Vaughns v. Board of Education of Prince George's County

• Decision Date: 29 December 1972
• Docket Number: Civ. No. 72-325.
• Citation: 355 F. Supp. 1051
• Parties: Sylvester J. VAUGHNS, Jr., et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY et al.
• Court: U.S. District Court — District of Maryland

355 F. Supp. 1051

Sylvester J. VAUGHNS, Jr., et al. v. BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY et al.

Civ. No. 72-325.

United States District Court, D. Maryland.

December 29, 1972.

Richard V. Falcon, Kenneth L. Johnson and Gerald A. Smith, Baltimore, Md., for plaintiffs.

Paul M. Nussbaum, Mt. Rainier, Md., for defendants.

Emmett H. Nanna, Jr., Hyattsville, Md., for intervenors.

FRANK A. KAUFMAN, District Judge.

This opinion is the culmination of proceedings instituted in this Court on March 29, 1972 seeking the establishment of a constitutional system of public school education in Prince George's County, Maryland. In earlier opinions this Court has held that that system is presently in violation of the federal constitutional standards set forth by the Supreme Court of the United States in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), and Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (Swann). Defendants have at all times since the commencement of this case contended that the Prince George's school system complies with constitutional requirements and, in the alternative, that the system attained such compliance in the mid-1960's and that no "action by the school authorities"¹ has caused it to fall out of compliance since the mid-1960's. Accordingly, the defendants contend that there is presented in this case the question of

whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree. * * *²

In Swann (at 22-23 of 402 U.S., 91 S.Ct. 1267), the Chief Justice stated that it was not necessary for the Court to reach that question. Neither is it necessary in this case for this Court to reach that question, since the facts to which the parties stipulated—all of which facts are undisputedly set forth in the records of the School Board itself—reveal that the pre-Brown I segregated system was never effectively dismantled, either before or after 1956 when the School Board adopted a "freedom of choice" plan.³

On May 27, 1968, in Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), the Supreme Court held that a freedom of choice concept would be a valid remedial measure only if it was effective and only if it "promises realistically to work now". The present Prince George's County school population is approximately 160,000, of which about 22.4% is black. Since May 27, 1968, the School Board has opened 35 new schools—5 senior high, 10 junior high and 20 elementary. Of that 35, 24, or over 2/3 of the 35, opened with—and 23 of those 24 still maintain today—student populations more than 50% black or less than 10% black;⁴ and 5 of them opened with more than 90% black student population and 13 of them with more than 90% white population.⁵ That record has been compiled not only in the face of Green but after the United States Court of Appeals for the Fourth Circuit emphasized in Brewer v. School Board of City of Norfolk, Virginia, 397 F.2d 37, 42 (4th Cir. 1968),⁶ that a "school construction program is an appropriate matter for court consideration . . . ." In Swann (at 20, 21 of 402 U.S., 91 S.Ct. 1267), writing in 1971, Mr. Chief Justice Burger stressed, inter alia, the importance of new school construction in order to achieve and maintain a desegregated school system.

That factual and legal background and the facts reviewed in earlier opinions of this Court compel the conclusion that regardless of the reason why, the Prince George's County School Board has disregarded the mandates of the highest Court of our land. It was for that reason that this Court ordered on August 31, 1972, 355 F.Supp. 1038, and again on November 14, 1972 after the Fourth Circuit filed its opinion in this case on October 12, 1972, 468 F.2d 894, the presentation by defendants, on or before December 4, 1972, of plans embodying changeovers to a constitutional school system to become effective in whole or in part on January 29, 1973. While the School Board presented four alternative plans on December 4, 1972, one of them (denominated as Plan IV) is based upon the same freedom of choice principles which had failed in Prince George's County to produce a constitutional system in the past. Thus, under Green, that plan cannot pass constitutional muster. Plan I, the only one of the four plans submitted on December 4, 1972 which was supported with any detailed facts and analyses,⁷ was based upon a rather rigid application⁸ of a self-imposed mathematical standard calling for the reduction of the black student populations of all schools being more than 50% black to 35% or less black⁹ and leaving untouched 82 schools having white populations of more than 90%.¹⁰

On December 7, 1972, a further revised but still unconstitutional plan¹¹ was submitted, calling for 32 schools with a white student population of more than 90%. With time slipping rapidly toward January 29, 1973 and with no constitutional plan in sight, this Court, on December 7, 1972, with the consent of the parties and their counsel, instituted a series of lengthy chambers conferences with counsel and with staff experts of the Prince George's County School system. During those conferences, those staff officials demonstrated familiarity with the commands of the Supreme Court in Swann and also demonstrated the willingness and the ability under time pressure to produce a constitutional plan.¹² That plan has been accepted as "educationally sound" by defendants if its implementation is delayed in toto until September, 1973 and by plaintiffs as constitutionally sufficient.¹³ Plaintiffs seek implementation of the plan on January 29, 1973, except with regard to the twelfth grade, and otherwise ask only that this Court, in the exercise of its continuing jurisdiction,¹⁴ be ready to require further changes if school attendance shifts operate in the near future to resegregate any school.

The staff plan calls for a relatively small number of schools¹⁵ to remain more than 90% white but for none, except for the only two schools in the County which are to be "paired", to be more than 50% black. Most of those which are more than 90% white are expected to become a lesser percentage white as new school construction and expected demographic changes occur.¹⁶ The staff plan was prepared with full attention focused upon "the desirability of achieving constitutional standards with regard to desegregation and at the same time limiting the number of students who, by the impact of such standards, will

(1) be transferred to a school other than the one they would otherwise be attending;

(2) become school bus riders rather than walkers; or

(3) be caused to ride additional miles on school busses."¹⁷

In that regard, the following charts are revealing:

                                                           CHART I
                                                            Senior High
                                                                                                          Elementary
                Percentage of            Entire School     10th, 11th                                     Including
                  Students                  System           & 12th          10th & 11th      Junior High    Kindergarten
                Presently eligible         48.4%             73.3%          73.3%          57.8%             36.2%
                for busing
                Eligible for busing        56.4%             74.7%          74.7%          63.8%             47.2%
                under Plan I submitted
                12/4/72
                Eligible for busing        56.1%             74.5%          74.5%          62.4%             47.3%
                under staff Plan
                submitted 12/26/72
                

                                                          CHART II
                                                            Senior High
                                                                                                          Elementary
                Number of                 Entire School     10th, 11th                                     Including
                 Students                   System*      & 12th        10th & 11th   Junior High    Kindergarten
                Presently eligible          78,364            22,595          13,953         22,370          33,399
                for busing
                Eligible for busing         91,304            23,047          14,269         24,722          43,535
                under Plan I submitted
                12/4/72
                Eligible for busing         90,761            22,952          14,203         24,162          43,647
                under staff Plan
                submitted 12/26/72
                 

                                                          CHART III
                                                            Senior High
                                                                                                          Elementary
                Number of                 Entire School     10th, 11th                                     Including
                 Students                    System           & 12th        10th & 11th   Junior High    Kindergarten
                To be Transferred           34,103*       7,205           5,182         12,023          16,898**
                under Plan I submitted
                12/4/72
                To be Transferred           32,823***     5,561           4,037          8,051          20,735
                under staff Plan
                submitted 12/26/72
                

The use of the words "eligible for busing" is to be noted. There are apparently no figures which reflect the number of students eligible for busing who utilize private transportation—and thus no figures showing the number actually presently bused. However, the staff plan will make eligible for busing less than 8% more of the total population than are now so eligible.

This Court cannot sufficiently commend the efforts and the accomplishments of the School Board staff members who, as professionals, have completed the staff plan submitted on December 26, 1972. While that plan will require changes in the school attendance of a large number of students, it also provides a maximum busing time per trip for any student from the moment the student ascends a school...