U.S. v. Hinds County School Bd., s. 28030
| Decision Date | 21 September 1977 |
| Docket Number | 28042,Nos. 28030,s. 28030 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. HINDS COUNTY SCHOOL BOARD et al., Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. AMITE COUNTY SCHOOL DISTRICT et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jack Greenberg, Melvyn R. Levanthal, New York City, Fred L. Banks, Jr., Jackson, Miss., J. Stanley Pottinger, Asst. Atty. Gen., Civ. Rights Div., Dept. of Justice, Washington, D. C., Thomas M. Keeling, Jeremiah Glassman, Civ. Rights Div., Education Sect., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellant.
Thomas H. Watkins, Jackson, Miss., H. Bradford Miller, Liberty, Miss., for defendants-appellees.
Appeals from the United States District Court for the Southern District of Mississippi.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
Plaintiff, the United States of America, appeals from the district court's recommendation to this court that defendant, Amite County School District, be permitted to maintain a sex-segregated student assignment plan among the four schools which comprise the district. The recommendation of the district court was based on its findings that Amite County's assignment plan resulted from sound educational purposes as opposed to racially discriminatory objectives. While the appeal was pending in this court, Congress passed the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq. (EEOA), which prohibits states from denying equal educational opportunity on the basis of race, color, sex, or national origin. We ordered Amite County to show cause why the EEOA does not mandate discontinuance of student assignments on the basis of sex, and it has now complied with our order. We hold that the EEOA prohibits Amite County's present assignment plan, and we remand the case to the district court with directions to fashion an appropriate remedy as required by the EEOA.
The Amite County School District case is 1 of 30 school desegregation cases involving school districts in the Southern District of Mississippi which were consolidated in this court. United States v. Hinds County School Board, 423 F.2d 1264, 1266 (5th Cir. 1969). On November 7, 1969, a panel of this court ordered Amite County to implement a desegregation plan submitted by the Office of Education of the United States Department of Health, Education, and Welfare (HEW). Id. at 1267. Amite County moved to amend HEW's plan so that it would permit sex-segregated student assignments to four schools in its district. 1 On December 10, 1969, the panel approved Amite County's modified plan as an interim emergency measure to stabilize the education process in its school district for the remainder of the 1969-1970 school year. 2 In its order, the panel noted that the validity of the modified plan as a permanent measure depended upon the school district's motivations in developing it, specifically, whether racial discrimination was the motivation for the plan or it had its basis in educational purposes. The panel concluded that such a determination could best be made at a hearing conducted by the district court.
At the close of the 1969-1970 school year, Amite County petitioned the district court for a hearing and moved that its sex-segregated student assignment plan be continued. The district court conducted its hearing on June 24, 1970, at which Miss Annie Andrews, superintendent of Amite County School District for the previous 23 years, was the only witness. On July 14, 1970, the district court entered its findings of fact and recommendation, concluding that "the separation by sex plan stems from sound educational purposes as distinguished from racially discriminatory purposes." 3
On August 6, 1970, a panel of this court deferred ruling on the district court's findings and recommendation, pending receipt of October 15, 1970 and April 15, 1971 statistical reports from Amite County. The panel permitted it to continue to assign students for the 1970-1971 school year on the basis of sex. 4 Amite County continued to submit similar reports for each successive school term, and the sex-segregated student assignment plan was carried forward.
On December 30, 1974, the United States filed with this court a supplemental brief in which it argued that Amite County's sex-segregated assignment plan was proscribed by the Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 et seq., and that Amite County should be ordered to implement a desegregation plan that provides for a unitary school system which does not separate students on the basis of sex. On June 2, 1975, the court ordered Amite County to show cause why the EEOA did not mandate discontinuance of their sex-segregated assignment plan. Amite County briefed and submitted this issue to the court on June 30, 1975. At one point this court was advised that the United States would attempt to undertake settlement negotiations with Amite County. We have since been informed by counsel for both sides that these efforts were unsuccessful and that settlement negotiations are not taking place. We now proceed to the merits.
Although Congress did not adopt the EEOA until after this court had approved Amite County's temporary use of a sex-segregated assignment plan and the district court had entered its findings and recommendations, an appellate court must "apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Bradley v. School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). Nowhere does the EEOA provide or its legislative history suggest that it is not to be applied to cases pending at the time of its adoption. In determining whether its application will result in a manifest injustice, we must examine "(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights." Id. at 717, 94 S.Ct. at 2019.
Here the United States has instituted this action to ensure that Amite County properly discharges its constitutional and statutory obligations of maintaining a nondiscriminatory educational system, a matter of "great national concern" which must be decided under existing laws. Id. at 719, 94 S.Ct. at 2020, quoting United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49, 51 (1801). Amite County could not expect that it had a right to maintain a sex-segregated school system. When we permitted temporary use of its modified plan, we expressly noted that our order was "an interim emergency measure to stabilize the education process in this school district . . . (and) is not to be construed as a precedent except in the exigencies" which then confronted the school district. Nothing this court has done before or since may be construed as permanently approving this type of student assignment. 5 Because Amite County was fully cognizant that this court's approval of its student assignment plan was only temporary, our determination that its sex-segregated student assignment plan does not comply with the EEOA imposes "no increased burden" upon Amite County. See Bradley v. School Board, 416 U.S. at 720-721, 94 S.Ct. at 2020-21.
In adopting the EEOA, Congress declared that it is the policy of the United States that
(1) all children enrolled in public schools are entitled to equal educational opportunity without regard to race, color, sex, or national origin; and (2) the neighborhood is the appropriate basis for determining public schools assignments.
. . . In order to carry out this policy, it is the purpose of (the EEOA) to specify appropriate remedies for the orderly removal of the vestiges of the dual school system.
20 U.S.C. § 1701. This Congressional declaration of policy was based upon findings regarding the effects of maintaining a dual system and the implementation of desegregation plans to achieve a unitary school system, including a finding that "the maintenance of dual school systems in which students are assigned to schools solely on the basis of race, color, sex, or national origin denies to those students the equal protection of the laws guaranteed by the fourteenth amendment . . . ." Id. § 1702(a)(1). This declaration expressly goes beyond the rights guaranteed to school children under the Fourteenth Amendment prior to the EEOA's adoption and incorporates a judgment that a sex-segregated school district is a dual rather than a unitary school system and results in a similar if not equivalent injury to school children as would occur if a racially segregated school system were imposed. See generally Comment, The Constitutionality of Sex Separation in School Desegregation Plans, 37 U.Chi.L.Rev. 296, 315-16 (1970).
Amite County argues that the purpose of the EEOA is to return to the concept of neighborhood schools without retreating in protection of the constitutional rights of school children. It further urges that Congress did not intend to expand rights granted under the equal protection clause of the Fourteenth Amendment but merely restated the law with respect to school desegregation as it presently exists and that the EEOA adds nothing to the Fourteenth Amendment except the establishment of the priority to be accorded remedies selected to enforce those rights. See United States v. Texas Education Agency, 532 F.2d 380, 394 n. 18 (5th Cir.), vacated and remanded on other grounds, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1976) ( )
Amite County contends that the test we set forth in United States v. Georgia, 466 F.2d 197, 200 (5 Cir. 1972), retains...
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