# Kelly McNeal v. Tate County School District > Court of Appeals for the Fifth Circuit · June 7, 1972 · 460 F.2d 568 URL: https://www.frixlaw.com/law-library/cases/9458215 ## Case - **Full name:** Kelly McNEAL Et Al., Plaintiffs-Appellants, v. TATE COUNTY SCHOOL DISTRICT Et Al., Defendants-Appellees - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** June 7, 1972 - **Citations:** 460 F.2d 568 - **Precedential status:** Published - **Opinion:** Dissent by Gewin - **Judges:** Brown, Gewin, Morgan - **Cited by:** 13 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/9458215 ## Opinion text GEWIN, Circuit Judge (dissenting): Although nothing said in this dissent is intended to reflect unfavorably upon the sincerity and dedication of my brothers of the majority, nothing they have said in their opinion (the opinion) convinces me that the conclusion reached in this case is correct. Without finding that the trial court, sitting as a court of equity without a jury, made even one clearly erroneous finding of fact, almost totally ignoring the facts found, and relying on an unwarranted, illogical, unjust and unreasonable extrapolation of a case 1 not cited by any party to this litigation, the majority has reversed the judgment of the district court on the only issue presented for review. In addition, a totally different judgment has been rendered on the appellate level. It is indeed regrettable that such a decision should be imposed upon an outstanding district judge who is well known for his courage and expertise in the area of law here involved ; not to mention an innocent Board of Education in a small rural school system. From the statement of the issue to be decided to the final conclusion reached, the flavor and implications of the opinion are totally contrary to all of the facts found by the trial court, as the opinion silently concedes. Essentially the opinion concludes that [TJhe district court refused to invalidate the sale mainly on the grounds that there was no showing of illegality or bad faith by the school board in disposing of the property. Actually the district court did find that the School Board acted in good faith and lawfully in every respect, and that the consideration paid for the property was not inadequate. Quite to the contrary of the implications of the opinion, the court found and concluded as follows : It must be called to the attention of the parties that this action does not in *573 volve a sale of school property by a school board, after an integration action has been filed, nor does it involve an action where a school board has abandoned and sold school property based primarily upon a finding that the integration of the schools of the district will result in reduced attendance to the extent that the property will not be needed in the operation of the schools. Such situations must be dealt with in each individual case. Suffice to say such a situation does not exist in this action. (Emphasis added) The district court further found the following additional and important facts, totally ignored in the opinion: a. The evidence is clear that the Thyatira School has- not been needed in the operation of schools in the School District since the reconstitution of the district more than fifteen years ago. (Emphasis added) b. Having reached the proper decision to close the Thyatira School, it necessarily follows that the Board was under the legal duty to declare the property to be surplus property, and provide for its sale according to law. (Emphasis added) Pertinent Facts Found By The District Court The district court found from ample, substantial and undisputed evidence in the record that since 1963-64 the school board had expended a much larger sum for the education of each student at the school here involved than had been spent in other schools operated by the district. In July 1969, the school board was given notice by proper officials that the per pupil expenditures at the school would have a bearing on the right of the district to continue to receive federal funds under the Title I program. For a period of seven years the number of students attending the school did not exceed 50 except for one year when 53 students attended. At the time of closing there were two teachers and only thirty-five students in attendance, approximately 25% of which were black. The court specifically found that the continued operation of the school was not economically or educationally feasible, that such condition had not come about as a result of integration, but that the closing was based on sound educational considerations. The court found and the proof conclusively demonstrated that the 6 acre tract of land, located in a rural section, had no commercial value and that the buildings located thereon “added little value, if any, to the value of the land comprising the school site.” With this factual background and without any apparent secrecy whatever, at a regular meeting on November 3, 1969 the school board adopted a resolution directing that the school in question be closed at the end of the 1969-70 school year and declaring its intention to treat the school site as surplus property. At its regular meeting on December 10, 1969 the school board adopted a resolution declaring that the property here involved was not needed in the operation of the schools in the district, and directed the secretary of the board to advertise for bids for the sale of the property. Pursuant to these resolutions the tract of land was advertised according to law and was sold to Steward, in accordance with his bid, on January 7,- 1970. At that time the Tate County Foundation, Inc. was not in existence. During this entire period of time neither the plaintiffs nor anyone else objected to the sale, they offered no bids and did not contest the decision of the school board to declare the property not needed and surplus pursuant to the requirement of the Title I program. Moreover, when this suit was first filed neither Steward nor his subsequent grantee (the Foundation) were made parties. This omission was raised in the answer of the school board and it was not until June 8, 1970 that the plaintiffs amended their complaint in order to join *574 Steward and his grantee. In the meantime, as the district court specifically found, the Foundation had expended approximately $20,000 on the property in addition to the purchase price and substantial free labor which was donated by those interested in the Foundation. 2 Although not specifically referred to by the district court, the record conclusively shows that at the time of trial only 134 pupils had sought enrollment in the Foundation school. A number of the students did not even come from the Tate County School District but came from other districts. The total number to be enrolled in the Foundation school (including those who came from outside the district) was only about 3% of the total enrollment of the entire district which serves approximately 4,000 students. Conclusion Stretching beyond reason the holding in Wright, the opinion now imposes upon school boards the duty to investigate how prospective purchasers and their grantees propose to usé property which is sold in accordance with law, but declines to say what type of investigation should be made. The following language is used in the opinion: “We need not state in detail exactly what type of inquiry must be made of prospective purchasers * * * ” To place such a burden on members of a board of education, who usually serve out of a sense of civic duty, in a small Mississippi rural school district is incomprehensible to me. The majority seems to conclude that the title to lands once used for schools may be forever tainted, and that somehow, there is raised by implication of law a covenant that will run with the land prohibiting its use for any type of private school endeavor. For the foregoing reasons I am unable to generate any taste whatever for the judgment set forth in the opinion in this case. It is difficult for me to believe that this court is possessed of so much goodness and wisdom that it can, in the circumstances and under the facts here presented, declare the judgment of a careful district judge null and void. There are simply too many impediments —legal, factual and equitable — involved in this case to permit my concurrence. . Wright v. City of Brighton, Alabama, 441 F.2d 447 (5th Cir. 1971). . The court found : In this connection the court must take note of the fact that the Foundation has invested substantial funds in the repair of the property since its acquisition. A largo part of the expenditures occurred before the defendant Steward and the Foundation were added as parties defendant to the action. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9458215. Public record. Not legal advice.