Pate v. Dade County School Board, 29039

• Citation: 434 F.2d 1151
• Decision Date: 12 August 1970
• Docket Number: 29179.,No. 29039,29039
• Parties: Herbert PATE et al., Plaintiffs, v. DADE COUNTY SCHOOL BOARD et al., Defendants-Appellees, v. CORAL REEF CIVIC ASSOCIATION, Inc., et al., Intervenors-Appellants. Herbert PATE et al., Plaintiffs-Appellees, v. DADE COUNTY SCHOOL BOARD et al., Defendants-Appellees-Cross-Appellants, v. Alice LOVE, Carswell Washington et al., Intervenors-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.2d 1151 (1970)

Herbert PATE et al., Plaintiffs, v. DADE COUNTY SCHOOL BOARD et al., Defendants-Appellees, v. CORAL REEF CIVIC ASSOCIATION, Inc., et al., Intervenors-Appellants.

Herbert PATE et al., Plaintiffs-Appellees, v. DADE COUNTY SCHOOL BOARD et al., Defendants-Appellees-Cross-Appellants, v. Alice LOVE, Carswell Washington et al., Intervenors-Appellants-Cross-Appellees.

Nos. 29039, 29179.

United States Court of Appeals, Fifth Circuit.

August 12, 1970.

James W. Matthews, Miami, Fla., for Love et al., intervenors-appellants-cross-appellees.

Larry S. Stewart, Miami, Fla., for Pate, plaintiff-appellee.

Claude R. Kirk, Jr., Gov., Tallahassee, Fla., for State of Fla., Fred C. Davant, Miami, Fla., for Immerfall & Russell, appellees-cross-appellants.

Jerris Leonard, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Gerald Mager, Legal Counsel to Gov., Tallahassee, Fla., for State of Fla.

Henry A. Edgar, Jr., Miami, Fla., for Coral Reef Civic Assn., Inc. et al., intervenors-appellants.

George C. Bolles, Miami, Fla., for Dade County School Board, defendants-appellees-cross-appellants.

Rivers Buford, Jr., Tallahassee, Fla., for State Board of Education, intervenor-appellee.

Tobias Simon, Miami, Fla., for Dade County Classroom Teachers' Assn., intervenor-appellee.

Paul B. Steinberg, Miami Beach, Fla., for Dade County Education Assn., appellees-cross-appellants.

Shutts & Bowen, Miami, Fla., for Richard and Anne Piper and Miami Shores Village, intervenors-appellants.

William C. Cramer, U. S. Rep., Congress of the U. S., Washington, D. C., anicus curiae.

Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

The question in this school desegregation case is whether the Dade County school system has been converted from a dual to a unitary school system, as defined in Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S. Ct. 29, 24 L.Ed.2d 19 (1969), under the district court's orders and memorandum opinions dated June 26, 1970, 315 F. Supp. 1161, and July 24, 1970.

Following the approach of Ellis v. Board of Public Instruction of Orange County, Florida, 5 Cir., 1970, 423 F.2d 203; Mannings v. Board of Public Instruction of Hillsborough County, Florida, 5 Cir., 1970, 427 F.2d 874; Davis v. Board of School Commissioners of Mobile County, 5 Cir., 1970, 430 F.2d 883; and Bradley v. Board of Public Instruction of Pinellas County, Florida, 5 Cir., 1970, 431 F.2d 1377, we herein review all of the six criteria of Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), in determining whether Dade County has been effectively converted into a unitary school system.

FACULTY AND STAFF

In its final desegregation plan filed on March 31, 1970, the board states that:

The staffs of elementary schools have been reorganized so that in each elementary school the proportion of black and white teachers approximates the 24% black-76% white ratio existing among all elementary teachers in the school system.

The staffs of junior high schools have been reorganized so that in each junior high school the proportion of the black and white teachers approximates the 21% black-79% white ratio existing among all junior high teachers in the school system.

The staffs of senior high schools have been reorganized so that in each senior high school the proportion of black and white teachers approximates the 12.2% black-87.8% white ratio existing among all senior high teachers in the school system.

Likewise, administrative personnel, teacher aides and other staff personnel have been reorganized so as to accomplish desegregation. Effectuation of this portion of the board's plan, which the district court assumed to have already been effectuated as per its February 1, 1970, deadline, must be continued for the 1970-1971 school year.

TRANSPORTATION FACILITIES, AND EXTRACURRICULAR ACTIVITIES

The board's plan also effectively desegregates the transportation, the facilities, and the extracurricular activities of the Dade County school system. It calls for the continuation of its practice of making accessible to school children of both races these three elements of the school system devoid of racial discrimination.

There being no objection to these elements, the district court properly found that they have been effectively desegregated by the board's plan.

The record also indicates that there has been in existence in Dade County a majority-to-minority transfer policy. In addition to the continuation of this feature of the school system's operation, the board is commended to establish a bi-racial committee similar in function to that established in Ellis, supra, and as described in the district court's opinion in this case (see Appendix "A", p. 1170).

STUDENT ASSIGNMENT

The Dade County school board (hereinafter board) submitted its final desegregation plan as to student body desegregation on March 31, 1970. The Department of Health, Education and Welfare (hereinafter HEW) submitted its desegregation plan on May 15, 1970. Hearings on these plans were conducted by the district court on May 22 and June 12, 1970. That court's findings of facts and final judgment with reference to pupil assignments were entered June 26, 1970, and are contained in its Memorandum Opinion Approving Desegregation Plan for Dade County Public Schools with Modifications and Final Judgment attached as Appendix "A". In response to the district court's orders to show cause contained in that memorandum opinion, the board submitted two reports to the district court on July 6, and July 20, 1970, which answered with specific detail why certain schools in the system could not be paired, grouped or rezoned so as to effectively disestablish the dual school system. These reports form the basis of the district court's modifications of its June 26 opinion, which modifications are embodied in its Supplemental Order Approving Desegregation Plan for Dade County Public Schools, as Modified, and Amended Final Judgment, attached as Appendix "B". Together, Appendices "A" and "B" make up the district court's final order approving a desegregation plan for the Dade County public school system.

The board will operate 218 schools in the Dade County school system for the 1970-71 school year (161 elementary, 40 junior high, and 17 senior high schools). There will be 244,000 students in the system, of whom 57,900 or 23% will be Negro. The school system will be served by 187 buses, which, as of June 1970, transported some 30,376 students throughout the system. Forty additional buses have been ordered by the board and should be available for the 1970-71 school year.

The district court approved of the board's plan but substantially modified it by adopting some of the recommendations made by HEW, the Dade County Classroom Teachers Association (C.T.A.), intervening parents and neighborhood groups, and by making some modifications of its own initiative. As seen in Appendix "C", the board's plan leaves 36 schools all- or virtually all-Negro, housing 37,672 Negro students or 64% of the Negro student population. The modifications contained in both the district court's opinions (Appendix "A" and Appendix "B") reduce these figures substantially, but still leave 22 schools all- or virtually all-Negro, housing 25,595 or 44% of the Negro student population. Though great diligence has been taken by the district court in reducing this percentage, we find that many of the reasons given for not achieving a greater degree of desegregation and the final results accomplished are unacceptable. In keeping with Ellis, supra, Mannings, supra, Davis, supra, and Bradley, supra, we have studied the maps, the various plans, and the many details covered by the district court's thorough opinions, and have on our own initiative made the modifications which hereinafter comprise the body of this opinion. The purported obstacles to pairing, grouping or rezoning, which are meticulously covered in the district court's opinions in Appendices "A" and "B", have been given careful consideration. These obstacles include traffic hazards, school capacities, individual school programs, format and curricula, walking distances, natural barriers, and grade levels in each school — all of which are given substantive merit in the district court's opinion in Appendix "B". Of particular importance, in this case is the recurring problem of the Spanish-speaking students in the school system who number 50,500 and comprise 21% of the entire Dade County student population. These are the children of the more than 300,000 Cuban refugees who have settled in Miami. Many of the schools in which these Spanish-speaking students are predominant are situated adjacent to many of the all- or virtually all-Negro schools in the central portion of the City of Miami.

However real all of these obstacles may be, the mandates of Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1954), Alexander, supra; and Adams v. Mathews, 5 Cir., 1968, 403 F.2d 181, leave little room for exception. The obstacles presented by the board admittedly make difficult the modifications needed to desegregate many of Dade County's schools. But these problems

"cannot be accepted if the board plan\'s implementation fails to result in substantial desegregation * * * Certainly, each of these problems is a relevant consideration for any plan which the board may hereafter adopt. However, none of these factors or even all combined are of overriding importance of the one factor the Indianola School Board did not consider: effective promotion of desegregation."

United States v. Indianola Municipal Separate School Dist., 5 Cir., 1969, 410 F.2d 626, 628.

The following modifications reduce the number of Negro students attending all- or virtually all-Negro schools from 44% to 24% of the entire Negro student population. Implementation of these...