Lockett v. BOARD OF ED. OF MUSCOGEE COUNTY SCH. DIST., GA., 21662.

• Citation: 342 F.2d 225
• Decision Date: 24 February 1965
• Docket Number: No. 21662.,21662.
• Parties: Jerry L. LOCKETT, Gwendolyn Lockett and Jim H. Lockett, Jr., Minors by Armanda Lockett, Their mother and next friend, Appellants, v. BOARD OF EDUCATION OF MUSCOGEE COUNTY SCHOOL DISTRICT, GEORGIA, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

342 F.2d 225 (1965)

Jerry L. LOCKETT, Gwendolyn Lockett and Jim H. Lockett, Jr., Minors by Armanda Lockett, Their mother and next friend, Appellants, v. BOARD OF EDUCATION OF MUSCOGEE COUNTY SCHOOL DISTRICT, GEORGIA, et al., Appellees.

No. 21662.

United States Court of Appeals Fifth Circuit.

February 24, 1965.

Derrick A. Bell, Jr., Jack Greenberg, New York City, Albert W. Thompson, Columbus, Ga., Donald L. Hollowell, Atlanta, Ga., Constance Baker Motley, George B. Smith, Inez V. Smith, New York City, for appellants.

J. Madden Hatcher, A. J. Land, Columbus, Ga., for appellees.

Before TUTTLE, Chief Judge, MOORE^* and BELL, Circuit Judges.

BELL, Circuit Judge.

This appeal presents issues arising out of a suit to desegregate the public school system of Muscogee County (Columbus), Georgia. Several months prior to suit the school Board had voluntarily adopted and activated a stair-step, one grade per year transfer type plan of desegregation commencing with the twelfth grade in September 1964. The suit attacked the maintenance of a compulsory biracial school system wherein school children were assigned to public schools on the basis of race through the perpetuation of dual school zones or attendance lines based on race, and through the assignment of teacher and administrative personnel on a racial basis. The prayer was for an end to these racial distinctions or, in the alternative, for a decree directing the school Board to submit a plan for the complete reorganization of the school system into a unitary, nonracial system.

By way of answer the Board admitted that prior to the promulgation of the desegregation plan they operated and maintained separate schools for Negroes, and that teacher and administrative personnel was assigned on a racial basis. It was asserted however, that the Board had begun a plan of school desegregation and the prayer was for court approval of the plan.

A motion for a preliminary injunction came on to be heard, and by agreement the case was tried at that time on its merits. The District Court denied the prayer for injunction, both temporary and permanent, approved the Board's plan, and deferred consideration of the teacher and administrative personnel assignment question. Jurisdiction was retained for such other and further proceedings and orders as might be deemed appropriate in the light of developing circumstances.

The issues presented by appellants' assignments of error are three in number. Did the court err in denying the injunction? Did the court err in refusing to rule on the validity of assigning teacher and administrative personnel on a racial basis? Was the approval of the grade a year plan, both as to speed of desegregation and in the use of a transfer plan for pupil assignment, error? We affirm with respect to the denial of the injunction and as to the postponement of the teacher and administrative personnel question. We reverse as to the plan, both on the question of speed and the use of a transfer method of assignment. We do note in reversing, the fact that the school Board filed, prior to argument of the case in this court and without objection, a resolution of the Board which disclosed that commencing in September 1965 grades nine, ten and eleven in addition to grade twelve are to be desegregated and on a quasi-freedom of choice basis as distinguished from the plain transfer plan now in use.

There is little more that a court may add at this late date to what has already been written with regard to the federal constitutional requirement that the schools be operated without discrimination based on race, and as to what is required in the desegregation process necessary in the conversion of segregated school systems. The Supreme Court enunciated this requirement more than ten years ago in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. More than nine years ago the court decreed that desegregation must be accomplished "with all deliberate speed." Brown v. Board of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. In Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, the court, as it had in the second Brown case, stated that the burden was on school boards to establish that delay was necessary, reiterated that delay would not be countenanced because of disagreement with the constitutional principle involved, and added that community hostility or recalcitrance could not serve as a basis for avoiding the principle. After the second Brown decision, and before and subsequent to Cooper v. Aaron, many school systems were desegregated and court decisions ad infinitum were rendered. Out of the opinions accompanying these decisions arose a considerable body of law relating to the constitutional rights involved and to the various components of the school desegregation process. Much of that body of law was written in this circuit. The grade a year plan came into rather wide use but, with the passage of years, fell into judicial disfavor mainly because of the inability to offer proof sufficient to sustain the burden, which was on the school boards, that such delay was necessary. We sent up a warning flag in Davis v. Board of School Commissioners of Mobile County, 5 Cir., 1963, 318 F.2d 63, that the day was near at hand when grade a year plans would no longer pass muster. In Watson v. City of Memphis, 1963, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529; Goss v. Board of Education of the City of Knoxville, Tennessee, 1963, 373 U.S. 683, 83 S.Ct. 1405, 10 L.Ed.2d 632; and Griffin v. County School Board of Prince Edward County, 1963, 375 U.S. 391, 84 S.Ct. 400, 11 L.Ed.2d 409, the Supreme Court, in rather rapid fire order, made the point, in language understandable by all, that the doctrine of "all deliberate speed" could no longer be viewed, due to the passage of years, in the same context as when announced. Following these cases, the court in Calhoun v. Latimer, 1964, 377 U.S. 263, 84 S.Ct. 1235, 12 L.Ed.2d 288, where we had approved Atlanta's grade a year plan, see 321 F.2d 302, remanded the case to the District Court for reappraisal of the speed of the plan in light of Watson, Goss, and Griffin. It was then beyond peradventure that a shortening of the transition period was mandatory.

At that point, and after the lower court had entered judgment in the present case, this court rendered decisions in five cases involving plans for school desegregation. The cities involved were...