Wheeler v. Durham City Board of Education

• Citation: 363 F.2d 738
• Decision Date: 05 July 1966
• Docket Number: No. 10460.,10460.
• Parties: Warren H. WHEELER, et al., and C. C. Spaulding, III, et al., Appellants, v. The DURHAM CITY BOARD OF EDUCATION, a body politic in Durham County, North Carolina, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

363 F.2d 738 (1966)

Warren H. WHEELER, et al., and C. C. Spaulding, III, et al., Appellants, v. The DURHAM CITY BOARD OF EDUCATION, a body politic in Durham County, North Carolina, Appellee.

No. 10460.

United States Court of Appeals Fourth Circuit.

Argued May 30, 1966.

Decided July 5, 1966.

James M. Nabrit, III, New York City (Jack Greenberg, Derrick A. Bell, Jr., New York City, Conrad O. Pearson, M. Hugh Thompson, William A. Marsh, Jr., F. B. McKissick, J. H. Wheeler, Durham, N. C., and J. LeVonne Chambers, Charlotte, N. C., on brief), for appellants.

Jerry L. Jarvis and Marshall T. Spears, Durham, N. C. (Spears, Spears & Barnes, and Watkins & Jarvis, Durham, N. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN and BELL, Circuit Judges, sitting en banc.

ALBERT V. BRYAN, Circuit Judge:

Further racial desegregation of the public schools in the City of Durham, North Carolina is sought by the appellants, Negro pupils and parents. Since 1960 they have continually pressed for rights and privileges assertedly accorded them by Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The history of the Durham litigation and the school board's plans for the non-racial assignment of pupils were precisely recounted and expounded by Judge Boreman for this court in Wheeler v. Durham City Board of Education, 346 F.2d 768 (1965), in which we disapproved the plan then under consideration. Not resolved there, on remand the present demand — assignment of teachers and other school personnel without reference to race — was pursued and is the subject of this appeal.

On July 16, 1965, promptly after our Wheeler decision, the District Court entered a consent order governing pupil assignment for the 1965-1966 session only. A week later the hearing on remand was set for September 23, 1965. The Court then also directed that the school board by September 9, 1965 submit a report of its proposals for faculty assignment.

The past teacher-policy of the Board and the latter's report of its future intentions, as filed on September 13, 1965, were summarized by the Court as follows:

"15. While the defendant Board has no policy requiring the employment of Negro teachers to teach at all Negro schools, or the employment of white teachers to teach at all white or predominantly white schools, the admitted practice of the Board has been to employ the best qualified available Negro teachers for schools attended by Negro pupils, and the best qualified white teachers for schools attended solely or predominantly by white pupils.

"16. On August 30, 1965, by a 4-2 vote, the defendant Board voted to continue its existing policy with respect to teacher assignments, but stated that it might, by majority vote, `make exceptions to any of its policies for valid and sound educational reasons.\' The Superintendent understands this policy to mean that he has no authority to assign a white teacher to a Negro school, or a Negro teacher to a white school, without first submitting the matter to the defendant Board to determine if it will make an exception to the general policy. * * *" (Accent added.)

As scheduled, a plenary evidential hearing was held September 23-24, 1965. It was devoted entirely to the issue of "the relationship between employment and assignment of teachers and other school personnel on a racially segregated basis and the adequacy of the plan for the enrollment and assignment of pupils." At its conclusion the District Court took the faculty question under advisement and directed the school board to submit a Constitutional pattern for future pupil assignment.

The Board's report, October 15, 1965, tendered a "Permanent Plan for Desegregation of the Durham City Schools", embracing "the unrestricted freedom of choice" design mentioned with approval in Wheeler, supra, 346 F.2d 768, 773. The appellants accepted the pupil assignment provision in itself, but found fault in the plan as a whole, primarily because it did not provide for the elimination of teacher allocations on the basis of race.

Having extended the appellants "full evidentiary hearings", as dictated by Bradley v. School Board, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965), the District Judge approved the "Permanent Plan", and also ruled "that the application of the plaintiffs for an order requiring the employment and assignment of teachers in the Durham City School System without regard to race should be * * * denied." From the final decree signed January 19, 1966 effectuating these views, the pupils and parents appeal. We reverse so much thereof as declined to grant the requested order.

Refusal of the order rested: (1) on the absence in the suit of any teachers as parties, actual or represented, the Court concluding that their omission rendered it without jurisdiction to adjudge their rights; and (2) also on the determination that the plaintiff pupils and parents had "totally failed to prove their allegation that there is any substantial relationship between the employment and assignment of teachers on a basis of race" and the plan proposed by the Board for the enrollment and assignment of pupils. The refusal, we think, was error.

The locus standi of pupils...