NEWBURG A. COUN., INC. v. Board of Ed., Jefferson Cty., Ky., 73-1403

• Citation: 489 F.2d 925
• Decision Date: 28 December 1973
• Docket Number: 73-1408.,No. 73-1403,73-1403
• Parties: NEWBURG AREA COUNCIL, INC., et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, KENTUCKY, et al., Defendants-Appellees. John L. HAYCRAFT, et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF LOUISVILLE, KENTUCKY, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

489 F.2d 925 (1973)

NEWBURG AREA COUNCIL, INC., et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, KENTUCKY, et al., Defendants-Appellees.

John L. HAYCRAFT, et al., Plaintiffs-Appellants, v. BOARD OF EDUCATION OF LOUISVILLE, KENTUCKY, et al., Defendants-Appellees.

Nos. 73-1403, 73-1408.

United States Court of Appeals, Sixth Circuit.

Argued October 3, 1973.

Decided December 28, 1973.

COPYRIGHT MATERIAL OMITTED

John A. Fulton, Woodward, Hobson & Fulton, and E. Preston Young, Louisville, Ky., on brief, for Bd. of Ed. of Jefferson County, Kentucky (73-1403).

Henry A. Triplett, Hogan, Taylor, Denzer & Bennett, Louisville, Ky., on brief, for Bd. of Ed. of Louisville, Ky. (73-1408).

Robert Allen Sedler, Lexington, Ky., and Thomas L. Hogan, John G. O'Mara, Louisville, Ky., on brief, for Newburg Area Council, Inc., and others (73-1403).

Darryl T. Owens, Charles J. Lunderman, Jr., Galen Martin, William Friedlander, Louisville, Ky., on brief, for John E. Haycraft, and others (73-1408).

Before PHILLIPS, Chief Judge, and McCREE and MILLER, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This is an appeal from a dismissal by the district court of two class actions concerning school desegregation in Jefferson County, Kentucky. In Newburg Area Council, et al., v. Board of Education of Jefferson County, No. 73-1403, the plaintiff challenged certain practices of the Jefferson County School Board with respect to its elementary schools. Later another action, Haycraft, et al., v. Board of Education of Louisville, Kentucky, et al., No. 73-1408, was filed against the Louisville Board of Education and the Jefferson County Board of Education, seeking the desegregation of the Louisville school system with a plan that included disregarding the Louisville and Jefferson County School District boundaries. The two suits were consolidated but the Court directed separate trials as to the status of each district.

The district court dismissed both actions, holding that the Jefferson County School District and the Louisville Independent School District are unitary systems in which all vestiges of state-imposed segregation have been eliminated. The actions have been consolidated for appeal.

We decide three issues on this appeal: (1) Whether the district court erred in holding that the Jefferson County School District is a unitary system in which all vestiges of state-imposed segregation have been eliminated; (2) whether the district court erred in holding that the Louisville Independent School District is a unitary system in which all vestiges of state-imposed desegregation have been eliminated; and (3) whether a federal district court has the power to disregard school district lines within a single county in formulating a school desegregation plan.

The Jefferson County School District embraces all of Jefferson County except that portion included within the Louisville Independent School District and the Anchorage Independent School District.¹ It has close to 96,000 students, approximately 4% of whom are black. 65% of all students are bussed to the schools they attend. The Board operates 74 elementary schools, 5 middle schools, 18 combined junior and senior high schools, and 6 special schools.

Prior to the decision in Brown v. Board of Education of Topeka, 347 U. S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the Board maintained a racially-segregated school system in accordance with the requirements of Kentucky law. It did not provide a high school for black students and arranged for their attendance at Central High School, the black high school operated by the Louisville Board of Education. It operated the Newburg Elementary school, grades 1-9. Newburg was located in the one area in the county outside of Louisville having any substantial black population. It was a pre-Brown black school, and has remained black until the present day. Newburg is surrounded by a number of all-white or virtually all-white elementary schools. Within a distance of three miles from Newburg, there are, in addition to Price Elementary School, which will be discussed subsequently, nine substantially white elementary schools.

In 1969 Price Elementary School was constructed within a mile of Newburg. When Price opened in 1969-70, 33.1% of the students were black. The percentage increased to 40.2% during 1970-71, to 43.9% during 1971-72, and now stands at 54.3%. It is practically an all walk-in school, with about 3% only of the pupils being bussed.

Cane Run Elementary School is located in the northwest portion of the District close to the Louisville city limits. In 1966-67 the black student population of Cane Run was 1.2%. In 1967-68 it increased to 6.2%, in 1968-69 it increased to 11.5%, in 1969-70 it increased to 25.5%, in 1970-71 it increased to 36.7% and in 1971-72 to 45.5%. In 1972-73 it stood at 49%. Cane Run was rebuilt on the same site during 1972.

The evidence shows that Newburg, Price and Cane Run contain 56% of the black elementary students in the Jefferson County School District.

The district court held that the existence of an all black school, Newburg, in the Jefferson County School District was not unconstitutional. The Supreme Court stated in Swann v. Charlotte Mecklenburg School District, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971), that the "existence of some small number of virtually one-race schools within a district is not in and of itself the mark of a system that still practices segregation."

As this Court noted in Northcross v. Board of Education of Memphis City Schools, 466 F.2d 890, 893 (6th Cir. 1972), this language in Swann is "obviously designed to insure that tolerances are allowed for practical problems of desegregation where an otherwise effective plan for dismantlement of the school system has been adopted." The Jefferson County School District thus has three elementary schools that either are or are rapidly becoming "racially identifiable." As stated, Newburg School, a pre-Brown black school, is racially identifiable, while Price and Cane Run Schools are rapidly becoming racially identifiable as black schools. The duty of the school board is to "eliminate from the public schools all vestiges of state-imposed segregation." Swann, supra, 402 U.S. at 15, 91 S.Ct. at 1275. Until the dual system is eliminated "root and branch," Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the school district has not conformed to the constitutional standard set forth by Brown nearly 19 years ago.

The Board urges that "white flight," not school board policies, has been responsible for the shift in the racial composition of the Price and Cane Run Schools. The district court found that the attendance zone for Cane Run had remained constant over the years and that as blacks moved into the attendance area, the school would naturally become "blacker," particularly since whites would "flee." Although the decisions with respect to Cane Run attendance zone and the rebuilding of Cane Run on the same site, considered alone, might not compel the conclusion that the Board fostered segregation here, its decisions with respect to Cane Run must be related to the circumstances surrounding the Newburg and Price Schools.

The evidence shows that in 1969-70 Price opened with an enrollment of 560 and a capacity of 756. Newburg, with a capacity of 1242 had an enrollment of 620. Although these schools were underutilized, several "racially identifiable" white schools were operating with enrollments greater than capacity using either portable classrooms or operating double shifts. During the 1972-73 school year Newburg's enrollment had declined to 340, and Price's had declined to 620, while some of the nearby "white" schools were operating over capacity. The district judge found no significance in the under utilization of nearby white schools. Instead he found that the Board was trying to achieve integration in assigning some black students in the area to nearby white schools without determining why white students in the area were not assigned into Newburg and Price. All vestiges of state-imposed segregation have not been eliminated so long as Newburg remains an all black school. Where a school district has not yet fully converted to a unitary system, the validity of its actions must be judged according to whether they hinder or further the process of school desegregation. The School Board is required to take affirmative action not only to eliminate the effects of the past but also to bar future discrimination. Green, supra, 391 U.S. 438 n. 4, 88 S.Ct. 1689; Robinson v. Shelby County Board of Education, 442 F.2d 255, 258 (6th Cir. 1971). Since the Jefferson County Board has not eliminated all vestiges of state-imposed segregation from the system, it had the affirmative responsibility to see that no other school in addition to Newburg would become a racially identifiable black school. It could not be "neutral" with respect to student assignments at Price or Cane Run. It was required to insure that neither school would become racially identifiable.

A school system that has had a history of state-imposed segregation has not fully converted to a unitary system when 56% of all of its black elementary students attend three out of seventy-four elementary schools. This is particularly so when these schools are surrounded by several all-white or virtually all-white schools.

The Louisville School District is an independent school district established in accordance with the requirements of Kentucky Revised Statutes 160.160, which provides for independent school districts within a county. It is situated within the City of Louisville, a city of the first-class in Jefferson County, Kentucky, but its boundaries are not coterminous with the political boundaries of the City of Louisville.² Approximately 10,000 children, mostly white, live between the boundaries of the Louisville School...