Singleton v. Jackson Municipal Separate School Dist., 29226.

• Decision Date: 13 July 1970
• Docket Number: No. 29226.,29226.
• Parties: Derek Jerome SINGLETON et al., Plaintiffs-Appellants, v. JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

426 F.2d 1364 (1970)

Derek Jerome SINGLETON et al., Plaintiffs-Appellants, v. JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.

No. 29226.

United States Court of Appeals, Fifth Circuit.

May 5, 1970.

Rehearing Denied and Rehearing Denied July 13, 1970.

Fred L. Banks, Jr., Melvyn R. Leventhal, Reuben V. Anderson, John A. Nichols, Jackson, Miss., Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, Jonathan Shapiro, New York City, for plaintiffs-appellants.

Robert C. Cannada, Thomas H. Watkins, Jackson, Miss., for defendants-appellees.

Jerris Leonard, Asst. Atty. Gen., David D. Gregory, Atty., Civil Rights Div., U. S. Dept. of Justice, Washington, D. C., amicus curiae.

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

Rehearing Denied and Rehearing En Banc Denied July 13, 1970.

JOHN R. BROWN, Chief Judge.

This is an appeal from an order of the District Court entered pursuant to the remand from Singleton v. Jackson Municipal Separate School District (Singleton III),¹ 5 Cir., 1969, 419 F.2d 1211 (consolidated cases en banc), rev'd in part, sub nom., Carter v. West Feliciana Parish School Bd., 1970, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477. Prior to this remand the district was operating under a Jefferson^1a model freedom-of-choice plan. And after remand for the adoption of a unitary plan the District Court called for the school board to invoke the assistance of the Office of Education of the United States Department of Health, Education and Welfare in preparing new desegregation plans. HEW filed a plan with three alternative proposals for secondary schools. The school board proposed modifications (see note 8, infra) that reduced the amount of desegregation that would result and these modifications were, after an evidentiary hearing on January 19, 1970, for the most part approved by the District Court. And this new plan was ordered implemented on February 1, 1970.

Our concern is whether the system approved by the District Court is unitary. We believe that, although faculty,² staff, extra curricular activities, etc., see Green v. County School Bd. of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716; Ellis v. Board of Public Inst. of Orange Cty., 5 Cir., 1970, 423 F.2d 203, appear so far to have become unitary, the existence of a substantial number of schools with segregated student bodies, the students of which will for a large part have a completely segregated education, prevents the system from being a unitary one when there is a reasonable alternative plan that will result in a more nearly unitary system. We thus remand this case.³

I. The Proposals for Unitary System

At the commencement of the 1969-70 school year, Jackson had 10,527 Negro and 10,432 white elementary school students attending 38 elementary schools. Of those schools, 13 were all- or virtually all-Negro and 20 were all- or nearly all-white. Of the 5 substantially integrated schools, 3 were predominantly Negro, 2 predominantly white. And Jackson was operating 9 junior high schools (grades 7-9), 2 junior-senior high schools (grades 7-12), and 6 senior high schools (grades 10-12). There were 7,700 Negro and 10,380 white students enrolled. Of those students, 7,300 (93.5%) Negroes were enrolled in 6 all-Negro schools. All of the white students attended 11 schools ranging from 86.5 to 100 percent white.

A. The Basics of the HEW Plan

The plan suggested by HEW to remedy this is essentially a zone plan. It was constructed on the assumption that other alternatives were foreclosed by state statutory limitations on state-granted financial assistance to local school districts to provide intracity transportation.⁴ In addition, the HEW plan indicated that other limitations "to developing a plan resulting in total desegregation of all schools in the system were" (1) the size of the district, (2) natural and man-made barriers that constitute safety hazards and restrict mobility,⁵ (3) demographic pattern of the district, (4) lack of a compulsory attendance law, (5) possibility of resegregation and (6) the need to develop a "plan which would result in the least amount of disruption and which would be implemented immediately."

B. The Results at the Elementary Level⁶

The HEW plan was a zoning plan within the framework of the former 1-6 grade structure. The zoning was designed to maximize desegregation and was supplemented by pairing of two schools and a cross-zone assignment of two schools. It was projected that the plan would produce 5 all-white schools and 6 all-black schools with 15 predominantly white schools and 12 predominantly black schools.⁷

This was basically the plan adopted by the District Court.⁸ But not even these projected results have been achieved. As of March 26, 1970⁹ there were seven elementary schools with all black student bodies and six more in which the student body is made up of at least ninety percent Negro students. In addition there are 6 elementary schools out of a total of 38 that have only white students attending them and two other schools with over ninety percent white student bodies.

C. Results at the Secondary Level

The direct challenge here is not, however, to the elementary system, but is to the school board's modifications of the HEW plan — or more appropriately plans A, B, and C — at the secondary level. (See note 6, supra). The HEW plans were based on principles of pairing and zoning. All three plans resulted in breakdown of the grade structure — 6-3-3 — under which the district had previously been operating. Plan B, for which plaintiffs-appellants expressed a preference, proposes geographic zoning with junior high schools continuing to serve one or more of grades 7 through 9. Under Plan B, of the eleven junior high schools, one would serve grades 7-9, six would serve grades 7-8, and four would serve grade 9 only. Plan B calls for the same type of organization at the high school level — six high schools are to serve grades 10-12, two are to serve grades 11-12, and one grade 10 only.

The modifications proposed by the Board and adopted by the District Court were not really modifications at all. They were instead a completely different plan based on geographic zoning. The zoning was, however, based on the assumption of retaining the District's 6-3-3 grade structure.

After approximately six weeks operation under this plan there were 7537 white students and 8156 Negro students in the District's secondary schools. There were no all-Negro or all-white secondary schools. (See Appendix B). There are, however, at least four schools where the student body is overwhelmingly Negro.¹⁰ In contrast, the projected enrollment under any of the HEW plans would not have produced any virtually all-Negro schools. See Appendices C-E.

II. Deficiencies in the Present Plan

It is not contended that the school board's zoning plan was gerrymandered to produce little desegregation. But it is contended that the school board plan is not the best available alternative. Andrews v. City of Monroe, 5 Cir., 1970, 425 F.2d 1017. And it is contended that the board has not carried "its * * * heavy burden * * * to explain its preference for an apparently less effective method." Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L. Ed.2d 716, 724. It is also claimed that the school board's secondary plan zone lines were not drawn to promote desegregation as required by this Court. Valley v. Rapides Parish School Bd., 5 Cir., 1970, 423 F.2d 1132; United States v. Indianola Municipal Separate School Dist., 5 Cir., 1969, 410 F.2d 626; Davis v. Board of School Commissioners of Mobile County, 5 Cir., 1968, 393 F.2d 690.

We are of the clear view that the plaintiffs'-appellants' complaints are valid. Jackson Separate School District is not a unitary system. The deficiencies do not lie in the simple existence of some schools that are all or virtually all Negro or white. They lie instead in the fact that a substantial number of Negro students will receive their entire public school education in a segregated school environment,¹¹ which is presumably largely the result of the State's operation of a dual school system with schools located to serve that system. And these deficiencies are critical in light of the existence of readily available means, which can be implemented without significant administrative, educational, economic, or transportation costs (see note 14, infra), to avoid for substantially all the students of this district the school life-long segregated education. See Andrews v. City of Monroe, supra.

This Court realizes that the time for adoption and effectuation of a plan in this school district was short and that the physical and logistical problems involved were great. And it recognizes that significant progress has been achieved both as to the student body and the other Green factors as a result of the plan put into effect pursuant to the District Court's order. Although under the stringent mandate of Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed. 2d 19; Carter v. West Feliciana Parish School Board, 1970, 396 U.S. 290, 90 S. Ct. 608, 24 L.Ed.2d 477, this was to be a final plan, two things warrant comment. First, the Judge approached it in terms or immediacy with some expectation of correcting deficiencies¹² revealed by actual operation. Second, we have to look on it in terms of its acceptability as a final plan now.

Furthermore, we are not now confronted with the problems and dislocations that a midyear change in the traditional grade structure — 6-3-3 — would involve. (See III (2), infra). Although the changes under the HEW plans for the secondary schools may require future adjustment, they are not educationally, administratively, or economically unreasonable. And it appears that under these circumstances and in this case, subject, of course, to the experience of actual...