Ross v. Dyer

Citation312 F.2d 191
Decision Date25 January 1963
Docket NumberNo. 19912.,19912.
PartiesDelores ROSS, a Minor, by her Mother and Next Friend, Mary Alice Benjamin, et al., Appellants, v. Mrs. Frank DYER, as President of Board of Trustees of Houston Independent School District, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Weldon H. Berry, Houston, Tex., for appellants.

Joe H. Reynolds, Houston, Tex., for appellees.

Before TUTTLE, Chief Judge, and HUTCHESON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal presents the question whether under a court-imposed stair-step desegregation plan for the Houston schools, a long standing brother-sister rule may be used where its operative effect in many situations is to compel continued attendance at a racially segregated school. In effect the brother-sister rule prescribes that as to children in the elementary grades (1 through 6), a child must attend the same school as does an older brother or sister. The District Court held that since its application was apparently nondiscriminatory, it did not violate the prior decree of desegregation. Accordingly relief against the practice was denied. We disagree and reverse.

For proper evaluation of the problem in the realistic terms which constitutional implications demand, it is helpful to summarize briefly the historical setting. The Houston Independent School District, one of the nation's largest in terms of scholastics and up to 1960 the largest segregated school system in the country, had approximately 190,000 students enrolled at the time the Judge heard this matter in January 1962. The elementary school covers kindergarten and grades 1 through 6. The secondary school is in two divisions, junior high (grades 7, 8, 9) and senior high school (grades 10, 11, 12). We are principally concerned with the elementary division. Following the traditional pattern of Southern schools, the whole system was segregated. This was not the result of spurious gerrymandering. It is open and frank. Separate zones for white children and Negroes were — and are still — maintained. Every geographical area within the system is therefore simultaneously in two zones, one for Negroes and one for whites.

In 1957 the District Court, in this same class suit by Negro parents, entered a general order. It required that the schools be desegregated with all "deliberate speed," and the School Board was ordered "to devise and adopt a plan looking to the maintenance and operation of its schools upon a racially nonsegregated basis." Nothing transpired from this order, and on April 8, 1960, the Court ordered the Board to file by June 1, 1960, "such plan as the Board had adopted * * * for the Court's consideration and approval." A plan was filed June 1, 1960. On August 3, 1960, the Court by formal order found that the proposed "plan does not constitute compliance with the * * * order of this Court, nor does it constitute a good faith attempt at compliance * * *." But was, rather, a "* * * subterfuge designed only to accomplish further evasion and delay."

Thereupon the Court entered its own order for desegregation commencing with the regular school term September 1960. This prescribed a stair-step plan beginning with the first grade in 1960 and successively higher grades each year thereafter "until complete desegregation is accomplished in 1972." As some question arose concerning the interpretation of this brief order, the Court entered its order of August 12, 1960, which spelled out the plan of desegregation.1 This was peremptory in nature and provided that the School Board "will desegregate the Public schools of * * * Houston * * * pursuant to the following plan and schedule." It then spelled it out grade by grade:

"1. At the opening of the regular school term in September, 1960, each student entering the first grade * * * may, at his option, attend the formerly all-white, or the formerly all-Negro school within the geographical boundaries of which such student may reside;"2

The order also permitted transfers by a student and under certain conditions by the school authorities.3 The School Board immediately appealed that order. It was immediately heard and within a brief time we affirmed. Houston Independent School Dist. et al. v. Delores Ross et al., 5 Cir., Sept. 6, 1960, 282 F.2d 95. On that appeal we had no occasion to consider, or pass upon, whether in time or grades the plan was sufficiently fast.

Meanwhile, on August 15, 1960, just three days after the 1960 order, the School Board formally approved the Superintendent's recommendations which were, he testified below, a clarification of policies to be followed, especially in connection with the plan of desegregation. Item 2 thereof was the brother-sister rule applicable at that time to the kindergarten and grades 1 through 6.4 Item 3 was the transfer rule.5

There is no indication in this record that either at the time of, or shortly after, the August 1960 order the District Judge had any knowledge of these administrative policies or rules. The school authorities acting under them admitted 12 Negroes in September 1960 and 33 Negroes in September 1961 to four formerly all-white elementary schools. A number of Negroes otherwise entitled to attend a formerly all-white school were denied admission through application of the brother-sister rule.

On September 8, 1961, the plaintiffs filed in this original action a motion for temporary restraining order, preliminary injunction, and permanent writ of injunction. Complaint was made of discriminatory practices with particular emphasis on the brother-sister rule and the transfer rule. This was, properly so, treated by them as ancillary to the original action but despite the language of the motion and its prayer in terms of a request for temporary and permanent injunctions, the trial Court always looked on this as though it were a petition for a contempt citation.6 Although not decisive, we think this confusion was of more than a mere matter of technical, academic interest. This and comments made by the Judge in colloquy with counsel during the hearing reflect his basic approach. The approach was essentially one of determining whether the rules and their application constituted a violation of an outstanding order, rather than, as equally urged by the plaintiffs, a discriminatory practice which should be forbidden in the light of existing conditions without regard to whether they were, or were not, within the compass of the 1960 order.

We emphasize this at this point since it is now clear that even though the 1960 order prescribes a plan in specific detail, this is not the end of the matter. The District Court of necessity retains continuing jurisdiction over the cause. That means that it must make such adaptations from time to time as the existing developing situation reasonably requires to give final and effectual voice to the constitutional rights of Negro children. Our most recent Bush v. Orleans Parish School Board, 5 Cir., 1962, 308 F.2d 491, modified on rehearing, 308 F.2d 503 affirms this, as does Augustus v. The Board of Public Instruction of Escambia County, Florida, 5 Cir., 1962, 306 F.2d 862, 869. And since "desegregation procedures, within reasonable limits, must be flexible in order to fit local needs and new situations as they arise and present problems," we must, like a District Court, be open to a modification of our own orders. Bush v. Orleans Parish School Board (on rehearing), 308 F.2d 503.

The trial Court heard extensive evidence on the September 1961 motion. This certainly supported the School Board's main contention that while each of these policies was formally memorialized (see notes 4, 5, supra) right after the 1960 desegregation order, these were rules of long standing which had been followed in actual practice for many years, both in Houston and elsewhere. To this there was added further proof that each of the rules was applied indiscriminately as to Negroes and whites. The District Court thereafter held that these school authorities were not in contempt for violation of the 1960 order (see note 6, supra), and that the application of the two rules was not discriminatory by reason of race. The appeal is expressly restricted to the brother-sister rule. No complaint is here made as to the transfer rule though, as we point out, the permissible scope of this rule does bear upon the problem presented.

In the final analysis the conclusion of the District Judge as to the brother-sister rule seems to have been one of pure logic. On the basis of the evidence which showed it to be a rule of long standing applied to white and Negroes alike, the District Judge in his memorandum opinion reasoned that "the colored plaintiffs do not seek the same treatment as is afforded white students, to which they are entitled; in fact, they seek a different, and superior, treatment, by reason of their race. The law does not grant them this." But we think that logic alone is insufficient to over come the practical effect of this rule which as to some Negro families perpetuates a segregated system despite the plain purpose of the stair-step plan to ameliorate it. That it applies equally to white and Negro overlooks the fact that as to one group, compulsory attendance at certain schools has been the result of unconstitutional discrimination. The purpose of the court decree is to eradicate that unconstitutional deprivation of equal protection, no matter how felt or manifested. Ordinarily, on a declaration by a court of unconstitutional deprivation of rights, the relief granted is immediate and complete. But that is not the process encompassed in the "all deliberate speed" concept of Brown v. Board of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083. Under a stair-step plan Negroes not in the eligible classes continue for a time to suffer discriminatory treatment. But the law tolerates this momentarily because of two...

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