Northcross v. Board of Education of Memphis City Sch.

• Decision Date: 29 August 1972
• Docket Number: No. 72-1630 and 72-1631.,72-1630 and 72-1631.
• Citation: 466 F.2d 890
• Parties: Deborah A. NORTHCROSS et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the MEMPHIS CITY SCHOOLS et al., Defendants-Appellants. Deborah A. NORTHCROSS et al., Plaintiffs-Cross-Appellants, v. BOARD OF EDUCATION OF the MEMPHIS CITY SCHOOLS et al., Defendants-Cross-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

466 F.2d 890 (1972)

Deborah A. NORTHCROSS et al., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF the MEMPHIS CITY SCHOOLS et al., Defendants-Appellants.

Deborah A. NORTHCROSS et al., Plaintiffs-Cross-Appellants, v. BOARD OF EDUCATION OF the MEMPHIS CITY SCHOOLS et al., Defendants-Cross-Appellees.

Nos. 72-1630 and 72-1631.

United States Court of Appeals, Sixth Circuit.

August 29, 1972.

Jack Petree, Evans, Petree, Cobb & Edwards, Memphis, Tenn., for appellant, cross appellee; Ernest G. Kelly, Jr., Memphis, Tenn., on brief.

William E. Caldwell, Ratner, Sugarmon & Lucas, Memphis, Tenn., Norman J. Chachkin, New York City, for appellees, cross appellant; Louis R. Lucas, Ural B. Adams, Jr., Ratner, Sugarmon & Lucas, Memphis, Tenn., Jack Greenberg and James M. Nabrit, III, New York City, on brief.

Before WEICK, CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

These appeals represent another installment of an already lengthy serial: "The Desegregation of the Memphis Public School System." The initial chapter of this story was written in 1960 when Plaintiffs first sought to apply the principles of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) Brown I and 349 U. S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) Brown II to Memphis' de jure segregated school system. Since that time various aspects of this desegregation suit have been before the United States District Court for the Western District of Tennessee, this Court and the United States Supreme Court.

Most recently, pursuant to our remand (444 F.2d 1179 1971) the District Court has reconsidered its previously adopted desegregation plans in light of the principles announced by the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and its companion cases: Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); North Carolina State Board of Education v. Swann, 402 U.S. 43, 91 S.Ct. 1284, 28 L. Ed.2d 586 (1971); McDaniel v. Barresi, 402 U.S. 39, 91 S.Ct. 1287, 28 L.Ed.2d 582 (1971); Moore v. Charlotte-Mecklenburg Board of Education, 402 U.S. 47, 91 S.Ct. 1292, 28 L.Ed.2d 590 (1971). As a result of this reassessment the District Court determined that more intensified desegregation efforts were required in Memphis. In April, 1972, after holding extensive hearings, the District Court ordered into effect a new plan which would, for the first time in the history of this suit, require the transportation of children as part of an effort to eliminate "root and branch" the vestiges of the dual school system in Memphis. The plan is to be operational by the start of the 1972-73 school year.

Both defendants and plaintiffs have appealed from this latest order of the District Court. This Court granted a stay of that order pending our decision in the cases. Mindful of the need for speedy implementation of appropriate desegregation orders,¹ however, we also granted expedited hearings in connection with such appeals. Northcross v. Board of Education of Memphis City Schools, 463 F.2d 329 (Cir., decided June 2, 1972; rehearing en banc denied, July 5, 1972.)

In its appeal, the defendant school board asserts that it has achieved the constitutionally required unitary school system or will shortly attain such unitary system as a result of minor changes to be effected in its student assignment plans. The School Board therefore asserts that the new plan adopted by the District Court in April, for September, 1972 implementation, imposes an unnecessary burden upon it and the school children within its system. It also contends that the busing ordered by the District Court "is wrong" because such busing is harmful to the interests which the Board asserts Brown I and Brown II sought to further.

In their appeal from the District Court's order the plaintiffs complain that the new plan adopted by the District Court does not meet the requirement of Green v. County School Board of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689 (1968), that any desegregation plan adopted be one which "promises realistically to work, now." (emphasis in the original).

The Memphis school system is one of the largest in the nation. When this suit was begun in 1960 the schools of the system were segregated by law despite the Supreme Court's rulings in Brown I and Brown II, handed down years earlier. As a result of decisions handed down by the federal courts in connection with this suit the School Board adopted several plans for the desegregation of the Memphis schools in the period subsequent to 1960. The effectiveness of these plans can be gauged by a quick look at the "vital statistics" of the Memphis system as it now exists.

In the 1971-72 school year some 145,581 students attended classes within the school district. Of these children 53.6% were black and 46.4% were white. The School Board operated 162 schools in that year. In 128 of these schools, students of one race comprised 90% or more of the schools' total enrollment, despite the near equality in the number of black and white children in the system as a whole. 47 schools (29% of the total) had student populations which were entirely black or white.

The present racial distribution has been the result of an assignment plan essentially based on geographic zoning and the "neighborhood school" concept. Such assignment plan became fully operational in 1966 when overt assignment by race was finally abandoned with respect to all grades. The attendance zones have been modified several times since 1964 by court order in an effort to increase the degree of integration which could be achieved within the system. During this past year minority to majority transfers within the system were prohibited.

It is the defendant School Board's contention that notwithstanding the fact that some 79% of its schools have an essentially monolithic racial structure it has satisfactorily cured the violation of law involved in its past de jure segregation and has, in fact, established a unitary system. We cannot accept this contention.

As recently as 1970 the Supreme Court affirmed the District Court in its finding that Memphis was not a unitary school system. Northcross v. Board of Education of the Memphis City Schools, 397 U.S. 232, 235, 90 S.Ct. 891, 25 L.Ed.2d 246 (1970). While additional faculty integration has occurred since the date of that decision the continued pattern of racial separation with respect to student assignment convinces us, as it did the District Court, that the dual system has not yet been eliminated in Memphis.

We recognize, of course, the Supreme Court's caution that the existence of "some small number of one-race or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971). We cannot believe that this language, — obviously designed to ensure that tolerances are allowed for practical problems of desegregation where an otherwise effective plan for dismantlement of the dual system has been adopted — was intended to blind the courts to the simple reality that a formerly de jure segregated system has not dismantled its dual system when 87% of its black students still attend one-race schools.

Even were we to assume that the existence of the large number of one-race schools in this case is not a per se indication that the Memphis Board has failed to eliminate its dual system, there is still a presumption that such is the case under Swann, 402 U.S. 1, 26, 91 S.Ct. 1267. To overcome this presumption according to the Supreme Court, the School Board would have to demonstrate that at the very least its remaining one-race schools are not in any way the product of its past or present discriminatory conduct. It is clear that the School Board has not met that burden in this case.

The Board maintains that the present one-race schools are attributable to the pattern of residential segregation within the Memphis area. Evidence taken at a 1971 hearing held with regard to this matter demonstrated, however, that through a pattern of school location decisions, selective construction and systematic over and under utilization of school buildings the racially neutral geographic zone assignments formulated with court approval have been undermined and made to serve the cause of continued segregation in Memphis. The District Court found that such conduct by the School Board, continuing up until the time of the 1971 hearing itself had contributed "to the establishment of the present large number of one race schools . . . ." Our independent review of the evidence leads us to conclude that the District Court's findings were not clearly erroneous, and in fact, represent an accurate and realistic view of the factors responsible for the present racial pattern in the Memphis City schools.

It is thus clear that far from having achieved a unitary school system the Board has helped to perpetuate the old dual system.² Under these circumstances there can be no doubt that the District Court was under an obligation to order the adoption of a plan providing for further desegregation. Since many of the one-race schools are clearly the result of discriminatory actions of the School Board there can be no doubt that under any interpretation of Swann the elimination of such schools must be one of the objectives of any appropriate desegregation plan.

In adopting such plan the District Court was not bound to employ a system which merely would be racially neutral in operation. "The objective is to dismantle the dual system," Swann, 402 U.S. 1, 28, 91 S.Ct. 1267, 1282, and "the measure of any desegregation plan is its effectiveness." Davis v. School Commissioners of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292 (1971). Given such a measure:

"Racially

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