Mims v. Duval County School Board, 30418.

• Decision Date: 16 August 1971
• Docket Number: No. 30418.,30418.
• Parties: Alta Oveta MIMS et al., Appellants, v. The DUVAL COUNTY SCHOOL BOARD et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

447 F.2d 1330 (1971)

Alta Oveta MIMS et al., Appellants, v. The DUVAL COUNTY SCHOOL BOARD et al., Appellees.

No. 30418.

United States Court of Appeals, Fifth Circuit.

August 16, 1971.

James C. Rinaman, Jr., Gen. Counsel, Yardley D. Buckman, and David P. Tumin, Asst. Counsel, Millar & Fallen, Jacksonville, Fla., for appellees.

Drew S. Days, III, Jack Greenberg, Norman J. Chachkin, New York City, Norris D. Woolfork, III, Orlando, Fla., for appellants.

William H. Maness, Jacksonville, Fla., for Duval Teachers Ass'n, amicus curiae.

Jack G. Hand, Jr., Jacksonville, Fla., for Jacksonville Council for Creative Curriculum, amicus curiae.

Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.

BELL, Circuit Judge:

Duval County is the thirteenth largest school system in the nation. It is comprised of 137 schools with 122,549 students (1970-71 school term), in a system having a land area of 840 square miles. The student racial ratio is 72 per cent white and 28 per cent black. The black student population is largely concentrated in the core area of the system. The defendant school board devised a plan of desegregation to convert the formerly segregated system into a unitary system in keeping with the teaching of Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, following our remand for consideration of the case in light of Swann.

The district court modified the plan in two respects; one to achieve a greater degree of desegregation as between two high schools, and the other to alleviate problems in long distance bussing between the beaches and the inner city. The comprehensive opinion of the district court is reported. Mims v. Duval County School Board, M.D.Fla., 1971, 329 F.Supp. 123.¹

This appeal involves only a single question. Thus the litigation concerning the desegregation of the Duval County system, which began in 1960, has at last washed out to the following issue: Whether the district court erred in approving the closing of five formerly black schools as a part of the plan of converting to a unitary system.

The rule in this circuit as to the closing of formerly all black schools is that such closings are prohibited where undertaken for racial reasons of the type that may be equated with invidious discrimination. Lee v. Macon County Board of Education, 5 Cir., 1971, 448 F.2d 746.

See also Bell v. West Point Municipal School District, 5 Cir., 1971, 446 F.2d 1362; Gordon v. Jefferson Davis Parish School Board, 5 Cir., 1971, 446 F.2d 266.

The corollary of this rule is that schools, black or white, may be closed for non-racial reasons. See Carr v. Montgomery County Board of Education, 5 Cir., 1970, 429 F.2d 382, 385, where the court speaks in terms of an absence of proof in the record of racial motivation and the presence of sound non-racial considerations for the closings (inferior physical plant or site). See also Wright v. Board of Public Instruction of Alachua County, 5 Cir., 1970, 431 F.2d 1200, 1202 (ample educational reasons for school closing and absence of proof of discrimination).

We come then to the facts of this case. During the 1969-70 school term, there were 27 schools in the system having all black or virtually all black student bodies. As a part of the present unitary system plan, the school board proposed to close nine of these 27 schools and appellants objected. These schools were: Blocker, Fairfield, A. L. Lewis, Livingston, East Jacksonville, Forest Park, Mount Herman, and John E. Ford elementary schools, and Darnell-Cookman Junior High. All were located in the so-called ghetto section of the core city as distinguished from the core city itself where the great majority of the black citizens reside.

During the trial, it was agreed that Livingston would not be closed. Appellants withdrew by stipulation their objection to closing Blocker, Fairfield, and A. L. Lewis. This leaves for consideration East Jacksonville, Forest Park, Mount Herman, John E. Ford, and Darnell-Cookman. The five schools had a combined present attendance of 3,601 students as compared to the total of some 35,000 black school children in the system.

East Jacksonville

The South Florida Desegregation Center recommended in its 1968 report on the Duval County school system that this school be abandoned as early as possible, stating that it was unsuitable for educational purposes. An expert for appellants was almost as strong in his view of the present unsuitability of the school for educational purposes. The building is located on a very small site and in a declining neighborhood with a declining school population (down from 330 to 201 in the last five years).

Forest Park

The district court made the following findings with respect to this school:

The South Florida Desegregation Center described Forest Park (#104) in these words: "One Negro school is particularly displeasing in terms of location. Forest Park Elementary No. 104 is a large (1,000 capacity), relatively new building on a 1.72 acre site. The school is `surrounded by a City incinerator on the East, a polluted creek on the North, and a meat and poultry (abattoir) company on the West. This has caused a serious problem with regard to stench and sewage backing up in the school plant.\'" In urging that this school should remain open, the attorney for plaintiffs presented evidence that the incinerator was no longer in operation. However that may

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