Wheeler v. Durham City Board of Education

Decision Date01 June 1965
Docket NumberNo. 9630.,9630.
Citation346 F.2d 768
PartiesWarren 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.
CourtU.S. Court of Appeals — Fourth Circuit

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 and J. H. Wheeler, Durham, 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 J. SPENCER BELL, Circuit Judges, sitting en banc.

BOREMAN, Circuit Judge.

For a third time these consolidated cases involving desegregation of the public schools of Durham, North Carolina, are here on appeal. The actions were begun in 1960. In July, 1961, the District Court found1 that the Durham City Board of Education (hereinafter "Board") operates a dual system of attendance areas based on race but refused to consider the case as a class action and entered no injunction, although directing the Board to reconsider the school placements of certain plaintiffs who were found to have exhausted all administrative remedies. Subsequently, in April, 1962, the District Court denied all relief and dismissed the case holding that the plaintiffs were not entitled to a general desegregation order for the school system.2 Plaintiffs appealed and this court reversed.3 This court condemned the continued use of dual attendance zones for initial assignments and the discriminatory procedures in connection with applications for transfer.

On remand, pursuant to this court's direction, the District Court entered an order on January 2, 1963, which required that the named plaintiffs be granted transfers as requested, enjoined certain discriminatory practices and provided that the order remain in effect until a satisfactory desegregation plan was presented and approved.

In April 1963, the Board proposed a desegregation plan to which the plaintiffs objected on numerous grounds. After a hearing, the lower court rejected the plan and ordered that the Board grant pupils free transfers, in September 1963, to desegregated schools upon request in grades one through nine. High school assignments remained as before during the 1963-64 term. The Board was directed to present a new plan for complete desegregation and the Board appealed but this court affirmed the District Court's order as "an appropriate interim decree."4

On or about April 28, 1964, the Board filed a new desegregation plan which contained lengthy and detailed provisions for pupil assignment. In summary, some of the basic features of the plan may be stated as follows:

(a) First grade pupils would be initially assigned in accord with an attendance area map adopted by the Board. By applying within fifteen days, these pupils might obtain transfers out of their attendance areas. Such transfers "shall be granted in the order received until the maximum capacity, per classroom shall be attained."
(b) Other elementary pupils would be assigned to the school they are now attending.
(c) Pupils assigned to elementary or junior high schools outside their attendance areas may request permission to attend the schools in their respective areas by applying for reassignment during a fifteen-day period. Requests shall be granted until capacity is reached.
(d) Pupils completing elementary school to be assigned to junior high school in accordance with a new attendance area map.
(e) Pupils completing junior high school to be assigned to high schools under a feeder system by which graduates of Brogden, Carr, and Holton will be assigned to Durham High School and graduates of Whitted and Shepard will be assigned to Hillside High School.
(f) Junior high school pupils would be assigned to the schools previously attended except that Whitted pupils living in the area of the new Shepard School would be assigned to Shepard.
(g) High school pupils are assigned to the school previously attended.
(h) Reassignment requests to be made within fifteen days after notification of initial assignment. Requests shall be granted in the order received and until class capacity is reached.

Plaintiffs objected to the plan as inadequate and incomplete on several grounds among which were the following:

The attendance area maps for initial assignments in elementary and junior high schools were drawn on a racial basis and were designed to segregate the races in the schools.
The feeder system by which graduates of the all-Negro junior high schools are assigned to an all-Negro high school continues established segregation.

The District Court held a full evidentiary hearing on July 9, 1964. At the court's suggestion the parties filed proposed findings of fact and conclusions of law and presented oral arguments. On August 3, 1964, the court entered an order indicating disapproval of the Board's plan and stated, in part:

"1. That the plan for desegregating the Durham City Schools, including the amendment thereto, is disapproved for the reason that the court is of the opinion that the school zone boundaries, with respect to elementary and junior high schools, in some instances have been drawn along racial residential lines, rather than along natural boundaries or the perimeters of compact areas surrounding the particular schools.
"2. That the Durham City Board of Education has made substantial progress toward desegregating the Durham City School System which has resulted in the integration of the one formerly all-white high school, all three of the formerly all-white junior high schools, and nine of the eleven formerly all-white elementary schools. The plan submitted for the 1964-65 school year provides for a further desegregation of the school system by the rearrangement of school attendance zones.5
"3. That with respect to the 1964-65 school year, all pupils in the Durham City School System shall be initially assigned in accordance with the plan submitted by the defendant Board on April 28, 1964, which plan is incorporated herein and made a part hereof by reference. Any pupil that has not already been assigned under that plan shall be assigned, and notice of the assignment given to the pupil and his parents or guardian, within five days from the date of this order."

The order further provided that not later than August 10, 1964, the Board should publish a notice in the daily Durham newspapers notifying the parents or guardians of all assigned pupils that the pupils have the absolute right, except as otherwise provided, to attend, during the 1964-65 school year, a school of their choice in the city system which teaches the grades to which the pupils have been assigned.

Thus, all pupils are to be initially assigned in accordance with the Board's plan; they are to be notified of their free choice to attend any school in the system but in the event of overcrowding the Board, with the approval of the court, can assign a child to the "next nearest predominantly white school" rather than to the school requested. The order is to remain in effect unless and until some other plan is presented to and approved by the court. If no other plan is presented and approved by the end of the 1964-65 school term, or by the end of a subsequent term, initial assignments are to again be made in accordance with the Board's plan and pupils shall have the same transfer rights as provided in the order.

From the testimony and the exhibits, it clearly appears that, in June 1964, there were several schools in the city system which were overcrowded, with an enrollment considerably in excess of capacity, while others were not filled to capacity. For example, the all-Negro Whitted Junior High then had an enrollment of more than 300 beyond its normal capacity of 1,320 although it was proposed to alleviate this condition to some extent by assigning to the new Shepard Junior High6 those pupils residing in the Shepard attendance area who had been enrolled in Whitted for the 1963-64 school year. The formerly all-white Durham High School, with a normal capacity of approximately 1,775, had an excess enrollment of approximately 26 and out of the total enrollment, only about 22 were Negroes. The Board proposed in its submitted plan that graduates of predominantly white Brogden, Carr, and Holton Junior High Schools should be assigned to Durham High School. The all-Negro Hillside High School had an enrollment of approximately 47 in excess of its normal capacity of 1,350. The plan provided that graduates of the predominantly Negro Whitted and Shepard Junior High Schools would be assigned to Hillside High. By this system Negro pupils in Negro junior high schools would be fed into the Negro high school and the overwhelming majority of the three predominantly white junior high schools would be fed into the high school where all the pupils were white except the relatively few Negroes who had been transferred there since the commencement of litigation. The plan further proposed that initial assignments would be made according to attendance area maps. The court determined that some school zone boundaries for elementary and junior high schools had been gerrymandered, that is, "in some instances the boundaries have been drawn along racial residence lines, rather than along natural boundaries or the perimeters of compact areas surrounding the particular school."

At the time of the last hearing below in this case, the Durham Public School System had about 15,400 pupils, including approximately 7,000 Negroes. During the 1963-64 school year, there were 19 elementary schools of which eight were all-Negro, two were all-white, and nine were predominantly white. There were four junior high schools, three of which were predominantly white, with comparatively few...

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