Opinion

Robert W. Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, Tennessee

  • 687 F.2d 814
  • 6 Educ. L. Rep. 493
  • 1982 U.S. App. LEXIS 17080
Court
Court of Appeals for the Sixth Circuit
Filed
Jul 27, 1982
Status
Published
Author
Celebrezze
On the bench
Edwards, Jones, Celebrezze
Cited by
14 cases
Authority
More cited than 25.3%

The opinion

CELEBREZZE, Circuit Judge,

concurring in part and dissenting in part.

I concur in the majority’s decision to affirm the educational components of the district court’s plan: the establishment of remediation programs, the creation of a magnet school at West End Junior High School, and the development of an Afro-American 'studies program. I disagree, however, with my distinguished colleagues and the portion of the decision that reverses the district court’s pupil assignment plans. After a careful reading of the record in this case, I believe that the Davidson County community, the board of education, and the district judge are making significant progress towards affording a constitutionally acceptable educational system and that this court should allow the local community and federal court to proceed with their innovations and programs. In my view, the district court did not make clearly erroneous findings of fact and did not abuse its discretion in forming its remedy.

I.

This appeal is part of a desegregation case which has spanned a generation and raises issues concerning the breadth of the district court’s discretion and the scope of this court’s review. A brief examination of the district court’s conclusions is, therefore, necessary.

In 1971, after sixteen years of litigation, the district court adopted a comprehensive desegregation plan which required an “ideal student ratio” of 15 to 35 percent black students in each school and ordered substantial additional busing for the 1971-72 academic year. This court affirmed the 1971 order, reasoning that the decision was within the discretion of the district court. Kelley v. Metropolitan County Board of Education, 463 F.2d 732 (6th Cir. 1972). The litigation continued intermittently through the 1970’s and, in 1979, the district court ordered the parties to reconsider the 1971 desegregation plan in light of the disparate busing burdens, the need to expand the geographic scope of the remedy, and changes in the racial composition of and distribution in the community.

*827 The district court held extensive hearings concerning the effectiveness of the 1971 remedy. The school board established a citizens’ advisory panel and a planning team which included outside consultants; after a series of public meetings, the board proposed a new desegregation plan. The plaintiffs responded with objections, recommendations, and suggestions for the district court. The district court heard expert testimony and considered various studies concerning test scores, transportation burdens, and white flight, as well as the social, economic, and educational costs of competing desegregation plans.

In evaluating the possible desegregation remedies, the district court made extensive findings of fact. The court found that the Nashville and Davidson County school system had experienced significant white flight under the 1971 busing order. 1 The court further found that white flight was expected to continue so that 25 to 30 percent of the county’s elementary school children would be in private schools by the middle or late 1980’s. It emphasized that the flight stemmed largely from the public’s perception that the system’s educational quality was poor. Second, the court found that although test scores for black and white pupils had improved under the 1971 plan, the gap between the scores of the two groups had remained constant. Third, the district court found that the school board’s proposed desegregation plan placed a disparate burden on black children, especially those in the early elementary grades, by requiring that black children be bused in numbers disproportionate to their share of the population. Fourth, the district court found that extensive busing plans would have substantial social, economic, and educational costs. 492 F.Supp. at 189-92; 479 F.Supp. at 122-23.

Based on these findings, the district court outlined specific guidelines for a new desegregation plan for the county. Initially, the court extended the geographic reach of the plan to include the entire county. 2 It ordered the school board to send children in grades K to 4 to neighborhood schools, maximizing the desegregation within this limitation. 3 It ordered that in grades 5 to 8, the objective should be a minimum presence of 15 percent of either race in each school. 4 In addition, the district court outlined various changes in curriculum, staff, and programs for the Nashville school system.

*828 II.

I believe that the majority opinion does not adequately address the district court’s findings of fact. With regard to factual questions in desegregation cases, the question on review is whether the findings of fact are clearly erroneous. Fed.R.Civ.P. 52(a). See Dayton Board of Education v. Brinkman, 443 U.S. 526 , 534 n.8, 99 S.Ct. 2971, 2977 , 61 L.Ed.2d 720 (1979) (Dayton II). This court may not reverse findings of fact unless it is left with the firm conviction that a mistake has been made. Alexander v. Youngstown Board of Education, 675 F.2d 787, 795-96 (6th Cir. 1982). See, e.g., Reed v. Rhodes, 607 F.2d 714, 717 (6th Cir. 1979), cert. denied, 445 U.S. 935 , 100 S.Ct. 1329 , 63 L.Ed.2d 770 (1980); Penick v. Columbus Board of Education, 583 F.2d 787, 789, 798 (6th Cir. 1978), aff’d, 443 U.S. 449 , 99 S.Ct. 2941 , 61 L.Ed.2d 666 (1979). This court may not deviate from that standard when it addresses factual findings with which it is vaguely dissatisfied. See Dayton II, 443 U.S. at 540, 99 S.Ct. at 2980.

The majority opinion does not subject the district court’s findings concerning disparate busing burdens on black children, loss of community support, heavy economic expenses, and significant educational costs under the 1971 plan to careful scrutiny to determine whether they are clearly erroneous. For example, the majority requires the district court to include children in grades K to 4 in its busing plan unless inclusion would “risk the health of the children or significantly impinge on the educational process.” Swann, 402 U.S. at 30-31, 91 S.Ct. at 1282-1283. The district court, however, did make findings concerning the educational effects of the remedy on young school children and expressly noted the Swann exception. 5 In addition, rather than evaluate the findings concerning white flight and its pertinence to the district court’s choice of remedy, see notes 1-2, supra, the majority simply rejects the notion that the threat of flight is a valid reason for failing to adopt any desegregation plan, a question not presented here. 6

As this court has been previously admonished by the Supreme Court:

[o]n appeal, the task of a court of appeals is defined with relative clarity; it is confined by law and precedent, just as are those of the district courts and of this *829 Court. If it concludes that the findings of the district court are clearly erroneous, it may set them aside under Fed.Rule Civ.Proc. 52(a). If it decides that the district court has misapprehended the law, it may accept that court’s findings of fact but reverse its judgment because of legal errors. Here, however, as we conceive the situation, the Court of Appeals did neither. It was vaguely dissatisfied with the limited character of the remedy which the district court had afforded plaintiffs, and proceeded to institute a far more sweeping one of its own, without in any way upsetting the district court’s findings of fact or reversing its conclusions of law. Dayton I, 433 U.S. at 417-18 [97 S.Ct. at 2774],

After carefully examining the record and extensive findings of fact in this case, especially those concerning population shifts, educational quality, transportation burdens, and social costs, I am not left with conviction that the district court’s factual findings are clearly erroneous.

III.

Furthermore, I believe that the majority has erred in its review of the district court’s desegregation remedy. When reviewing a district court’s desegregation remedy, we are limited to determining whether the district court abused its discretion. 7 See Milliken v. Bradley, 433 U.S. 267, 281 , 97 S.Ct. 2749, 2757 , 53 L.Ed.2d 745 (1977); Swann, 402 U.S. at 15, 25, 27, 30, 91 S.Ct. at 1275, 1280, 1281, 1282. The Supreme Court has identified the standard for review as the traditional abuse of discretion measure applied to equitable decrees: in a desegregation case, “the scope of a district court’s equitable power to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable decrees.” Swann, 402 U.S. at 15, 91 S.Ct. at 1275. This discretion comports with the policy of leaving the administration of desegregation plans with the district courts. 8 “Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these [desegregation] cases can best perform this judicial appraisal.” Brown II [v. Board of Education of Topeka], 349 U.S. 294 at 299-300 , 75 S.Ct. 753 at 755-756 , 99 L.Ed. 1083 .

I disagree with the majority’s view of the district court’s discretion. The majority implies that the district court is obligated to employ a racial ratio which matches the racial composition of the Davidson County school system. My reading of Swann is that the district court may adopt such a ratio as part of a desegregation remedy. The Constitution does not require the district court to use a ratio which mirrors the racial makeup of the community. Swann, 402 U.S. at 23-24, 91 S.Ct. at 1279-1280. Rather, the district court may use its discre *830 tion to determine the proper scope of a busing plan in a desegregation remedy. 9

The majority’s treatment of the pupil assignment component of the desegregation plan is not consistent with the limited scope of our review. The district court did use in 1971, as a “starting point,” the approximate racial ratio of the school district as an objective for its busing plan. The district court in 1980 reviewed the effectiveness of the 1971 order. After hearing and evaluating a broad range of evidence concerning white flight, test scores, transportation burdens, costs, education theory, and other factors, the district court changed the busing objective to a minimum presence of 15 percent of either race.

The majority opinion seems to recognize that there is no constitutional right to any particular racial balance in schools. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 434 , 96 S.Ct. 2697, 2703 , 49 L.Ed.2d 599 (1976) (no “substantive constitutional right to a particular degree of racial balance or mixing” exists); Swann, 402 U.S. at 24, 91 S.Ct. at 1280. Yet the majority’s requirement that the district court employ a ratio of 68 percent white and 32 percent black (plus or minus 15 percent) appears to be an attempt to establish such a balance. I fear that the precise racial mixture required by the majority on remand will, as a practical matter, create such a right. See Dayton Board of Education v. Brinkman, 433 U.S. 406, 418 , 97 S.Ct. 2766, 2774 , 53 L.Ed.2d 581 (1977) (Dayton D-

Moreover, I disagree with the majority’s treatment of the pupil assignment component for grades K to 4. The majority rejects the district court’s decision on the premise that it is required to desegregate all schools and all grades within the school system. I do not believe that the district court’s discretion is so narrow. The cases on which the majority relies for its proposition do not support its conclusion. 10 In Haycraft v. Board of Education of Jefferson County, 585 F.2d 803 (6th Cir. 1978), cert. denied, 443 U.S. 915 , 99 S.Ct. 3107 , 61 L.Ed.2d 879 (1979), this court reversed a district court which excluded first grade students from a busing plan. In Haycraft , the district court made no factual findings; instead, it concluded “as a matter of law” that first grade students without kindergarten experience would risk failure if they rode on a bus to school. Id. at 804 . Here, the district court made extensive factual findings, supported by the record, and grounded his decision on the risk that the entire desegregation remedy might fail in the long run if very young children were included in the busing program. 492 F.Supp. at 189-93. Lee v. Macon County Board of Education, 616 F.2d 805 (5th Cir. 1980), does not hold that every grade in a school system must be included in a desegregation remedy. In fact, the Fifth Circuit reasons that “[fjocusing on the target of a *831 unitary system rather than a systemwide racial balance, the court may devise a constitutional plan that temporarily or permanently leaves one or more racially identifiable elementary schools, or that omits some of the earlier grades from the busing programs.” Id. at 812 . See generally Swann, 402 U.S. at 24, 91 S.Ct. at 1280 (“[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole”).

Finally, the majority fails to address directly the issue of the effectiveness of the desegregation plan. 11 “The measure of any desegregation plan is its effectiveness.” Davis v. School Comm’rs of Mobile, 402 U.S. 33, 37 , 91 S.Ct. 1289, 1291 , 28 L.Ed.2d 577 (1971). District court decrees must ultimately be evaluated on the basis of their effectiveness. See Green v. County School Board, 391 U.S. 430, 439 , 88 S.Ct. 1689, 1694 , 20 L.Ed.2d 716 (1968) (desegregation remedies must be drawn “in light of the circumstances present and the options available”); Davis, 402 U.S. at 37 , 91 S.Ct. at 1291 (desegregation remedies must “tak[e] into account the practicalities of the situation”). An effective desegregation plan is one which will establish a unitary school system: “The obligation of the district courts ... is to assess the effectiveness of a proposed plan in achieving desegregation.” Green, 391 U.S. at 439 , 88 S.Ct. at 1694 . Many factors should be considered in determining whether a particular plan will be effective in establishing a unitary school system. These factors include population shifts, 12 transportation burdens, and the social, economic, and educational costs of competing desegregation plans. The precise weight to be accorded to each factor should be left to the district court’s discretion. In my opinion, the district court has properly identified and weighed these various factors and has selected a desegregation remedy which is likely to move Davidson County towards a unitary school system. 13 If lasting solutions for the problems of desegregation are to be found, we must allow the district courts to shape remedies which reflect the practical problems facing a school system and which have a realistic chance of achieving the goals of Brown I.

A careful reading of the entire record, and my experience with the previous appeals filed in this litigation, leads me to believe that Judge Wiseman has addressed a difficult problem and is, together with the local community, making a sincere effort to bring a degree of finality to this-longstanding issue. I believe that the district court’s plan complies with the requirements of Brown I and Swann. The district court’s *832 findings of fact are not clearly erroneous and it has not abused its broad discretion in fashioning the flexible and innovative plan presented to this court. Accordingly, I would affirm the judgment of the district court.

. The extent of white flight under the 1971 busing remedy has apparently been substantial. In June, 1971, 66,393 white students attended Metropolitan Nashville schools; in June, 1979, the number had dropped to 44,295. Based on several empirical studies, the district court concluded that the decline was, at least in part, the result of white flight and the resegregation from the 1971 busing order. 492 F.Supp. at 189 -90; 479 F.Supp. at 122-123.

. Because of the vast distances in Davidson County, the district court limited the 1971 busing remedy to the densely populated core of the County. After finding that this limitation was hindering the implementation of an effective desegregation remedy, the district court ordered the school board in 1979 to devise a new plan which extended the geographic scope of the busing plan. 479 F.Supp. at 122-23.

. In deciding that children in grades K to 4 should go to neighborhood schools, the district court noted that “an objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 30-31 , 91 S.Ct. 1267, 1282-1283 , 28 L.Ed.2d 554 (1971). The district court relied on its detailed findings of fact and concluded that neighborhood schools were necessary for children in grades K to 4.

. The district court observed that:

The selection of 15 percent is arbitrary, as is any other number which may be chosen. Preparation of students to live in a pluralistic society makes a biracial, intercultural experience highly desirable. However, it was not the intent of Brown and its progeny to require blacks always to be in the minority; nor should these precedents have been read to require assimilation or amalgamation. It is not undemocratic, nor does it violate equal protection of the laws to have a system that allows for recognition of and respect for differences in our society. A rigid adherence to racial ratios premised upon the social goal of assimilation, which in the process demeans, diminishes, or benignly neglects cultural and ethnic pride as well as differences, is not only constitutionally unrequired, but socially undesirable.

492 F.Supp. at 193.

. 492 F.Supp. at 189-92. See note 3, and accompanying text, supra.

. The threat of white flight may not, of course, be the basis for obstructing a desegregation remedy once a constitutional violation has been found. See, e.g., Monroe v. Board of Commissioners, 391 U.S. 450, 459, 88 S.Ct. 1700, 1704 , 20 L.Ed.2d 733 (1968). The concern for white flight in cases where a Swann remedy has been in operation for some time, as here, does not reflect an attempt to defeat desegregation efforts, but is considered so that the plan will be effective in the long run.

United States v. Scotland Neck City Board of Education, 407 U.S. 484, 491 , 92 S.Ct. 2214, 2218 , 33 L.Ed.2d 75 (1972), indicates that the risk of white flight does not permit a school board to avoid the responsibility of eliminating a dual school system. A district court, however, may consider such a risk in selecting the most desirable plan from among several constitutionally permissible desegregation remedies. In Stout v. Jefferson County Board of Education, 537 F.2d 800 (5th Cir. 1976), the Fifth Circuit, in examining the application of Scotland Neck, stated:

We have found no authority declaring that in choosing between various permissible plans a chancellor may not elect to minimize white boycotts. The teaching of Scotland Neck is that he may not refuse to adopt a permissible plan and elect or confect one which preserves a dual system because of such fears. The true issue, then, is whether the plan adopted by the court below was, given the circumstances, a permissible one.

Id. at 802. In this case, the district court evaluated the risk of white flight in determining the scope of its busing remedy, not in determining whether to afford a remedy at all. These are entirely separate questions. Other courts have held that the threat of flight is a proper consideration in framing a permissible desegregation plan. See Johnson v. Board of Education of Chicago, 604 F.2d 504, 517 (7th Cir. 1979), vacated for consolidation - U.S. -, 102 S.Ct. 2223 , 72 L.Ed.2d 668 (1982) (a school board may “consider the probability of white flight in formulating a remedial plan to prevent de facto segregation in public schools”); Parent Ass’n of Andrew Jackson High School v. Ambach, 598 F.2d 705 , 719 (2nd Cir. 1979); Higgins v. Board of Education of the City of Grand Rapids, 508 F.2d 779, 794 (6th Cir. 1974).

. The courts of appeals have held that the standard of review in a desegregation case is whether the district court abused its discretion. E.g., United States v. Board of School Comm’rs of Indianapolis, 637 F.2d 1101 , 1116 (7th Cir.), cert. denied, 449 U.S. 838 , 101 S.Ct. 114 , 66 L.Ed.2d 45 (1980); Evans v. Buchanan, 582 F.2d 750, 760 (3rd Cir. 1978) (en banc), cert. denied, 446 U.S. 923 , 100 S.Ct. 1862 , 64 L.Ed.2d 278 (1980); Stout v. Jefferson County Board of Education, 489 F.2d 97, 98 (5th Cir. 1974) (per curiam); Kelly v. Guinn, 456 F.2d 100, 110 (9th Cir. 1972), cert. denied, 413 U.S. 919 , 93 S.Ct. 3048 , 37 L.Ed.2d 1041 (1979). See also Arthur v. Nyquist, 636 F.2d 905, 906 (2nd Cir. 1981).

. The Eighth Circuit has expressly rejected the argument that the desegregation plan 'for the St. Louis school system must precisely reflect the racial composition of the district. The district court adopted a pupil assignment plan which considered schools' with black enrollment of 30 to 50 percent (plus or minus 15 percent) in a system which is 76 percent black. The appellate court found that such deviations are within the discretion of the district court. Liddell v. Board of Education of St. Louis, 667 F.2d 643, 649 (8th Cir. 1981).

. The majority’s reliance on Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978), cert. dismissed as improvidentiy granted, 444 U.S. 437 , 100 S.Ct. 716 , 62 L.Ed.2d 626 (1980), is misplaced. First, the circuit court did not hold that Swann requires all schools and all grades to be included in a pupil assignment program. It remanded the case because the district court, unlike the lower court in this case, failed to make adequate factual findings. Id. at 1014. Second, the Fifth Circuit has expressly ruled that a district court “may devise a constitutional plan that temporarily or permanently leaves one or more racially identifiable elementary schools, or that omits some of the earlier grades from the busing program.” Lee v. Macon County Board of Education, 616 F.2d 805, 812 (5th Cir. 1980). Third, the Supreme Court’s decision to dismiss certiorari as improvidentiy granted provides no indication of the Court’s view of the merits and gives the Estes decision no precedential power binding on this court. See Griffin v. United States, 336 U.S. 704, 716 , 69 S.Ct. 814, 819 , 93 L.Ed. 993 (1958); United States v. Carver, 260 U.S. 482, 490 , 43 S.Ct. 181, 182 , 67 L.Ed. 361 (1923).

. The Supreme Court’s opinion in Washington v. Seattle School District No. 1, - U.S. -, 102 S.Ct. 3187 , 73 L.Ed.2d 896 (1982), does not address the issues raised in this appeal. In Washington , the Court found that a state referendum which prohibits mandatory busing of school children for purposes of integration violates the equal protection clause of the fourteenth amendment. Washington concerns the structure of the state and local political process, rather than the breadth of a district court’s discretion in shaping a desegregation decree: “[i]t is the State’s race-conscious restructuring of its decisionmaking process that is impermissible.” - U.S. -, - n.29, 102 S.Ct. 3187 , 3203 n.29. The Supreme Court has recently reiterated the policy of encouraging flexibility in desegregation remedies and avoiding rigid approaches: “although ‘in some circumstances busing will be an appropriate and useful element in a desegregation plan,’ in other circumstances ‘its “costs,” both in financial and educational terms, will render its use inadvisable.’ ” Crawford v. Los Angeles Board of Education, - U.S. -, -, 102 S.Ct. 3211, 3220 , 72 L.Ed.2d 948 (1982), quoting Crawford v. Board of Education, 17 Cal.3d 280, 309 , 139 Cal.Rptr. 724 , 551 P.2d 28 (1976). See at - n.3, - n.15, 102 S.Ct. at 3214 n.3, 3218 n.15.

. See notes 1 and 6 and accompanying text, supra.

. The majority relies on Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978), cert. dismissed as improvidentiy granted, 444 U.S. 437 , 100 S.Ct. 716 , 62 L.Ed.2d 626 (1980), asserting that the dismissal of certiorari as improvidentiy granted is an indication that the Supreme Court supports the majority’s interpretation of Swann . Although the Court’s disposition allows no such inference to be drawn, see note 10, supra, Justice Powell’s dissent, joined by Justices Rehnquist and Stewart, is of interest. The dissent emphasizes the need for flexibility and practicality in reviewing desegregation decrees.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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