# Rebecca E. Henry, Plaintiffs-Appellants-Cross-Appellees v. The Clarksdale Municipal Separate School District, Defendants-Appellees-Cross-Appellants > Court of Appeals for the Fifth Circuit · October 5, 1970 · 433 F.2d 387 URL: https://www.frixlaw.com/law-library/cases/9456170 ## Case - **Full name:** Rebecca E. HENRY Et Al., Plaintiffs-Appellants-Cross-Appellees, v. the CLARKSDALE MUNICIPAL SEPARATE SCHOOL DISTRICT Et Al., Defendants-Appellees-Cross-Appellants - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** October 5, 1970 - **Citations:** 433 F.2d 387 - **Precedential status:** Published - **Opinion:** Dissent by Coleman - **Judges:** Clark, Wisdom, Coleman, Simpson - **Cited by:** 12 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9456170 ## How later opinions describe it (automated extraction) - finding immediate compliance with a desegregation order as to transportation, faculty, staff, extra-curricular activities, and facilities ## Opinion text COLEMAN, Circuit Judge (dissenting). I respectfully dissent. I feel that the decision of the majority is in direct conflict with the principles enunciated by Ellis v. Board of Public Instruction of Orange County, Florida, 5 Cir., 1970, 423 F.2d 203 [Judges Bell, Ainsworth, and Godbold]. As to the elementary grades at Clarksdale, the District Court entered an order which to the very last letter met the specifications of Orange. It was ordered that the elementary pupil should attend the school nearest his residence, regardless of zones and regardless of the present or previous racial enrollment of the school. It was further ordered that in case the capacity of the school should deny the attendance of any student, he should then attend the school next nearest his residence, regardless of any zone line, or present or previous racial enrollment of the school. The Court additionally ordered imposition of a majority to minority transfer policy, in which the transferring student was to be granted priority of space in the school to which he desired to transfer. This was a simon-pure Orange order. In Orange County, supra, the Fifth Circuit approved the Constitutionality of a neighborhood assignment system, where the student must attend the near-' est school, without exception and without variance, or, in the absence of available space, the student must attend the next nearest school in which space is available. The Fifth Circuit stated that the majority to minority transfer provision under the leadership of the bi-racial com *396 mittee would be a tool to alleviate the all-Negro schools which resulted from residential patterns, 423 F.2d 208 . In a county in which the Negro pupils constituted only 18% of the total pupil population, the Court approved the neighborhood plan and, in doing so, it left three all-Negro schools in the Orange County system. In rendering its decision in Orange, the Court did not say that the neighborhood school was Constitutional because Orange County contained a small Negro population or because Orange County was a big school district, with thousands of teachers and students. Obviously it could not have said so, because Constitutional principles applicable to one school district in the Fifth Circuit are bound to be equally applicable to any other school in that Circuit. If every child attends the school nearest his home and has a priority right to transfer to any other then he most certainly is not being denied the right to attend any school on account of race or color. Now, the majority opinion in the case sub judice seeks to excuse its failure to follow Orange County by citing Footnote 7 to that decision. What Footnote 7 really said was that the decision does not “preclude the employment of differing assignment methods in other school districts”. Of course not. That would have inescapably been true even if no footnote had been added. It would be amazing indeed if after writing a full dress opinion Judges Bell, Ainsworth, and Godbold would have simultaneously reversed themselves (and their decision) in a fifteen line footnote. I reject such an illogical notion. If a strict proximity neighborhood school system is Constitutional in Orange County, Florida, it is Constitutional in Clarksdale, Mississippi. The fact of the matter is that with different panels of this Court handling different cases and with no en banc consideration of the problem permitted since our session of last November, some school districts are being allowed to retain as many as a dozen all black schools, generally because of residential patterns. The cases are in the books. I recognize the necessity for this and I approve of it. What I object to is giving some districts the benefit of such consideration and denying it to others whose problems are even more acute. The plaintiffs in the Court below, so the record shows, attacked the Orange County decision as “an aberration”. This Court en banc has never said so, and the only way legally to over-rule Orange would be by an en banc decision. Here, however, the District Judge followed Orange to the last letter and for this he is to be reversed by two judges out of the fourteen on this Court. I shall request the Chief Judge to poll the Court on granting an en banc hearing in this case. It is public knowledge that an Orange County plan has been ordered by the District Court for the Southern District of Texas for the City of Houston, Texas, and that case is now on appeal to this Court. We may as well find out if the decision in Orange County became no more than a scrap of paper as soon as that county received the benefit of it. I make that statement because the majority opinion holds that it makes no difference about children of elementary age (white and black) being required to walk two miles to school when they formerly walked only a half mile, and neither are the hazards to be taken into account. I seriously doubt that such a harsh rule has been imposed upon any other school district in the Fifth Circuit. Here is what the District Court found about the hazards involved (and there is not a whisper that his findings are clearly erroneous): “The record abounds with evidence showing the presence of such barriers, obstacles, and handicaps as two mainline elevated railroad tracks, a large channel of the Sunflower River with limited bridge crossings, resulting under-passes and over-passes, through-highways, and other special traffic conditions involved in traversing *397 Clarksdale’s commercial and business center, with one contingent of younger children passing another contingent of younger children headed in opposite directions for the purpose of meeting their assignments at the paired grade schools. This is a far cry from conventional pairing of nearby schools of a rural school district previously served by a regular school transportation system (citing case). The overwhelming weight of the evidence in the case convinces this court that the instant pairing plan would produce great hardships, if not danger, to many school children from a purely physical standpoint, not to mention the undue burden it would cast upon school patrons” (typewritten memordandum opinion of the District Judge, pages 12 and 13). It must be remembered that the children about to be subjected to these hazards are both black and white. It must be further remembered that any black child wishing of his own volition to incur such hazards is given that right by the judgment of the District Court, with absolute priority on the needed space, which is more than Orange County ordered, but which has crept into some of our subsequent decisions. I must also point out that the conditions requiring the continuation of Booker T. Washington School are far more stringent than that existing in other places in the Circuit which were permitted to continue because there simply was no feasible method of desegregation. Various panels have left one school like that in Montgomery, Alabama, several in Fulton County, Georgia, several in Dade County, Florida, and a number, unknown to me, have not yet been disturbed in the City of Atlanta. Again, I am not complaining of what was done in these localities. It should have been done. I object to Clarksdale being denied similar treatment under what I am convinced are far more difficult circumstances. I must further point out that the judgment of the Court below totally integrated 43% of the Negro population of the Clarksdale system in grades 7 to 12 and that the elementary pupils who would choose, if they could, to go to the schools nearest their homes would nevertheless inevitably finish the last five years of their public school careers in a totally integrated situation — when they are old enough to reasonably meet the hazards of walking all over the City if their parents are unable to provide private transportation. Again, it is common knowledge that it is the Negro pupil who most often cannot afford the private transportation. Moreover, it is no answer to say that the District Court was bound inelastically to follow the terms of the former mandate in this case. The Fifth Circuit has uniformly held that as to cases sub judice the Courts must take into consideration supervening changes in case or statutory law. The cases are legion, and particularly in cases seeking to achieve unitary school systems. I fully realize that racially dual school systems must be made unitary. The sooner that day arrives, if it ever does in the welter of conflicting Court decisions even in our own Circuit, the better for all children who must depend on public schools for a chance in life. I might add that the sooner it occurs the better it will be for the domestic tranquility of this Country. My point is that the Fifth Circuit laid down one formula in Orange, but its use is not being uniformly permitted. The District Court, on the ground and more familiar with the facts than we shall ever be, held that the Orange method offered the best hope for Clarksdale. He did this in the face of objections from both the Clarksdale School Board and HEW. There presently exists no legal basis for a reversal. Moreover, if Orange had never taken its place in the judicial precedents, there would be no warrant for requiring, as here, that the hazards to little children should be of no consequence. *398 In the original Brown [Brown v. Board of Education of Topeka] cases, 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955) the Supreme Court stated: “School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts. “In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. “To that end, the courts may consider problems related to administration arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.” This approach was entirely sound and I have no knowledge that the Supreme Court has ever modified it. The District Judge has acted in accordance with these principles. He had a right to rely on our decision in the Orange County case. Under his judgment, the doors of every elementary school in Clarksdale are open to every child, regardless of race. Clarksdale is entitled to the same treatment accorded other school districts in this Circuit. The judgment of the District Court ought not to be reversed. Again, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456170. Public record. Not legal advice.