Petition — DeSoto Parish School Board v. United States

Supreme Court brief1978

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sues EK, JR., CLERK

in the

Supreme Court of the United States

OCTOBER TERM, 1978

No. 28-458

DESOTO PARISH SCHOOL BOARD, ET AL.,

Petitioners.

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES FIFTH CIRCUIT COURT

OF APPEALS

JOHN F. WARD, JR.

1111 South Foster Drive, Suite C

Post Office Box 65236

Baton Rouge, Louisiana 70896

(504) 923-3462

ATTORNEY FOR PETITIONERS

Supreme Court, U. $7

FILED

TABLE OF CONTENTS

PAGE

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TABLE OF AUTHORITIES

Cases: PAGE

Austin Independent School District v. United

sites, _.. U.S. _, © iL. Be. GS,

ee pcs CEE ce cate KR Kaa Tee eae bes) 6

Bush v. Orleans Parish School Board, United

States District Court, Eastern District of

Bi, © ee ee ous vc hace kec cede: a 6

Calhoun v. Cook, 522 F.2d 717, rehearing and '

rehearing en banc denied, 525 F.2d 1203 ..... 6

Carr v. Montgomery County Board of Education,

377 F. Supp. 1123, affirmed 511 F.2d 1374 (5th

Cir.), rehearing and rehearing en banc denied,

cert. denied, 96 S.Ct. 397, 423 U.S. 986, 46

OR Ne Ty oe ay er ae ee 6

Dayton Board of Education v. Brinkman,

U.S. —_, 58 L. Ed.2d 851, 97 S.Ct. ____ (June

eg | Panes ee Perea © pene ae ee Porgy 6

Green v. County School Board of New Kent County,

1968, 381 U.S. 480, 88 S.Ct. 1689, 20 L.Ed.2d

SR ALS Ad RAKE NRE CELA ee 11

Horton, et al v. Lawrence County Alabama Board

of Education, No. 77-2937 (5th Circuit, Aug.

SN eas Sve eka een ed Reka eee nee hes 6

Milliken v. Bradley, 418 U.S. 717, 41 L.Ed.2d 1069,

I Ro oe eta ao falc estes 6 6

Pasadena City Board of Education v. Spangler, 427

U.S. 424, 49 L.Ed.2d 599, 96 S.Ct. 2697 (1976) 6

Village of Arlington Heights v. Metropolitan

Housing Development Corporation, ___U.S.

—_—, 50 L.Ed.2d 450, 97 S.Ct. 555 (1977) .... 6

Washington v. Davis, 426 U.S. 229, 48 L.Ed.2d 597,

Dee PRED ac cs ikea eueevae kes 6

Statutes:

United States Constitution, Fourteenth

PI dec has 2 eee ook cease cake ee 2

In the

Supreme Court of the United States

OCTOBER TERM, 1978

No.

DESOTO PARISH SCHOOL BOARD, ET AL.,

Petitioners.

VERSUS

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES FIFTH CIRCUIT COURT

OF APPEALS

To the Honorable the Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

Petitioners pray that a writ of certiorari issue to

review the judgment of the United States Court of Ap-

peals for the Fifth Circuit, entered in the above entitled

case on June 2, 1978, rehearing denied August 2, 1978,

stay of mandate pending certiorari granted August 17,

1978.

CITATIONS TO OPINIONS BELOW

The opinion of the United States District Court for

the Middle District of Louisiana is unreported and ap-

pears herein as Appendix A. The opinion of the Court of

Appeals for the Fifth Circuit was rendered June 2, 1978,

is reported at 574 F2d 804, and appears herein as Ap-

pendix B.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on June 2, 1978. A timely applica-

tion for rehearing was denied on August 2, 1978 and

appears herein as Appertdix C. By Order issued August

17, 1978 the Court of Appeals granted a Stay of Mandate

pending the filing of this petition for writ of certiorari to

and including September 16, 1978, such Order appearing

herein as Appendix D. By Order issued September 5,

1978 the Court of Appeals denied the motion of the

United States to vacate its order of August 17, 1978

granting such Stay of Mandate, such Order appearing

herein as Appendix E. This petition for certiorari has

been filed prior to the September 16, 1978 date estab-

lished by the Court of Appeals for Stay of Mandate and

within 90 days of the August 2, 1978 denial of rehearing.

This Court’s jurisdiction is invoked under 28 U.S.C.

1254(1).

QUESTION PRESENTED FOR REVIEW

Did the Court of Appeals err (1) in reversing the

decision of the District Court with regard to this small

rural school system and (2) in remanding to the District

Court with instructions which virtually limit the District

Court to pairing of all schools?

STATUTORY PROVISIONS

Amendment XIV, Section 1 of the Constitution of

the United States.

42 U.S.C. 2000 (c) (6).

STATEMENT OF THE CASE

This school desegregation action was originally filed

by the United States in January, 1967 pursuant to Title

IV of the Civil Rights Act of 1964, 42 U.S.C. 2000(c-6).

During the ensuing years there were various proceed-

ings in the District Court as new interpretations of con-

stitutional requirements were enunciated by decisions of

this Court and the Court below which resulted in the

final order of the District Court of January 30, 1970 or-

dering implementation of a new desegregation plan ar-

rived at by the District Court after consideration of

plans submitted both by the DeSoto Parish School Board

and the Department of Health, Education and Welfare

of the United States Government, requiring same to be

implemented by February 1, 1970. Neither the United

States nor the DeSoto Parish School Board appealed

from that January, 1970 order of the District Court and

the school system has operated in accordance with that

order until the present complaint of the United States

was filed on July 15, 1975.

The present motion for further relief filed by the

United States on July 15, 1975 resulted from a complaint

filed with the Justice Department regarding the failure

of the DeSoto Parish Police Jury to rebuild a bridge,

something that had nothing whatsoever to do with the

DeSoto Parish School Board and its operation of the

school system. In fact, during the five years between the

District Court’s 1970 order and the present motion of the

United States, no citizen, black or white, has complained

to anyone with regard to the operation of the DeSoto

Parish school system. Furthermore, after the Justice

Department contacted the Superintendent of Schools

with regard to the possibility that the United States

would file a motion for further relief, the officers of three

black civic and political organizations in DeSoto Parish,

the Cavaliers Club, the NAACP, and the DeSoto Parish

Voters League, wrote the Justice Department advising

them that they had no objection or complaint with the

DeSoto Parish school system and requesting the Justice

Department to take no further action.

It should also be noted in this regard that the De-

Soto Parish School Board was reapportioned in 1971 and

subsequent elections resulted in three black citizens

being elected to the Board where they are presently

serving. When the Government’s motion for further re-

lief was filed in July, 1975, the School Board voted

unanimously to oppose the Government’s motion. We

would point out also that both prior to the decision of the

Court below, and subsequently, a contingent of both

white and black citizens and both white and black School

Board members have gone to Washington to plead with

the Justice Department, all to no avail.

DeSoto Parish is a geographically large, sparsely

populated, rural area of north Louisiana. It is bounded

on the north by the metropolitan area of Caddo Parish

(Shreveport, Louisiana). It presently operates.only elev-

en schools with a total of 5,549 students as of the pres-

ent 1978-79 school year. Of this total, 2,381 are white

and 3,168 are black for a racial ratio of 43% white and

57% black.

Stonewall High School is located in the extreme

upper northwest corner of the Parish in a predominantly

white residential area. Coming south and east, the next

school is Second Ward High School, located in the north

central portion of the Parish in a predominantly black

residential area with a decreasing population. Continuing

south. we come to the largest town in the Parish, the

town of Mansfield, located in the center of the Parish,

and in which four schools are located. Moving southwest

we find Stanley High School approximately midway be-

tween Mansfield and the Parish line and on the extreme

southwest corner of the Parish the town of Logansport

with two schools, Logansport High School and Rosen-

wald High School. Then, in the extreme southeast

corner of the Parish there are two schools, one elemen-

tary and one high school, serving the entire southeast

section of the Parish.

The number of students by race in each school and

the grade level served by such school according to pres-

ent 1978-79 enrollment figures are set forth below:

Grade

Level Enrollment Percentage

School Served Black White Black White

All Saints-Pelican

Elementary K-6 159 50 76 24

DeSoto High School 7-12 607 0 100 0

Johnson Elementary School K-6 699 0 100 0

Logansport High School K-12 75 607 11 89

Logansport Rosenwald High K-12 317 2 99 1

Mansfield Elementary K-7 274 581 32 68

Mansfield High School 8-12 166 368 31 69

Pelican-All Saints High 7-12 160 46 78 22

Second Ward High School K-12 527 1 99.9 a

Stanley High School K-12 70 267 21 79

Stonewall High School K-12 114 459 20 80

The enrollment figures for prior years are set forth in

the Appendix to the opinion of the Court below, appear-

ing as Appendix B in this petition.

REASONS FOR GRANTING THE WRIT

The decision of the Court below, although it at-

tempts to distinguish this Court’s recent decision in

Dayton Board of Education v. Brinkman, U.S.

, 53 L. Ed.2d 851, 97S.Ct. (June 27, 1977), does

not give sufficient consideration to the import of, and

limitations established, in fashioning desegregation

plans, to that decision of this Court or to other recent

decisions of this Court in Pasadena City Board of Edu-

cation v. Spangler, 427 U.S. 424, 49 L.Ed:2d 599, 96

S.Ct. 2697 (1976); Washington v. Davis, 426 U.S. 229, 48

L.Ed.2d 597, 96 S.Ct. 2040 (1976); Village of Arlington

Heights v. Metropolitan Housing Development Corpora-

tion, U.S. , 50 L.Ed.2d 450, 97 S.Ct. 555

(1977); Milliken v. Bradley, 418 U.S. 717, 41 L.Ed.2d

1069, 94 S.Ct. 3112; and Austin Independent School Dis-

trict v. United States, U.S. , 00 L.Ed. 603,

S.Ct. (1977) to such an extent as to require

review by this Court.

The decision of the Court of Appeals in this case also

appears to be in conflict with other decisions of that

Court such as Carr v. Montgomery County Board of

Education, 377 F.Supp. 1123, affirmed 511 F.2d 1374

(5th Cir.) rehearing and rehearing en banc denied, cert.

denied, 96 S.Ct. 397, 423 U.S. 986, 46 L.Ed.2d 303,

Calhoun v. Cook, 522 F.2d 717, rehearing and rehearing

en bane denied, 525 F.2d 1203 and Bush v. Orleans

Parish School Board, C.A. No. 3630 declared unitary by

District Court order of August 22, 1975 and noted with

approval by the Fifth Circuit in its denial of rehearing in

Calhoun, sepra, and its more recent decision in No. 77-

2937, Horton, et al. v. Lawrence County Alabama

Board of Education, (August 14, 1978).

The thrust of these recent decisions of this Court is

that there are limits as to how far a lower court can go in

fashioning remedies in school desegregation cases and

that the remedy cannot exceed the constitutional viola-

tion. These decisions also recognize that predominantly

one-race schools are not necessarily the result of con-

stitutional violations but may result from residential im-

paction due to causes over which the local school board

or State has no control, nor any responsibility for, and

that such result, therefore, can not be imputed to the

State or local school boards.

The decisions of the Court below in Carr, Calhoun,

and Bush, supra, approved desegregation plans which

left far more, both numerically and percentage-wise,

one-race schools than exist in this small Parish school

system. In its most recent decision in Horton, supra, the

Court below approved a desegregation plan adopted by

the District Court which, in a small school system of only

thirteen schools, with an overall population of approxi-

mately 75% white and only 25% black, permitted the

continued existence of three 100% white schools and

three schools with a black student enrollment of over

60%. The import and effect of the decision of the Court

below in this case is to pair and racially balance the

student enrollment at every school which will make each

school majority black and ultimately all black.

As a result of the 1970 Court order, the white stu-

dent enrollment in this school system dropped to approx-

imately 1,750 students. The present Superintendent of

Schools, who was appointed shortly after that Court

order went into effect, with a different attitude, recogni-

tion of his responsibilities under the law, and by working

with the citizens of DeSoto Parish, both black and white,

has been able to get white students back into the system

as shown by the present white enrollment of 2,381 stu-

dents.

This success was not achieved overnight nor did it

happen by chance. School systems do not operate in a

vacuum. A school Superintendent and a School Board

are not dealing with “numbers”; they are dealing with

people, both black and white, with their individual pre)-

udices and human frailties, and with their most prized

possession, their children. This new, young Superinten-

dent immediately went to work to try to save his school

system. He solicited assistance and guidance from the

State universities. He developed in-service programs for

his faculties and staff, and improved curriculum offer-

ings for his students. With the help of his integrated

School Board of both white and black elected citizens, he

established an open door policy and lines of communica-

tion with all segments of the community, rich and poor,

black and white.

He and his School Board have been successful. In

recent state-wide reading tests administered to stu-

dents, the students in his school system scored at or

very near the top. His students make at least as good

grades at the University as they did in high school.

However, with publication of the decision of the

Court below, the successes of the past seven years are

once again in jeopardy. The private school enrollment

again increased during this summer even though the:

Court of Appeal’s decision is not yet final. The people in

the community, both black and white, who stood up for

public education and supported the School Board and its

Superintendent during the past seven years are now

talking of giving up. And this includes leaders in both

the black and white communities. They thought they had

accomplished so much in these few years. Both black and

white citizens, parents, students and teachers were

happy with, and proud of, their school system as it is

presently operating. This attitude is evidenced not only

by statements made, but also by the complete unanimity

of black and white leaders in the community in opposing

the Government’s position as noted heretofore. It is

further evidenced by the complete unanimity of the

School Board, composed of both white and black elected

citizens, in opposing the Government’s position.

However, even with this feeling of despair, this

School Board and its Superintendent have not yet given

up. Since the decision of the Court below was rendered,

the Superintendent and several School Board members,

both black and white, have gone to the Department of

Justice in Washington to propose a plan which would

virtually pair all of the schools as apparently required by

the decision of the Court below. All they asked was for

time, a mere two years, to sell such program to the

people in the community and to call the necessary tax

elections to obtain the funds to build the new facilities

which they believed might make the Fifth Circuit’s

mandate a workable plan. They proposed to pair and

provide improved facilities at the two Logansport

schools. They proposed to improve the facilities at the

Stanley school and enlarge its zone so that it would have

a more representative racial balance. They proposed to

build a new high school to serve all high school students

in the Mansfield area and to improve and pair the

elementary schools. They proposed to improve the

facilities at both Stonewall and Second Ward, make each

a K-5 elementary school, and build a new high school in

between these two communities to serve all high school

students in both areas. They proposed to reshuffle their

faculties at each school in order to get a more represen-

tative racial balance.

The Government has refused to grant any time for

construction of these new facilities which are necessary

to make the plan work. The Government’s position is

that everything must be done immediately. The Gov-

ernment’s position is, apparently, that decisions of this

Court and the Court below prohibit them from consider-

ing anything other than a complete and total racial bal-

ance in each school immediately.

Petitioners fear that, considering the very strong

language in the opinion of the Court below and the Gov-

ernment’s insistence on total pairing and racial balanc-

ing, the District Court on remand may feel that it is

mandated to implement such requirements and would no

longer have the flexibility to require less or to grant time

for such a plan to be workable. Yet, petitioners respect-

fully submit that such a proposal, including the time re-

quired, should not appear unreasonable to reasonable

men. Petitioners believe that such a proposal, particu-

larly when requested by both black and white citizens,

falls within the flexibility of, and does not offend, the

Constitution. Petitioners respectfully submit that the

granting of time to provide these improved facilities

would not violate the spirit of this Court’s decisions,

including Green v. County School Board of New Kent

County, 391 U.S. 430, 20 L.Ed.2d 716, 88 S.Ct. 1689

(1968) cited by the Government with respect to the 2rm

“now”. Considering the facts of this case, a small system

2 tn

with integrated faculties and half of its schools inte-

grated, petitioners would respectfully submit that the

granting of time requested for these new facilities would

clearly be within the meaning and spirit of this Court’s

more recent decisions.

Petitioners would also respectfully submit that the

existence of some one-race or “out of racial balance”

schools in this school system is not absolutely prohibited.

As Justice Powell noted in his concurring opinion in Aus-

tin, supra:

“Apparently misconceiving the impact of lan-

guage in Green v. County School Board of New

Kent County, 391 U.S. 480, 442, 20 L.Ed. 716, 88

S.Ct. 1689 (1968), to the effect that there should be

no ‘negro’ school or ‘white’ school, the Court of Ap-

peals seems to believe every school must be racially

balanced to some degree . . .” (emphasis added)

For example, the Government has rejected the School

Board’s proposal that Stonewall High School and Secend

Ward High School which presently serve grades K-12 be

converted to elementary schools serving only grades K-6

with a new high school to be built in between serving all

students of both areas in grades 7-12 even though the

opinion of the Court below noted “. . . the difficulties

presented by the Stonewall and Second Ward High

Schools, which\ are located 12.8 miles apart...” (5th

Circuit Opinion, Appendix B, page 57, Footnote 32).

Petitioners respectfully submit that the parties and the

District Court will need some clarification and guidance

from this Court on remand.

As stated heretofore, school systems do not operate

in a vacuum. Fducation does not take place in a vacuum.

“Numbers” and “percentages” mean little in the context

of improving educational opportunities for each and

every child, regardless of race, color or creed, or in the

context of maintaining and improving a viable, progres-

sive educational system. Petitioners resvectfully submit

that some leeway, some flexibility, some time, must be

given educators and school boards who are; in absolute

good faith, attempting to meet their responsibilities

under the law and at the same time improve the educa-

tional opportunities of all their children. Petitioners

would respectfully suggest that such flexibility in the

instant case would fall well within the thoughts ex-

pressed in Mr. Justice Powell’s concurring opinion in

Austin, supra, when he said in Footnote 7 at page 605:

“A related equitable principle, also applicable in

fashioning a desegregation remedy, is that a court

has the duty to ‘balancle]... the individual and

collective interests.’ Milliken v. Bradley, 418 U.S.,

at 738, 41 L.Ed.2d 1069, 94 S.Ct. 3112. The indi-

vidual interests at issue here are as personal and

important as any in our society. They relate to the

family, and to the concern of parents for the welfare

and education of their children—especially those of

tender age. Families share these interests wholly

without regard to race, ethnic origin, or economic

status. It also is to be remembered, in granting

equitable relief, that a desegregation decree is

unique in that its burden falls not upon the officials

or private interests responsible for the offending

action but, rather, upon innocent children and par-

ents.” (emphasis added)

CONCLUSION

For the above and foregoing reasons, a writ of cer-

tiorari should issue to review the judgment and opinion

of the Fifth Circuit Court of Appeals.

Respectfully submitted,

JOHN F. WARD, JR.

1111 South Foster Drive, Suite C

Post Office Box 65236

Baton Rouge, Louisiana 70896

(504) 923-3462

ATTORNEY FOR PETITIONERS

CERTIFICATE

I hereby certify that I am a member of the Bar of

this Court and that two copies of the above and forego-

ing Petition for Writ of Certiorari were mailed, postage

prepaid, to the Attorneys for the United States, J. Stan-

ley Pottinger, Brian K. Landsberg, Walter W. Barnett,

and Mark L. Gross at their office at the Department of

Justice, Washington, D.C., 20530.

Baton Rouge, Louisiana, this 13th day of Sep-

tember, 1978.

JOHN F. WARD, JR.

Appendix A

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

Civil Action No. 12,589

UNITED STATES OF AMERICA

VERSUS

DESOTO PARISH SCHOOL BOARD,

ET AL

RULING ON MOTION

The United States filed the original complaint in

this cause on January 7, 1967, pursuant to Title IV of the

Civil Rights Act of 1964, 42 U.S.C. § 2000c-6, against

the DeSoto Parish School Board. In its complaint the

government alleged that the racially dual system of edu-

cation of eight all-white and seven all-black schools in the

parish deprived black students therein of their right to

equal protection of the laws as guaranteed by the United

States Constitution and the Civil Rights Act of 1964, 42

U.S.C. § 2000, et seq. On April 7, 1967 this Court (Daw-

kins, J.) ordered that defendants be permanently en-

joined from discriminating on the basis of race or color in

the operation of the DeSoto Parish School System and

that defendants take affirmative action to eliminate all

school segregation and its effects. United States v. Jef-

ferson County Board of Education, 380 F.2d 385 (5th

Cir. 1967).

After the Supreme Court’s decision in Green v.

County School Board of New Kent County, 391 U.S.

430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), Judge Daw-

kins ordered a hearing on plaintiff’s motion for supple-

mental relief to assess the sufficiency of the freedom-of-

choice plan in dismantling the dual school system in the

parish. The Court denied plaintiff’s motion, but on ap-

peal the Fifth Circuit Court of Appeals remanded the

case for certain factual findings. 403 F.2d 181 (1968). On

remand, Judge Dawkins found that the freedom-of-

choice plan then in effect had prospects for dismantling

the dual school system, thus plaintif?’s motion for sup-

plemental relief was again denied. The Court of Appeals

reversed the denial finding that the freedom-of-choice

plan had no real prospect of implementing the require-

ments of Green, supra, and required defendants to de-

velop anew plan that would satisfy the Green standards.

Hall v. St. Helena Parish School Board, 417 F.2d 801

(1969).

New plans were submitted and on August 4, 1969

Judge Dawkins rejected a plan filed by the Department

of Health, Education and Welfare and approved, with

certain modifications, the School Board’s plan. The ap-

proved plan, which provided for geographic attendance

zones in some portions of the parish and freedom-of-

choice zones in others, was to begin with the 1969-70

school year and would be fully implemented by the

1970-71 school year. When fully implemented, the

freedom-of-choice aspects of the plan would be elimi-

nated, certain portions of the parish would be geograph-

ically assigned to particular schools and all students

transported to school would be assigned to schools so

that no black student would be transported past any

formerly all-white school and no white school would be

transported past any formerly all-black school.

The United States appealed the August 4, 1969

order and the Court of Appeals reversed and remanded

the case with directions that the School Board be re-

quired to prepare for complete student desegregation by

February 1, 1970, in the event that the Supreme Court

decided Carter v. West Feliciana Parish School Board

so as to require immediate, complete desegregation. The

Supreme Court did require immediate, complete de-

segregation in Carter, 396 U.S. 290, 90 S.Ct. 608, 24

L.Ed.2d 477 (1970), thus Judge Dawkins was forced to

reconsider his order of August 4, 1969. On January 30,

1970, he ruled that the Fifth Circuit had not disapproved

of the substantive portions of the plan which the Court

had ordered into effect on August 4, but merely required

that total implementation of the plan be accomplished by

February 1, 1970. Accordingly, the Court ordered that

the plan approved on August 4, 1969 be implemented by

February 1, 1970. The DeSoto Parish school system con-

tinues to operate under that plan as of this date.

On July 24, 1975 the government filed a motion for

supplemental relief alleging that defendants have failed

to eliminate the dual system and seeking entry of an

order requiring the DeSoto Parish School Board to de-

velop, adopt and implement a comprehensive school de-

segregation plan which would fully satisfy the require-

ments of the United States Constitution as enunciated

by the Supreme Court in Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct.

1267, 28 L.Ed.2d 554 (1971), and subsequent school de-

segregation decisions of the Fifth Circuit. It is this mo-

tion which forms the basis for the present opinion.

On February 10, 1976 a hearing was held on the

merits of the government’s motion. At that hearing the

government contended (1) the schools in DeSoto Parish

ean still be identified as “white” schools or “black”

schools by the student enrollment; (2) the defendants

have continued to assign staff members to schools in a

manner that indicates that particular schools are in-

tended for students of a particular race; and (3) defen-

dants have failed to dismantle the dual transportation

system in DeSoto Parish.

A. RACIALLY IDENTIFIABLE SCHOOLS

AND DUAL TRANSPORTATION SYSTEM

Of the eleven schools now in operation in DeSoto

Parish, five were originally constructed for blacks prior

to the 1970 desegregation order.' Four of these five

schools still have a student body which is 100 per cent

black, and the fifth school’s student is 97 per cent black.?

These figures have not changed appreciably since im-

plementation of the 1970 order.?

Although the schools constructed for blacks have

remained all or practically all black even after the de-

segregation order, it is unclear whether this situation

results from the student attendance zones or from the

transportation system in effect in DeSoto Parish. From

the testimony adduced at the February 10 hearing, this

Court is inclined to believe that the transportation sys-

tem has been the primary contributor to the one-race

schools.

aes ® BL;

2See Exhibit “A”, attached hereto.

3See Exhibit “A”, attached hereto.

When DeSoto Parish maintained a dual school sys-

tem, prior to the 1970 order, it also operated a segre-

gated transportation system with one set of buses trans-

porting only white students to all-white schools and

another set of buses transporting only black students to

all-black schools.4 When questioned as to what changes

were made in the transportation system after 1970 the

Superintendent of DeSoto Parish Schools, Douglas

McLaren, stated:

“IT would say that they [the bus routes] are sub-

stantially the same.” Tr. p. 47.

When asked if the system still operates overlapping bus

routes, with one bus picking up black students and the

other picking up white students, Superintendent

McLaren stated:

“Yes. We do have some overlapping bus

routes.” Tr. p. 39.

The testimony of DeSoto Parish bus drivers as well

as transportation data submitted into evidence by the

government substantiates this Court’s opinion. Inthe

1974-75 school year, over 90 per cent of both black and

white students who were transported via school bus

rode one-race buses.> Even black students attending

formerly all-white schools rode on all-black buses.® Ad-

ditionally, virtually all of the black bus drivers employed

by DeSoto Parish are assigned to transport only black

students.’? The transcript of the February 10 hearing

4Ty, pp. 45-46.

>Government’s Exhibit 7 at pp. 11, 23, 43, 58, 74, 84, 93, 100,

125, 143 and 165.

®Tr. pp. 144-147.

7Government’s Exhibit 7 at pp. 1-4, 11, 23, 43, 58, 74, 84, 93,

100, 125, 143 and 165.

evidences many instances where one bus travels a route

picking up only white students and another bus follows

substantially the same route picking up only black stu-

dents.* The maps of the bus routes of each school dem-

onstrate overlapping segregated routes.®

Judge Dawkins’ order of January 30, 1970 provides

in part:

“Effective February 1, 19°70, no Negro student

will be transported by the DeSoto Parish School

Board past a formerly all white school that serves

the student’s class or grade level and no white stu-

dent will be transported by the DeSoto Parish

School Board past a formerly all Negro school that

serves the student’s class or grade level.”

In addition to the maintenance of segregated bus routes,

the evidence shows that the routes which exist have

been established in such a manner as to circumvent this

part of the 1970 order. This was accomplished through

the use of circuitous routes rather than utilizing the

shortest and most logical route possible. '°

In short, the Court is convinced that the DeSoto

Parish School Board has failed to dismantle the dual sys-

tem of student transportation and has failed to comply

with the spirit of the above quoted portion of Judge

Dawkins’ 1970 order. It is this failure, in the Court’s

opinion, which results in the existence of four all-black

and one almost all-black schools in an eleven-school sys-

tem.

*Tr. pp. 88-89.

*Government Exhibits 7A-7J.

Tr. pp. 82-85, 131-135.

B. TEACHER ASSIGNMENTS

The Court of Appeals for the Fifth Circuit in Single-

ton v. Jackson Municipal Separate School District, 419

F.2d 1211 (1969), held:

“Effective not later than February 1, 1970, the

principals, teachers, teacher-aides and other staff

who work directly with children at a school shall be

so assigned that in no case will the racial composi-

tion of a staff indicate that a school is intended for

Negro students or white students. For the remain-

der of the 1969-70 school year the district shall as-

sign the staff described above so that the ratio of

Negro to white teachers in each school, and the

ratio of other staff in each, are substantially the

same as each such ratio is to the teachers and other

staff, respectively, in the entire school system.”

The faculty assignment statistics set out in Exhibit “B”,

attached hereto, as well as the testimony of Superinten-

dent McLaren, reveal that the School Board has failed to

achieve the racial balance of teachers called for in Single-

ton. The five schools which were originally constructed

to serve only black students continue to have a substan-

tially higher percentage of black faculty than the schools

which were designed to serve white students, although

the ratio of black to white teachers in DeSoto Parish is

approximately 50 per cent. None of the other schools,

which were formerly all white, has a black faculty per-

centage greater than 31 per cent.

Nevertheless, a review of the racial composition of

the faculty of each school in DeSoto Parish since the time

of the 1970 order reveals that gradual, yet steady im-

provement is being made in this area in most of the

schools. Furthermore, this Court is not disposed to or-

dering school boards to achieve desegregation by im-

plementing strict mathematical ratios either in student

or teacher assignments. As the United States Supreme

Court stated in Swann v. Charlotte-Mecklenburg Board

of Education, 402 U.S. 1, 91S.Ct. 1267, 28 L.Ed.2d 554

(1971):

“ee Tf we were to read the holding of the District

Court to require, as a matter of substantive con-

stitutional right, anv particular degree of racial bal-

ance or mixing, that approach would be disapproved

and we would be obliged to reverse. The constitu-

tional command to desegregate schools does not

mean that every school in every community must

always reflect the racial composition of the school

system as a whole.” 91 S.Ct. at 1280.

In the area of teacher assignments the Court will pay

particular attention to the statistics revealed by annual

reports for future years. It is expected that the white-

black teacher ratio in each school in DeSoto Parish will

continue to improve and it is hoped that such improve-

ment will come more rapidly in the future.

CONCLUSION

The government’s motion for supplemental relief is

granted insofar as further relief from the dual transpor-

tation system is concerned. In all other respects, the

motion is denied. Plaintiff and defendants are ordered to

meet and re-examine the student transportation system

existing in DeSoto Parish and to eliminate all routes

which are overlapping and segregated. Also to be elimi-

nated are all circuitous routes which have the effect of

avoiding Judge Dawkins’ January 1970 mandate. Should

plaintiff and defendants fail to agree upon a new trans-

portation plan on or before August 20, 1976, each side

will, within five (5) days thereafter, submit its proposed

plan to the Court. Only in the event that the parties fail

to reach an agreement will this Court intervene further

into the operations of the DeSoto Parish School Board.

THUS DONE AND SIGNED in Chambers at

Shreveport, Louisiana, this 23rd day of July, 1976.

/s/) TOM STAGG

United States District Judge

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4 LNAWHOVLLY

Appendix B

UNITED STATES v. DeSOTO PARISH SCH. BD.

UNITED STATES of America,

Plaintiff-Appellant,

DeSOTO PARISH SCHOOL BOARD et al.,

Defendants-Appellees.

No. 76-3471.

United States Court of Appeals,

Fifth Circuit.

June 2, 1978.

Following judicial approval of a school desegrega-

tion plan in 1970, the United States in 1975 filed a motion

for further relief. The United States District Court for

the Western District of Louisiana at Shreveport, Tom

Stagg, J., denied the Government’s request for broad

relief and ordered only that the defendant school board

reexamine and modify the student transportation sys-

tem. The Court of Appeals, Brown, Chief Judge, held

that the District Court erred in refusing to order addi-

tional remedial measures to correct the extreme racial

imbalances that continued to exist in the parish schools.

Affirmed in part, reversed in part and remanded.

Gee, Circuit Judge, filed a specially concurring opin-

ion.

Appeal from the United States District Court for

the Western District of Louisiana.

Before BROWN, Chief Judge, MORGAN and

GEE, Circuit Judges.

JOHN R. BROWN, Chief Judge:

UNITED STATES v. DeSOTO PARISH SCH. BD.

In this appeal, we must determine whether the

United States is entitled to the additional remedial mea-

sures it seeks in this school desegregation suit. Litiga-

tion began in January, 1967, when the United States

filed a complaint under Title IV of the Civil Rights Act of

1964, 42 U.S.C. § 2000c-6, to desegregate the public

schools in DeSoto Parish, Louisiana. The District Court

approved a desegregation plan in 1970. In 1975, the

United States filed a motion for further relief, alleging

that the plan had failed to eliminate the dual school sys-

tem and asking the District Court to order and imple-

ment comprehensive modifications. Specifically, the

Government claimed that the defendants had failed to

eradicate racially identifiable schools, failed to comply

with the faculty assignment requirements established

for this Circuit in Singleton v. Jackson Municipal Sepa-

rate School District, 5 Cir., 1969, 419 F.2d 1211 (en

banc), and continued to operate a segregated student

bus system. After an evidentiary hearing, the District

Court found that four of the parish’s eleven schools were

attended by only black students and that the racial bal-

ance of teachers required by Singleton had not been

achieved. The District Court Juuge nonetheless denied

the Government’s request for broad relief, ordering only

that the defendant school board reexamine and modify

the student transportation system. The Judge did not

order any changes concerning other methods of student

assignment and refused to require additional measures

to integrate the faculty. The Government appeals from

this limited grant of relief.

We affirm the District Court’s finding that the 1970

UNITED STATES v. DeSOTO PARISH SCH. BD.

desegregation plan has not cured the constitutional vio-

lation established over a decade ago and the conclusion

that further relief is required. Given this finding and

conclusion, and absent any sufficient finding that no ef-

fective, workable alternative to the 1970 plan can feasi-

bly be implemented, we hold that the District Court

erred in refusing to order additional remedial measures

to correct the extreme racial imbalances that continue to

exist in the DeSoto Parish schools. We therefore reverse

and remand. !

The DeSoto Parish School System

DeSoto is a rural parish located near the border

between Louisiana and Texas.? In 1967, when the

United States began this suit, the school system con-

sisted of eight all-white and seven all-black schools.* In

1976, when the District Court ruled on the Govern-

ment’s motion for further relief, the schooi board oper-

‘As is our practice in school cases, we held a conference at-

tended by a member of the Court, counsel for the parties, and, in

this case, the superintendent of schools. In drafting this opinion, we

have relied on the conference proceedings to focus the issues in

contention and the facts on which the parties agree.

2Indeed, for years students from Logan, Galoway, and Savine,

Texas, small communities just across the border, have taken buses

to attend Logansport High School in DeSoto Parish.

3Until 1957, state law required that the Louisiana public

schools be operated on a segregated basis. La.Const. Art. 12, § 1

(1932); LSA-R.S. 17:331-334, derived from Acts 1954 No. 555, §§ 1-4

(repealed 1957). Until 1971, no white student in DeSoto Parish at-

tended any school originally designated for blacks; during the 1969-

70 school year, only 36 black students (out of 3,720 enrolled in the

parish) used a freedom of choice option to attend schools originally

built for whites. Hall v. St. Helena Parish Sch. Bd., 5 Cir., 1969,

417 F.2d 801, 814.

UNITED STATES v. DeSOTO PARISH SCH. BD.

ated eleven schools.4 Five of these schools—AlIl Saints

High School (grade K-12), DeSoto High School (grades

7-12), Second Ward High School (grades K-12),

Logansport-Rosenwald High School (grades K-12), and

Johnson Elementary Schoo! (grades K-6)—were origi-

nally built for blacks.5 The District Court Judge found

that, in the 1975-76 school year, four of these schools

were still attended by only black students, and the fifth

had a student population that was 97 percent black.® The

schools originally built to serve white pupils exclu-

sively—Mansfield High School (grades 8-12), Stanley

High School (grades K-12), Pelican High School (grades

K-12), Stonewall High School (grades K-12), Logansport

High School (grades K-12), and Mansfield Elementary

School (grades K-7)—had student bodies ranging from

approximately 67 percent to 85 percent white. In 1975-

76, the parish schools were attended by a total of 5,880

students, of whom 60 percent were black and 40 percent

white, a ratio that has remained constant since this case

began.?

*Four schools, two traditionally black and two traditionally

white, have been closed since this litigation began. See note 24,

infra.

>Kindergarten was added to each school that taught elemen-

tary grade students in the 1973-74 school year.

®In 1975, this fifth school, All Saints, was pair od with Pelican

High School, originally built for white students, to compensate for

declining enrollments in both schools. As of January, 1977, All

Saints-Pelican High School (grades 7-12) had a student population

that was 82 percent black. At the same time, Pelican and All Saints

Elementary schools were paired, resulting in a student body that

was 85 percent black.

7Enrollment figures by race and school since 1970 are charted

in Appendix A, supra.

UNITED STATES v. DeSOTO PARISH SCH. BD.

As the District Court’s 1970 order points out, there

is little concentrated residential segregation in the

parish; the black population is scattered throughout the

area. Since all the schools were built under the dual

system, they are located so that each area of the parish

is served by at least one traditionally white school and

one traditionally black school. As a result, several of the

all-black schools are located in close proximity to schools

that remain predominantly white.*

During the 1975-76 term, 324 faculty members

taught at the DeSoto public schools. The systemwide

ratio of black to white teachers was fifty-fifty. The seg-

regated condition of the schools extended to the faculty

as well as the students; until 1968, no white teachers

were assigned to traditionally black schools, and no

black teacher taught at a school built for white students.

In 1976, after five school years of operation under a de-

segregation decree, the faculties of the traditionally

black schools ranged from 59 percent to 79 percent

black, while the faculties of the six traditionally white

schools ranged from 81 percent to 71 percent white.®

8 For example, Logansport High School (93 percent white) and

Logansport-Rosenwald High School (100 percent black) are 1.2

miles apart; Mansfield Elementary School (74 percent white), Mans-

field High School (72 percent white), Johnson Elementary School

(100 percent black), and DeSoto High School (100 percent black) are

approximately 1.5 miles from each other. Pelican High School (54

percent white) is 0.9 miles from All Saints High School (100 percent

black); these schools have been paired since this case was decided.

®Faculty distribution by race and school since 1970 is charted

in Appendix B, supra.

UNITED STATES v. DeSOTO PARISH SCH. BD.

The 1970 Desegregation Plan

In 1970, after protracted litigation,!° the school

board was ordered to comply with a desegregation de-

'°The progress of this litigation mirrors the progress of the law

of school desegregation. Both can be traced through the repeated

journeys the suit has made to this Circuit. The District Court’s 1967

injunction followed the decision of this Court in United States v.

Jefferson County Bd. of Educ., 5 Cir., 1967, 380 F.2d 385, 389 (en

banc), cert. denied, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103,

holding that school boards “have the affirmative duty . . . to bring

about an integrated, unitary school system in which there are no

Negro schools and no white schools—just schools.” The District

Court on remand approved a freedom of choice option, Conley v.

Lake Charles Sch. Bd., 1968, W.D.La., 293 F.Supp. 84; the Fifth

Circuit ordered that this be reexamined in Adams v. Mathews, 5

Cir., 1968, 403 F.2d 181. The District Court’s reaffirmation of free-

dom of choice was reversed in Hall v. St. Helena Parish Sch. Bd., 5

Cir., 1969, 417 F.2d 801, cert. denied, 396 U.S. 904, 90 S.Ct. 218, 24

L.Ed.2d 180, and the case remanded for reconsideration in light of

the duty articulated in Green v. County Sch. Bd. of New Kent

County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, to

“come forward with a plan that promises realistically to work . . .

now.” The District Court then approved a plan formulated by the

school board that was to be implemented over a three-year period;

in United States v. DeSoto Parish Sch. Bd., 5 Cir., 1970, 420 F.2d

380, this Court held the plan inadequate in light of Singleton v.

Jackson Municipal Separate Sch. Dist., 5 Cir., 1969, 419 F.2d 1211,

1217-18, (faculty and staff desegregation to be accomplished effec-

tive February 1, 1970). Singleton allowed the desegregation of stu-

dents in several school districts to be deferred beyond February 1,

1970. This portion of the decision was reversed by the Supreme

Court in Carter v. West Feliciana Parish Sch. Bd., 1970, 396 U.S.

290, 90 S.Ct. 608, 24 L.Ed.2d 477. The Fifth Circuit ordered the

school board to prepare for complete desegregation by February 1,

1970, “in the event” the Supreme Court did reverse that aspect of

Singleton. On remand after Carter was decided, the District Court

readopted the plan approved in 1969, modifying it to incorporate

a and to require implementation effective February 1,

The United States did not appeal from the District Court’s

1970 order approving the desegregation plan.

UNITED STATES v. DeSOTO PARISH SCH. BD.

cree based on a plan it submitted to the District Court."

This plan assigned students to schools under one of

three alternative arrangements. Students living within

attendance zones established by the plan had to attend a

designated school, subject to a majority-to-minority

transfer proviso.!? Students who did not live within a

zoned area attended school according to the destination

of the bus they rode. Finally, any student who did not

live in a zoned area and proviced his own transportation

could attend the school of his or her choice.!*

Attendance Zones

The 1970 plan established four zones within the par-

ish. At the 1976 hearing, the United States presented

evidence showing that the zones are noncontiguous, that

1'The 1970 plan incorporated a requirement that the school

board make annual reports to the District Court. Such a require-

ment has long been the practice in school cases. E.4., United States

v. Jefferson County Bd. of Educ., 5 Cir., 1967, 380 F.2d 385, 395 (en

banc). A more detailed set of reporting requirements was ordered in

December, 1970, on motion by the Government. We have used

these reports in reviewing the District Court’s findings and in un-

derstanding current conditions.

12No attendance zones existed prior to the 1970 desegregation

plan. Students were assigned to school by race and by bus that both

passed closest to his home and that carried students of his own race,

and would attend the school to which the bus war routed.

'3The 1970 plan provided for assignment by zones, transporta-

tion, and majority-to-minority transfer. The option permitting stu-

dents living outside zoned ares to attend the school of their choice if

they provided their own transportation was based on the school

board’s interpretation of the Court order to mean that “if a child

rode the bus .. . he must go to the school to which the bus trans-

ported him. If he did not get on the bus, then he was not covered

under. . . the Court order, and he may enroll at the school to which

he requested enrollment.” | Deposition of Superintendent of Schools

Douglas McLaren, at 103. ]

UNITED STATES v. DeSOTO PARISH SCH. BD.

in several instances the zones are drawn around racially

homogenous resi'ential areas!4 and assign the children

living there to a school originally designated for students

of that race, and that frequently children are zored to

schools attended primarily or exclusively by students of

their own race when other schools are located closer to

their homes. The pattern of the zones is consistent with

this evidence.

The city of Mansfield constitutes one zone, and con-

tains three subzoned areas: one surrounds an all-black

residential area and assigns children living there to

Johnson Elementary School and DeSoto High School,

which are completely black; the second assigns students

to DeSoto High School from an all-black residential area;

the third zone covers the remainder of the city, and as-

signs students to the predominantly white Mansfield

High School and Mansfield Elementary School. At the

hearing, school officials admitted that many of the white

students zoned to Mansfield Elementary live closer to

Johnson Eiementary, and those zoned to Mansfield High

School live closer to DeSoto High School [Tr. at 33-35. ]

The second zone comprises the city of Logansport,

located in the west and southwest portion of the parish.

The plan drew boundaries for one subzone within Lo-

gansport around the only black residential part of the

area and assigned students to the principally black

Logansport-Rosenwald High School. The remainder of

4A lIthough there is no monolithic concentration of blacks in any

single area, there are pockets of racially homogenous neighborhoods

scattered throughout the parish.

UNITED STATES v. DeSOTO PARISH SCH. BD.

the city was zoned to the traditionally white Logansport

High School. The third zone in the parish encompasses -

the Stanley arza, also located in the southwestern re-

gion. The students living within this zone, most of whom

are white, are assigned to the traditionally white Stan-

ley High School. The fourth zone covers the Stonewall-

Second Ward area in the northern section of the parish.

The zone is divided into two parts: the first encompasses

a principally white residential area and assigns students

living within it to the traditionally white Stonewall High

School, and the second surrounds a largely black resi-

dential area and directs students within it to the wholly

black Second Ward High School.

To assess the Government’s contention that the

zones must be altered in any constitutionally sufficient

plan, the other methods of student assignment included

in the 1970 plan must also be examined.

Bus Routes

As in many rural school districts, a large portion of

the students attending public school in DeSoto Parish

ride school buses.!5 The 1970 plan provided that stu-

dents living outside a zoned area who did not furnish

their own transportation would be assigned to a school

by virtue of the bus they rode. This provision contained

two further limitations: no black student was to be

transported “past” a formerly all-white student school,

and no white student was to be transported “past” a

15In the 1975-76 term, approximately 3,500 students, over 60

percent of the total school population, rode buses to school. Of this

group, 2,544 were black, and 1,073-were white. [Tr. at 61.]

Se ee

UNITED STATES v. DeSOTO PARISH SCH. BD.

formerly black school; and no student would be permit-

ted to use a bus stop other than the one closest to his

home in order to avoid riding a particular bus.

The school board projected that under this plan 352

white students would ride buses routed to formerly

black schools. In 1974-75, the school board’s reports re-

vealed that 129 white students should be on buses routed

to formerly black schools. No white student actually

rode such buses; none attended a formerly black school.

Of the 2,544 black students who used the buses in the

1975-76 term only 449 (or 17 percent) rode to formerly

white schools. Based on such figures and the testimony

of bus drivers and school officials presented at the 1976

hearing, the District Court found that the school board

had maintained the dual bus system that existed prior to

the implementation of the 1970 decree.

The dual bus system was characterized by overlap-

ping and circuitous routes. Two buses traveled down the

same road or same general area, one picking up white

students to take them to a traditionally white school, and

‘Students were assigned to a bus route rather than a particu-

lar bus. School officials testified that if two buses come by one stop

a child could choose which bus to ride. [Tr. at 40; Deposition of

Transportation Supervisor Raymond Powell, at 13.] In 1975-76

over 90 percent of the black and white students using the bus sys-

tem rode buses containing only students of one race. Of the 449

black students who traveled by bus to formerly white schools, 409

(91 percent) rode on buses carrying only black students. {Govern-

ment Exhibit 7. ]

In addition to segregation according to student passengers,

the record reveals substantial segregation of bus drivers. Seventy-

three bus drivers were employed in the 1975-76 school year; the

forty-four drivers were black carried no white children on their

buses. [Government Exhibit 7.]

UNITED STATES v. DeSOTO PARISH SCH. BD.

one picking up black students to deliver them to a tradi-

tionally black school.1® Although the 1970 plan prohib-

ited routes by which buses would be driven “past”

schools attended by children of a race different from

those riding the bus, this prohibition was circumvented

by a highly literalistic interpretation. Buses were fre-

quently routed circuitously to avoid passing directly in

front of schools attended by students of a different race,

resulting in unnecessarily long trips that ended at

schools originally designated for children of the same

race as the bus passengers. [Tr. at 82-95.] In particu-

lar, the Government directs our attention to the white

students from Logansport and Carthage, Texas who

ride buses to the predominantly white Logansport High

School, although the all-black Logansport-Rosenwald

school is closer.

Faculty Assignments

The 1970 desegregation decree incorporated the re-

quirements of Singleton v. Jackson Municipal Separate

School District, 5 Cir., 1969, 419 F.2d 1211, 1217-18,

that the faculty of each school must reflect the system-

wide racial ratio of faculty members and that faculty

members must accept reassignment as a condition of

continued employment. At the 1976 hearing, school

board officials admitted that neither requirement had

been met, and the District Court found that the “five

schools which were originally constructed to serve only

black students continue to have a substantially higher

percentage of black faculty than the schools which were

_ UNITED STATES v. DeSOTO PARISH SCH. BD.

designed to serve white students, although the ratio of

black to white teachers ... is approximately 50 per-

cent,” and that no formerly white school had a “black

faculty percentage greater than 31 percent.”

The District Court’s Ruling On The

Motion For Further Relief

Against this background of largely undisputed

facts, the District Court found that ‘{allthough the

schools constructed for blacks have remained all or prac-

tically all black even after the desegregation order, it is

unclear whether this situation results from the student

attendance zones or from the transportation system. . . .

[T]his Court is inclined to believe that the transportation

system has been the primary contributor to the one-race

schools.” Stating that the “School Board has failed to

dismantle the dual system of student transportation and

has failed to comply with the spirit of the . . . 1970 or-

der,” the trial judge ordered the parties to reexamine

the bus system and submit plans for the elimination of

overlapping, circuitous, and segregated routes. The

Court denied the Government’s requested relief from

the continued operation of the attendance zones and the

freedom of choice option. This denial is implicitly prem-

ised on a finding that these aspects of the 1970 plan had

not “resulted in” or “primarily contribute[d]” to the con-

tinued segregation of the schools.

The District Court agreed with the United States in

finding that “. . . the School Board has failed to achieve

the racial balance of teachers called for in Singleton.”

However, the District Court declined to order strict

40)

UNITED STATES v. DeSOTO PARISH SCH. BD.

compliance with the Singleton requirements. The Judge

cited two reasons for this decision: the gradual, yet

steady, improvement in the racial balance of the facul-

ties achieved in most schools sincé 1970, and his disincli-

nation to order “strict mathematical ratios” in either

student or faculty assignments. Expressing a hope for

more rapid improvement in the future, the District

Court essentially modified the terms of the 1970 decree

by declining to enforce the Singleton requirements it

incorporated.

Finding errors of both fact and law, we reverse.

Il.

[1,2] When a school system is found to be in violation

of the Constitution, the duty of the responsible state

officials is clear and compelling: “to take the necessary

steps ‘to eliminate from the public schools all vestiges of

state-imposed segregation.’ ” Milliken v. Bradley, 1977,

433 U.S. 267, 290, 97 S.Ct. 2749, 2762, 53 L.Ed.2d 745,

762, quoting Swann v. Charlotte-Mecklenburg Board of

Education, 1971, 402 U.S. 1, 15, 91S.Ct. 1267, 1275, 28

L.Ed.2d 554, 566. If the school board defaults in its

duty, the responsibility of the District Court is equally

clear and compelling: to use its broad and flexible equi-

table powers to implement a remedy that, while sensi-

tive to the burdens that can result from a decree and the

practical limitations involved, promises “realistically to

work now.” Green v. County Sch. Bd. of New Kent

County, 1968, 391 U.S. 430, 439, 88 S.Ct. 1689, 20

L.Ed.2d 716; Swann, supra.

UNITED STATES v. DeSOTO PARISH SCH. BD.

Student Assignments

[3] The plan formulated by the school board and

adopted by the District Court in 1970 was expected to

result in student populations in the formerly black

schools ranging from 76 percent to 98.5 percent black,

and student bodies at the formerly white schools ranging

from 54 percent to 90 percent white.17 The statistics for

actual enrollment show that the results never ap-

proached these expectations, modest though they were.

In 1975-76, four of the five black schools remained 100

percent black; the formerly white schools remained 67 to

85 percent white.!® The school board’s most recent re-

'7In submitting its desegregation plan to the District Court in

1970, the school board supplied the following figures as projections

for expected enrollment as of February 1, 1970:

Former Black Schools

Zoned Transported Total Percent

B W BOW B W B W

DeSoto 344 3 376 101 720104 87 13.

Johnson 421 2 295 80 716 82 90 10

Longstreet-

Rosenwald 0 O 122 14 122 14 89.7 10.3

Logansport-

Rosenwald 7 OO 288 114 363 114 76.1 23.9

All Saints 0 O 382 33 £382 33 92 8

Second Ward 164 2 647 10 811 12 98.5 1.5

Former White Schools

B OW B W B W B W

Mansfield Elem. 87 419 213 200 300 619 32.667.4

Mansfield H. S. 58 279 73 65 181 344 27.672.4

Logansport 54 192 0 296 54 488 10 90

Stanley 56 173 0 72 56245 18.681.4

Pelican 0 0 182 155 182155 46 54

Stonewall 16 98 72136 88 234 27.372.7

(R. 148F-G.]

The actual enrollment figures for each year in which this

school desegregation plan operated are attached as Appendix A.

UNITED STATES v. DeSOTO PARISH SCH. BD.

port to the District Court reveals that in 1977-78, the

same four schools are still attended only by black stu-

dents. “Where the school authority’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 race, they have the burden of

showing that such school assignments are genuinely

nondiscriminatory .. .[and] that [the schools’] racial

composition is not the result of present or past dis-

criminatory action on their part.” Swann v. Charlotte-

Mecklenburg Board of Education, supra, 402 U.S. at 26,

91 S.Ct. at 1281, 28 L.Ed.2d at 572. As the District

Court found, the school board is unable to meet this

burden. The question on appeal is whether the 1970

plan, as modified by the District Court’s 1976 order,

offers any significant promise of eliminating the one-race

schools that pervade the parish.

[4,5] The District Cour? found that the racial com-

position of the schools was “primarily” due to the school

board’s unconstitutional retention of the discriminatory

dual bus system. So finding, and implicitly finding that

other aspects of the 1970 plan challenged by the Gov-

ernment—particularly the attendance zones and the

free choice option—did not cause the continued segrega-

tion, the Court ordered revisions in the bus routes but

refused to require more radical modifications in the 1970

plan. We hold that this finding is clearly erroneous. The

record is replete with evidence that several aspects of

the 1970 plan, in addition to the segregated bus system,

resulted in the continuing and extreme radical imbalance

in the schools. There is no finding that merely modifying

UNITED STATES v. DeSOTO PARISH SCH. BD.

the bus routes is likely to succeed in altering the racial

composition of the schools. We do not believe such a

finding can be made. The bus routes were altered pur-

suant to the 1976 order. The racial distribution of the

schools showed almost no change as a result, failing even

to realize the very modest projections cast by the school

board.'*% Until the 1970 plan is significantly modified, we

see no possibility that this school system will ever rid

itself of the vestiges of state-imposed segregation.?°

19In submitting its revised transportation plan to the District

Court in 1976, the school board projected that 276 white students

would attend the four all-black schools, resulting in student popula-

tions at the schools ranging from 87.7 to 90 percent black. The

attendance figures for the 1976-77 and 1977-78 terms show that

none of these white students have enrolled; the schools remain 100

percent black.

2°We find the state of this school system similar to the system

before this Court in Lee v. Demopolis City School System, 5 Cir.,

1977, 557 F.2d 1053, where we held that the procedures set forth by

the Supreme Court last term in Dayton Board of Education v.

Brinkman, 1977, 433 U.S. 406, 420, 97 S.Ct 2766, 2775, 53 L.Ed.2d

851, 863, did not govern “so extreme a case” with such “unique

statistics.” Brinkman instructs that:

The duty of both the District Court and of the Court of

Appeals in a case such as this, where mandatory segregation

by law of the races in the schools has long since ceased, is to

first determine whether there was any action in the conduct

of the business of the school board which was intended to, and

did in fact, discriminate against minority pupils, teachers or

staff. Washington v. Davis, supra [426 U.S. 229, 96 S.Ct.

2040, 48 L.Ed.2d 597]. All parties should be free to introduce

such additional testimony and other evidence as the District

Court may deem appropriate. If such violations are found,

the District Court in the first instance, subject to review by

the Court of Appeals, must determine how much incremental

segregative effect these violations had on the racia! distribu-

tion of the Dayton school population as presently constituted,

when that distribution is compared to what it would have

been in the absence of such constitutional violations. The rem-

edy must be designed to redress that difference, and only if

UNITED STATES v. DeSOTO PARISH SCH. BD.

The attendance zones clearly affect the racial com-

position of the schools. The 1970 projections show that

assignment on the basis of residence within an atten-

dance zone would account for a substantial proportion of

there had been a systemwide impact may there be a system-

wide remedy. Keyes [School District No. 1, Denver, Col-

orado], supra [413 U.S. 189], at 213[93 S.Ct 2686, 37 L.Ed.2d

548}.

{Emphasis added. ]

In Lee v. Demopolis, the Court felt that the one-race compo-

sition of the only two elementary schools in a small city justified

reversing the lower court’s adjudication of unitariness and presum-

ing an intent to discriminate on the aprt of local authorities. In both

DeSoto Parish and Demopolis City, segregation by law has ended,

but neither this event nor subsequently required affirmative steps

to desegregate have substantially altered the racial balance of the

schools. In Lee, this factor was sufficient to distinguish Brinkman,

and we believe it suffices here as well.

Unlike Lee, however, we need not rely on a presumed intent

to discriminate. The District Court found that the school system

remained dual and that the school board had maintained segregated

bus routes. Because the District Court found that neither the atten-

dance zones nor the free choice option played a significant role in

keeping the school system segregated, it did not consider whether

these other aspects of the 1970 plan were intended to discriminate

against black students. In reversing the denial of relief from these

methods of student assignment, we need not presume that they

were devised or retained with an intent to discriminate, nor ask the

District Court to make findings on whether such an intent is pre-

sent. Our mandate for further relief is based on the District Court’s

clear finding of a systemwide violation. We are not limiteu to cor-

recting only those specific actions that have been found intentionally

discriminatory. Nor are we required to send the case back to the

District Court for findings of fact that, considering the lack of any

change in the racial distribution of the schools, seem to us to be

obvious. “{WJhere, as here, a constitutional violation has been

found, the remecy does not ‘exceed’ the violation if the remedy is

tailored to cure the ‘condition that offends the Constitution.’ ” Mil-

liken v. Bradley, 1977, 433 U.S. 267, 282, 97 S.Ct. 2749, 2758, 53

L.Ed.2d 745, 757 (Milliken 11), quoting Milliken v. Bradley, 1974,

418 U.S. 717, 738, 94 S.Ct 3112, 3124, 41 L.Ed.2d 1069, 1087 [Milli-

ken I). The condition that offends the Constitution is the de jure

awe vbaetn be

UNITED STATES v. DeSOTO PARISH SCH. BD.

the students expected to enroll in the various schools.?!

Because fewer students than projected rode the buses,

zoning assignments accounted for a higher percentage of

students than the projections reveal.?? Virtually no

white students are zoned to attend formerly black

schools, a result achieved by the congruence of zone

boundaries with racially homogenous neighborhoods and

schools.?%

segregation in the schools. The remedial measures that must be

ordered are those necessary “to restore the victims of discriminat-

ory conduct in the position they would have enjoyed. . . ina school

system frez from pervasive de jure racial segregation.” Milliken I,

433 U.S. at 282, 97 S.Ct. at 2758, 538 L.Ed.2d at 757.

21These projections show that assignment on the basis of resi-

dence within an attendance zone would account for approximately

half the students expected to enroll in the four Mansfield schools,

three-fourths of the students projected to attend the Stanley school,

one-third of the students assigned to Stonewall High School, 16

percent of the students projected to enroll at Logansport-

Rosenwald, and 20 percent of the students assigned to Second Ward

High School. See note 17, infra.

72 At Logansport-Rosenwald, for example, black students as-

signed by zoning constituted 16 percent of the total projected to

enroll at the school. However, none of the 114 white students “as-

signed to the school by bus route ever attended. At DeSoto High

School, zoning assigned 47 percent (344 black and 3 white students)

of the total number of students projected to enroll in 1970. How-

ever, in 1970-71, none of the 104 white students assigned by bus

route attended, resulting in a total enrollment of 465 black students,

more than 47 percent of whom live within the area zoned to the

school. And at Johnson Elementary, 53 percent (421 black and 2

white students) of the projected student body were assigned by

attendance zone. None of the 82 white students projected to enroll

at the school ever attended, resulting in a total enrollment of 828

black students.

The superintendent of schools, Douglas McLaren, testified

that the zone lines were drawn to move away from the “freedom of

choice concept” in favor of a “neighborhood school approach.”

McLaren deposition, at 59. While a policy designed to achieve

neighborhood schools has well-recognized benefits for the students,

UNITED STATES v. DeSOTO PARISH SCH. BD.

The “free choice” option available to students who

do not live in a zoned area and who can provide their own

transportation has, if anything, a greater effect on the

racial composition of the schools than the zones. Because

almost all of the white students live outside zoned areas,

they are essentially free to attend the school of their

choice. Evidence at the 1976 hearing indicated that this

arrangement, particularly in combination with the over-

lapping bus routes, allowed white students in the parish

“a number of options . . . to avoid attendance at a black

school, . . . without attending a private school.” [Tr. at

29, 118.] That these options were used is clear: from

1970-76, only 13 white students attended formerly black

schools.”4

see United States v. Jefferson County Bd. of Educ., 5 Cir., 1966,

372 F.2d 836, aff'd en banc, 1967, 380 F.2d 385, cert. denied, 389

U.S. 849, 88 S.Ct. 67, 19 L.Ed.2d 103, we do not believe that such a

policy explains these zone boundaries. The zone lines deviate from

“neighborhood” lines to follow racial lines; many children live closer

to a school than the one they are assigned to attend under the zone

system. We have long recognized that where “some white students

are attending schools located greater distances from their homes

than nearby schools where the student body is all Negro,” a

neighborhood school system does not exist. Ellis v. Board of Public

Instruction, 5 Cir., 1970, 423 F.2d 203, 206-207 (Ellis I). The

superintendent admitted that the neighborhood school concept as a

basis for drawing the zone lines was tempered by another consider-

ation: to keep white students from fleeing the system. [Deposition

at 77.

2The Government urges that an additional factor causing the

continuing segregated condition of the schools is the reassignment

of students from the four schools that have closed since this litiga-

tion began. Grand Cane High School, originally built for whites,

closed in 1967; Longstreet High School, also designated for whites

closed in 1969. Students from Grand Cane were assigned to attend

Mansfield High School, Mansfield Elementary School, or Stonewall

UNITED STATES v. DeSOTO PARISH SCH. BD.

As long as the attendance zone boundaries are re-

tained as drawn and the free choice option remains,

eliminating the overlapping and circuitous bus routes

will not end the segregated condition of this school sys-

tem. With the free choice option, the school board con-

tinues to provide white students with an easy alterna-

tive to attending a formerly black school while remaining

in the public school system. The history of desegregation

efforts in this parish shows that white students have

consistently failed to attend traditionally black schools,

while black students are zoned to such schools in sig-

nificant numbers.

The school board does not deny that the zones are

gerrymandered around racially homogenous neighbor-

hoods, or that the overlapping bus routes and the free

choice option have afforded white children an easy alter-

native to attending the black schools to which they were

“assigned.” Rather, the board makes a series of argu-

ments to justify the minimal degree of desegregation

attained under the 1970 plan. For the reasons stated

High School, all originally intended for white students. Students

from Longstreet High School were given a freedom of choice option.

The other two schools closed during this suit were originally desig-

nated for black students: Longstreet-Rosenwald High School closed

in 1970, and Grand Cane Community High School closed in 1971.

Students from Longstreet-Rosenwald were reassigned to two

schools attended exclusively by black students, while students from

Grand Cane Community were reassigned to Mansfield High School

and Mansfield Elementary School, both schools originally intended

for whites.

The record thus reveals that no white student who attended

one of the closed schools was reassigned to a black school or went to

such a school under a freedom of choice option. [Tr. at 16-18; McLar-

en deposition, at 108-114. ]

UNITED STATES v. DeSOTO PARISH SCH. BD.

below, none of these arguments are sufficient to excuse

the board from taking additional affirmative steps to de-

segregate this school system.

The board’s first argument is that even if the 1970

plan, as modified by the District Court’s -1976 order,

does not eliminate any or all of the one-race schools, this

school system could still achieve unitary status. The

board directs our attention to several recent opinions of

this Court declaring school systems unitary despite the

continuing existence of several racially identifiable

schools. These decisions cannot aid DeSoto Parish. “We

do not here contemplate a system including two or three

essentially one-race schools resulting from geographic or

demographic accidents and surviving as minor anomalies

in a broadly integrated program, despite earnest plan-

ning and honest effort to eliminate them and those like

them, because practical considerations of hazard, dis-

tance or expense all but forbid their elimination.” Lee v.

Demopolis City School System, 5 Cir, 557 F.2d 1053,

1054; see also, United States v. Seminole County Sch.

Dist., 5 Cir., 1977, 553 F.2d 992; Ellis v. Board of Public

Instruction, 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).

[6] No physical barriers, insuperable distances, or

demographic obstacles prevent the assignment of stu-

dents in ways that would alleviate the segregation still

present in the DeSoto Parish schools. We do not believe

that the board has shown that the present situation rep-

resents the maximum desegregation practically achiev-

able. United States v. Seminole County Sch. Dist. su-

UNITED STATES v. DeSOTO PARISH SCH. BD.

pra, 593 F.2d at 995. These factors distinguish the situa-

tions in which this Court approved plans that retained

one-race schools. For example, in Stout v. Jefferson

County Bd. of Educ. 5 Cir., 1976, 537 F.2d 800, we

approved a plan that left three elementary schools ra-

cially homogenous on findings that this resulted from

“geography and demography alone,” and that the

schools served only a relatively small number of stu-

dents in a system that provided all students with deseg-

regated high schools; in Carr v. Montgomery County

Bd. of Educ., 1974, M.D.Ala., 377 F.Supp. 1123, 1132

aff'd, 5 Cir., 511 F.2d 1374, cert. denied, 1975, 423 US.

986, 96 S.Ct. 394, 46 L.Ed.2d 303, we approved the

retention of a small number of predominantly black

elementary schools on findings that residential patterns

not discrimination, caused the racial imbalance, that an

alternative could effectively achieve desegregation, and

that every student would attend a completely integrated

high school.

In DeSoto, by contrast, over 83 percent of the black

pupils attend all-black schools, and, under the current

plan, will never be exposed to a desegregated school.

There is no entrenched residential segregation, and sev-

eral of the all-black schools are located in close proximity

to schools originally designated for whites. Such factors

indicate, and the Government urges that an alternative

plan would be relatively easy to implement. “In the con-

version from dual school systems based on race to uni-

tary school systems, the continued existence of all-black

or virtually all-black schools is unacceptable where

UNITED STATES v. DeSOTO PARISH SCH. BD.

reasonable alternatives exist.” Boykins v. Fairfield Bd.

of Educ., 5 Cir., 1972, 457 F.2d 1091, 1095, quoted in

Lemon v. Bossier Parish School Board, 5 Cir., 1978, 566

F.2d 985, 987.

The board’s response is to repeat the refrain it has

sung since 1968: any alternative measures that promise

to increase the amount of desegregation will lead to

white flight and the “resegregation” of the schools. This

argument must fail. It is the law in the Supreme Court

and in this Circuit that white flight “cannot [be] ki

accepted as a reason for achieving anything less than

complete uprooting of the dual public school system.”

United States v. Scotland Neck City Bd. of Educ., 1972,

407 U.S. 484, 491, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75;

Lee v. Macon County Bd. of Educ., 5 Cir., 1972, 465

F.2d 369.25

[7] This not to say that a school board or Court must

ignore a likely danger of an exodus of white students

from a school system. “{I]n choosing between various

permissible plans a chancellor may . . . elect one calcu-

lated to minimize white boycotts. . . . He may not refuse

to adopt a permissible plan and elect or confect one

which preserves a dual system because of such fears.”

Stout v. Jefferson County Bd. of Educ., 1976, 5 Cir., 537

25he reason for this rule reveals the importance of enforcing it

rigorously. “White flight is an expression of opposition by individu-

als in the community to desegregation of the school system....

From the inception of school desegregation litigation, accommoda-

tion of opposition to desegregation by failing to implement a con-

stitutionally necessary plan has been impermissible. Morgan v.

Kerrigan, 1 Cir., 1976, 530 F.2d 401, 420, cert. denied, 1977, 426

U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386.

UNITED STATES v. DeSOTO PARISH SCH. BD.

F.2d 800, at 802. The 1970 plan, as modified by the Dis-

trict Court’s 1976 order, was devised with the fear of

white flight as a paramount consideration. The plan pre-

serves a dual system and cannot be retained over a more

successful approach because of this fear.

Faculty Assignments

[8] The Government urges that the District Court

erred in declining to insist that the school board comply

immediately with the Singleton requirements that the

faculty of each school reflect the systemwide racial ratio

of faculty members and that teachers accept reassign-

ment as a condition of continued employment. We agree

with the Government. The District Court found that suf-

ficient gradual improvement had taken place since 1970

to make “strict mathematical ratios” unnecessary and

left the school board to continue as before, with the hope

for more rapid improvement in the future. This ap-

proach, particularly in a school system marked by the

consistent failure of mild measures, ignores the fact that

Singleton is a command based on the Constitution, not

an optional set of guidelines. We have long since rejected

as ineffective the standard apparently adopted by the

District Court, that desegregation progress with “all de-

liberate speed.” Alexander v. Holmes County Bd. of

Educ., 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19

(per curiam).

The District Court’s factual premise for its denial of

further relief as to the faculty is also open to question.

The statistics and testimony as to the present situation

UNITED STATES v. DeSOTO PARISH SCH. BD.

do not support an expectation of more rapid improve-

ment in the future or the swift attainment of a unitary

faculty. While there has been some improvement in fac-

ulty integration, the pace is slow and the degree slight.”°

In the 1975-76 school term, 70 percent of the white fac-

ulty taught in traditionally white schools, and 76 per-

cent of the black teachers were assigned to traditionally

black schools. Recent reports submitted by the school

board reveal no substantial improvement.?7 In addition

to the school board’s admitted failure to condition

employment on teachers’ willingness to accept reas-

signment, and failure to initiate reassignments, the rec-

ord contains evidence that when reassignment was re-

quired by the closing of schools, most of the white teach-

ers were reassigned to traditionally white schools and

26In 1970-71, and in 1975-76, the following faculty distribution

existed:

1970-71 1975-76

Former Black Schools

B W &B B W %&B

All Saints 16 2 89 13 5 72

Johnson 26.5 3 90 30 11 = 73

Logansport-Rosenwaid 15 7 68 17 12 59

Second Ward 37 3 93 33 9 79

Former White Schools

B W &B B W %&B

Logansport 8 21 28 8 2 2

Mansfield Elem. S- 218 2 > B86: oF

Mansfield H. S. 6 18.5 24 6 ..2 2

Pelican 6 10 38 ¢ 3 &

Stanley 5 10 33 § li 43

Stonewall ae 6 Ut lCUes

27The figures for faculty distribution in the 1976-77 and 1977-78

school terms are included in Appendix B.

UNITED STATES v. DeSOTO PARISH SCH. BD.

the blacks to schou!s designated for black students.28

The record also indicates that new teachers have not

been assigned in ways that would increase desegrega-

tion; between the 1969-70 and 1975-76 school terms, 57

percent of the newly hired white teachers were assigned

to formerly white schools, and 92 percent of the newly

hired black teachers were assigned to traditionally black

schools.?9

[9] The school board urges that if they are required

to implement the Singleton requirements without delay,

a form of white flight among the faculty will result.

Pointing to the difficulties DeSoto Parish faces in com-

peting with nearby, wealthier school systems in attract-

ing and keeping qualified teachers, the board asserts

that measures such as reassignment to achieve compli-

ance with Singleton will lead to large numbers of faculty

resignations. The fear of faculty resistance to desegre-

gation measures, like the fear of community resistance,

cannot be allowed to defeat an effective desegregation

plan in favor of a plan that is unlikely to achieve a uni-

tary system.

ITI.

Remedy

[10] The 1970 plan, with the 1976 order revising the

bus routes, has failed to desegregate this school system,

failed even to achieve the modest projected results, and

is therefore constitutionally inadequate. The District

Court must order further relief. We now turn to the

*8Tr, at 108-113.

29McLaren deposition at 154-56.

UNITED STATES v. DeSOTO PARISH SCH. BD.

question of an appropriate remedy. The Government’s

uncontradicted assertion is that several alternatives

could easily be implemented to begin disestablishing the

one-race schools. The board’s major objection to the

Government’s proposals, the fear of white flight, is not

sufficient to justify a refusal to make such an attempt.

On remand, the parties and the Court are directed to

devise and implement a comprehensive plan that, by

whatever reasonable means the District Court deems

appropriate, will end the segregated condition of this

school system. Cisneros v. Corpus Christi Indep. Sch.

Dist., 5 Cir., 1972, 467 F.2d 142, 152-53 (en banc), cert.

denied, 1973, 413 U.S. 922, 93 S.Ct. 3052, 37 L.Ed.2d

1044. In formulating such a plan, the District Court’s

equitable powers are sufficiently flexible to shape its

decrees in a fashion that will minimize dislocations and

burdens on the educational process. Milliken v. Brad-

ley, supra, 483 U.S. at 280 n. 15, 97 S.Ct. at 2757, 53

L.Ed.2d at 756.

While we cannot and do not wish to require any

specific plan, there are several steps that must be taken

to satisfy the constitutional requirements for desegrega-

tion.

Student Assignments

(11] First, the attendance zones cannot remain as

presently drawn. Geographic zones used as a method of

student assignment cannot be retained where they im-

pede the desegregation process; indeed, a desegregation

plan incorporating attendance zones is insufficient unless

the boundaries are drawn to achieve the “greatest possi-

—

aA eet ol

379)

UNITED STATES v. DeSOTO PARISH SCH. BD.

ble degree of actual desegregation, taking into account

the practicalities of the situation.” Davis v. Board of

School Commissioners, 1971, 402 U.S. 33, 37, 91 S.Ct.

1289, 1292, 28 L.Ed.2d 577, 581; Swann v. Board of

Educ., supra, 402 U.S. at 28-29, 91 S.Ct. 1267, 28

L.Ed.2d at 573-74; Ellis v. Board of Public Instruction,

5 Cir., 1972, 465 F.2d 878, cert. denied, 1973, 410 U.S.

966, 93 S.Ct. 1438, 35 L.Ed.2d 700 (Ellis I]); Henry v.

Clarksdale Municipal Separate Sch. Dist., 5 Cir., 1969,

409 F.2d 682, cert. denied, 396 U.S. 940, 90 S.Ct. 375, 24

L.Ed.2d 242. The zones should be redesigned to dis-

charge this affirmative duty. “The process of desegrega-

tion. . . is often one of trial and error; if one set of zones

proves ineffective, then another must be drawn and, if

necessary, another, or some yet different approach be

tried.” United States v. Hinds County Sch. Bd., 5 Cir.,

1977, 560 F.2d 1188, 1191.

[12] Second, we believe that the provision by which

all students living outside zoned areas who can furnish

their own transportation are allowed to attend the school

of their choice must be eliminated. We agree with the

Government’s argument that such a provision is similar

to the “free-transfer” practice invalidated in Monroe v.

Board of Commissioners, 1968, 391 U.S. 450, 88 S.Ct.

1700, 20 L.Ed.2d 733, and to the free choice policy held

unacceptable in Green v. County Sch. Bd., supra, 391

U.S. 430, at 439-41, 88 S.Ct. 1689, at 1694-96, 20

L.Ed.2d 716, at 724-26. Like a free transfer or free

choice provision, the option allows DeSoto students to

avoid attending the schools to which they are assigned

according to the bus routes; it is an “implicit invitation

UNITED STATES v. DeSOTO PARISH SCH. BD.

[to return]... to the comfortable security of the old,

established discriminatory pattern.” Monroe, supra, 391

U.S. at 459, 88 S.Ct. at 1705, 20 L.Ed.2d at 739. Green

and Monroe state the principle that governs here: “if it

cannot be shown that such a[free choice or free transfer

option] will further rather than delay conversion to uni-

tary, nonracial, nondiscriminatory school system, it

must be held unacceptable.” 391 U.S. at 459, 88 S.Ct. at

1705, 20 L.Ed.2d at 739. No such showing is possible in

this case, and the free choice option cannot remain in a

constitutionally valid plan.%°

[13,14] More specific remedial steps must await

further factual development by the District Court.*? At

30 A freedom of choice plan has on occasion been held sufficient.

E.g., Singleton v. Jackson Municipal Separate School District, 5

Cir., 1969, 419 F.2d 1211, 122i ‘No. 28361, St. John the Baptist

Parish, La.). In this case, the Court used such a plan as an alterna-

tive to requiring the division of a small number of white students

among five schools in one part of a predominantly black school sys-

tem, a part isolated from the integrated remainder of the system by

the Mississippi River, a formidable geographic barrier. This case

was later distinguished and a free choice plan disallowed on a basis

that applies here as well: “(t]he . . . School Board has yet to demon-

strate objectively its will to operate this system in a manner caleu-

lated to remedy past discriminatory practices and achieve unitary

status. .. . If and when this School Board removes itself from the

shadow of contempt, the District Court may then consider whether

a racially neutral freedom of choice plan could be a benefit in bring-

ing about a unitary system. ... That day has not yet arrived.”

United States v. Wilcox County Bd. of Educ., 5 Cir., 1974, 494 F.2d

575, 580, cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306.

31The Government urges that even as modified, the bus routes

still operate to maintain segregation in the schools, or at least do not

affirmatively aid desegregation. On the remand, the District Court

should direct the parties to reconsider the bus routes as one part of

the comprehensive new desegregation plan required.

As part of this reconsideration, we again draw the school

Oe a Rl TT a Cor

UNITED STATES v. DeSOTO PARISH SCH. BD.

this stage, we can only conclude that effective methods

are available. In some areas of the parish, such as the

city of Mansfield, zones that assign children to the

schools nearest their homes offer a promise of increased

integration. In other areas, where schools traditionally

serving separate races are located within one and one-

half miles of each other, pairing would appear to be a

feasible and effective remedy that would not unduly in-

crease the travel burdens on the students.3? Although

pairing Is not required as a remedy of “first resort,”

“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 pair-

ing, the tool must be used.” Flax v. Potts, 5 Cir., 1972,

464 F.2d 865, 868, cert. denied, 409 U.S. 1007, 93 S.Ct.

433, 34 L.Ed.2d 299, quoting Allen v. Board of Public

Instruction, 5 Cir., 1970, 432 F.2d 362, 367 , cert. denied,

1971, 402 U.S. 952, 91 S.Ct. 1609, 29 L.Ed.2d 123. [Em-

phasis added].

board’s attention to the students from Texas who attend school in

DeSoto Parish. They must be assigned to schools in a fashion that

satisfies not only the requirement of a desegregated bus system

but also the provision of the 1970 decree, common to most desegre-

gation plans, providing that:

a If the school district grants transfers to students living in the

district for their attendance at public schools outside the district, or

if it permits transfers into the district of students who live outside

the district, it shall do so on a non-discriminatory basis, except that

it shall not consent to transfers where the cumulative effect will

rit desegregation in either district or reinforce the dual school

stem.

_ See note 8, infra, for a description of the schools and the

distances between them. We are cognizant of the difficulties pre-

sented by the Stonewall and Second Ward High Schools, which are

located 12.8 miles apart.

UNITED STATES v. DeSOTO PARISH SCH. BD.

Faculty Assignments

[151 We have held erroneous the District Court’s

refusal to grant further relief from the board’s admitted

decision not to comply with Singleton. While we share

the Court’s dislike for ordering “strict mathematical

ratios,” their effectiveness as a starting point in elimi-

nating the vestiges of segregation in both student and

faculty assignments is beyond question. Moreover, Sin-

gleton does not require that such ratios be maintained

permanently; rather, it “contemplates an initial reas-

signment so that the racial ratio at every school reflects

the systemwide ratio, followed by the utilization of a

non-discriminatory hiring, firing, and assignment policy

thereafter.” United States v. Wilcox County Bd. of

Educ., 5 Cir., 1974, 494 F.2d 575, 580, cert. denied, 419

U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306. In this case,

the board never began to comply with these require-

ments. We remand with instructions that Singleton is to

be enforced in accordance with its terms, without

further delay.

The order of the District Court is reversed insofar

as it denied the relief sought. The case is remanded with

instructions that the District Court adopt and implement

a comprehensive plan to eliminate the one-race schools

in DeSoto Parish and bring the system to the unitary

status demanded by the Constitution.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

APPENDIX A to follow.

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UNITED STATES v. DeSOTO PARISH SCH. BD

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UNITED STATES v. DeSOTO PARISH SCH. BD.

GEE, Circuit Judge (specially concurring):

I concur in the opinion and write briefly and only to

note how my reading of Brinkman! bears on this case.

There can be little doubt that the drastic and unfortu-

nate means of “bussing for racial balance”- can be re-

quired in a case where the existing imbalance sought to

be corrected results from present intent—or the remain-

ing effects of past intent—to discriminate by race on the

_ part of those controlling school policy. Mere statistical

imbalance by race does not, in my view, justify such a

remedy. But where extreme imbalance exists, as here

and as in Lee,” and where, as here and as in Lee, it has

persisted essentially unbroken by milder remedies since

the abolition of de jure segregation, it is powerful evi-

dence that such an intent either presently exists or per-

sists undisturbed from the older dispensation. If suffi-

ciently extreme, at least where residential patterns are

not polarized, as here, it may be overwhelming evidence

of such an intent presently operating. I find it over-

whelming here, as in Lee. I therefore concur, believing

that Brinkman, which incorporates the language cited

at footnote 20 above, is not at war with our holding.

‘Dayton Board of Education v. Brinkman, 433 U.S. 406, 97

S.Ct. 2766, 53 L.Ed.2d 851 (1977).

PR v. Demopolis City School System, 557 F.2d 1053 (5th Cir.

1977).

Se ee Cee

Appendix C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-3471

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

DESOTO PARISH SCHOOL BOARD, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Louisiana

ON PETITION FOR REHEARING

( August 2, 1978 )

Before BROWN, Chief Judge, MORGAN and GEE,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing

filed in the above entitled and numbered cause be and

the same is hereby denied.

ENTERED FOR THE COURT:

Chief Judge

Appendix D

UNITED STATES COURT OF APPEALS

Fifth Circuit

Office of the Clerk

August 17, 1978

Mr. John F. Ward, Jr.

Attorney at Law

1111 So. Foster St.

Suite C, P.O. Box 65236

Baton Rouge, LA 70896

No. 76-3471—U.S.A. v. DeSoto Parish School

Board, Et Al.

MANDATE STAYED TO AND INCLUDING

September 16, 1978

Dear Counsel:

The court has this day granted a stay of the issuance of

the mandate to the date as shown above. If during the

period of the stay there is filed with the clerk of this

court a notice from the clerk of the Supreme Court that

the party who has obtained the stay has filed a petition

for the writ in that court, the stay shall continue until

final disposition by the Supreme Court. Upon the filing

of a copy of an order of the Supreme Court denying the

petition for writ of certiorari the mandate shall issue

immediately under Rule 41, FRAP.

Under revised Rule 21(1) of the Supreme Court effective

July 1, 1970, a record is no longer required in connection

with an application for writ of certiorari, and therefore

will not be routinely prepared by this office (38LW

3502).

this cause.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By /s/

A copy of the opinion, judgment and denial of rehearing

are still required by the Supreme Court to be incorpo-

rated as an appendix to your petition. Enclosed are

/ copies of the said documents which have been entered in

Deputy Clerk

enc: (LETTER ONLY)

ee: Mr. Brian K. Landsberg

Appendix E

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-3471

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

DESOTO PARISH SCHOOL BOARD, ET AL.,

Defendants-A ppellees.

Appeal from the United States District Court for the

Western District of Louisiana

ORDER:—

IT IS ORDERED that appellant’s motion to vacate

the order of August 17, 1978 granting stay of mandate

pending application to the Supreme Court for writ of

certiorari is DENIED.

/s/ John R. Brown

CHIEF JUDGE

B-6398, 9-78

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