McNeal v. Tate County School Dist., 74-2738

• Citation: 508 F.2d 1017
• Decision Date: 12 February 1975
• Docket Number: No. 74-2738,74-2738
• Parties: Kelly McNEAL et al., Plaintiffs-Appellants, v. TATE COUNTY SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1017

508 F.2d 1017

Kelly McNEAL et al., Plaintiffs-Appellants, v. TATE COUNTY SCHOOL DISTRICT et al., Defendants-Appellees.

No. 74-2738.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1975.

Stanley L. Taylor, Oxford, Miss., Robert J. Kelly, Batesville, Miss., for plaintiffs-appellants.

Roy E. Johnson, Senatobia, Miss., Semmes Luckett, Clarksdale, Miss., Leon E. Hannaford, Senatobia, Miss., for defendants-appellees.

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

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judge:

The Tate County School system enrolls 3,519 students (2,152 black; 1,367 white) in five schools. Upon court-ordered abolition of freedom of choice in August 1970, the system elected to make pupil assignments to schools in the system based upon residence in one of three zones for elementary and junior high school students, and upon residence in one of two zones for high school students. However, the district also retained a ten-year-old classroom assignment plan for elementary and junior high school students which can best be described as faculty-predicted ability grouping. In this system the teacher evaluates the pupil's past performance and recommends the next year's assignment to the principal, who makes the final decision. Entering first grade students are placed into sections (classrooms) based upon whether they have attended the public preschool program. During the school year students are moved within the sections of their grade if their performance indicates that they were better or worse than initially predicted. High school classes are formed on the basis of student requests following a 'first-come, first-served' formula.

The result of this student assignment program has been to produce one to four all-black sections in every elementary (1-6) grade and a few all-white sections in the advanced grades. Because this effect violated the court's initial order enjoining the maintenance of segregated classrooms, the plaintiffs-appellants sought to hold district officials in contempt and to secure further relief barring segregated classrooms and requiring that the racial ratio in each classroom reflect the ratio in the respective grade.

The following findings were made by the district court. The system was unitary in faculty and staff assignments, transportation and extra curricular activities. The district technically had failed to comply with the earlier order barring segregated classrooms, but should be excused because of a change in the law evidenced by the Supreme Court's allowance of all-black schools in the metropolitan systems of Richmond, Detroit and Memphis. ¹ A number of the all-black classrooms were taught by black teachers. Pupil assignments were not based on any specific tests but rather upon a grading of each child's actual performance. It might well be that the segregated classrooms exist 'because the black child has not had the advantages which the white child has had.' School authorities, who were honestly endeavoring to operate a unitary system affording the very best education possible, were in a better position than the court to determine how their schools should be operated. The court could suggest nothing which would result in better schools for the district-- the only alternative being to abandon the present plan and require assignments based on race so as to create a classwide racial balance in each section, which would be educationally detrimental.

The court erred in determining that the approach to be taken in adjudging the constitutional permissibility of segregated classrooms had been changed by the recent decisions involving the segregating effects of metropolitan housing patterns upon some school populations in large urban districts. The situations are not comparable. Not only must the attendance zones in such urban areas initially be drawn with racial neutrality, but also the parents of students in those zones retain the right to relocate their residence and students in segregated schools must be granted the right to transfer to schools in which their race is in the minority. On the other hand, segregation caused by ability grouping is fixed. Notwithstanding the fact that tract assignments are made without regard to race, children who have been the victims of educational discrimination in the dual systems of the past may find themselves resegregated in any school in the district solely because they still wear a badge of their old deprivation-- underachievement.

An analysis of today's issue should begin with articulation of the basic rule that classrooms which are segregated by race are proscribed regardless of the degree of overall schoolwide desegregation achieved. See Adams v. Rankin County Board of Education, 484 F.2d 324 (5th Cir. 1973); Boykins v. Fairfield Board of Education, 457 F.2d 1091 (5th Cir. 1972), and Johnson v. Jackson Parish School Board, 423 F.2d 1055 (5th Cir. 1970). The district court finds no breach of this postulate in Tate County because it concludes that individual ability, not race, is the criterion for assignment.

The law of this circuit which bears on ability grouping of students began with dicta. ² The first decisonal mention of student assignments based on a testing of their ability came in a brief ruling in our en banc holding in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211, 1219 (1969) in particular regard to the Marshall County and Holly Springs School Districts. There we barred the use of testing for school, as opposed to classroom, assignment of pupils in these words:

We pretermit a discussion of the validity per se of a plan based on testing except to hold that testing cannot be employed in any event until unitary school systems have been established.

Then came the per curiam decision in Lemon v. Bossier Parish School Board, 444 F.2d 1400, 1401 (5th Cir. 1971), which while again refusing to make a per se rule on the validity of student placement...