affirming closure of “more modern” school where “of all the proposals offered,” its closure could “best be expected to achieve the mandated conversion to a unitary system”
How later courts described this case
- affirming closure of “more modern” school where “of all the proposals offered,” its closure could “best be expected to achieve the mandated conversion to a unitary system”
- in pre-unitary system, court focused on whether busing was unduly burdensome and whether there was an “equitable allocation of the burden”
Written by the judges who cited it.
The opinion
CLARK, Chief Judge,
dissenting:
I respectfully dissent. The mandate of this court’s prior panel, 646 F.2d 925 , controls this panel just as it did the district court. Although the majority starts its reasoning by quoting a crucial paragraph from *1231 that mandate, it has not applied its letter or spirit to the district court’s order on remand which is before us for review today.
Specifically, the prior mandate vacated the order closing the Lincoln Williams and Forest Hill schools and required the district court to: (1) give regard to neighborhood considerations for rural schools, 646 F.2d at 944; (2) take into consideration such equitable factors as “[t]he length and time of travel ... in light of the age of the children, and the risk to health and probable impingement on the educational process,” id. at 939; (3) only employ the “harsh remedy” of closing rural schools “if absolutely necessary to achieve the goal of a unitary system after all other reasonable alternatives have been explored;” id. at 940; (4) “explicitly state its justification for ordering a school closed” id. at 940; and (5) reexamine its closing of Lincoln Williams and Forest Hill schools “in light of the full range of mitigating equitable considerations” (id. at 941) because the district court’s findings that Lincoln Williams had a predominance of black pupils and that Le-compte Elementary was older than Forest Hill but was “much the better location for purposes of integration” formed an insufficient basis to sustain the closings, id. at 940.
On remand, the district court wrote a new, longer opinion in which it changed and added words but I cannot find in them even one change of any substance to show that court complied with these commands.
On this appeal the majority has imper-missibly substituted its present approval for the prior panel’s rejection of the same schools closing edict on the same basic district court findings and erroneous premises. The net result is that this court has now affirmed a district court order that failed to tailor its remedy to the constitutional wrong identified in this case. The consequences are that innocents suffer and the law is brought into disrepute. The judgment should have been vacated again and the cause remanded, this time with explicit directions to limit relief to an appropriate remedy.
Of course a court’s equitable powers to remedy past constitutional wrongs are very broad. Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 15 , 91 S.Ct. 1267, 1275-76 , 28 L.Ed.2d 554 (1971). Of course all reasonable methods to achieve this end are available. North Carolina State Bd. of Education v. Swann, 402 U.S. 43, 46 , 91 S.Ct. 1284, 1286 , 28 L.Ed.2d 586 (1971). These are basic premises of school desegregation law. The Supreme Court and this court have often held that courts pursuing this goal may bus children, reshuffle faculty, cluster, pair, rezone and close schools. But a court’s powers in this type of case are not unlimited. Rather, they are confined to proper objectives. In the case at bar, the court’s task was not, as it declared, to achieve an integrated student body in every school, or even to remedy every problem of racial imbalance that may exist within the school system. Swann, supra 402 U.S. at 24, 91 S.Ct. at 1280. Rather, it was limited to eradicating segregation cause by past school board practices. Ross v. Houston Independent School District, 699 F.2d 218, 227-28 (5th Cir.1983). In school desegregation cases the court’s unnatural role becomes that of a super school board and temporary school administrator. It is a role which must be played with circumspection and care for the damage which over-broad remedial bans do to children, parents and communities who have offended no one.
The existence of great power does not permit its fullest exercise in every case. Because the court has limited objectives and a limited role, the scope of the remedy it devises must be tailored to fit the nature and extent of the constitutional violation found. Hills v. Gautreaux, 425 U.S. 284, 293-94 , 96 S.Ct. 1538, 1544-45 , 47 L.Ed.2d 792 (1976). The prior panel mandate required the district court to reexamine that portion of its order closing Lincoln Williams and Forest Hill in light of the full range of mitigating equitable circumstances it described. It required the district court, not this appellate court, to explore all other reasonable alternatives before it reinstated the “harsh remedy” of “closing a facility built and maintained at the expense of local *1232 taxpayers.” Not a single one of the “full range of mitigating, equitable circumstances” (and there were many) required to be considered was discussed or distinguished or applied. The district court really did no more than put the wine of new words in the old skin of school closings because it saw no other remedy to integrate Lincoln Williams.
When the district court reordered the closing of the Forest Hill and Lincoln Williams schools, these two communities lost their only schools. Children from both communities must now be bussed many miles from their homes. Expert evidence placed in this record on remand established that closing a town’s only school, especially one located in a small settlement, traumatizes the whole town. The greatest costs are to the families that include school-aged children, but hurtful repercussions extend throughout the community.
Parents in both “burdened” communities, one predominately white, the other predominately black, asked the court to leave their schools open, at least for their youngest children. Their petitions were ignored. These children, ranging in age from kindergarten through early elementary grades, must rise early, board buses, drive past their community school houses and go into a distant town and then reverse the journey in the evenings. Some will spend two hours a day on the school bus. Their names are not recorded. Their family situations are not detailed. Their needs, their hopes, their rights are dashed without discussion. If a five-year-old gets sick or forgets her coat or her lunch and wants to contact her parents she must make a long distance telephone call to reach her home. It seems small solace for the majority to suggest that some such children may have high school-aged siblings who will be on the bus with them part of the way. Much more remarkable, I think, is the fact that the children, parents, and communities who are so damaged did not cause or contribute in any way to the conceived constitutional wrong the court sought to remedy. Indeed, the district court and the majority both state that the people of Forest Hill have been altogether law-abiding and free of guilt.
Why then have they been put to this grief? For integration, the district court said. It saw no other reasonable prospect to integrate Lincoln Williams because its prior order paring Lincoln Williams had been defeated by white flight. But the Cheneyville students and parents who now plead to keep their school did not leave it. Why must their plea to keep their school open go unheeded? At the opposite base of this triangle, the pleas of the Forest Hill students and parents who also want to keep their school were equally ignored. Why? Why must the “harsh remedy” be imposed on them without weighing the “full range of mitigating equitable considerations” they brought forward? “[T]o effect an equitable distribution of the burden” the majority says. I can see that the punishment inflicted on the citizens of Forest Hill is comparable to the punishment inflicted on Cheney-ville, but I cannot detect a spark of equity in heaping the coals of sorrow on the heads of either community. The record shows without contradiction that the Forest Hill area became predominantly white because of a change in the community’s economic-industrial conditions which had nothing to do with schools. Cf. Pasadena City Board of Education v. Spangler, 427 U.S. 424, 436 , 96 S.Ct. 2697, 2704-05 , 49 L.Ed.2d 599 (1967). Neither the Lincoln Williams nor the Forest Hill school was constructed or maintained to evade desegregation. The school board has never used either school for racial purposes. The punishment of these innocents fits no crime of their or the district’s making.
For eighteen years this school district has been under the injunctive edicts of federal courts. It has not violated one. The fault for any perceived shortcomings in the district, lies at the doorstep of the federal courts, not the school district, its staff or patrons. Moreover, courts delude no one but themselves when in the name of justice they make wholesale adjustments to the intimate, individual and differing rights of hundreds of citizens. If this latest edict proves nothing else, it will prove again that courts are a totally inadequate institution *1233 to resolve with broad injunctions the numerous, complex, interrelated rights which comprise a “school case.”
The district court accepted as its “principal purpose ... the adoption of a plan which achieves the greatest amount of integration.” This was wrong. Integration is not a constitutional command.' One race schools which are not the result of past segregation do not keep a school district from being unitary. Swann, supra, 402 U.S. at 25-26, 91 S.Ct. at 1280-81. This false premise led the district court to close Lincoln Williams to its patrons. As errors are prone to do, it, in turn, caused the further error of closing Forest Hill to bring misery company. The two wrongs do not make a right.
More’s the pity. Even accepting the district court’s erroneous premise of a duty to integrate, its plan for achieving theoretical integration was not the best remedy available. A less disruptive solution was identified by the parties. Under the school board’s third plan, children from predominantly black zones in the Lecompte areas could have been bussed to Forest Hill. This plan could have been supplemented in the manner suggested by a group of Cheney-ville citizens who proposed that the Le-compte elementary schools be closed. If this approach had been used, that community could have retained a seventh and eighth grade school and four-year high school for their own children as well as those from Cheneyville and Forest Hill. Children from predominantly white areas in the Lecompte region could have been bussed to Lincoln Williams. Instead of closing the only schools in two communities, just one of the three Lecompte area schools would have been closed. Carter Raymond and Le-compte High could have continued to serve the area. Instead of bussing children from two communities, only children from one area would have had to be bussed. As the court aptly observed, the road mileage between these communities is no greater in one direction than the other. Statistically, the desired racial mixture could have been achieved in both schools.
The assumption of the district court and the majority that there was no alternative to closing Lincoln Williams was erroneous. The threat of flight by white children to be bussed from Lecompte to Lincoln Williams does not justify rejection of this plan any more than the threat that pupils from Forest Hill won’t go to Lecompte Elementary or the threat that blacks from Cheneyville will not follow the court’s plan. Of course the court was not required to ignore a likelihood of pupil flight. It had happened before. In a free country it may happen again. A court’s school order can mandate county officials in the performance of their duties, it can map zone boundaries and it can fence in schools, but it cannot command a single student to go to a single school for a single day.
But just as United States v. Scotland Neck City Bd. of Education, 407 U.S. 484, 491 , 92 S.Ct. 2214, 2218 , 33 L.Ed.2d 75 (1972) establishes that flight cannot be accepted as a reason for achieving anything less than complete uprooting of the dual school system, it cannot be accepted as a reason for reaching past the wrong to be remedied when a less disruptive, equally effective plan is available. It cannot do so because a remedy that exceeds the wrong to be righted violates clear precedent of the Supreme Court and this court. It cannot do so here because the district court’s order disobeys the controlling mandate of the pri- or panel. The court did not demonstrate that its plan was more likely to be effective than the possible plan that would close only one of Lecompte’s schools. Indeed, the record indicates quite to the contrary.
In thirteen years on this court I have participated in the affirmance of a number of public school desegregation plans. Most have been, as most are, successful in theory only. I nevertheless remain readily obedient to my obligation to follow precedent. But that does not keep me from knowing what everyone knows — zones, pairs, clusters and bussing are workable remedies for school desegregation only in extreme cases. When the problem is reduced to dealing with people of good will who have done no *1234 wrong, maximum use of the neighborhood school is the key to assuring equal educational opportunity. That equality of opportunity is the constitutional lodestar. In some cases, precedent and prior school district actions will proscribe the maximum preservation of neighborhood schools. This is clearly not such a case. The prior panel established that the district court should have followed its mandate. So should we.