Appendix — Holloway v. Valley

Supreme Court brief1983

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Text

: | JUL BB 198°

R Q i 1 2 ALEXANDER L. STEVAS.

In the Supreme Court of the United Stertes—

OcTOBER TERM, 1983 =

Nos.

RAPIDES PARISH SCHOOL BOARD, ET AL., PETITIONERS

uv.

VirRGIE LEE VALLEY, ET AL.

CLypE HoLLoway, ET AL., PETITIONERS

u

ViIRGIE LEE VALLEY, ET AL.

APPENDIX TO PETITIONS FOR WRITS OF

CERTIORARI

JOHN F. Warp, JR.

Rospert L. HAMMONDS

1111 South Foster Drive, Suite C

Baton Rouge, Louisiana 70896

Counsel for Petitioners

Rapides Parish School Board, et al.

PauL R. BAIER

Paul M. Hebert Law Center

Louisiana State University

Baton Rouge, Louisiana 70803

CHRISTOPHER J. Roy

711 Washington Street

Alexandria, Louisiana 71309

Counsel for Petitioners

Clyde Holloway, et al.

In the Supreme Court of the United States

OCTOBER TERM, 1983

Nos.

RAPIDES PARISH SCHOOL BOARD, ET AL., PETITIONERS

ul.

VirGigE LEE VALLEY, ET AL.

CLYDE HoLLoway, ET AL., PETITIONERS

u

VirGie LEE VALLEY, ET AL.

APPENDIX TO PETITIONS FOR WRITS OF

CERTIORARI

JOHN F. Warp, JR.

Rospert L. HAMMONDS

1111 South Foster Drive, Suite C

Baton Rouge, Louisiana 70896

Counsel for Petitioners

Rapides Parish School Board, et al.

PauL R. BAIER

Paul M. Hebert Law Center

Louisiana State University

Baton Rouge, Louisiana 70803

CHRISTOPHER J. Roy

711 Washington Street

Alexandria, Louisiana 71309

Counsel for Petitioners

Clyde Holloway, et al.

il

INDEX

Page

APPENDIX A

C.A.5, March 30, 1983 2.0.0... cee es la

APPENDIX B

Judgment, C.A.5, March 30, 1983 ............... 22a

APPENDIX C

Rehearing En Banc denied, C.A.5, April 29, 1983. 24a

APPENDIX D

Rehearing En Banc denied, C.A.5, May 26, 1983.. 26a

APPENDIX E

W.D. La., July 22, 1981 2... eee eee 27a

APPENDIX F

Judgment, W.D. La., July 22, 1981 .............. 4la

APPENDIX G

C.A.5, May 18, 1981.0... . cee cee ee eee eee 42a

APPENDIX H

Judgment, C.A.5, May 18, 1981..............00. 76a

APPENDIX I

Judgment, C.A.5, May 18, 1981 ..............00. 78a

APPENDIX J

eles MN. BE, TOBE oc ecerccccccscccscvccdes 80a

APPENDIX K

ee ei, A. ©, TODD... cee ccrvcccnvecesevvavne 82a

APPENDIX L

EM URE, BOO cc vcscccicccccccscceseens 95a

APPENDIX M

Judgment, W.D. La., June 6, 1980............... 99a

iii

INDEX - Continued

Page

APPENDIX N

Response of the Rapides Parish School Board to

District Court's Proposed Plan of Desegregation for

Rapides Parish (July 28, 1980] ...............04. 100a

APPENDIX O

Individual Response of School Board Member

eee eet aG sy fadd eee béscev sobs os 102a

APPENDIX P

Individual Response of School Board Member

a 104a

APPENDIX Q

Rapides Senior High School Consolidated Taxing

District 61, and Local School Taxing Districts..... 108a

APPENDIX R

Bus Routes, 1979-80, Forest Hill, Lecompte,

ECG UEEN es GUs a RAsen es Ch nee ssa ceaees 109a

APPENDIX S

Forest Hill Exhibit 13, Student Pick-Ups, 1979-80 110a

APPENDIX T

Forest Hill School, Opening Day, 1981-1982

Se a llla

la

APPENDIX A

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

MARCH 30, 1983

No. 81-3462

VIRGIE LEE VALLEY, ET AL.,

PLAINTIFFS-APPELLEES,

U.

RAPIDES PARISH SCHOOL BOARD,

ET AL., DEFENDANTS-APPELLANTS,

AND

CLypE HOLLOWAY, ET AL.,

INTERVENORS-APPELLANTS.

Appeals trom the United States District Court for the West-

ern District of Louisiana.

Before CLARK, Chief Judge, POLITZ and RANDALL,

Circuit Judges.

POLITZ, Circuit Judge:

For the sixth time we review an aspect of the litigation,

initiated in 1965, involving the desegregation of the public

schools in Rapides Parish, Louisiana. In Valley v. Rapides

Parish School Board, 646 F.2d 925 (Sth Cir. 1981), cert. denied,

455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 650 (1982) (Rapides

1), we affirmed the finding and conclusion by the district court!

that the vestiges of a state-imposed dual school system had not

been fully eradicated, sanctioning most components of the

remedial program fashioned by the district court. We reversed

' 499 F.Supp. 490 (W.D. La. 1980), aff'd in part, rev'd in part and remand-

ed, 646 F.2d 925 (5th Cir. 1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1480, 71

L.Ed.2d 650 (1982).

2a

in part and remanded in order that the district court might

reconsider and, if re-imposed, explain in greater detail that

portion of its order directing the closure of Lincoln Williams, a

predominantly black K-8 school in Cheneyville, and the closure

of the predominantly white K-8 school in Forest Hill, coupled

with the transfer of students from these two schools to an

elementary and middle school in Lecompte, a community lo-

cated midway between Cheneyville and Forest Hill.

Following a post-remand evidentiary hearing, the district

court reviewed and rejected various alternatives proposed by

the parties and readopted its original plan. On appeal, the

school board and Forest Hill intervenors” focus their attack on

the court's refusal to reopen the Forest Hill Elementary

School. Concluding that the remedy imposed was commensu-

rate with the constitutional violation, we affirm.

BACKGROUND FACTS

A detailed exposition of the factual and procedural history of

this protracted litigation is set forth in our earlier opinion,

reported at 646 F.2d 945. Our review today focuses on the

legality of the district court's solution to the thorny problem

presented by the continued existence of Lincoln Williams as a

virtually all-black school (92.9%). In its earlier assessment, the

district court found no white students available in the

Cheneyville area to desegregate Lincoln Williams, and elected

to close the school and reassign its pupils to Lecompte

Elementary (K-3) and Carter Raymond Junior High (4-8), both

in Lecompte. 499 F.Supp. 490. At the same time the court

determined to reassign the student population of Forest Hill,

with a minority enrollment of 8.3%, to the two Lecompte

schools. Aside from Lecompte’s central location, the district

? We earlier affirmed the district court’s denial of the Forest Hill resi-

dents’ motion to intervene. 646 F.2d at 941-42. On remand, the district court

reconsidered the reasons underlying its initial ruling and granted the Forest

Hill residents leave to intervene. The intervenors participated in the hearing

on remand and in briefing and oral argument before this court.

3a

court cited no supportive reasons for the transfer of Forest Hill

students to Lecompte and concomitant closure of that educa-

tional facility.”

In directing the district court to consider the various

alternatives to the dismantling of Lincoln Williams and Forest

Hill, and, in the event the court adhered to its 1980 decision, to

explain the bases for rejecting such alternatives, we stated:

We cannot lend our sanction so easily, however, to

those portions of the plan involving pupils and facilities in

Wards 3 and 4. Here, as we have described, the district

court elected to close a predominantly white rural school,

Forest Hill, and a predominantly black school, Lincoln

Williams, equidistant in different directions from the

town of Lecompte, and to transfer their pupils to Le-

compte schools. As far as we can determine, the only

justification for closing Lincoln Williams was its predomi-

nance of black pupils. The court admitted that Forest Hill

is more modern than Lecompte Elementary, but de-

scribed the latter as having “much better location for

purposes of integration,” in terms of distance for busing of

reassigned pupils. Alternatives are only sparingly men-

tioned,

These findings are an insufficient factual basis on which

to approve the closing of Forest Hill and Lincoln Wil-

liams. Equally effective alternatives may exist which

would avoid the closing of a modern facility and the inter-

community transfer of kindergarten pupils. These should

be explored on remand and, if the district court adheres to

its present plan, specific reasons for their rejection should

be given. We cannot ignore the district court’s disregard

of neighborhood considerations for rural schools in this

context... . Specific desegregation measures in south-

eastern Rapides Parish should be re-examined in light of

the full range of mitigating equitable considerations.

646 F.2d at 940-41,

3 Since 1966, all high school students in this southeast portion of Rapides

Parish have voluntarily attended the desegregated Rapides High School in

Lecompte.

da

On remand, the district court received additional evidence

from the Forest Hill intervenors, reviewed the various propos-

als submitted, and reinstated the student assignments for the

Poland, Cheneyville, Lecompte and Forest Hill communities.*

The trial judge reiterated his conviction that the dismantling of

Lincoln Williams and the assimilation of its pupils into the

Lecompte schools was the only reasonable alternative to per-

petuation of Lincoln Williams as a racially identifiable school.

Determined to effect an equitable distribution of the burden of

desegregation, the district court remained convinced that

Forest Hill's students should also be assigned to the Lecompte

schools.

Having previously decided in Rapides 7 that the constitu-

tionally mandated goal of educational unitization has not been

* In Rapides I we described the relevant features of the district court's

original plan for desegregating several Rapides Parish schools, and the

conditions the plan was designed to ameliorate:

Before promulgation of the plan the Ward 3 town of Lecompte con-

tained three schools, Lecompte Elementary, Carter Raymond, and

Rapides High School. Lecompte Elementary and Carter Raymond

each served pupils in grades K-8 under earlier orders. Each school had

a majority of black pupils in the range of approximately 60 per cent.

The Lincoln Williams School in Cheneyville, some 10 miles to the

southeast of Lecompte, served all area pupils in grades K-8. The school

was... approximately 93% black, and is the “spur” for additional

relief in this area of the parish. About the same distance to the west of

Lecompte is the community of Forest Hill, which contained a K-8

school with a black attendance percentage of only 8.3. High school

students from both communities went on to Rapides High School in

Lecompte. Northeast of Lecompte in Ward 2 is the community of

Poland, which had a K-12 school with 9.6 percent black pupils in

attendance.

The plan provided for Lecompte Elementary to become a K-3 facil-

ity, and for Carter Raymond to serve grades 4-8, Lincoln Williams was

closed, and its K-8 pupils were transferred to the Lecompte schools,

Forest Hill was also closed, with its pupils transferred to Lecompte

Elementary and Carter Raymond. Pupils from the Poland School in

grades 9-12 were shifted to Rapides High School.

646 F.2d at 933. All major provisions of this plan, together with certain minor

amendments, were incorporated in the framework of the court’s 1981 reme-

dy.

5a

achieved in Rapides Parish,” we need only address the appro-

priateness of the remedy ordered.

GUIDONS [sic]

Failure on the part of school authorities to implement a

constitutionally prescribed unitary school system brings into

play the full panoply of the trial court's remedial power. Swann

v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91

S.Ct. 1267, 28 L. Ed.2d 554 (1971); Rapides I. To discharge this

weighty responsibility, the court is obliged to expunge from

the public schools all vestiges of unlawful segregation. Swann;

Lee v. Macon County Board of Education, 616 F.2d 805 (Sth

Cir.1980); United States v. DeSoto Parish School Board, 574

F.2d 804 (5th Cir.), cert. denied, 439 U.S. 982, 99 S.Ct. 571, 58

L.Ed.2d 653 (1978).

When reviewing a trial court's desegregation remedy, we

are limited to ascertaining whether the court abused its discre-

tion. See Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53

L.Ed.2d 745 (1977); Swann. We are mindful that “the scope of

a district court's equitable power to remedy past wrongs is

broad, for breadth and flexibility are inherent in equitable

remedies.” Swann, 402 U.S. at 15, 91S.Ct. at 1276. See United

States v. DeSoto Parish School Board. Although “free to re-

assess the district court's conclusions of law, its findings of fact

must be accepted unless they are clearly erroneous.” Ross v.

Houston Independent School Dist., 699 F.2d 218, 226 (5th

Cir.1983), (citing Pullman-Standard v. Swint, —— U.S.

—_., 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982)).

A trial judge’s insight into local conditions is to be accorded

substantial deference. While the remedy fashioned by the

° That this action remains in the remedial phase distinguishes it from

Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697,

49 L.Ed.2d 599 (1976), where a unitary system had been achieved, and

subsequent racial imbalances were precipitated by demographic changes

rather than the acts or omissions of the school board. See United States v.

Board of Education of Valdosta, Georgia, 576 F.2d 37 (5th Cir.), cert.

denied, 439 U.S. 1007, 99 S.Ct. 622, 58 L.Ed.2d 684 (1978).

6a

court “may be administratively awkward, inconvenient, and

even bizarre” in some cases, “and may impose burdens on some

... all awkwardness and inconvenience cannot be avoided in

the interim period when remedial adjustments are being made

to eliminate the dual school systems.” Swann, 402 U.S. at 28,

91 S.Ct. 15 1282.

Appellate review of the district court's exercise of its broad

discretion in formulating a desegregation plan is guided by the

tripartite analysis set forth in Milliken. Consistent with .Wi/-

liken’'s teachings, a remedial order must be carefully tailored

to correct the constitutionally infirm condition, restore the

victims of segregation to the positions they would have en-

joyed absent the proscribed conduct, and, where congruent

with constitutional precepts, accommodate the interest of

school officials in administering their affairs without judicial

interference.

LINCOLN WILLIAMS

It is axiomatic that the existence of a few racially

homogeneous schools within a school system is not per se

offensive to the Constitution. Dayton Board of Education v.

Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L. Ed.2d 851 (1977):

United States v. DeSoto Parish School Board; United States v.

Seminole County School District, 553 F.2d 992 (5th Cir. 1977).

The retention of all-black or virtually all-black schools within a

dual system is nonetheless unacceptable where reasonable

alternatives may be implemented. L’nited States v. DeSoto

Parish School Board; Lemon v. Bossier Parish School Ba.,

566 F.2d 985 (5th Cir.1978). See Price v. Denison Indept.

School Dist., 694 F.2d 334 (5th Cir. 1982).

Various plans approved by the district court over the long

history of this litigation did not realize one of their primary

goals: desegregation of the Cheneyville schools. The court's

attempt in 1975 to accomplish this objective by closing the

majority white Cheneyville High School (K-12), and assigning

all children residing in Cheneyville to Lincoln Williams proved

unsuccessful because of an exodus of white pupils. On original

hearing, and again on remand, the district court concluded that

ia

this constitutionally impermissible condition could not be rem-

edied by pairing or clustering with the school in Poland, the

only accessible “white” school.® Absent a pool of available

white students, the court opted to reassign students living east

of Cheneyville to Poland, which was reduced to a K-6 facility,

and to transfer Poland’s seventh and eighth grade students to

Jones Street School. These assignments increased Poland's

black student population from 9.6% to 36.8%. The district

court was obviously persuaded, both before and after remand,

that the only viable alternative to a segregated education for

the remaining K-6 students in Cheneyville was to reassign

them to the schools in Lecompte.

Nothing in the record attests to the presence of geographic

or demographic barriers, insuperable distances, excessive

travel times, or other factors which might militate against the

court’s resort to busing, a “normal and accepted tool of educa-

§ In arriving at this conclusion in 1980, the court took into consideration

the likely recurrence of the “white flight” phenomenon if Lincoln Williams

and Poland were clustered or paired. This rationale was reaffirmed in the

court’s post-remand decision. No objection has been interposed to the court’s

finding in this regard.

Generally speaking, community opposition to desegregation which takes

the form of white flight will not justify a district court’s failure to compel the

total elimination of a non-unitary school system. United States v. Scotland

Neck City Board of Education, 407 U.S. 484, 92 S.Ct. 2214, 33 L.Ed.2d 75

(1972). We have nonetheless held that the trial judge, in choosing among

permissible plans, may select one calculated to minimize white boycotts.

Stout v. Jefferson County Board of Education, 537 F.2d 800 (5th Cir. 1976).

Accord, Ross v. Houston Independent School Dist. (in seeking reduction in

the number of one-race schools, the district court could not ignore diminished

white enrollment attributable to “white flight”); United States v. DeSoto

Parish School Board (a court need not ignore a likely danger of an exodus of

white children from a school system). See Parents Assn. of Andrew Jackson

High School v. Ambach, 598 F.2d 705 (2d Cir.1979); Higgins v. Board of

Education of the City of Grand Rapids, 508 F.2d 779 (6th Cir.1974). Cogni-

zant as we are of the deference to which the trial court’s on-the-spot knowl-

edge of this complex situation is entitled, Swann, we cannot gainsay its

judgment that pairing or clustering with Poland would “in practice produce

not more but less desegregation.” Stout, 5387 F.2d at 802.

Sa

tional policy,” Swann, 402 U.S. at 29, 91S.Ct. at 1282. Indeed,

Cheneyville is approximately nine miles south of Lecompte

and is connected by a major highway, a portion of which is

multi-laned. There is nothing to indicate that transportation of

the former Lincoln Williams students to Lecompte presented

any kind of logistical difficulty. Student busing over substan-

tial distances is commonplace in the southeastern portion of

Rapides Parish, where the population is diffused and some

families live many miles from school facilities. Absent the

desegregation wrinkle, busing has traditionally been warmly

received as a welcome public service, particularly by families

living in rural areas.

The record reflects that the efforts to desegregate Poland

were progressing well. The court’s obvious reluctance to dis-

rupt this part of the total parish plan was eminently reason-

able. See United States v. Stout; United States v. School Dis-

trict of Omaha, 521 F.2d 530 (8th Cir.) cert. denied, 423 U.S.

946, 96 S.Ct. 361, 46 L.Ed.2d 280 (1975). Because Lecompte

Elementary and Carter Raymond were approximately 60%

black, use of pairing or clustering techniques to transfer white

students to Lincoln Williams would have served only to further

skew the percentage of black pupils in these schools. However,

both Lecompte schools could physically absorb the relatively

small number of Lincoln Williams students. All relevant fac-

tors considered, we conclude that the decision to close Lincoln

Williams and to reassign its students to Lecompte was within

the ambit of the district court’s expansive remedial authority. ‘

? Invoking a formidable array of Fifth Circuit precedent, the school board

contends that Lincoln Williams could not be closed for reasons relating to its

racial character. See Arvizu v. Waco Independent School District, 495 F.2d

499 (5th Cir.1974); Ellis v. Board of Public Instruction of Orange County,

Florida, 465 F.2d 878 (5th Cir.1972), cert. denied, 410 U.S. 966, 93 S.Ct.

1438, 35 L.Ed.2d 700 (1973); Lee v. Macon County Board of Education, 448

F.2d 746, 753-54 (5th Cir.1971); Mims v. Duval County School Board, 447

F.2d 1330 (5th Cir.1971); Bell v. West Point Municipal Separate School

District, 446 F.2d 1362, 1363 (5th Cir.1971); Gordon v. Jefferson Davis

Parish School Board, 446 F.2d 266 (5th Cir.1971); Wright v. Board of Public

Instruction of Alachua Co., Fla., 431 F.2d 1200, 1202 (5th Cir. 1970); Robert-

9a

FOREST HILL

Once having confected an antidote for Cheneyville’s seg-

regative ills, the court was confronted with yet another dilem-

ma — the projected increase in minority enrollment in the

Lecompte schools occasioned by the influx of students from

Lincoln Williams. This ineluctably led to the court’s considera-

tion of the predominantly white student body at Forest Hill,

approximately nine miles west of Lecompte. Viewing the

Cheneyville, Forest Hill and Lecompte schools as integral

elements of a single educational network,” the court resolved

to eradicate all traces of unconstitutional segregation by dis-

mantling Forest Hill’s K-8 facility and shifting its students to

Lecompte. The Forest Hill intervenors and the school board

challenge the court’s conclusion that the assignment of all

elementary and middle school pupils within the tri-community

region to Lecompte schools, accompanied by the closing of

Forest Hill, offered the most reasonable prospect of successful

desegregation, contending that the proposals they submitted

son v. Natchitoches Parish School Board, 431 F.2d 1111 (5th Cir.1970);

Hilson v. Ouzts, 431 F.2d 955, 956 (5th Cir.1970); Carr v. Montgomery

County Board of Education, 429 F.2d 382, 385 (5th Cir.1970).

This line of authority prohibits a school board's closure of schools racially

identifiable as “black” for discriminatory purposes, as well as judicial approv-

al thereof, but does not diminish the district court’s traditional authority to

dismantle one-race schools as a palliative for segregation. See e.g., Swann;

Morgan v. McDonough, 689 F.2d 265 (1st Cir.1982); Lemon v. Bossier

Parish School Board. See also Mitchell v. McCunney, 651 F.2d 183 (3d

Cir.1981) (closure of homogeneous black and white schools approved). It

follows that the court’s utilization of school closure as a remedial device,

rather than as a means of perpetuating a dual system, did not, in contradis-

tinction to the argument advanced by counsel for Forest Hills, function to

deprive pupils of either school of their right to equal protection of the law.

8 We approved the district court’s implementation of a parish-wide reme-

dy in Rapides I], based on evidence that “(t]he entire parish operated as a dual

segregated system in the past, ahd .. . that the vestiges have not been

eradicated ‘root and branch’ as required.” 646 F.2d at 938. Once a constitu-

tional violation of this dimension had been shown, the court was empowered

to embrace Poland, Cheneyville, Lecompte and Forest Hill within a single

remedial plan.

10a

would function more effectively to remedy the discrimination

found to exist.

None of the parties take [s/c] issue with the district court's

unequivocal rejection of the school board's initial suggestion

that Lecompte Elementary be closed and its students trans-

ported to Forest Hill. Among the factors influencing this deci-

sion were the adequacy of Lecompte Elementary’s facilities,

its central location, and the relative ease of busing Forest Hill

students to Lecompte. Given the lack of a feasible alternative

to Lincoln Williams’ closure, the court was impelled to seek

out, within practical limitations, an equitable allocation of the

burden of desegregation by declining to close a second major-

ity black school. Arvizu v. Waco Independent School District,

495 F.2d 499 (5th Cir. 1974); Cisneros v. Corpus Christi Inde-

pendent School District, 467 F.2d 142 (Sth Cir. 1972) (en bane),

cert. denied, 413 U.S. 920, 93 S.Ct. 3053, 37 L.Ed.2d 1041

(1973). See Brice v. Landis, 314 F.Supp. 974 (N.D.Cal. 1969)

(when minority school being closed has adequate facilities and

white students not bused, closing unjustified).

Other suggestions urged on remand were eliminated by the

court for similar reasons. One series of suggestions called for

the selective busing of a specified number of black children

from Lecompte or Woodworth to Forest Hill (Forest Hill plans

1, 2 and 4). Another suggestion advocated maintenance of

Lincoln Williams and Forest Hill as K-8 schools, and Lecompte

Elementary as a K-4 school, with black pupils from Lecompte

grades K-4 bused to Forest Hill, and white pupils from

Lecompte grades 5-8 bused to Lincoln Williams. Under this

suggestion, Lecompte grade 4 would become almost all white,

and Lincoln Williams grades 1-4 all black (School Board plan 1).

Yet another series of suggestions sought the establishment of

specific grade configurations at Forest Hill and Lecompte

through the closure of Lincoln Williams, and the creation of

K-5 schools at Forest Hill and Lecompte, a 6-8 school at Carter

Raymond, and a K-6 school at Poland (School Board plans 2 and

3), anticipating the transportation of 78 and 108 Lecompte

children to Forest Hill, respectively.

lla

None of the plans suggested by the school board or the

Forest Hill intervenors adequately insure a fair reconciliation

of the competing interests involved. Some of the proposals

would have unfairly burdened minority students. Others

would in all probability have precipitated a reversion to the

impermissible status quo — the perpetuation of Lincoln Wil-

liams as an essentially one-race school. None would spread

equally the burden of desegregation.

By way of contrast, the plan developed by the court, with

precious little of the assistance it had a right to expect from the

parties, envisions the equidistant transportation of an equiva-

lent number of white and black students in the same age

bracket. The court's plan anticipates an even-handed distribu-

tion of the travails of desegregation. See United States v.

Texas Education Agency, 467 F.2d 848 (5th Cir.1972) (en

bane). See also Mitchell v. McCunney, 651 F.2d 183, 189 (3d

Cir.1981) (“school board has an obligation to implement a stu-

dent reassignment plan that will not dislocate black students

significantly more than white students”). Plans submitted by

the school board and the intervenors would not achieve the

measure of desegregation realistically attainable. Thus their

rejection by the district court did not constitute error or an

abuse of discretion. See Davis v. Board of School Commission-

ers, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971).

Perhaps the most problematic of all proposals evaluated and

rejected by the district court concerns the survival of both

Lincoln Williams and Forest Hill as racially identifiable K-3

institutions. Pursuant to this proposal, first suggested by the

private plaintiffs and later espoused by the Forest Hill interve-

nors, children in the early elementary grades would attend

schools within their neighborhoods. While the court's opinion

provides no guidance as to the rationale underlying its disal-

lowance of neighborhood schools, our independent examina-

tion of the record persuades us of the appropriateness of the

court’s position.

Though mindful of the worthy community values inherent in

a neighborhood school, the maintenance of such values may not

12a

serve to supersede the constitutional imperative of desegrega-

tion. See Swann; Rapides 1. We need hardly remind of that

mandate at this point nearly three decades after Brown v.

Board of Education.” Federal courts are obliged to “make

every effort to achieve the greatest possible degree of actual

desegregation, taking into account the practicalities of the

situation.” Davis, 402 U.S. at 37, 91S.Ct. at 1292. This consti-

tutionally erected barrier to the operation of segregated

schools applies to all children within the school system, includ-

ing those in elementary grades. Kelley v. Metropolitan Coun-

ty Board of Education of Nashville and Davidson County,

Tenn., 687 F.2d 814 (6th Cir. 1982), cert. denied, US.

, 103S.Ct. 834, 74 L. Ed.2d (1983); Adams v. United

States, 620 F.2d 1277 (8th Cir.), cert. denied, 449 U.S. 826, 101

S.Ct. 88, 66 L.Ed.2d 29 (1980). See Lee v. Macon County

Board of Education; Anderson v. Dougherty County Board of

Education, 609 F.2d 225 (5th Cir.1980); United States v.

Board of Education of Valdosta, Ga., 576 F.2d 37 (Sth Cir.),

cert. denied, 439 U.S. 1007, 99 S.Ct. 622, 58 L.Ed.2d 684

(1978); Mills v. Polk County Board of Educc on, 575 F.2d

1146 (5th Cir. 1978). Since “desegregation plans cannot be lim-

ited to the walk-in school,” Swann, 402 U.S. at 30, 91 S.Ct. at

1283, courts must explore the feasibility of a variety of reme-

dial methods before lending their judicial imprimatur to the

propagation or maintenance of one-race elementary schools.

Tasby v. Estes, 572 F.2d 1010 (5th Cir. 1978), cert. dism. sub

nom Estes v. Metropolitan Branches of the Dallas NAACP,

444 U.S. 437, 100S.Ct. 716, 62 L. Ed.2d 626 (1980). See Swann;

Lee v. Macon County Board of Education. See also Davis v.

East Baton Rouge Parish School Bd., 570 F.2d 1260 (5th

Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 57

L.Ed.2d 72 (1979) (elementary, middle and high schools).

Student transportation, one of the “desegregation tools”

approved by the Supreme Court, cannot be discounted as a

valid alternative to the education of elementary school children

in a segregated environment unless the record demonstrates

* 347 U.S. 488, 74 S.Ct. 686, 98 L.Ed.2d 873 (1954).

l3a

that “the time or distance of travel is so great as to either risk

the health of the children or significantly impinge on the educa-

tional process.” Swann 402 U.S. at 30-31, 91 S.Ct. at 1283;

United States v. Teras Educ. Agency, 532 F.2d 380 (5th

Cir.1976), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61

L.Ed.2d 879 (1979). As we observed in Rapides /, the accept-

able length and time of travel will perforce vary with the age of

the children and the risk posed to their health. 646 F.2d at 939.

To buttress their contention that the court's plan would

impose an excessive burden on Forest Hill K-3 students, the

intervenors offered evidence that: (1) some children would

travel approximately one hour each direction, (2) buses travel-

ing between Forest Hill and Lecompte must traverse a rail-

road track, and (3) the Forest Hill school embodied the most

treasured characteristics and qualities of the surrounding com-

munity. Photographs were offered to show the condition of the

Forest Hill school buildings.

We are impressed with the sincerity and depth of feeling

displayed by the Forest Hill parents. The record attests to the

fine quality of the citizenship of these intervenors. They are

law-abiding and supportive of our Constitution and laws.

Balancing the equities when dealing with their small children

is a particularly arduous task. Our painstaking review of the

record nevertheless discloses no evidence to contradict the

district court's finding, with respect to the children residing

within 2.5 miles of the heart of Forest Hill or along the highway

to Lecompte,'” that “the burden of busing others into Forest

Hill is far greater than busing Forest Hill students to Le-

compte.

' The intervenors attack the court's inclusion in its decree of the esti-

mated 50 students who live in the Mill Creek, Bennett Bay and Blue Lake

Road areas, to the west and south of Forest Hill. The government concedes

that “the time and distance of busing these students would be considerable.”

As intervenors point out, no findings were made by the district court on the

transportation burden, if any, sustained by these children. Forest Hill's

evidence in this regard affords us little assistance, inasmuch as the bus

drivers’ trip tickets do not distinguish between elementary, junior high and

l4a

The proposals advanced by the school board and intervenors

contemplate the transportation of black students from Le-

compte to Forest Hill over the same highway as is claimed to

be dangerous and overly long for the transportation of Forest

Hill students to Lecompte. We are not persuaded that the

burdens and risks of travel vary depending on the direction of

travel and the complexion of the travelers.

We note further, as did the district court, that the older

students have been riding the school bus to Lecompte for a

number of years. High School students from the Forest Hill

area have been bused to Lecompte voluntarily since the 1966-

67 school year, and seventh and eighth graders must also now

be bused from Forest Hill. The burden of busing the

elementary school children is minimized by the previous estab-

lishment of busing for the older children. As the district court

stated: “The elementary students simply get on buses already

loaded with their older brothers and sisters.”

Finally, the district court found Carter Raymond and Le-

compte Elementary to be structurally sound and capable of

accom. odating all students assigned.'' Accordingly, upon

consideration of all of the foregoing factors, we must concur in

high school children, all of whom ride the same buses. Nor does the map

submitted provide a sufficient premise for evaluating the nature and extent

of the burden imposed on the children vis-a-vis either their age, the putative

health risks or any potentially deleterious effects upon the educational

process. The testimony on this issue served only to describe the routes

traveled by children living in the outlying environs of Forest Hill. In light of

the paucity of evidence pertaining to the time and distance of travel for

younger children residing in the foregoing areas, we cannot assess the

equities of their assimilation in the court's tripartite desegregation program.

Upon proper motion, however, the court may wish to reconsider its assign-

ment of students from these remote localities to Lecompte schools.

" According to the intervenors, the district court’s inspection of the

Lecompte schools was an abuse of discretion. We are not persuaded. Forest

Hill residents do not dispute the court’s findings as to the adequacy of these

schools, which findings are in fact corroborated by the proffered photo-

graphs. If Lecompte Elementary and Lincoln Williams were in disrepair or

presented a palpable risk of harm, we are certain that the school board would

not subject children to such hazards. Lemon v. Bossier Parish School Board.

l5a

the district court's judgment that the intervenors’ legitimate

interest in preserving their neighborhood school must, in this

instance, vield to the constitutional requirement that all chil-

dren in the parish, black and white, share in a desegregated

educational experience.

We thus conclude that the district court’s decision to assign

Forest Hill students to the Lecompte schools and to close

Forest Hill School was a reasonable exercise of its equitable

discretion. The record in this case supports the court's convic-

tion that of all the proposals offered, its plan can best be

expected to achieve the mandated conversion to a unitary

system.

AFFIRMED.

CLARK, Chief Judge, dissenting:

I respectfully dissent. The mandate of this court’s prior

panel, 646 F.2d 925, controls this panel just as it did the district

court. Although the majority starts its reasoning by quoting a

crucial paragraph from that mandate, it has not applied its

letter or spirit to the district court’s order on remand which is

before us for review today.

Specifically, the prior mandate vacated the order closing the

Lincoln Williams and Forest Hill schools and required the

district court to: (1) give regard to neighborhood considera-

tions for rural schools, 646 F.2d at 944; (2) take into considera-

tion such equitable factors as “[t]he length and time of travel

.. .inlight of the age of the children, and the risk to health and

probable impingement on the educational process,” id. at 939;

(3) only employ the “harsh remedy” of closing rural schools “if

absolutely necessary to achieve the goal of a unitary system

after all other reasonable alternatives have been expiored;” id.

at 940; (4) “explicitly state its justification for ordering a school

closed” id. at 940; and (5) reexamine its closing of Lincoln

Williams and Forest Hill schools “in light of the full range of

mitigating equitable considerations” (id. at 941) because the

district court's findings that Lincoln Williams had a predomi-

nance of black pupils and that Lecompte Elementary was older

l6a

than Forest Hill but was “much the better location for pur-

poses of integration” formed an insufficient basis to sustain the

closings, id. at 940.

On remand, the district court wrote a new, longer opinion in

which it changed and added words but I cannot find in them

even one change of any substance to show that court complied

with these commands.

On this appeal the majority has impermissibly substituted

its present approval for the prior panel's rejection of the same

schools closing edict on the same basic district court findings

and erroneous premises. The net result is that this court has

now affirmed a district court order that failed to tailor its

remedy to the constitutional wrong identified in this case. The

consequences are that innocents suffer and the law is brought

into disrepute. The judgment should have been vacated again

and the cause remanded, this time with explicit directions to

limit relief to an appropriate remedy.

Of course a court’s equitable powers to remedy past consti-

tutional wrongs are very broad. Swann v. Charlotte-

Mecklenburg Bd. of Education, 402 U.S. 1, 15, 91S8.Ct. 1267,

1275-76, 28 L.Ed.2d 554 (1971). Of course all reasonable

methods to achieve this end are available. North Carolina

State Bd. of Education v. Swann, 402 U.S. 48, 46, 91 S.Ct.

1284, 1286, 28 L.Ed.2d 586 (1971). These are basic premises of

school desegregation law. The Supreme Court and this court

have often held that courts pursuing this goal may bus chil-

dren, reshuffle faculty, cluster, pair, rezone and close schools.

But a court’s powers in this type of case are not unlimited,

Rather, they are confined to proper objectives. In the case at

bar, the court’s task was not, as it declared, to achieve an

integrated student body in every school, or even to remedy

every problem of racial imbalance that may exist within the

school system. Swann, supra 402 U.S. at 24, 91S.Ct. at 1280.

Rather, it was limited to eradicating segregation cause [sic] by

past school board practices. Ross v. Houston Independent

School District, 699 F.2d 218, 227-28 (5th Cir. 1983). In school

desegregation cases the court’s unnatural role becomes that of

l7a

a super school board and temporary school administrator. It is

a role which must be played with circumspection and care for

the damage which overbroad remedial bans do to children,

parents and communities who have offended no one.

The existence of great power does not permit its fullest

exercise in every case. Because the court has limited objec-

tives and a limited role, the scope of the remedy it devises must

be tailored to fit the nature and extent of the constitutional

violation found. Hills v. Gautreaux, 425 U.S. 284, 293-94, 96

S.Ct. 1588, 1544-45, 47 L.Ed.2d 792 (1976). The prior panel

mandate required the district court to reexamine that portion

of its order closing Lincoln Williams and Forest Hill in light of

the full range of mitigating equitable circumstances it de-

scribed. It required the district court, not this appellate court,

to explore all other reasonable alternatives before it reinstated

the “harsh remedy” of “closing a facility built and maintained

at the expense of local taxpayers.” Not a single one of the “full

range of mitigating, equitable circumstances” (and there were

many) required to be considered was discussed or distin-

guished or applied. The district court really did no more than

put the wine of new words in the old skin of school closings

because it saw no other remedy to integrate Lincoln Williams.

When the district court reordered the closing of the Forest

Hill and Lincoln Williams schools, these two communities lost

their only schools. Children from both communities must now

be bussed many miles from their homes. Expert evidence

placed in this record on remand established that closing a

town’s only school, especially one located in a small settlement,

traumatizes the whole town. The greatest costs are to the

families that include school-aged children, but hurtful reper-

cussions extend throughout the community.

Parents in both “burdened” communities, one predominate-

ly white, the other predominately black, asked the court to

leave their schools open, at least for their youngest children.

Their petitions were ignored. These children, ranging in age

from kindergarten through early elementary grades, must rise

early, board buses, drive past their community school houses

lxa

and go into a distant town and then reverse the journey in the

evenings. Some will spend two hours a day on the school bus.

Their names are not recorded. Their family situations are not

detailed. Their needs, their hopes, their rights are dashed

without discussion. If a five-year-old gets sick or forgets her

coat or her lunch and wants to contact her parents she must

make a long distance telephone call to reach her home. It seems

small solace for the majority to suggest that some such chil-

dren may have high school-aged siblings who will be on the bus

with them part of the way. Much more remarkable, I think, is

the fact that the children, parents, and communities who are so

damaged did not cause or contribute in any way to the con-

ceived constitutional wrong the court sought to remedy. In-

deed, the district court and the majority both state that the

people of Forest Hill have been altogether law-abiding and

free of guilt.

Why then have they been put to this grief? For integration,

the district court said. It saw no other reasonable prospect to

integrate Lincoln Williams because its prior order pairing Lin-

coln Williams had been defeated by white flight. But the

Cheneyville students and parents who now plead to keep their

school did not leave it. Why must their plea to keep their school

open go unheeded? At the opposite base of this triangle, the

pleas of the Forest Hill students and parents who also want to

keep their school were equally ignored. Why? Why must the

“harsh remedy” be imposed on them without weighing the “full

range of mitigating equitable considerations” they brought

forward? “[T]o effect an equitable distribution of the burden”

the majority says. I can see that the punishment inflicted on

the citizens of Forest Hill is comparable to the punishment

inflicted on Cheneyville, but I cannot detect a spark of equity

in heaping the coals of sorrow on the heads of either communi-

ty. The record shows without contradition that the Forest Hill

area became predominantly white because of a change in the

community's economic-industrial conditions which had nothing

to do with schools. Cf. Pasadena City Board of Education v.

Spangler, 427 U.S. 424, 436, 96 S.Ct. 2697, 2704-05, 49

19a

L.Ed.2d 599 (1967). Neither the Lincoln Williams nor the

Forest Hill school was constructed or maintained to evade

desegregation. The school board has never used either school

for racial purposes. The punishment of these innocents fits no

crime of their or the district's making.

For eighteen years this school district has been under the

injunctive edicts of federal courts. It has not violated one. The

fault for any perceived shortcomings in the district, lies at the

doorstep of the federal courts, not the school district, its staff

or patrons. Moreover, courts delude no one but themselves

when in the name of justice they make wholesale adjustments

to the intimate, individual and differing rights of hundreds of

citizens. If this latest edict proves nothing else, it will prove

again that courts are a totally inadequate institution to resolve

with broad injunctions the numerous, complex, interrelated

rights which comprise a “school case.”

The district court accepted as its “principal purpose. . . the

adoption of a plan which achieves the greatest amount of in-

tegration.” This was wrong. Integration is not a constitutional

command. One race schools which are not the result of past

segregation do not keep a school district from being unitary.

Swann, supra, 402 U.S. at 25-26, 91 S.Ct. at 1280-81. This

false premise led the district court to close Lincoln Williams to

its patrons. As errors are prone to do, it, in turn, caused the

further error of closing Forest Hill to bring misery company.

The two wrongs do not make a right.

More's the pity. Even accepting the district court's

erroneous premise of a duty to integrate, its plan for achieving

theoretical integration was not the best remedy available. A

less disruptive solution was identified by the parties. Under

the school board’s third plan, children from predominantly

black zones in the Lecompte areas could have been bussed to

Forest Hill. This plan could have been supplemented in the

manner suggested by a group of Cheneyville citizens who

proposed that the Lecompte elementary schools be closed. If

this approach had been used, that community could have re-

tained a seventh and eighth grade school and four-year high

20a

school for their own children as well as those from Cheneyville

and Forest Hill. Children from predominantly white areas in

the Lecompte region could have been bussed to Lincoln Wil-

liams. Instead of closing the only schools in two communities,

just one of the three Lecompte area schools would have been

closed. Carter Raymond and Lecompte High could have con-

tinued to serve the area. Instead of bussing children from two

communities, only children from one area would have had to be

bussed. As the court aptly observed, the road mileage between

these communities is no greater in one direction than the

other. Statistically, the desired racial mixture could have been

achieved in both schools.

The assumption of the district court and the majority that

there was no alternative to closing Lincoln Williams was

erroneous. The threat of flight by white children to be bussed

from Lecompte to Lincoln Williams does not justify rejection

of this plan any more than the threat that pupils from Forest

Hill won't go to Lecompte Elementary or the threat that

blacks from Cheneyville will not follow the court’s plan. Of

course the court was not required to ignore a likelihood of pupil

flight. It had happened before. In a free country it may happen

again. A court’s school order can mandate county officials in

the performance of their duties, it can map zone boundaries

and it can fence in schools, but it cannot command a single

student to go to a single school for a single day.

But just as United States v. Scotland Neck City Bd. of

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

75 (1972) established that flight cannot be accepted as a reason

for achieving anything less than complete uprooting of the dual

school system, it cannot be accepted as a reason for reaching

past the wrong to be remedied when a less disruptive, equally

effective plan is available. It cannot do so because a remedy

that exceeds the wrong to be righted violates clear precedent

of the Supreme Court and this court. It cannot do so here

because the district court’s order disobeys the controlling man-

date of the prior panel. The court did not demonstrate that its

plan was more likely to be effective than the possible plan that

2la

would close only one of Lecompte’s schools. Indeed, the record

indicates quite to the contrary.

In thirteen years on this court I have participated in the

affirmance of a number of public school desegregation plans.

Most have been, as most are, successful in theory only. I

nevertheless remain readily obedient to my obligation to fol-

low precedent. But that does not keep me from knowing what

everyone knows — zones, pairs, clusters and bussing are

workable remedies for school desegregation only in extreme

cases. When the problem is reduced to dealing with people of

good will who have done no wrong, maximum use of the neigh-

borhood school is the key to assuring equal educational oppor-

tunity. That equality of opportunity is the constitutional lode-

star. In some cases, precedent and prior school district actions

will proscribe the maximum preservation of neighborhood

schools. This is clearly not such a case. The prior panel estab-

lished that the district court should have followed its mandate.

So should we.

22a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-3462

D. C. Docket No. CA-10,946

VirGIE LEE VALLEY, ET AL.,

PLAINTIFFS-APPELLEES,

UNITED STATES OF AMERICA,

INTERVENOR-APPELLEE,

versus

RAPIDES PARISH SCHOOL BOARD, ET AL.,

DEFENDANTS-APPELLANTS,

AND

CLYDE HOLLOWAY, ET AL.,

INTERVENORS-APPELLANTS.

Appeal from the United States District Court for the

Western District of Louisiana

Before CLARK, Chief Judge, POLITZ and RANDALL,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal and

was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

affirmed;

23a

IT IS FURTHER ORDERED that appellants pay to

appellees the costs on appeal, to be taxed by the Clerk of this

Court.

March 30, 1983

CLARK, Chief Judge, dissenting.

IssuED AS MANDATE: JUN 6 1983

24a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-3462

ViRGIE LEE VALLEY, ET AL.,

PLAINTIFFS-APPELLEES,

UNITED STATES OF AMERICA,

INTERVENOR-APPELLEE,

Uv,

RAPIDES PARISH SCHOOL BoarD,

ET AL., DEFENDANTS-APPELLANTS,

AND

CLYDE HOLLOWAY, ET AL.,

INTERVENORS-APPELLANTS.

(April 29, 1983]

Appeals from the United States District Court for the West-

ern District of Louisiana.

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion March 30, 5 Cir., 1983, 702 F.2d 1221).

Before CLARK, Chief Judge, POLITZ and RANDALL,

Circuit Judges.

PER CURIAM:

The petition for Rehearing of intervenors-appellants, Clyde

Holloway, et al., is DENIED and no member of this panel nor

Judge in regular active service on the Court having requested

that the Court be polled on rehearing en banc, (Rule 35 Federal

25a

Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the

Suggestion for Rehearing En Banc is DENIED.

CLARK, Chief Judge.

For the reasons stated in my dissent to the panel opinion, I

dissent from the denial of rehearing.

26a

APPENDIX D

VIRGIE LEE VALLEY, ET AL.,

PLAINTIFFS-APPELLEES,

UNITED STATES OF AMERICA,

INTERVENOR-APPELLEE,

U.

RAPIDES PARISH SCHOOL BOARD, ET AL.,

DEFENDANTS-APPELLANTS,

AND

CLYDE HOLLOWAY, ET AL.,

INTERVENORS-APPELLANTS.

No, 81-3462.

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

May 26, 1983.

Appeals from the United States District Court for the West-

ern District of Louisiana; Nauman S. Scott, Judge.

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion March 30, 5 Cir., 1983, 702 F.2d 1221)

Before CLARK, Chief Judge, POLITZ and RANDALL,

Circuit Judges.

PER CURIAM:

The Petition for Rehearing of Rapides Parish School Board,

et al. is denied, 702 F.2d 1221 and no member of this panel nor

Judge in regular active service on the Court having requested

that the Court be polled on rehearing en banc, (Rule 35 Federal

Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the

Suggestion for Rehearing En Banc is denied.

CLARK, Chief Judge:

For the reasons stated in my dissent to the panel opinion, I

dissent from the denial of rehearing.

27a

APPENDIX E

UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

JULY 22, 1981

No. 10,946

VIRGIE LEE VALLEY, ET AL.

v.

RAPIDES PARISH SCHOOL BOARD

Before NAUMAN 8. SCOTT, Chief United States District

Judge.

By decree dated May 18, 1981, our judgment of August 6,

1980 was affirmed in part and remanded in part. The only

matter for consideration under the remand is that portion of

the student assignment plan covering schools in Wards 2 and 3

(Group V area in the plan) having the following student mem-

bership as of May 31, 1980.

PUPIL MEMBERSHIP AS OF MAY 31, 1980

SCHOOLS PUPILS TOTALS

B % Ww %

Forest Hill Elem. K-& 26 ( 8.3) 285 (91.7) 311

Lecompte Elem. K-4 230 (61.5) 144 (38.5) 374

Poland High K-12 30 ( 9.6) 281 (90.4) 311

Rapides High 10-12 138 (44.2) 174 (55.8) 312

Carter Raymond Jr. High 5-9 =218 = (62.1) 133 (37.9) 351

Lincoln Williams Elem. K-8 185 (92.9) 14 ( 7.1) 199

TOTALS 827 (45.5) 1081 (54.5) 1858

The combined student population of this area in the 1979-80

school year was as follows:

Lecompte Area (Group V)

B W TOTAL

Elementary K-6 468 (45.5%) Ol (54.5%) 1,029

Jr. High 7-8 142 = (47.0%) 160) (53.0%) 302

High 9-12 217) = (41.2%) 310 (5S. 8%) 527

TOTALS 827 (45.5%) 1031 (55.5%) 1.85%

In remanding the court instructed that:

“We cannot lend our sanction so easily, however, to those

portions of the plan involving pupils and facilities in

Wards 3 and 4. Here, as we have described, the district

court elected to close a predominantly white rural school,

Forest Hill, and a predominantly black school, Lincoln

Williams, equidistant in different directions from the

town of Lecompte; and to transfer their pupils to Le-

compte schools. As far as we can determine, the only

justification for closing Lincoln Williams was its predomi-

nance of black pupils. The court admitted that Forest Hill

is more modern than Lecompte Elementary, but de-

scribed the latter as having ‘much the better location for

purposes of integration,’ in terms of distance for busing of

reassigned pupils. Alternatives are only sparingly men-

tioned.

“These findings are an insufficient factual basis on which

to approve the closing of Forest Hill and Lincoln Wil-

liams. Equally effective alternatives may exist which

would avoid the closing of a modern facility and the inter-

community transfer of kindergarten pupils. These should

be explored on remand and, if the district court adheres to

its present plan, specific reasons for their rejection should

be given. We cannot ignore the district court's disregard

of neighborhood considerations for rural schools in this

context, particularly where K-2 students in Alexandria

were spared transfer to the point that three schools re-

main virtually all-black. Specific desegregation measures

in southeastern Rapides Parish should be re-examined in

light of the full range of mitigating equitable consider-

ations.

' Since our reasons for denying intervention by Forest Hill residents were

29a

The area served by the Group V schools, outlined in yellow,

Exhibit C26a, contains in the school year of 1979-80 six operat-

ing schools. The high school students in the Poland district

attended Poland K-12. Those students from the rest of the

area, Cheneyville, Forest Hill and Lecompte school districts,

Exhibit C26b attended Carter Raymond Junior High 5-9 in the

ninth grade and Rapides High 10-12. The Junior High and

Elementary students attended schools in their own districts at

Lincoln Williams K-8, Forest Hill K-8, Carter C. Raymond 5-9

and Lecompte Elementary K-4. Lecompte (pop. 1518) is in the

very center of this area, being 11.0 miles from Woodworth

(pop. 409); 9.7 miles from Forest Hill (pop. 370); 13.3 miles

from Poland (pop. 0), and 9.1 miles from Cheneyville (pop.

1082), Exhibits C2 and C26a-c. It would appear from the map,

Exhibit C26a, that the populated area around LSU-A, north of

Lecompte on U. S. Highway 71 is about 8 or 8/2 miles. Three

highways extend south from Alexandria through this area:

Highway 1 extending through the Poland district, Exhibit 26b,

has a student population over 90% white; U. S. Highway 165

extending south through the Forest Hill district has a white

student population of over 90%; 771 (93.24%) of the 827 black

students in the area attended the schools located along U. S.

Highway 71 at Lecompte and Cheneyville.

There has been a gradual decline of student population at

Cheneyville area (Cheneyville formerly had a white high

school); and an almost complete exodus of white students from

Lincoln Williams after the “white school” was integrated with

Lincoln Williams in 1975. Poland is the only majority white

school district accessible to Lincoln Williams. There was abso-

lutely no likelihood that these students would attend Lincoln

Williams when the whites in the Lincoln Williams district had

already refused to do so. It was our finding that there was no

reasonable prospect that Lincoln Williams could be integrated

no longer viable, and since any alternatives offered by them would aid us in

the resolution of the issue remanded, we ordered that the intervention now

be allowed. Intervenors have submitted alternatives and have participated

in the hearing of June 30, 1981.

30a

by clustering or pairing. Consequently we determined that

Lincoln Williams must be closed.

Rapides High School opened at the commencement of the

1966-67 school year. As originally contemplated it was to serve

as the high school for the entire area. However, the Poland

district opted out and it has served since the 1966-67 school

year as a consolidated school for the remaining three districts.

Prior to the 1980-81 school year the ninth grade from these

same three districts had attended Carter C. Raymond in Le-

compte. We personally inspected all of the schools involved

and determined that there were sufficient facilities, classroom

and otherwise, to accommodate all the students in the area in

the schools located in Lecompte. Lecompte was centrally lo-

cated, had radiating bus routes, many of which were already in

operation. This would equalize the length and duration of bus

routes as much as possible. Consequently we found that the

assignment of all students to the Lecompte schools offered the

best and the most reasonable prospect of successful integra-

tion in the area. Therefore our tentative plan published July 3,

1980 provided:

1979-80 1980-81

GROUP V W B W B

Lecompte Elementary (K-2) 144.230 (61.5%) 231 = 211 (47.7%)

C. Raymond Jr. High (3-8) 133 218 (62.1%) 477 =. 374 (43.9%)

Rapides High (9-12) 174 =: 138 (44.2%) 310 = 217 (41.1%)

In our order of July 3, 1980 we requested alternatives to the

tentative plan and received only three affecting the schools in

Wards 2 and 3.” Information in these three alternatives was

® See Exhibits E, F, and G attached to the defendant Board's filing of July

28, 1980.

Exhibit E referred to the history and the physical facilities at Forest Hill,

but gave no suggestions regarding integration.

However, we were impressed with the information contained in Exhibits

F and G, principally the information related to possible bus congestion

around Lecompte Elementary and Carter C. Raymond and the over-burden

of facilities other than classrooms if the number of students assigned to these

schools were not reduced and assigned elsewhere, perhaps as suggested in

Exhibit G.

3la

seriously considered and we felt compelled to make a more

detailed personal inspection of these schools, particularly Le-

compte Elementary and Carter C. Raymond.* Our re-

examination of Carter C. Raymond confirmed its adequate

classroom capacity and confirmed also that it was overbuilt and

had some limitations of bus access. The bus access limitations

would be shared to a much smaller degree by Lecompte

Elementary, located only a block away. We concluded that the

play area and other non-classroom facilities in Carter C.

Raymond were insufficient to accommodate the number of

students assigned in our tentative plan. Consequently our

tentative plan had to be revised.

However the problem was somewhat different from that

originally addressed by us in our tentative plan. Most impor-

tant was the fact that we had already accepted an alternate

plan for Jones Street Junior High School in Alexandria (Ward 1

- Exhibit C26a) assigning the 7-8 grades in the Poland district

to Jones Street. This assignment was absolutely essential to

the successful integration of Jones Street. At the meeting of

August 1, 1981* there was no protest to the assignment of high

school students to Rapides High School. We agreed with sug-

gestion in Exhibit F that the population of Carter C. Raymond

be reduced, and with the suggestion in Exhibit G that one

school in addition to Lincoln Williams be closed.

® Both of these schools have been majority black for some period of time,

consequently had not received the public tax support enjoyed by Poland and

Forest Hill; however Rapides High School provides irrefutable evidence that

they will receive such support if attended by whites as provided in our final

plan. Carter C. Raymond is a modern, structurally sound installation and has

all the facilities necessary for K-12 school. It has always been identified as the

black school. Lecompte Elementary was formally the white high school and

is located only a block from Carter C. Raymond. Structurally, it is probably

sounder than any of the other schools but, being a three story building it is

not as modern as the other schools. It is however beautifully maintained and

more than adequate for an elementary school, Exhibits Forest Hill 5, 7 and 8.

* See Minute Entry of District Court forwarded to the Court of Appeals

November 5, 1980.

32a

We determine first that Poland should remain open as a K-6

school. Poland’s grades 7-12 had already been assigned else-

where as outlined above. Cheneyville is much closer to Poland

than it is to Forest Hill. By assigning to Poland that portion of

Lincoln Williams students residing east of Highway 181, Ex-

hibit 26d, Poland’s projected black ratio increased from 9.6% to

47.7%. This meant that the remaining Lincoln Williams stu-

dents, those residing west of Highway 181 and grades 7-8

students residing east of Highway 181, would travel to Le-

compte or through Lecompte to Forest Hill to attend school.

There is no highway communication between the Lecompte

area and Forest Hill so that all students who might be assigned

to Forest Hill from the Cheneyville area would have to pass by

the schools in Lecompte and bus an additional 9 miles in order

to reach Forest Hill, Exhibit C26b & d.

The next matter which we have for determination after the

examination of the alternatives submitted by the School Board

was whether the remaining Junior High and Elementary stu-

dents assigned to the Lecompte schools under our tentative

plans should continue to attend those schools as contemplated

or whether a number of those students should be assigned to

Forest Hill and a Lecompte school closed. Although Lecompte

Elementary had been a white K-12 school, it had been majority

black for a number of years. Carter C. Raymond had always

been a school for black students. The record shows that Le-

compte Elementary and Carter C. Raymond were 61.5% and

62.1% black in the school year of 1979-80. We had already

determined that Aaron Elementary in Alexandria and Lincoln

Williams Elementary in Cheneyville, 100% and 92.9% black

respectively, had to be closed for purposes of integration. It

was not fair to the black community nor legally proper that

only identifiably black schools be closed for purposes of in-

tegration. Thus neither Lecompte nor Carter C. Raymond

should be closed except as an absolute necessity, Lee v. Macon

County Board of Education, 448 F.2d 746 (5th Cir.1971),

Mims v. Duval County School Board, 447 F.2d 1330 (5th

Cir.1971), and Ellis v. Board of Public Instruction of Orange

33a

County, Florida, 465 F.2d 878 (5th Cir.1972). There was no

such justification here.

All of the area north and east of Indian Creek Lake to the

Alexandria district on the north, the Poland district on the east

and highway 181 and the Evangeline Parish line on the south

would have to travel through Lecompte (or an intersection

one-half mile west of Lecompte) and then begin an additional 9

miles bussing to arrive at Forest Hill, Exhibit C26d. The

seventh and eighth grade Cheneyville students east of High-

way 181 would have to go even further, Exhibit C26d. On the

other hand there are practically no students living in the

Forest Hill district west of Forest Hill city limits and practical-

ly none in the Lecompte district living in the bombing range

area west of Woodworth. Thus Forest Hill is on the periphery

of an area made up of Cheneyville, Forest Hill, Woodworth,

LSU-A area and Lecompte, Exhibit C26b. Lecompte, on the

other hand, is in the center. This was recognized by all these

communities when they organized a consolidated school dis-

trict for the purpose of constructing Rapides High School and

locating that school in Lecompte. High School students from

the Forest Hill area have been bussing voluntarily to Le-

compte since the 1966-67 school year. It is certain that seventh

and eighth grade students must attend the schools in Le-

compte because of the excessive distance involved in assigning

Cheneyville students to any other location, Exhibit C26b & d.

Since the Forest Hill students are concentrated in the immedi-

ate Forest Hill area and on the road between Forest Hill and

Lecompte the bussing burden on them would be minimal. The

burden would be further minimized by the fact that Forest Hill

grades 9-12 have been bussing to Lecompte previously and

that grades 7-8 must also be assigned there. The elementary

students would simply get on busses already loaded with their

older brothers and sisters. Under these circumstances we

found that the evidence as well as the law dictated that all

Forest Hill students should be assigned to the schools in Le-

compte, as follows:

34a

1979-80 1980-81

GROUP V Ww B Ww B T

Poland Elementary (K-6) 281 30( 9.6%) 150 137 (47.7%) 287

Lecompte Elementary (K-3) 144 230 (61.5%) 223 185 (45.3%) — 408

C. Raymond Jr. High (4-8) 133 218 (62.1%) 282 256 (47.5%) 538

Rapides High (9-12) 174 138 (44.2%) 310 217 (41.1%) 527

After the remand of May 18, 1981 we ordered that the

intervention of the Forest Hill residents (Forest Hill) be

allowed and ordered the filing of any alternatives to the

Court’s final plan for the Group V school area. On the date of

the evidentiary hearing of June 30, 1981, we received three

plans from plaintiff, four from Forest Hill and one from the

School Board. We later admitted two additional plans from the

School Board. On that date also the plaintiffs disavowed plans

filed previously by them on June 11, 1981. Plans were also

submitted by concerned citizens of Lecompte. The govern-

ment submitted no plans, but supported the plan adopted

August 6, 1980.

All of the plans submitted have one common fault. None of

them proposes a plan for integration. Each of them proposes to

keep the 1979-80 schools intact regardless of the burden it

might place on children in other schools and without any re-

gard for the prospects of successful integration of the schools in

the area.

We have considered plaintiffs’ plans and have eliminated the

first and second alternatives which suggest reopening Lincoln

Williams as an integrated school in certain grades for the whole

area. There is no reason to believe that students from Forest

Hill, Woodworth, the LSU-A region and Poland would be

more likely to attend Lincoln Williams than those in the

Cheneyville area which have refused to attend in the past.

Plaintiffs’ first and principal suggestion is that Lincoln Wil-

liams and Forest Hill remain racially identifiable K-3 schools,

as follows:

B Ww Total

Lincoln Williams (K-3) 95 ll 106

Forest Hill (K-3) 8 124 132

35a

We assume that plaintiffs are attempting to show a parallel to

the three racially identifiable schools approved by the Court of

Appeals in this proceeding in its decree of May 18, 1981. We

cannot allow K-3 schools but if the proposal were restricted to

grades K-2 as was the case in those schools and as suggested in

Lee v. Macon County Board of Education, 616 F.2d 805 (5th

Cir.1980), we might consider this alternative. If reduced to

K-2 Lincoln Williams would contain only 87 students and

Forest Hill only 104, well below the 117 minimum necessary to

qualify for the assignment of teachers under the laws and

regulations of the State of Louisiana, Exhibit C27. Plaintiffs’

alternatives must be rejected.

Forest Hill submitted four alternatives, none of which make

any reference to student populations in any of the schools.

“There is no statistical information from which it can be deter-

mined whether there is any potential whatsoever in any of the

plans for successful integration.” The one common denomina-

tor in all the plans is that Forest Hill be K-8 as it was during the

school year 1979-80. Each plan provides therefore that not one

Forest Hill K-8 student will be bussed out of his own district.

Plans 1 and 3 provide in addition that no one will be bussed into

the Forest Hill school. Plan 2 proposes segregated bussing, the

meticulous individual selection of 45 black students from the

area of Woodworth to assure that Forest Hill will remain clear

of any integrating effort. Woodworth is the demographic

equivalent of Forest Hill. It has always been in the Lecompte

area and is a principal source of white students attending the

Lecompte schools. We doubt seriously if there are 15 black

students in the Woodworth area. If they do exist there is

nothing in the record to show it. If they did exist we would not

allow the meticulous individual selection necessary to assure

segregated bussing into Forest Hill. Plan 4, like Plans 1 and 2,

provides that Lincoln Williams be K-8. This robs that plan of

any significant integrative effect. Plan 4, like Plans 1, 2 and 3,

must be rejected.

School Board Plan No. 1 proposes the selection and segre-

gated bussing to Forest Hill of black students attending grades

36a

4-8 in Lecompte and Carter C. Raymond. This is rejected for

the same reasons outlined by us in considering the Forest Hill

Plan No. 2. The Board Plans Nos. 2 and 3 are alike in that they

provide for K-5 schools at Forest Hill and Lecompte, a 6-8

school at Carter C. Raymond, a K-6 school at Poland, and the

closing of Lincoln Williams. Under Plan 2 Forest Hill (K-5) is

38% black and Lecompte (K-5) is 53% black. Under Plan 3

Forest Hill (K-5) is 45% black and Lecompte (K-5) is 48% black.

We find no fault with the result. We do object to the method.

Plan 2 zones into Forest Hill (K-5) a 100% black area adjacent

to and around Lecompte Elementary which is also to remain an

operating K-5 school. Plan 3 does the same thing except that

the zone is slightly enlarged. Students in a one-race zone can be

bussed for purposes of integration but they should not be

bussed to a K-5 zone when a K-5 school exists in their own zone.

The Board’s plans must be rejected.

Concerned Citizens of Lecompte filed four proposals. These

proposals are deficient and hard to evaluate because there are

not supporting statistics regarding the number of students and

the resulting students ratios. Proposal No. 1 suggests that

grades 6, 7 and & in Poland, Cheneyville, Forest Hill and

Lecompte attend Carter C. Raymond, that Poland be a K-5

school for Poland and Cheneyville and Lecompte Elementary

be a K-5 school for Forest Hill and Lecompte. The proposal for

7-8 is already in effect except for seventh and eighth graders in

the Poland area who attend Jones Street Junior High School.

We cannot jeopardize the success already realized by Jones

Street. Actually, many of these students, those near the city

limits of Alexandria, live closer to Jones Street than they do to

Rapides High School. We do intend, however, to modify the

Jones Street zone, assigning those students fartherest [sic]

from Jones Street (Echo area) to Carter C. Raymond. The

school staff informs us that this will cut at least 2 hour from the

bussing route into Jones Street. We have already determined

that Poland could not maintain a reasonable black/white ratio if

it took all the K-5 students from Lincoln Williams.

We have adopted and put into effect Proposal 2 except that

37a

Lecompte Primary is a K-3 school instead of a K-4. This pro-

posal also suggests that 7-8 students in Cheneyville attend

Carter C. Raymond. The plan now in effect provides for this

and these students have been assigned to Carter C. Raymond

since the beginning of the 1980-81 school year.

Proposal 3 has the same deficiency regarding Poland as

Proposal 1 and Proposal 4 involves unacceptable bussing.

There are only 23 students living west of Forest Hill, Forest

Hill Exhibit 13. This covers all 13 grades. No more than one-

fourth should be in the 6-9 grades. Because of bussing dis-

tances, any plan which busses students from the entire

Cheneyville, Forest Hill, Lecompte, Poland area must bus to

Lecompte just as the Rapides High students do. This proposal

is also rejected.

Our principle purpose throughout was the adoption of a plan

which achieves the greatest amount of integration with a

reasonably assured prospect of success. We find that the plan

adopted August 6, 1980, including the area serviced by schools

in Group V thereof, to have been a success. In some instances

such as the Sixth Grade Centers and Jones Street Junior High

School the success was spectacular. The following figures tell

the story of Group V, Court Exhibit 25(4):

EXPERIENCE TABLE

1979-80 1980-81 1980-81

(actual) (projected) (actual

91881)

GROUP V Bi W% BY W% Bi W%

Poland Elem. (K-6) 9.6 W.4 47.7 52.3 37.5 62.5

Lecompte Elem. (K-3) 61.5 38.5 45.3 54.7 62.6 37.4

C. Raymond (4-8) 62.1 37.9 47.5 52.5 60.0 40.0

Rapides High (9-12) 44.2 55.8 41.1 58.9 43.8 56.2

Lincoln Williams (K-8) 92.9 a Closed Closed

Forest Hill (K-8) 8.3 91.7 Closed Closed

Although projected percentages were not realized in Group V,

such projections could hardly have been realized in the atmo-

sphere in which this plan was implemented. A national election

in which bussing was the major issue; every campaigning

38a

politician blasting the bussing procedure; a state court enjoin-

ing implementation, particularly as it applied to Forest Hill;

Clyde Holloway, leader of the Forest Hill intervenors, running

for Congress on the sole issue, and national publicity creating

an incendiary theater from August 6, 1980 until the end of

January 1981. In spite of the fact that they absorbed more than

a third of the black students formerly attending Lincoln Wil-

liams, Lecompte Elementary’s black percentage showed only

a slight increase: 61.5% in 1979-80 to 62.6%. This in spite of the

boycott by students from Forest Hill. Under those very same

circumstances Carter Raymond's 62.1% of black students in

1979-80 actually was reduced to 60%. Poland’s 9.6% black to

90.4% white ratio was adjusted to 37.5% black against 62.5%

white. Rapides High which was already integrated at 44.2%

black was reduced slightly to 43.8% black. Lincoln Williams

which was 92.9% black was eliminated and its students

absorbed in the schools named above. The 91.7% white school

at Forest Hill was closed and most of its students attended

private academies. White flight has occurred in the Group V

area, School Board Exhibit G attachments. We have been

informed by the School Board staff that 47 of these students

have been attracted back to the public school system in the

year 1980-81, Exhibit 28.

We find that there is great prospect for success during the

1981-82 school year and the years that follow.

1. The people of Forest Hill are conscientious and law abid-

ing. They have taken their issue to court as they had every

right to do. The Court of Appeals did not reverse, it only

remanded for more specific reasons which we, the trial court,

have now supplied.

2. The Forest Hill intervention has now been allowed. They

have been given the opportunity to suggest alternatives to the

court’s plan of August 6, 1980. These suggested alternatives

were unsupported by evidence and showed only a desire to

maintain the status quo.

3. The injunction against Forest Hill defendants has now

been modified so that the Forest Hill school premises may be

39a

used by the citizens of that community for any purpose except

the conduct of a school.°

4. Nearly all of the student population of the Forest Hill

school live within two and a half miles of the center of Forest

Hill or in the area between Lecompte and Forest Hill. In the

school year of 1979-80 there were only about 50 students living

outside the restricted area in Forest Hill and between Forest

Hill and Lecompte described above. 23 of these lived west of

Forest Hill in the Mill Creek area, 18 southeast of Forest Hill

in the Bennett Bay area, and 9 southeast of Forest Hill on the

Blue Lake Road, Forest Hill Exhibit 13. These considerations,

coupled with the fact that Forest Hill High School students

have bussed to Lecompte since 1966, makes the closing of

Forest Hill inevitable. For reasons shown above, the burden of

bussing others into Forest Hill is far greater than bussing

Forest Hill students to Lecompte. As we have stated before,

Forest Hill residents acknowledged that Lecompte was the

educational center of the area when they joined in building

Rapides High at that location.

5. We find also that compliance with the plan adopted Au-

* Our injunction of September 22, 1980 enjoining Forest Hill defendants

was, as observed by the Court of Appeals, broad. It was our opinion that this

breadth was necessary at the time the injunction was issued, Several un-

accountably fortuitous events had occurred which allowed Forest Hill defen-

dants to use the school. In case of any action for contempt we did not wish to

be confronted that any particular defendant was on the premises for reasons

which had no connection with school activities which were actually being

conducted on the premises. On the date that the injunction was issued we

informed the Forest Hill counsel that we would modify the injunction so as to

allow use of the premises for other than school purposes if such defendants

would make such application and pledge themselves to use the premises only

for non-school purposes. We declared such intent in the opinion attached to

that order: “However, it is permissible at any time for any defendant or

anyone acting in concert with any of them to make an application for mod-

ification of this injunction on proper grounds.” Thereafter we reminded

counsel on several occasions. For reasons best known to him and his clients,

no such application was made until June 12, 1981. We granted the motion and

modified the injunction. The school properties can now be used for any public

or civic purpose except for conduct of a school.

40a

gust 6, 1980 will be enhanced and encouraged by two amend-

ments to that plan.

a. The time necessary to bus 7-8 grade students from the

Echo area at the south end of the Poland district into Jones

Street Junior High School in Alexandria is excessive. We are

informed that bussing time on that route can be reduced at

least one-half hour by excluding that area from the Jones

Street Zone E and adding it to Carter Raymond as Zone D, as

shown in Exhibit A attached. The effect of this amendment is

to reduce the attendance of Jones Street by approximately 14

students and adding that number to Carter C. Raymond.

b. On or before the commencement of the school year 1981-

82 a white principal should be appointed at Carter C.

Raymond and a black principal appointed at Lecompte

Elementary.

All alternatives to our final plan for the areas served by

Group V have been rejected. The said plan should be amended

as set forth in Paragraph 5 immediately above and as amended

should be implemented at the commencement of the school

year of 1981-82.

DONE AND SIGNEDat Alexandria, Louisiana, on this the

22nd day of July, 1981.

/s/ Nauman 8. Scott

United States District Judge

dla

APPENDIX F

UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

Civit Action No. 10,946

VIRGIE LEE VALLEY, ET AL.

Uv.

RAPIDES PARISH SCHOOL BOARD

FINAL JUDGMENT

This matter having come on for trial pursuant to remand in

Civil Action No. 80-3722 in the United States Court of Appeals

for the Fifth Circuit (Unit A) entitled Virgie Lee Valley, etal,

Plaintiff-Appellee, United States of America, Intervenor-

Appellee v. Rapides Parish School Board, et al, Defendant-

Appellants dated May 18, 1981, hearing having been had,

plans and authorities having been submitted and considered by

us, the law and evidence being in favor thereof, it is

ORDERED, ADJUDGED AND DECREED that the plan

adopted by us on August 6, 1980 as amended by the Plan

(Exhibit A) attached hereto be implemented and made effec-

tive on or before the commencement of the 1981-82 school year;

it is further

ORDERED, ADJUDGED AND DECREED that we retain

jurisdiction in the event of appeal or the expiration of delay for

appeal for the purpose of assuring the implementation of the

plan adopted by this judgment.

Alexandria, Louisiana, this the 22nd day of July, 1981.

/s/ Nauman §S. Scott

United States District Judge

42a

APPENDIX G

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

UNITA

May 18, 1981

Nos. 80-3722, 80-3776, 80-3855, 80-3988,

80-3008, 81-3013, 81-3033 AND 81-3083.

VirGIE LEE VALLEY, ET AL.,

PLAINTIFFS-APPELLEES,

v.

RAPIDES PARISH SCHOOL BoarD,

DEFENDANT,

v.

NELSON LABOorRDE, ET AL.,

INTERVENORS-APPELLANTS,

v.

UNITED STATES OF AMERICA,

INTERVENOR-APPELLEE.

VIRGIE LEE VALLEY, ET AL.,

PLAINTIFFS-APPELLEES,

AND

UNITED STATES OF AMERICA,

INTERVENOR-APPELLEE,

v.

RAPIDES PARISH SCHOOL Boarb,

DEFENDANT,

STATE OF LOUISIANA, ET AL.,

DEFENDANTS-APPELLANTS.

REHEARING DENIED No. 80-3988

JULY 9, 1981

OPINION ON REHEARING, No. 80-3722

Aua. 14, 1981

SEE 653 F.2d 941

43a

Appeals from the United States District Court for the West-

ern District of Louisiana.

Before COLEMAN, GARZA and SAM D. JOHNSON, Cir-

cuit Judges.

GARZA, Circuit Judge:

Twenty-seven years after Brown v. Board of Education and

sixteen years after the commencement of this litigation, we are

confronted with yet another set of appeals arising from imple-

mentation of the command to desegregate public schools in

Rapides Parish, Louisiana. The current appeals stem from the

district court’s response to a Motion for Supplemental Relief

filed by the private plaintiffs in 1979. We consolidated them for

argument, and now render our decision in each by this opinion.

Though the Rapides Parish School Board was long ago

admonished of its continuing duty to accomplish the disman-

tling of racial duality in pupil and staff assignments, complex

and important issues have been raised by the effort to achieve

this goal. Is the school system fully unitary? If not, what

further relief is required? Are the orders issued below a proper

response to the facts of the case and previous directives of this

court?

Sadly, these are not the only issues. This case has been

unnecessarily complicated by the failure of all parties in in-

terest to adequately aid the district court, as well as by overt

interference with and defiance of its orders by certain ele-

ments in the community. We are therefore called upon to

decide whether additional orders issued by the district court in

aid of its jurisdiction and authority were within the permissible

bounds of discretion.

BACKGROUND

While Rapides Parish is predominantly rural, it contains one

large city, Alexandria. A single school system serves the en-

tire parish. Prior to 1965, the system was classically dual, with

one set of schools operated for white pupils and another for

blacks.

This litigation was instituted en March 23, 1965, and re-

44a

sulted in the employment of a number of devices to establish a

unitary system. Originally, the district court approved a de-

segregation plan relying on “free transfer” provisions, which

remained in effect until 1969. Under its operation, white pupils

continued to attend all-white schools and more than 96 percent

of black pupils continued to attend all-black schools.

The plaintiffs moved for supplemental relief following the

Supreme Court’s decision in Green v. School Board of New

Kent County, 391 U.S. 4380, 88 S.Ct. 1698, 20 L.Ed.2d 716

(1968), invalidating a freedom of choice plan which had failed to

achieve meaningful desegregation. The district court held that

the plan then in effect did create a real prospect of dismantling

the dual school system. Conley v. Lake Charles School Board,

293 F.Supp. 84, 88 (W.D.La. 1968).

We reversed and remanded for the implementation of a new

plan. Hall v. St. Helena Parish School Board, 417 F.2d 801 (5

Cir. 1969), cert. denied 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d

180 (1969). Upon review of the relevant statistical facts, it was

held “abundantly clear that freedom of choice as presently

constituted and operating . . . does not offer the ‘real prospect’

contemplated by Green.” 417 F.2d 801 at 809. Alternative

measures were suggested, including “geographic zoning. . .

pairing of grades or of schools, educational clusters or parks,

discontinuance of use of substandard buildings and premises,

rearrangement of transportation routes, consolidation of

schools, appropriate location of new construction, and major-

ity-to-minority transfers.” /d.

Once again, however, there was a disparity between the

intended effect of relief and the actual result. In 1969 and 1970,

the court below adopted three neighborhood zoning plans,

each of which was reversed for failure to present an adequate

prospect of dismantling the dual school system.

In July of 1969, the court approved a plan offered by the

school board which relied on neighborhood zoning or partial

pairing, but left 13 schools over 90 percent black. This court

reversed and remanded in Valley v. Rapides Parish School

45a

Board, 422 F.2d 814 (5 Cir. 1970), again ordering the formula-

tion of a new plan.

The district court next chose a school board plan which made

minimal student assignment changes, citing “the extreme

shortness of time confronting the school board.” We reversed

summarily, remanding the case with “instructions to the dis-

trict court to implement pendente lite [a plan offered by

HEW].. . oraplan devised by the district court to accomplish

a unitary system within the teachings of Green v. County

School Board.” Valley v. Rapides Parish School Board, 423

F.2d 1132, 1133 (5 Cir. 1970).

On remand, the district court adopted its own plan for

Wards 1 and 8 of the parish, which encompass the city of

Alexandria. (See the map of Rapides Parish attached as an

appendix hereto.) The plan assigned pupils in those wards to

the schools nearest their homes, and reinstated previous plans

for the remaining wards with some modifications. Once again,

this court was obliged to partially reverse. In Valley v.

Rapides Parish School Board, 434 F.2d 144, 145 (5 Cir. 1970),

those portions of the order below “which [did] not concern

either student assignment in Wards 1 and 8 or the majority-to-

minority transfer policy” were affirmed. As for the city wards,

the court noted that black pupils accounted for 47 percent of

the total enrollment and held:

Because of the residential dichotomy between Alexan-

dria’s black and white citizens, the so-called “neighbor-

hood school plan” adopted by the district court, although

admittedly impartial as to race, still leaves 60% of the

black students in schools where their race is an approx-

imately 90% or greater majority. Of the twenty-four re-

maining schools seven remain predominantly negro.

The end result is that neighborhood zoning in Alexan-

dria, Louisiana, leaves the majority of the city’s negro

students in a virtually segregated school system. /d.

The court then set out in detail a plan to remedy the deficien-

cy in eliminating racially identifiable schools, and ordered the

district court to implement that plan or one which would

46a

achieve the same result. Notably, it was admonished that

“(Tjhe fact that the plan complies with the requirements for a

neighborhood system as enunciated by this court in Ellis v.

Board of Public Instruction of Orange County, Florida, (5

Cir. 1970), F.2d 203, does not make the system constitutionally

palatable unless the plan actually works to achieve integra-

tion.” Jd.

Following this remand, a geographic plan for Wards 1, 8 and

9 was devised and implemented. The district court retained

jurisdiction. In 1973 and 1974, the United States, as interve-

nor, moved for supplemental relief. It alleged that enrollments

projected under the 1971 plan had not been met, and pointed to

the continued existence of racially identifiable schools. The

1973 motion resulted in some adjustments and the 1974 motion

was suspended “until further orders of [the] court.”

Renewal of litigation leading immediately to these appeals

began on August 31, 1979, when the private plaintiffs filed a

Motion for Supplemental Relief complaining of the persistent

spectre of one-race schools. They further alleged non-

compliance with the teacher ratio requirements of Singleton v.

Jackson Municipal Separate School District, 419 F.2d 1211 (5

Cir. 1969), and employment discrimination in the hiring of staff

and faculty. The government moved to reschedule hearing on

its 1974 motion, contending that the same schools which had

been all-black or virtually so in 1974 remained segregated in

1979.

Statistical facts supporting the need for further relief were

compelling. At the close of the 1979-80 school year, the board

operated thirty elementary, seven junior high, and twelve

high schools. These were attended by 24,622 pupils, of whom

8,793 (35.7 percent) were black and 15,829 (67.3 percent) were

white.' 76 percent of the pupils attended school in Alexandria,

or in the adjacent communities of Pineville and Tioga in Wards

9 and 10. 74 percent of all black pupils attended Alexandria

' These figures omit the number of pupils attending three special purpose

facilities which are not involved in the plan.

47a

schools where they constituted a majority of 56 percent. A

comparison of enrollment figures for 1965 when the schools

were officially segregated with those for 1980 reveals that

almost no progress was made in ten schools, nine in Alexandria

and one in the Ward 3 community of Cheneyville.*

The matter was heard on April 29 and 30, 1980. The govern-

ment presented testimony on the continued existence of one-

race schools and the plaintiffs’ employment discrimination

claims. It proposed a plan prepared by its expert, Dr. Gordon

Foster, which utilized clustering and pairing to abolish one-

race schools in Wards 1, 8, and 9. The plaintiffs endorsed this

plan, and called for desegregation of other racially identifiable

schools. They offered no plan of their own. The school board

stated its opposition to the government plan, maintaining that

the system was unitary. It offered no plan.

On June 6, the district court issued a short preliminary

opinion, stating:

It is conceded that there are a number of racially iden-

tifiable schools in the Rapides Parish School System. We

find from the record that the existence of all of the racially

1965 1980

ENROLLMENT ENROLLMENT

% of Black Pupils % of Black Pupils

ALEXANDRIA

Aaron Elementary 100 100

Acadian Elementary 1 100

Lincoln Road Elementary 100 99

Lincoln Road Primary 97.7

Peabody Elementary 99.7 100

Silver City Elementary 100 100

South Alexandria Elementary 100 99.5

South Alexandria Primary 100 100

Jones Street Junior High 100 93.9

WARD 3

Lincoln Williams Elementary 100 92.9

48a

identifiable schools has not been justified as contemplated

under Swann v. Charlotte-Mecklenburg Bd. of Educa-

tion, 402 U.S. 1, 91S.Ct. 1267, 28 L. Ed.2d 554 (1971); and

that the Rapides Parish School System is not unitary and

that additional relief must be granted. Lee v. Macon City

Bd. of Education, [616] F.2d [805] (5 Cir. 1980).

The court rejected the Foster plan, criticizing it on the

ground that it failed to cover the Alexandria metropolitan

area, much less the entire system. Notice was served that the

court would withdraw its own plan.

That plan was issued on July 3, and the parties were given 15

days to respond with comments or recommendations. After a

hearing in the nature of a status conference, the court entered

final judgment adopting its plan on August 6, 499 F.Supp. 490

(W.D.La.). The school board was ordered to implement it for

the 1980-81 school year, set to commence on August 20.

THE PLAN

The district court opens with a statement of principles.

Busing is called “an essential element of our public school

systems for many years,” which would be used “purposefully

and constructively.” The court recognized “that neighborhood

schools in metropolitan areas should exist but only to the

extent that they do not impair or inhibit the establishment of

an integrated school system.” This recognition was followed by

the curious observation that neighborhood schools “do not

exist outside of metropolitan areas.” The court allowed that it

would give “due recognition to physical circumstance and to

individual interests,” and finally noted that “construction of

new school buildings and disposition of old school

buildings . . . and sites can substantially affect that develop-

ment of a unitary system.”

The specific remedial orders contained in the plan are aimed

at eliminating the Alexandria and Cheneyville one-race

schools. Thus, attendance is realigned in the two separate

areas, with one school involved in the desegregation of both.

Mandatory pupil reassignment orders are coupled with a

majority-to-minority transfer provision.

49a

Desegregation of the eight Alexandria area elementary

schools bearing a racial stigma was accomplished by clustering

all elementary schools in Wards 1, 8, 9, and 10 into four groups,

each containing two of the schools. Four of the facilities, South

Alexandria Elementary, Lincoln Road Elementary, Peabody

Elementary, and Acadian Elementary, one in each cluster,

became sixth grade centers to be attended by all sixth graders

within each cluster. The plan additionally required the trans-

fer of sixth grade pupils from the Ruby Wise School in Ward 10

to South Alexandria Elementary. Pupils in grades K-5 from

the four new sixth grade schools were reassigned to predomi-

nantly white schools in their cluster.

Of the other four racially identifiable elementary schools,

Aaron Elementary was closed, and South Alexandria Prima-

ry, Lincoln Road Primary, and Silver City, one in each of three

clusters, were slated to serve grades K-2. They were projected

to remain primarily black. Pupils in grades 3-5 from these

schools were reassigned to primarily white schools in their

cluster.

Thus, elementary school desegregation in Alexandria was

accomplished by reassignment of pupils within compact geo-

graphic zones. The continuing predominance of black pupils at

K-2 schools in three of the clusters was justified through re-

liance on neighborhood school considerations for the very

young. The effect of these reassignments is indeed apparent,

and appears to have been largely satisfit d by actual enrollment

figures for fall, 1980.*

° The following shows the impact of the plan on the eight predominantly

black elementary schools listed above in note 2.

% Black % Black

Under Plan Under Actual

Grade Projections Enrollment

(GROUP 1)

South Alexandria Primary K-2 99.6 99.3

South Alexandria Elementary 6 44 44.7

50a

To desegregate the Jones Street Junior High School in Alex-

andria, the court rezoned attendance for each of the five junior

high schools in Wards 1, 8, 9, and 10, aiming to achieve a

minority enrollment of approximately 40%. Additionally, 205

white students from predominantly white schools in Wards 2

and 11 were assigned to Jones Street. The Ward 2 transferees

were seventh and eighth grade pupils from the school in Po-

land, which was reduced to a K-6 facility. 11th Ward trans-

ferees included seventh and eighth grade pupils from the town

of Buckeye, three of whom would become involved in further

orders. An earlier version had closed the junior high school in

Tioga, but the court reconsidered and rejected that determina-

tion in formulating its final plan. It noted that “{A]lthough this

% Black % Black

Under Plan Under Actual

Grade Projections Enrollment

(GROUP 2)

Lincoln Road Primary K-2 97.8 96.3

Lincoln Road Elementary 6 44.5 43.3

(GROUP 3)

Silver City K-2 100 99.8

Peabody 6 39.3 54.4

(GROUP 4)

Acadian 6 39.8 39.5

The Court's reasoning and the policy considerations used in formulating

this portion of the plan were described as follows:

We determined that better attendance by whites would be assured if

schools in the black area became 6th grade schools, each integrated class

having attended school together in grades 3, 4 and 5. We were also

aware that busing the entire class to a different school in the white area

for grades 3, 4 and 5 would accomplish nothing for integration and that

both blacks and whites would be better served if the class from the

school in the black area were split in three sections with each section

attending one school in the white area for a period of three years. Blacks

and whites alike would benefit from attending the same school for 3 out

of the 4 years during which the class was clustered. It would also reduce

the busing of whites. All students, whether clustered or not, attend the

6th grade in one of the four 6th grade centers in the black area.

5la

plan... has deficiencies, it is far better than any of the

alternatives suggested. It relieves Tioga of the inequities of

the original and spreads the burden of busing far more evenly

in other areas.” Enrollment figures reveal that these orders

were effective, though attainment of projected totals was

somewhat frustrated by “white flight.”

The remainder of the court’s plan affects schools in the

southeastern portion of the parish, in Wards 3, 2, and 4. Before

promulgation of the plan the Ward 3 town of Lecompte con-

tained three schools, Lecompte Elementary, Carter

Raymond, and Rapides High School. Lecompte Elementary

and Carter Raymond each served pupils in grades K-8 under

earlier orders. Each school had a majority of black pupils in the

range of approximately 60 percent. The Lincoln Williams

School in Cheneyville, some 10 miles to the southeast of

Lecompte, served all area pupils in grades K-8. The school

was, as noted above, approximately 93% black, and is the

“spur” for additional relief in this area of the parish. About the

same distance to the west of Lecompte is the community of

Forest Hill, which contained a K-8 school with a black atten-

dance percentage of only 8.3. High school students from both

communities went on to Rapides High School in Lecompte.

Northeast of Lecompte in Ward 2 is the community of Poland,

which had a K-12 school with 9.6 percent black pupils in atten-

dance.

The plan provided for Lecompte Elementary to become a

* Junior high school reassignments altered the percentage of black pupils

attending the five schools as follows:

% Black Under

Projected Actual

% Black % Black Enrollment,

1979-80 1980-81 1980

Alexandria Jr. High 43.7 42.5 42.7

Brame Jr. High 38.4 40.5 44.3

Jones Street Jr. High 93.3 42.6 52.3

Tioga Jr. High 2.5 40.9 42.8

Pineville Jr. High 13.7 41.9 43.7

ha

K-3 facility, and for Carter Raymond to serve grades 4-8,

Lincoln Williams was closed, and its K-8 pupils were trans-

ferred to the Lecompte schools. Forest Hill was also closed,

with its pupils transferred to Lecompte Elementary and Car-

ter Raymond. Pupils from the Poland School in grades 9-12

were shifted to Rapides High School. The variance between

percentages of black attendance at these schools as projected

by the district court and under actual 1980 enrollments is

distinct.”

To summarize the cumulative effect of its plan, the court

stated:

100% of the black student population in the parish will

attend integrated schools for ten of the thirteen years of

their education. 90.4% will attend fully integrated public

schools for the entire thirteen years of their public educa-

tion. Any one of the 9.6% may attend integrated schools

for the entire thirteen years by exercising his right of

transfer under the majority to minority rule. Thus all

black students in the metropolitan area may attend inte-

grated public schools for the entire thirteen years of their

public education if they wish to do so, 100% of the black

students outside the metropolitan area are assigned to

integrated schools for the entire thirteen years of their

public education.

Aside from pupil reassignments, the court provided that

principals of certain named schools be white, and of others,

Projected % Actual %

Grade of Black Attendance Enrolled

Poland Elementary K-6 47.7 36.8

Lecompte Elementary K-3 45.3 63.9

Carter Raymond 4-8 47.5 61.9

Rapides High 9-12 41.1 43.7

As the school board notes, the variance reflects the fact that most of the

Forest Hill pupils have left the public school system to avoid compliance with

the district court’s order.

58a

black. It reimposed a 31.5 Singleton ratio of faculty and staff,

and additionally ordered that in each school “the assistant

principal be of the race other than that of the principal of that

school.” The construction of new schools outside of the metro-

politan areas was forbidden in the absence of express court

approval, Finally, ina comment which should have served to

warn those contemplating avoidance of the plan, the court

stated “we shall use every means possible to assure that stu-

dents in the system attend only those schools to which they

have been assigned.”

POST-JUDGMENT PROBLEMS

Vociferous community resistance to the plan surfaced soon

after its implementation, both in the southeastern portion of

the parish, at Forest Hill, and in the northeastern community

of Buckeye. Forest Hill residents had attempted to intervene

on August 1, 1980, just before the date of final judgment, to

complain of the closing of their school. They urged that pre-

vious pleadings and evidence had not given notice that the

facility was in jeopardy. Intervention was denied by the dis-

trict court as untimely.

After the plan was adopted and imposed for the 1980-81

school year, Forest Hill residents “quietly and peaceably”

moved onto the closed school grounds and began to teach their

children on the premises. The district court had previously

issued an injunction against interference by school officials

with implementation of the plan, but it does not appear that

these residents acted in concert with school officialdom.

The government requested a temporary restraining order

barring such use of the school. A hearing was held, after which

the district court prohibited the residents from setting foot on

the ten-acre school premises, on pain of a fine between $100

and $300 per day. This order was merged into a permanent

injunction on September 22.

Matters became even more heated in the northern part of

the parish, and centered around efforts of the parents of three

former Buckeye students to thwart their transfer to the Jones

5da

Street School. The parents of Michelle LaBorde, Lynda

McNeal, and Ramona Carbo sought relief from State District

Judge Richard E. Lee of the Ninth Judicial District of

Louisiana, They obtained orders awarding “provisional cus-

tody” of the girls to families living in the zone of Buckeye

attendance.

The district court was apprised of these maneuvers, and

wrote a letter to the school superintendent directing him to

terminate the girls’ enrollment at Buckeye until such time as

they had obtained permission to transfer from a court-

appointed transfer committee. The principal at Buckeye

ordered them to leave the school.

The parents then jointly filed a petition for writ of man-

damus and injunctive relief in the state court, docketed as

LaBorde, et al v. Waite before Judge Lee. The United States

District Court for the Western District of Louisiana was

named a respondent. On November 3rd, Lee ordered school

officials to allow the girls to attend Buckeye, and on November

6th, he temporarily enjoined United States District Judge

Nauman Scott from issuing any order or decree “interfering

with or tending to interfere with the administration of justice

by the Ninth Judicial District Court of Louisiana... or the

rights, privileges and immunities of petitioners as litigants

[before that court).”

On November 6 the United States Department of Justice, as

counsel for the United States District Court, filed a petition to

remove LaBorde v. Waite to federal court. The petition was

granted on the same day, and Judge Scott vacated Judge Lee’s

injunctions of the 3rd and 6th.

This action did not deter Judge Lee from issuing injunctions,

On November 7, he enjoined Judge Scott from interfering with

the attendance of the three children at Buckeye High School,

and on November 14 he enjoined school officials from obeying

federal court orders. On the same day, Judge Scott enjoined

the parents, guardians, school officials and their attorneys

from proceeding further in state court. He scheduled a show-

55a

cause hearing to determine why the girls’ enrollment at Buck-

eye should not be terminated.

The hearing was held on December 3. Judge Scott ruled that

the girls must attend school in compliance with the August 8

order until such time as permission to transfer was formally

obtained, and refused to consider evidence concerning the

status of their residence until applications for transfer had

been filed. He then terminated their Buckeye enrollment,

directed school officials to enroll them at Jones Street, and

made permanent his injunction against further state court

proceedings.

Once again, Judge Lee was not deterred. On December 4,

acting sua sponte, he ordered Sheriff Marshall T. Cappel to

accompany the girls to the Buckeye school and arrest anyone

who attempted to interfere. Such persons were to be brought

before him. To avoid a confrontation, school officials allowed

the girls to stay in the school, but denied them credit until their

assignment status was resolved.

Judge Lee then, on December 5, ordered the superintendent

to afford credit to the girls, or, in the alternative, “to show

cause why [he] should not be held in contempt of court and fine,

jail sentence or both imposed.”

The girls, continuing at Buckeye, filed the formal applica-

tions demanded by Judge Scott and he set a hearing for Decem-

ber 19. Their counsel waived presentation of evidence, and the

United States presented witnesses. Judge Scott found that the

sole purpose of the custody proceedings was to evade the

August 6 desegregation order. He ordered the principal to

terminate the girls’ Buckeye enrollment, but allowed him to

give them credit for the time they had attended, provided that

they enrolled at Jones Street after the Christmas recess. The

parents, guardians, and school officials were advised that a

penalty of $500 per day would be assessed against any person

who violated these orders. Judge Scott took under advisement

the government's motion for an injunction against the sheriff,

denied the LaBordes’ request for a stay, and vacated the state

court orders of December 4 and 5. On December 28, the court

56a

filed a written opinion containing this injunction, and on De-

cember 29 amended it to include the sheriff. It also dismissed

the state court suit which had been removed.

Judge Lee was not finished yet. On January 2, he ordered

school officials to enroll the girls at Buckeye, and made them

wards of his court to avoid “serious psychological and mental

abuse.” There followed a series of events which would resem-

ble comic opera were it not for their unfortunate impact on the

community. Three state troopers were sent with the girls to

class at Buckeye on January 5. They ordered the principal to

enroll them. On the same day, Judge Scott issued a temporary

restraining order enjoining Louisiana, the state police, “and all

persons with notice of this order” from enforcing the state

court's orders or interfering with those of the district court

issued August 6 and December 29. This was served on the

Attorney General of Louisiana, the state police, and Judge

Lee. On receipt, the state troopers withdrew from Buckeye.

The next day, Judge Lee ordered the local constable to accom-

pany the girls and enforce his order. He also withdrew after

being apprised of the federal injunction.

Finally, with all state and local law enforcement authorities

apparently complying with federal orders, Judge Lee person-

ally escorted the girls to class on January 7, 12, and 13, direct-

ing the principal to enroll them on pain of arrest. The principal

complied. In the meantime, on January 7, Judge Scott ordered

Judge Lee and the girls’ parents to show cause why they

should not be found in contempt of the injunctions issued

December 29 and January 5.

On January 14, Judge Scott held a hearing on whether to

convert his temporary restraining order of January 5 to a

permanent injunction. Louisiana stipulated that it was binding

on all state officials. The court then made the state and Judge

Lee parties, and enjoined them from interfering with its

orders and from enforcing any state court orders in LaBorde v.

Waite. On the following day, a hearing was held on the show

cause order, Judge Scott ruled that the government had pre-

sented a compelling prima facie case of contempt, and, after

57a

receiving assurances from Judge Lee and the other parties

that they would comply with his orders, dismissed the con-

tempt motions without prejudice. The court allowed the girls

credit for the fall semester at Buckeye, conditioned upon their

enrollment at Jones Street for the fall semester. It required

that their transcripts be submitted to the court until they had

complied. Since January 14, the girls have neither attended

public schools in Rapides Parish nor agreed to enroll in Jones

Street.

ISSUES ON APPEAL

Eight separate appeals have reached us from the orders

below. The Rapides Parish School Board appeals from the

merits of the district court's August 6, 1980, final judgment. It

asserts (1) that the school system was unitary in the 1979-81

years, obviating the need for further relief, (2) that if the

system was not yet unitary, the remedy imposed improperly

exceeded the scope of the violation, and (3) that in any event,

the district court erred in ordering immediate implementation

of the plan without giving the parties further time to arrive ata

proper remedy.

The Forest Hill residents who had attempted to intervene

appeal (1) from the denial of the intervention, and (2) from that

portion of the August 6 order which closed the Forest Hill

School, characterizing it as outside the scope of relief re-

quested by the original parties. Forest Hill residents further

appeal from the injunction which prohibited use of the closed

school facility there, contending (1) that they were not in

violation of the court's original injunction against official in-

terference, (2) that a prerequisite showing of irreparable harm

had not been made, (3) that the injunction exceeded the scope

of relief requested, and (4) that it infringed their First Amend-

ment rights to free speech and peaceable assembly.

The remaining appeals arise from the Buckeye furor. The

parents of the three girls who attempted to evade Jones Street

attendance challenge the injunctions issued by the district

court to compel their compliance with its desegregation order.

58a

In particular, they maintain the invalidity of the district

court's retention of the girls’ transcripts pending compliance.

The Rapides Parish sheriff, Marshall T. Cappel, appeals from

the district court order prohibiting his interference with imple-

mentation of the desegregation orders. Finally, the State of

Louisiana has appealed from those orders of the district court

which enjoined the state and its officials from executing state

court orders contravening those of the federal court, and

argues that the federal court’s retention of transcripts pending

compliance violates fundamental rights to travel, to change

residence, and parental rights to direct the upbringing and

education of children.

RESOLUTION

I. THE MERITS OF THE DESEGREGATION ORDER

In its appeal docketed here as No. 80-3722, the Rapides

Parish School Board attacks both the district court’s finding

that supplemental relief was required and certain elements of

the plan imposed. The board first contends that the “entire

system as constituted prior to the imposition of this plan was

unitary.” This contention is grounded on three basic assump-

tions. First, it is assumed that this court, by its last considera-

tion of the case in 1970, held the system to be unitary with the

exception of student assignments in Wards 1 and 8, “and poss-

ibly 3 and 4.” Second, it is assumed that the one-race schools in

the Alexandria Wards 1 and 8 area exist “solely because of the

residential preference of the students and are not caused by

any unconstitutional action by this school board.” Third, it is

assumed that the 93% black school at Cheneyville in Ward 3

owes its racial character to the unavoidable effect of “white

flight” after earlier decrees had paired area schools.

We conclude that the district court correctly applied the

appropriate legal standards in finding further relief to be

necessary. In its 1970 opinion, Valley v. Rapides Parish

School Board, supra, this court made no express or implied

finding that any portion of the system was unitary; it merely

affirmed those portions of the plan appealed from insofar as

59a

they did not deal with pupil transfers in the Alexandria wards.

See 434 F.2d 144 and 145. If the district court later held other

areas of the parish unitary under a plan not appealed from, that

finding binds neither this court nor the court below. Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91

S.Ct. 1267, 28 L.Ed.2d 554 (1971), firmly established that the

duty to eliminate a// vestiges of state imposed segregation is

continuing. A plan which gives promise of establishing a uni-

tary system cannot foreclose further relief if it does not in fact

abolish the evidences of segregation. In any case, only time

will tell.

We cannot ignore the continued existence of one-race

schools in this system. In Swann, the Supreme Court stated:

...inasystem witha history of segregation the need for

remedial criteria of sufficient specificity to assure a school

authority's compliance with its constitutional duty war-

rants a presumption against schools that are substantially

disproportionate in their racial composition... [T]he

court should scrutinize such schools, and the burden upon

the school authorities will be to satisfy the court that their

racial composition is not the result of present or past

discriminatory action on their part. 402 U.S. 1 at 26, 91

S.Ct. 1267 at 1281, 28 L.Ed.2d 544 at 572.

This principle has been consistently applied. See, e. g., Ander-

son v. County Board of Education, 609 F.2d 225 (5 Cir. 1980);

United States v. Board of Education of Valdosta, 576 F.2d 37

(5 Cir. 1978); Boykins v. Fairfield Board of Education, 457

F.2d 1091 (5 Cir. 1972).

We must also reject the school board argument that the

existence of these schools is justified by demographic facts

regarding residential patterns in Alexandria. Only last year, in

Lee v. Macon County Board of Education, 616 F.2d 805 (5 Cir.

1980), we held that “{N]Jot until all vestiges of the dual system

are eradicated can demographic changes constitute legal cause

for racial imbalance in the schools.” 616 F.2d 805 at 810. See

also Valdosta, supra; Flax v. Potts, 464 F.2d 865 (5 Cir. 1972).

As the figures set out in note 2, supra, reveal, these schools

60a

have never been desegregated. In the same sense, their com-

position may not be justified by pointing to “white flight” as a

permissible causative to continued imbalance. If such a factor

renders a plan unworkable, the district court may attempt

another solution, but we will not allow desegregation to be

thwarted by extra-legal action.

Against this legal backdrop, the maintenance of the all-black

schools described supra from 1965 through the spring of 1980 is

glaring, and clearly requires further relief. We now turn to an

examination of the plan drawn by the district court.

The appellant school board contends that if further relief

was indeed required, the district court’s remedy was exces-

sive. First, the board argues that the plan improperly orders

changes in areas of the parish which were not put in issue by

motions, and where the schools have previously been declared

unitary. It is maintained that “(T]he motion of the United

States in Wards 1 and 8, and the plan proposed by their expert,

under limiting directions from the government, involved only

schools in Wards 1, 8, and 9. Although plaintiff's motion origi-

nally rather vaguely referred to all schools in the system,

plaintiffs never submitted a plan involving schools in other

wards to the court and affirmatively adopted the plan proposed

by the government.”

Secondly, the board urges that the court erred in failing to

accord the same recognition to “neighborhood” or community

schools in the rural areas of the parish as it did in the metropoli-

tan zone. It asserts that the holding that no neighborhood

schools exist in rural areas was “a fundamental error of fact

which led the district court into improperly rearranging the

schools, and students, in Cheneyville, Poland, Lecompte,

Forest Hill, Ruby Wise, and Buckeye areas, including the

closing of Forest Hill.”

Finally, the board complains that immediate implementa-

tion of the plan prevented the formulation of a proper remedy,

and left no time for planning or efforts to convince school

patrons that the plan would not adversely affect their children.

Having carefully studied the plan, we are convinced that the

6la

district court performed admirably in most respects. It must

be remembered that the school board did not propose any plan

of its own, and that the private plaintiffs merely adopted a

government p!an which the court deemed inadequate. Given

this level of guidance from the parties, the plan is a remarkably

well-considered response to a difficult set of problems.

The fashioning of relief in a school desegregation case is an

exercise of the district court’s discretion in creating an equita-

ble remedy as a response to the denial of constitutional rights.

Where the local school authorities have failed to remedy past

wrongs, the power of the district court is broad. Swann, su-

pra, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L. Ed.2d 554, 566.

“The task is to correct, by a balancing of the individual and

collective interests, the condition that offends the Constitu-

tion.” Jd., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554,

566. The criterion for determining the validity of provisions in

a desegregation plan is whether they are reasonably related to

the ultimate objective. U.S. v. Jefferson County Board of

Education, 372 F.2d 836 (5 Cir. 1966).

In considering these measures, the district court properly

viewed the system as a whole, rather than limiting its consid-

eration to the racial imbalance of isolated schools in the sys-

tem. Lee v. Macon City Board of Education, supra. The entire

parish operated as a dual, segregated system in the past, and

statistics show that the vestiges have not been eradicated

“root and branch” as required.

We must reject any contention that the movants below

waived a remedy going beyond Alexandria and its immediate

environs. The government points out in its brief that it was

only logical to concentrate on discussion of problems in Alexan-

dria, where most of the one-race schools were located. At the

April hearing, the government expressly reserved its right to

seek desegregation outside of Alexandria. The private plain-

tiffs initially sought desegregation of every racially identifi-

able school in the parish, and, when they endorsed the Foster

plan, renewed their request for a system-wide remedy. It

62a

should finally be noted that at the same hearing, counsel for the

school board commented on the Foster plan as follows:

Why didn’t you come prepared to deal with the whole

system, is W hat I don’t understand. If you are not able to

say now that what you propose will convert us to a unitary

school system, W hy didn’t you go ahead and include ev-

erything that will convert us to a unitary school system,

because that is what you say we have got to do.

We perceive no serious objection to that portion of the plan

concerning elementary school pupils in Alexandria. The clus-

ter units are well conceived, and achieve a proper balance

between competing considerations. Desegregation is achieved

within school groupings which do not require long-distance

transfer. Further, it is apparent from the fall, 1980 enrollment

statistics quoted above that the plan is indeed showing promise

of success as intended.

Serious objections are raised, however, to those portions of

the plan which are aimed at the desegregation of Alexandria

area junior high schools and schools in the southeastern wards

of the parish. N° * surprisingly, these are the provisions re-

quiring some degree of inter-community pupil transfer. The

objections revolve around the importation of junior high school

pupils from Wards 2 and 11 into Alexandria, and the closure of

rural schools at Forest Hill and Cheneyville. Specific findings

were made to justify these orders, and we must determine

whether the district court abused its discretion in fashioning

the relief complained of.

The appellants contend that the district court erred in failing

to accord the same respect to neighborhood schools in rural

areas as to those in Alexandria; the comment that there can be

no rural neighborhood schools is cited as an example of this

asserted misconception. We agree that the comment, taken in

its absolute context, is clearly erroneous. A review of case law

concerning the neighborhood school concept will reveal that it

should apply equally to metropolitan and rural facilities.

63a

We have recognized that “[U]sually, in rural and some city

school districts where the population is diffused, assignment

on a strict neighborhood basis has been sufficient to eliminate

discrimination in student assignments.” Cisneros v. Corpus

Christi Independent School District, 467 F.2d 142, 152 (1972).

It has consistently been held, however, that if such measures

prove inadequate to the task of eradicating all vestiges of a

dual school system, “{A] district court may and should consider

the use of all available techniques including the restructuring

of attendance zones and both contiguous and noncontiguous

attendance zones.” Davis v. Board of School Commissioners,

402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577, 581

(1971). We reject any argument that urban and rural facilities

within a single school district which operated as a dual system

and has not yet achieved unitary status may not, as a matter of

law, be paired or clustered together.

In formulating such a plan, it is clear that bus transportation

may be utilized. The Supreme Court long ago ruled that there

is “no basis for holding that . . . school board authorities may

not be required to employ bus transportation as one tool of

school desegregation.” Swann, supra, 402 U.S. 1, 30, 918.Ct.

1267, 1283, 28 L.Ed.2d 554, 575. It is also clear that in its

formulation of noncontiguous zones, pupil reassignments with-

in them, and transportation to effectuate the reassignments,

the district court should take into consideration such equitable

factors as “[T]he length and time of travel. . . in light of the

age of the children, and the risk to health and probable im-

pingement on the educational process.” Cisneros, supra, 467

F.2d 142 at 153. These considerations are equally applicable to

rural and metropolitan schools.

As to the more intangible values associated with the neigh-

borhood school concept, there should be no urban-rural distine-

tion. We recognize that rural schools may, as the appellants

contend, serve the same community function and implicate the

same values as those in urban zones. We are told that since the

days of the one-room red-brick schoolhouse, life in rural com-

munities has frequently revolved in large measure around the

64a

local school, which may be the only cohesive element to cement

dispersed residents into a community.® This may well be true,

and such considerations are not without importance. They are,

however, even more yielding than practical variables such as

proximity when posed against the continuing need to achieve

meaningful desegregation. In Keyes v. School District No. 1,

Denver, Colorado, 521 F.2d 465 (1975), cert. denied, 423 U.S.

1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1975), the Tenth Circuit

noted the importance of neighborhood contact in such areas as

the playground, extracurricular activity, and parental involve-

ment, but cogently observed that “we cannot place it above the

constitutional right of children to attend desegregated

schools.” 521 F.2d 465 at 478.

Further, we see no reason for a general distinction between

urban and rural facilities as regards the closing of schools

pursuant to a plan for desegregation. The closing of a facility

built and maintained at the expense of local taxpayers is a

harsh remedy, which should only be employed if absolutely

necessary to achieve the goal of a unitary system after all other

reasonable alternatives have been explored. Where a district

court adopts such a measure, the inquiry before us is whether

the order was an abuse of discretion. See Ellis v. Board of

Public Instruction, 465 F.2d 878, 880 (5 Cir. 1972). The district

court must explicitly state its justification for ordering a school

closed, in order that we may properly make this determina-

tion.

Applying these principles to the order before us, we find

those regarding Alexandria Junior High Schools [sic] to have

been within the bounds of discretion. The unyielding racial

* Certain of the appellants have urged us to hold that there is a fun-

damental right to maintain a rural society separate and apart from the urban

environment; it is said to emanate from fundamental principles “beyond the

constitution.” While doubtless, the choice of rural residence and lifestyle

enjoys the protection of express and implied constitutional guarantees, there

is no broad, ephemera! right to a separate rural life which will defeat the

otherwise valid orders of a district court in furtherance of the long-

recognized constitutional mandate to desegregate.

65a

character of the Jones Street School was the worst problem

confronting the court. Specific findings were made to justify

the reassignment of pupils from Wards 2 and 11 to that facility,

and it appears that reasonable alternatives were fully ex-

plored. Participation of pupils from Buckeye and other areas of

Wards 2 and 11 was justified on the following grounds:

Although this parish first encountered integration

problems in 1965, and has had an active history of integra-

tion endeavor since that time, the Buckeye schools have

shouldered no responsibility. Out of a combined popula-

tion of 1306 students, 87 are being assigned to Jones

Street. They, like all the other students so assigned are

already bused, their buses simply are being turned in

another direction. They are the students in each ward

that are nearest to Jones Street. We find this alternative

to be the most equitable at our disposal.

Intercommunity busing into Alexandria does not begin until

the seventh and eighth grades, and involves only 205 pupils

under plan projections. We discern no basis for concluding that

the district court’s comment regarding rural neighborhood

schools reflected an improper disregard of equitable considera-

tion in constructing these zones of transfer; rather, it appears

that the court properly balanced the relevant competing con-

siderations. We therefore leave undisturbed those portions of

the order involving northeastern Rapides Parish.

We cannot lend our sanction so easily, however, to those

portions of the plan involving pupils and facilities in Wards 3

and 4. Here, as we have described, the district court elected to

close a predominantly white rural school, Forest Hill, and a

predominantly black school, Lincoln Williams, equidistant in

different directions from the town of Lecompte, and to trans-

fer their pupils to Lecompte schools. As far as we can deter-

mine, the only justification for closing Lincoln Williams was its

predominance of black pupils. The court admitted that Forest

Hill is more modern than Lecompte Elementary, but de-

scribed the latter as having “much the better location for

66a

purposes of integration,” in terms of distance for busing of

reassigned pupils. Alternatives are only sparingly mentioned.

These findings are an insufficient factual basis on which to

approve the closing of Forest Hill and Lincoln Williams.

Equally effective alternatives may exist which would avoid the

closing of a modern facility and the intercommunity transfer of

kindergarten pupils. These should be explored on remand and,

if the district court adheres to its present plan, specific reasons

for their rejection should be given. We cannot ignore the

district court's disregard of neighborhood considerations for

rural schools in this context, particularly where K-2 students

in Alexandria were spared transfer to the point that three

schools remain virtually all-black. Specific desegregation mea-

sures in southeastern Rapides Parish should be re-examined in

light of the full range of mitigating equitable considerations.

In passing on objections to the merits of the district court's

plan, we are left with the school board's argument that the

court’s order requiring immediate implementation only days

before the fall term was to begin constituted an abuse of discre-

tion. We flatly reject such a contention.

As counsel for the school board are no doubt aware, the

Supreme Court has repeatedly and firmly declared that school

systems must begin to operate immediately on a unitary basis

and that requests for delay must be viewed in light of the

passage of time since the inception of desegregation efforts.

“The burden on a school board today is to come forward with a

plan that promises realistically to work, and promises real-

istically to work now.” Green, supra, 391 U.S. 430, 439, 88

S.Ct. 1689, 1694, 20 L.Ed.2d 716, 724. The operative word is

now. See also Wright v. City Council of Emporia, 407 U.S. 451,

460, 92 S.Ct. 2196, 2202, 33 L.Ed.2d 51, 60 (1972); Swann,

svpra, 402 U.S. 1, 18, 28 L. Ed.2d 554, 565, 91S.Ct. 1267, 1275

(1971). Alexander v. Holmes County Board of Education, 396

U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19, 20 (1969); Dowell v.

Board of Education, 396 U.S. 269, 270, 90 S.Ct. 415, 416, 24

L. Ed. 2d 414, 416 (1969); Bradley v. School Board, 382 U.S. 108,

105, 86 S.Ct. 224, 225, 15 L.Ed.2d 187, 189 (1965); Rogers v.

67a

Paul, 382 U.S. 198, 199, 868.Ct. 358, 359, 15 L. Ed.2d 265, 267

(1965).

In the case sub judice, sixteen years of litigation have not

achieved the goal of a unitary system. Further, we note that the

school board did not aid the district court by proposing specific

remedial measures, having had the opportunity to do so long

before the beginning of the 1980 term. Finally, there has been

neither a showing nor even an allegation of harm resulting from

the court's implementation order sufficient to underly [sic] a

finding that discretion was abused.

Il. INTERVENTION BY FOREST HILL RESIDENTS

By the appeal docketed here as No. 80-3855, residents of the

town of Forest Hill challenge the denial of their intervention

into this suit, attempted after the district court's plan had been

originally proposed. The appellants claim entitlement to inter-

vention as a matter of right under Fed.R.Civ.P. 24(a)(2), and

assert that permissive intervention was proper under section

(b)(2) of that rule. They claim that no notice had been given

them from pleadings or proceedings that their school would be

affected until after the district court issued its plan, and assert

that no prejudice to other parties would result from their

intervention.

These arguments run afoul of a series of cases decided by this

court regarding intervention under Rule 24 in desegregation

cases. Clearly, the appellants were not entitled to intervene as

a matter of right. In United States v. Perry County Board of

Education, 567 F.2d 277, 279 (5 Cir. 1978), we held for the first

time that “parents seeking to intervene [in desegregation

cases] must demonstrate an interest in a desegregated school

system,” and affirmed the district court’s denial of intervention

on the ground that the movants were attempting to challenge

elements of the plan. This position was reaffirmed in Pate v.

Dade County School Board, 588 F.2d 501 (5 Cir. 1979), where it

was held that parents opposing facets of a desegregation plan

have no right to intervention under Rule 24(a)(2), and that

“(T]he parental interest that justifies permissive intervention

68a

is an interest in a desegregated school system.” 588 F.2d 501 at

503.

Even if we were to assume that the appellants stated a

judicially cognizable interest by opposing the desegregation

plan, it is clear that the district court did not abuse its discre-

tion by denying the motion. Under our decision in Hines v.

Rapides Parish School Board, 479 F.2d 762 (5 Cir. 1973), inter-

vention may be denied where existing parties to a lawsuit have

advanced the position which intervenors seek to promote, or

where the district court has already considered and passed on

that matter; here, the school board opposed the closure of the

Forest Hill facility, and the district court considered and

rejected its argument. Concluding that the denial of interven-

tion was proper, we do not address the appellants’ specific

arguments with regard to the closing of Forest Hill School.

Il. THE INJUNCTION AGAINST USE OF

FOREST HILL SCHOOL

By the appeal docketed as No. 80-3776, residents of Forest

Hill challenge the district court's permanent injunction of Sep-

tember 22, 1980, which prohibited any use of the Forest Hill

School grounds. A number of arguments are advanced toward

showing the invalidity of this order, as noted supra,

We will not, however, discuss those assertions in detail. We

realize that the district court was faced with what clearly

appears to have been an organized move to thwart its orders

when residents began to teach children at the closed facility.

An evidentiary hearing was held before the injunction issued,

at which Forest Hill parents testified that they had been pres-

ent at the school, and, with full knowledge of the court’s order

of closure, deliberately disobeyed it. On the other hand, while

action was necessary, the district court was also required to

observe the principle that an injunction is to be narrowly

tailored to remedy the specific action which gives rise to it. A

total prohibition on the use of a modern facility which could

serve many community purposes other than the teaching of

children seems extremely broad.

69a

In any event, we conclude that it is appropriate for the

district court to resolve this dispute, if application for relief

from the order is made to it following remand of the cause. The

lower court is in a far better position than this tribunai to

balance the competing interests involved,

IV. APPEALS FROM THE BUCKEYE DISPUTE

The remaining appeals’ are from orders issued by the dis-

trict court to protect the integrity of its desegregation plan

following an attempt by three pupils to enroll in a junior high

school other than that contemplated by the plan. Among the

most unfortunate occurrences in the long history of school

desegregation have [sic] been the employment of various legal

devices to thwart realization of the ultimate goal, whether for

an entire system or for particular pupils. Here, a novel scheme

was hatched with the aid of a state trial judge: the transfer of

custody for three girls to residents of a zone which permitted

attendance at the school to which they had previously been

assigned.

At the outset, we must restate several fundamental proposi-

tions which the parents involved and their counsel have chosen

to overlook. First, a federal court has the power to root out all

vestiges of state-sponsored segregation where school

authorities have failed to do so. Swann, supra. This broad

power undoubtedly includes the authority to rearrange atten-

dance zones and supervise student transfer policies. 7d. We

have held that in the case sub judice, the remedial power of the

district court was invoked by a finding that this system was not

unitary, and we have upheld those portions of the plan involv-

ing junior high school attendance zones.

While it has long been held that parents have a right to direct

the education of their children, Pierce v. Society of Sisters, 268

U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), such a right does

not give them the unqualified authority to choose a particular

7 These are docketed as numbers 80-3988, 81-3008, 81-3013, 81-3033, and

81-3083.

70a

public school, A federal district court’s desegregation order

Will bind the children affected, their parents, and state and

local officials, United States v, Hall, 472 F.2d 261.5 Cir, 1972),

We will first take up the district court's orders regarding

actions by the state court and the litigants before it, We find

the district court to have acted properly in removing the state

cases to federal court, in vacating the state judge's orders

afterward, and in the exercise of its jurisdiction and injunctive

power as to the state court and litigants,

There is absolutely no ground suggested to us or discernable

in the record on which we could find clearly erroneous the

district court's conclusion that these custody transfers were a

sham intended to avoid the effect of the desegregation orders,

Clearly, that is what occurred, One of the witnesses presented

by the government at the hearing on this matter was a school

bus driver, He testified that Ramona Carbo was picked up at

her parents’ home on Monday and Thursday mornings, and was

returned there on Wednesday and Friday afternoons, This

finding alone is sufficient to dispose of the argument that

matters of juvenile custody are reserved to the state courts; if

the sole purpose of a state judicial order is to thwart the

vindication of a federal constitutional guarantee, we will pierce

the veil of sham to prevent pretextual disregard of valid

remedial orders, .

It is also clear that the district court properly exercised its

power under 28 U.S.C, § 1442, in removing the state case to

federal court where the court was named as a defendant, and

that the court had broad power under the All Writs Act, 28

U.S.C, § 1651 to enjoin third parties, including state courts,

from interfering with its desegregation orders, See Cooper v,

Aaron, 358 U.S, 1, 78 S.Ct. 1401, 3 L, Ed.2d 5 (1958); United

States vu. Hall, supra; United States v. State of Teras, 356

F.Supp. 469 (E,D, Tex, 1972), aff'd, 495 F.2d 1250 (5 Cir, 1974),

The district court acted with both dispatch and prudence in

fashioning its injunctions against the state court, parents, and

pupils involved, After resistance had come to a head and then

collapsed, the court did not impose a penalty upon Judge Lee,

Tila

but accepted a promise to avoid further interference, This was

an act of no little tolerance where the state court caused several

third parties, most notably school officials, to be faced with

conflicting orders from state and federal courts, The district

court obviously, in all of these orders, kept in mind the princi-

ple that “state policy must give way when it operates to hinder

vindication of federal constitutional guarantees,” United

States v. Scotland Neck City Board of Education, 407 U.S,

484, 488, 92.S.Ct, 2214, 2216, 33 L,. Ed.2d 75, 80 (1972),

Finally, it is noteworthy that the state judge's actions appear

to have no basis in Louisiana law, Article 220 of the Louisiana

Civil Code, which we are told was the authority for Judge Lee's

ruling, is designed to be used primarily as authority for a

teacher to discipline students placed under his or her care, We

are unable to find any mention of a “provisional custodian” in

the context used by Judge Lee under Louisiana statutes or

case law. It is further apparent that the state judge either

ignored or was ignorant of the holding of the Louisiana

Supreme Court in Swope v. St. Marys Parish School Board,

256 La, 1110, 241 So.2d 238 (N70);

Our Court system should not be used as an instrument to

circumvent orders and decrees of a Federal Court in a

controversy in which the latter has already asserted its

jurisdiction, Any other course, if pursued regularly, will

set the State and Federal Courts into continuous and

chaotic conflict; and it will place litigants as well as the

District Judges of this State in an obviously untenable, if

not impossible, position, such a» would result in the pres-

ent case if we were to order the [State] District Judge

herein (and ultimately the defendants) to defy the pres-

ently existing orders of the Federal Court, 241 So,2d 238

at 242,

As Judge Lee flagrantly disobeyed the orders of a federal court

issued within the bounds of jurisdiction and discretion, ignored

the distinct contours of federal and state jurisdiction, dis-

regarded the clear command of his own State Supreme Court,

and blatantly overstepped his judicial role as mediator, choos-

72a

ing instead to act as advocate for a politically popular position,

it is not at all strange that he wound up as a leader without

troops, standing ineffectually at the school house door,

The injunctions lodged against the Rapides Parish sheriff

and the state of Louisiana must also be affirmed, As we have

noted, the decision of the Supreme Court in Cooper ve. Aaron,

supra, renders it clear that state officials are bound through

the supremacy clause by a federal court's desegregation order,

regardless of whether they acted in good faith or pursuant toa

nondiseretionary duty,

Of all of the orders issued by the district court during this

period, only one requires correction on remand, Insofar as the

court's order retaining the girls’ transcripts pending enroll-

ment in compliance with the plan operates to restrain them

from choosing to attend a private school, it must fail, In Pierce

v. Society of Sisters, supra, the Supreme Court established the

existence of a right to attend non-public schools as a con-

comitant of “the liberty of parents and guardians to direct the

upbringing and education of children under their control,” 268

U.S, 510, 584-85, 458,Ct, 571, 578, 69 L, Ed.2d 1070, 1078, The

retention of transcripts could also be viewed as an impermissi-

ble restraint on the constitutional right to travel, if a decision

were made to send the girls to schools outside of Rapides

Parish, If these three pupils choose to attend Rapides Parish

public schools, they may be ordered to attend that school

assigned them under the plan and their transcripts may be

withheld until compliance, within the discretion of the district

court, No such action, however, may be taken to compel their

attendance at public schools, and no penalty may be attached to

a decision not to do so,

CONCLUSION

Thus is concluded another chapter in the history of Rapides

Parish desegregation litigation. On the whole, the history is a

story of both tragedy and hope, Tragedy lies in the fact that

sixteen years have not been sufficient to eradicate the vestiges

of segregation, and that after the passage of so many years,

73a

certain elements of the community, including a member of the

state judiciary, are evidently willing to hinder the task and are

unwilling to bear any sacrifice. Hope lies in the real possibility

that the plan instituted by the district court in 1980, together

with whatever modifications the district court may implement

on remand, will finally result in the establishment of a unitary

system,

Several important lessons may be learned from the course of

this litigation to the present. One is that resistance will be

perpetually fruitless, The remedies afforded by the law to

those who feel aggrieved by their burden under a desegrega-

tion plan are a request for reconsideration by the district court

and appeal if it is refused. Defiance is the worst possible

course, for the second lesson is that such efforts along with

more subtle attempts to thwart the progress of desegregation

will only prolong the process and possibly increase the burdens

on all involved, Federal courts with continuing jurisdiction

over desegregation efforts will not ignore the task entrusted to

them by the Constitution and laws.

If all parties and affected persons will work together in good

faith, progress toward a unitary system can be smooth and

speedy, If maximum input and guidance are given a district

court engaged in the formulation of relief, the plan emerging

will necessarily be more equitable than one devised in an

atmosphere devoid of cooperation. What all parties to this suit

should bear in mind, is that when a unitary system is achieved,

litigation will end and full attention may be returned to the

business of educating children in the best way possible. The

words used by the Supreme Court to conclude its opinion in the

Swann case are instructive:

At some point, these school authorities and others like

them should have achieved full compliance with this

Court's decision in Brown I. The systems would then be

“unitary” in the sense required by our decisions in Green

and Alevander,

It does not follow that the communities served by such

systems will remain demographically stable, for in a grow-

ing, mobile society, few will do so. Neither school authori-

Tda

ties nor district courts are constitutionally required to

make year-by-year adjustments of the racial composition

of student bodies once the affirmation duty to desegregate

has been accomplished and racial discrimination through

official action is eliminated from the system. This does not

mean that federal courts are without power to deal with

future problems; but in the absence of a showing that

either the school authorities or some other agency of the

state has deliberately attempted to fix or alter demo-

graphic patterns to affect the racial composition of the

schools, further intervention by a district court should not

be necessary. 401 U.S. 1, 32, 91 S.Ct. 1267, 1284, 28

L.Ed.2d 554, 575-78.

The judgment of the district court is affirmed in part,

reversed in part, and remanded for proceedings consistent

with this opinion. The plan imposed by the district court will

remain in full force until such time as it may be amended below.

AFFIRMED IN PART and REVERSED IN PART; RE-

MANDED.

75a

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76a

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 80-3722

D. C. Docket No. CA 10,946

VirRGIE LEE VALLEY, ET. AL.,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor-Appellee,

versus

RAPIDES PARISH SCHOOL BOARD, ET. AL.,

Defendants-Appellants.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

Before COLEMAN, GARZA and SAM D. JOHNSON, Cir-

cuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the record

from the United States District Court for the Western District

of Louisiana, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

affirmed in part and reversed in part; and that this cause be,

and the same is hereby remanded to the said District Court for

proceedings consistent with this opinion;

77a

IT IS FURTHER ORDERED that appellants pay to

appellees, the costs on appeal to be taxed by the Clerk of this

Court.

May 18, 1981

IssuED AS MANDATE: AUG 24 1981

7TSa

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 80-3855

D. C. Docket No. CA 10,946

VIRGIE LEE VALLEY, ET. AL.,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor-Appellee,

versus

RAPIDES PARISH SCHOOL BOARD, ET. AL.,

Defendants,

CLiypE HoLioway, ET. AL.,

Defendants-Appellants.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

Before COLEMAN, GARZA and SAM D. JOHNSON, Cir-

cuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the record

from the United States District Court for the Western District

of Louisiana, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of the

said District Court in this cause be, and the same is hereby,

affirmed;

79a

IT IS FURTHER ORDERED that appellants pay to

appellees, the costs on appeal to be taxed by the Clerk of this

Court.

May 18, 1981

ISSUED AS MANDATE JUN 9 198]

80a

APPENDIX J

VIRGIE LEE VALLEY, ET AL.,

Plaintiff-Appellee,

UNITED STATES OF AMERICA,

Intervenor-Appellee,

vu

RAPIDES PARISH SCHOOL BOARD, ET AL.,

Defendants-Appellants.

No. 80-3722.

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

Aug. 14, 1981.

ON PETITION FOR REHEARING

Before COLEMAN, GARZA and SAM D. JOHNSON, Cir-

cuit Judges.

PER CURIAM:

On motion for rehearing the appellant Rapides Parish School

Board raises a single issue concerning the following provision

of the district court's order:

“3. Designation of Faculty and Other Staff. The Singleton

ratio of faculty and staff (31.5) as stated in our previous

decrees is confirmed and shall be maintained. More specif-

ically, the ratio of black principals shall be filled by pri-

ority at the beginning of each school year unless waived by

special order of this Court. It has come to our attention

that the ratio is one short, so that the first principal now to

be appointed must be black.

The current policy that a minority assistant principal

must be appointed as soon as the number of minority

students in a school reaches 20%, is now rescinded. This

policy, though helpful in the past, has resulted in over-

staffing in some instances, and under the plan now

adopted, is no longer necessary. It is now ordered that in

Sla

each school the assistant principal be of the race other

than that of the principal of that school.”

The Board maintains that the court below has enforced this

provision as a system-wide racial hiring quota, in con-

travention of Singleton v. Jackson Municipal Separate School

District, 419 F.2d 1211 (5 Cir. 1969), and its progeny. See also

Carter v. West Feliciana Parish School Board, 432 F.2d 875 (5

Cir. 1970); George v. Davis, 365 F.Supp. 446 (M.D.La.1973)

aff'd, 493 F.2d 663 (5 Cir. 1974). The United States, intervenor-

appellee, has argued that the challenged provisions relate only

to assignment, not hiring, and that they validly restate the

Singleton requirement that the ratio of black and white staff in

each school approximate the ratio in the parish as a whole.

In our opinion on the merits of this case, reported at 646 F.2d

925 (5 Cir. 1981), we affirm all portions of the district court's

order which wére not reversed, and we did not specifically

address this issue. We do not have a record before us sufficient

to show how the provision complained of has been enforced and

we therefore instruct the district court to re-examine this

matter on remand, in light of the authority cited.

SO ORDERED.

82a

APPENDIX K

UNITED STATES District Court,

W. D. LouIsiaANna,

ALEXANDRIA DIVISION.

AUG. 6, 1980.

Civ. A. No. 10946.

VirGie LEE VALLEY ET AL.

U,

RAPIDES PARISH SCHOOL BOARD.

OPINION

NAUMAN 8S. SCOTT, Chief Judge.

This suit to integrate the public school system of Rapides

Parish, Louisiana has been on trial since March 23, 1965. It is

before us now on motions by the plaintiff and by the Govern-

ment (intervenor) for additional relief. This school system is

operating presently under our decree dated July 9, 1971, as

amended. The decree was agreed to by plaintiffs and defen-

dant. The Government took no appeal.

The issue presented by the motions is whether a unitary

system ever was achieved. In our preliminary judgment of June

6, 1980 we recognized that the system was not unitary; that the

plan of the Government's expert, Dr. Gordon Foster, was not

acceptable and was rejected; that a suggested plan would be

drawn by the Court, and that the filling of vacancies in the

office of principal at several schools was enjoined pending fur-

ther orders of the Court. Our suggested plan was filed on July

3, 1980, and comments and alternatives received. A suggested

alternative to our original junior high school plan was filed and

published on July 30, 1980. The hearing scheduled for August 1,

1980 was converted to a status conference since no additional

evidence was offered.

We have considered all of the alternatives to our original plan

as well as the responses and comments of the parties and

others. Based on this consideration we adopt the following:

88a

PLAN

The expertise of the undersigned consists of almost ten years

experience as a Federal District Judge in an area not unfamiliar

with the problems of school desegregation. The guidelines

utilized are the product of this experience.

I, PREPARATION

The scope of the evidence in the case presented at the hear-

ing beginning April 29, 1980 was limited to that part of the

Rapides Parish School system located in Wards 1, 8 and 9 which

comprised substantially less than the total Alexandria-

Pineville metropolitan area. We have informed the parties that

we consider the dimension of the matters at issue to be system-

wide. Since the evidence did not contain information sufficient

to evaluate the system outside Wards 1, 8 and 9 and since the

data on those three wards was incomplete (pupil locator maps,

etc.) we have utilized the services of Superintendent Nichols

(white), Assistant Superintendent Townsend (white), and

Assistant Superintendent Davis (black) to assemble and sub-

mit information as it was requested by us. This data can be

identified as Court Exhibits 1-20. Court Exhibit 1 was

requested by us from the Alexandria Daily Town Talk.

Il. GUIDELINES

There is one all-encompassing purpose: the adoption of a plan

which achieves the greatest amount of integration with a rea-

sonably assured prospect of success. Our use of all guidelines

set out below will be governed by their contribution to this

essential purpose. When they fail to contribute they will be

discarded.

1. Busing. Busing has been an essential element of our public

school systems for many years. A parent will accept extensive

busing to achieve an objective which he approves. He will

protest busing for purposes which he disapproves even though

the distance be short. Hence, it is not the busing itself but the

specific purpose which he approves or disapproves. The plan

Sda

will utilize busing purposefully and constructively, Busing

must be racially non-discriminatory.

2. Neighborhood Schools. We recognize that neighborhood

schools in metropolitan areas should exist but only to the

extent that they do not impair or inhibit the establishment of an

integrated school system. They do not exist outside metro-

politan areas. We recognize also that the neighborhood concept

is fundamental and most important in the early years of school

and that it becomes progressively less important as the pupils

become more sophisticated in the later years of elementary

school and in junior high school and high school. We shall

recognize the neighborhood concept but only to the degree that

it does not hinder or inhibit the establishment of a unitary

system,

3. Practicality. We shall use all tools lawfully available for

our purposes. We shall not adopt measures which are lawful,

but have no reasonable prospect of success. We shall give due

recognition to physical circumstance and to individual inter-

ests as they exist which can exert a substantial impact on our

prospects of success, and design remedies which will accommo-

date, where possible, such circumstances and individual inter-

ests,

Although we shall carefully balance the equities between the

black and white communities, this is not an end within itself

and must give way if it constitutes a substantial obstruction to

the successful implementation of the plan.

4. School Construction. Construction of new school build-

ings, disposition of old school buildings and school sites can

substantially affect the development of a unitary system.

III. SPECIFIC PROPOSALS

Although revision of pupil assignments was the principal

additional relief requested we have restated other elements of

the plan which have been established in plans previously

approved in these proceedings.

1. Pupil Assignment, At the close of the 1979-80 school year

Rapides Parish Public Schools were attended by 25,049 stu-

Sa

dents, 8,942 of whom were black and 16,107 white. This figure

includes the enrollment of three schools which are not properly

part of the integration plan. Kelso-Twin Cities is an alternative

school having a total enrollment of 126 students — 36 black and

%) white. Lakeside Elementary is a school for trainable men-

tally retarded children having 92 black and 61 white. St. Mary's

is a Catholic institution for mentally retarded children to which

the Rapides system contributes a total of 148 students — 21

black and 127 white.

PUPIL MEMBERSHIP AS OF MAY 31, 1980

SCHOOLS PUPILS TOTALS

B “ W

Aaron Elem. 270

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