Robinson v. Shelby County Board of Education

• Decision Date: 21 September 1972
• Docket Number: No. 71-1966.,71-1966.
• Citation: 467 F.2d 1187
• Parties: Claude Bernard ROBINSON et al., Plaintiffs-Appellants, v. SHELBY COUNTY BOARD OF EDUCATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

467 F.2d 1187 (1972)

Claude Bernard ROBINSON et al., Plaintiffs-Appellants, v. SHELBY COUNTY BOARD OF EDUCATION et al., Defendants-Appellees.

No. 71-1966.

United States Court of Appeals, Sixth Circuit.

September 21, 1972.

William E. Caldwell, Memphis, Tenn., Ratner, Sugarmon & Lucas, Memphis, Tenn., Jack Greenberg and Norman J. Chachkin, New York City, on brief, for plaintiffs-appellants.

Lee Winchester, Memphis, Tenn., and Thomas M. Keeling, Washington, D. C., Goff, Winchester & Walsh, Memphis, Tenn., David L. Norman, Asst. Atty. Gen., Brian K. Lindsberg, Joseph D. Rich and Paul F. Hancock, Thomas M. Keeling, Attys., Dept. of Justice, Washington, D. C., on brief, for defendants-appellees.

James A. Crislip, Memphis, Tenn., for intervenor.

Before WEICK, McCREE and MILLER, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the district court approving the revised desegregation plan submitted by the school board of Shelby County, Tennessee.¹ The litigation has a long and complicated history reflected by the numerous opinions of the district court and of this Court. Two of the district court's opinions are reported at 311 F.Supp. 97 (W.D.Tenn.1970) and 330 F.Supp. 837 (W.D.Tenn.1971). The most recent consideration of the case by this Court consists of three opinions in Robinson v. Shelby County Board of Education, 442 F.2d 255 (6 Cir. 1971). Judge McCree's opinion recites the history of the litigation, states his views as to the applicable principles of law, and concludes by remanding the action for further proceedings in accordance with his opinion. Judge Miller concurred in the result reached by Judge McCree, but pointed out that upon the remand the district judge would have the benefit of the most recent rulings of the Supreme Court in this area, such rulings being the Supreme Court's decisions in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1970), Davis v. Board of School Commissioners of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1970), and other cases decided on the same date. Judge Weick's opinion concurred "only in the remand of the case without vacating the order of the District Court, for the reasons stated by Judge Miller, which remand will afford the District Court opportunity to consider the case in the light of the recent decisions of the Supreme Court."

Following the remand the district judge conducted a full and exhaustive hearing with respect to a number of proposed plans and objections. The hearing began on August 2 and extended to August 6, 1971. On August 11, 1971, he filed a memorandum opinion approving a revised plan proposed by the school board and rejecting other alternative plans.

It is apparent from the August 11, 1971, opinion of the district judge that he correctly stated and applied the principles enunciated by the Supreme Court in Swann, supra; that by approving the school board's plan he required substantial additional desegregation of the schools in the system; and that he made detailed findings of fact on all crucial aspects of the case.

We are of the opinion that the findings of fact of the district judge are not clearly erroneous and that he complied not only with the legal principles of Swann, but also with our remand of May 10, 1971. We find it unnecessary to discuss further the facts of the case and the issues presented as they have been so fully explored and set forth in the opinions of the district court and of this Court referred to above.

We find that the opinion and order of the district court accomplished meaningful and substantial desegregation of the Shelby County school system and that in approving the latest plan of the school board the district judge did not abuse his discretion or exceed his broad equitable powers to fashion an appropriate remedy. Cf. Swann, supra, at 16, 25-26, 31, 91 S.Ct. 1267.

For the reasons set forth by the district judge in his exhaustive opinion of August 11, 1971, his order entered pursuant thereto is hereby affirmed. We also affirm his order of August 4, 1972, relative to modifications of the school board plan. The district court will retain jurisdiction of the action and any party will have leave to apply to the court for any further changes that should become necessary.

McCREE, Circuit Judge (dissenting in part and concurring in part).

I regret the necessity of filing this separate opinion, and do so only because the per curiam opinion approves some findings and conclusions that the District Court did not make, and others that are, in my view, erroneous. I view with respect and admiration the conscientious and skillful effort of the District Judge to accomplish the constitutionally mandated desegregation of the Shelby County Public Schools, and, since he will retain jurisdiction of this action until that task is completed, I believe we should give him and the other District Judges in our circuit our court's interpretation of the principles enunciated in Swann and Davis, two cases that have received extensive and differing interpretations in other districts and circuits and in scholarly and other commentary.

This is an appeal from an order intended to accomplish the desegregation of the Shelby County (Tennessee) Public Schools. Appellants initiated this action to obtain relief from state-imposed segregation of school children by race more than nine years ago. A general review of the history of this school system will assist in an understanding of the issues in this appeal and in an appreciation of the difficulty of their resolution, as will reference to a map of the school district I have appended to this opinion. A recent history of this litigation is set forth in our most recent opinion in this case, and in the two most recent published opinions of the District Court. Robinson v. Shelby County Board of Education, 442 F.2d 255 (6th Cir. 1971), remanding 311 F.Supp. 97 (W.D.Tenn.), on remand, 330 F.Supp. 837 (W.D.Tenn. 1971).

The jurisdiction of the defendant Board of Education includes all of Shelby County, Tennessee, except the city of Memphis. The county is bounded on the west by the Mississippi River, which separates it from Arkansas, and on the south by the State of Mississippi. Memphis, which is situated in the county's southwest corner, is the largest city in Tennessee and is a major commercial and financial center. Shelby County outside Memphis is very similar to nearby rural areas in Mississippi and Arkansas. Its principal products are cotton and livestock. M. Barone, G. Ujifusa, and D. Mathews, The Almanac of American Politics 770-775 (1972).

None of the parties denies that, for many years, the Shelby County public schools have been unconstitutionally seggregated by law,¹ and, in some parts of the county, no schools were provided nor was there any transportation for Negro children. As more schools were built, and bussing increased, pupils of different races were cross-bussed to prevent racial integration. During the middle 1960's, after the commencement of this litigation, a "freedom of choice" plan was instituted by defendants, but it was found to be insufficient to desegregate the schools and additional affirmative relief was ordered by the District Court. Appellants contend that even further measures are required to desegregate the county's schools adequately.

We have stated the standard to be used in determining whether a desegregation plan fulfills a board of education's legal duty to remedy past unconstitutional segregation:

Where there has been a history of state-imposed segregation of the schools, it is not sufficient to adopt a plan which, out of context, might be seen as nondiscriminatory but which does not do as much to disestablish segregation as an alternative proposal which is feasible and pedagogically sound. The School Board should be required to fulfill its affirmative duty to "eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Green v. County School Bd. of New Kent County, supra, 391 U.S. 430, at 438 n. 4, 88 S.Ct. 1689, at 1694, 20 L.Ed.2d 716; cf. United States v. Jefferson County Bd. of Educ., 372 F.2d 836, 869 (5th Cir. 1966), aff\'d on rehearing en banc, 380 F.2d 385 (1967), cert. denied sub nom. Caddo Parish School Bd. v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967); Haney v. County Bd. of Educ. of Sevier County, 410 F.2d 920, 924-26 (8th Cir. 1969).

Robinson v. Shelby County Board of Education, 442 F.2d 255, 258 (6th Cir. 1971). Accord, Harrington v. Colquitt County Board of Education, 460 F.2d 193 (5th Cir. 1972); see Davis v. School District of the City of Pontiac, 443 F.2d 573, 576-577 (6th Cir. 1971). The parties do not now question this standard but disagree about its application to the plan which the District Court has most recently ordered implemented.

Appellants contend that the plan has failed to desegregate the county's elementary schools, and one of its high schools; that their are alternative plans which are economically feasible and consistent with sound educational principles which would do more to eliminate the effects of past segregation; and that the plan unconstitutionally imposes a greater burden upon black students than upon white students because it requires the closing of all formerly black high schools and it requires the transporting of more black children than it does white children. The United States Department of Justice, which has intervened in this case, has addressed itself to more specific issues related to particular schools. In the District Court it introduced expert testimony and proposed alternative plans for the desegregation of four schools which, under the plan adopted by the District Court, have remained predominantly black: Harrold Elementary (63% black), Mt. Pisgah Elementary (93% black), Barret's Chapel Elementary (68% black), and Bolton High (70% black). Approximately 30% of the school...