Montgomery v. Starkville Mun. Separate School Dist.

• Decision Date: 09 September 1988
• Docket Number: No. 87-4478,87-4478
• Citation: 854 F.2d 127
• Parties: 48 Ed. Law Rep. 413 Horace Willie MONTGOMERY, et al., Plaintiffs-Appellants, v. STARKVILLE MUNICIPAL SEPARATE SCHOOL DISTRICT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 127

854 F.2d 127

48 Ed. Law Rep. 413

Horace Willie MONTGOMERY, et al., Plaintiffs-Appellants, v. STARKVILLE MUNICIPAL SEPARATE SCHOOL DISTRICT, Defendant-Appellee.

No. 87-4478.

United States Court of Appeals, Fifth Circuit.

Sept. 9, 1988.

Wilbur O. Colom, Mary Beverly Borroura, Mitchell Frantilin, Colom & Colom, Columbus, Miss., for plaintiffs-appellants.

Lydia Quarles, Dolton W. McAlpin, McAlpin & Quarles, Starkville, Miss., for defendant-appellee.

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

Before VAN GRAAFEILAND, ^* JOHNSON and JOLLY, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Appellants, twelve Starkville, Mississippi students, by their parents and next friends, appeal from a portion of the judgment of the United States District Court for the Northern District of Mississippi (L.T. Senter, Jr., C.J.) which denied appellants' claims of racial discrimination by Starkville Municipal Separate School District (the "district"). For the reasons that follow, we affirm.

The Supreme Court's landmark decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), precipitated a spate of lawsuits alleging racial discrimination in schools. One of those lawsuits was the instant case, begun in 1969. In an order dated February 5, 1970, the district court enjoined the school district from operating a dual school system and from discriminating on the basis of race or color in the operation of its schools. The district court retained jurisdiction of the case so that it could monitor compliance with its order.

In 1983, appellants applied to the district court for leave to intervene, alleging numerous violations of the district court's orders. The application was granted, and the case was tried before Chief Judge Senter, who held in favor of the district on most of the issues raised in the pleadings. The only adverse holdings that appellants challenge in this Court concern the district's use of achievement grouping in certain subjects and grades and a so-called "VIVA" program for talented students. We find no error in either holding.

ACHIEVEMENT GROUPING

Following the 1970 order, the district promptly integrated its schools, and, as the district court found, "[f]acilities and educational programs were opened up to all students regardless of color." For a number of years prior to such integration, the district schools had followed the practice of grouping children in the several grades on the basis of their scholastic achievements. For example, the more scholastically advanced third graders would be placed in a different group than the less advanced. With the approval of a supervisory bi-racial committee and the district court, this practice was continued in the integrated schools. For the first few years after integration, students were given comprehensive tests for the purpose of grouping, and they were placed in separated groups for the entire day. High school students were grouped only in English.

In 1972, this system was changed when the district introduced a modified open-classroom concept in its schools. This was accomplished by removing the walls between two or three adjoining classrooms and combining them into one, with anywhere from fifty to eighty students in the then single unit. Their numbers were divided as equally as possible between blacks and whites. However, in two subjects, English and Math, it was felt that a program of grouping should be continued. As explained by Dr. Nolan Vickers, former district superintendent, the reason for this was that these two subjects required "skill mastery". "A course requiring skill mastery," he said, "would be something like mathematics, which would require the mastery of a certain skill, such as addition, subtraction, before you went on to the study and accomplishment of subsequent skills such as multiplication, division or whatever. In other words, the mastery of one skill is required before a child can go to the next level of mastery." Similarly, in English, a student must have mastered simple "Jane and John" texts before moving up the hill towards Shakespeare.

The district did not believe that skill mastery was required in such courses as science and social studies. However, as Dr. Thomas Saterfiel, Deputy Superintendent of Education for the State of Mississippi, pointed out, "[t]he reading and math type subjects are the basic skills that everything else is built on."

At the present time, achievement grouping in English and Math is in effect in district classes up to and including the sixth grade. Students in grades between seven and twelve select courses on a voluntary basis. Students in the lower grades are grouped on the basis of their achievements in English and Math into one of three groups, and for approximately 40 percent of the school day, students are taught in appropriate groups in these two subjects. However, Dr. Vickers testified that "there [is] no time during the day that black and white students [are] not together in the classroom, be it big or small, with other students."

There is nothing unique or unusual about the concept of achievement grouping. Dr. Saterfiel testified that other Mississippi school districts group in this manner. Indeed, a review of scholarly literature in the field of education shows that grouping is a widely used pedagogical practice in basic courses such as English and Math. See, e.g., Harris and Sipay, How to Increase Reading Ability 103 (7th ed. 1980) ("The major part of reading instruction in the elementary schools of the United States is carried on in groups."). See also Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1418 (11th Cir.1985); United States v. Texas, 342 F.Supp. 24, 31-32 (E.D.Tex.1971), aff'd, 466 F.2d 518 (5th Cir.1972). Moreover, the practice of achievement grouping is not, per se, unconstitutional. Castaneda v. Pickard, 648 F.2d 989, 996 (5th Cir.1981). Under proper circumstances, courts have approved the practice. Castaneda by Castaneda v. Pickard, 781 F.2d 456 (5th Cir.1986) (Castaneda, supra, following remand); Morales v. Shannon, 516 F.2d 411 (5th Cir.), cert. denied, 423 U.S. 1034, 96 S.Ct. 566, 46 L.Ed.2d 408 (1975). Indeed, in some cases, courts have directed the use of special groups, particularly where concentrated remedial counseling is required to overcome language difficulties. Milliken v. Bradley, 433 U.S. 267, 283-88, 97 S.Ct. 2749, 2758-61, 53 L.Ed.2d 745 (1977); United States v. Texas, 447 F.2d 441, 448 (5th Cir.1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972); United States v. Texas, supra, 342 F.Supp. at 31- 32. See also 20 U.S.C. Secs. 3222(a)(B); 3223(a)(4)(B) & (D).

However, in the early post-Brown years, when the process of desegregation was still in its infancy, this Court made it clear that constitutionally mandated desegregation could not be circumvented through the device of transferring pupils from segregated schools into schools...