finding immediate compliance with a desegregation order as to transportation, faculty, staff, extra-curricular activities, and facilities
How later courts described this case
- finding immediate compliance with a desegregation order as to transportation, faculty, staff, extra-curricular activities, and facilities
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:
The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also DENIED.
For the reasons already stated in his original dissent, COLEMAN, Circuit Judge, dissents from the denial of a rehearing en banc.
CLARK, Circuit Judge
(dissenting):
I respectfully dissent from the Court’s action in refusing to grant in banc reconsideration of this case.
Rule 35 of the Federal Rules of Appellate Procedure governing in banc hearings provides that such rehearings ordinarily will not be ordered “ * * * except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.” My dissent is based upon the premise that this case falls within both of the stated exceptions in Rule 35.
First, there is no rational legal basis upon which this opinion can consistently stand in uniformity with other decisions of this Circuit. As Judge Coleman’s dissent points out, Clarksdale is legally indistinguishable from Ellis v. Bd. of Public Inst, of Orange County, Florida, 423 F.2d 203 (5th Cir. 1970). 1 This *399 case also violates every ordinary precedent of this Court, of the Supreme Court of the United States and Rule 52 of the Federal Rules of Civil Procedure defining the limited power of appellate courts to re-resolve fact issue decided by a district court.
Second, the decision we refuse to review is the result of processes, briefing, consideration and decision in this court premised on a basis that it is, in the words of the majority opinion, “ * * an extraordinary matter.” I agree — it is an extraordinary matter, and one of exceptional importance. It is more, much more, than one lawsuit. We are deciding on the separate educational future of more than 5,300 students. Our decisions affect the rights of the parents and relatives of each of them as well as the rights of several hundred teachers, staff and administrative personnel employed by the school system. It is hard to conceive of any case that could involve more important dimensions. Yet, under the manner in which it was decided, we haven’t permitted the parties' normal briefing time, and counsel have been denied oral argument. The three judges in this court who participated in the making of this decision probably never conferred in person. 2 I seriously doubt any of them, particularly the majority, would claim any personal intimacy with the physical structures in or the actual geographic makeup of the Clarksdale School District. Notwithstanding these circumstances, two judges of an appellate court override the deliberate judgment of a district judge and conclude:
* * * Concededly [the HEW Plan ordered into effect immediately] is not perfect, but its one paramount advantage outstrips and overcomes each of the criticisms leveled at it by the district judge: it accomplishes desegration of the Clarksdale Municipal Separate School District. As the only plan now extant even approaching this goal, its adoption for the present at least is a must.
The objections as to children being required to walk as much as two miles as opposed to an average of 0.5 miles heretofore, and of having to traverse natural or man-made barriers [rivers, railroads and highways] and the claim that a 2-2-2 grade division is somehow less desirable than a 1-6 division [long in use by the district] all fail. (Emphasis added by the Court.)
Here again our court misconceives the true end sought — it is not statistical integration of racial groups in school buildings but rather the protection of the equal right of all citizens to receive a viable public education. The problem is not to get the numbers “right”. That kind of a problem could be solved by any mathematician. Preserving an environment for education of all citizens is the hard part, and the part in which we are now meeting with such small success. 3
*400 Perhaps the most convincing way to demonstrate the merit of granting in banc rehearing in this case is to simply, briefly set out the fact context involved in the six matters in which we have already granted pending in banc rehearings:
(1) Whether an individual was properly awarded a money judgment against a corporation.
Household Goods Carrier Bureau vs. Terrell vs. Aero Mayflower Transit Co. Inc., No. 25,989.
(2) Whether an oil well driller may sue a German ship and its owner in Florida.
Zapata Off-Shore Co. vs. M/S Bremen and Unterweser Ruderi GMBH, No. 27,497.
(3) Whether a person who has pled guilty to bank robbery and been sentenced to twenty years in the federal penitentiary must now be retried because he will not let his privately hired lawyer say that he told him the length of the maximum prison term that could be imposed if he pled guilty.
U. S. v. Woodall, Nos. 28,352 and 28,353.
(4) Whether a white man can challenge his conviction on the basis of the exclusion of Negroes from the juries which considered his case.
Salisbury v. Grimes, No. 27,179.
(5) Whether a person who has confessed to making moonshine whiskey should have his conviction reversed because the officer who stopped him as he was headed toward the illicit still took paper sacks from him that contained corks for the empty bottles at the still.
U. S. v. Brookings, No. 27,067.
(6) Whether the racial and ethnic composition of local draft boards is subject to challenge.
No. 28,295, Cortez v. Local Board
No. 28,356, Lopez v. Local Board
No. 28,113, Sumrall v. Kidd No. 28,181 Evers v. Williams
No. 27,659, Smith v. Leach
This is not to assert that in banc consideration was improvidently granted in the cases listed above. I only state that if those cases are inbancworthy, a fortiori this cause merits the same treatment. It is past time for this largest of all the circuits to give face to face deliberation as a court to the multi-party, multi-faceted litigations we lump together in what we conveniently call school cases. I regret that we keep heaping “extraordinary” school case decisions on the district in this circuit without pausing to reflect upon the real efficacy of the ways used to meet the challenge these cases present.
. In addition to what Judge Coleman states I cannot agree with the majority’s view that Ellis decided that the neighborhood system permitted in Orange County repre *399 sented “ * * * the maximum that could be accomplished” by way of numerical racial integration for that system. Obviously the Court could have required total racial balance and there were available options no more drastic than required in Clarksdale to eliminate Orange County’s all black schools.
. I intend not the slightest intimation of judicial impropriety by making these observations. The panel strictly followed the, now ordinary, extraordinary pattern adopted by this Court to expedite all “school cases.”
. As I write these words (August 31, 1970), news comes that the highly-regarded progressive superintendent of the ■ State’s largest school system has found it physically necessary to resign less than two weeks before school was to start.
He left with these words:
With deep regret I have found it necessary to request the Board of Trustees to accept my resignation as Superintendent of the Jackson Public Schools.
As everyone is well aware the Jackson schools have been in a continuous series of litigation involving numerous court orders requiring the Superintendent to administer drastic changes. Professionally and personally I cannot continue as superintendent under the existing situation.
I regret that I cannot be involved in developing the outstanding school pro *400 gram that I am confident could exist in Jackson. I assumed the position of superintendent here to develop such a program. Unremitting disruption has prevented the accomplishment of that objective.
If we fail to get the poignant message of this last sentence, it just might become a part of the epitaph when courts are laid to rest with other institutions that have lost their relevance to society’s changing demands.