prohibiting Judge Gordon from ordering "year-to-year realignment to correct non-state action-caused divergencies from the racial guidelines”
How later courts described this case
- prohibiting Judge Gordon from ordering "year-to-year realignment to correct non-state action-caused divergencies from the racial guidelines”
Written by the judges who cited it.
The opinion
McCREE, Circuit Judge
(concurring in part and dissenting in part).
I concur in the majority opinion except with respect to its affirmance of the dismissal of the action against Anchorage Independent School District in No. 76-1414. I do not agree with its approval of the district court’s determination that “there is no evidence that the AISD boundaries were drawn in 1911 to include whites and to exclude blacks.”
Appellants argue that as a matter of (state) law a black child residing within the City of Anchorage (i. e., within the geographic boundaries of the district) would not have been considered as residing in the Anchorage white common graded school district. Instead, they would have been residents of the Jefferson County School District, which maintained both white and colored schools. Raley v. County Board of Ed., 224 Ky. 50 , 5 S.W.2d 484, 486 (1928), Com., etc., Webster County Bd. of Ed. v. Sebree Deposit Bank, 202 Ky. 589 , 260 S.W. 388 (1924). Accordingly, appellants assert that no black children “resided”-in the Anchorage School District, and that any black child living in Anchorage who may have applied for admission to its school would have been rejected, not because of his race per se, but because he did not (and legally could not) reside within the district.
Nothing in the parties’ stipulation is inconsistent with appellants’ contention that the Anchorage district “boundaries” were drawn in 1911 to exclude blacks not geographically, but by definition. The district was created de jure by state imposed segregation in violation of the Federal Constitution. If, as appellants contend, the district never lost its segregated character, the district court’s dismissal was improper. I cannot agree that the stipulated fact that at present the student body includes one black, one Vietnamese, and one “Oriental (Asian American)” demonstrates as a matter of state law that all vestiges of state imposed discrimination have been removed. Both the Louisville and Jefferson County school districts have within their student populations substantially larger percentages of members of formerly excluded racial groups than does the Anchorage district. Nevertheless, in addition to merely eliminating the racial designations of their schools, both Louisville and Jefferson County are required by law to remove all vestiges of unlawful segregation. Anchorage should not be required to do less. Accordingly, I would remand the case to the district court for a determination whether all vestiges of the district’s segregated existence have been removed.