Appendix — Carr v. Montgomery County Board of Education
Supreme Court brief1975
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IN THE
ArLAM Carr, JR., et al.,
and
PENELOPE ANNE JENKINS, et all,
Petitioners,
vs.
Montcomery County Boarp or Epvcation, et al.
APPENDIX TO THE PETITION FOR A
WRIT OF CERTIORARI
JacK GREENBERG
James M. Nasnrit, III
Drew S. Days, III
CHARLES STEPHEN RaLstTon
Metvyn LeveENTHAL
10 Columbus Circle
New York, New York 10019
Sotomon S. Ssay, JR.
Frep T. Gray
Gray, Seay and Langford
352 Dexter Avenue
Montgomery, Alabama 36104
Howarp A. MAanpDELL
212 Washington Building
P.O. Box 1904
Montgomery, Alabama 36103
Attorneys for Petitioners
INDEX
| PAGE
| Opinion of District Court dated May 22, 1974 WW... la
Opinion of Court of Appeals dated April 11, 1975 .... 44a
Opinion of Court of Appeals dated June 27, 1975 ...... 78a
Opinion dated May 22, 1974
ArtaM Carr, Jr., et al.,
Plaintiffs,
Nationa, Epvucation Association, Inc., anp
PEeneLore ANNE JENKINS, et al.,
Plaintiff-Intervenors,
Untrep States or AMERICA,
Amicus CuRIA4gE,
Vv.
Montcomery County Boarp or Epvcation, et al.,
Defendants.
Civ. A. No. 2072-N.
United States District Court,
M. D. Alabama, N. D.
May 22, 1974.
OprInion
Jounson, Chief Judge.
This school desegregation case, having been previously
before this Court and the appellate courts upon several
occasions, is again submitted. The present «ubmission is
upon the pleadings, the evidence presented orally over a
period of several days, and the briefs and arguments of
the parties. Upon this submission this Court now makes
appropriate findings of fact and conclusions of law. As
authorized by Rule 52, Federal Rules of Civil Procedure,
these findings and conclusions are incorporated in this
memorandum opinion.
la
2a
Opinion dated May 22, 1974
Il. History or Case
This case was originally filed in May, 1964, when a group
of black children and their parents, with the United States
participating as amicus curiae, asked this Court to enjoin
the Montgomery County Board of Education from “con-
tinuing the policy, practice, custom, and usage of main-
taining and operating a compulsory biracial school
system.”’ Although ten years had passed since the
Supreme Court’s decision in Brown v. Board of Educa-
tion,’ the schools of Montgomery County, as was true in
many areas of the United States, were completely segre-
gated; one set of schools was operated exclusively for white
students and staffed entirely by white teachers, and one set
was operated for black students and staffed by black
teachers. Thus, on July 31, 1964, this Court declared that
the Montgomery schools were being operated in violation
of the law of the United States and enjoined defendants
from continuing to operate these schools on a racially
segregated basis.* But this Court fully “realized that
desegregation of the public schools cut across the social
fabric of this community and that there were both ad-
ministrative and other practical problems for the board to
cope with in order to comply with the law.”‘ Conse-
quently, the board was allowed to proceed with desegrega-
tion in a gradual manner. A freedom-of-choice plan pro-
* Carr v. Montgomery County Board of Education, 232 F.Supp.
705 (M.D.Ala. 1964). ‘
? 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).
* At the time this Court entered its order in July, 1964, there
were approximately 25,000 white students and 15,000 black stu-
dents attending the Montgomery County school system.
*289 F.Supp. at 657.
3a
Opinion dated May 22, 1974
posed by the board as the means for integrating four
grades was accepted.
Almost two years later, on March 22, 1966, this Court
ordered that the freedom-of-choice plan be implemented
in 10 of the 12 grades for the 1966-67 school year and that
the plan be fully operative throughout the system com-
mencing with the fall of 1967. In addition, this Court
decreed that:
Race or color will henceforth not be a factor in
hiring, assignment, reassignment, promotion, demo-
tion, or dismissal of teachers and other professional
staff, with the exception that assignments shall be
made in order to eliminate the effects of past dis-
crimination.‘
On August 17, 1967, and February 7, 1968, the United
States requested this Court to require defendants to take
further steps to disestablish the dual school system in
Montgomery County. Upon review of the record, this
Court found that the school board had failed to discharge
its affirmative duty to eliminate the dual school system.’
* Carr v. Montgomery County Board of Education, 253 F.Supp.
306 (M.D.Ala. 1966).
*Id. at 310. This decree originally required the process of de-
segregating the faculty and professional staffs to commence with
the school year 1966-67. But when the Fifth Circuit subsequently
allowed the Mobile County system until the school year 1967-68
to end its policy of hiring and assigning teachers and staff by
race, this Court, on its own motion, modified the March 22 order
to give the Montgomery board an additional year before requiring
desegregation of the system’s faculty and staff. Again, this Court
was cognizant of the administrative problems and practical rami-
fications of its order, and thus sought to give the board some addi-
tional time in which to meet its constitutional obligation to de-
segregate Montgomery’s dual school system.
"Carr v. Montgomery County Board of Education, 289 F.Supp.
647 (M.D.Ala. 1968).
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Opinion dated May 22, 1974
Under the freedom-of-choice plan, only 550 blacks were
attending traditionally white schools. No white children
were attending traditionally black schools. Of the ap-
proximately 550 black teachers and 815 white teachers,
only 32 were teaching in schools that were predominantly
of the opposite race.
On the basis of this evidence, it was found necessary to
establish specific requirements governing minimum amounts
of progress in future desegregation efforts. First, this
Court ordered that the board must move toward a goal
under which the ratio of white to black faculty members
in each school was substantially the same as it was through-
out the system.
Second, the school board was required to obtain ap-
proval from the State Superintendent of Education prior
to the construction of any new school or any additions to
existing schools.
Third, the board was ordered to eliminate race as a
factor in the assignment of students to school buses and
in its designation of bus routes. Finally, this Court
observed that the board’s freedom-of-choice plan was not
working and that unless the plan became more effective in
eliminating the dual school system, the Court would have
no alternative except to order some other plan.’
For the first time in this case, defendants appealed this
Court’s order.’ On appeal, the Fifth Circuit affirmed the
*In its supplemental order granting partial stay of the order
pending appeal, this Court observed that the board had attempted
to operate part of the Montgomery system under the freedom-of-
choice plan and part under the neighborhood school plan. Under
this scheme, the board sought to perpetuate a series of segregated
schools in exclusively white neighborhoods. Needless to say, this
Court found this to be an egregious violation of the board’s af-
firmative duty to establish a unitary school system.
* This fact is significant in that it underscores the efforts of the
Montgomery board to comply with the law as reflected by the
5a
Opinion dated May 22, 1974
March 2, 1968, order.° A petition for rehearing en banc
was denied by the Fifth Circuit. Finally, the Supreme
Court granted certiorari and also affirmed this Court’s
order.”
In the summer of 1969, plaintiffs and the United States
again filed motions asking this Court to require the board
to take additional steps to disestablish Montgomery’s dual
school system.
An evidentiary hearing was held on February 24, 1970,
to consider plans +: bmitted by the United States and the
board. The board’s plaa essentially adopted the basic
elements of the plan proposed by the government experts
mandates of this Court. Unlike many school boards that opposed
desegregation at every step, the Montgomery County Board of
Education recognized that it had an affirmative duty to desegre-
gate its school system. As the Fifth Circuit noted on appeal,
“good faith conduct on the part of any litigant in any court, es-
pecially in a court of equity and, more particularly, in the sensi-
tive area of desegregation, is a vital element for appropriate con-
sideration.” 400 F.2d 1, 2 (5th Cir. 1968).
Although the board contended that this Court’s order was un-
precedented in its imposition of “ratio” requirements, this Court
was firmly convinced that its order was “the minimum the appli-
eable law will allow under the peculiar facts and circumstances
presented and that each and every feature of the order and
injunction entered in this case on February 24, 1968, is not only
authorized but required by the applicable law.” 289 F.Supp. at
660 (emphasis added).
400 F.2d 1, 8 (5th Cir. 1968).
* 402 F.2d 782 (5th Cir. 1968).
** United States v. Montgomery County Board of Education,
395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969). The Supreme
Court concluded its opinion by noting that “it is good to be able
to decide a case with the feelings we have about this one. The
differences between the parties are exceedingly narrow.” Jd. at
236.
6a
Opinion dated May 22, 1974
with some minor changes and refinements.** Under the
board’s projections for the 1970-71 school year, this plan
provided that there would be no all-white schools in the
county and only one all-black school. Over plaintiffs’ objec-
tions that this plan did not go far enough in eliminating
the dual school system, this Court approved the board’s
plan with some modifications of its own.’* On appeal, the
Fifth Circuit affirmed this Court’s decision to implement
the board’s plan.** The Fifth Circuit added the following
cautionary note:
Once a school board has acted, however, the courts
have a solemn obligation to determine whether the
structure designed by the school board will house a
unitary school system. This obligation is unremitting,
and there can be no abdication, no matter how
temporary. Accordingly, any imprimatur of judicial
approval must be entered with the caveat that until
construction of a unitary system is completed, change
orders, when appropriate, will be issued to ensure that
the designed structure in fact accommodates a unitary
system and not a bifurcated one."
** This plan included proposals to close certain schools in the
system, to pair several rural schools, to adopt neighborhood zoning
of the schools within the city of Montgomery, and to transport
students from non-zoned rural areas to schools within the city.
In its order, this Court made clear that the law does not re-
quire racial balance or similar student ratios throughout a school
system. “Complete disestablishment of the dual school system to
the extent that it is based upon race is required.”
16 429 F.2d 382 (5th Cir. 1970). In addition, the Cireuit Court
directed that the majority-to-minority transfer provisions of the
plan be altered to reflect a change in the law since this Court’s
order of February 25, 1970.
16 429 F.2d at 386.
7a
Opinion dated May 22, 1974
Since this Court’s order of February 25, 1970, the board’s
plan has remained largely unaltered. The board has
worked with plaintiffs and the United States in an effort
to keep its plan updated, and changes in attendance zones
and school facilities have been proposed and approved by
this Court. But changes in the facts of this case—largely
changes in residential patterns—and recent clarifications
by the Fifth Circuit and the Supreme Court of the obliga-
tion of a school board to establish a unitary school
system now necessitate an overall evaluation of this sys-
tem’s compliance with the requirements of the law. Ac-
cordingly, on August 29, 1973, all parties were ordered to
submit their suggestions and proposals for the further
desegregation of the Montgomery system.
It is important at this point to emphasize two factors
that have characterized this continuing litigation. First,
this Court has often recognized the practical problems and
administrative difficulties in eliminating a dual school
system that had been closely tied to long-established social
patterns.’’ A successful school system demands support
from the community—both black and white. To facilitate
this support, this Court has attempted to avoid imposing
rigid or inflexible requirements on the board and, where
possible, has allowed the parties to work out their own
differences. In this way, this Court has constantly strived
for a workable solution to the problems encountered in
converting from a dual system to a “unitary system in
which racial discrimination would be eliminated root and
branch.”
Second, all the parties to this litigation share the same
goal: establishment of a “desegretated, unitary and nonra-
7 See, ¢.g., 289 F.Supp. at 657. See also note 6, supra.
8a
Opinion dated May 22, 1974
cial school system.” ** Every court that has reviewed the
record of this litigation has observed that the differences
between the parties have been unusually small.4® More-
over, the Montgomery County School Board has been
repeatedly complimented for its good faith efforts to
comply with the requirements of the law.” It is worthy of
pride that the ten-year history of this case has been
characterized throughout by cooperation from all the
participants.
II. An ANALysIs or THE PLans Bzrore THE Court
A number of desegregation proposals have been sub-
mitted for the Court’s consideration. In evaluating these
proposals, it is important to keep in mind that the real
controversy now presented centers around the operation
of the elementary schools.
On January 15, 1974, the defendant board submitted its
initial proposal, and the United States submitted a number
of detailed suggestions. On February 14, 1974, the United
** Brief for the board before the Supreme Court. See 395 U.S.
225, 236, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1968).
*° 395 U.S. at 236. See note 12, supra. 400 F.2d at 2; 429 F.2d
at 386-387.
*° This Court has often complimented the board on its perform-
ance of its constitutional obligation to desegregate the Montgom-
ery schools. See 400 F.2d at 3 n. 3. Appellate courts, upon the
review of this record, have similarly expressed their approval of
the board’s good faith efforts throughout these proceedings. See
395 U.S. at 230, 236; 400 F.2d at 2-3. An example of this ap-
proval by the Fifth Circuit: “If more district courts and more
school boards had been as sensitive as those here involved to the
requirements of the law, the path to the goal of school desegrega-
tion in this cireuit would have been infinitely smoother than it
had been.” Carr v. Montgomery County Board of Education, 429
F.2d 382 (5th Cir. 1970).
9a
Opinion dated May 22, 1974
States submitted a response to the defendants’ first pro-
posal, which incorporated additional desegregation sug-
gestions. On February 16, 1974, the plaintiffs submitted
their plan. On March 29, 1974, the defendants submitted
their second plan, which was a revision of their January 15
proposal. On April 1, 1974, the plaintiff-intervenors sub-
mitted their proposal. In addition, the United States pro-
posed a high school desegregation plan devised by au-
thorities at the Maxwell Air Force Base in February and
March, 1974. By letter of April 5, 1974, to the Court, the
United States withdrew this proposal. Finally, on May 8,
1974, the school board presented to the Court certain
modifications and adjustments to its March 29, 1974, plan.
A. Plaintiffs’ Plan
Plaintiffs’ proposed plan was devised by Dr. Gordon
Foster, Director of the University of Miami Title IV
Desegregation Center. The Foster plan at the senior and
junior high school levels in general starts with the existing
board proposal and seeks to achieve greater desegregation
by the rerouting of existing bus routes and the reassign-
ment of students to other schools which would require
considerable increase in transportation. On the high school
level, the Foster plan does not differ significantly from the
board’s plan. At the elementary level, through a combina-
tion of pairing of contiguous schools and clustering and
pairing of noncontiguous schools, the Foster plan proposes
to desegregate the schools within the system within the “15
percent” guidelines established by Dr. Foster. Dr. Foster
testified that contiguous pairing was used wherever pos-
sible to minimize transportation. However, because of the
degree of residential segregation in Montgomery, this was
10a
Opinion dated May 22, 1974
felt by Dr. Foster to be feasible in only three instances.
The pairing and clustering of elementary schools was the
means used by Dr. Foster to bring each elementary school
in each paired or clustered group, under his plan, within
one-tenth of one percent of the exact racial percentage in
each of the schools paired or clustered with two exceptions.
The exact racial balance varies by two-tenths of one per-
cent in these exceptions. The schools paired or clustered
ranged in grade structures one-two, one-three, one-four,
three-six, four-six, five-six, and 11 elementary schools under
the plaintiffs’ plan are grades one-six. The evidence re-
flects that the pairing or clustering of schools as proposed
by the plaintiffs’ plan would require extensive cross-city
busing from beyond the westernmost part of the city to
beyond the easternmost part of the city and the same is
true from east to west. Elementary children at all grade
levels, one through six, would be involved in this cross-
city busing. It is evident, and this Court finds, that
fracturization of grade structure and the pairing and
clustering of schools in the Montgomery school system, as
proposed by the plaintiffs, is for the sole purpose of at-
taining a strict racial balance in each elementary school
involved. i
Forty-three percent of the total number of elementary
students enrolled in the Montgomery school system would
be reassigned under the plaintiffs’ plan. The plan would
also necessitate the reassignment of a large number of
elementary teachers since the teachers within the system
should continue to teach at the grade levels where they
have attained the greatest competency. This Court is im-
pressed that the plaintiffs’ plan would be disruptive to the
educational processes and would place an excessive and
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Opinion dated May 22, 1974
unnecessarily heavy administrative burden on the school
system.
The plaintiffs’ plan for the junior high school level
adopts basically the defendant board’s plan with certain
significant changes. These changes consist of new cross-
city and cross-county busing. This busing is proposed by
the plaintiffs in order to bring the projected percentages
of black students enrolled in each junior high school within
the system within the 15 percent tolerance allowed under
Dr. Foster’s plan.** Dr. Foster’s proposal would require
a reassignment of 36 percent of the total junior high school
enrollment in the system.
Dr. Foster proposes a plan of desegregation at high
school level which requires noncontiguous and satellite
zoning to more racially balance each high school. To
accomplish this, 22 percent of all high school students would
be reassigned from schools they presently attend.
Following is a summary of newly assigned and addi-
tionally transported students under the plaintiffs’ plan:
Percentage of Total
Grade Level Number Reassigned Enrollment Reassigned
1- 6 7,955 43
7- 9 3,493 36
10-12 1,637 22
*! Dr. Foster uses a 15 percent variation or tolerance to deter-
mine the racial identifiability of the elementary and junior high
schools in the system. That is to say, any elementary or junior
high school with an enrollment of less than 33.5 percent black is
racially identifiable as white. If the enrollment is more than 63.5
percent black the school is racially identifiable, according to Dr.
Foster, as black. These variations are determined on the elemen-
tary and junior high school levels on the basis that 48.5 percent
of the total elementary and junior high school students enrolled in
the system are black and that 45.5 percent of the total high school
enrollment is black.
12a
Opinion dated May 22, 1974
A total of 12,685 students, or 36 percent of the total en-
rollment in the Montgomery school system, would be reas-
signed under the plaintiffs’ plan.
The students requiring additional transportation under
the plaintiffs’ plan are as follows:
Elementary (1-6) 5,204
Junior High School (7-9) 1,642
Senior High School (10-12) 350
B. Plaintiff-Intervenors’ Plan
The plaintiff-intervenors’ plan was prepared by Dr.
Larry Winecoff, a professor at the University of South
Carolina. Dr. Winecoff originally submitted two plans,
Plan A, with Plan A Alternate, and Plan B. Dr. Winecoff
abandoned Plan B, and no evidence was offered in support
of that plan. Dr. Winecoff set similar guidelines to those
used by Dr. Foster in determining those schools which he
considered to be racially identifiable in the Montgomery
school system.” However, Dr. Winecoff used 10 to 14 per-
cent as his tolerance in determining racial identifiability.
At the elementary level the grade structure of each
elementary school within the system is fracturized under
the plaintiff-intervenors’ Plan A. This is done by dividing
the existing one through six elementary grades into one
through three centers and four through six centers, Dr.
Winecoff also uses the rezoning technique of strip zones
running generally vertically for grades one-three and
elongated horizontally for grades four-six. He also uses
noncontiguous satellite zoning in his one-three grades Plan
A. The evidence reflects that four of the 16 elementary
schools within the system, serving grades one-three, would
*2 See note 21, supra.
en
13a
Opinion dated May 22, 1974
still be racially identifiable according to Dr. Winecoff’s
standards under his Plan A, one-three.
In Plan A, one-three alternate, Dr. Winecoff uses the
same zone lines as used in his Plan A, one-three. Judged
by his tolerances, 11 of the 16 schools serving grades one-
three within the system would continue to be racially
identifiable under Dr. Winecoff’s Plan A, one-three alter-
nate.
Plaintiff-intervenors’ Plan A, four-six, uses elongated
horizontal zones extending from the east side of the city to
the west side of the city. This type of strip zoning would
of necessity require substantial additional transportation
and would also result in many elementary children having
to walk a considerable distance farther to school. In some
instances they would be required to walk past another
elementary school serving grades one-three. Under this
proposal, five of 13 schools serving grades four-six would
continue to be racially identifiable according to Dr. Wine-
coff’s tolerances.
The evidence reflects that from 60 to 70 percent of all
elementary school students within the Montgomery system
would be reassigned under plaintiff-intervenors’ Plan A,
one-three or one-three alternate, and Plan A, four-six.
Furthermore, new transportation would be required for
approximately 2,000 elementary grade children under the
plaintiff-intervenors’ elementary plans.
Plaintiff-intervenors’ junior high school plan uses strip
zoning of an elongated shape running obliquely. In some
instances the seven-nine school zones proposed are only
four blocks in width. From 50 to 60 percent of all students
enrolled within the system in grades seven through nine
would be reassigned under plaintiff-intervenors’ junior
l4a
Opinion dated May 22, 1974
high level proposal. Furthermore, approximately 2,000
students would be newly transported.
The plaintiff-intervenors’ senior high plan uses strip
zones. For instance, the zone for the Jeff Davis school is
from two to four blocks in width in certain areas. This
proposal would require the reassignment of from 30 to 40
percent of the total high school enrollment within the
system. The evidence reflects, and this Court now finds,
that the plan proposed by the plaintiff-intervenors for the
elementary, junior high, and senior high schools in the
Montgomery school system is designed to achieve a racial
balance in these schools.
C. The School Board’s Plan
The school board utilizes transportation route changes,
involving both black and white students, zone changes, the
closing of physically inferior schools, the consolidation of
schools, and the construction of new schools in its proposed
plan for the system. Mr. Silas Garrett, Superintendent of
Education for the school system and an experienced school
administrator, testified that the following are the criteria
that were utilized in formulating the board’s plan:
1. To achieve a unitary school system.
2. To provide an organizational structure which will
ensure optimum educational opportunities for all children
with a minimun. of disruption.
3. To adjust the assignment of students to available
physical facilities.
4. To utilize available funds to the greatest educational
advantage.
Se ne -
Rte nae Be ee
15a
Opinion dated May 22, 1974
5. To achieve the maximum possible community accep-
tance of the plan thereby resulting in minimal resegrega-
tion.
6. To reassign students in a manner which enhances the
instructional program of the system.
7. To provide for maximum teachability through the
matching of assignments with teacher competencies and
training.
8. To utilize the existing transportation in a supportive
role to the instructional and organizational framework of
the system.
9. To minimize disruptive transition for students,
school personnel, and parents and at the same time comply
with the mandate of the courts in achieving a unitary
system.
At the present time, the Montgomery school system is
operating pursuant to a desegregation plan which was
prepared by a team of HEW experts and which was
approved by this Court and by the United States Court of
Appeals for the Fifth Cireuit.** The plan when originally
approved assigned both black and white students to every
school in the system with the exception of Loveless School,
which the Court of Appeals found to be a facility located
so deep in the heart of a black residential area as not to be
practical to desegregate. Since the implementation of the
1970 plan, the evidence in this case reflects that the school
** Carr v. Montgomery County Board of Education, 429 F.2d
312 (5th Cir. 1970).
16a
Opinion dated May 22, 1974
board has attempted in good faith to ensure its effective
operation. Additionally, since 1970, the school board has
furthered the desegregation of the Montgomery system by
closing the Billingslea elementary facility and consolidat-
ing that school with the Morningview School. The board
proposes extensive plans for the transition of the Georgia
Washington School, one-nine, now an all-black facility,
into a substantially desegregated junior high school com-
plex. Further substantial desegregation is proposed by
the board in assigning white students to Carver Senior
High and Carver Junion High. The board projects 61 per-
cent whites in both schools that have heretofore been
’ practically all black. Many other significant and effective
assignments are to be made by the board—in each instance
to attempt to achieve a unitary school system. Extra-
curricular activities have been expanded on a desegregated
basis and inter-school participation throngh joint seminars
and educational clinics has been developed.
The evidence reflects that the board considered the
techniques of satellite zoning, clustering and pairing. How-
ever, the board concluded that it could establish a unitary
system through the means and methods enumerated with-
out the disruptions of satellite zoning, clustering and pair-
ing as proposed by the plaintiffs and plaintiff-intervenors
in order to achieve what the evidence in this case reflects
would be an extremely unstable desegregated school
system.
The evidence presented to the Court further reflects that
the population of Montgomery is so arranged that whites
largely live on the east side of the city and blacks on the
west. This necessarily means that pairings and clusterings
would, in the main, be noncontiguous and would require
cross-city busing. This, of course, would substantially
17a
Opinion dated May 22, 1974
increase the time and distance that students would have to
travel to and from the schools to which they would be as-
signed under such plan.
Under the board’s plan, there will remain a few schools
with a substantially predominantly black student popuia-
tion. All of these are at the elementary level with the
exception of McIntyre Junior High.**
An in-depth analysis of the school board’s plan impresses
this Court that the continued existence of some substan-
tially predominantly black schools is genuinely nondis-
criminatory. These schools, Daisy Lawrence, Booker T.
Washington Elementary, Carver Elementary, Fews, Love-
less, Hayneville Road Elementary, Paterson, Pintlala,
Davis and Bellinger Hill, are in each instance located deep
in black residential areas; the white students residing in
these areas are assigned to the nearest of these schools.
While this has to some extent desegregated practically all
of these schools, no ratio has been accomplished that satis-
fies the plaintiffs and plaintiff-intervenors. The evidence
reflects, and this Court finds, that in order to further
desegregate any of these facilities, satellite zoning and the
cross-city busing of white students would be necessary.”
** Plaintiff-intervenors also project a heavily black enrollment
at McIntyre. Plaintiffs would, under their proposal, achieve a
projected 50 percent black-white ratio at McIntyre Junior High.
However, this would be accomplished by satellite zoning and by
transporting 550 whites for a considerable distance from the
satellite Cloverdale area and periphery area to the McIntyre
school. The only purpose in this is to attempt to achieve a racial
balance in this school that is located deep in a black residential
area.
*6 Tt is significant that Dr. Winecoff under his Plan A alternate
leaves Carver Elementary at 85 percent black. Under his Plan A,
Dr. Winecoff proposes to bus approximately 200 white students
18a
Opinion dated May 22, 1974
Further, an exchange of black students would have to be
made by transporting them across the city from these
school areas. This would not, under the cireumstances of
this case, accomplish any effective and realistically stable
desegregation. In each instance the situation is a result of
residential patterns and not of the school board’s action—
either past or present.
It is significant to an overall evaluation of the board’s
plan that all of the students in the Montgomery school
system?* will attend a substantially desegregated sciool
for the majority of their school careers. Over 80 percent of
the black children in the system will attend a substantially
desegregated school for at least six grades of the 12. One
hundred percent of the black children in the system will
attend a substantially desegregated senior high facility.”
At the junior high school level, the only junior high facility
under the board’s plan that is projected to be over 80 per-
cent black will be the McIntyre Junior High facility which,
as this Court has previously noted, is impossible to effec-
tively desegregate in a stable and workable manner.
A detailed analysis of the board’s plan is attached and
marked as Table 2 to this opinion. The chief criticism of
the plaintiffs and plaintiff-intervenors of the board’s plan
is that the board is putting the primary burden of desegre-
from the various school areas to Carver which would still leave
Carver Elementary at 61 percent black. These students would
have to pass three or four elementary schools to arrive at Carver.
*6 The only exception invelves those students in the Montgomery
County High-Dunbar Elementary area—and neither the plaintiffs
nor the plaintiff-intervenors seriously attempt to desegregate these
schools.
‘7 For instance, Lanier—57 percent white, or Carver—61 per-
cent white.
19a
Opinion dated May 22, 1974
gating the Montgomery school system on the black students.
The evidence does not bear this out. Approximately 4,000
white students and 5,000 black students are reassigned
under the school board’s plan. Furthermore, on the junior
high level the board’s plan proposes that three virtually
all-black facilities be converted into predominantly white
ones, that is, Carver Junior High from zero percent white
to 61 percent white ; Georgia Washington from zero percent
white to 69 percent white, and Houston Hill from 15 per-
cent white to 60 percent white.
As to the proposal of the board regarding the senior high
schools within the system, the evidence reflects that all of
the city senior high schools will be substantially desegre-
gated.
III. AppiicasLe Law
[1,2] For several years it has been clear, and all parties
in this case recognize, that
the obligation of every school district is to terminate
dual school systems at once and to operate now and
hereafter only unitary schools.
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20,
90 S.Ct. 29, 24 L.Ed.2d 19 (1969). In determining what
constitutes a “unitary” school system, there are six facets
of school operation which must be considered. These six
criteria are (1) faculty, (2) staff, (3) transportation, (4)
extracurricular activities, (5) facilities, and (6) composi-
tion of the student body. Green vy. County School Bd., 391
U.S. 430, 435, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Adams
v. Rankin County Bd. of Educ., 488 F.2d 324, 325 (Sth Cir.
1973).
20a
Opinion dated May 22, 1974
A. Faculty and Staff
[3] In 1968, this Court ordered that the Montgomery
County School Board must move toward a goal under
which “in each school the ratio of white to Negro faculty
members is substantially the same as it is throughout the
system.” As observed earlier, the United States Supreme
Court affirmed that order. United States v. Montgomery
County Bd. of Educ., supra.
An analysis of the evidence presented in this case [see
Table 1] shows that the board is in full compliance with
that order.
B. Transportation, Extra-curricular
Activities, Facilities
There is no dispute as to the law regarding these indicia
of desegregation. Suffice it to say that there can be no
racial discrimination in any of these areas of school opera-
tion. None of the parties seriously contend the board is
not in full compliance with the law in these areas. Appro-
priate factual findings will be made as to each criterion.
C. Student Body Composition
[4] While it is clear that in disestablishing a segregated
school system all vestiges of racial segregation must be
eliminated “root and branch,” Green v. County School Bd.,
391 U.S. 480, 437-438, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968),
the establishment of a fixed racial quota in each school is
not required by the United States Constitution. The United
States Supreme Court has ruled that
[t]he constitutional command to desegregate schools
does not mean that every school in every community
21a
Opinion -dated May 22, 1974
must always reflect the racial composition of the
school system as a whole.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1,
24, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971).
Thus, it appears that a balance must be reached, one
unquestionably subtle in its implications: while school
system segregation must be actively disestablished, racial
quotas for student population are not to be instituted.
The difficulty of analysis is most acute when the Court
is confronted, as it is in this case, with several schools
which contain a student population which is largely of one
race. Since this Court last considered the compliance of
this school system with constitutional commands, many
important cases have been decided by the appellate courts,
necessitating a re-examination of the law with respect to
schools whose student population does not typify the
general population figures. The Supreme Court has, in a
general manner, addressed the question of one-race schools,
writing in Swann that
[t]he record in this case reveals the familiar phenom-
enon that in metropolitan areas minority groups are
often found concentrated in one part of the city. In
some circumstances certain schools may remain all or
largely of one race until new schools can be provided
or neighborhood patterns change. Schools all or pre-
dominantly of one race in a district of mixed popula-
tion will require close scrutiny to determine that school
assignments are not part of state-enforced segrega-
tion.
In light of the above, it should be clear that th»
existence of some small number of one-race, or virtu-
22a
Opinion dated May 22, 1974
ally one-race, schools within a district is not in and of
itself the mark of a system that still practices segre-
gation by law. The district judge or school authorities
should make every effort to achieve the greatest pos-
sible degree of actual desegregation and will thus
necessarily be concerned with the elimination of one-
race schools. No per se rule can adequately embrace
all the difficulties of reconciling the competing interests
involved; but in a system with a history of segrega-
tion the need for remedial criteria of sufficient specific-
ity to assure a school authority’s compliance with its
constitutional duty warrants a presumption against
schools that are substantially disproportionate in their
racial composition. Where the school authority’s pro-
posed plan for conversion from a dual to a unitary
system contemplates the continued existence of some
schools that are all or predominantly of one race, they
have the burden of showing that such school assign-
ments are genuinely non-discriminatory. The court
should scrutinize such schools, and the burden upon the
school authorities will be to satisfy the court that their
racial composition is not the result of present or past
discriminatory action on their part.
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1, 25-26, 91 S.Ct. 1267, 1280, 28 L.Ed.2d 554 (1971).
Several cases dealing with one-race schools have been
decided by the Court of Appeals for this circuit since this
Court last fully considered compliance in this school sys-
tem. While neither the Court of Appeals nor the Supreme
Court has adopted any explicit, clear test by which to
measure the constitutional validity of one-race schools, the
Court of Appeals has, since this Court’s last major order
et ee A
43l F.2d 1200, 1201-1202 (Sth Cir. 1970)
23a
Opinion dated May 22, 1974
in this case, reversed district courts in school cases and
held that nine all-black schools in one system could not
remain in existence,”* that insufficient pairing had been
ordered when schools which could be paired were about one
and one-half miles away,’ and that 14 all-black elementary
schools in one system had to be paired or rezoned.” Other
district courts were reversed because under court-approved
plans 80 percent of the blacks attended schools where their
race predominates,*' because 70 percent of all black ele-
mentary students attended one all-black school,®? because
68 percent of the black elementary school students in a
system attended schools 90 percent or more black,** and
because 44 percent of the black students in one system
attended all-black or virtually all-black schools.** These
cases, and others like them decided since this Court’s last
consideration of this case, necessitate a re-examination of
this case in the light of the state of the law and the facts
as they exist in the Montgomery school system today.
*8 Bradley v. Bd. of Public Instruction, 431 F.2d 1377, 1380-
1381 (5th Cir. 1970).
= Weaver v. Bd. of Public Instruction, 467 F.2d 473, 474 (5th
Cir. 1972) (all-black school 1.2 to 5.6 miles from predominantly
white elementary schools); Wright v. Bd. of Public Instruction,
*° Mannings v. Bd. of Public Instruction, 427 F.2d 874, 877 (5th
Cir. 1970).
*! United States v. Texas Education Agency, 467 F.2d 848, 872-
873 (5th Cir. 1972) (en banc).
*? Boykins v. Fairfield Bd. of Educ., 457 F.2d 1091, 1093 (5th
Cir. 1972).
33 Allen v. Bd. of Public Instruction, 432 F.2d 362, 366 (5th
Cir. 1970).
** Pate v. Dade County, 434 F.2d 1151, 1153 (5th Cir. 1970).
24a
Opinion dated May 22, 1974
IV. Puan Approvep
[5] As is already evident from what has been stated in
this opinion, this Court proposes to order implemented in
feto the desegregation plan as proposed by the Mont-
gumery County Board of Education on J anuary 15, revised
March 29, 1974, and modified May 8, 1974. The evidence in
this case reflects that the plans proposed by the plaintiffs
and by the plaintiff-intervenors will accomplish very little
stable, long-term desegregation in this school system. This
Court desires to emphasize that the remaining predom-
inantly black schools in this school system under the board’s
plan cannot be effectively desegregated in a practical and
workable manner. In each instance this Court has examined
and re-examined the evidence and has determined that
these predominantly black schools exist and continue to
exist without any discriminatory board action. The board’s
proposal and this Court, in adopting same, have taken “into
account the practicalities of the situation” that exist in
this school system. Davis v. Board of Social Commis-
sioners, 402 U.S. 33, 37, 91 S.Ct. 1289, 28 L.Ed.2a 577. The
schools that will remain predominantly black in the Mont-
gomery school system are the result of the concentrations
of blacks in the western area of Montgomery. As the
Supreme Court observed in Swann v. Charlotte-Mecklen-
burg, supra, the existence of a small number of predom-
inantly black schools in such areas is not in and of itself a
sign that a dual school system exists. The school au-
thorities in the Montgomery school system have taken
affirmative action to the extent required by the law and
have achieved the greatest possible degree of actual de-
segregation, taking into account the “practicalities of the
situation.” As this Court has observed time and time again
ick eine een.
25a
Opinion dated May 22, 1974
in school desegregation cases, racial quotas and busing to
achieve racial quotas are not required by the law.
A. Elementary Schools
The board has proposed, and this Court is adopting for
elementary schools, what is in large measure a “neighbor-
hood” or proximity plan, under which an elementary child
normally attends the school nearest his home.
The Court is aware that any “neighborhood school” plan
is strictissimi juris in this circuit and is to be adopted, if
at all, only in narrowly confined instances. This is such
a case.
In a pure neighborhood school system, as approved in
Ellis v. Bd. of Public Instruction, 423 F.2d 203 (5th Cir.
1970), there are two requirements: (1) a strict proximity
rule must be followed, under which neither man-made nor
natural boundaries may be considered, but only travel
distance ;** and (2) the plan must be one which is effective
to establish a unitary school system.
The second criterion, that the plan must effectively
provide for a unitary system, was outlined in a footnote:
{u]nder the facts of this case, it happens that the
school board’s choice of a neighborhood assignment
system is adequate to convert the Orange County
school system from a dual to a unitary system.
423 F.2d at 208, n. 7 (emphasis added).
*§ “We also hold that the neighborhood system, based on school
capacity, must be observed without exception. This will prevent
any variance based on traffic conditions . ... Variances by arbi-
trary zone lines, or for reasons of traffic, while reasonable on their
face, may destroy the integrity and stability of the entire assign-
ment plan. If Orange County wishes to maintain a neighborhood
SS SN a ne
26a
Opinion dated May 22, 1974
However, in a series of cases the Court of Appeals has
held that an Ellis neighborhood school plan, to be upheld,
must provide for the ultimate conversion of a dual to a
unitary school system.
In Andrews vy. City of Monroe, 425 F.2d 1017 (5th Cir.
1970), the Court of Appeals held that in Monroe, Louisiana,
a city with only 18 schools, an Ellis plan was constitution-
ally infirm if it left 85 percent of the black elementary
students in all-black schools, or schools nearly so. 425 at
1019-1020.
In Henry v. Clarksdale Municipal Separate School
District, 433 F.2d 387 (5th Cir. 1970), involving a small
city with only seven elementary schools, the Court of
Appeals reversed a plan which left three all-white ele-
mentary schools and four all-black. The Court of Appeals
wrote that the order of the district judge “totally ignores
the real key to Ellis, the strong caveat of footnote 7... A
433 F.2d at 390. Footnote 7 was the footnote in Ellis which
noted that “it happens that... . [the plan] is adequate to
convert the ... system from a dual to a unitary system.”
423 F.2d at 208, n. 7.
Similarly, in Ross v. Eckels, 423 F.2d 1140 (5th Cir.
1970) (Houston, Texas, system), the Court of Appeals
reversed a district judge’s adoption of the Ellis plan
where 29 percent of black students were in all-black or
virtually all-black schoolis, 434 F.2d at 1146, n. 9, noting
that each case had to be judged on its own facts. Id. at 1147,
In 1970 the Court of Appeals reversed a district court’s
adoption of an Ellis plan in Alexandria, Louisiana, where
assignment system, then it must do so without variances. Each
student in the system must be assigned to attend the school near-
est his or her home, limited only by the capacity of the school,
and then to the next nearest school.” 423 F.2d at 207-208.
27a
Opinion dated May 22, 1974
60 per cent of the black students were in schools where their
race constituted 90 percent or more of the student body.
The Court of Appeals held that
[t]he end result is that neighborhood zoning in Alex-
andria, Louisiana, leaves the majority of the city’s
Negro students in a virtually segregated school system.
The fact that the plan complies with the requirements |
for a neighborhood system as enunciated by this Court
in [Ellis] does not make the system, constitutionally
palatable unless the plan actually works to achieve
integration.
Valley v. Rapides Parish School Bd., 434 F.2d 144, 145
(5th Cir. 1970).
In a case from Lake Charles, Louisiana, the Court of
Appeals reversed a district judge who had adopted an Ellis
plan, pointing out that
[a]s to ward 3, the Board plan is not up to constitu-
tional standards. In many circumstances the Orange
County approach of neighborhood schools is adequate
to convert a school system from a dual to a unitary
system. But, as Orange County itself makes clear, .. .
each case turns on all of its own facts, including those
peculiar to the particular system.... A plan which
leaves two out of three black children in Lake Charles
in schools all black or substantially so, . . . cannot be
upheld as constitutional.
Conley v. Lake Charles School Board, 434 F.2d 35 (5th Cir.
1970).
However, the Fifth Circuit Court of Appeals has affirmed
the use of the Ellis plan in some circumstances where the
28a
Opinion dated May 22, 1974
result is a substantially desegregated school system. The
Court of Appeals approved the use of an Ellis plan for the
schools of Fulton County, Georgia (excluding Atlanta). In
that case, only 18 percent of the black students attended
all-black schools. While several elementary schools were
largely black in composition, Judge Wisdom pointed out
that “[e]very black student at some point in his school
career will be exposed to complete desegregation. . . .”
Hightower v. West, 430 F.2d 552, 555 (Sth Cir. 1970). There,
[a]s in so many other cases, these majority-black and
all-black schools are the product of residential segre-
gation and, historically, the location of schools to serve
a segregated community.
430 F.2d at 555. The Court of Appeals found several defi-
ciencies in the other plans offered at trial, among them that
“(t]he pairing proposals ... would produce longer walking
distances and busing for these elementary school children.”
Id.
Similarly, the Court of Appeals approved the use of an
Ellis plan in the schools of Anniston and Tuscaloosa. Lee
v. Macon County Bd. of Educ., 429 F.2d 1218, 1222 (5th
Cir. 1970).
The plan proposed by the school boaid in this case does
not precisely fit the Ellis mold. The school assignment has
not been effected by precise and mathematical distance
measuring; some natural and man-made boundaries have
been considered in the process of zoning. However, as this
Court views Ellis, the Ellis plan in its purity is ultimately
designed for the school system which is approaching uni-
tary status and will be drawing its own lines. In such a
situation a strict Ellis plan completely eliminates discre-
29a
Opinion dated May 22, 1974
tion in student assignment, thus eliminating the possibility
of discriminatory student assignment.
However, in this case the plan is under careful judicial
scrutiny. This Court, long familiar with every aspect of
this case, is convinced that where the board plan for ele-
mentary schools deviates from a strict Ellis proximity plan,
the deviation is to maximize, rather than to minimize, de-
segregation; and thus is intended to help meet the consti-
tutional burden which is upon the board.
[6] Therefore, while the school board plan does not
strictly meet the absolute standard of Ellis, any deviation
is for a permissible and proper purpose. Thus, this Court
considers that the principle of Ellis—that neighborhood
schools may be constitutionally proper—may be adopted
by the district court if the line construction is under judicial
scrutiny and the plan adopted effects desegregation of the
complete system.
It is, therefore, necessary to consider whether the school
board plan in this case for elementary schools is consti-
tutionally proper.
The plan in Ellis itself, which the Court of Appeals held
to be “adequate to convert the Orange County school sys-
tem from a dual to a unitary system,” 423 F.2d at 208 n. 7,
provided for substantially less desegregation at the ele-
mentary level than does the school board plan in this ease.
In Ellis, seventy-four percent (74%) of black elementary
pupils attended elementary schools which were at least
ninety-nine percent (99%) black.**
In Ellis, the following elementary schools were at least 99
percent black: Callahan (99 percent); Eccleston (100 percent) ;
Holden Street (99.8 percent) ; Hungerford (100 percent) ; Maxey
(99.7 percent) ; Orange Center (100 percent) ; Richmond Heights
(100 percent) ; Washington Shores (100 percent); Webster Ave-
30a
Opinion datea May 22, 1974
While the school board’s elementary plan here is better
than that in Ellis, which was affirmed, it is also better than
most of the plans which have been modified or reversed by
the Court of Appeals for this circuit. For example, the
Monroe, Louisiana, plan left 85 percent of the black elemen-
tary pupils in all-black schools. 425 F.2d at 1019-1020. The
Clarksdale, Mississippi, plan appears to have left the ele-
mentary schools completely segregated. 433 F.2d at 390.
The Alexandria, Louisiana, plan provided that 60 percent
of the black students were in schools which were 90 percent
or more black. 434 F.2d at 145.
[7] Thus, while the school board’s elementary school
plan does not completely eliminate all predominantly black
schools on the elementary level, the Court is convinced that
considered as a part of a complete system, under the facts
of this case, the school board’s elementary plan is constitu-
tionally acceptable. There are several factors which the
Court considers in arriving at this conclusion.
First, in this system, as Judge Wisdom has pointed out
in another case, “[e]very black student at some point in
his school career will be exposed to complete desegrega-
tion... .” Hightower v. West, 430 F.2d 552, 555 (5th Cir.
1970). Grades seven-twelve of the Montgomery system,
under the board’s plan, are to be completely desegregated.*"
nue (99 percent); and Wheatley (100 percent). A total of 6,376
black students attended those schools, out of a total black ele-
mentary school population of 8,628. Thus, 74 percent of all black
elementary pupils in Orange County attended schools at least 99
percent black.
*? The board’s junior high plan would keep only 18 percent of
the black junior high school students in schools 80 percent or
more black [excluding Montgomery County High School], and no
high school student would be in a school more than 43 percent
black [excluding Montgomery County High School].
3la
Opinion dated May £2, 1974
Second, the system as a whole will be desegregated. All
of the other five indicia of a unitary school system have
heen completely met in this school system. Six members
of the Court of Appeals, concurring specially in an en
banc case, have recently affirmed the proposition that nor-
mally the system as a whole is examined for purposes of
determining whether the system is unitary; individual
schools are not looked to for that purpose. United States
v. Texas Education Agency, 467 F.2d 848, 888 (5th Cir.
1972) (en banc). In Montgomery County, Alabama, there is
system-wide desegregation of all six facets and indicia of
school desegregation.
Third, in the Fulton County, Georgia, case, the Fifth
Circuit wrote of “the value of assigning young children to
nearby schools ... .” Hightower v. West, 430 F.2d 552,
556 (5th Cir. 1970). It cannot be denied that there is
value in having elementary children attend schools near
their homes. Recognition of this benefit of neighborhood
elementary schools does not constitute abandonment of
the goal of desegregation as required by the United States
Constitution. If a neighborhood elementary school system
ean be effected without a sacrifice of constitutional stan-
dards, then such a plan should be adopted.
All factors considered, the neighborhood elementary
schoo] system proposed by the board is constitutionally
adequate to effect desegregation under the facts of this
ease. This Court is convinced that to adopt the plans
proposed by plaintiffs and plaintiff-intervenors would be
It is conceded by all parties that Montgomery County High
School, which is at the opposite end of the county from the city
schools, cannot be effectively desegregated because of its isolation.
* Judges Brown, Wisdom, Gewin, Goldberg, Dyer, and Simpson.
Opinion dated —
to adopt a fixed racial quota for student population. The
Supreme Court has indicated that not only is the imposi-
tion of racial quotas in schools not required, but a court
may commit reversible error if it requires a fixed racial
ratio in student population. Swann v. Charlotte-Mecklen-
burg Bd. of Edue., 402 U.S. 1, 24, 91 S.Ct. 1267, 28 L.Ed.2d
954 (1971).
B. Junior High Schools
{8] As observed earlier, under the board’s plan the only
junior high school facility that will be over 80 percent
black will be the McIntyre facility. For the reasons pre-
viously noted, it is not feasible to further desegregate the
MeIntyre School in a stable and workable manner. This
school continues to exist as a predominantly black school
through no action on tlie part of the school board. Of the
13 junior high schools to be operated in the Montgomery
system, McIntyre is the only one that comes close to being
racially identifiable. For instance, Houston Hill (a for-
merly all-black school) will be 35 percent black, Goodwyn
will be 34 percent black, Georgia Washington (a formerly
all-black school) will be 31 percent black, Floyd will be 35
percent black, Cloverdale will be 33 percent black, Carver
(a formerly all-black school) will be 39 percent black,
Capitol Heights will be 38 percent black, Baldwin (a for-
merly all-white school) will be 73 percent black, and Bellin-
¢rath (a formerly all-white school) will be 62 percent black.
This is the maximum under the circumstances that exist
in the Montgomery school system that can be required of
the board.
C. Senior High Schools
[9] The defendant board’s plan on the senior high school
level, as observed by the United States in its brief, “ap-
33a
Opinion dated May 22, 1974
pears to be fully acceptable.” As a matter of fact, there is
very little, if any, controversy among the parties as far
as the operation of the senior high schools in the Mont-
gomery system is concerned.** The board proposes that
Carver High be 39 percent black, that Jeff Davis be 38
percent black, that Lanier be 43 percent black and that
Lee be 37%. Such a proposal for the senior high schools
within the system is entirely acceptable.
In summary, every formerly all-white school in the
Montgomery school system will, under the board’s plan, be
substantially desegregated. Several formerly all-white
schools will now be predominantly black. Further, several
formerly all-black schools will become predominantly
white.
V. Generat ConsmperaTions
A. Majority-to-Minority Transfer Rule
[10] The previous orders entered by this Court in this
case required the desegregation of not only the students
but the faculty and staff, transportation, extra-curricular
activities, and facilities and also required, among other
things, a rule that the board allow any student enrolled in
a school where his race is in the majority to transfer to
u school where his race will be in a minority. This ma-
jority-to-minority transfer rule also requires the hoard to
provide transportation for those electing to transfer pur-
suant to this rule. This transfer rule is a viable and effec-
tive doctrine in the Montgomery school system. Based on
a report that was filed with the Court and made a part
* This is with the exception of Montgomery County High
which was not proposed to be desegregated by any of the plans
submitted by the parties by reason of its location in a remote area
of the county.
34a
Opinion dated May 22, 1974
of the records in this case, in December, 1973, over 600
blacks had elected to transfer under the majority-to-minor-
ity transfer rule. The majority-to-minority transfer policy
was incorporated in the order made and entered in this
case in February, ] '70. Upon review of that order, the
United States Cou: of Appeals for the Fifth Circuit in
Carr v. Montgomery County Board, ete., 429 F.2d 382,
directed that this Court’s order be modified “in light of
recent opinions of this court.” In July, 1970, pursuant to
the direction of the Court of Appeals, this Court ordered
that the Montgomery County Board of Education shall
provide transportation, if desired, for students transfer-
ring pursuant to this majority-to-minority transfer policy.
The Court also ordered that students so transferring are
to be given p.iority for space in the schools to which they
transfer,
A majority-to-minority transfer provision in a school
desegregation order is universally recognized by the courts
as a useful tool to accomplish desegregation in a dual
schoo] system. As a matter of fact, the Supreme Court of
the United States in Swann v. Board of Education, supra,
stated:
An optional majority-to-minority transfer provision
has long been recognized as a useful part of every de-
segregation plan. Provision for optional transfer of
those in the majority racial group of a particular
school to other schools where they will be in the mi-
nority is an indispensable remedy for those students
willing to transfer to other schools in order to lessen
the impact on them of the state-imposed stigma of
segregation. In order to be effective, such a transfer
arrangement must grant the transferring student free
35a
Opinion dated May 22, 1974
transportation and space must be made available in
the school to which he desires to move.
The vital importance of the effective operation of the ma-
jority-to-minority transfer has been noted by the Fifth
Circuit in several cases.*® In Cisneros, the en banc court
stated:
An overall amelioration of any possible discrimina-
tion will tend to be accomplished by the use of the
mandatory majority to minority transfer provision of
Swann, supra, 402 U.S. at 36-37, 91 S.Ct. 1267, 28 L.Ed.
2d 554, heretofore ordered by the district court. Such
a provision will guarantee to both races an unfettered
right to attend schools with members of an opposite
race or identifiable ethnic group, and with transporta-
tion provided.
As stated, the Montgomery school board has and con-
tinues to implement a majority-to-minority transfer pro-
vision that complies with every requirement of the existing
school desegregation laws.
B. Biracial Committee
[11] Up until this time, the Montgomery school board
has not operated with the assistance of a biracial committee.
In an order made and entered in this case on March 13,
1974, this Court stated:
An over-all review of the applicable school desegre-
gation decisions rendered since Swann, Green, and
*° Cisneros v. Corpus Christi Independent School District, 467
F.2d 142, 153 (5th Cir. 1972) (en banc); Ellis v. Bd. of Public
Instruction of Orange County, 423 F.2d 203, 206 (5th Cir. 1970) ;
Singleton v. Jackson Municipal Separate School District, 419 F.2d
1211, 1218 (5th Cir. 1970) (en banc).
36a
Opinion dated May 22, 1974
Davis reflects that this Court is now required to give
serious consideration to the appointment of a biracial
committee. The biracial committee is to be constituted
by this Court from names submitted by the parties to
this litigation. The committee is to review the opera-
tion of the Montgomery County transportation system
and the majority-to-minority transfer rule and is to be
charged with responsibility in the area of selecting
school sites. The committee will be authorized to hold
hearings and make recommendations to the school
board in connection with any of these activities.
It is further ordered that within 15 days from this
date each party to this litigation submit to this Court
the names of 20 citizens residing in Montgomery
County, Alabama; one-half of the names submitted
will be black citizens and the other half will be white
citizens; the submission of these names is to be for the
purpose of the Court’s constituting from the names
submitted a biracial committee for the purposes here-
inabove discussed.
The parties have, as directed, submitted the names of citi-
zens to the Court, and the Court has chosen from the names
submitted 15 black citizens and 15 white citizens to con-
stitute the Montgomery County school system’s biracial
committee. A separate order will be made and filed con-
temporaneously with this order designating the citizens
who are to constitute this committee and outlining their
functions and responsibilities. The Chairmanship of the
committee will be rotated each two years with the com-
mittee selecting the chairman to succeed the initial chair-
man being designated by this Court. The membership of
enn ee Geet Oe
37a
Opinion dated May 22, 1974
the committee represents a cross-section of the Montgom-
ery, Alabama, area with regard to race, sex, and ethnic and
economic backgrounds. The Montgomery County Board of
Education will be required to cooperate with the committee
or any of its subcommittees, furnishing any information,
records or documents requested by said committee.
C. Arbitrary Tolerances or Guidelines
As noted earlier, the plaintiffs’ expert witness, Dr. Foster,
and the plaintiff-intervenors’ expert witness, Dr. Winecoff,
instead of evaluating the system as a whole, evaluate each
school within the system independently for the purpose of
arriving at certain conclusions that some schools within
the system continue to be “racially identifiable.” In doing
this, Dr. Foster uses a 15 percent variation or tolerance
and Dr. Winecoff uses a 10 to 15 percent variation or tol-
erance to determine the racial identifiability of elementary
and junior high schools in the Montgomery school system.
These variations are determined on the elementary and
junior high school level on the basis that 48.5 percent of
the total elementary and junior high school students en-
rolled in the system are black. This means that, pursuant
to Dr. Foster’s computation (a similar procedure is fol-
lowed by Dr. Winecoff), any elementary or junior high
school with an enrollment less than 33.5 percent black is
“racially identifiable” as white. If the enrollment is more
than 63.5 percent black, the school, according to Dr. Foster,
is “racially identifiable” as black.
[12] The use of such variances or tolerances is highly
artificial and cannot be applied in the Montgomery County
school system without severely and unnecessarily disrupt-
ing the operation of the system and without severely and
unnecessarily impinging on the educational processes in the
Montgomery school system. The application of such for-
38a
Opinion dated May 22, 1974
mulas must of necessity proceed on the theory that a racial
balance is to be achieved and is required under the law.
Furthermore, the formalistic and mechanical application
of the 15 percent tolerance of Dr. Foster of the 10 to 15
percent tolerance or deviation of Dr. Winecoff gives no
consideration whatsoever to the other indicia in school
desegregation cases such as faculty, transportation, facili-
ties and extra-curricular activities. T’o label schools that
do not fall within these tolerances or deviations as “racially
identifiable” means that, in order not to be “racially iden-
tifiable,” each school within any school system must meet
certain predetermined ratios. As this Court has stated
through the years time and time again, racial balance is
not constitutionally required. The Supreme Court of the
United States in Swann v. Board of Education, supra, em-
phasized this by stating:
[i]f we were to read the holding of the District Court
to require, as a matter of substantive constitutional
right, any particular degree of racial balance or mix-
ing, that approach would be disapproved and we would
be obliged to reverse. The constitutional command to
desegregate schools does not mean that every school
in every community must always reflect the racial com-
position of the school system as a whole.
VI. ConcLusIon
This Court feels an obligation to point out that its ailow-
ance of a neighborhood elementary school system does not
constitute an abandonment by this Court of the goal of
securing to all citizens their rights guaranteed by the Four-
teenth Amendment. This Court has always strived to guar-
antee to all citizens, both black and white, their right to
39a
Opinion dated May 22, 1974
equal protection of the laws. This Court has never balked
at the enforcement of constitutional rights in racial dis-
crimination cases. In the last nineteen years, this Court
has sat in cases in which the constitutional rights of black
citizens had been denied in that blacks were discriminated
against when they sought an equal right to use buses,* air-
ports,*? libraries,** parks,** and YMCA’s.** The Court has
further dealt with racial discrimination in the areas of vot-
ing rights,** jury selection,’ and governmental hiring by
both state ** and federal*® governments, and has also dealt
*! Lewis v. Greyhound Corp., 199 F.Supp. 210 (M.D.Ala. 1961) ;
Browder v. Gayle, 142 F.Supp. 707 (M.D.Ala. 1956), aff'd, 352
U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1957).
*? United States v. City of Montgomery, 201 F.Supp. 590 (M.D.
Ala. 1962).
*? Cobb v. Montgomery Library Board, 207 F.Supp. 880 (M.D.
Ala. 1962).
** Gilmore v. City of Montgomery, 176 F.Supp. 776 (M.D.Ala.
1959).
** Smith v. YMCA, 316 F.Supp. 899 (M.D.Ala. 1970), aff'd 462
F.2d 634 (5th Cir. 1972).
** State of Alabama v. Rogers, 187 F.Supp. 848 (M.D.Ala.
1960), aff'd 285 F.2d 430 (5th Cir. 1961); United States v. State
of Alabama, 252 F.Supp. 95 (M.D.Ala. 1965); United States v.
Parker, 236 F.Supp. 511 (M.D.Ala. 1964); United States v. Cart-
wright, 230 F.Supp. 873 (M.D.Ala. 1964); United States v. Pen-
ton, 212 F.Supp. 193 (M.D.Ala. 1962); United States .. State of
Alabama, 192 F.Supp. 677 (M.D.Ala. 1961).
‘7 Penn v. Eubanks, 360 F.Supp. 699 (M.D.Ala. 1973); White
v. Crook, 251 F.Supp. 401 (M.D.Ala. 1966).
*s NAACP v. Allen, 340 F.Supp. 703 (M.D.Ala. 1972), aff'd,
493 F.2d 614 (5th Cir. 1974) ; Strain v. Philpott, 331 F.Supp. 836
(M.D.Ala. 1971); United States v. Frazer, 317 F.Supp. 1079
(M.D.Ala. 1970); 297 F.Supp. 319 (M.D.Ala. 1968).
*? Penn v. Schlesinger, 350 F.Supp. 752 (M.D.Ala. 1973), aff'd,
490 F.2d 700 (5th Cir. 1973), rehearing en bane granted (5th
Cir. 1974).
40a
Opinion dated May 22, 1974
with governmental districting.” In the school field, this
Court has decided cases which involved aid to private
schools,*’ school desegregation on the level of local schools,*
statewide administration,” athletic programs, faculty,®
graduate schools,** and trade schools and junior colleges.”
This Court stands on its record showing its willingness to
protect, where necessary, the constitutional rights of black
citizens against racial discrimination by government off-
cials. This Court has not in the past allowed, and is not
now allowing, the violation of constitutional rights to go
*° Yelverton v. Driggers, 370 F.Supp. 612 (M.D.Ala. 1974).
*' Gilmore v. City of Montgomery, 337 F.Supp. 22 (M.D.Ala.
1972), modified and aff'd, 473 F.2d 832 (5th Cir. 1972), cert.
granted, 414 U.S. 907, 94 S.Ct. 215, 38 L.Ed.2d 145 (1973):
Crenshaw County Private School Foundation v. Connally, 343
F.Supp. 495 (M.D.Ala. 1972), aff'd, 474 F.2d 1185 (5th Cir. 1973) ;
Lee v. Macon County Bd. of Educ., 267 F.Supp. 458 (M.D.Ala.
1967) ; 231 F.Supp. 743 (M.D.Ala. 1964).
** Lee v. Macon County Bd. of Educ., 292 F.Supp. 363 (M.D.
Ala. 1968) ; 289 F.Supp. 975 (M.D.Ala. 1968) ; 276 F.Supp. 859
(M.D.Ala. 1967); 231 F.Supp. 743 (M.D.Ala. 1964); Harris v.
Crenshaw County Bd. of Edue., 259 F.Supp. 167 (M.D.Ala.
1966); Franklin v. Barbour County Bd. of Educ., 259 F.Supp.
945 (M.D.Ala. 1966) ; Harris v. Bullock County Bd. of Educ., 253
F.Supp. 276 (M.D.Ala. 1966); Carr v. Montgomery County Bd.
of Educ., 253 F.Supp. 306 (M.D.Ala. 1966).
** Lee v. Macon County Bd. of Educ., 267 F.Supp. 458 (M.D.
Ala. 1967).
** Lee v. Macon County Bd. of Educ., 283 F.Supp. 194 (MLD.
Ala. 1968).
** Carr v. Montgomery County Bd. of Educ., 289 F.Supp. 647
(M.D.Ala.), aff'd as modified, 400 F.2d 1 (5th Cir. 1968), aff'd
395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969).
** Parker v. Franklin, 223 F.Supp. 724 (M.D.Ala.), aff'd as
modified, 331 F.2d 841 (5th Cir. 1964).
*? Lee v. Macon County Bd. of Educ., 317 F.Supp. 103 (MD.
Ala. 1970), aff'd 453 F.2d 524 (5th Cir. 1971).
4la
Opinion dated May 22, 1974
unremedied. In adopting the school board’s plan providing
for elementary schools under a “neighborhood” system, this
Court in all respects is following the mandate of the Four-
teenth Amendment and has arrived at the conclusions stated
herein upon an evaluation of the Montgomery school sys-
tem as a whole.
* . . °
Opinion dated May 23, 1974 Opinion dated May 23, 1974
TABLE 1 TABLE 2
FACULTY DCSFGREGATION EN EMENTARY,
— 1974-75 Actual Enrollment, March, 1974 Projected Under Board Plan
September Projectrons .
wane of School Black White Black Wie | SCHOOL Bish | White | Iota | 22 Diack | Diack | White | Total %_ Black
1 | Baldwin 18 22 e ? REAR 7s $03 578 12.9% 1m $05 on 27%
2 | tear " 7 - a BELLINGER WiLL ELEM. 108 a2 130 7 186 ry) 229 a
> | peteingee oem 2 ; SELUINGRATIN ELEM. ils a i? 35 iis 190 25 3
: $ U 300K WASH. LEM. 253 1 7 | 235 4 259 cr)
Sotiarom 17 28 18 25 cart WGTS ELEM. 120 cy 309 | 205 ne iv vii s
S | Rooker T. Washingten (Elementary) 6 ? 6 6 caaver a tee. b4o 2 ts had 421 i 423 ”
s Booker T Washington (ir. Mich) 5 6 Te be oo a") 70 iss 25) WZ e) 4 154 27 29
> | Capitol Meignts (E ; i Cy, Tom FEM. 127 oe 90 | __Clesed-asigred te Dalrada sad Wend
ee toy ae 3s s U CHISHOLM FLPM, er) 545 903 iv Oa CS OT
8 | Capito! Heights (ir High) 7 25 15 22 cRunP Elf i ” ) i” n 263 703 “s | 2
9 | Carver (Llementary) 5 19 ? 10 DAISY | | AWRENCE CLEM. 449 -7 4% 48 “5 7 432 8
10 | Carver (ir. Hight ; DALRATDA ELEM. 69 377 oo 106 153 428 sat a
a theme dim, Gan 2 » ba OANNECLY ELF. % | 5 | ion 73 | 236] aa] 720 v2
Lh = 2 25 Lhd 28 Oav's ELEM. 627 “0 ie a7 615 nn 106 a7
12 | Cetoma 3 é ‘ ‘ cun@aa ELEM. i 30 yao av vo ry) mA 7
13 | Chilton 4 ‘ & aleene FPwS ELEM ry 2 rr} a) “wo; oT 99
14 | Chisholm Ti 7” - on Flowtas flee 126 628 4 | te? 169 573 a2 23
as le FivvO Fie. 191 v2 303 Te) 145 v9 467 32
ae 19 27 18 24 FONeST AVENUE ELEW. i” 2e9 “s ws | ln TT er Tae “on
o6 | Comp 1a 16 13 19 Ct GIA WASH. FLEW, 323 ; 26 nn Se ee
La Darsy Lawrence 9 3 7 el COCO* ST. ELEM. 279 1 290 9” [oe eins te ernie fae hantveaoped
38 | Ostveies WaRR'SOn ELEM. 2% CED 7 ty) ios 7] 427 él
36} Ost n 13 a n - = 2 See
- : WAYRY 70 tiem. 89 79 708 % 09 a) 8:86 eee
Danae tty 14 19 10 3 MEO CLEP. 63 : Bo wee: 1:6 415] 6) 26
St _e n 17 nn 7 wie Wan AV. FLEM, 6 Us ae 03 i) 27? ya? 30
a cane a be a = ee ee ee
22 | Dunbar ; 3 > - wiv ANO GAPOENS FL or) 355 oa 375 35 i | 6ue rT)
29 | Gens —_ JuNHSON ELEM. ) 357 ws | 79 175 590 2 rz)
2s |r : * 2° * aks i Oe ee ae wae
— w ” iT 15 tect aF thew [sis S_[ s20_ [a2 OT Comal ith Levrlens
~~. = pane. 17 26 9 29 evitian elf [oa Ties J 30 $e — damn a 2
25 | Forest Avenue ? : ’ ‘ Mato A bE 142 a Se [Cie awigeed to tasters 'y-pass
[26 | Gecryia Washington 2 J wo _. | mOeniNevitw ELEM 13a 407 sa 22 ae Le 22
° : 13 6 = PnTenscd €1eM, “7 Y ’ ) Ses | 24 | 600 "
27 | Goode Street t ? 3 5 Bc Te Row FLED. ez) Ls ee ae 7
120} Goetny 22 32 22 2a Praitiria €lew 298 “| a | 9 | oo [| wl 70 | 9»
29 | Harris « a -" 7 pple Awe tie. is? 491 038 24 2?) oo | #75 ey
»0 Haynesitie Ro Rout : 2 ae. autts af-PASS EL. | ce ee 20
; re 23 15 7 cancabcaas m0 FLEM. 138 a] 297 a8
20 Sones ’ 3 8 ni y TwiAts va | Five | Tae tame Fee Pie see
32 | Wightard Avenue 7 0 ? $
33 | Highian! Gardens 1s 2 1s = 20 Tt a ! x
34 | Houston Hill ® 4 s 33 . Blok Wate | Istal 22 Black Block White | total Xe Blass
95 | defieron Dovis 2 7 wr ee BA! OWI JR. ssa os | 193 467 290 107 97 ”
So oa 61 xe 59 —_— - ,
30 | non 10 ; “a BELLINGRAIH JR. ora 37) | 1.083 |] of | te 39) | 1,089 62
37 ante = : = eck. WASH. OR 221 a 221 =) Consol. wit? Cast Tigts., Crow, wad Mowston Hilt
-— ms 2 30 > Cape WATS. Ja nS we | ite | & a2 ro J] Lin 8
50h te _ 35 o 40 6s caaven Te 334 0 sis | to sa] 545 895 a)
2h Lenetore 3 14 6 » | COVEROALE JR ise | 1,15) | 1,507 a3 ay | 6 | ine |
40 | pectargre wae nae r f.oveo 89 375 aT) Py 78 ‘41 T 3
a_| Mactivton — = 2 Lis javav 80 J® 280 i7 Fu 902 | Consol. “9ith Ficyt and Gonder
— ae ee U ‘ a © WASiNGTON IR. rT?) 9 Teo | 108 37 jan [| 1,39 yi
42 | trades Vark 3 5 Te talent WOOOWYN J@ 29 | 1399 | 19%8 ie $40 | 1.091 | i570 ya
43_ | Monton ory Avea Voc. @an s | ww - a iOUSTON WL ie 37 3e3 85 210 38) 393 35
i on nh Mcintyre
a4 Monte County High aq LOVELESS Je. 353 vy 353 100 Consol wit
Ar a — . * » — 32 MelnTYRe J m 8 409 % 792 14 Boe a)
—_——— 10 » ’ WB TOTALS 439 | 5254 | 9004 TS SI T8783
46 _| Patervan Bim 4 nl iT]
LS? _] Petersen < : n é » an eel Total | % Bleck
pt Se 4 é P ‘ Diack | White | Totot | % Black | Black | White
| lett 0 M4 8 CARVER SR. 958 | we | 499_| oso | 1.099 | 99
59 | Union St. Avea Voc. Center -_ JEFF. OAviS SR aia | ieee | 2000 |. 198 ges | 1426 [2 208 33
10 3 14 17 ee is | 3
$1 Es. (OM Bypass (F tementa-y) LANIER - st 4,200 Ri] = =e —_ 2 ore
moe —= u = = 10 le ite oor | 152?) | 2,108 2 929 | 1500 | 2.489 by
LSS | Vere Seed (Stomentary! - —_ , 12 icy. CO. HIGH SA. m1 el 52 us >) rs) wa m
r os TOTALS 3373 | 4.550 | 7,923 3452 | 4777 | 8.229
d4a
Opinion dated April 11, 1975
ArtaM Carr, Jz, a minor by Arlam Carr and
Johnnie Carr, etce., et al.,
Plaintiff s-A ppellants,
NationaL Epvucation Association, Inc.,
Intervenor,
PeweLorpe ANNE JENKINS, ET AL,
Intervenors-A ppellants,
v.
Montoomery County Boarp or Epucation, et AL., ETC.,
Defendants-A ppellees,
Unrrep States or America,
Amicus Curiae,
No. 74-2633.
United States Court of Appeals,
Fifth Circuit.
April 11, 1975.
Before Gewix, Gotpserc and Dyer, Circuit Judges.
Per Curmum:
We affirm the judgment of the district court for the
reasons set forth in its opinion, 377 F.Supp. 1123 (M.D.
Ala. 1974). The judgment of the district court is attached
as Appendix A. We take note of the history of this liti-
gation as reflected by the opinions of the district court,
this court, and the Supreme Court cited in the district
court’s opinion. The Montgomery County school system
has been under the scrutiny and surveillance of the fed-
eral judiciary for a substantial period of time and such
scrutiny and surveillance will continue.
Affirmed.
ee re ee ee ee Le re ae eee nee
45a
Opinion dated April 11, 1975
APPENDIX A
In tHe Unrrep States District Covurr
FOR THE Mippie District or ALABAMA
NorTHERN Division
Artam Carr, JR., ET AL.,
Plaintiffs,
NationaL Epucation Association, Lwc.;
PeneLore ANNE JENKINS, ET AL.,
Plaintiff-Intervenors,
Unrrep States or AMERICA,
Amicus Curiae,
We
MontcomMery County Boarp or EpvucarTIon, ET AL.,
Defendants.
Civil Action No. 2072-N
JUDGMENT
Pursuant to the findings of fact and conclusions of law
made and entered in a memorandum opinion filed in this
cause this date, it is the order, judgment and decree of
this Court that:
1. The plans presented by the plaintiffs and plaintiff-
intervenors for the further desegration of the Montgomery
County school system be and are hereby rejected.
2. The plan presented by the defendant Montgomery
County Board of Education on January 15, 1974, revised
on March 29, 1974, and modified on May 8, 1974, be and is
hereby approved and ordered implemented.
46a
Opinion dated April 11, 1975
3. The school board’s plan will be implemented forth-
with, with the student assignments to the various schools
within the system to be effective with the commencement
of the 1974-75 school year.
4. The school board will file with the Court on Sep-
tember 15, 1974, and on February 15, 1975, and on said
dates each year thereafter, written reports reflecting the
actual student and teacher assignments, by race, in each
school in the system.
5. The costs incurred in this proceeding be and they
are hereby taxed one-half against the plaintiffs and one-
half against the plaintiff-intervenors.
Done, this the 22nd day of May, 1974.
/8/ Frayx M. Jounson
United States District Judge
Goxpserc, Circuit Judge (dissenting) :
Respectfully, but without equivocation, I dissent.
This suit was brought in 1964 to desegregate the public
schools in Montgomery County, Alabama. Its progress has
been recorded at several stages in opinions by the able
District Judge, by this Court, and by the Supreme Court.
In August, 1973, the district court ordered the parties then
in this ease—the plaintiffs, the defendant School Board,
and the United States—to submit proposals for further
desegregation of the Montgomery County system in light of
' Carr v. Montgomery County Bd. of Educ., M.D
F.Supp. 705; further relief ordered, 1966, 253 F Sapp, 208, og
ther relief ordered, 1968, 289 F.Supp. 647, aff'd, 5 Cir., 400 F 24
1, aff'd, 1969, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Bd.2d 263. further
relief ordered by district court, 1970, [unreported] aff'd with
modifications, 5 Cir. 1970, 429 F2d 382.
47a
Opinion dated April 11, 1975
e
decisions by this Court and the Supreme Court since the
entry in 1970 of the last comprehensive order in the case.
One week later, plaintiffs-intervenors, Jenkins, et al., filed
their motion to intervene, which was granted in February,
1974. During the first four months of 1974, plaintiffs,
plaintiffs-intervenors, and the School Board each prepared
and proposed new pupil assignment plans. Hearings were
held on each plan in April. The School Board amended its
plan in response to prodding from the Rench, and in an or-
der entered May 22, 1974, and opinion reported at 377
F.Supp. 1123, the district court adopted the School Board
plan, as amended, in its entirety. Costs were taxed half
against the plaintiffs and half against the plaintiffs-in-
tervenors.
The plaintiffs, the plaintiffs-intervenors, and the United
States appeal, arguing between them that the district court
erred in adopting the School Board’s plan for the assign-
ment of elementary and junior high school students, that
the School Board assignment plan saddles black elementary
school students with a disproportionate transportation bur-
den, and that costs should have been taxed against the
School Board.
I would hold that the district court should not have
adopted the School Board’s proposed assignment plan for
the elementary grades because it fell short of establishing
a unitary school system, and there was no sufficient find-
ing that no workable alternative could be implemented.
The record indicates additionally that the School Board
plan for the assignment of junior high students, as im-
plemented, fails to comply with constitutional mandates.
According!y, I would remand to the district court for fur-
ther proceedings to develop workable unitary school assign-
ment plans for the elementary and junior high grades.
48a
Opinion dated April 11, 1975
In light of this I would find it unnecessary at the time to
pass on the appellants’ claims of unequal transportation
burdens. I would vacate the district court's award of costs
in favor of the School Board, to permit the entry of an
appropriate award after the further proceedings on remand.
I
Background
For the 1973-74 term, Montgomery County public schools
enrolled 36,016 students, 17,042 (47%) of whom were black,
and 18,974 (53%) white, in some 54 regular schools, or-
ganized along a 1-6, 7-9, 10-12 pattern. The 36 elementary
schools enrolled 18,449 students (9,279, or 50%, black),
the 13 junior high schools, 9,644 (4,390, or 45%, black),
and the 5 high schools 7,923 (3,373, or 43%, black).? All
but 7 of the schools then in use stood within the corporate
limits of the City of Montgomery, and the total county
population is similarly concentrated within the City.
The student population residing in the area of Mont-
gomery County outside the City is predominantly black.
Within the City the student population is predominantly
white: the eastern half of the City is more concentratedly
white; most of the western half is virtually all-black; and
a narrow integrated corridor running North-South bisects
the City. Under the desegregation plan adopted in 1970
and effective in 1973-74, most pupils within the City were
assigned to neighborhood schools. Outside the City, school
children in all but the extreme south of the county* were
*I rely here upon the figures referenced in the district court's
opinion, although the plaintiffs-intervenors assign some minor
inaccuracies thereto.
* These students attended Dunbar Elementary School (1-6),
and Montgomery County High School (7-12), both of which re-
main virtually all-black under all plans proposed to the district
court.
49a
Opinion dated April 11, 1975
organized into “periphery zones.” Most of these “periph-
ery zone” students were bused to schools in the City, and
they made up the majority of the 11,176 students (31%)
bused by the county.‘
Implementation of the neighborhood assignment based
plan adopted in 1970 left a high number of all-one-race or
virtually all-one-race schools. The record discloses that in
the Spring of 1974, 15 elementary schools were 87% or
more black, and 6 were 87% or more white; 6 junior highs
were 94% or more black, another was 85% black, and 1
was 90% white; 1 senior high was 99% black, and another
was 86% black. Responding to these conditions, in its order
below the district court replaced its 1970 plan with the
School Board’s most current proposal. That plan adheres
to the techniques employed in the 1970 plan, and, unlike
the plans suggested by the plaintiffs and plaintiffs-inter-
venors, eschews pairing or clustering of schools.
At the high school level, the School Board plan employs
rezoning and peripheral reassignments to reduce the per-
centages of black students at each City school to 33-48% ;
only Montgomery County High School, in the extreme south
of the County, retains an 87% black student body.’ None
of the appellants question the propriety of this high school
plan, and it requires no further discussion. Rather, this
appeal was brought to test the constitutional sufficiency of
the School Board’s student assignment plans for the ele-
mentary and junior high levels. I will discuss each of the
two educational stages in turn.
‘During the 1973-74 term, some 5,388 elementary school stu-
dents, 3,759 junior high students, and 2,029 senior high students
were bused.
° See Appendix C; see also note 35 infra.
50a
Opinion dated April 11, 1975
II
Elementary School Plan
The plaintiffs and plaintiffs-intervenors each proposed
alternative plans for assignment of ¢lementary school stu-
dents. Each plan aimed at eliminating “racially identifi-
able” schools, defined at the outset by each plan’s architect
as a school whose racial balance varied more than 10-15%
from the racial make-up of the county-wide student body
for that level. Neither plan clung strictly to such statistical
profiles, however, and each left at least one virtually all-
black elementary school.
The plaintiffs’ plan was directed only toward the ele-
mentary schools within the City. It generally retained the
zone lines drawn by the School Board, but changed assign-
ment patterns within those zones through pairing and clus-
tering, and some modification of peripheral assignments,
to reach a 24-66% black concentration in each city school.
The district court calculated that implementation of the
plaintiffs’ plan would require reassignment of 43% of the
elementary school population and additional transportation
of 28% of the elementary student body. The district court
concluded that the plaintiffs’ plan was designed “for the
sole purpose of attaining a strict racial balance in each
elementary school involved,” 377 F.Supp. at 1129, and that
the increased busing, large scale reassignment of students
and teachers, and the “fracturization of grade structure”
inherent in pairing and clustering, “be disruptive to the
educational processes and would place an excessive and
unnecessarily heavy administrative burden on the school
system.” Id.
The plaintiffs-intervenors proposed a more complicated
overhaul of elementary school assignments. Their plans
5la
Opinion dated April 11, 1975
abandoned the School Board zone lines, replacing them with
two sets of new zones: one set of strip zones, running gen-
erally North-South, for grades 1-3; another set of strip
zones, running generally East-West, for grades 4-6. Utiliz-
ing this basic network the plaintiffs-intervenors offered
two possible plans. The simpler plan merely assigned stu-
dents to the school within their proposed contiguous zone.
This left 400 black students in grades 4-6 in a school 81%
black, and 2233 of the black primary grade 1-3 children in
schools 84% or more black. The plaintiffs-intervenors’
alternative, and preferred, plan retained their grade 4-6
zone pattern and the single 81% black school, but added
satellite zoning to the primary grade assignments, reduc-
ing to 402 the total of black students in one 84% black
primary school. The plaintiffs-intervenors’ plan offered
transportation advantages over the plantiffs’ plan, requir-
ing additional busing for only 11% of the elementary school
students, according to the district court. There was evi-
dence that the plaintiffs-intervenors’ plan would prove the
more likely thwarted in practice, however, and the district
court found that implementation of either of the plaintiff-
intervenors’ plans would involve reassignment of 60-70%
of all of the elementary school population. The district
ecurt entered no specific findings as to the workability of
the plaintiffs-intervenors’ plans.
The School Board plan adopted by the district court for
the assignment of elementary school children furthers de-
segregation by closing 5 previously virtually all-black ele-
mentary schools and assigning some pupils from these
schools to predominantly white schools, and by reassigning
some 400 black students at another virtually all-black school
to 4 predominantly white schools. Under this plan, how-
ever, 55% of the black students were projected to be en-
eT RT ee
52a
Opinion dated April 11, 1975
rolled at elementary schools 87% or more black, and 44%
were expected to attend elementary schools 93% or more
black. The statistics showing actual enrollment as of Sep-
tember 15, 1974, demonstrate that the true profiles are
slightly worse.’ Under the School Board plan no white
elementary school students were reassigned to a school
that would remain predominantly black. The School Board
estimated that its elementary school plan would produce
a significant net reduction of transportation.
A
Unitary School System
As the Supreme Court established in Green v. School
Bd. of New Kent County, 1968, 391 U.S. 430, 436, 88 S.Ct.
1689, 1693, 20 L.Ed.2d 716, 722, “The transition to a uni-
tary, nonracial system of public education . . . is the ulti-
mate end to be brought about” in school desegregation
eases. In this pursuit the school authorities and district
court “will . . . necessarily be concerned with the elimina-
tion of one-race schools.” Swann v. Charlotte-Mecklenburg
Bd. of Educe., 1971, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28
L.Ed.2d 554, 572. The district court, relying on Ellis v.
Board of Public Instruc. of Orange County, 5 Cir. 1970,
423 F.2d 203 (Ellis 1), concluded, however, that the per-
sistence of virtually all-black elementary schools in Mont-
gomery County under the School Board’s “neighborhood
assignment” plan did not prevent that system from reach-
ing the unitary status mandated by Green. I disagree.
* See Appendix A & note 37 infra.
53a
Opinion dated April 11, 197%
Ellis I approved, as modified,’ a student desegregation
plan for Orange County, Florida, which was based on
neighborhood school assignments and ieft several virtually
all-black schools. We held that “[u]nder the facts of this
case, it happens that the school board’s choice of a neigh-
borhood assignment system is adequate to convert the Or-
ange County school system from a dual to a unitary sys-
tem.” 423 F.2d at 208, n. 7. Ellis I did not, however,
automatically sanctify any “neighborhood school” student
assignment plan which placed the same percentages of stu-
dents in fully integrated schools. Rather, as we explicitly
cautioned,
There are many variables in the student assignment
approach necessary to bring about unitary school sys-
tems. The answer in each case turns, in the final anal-
ysis, as here, on all of the facts including those which
are peculiar to the particular system.
423 F.2d at 208, n. 7. This passage has become a refrain
in our school desegregation decisions.’ Indeed, our school
desegregation cases are too numerous, their facts, figures,
and conditions too particular, and our remedies too flexibly
fashioned, to lend themselves to a simple sorting into neat
rows. But I believe that the weight of our pre-Swann
decisions adopting and adapting the neighborhood assign-
ment approach of Lillis I do not permit us to certify the
School Board’s plan for Montgomery as the achievement
* The district court’s opinion below, 377 F.Supp. at 1137 n.36,
erroneously reads the Ellis I opinion as approving the degree of
desegregation under the Orange County plan without modifica-
‘tion.
* See, e.g., Henry v. Clarksdale Mun. Sep. Sch. Dist., 5 Cir.
1970, 433 F.2d 387, 390; Andrews v. City of Monroe, 5 Cir. 1970,
425 F.2d 1017, 1019.
i a i a ak aa
54a
Opmmion dated April 11, 1975
of a unitary system.’ As we concluded in Allen v. Board of
Public Instruc. of Broward County, 5 Cir. 1970, 432 F.2d
362, “In the conversion from dual school systems based
on race to unitary school systems, the continued existence
of all-black or virtually all-black schools is unacceptable
where reasonable alternatives exist.” 1°
Even were the School Board’s plan adequate to achieve
a unitary school system under Ellis J and the cases im-
mediately following it, however, I think it manifest that the
School Board’s plan cannot stand after Swann, Davis v.
Board of School Comm’rs of Mobile County, 1971, 402 U.S.
33, 91-S.Ct. 1289, 28 L.Ed.2d 577, and Keyes v. School Dis-
trict No. 1, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548.
Swann shed new light on the constitutional requisites in
school desegregation cases, and since Swann we have re-
fused to accept mere compliance with our decision in Ellis I
as the mark of a school board plan’s constitutional suffi-
* See, e.g., Ross v Eckels, 5 Cir. 1970
See, e9., . Eckels, , 4384 F.2d 1140, ;
denied, 1971, 402 U.S. 953, 91 S.Ct. 1614, 29 L.Ed.2d 123; Valley
School Bd., 5 Cir. 1970, 434 F.2d 35. AN]
. ’ 3 .2d 35; en v. Board i
ae. of Broward County, 5 Cir. 1970, 432 Fd + peony
denied, 1971, 402 U.S. 952, 91 S.Ct. 1609, 1612, 29 L.Ed.2a 193.
ate y. Dade County School Bd., 5 Cir. 1970, 434 Fd 1151)
Bradley v. Board of Public Instruc. of Pinellas County, 5 Cir.
*® Quoted with approval in Boyki
5 Cir. 1972, 457 F.2d 1 091, 1 cox’ ins v. Fairfield Bd. of Educ.,
50a
Opinion dated April 11, 1975
ciency. Indeed, we held Ellis v. Board of Public Instruc.
of Orange County, 5 Cir. 1972, 465 F.2d 878, cert. denied,
1973, 410 U.S. 966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (Ellis IT),
that the school board was obliged to desegregate each all-
black school remaining in Orange County under our prior
holding."' See also Dandridge v. Jefferson Parish School
Bd., 5 Cir. 1972, 456 F.2d 552, 554," cert. denied, 1972, 409
U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240.
The concentration of black students in virtually ail-black
schools contradicts the assertion that the School Board’s
plan for Montgomery establishes a unitary school system
under these controlling standards. Compare, e. g., Swann,
supra; Davis, supra; Ellis II, supra; Flax v. Potts, 5 Cir.
1972, 464 F.2d 865, 869, cert. denied, 1972, 409 U.S. 1007,
93 S.Ct. 433, 34 L.Ed.2d 299 (middle schools, high schools) ;
Dandridge v. Jefferson Parish School Bd., 5 Cir. 1972, 456
F.2d 552, cert. denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34
L.Ed.2d 240; cases cited, note 9 supra; see also Keyes v.
School Dist. No. 1, 1973, 413 U.S. 189, 199, n. 10, 93 S.Ct.
2686, 2692, 37 L.Ed.2d 548, 558. The teaching of Swann
and Keyes is that no school which reflects vestigial dis-
crimination through its virtually single-race student body
ean be omitted from a desegregation plan unless inclusion
is unworkable; where desegregation is possible we can
1! We found the Orange County system could be unitary, how-
ever, although two elementary schools, to which 7% of the sys-
tem’s black elementary students were assigned, continued with
79% black enrollments, where 14% of the system’s black students
had employed the majority to minority transfer program.
1? Compare Lee v. Macon County Bd. of Educ. (Anniston), 5
Cir. 1973, 483 F.2d 244 (post-Swann), with Lee v. Macon County
Bd. of Educ. (Anniston), 5 Cir. 1970, 429 F.2d 1218 (pre-Swann).
But cf. Lee v. Macon County Bd. of Educ. (Troy), 5 Cir: 1973,
475 F.2d 748 (apparently denying interim relief only).
56a
Opinion dated April 11, 1975
tolerate no abandonment of some given portion of students
locked into a uniracial educational experience.
In appraising a school board’s plan we are, of course,
attentive to conditions other than racial concentrations. I
cannot agree, however, with the suggestion that compliance
with the remaining five of the six requirements established
in Green v. School Board of New Kent County, 1968, 391
U.S. 430, 435, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716, 722—
“faculty, staff, transportation, extra-curricular activities
and facilities’—can immunize the School Board’s plan.**
So to conclude would ignore that “lijn Green the court
spoke in terms of the whole system,” Ellis I, 423 F.2d at
204, and would disregard the recognition that student as-
signment is the most important single aspect of a desegre-
gated school system. Our cases have always required com-
pliance with all six particulars. The School Board addi-
tionally argues that the secondary schools in Montgomery
County are desegregated, and points out that we have taken
note of thorough integration at the secondary level, in
some cases approving assignment plans which left some
all-black primary schools. See Lee v. City of Troy Bd.
8 See 377 F.Supp. at 1138. I assume arguendo that the Board
plan complies with the remaining five benchmarks enumerated in
Green.
'* See, e.g., Ellis II, supra; Valley v. Rapides, 5 Cir. 1970, 434
F.2d 144; Allen v. Board of Public Instruc. of Broward County,
5 Cir. 1970, 432 F.2d 362, cert. denied, 1971, 402 U.S. 952. 91
S.Ct. 1609, 1612, 29 L.Ed.2d 123; Pate v. Dade County School
Bd., 5 Cir. 1970, 434 F.2d 1151, cert. denied, 1971, 402 U.S. 953,
91 S.Ct. 1613, 29 L.Ed.2d 123; Henry v. Clarksdale Mun. Sep.
School Dist., 5 Cir. 1970, 433 F.2d 387 ; Bradley v. Board of Pub-
lie Instrue. of Pinellas County, 5 Cir. 1970, 431 F.2d 1377, cert.
denied, 1971, 402 U.S. 943, 91 S.Ct. 1608, 29 L.Ed 2a 111; City of
Monroe v. Andrews, 5 Cir. 1970, 425 F.2d 1017. See generally
Singleton v. Jackson Mun. Sup. School Dist., 5 Cir. (en banc)
1970, 419 F.2d 1211.
57a
Opinion dated April 11, 1975
of Educ., 5 Cir. 1970, 432 F.2d 819, 822; Hightower v. West,
5 Cir. 1970, 430 F.2d 552, 555. This argument also fails
here. Even assuming arguendo that the secondary schools
in Montgomery County were fully integrated, we would as
in the pre-Swann cases relied upon by the School Board,
attach little weight to that consideration. Moreover, as it
has become quite clear, “(T]his court has, with limited
exceptions [not applicable here] disapproved of school
board plans which exclude a certain age grouping from
school desegregation.” Arvizu v. Waco Indep. School Dist.,
5 Cir. 1974, 495 F.2d 499, 503."° In the light of Swann and
our developed case law, it is manifest that the progressive
integration of Montgomery’s high schools is no excuse for
the continued failure to desegregate at the elementary
level.**
In sum, a neighborhood school assignment plan may be
adequate if it establishes a unitavy school system; but
such assignment is not “per se adequate.” Davis v. Board
of School Comm’rs of Mobile County, 1971, 402 U.S. at 37,
91 S.Ct. at 1292, 28 L.Ed.2d at 581. A review of the cir-
cumstances of the Montgomery County system, particularly
** In some cases it may prove necessary to avoid transportation
of school children of very tender age, see generally Swann, 402
U.S. at 31, 91 S.Ct. at 1283, 28 L.Ed.2d at 575; Cisneros v. Corpus
Christi Indep. School Dist., 5 Cir. (en bane) 1972, 467 F.2d 142,
153, cert. denied, 1973, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d
1044. But such exceptions are carefully limited, see, e.g., Flax
v. Potts, 5 Cir., 1972, 464 F.2d 865, 869, cert. denied, 1972, 409
U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299; Lockett v. Board of
Edue. of Museogee County School Dist., 5 Cir. 1971, 447 F.2d
472, 473; ef. Lee v. Macon County Bd. of Edue., 5 Cir. 1973, 475
F.2d 748 (apparently denying interim relief only).
%®In cases where racially identifiable primary schools cannot
feasibly be eradicated, of course, a district court should endeavor
particularly to insure that students from such schools will gradu-
ate to fully integrated schools.
58a
Opinion dated April 11, 1975
the concentration of black elementary students in virtually
all-black schools, reveals that the School Board plan ap-
proved by the district court was insufficient to achieve a
unitary school system as required under Green and Swann.
Such a plan can stand only if its lack of unitary status
is not attributable to state action, or if no further remedy
is workable.
B
Residential Patterns
The district court declined to require further desegrega-
tion of the remaining virtually all-black elementary schools
in Montgomery County, in part because it considered the
persistence of those schools to be “a result of residential
patterns and not of the school board’s action—either past
or present.” 377 F.Supp. at 1132. Because the district
court’s opinion offers no supporting discussion, it is un-
clear whether the district court believed that the present
existence of virtually all-black schools could be laid in part
to residential patterns established during the period of
statutory school segregation yet not induced by that state
action, or that the development of racially identifiable
neighborhoods since the onset of efforts to integrate the
schools had precipitated the virtually all-black schools.’7
In either event, I think the district court erred in its legal
determination.
Aware that “[p]eople gravitate toward school facilities,
just as schools are located in response to the needs of
people,” the Supreme Court has recognized that
7 The record discloses that of the 11 elementary schools which
retain a projected black population over 80% under the School
Board’s “neighborhood assignment” plan, 8 (all but Bellinger
Hill, Davis, and Pintlala) had been black schools before 1970.
59a
Opinion dated April 11, 1975
[t]he location of schools may .. . influence the patterns
of residential development of a metropolitan area and
have important impact on composition of inner-city
neighborhoods.
In the past, choices in this respect have been used
as a potent weapon for creating or maintaining a state-
segregated school system.
Swann, 402 U.S. at 20, 21, 91 S.Ct. at 1278, 28 L.Ed.2d at
569.
Moreover,
[A] connection between past segregative acts and pres-
ent segregation may be present even when not appar-
ent and .. . close examination is required before
concluding that the connection does not exist. Inten-
tional school segregation in the past may have been
a factor in creating a natural environment for the
growth of further segregation.
Keyes, 413 U.S. 189, 211, 93 St.Ct. 2686, 2699, 37 L.Ed.2d
548, 565.
Accordingly, the Swann Court held that while
the existence of some small number of one-race, or vir-
tually one-race, schools within a district is not in and
of itself the mark of a system that practices segrega-
tion by law [,] .. . in a system with a history of seg-
regation the need for remedial criteria of sufficient
specificity to assure a school authority’s compliance
with its constitutional duty warrants a presumption
against schools (hat are substantially disproportionate
in their racial composition. Where the school author-
ity’s proposed plan for conversion from a dual to a
unitary system contemplates the continued existence
of some schools that are all or predominantly of one
60a
Opinion dated April 11, 1975
race, they have the burden of showing that such as-
signments are genuinely nondiscriminatory. The court
should scrutinize such schools, and the burden upon
the school authorities will be to satisfy the court that
their racial composition is not the result of present or
past discriminatory action on their part.
Swann, 402 U.S. at 26, 91 S.Ct. at 1281, 28 L.Ed.2d at 572.
The School Board may satisfy its burden “only by showing
that its past segregative acts did not create or contribute
to the current segregated condition of . . . [particular]
schools.” Keyes, 413 U.S. at 211, 93 S.Ct. at 2699, 37
L.Ed.2d at 565.
There is no evidence to support a conclusion that the
existence of virtually all-black neighborhood elementary
schools, so far as they derive from residential patterns
etched before school desegregation, is innocent of past dis-
criminatory action by the School Board. The opinion below
lacks the detailed factual findings by the district court which
should reflect the “close scrutiny” required under Swann
and Keyes, and the record bears no evidence to support the
conclusion that the link between past ind present segrega-
tion has been severed. While there is much evidence of
the residential separations between whites and blacks in
Montgomery, which in some cases shows that those pat-
terns are not new, evidence of this sort is insufficient to
overcome the presumption established in Swann connect-
ing the development of persistently segregated residential
patterns with state-mandated school segregation. See also
Dandridge v. Jefferson Parish School Bd., 5 Cir, 1972, 456
F.2d 552, cert. denied, 1972, 409 U.S. 978, 93 S.Ct. 306, 34
L.Ed. 240. —
These principles establish equally well that racial segre-
gation in the Montgomery County elementary schools can-
6la
Opinion dated April 11, 1975
not be excused on the ground that segregated residential
patterns of some neighborhoods from which the one-race
neighborhood schools draw have crystallized as the result
of population shifts by private residents since the court’s
initiation of school desegregation. Such an argument has
previously been rejected by this Court.’* To be sure, the
Supreme Court has made clear that after a school system
attains unitary status, ’
the communities served by such [a system may not]
remain demographically stable [;] ... in a growing,
‘mobile society, few will do so. Neither school authori-
ties nor district courts are constitutionally required
to make year-by-year adjustments of the racial compo-
sition of student bodies once the affirmative duty to
desegregate has been accomplished and racial discrimi-
nation through official action is eliminated from the
system.
Swann, 402 U.S. at 31-32, 91 S.Ct. at 1283, 28 L.Ed.2d at
575.
But in Montgomery a unitary system has never been
achieved, for “[t]he vestiges of state-imposed segregation
[have not] been eliminated from the assignment of elemen-
tary school students,” Flax v. Potts, 5 Cir. 1972, 464 F.2d
865, 868, cert. denied, 1972, 409 U.S. 1007, 93 S.Ct. 433, 34
L.Ed.2d 299, as required under Swann."*
8 See Flax v. Potts, 5 Cir. 1972, 464 F.2d 865, 868, cert. denied,
1972, 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299; ef. Boyd v.
Pointe Coupee Parish School Bd., 5 Cir. 1974, 505 F.2d 632;
Hereford v. Huntsville Bd. of Educ., 5 Cir. 1974, 504 F.2d 857;
Adams v. Rankin, 5 Cir. 1973, 485 F.2d 324.
9 Cf. Ellis v. Board of Public Instruc. of Orange County, 5
Cir. 1972, 465 F.2d 878, 879-80, cert. denied, 1973, 410 U.S. 966,
62a
Opinion dated April 11, 1975
C
Remedy
Because the School Board’s proposed elementary school
plan falls short of achieving a unitary system, and this
failing cannot be attributed solely to private action, the
district court should have ordered an appropriate alterna-
tive plan. As we have said before Swann and reiterated
after, “[i]n the conversion from dual school systems based
on race to unitary school systems, the continued exist-
ence of all-black or virtually all-black schools is unaccept-
able where reasonable alternatives exist.” ”°
The district court discarded the plans proposed by the
plaintiffs and plaintiffs-intervenors, after determining that
they aimed at balancing black/white student populations
on abstract ratios, rather than simply creating a unitary
assignment plan. Although the plaintiffs and plaintiffs-
intervenors protest that their use of ratios as indicators
of residually discriminatory school assignments remained
93 S.Ct. 1438, 35 L.Ed.2d 700 (Ellis II) ; Dandridge vy. Jefferson
Parish School Bd., 5 Cir., 1972, 456 F.2d 552, 554, cert. denied,
1972, 409 U.S. 978, 93 S.Ct. 306, 34 L.Ed.2d 240. Moreover, there
is even some indication of Montgomery County School Board
action since the onset of court-ordered desegregation which may
tend to perpetuate the dual system. As the district court found
at a prior stage in this litigation, the location and extent of con-
struction and expansion of elementary and secondary schools in
Montgomery County have “been designed to perpetuate, and have
the effect of perpetuating, the dual school system.” Carr. v.
Montgomery County Bd. of Educ., M_D.Ala. 1968, 289 F.Supp.
647, 652. See generally, Swann, 402 US. at 18-21, 91 S.Ct. at
1277, 28 L.Ed.2d at 568-70; cf. Keyes, 413 U.S. at 201-05, 93 S.Ct.
at 2694-2695, 37 L.Ed.2d at 559-61.
° Allen v. Board of Educ. of Broward County, 5 Cir. 1970, 432
F.2d 362, 367, cert. denied, 1971, 402 U.S. 952, 91 S.Ct. 1609,
1612, 29 L.Ed.2d 123, quoted in Boykins v. Fairfield Bd. of Educ.,
5 Cir. 1972, 457 F.2d 1091, 1095.
63a
Opinion dated April 11, 1975
within the bounds approved by the Supreme Court in
Swann, 402 U.S. at 22-25, 91 S.Ct. at 1279-1280, 28 L.Ed.2d
at 570-72, I would not hold that the district court abused
its discretion in choosing not to follow those plans. Nev-
ertheless, the elimination of those proposals did not re-
lieve the district court of its duty to exercise its “broad
power to fashion a remedy that will assure a unitary
school system,” and to “make every effort to achieve the
greatest possible degree of actual desegregation and .. .
[eliminate] one-race schools.” Swann, 404 U.S. at 16, 26,
91 S.Ct. at 1281, 28 L.Ed.2d at 567, 572. Upon determin-
ing that none of the alternatives presented was satisfac-
tory, the district court should have held further proceed-
ings to forge a workable and effective plan. See Cisneros
v. Corpus Christi Indep. School] Dist., 5 Cir. (en banc) |
1972, 467 F.2d 142, 152, cert. denied, 1973, 413 U.S. 922,
93 S.Ct. 3052, 37 L.Ed.2d 1044. The district court should
support its failure so to proceed only by a conclusion
that no further desegregation of the elementary school
population was workable on any plan.
The School Board has consistently maintained that no
workable means exists for increasing desegregation in the
elementary schools, and the district court agreed, finding
“that the remaining predominantly black schools cannot
be effectively desegregated in ‘a practical and workable
manner’ and that the School Board plan achieved ‘the
greatest possible degree of actual desegregation, taking
into account the ‘practicalities of the situation.’” 377 F.
Supp. at 1135. These conclusions are drawn on insuff-
cient or improper factual considerations, however, and are
thus inadequate as a matter of law. |
The district court reasoned that any further elementary
school desegregation would require cross-busing of black
and white students which “would not, under the circum-
64a
Opinion dated April 11, 1975
stances of this case, accomplish any realistically stable
desegregation.” 377 F.Supp, at 1132. The opinion car-
ries no discussion or subsidiary findings to explain its
concern with the stability of desegregation. Apparently
the district court was persuaded by the School Board’s
attempt” to demonstrate that busing of white children
into black neighborhoods to attend traditionally black
schools would in many cases be met with withdrawal of
white students from those schools. But it is well settled
that the threat of “white flight,” however likely, cannot
validate an otherwise insufficient desegregation remedy."
To the extent that it considered white flight as a factor re-
quiring the moderation of desegregation otherwise to be
ordered, the district court was in error.
The opinion below does not sufficiently explicate the re-
maining factors (other than stability) that the district
court appraised and the reasoning it followed in deter-
mining that no further elementary school desegregation
was feasible beyond that suggested by the School Board.
The district court simply specified the totals of children
to be reassigned and the number of students to be newly
*! The district court also forecast that the lans of i
. . J . t 4
tiffs and plaintiffs-intervenors would provide cake “an nee
unstable desegregated system.” 377 F.Supp. at 1131,
** See, e.g., Transcript, April 24, 1974, at 240,
*3 See, ¢.g., Monroe v. Board of Commissioners of Cj
son, 1968, 391 U.S, 450, 459, 88 S.Ct. 1700, 1704, ~A ‘Lhase ae
739; Lee v. Macon County Bd. of Edue. (Marengo), 5 Cir, 1972.
465 F.2d 369; United States v. Hinds County School Bd 5 Cir.
1969, 417 F.2d 852, 858, cert. denied, 1970, 396 U.S. 1032. 90 S.Ct
612, 24 L.Ed.2d 531; Lee v. Macon County. Bd. of Edue (Pick.
ens), M.D.Ala, (3 judge) 1970, 317 F.Supp. 95, 98-99. Cf. eg
Boyd v. Pointe Coupee Parish School Bd. 5 Cir, 1974, 505° Fd
632; Hereford v. Huntsville Bd. of Edue., 5 Cir, 1974, 504 F.2d
857; Adams v, Rankin, 5 Cir. 1973, 485 F2d 394.
65a
Opinion dated April 11, 1975
bused under the plaintiffs’ and plaintiffs-intervenors’ plans ;
observed without any specific findings that busing would
involve a substantial increase in the time and distance that
students would have to travel to school; and then concluded
that the plaintiffs’—but not the plaintiffs-intervenors’—
plan “would be disruptive to the educational processes and
would place an excessive and unnecessarily heavy admin-
istrative burden on the school system.” These findings are
an inadequate foundation on which the rest either a deter-
mination of the unworkability. of the proposed plans or a
conclusion that no improvement of the Board’s solution
could be obtained. Nor does the face of the record reveal
any inherent obstacle to the progress of all further desegre-
gation in Montgomery through the instruments of zoning,
pairing, and busing. Each of these tools has been approved
in Swann, 402 U.S. at 27-29, 91 S.Ct. at 1281-82, 28 L.Bd.2d
at 573-74, and Cisneros v. Corpus Christi Indep. School
Dist., 5 Cir. (en bane) 1972, 467 F.2d 142, 152-53, cert. de-
nied, 1973, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d 1044, and
repeatedly utilized in this circuit.
We have, where necessary, required both rezoning** and
pairing or clustering;** and while pairing may not be the
*4 See, e.g., Conley v. Lake Charles School Bd., 5 Cir. 1970, 434
F.2d 35, 39-41; Valley v. Rapides Parish School Bd., 5 Cir. 1970,
434 F.2d 144, 147; Pate v. Dade County School Bd., 5 Cir. 1970,
434 F.2d 1151, 1158, cert. denied, 1971, 402 U.S, 953, 91 S.Ct.
1613, 29 L.Ed.2d 123; Bradley v. Board of Publie Instrue. of
Pinellas County, 5 Cir. 1970, 431 F.2d 1377, 1381-83, cert. denied,
1971, 402 U.S. 948, 91 S.Ct. 1608, 29 L.Ed.2d 111. See also
Wright v. Board of Public Instrue. of Alachua County, 5 Cir.
1970, 431 F.2d 1200,
*5 See, e.g., Weaver v. Board of Public Instrue. of Brevard
County, 5 Cir. 1972, 467 F.2d 473, cert. denied, 1973, 410 U.S.
982, 93 S.Ct. 1498, 36 L.Ed.2d 177; Flax v. Potts, 5 Cir. 1972,
464 F.2d 865, 868-69, cert. denied, 1972, 409 U.S, 1007, 93 S.Ct.
433, 34 L.Ed.2d 299; Ross v. Eckels, 5 Cir. 1970, 434 F.2d 1140,
66a
Opinion dated April 11, 19765
remedy of first resort,** we have said and repeated that
“where all-black or virtually all-black schools remain under
a zoning plan, but it is practicable to desegregate some or
all of the black schools by using the tool of pairing, the
tool must be used.” *’ The record, insofar as it reveals the
administrative practicalities associated with rezoning and
pairing or clustering, does not appear to preclude the im-
position of all measures beyond those desired by the School
Board. The record fails to indicate in any way how Mont-
gomery’s situation differs from the conditions existing in
any of the many other school districts in which we have
specified that these measures be employed. Indeed, exami-
nation of the record suggests the feasibility of their util-
ization in several instances," Accordingly, I would hold
1148, cert. denied, 1971, 402 U.S, 953, 91 S.Ct. 1614, 29 L.Ed.2d
123; Henry v. Clarksdale Mun. Sep. School Dist., 5 Cir, 1970,
433 F.2d 387, 394-95; Allen vy, Board of Public Instrue, of Brow-
ard County, 5 Cir, 1970, 482 F.2d 362, 367-71 (citing additional
cases), cert, denied, 1971, 402 U.S, 952, 91 S.Ct. 1609, 1612, 29
Ed.2d 123, See also Miller v. Board of Educ. of Gadsden, 5 Cir,
: z3, = pe ae as v. Fairfield Bd. of Edue., 5 Cir.
, . ; Andrews v. City of 0 i
1970, 425 F.2d 1017, '1021, lpetiivecstvaialo
*© Allen v. Board of Public Instrue, of Broward County, 5 Ci
1970, 432 F.2d 362, 367, cert. denied, 1971, 402 U.S, 959.91 S.Ct.
1609, 29 L.Ed.2d 123, quoted in Flax vy. Potts, 5 Cir. 1972, 464
ko pho i” denied 1972, 409 U.S. 1007, 93 S.Ct. 433, 34
4Ed.2d 299, an oykins v. Fairfield Board of Educ. i
1972, 457 F.2d 1091, 1095, See oe
*7 See Cisneros vy. Corpus Christi Indep. School Dist., 5 Ci
(en bane) 1972, 467 F.2d 142, 153, cert. denied, 1973. 418 US
922, 93 S.Ct. 3052, 37 L.Ed.2d 1044; Conley vy, Lake Charles
School Bd:, 5 Cir. 1970, 434 F.2d 35, 39.
a regard to the initial administrative difficulties associated
with re-zoning and pairing, we emphasize “lt]he fact that a
temporary, albeit difficult, burden may be placed on the School
Board in the initial administration of the plan . . . does not
Justify in these circumstances the continuation of a less than
67a
Opinion dated April 11, 1975
that the district court erred in approving the School Board
plan, and remand the cause for implementation of a con-
stitutionally sufficient plan.
The district court entered no specific findings regarding
the extent in time or miles** of aditional busing required
to implement any of the desegregation plans before it, nor
did it express any conclusions as to whether “the time or
distance of travel [under any possible plan was] so great
as to either risk the health of the children or significantly
impinge on the educational process.” Swann, 402 U.S. at
30-31, 91 S.Ct. at 1283, 28 L.Ed.2d at 575, Certainly it is
clear that the School Board plan employs less than the
maximum busing possible, since it anticipates a significaht
reduction in elementary school student busing in the year
of implementation. Accordingly, I would direct that in
analyzing remedies for desegregation of the Montgomery
schools on remand, the district court should consider the
implementation of ac “tional busing as necessary to accom-
plish new zoning, pairing, or clustering."
unitary school system and the resulting denial of an equal edu-
cational opportunity to a certain segment of the [County] ehil-
dren.” Dandridge v. Jefferson Parish School Bd., E.D.La. 1971,
332 F.Supp. 590, 592, stay denied, 1971, 404 U.S, 1219, 92 S.Ct.
18, 19, 30 L.Ed.2d 23, 24 (Marshall, J., in chambers; quoting
cited language with approval), aff'd, 5 Cir, 1972, 456 F.2d 552,
cert. denied, 1972, 409 U.S, 978, 93 S.Ct. 306, 34 L.Ed 2d 240,
*° See Cisneros v. Corpus Christi Indep. School Dist., 5 Cir.
1972, 467 F.2d 142, 153, cert. denied, 1973, 413 U.S, 922, 93 S.Ct.
3052, 37 L.Ed.2d 1044.
* Significantly, the extent—in terms of the number of pupils
involved, and apparently the length of the trips—of additional
elementary student busing envisioned in connection with the
plaintiffs’-intervenors’ plan very closely parallels the increase in
elementary school busing under the desegregation plan imple-
mented in Swann, as reflected in the opinions in the Supreme
Court, 402 U.S. at 29-31, 91 S.Ct. at 1282-1283, 28 L.Ed.2d at
574-75, and the Fourth Circuit, 1970, 431 F.2d 138, 144-47,
68a
Opinion dated April 11, 1975
To summarize, I would hold that the district court erred
in adopting the School Board plan, because that plan falls
short of the constitutional mark, and because there is no
indication of the unworkability of a Constitutional remedy.
I do not believe the district court’s result can be upheld on
any of the arguments advanced, whether independently or
cumulatively considered, If there be no other way to de-
segregate, the tools of pairing and clustering must be used
to relieve the barricaded and beleaguered blacks from their
school garrisons. These mixing mechanisms have received
judicial blessing, and they must be employed unless mani-
festly unusable for constitutional reasons, Other innova-
tions may be considered. Nothing to achieve the constitu-
tional mandate to desegregate can be avoided because of
whimsy, white flight and fright, inconvenience, annoyance
or any other actual or conjured excuse. Desegregation of
education is a constitutional necessity and not an optional
luxury, and bland generalities will not suffice to justify
segregated schools.
I would be unwilling to require the immediate implemen-
tation of any of the alternative elementary school plans
presented, however, in light of the district court’s deter-
mination that the plans of the plaintiffs and plaintiffs-
intervenors were generated to achieve racial ratios beyond
and in contravention of the mandate of Swann, in light of
the state of the record, and in light of the opportunity re-
maining for the district court to refine and meld the various
plans before it.*' Rather I would remand the ease to the
district court for further proceedings to develop a proper
plan. We have in the past required specific and detailed
*' Cf. Adams v, Rankin County Bd. of Edue., 5 Cir. 1973. 485
F.2d 324, 326; Andrews v. City of Monroe, 5 Cir., 1970, 425 F.2d
1017, 1021.
69a
Opinion dated April 11, 1975
findings to accompany the district court’s selection of a
desegregation remedy that promises to be less effective
than alternative plans for establishing a unitary school
system.”’ This requirement is meant to secure to the re-
viewing court the full advantages of the factual appraisals
and perspective of the particularly well-situated trial court,
in order to maximize the benefits of the district court’s
informed discretion. Cf. Brown v. Board of Educ. of
Topeka, 1955, 349 U.S. 294, 299-300, 75 S.Ct. 753, 755-756,
99 1..Ed. 1083, 1105-06 (Brown II), Thus I would direct
that, if the district court should approve on remand a plan
less than fully effective in establishing a unitary school
system in Montgomery County, it must support its conclu-
sion with precise and detailed findings of fact, keeping in
mind Swann’s heavy burden upon school officials to legit-
imate any less than thorough desegregation plan on
grounds of unworkability :”
All things being equal, with no history of discrimina-
tion, it might well be desirable to assign pupils to
schools nearest their homes. But all things are not
equal in a system that has been deliberately con-
structed and maintained to enforce racial segregation.
The remedy for such segregation may be administra-
tively awkward, inconvenient, and even bizarre in
some situations and may impose burdens on some; but
82 See, e.g., Adams v. Rankin County Bd. of Edue., 5 Cir, 1973,
485 F.2d 324, 326; Boykins v. Fairfield Bd. of Educ., 5 Cir. 1972,
457 F.2d 1091, 1097; Andrews v. City of Monroe, 5 Cir. 1970, 425
F.2d 1017, 1021; ef. also, Winston-Salem/Forsyth County Bd. of
Educ., 1971, 404 U.S, 1221, 1226-27, 92 S.Ct. 1236, 1239, 31 L.Ed.
2d 441, 446 (Burger, C. J., in chambers).
*8 See also Green v. School Bd. of New Kent County, 1968, 391
U.S, 480, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716, 724.
70a
Opinion dated April 11, 1975
all awkwardness and inconvenience cannot be avoided
in the interim period when remedial adjustments are
being made to eliminate the dual school system.
402 U.S, at 28, 91 S.Ct. at 1282, 28 L.Ed.2d at 573. Many
practicalities affect the judgment and aims of school au-
thorities in pursuing their daily occupation of maintaining
a pragmatic educational system. But when the constitu-
tionally mandated establishment of a unitary school system
rests in the balance, workaday practicalities are no longer
deternnative factors. The conservation of such daily effi-
ciencies may have been a considered objective in the days
of Plessy v. Ferguson, 1896, 163 U.S. 537, 16 8.Ct. 1138,
41 L.Ed. 256, but Brown v. Board of Educ, of Topeka, 1954,
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), has
taken us down a new road. Brown and its post-adolescent
progeny have imposed upon school authorities and courts
an affirmative duty to see that such stumbling blocks in
the path of desegregation are relegated to a footnote in
history. As we observed in a prior Montgomery case,"
“This obligation is unremitting, and there can be no abdica-
tion, no matter how temporary.” A school board’s plan
may have any number of advantages when appraised in
ordinary perspective, but these give way where they im-
pede the progress of desegregation; convenience as well as
custom must bend to constitutional prescription.
Given my resolution of this aspect of the attack on the
School Board’s plan for the elementary grades, I would
find it unnecessary to consider at this time whether that
plan imposes a discriminatorily harsh burden on the black
students.
** Carr v. Montgomery County Bd. of Edue., 5 Cir. 1970, 429
F.2d 382, 386.
7la
Opinion dated April 11, 1975
It
Junior High School Plan
The junior high school student assigament plan in effect
in the Spring of 1974 left over half of the black students
in 7 junior high schools which were over 85% black. The
School Board plan, as implemented by the district court,
proposed to reduce this concentration through rezoning,
peripheral reassignments, and the elimination of three
black schools; the district court projected that McIntyre
Junior High, enrolling 792 of the County’s black junior
high students (18%) would remain the only junior high
facility*®* more than 80% black under the School Board
plan.
Both the plaintiffs and plaintiffs-intervenors submitted
alternative plans for desegregation at the junior high level.
The plaintiffs proposed to modify the basic School Board
plan through additional busing to achieve a closer racial
balance at McIntyre and two other junior high schools left
substantially black under the Board plan, Bellingrath and
Baldwin. The plaintiffs-intervenors projected a 65% black
student body at McIntyre, and a less than 60% black en-
rollment at each of 8 other junior high schools within the
** The district court’s opinion, following the style of the School
Board plan, treats the some 252 (233 black, 19 white) junior high
school students in attendance at the Montgomery County High
facility as senior high school students. The apparent premise to
this treatment is that “[i]t is conceded by all parties that Mont-
gomery County High School . . . cannot be effectively desegre-
gated because of its isolation.” 377 F.Supp. at 1138, n. 37. This
conclusion is not contested here, although the plaintiffs-interve-
nors’ plan did propose to reduce the junior high class at Mont-
gomery County High from 92% to 82% black. My figures follow
the style of the district court.
72a
Opinion dated April 11, 1975
City, under a plan of new elongated but continuous strip
zones, with transportation to be provided within each zone
where necessary. In adopting the School Board plan for
the junior high schools, the district court dismissed these
alternative proposals as too inflexibly wedded to abstract
racial balancing, and suggested that they were unfeasible.
Emphasizing the isolation of MeIntyre as the only vir-
tually all-black junior high remaining under the School
Board plan, the district court held that “under the cireum-
stances that exist in the Montgomery school system” no
further requirement of desegregation could be imposed
upon the County. 377 F.Supp. at 1139.*
Unfortunately, the data revealing the actual desegrega-
tion at the junior high schools accomplished under the
School Board plan, as of September 15, 1974, show that
“the circumstances” have changed.” False to predictions,
%6 The district court found that the plaintiffs’ proposed plan
would require reassignment of 36% of the junior high student
body, and additional transportation of about 17% ; the plaintiffs-
intervenors’ plan was forecast to require reassignment of 50-60%
and additional busing of some 20%. (The plaintiffs-intervenors
assert that the opinion below is clearly erroneous in its computa-
tion of busing required under their junior high plan; I would
not pass on the issue at this time.) The district court did not
enter any findings regarding the proportion of students reassigned,
projected to be reassigned, or newly transported under the School
Board plan. Nor does the opinion below reveal any specific con-
clusions regarding the significance of the burdens in reassigning
or transporting additional students, except that the McIntyre
facility “is impossible to effectively desegregate in a stable and
workable manner.” 377 F.Supp. at 1132.
37 See Appendix B. The actual enrollment figures as of Sep-
tember 15, 1974, are taken from the School Board’s October 1,
1974, report to the District Court, per that court’s order. These
figures are not challenged by any other parties. See Davis v.
Board of School Comm’rs of Mobile County, 1971, 402 U.S. 33, 37,
91 S.Ct. 1289, 1291, 28 L.Ed.2d 577, 580. This data is utilized in
Appendices A, B, and C.
73a
Opinion dated April 11, 1975
the student body at McIntyre Junior High is 98% black,
Baldwin is 85% black, and Bellingrath is, as I compute it,**
81% black. Thus, more than a quarter of the black junior
high school students in the City** are locked in schools 85%
or more black, and nearly 40% in schools 80% or more
black.
I would mot pass now on the academic question of the
acceptability of the Schoo] Board plan as proposed and im-
plemented by the district court. It is now clear that the
School Board plan has been unsuccessful, as implemented,
in accomplishing desegregation at the junior high level,"
and there is no indication on the record that the present
circumstances are beyond remedy. As the previous dis-
cussion of the elementary school plan should make clear,
the School Board plan for the junior high schools cannot
** The actual enrollment figures for Bellingrath, as of Septem-
ber 15, 1974, ve ee. According to the district court’s
opinion, projec attendance at the Bellingrath facility was to
be 215 (115 black, 100 white) at the dandinans level a 1049
(659 black, 390 white) at the junior high level. Actual enrollment
as of September 15, 1974, listed by the School Board is a com-
bined total of 911 (681 black, 230 white) students; no breakdown
is given as to grade levels.
The total actual attendance at Bellingrath is considerably lower
than the total projected attendance. The net over-projection is
93 black students (12% of projection), and 260 white students
(53% of _ projection ). In estimating actual attendance, I have,
conservatively, attributed the total decrease to the junior high
level, where the enrollment was projected to be 62% black, and
for which the zone was to be significantly shifted for- 1974-75.
I would, of course, direct that on remand the district court pro-
eeed to determine the actual enrollment figures with certainty.
** These percentages do not include the junior high students at
the Montgomery County Senior High facility. See note 35 infra.
*° Cf., e.g., Boyd v. Pointe Coupee Parish School, 5 Cir. 1974,
505 F.2d 632; Hereford v. Huntsville Bd. of Edue., 5 Cir. 1974,
504 F.2d 857; Adams v. Rankin County Bd. of Educe., 5 Cir.
1973, 485 F.2d 324, 325-26.
74a
Opinion dated April 11, 1975
stand as it appears, unless improvement is unworkable.
The record does not suggest what remedial plan might be
employed at this stage. I would leave that difficulty for
resolution by the district court, following whatever fur-
ther proceedings it might find to be necessary. I would
emphasize again, however, that the district court’s order
should be accompanied with supporting findings and con-
clusions of sufficient precision and detail to fully apprise
a reviewing court of its reasons and understanding.
IV
Conclusion
We deal here with a school system whose roots were
segregated by law. There is no indication that those roots
have withered away, and that the racial separation in the
present system is anything but the fruit of a tainted crop.
The School Board still plans to cultivate its gardens sep-
arately; and it does not promise ever to integrate in any
future season. Rather, its plan guarantees perennial one-
race educational experiences for over a third of the black
students within its elementary and junior high schools.
Desegregation is not impossible in Montgomery. It might
be uncomfortable, expensive, disturbing, or even disconcert-
ing. But these words are not amendments to the Four-
teenth Amendment’s commands. Much progress has been
made in Montgomery school desegregation, but medals
earned for past performance cannot justify contemporary
failure. I am confident that our respected, scholarly, and
courageous trial judge did not hesitate to apply the law
correctly as he saw it to the facts before him in Mont-
gomery. I firmly believe, however, that that view of the
75a
Opinion dated April 11, 1975
law is erroneous and in conflict with previous decisions of
the Court and the Supreme Court of the United States.
I would reverse the order of the district court insofar
as it adopts and implements the School Board plans for
elementary and junior high schools in Montgomery County,
and remand the cause for such further proceedings as
would be necessary to bring Montgomery County to a uni-
tary system. In order to permit the district court to re-
consider its award of costs against the plaintiffs and plain-
tiffs-intervenors in light of further proceedings, I would
vacate the judgment awarding costs in favor of the School
Board.
76a
Opinion dated April 11, 1975
APPENDIX A
Adoption of the School Board plan produces the following profi'tes of the
Schoo!
Bear
Rellinger Hill
Pe'tingrath
BR. T. Wesnington
Capitol Hgts
Carver
Catoma
Chisolm
Crump
Daisy Lawrence
Oiriida
Nanvelly
Davis
Ounbar
Fews
Flowers
Floyd
Forest Ave.
Harrison
Hayne ville Rd.
Head
Highland Ave.
Highland Gardens
Johnson
Loveless
MacMillan
Morningview
Puterson
Peterson
Pintlala
Soutilawna
Eastern By-Pass
Vaughan Rd.
Total
Normal
Capacity
630
elementary school student Sodies:
Projected Enrollment
Rlack
White % Black
505 27%
43 81%
100 53%
a 98%
192 38%
2 99%
154 29%
555 37%
703 27%
7 98%
423 26%
404 32%
91 87%
51 87%
3 99%
573 23%
319 32%
262 40%
427 30%
30 95%
415 26%
272 30%
551 3%
550 24%
5 99%
109 65%
586 22%
34 94%
299 37%
16 93%
492 31%
589 20%
409 32%
9,160 50%
Actual Enroliment 9/15/74 *
Black White % Black
185 40” 31%
211 35 86%
115° 100 * 53%
232 5 98%
112 178 39%
411 5 99%
54 153 26%
376 505 43%
246 745 25%
408 8 98%
143 421 25%
254 $12 33%
637 45 + 93%
328 34 91%
641 3 100%
170 533 24%
135* 2754 33%
160 283 36%
255 357 42%
705 21 97%
lll 339 25%
118 237 33%
310 3513 38%
168 527 24%
876 6 99%
195 75 72%
110 427 20%
550 36 94%
149 322 32%
196 4 98%
260 427 38%
149° 589° 20%
_199 549 27%
9,164 8,676 51%
77a
Opinion dated April 11, 1975
APPENDIX B
Aduption of the Schoo! Board plan produces the following profiles of the
junior high school student bodics:
Projected Enrolimen. Actual Fnroliment 9/15/74 *
Normal
School Capacity Black White % Black Black White % Black
Baidwin 780 290 107 73% 275 4s 85%
Bellingrath 1,230" 659 390 62% 566 * 13¢ ° 81%
Capt. Hots. 1,200 442 730 38% 345 742 32%
Carver 660 350 545 39% 354 538 40%
Cloverdale 1,170 43? 875 33% 476 £9) 35%
Floyd 1,350" 288 541 35% 264 4 467" 36%
G. Washington 1,290 357 782 31% 409 904 a
Goodwyn 1,500 540 1,031 34% 564 917 38%
Houston Hill 570 210 383 35% 248 307 45%
icIntyre 1,500 792 14 98% 881 15 98%
Montgomery Cty High -— — — — — — an
Total 4,365 5,398 45% 4,382 4,959 47%
APPENDIX C
Adoption of the Schoo! Board pian produces the fol'uwing profiles of the
senior high school student bodies:
Projected Cnroliment Actua! Enroliment 9/15/74 *
J
Schosi Capacity Black White Ve _Riack Black White Black
pana Sr 1,100 439 6600 39% 610 €73 pote
Jeif. Baves Sr. 2,300 €68 1,426 38° 65? 1,449 +
Lanier Sr. 2,250 817 1,068 43% 677 801 ‘ he
Lee Sr 2,300 929 1,560 37% €15 1,650 3 any
Montcomery Cty High’ 570 3993 86% 390 57 87%
3,452 4,777 42% 3,349 4,630 42%
toia!
Footnotes to Appendices
* See note 37. Pes
® These figures represent normal capacity for combined elementary and junior high grades.
© Estimated figures. For their cornpuiation see note 38.
4 Estimated figures. Accerding to the disirict court's Opinion projected attendan-e at the —
facility wat to be 467 (148 black, 319 white) at the elementary 'evel, end 829 (288 black, gh es
at the junior high level. Actual enroliment listed by the School Poard is a combined total o _
(399 black, 742 white) students; no break-down 1s given as to grade levels. For sake of simplici ¥.
in estimating actual cnroliment | have simply reduced the projected enrot'ments of siudents o~ ;
levels proporticnally, according to projected and actual enrotiments, by race. 1 would, of woogpe rec
that on remand the district court should proceed to determine the actua! enroliment figures with cer-
| ast en AVAILABLE
* Projected figures. No actual figures given.
* See note 37.
78a
Opinion dated June 27, 1975
ArLAM Carr, JR., a minor by Arlam Carr
and Johnnie Carr, etc., et al.,
Plaintiff s-Appellants,
NationaL Epvucation Association, Ino.,,
Intervenor,
PENELOPE ANNE JENKINS, ET AL.,
Intervenors-Appellants,
Vv.
Montoomery County Boarp or EpvucaTIon, ET AL., ETO.,
Defendants-Appellees,
Unrrep States or AMERICA,
Amicus Curiae.
No. 74-2633.
United States Court of Appeals,
Fifth Circuit.
June 27, 1975.
Own Petition ror REHEARING AND Petition For REHEARING
EN BANC
Before Gewin, Gotpserc and Dyer, Circuit Judges.
Per Curiam:
The Petition for Rehearing is denied and the Court nav-
ing been polled at the request of one of the members of the
79a
Opinion dated June 27, 1975
Court and a majority of the Circuit Judges who are in
regular active service and not having voted in favor of it,
(Rule 35 Federal Rules of Appellate Procedure; Local
Fifth Cireuit Rule 12) the Petition for Rehearing En Bane
is also denied.
Before Brown, Chief Judge, and Wispom, Grewty, Bett,
THORNBERRY, COLEMAN, GoLpperRG, ArnswortH, GopBoLp,
Dyer, Srmpson, Morcan, Ciark, Roney and Ger, Circuit
Judges.
Gotpperc, Circuit Judge, with whom Brown, Chief
Judge and Wispom and Txornperry, Circuit Judges, join
(dissenting) :
I respectfully dissent from the order denying the petition
for rehearing and petition for rehearing en bane, for the
reason stated in my dissenting opinion, 511 F.2d 1374.
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.