Stout v. Jefferson County Bd. of Ed., 75--2978
| Decision Date | 10 August 1976 |
| Docket Number | No. 75--2978,75--2978 |
| Citation | 537 F.2d 800 |
| Parties | Linda STOUT, by her father and next friend, Blevin Stout, et al., Plaintiffs-Appellees Cross Appellants, v. JEFFERSON COUNTY BOARD OF EDUCATION, et al., Defendants-Appellees CrossAppellants, v. UNITED STATES of America, Intervenor-Appellant Cross Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Wayman G. Sherrer, U.S. Atty., Birmingham, Ala., Paul F. Hancock, Brian K. Landsberg, Ed. Section, Civil Rights Div., Dept. of Justice, J. Stanley Pottinger, Asst. Atty. Gen., William C. Graves, Atty., Appellate Section, Dept. of Justice, Washington, D.C., for appellant.
Maurice F. Bishop, Donald B. Sweeney, Jr., Birmingham, Ala., for Jefferson County Bd. of Ed.
Thomas R. McEniry, Bessemer, Ala., for Medfield Bd. of Ed.
U. W. Clemon, Birmingham, Ala., Norman Chachkin, Jack Greenberg, New York City, for other interested parties.
Appeals from the United States District Court for the Northern District of Alabama.
Before CLARK and GEE, Circuit Judges. *
The United States alone appeals from the most recent order of the district court in the Jefferson County school case.
The basic desegregation plan for this district was approved by this court some time ago. Stout v. Jefferson County Board of Education, 466 F.2d 1213 (5th Cir. 1972). Since then great progress has been made, aided by increasing good faith and mutual confidence on all hands, for which the parties are to be commended. We have approved a trial-court order modifying two attendance zones and directing retention of jurisdiction by that court. 483 F.2d 84 (5th Cir. 1973). A subsequent opinion affirmed other, relatively minor, actions of the court below. 489 F.2d 97 (5th Cir. 1974). The present appeal is limited to reviewing the trial court's disposition of questions affecting two schools located in the Wenonah attendance zone. These are Roosevelt Elementary (grades 1--6) and A. G. Gaston (grades 7--9), and the difficulty with them is that the order below leaves both all black. The court below amply recognized the undesirability of this circumstance but, after considering all features of the situation presented to it, could devise no effective remedy for it. No more able than it to envision such a remedy, and unwilling to attempt to do from a distance what the trial court thought infeasible on the spot, we reluctantly affirm.
The large Wenonah zone presented to the district court an essentially all-black junior high and high school, Gaston, produced at least in part by a boycott by the 15--20% white students projected for it under an earlier plan. A like situation obtained at Roosevelt. Both of these schools lie in the north-west tip of the Wenonah zone. Also within the Wenonah zone, in its western central portion, lies Lipscomb (grades 1--9), successfully desegregated and functioning with a 60--40 white-black pupil roster. Finally, in the southeastern quadrant of the zone lies Shannon (grades 1--6), a small school in a former mining community, with a capacity of 140 students and an all-white enrollment of 78.
To the east of Wenonah lies the essentially all-white Berry zone. Distances between the corresponding facilities in the two zones are calculated by the United States as 9.2 and 11.0 miles, and by the Board (along somewhat different routes) as 11.0 and 13.7. Transportation times are similarly calculated, respectively, as 20--23 and 33--41 minutes, one way. Although these factors, standing alone, would not seem prohibitive for the bussing of junior high students, the trial court refused to order any bussing between the Berry and Wenonah zones because of a geographical barrier dividing the two zones. Shades Mountain, a chain of substantial hills or small mountains, rises along the western boundary of the Berry zone, presenting an almost sheer bluff toward Wenonah. Only two roads across Shades Mountain are suitable for transporting students between the zones. One is a major truck route which, as it descends the mountain, has produced more accidents than any segment of road of similar length in Alabama. The other is steep and winding and carries a heavy volume of automobile traffic during morning school hours. These considerations, together with those of time and distance mentioned, caused the trial court to reject bussing across Shades Mountain between the Berry and Wenonah zones as dangerous and infeasible. We cannot gainsay this conclusion, which is clearly a reasonable one on the facts presented.
Beyond the northern end of Shades Mountain, however, lies Shades Valley High School, an outstanding school with excess capacity which can be reached from Wenonah by end-running the mountain range. To it the court assigned students from Gaston grades 10--12, thus achieving a desegregated school experience for all Wenonah zone and Shades Valley high school students and leaving Gaston to function as a junior high.
The other possibilities considered by the lower court, and urged upon us by the United States, involve pairing of Gaston and Roosevelt Elementary with schools in the adjacent Midfield or Homewood Zones, or with Lipscomb school in the Wenonah Zone. The lower court declined to adopt either proposal.
The issue is close and troubling. On the one hand we confront the existence of two all-black and one all-white (as it falls out in practice) neighborhood schools in a system approximately 80% white. 1 Efforts by the court in earlier orders to assign white students to the first two of these schools have been met by refusal of these students to attend them, and the districts with which the United States urges they be paired are themselves desegregated and functioning effectively. It was the court's conclusion that adopting the government's proposals 'would . . . mean the loss of desegregated education at schools which are 30--35% black at this time, a loss of such experience to both whites and blacks, without actually providing such an experience to the Gaston and Roosevelt students.' We cannot but regard this conclusion by Judge Pointer, who has struggled with these problems effectively over the years, with great deference. On the other hand, the court concluded, and we agree, that the former dual school system has been effectively dismantled and a unitary system substituted here.
The small all-white school, Shannon, comprises primary grades only in a relatively small and isolated community. The anomaly presented by the two black schools results from the presence of a neighborhood...
To continue reading
Request your trial
-
Tasby v. Wright
...devises a plan that will redress the vestiges of a past wrong and promote greater, lasting desegregation. Stout v. Jefferson County Bd. of Educ., 537 F.2d 800, 802 (5th Cir. 1976). Thus, the trends and projections of ever declining anglo enrollment in a heavily minority district, juxtaposed......
-
Valley v. Rapides Parish School Bd., 81-3462
...the trial judge, in choosing among permissible plans, may select one calculated to minimize white boycotts. Stout v. Jefferson County Board of Education, 537 F.2d 800 (5th Cir.1976). Accord, Ross v. Houston Independent School Dist. (in seeking reduction in the number of one-race schools, th......
-
Kelley v. Metropolitan County Bd. of Educ. of Nashville and Davidson County, Tenn.
...the most desirable plan from among several constitutionally permissible desegregation remedies. In Stout v. Jefferson County Board of Education, 537 F.2d 800 (5th Cir. 1976), the Fifth Circuit, in examining the application of Scotland Neck, We have found no authority declaring that in choos......
-
Stout v. Jefferson Cnty. Bd. of Educ.
...by increasing good faith and mutual confidence on all hands, for which the parties are to be commended." Stout v. Jefferson Cty. Bd. of Educ. , 537 F.2d 800, 801 (5th Cir. 1976).The issue before the appellate court was narrow. The Fifth Circuit considered whether this Court could leave thre......