Price v. Denison Independent School Dist., s. 81-2264

Decision Date08 December 1982
Docket NumberNos. 81-2264,81-2379,s. 81-2264
Parties30 Empl. Prac. Dec. P 33,267, 7 Ed. Law Rep. 817 Donald PRICE and Melvin E. Price, Minors, et al., Plaintiffs-Appellees, v. The DENISON INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit
Opinion on Denial of Rehearing and Rehearing

En Banc May 1, 1983.

Munson, Munson, Hynds, Watkins & Gordon, J. Don Gordon, Peter Kerr Munson, Sherman, Tex., William C. Bednar, Jr., Austin, Tex., for defendant-appellant in both cases.

R.C. Slagle, III, Sherman, Tex., for plaintiffs-appellees.

Eskew, Muir & Bednar, Austin, Tex., for defendant-appellant in No. 81-2379.

Appeals from the United States District Court for the Eastern District of Texas.

Before COLEMAN, POLITZ and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

The Denison Independent School District [DISD] appeals from certain orders of the district court entered in this school desegregation litigation.

I. Introduction.

Denison, Texas is a small city located some seventy-five miles north of Dallas. The urban portion of the school district is likewise small, measuring approximately five miles by five miles, though the district also extends several miles beyond the city limits, principally to the north and south, and includes largely rural areas. Residential patterns are such that the black population is principally concentrated in a relatively compact segment of the northeast quadrant of the city, while the western half of Denison, which contains the newer centers of population, is almost exclusively white. During the 1979-80 school year, the DISD provided education to some 5,200 students, of whom approximately 12 percent were black. 1

II. Background of this Appeal.

Until the spring of 1963, the DISD operated a school system that was completely segregated by race, with a dual set of attendance zones for black and white students. On June 24, 1963, the school board, the district's governing body, voluntarily passed a resolution instituting a "freedom of choice" plan of desegregation, to be phased in on a one-grade-a-year "stair-step" basis. That plan was challenged in a suit brought by a class of black school children and their parents who sought desegregation of all grades in the Denison public schools by the 1964-65 school year. The school board's plan was approved by the district court, but this Court found the nine years required to fully implement the plan to be excessive in light of the command of Brown v. Board of Education (Brown I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). 2 Price v. Denison Independent School District, 348 F.2d 1010 (5th Cir.1965). 3 Upon remand, the district court entered an order, dated July 19, 1965, which established a "freedom of choice" plan effective the ensuing school year for all grades in the district. There was no appeal from this order. Thereafter and until the revival of this litigation in 1979, the lawsuit remained essentially quiescent. In 1968 the DISD commenced operating only one high school for all students, and has continued to do so since that time. In 1969 the DISD voluntarily and unilaterally abandoned the "freedom of choice" scheme for grade levels below high school in favor of a neighborhood attendance zone plan. The attendance zones in that plan appear to have remained in effect without substantial change until the 1979-80 school year. In the summer of 1979, the DISD promulgated, effective that fall, a new neighborhood attendance scheme involving the closing of three elementary schools, the conversion of a middle school to an elementary and the drawing of new attendance zone boundaries, principally for the elementary schools.

It was the adoption of this new scheme which prompted institution of the present action. On July 31, 1979, shortly after the announcement of this new plan, the plaintiffs and a group of plaintiff-intervenors filed a joint motion for substitution of parties, intervention, and an amended complaint claiming that the 1979-80 attendance plan continued the vestiges of historical segregation in the DISD and seeking relief from the allegedly unconstitutional elementary and junior high student assignment plans and unequal junior high school educational conditions, as well as purported deficiencies respecting teachers, assistant principals and principals. 4 Plaintiffs specifically complained of the closing of the three elementary schools, alleging, among other things, that "white students from the less wealthy socio-economic groups have had their neighborhood schools closed and attendance lines redrawn where they can be counted to cut the minority black percentage down at Terrell [elementary]" and that some 41 black students "would be bussed from North Denison to an elementary school [Mayes] in West Denison." 5 A temporary restraining order was also sought (unsuccessfully) against the closing of the three elementary schools. It is evident that the contemplated closing of these schools was the motivating factor in the revival of the lawsuit. 6

Hearings were held on August 11-12, 1980. On December 17, 1980, the district court found that the combined differences, in educational conditions and racial composition, between Denison's two junior high schools, Hughes and McDaniel, violated the Equal Protection Clause of the Fourteenth Amendment and ordered unitization of the seventh, eighth and ninth grades served by those schools. Pursuant to the DISD's request, the district court, in March 1981, amended this order to include the sixth grade, placing the sixth and seventh grades at Hughes, the eighth and ninth at McDaniel. The junior high school unitization was to go into effect with the 1981-82 school year.

On June 10, 1981, the district court entered an order and memorandum opinion which (1) reiterated its findings and order as to the junior high schools; (2) found the 1979-80 elementary school student assignment plan to leave some schools racially identifiable and in violation of the Constitution; and, (3) found that the failure of the DISD to currently have a black principal in any of its schools presented a constitutional violation. The school board was required to submit to the court, within thirty days, an elementary assignment plan which would "assure that the population of each elementary school will be at least six percent black by the beginning of the 1981-1982 school year"; and, to employ a black individual in the next available principalship vacancy. On July 6, 1981, the DISD filed notice of appeal from the June 10 order.

On August 12, 1981, the DISD submitted its proposed elementary assignment plan for the 1981-82 school year. 7 The district court rejected that plan in an order of August 14, 1981. The court found that although the DISD's proposed plan was "in formal compliance with the minimum standards set forth in the June 10 order," it nevertheless "violate[d] the spirit of the order" because it insufficiently reduced (from 33.8 percent to 29.3 percent) the percentage of black students at Terrell elementary. The August 14 order required the DISD to submit an "elementary assignment plan which would assure that the population of each elementary school will be no less than six percent black and no more than seventeen percent black by the beginning of the 1981-1982 school year."

On September 1, 1981, a hearing was held on a motion for stay of the August 14 order filed by the DISD. 8 At this hearing the parties introduced a "joint exhibit" reflecting school attendance zones that, on the basis of rough calculation, would create elementary school populations in approximate compliance with the August 14 order, both parties agreeing that these attendance zones would be submitted to the school board for approval. On September 8, the school board rejected the proposed plan.

On September 18, 1981, the district court entered its final order in this suit. The court (1) denied the motion for stay pending appeal; (2) vacated its order of August 14; and, (3) ordered that the elementary school student assignment plan reflected by the referenced joint exhibit, with some relatively minor modifications, be implemented in January 1982. 9

III. The Issues.

In this appeal, the DISD raises diverse questions as to every aspect of the district court's orders. Its principal challenges are to the district court's determinations of constitutional violations in (1) the elementary school student assignments; (2) the junior high schools; and, (3) the absence of a black principal. The DISD further contends that the court's findings and conclusions do not support its determination of constitutional violations. 10

IV. The Elementary Schools.
A. Background.

For the school year 1979-80, the DISD operated seven elementary schools for approximately 2,800 students. The seven facilities were relatively evenly dispersed throughout the city, with Terrell elementary in the northeast, Lamar in the east, Golden Rule in the south, Hyde Park in the southwest, Mayes in the west, Layne in the northwest, and Houston elementary located in the center of Denison.

The previous school year, 1978-79, Denison had nine elementary schools. The plan which prompted this litigation and went into effect for the 1979-80 year closed three of these elementary schools, Central (then 55.3 or 56.9 percent black), Peabody (.9 percent black) and Raynal (9.7 percent black), and converted Terrell, then a grade six, seven and eight middle school (24.2 percent black), to an elementary. The former Peabody attendance zone was divided between Houston, Golden Rule and Lamar. Part of the Central attendance zone was assigned to Mayes, the remainder to Terrell, which is located some five blocks north and three east of Central. Raynal and Lamar, each located somewhat east of Terrell, had previously served students in grades five and below, with sixth graders from these zones attending Terrell middle school. Under the 1979-80 scheme, all of the...

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