McNeal v. Tate County School District, 30722.

• Citation: 460 F.2d 568
• Decision Date: 07 June 1972
• Docket Number: No. 30722.,30722.
• 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)

460 F.2d 568 (1972)

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

No. 30722.

United States Court of Appeals, Fifth Circuit.

September 17, 1971.

Rehearing and Rehearing Denied June 7, 1972.

Robert J. Kelly, Batesville, Miss., for plaintiffs-appellants.

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

Before JOHN R. BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 7, 1972.

LEWIS R. MORGAN, Circuit Judge:

This is an action to set aside the sale of public school property to an all-white private school. The district court upheld the sale. We reverse.

Plaintiffs-appellants are black citizens of Tate County, Mississippi. They filed suit under 42 U.S.C. §§ 1981, 1983, and 28 U.S.C. § 1343, seeking equitable relief against the sellers of the property, the Tate County Board of Education and the Tate County Superintendent of Education, and by later amendment against the purchaser of the property, Harold W. Steward, acting as agent for a group of citizens who later formed the Tate County Foundation. The theory of appellants' complaint was that the Board of Education encouraged and fostered racially segregated education by selling the Thyatira School to the Tate County Foundation which converted the school into a private academy attended exclusively by white children. After hearing testimony from both sides, the district court refused to invalidate the sale mainly on the grounds that there was no showing of illegality or bad faith by the school board in disposing of the property.

The facts surrounding the sale are substantially undisputed. Thyatira School consisted of four buildings located on a rural six-acre tract in the eastern half of Tate County, Mississippi. Constructed in 1941, the buildings deteriorated to such an extent that, by the Fall of 1969, they were in a dilapidated condition. During the 1969-1970 school year 35 children of both races attended Thyatira and utilized only three of its seven classrooms.

Realizing that the school had outlived its usefulness and that continued operation would be uneconomical, the Tate County Board of Education met on December 10, 1969, and voted to sell Thyatira School. Pursuant to this resolution, the property was advertised for three consecutive weeks in a weekly newspaper having a general circulation in Tate County as required by Section 6328-43 of the Mississippi Code of 1942, Recompiled.

The only offer submitted for the property was a sealed bid of $4,001.00 from Harold W. Steward, acting as agent for the Tate County Foundation (hereinafter, Foundation). The Foundation was comprised of approximately 80 citizens of the county who contributed $100.00 each to be used to acquire property for the establishment of a private school. At this point it is significant to note that the district court found, and we agree, that the Foundation sought to establish a private school in order to avoid "the impact of full and complete integration of the schools of the district" which came about as a result of the adoption of a unitary school plan by the school board.

The school board accepted Steward's bid and executed a quitclaim deed on January 7, 1970.

Although the Foundation did not receive actual possession until June 1, 1970, the school board allowed workmen to enter and begin renovating the buildings in February of 1970. While the repair work was in progress, the Foundation assembled an all-white faculty and staff and accepted applications from 134 white students. No black student applied for admission, undoubtedly because the annual tuition of $450.00 per child¹ was beyond the means of most of the black families in Tate County.

In June 1970 the newly formed private school was well on its way toward commencing operations under the name of Hillcrest Academy. However, when appellants filed suit to compel the school board to reacquire the property, the Foundation responded on July 28th with a non-discriminatory admissions policy which declared that race would not be a factor in admitting students and that applicants would be judged solely on the basis of "moral character", "disciplinary record", and "educational background".

We are thus confronted with the sale of an old and deteriorated public school facility to a private academy which, regardless of its published admissions policy, is segregated as to faculty, staff, and student body. It is not contended that the school board lacked valid reasons for selling Thyatira School, or accepted an inadequate price for the property, or in any way affirmatively participated in the creation of an all-white private school. However, the record fully supports the district court's finding that the school board was at all pertinent times aware of the "fact that a movement was on foot in the county by many of the white citizens to start private schools, in order to avoid the impact of integration of the public schools of the district".

With slight variations the identical issue was before this court in Wright v. City of Brighton, Alabama, 5 Cir., 1971, 441 F.2d 447, where we held that the Fourteenth Amendment was violated by the city's sale² of a public school building to a private academy which the city knew had a policy of racial discrimination.

"Here it is perfectly clear that the City of Brighton\'s determination to sell a public school building to an institution which the city knew would operate an all-white segregated school had the ultimate effect of placing a special burden on the black citizens of that community. The city in effect encouraged the maintenance of a segregated facility by its action. It participated in a transaction by which a public building, once open to all on an equal basis, was converted into a segregated facility where the black people of the community were no longer welcome. Whether we call such action the creation of a badge of slavery, Jones v. Alfred H. Mayer Co., 1968, 392 U.S. 409, 439, 88 S.Ct. 2186, 20 L.Ed.2d 1189, a relic of slavery, Jones v. Alfred H. Mayer Co., supra, at 443, 88 S.Ct. 2186 or a badge of inequality, Palmer v. Thompson, 5 Cir., 1969, 419 F.2d 1222, cert. granted, 397 U.S. 1035 90 S.Ct. 1364, 25 L.Ed.2d 646³ such a segregated institution is one of the many humiliations which society has visited upon the black man. The Supreme Court and others have taken occasion to note the feelings of inferiority generated in the `hearts and minds of Negro children, when they are separated solely because of race from those of similar age and qualification.\' Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 494, 74 S.Ct. 686, 98 L.Ed. 873; Dawson v. Mayor and City Council of Baltimore City, 4 Cir. 1955, 220 F.2d 386, 387, aff\'d. 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774. The effect of the city\'s action here was to create another place where these feelings of inferiority could be generated, and it was all the more a humiliating indignity because this building had for years been a public school building which did not lose its identity as a public facility just because legal title changed hands."

441 F.2d at 451.

Of course, the City of Brighton had actual knowledge that the school building it sold would be operated as an all-white segregated academy, and here, the members of the Tate County Board of Education gave unrefuted testimony that they were not aware that the Thyatira School was being sold to purchasers who intended to create a private school. But this distinction becomes inconsequential in view of testimony from board members who stated that, even though they were cognizant of local and state-wide movements to avoid desegregation by forming private schools, no effort was made to discuss, to investigate, or even consider the patently obvious possibility that Thyatira might become a segregated academy after it was sold. (R. 154, 209)

We will not allow a school board to circumvent our decision in Wright v. City of Brighton, Alabama, supra, by ignoring local conditions and then claiming that it did not know that public property was being sold to those who would practice racial discrimination. As Judges Wisdom⁴ and Goldberg⁵ of this court have observed, federal judges are not so naive in the field of civil rights.

Furthermore, school boards are charged with the affirmative duty to take whatever steps might be necessary to bring about a unitary educational system which is free from racial discrimination. Green v. School Board of New Kent County, 1968, 391 U.S. 430, 88 S. Ct. 1689, 20 L.Ed.2d 716. That duty includes making some sort of reasonable investigation of prospective purchasers when school property is sold in an area where it is common practice to establish all-white private schools as a response to court-ordered integration. In the case at hand, the members of the Tate County Board of Education knew full well of efforts to thwart integration by setting up private academies, and yet, they made not the slightest effort to determine what use the purchasers would make of Thyatira School. By their inaction the board members breached their affirmative constitutional duty to achieve a unitary school system and provided aid to a scheme which resulted in more—not less—segregation.

We need not state in detail exactly what type of inquiry must be made of prospective purchasers by sellers of public school property for that question is not before us. In any event, the standard would most likely vary with the facts of each particular case. Suffice it to say that in this case the Tate County Board of Education closed its eyes and made no inquiry whatever, and for that reason the sale of Thyatira School must be set aside.

That part of the district court's order upholding the sale of Thyatira School is therefore reversed and the case remanded with directions that the court enter an order...