# Onesephor Broussard v. The Houston Independent School District

> Court of Appeals for the Fifth Circuit · May 30, 1968 · 395 F.2d 817

URL: https://www.frixlaw.com/law-library/cases/9453684

## Case

- **Full name:** Onesephor BROUSSARD Et Al., Appellants, v. the HOUSTON INDEPENDENT SCHOOL DISTRICT Et Al., Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 30, 1968
- **Citations:** 395 F.2d 817; 1968 U.S. App. LEXIS 6720
- **Precedential status:** Published
- **Opinion:** Dissent by Wisdom
- **Judges:** Rives, Wisdom, Connally
- **Cited by:** 93 later opinions in the Frix Law Library

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## Opinion text

WISDOM
(dissenting).
I respectfully dissent.
It seems scarcely possible that in the Fifth Circuit a school board in a great city could look a judge in the eye and say that in spending sixty million dollars for school buildings the board need not consider residential racial patterns as a relevant factor in the selection of school sites. The Houston School Board knows, everyone knows, that the location of schools is highly relevant to school segregation.
I can understand, though I can not accept, the Board’s explanation of its decision. The Board relied on the Briggs dictum: “The Constitution * * * does not require integration. It merely forbids discrimination.” Briggs v. Elliott, E.D.S.C.1955, 132 F.Supp. 776 . Many other school boards throughout the South have been willing victims of the Briggs word-magic. They embraced the chains that held them captive. The glitter of the rhetoric obscured the looseness of their bonds.
I doubt if many laymen understand the question-begging distinction between “desegregation” and “integration”. In the vernacular there is no distinction. But here, as in similar situations in other states, the lay board understood the effect of their lawyers’ reading of Briggs . As stated in the Board’s brief: “There is no affirmative duty on the School District to consider race in the selection of school sites”; that would be an affirmative act leading to integration. 1
In the years that first followed the School Desegregation cases, Brown v. Board of Education, 1954, 347 U.S. 483 , 74 S.Ct. 686 , apologists for token desegregation could rationalize the Delphic riddle Briggs found in Brown . 2 Briggs offered a middle way in a difficult transitionary period. And the lack of specific directions in the Supreme Court’s mandate in Brown along with a district court’s inherent equitable power and primary responsibility for tailoring decrees to individual cases seemingly gave inferior courts wide latitude in their handling of school desegregation plans. Later and slowly, by the case-by-ease development of the law, the Supreme Court put limits on the scope of an inferior court’s authority to bless token action to desegregate schools. 3
There is no ameliorating reason for the majority’s decision. It offends the law as it existed in this circuit at the time the case was argued on appeal. 4 It offends the law more egregiously now. 5
*823 I.
The broad question this case presents is whether the administrators of a public school system are under a duty to take affirmative action to desegregate the school district. The Board faced up to this issue. 6 The narrow question before the Court is whether, in a context necessarily involving a choice of alternatives, a school board should select sites tending to erase the effects of the dual system of legalized segregated schools or is free to select sites tending to maintain segregation (or token desegregation). The Board recognized the presence of this issue, but resolved it by determining that consideration of race would be an affirmative integrative act that need not be taken.
My brothers sweep the issues under the rug.
The Court does not discuss whether the Board was right or wrong to rest its actions on the lack of a duty to take any affirmative action that might lead to integration. The Court does not discuss the' Board’s deliberate decision to disregard the racial factors in school site selection. Instead, my brothers try to justify the Board’s action by finding a rational relationship between the sites selected and cei’tain nonracial factors, such as safety of access, the use of previously acquired property, and coordination with the City Planning Commission. 6a No one doubts the relevance of such criteria. But a relationship otherwise rational may be insufficient in itself to meet constitutional standards — if its effect is to freeze-in past discrimination. For example, a rational relationship exists between literacy or citizenship tests (fairly administered) and the right to vote. But we enjoin the use of such tests when they freeze into a voters’ registration system the effects of past discrimination. 7 Again, a rational relationship may exist between preservation of the peace and segregation of schools. That was Little Rock’s argument. The Supreme Court held that it was not enough. 8
The Negro plaintiffs do not charge the Board with bad faith. Nor do I. The Board acted on the advice of its lawyers ; the lawyers relied on Briggs and on decisions in this circuit which followed Briggs .
At most, however, Briggs addressed itself to a school board’s duty, not to its power. And the duty dealt with was the Board’s minimum, negative duty to the individual complainant, not its duty in administering a public school system to *824 take affirmative action to provide equal educational opportunities to all (Negro school children as a class) by eradicating the vestiges and effects of the dual system of segregated schools.
II.
For most school boards Briggs stood like Horatius at the bridge, repelling the invaders while the city fathers cut down the bridge behind him and fortified the city. However, early in 1966 this Court criticized Briggs . Singleton v. Jackson Municipal Separate School District, 5 Cir., 355 F.2d 865 . In December 1966, a month before this ease was argued on appeal, this Court repudiated Briggs . United States v. Jefferson County Bd. of Ed., 1966, 5 Cir., 372 F.2d 836 . The Court en banc, in March 1967, adopted the panel’s opinion and decree, and specifically overruled earlier decisions to the extent that they followed Briggs . We said:
The Court holds that boards and officials administering public schools in this circuit have the affirmative duty under the Fourteenth Amendment to bring about an integrated, unitary school system in which there are no Negro schools and no white schools— just schools. Expressions in our earlier opinions distinguishing between integration and desegregation must yield to this affirmative duty we now recognize. In fulfilling this duty it is not enough for school authorities to offer Negro children the opportunity to attend formerly all-white schools. The necessity of overcoming the effects of the dual school system in this circuit requires integration of faculties, facilities, and activities, as well as students. To the extent that earlier decisions of this Court (more in the language of the opinions, than in the effect of the holdings) conflict with this view, the decisions are overruled. 380 F.2d at 389.
This conclusion was an inevitable development. We had already required faculty integration in public schools. Obviously, faculty integration cannot be accomplished without affirmative action, affecting a school system as a whole, based on taking into account the racial composition of faculties. 9
With respect to site selection of schools, the decision of the majority in this case is flatly contrary to Jefferson. The Jefferson en bane decree provides:
NEW CONSTRUCTION
The defendants, to the extent consistent with the proper operation of the school system as a whole, shall locate any new school and substantially expand any existing schools with the objective of eradicating the vestiges of the dual system.
We explained this provision in the earlier opinion:
Here race is relevant, because the governmental purpose is to offer Negroes equal educational opportunities. The means to that end, such as disestablishing segregation among students, distributing the better teachers equitably, equalizing facilities, selecting appropriate locations for schools, and avoiding resegregation must necessarily be based on race. School officials have to know the racial composition of their school populátions and the racial distribution within the school district. The Courts and HEW cannot measure good faith or progress without taking race into account. 372 F.2d at 877 .
The majority’s decision on the Houston school construction program is also flatly contrary to a three-judge court’s decision on ninety-nine school systems in Alabama, a state with racial problems at least as difficult as those in Texas. In Lee v. Macon County Board of Education, M.D.Ala.1967, 267 F.Supp. 458 , a unanimous court ordered state officials *825 to withhold approval of sites for the construction or expansion of schools
if, judged in light of the capacity of existing facilities, the residence of the students, and the alternative sites available, the construction will not, to the extent consistent with the proper operation of the school system as a whole, further the disestablishment of state enforced or encouraged public school segregation and eliminate the effects of past state enforced or encouraged racial discrimination in the State’s public school system.
The court also enjoined further reliance upon surveys not conducted in accordance with the standards of this Court in the approval of school sites. 267 F.Supp. at 480-481 .
On the subject of school construction, these decisions do not stand alone. In 1962 a district court issued a decree enjoining the Jacksonville School Board from “Approving budgets, making funds available, approving employment contracts and construction programs, and approving policies, curricula and programs designed to perpetuate, maintain or support a school system operated on a racially segregated basis”. This Court approved the decree. Board of Public Instruction of Duval County, Fla. v. Braxton, 5 Cir. 1964, 326 F.2d 616 . We said: “The argument of appellants here is largely to the effect that no court heretofore has expressly required * * the planning of schools and finances to avoid racial operation of the schools. This argument * * * falls far wide of the mark.” 326 F.2d at 620 .
This Court has stood firmly behind Jefferson. 10 We have said, “No panel *826 of this Court * * * has the authority to permit deviation from those provisions of the Jefferson decree which deal with matters of substance and policy.” 11 In our most recent decision relating to new school construction, United States v. Board of Public Instruction of Polk County, Fla., 395 F.2d 66 [No. 25768, April 1968], Judge Tuttle, speaking for the Court, quoted with approval the provision of the Jefferson decree regarding new construction, and then pointed out:
The appellee contends that inasmuch as the planning for the school was made without reference to race, there was no conscious effort on the part of the Board to perpetuate the dual system. This does not meet the requirements of the court order. There is an affirmative duty, overriding all other considerations with respect to the locating of new schools, except where inconsistent with “proper operation of the school system as a whole” to seek means to eradicate the vestiges of the dual system. It is necessary to give consideration to the race of the students. It is clear from this record that neither the state board nor the appellee sought to carry out this affirmative obligation, before proceeding with the construction of this already planned school.
III.
Here the Board admittedly declined to consider racial residential patterns. 11a Instead, it chose the centers of Negro residential areas, present and projected, for many new schools. This building program was carried out in a school district where an illusory freedom of choice plan, one that does not comply with the Jefferson standards in many respects, has resulted only in token desegregation. 12 A few Negro children attend some white schools, many white chil *827 dren resegregate, and the great mass of Negro children in Houston continue to receive the inferior education that is indelibly a part of segregated schooling. 13
Houston’s “freedom of choice” plan was superimposed on existing dual attendance zones. The Superintendent of Schools testified that the various school boundary lines which now determine the assignment of children to schools “are the vestiges of when the schools did have a segregated system under law”; that these lines have been “maintained pretty much on the same basis since 1964”. The Board with no apologies, asserts in its brief, “In selecting school sites for any new schools in the Houston School District, segregation was not a factor”. The failure of the Houston’s freedom of choiee plan therefore was not a peripheral question but was the central fact the Board should have considered in selecting new school sites. The foreseeable effect of mere genuflecting toward freedom of choice while carrying out a new building program was to freeze existing school patterns. Old “Negro” schools are to continue as Negro schools and new Negro schools are being built for all-Negro student bodies. 14
The Negro plaintiffs have taken a moderate position. They did not ask for cross-town bussing. They modestly asked the Board to consider residential patterns as one of a number of relevant factors in the site selection of public schools. 15 The complaint asked only for an injunction against construction of *828 facilities “in such a manner as will promote and perpetuate segregation and/or substantially delay desegregation”.
IV.
When the majority of the Court in this case rejected the plaintiffs’ request for injunctive relief pending the appeal the Board’s building program became a fait accompli. By now therefore the Houston plan for continued token desegregation by a selective school site program is nearing completion. It is not too late however for the Board to survey the situation and to propose expedients to undo the effects of its building policy.
It is not too late to sound a note of caution to school boards in other cities which may adopt a large-scale school construction program. With deference, I suggest that such school boards bear in mind that the majority’s decision is irreconcilable with Jefferson, Lee v. Macon County Board of Education, and Braxton-, and that recent decisions fully support Jefferson, in general and specifically as to school construction. It is not too late to heed these decisions.
I remind all school boards in this circuit that the Houston Board relied on Briggs as its authority for declining to take affirmative action to overcome the effects of the dual system of de jure segregated schools. But Briggs has fallen. There is a bridge under construction, resting on the Constitution, connecting whites and Negroes and designed to lead the two races, starting with young children, to a harmonious, peaceful, civilized existence. That bridge is a plan for equal educational opportunities for all in an integrated, unitary public school system based on school administrators affirmatively finding ways to make the plan work.
Black nationalists and white racists to the contrary, school integration is relevant. It is an educational objective as well as a constitutional imperative.
SUPPLEMENTAL OPINION.
CONNALLY, District Judge.
While I consider the issues both of fact and of law presented by this record to have been fully discussed and clearly decided in the original opinion, the dissent of Judge Wisdom, constitutes an indictment of the defendant School Board and an accusation that the majority herein “flatly disregarded” the accepted law of this Circuit. 1 Hence I feel an additional word may be appropriate. The theme for the indictment of the defendant Board is that it is not sufficiently integration oriented, and the charge, contrary to the findings of the trial court, that what it has done looking toward desegregation has not been done in good faith. 2
It should be borne in mind that the freedom of choice plan, and the bona fides of its application, is at issue here, if at all, only in a peripheral sense. It is squarely in issue in an entirely separate action pending since 1956 in the District Court of the Southern District of Texas, where most of the problems attendant upon the desegregation of this largest school district in the south have been solved amicably, and where the solu *829 tions have in general had approval of this Court, 282 F.2d 95 (1960); Ross v. Dyer, 312 F.2d 191 (1963).
What is at issue here is whether this $59 million construction program, planned, financed, and begun long before the controversy giving rise to Jefferson had matured, and while that opinion, which ultimately became the law in this Circuit, lay dormant in the heart of its author, should be enjoined as contrary to Jeffer son. 3
Jefferson imposed a duty on school authorities “to the extent consistent with the proper operation of the school system as a whole” affirmatively to consider the effect which a proposed new location or expansion might have upon the question of integration; and to choose between possible alternatives that which would tend to promote integration of student bodies. This mandate is perhaps more clearly spelled out in United States v. Board of Public Instruction of Polk County, Florida, 395 F.2d 66 (5th Cir., April 18, 1968). Admittedly, the Houston school authorities did not affirmatively consider this factor, but followed the practice, then sanctioned both by law and custom, of selecting sites which would best serve the needs of all of the scholastics of the district. The Board’s good faith in seeking neither to attract nor to divert scholastics of either race to or from a particular school is found affirmatively by the trial court upon abundant evidence. The question then is whether a court of equity should enjoin a program of this magnitude, well under way, because the school authorities were not endowed with sufficient prescience to anticipate Jefferson by some two years. We would answer in the negative. This is required, we believe, by additional considerations not heretofore mentioned. The Houston School Board is not the only party interested in this litigation or who would be adversely affected by the injunction which the plaintiffs seek. There are hundreds of contractors and subcontractors, and thousands of laborers whose work would be disrupted if this project were halted. 4 The 230,000 scholastics need the improved facilities which are (or were) in the course of construction. Their interests would not be served by granting the injunction.
And what is the alternative ? The plaintiffs offer none. There is no suggestion that Tract A would be a better site than Tract B. There is no comparison of price, of accessibility, or of any other factor. The plaintiffs ask only for delay, so that someone may search for other sites which the plaintiffs might consider more suitable. Whether this would require six months or six years is not disclosed. Meanwhile, the district would be required to pay interest on its $59 million debt, and all of those whom it serves would be deprived of the new facilities. We do not feel that a court of equity should lend its hand to this result. Other construction programs will be begun, and other sites selected, since Jefferson has been written. They should, and no doubt will, be undertaken with its mandate in mind. It should not be given a retroactive effect unfairly to penalize this program undertaken in good faith and in full compliance with the law as it then existed.
After all, the granting of an injunction rests in the sound discretion of the Court to be exercised in accordance with equitable principles and in the light of all the facts and circumstances in the *830 case. 5 That is especially true here since the record shows that the constitutional rights of the students are otherwise protected by an adequate freedom of choice plan. In our opinion, far from abusing its discretion, the District Court acted properly under all of the facts and circumstances of this case.
. The Board’s brief states: “there is only one legal issue. That issue is whether or not the school district has this affirmative duty to integrate the races”.
. Briggs was one of the original School Desegregation cases.
. See, e. g. Cooper v. Aaron, 1958, 358 U.S. 1 , 78 S.Ct. 1401 , 3 L.Ed.2d 5 ; Bradley v. School Board of City of Richmond, 1965, 382 U.S. 103 , 86 S.Ct. 224 , 15 L.Ed.2d 187 ; Rogers v. Paul, 1965, 382 U.S. 198 , 86 S.Ct. 358 , 15 L.Ed.2d 265 .
. United States v. Jefferson County Board of Education, 5 Cir. 1966, 372 F.2d 847 , aff’d en banc, 1967, 380 F.2d 385 , cert. denied sub nom. Caddo Parish School *823 Board v. United States, 1967, 389 U.S. 840 , 88 S.Ct. 67 , 19 L.Ed.2d 103 ; Lee v. Macon County Board of Education, M.D.Ala. 1964, 231 F.Supp. 743 ; 1966, 253 F.Supp. 727 ; 1967, 267 F.Supp. 458 ; Braxton v. Board of Public Instruction of Duval County, M.D.Fla. 1962, 7 Race Rel.L.Rep. 675, aff’d 5 Cir. 1964, 326 F.2d 616 , cert. denied, 377 U.S. 924 , 84 S.Ct. 1223 , 12 L.Ed.2d 216 .
. See note 5 on page 823.
*823 5. Stell v. Board of Public Education for the City of Savannah and the County of Chatham, 5 Cir. 1967, 387 F.2d 486 ; Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1968, 393 F.2d 690 ; United States v. Board of Public Instruction of Polk County, Fla., 5 Cir. 1968, 395 F.2d 66 [No. 25768, April 18].
. See footnote 1.
. Many factors are relevant to the proper selection of school sites: safety, accessibility, economical use of city property, coordination with city planners, and so on. But as Judge Tuttle said in Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1966, 364 F.2d 896 , 901: “* * * there is a hollow sound to the superficially appealing statement that school areas are designed by observing safety factors, such as highways, railroads, streams, etc. No matter how many such barriers there may be, none of them is so grave as to prevent the white child whose ‘area’ school is Negro from crossing the barrier and enrolling in the nearest white school even though it be several intervening ‘areas’ away.”
. See United States v. State of Louisiana, E.D.La. 1963, 225 F.Supp. 353 , aff’d 380 U.S. 145 , 85 S.Ct. 817 , 13 L.Ed.2d 709 ; United States v. Mississippi, S.D.Miss. 1964, 229 F.Supp. 925 , rev’d 380 U.S. 128 , 85 S.Ct. 808 , 13 L.Ed.2d 717 .
. Cooper v. Aaron, 1958, 358 U.S. 1 , 78 S.Ct. 1401 , 3 L.Ed.2d 5 .
. See Bradley v. School Board of City of Richmond, 1965, 380 U.S. 103 , 86 S.Ct. 224 , 15 L.Ed.2d 187 ; Rogers v. Paul, 1965, 382 U.S. 198 , 86 S.Ct. 358 , 15 L.Ed.2d 265 .
. See Stell et al. v. Board of Public Education, et al., supra, page 492 of 387 F.2d. “[W]ith respect to provisions of Section VII of the Jefferson decree, dealing with new construction, [t]here is no basis for not requiring the provisions of that section to be a part of the order affecting the operation of the Dougherty County school system. Otherwise, the court may be faced in the future with a fait accompli after the board may have purchased land and entered into contracts for new schools without having complied with the requirements of this provision.”
March 12, 1968, in Davis v. Board of School Commissioners of Mobile, 5 Cir., 393 F.2d 690 this Court entered a decree containing the following provision:
CONSTRUCTION
To the extent consistent with the proper operation of the school system as a whole, the school board will, in locating and designing new schools, in expanding existing facilities, and in consolidating schools, do so with the object of eradicating past discrimination and of effecting desegregation. The school board will not fail to consolidate schools because desegregation would result.
Until such time as the Court approves a plan based on the survey conducted pursuant to section IV herein, construction shall be suspended for all planned building projects at which actual construction has not been commenced.
Leave to proceed with particular construction projects may be obtained prior to the completion of the survey upon a showing by the appellees to the Court, that particular building projects will not have the effect of perpetuating racial segregation.”
February 24, 1968, in Carr v. Montgomery County Board of Education, M.D.Ala., the Court found: “The evidence further reflects that the defendants have continued to construct new schools and expand some existing schools; certainly, there is nothing wrong with this except that the construction of the new schools with proposed limited capacities geared to the estimated white community needs and located in predominantly white neighborhoods and the expansion of the existing schools located in predominantly Negro neighborhoods violate both the spirit and the letter of the desegregation plan for the Montgomery County School System. Examples of this are the construction of the Jefferson Davis High School, the Peter Crump Elementary School and the Southlawn Elementary School — all in predominantly white neighborhoods — and the expansion of Haynes-ville Road School and the Carver High School, both in predominantly Negro neighborhoods. The location of these schools and their proposed capacities cause the effect of this construction and expansion to perpetuate the dual school system based upon race in the Montgomery County School System. * * * All of this means that the defendants have fail *826 ed to discharge the affirmative duty the law places upon them to eliminate the operation of a dual school system.” The Court’s order contains the provision: “The school board will obtain approval from the State Superintendent of Education prior to letting contracts for or proceeding with the construction of any new school or any additions to an existing school. The State Superintendent will, upon receipt of such proposals, take appropriate action on said proposals as required by the March 22, 1967, decree entered in Lee et al. v. Macon County Board of Education et al., 267 F.Supp. 458, 470-472, 480-481 .
. Gaines v. Dougherty County Board of Education, 5 Cir. 1968, 392 F.2d 669 .
. “If a school board is constitutionally forbidden to institute a system of racial segregation by the use of artificial boundary lines, it is likewise forbidden to perpetuate a system that has been so instituted. It would be stultifying to hold that a board may not move to undo arrangements artificially contrived to effect or maintain segregation, on the ground that this interference with the status quo would involve ‘consideration of race.’ When school authorities, recognizing the historic fact that existing conditions are based on the design to segregate the races, act to undo these illegal conditions — especially conditions that liave been judicially condemned — their effort is not to be frustrated on the ground that race is not a permissible consideration. This is not a ‘consideration of race’ which the Constitution discountenances. * * * there is no legally protected vested interest in segregation. If there were, then Brown v. Board of Education and the numerous decisions based on that case would be pointless. Courts will not say in one breath that public school systems may not practice segregation, and in the next that they do nothing to eliminate it.” Wanner v. County School Board of Arlington County, Va., 4 Cir. 1966, 357 F.2d 452, 454-455 .
. In a number of respects the Houston plan falls far short of the standards required by Jefferson. Assignments are made initially on the basis of race. The plan does not require all students to make an annual choice. The Board sent out only 26,000 letters or notice to parents in a district of 236,000 students; these were inexplicit and contained no choice forms. Bus routes “were set up * * * on a segregated basis” and the “present transportation policy or transportation of the routes in force now will continue”, as Dr. Westmoreland, Assistant Director for Transportation, testified. Some. Negro children are bussed 20 miles to seg-gregated schools, although there are white schools much closer to their homes. No notice of the plan is given to parents.
. Approximately 95 per cent of all of the Negro school children in Houston attend all-Negro schools. Two per cent attend integrated junior high schools. One per cent attend integrated senior high schools. As of the date of the trial, the assignment to secondary schools was based on the old dual racial boundaries.
. In Jefferson, 5 Cir. 1967, 372 F.2d at 876 , we said “Here school boards, utilizing the dual zoning system, assigned Negro teachers to Negro schools and selected Negro neighborhoods as suitable areas in which to locate Negro schools. Of course the concentration of Negroes increased in the neighborhood of the school. Cause and effect came together. In this circuit, therefore, the location of Negro schools with Negro faculties in Negro neighborhoods and white schools in white neighborhoods cannot be described as an unfortunate fortuity.” In Davis v. Board of School Commissioners of Mobile County, 5 Cir. 1966, 364 F.2d 896, 901 , Judge Tuttle, for the Court, observed: “When spoken of as a means to require Negro children to continue to attend a Negro school in the vicinity of their homes, it is spoken of as a ‘neighborhood’ school plan. When the plan permits a white child to leave his Negro ‘neighborhood’ to attend a white school in another ‘neighborhood’ it becomes apparent that the ‘neighborhood’ is something else again. As every member of this court knows, there are neighborhoods in the South and in every city in the South which contain both Negro and White people. So far as has come to the attention of this Court, no Board of Education has yet requested that every child be required to • attend his ‘neighborhood’ school if the neighborhood school is a Negro school. Every Board of Education has claimed the right to assign every white child to a school other than the neighborhood school under such circumstances. And yet, when it is suggested that Negro children in Negro neighborhoods be permitted to break out of the segregated pattern of their own race in order to avoid the ‘inherently unequal’ education of ‘separate educational facilities,’ the answer too often is that the children should attend their ‘neighborhood school.’ ”
Review of the record and Exhibits relative to Transportation, Pupil Assignment, the ‘choice plan’, and placement of new schools leaves little doubt as to the intent of the local district — it is clearly to perpetuate segregation at any cost. The neighborhood school concept is but another means toward that illegal end.
. The plaintiffs contend that Negro children living near white schools are bussed up to fourteen miles to Negro schools and that white children living near Negro schools are bussed to white schools. The Board counters that the Negro children may get off the busses to attend any white school along the way which they attend in accordance with the freedom of choice plan.
The plaintiffs divided the building-projects into three categories: (1) new schools and expanded facilities in areas of heavy concentration of Negroes (as to these the board acknowledged that the building program would result in con *828 tinued segregation for the foreseeable future); (2) projects, not necessarily planned for Negro residential areas, which will reinforce patterns of segregation; (3) projects having an uncertain effect on segregation. The plaintiffs asked for a committee of experts to study these projects to determine their effect on segregation.
. As announced in United States v. Jefferson County Board of Education, 380 F.2d 385 .
. For example, (1) “ . . . tlie Board’s unyielding policy, ... is transparently a dodge to maintain segregated schools.” (2) “Houston’s illusory freedom of choice plan.” (3) “A freedom of choice plan (such as Houston’s) is only a graceless genuflection toward the unitary integrated public school system the Constitution requires.”
No mention is made of the steps taken toward faculty integration, integration of the athletic program, of the bus system designed to facilitate the exercise of the freedom of choice plan, etc.
. City of Montgomery, Alabama v. Gilmore, 5th Cir. 1960, 277 P.2d 365 , 370; 43 O.J.S. Injunctions § 14; 28 Am.Jur., Injunctions § 35.
. The chronology is as follows:
May 24, 19G6 — present action filed in District Court;
July 13, 1966 — District Court opinion filed;
December 29, 1966 — first Jefferson opinion;
January 25, 1967 — present action submitted to this Court;
March 29, 1967 — en bane Jefferson opinion.
. It is interesting to note that not a ■word has heretofore been said as to whether plaintiffs were able or willing to post a bond to protect against damage if the injunction be issued wrongfully. The United States is not a party to this action.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453684. Public record. Not legal advice.