Singleton v. Jackson Municipal Separate School Dist., 22527.

• Decision Date: 26 January 1966
• Docket Number: No. 22527.,22527.
• Citation: 355 F.2d 865
• Parties: Derek Jerome SINGLETON, Minor, by Mrs. Edna Marie Singleton, His Mother and Next Friend, et al., Appellants, v. JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

355 F.2d 865 (1966)

Derek Jerome SINGLETON, Minor, by Mrs. Edna Marie Singleton, His Mother and Next Friend, et al., Appellants, v. JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Appellees.

No. 22527.

United States Court of Appeals Fifth Circuit.

January 26, 1966.

Jack H. Young, Jackson, Miss., Jack Greenberg, New York City, Joel M. Finkelstein, Atty., Dept. of Justice, Washington, D. C., Derrick A. Bell, Jr., New York City, John Doar, Asst. Atty. Gen., Robert E. Hauberg, U. S. Atty., Washington, D. C., for appellants.

E. W. Stennett, Robert C. Cannada, Thomas H. Watkins, Jackson, Miss., Joe T. Patterson, Atty. Gen. of State of Mississippi, Jackson, Miss., for appellees.

Before WHITAKER, Senior Judge,^* and WISDOM and THORNBERRY, Circuit Judges.

WISDOM, Circuit Judge.

This appeal is the precipitate of three earlier appeals by Negro parents of children seeking desegregation of public schools in Jackson, Mississippi. The action was filed in March 1963. The first appeal resulted from the district court's dismissal of the action for failure of the plaintiffs to exhaust administrative remedies. We reversed, with directions that the district court give prompt consideration to the plaintiff's motion for a preliminary injunction. Evers v. Jackson Municipal Separate School District, 5 Cir. 1964, 328 F.2d 408.

On remand, the district court, March 4, 1964, ordered the Board to file by July 15, 1964, a plan that would desegregate at least one grade by September 1964. In April 1964, the trial judge conducted a long hearing in which the Board and the intervenors, certain white parents, offered voluminous testimony to show that allegedly innate racial differences furnish a reasonable basis for classifying school children according to race and therefore justify continued segregation of public schools in Jackson. Although the trial judge made elaborate findings of facts and drew broad conclusions of law in accord with the Board's and the intervenors' contentions, he felt compelled, under Stell v. Savannah-Chatham County Board of Education, 5 Cir. 1964, 333 F.2d 55, to deny the defendants' motion to dismiss and to make final the March 4 order. The Board and intervenors appealed. This Court dismissed that appeal in an opinion published today. It is no longer open to question that a state may not constitutionally segregate public facilities, including public schools. Jackson Municipal Separate School District, et al. v. Evers, No. 21851, consolidated with Nos. 21878 and 21852, 5 Cir., 357 F.2d 653.

July 15, 1964, the Board filed a grade-a-year desegregation plan: pupils entering the first grade in September 1964 were offered a so-called "freedom of choice" in assignment to schools. The plaintiffs objected to the plan as slow, vague and inadequate.¹ The plan required desegregation of only one grade in the 1964-65 school year, and did not contemplate transfers or assignments to former all white schools of Negro children above the first grade. A hearing was held July 29, 1964, in which the Board explained that the plan was based on (1) the disparity in intelligence and achievement between Negro and white pupils, (2) teacher and discipline problems, (3) problems in community acceptance of desegregation. The district court "tentatively approved" the plan and recessed the hearing until February 1965.

After a two-day hearing, the district court entered an order, March 10, 1965, approving the Board's desegregation plan for Jackson public schools. The first grade having been desegregated in September 1964, at least in theory, this plan called for desegregation of the first two grades in September 1965, and two additional grades in each of the succeeding two years, accelerating to three grades a year during the school year commencing in September 1968. With the desegregation of the tenth, eleventh, and twelfth grades in September 1969, the Jackson school system would be totally desegregated in accordance with the approved plan.

June 18, 1964, this Court issued three opinions establishing minimum standards for school desegregation plans. Armstrong v. Board of Education of Birmingham, 5 Cir. 1964, 333 F.2d 47; Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1964, 333 F.2d 53; Stell v. Savannah-Chatham County Board of Education, 5 Cir. 1964, 333 F.2d 55. In substance, this Court expressed the view that, subject to some degree of discretion, a desegregation plan should include the following provisions:

(1) desegregation at a speed faster than one grade per year; (2) assignment without regard to race to each pupil new to the system in grades not reached by the plan; (3) simultaneous operation of the plan from both the high school and elementary end; (4) abolition of dual or biracial school attendance areas contemporaneously with the application of the plan to the respective grades; (5) admissibility of Negroes to any school for which they are otherwise eligible without regard to race.

This Court reaffirmed its formulation of these minimum standards in Gaines v. Dougherty County Board of Education, 5 Cir. 1964, 334 F.2d 983; Lockett v. Board of Education of Muscogee County, Ga., 5 Cir. 1965, 342 F.2d 225; and Bivins v. Board of Public Education and Orphanage for Bibb County, Ga., 5 Cir. 1965, 342 F.2d 229.

March 12, 1965, the plaintiffs appealed from the Court's order of March 10 on the ground the Jackson plan failed to meet this Court's minimum standards. That is the appeal now before us in this proceeding.

Because of the usual delays incident to an appeal, the plaintiffs could not expect any relief that would affect the 1965-66 school year. Accordingly, in June 1965, the plaintiffs filed a motion for injunctive relief pending appeal. The United States asked to intervene, certifying that "this case is of general public importance" raising questions "bound to affect the resolution of desegregation controversies elsewhere in the State and in the South". We allowed the intervention.

Meanwhile, in April 1965 the United States Department of Health, Education and Welfare had issued a "General Statement of Policies Under Title VI of the Civil Rights Act of 1964 Respecting Desegregation of Elementary and Secondary Schools." This statement sets minimum standards for desegregation plans of schools applying for federal financial aid² and fixes the fall of 1967 as the target date for the extension of desegregation to all grades of school systems not fully desegregated in 1965-66. In an opinion issued June 22, 1965, we stated that we consider it to be in the best interest of all concerned that School Boards meet the minimum standards of the Office of Education.³ See Singleton v. Jackson Municipal Separate School District, 5 Cir. 1965, 348 F.2d 729. To enable Negro children in Jackson to receive the benefit of the HEW target date of 1967, we granted the plaintiffs' and intervenors' motion for interlocutory relief: we required desegregation of four grades for the year 1965-66, and directed that the plan be redrawn in the light of the HEW standards for compliance with the requirement of Title VI of the Civil Rights Act of 1964. Price v. Denison Independent School District et al., 5 Cir. 1965, 348 F.2d 1010, reaffirms the applicability of the HEW formulae as minimum standards for school desegregation plans.

July 7, 1965, the Board, conforming with the directions of this Court, submitted a new desegregation plan. The new plan calls for desegregation of the first, second, third, and twelfth grades in September 1965 and four grades in September of each succeeding year so that complete desegregation will be accomplished in September 1967.

The United States objected to the plan on various grounds. August 5, 1965, the district court "tentatively accepted" the plan as clarified by the Board in an answer to the Government's objections.

In October 1965, on motion of the plaintiffs-appellants, the Court consolidated this appeal (No. 22527) with Jackson Municipal Separate School District v. Evers (No. 21851), Leake County School Board v. Hudson (No. 21852), and Biloxi Municipal Separate School District v. Mason (No. 21878), 5 Cir., 357 F.2d 653.

I.

Here is a tangled web. A. The Negro plaintiffs appealed only from the district court's order of March 10, 1964 approving the Board's first, and patently inadequate, plan. The Board radically revised the plan in July 1965 in accord with this Court's June 22, 1965, opinion and the HEW standards. The plaintiffs-appellants filed their only brief May 24, 1965. A lot of water has flowed under the bridge since that date. B. The defendants-appellees argue that this Court, by its June 22 opinion directing the district court to issue an injunction requiring a new plan consistent with HEW standards, has already decided the appeal. C. The United States in its brief, filed just a few days ago, contends that the Court "erred in failing to find that the plan proposed by the Board must extend immediately to all twelve grades in order to satisfy the requirement that desegregation progress with deliberate speed."

A. This is all one matter: judicial approval of a lawful and effective desegregation plan for schools in Jackson, Mississippi. The March 10, 1964 order contemplated that there would be revisions and changes in the Jackson school desegregation plan. We consider, therefore, that the revised plans are properly before the Court.

B. This appeal was not mooted by the Court's opinion and order of June 22, 1965. The relief granted, 348 F.2d 729, was only tentative relief pending appeal. See F.R.Civ.P. 62(g). In that opinion, although we directed the Jackson School Board to comply with HEW standards, we left to the Board, subject to the approval of the district court, the details of the plan. It appears to the Court that the Board has made a sincere effort to comply with the Court's directions. However, the extent to which the plan meets HEW standards and the validity of all or part of the plan...