United States v. Board of Education of City of Bessemer, 25809-25811.

Decision Date03 June 1968
Docket NumberNo. 25809-25811.,25809-25811.
PartiesUNITED STATES of America and Doris Elaine Brown, et al., Appellants, v. The BOARD OF EDUCATION OF the CITY OF BESSEMER et al., Appellees. UNITED STATES of America and Dwight Armstrong, et al., Appellants, v. BOARD OF EDUCATION OF the CITY OF BIRMINGHAM, JEFFERSON COUNTY, ALABAMA, et al., Appellees. UNITED STATES of America and Linda Stout, by her father and Next Friend, Blevin Stout, Appellants, v. JEFFERSON COUNTY BOARD OF EDUCATION et al., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Stephen J. Pollak, Asst. Atty. Gen., Macon L. Weaver, U. S. Atty., Frank M. Dunbaugh, Kenneth L. Johnson, Walter Gorman, Attys., Department of Justice, Washington, D. C., for the U. S. No. 25809: David H. Hood, Jr., Bessemer, Oscar W. Adams, Jr., Harvey M. Burg, Birmingham, Norman C. Amaker, Charles H. Jones, Jr., New York City, Macon L. Weaver, U. S. Atty., Birmingham, Nathan Lewin, Atty., Dept. of Justice, Washington, D. C., for appellants.

Gorden Madison, Asst. Atty. Gen., Montgomery, Reid B. Barnes, Birmingham, J. Howard McEniry, Jr., Bessemer, for appellees.

No. 25810: Macon L. Weaver, U. S. Atty., Birmingham, Ala., Charles H. Jones, Jr., New York City, Kenneth L. Johnson, Nathan Lewin, Attys., Dept. of Justice, Washington, D. C., for appellants.

Reid B. Barnes, Birmingham, Ala., for appellees.

No. 25811; Macon L. Weaver, U. S. Atty., Birmingham, Ala., Nathan Lewin, Atty., Dept. of Justice, Washington, D. C., Norman C. Amaker, Charles H. Jones, Jr., New York City, Harvey M. Burg, Oscar W. Adams, Jr., Birmingham, Ala., for appellants.

Maurice F. Bishop, Reid B. Barnes, Birmingham, Ala., for appellees.

Before BROWN, Chief Judge, DYER, Circuit Judge and GARZA, District Judge.

JOHN R. BROWN, Chief Judge:

The issue here is to determine what the School Boards1 are required to do in desegregating their respective faculties.2

In the spring of 1967 the Court below entered decrees against the School Boards in exact conformity with our model decree as set forth just shortly before in Jefferson,3 including the provisions for faculty integration.4

On the eve or just after the start of the 1967-68 school year, the United States as intervenor, dissatisfied with the progress (or lack of it) in faculty desegregation, filed motions for further relief and submitted a proposed decree in each case.5 After factual hearings the District Court denied relief and this Court expedited the appeals. We reverse and remand.

As figures speak and when they do courts listen, United States v. Jackson Oldsmobile, Inc., 5 Cir., 1967, 371 F.2d 808, 809 (concurring opinion); Brooks v. Beto, 5 Cir., 1966, 366 F.2d 1, 9 and cases cited n. 14, the stage setting of undisputed facts reveals that substantial segregation still exists in the faculties of these schools. The total number of teachers in the three systems is 5297, but of these only 47, or .89% teach in desegregated situations. of 3230 white teachers, only 9 or .28% teach with faculties which are predominantly Negro, and only 38 of 2067 Negro teachers, or 1.84% teach in faculties that are predominantly white.6

In terms of sheer numbers only a very, very little bit has been done. Whether this tiny numerical change really amounts to a great deal more or, in any event, considering shortness of time in the light of operational problems geared to a school year and the timing and content of the Jefferson decree (note 3 supra), whether this actual performance called for corrective relief by the trial court (or by us now) are the questions presented for determination.

In underlying detail there is little variance from one system to the other. The percentage of desegregating teachers runs from a low-low of .40% in Jefferson to a not-very-high of 1.37% in Birmingham (note 6 supra). By school — meaning a separate physical plant — only 21 of 222 schools, or less than 10%, have any faculty desegregation whatsoever.7

Why there has been no further progress is not hard to find. Indeed, it is not even concealed, nor was there any effort to gloss over it. The School Boards purposefully, not inadvertently, candidly took an identical approach: Only those teachers who volunteered to move to a school with a faculty where the majority of teachers were of a race different than their own were transferred. Very few volunteered, and no compulsion — or for that matter, persuasion — of any sort was exerted by the School Boards.8 This policy was given a retrospective judicial imprimatur by the Judge's denial of relief. With characteristic articulation he made it positive and clear.9 This, we conclude, was a major error — an error of law — which directly led the Judge to an erroneous approach concerning the nature and purpose of the motions and the real question then before the Court. His was a four-step analysis. First, he took note of Jefferson's goal of Circuit-wide uniformity10 and the right to seek modifications of the decree.11

Second, he found that "indisputably, it was established that for the 1967-68 school year defendants had not fully complied with the provisions of paragraph VIII of the decree, the heart of which is embodied in the one sentence: "Teachers, principals, and staff members shall be assigned to schools so that the faculty and staff is not composed exclusively of members of one race.'" Third, the Judge concluded that the "facts developed * * * were not intended to, and did not, disclose the existence of exceptional circumstances requiring modification of the decree." Fourth, and as the climax, casting it in terms of a contempt proceeding, he concluded that the "court is convinced that defendants have not contumaciously violated the terms of its decree. Efforts to comply therewith have been made in good faith and substantial transitional steps have been taken."

As this whole opinion reveals we agree with the Judge's finding (see step second, above) and equally with the parting shot of his opinion denying relief that "obedience to, not modification of, the clear and direct terms of the decree is required."

We think putting it in the mold analogous to a contempt proceeding is a mistake of more than formal, procedural consequences. It just puts emphasis on the wrong things, burdens on the wrong parties. At this very, very late date in the glacial movement toward school racial integration it should no longer be an issue of good faith. The question is and must always remain: Is the constitutional imperative being met? That duty is not on plaintiffs, nor on the government, nor on school children. It is squarely on the back of the State and here, the State's Agents, the School Boards. Next, by the nature of things, the Court itself has something more than the passive role of private litigation. It has the right — indeed it has the duty — in the face of facts showing little, if any, compliance to cry out in a juridically scriptural way to those on whom its orders pin the burden: "When, oh when? What is being done? What, exactly what are you going to do? Not what are your hopes?"12

These sort of factors bear on us as well. Thus it is pointless now to characterize accomplishments to date by colorful adjectives or to weigh retrospectively what ought to have been done but which, alas, has not been done and for that matter can now never be done. This would put into the balance competing forces. On the one side is, of course, the chronological factor that Jefferson itself, and more directly the Jefferson — compelled decrees in these cases13 came out close to the end of the school year and at a time by which much of the faculty selection — replacement operation was well under way. Time was, therefore, short. And much had to be done. Mostly because nothing had been done. Here comes into play the offsetting factor that Jefferson, while detailed and peremptory in its terms on those to whom it would directly apply, really did not herald anything new so far as the necessity of faculty integration was concerned. The handwriting was on the wall for all who ran to see, first in Price v. Denison Indep. School Dist. Board of Education, 5 Cir., 1965, 348 F.2d 1010, and almost simultaneously in Singleton v. Jackson Municipal Separate School Dist., 5 Cir., 1965, 348 F.2d 729. Eliminating all doubt was Bradley v. School Board of City of Richmond, Va. (Richmond), 1965, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed. 2d 187; and Rogers v. Paul, 1965, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265. And the moving finger having writ was soon writing everywhere.14

So the day was not merely near at hand. The day was here. Indeed, it had been here since yesterday, yea, the day before that. The initial panel decision in Jefferson, on December 29, 1966, and the slight modification en banc (March 29, 1967) merely publicized what those who looked could see.15

Unfortunately, the clock has run. It still ticks. The past with its demonstrated performance (or lack of it) cannot be eradicated. The question then is: What is now to be done — done (a) to achieve as soon as possible those things which ought to have been accomplished up to this time and (b) to finish the job?

We are requested to do both too much and too little. The school boards with a sincerity of counsel we do not question, urge us, in effect, to do nothing specific either in terms of target dates or racial percentage ratios, or both. The government, on the other hand, proposes that we direct the entry of a proposed sweeping, detailed decree which it frankly acknowledges adds to and extends Jefferson. We think neither alternative is wise.

First, we think it unwise and out of keeping with the declared goal (see note 10 supra) and subsequent consistent practice of Circuit-wide uniformity to tinker with the model decree. The Constitution guarantees equality. We must steel ourselves against the importunities to import inequality by judicial modifications to meet some supposed need of a locality. One immediate consequence...

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