Moore v. Tangipahoa Parish School Board, Civ. A. No. 15556.

• Decision Date: 02 July 1969
• Docket Number: Civ. A. No. 15556.
• Citation: 304 F. Supp. 244
• Parties: Joyce Marie MOORE, Jerry Moore, and Thelma Louise Moore, minors, by their father and next friend, M. C. Moore; Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and Earline Smith, minors, by their father and next friend, Henry Smith, Plaintiffs, v. TANGIPAHOA PARISH SCHOOL BOARD, a corporation, C. B. Sledge, President, and Dewitt Sauls, Superintendent, Defendants. Joseph Durham, Roger Durham, minors, by their father and next friend, Max Durham, Jr.; William Lee Travis, III, Clare Lee Travis, minors, by their father and next friend, Dr. William L. Travis; Robert Leslie Jackson, III, minor, by his father and next friend, Robert Jackson, Defendant-Intervenors.
• Court: U.S. District Court — Eastern District of Louisiana

304 F. Supp. 244

Joyce Marie MOORE, Jerry Moore, and Thelma Louise Moore, minors, by their father and next friend, M. C. Moore; Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and Earline Smith, minors, by their father and next friend, Henry Smith, Plaintiffs, v. TANGIPAHOA PARISH SCHOOL BOARD, a corporation, C. B. Sledge, President, and Dewitt Sauls, Superintendent, Defendants.

Joseph Durham, Roger Durham, minors, by their father and next friend, Max Durham, Jr.; William Lee Travis, III, Clare Lee Travis, minors, by their father and next friend, Dr. William L. Travis; Robert Leslie Jackson, III, minor, by his father and next friend, Robert Jackson, Defendant-Intervenors.

Civ. A. No. 15556.

United States District Court E. D. Louisiana, New Orleans Division.

July 2, 1969.

Franklin E. White, Norman J. Chachkin, New York City, A. P. Tureaud, New Orleans, La., for plaintiffs.

John F. Ward, Jr., Baton Rouge, La., Leonard E. Yokum, Dist. Atty., Hammond, La., for defendants.

John D. Kopfler, Jr., Hammond, La., for defendant-intervenors.

RUBIN, District Judge.

The schools of Tangipahoa Parish are still largely segregated. From Brown II, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, decided in 1955, to United States v. Montgomery County Board of Education, 1969, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263, decided on June 2, 1969, the United States Supreme Court has said in unmistakable terms that the primary responsibility for abolishing the system of segregated schools rests with local school authorities. Once again, we have had a series of hearings because in Tangipahoa Parish the task has as yet been left undone.

On October 15, 1968, the court ordered the Tangipahoa Parish School Board to submit a plan for the unitary operation of its school system for the 1969-1970 school year. Moore v. Tangipahoa Parish School Board, E.D.La., 1968, 298 F.Supp. 283, affirmed, Hall v. St. Helena Parish School Board, 5 Cir., May 28, 1969, 417 F.2d 801. The Board reported on November 11, 1968 that it was unable to find a better plan than the "freedom of choice" plan then in use — a plan under which more than 96.4% of the Negro students attended all black schools, and, under which, in its second year of operation, the percentage of Negro students choosing to attend classes in integrated schools declined from 4.1% to 3.6%.¹

On November 26, 1968, the court ordered the Board to request the Educational Resource Center on School Desegregation to prepare a desegregation plan. Moore v. Tangipahoa Parish School Board, E.D. La.1968, 298 F.Supp. 285. The Board opposed the adoption of the Center's plan, and it was joined by defendant-intervenors representing white students and their parents. See Moore v. Tangipahoa Parish School Board, E.D.La., April 3, 1969, 298 F.Supp. 288. Instead, the Board presented the court with an alternative plan that clearly did not comply with the court's previous orders: it proposed that 20% of the black students would be enrolled in predominantly white schools; in all other respects, "freedom of choice" would continue, with the likely result that a large number of Negro students would continue to attend schools that had no white students. The intervenors presented a more elaborate plan to continue freedom of choice and phase it out over a three year period, with extensive proposals for school improvement in the interim. No doubt the intervenors were interested in good education, but they failed to take proper account of the legal rights of black students and of overriding constitutional requirements.

At the conclusion of the hearing on May 28, 1969, the court reminded school officials that the Tangipahoa Parish School System is their responsibility. But because the Constitution forbids the operation of black schools or white schools, and requires a plan of unitary school operation that "promises realistically to work, and promises realistically to work now," Green v. County School Board, 1968, 391 U.S. 430, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716, this court would write an order compelling the Board to operate its schools in a manner that would meet the requirements of the Constitution.

Thereafter, the court's remarks were read to the School Board, and they voted to submit a new plan for the operation of the Parish schools for the coming year. The court had indicated that it did not intend to hold further hearings, but the new plan contained a number of proposals that reflected an effort to devise a unitary school system. Therefore, a further hearing was held on June 17, 1969.

This court does not purport to know how to run any school, let alone an entire educational system. Local officials are elected to perform that duty with the assistance of expert school administrators. When they indicate a real desire to run their schools on a constitutionally valid basis, they should be afforded every opportunity to do so. Neither the fact that they have undertaken to perform their duty late in the day, nor the usual exigencies of judicial administration, nor even the justifiable concern of opposing parties that a plan may have been submitted at the last moment only to avert the adoption of a pattern formulated by someone else should preclude elected school officials from administering their schools when they do so lawfully.

Some of the objections to the School Board's latest plan are based on alleged defects from an educational and administrative standpoint. But the court will not alter particulars of the plan merely because they appear to be administratively awkward. "No single plan is or can be judicially approved as a catholicon," Board of Public Instruction of Duval County v. Braxton, 1968, 5 Cir., 402 F.2d 900, 908 (concurring opinion). The Center's plan appears to the court to be educationally sound; it was prepared by well qualified consultants. But this plan cannot be viewed as the one answer to the operation of the Tangipahoa Parish schools. Local plans may prove defective in educational principle; they may require alteration after a trial period. But local school boards must be free to experiment within constitutional grounds. For no savant can be arrogant enough to pretend that he knows the way — or indeed a way — to accomplish school integration with maximum educational advantage and without friction. In this delicate area, we are all still feeling our way, educators and philosophers, parents and teachers, school board and judges.²

So long, therefore, as a school board has a plan that promises realistically to effectuate a unitary school system in September, 1969, it should be approved. It is the court's duty, however, to be certain that the plan affords every child equal protection of the law. If any part of it does not fully satisfy constitutional requirements, that part must be rejected.

Five particular features of the Board's plan require comment:

I. The Board proposes that six major high schools in the Parish be operated under freedom of choice for the 1969-70 school year. But there is no evidence to indicate that freedom of choice will operate more effectively in 1969 than it has in the past. Almost certainly, therefore, the plan will result in six racially identifiable high schools. Even if some Negro students voluntarily choose, or can be encouraged to choose, or can be assigned to high schools hitherto predominantly white, there is no likelihood that any number of white students will elect or can be successfully encouraged to attend the three high schools hitherto attended exclusively by Negroes.

Four of the high schools would be housed in buildings containing desegregated elementary grades. For this reason, it is urged that these four schools would be desegregated schools.

But the United States Supreme Court has told us that the entire school system must be unitized "root and branch," United States v. Montgomery County Board of Education, 1969, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263. A high school is a basic educational unit. When racially identifiable under freedom of choice, it is not a unitized desegregated school, even if children of the opposite race attend elementary school classes in the same building.

The Board vigorously contends that, when accompanied by elementary school desegregation, freedom of choice in the high school grades in these six schools will best "effectuate a transition to a racially nondiscriminatory school system." Hall v. St. Helena Parish School Board, 5 Cir., May 28, 1969, 417 F.2d 801.

The School Board urges that, in the long run, the people of its area will more readily accept and support a unitary system after such a transition period. It has pointed out that transferring high school students en masse will cause various difficult adjustment problems — loss of possible academic and athletic scholarships, deprivation of class offices for those students who have already been chosen, break up of clubs and athletic teams. The plaintiffs, on the other hand, urge that the system must be unitized "root and branch" now so that school officials can get on with the job of providing the best possible education for all children in the Parish in schools that are neither white nor black "but just schools." Green v. County School Board, supra 391 U.S. at 442, 88 S.Ct. 1689, 20 L.Ed.2d 716.

The court may no longer weigh these contentions solely on the basis of educational merit and efficient administration. "The time for * * * `deliberate speed' has run out." Griffin v. County School Board, 1964, 377 U.S. 218, 234, 84 S.Ct. 1226, 1235, 12 L.Ed.2d 256. Green,³ Jefferson County,⁴ Davis,⁵ Hall,⁶ Anthony,⁷ Indianola,⁸ Henry,⁹ Greenwood,¹⁰ and the October 15, 1968, Order of this court¹¹ all require a plan for a unitary school system that "promises realistically to work now." More specifically, Adams v. Mathews, 5 Cir., 1968, 403 F.2d 181, 188, states: The court should require the board * * * to formulate and submit * * * a plan to complete the full...