Board of Education, 429 F.2d 1218 (5th Cir. 1970) (Tuscaloosa I), this court affirmed the initial district court order approving a plan to desegregate Tuscaloosa's schools with neighborhood geographic attendance zones. After the United States Supreme Court decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) and this court's decision in Ellis v. Board of Public Instruction of Orange County, Florida, 465 F.2d 878 (5th Cir. 1972), cert. denied, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (1973) (Ellis II), the United States, as plaintiff-intervenor, filed a motion for supplemental relief, seeking a new plan of student assignment for more effective desegregation. The district court denied relief. In Lee v. Tuscaloosa City School System, 576 F.2d 39 (5th Cir. 1978) (Tuscaloosa II), this court, in light of Swann and Ellis II, vacated the district court's order and remanded with instructions to the district judge to fashion a remedy "designed to alleviate the condition of racially identifiable schools in Tuscaloosa." Id. at 41. After submission of various plans by the parties, the district court devised a school desegregation plan and ordered its implementation. Bringing the Tuscaloosa case before this court for the third time, the United States now appeals the district court's latest order. The government argues that inadequate desegregation of Tuscaloosa's elementary grades under the latest plan renders the system as a whole unconstitutional. We recognize that the district judge confronted myriad problems in his attempt to weave a workable desegregation plan, and we commend the school board for their genuine desire to achieve school desegregation. The plan they devised makes giant strides toward a unitary system. It simply does not go far enough. Accordingly, the district court's order is vacated and the case remanded with instructions to modify the desegregation plan to achieve a unitary school system in Tuscaloosa.

After this court's remand in Tuscaloosa II, the district court ordered the defendant school system to submit plans for desegregating Tuscaloosa's senior high schools in 1978-79 and for desegregating the junior high and elementary schools thereafter. The district court reviewed the plans submitted, delayed their implementation, and ordered the school system to submit by January 1, 1979, additional plans for complete desegregation of the entire city school system. The defendant school system complied, submitting new, alternate desegregation plans. In response, the United States submitted other alternative plans. After a hearing held in April, 1979, the district judge issued an order adopting a modified version of the school system's plan. The United States now challenges that part of the plan dealing with desegregation of the elementary grades. All parties agree that except as to grades kindergarten through five the district court has fully complied with the dictates of the United States Supreme Court and our mandate in Tuscaloosa II.

Under the district court's order, Tuscaloosa was to achieve complete desegregation of its senior high schools in 1979-80 by sending all ninth and tenth grade students to the formerly all-black Druid High School and all eleventh and twelfth grade students to the formerly all-white Tuscaloosa High School. Under a second part of the plan, grade six would join former junior high grades seven and eight in 1980-81 to form middle schools. Then, a school pairing plan similar to that for the senior high schools would effect desegregation in the middle schools. Under the district court's order, however, elementary grades kindergarten through five would be subject to the same neighborhood geographic attendance zones that were in effect under the 1970 plan, the plan which as a whole was rejected in Tuscaloosa II. Continuing that plan of student assignment, Tuscaloosa would maintain four elementary schools which in 1978-79 had had student populations more than 97% black and one elementary school which had had a student population of 99% white. Additionally, other elementary schools which had been "racially identifiable" would remain so. ¹ The parties agreed that virtually no further desegregation in these lower grades would ever be achieved by continuing the 1970 student assignment plan. Consequently, two-thirds of Tuscaloosa's elementary grade black students would continue to attend schools more than 95% black. ²

Notwithstanding this degree of racial disparity, the district court approved the plan for the elementary grades, giving five reasons in the memorandum opinion filed with his order. By assimilating and articulating this five-fold rationale for the elementary school plan, the district judge amply fulfilled his duty to consider local conditions in preparing a desegregation plan. See Wright v. Council of City of Emporia, 407 U.S. 451, 466, 92 S.Ct. 2196, 2205, 33 L.Ed.2d 51 (1972). His overriding responsibility, however, was "to eliminate from the public schools all vestiges of state-imposed segregation." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 14, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971). See also Lee v. Tuscaloosa City School System, 576 F.2d at 41. Insofar as the practicalities of the situation allowed, the court was to make every effort to achieve the greatest possible degree of desegregation. See Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971). The court's decision, however, does not detail sufficient factual findings for us to ascertain whether the plan reached the maximum desegregation permitted by local conditions. Nor does it articulate what record evidence supports the conclusions reached. Moreover, an exacting review of the trial court's decision reveals that the reasons proffered for retaining the one-race schools are legally insufficient.

First among the district court's five reasons for permitting Tuscaloosa to retain several one-race elementary schools was that Tuscaloosa students' overall education experience would be in a desegregated environment. Students would spend grades six through twelve in desegregated schools. Only from kindergarten through fifth grade would any students attend racially identifiable schools.

In considering appropriate desegregation measures, the district judge properly viewed the system as a whole, not focusing on the racial balance of individual schools. See Carr v. Montgomery County Board of Education, 377 F.Supp. 1123, 1137-38 (M.D.Ala.1974), aff'd, 511 F.2d 1374 (5th Cir.), cert. denied, 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975). Clearly, the existence of a few one-race schools does not in itself offend the constitution. Dayton Board of Education v. Brinkman, 433 U.S. 406, 413, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971). If one-race schools do exist in a system with a history of segregation, however, the school authority purportedly attempting to dismantle its dual system bears the burden of showing that such schools' racial composition does not derive from present or past discriminatory action. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. at 26, 91 S.Ct. at 1281; Flax v. Potts, 464 F.2d 865, 868 (5th Cir.), cert. denied, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299 (1972). The United States Supreme Court in Swann established a presumption against schools substantially disproportionate in racial composition. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. at 26, 91 S.Ct. at 1281. In reviewing desegregation plans proposing one-race schools, courts must scrutinize the schools to make sure that the authorities' reasons for retaining them can surmount the presumption of unconstitutionality. Id.

The desegregation plan in this case fell short of its constitutional goal, the district court improperly having concluded that overall desegregation was achieved because Tuscaloosa students would spend more than half their grades in a totally desegregated environment. The court in Carr v. Montgomery County Board of Education, 377 F.Supp. 1123 at 1137-38, did successfully utilize similar reasoning in approving a desegregation plan which retained some virtually one-race elementary schools. That plan, however, achieved much greater desegregation success than does the plan now before us, both in the overall system and also in the elementary grades. The district court in Carr indicated by specific findings of fact that the plan effected the maximum degree of stable desegregation. For example, under the Carr plan, about 18% of elementary age black students attend schools 95% or more black. As seen earlier, about 67% of Tuscaloosa's black children would attend elementary schools more than 95% black.

Moreover, the relatively limited number of one-race schools permitted in Carr resulted in part from...