Smith v. DALLAS CTY. BD. OF ED., Civ. A. No. 79-0260-H.

• Citation: 480 F. Supp. 1324
• Decision Date: 10 December 1979
• Docket Number: Civ. A. No. 79-0260-H.
• Parties: Bobby J. SMITH a minor, by his mother and next friend, Lucille Smith; Tony Billingsley, a minor, by his mother and next friend, Cora Billingsley; Matthew Neeley and Katherine Neeley, minors, by their mother and next friend, Florence Neeley, Plaintiffs, v. DALLAS COUNTY BOARD OF EDUCATION; Martin R., etc.; John J. Grimes, Jr., Joe K. Rives, Martin Chance, and James Priestly, etc.; Earnest, Frank, etc. and Clarence James, etc., Defendants.
• Court: U.S. District Court — Southern District of Alabama

480 F. Supp. 1324

Bobby J. SMITH a minor, by his mother and next friend, Lucille Smith; Tony Billingsley, a minor, by his mother and next friend, Cora Billingsley; Matthew Neeley and Katherine Neeley, minors, by their mother and next friend, Florence Neeley, Plaintiffs, v. DALLAS COUNTY BOARD OF EDUCATION; Martin R., etc.; John J. Grimes, Jr., Joe K. Rives, Martin Chance, and James Priestly, etc.; Earnest, Frank, etc. and Clarence James, etc., Defendants.

Civ. A. No. 79-0260-H.

United States District Court, S. D. Alabama, N. D.

December 10, 1979.

COPYRIGHT MATERIAL OMITTED

Booker T. Forte, Jr., Legal Services Corp. of Ala., Selma, Ala., Abigail Turner, Legal Services Corp. of Ala., Mobile, Ala., for plaintiffs.

Joe T. Pilcher, Jr., Selma, Ala., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAND, District Judge.

This action came on to be heard on the complaint filed by plaintiffs, and on the motions of the defendants (No. 1) to dismiss the action, the complaint, each separate cause of action asserted therein, and each and all class actions asserted therein, for failure to state a claim upon which relief can be granted; (No. 2) to strike or dismiss the complaint for failure to invoke the jurisdiction of the Court by filing a complaint including the names of all the parties, as required by Rule 10(a), F.R.C.P.; (No. 3) to dismiss the action, the complaint, each separate cause of action asserted therein, and each and all class actions asserted therein, for lack of jurisdiction over the subject matter; and (No. 4) for summary judgment, all as more fully shown by the written motions of defendants served on July 3, 1979. The motions to dismiss for failure to state a claim upon which relief can be granted have been treated as motions for summary judgment, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. The Court has carefully considered the complaint and the motions of defendants, together with all affidavits and evidence submitted in connection therewith, arguments of counsel heard orally by the Court, the briefs, the law, and the entire record in this action. The Court has also considered and taken judicial notice of the entire record and proceedings in civil action no. 5945-70-H, now pending before this Court, including all findings and orders of the Court in that action. The Court has also considered the absence of any countervailing affidavits submitted or filed by plaintiffs to deny, dispute, or contradict those facts shown by the affidavits and evidence submitted by the defendants in support of their motions. The Court now makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The defendants, William R. Martin, John J. Grimes, Jr., Joe K. Rives, Martin Chance, and James Priestley, are members of the Dallas County Board of Education with the defendant William R. Martin being chairman. The defendant Frank Earnest Jr. is Superintendent of Schools of the Dallas County School System. All of the aforesaid individuals have been sued individually and in their aforesaid representative and official capacities.

2. The plaintiffs, Bobby J. Smith, Tony Billingsley, Katherine Neeley, Matthew Neeley, and Clarence Neeley, are students in the Dallas County School System.

3. On October 23, 1969 a three-judge panel in civil action no. 604-E then pending in the United States District Court for the Middle District of Alabama (hereinafter called the Lee Case) ordered the Dallas County Board of Education to file on or before January 15, 1970, a plan whereby, effective with the commencement of the 1970-71 school year, the dual school system— based upon race, both as to students and faculty—as operated by said school system will be effectively and completely disestablished. The Court further ordered the United States, through the use of educational experts of the Office of Education, Department of Health, Education and Welfare, to study the operation of the said school system and to confer with and assist the system in formulating the required plan. The Dallas County Board of Education, its superintendent, and members complied with that order.

4. On January 15, 1970 the Dallas County Board of Education filed in the Lee case its proposed plan for the effective and complete disestablishment of a dual school system based upon race, effective with the commencement of the 1970-71 school year. That plan was approved by attorneys for the United States, as modified and supplemented. On February 13, 1970 the three-judge court in the Lee Case found that the plan as filed by the Dallas County Board of Education on January 15, 1970, as modified and supplemented by the Court, when fully implemented effective not later than the commencement of the 1970-71 school year, would completely and effectively disestablish the dual school system based upon race as operated by the Dallas County Board of Education. The Court approved the plan and ordered the Board of Education to implement it.

5. The approved plan for the Dallas County School System contained the following affirmative duties and obligations imposed on the Dallas County Board of Education by court order:

a. To effectively and realistically disestablish a dual school system, based upon race, both as to students and faculty, and to maintain a bi-racial public school system supported by a majority of white as well as black students.

b. To organize schools administratively so as to offer each minority white child as well as majority black child equal educational opportunity through curricula organization most suited to needs.

c. To utilize the school system's existing personnel, talents, and abilities without discrimination to achieve the foregoing objectives, and to maintain public support in compensating professional educators for services rendered.

d. To provide transportation on a nondiscriminatory and non-segregated basis for all eligible children.

e. To implement the plan with an instructional program to assure better learning opportunities for all students, as a continuous activity; to review student evaluation policies and procedures continuously for areas in need of improvement and adjustment to encourage the educational growth and motivation of students; to introduce and/or expand remedial programs in reading and mathematics skills, as appropriate, for all students in need of special help; to supplement regular course offerings and assignments of students; to review and revise, as necessary, grouping procedures to assure they support the spirit as well as letter of the desegregation plan. The full plan, as well as the February 13, 1970 order in the Lee Case, appear of record in this Court in civil action no. 5945-70-H.

6. On March 31, 1970, the three-judge panel in the Lee Case ordered that all proceedings in said civil action no. 604-E against the Dallas County Board of Education, its superintendent and individual members, be transferred to this Court. Pursuant to that order, the Lee Case was transferred to this Court, and was assigned civil action no. 5945-70-H. That civil action is still pending before the Court.

7. On April 4, 1971, the United States filed a motion for supplemental relief in the Lee Case seeking a new desegregation plan with respect to student attendance. On July 27, 1971 the United States and the School Board (where used, the term shall include the Dallas County Board of Education, its members, and its superintendent) entered into a consent order by which the Board agreed to comply with the Court ordered desegregation plan. That consent order afforded the United States the opportunity during the 1971-72 school year to evaluate the progress in desegregation of the Dallas County School System, and required the school board to cooperate with the United States in providing the information necessary for such evaluation. Such evaluation was accomplished by counsel for the United States, with the cooperation of the board, and included a full review of school and attendance records, an examination of all reports submitted to HEW, and actual physical inspections of the Dallas County Schools during school attendance hours. There were no complaints by the United States following that evaluation, inspection, and examination.

8. On September 21, 1972, the National Education Association (NEA), as intervenor, filed in the Lee Case its motion for further relief and for a permanent injunction. On October 10, 1972 this Court ordered counsel for NEA to contact the parties and arrange a conference to discuss issues in controversy and to present a consent order resolving all possible issues, with the proviso that any unresolved issues would be certified to the Court by the aggrieved. Counsel for the NEA failed to comply with that order, and on March 14, 1975 this Court ordered that the proceedings be dismissed unless the parties show good cause within fifteen (15) days. In response to that order, the United States filed a response requesting that the Court allow a reasonable time for the United States to complete an investigation to determine whether the alleged violations, and any other violations of applicable federal law, existing at that time, representing that the United States had already initiated an investigation to determine whether the school board had complied with the 1970 court order and applicable federal law. This Court granted the request of the United States, allowing forty-five days for the completion of the investigation in order to assure that constitutional violations did not exist or that any such violations which did exist could be properly remedied. And, on April 1, 1975, the Court ordered the parties to confer and to certify to the Court which areas of controversy then existed and which areas of agreement had been reached. In response to that order, the parties filed a response on June 4, 1975 certifying that only four, specified issues then remained unresolved and contested. Such...