Quarles v. Oxford Municipal Separate School District, 72-3534.

• Decision Date: 06 February 1974
• Docket Number: No. 72-3534.,72-3534.
• Citation: 487 F.2d 824
• Parties: Robert E. QUARLES et al., Plaintiffs-Appellants, v. OXFORD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 824 (1973)

Robert E. QUARLES et al., Plaintiffs-Appellants, v. OXFORD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.

No. 72-3534.

United States Court of Appeals, Fifth Circuit.

November 9, 1973.

Rehearing and Rehearing Denied February 6, 1974.

Lewis Myers, Jr., Oxford, Miss., for plaintiffs-appellants.

Will A. Hickman, Oxford, Miss., for defendants-appellees.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied February 6, 1974.

ON PETITION FOR REHEARING

PER CURIAM:

Appellees' petition for rehearing is hereby granted and accordingly our opinion of July 16, 1973 is withdrawn in favor of the one below.

Oxford's otherwise successful recently desegregated school system is plagued by a transportation problem: hundreds of elementary school children must travel more than a mile and a half to school across dangerous terrain. As relief supplementary to its desegregation order of January 8, 1970, appellants requested the court below to order free transportation for all grade school children residing more than 1.5 miles from their assigned schools. The trial court found that the desegregation order had not increased the children's transportation burden, nor had it distributed the burden unequally. Therefore, the court denied appellants' transportation request, and we affirm.

Oxford presents a situation unlike any encountered before by this circuit in a desegregation suit. According to the trial court's findings, which we cannot say are clearly erroneous, Oxford's black population is scattered throughout the town, albeit in the form of a number of black neighborhoods and not in homogeneous integration. Because of its schools' locations in relation to the town's children, Oxford historically has employed busing as a tool for operating its school system. Many children, black and white, live beyond walking distance from their schools.

All went well until September 1969, when poor finances forced the school board to discontinue busing all students who lived within the city limits of Oxford. The trial court specifically found that busing was not ended for racial reasons. Although free public busing ended, the children's transportation needs continued. Consequently, private groups began busing students for a fee, a charge which worked a significant hardship on large impoverished families.

A January 8, 1970, desegregation order required all grade school children in Oxford to attend two formerly white schools. Those in grades one through three were assigned to Bramlett, and those in four through six would attend Oxford Elementary. The transportation burden of elementary students as a whole was not increased. The burden was redistributed as some students found themselves closer to their new schools while others were farther away. The redistribution did not affect one race more than the other. The need for bus transportation that existed before desegregation remained unchanged.

Despite the absence of free busing the desegregation scheme has been a success. The Oxford schools' attendance rate is ninety-five percent, and the unitary school system enjoys wide public support. Private busing continues to fill the need for school transportation; its expense falls entirely on students' parents instead of the community as a whole. Consequently, the trial court found, "certain black parents in large families experience economic hardship because of the cost incurred weekly for private transportation of their children to school."

At the trial plaintiffs showed that, under the desegregation plan, some black school children reside beyond walking distance (1.5 miles) from their schools, and that the danger and the distance involved necessitate private busing. Private busing creates a financial hardship on some black families. Since this court has said in United States v. Greenwood Municipal Separate School District, 5th Cir. 1972, 460 F.2d 1205, that black students are not to shoulder the burden of desegregation, and in other cases that black students assigned to schools out of their neighborhoods and more than 1.5 miles from home are entitled to free transportation as part of the desegregation plan, plaintiffs contend that Oxford's school district must provide free busing. We find this analysis superficially appealing but unpersuasive.

The facts of this case require us to decide whether a desegregation order must include free busing to fill a transportation need that is not related either to segregation or to the court's order dismantling segregation. The answer to this problem lies in three cases: Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267. 28 L.Ed.2d 554; United States v. Greenwood Municipal Separate School District, 5 Cir., 1972, 460 F.2d 1205; and Brown v. Board of Education of City of Bessemer, Alabama, 5th Cir. 1972, 464 F.2d 382.

We must point out that busing as a constitutional right is not an issue in this case, contrary to defendant's rhetoric. Segregated schools violate the pupils' right to equal protection of the law. When that right is violated, students may ask the federal district court for relief; the court uses its equity powers to...