United States v. Indianola Municipal Separate Sch. Dist., 25655.

• Citation: 410 F.2d 626
• Decision Date: 25 July 1969
• Docket Number: No. 25655.,25655.
• Parties: UNITED STATES of America, Appellant, v. INDIANOLA MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Appellees. INDIANOLA MUNICIPAL SEPARATE SCHOOL DISTRICT, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

410 F.2d 626 (1969)

UNITED STATES of America, Appellant, v. INDIANOLA MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Appellees.

INDIANOLA MUNICIPAL SEPARATE SCHOOL DISTRICT, Appellants, v. UNITED STATES of America, Appellee.

No. 25655.

United States Court of Appeals Fifth Circuit.

April 11, 1969.

Rehearing and Rehearing Denied July 25, 1969.

H. M. Ray, Oxford, Miss., Stephen J. Pollak, Asst. Atty. Gen., Frank M. Dunbaugh, Dorothy Battle Rankin, Robert T. Moore, Attys., Dept. of Justice, Washington, D. C., for appellants.

Frank O. Crosthwait, Jr., Oscar B. Townsend, Indianola, Miss., Semmes Luckett, Clarksdale, Miss., for appellee.

Before DYER and SIMPSON, Circuit Judges, and CABOT, District Judge.

Rehearing and Rehearing En Banc Denied July 25, 1969.

SIMPSON, Circuit Judge:

The principal issue on this appeal is the adequacy of the school desegregation plan approved by the district court for the Indianola, Mississippi, Municipal Separate School District. Companion issues concern government and school board objections to the faculty desegregation aspects of the district court's decree.

The desegregation plan adopted by the Indianola School Board combines geographic zoning for pupils living within the corporate limits of Indianola and free choice for all students living outside the city limits but within the school board's jurisdiction. There are two geographic zones, each of which contains a high school and an elementary school.¹ The two zones are divided by an irregular east-west line drawn along a railroad track and a fairly wide bayou, Indian Bayou. (See map in appendix). At the time of the plan's adoption in 1965-1966, there were eight white students living in the attendance zone south of this line (hereinafter referred to as Zone I) and eleven Negro students living in the attendance zone north of this line (hereinafter referred to as Zone II). The record reflects that for the current school year there are no Negro children living in Zone II and no white children residing in Zone I. Students in the free-choice area chose to attend schools in which their race was predominant and this, combined with the residential pattern of the city, resulted in not one child in the Indianola School District receiving an integrated educational experience during the 1968-1969 school year.²

We state at the outset that the present plan of operation of the Indianola Municipal Separate School District is constitutionally defective. The Supreme Court's recent trilogy of cases³ demonstrates that "the burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now." (Original emphasis). Green v. School Board of New Kent County, 391 U.S. 430, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716, 724 (1968). A plan does not promise realistically to work now if it presently provides no desegregation whatever. Two of the four schools in Indianola are entirely Negro. The other two schools do not have one Negro student. The school board candidly admits that it expects little, if any, change in the status quo. Not only does this plan offer no prospect of working now, but it offers virtually no prospect of ever working.

The school board advances several nondiscriminatory reasons for its decision to implement the combined geographic-zoning, free-choice plan. As this Court has recently stated, however, these reasons cannot be accepted if the plan's implementation fails to result in substantial desegregation.

"If in a school district there are still all-Negro schools or only a small fraction of Negroes enrolled in white schools, or no substantial integration of faculties and school activities then, as a matter of law, the existing plan fails to meet constitutional standards as established in Green." (Emphasis added).

Adams v. Mathews, 5 Cir. 1968, 403 F.2d 181, 188. Despite what we have just said, we believe it appropriate to comment on some of the factors considered by the school board in adopting the plan. The board stressed, among other things, (1) the safety of the children, (2) proximity of residences to schools and (3) maximum utilization of existing facilities. Certainly, each of these is a relevant consideration for any plan which the board may hereafter adopt. However, none of these factors or even all combined are of the overriding importance of the one factor the Indianola School Board did not consider: effective promotion of desegregation. See Henry v. Clarksdale Municipal Separate School District, et al., 5 Cir. 1969, 409 F.2d 682 March 6, 1969. It is clear that drawing a zone line dividing the city into two racially identifiable sectors is not the most promising course of action open to this school board.

The Board's concern for the safety of children who would have to cross railroad tracks or a bayou in order to attend school is entitled to weight, but we find it unconvincing in the context of developing a desegregation plan appropriate for Indianola. Until 1965, when the school board took its first action to comply with the Brown⁴ decision of eleven years earlier, students of both races freely crossed these hazards in order to maintain the racial purity of Indianola's schools. Cf. Henry v. Clarksdale Municipal Separate School District, supra, 409 F.2d at n. 10, p. 688. In addition, uncontradicted testimony shows that no trains pass through the city at any time remotely close to when school activity would be in progress. Because of the location of the city's schools, some white students must cross busy U. S. Highway 82 in order to attend schools in Zone II. Those students are protected by assignment of city police as safety patrol during school hours. Some arrangement of this sort could be employed if the tracks and bayou prove to be more of a safety hazard than is shown in this record.

The record reveals that the southwest corner of Zone II is composed of white students who might attend schools in Zone I if the dividing line were continued along the railroad tracks instead of diverted to follow the bayou.⁵ Moreover, those white students exercising freedom of choice all chose to attend schools in Zone II regardless of their closeness to them. Thus, we do not see proximity of residence as a crucial factor.⁶

As for the maximum utilization of existing facilities, the record shows that the current plan provides no aid toward reaching that goal. The pupil to classroom and pupil to teacher ratios between the "Negro" schools and the "white" schools have only gradually been equalized since 1965-1966, and the equalization was not the result of this plan. Rather, portable classrooms were employed at Gentry High School and Carver Elementary School, and more Negro teachers were hired for these schools. Thus, the Board's plan did not always attain the nonracial goals for which it was selected.

We repeat the obvious. It is an affirmative duty of each school board in this circuit to abolish the vestiges of state-compelled segregation and to establish a unitary system which achieves substantial desegregation. United States v. Greenwood Municipal Separate School District et al., 5 Cir. 1969, 406 F.2d 1086 February 4, 1969; Anthony et al. v. Marshall County Board of Education, 5 Cir. 1969, 409 F.2d 1287 April 15, 1969. At the very least, this means that this school board has an obligation to see that schools in its district remain no longer all-Negro schools or all-white schools enrolling only an infinitesimal fraction of Negro students.⁷

There are many alternatives for the school board.⁸ It may decide to retain the basic idea of geographic zoning. If so, zone lines could be drawn north to south so as to promote greater desegregation. A modification of the present line could be adopted so as to closely follow the railroad tracks and to extend beyond the corporate limits of Indianola.⁹ Whatever geographic zones are contemplated, the school board must realize that geographic zoning is acceptable "only if it tends to disestablish rather than reinforce the dual system of segregated schools". United States v. Greenwood Municipal Separate School District, supra; Henry v. Clarksdale Municipal Separate School District, supra. Guidelines for the board have been established by this Court in Davis v. Board of School Commissioners of Mobile County, Ala., supra, note 7. There, we said that the school board must make surveys to determine the racial character of its residential areas and that zone lines must be drawn to promote desegregation rather than perpetuate segregation. Although we approved the use of such objective criteria as safety factors, we added this caveat: "* * * a conscious effort should be made to move boundary lines and change feeder patterns which tend to preserve segregation." 393 F.2d at 694. See also Board of Public Instruction of Duval County v. Braxton, supra, note 7.

We consider it important for this school district to include the incorporation of a majority to minority transfer provision into whatever plan is finally adopted. Consideration should be given to the creation of an educational park or the pairing of schools. While we do not undertake to decide what is a proper plan, we urge close consideration of a pairing plan. Communities as small as Indianola with only two elementary and two high schools are unusually well suited for such a plan. For example, grades one through four could be assigned to Lockard Elementary School, and grades five through eight, to Carver. Grades nine and ten could be assigned to Gentry High School, and grades eleven and twelve, to Indianola.

Both the government and the school board are dissatisfied with the trial court's ruling with respect to desegregation of faculties. We may quickly dispose of the school board's complaints. The school board asks nothing less than to be excused from compliance with this Court's holding in Jefferson. Needless to say, we have not knowingly permitted any school board to refuse to comply with...