Tasby v. Estes, s. 76-1849

Decision Date21 April 1978
Docket NumberNos. 76-1849,77-1752 and 77-2335,s. 76-1849
Citation572 F.2d 1010
PartiesEddie Mitchell TASBY and Phillip Wayne Tasby, by their parent and next friend, Sam Tasby, et al., Plaintiffs-Appellants Cross Appellees, Metropolitan Branches of the Dallas N. A. A. C. P., Plaintiffs-Intervenors Appellants-Cross Appellees, v. Dr. Nolan ESTES et al., Defendants-Appellees Cross Appellants. Eddie Mitchell TASBY and Phillip Wayne Tasby, by their parent and next friend, Sam Tasby, et al., Plaintiffs, Metropolitan Branches of the Dallas N. A. A. C. P., et al., Plaintiffs-Intervenors, Appellants, v. Dr. Nolan ESTES et al., Defendants-Appellees. CONCERNED CITIZENS OF GLENVIEW, Plaintiff-Appellant, v. Dr. Nolan ESTES, General Superintendent, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Edward B. Cloutman, III, Dallas, Tex., Melvyn Leventhal, Jackson, Miss., Vilma S. Martinez, Mexican American Legal Defense & Educational Fund, Inc., San Francisco, Cal., Albert H. Kauffman, San Antonio, Tex., Tri-Ethnic Committee, Dallas, Tex., for plaintiffs-appellants cross appellees in 76-1849 and for Tasby, et al. in 77-1752.

Sylvia M. Demarest, Dallas, Tex., for plaintiffs-appellants cross appellees in 76-1849.

E. Brice Cunningham, L. A. Bedford, Jr., Dallas, Tex., for Metropolitan Branches of Dallas, N.A.A.C.P. in 76-1849 and 77-1752.

Warren Whitham, Dallas, Tex., for Estes, et al. in 76-1849, 77-1752 and 77-2335.

Mark Martin, Dallas, Tex., for Estes, et al. in 76-1849 and 77-1752.

Earl Luna, Dallas, Tex., for Carrollton-Farmers Branch.

James W. Deatherage, Irving, Tex., and Benjamin L. Craig, Denver, Colo., for Irving ISD.

Robert J. Caraway, Dallas, Tex., for Wilmer-Hutchins.

Richard E. Gray, Dallas, Tex., for Highland Park in 76-1849 and 77-1752.

H. Louis Nichols, Dallas, Tex., for Duncanville.

Robert H. Mow, Robert L. Blumenthal, Dallas, Tex., for Curry, et al. in 76-1849 and 77-1752.

James A. Donohoe, G. Duffield Smith, Dallas, Tex., for Brinegar, et al. in 76-1849 and 77-1752.

N. Alex Bickley, City Atty., Dallas, Tex., for City of Dallas.

James T. Maxwell, pro se.

Martin Frost, John W. Bryant, Dallas, Tex., for Strom, et al. in 76-1849 and 77-1752.

James G. Vetter, Jr., Dallas, Tex., for Citizens of Oak Cliff in 76-1849 and 77-1752.

H. Ron White, Walter L. Irvin, Daniel Solis, Dallas, Tex., amicus curiae, for defendants-appellees cross appellants in 76-1849 and for other interested parties in 77-1752.

Nathaniel R. Jones, Charles Carter, New York City, for plaintiffs-intervenors, appellants in 77-1752.

Thomas E. Ashton, III, Dallas Legal Serv. Foundation, Inc., Dallas, Tex., for Tasby, et al. in 77-1752.

Lee Holt, City Atty., Dallas, Tex., for City of Dallas.

George Solares, Dallas, Tex., for plaintiff-appellant in 77-2335.

Appeals from the United States District Court for the Northern District of Texas.

Before COLEMAN, TJOFLAT, and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

The Dallas Independent School District (DISD), the eighth largest urban school district in the country, has been the subject of desegregation litigation for over twenty years. 1 In 1975, a panel of this court remanded the case to the district court with instructions that a plan be implemented that would effectively desegregate the school system. Tasby v. Estes, 517 F.2d 92 (5th Cir.), cert. denied, 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975). On remand, a new school desegregation plan was adopted by the district court. Tasby v. Estes, 412 F.Supp. 1192 (N.D.Tex.1976). In these consolidated appeals, the NAACP, intervenors in the desegregation case 2, primarily challenge the student assignment portion of the district court's order; this will be referred to as the main appeal. The NAACP claims that the student assignment plan cannot pass constitutional muster because of the large number of one-race schools it establishes. The plan divides the DISD into six subdistricts, one of which is nearly all black and contains only one-race schools. 3 In the other five subdistricts, containing some 160 schools, approximately fifty are still essentially one-race schools. Two other matters concerning the DISD are also before this court: the exclusion of the Highland Park Independent School District from the district court's desegregation plan 4 and the acquisition and sale of certain school sites by the DISD. 5

I. The Main Appeal

A detailed description of the proceedings in this complex litigation prior to 1975 can be found in the opinion of the previous panel, which is reported at 517 F.2d 92 (5th Cir.), cert. denied, 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975). That panel disapproved the district court's 1971 plan, which sought to eliminate the vestiges of a dual school system in the DISD, and remanded the case for the formulation of a more effective student assignment plan.

Since 1971, substantial changes have occurred in the DISD. The residential patterns of Dallas have shifted; many areas are now naturally integrated. What was formerly a majority Anglo system has become a predominantly minority one, although the population of the city of Dallas remains majority Anglo. 6 As the district court recognized in fashioning the plan now before us, there may be special considerations involved in devising a school desegregation plan in an urban area with a predominantly minority enrollment that may justify the maintenance of some one-race schools. 412 F.Supp. at 1195-1199. See Calhoun v. Cook, 522 F.2d 717 (5th Cir.), rehearing denied, 525 F.2d 1203 (5th Cir. 1975) (discussing similar developments in Atlanta, Georgia).

In devising its plan, the district court considered numerous proposals to desegregate the school system. Plans were submitted by the original plaintiffs; the NAACP; the DISD; Dr. Joseph A. Hall, a court-appointed expert; and the Education Task Force of the Dallas Alliance, a triethnic group and amicus curiae in this suit. 7 After developing a voluminous record and holding hearings for over a month on the feasibility and effectiveness of these proposals, the district judge drew a comprehensive plan dealing, inter alia, with special programs, transportation, discipline, facilities, personnel, and an accountability system, as well as student assignments. 412 F.Supp. at 1195, 1212-21. We find it necessary to remand again the student assignment portion of the plan for further consideration. On remand, the district court should reconsider the other provisions of its plan in the light of the relief it ultimately orders. 8

The order under review calls for the creation of six subdistricts, generally reflecting the geographical sections of the DISD, for student assignment purposes. Four of these subdistricts, Southwest, Northwest, Northeast, and Southeast, have approximately the racial makeup, plus or minus five percent, of the DISD as a whole. The other two subdistricts each contain a predominant ethnic group. Seagoville, geographically isolated from the rest of the DISD, has an approximately eighty-two percent Anglo enrollment and is the only predominantly Anglo subdistrict. East Oak Cliff, bounded by the Trinity River bottom on one side and by Interstate 35 on the other, is approximately ninety-eight percent black.

The district court order provides for uniform grade configurations throughout the DISD: kindergarten through third grades (K-3) Early Childhood Education Centers, fourth through sixth grades (4-6) Intermediate Schools, seventh and eighth grades (7-8) Middle Schools, and ninth through twelfth grades (9-12) High Schools. 9 Wherever possible, present student assignments are retained in "naturally integrated" areas. Students in the K-3 Early Childhood Education Centers remain in their neighborhood schools. 10 In the areas that are not naturally integrated, students in grades 4-8, the Intermediate and Middle Schools, are assigned to centrally located schools. High school students are assigned to their traditional neighborhood schools.

Various programs to increase the desegregation of the DISD's schools are to be implemented. Majority-to-minority transfers are permitted at all grade levels. 11 Present magnet high schools and magnet comprehensive high schools 12 are to be maintained and new ones are to be established. The goal is the institution of magnet 9-12 schools throughout the DISD. 412 F.Supp. at 1205.

The DISD acknowledges that the creation of the all black East Oak Cliff subdistrict and the existence of a substantial number of one-race schools militate against the finding of a unitary school system. It contends, however, that this is the only feasible plan in light of natural boundaries and "white flight." The district court was instructed in the opinion of the prior panel to consider the techniques for desegregation approved by the Supreme Court in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). We cannot properly review any student assignment plan that leaves many schools in a system one race without specific findings by the district court as to the feasibility of these techniques. Davis v. East Baton Rouge Parish School Board, 570 F.2d 1260 (5th Cir. 1978). There are no adequate time-and-distance studies in the record in this case. Consequently, we have no means of determining whether the natural boundaries and traffic considerations preclude either the pairing and clustering of schools or the use of transportation to eliminate the large number of one-race schools still existing. See Mims v. Duval County School Board, 329 F.Supp. 123, 133-34 (M.D.Fla.) aff'd 447 F.2d 1330 (5th Cir. 1971).

Of particular concern are the high schools that are one race. Although students in the 4-8 grade configurations are transported within each subdistrict to centrally located schools to effect desegregation, the district court's order leaves high school students in the neighborhood schools....

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