Stanley v. Darlington County School District, 13904

Decision Date18 May 1970
Docket NumberNo. 13904,13905.,13904
Citation424 F.2d 195
PartiesTheodore Whitmore STANLEY et al., Appellants, v. DARLINGTON COUNTY SCHOOL DISTRICT et al., Appellees. Elaine WHITTENBERG et al., Appellants, v. SCHOOL DISTRICT OF GREENVILLE COUNTY, etc., et al., Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Donald James Sampson, Greenville, S. C., Michael Davidson, Norman J. Chachkin, Jack Greenberg, New York City, Lincoln C. Jenkins, Jr., Matthew J. Perry, Columbia, S. C., Mordecia C. Johnson, Florence, S. C., Ernest A. Finney, Jr., Sumter, S. C., for appellants.

Benny R. Greer, Darlington, S. C., for appellees in 13904.

E. P. Riley, James C. Parham, Jr., Greenville, S. C., for appellees in 13905.

Rehearing Denied in No. 13905 January 26, 1970.

Rehearing Denied in No. 13904 January 29, 1970.

Certiorari Denied in No. 13905 April 27, 1970. See 90 S.Ct. 1499.

Certiorari Denied in No. 13904 May 18, 1970. See 90 S.Ct. 1690.

ORDER

HAYNSWORTH, Chief Judge.

We consolidated these appeals for hearing and disposition in light of Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (Oct. 29, 1969), and Nesbit v. Statesville City Bd. of Educ., 418 F.2d 1040 (4th Cir., Dec. 2, 1969).

In Alexander the Supreme Court held that "the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools." In Carter v. West Feliciana Parish School Bd., 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (Jan. 14, 1970), the Supreme Court reemphasized the immediacy of its holding in Alexander. It vacated an order of the United States Court of Appeals for the Fifth Circuit, sitting en banc, permitting pupil integration to be deferred until the opening of the new school year in September 1970. The Court of Appeals for the Fifth Circuit was held to have misconstrued the Supreme Court's decision in Alexander, and complete student integration was held to be required in those cases by February 1, 1970.

These decisions leave us with no discretion to consider delays in pupil integration until September 1970. Whatever the state of progress in a particular school district and whatever the disruption which will be occasioned by the immediate reassignment of teachers and pupils in mid-year, there remains no judicial discretion to postpone immediate implementation of the constitutional principles as announced in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed. 2d 716; Alexander v. Holmes County Bd. of Educ., 396 U.S. 79, 90 S.Ct. 29, 24 L.Ed.2d 19 (Oct. 29, 1969); Carter v. West Feliciana Parish School Bd., 396 U.S. 290, 90 S.Ct. 608 (Jan. 14, 1970.

Accordingly, it is adjudged, ordered and decreed:

1. Each of the school districts shall submit to the District Court a plan for unitary schools on or before January 23, 1970;

A. The plan for Darlington may be based upon proposal B submitted by the Department of Health, Education and Welfare, or upon any other plan that will create a unitary school system;

B. The plan for Greenville may be based upon the revised plan submitted by the school board or upon any other plan that will create a unitary school system;

C. All plans must include provisions for the integration of the faculty so that the ratio of Negro and white faculty members of each school shall be approximately the same as the ratio throughout the system. In determining the ratio, exceptions may be made for specialized faculty positions;

2. The plaintiffs and the Department of Health, Education, and Welfare may file responses to the plans on or before January 28, 1970;

3. The District Judge will conduct a hearing in each of these cases on February 2, 1970 to enable him to determine the effectiveness of the proposed plans and to consider any objections which may have been filed;

4. On or before February 5, 1970, the District Judge shall enter an order in each of these cases approving a plan selected by him to attain a unitary school system and requiring its implementation on February 9, 1970, with leave, however, to postpone the effective date of the implementation of all or any part of a particular plan until February 16, 1970, if for good cause shown the District Judge finds that, to the extent that such postponement of implementation of the plan is allowed, it could not be achieved earlier;

5. The District Court's order shall not be stayed pending any appeal which may be taken to this court, but, in the event of an appeal, modification of the order may be sought in this court by a motion accompanied by a request for immediate consideration.

The judgments are vacated and the cases remanded for further proceedings consistent with this order.

Let the mandate issue forthwith.

ON PETITION FOR REHEARING IN NO. 13905

PER CURIAM.

In a petition for rehearing the School District of Greenville County insists that this court must have some discretion to consider the consequences of an immediate reassignment of the pupils in the system and to permit their reassignment to be postponed until September 1970, in light of the special conditions of this case.

It is alleged in the petition that approximately thirty-three per cent of the Negroes in the schools are now in integrated situations, and that all of the other Negroes are attending all-Negro schools as a matter of their choice. There is no suggestion in the record that exercise of the freedom-of-choice extended Negro pupils and their parents has been impaired by fears of economic or other retaliation, or by community hostility. It is true, also, that a general reassignment of 58,000 pupils and their teachers at this time of year will occasion great disruption, and that much educational advantage may be lost through the process of readjustment. The court, however, was not unmindful of these things at the time of entry of its order.

At the time of the hearing in this case, a majority of the court was of the opinion that Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 90 S.Ct. 29, did not foreclose this court from postponing the reassignment of children and teachers to September 1970. The majority read Alexander in light of the cases then before the Supreme Court and of the fact that those school districts had the advantage of the Christmas vacation period within which to make the necessary plans and arrangements for the general reorganization of the schools required by the Supreme Court, a very important circumstance which is wanting here. The majority was prepared to file an order...

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  • Morgan v. Kerrigan
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    ...District No. 1, 351 F.Supp. 799 (D.Minn.1972); Vaughns v. Board of Education, 355 F.Supp. 1051 (D.Md.1972); Stanley v. Darlington County School District, 424 F.2d 195 (4th Cir. 1970). Indeed, the court in Vaughns, 355 F.Supp. at 1060 n. 28, deduced that, for most, if not all, of the Justice......
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    • March 1, 1995
    ...plan based upon HEW Plan B, or any other plan that would create a unitary school system. See Stanley v. Darlington County Sch. Dist., et al., 424 F.2d 195, 196-97 (4th Cir.), reh'g denied, 424 F.2d 198 (per curiam), cert. denied, 398 U.S. 909, 90 S.Ct. 1690, 26 L.Ed.2d 67 B. THE 1970 DESEGR......
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    • December 29, 1972
    ...16, 1970. During oral argument on December 26, 1972, counsel for defendants informed this Court that the District Court record in the Darlington case discloses that the mid-year transfer plan involved about one-tenth of the Darlington school population whereas the staff plan in this case wi......
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