Delores Ross, United States of America, Plaintiff-Intervenor-Appellant v. Robert Y. Eckels, Etc.

CLARK, Circuit Judge

(dissenting);

With deference to my brothers, I must dissent. The plan selected by the district court laid down a uniform rule requiring every student in the Houston Independent School District to attend the *1149 school closest to his home which had the physical capacity to accommodate him. I have no doubt this was and is the plan that held out the best chance to unify this school district. No one can dispute that with its majority to minority transfer rule and other complementing requirements it was a plan under which no child was effectively excluded from any school on account of race or color. Since abuse of discretion is this circuit’s test for the validity of a district court’s school plan, Harvest v. Bd. of Pub. Instruc. of Manatee Cty., Fla., 429 F.2d 414 (5th Cir. 1970), I believe we err when we substitute our judgment, based upon documents and maps, for that of the district court whose decision is based upon flesh and blood contact with the real people and actual problems of this district. See Carr v. Montgomery Cty. Bd. of Educ., 429 F.2d 382 (5th Cir. 1970).

Additionally, I would not reverse because the district court relied upon valid precedent still viable in this circuit, Ellis v. Bd. of Public Instruc. of Orange Cty., Fla., 423 F.2d 203 (5th Cir. 1970). The district court did not adopt the Orange County plan on the basis that it was some sort of talisman with universal therapeutic qualities for merging all school district student bodies. Rather, as the majority states, the trial court analyzed the general geographic and student and teacher racial compositions of the Orange County and Houston Districts and found them to be legally comparable. Yet, the majority opinion rejects the use of this plan for Houston while it in no way demonstrates an efficient legal distinction between the Houston and Orange County School Districts. Certainly the mere fact that Orange County denominated the requirement that a child attend the school closest to his home as a neighborhood school system, and the district court in the case sub judice labeled the same plan an equi-distant zoning plan, is not controlling. That is the difference between tweedledum and tweedledee, which is no difference at all. Why can Orange County still exist as the law of this circuit applicable to that county, to Tuscaloosa and Anniston, Alabama [see Lee v. Macon County, 429 F.2d 1218 (5th Cir. 1970), and to Fulton County, Georgia, a suburb of Atlanta [see Hightower v. West, 430 F.2d 552 (5th Cir. 1970) but not in Houston, Texas? I assert it is not, as the majority suggests, because of the continued existence of all-Negro or virtually all-Negro schools. The opinion in Orange County expressly states that it left three schools projected to have all-Negro student bodies and it intimated that other Negro students would be attending other virtually all-Negro schools. In Fulton County, High-tower stated it intended to leave one school all-Negro, one school 98% Negro and two other schools in excess of 87% Negro. See also Mannings v. Bd. of Public Inst. of Hillsborough Co., Fla., 427 F.2d 874 (5th Cir. 1970).

There is only one answer. It is rapidly becoming apparent that despite express disclaimers [See Singleton v. Jackson Municipal Separate School Dist., 426 F.2d 1364 (5th Cir. 1970) [Footnote 5], the special school case panels of this circuit are now out ahead of the requirements laid down by the Supreme Court and have adopted sub silento some unmentionable standard of numerical pupil racial balance to govern the affirmance or reversal of school case decisions. 1 For the good of the schools and pupils of this circuit, I for one do not understand why the “magic figures” must remain a mystery enshrouded in nebulous phrasing that says that the plan adopted is “ineffective” or “unacceptable”.

The true principle that underlies the reversal of the district court here is that the neighborhood school system ordered for Houston did not achieve that degree of racial balance some judges of this circuit have declared is “enough”. We do nothing but delude ourselves when we adopt such a premise. Like chasing the pot of gold at the end of the rain *1150 bow, this reasoning embarks us on a course without an end. Unless someone would be boldly foolish enough to assert that courts can deprive school district patrons of their freedom, then it follows as the night follows the day that the courts will never finish litigating such “numbers game” cases.

I cannot conceive of a case more dramatically illustrative of the injustice of this rule than that presented by the case at bar. As the majority shows, there are areas within the city limits of Houston that are not included within the boundaries of the school district. Is the equal protection clause of the Constitution too impotent to reach the all-white “cut-glass” set in Spring Branch and the predominantly Negro area in Northeast Houston? Indeed, why would a document as all-pervasive as our Constitution allow the imaginary boundary lines of Pasadena or Galena Park (or even the contiguous all-white Alief or Katy districts) to thwart racial balance if that balance be constitutionally required?

Of more ominous portent is the type of partial racial balancing the majority opinion actually effects. Approximately 36,000 students in the Houston, Texas system are Spanish surnamed Americans. They have been adjudicated to be statistically white. As the majority states, we know they live in the very areas required to be paired with all or predominantly Negro schools. I say it is mock justice when we “force” the numbers by pairing disadvantaged Negro students into schools with members of this equally disadvantaged ethnic group. See Cisneros v. Corpus Christi Indep. School Dist., D.C.S.D.Tex., No. 68-C-95 (1970). I would be greatly surprised if a single school teacher could be found in the entire Houston Independent School District who would testify that the educational needs of either of these groups is advanced by such pairings. We seem to have forgotten that the equal protection right enforced is a right to education, not statistical integration. Why, on this kind of a theory, we could end our problems by the simple expedient of requiring that in compiling statistics every student in every school be alternately labeled white and Negro! Then, you see, everything would come out 50-50 and could get our seal of approval once and for all.

My views have not changed from those expressed by the dissents filed by Judge Coleman and myself in Singleton v. Jackson Municipal Separate School Dist., 425 F.2d 1211 (5th Cir. En Banc 1970). We still haven’t given any affirmative help to school districts and trial courts. Surely the actual practical definition of a unitary school system should no longer be kept secret. Now is the time for this court to play “show and tell”, while we still have viable school systems left to which we may apply our definition.

It also bears repeating that this district is not to blame. The Houston Independent School District has been under the injunctive mandate of the federal courts for more than the past ten years and has never been shown to have violated our orders. Thus the fault to be fixed for any shortcomings of the district today squarely belongs to the federal courts and not the district, its staff or patrons.

The law in this field is entirely empirical. All must admit we are just beginning experimentations to find our way along an obscure path to the constitutional goal of a unitary school system — one in which no child shall be effectively excluded from any school on account of race or color. I predict that we shall soon discover in this as in other experimentation that a basic rule holds which requires ingredients and methods to be introduced singly, not in groups or bunches, lest the experiment continuously fail because one new departure can-celled out the benefits that came from another.

We should ever be mindful that the term “school case” is merely a fasciate for the collective bundle of separate rights belonging to the individual children, parents, teachers and related community lives and activities that compose *1151 the sheaf which is a school district. If we prove nothing else, we will prove that the courts are totally inadequate as an institution to deal with such numerous and complex interrelationships of rights on a comprehensive basis. We delude ourselves when we attempt to adjust the rights of hundreds of thousands of citizens by remote control. In any event, we ought to give those basic corrections we have already made, such as teacher racial balance, majority to minority transfer privileges, biracial committees and open housing and private employment discrimination decisions, a chance to function before we attempt to mandate student racial balancing.

Resignation to my fate as a dissenter cannot overcome my remorse for those whose rights our edicts trample in wholesale lots. I respectfully dissent.

. The most recent of these opinions are collated in Allen v. Bd. of Public Instruc. of Broward Cty., 432 F.2d 362 (5th Cir. 1970).