United States v. Greenwood Municipal Separate School Dist., 71-2773.

• Decision Date: 01 June 1972
• Docket Number: No. 71-2773.,71-2773.
• Citation: 460 F.2d 1205
• Parties: UNITED STATES of America, Plaintiff, v. GREENWOOD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants. Lilly RUSSELL et al., Plaintiffs-Appellants, v. GREENWOOD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 1205 (1972)

UNITED STATES of America, Plaintiff, v. GREENWOOD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants.

Lilly RUSSELL et al., Plaintiffs-Appellants, v. GREENWOOD MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants-Appellees.

No. 71-2773.

United States Court of Appeals, Fifth Circuit.

April 11, 1972.

Rehearing and Rehearing Denied June 1, 1972.

Alix H. Sanders, Oxford, Miss., David L. Norman, Asst. Atty. Gen., John Brittain, Ben Krage, John R. Scott, Brian K. Landsberg, Thomas M. Keeling, Attys., Dept. of Justice, Washington, D. C., H. M. Ray, U. S. Atty., Oxford, Miss., for plaintiffs-appellants.

Hardy Lott, Greenwood, Miss., for defendants-appellees.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 1, 1972.

PER CURIAM:

Once more we are called upon to deal with the desegregation problems of the Greenwood Municipal Separate School District.¹ Pursuant to our remand of June 29, 1971, 445 F.2d 388, 389, for the entry of an order requiring the implementation of a plan complying with former decisions of this Court and with the principles established in Swann v. Charlotte-Mecklenburg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, the district court ordered the school district to provide free bus transportation to students who elect, on an individual basis, to change schools under the majority-to-minority transfer provision² of the District's court-ordered desegregation plan. With respect to elementary students who, in accordance with the desegregation plan, were placed in noncontiguous school zones and required to attend school outside their neighborhoods, the lower court declined to require the school district to provide free transportation. The plaintiffs have appealed from the district court's refusal to order free bus transportation for the latter class of students.³

On this appeal, the Negro plaintiffs contend that the failure of the district court to order free transportation for those elementary students placed in non-contiguous zones will require black students transferred to the previously all-white Bankston School to walk two miles each way, across the main lines of the Illinois Central Railroad, through the central business district, across the Yazoo River, and along a main thoroughfare for one-half mile. The school district responds by arguing that the provision of free transportation is merely a matter of convenience for the black elementary students involved, that these black students have no constitutional claim to free transportation, that the school district has never furnished transportation to students who reside within the corporate limits of Greenwood, and that the school district is without funds to provide the requested transportation. The lower court, in addition to giving reasons for its decision essentially similar to those advanced by the school district on this appeal, observed that this court has previously required the provision of free transportation to students who elected to change schools under a majority-to-minority transfer plan but that we have never heretofore directed a school district to provide free transportation for children placed in noncontiguous zones who go to schools outside their neighborhoods.

In Swann v. Charlotte-Mecklenburg Board of Education, supra, the Supreme Court explicitly held that a school district which elects to utilize a majority-to-minority transfer plan as a desegregation tool must provide free transportation to each student making a transfer under the plan. 402 U.S. at 26, 27, 91 S.Ct. at 1281, 28 L.Ed.2d at 572, 573. In discussing the pairing and noncontiguous zoning techniques ordered by the trial court in Swann, the Supreme Court approved the trial court's direction to the educational authorities that bus transportation be used to implement these techniques:

"In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school." 402 U.S. at 30, 91 S. Ct. at 1283, 28 L.Ed.2d at 575.

The plaintiffs and the United States are not in agreement as to the appropriate disposition of this case. The plaintiffs urge us to direct the district court to order the school district to provide free bus transportation to the elementary students placed in noncontiguous attendance zones. The United States asks us to remand the cause to the district court with instructions "to permit ...