Petition for Writ of Certiorari — Board of Public Instruction v. Bradley

Page

CEE IO sc cunincedabsessabeakdaandasunesvebes 1

EE n.0.0 < U'v'c 0c woas buss cndencabebwens bauer 2

ree ere rn Cr rene 2

Constitutional provisions and statutes involved ...... 3

PONT PT, eee eee Te PPO re 4

A. Earlier proceedings ....... PTET EP Pere yO 4

B. Factual background ...... ARERR ee Fetes 5

C. Action of the court below ................... 8

D. Consequences of the ruling below ............ 11

Reasons for grating the writ .................00000- 11

SE 0 cs Si incu bed Re ReKeavan tee a eckebareee 24

Appendix A—Opinions below ...................0-. Al

Cap ee SD. os ancdindnd Woedakued canes Al

(2) Opinion on rehearing ................ A17

Appendix B—District court judgment following re-

WOME oo dc tededucbwaninasssedcacseencie A34

AUTHORITIES

CasEs:

Alexander v. Board of Education, 396 U.S.19..... 12, 23

Atlanta Motel v. United States, 379 U.S. 241 ...... 22

Avery v. Wichita Falls Indep. Sch. Dist., 241 F. 2d

230, certiorari denied, 353 U.S. 938 ............. 13

Bell v. School City of Gary, Indiana, 324 F.2d 209,

certiorari denied, 377 U.S. 924 ................. 13, 19

li

Index Continued

Page

Briggs v. Elliott, 132 F. Supp. 776 ............... 13

Brown v. Board of Education I, 347 U.S. 483 ...... 12

Cardona v. Power, 384 U.S. 672 ........... cece eee 22

Cassell v. Texas, 339 U.S. 282 .........ccccecceees 23

Deal v. Cincinnati Board of Education I, 369 F.2d 55,

certiorari denied, 389 U.S. 847 .............2008- 13

Deal v. Cincinnati Board of Education II, 419 F.2d

Se Re epee rt ere rah errr Ory a re ke 13

Downs v. Board of Education of Kansas City, 336

F.2d 988, certiorari denied, 380 U.S. 914 ........ 13

Ellis v. Board of Public Instruction of Orange

County, 423 F.2d 208... ccc ccc ccc ccencseces 8

Evans v. Ennis, 281 F.2d 385, certiorari denied, 364

Re NE ha Chae aes keh ae ee ood eke dee oes 13

Evers v. Jackson &c. Sch. Dist., 328 F.2d 408 ...... 13

Gaston County v. United States, 395 U.S. 285 ...... 22

Green v. County School Board, 391 U.S. 430 ....... 5, 13

Katzenbach v. Morgan, 384 U.S. 641 .............. 22, 23

Kemp v. Beasley III, 423 F. 2d 851 ............... 13

Keyes v. School District No. One, Denver, 303 F.

ST ry ree aren ore er errr gr ere 21

Matter of Addabbo v. Donovan, 22 App. Div. 2d 383,

— 2 ee. Se UB Pre rere rrr Terre ire 21

Offermann v. Notkowskt, 378 F. 2d 22 ............. 13

Singleton v. Jackson Municipal Separate School

Bs UE RE ko chad nnadeeceebasevabeacs 10

South Carolina v. Katzenbach, 383 U.S. 301 ........ 22

Springfield School Committee v. Barksdale, 348 F.2d

MU Cea Che oe eed ee AEE S 5k KoA ERO TREE 13

Swain v. Alabama, 380 U.S. 202 ...............002- 23

Swann v. Charlotte-Mecklenburg Board of Educa-

em 2s ET TP err ere Te ree Pere 13

Swann v. Charlotte-Mechlenburg Board of Educa-

tion II, certiorari granted, 399 U.S. 926, No. 281,

Ne SE 92556 raw alees cakeeh eae e ne 11, 13, 24

United States v. Jefferson County Board of Educa-

tion, 372 F.2d 836, on rehearing in banc, 380 F.2d

385, certiorari denied sub nom. Caddo Parish

School Board v. United States, 389 U.S. 840 ...5, 14, 21

United States v. School District 151 of Cook County,

te OE BE ha os 9 wd 6c 6UKa kd a ehh dom Ree OKEREN 13, 21

Index Continued ili

Page

CONSTITUTION OF THE UNITED STATES:

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RP Aas pie eine gee ee te 3, 23

os ee eT oon 2, 3, 11, 22

We: MI os hak oN ea wks Cae bach ns 22

STATUTES:

Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat 241

14, 20, 21, 22

Section 401(b) ................ 2, 3, 11, 14, 17, 21, 23

Section 407(a) ................ 2, 3, 11, 14, 20, 21, 23

BE UMA BD on bask sk ccdadccnccececoccecec 3

42 U.S.C. § 2000c-6(a) ..... 0. cc ccc ccc ccc cece 3

MISCELLANEOUS:

110 Cong. Ree. :

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PET AA 5464 a Vekeus Rha aaucieescebuvsinen 17

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| erry eee 18

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EN ASE ce hw CGNGBdS Gu ad Odd dds 00 hR0 kK: 18

OR Ee eee 19

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BO EE MO, hk ak EWE dad ca dda vedae cen caec 20

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| SERPs: hee ee Creme ey Tn iam 20

SESS Sha ld as hdd BTM Ko awe ba ok dead Ze 20

DN BO Es oven ccuccccccnceccececsccces 20

H.R. 7152, 88th Cong., Ist sess. ............ 15, 16, 17, 18

H.R. Doc. 124, 88th Cong., 1st Sess. :

is dntewakn a Hi awaiwasew ba bins sees codes sic 15

ie abe tas SRR GHAR CRS nk eh e oh chk kkk 15

iv Index Continued

Page

H.R. Rep. 914, 88th Cong., Ist sess. ............... 16

OD bakes bicbbcnscncesssessicencdcidcecsasven 17

ee eich scevidchhasneaddsnkawasegebeasdteage 18

SUE Rack ii cewek kad bbas break bwkebsaceecaes 17

Bag FS Th ON BEG oa ce cnctsnscavcscscswostes 16

Sen. 1731, 88th Cong., Ist sess. .................. 15, 16

IN THE

Supreme Court of the United States

Octoser Term, 1970

No.

THe Boarp or Pustic Instruction or PIngELLAs County,

Fiorina, et al., Petitioners,

Vv.

Leon W. BraD.ey, JR., et al.

PETITION FOR A WRIT OF CERTIORARI

TO THe UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Tue Boarp or Pustic INstRUCTION oF PINELLAS CouUNTY,

Fioripa, and others, your petitioners, pray that a writ of

‘certiorari issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit, entered in the

above-entitled case on July 1, 1970.

OPINIONS BELOW

Neither the first opinion of the court below (Appendix

A(1), infra, pp. A1-A16), later withdrawn on rehearing,

nor the second opinion of the court below (Appendix A(2),

infra, pp. A17-A33), has yet been reported.

2

JURISDICTION

The first opinion of the court below was entered on

July 1, 1970 (Appendix A(1), wmfra, p. Al). A timely

petition for rehearing, resulting in a new opinion, was

denied on July 28, 1970 (Appendix A(2), infra, pp. A17,

A29). The Clerk of the Fifth Cireuit advises that no

formal judgments as mandates are now entered in school

board eases, and that the opinion is issued as and for the

mandate in all such cases.

QUESTIONS PRESENTED

1. Whether it is lawful to direct classification of school

children by race in order to remove inequities in education

that were created by racial classification.

2. Whether the Constitution requires massive busing to

achieve racial balance in an otherwise unexceptionable

unitary school system, where such busing excludes

thousands of white children from their neighborhood walk-

in schools because of their race or color.

3. Whether the court below, which decreed extensive

busing of school pupils in order to achieve racial balance,

improperly disregarded the explicit direction of Congress,

implementing the XIV Amendment under Section 5 thereof

in Section 401(b) of the Civil Rights Act of 1964, that

‘* ‘desegregation’ shall not mean the assignment of students

to public schools in order to overcome racial imbalance.”’’

4. Whether the court below, which decreed extensive

busing of school pupils in order to achieve racial balance,

improperly disregarded the explicit direction of Congress,

implementing the XIV Amendment under Section 5 thereof

in Section 407(a)(2) of the Civil Rights of 1964, that

‘‘nothing herein shall empower any * * * court of the

United States to issue any order seeking to achieve a

racial balance in any school by requiring the transporta-

tion of pupils or students from one school to another in

order to achieve such racial balance.’’

3

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

1. Section 1 of the Fourteenth Amendment provides, in

pertinent pert—

‘nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection

of the laws.’’

2. Section 5 of the Fourteenth Amendment provides:

‘The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.’’

3. Section 401(b) of the Civil Rights Act of 1964

(42 U.S.C. § 2000c(b)), provides:

‘““As used in this title—* * *

‘*(b) ‘Desegregation’ means the assignment of

students to public schools and within such schools

without regard to their race, color, religion, or national

origin, but ‘desegregation’ shall not mean the assign-

ment of students to public schools in order to overcome

, racial imbalance.’’

4. Section 407(a) of the Civil Rights Act of 1964

(42 U.S.C. 2000c-6(a)) provides in pertinent part:

‘‘Whenever the Attorney General receives a com-

plaint in writing * * * to the effect that * * *

minor children, as members of a class of persons

similarly situated, are being deprived by a school

board of the equal protection of the laws * * * the

Attorney General is authorized * * * to institute

for or in the name of the United States a civil action

* * * for such relief as may be appropriate * * *

provided that nothing herein shall empower any official

or court of the United States to issue any order seeking

to achieve a racial balance in any school by requiring

the transportation of pupils or students from one

school to another or one school district to another in

order to achieve such racial balance, or otherwise

enlarge the existing power of the court to insure

compliance with constitutional standards.’’

4

STATEMENT

In this case the district court found and held (Final

Order, August 4, 1969, p. 6) that the petitioner ‘‘ Board

has taken steps to eradicate the effect of past segregated

schooling. The all-Negro schools remaining in Pinellas

County do meet constitutional standards (Adams v.

Matthews, 403 F.2d 181 (5th Cir. 1968)), under the circum-

stances that no feasible Green [v. County School Board,

391 U.S. 430] alternatives exist. The probabilities are that

the schools will remain all-Negro until housing patterns

change in the area or that new school sites can be selected

which will promote desegregation.”’

The court of appeals however decreed massive busing

involving the transportation of an additional 5400 pupils

to achieve racial balancing, concluding on rehearing that

the Pinellas County schools had been effectively converted

into a unitary system in every respect, except student

assignment in certain schools because of the concentrated

black population in parts of St. Petersburg (imfra, p. A29).

The issue thus posed permits the present substantially

abbreviated Statement.

A. Earlier Proceedings

The original complaint in this case, filed May 7, 1964,

sought an injunction enjoining the petitioner Board from

operating a bi-racial school system in Pinellas County.

On January 15, 19€:, the Board was ordered to submit a

complete plan for the removal of dual attendance zones,

and for the opening of all public schools in Pinellas County

on a non-racial basis. On March 15, 1965, the Board filed,

and the district court approved, a Plan of Desegregation

that had been jointly developed and to which counsel for

the respondents consented. This plan called for a complete

unitary school system on 2 geographic basis, no dual zones,

no freedom of choice, and with all zone lines drawn on a

rational and reasonable basis.

9)

Two Motions for Further Relief thereafter filed were

denied. The second denial was appealed, after which the

court of appeals on July 12, 1967, remanded the cause for

further consideration in the light of its decision in United

States v. Jefferson City Board of Education, 372 F.2d 836

(C.A. 5), on rehearing in bane, 380 F.2d 385, certiorari

denied sub nom. Caddo Parish School Board v. United

States, 389 U.S. 840.

A further hearing was postponed at respondents’ request

to permit the Board to develop new zones, and on

October 21, 1968, the Board reported further progress in

desegregation.

The present case arises out of respondents’ Motion for

Further Relief thereafter filed, on December 13, 1968, in

consequence of which the district court on March 6, 1969,

directed the petitioner Board to adopt a comprehensive

plan of desegregation consistent with Green v. County

School Board, 391 U.S. 4380. Such a plan was filed on

April 15, 1969, and thereafter a two-day evidentiary

hearing was held to consider respondents’ objections

thereto. Those objections were resolved by a district court

order entered on August 4, 1969, from which respondents

appealed to the court below.

B. Factual Background

To quote from the second opinion of the court below

(infra, pp. A18-A19) :

‘‘The Pinellas school system covers the whole of Pinellas

County with a land area of 265 square miles. The student

population of the system is approximately 80,000, of which

12,700, or 16%, are Negro students. Approximately 9,500

of these Negro students live in the City of St. Petersburg,

in the southernmost part of the system.

‘*Since 1964, when the original complaint in this case was

filed up to the 1969-70 school year, there has been a gradual

decrease in the percentage of students in all-Negro schools

2 a Ne Oe ge es ORY ae ee

6

throughout the entire system. In the 1969-70 school year,

there were 102 schools in operation—72 elementary, 19

junior high, and 11 senior high schools. During the

1969-70 school year, 12 elementary schools, one junior

high and one senior high school served all-Negro or

virtually all-Negro student bodies. Approximately 8,400,

or 66% of the 12,700 Negro students in the entire system

at all levels attended all-Negro or virtually all-Negro

schools.

‘‘Under the school board’s plan, the plan approved by

the district court, there were to be 107 schools in operation

—75 elemeutary, 20 junior high, and 12 senior high

schools. At the elementary level, nine would remain all-

Negro or virtually all-Negro. There would also remain

the one all-Negro junior high and one all-Negro senior

high school. Under this plan, 8,200 out of the 12,700 Negro

students in the entire system at all grade levels, or 64%,

would attend all-Negro or virtually all-Negro schools.

‘‘The school board’s plan does not change the already-

existing majority-to-minority transfer policy, which during

the 1969-70 school year has resulted in the transfer of

only 62 students.2. The plan also leaves intact two bi-racial

committees operating in Pinellas County. * * *”’

The issues now presented turn on the status of the all-

black schools; as stated by the district court (Final Order,

August 4, 1969, p. 5),

‘The remaining all-Negro schools consist of five all-

Negro elementary schools and one all-Negro junior high

school. There are, in addition, two substantially all-Negro

elementary schools and one substantially all-Negro high

school. These schools, out of a total of 103 regular schools,

are all located in the densely populated downtown St.

Petersburg, area.”’ :

‘¢2 [Footnote in original] Fifty of these students, however, were

Negroes transferring from all-Negro to predominantly white

schools.”’

7

The record shows that the St. Petersburg area now has

a population of about 43,000 black citizens. In 1954, about

half that number lived in a heavily congested area of some

fifteen square blocks; since then, their numbers have nearly

doubled, and they have moved into what was formerly

“St. Petersburg’s white residential areas, with the con-

sequence that schools that were previously all-white walk-in

schools became all-black walk-in schools. All the elementary

schools in St. Petersburg today that were predominantly

black prior to the ruling below are walk-in schools, as are

the majority of all elementary schools in that city.

To continue with the district court’s findings of fact

(Final Order, August 4, 1969, pp. 5-6):

‘*Plaintiffs have objected to the defendant Board’s plan

for the schools of St. Petersburg since the proposed plan

does not result in the climination of these all-Negro

schools, The Court finds that no feasible alternative has

been shown to this Court for these schools. The Plaintiffs’

expert, Dr. John Finger, testified in effect that the schools

in the densely Negro areas could be integrated only by the

use of a pupil assignment plan or a pairing plan involving

additional bussing of substantial distances. This Court

finds that no feasible alternative to zones for the all-Negro

schools in St. Petersburg can be developed at this time.

Additionally, the Court finds that the existence of these

all-Negro schools is the result of voluntary housing patterns

of Negro parents and is no longer a result, in this year

1969, of state imposed segregation of Negroes in residential

areas and schools.

‘‘The Court concludes, based on the record and in light

of all suggested alternatives, including the suggestions of

plaintiffs’ expert, that the defendant Board has met its

burden of converting the school system to one which is

without so-called ‘‘ White’’ and ‘‘Negro’’ schools but mereiy

schools, a few of which, statistically, are all-Negro, but none

of which are the result of a dual school system.’’

ee eee

il

KAN Ew Ne alae

8

C. Action of the Court Below

Respondents appealed from the judgment of the district

court dated August 4, 1969, contending that the predom-

inantly black population of seven elementary schools, one

junior high school, and one senior high school, all in

St. Petersburg, involved a violation of their constitutional

rights, which, they contended, entitled them to racial

balancing in the schools. |

Following oral argument, the court of appeals requested

additional findings of fact, which the district court entered

on April 28, 1970. These findings reflected the school

population by race for every school of all three levels in

St. Petersburg.

The district court further found (Supplemental Findings

of Fact, April 28, 1970, p. 2), in response to the court of

appeals’ inquiry concerning the number of white students

who could be assigned to the nine all-black schools if Ellis

v. Board of Public Instruction of Orange County, 423 F. 2d

203 (C.A. 5), were fully complied with, that the number

of white students that could be so assigned was ‘‘none.

* * * This Court finds * * * that the utilization of Ellis

zone lines, instead of fairly drawn zone lines, would result

in an increase of Negro students attending the nine all-

Negro schools with a concomitant decrease of Negro

students presently attending majority-white schools.’’

On July 1, 1970, the Fifth Circuit rendered an opinion

(Appendix A(1), infra, pp. Al-A16) that required mass

busing to eliminate the all-black schools. In consequence

of a petition for rehearing pointing out numerous factual

errors in that opinion, it was withdrawn by the court of

appeals and a new one promulgated (Appendix A(2), infra,

pp. A17-A33), which, although still requiring mass busing,

substantially modified the earlier requirements. These

differences may be summarized as follows:

1. On rehearing, the Fifth Circuit found that the faculty

and staff desegregation standard had been met (infra,

9

pp. A19-A20). It had earlier held precisely the contrary

(infra, p. A4).

2. On rehearing, the Fifth Cireuit held, as it had

originally, that transportation, facilities, and extracur-

ricular activities were all operated on a desegregated basis

(infra, pp. A4, A20).

3. In respect of student assignment there were significant

variances between the two opinions.

a. Originally, Palmetto Elementary School was to be

paired with Northward of Clearwater, and Kings Highway

with Curtis (infra, p. A6). In fact, Kings Highway had

already been paired with Palmetto, and Northward already

had 40% black students. On rehearing, the pairing of

Palmetto and Kings Highway was approved, and Curtis

was directed to be paired with Dunedin (infra, pp. A22-

A23).

b. Originally, Glenoak was to be paired with Lakewood

(infra, p. A7); on rehearing, it was ordered that the Board

could, as an alternative, group Glenoak, Lakewood, and

Bay Vista into one zone (infra, pp. A23-A24).

c. The zone lines of Lakeview were ordered redrawn to

incorporate at least 400 white students in the northern

part of Bay Point and Bay Vista zones and in the inter-

vening finger of Childs Park (infra, pp. A7-A8). This

direction incorrectly assumed that Lakeview’s capacity was

1555 students when in fact that capacity was only 658. On

rehearing, the Fifth Circuit ordered that Lakeview could

either be paired with Maximo or grouped with Maximo

and Bay Point (ifra, p. A24).

d. There were extensive changes in respect of Campbell

Park (infra, pp. A8-A9, A25-A26), somewhat too complex

for detailed elaboration here.

e. The same comment applies to the treatment, in the

two opinions, of Wildwood, West Central, and Fairmount

Park, all of which were walk-in schools (infra, pp. A8, A25).

10

f. Both opinions directed the pairing of Disston Junior

High with Sixteenth Street Junior High (infra, pp. A9-A10,

A27).

g. Both opinions provided the same alternatives in

respect of the senior high schools (infra, pp. A10-A11,

A27-A28).

h. The second opinion required changes over the first in

respect of student assignments to some 21 elementary

schools, or close to 30% of all such schools; this is apparent

from a comparison of Appendix A to the first opinion

(infra, pp. A13-A15) with Appendix A to the second

opinion (imfra, pp. A30-A32).

Under the terms of the order on rehearing, the Board

was directed to comply with the court of appeals’ rezoning

by August 14, 1970 (infra, pp. A21, A29). No stay was

requested from the court of appeals, as the Fifth Circuit

had earlier indicated that, in school desegregation cases,

‘*No stay will be granted pending petition for rehearing

or application for certiorari’? (Singleton v. Jackson

Municipal Separate School Dist., 419 F. 2d 1211, 1222

(C.A. 5, Dee. 1, 1969).* Instead, the Board considered the

alternative courses left open to it, and presented to the

district court a plan adopted pursuant to the court of

appeals’ order on rehearing. That plan was approved by

the district court on August 6, 1970; a copy of the district

court’s order of that date is, for the information of this

Court, included as Appendix B hereto (infra, pp. 434-A41).

* An application for a stay, presented here by the Governor of

Florida, was denied on August 8, 1970 by Mr. Justice Black.

11

D. Consequences of the Ruling Below

An estimate prepared by the Board’s Department of

Statistical Information discloses that, pursuant to the fore-

going order of August 6, 1970, some 5400 additional students

must be bused back and forth on every school day.

675 of these must be transported between 114 and2__ miles

1725 éé &é éé¢ 66 ¢é ‘6 2 cc 2% ac

1550 ‘é ee “cc no “ec ‘é 2% “<é 3 ‘é

1000 “ce ‘sé «é “é é ‘6 3 ai 3% “ce

450 éé te “c “eé “é ce 3 se 4 “ec

REASONS FOR GRANTING THE WRIT

This case presents in sharpest focus a question of school

desegregation to which this Court has yet to give plenary

consideration, an issue that is currently not only the most

pressing one in the educational area but one whose resolu-

tion by the court below involves its least edifying paradox:

Is classification of school children by race a proper con-

stitutional remedy for removing the inequities in education

that stemmed from racial classification?

The significance of that question is underscored by the

circumstance, up to now pretty consistently disregarded

by the lower courts, that Congress has explicitly declared,

acting under its Section 5 power of enforcing the

Fourteenth Amendment, not only that ‘ ‘desegregation’

shall not mean the assignment of students to public schools

in order to overcome racial imbalance’’ (Sec. 401(b), Civil

Rights Act of 1964, supra, p. 3), but also that ‘nothing

herein shall empower any * * * court of the United

States to issue any order seeking to achieve a racial balance

in any school by requiring the transportation of pupils or

students from one school to another or one school district

to another in order to achieve such racial balance’’ (Sec.

407(a), Civil Rights Act of 1964, supra, p. 3).

The impressive legislative history underlying the quoted

provisions is also involved in Swann v. Charlotte-Mecklen-

12

burg Board of Education, No. 281, this Term, in which

certiorari was granted last June (399 U.S. 926), although

there the legislative materials outlined below have not yet

been fuliy brought to this Court’s attention. Nor has

this Court up to now considered in depth the extent to

which Congressional enforcement action under Section 5 of

the XIV Amendment should guide judicial interpretation

of that Amendment’s substantive provisions.

The present case is free from any and all complications

arising out of school board intransigence, or out of ‘‘free-

dom’’ of choice plans, or indeed out of subterfuges or

colorable ploys of any kind. It presents squarely the

precise issues that are currently so very troublesome, in

all parts of the Nation, issues that this Court up to now

has not resolved:

Does anything in the Constitution require massive

busing to achieve racial balance in an otherwise un-

exceptionable unitary school system, particularly when

Congress has solemnly declared racial balance to be no part

of desegregation?

Bearing in mind the constitutional norm (Alexander v.

Board of Education, 396 U.S. 19, 20) of ‘‘unitary school

systems within which no person is to be excluded from any

school because of race or color,’’ is the busing-for-racial-

balance decreed below, which plainly results in excluding

white children from their neighborhood walk-in schools

because of their race or color, consistent with that norm?

First. No decision of this Court has required racial

balancing, i.e., classifying by race in order to extirpate

racial classification. To the contrary, every case here

from Brown v. Board of Education I, 347 U.S. 483, decided

in 1954, through Alexander v. Board of Education, 396 U.S.

19, determined last Term, has iterated and reiterated the

Constitution’s mandate for wholly non-racial public school

systems.

13

In Brigys v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C.),

a strong three-judge district court, which included Parker

and Dobie, Cire. JJ., declared that—

‘‘The Constitution, in other words, does not require

integration. It merely forbids discrimination.”’

Insofar as what was there said dealt with freedom of

choice, the case is plainly no longer law after Green v.

County School Board, 391 U.S. 430. But insofar as the

decision held that the Constitution does rot require racial

balancing nor command the abandonment of bona fide

neighborhood school plans simply because they result in

racial imbalance, it presently has the support of seven and

perhaps eight circuits:

C.A. 1: Springfield School Committee v. Barksdale,

348 F.2d 261.

C.A. 2: Offermann v. Nitkowski, 378 F.2d 22, 24.

C.A. 3: Evans v. Ennis, 281 F.2d 385, 394, semble,

certiorari denied, 364 U.S. 933.

C.A. 4: Swann v. Charlotte-M ecklenburg Board of Edu-

cation I, 369 F.2d 29, 32; Swann v. Charlotte-Mecklenburg

Board of Education II, No. 281, this Term.

C.A. 6: Deal v. Cincinnati Board of Education I, 369

F.2d 55, certiorari denied, 389 U.S. 847; Deal v. Cincinnati

Board of Education II, 419 F.2d 1387.

C.A. 7: Bell v. School City of Gary, Indiana, 324 F.2d

209, certiorari denied, 377 U.S. 924; United States v. School

District 151 of Cook County, 404 F.2d 1125, semble.

C.A. 8: Kemp v. Beasley III, 423 F.2d 851, 857.

C.A.10: Downs v. Board of Education of Kansas City,

336 F.2d 988, certiorari denied, 380 U.S. 914.

Only the Fifth Circuit, which formerly espoused the

same view (e.g., Avery v. Wichita Falls Indep. Sch. Dist.,

241 F.2d 230, certiorari denied, 353 U.S. 938; Evers v.

14

Jackson &c. Sch. Dist., 329 F.2d 408, 410), has since

jettisoned its earlier doctrine, and now adheres in all

respects to the racially-oriented policy of racial balancing,

policy that ruled the present case. United States v.

Jefferson County Board of Education, 372 F.2d 836,

adhered to on rehearing in bane, 380 F.2d 385, 389 n. 3

(expressly overruling nine earlier cases to the contrary),

certiorari denied sub nom. Caddo Parish School Board v.

United States, 389 U.S. 840. There is no need to include

here a listing of the many Fifth Circuit cases applying

the Jefferson County doctrine.

It is sufficient simply to emphasize, what indeed will be

apparent from the citations above, that on the issue of

mass busing to achieve racial balance there exists a live

and continuing conflict of circuits that only this Court can

resolve.

Second. The concept of racia! balancing as a form of

desegregation was explicitly and emphatically disapproved

hy Congress when it enacted the Civil Rights Act of 1964.

The legislative history reflects the following steps: First,

after the President noted the problems flowing from racial

imbalance, the first bills thereafter introduced contained

numerous provisions dealing with that problem. The

TIouse Judiciary Committee then struck out every reference

to racial imbalance. The anti-racial-balancing clause now

in Section 401(b) was accepted on the House floor by the

Chairman of the Judiciary Committee, in charge of the

bill, while the anti-racial-balancing proviso now in Section

407(a) was actually drafted by the four bipartisan leaders

who supported and indeed promoted the measure in the

Senate. An amendment to strike the latter proviso, pro-

posed by the leader of the Senate opposition to the legisla-

tion, was not adopted. Here there is room only for the

highlights of this impressive legislative development:

1. The measure that became the Civil Rights Act of

1964 was recommended to Congress by President Kennedy.

He requested Congress to ‘‘assert its specific constitutional

15

authority to implement the 14th Amendment”? (H.R. Doe.

124, 88th Cong., 1st sess., June 19, 1963, p. 6) with respect

to achieving desegregation in the public schools, first by

accelerating the litigation process, second by a program of

technical and financial assistance to school districts

“engaged in the pro css of meeting the educational

problems flowing from desegregation or racial imbalance

* * *” (id., p. 7; italics added).

2. The first version of the bills introduced immediately

thereafter and designed to effectuate the Presidential

message (H.R. 7152, Sen. 1731; both 88th Cong., 1st sess.)

had identical provisions. Title III of each, entitled

‘‘Desegregation of Public Education,’’? contained no less

than five subsections specifically looking to the correction

of racial imbalance.*

* [Our italics in each instance :]

‘Sec. 303. (a) The commissioner is authorized, upon the

application of any school board, State, municipality, school district,

or other governmental unit, to render technical assistance in the

preparation, adoption, and implementation of plans for the de-

segregation of public schools or other plans designed to deal with

problems arising from racial imbalance in public school systems.

Such technical assistance may, among other activities, include

making available to such agencies information regarding effective

methods of coping with special educational problems occasioned by

desegregation or racial imbalance, and making available to such

agencies personnel of the Office of Education or other persons

specially equipped to advise and assist them in coping with such

problems.

‘*(b) The Commissioner is authorized to arrange, through grants

or contracts, with institutions of higher education for the opera-

tion of short-term or regular session institutes for special training

designed to improve the ability of teachers, supervisors, counselors,

and other elementary or secondary school personnel to deal

effectively with special educational problems occasioned by de-

segregation or measures to adjust racial imbalance in public school

systems, © @ ©

‘Sec. 304. (a) A school board which has failed to achieve

desegregation in all public schools within its jurisdiction, or a

16

3. Sen. 1731 never got off the ground, despite its sponsor-

ship by no less than 45 senators, while H.R. 7152 was,

following extensive hearings, completely rewritten in

committee. There was reported out an entirely new

measure, see H.R. Rep. 914, 88th Cong., 1st sess., in which

former Title III was renumbered Title IV, and in which

every mention of ‘‘racial imbalance’’ was deleted. The

justification for such deletion was set forth in the additional

views of Messrs. McCulloch of Ohio, Lindsay of New York,

Cahill of New Jersey, Shriver of Kansas, MacGregor of

Minnesota, Mathias of Maryland, and Bromwell of Iowa

(id., Part 2, pp. 21-22):

‘‘The committee failed to extend this assistance to

problems frequently referred to as ‘racial imbalance’

as no adequate definition of this coneept was put

forward. The committee also felt that this could lead

to the forcible disruption of neighborhood patterns,

might entail inordinate financial and human cost and

create more friction than it could possibly resolve.’’

school board which is confronted with problems arising from

racial imbalance in the public schools within its jurisdiction, may

apply to the Commissioner, either directly or through another

governmental unit, for a grant or loan, as hereinafter provided,

for the purpose of aiding such school board in carrying out

desegregation or in dealing with problems of racial imbalance.

‘*(b) The Commissioner may make a grant under this section,

upon application *herefor, for—

‘*(1) the cost of giving to teachers and other school per-

sonnel inservice training in dealing with problems incident to

desegregation or racial imbalance in public schools; and

**(2) the cost of employing specialists in problems incident

to desegregation or racial imbalance and of providing other

assistance to develop understanding of these problems by

parents, schoolchildren, and the general public.

‘““(e) * * * In determining whether to make a grant, and in

fixing the amount thereof and the terms and conditions on which

it will be made, the Commissioner shall take into consideration

* * * the nature, extent, and gravity of its problems incident to

desegregation or racial imbalance, and such other factors as he

finds relevant.’’

17

Even so, the elimination of the references to racial im-

balance did not satisfy one of the dissenting members, who

complained (H.R. Rep. 914, supra, at p. 84) that ‘‘this

action [i.e., such elimination] is a matter of ‘public rela-

tions’ or semantics, devised to prevent the people of the

United States from recognizing the bill’s true intent and

purpose. The administration apparently intends to rely

upon its own construction of ‘discrimination’ as including

the lack of racial balance as distinguished from a statutory

reference to ‘racial imbalance’ * * *,’?

4. As reported out by the Judiciary Committee on

November 20, 1963 (H.R. Rep. 914, supra, at p. 5), Section

401(b) provided that

‘* ‘Desegregation’ means the assignment of students

to public schools and within such schools without regard

to their race, color, religion, or national origin.’’

When the bill was considered on the floor of the House

on February 6, 1964, Mr. Cramer of Florida moved an

amendment to provide that ‘‘ ‘desegregation’ shall not

mean the assignment of students to public schools in order

to overcome racial imbalance.’’ Chairman Celler of the

Judiciary Committee accepted that amendment (110 Cong.

Rec. 2280), and, as thus amended, Section 401(b) was not

further changed in the course of its passage through

Congress; it was carried onto the statute book as amended

by Mr. Cramer.

D0. The House passed H.R. 7152 on February 10, 1964

(110 Cong. Rec. 2805). In the Senate, the measure was

placed on the calendar without reference to committee

(id. 3719, Feb. 26), and was taken up for consideration on

March 26 (id. 6417). As is well known, three months of

debate ensued.

Because of the absence of committee action, H.R. 7152

was rewritten by the joint leadership in the course of the

debate, and on May 26, Amendment No. 656 in the nature

18

of a substitute was offered by Senators Dirksen (Minority

Leader), Mansfield (Majority Leader), Humphrey (Major-

ity Whip), and Kuchel (Minority Whip) (110 Cong. Ree.

11926). Included in Amendment No. 656 was a new proviso

to Section 407(a) reading as follows (id. at 11929):

‘‘provided that nothing herein shall empower any

official or court of the United States:to issue any order

seeking to achieve a racial balance in any school by

requiring the transportation of pupils or students from

one school to another in order to achieve such racial

balance, or otherwise enlarge the existing power of

the court to insure compliance with constitutional

standards.”’

This proviso did not appear either in H.R. 7152 as

reported out by the House Judiciary Committee (H.R. Rep.

914, 88th Cong., Ist sess., p. 7) or in H.R. 7152 as it reached

the Senate.

6. On June 2, Senator Russell of Georgia introduced

Amendment No. 766 to strike the quoted proviso from the

Dirksen-Mansfield-Humphrey-Kuchel substitute (110 Cong.

Ree, 12436-37), contending at some length that deleting

the proviso would eliminate the sectional aspects of the

pending bill and would give the Attorney General authority

to integrate outside the South. Senator Russell contended

that, with the proviso included, the Attorney General would

act only in the South, and the courts would be powerless

to touch de facto segregation in the North. (110 Cong.

Ree. 12438-41.)

7. Two days later, Senator Humphrey undertook to

explain Title IV of the bipartisan substitute contained in

Amendment 656 (110 Cong. Ree. 12706 et seq.). He said

on the matter now in issue (id. at 12714):

‘‘Next, changes are made to resolve doubts that have

been expressed about the impact of the bill on the

problem of correcting alleged racial imbalance in public

schools. The version enacted by the House was not

intended to permit the Attorney General to bring suits

to correct such a situation, and, indeed, said as much

19

in section 401 (b). However, to make this doubly

clear, two amendments dealing with this matter are

proposed.

‘‘The first provides that nothing in title IV ‘shall

empower any court’ or official of the United States to

issue ‘any order’ seeking to achieve ‘a racial balance

in any school by requiring the transportation of } :pils

or students from one school to another or one school

district to another in order to achieve such racial

balance or otherwise enlarge the existing power of the

court to insure compliance with constitutional stand-

ards.’ This addition seeks simply to preclude an

inference that the title confers new authority to deal

with ‘racial imbalance’ in schools, and should serve to

soothe fears that title IV might be read to empower

the Federal Government to order the busing of children

around a city in order to achieve a certain racial

balance or mix in schools.

‘‘Furthermore, a new section 410 would explicitly

declare that ‘nothing in this title shall prohibit clas-

sification and assignment for reasons other than race,

color, religion, or national origin.’

‘*Thus, classification along bona fide neighborhood

school lines, or for any other legitimate reason which

local school boards. might see fit to adopt, would not

be affected by title IV, so long as such classification was

bona fide. Furthermore, this amendment makes clear

that the only Federal intervention in local schools will

be for the purpose of preventing denial of equal pro-

tection of the laws.’’

Shortly thereafter this additional colloquy took place

(id. at 12715, 12717):

‘‘Mr. Byrp of West Virginia. Can the Senator from

Minnesota assure the Senator from West Virginia that

under title VI school children may not be bused from

one end of the community to another end of the com-

munity at the taxpayers’ expense to relieve so-called

racial imbalance in the schools?

‘‘Mr. Humpurey. Ido. * * * (p. 12717) I should

like to make one further reference to the Gary case.*

* The reference is to Bell v. School City of Gary, Indiana, 324

F.2d 209 (C.A. 7), certiorari denied, 377 U.S. 924.

20

This case makes it quite clear that while the Con-

stitution prohibits segregation, it does not require

integration. The busing of children to achieve racial

balance would be an act to effect the integration of

schools. In fact, if the bill were to compel it, it would

be a violation, because it would be handling the matter

on the basis of race and we would be transporting

children because of race. The bill does not attempt

to integrate the schools, but it does attempt to

eliminate segregation in the school systems. The

natural factors such as density of population, and

the distance that students would have to travel are

considered legitimate means to determine the validity

of a school district, if the school districts are not

gerrymandered, and in effect deliberately segregated. .

The fact that there is a racial imbalance per se is not

something which is unconstitutional. That is why we

have attempted to clarify it with the language of

section 4.’’ *

8. Senator Dirksen, another co-sponsor, explained

Amendment 656 on the following day (110 Cong. Ree. 12817

et seq.). Thereafter, on June 10, Senator Dirksen intro-

duced Amendment 1052, which was in the nature of a

substitute for Amendment 656, designed to include Senator

Morton’s amendment on jury trials (110 Cong. Ree. 13310) ;

the proviso to See. 407 (a), see td. at 13312, was left un-

changed from what it had been in the earlier version.

The balance of the legislative history of the Civil Rights

Act does not require extended treatment. Amendment

1052 was agreed to on June 17 (id. at 14239), while the

bill as thus amended passed the Senate two days later (id.

at 14511). The House ultimately concurred in the Senate

amendment (id. 14631, 15869), and H.R. 7152 became law

on July 2 (Pub. L. 88-352, 78 Stat. 241).

Third. Notwithstanding the foregoing sharp and dis-

tinct history of Congressional rejection of racial balancing

* Presumably Title IV rather than section 4 was intended.

21

as a form of desegregation, the provisos in §§ 401(b) and

407(a) of the Civil Rights Act of 1964 have been either

consistently misread or else simply disregarded—we would

not be far from the mark to say that up to now they have

been trivialized—by courts that have had these solemn

statutory directions called to their attention. See United

States v. Jefferson County Board of Education, 372 F.2d

836 (C.A. 5), on rehearing in bane, 380 F.2d 385, certiorari

denied sub nom. Caddo Parish School Board v. United

States, 389 U.S. 840; United States v. School District 151

of Cook County, 404 F.2d 1125 (C.A. 7); Keyes v. School

District No. One, Denver, 303 F. Supp. 289 (D. Colo.) ;

Matter of Addabbo v. Donovan, 22 App. Div.2d 383, 256

N.Y. Supp.2d 178.

We think that few if any portions of Congressional

legislation have ever been treated with more judicial

disdain—or with less judicial understanding—than the

anti-racial-balancing provisos of the Civil Rights Act of

1964. Significantly, not a single reported case of which

we are aware has yet ascertained the provenance of the

proviso in § 407(a), or has up to now commented .on the

Russell proposal to strike that proviso from the bill.

The cases thus present a most unjustified if thoroughly

ironical result: The provisions in §§ 401(b) and 407(a)

seeking to eliminate racial balancing as a permissible

concept of desegregation, provisions that had the support

of dedicated civil rights leaders on both sides of the aisle

in both houses, one of which indeed was formulated by

those leaders, have since been brushed aside, very

cavalierly brushed aside, in the name of desegregation.

Thus the decision below lends substance to the taunt of the

veteran leader of the last-ditch rear-guard action against

the Civil Rights Act of 1964, that the proviso in § 407(a)

made the measure a purely sectional one aimed only at

the former Confederacy. Otherwise stated, the court below

ever since its Jefferson County decisions, 372 F.2d 836 and

22

380 F.2d 385, has succeeded in doing what Senator Russell

of Georgia and his cohorts were quite unable to do on their

own, it has cut the anti-racial-balancing provision out of

the law.

Such disregard of Congressional action constitutes, we

submit, still another reason for review by this Court.

Fourth. As has been seen, supra pp. 14-15, Congress en-

acted the Civil Rights Act of 1964 in response to the Presi-

dental exhortation to implement the XIV Amendment; this

is precisely what Section 5 of that Amendment empowers

Congress to do; this is precisely what Congress in fact

did; and in doing so Congress expressly declared, not once

but twice, not inadvertently or in passing but advisedly,

that desegregation shall not mean racial baiancing.

At the very least, this is a declaration entitled to far

more respect than it has up to now been accorded by the

court below. Certainly this Court has consistently sup-

ported every Congressional determination in the civil

rights enforcement area, South Carolina v. Katzenbach,

383 U.S. 301; Katzenbach v. Morgan, 384 U.S. 641; Cardona

v. Power, 384 U.S. 672; Gaston County v. United States,

395 U.S. 285; ef. Atlanta Motel v. United States, 379 US.

241, 279-291 (Douglas J., concurring), and we cite XIV

and XV Amendment cases interchangeably, since, as the

Court has recognized, the problem of the scope of Congres-

sional enforcement is identical under both Amendments.

Contrariwise, the court below has refused to defer to the

Congressional view of proper enforcement of the XIV

Amendment in school desegregation cases—which con-

stitutes still another reason for this Court now to give

plenary consideration to the relative role of Congress and

the courts in respect of enforcing that Amendment.

Fifth. In the present case there will be no occasion to

consider whether a Congressional formulation under the

XIV Amendment can restrict, abrogate, or limit the sub-

23

stantive guarantees of that Amendment, compare Katzen-

bach v. Morgan, 384 U.S. at 651n.10 with id. at 668,

because, quite apart from anything in §$ 401(b) and 407(a)

of the Civil Rights Act of 1964, nothing in the Constitution

of the United States permits, much less requires, massive

busing of school children to achieve racial balancing.

For the very concept of racial quotas, the concept that,

realistically, lies at the heart of the present case—the very

concept of racial quotas recalls the odious numerus clausus

that so disfigured education in C2ntral Europe for many

decades, and that half a century ago was feared by many

to have extended its ugly tentacles into some of America’s

oldest universities.

Just as the Equal Protection Clause does not require

racial balancing in jury selection (Cassell v. Texas, 339

U.S. 282, 286-287, 290-291; Swain v. Alabama, 380 U.S. 202,

208-209), so likewise it does not require racial balancing in

school administration.

The evils that resulted from racial classification in the

operation of dual school systems will be compounded rather

than cured by the injection of racial classification into the

operation of unitary school systems. The direction

(Alexander v. Board of Education, 396 U.S. 18, 20) ‘‘to

operate as unitary school systems within which no person

is to be effectively excluded from any school because of

race or color’’ surely forbids the result below, which in fact

excludes several thousand white children from the walk-in

schools nearest their homes simply because admitting

them there fails to achieve overall racial balancing within

the entire system.

Past discrimination in one direction does not justify

present discrimination in another. Two wrongs never yet

made one right, least of all when sought to be committed

in the guise of implementing the constitutional values of

the Equal Protection Clause.

24

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted; and we urge that this case

then be set for argument with or shortly after No. 281,

Swann v. Charlotte-Mecklenburg Board of Education. In

the event that the Court should take such action, counsel

for these petitioners are prepared to proceed under an

accelerated briefing schedule.

Respectfully submitted.

FREDERICK BERNAYS WIENER,

1750 Pennsylvania Avenue, N.W.,

Washington, D. C. 20006,

Counsel for the Petitioners.

Epwarp A. TuRVILLE,

825 Florida Office Building,

St. Petersburg, Florida 33701,

Of Counsel.

SEPTEMBER 1970.

APPENDIX

Al

APPENDIX A

OPINIONS BELOW

1. First Opinion

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 28639

Leon W. Brap.ey, Jr., a minor, by Leon W. Branptey, Sr.,

his father and next friend, et al., Plaintiffs-Appellants,

V.

Boarp or Pwustiic INstrRucTION oF PINELLAS CouNTY,

Fioripa, et al., Defendants-A ppellees.

Appeal From the United States District Court for

the Middle District of Florida

(July 1, 1970)

Before Stmpson, Morcan and INGRAHAM,

Cireuit Judges.

Morcan, Cireuit Judge: The issue presented in this

school desegregation case is whether the Pinellas County,

Florida, public school system is unitary. The district

court, by its final order of August 4, 1969, held that

the desegregation plan submitted by the school board for

the year 1969-1970 (hereinafter, the school board’s plan)

effectively ‘‘converted the old dual system to a unitary

A2

system in which racial discrimination is eliminated’’.’ The

school board’s plan has not been put into effect pending

this appeal. From the district court’s order, plaintiffs

filed notice of appeal to this court on September 12, 1969.

Upon oral argument and this court’s request for addi-

tional findings of fact, the district court entered its sup-

plemental findings on April 28, 1970.

Tested against the six criteria of Green v. County

School Board of New Kent County, 391 U.S. 430 (1968)

—faculty, transportation, staff, facilities, extracurricular

activities, and student body composition—and the end to

be achieved as set out in Alexander v. Holmes County

Board of Education, 396 U.S. 19 (1969)—that the school

system no longer operate as a dual system based on race

or color but as a ‘‘unitary school system within which

no person is to be effectively excluded from any school

beeause of race or color’’—we find the school board’s

plan, as approved by the district court, to be deficient in

both faculty and staff assignment throughout the system

and in student assignment in certain schools. In keeping

with the approach of Ellis v. The Board of Public In-

struction of Orange County, Florida, 5 Cir., 1970,

F. 2d [No. 20,124, February 17, 1970]; Mannings v.

The Board of Public Instruction of Hillsborough County,

Florida, 5 Cir., 1970, F. 2d [No. 28,643, May

11, 1970]; and Davis v. Board of School Commissioners of

Mobile County, 5 Cir., 1970, —— F. 2d [No. 29,332,

June 8, 1970]; we will review all the requisites of Green,

supra, to make a final determination as to whether Pinellas

County has been effectively converted into a unitary

system.

The Pinellas school system covers the whole of Pinellas

County with a land area of 265 square miles. The student

1 The school board’s plan has been revised and amended through-

out the course of litigation. The figures used below are based

on school population by race as of April 23, 1970.

A3

population of the system is approximately 80,000, of which

12,700, or 16%, are Negro students. Approximately 9,500

of these Negro students live in the City of St. Peters-

burg, in the southernmost part of the system.

Since 1964, when the original complaint in this case

was filed up to the 1969-70 school year, there has been

a gradual decrease in the percentage of students in all-

Negro schools throughout the entire system. In the 1969-

70 school year, there were 102 schools in operation—72

elementary, 19 junior high, and 11 senior high schools.

During the 1969-70 school year, 12 elementary schools, one

junior high and one senior high school served all-Negro

or ‘virtually all-Negro student bodies. Approximately

8,400, or 66%, of the 12,700 Negro students in the entire

system at all levels attended all-Negro or virtually all-

Negro schools.

Under the school board’s plan, the plan approved by

the district court, there were to be 107 schools in op-

eration—75 elementary, 20 junior high, and 12 senior high

schools. At the elementary level, nine would remain all-

Negro or virtually all-Negro. There would also remain

the one all-Negro junior high and one all-Negro senior

high school. Under this plan, 8,200 out of the 12,700 Negro

students in the entire system at all grade levels, or 64%,

would attend all-Negro or virtually all-Negro schools.

The school board’s plan does not change the already-

existing majority-to-minority transfer policy, which dur-

ing the 1969-70 school year has resulted in the transfer

of only 62 students.? The plan also leaves intact two

bi-racial committees operating in Pinellas County. We

do not disapprove of either of these two features of the

school board’s plan.

*Fifty of these students, however, were Negroes transferring

from all-Negro to predominantly white schools.

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FacuLty AND STAFF

The faculty and staff desegregation standard enunciated

in Singleton v. Jackson Municipal Separate School Dis-

trict, 5 Cir. 1969, 419 F. 2d 1211, requires assignment

on a basis whereunder the ratio of Negro to white teachers

and staff members in each school is substantially the same

as each such ratio is to teachers and staff in the entire

school system. This standard has not been met in the

Pinellas County school system. It is clear that the board’s

temporary assignment of two minority teachers to each

school and its promise to meet the 87.5%-white—12.5%-

Negro faculty ratio in the future does not comply with

our Singleton decision. The board is therefore directed

to formulate faculty assignments which comply with

Singleton by July 15, 1970.

TRANSPORTATION, FACILITIES, AND EXTRACURRICULAR

ACTIVITIES

From the record, it appears that the Pinellas County

transportation system is operated on a desegregated basis.

The district court, through its approval of the school

board’s Exhibits D-1, D-2, and D-3, found that the trans-

portation is equally available to both Negro and white

students in Pinellas County.

The facts indicate that the extracurricular activities

and facilities of the Pinellas County schools are also op-

erated on a desegregated basis. There is no complaint

regarding transportation, extracurricular activities or fa-

cilities.

The district court is directed to enter an order requir-

ing the continued desegregation of facilities and extra-

curricular activities and to include the requirements of

Singleton v. Jackson, supra, as to transportation, school

construction, and school site selection as a part of the

order.

Ad

STUDENT ASSIGNMENT

We have examined the board’s proposed plan, and, on

our own initiative, have considered various means of

modifying the plan so as to eliminate all-Negro or virtually

all-Negro student bodies while at the same time main-

taining the neighborhood school concept of the school

system. The Pinellas school board does not purport to

use the strict neighborhood assignment system that was

applicable in Ellis, supra, but rather employs attendance

zones based on discretionary zone lines. We find that

the situation can be greatly improved by pairing some

schools located in close proximity to each other, as was

done in Mannings, supra, and by redrawing the zone lines

in several instances.

- In the following pages of this opinion, we undertake

to set out the modifications of the school board’s plan

which will be necessary to achieve an assignment of

students commensurate with a unitary system. The modi-

fications reduce the number of all-Negro or virtually all-

Negro elementary schools from nine, as contemplated by

the district court-approved board’s plan, to three. The

modification will desegregate all junior and senior high

schools in the system. Instead of 64% of the Negro stu-

dents being assigned to all-Negro schools, as would be

the case under the school board’s plan, the result under

our modifications will be 14.2% (1,738 students instead

of 8,700). Every Negro child will attend an integrated

school at some time during his educational career.

Attached as Appendix A is a chart depicting student

body composition by school and race under the district

court-approved board plan and the plan as modified by

this court. The district court is directed to implement

the board’s plan as herein modified before August 1, 1970.

The majority of the Negro population in the Pinellas

school system is situated in a densely populated 40-square

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A6

block area in the middle of St. Petersburg. Nine of the

11 schools which would remain all-Negro or virtually all-

Negro under the board’s plan are located within this

area—seven elementary, one junior high, and one senior

high. Together, these nine schools enrolled 7,019, or 58%,

of the entire Negro student population in the school sys-

tem, during the 1969-70 school year.

The other two all-Negro or virtually all-Negro schools

remaining under the board’s plan are located in the urban

area of the City of Clearwater in the northern sector

of Pinellas County. Both are elementary.’

As for these two all-Negro Clearwater schools, we find

that each can be effectively desegregated through pairing

with schools with contiguous attendance zones. Curtis

Elementary (360 Negroes, 0 white) and Palmetto Ele-

mentary (331 Negroes, 0 white) are clustered in the City

of Clearwater in close proximity to North Ward (Clw.)

(163 Negroes, 289 whites) to the southwest and Kings

Highway Elementary (0 Negrves, 718 whites) to the north-

east. It is OrpERED that the Curtis Elementary attendance

zone be paired with that of Kings Highway Elementary,

and that the Palmetto attendance zone be paired with

that of North Ward Elementary (Clw.). The resulting

enrollment in each of the new paired zones would be:

Curtis-Kings Highway, 360 Negroes, 718 whites; Palmetto-

North Ward (Clw.), 494 Negroes, 289 whites.

Turning to the nine schools in St. Petersburg which

would remain all-Negro or virtually all-Negro under the

school board’s plan, the district court found that as to

3 We find that the board’s plan for converting Union Academy

into a special education center and distributing its Negro student

body between Sunset Hills and Tarpon Springs and for imple-

menting a similar plan for Lincoln Heights, and for reassignment

of students to desegregate Ridgecrest all are effective in desegre-

gating the three formerly all-Negro schools in the upper part of

Pinellas County.

SPREE END oD ah DOR Ree ee clgEe > Se ie ee a ke i RT OE. . ~ nd nner nen 2

ced SEmEY

AT

these schools ‘‘no feasible plan’’ of desegregation was

shown other than the school board’s plan. On remand

for supplemental findings, the district court found that

no additional white students would be assigned to these

nine schools if the attendance zone lines were changed so

that a neighborhood school attendance policy (as set out

in Ellis, supra) were followed.

We find that the all-Negro or virtually all-Negro junior

high school and senior high school in St. Petersburg, as

well as four of the seven elementary schools which would

remain all-Negro or virtually all-Negro under the board’s

plan, can be desegregated through pairing and relocation

of zone lines without creating impractical attendance zones

or inordinate transportation problems. In setting out our

modifications below for the schools in St. Petersburg, we

refer to the zone lines and attendance figures utilized in

the system during the 1969-70 school year and apply our

modifications to those zone lines and attendance figures.

In so doing, we reject the zones proposed by the board

for schools hereinafter discussed and OrpER implemen-

tation of the following modifications of existing zones.

ELEMENTARY SCHOOLS

The 1969-70 attendance zone of Glenoak Elementary (560

Negroes, 7 whites) is contiguous with that of Lakewood

Elementary (10 Negroes, 504 whites). Many of the white

students in the Lakewood zone have traveled farther to

attend Lakewood than they would have to travel were

they to attend Glenoak. As for the remaining students

in both zones, since the two schools are only one and

one-half miles apart, these two contiguous zones are to

be paired. Under such pairing, the resulting racial com-

position of the new school zone would be 570 Negroes

and 511 whites.

The 1969-70 attendance zone lines of Lakeview Elemen-

tary .(772 Negroes, 4 whites) are bounded on the south

A8

by a thin finger of Child’s Park Elementary school zone.

Immediately thereunder is the Bay Point attendance zone

(4 Negroes, 727 whites) and the Bay Vista attendance

zone (8 Negroes, 645 whites), both of which are large, and

both Bay Vista and Bay Point school buildings are in

the southern part of their respective zones. Many stu-

dents in these two zones live closer, or as close to the

Lakeview school as they do to Bay Point or Bay Vista.

We Orper the zone lines of Lakeview to be redrawn so

as to incorporate at least 400 white students living in

the northern parts of the Bay Point and Bay Vista zones

and the intervening finger of the Child’s Park zone. This

additional influx of students into Lakeview would not

strain that facility as the school board’s plan itself specifies

a 1,555 student capacity in that facility. The resulting

proportion of Negroes to whites in the formerly all-Negro

Lakeview Elementary School would be 772 Negroes and

404 whites.

On the western side of the 40-square-block concentration

of Negroes in St. Petersburg area is Wildwood Elemen-

tary attendance zone (752 Negroes, 1 white) bounded on

the west by Child’s Park Elementary and Fairmont Ele-

mentary (66 Negroes, 182 whites), and bounded on the

north by West Central Elementary (147 Negroes, 332

whites). It is Orperep that the zone lines of Fairmont

be redrawn so as to incorporate 80 Negro students from

the southeastern segment of the Wildwood zone. Wild-

wood and West Central are OrpERep to be paired, as the

schools are only one and one-half miles apart. Under

such modification, the proportion of Negro and white stu-

dents within the resulting two attendance zones would

be: Fairmont—146 Negroes, 182 whites; ‘Vildwood-West

Central—819 Negroes, 333 whites.

In the northeast section of the 40-square-block area is

Campbell Park Elementary (701 Negroes, 0 whites). It

is bounded on the north by the attendance zones of Wood-

ee

A9

lawn Elementary (4 Negroes, 270 whites) and on the

northeast by North Ward (2 Negroes, 298 whites). The

zone lines of Woodlawn are ORDERED to be redrawn so

as to incorporate 160 Negro students from the northern

part of the Campbell Park zone. Most of the students so

incorporated would not have to travel any farther to

attend Woodlawn as they reside equidistant from both

schools. Also, Campbell Park is OrpEREp to be paired

with North Ward, and the zone lines of the resulting

new zone are to be extended into the Woodlawn zone to

incorporate 100 white students presently in the Woodlawn

zone into the new zone. Those elementary students in

the northernmost corner of North Ward (approximately

50), closer to the North Shore Elementary School to

the north, should be assigned to the North Shore at-

tendance zone. The proportion of Negroes to whites re-

sulting in each of the two new zones would be: Woodlawn

---164 Negroes, 170 whites; North Ward-Campbell Park—

543 Negroes, 348 whites.

There are two additional schools that are to ve com-

pleted and staffed by the beginning of the Fall of 1970

—School ‘‘A’’, in upper Pinellas County, and School ‘‘G’’,

in St. Petersburg. The district court is directed to in-

corporate these schools, and any other additional elemen-

tary facilities which have heretofore not been in operation,

into the system on a desegregated basis, and as will be

consistent with the above modifications.

Juntor High ScHooLts

The board plan leaves one all-Negro junior high school,

Sixteenth Street Junior High (1,573 Negroes, 0 whites).

Its attendance zone lines are nearly co-extensive with the

40-square-block Negro concentration in St. Petersburg. Of

the four contiguous junior high school attendance zones,

that of Disston to the west is the zone in which the school

itself is closest to Sixteenth Street School. Disston Junior

We RH iis tubes Bea

Po ia ai Tie “l

A10

High (29 Negroes, 971 whites) is approximately three

miles from Sixteenth Street Junior High. All of the other

contiguous junior high attendance zones are more eX-

pansive and the junior high schools therein are more

distant.

Having considered the capacities of the schools, the

distances to be traveled, and the alternatives involving

the other junior high schools in St. Petersburg, Disston

Junior High is Orverep to be paired with Sixteenth Street

Junior High within their present 1969-70 attendance zones.*

The resulting proportion of Negroes to whites in the new

zone would be 1,602 Negroes and 971 whites.

Senior HicH ScHOOLS

Likewise, one senior high school, Gibbs Senior High

School (992 Negroes, 1 white) would remain all-Negro

under the board plan. Its attendance zone boundaries are

exactly co-extensive with the 40-square-block area, and

all three contiguous senior high school attendance zones

extend outward covering more than twice the area of the

Gibbs zone. Two of the three contiguous zones have the

high schools situated in relatively close proximity to Gibbs

_St. Petersburg Senior High (128 Negroes, 1082 whites)

being one and one-half miles away, and Boca Ciega Senior

High (65 Negroes, 1873 whites) being two miles distant.

Desegregation of Gibbs must be accomplished by either

of the two following methods:

(1) Extend the zone lines of the Boca Ciega at-

tendance zone into the southwestern section of the

Gibbs zone so as to incorporate 200 Negroes into

the Boca Ciega zone. Then draw a new zone line

running north to south between Gibbs Senior High

4 Since the capacity of Sixteenth Street Junior High is twice that

of Disston Junior High, a feasible pairing plan would assign one

of the three grades of these ‘‘middle schools’’ to Disston, and

assign the other two grades to Sixte enth Street.

All

and St. Petersburg Senior High so as to divide the

remaining. 800 Negroes in the Gibbs zone and the

1082 whites in the St. Petersburg High zone equally

between St. Petersburg Senior High and Gibbs Senior

High. The resulting proportion of Negro to white

in these three redrawn zones would be: Boca Ciega

—265 Negroes, 1873 whites (the additional 200 Negroes

in the Boca Ciega facil‘ty would still leave that facility

short of capacity) ; St. Petersburg—528 Negroes, 541

whites; Gibbs—400 Negroes, 541 whites.

(2) An alternative for the desegregation of Gibbs

Senior High is to close the present Gibbs facility

and redraw the zone lines of the three contiguous

high school zones so as to incorporate in equal num-

bers the Negro students in the present Gibbs zone. The

district court is OrpERED to give consideration to the

views of the school board and the advice given the

school board by the bi-racial committees as to the

choice between the alternatives. The school facilities

in the three contiguous high school zones are large

and would not be strained by the influx of the ad-

ditional 330 Negro students.

In conclusion, we feel that the modifications herein or-

dered to be implemented before the September Term of

the 1970-71 school year effectively convert the Pinellas

County student body composition into a unitary school

system. It is noted that these modifications, while leav-

ing three all-Negro elementary schools in the center of St.

Petersburg, reduce from 64% to 14.2% the percentage of

Negroes attending all-Negro schools, and all these Negroes

will later attend desegregated junior and senior high

schools.

The district court is further directed to order that a

bi-racial committee similar in function to that established

in Ellis, supra, be implemented and that the majority to

A12

minority transfer policy be made available to all students.

See pages 10-11 of Mobile, supra, slip opinion, as to the

operational correlation between tnese two features of the

school plan for the 1970-71 school year.

Dericrencies To Be REMEDIED

We conclude that three of the six elements which go to

make up a unitary school system have been accomplished

in Pinellas County: transportation, extracurricular activi-

ties, and facilities. The deficiencies in faculty and staff

desegregation must be remedied not later than July 10,

1970, and those in student composition not later than

August 1, 1970, on the basis heretofore set out.

Once the orders and directions have been effeciuated

in accordance with the standards heretofore set forth, the

district court must retain jurisdiction for a reasonable

time to insure that the system is operated in a constitu-

tional manner. As the Supreme Court stated in Green,

supra, ‘‘. .. whatever plan is adopted will require evalu-

ation in practice, and the court should retain jurisdiction

until it is clear that the state-imposed segregation has

been completely removed’’. 391 U.S. 489.

ReEveRSED and REMANDED with directions.

Al13

APPENDIX ‘‘A’”’

Projected Student

Projected Student Enrollment Under

Enrollment Modifications

Under Board’s Ordered by

Proposed Plan this Court

School Negroes Whites Negroes Whites

Elementary

Anona Elem. 120 520 120 520

Azalea Elem. 0 831 0 831

Bay Point Elem. 1 724 + 477

Bay Vista Elem. 0 725 8 495

Bear Creek 0 370 0 370

Belcher Elem. 1 779 1 779

Belleair 70 680 70 680

Blanton 0 610 0 ~=- 610

Campbell Park 730 0 543 348

Childs Park 200 190 200 190

Clearview Ave. 0 568 0 568

Cross Bayou 0 580 0 580

Curtis Elem. 325 0 360 718

Dunedin Elem. 37 792 37 792

Fairmount Park 70 195 146 182

Fifty-Fourth Ave. 0 643 0 643

Forest Hills 0 224 0 224

Fuguitt 0 740 92 595

Glenoak 356 4 570 511

Gulf Beaches 0 377 0 377

Gulfport 6 504 6 504

Harris Elem. 0 194 0 194

High Point Elem. 0 605 0 605

Jordan Elem. 463 0 487 0

Kings Highway 0 760 Paired with

Curtis Elem.

Lakeview 1090 6 772 404

Lakewood 0 586 Paired with

Glenoak Elem.

rrr. 6580 2 eI.

Al4

Projected Student

Projected Student Enrollment Under

Enrollment Modifications

Under Board’s Ordered by

Proposed Plan this Court

School Negroes Whites Negroes Whites

Largo Central 1 659 81 478

Lealman Ave. 0 487 0 487

Lincoln Heights 0 0 0 0

Lynch Elem. 0 934 0 934

Madeira Beach Elem. .0 553 0 553

Melrose 644 0 636 0

Mildred Helms 0 850 116 681

Mt. Vernon 0) 445 0 445

North Shore 0 570 0 600

North Ward-Clw. 170 280 Paired with

Palmetto Elem.

North Ward-S.P. 14 306 Paired with

Campbell Park El.

Northwest 0 385 0 385

Norwood 0 292 0 292

Oakhurst 0 900 133 787

Oldsmar 8 317 8 Si7

Orange Grove 0 370 0 370

Ozona 0 ani 0 205

Palm Harbor 0 _ 225 0 225

Palm -tto 330 0 494 289

Pasadena 0 500 0 500

Perkins 694 0 615 0

Pinellas Park 0 708 0 708

Plumb 0 675 0 675

Ponce de Leon 0 775 0 775

Ridgecrest 380 0 64 416

Rio Vista 0 481 0 481

Roser Park 150 107 150 107

Safety Harbor Flem. 97 422 229 729 .

San Jose 20 714 20 714

Seminole Elem. 1 639 1 639

Al5

Projected Student

Projected Student Enrollment Under

Enrollment Modifications

Under Board’s Ordered by

Proposed Plan this Court

School Negroes Whites Negroes Whites

Seventy-Fourth St. 0 520 0 520

Shore Acres 0 651 0 651

Skycrest 64 535 64 535

Skyview 0 700 0 700

South Ward 45 515 45 515

Starkey 0 950 0 950

Sunset Hills 32 290 90 322

Sunshine 0 205 0 205

Tarpon Springs 60 574 154 620

Tyrone Elem. 0 680 0 680

Union Academy 139 0 0 0

West Central 215 357 Paired with

Wildwood Elem.

Westgate 0 714 0 714

Wildwood 836 0 819 333

Woodlawn 31 269 164 170

Elementary ‘‘A’’ 68 585 68 585

Elementary ‘‘D”’ 0 652 ) 652

Junor High

Azalea Jr. 0 1275 0 1275

Bay Point Jr. 0 950 0 950

Clw. Comprehensive 100 250 100 250

Disston Jr. 20 980 Paired with

Sixteenth St.

Dunedin Jr. 150 1016 150 1016

Kennedy Jr. : 219 1081 219 1081

Largo Jr. 200 1400 200 1400

Lealman Jr. 0 875 0 875

Madeira Beach Jr. 1 1015 1 1015

Meadowlawn Jr. 77 1173 77 1173

A16

Projected Student

Projected Student Enrollment Under

Enrollment Modifications

Under Board’s Ordered by

; Proposed Plan This Court

School Negroes Whites Negroes Whites

Oak Grove Jr. 0 1350 0 1350

Palm Harbor Jr. 0 217 0 217

Pinellas Park Jr. 0 1450 0 1450

Riviera Jr. 0 1310 0 1310

Safety Harbor Jr. 70 468 70 468

Seminole Jr. 110 890 110 890

Sixteenth St. Jr. 1600 0 1602 971

Southside Jr. 475 225 475 225

Tarpon Springs Jr. 145 455 145 455

Tyrone Jr. 0 1205 0 1205

Senior High

: Boca Ciega Sr. 162 2228 265** 1873

Clearwater Sr. 150 2150 150 2150

Dixie Hollins Sr. 15 2385 15 2385

Dunedin Sr. 175 1325 175 1325

Gibbs Sr. 1075 38 400** 541

Lakewood Sr. 201 1149 124 1136

Largo Sr. 125 1750 125 1750

Northeast Sr. 0 2200 0 2200

‘ St. Petersburg Sr. 160 1064 528** 541

‘ Seminole Sr. 1 1524 1 1524

é Tarpon Springs Sr. 75 635 75 635

** The figures given are the results achieved if the first alterna-

tive for senior high schools is adopted. Figures resulting if the

second alternative is adopted are:

N WwW N WwW

Boea Ciega 395 1873 St. Petersburg 458 1082

Gibbs 0 0 Lakewood 509 955

oe jue

.

Al7

2. Opinion on Rehearing

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 28639

Leon W. Brap.ey, Jr., a minor, by Leon W. Brab ey, Sr.,

his father and next friend, et al., Plaintiffs-Appellants,

Vv.

Boarp or Pusiic Instruction oF PINELLAS County,

Foripa, et al., Defendants-A ppellees.

Appeal From the United States District Court for

the Middle District of Florida

(July 28, 1970)

ON PETITION FOR REHEARING

Before Stmpson, Morcan and Incranam,

Circuit Judges.

Morean, Circuit Judge: In the light of subsequent

changes made by the school board in attendance zones

and enrollment figures, and in order to incorporate into

the Pinellas County school system new schools not shown

in the original record, all as set out in the school board’s

motion for rehearing, the prior opinion and judgment of

this court of July 1, 1970, are withdrawn and the following

opinion and orders are substituted therefor.

The issue presented in this school desegregation case is

whether the Pinellas County, Florida, public school sys-

tem is unitary. The district court, by its final order of

August 4, 1969, held that the desegregation plan submitted

by the school board for the year 1969-1970 (hereinafter,

Ite

Shag RRS

PAR BELAY IN LS

SEPT POPES APRS OTR IF «=

59 Pr A PSST PELE EOE, LTA NITY

Al18

the school board’s plan) effectively ‘‘converted the old

dual system to a unitary system in which racial discrimina-

tion is eliminated’’.! The school board’s plan was put

into effect for the 1969-70 school year even though plain-

tiffs appealed. From the district court’s order, plaintiffs

filed notice of appeal to this court on September 12, 1969.

Upon oral argument and this court’s request for additional

findings of fact, the district court entered its supplemental

findings on April 18, 1970.

Tested against the six criteria of Green v. County

School Board of New Kent County, 391 U.S. 480 (1968)—

faculty, transportation, staff facilities, extracurricular ac-

tivities, and student body composition—and the end to be

achieved as set out in Alexander v. Holmes County Board

of Education, 396 U.S. 19 (1969)—that the school system _

no longer operate as a dual system based on race or color

but as a ‘‘unitary school system within which no person

is to be effectively excluded from any school because of

race or color’’—we find the school board’s plan, as ap-

proved by the district court, to be deficient in student

assignment in certain schools. In keeping with the ap-

proach of Ellis v. The Board of Public Instruction of

Orange County, Florida, 5 Cir., 1970, 423 F. 2d 203;

Mannings v. The Board of Public Instruction of Hills-

borough County, Florida, 5 Cir., 1970, —— F. 2d [No.

28,643, May 11, 1970]; we will review all the requisites of

Green, supra, to make a final determination as to whether

Pinellas County has been effectively converted into a uni-

tary system.

The Pinellas school system covers the whole of Pinellas

County with a land area of 265 square miles. The student

population of the system is approximately 80,000, of which

12,700, or 16%, are Negro students. Approximately 9,500

1 The school board’s plan has been revised and amended through-

out the course of litigation. The figures used below are based

on school population by race as of April 23, 1970.

PD IER Pe PONE INL ae, RO a tenet So ve nk BP IE BEd ean 2 . ee oO EAI ce ae

a ee

A19

of these Negro students live in the City of St. Petersburg,

in the southernmost part of the system.

Since 1964, when the original complaint in this case was

filed up to the 1969-70 school year, there has been a gradual

decrease in the percentage of students in all-Negro schools

throughout the entire system. In the 1969-70 school year,

there were 102 schools in operation—72 elementary, 19

junior high, and 11 senior high schools. During the 1969-70

school year, 12 elementary schools, one junior high and

one senior high school served all-Negro or virtually all-

Negro student bodies. Approximately 8,400, or 66%, of

the 12,700 Negro students in the entire system at all levels

attended all-Negro or virtually all-Negro schools.

Under the school board’s plan, the plan approved by

the district court, there were to be 107 schools in opera-

tion—75 elementary, 20 junior high, and 12 senior high

schools. At the elementary level, nine would remain all-

Negro or virtually all-Negro. There would also remain

the one all-Negro junior high and one all-Negro senior

high school. Under this plan, 8,200 out of the 12,700 Negro

students in the entire system at all grade levels, or 64%,

would attend all-Negro or virtually all-Negro schools.

The school board’s plan does not change the already-

existing majority-to-minority transfer policy, which dur-

ing the 1969-70 school year has resulted in the transfer

of only 62 students.2 The plan also leaves intact two

bi-racial committees operating in Pinellas County. We

do not disapprove of either of these two features of the

the school board’s plan.

Facutty anD STAFF

The faculty and staff desegregation standard enunciated

in Singleton v. Jackson Municipal Separate School Dis-

* Fifty of these students, however, were Negroes transferring

from all-Negro to predominantly white schools.

A20

trict, 5 Cir., 1969, 119 F. 2d 1211, requires assignment on

a basis whereunder the ratio of Negro to white teachers

and staff members in each school is substantially the same

as each such ratio is to teachers and staff in the entire

school system. This standard has been met in the Pinel-

las County school system. According to the school board’s

‘(Instructional Personnel Assignments’’ submitted to this

court and dated July 15, 1970, each school system has a

faculty composition which closely approximates the 87.5%-

white —12.5%-Negro ratio in compliance with Singleton.

The Board is OrpERED to implement this faculty and staff

assignment for its 1970-71 school year.

TRANSPORTATION, FACILITIES, AND

EXTRACURRICULAR ACTIVITIES

From the record, it appears that the Pinellas County

transportation system is operated on a desegregated basis.

The district court, through its approval of the school

board’s Exhibits D-1, D-2, and D-3, found that the trans-

portation is equally available to both Negro and white

students in Pinellas County.

The facts indicate that the extracurricular activities

and facilities of the Pinellas County schools are also op-

erated on a desegregated basis. There is no complaint re-

garding transportation, extracurricular activities or fa-

cilities.

The district court is directed to enter an order requiring

the continued desegregation of facilities and extracurricu-

lar activities and to include the requirements of Singleton

v. Jackson, supra, as to transportation, school construc-

tion, and school site selection as a part of the order.

Strupent ASSIGNMENT

We have examined the board’s proposed plan, and,

on our own initiative, have considered various means

of modifying the plan so as to eliminate all-Negro or

A21

virtually all-Negro student bodies while at the same time

maintaining the neighborhood school concept of the school

system. The Pinellas school board does not purport to

use the strict neighborhood assignment system that was

applicable in Ellis, supra, but rather employs attendance

zones based on discretionary zone lines. We find that the

situation can be greatly improved by pairing some schools

located in close proximity to each other, as was done in

Mannings, supra, by redrawing the zone lines in several

instances, and by grouping several schools into a common

attendance zone.

In the following pages of this opinion, we undertake

to set out the modifications of the school board’s plan

which will be necessary to achieve an assignment of

students commensurate with a unitary system. The modi-

fications reduce the number of all-Negro or virtually all-

Negro elementary schools from nine, as contemplated by

the district court-approved board’s plan, to three. The

modification will desegregate all junior and senior high

schools in the system. Instead of 64% of the Negro

students being assigned to all-Negro schools, as would be

the case under the school board’s plan, the result under our

modifications will be 14.2% (1,738 students instead of

8,700). Every Negro child will attend an integrated school

at some time during his educational career.

Attached as Appendix A is a chart depicting student

body composition by school and race under the district -

court-approved board plan and the plan as modified by

this court. The district court is directed to implement the

board’s plan as herein modified before August 14, 1970.

The majority of the Negro population in the Pinellas

school system is situated in a densely populated 40-square-

block area in the middle of St. Petersburg. Nine of the

11 schools which would remain all-Negro or virtually all-

Negro under the board’s plan are located within this

area— seven elementary, one junior high, and one senior

on a 6 a

NT NRRL A

Binh aR Ea Me si STB i RI ae le CRN AL WTR | eee ESE.

A22

high. Together, these nine schools enrolled 7 019, or 58%

of the entire Negro student population in the school system,

during the 1969-70 school year.

The other two all-Negro or virtually all-Negro schools

remaining under the board’s plan are located in the urban

area of the City of Clearwater in the northern sector of

Pinellas County. Both are elementary.®

As for the two all-Negro schools in Clearwater, the

board has paired Palmetto Elementary (formerly 331

Negroes, 0 white) with Kings Highway (formerly 0 Negro,

718 whites), which schools have contiguous attendance

zones and are less than one mile apart. Such a pairing

has resulted in an enrollment in the schools of 260 Negroes,

650 whites as of the end of the 1969-70 school year. In

light of these facts, we find that Palmetto has been effec-

tively desegregated under this pairing plan.

The remaining all-Negro school in the Clearwater area

is Curtis Elementary (362 Negroes, 0 white). The board’s

earlier attempt to desegregate this school by extending its

attendance zone lines northward into the Dunedin attend-

ance zone has not effectively achieved this goal. There

being no alternatives submitted by the parties, Curtis is

OrpereD to be paired with Dunedin Elementary (651

Negroes, 849 whites) which is approximately two miles to

the north. The relative capacities of the schools could

be best utilized by housing in Curtis the fifth and sixth

grades from both schools and in Dunedin the first through

the fourth grades from both schools, though the ultimate

grade levels and student assignments are to be made by

3 We find that the board’s plan for converting Union Academy

into a special education center and distributing its Negro student

body between Sunset Hills and Tarpon Springs and for imple-

menting a similar plan for Lincoln Heights. and for reassignment

of students to desegregate Ridgecrest all are effective in desegre-

gating the three formerly all-Negro schools in the upper part of

Pinellas County.

‘

|

:

AIT OI PE RIEL AEN LS REIT OTE

A23

the board. The resulting racial composition in the paired

zone is 329 Negroes and 868 whites.

Turning to the nine schools in St. Petersburg which

would remain al! Negro or virtually all-Negro under the

school board’s plan, the district court found that as to

these schools ‘‘no feasible plan’’ of desegregation was

shown other than the school board’s plan. On remand for

supplemental findings, the district court found that no

additional white students would be assigned to these nine

schools if the attendance zone lines were changed so that

a neighborhood school attendance policy (as set out in

Ellis, supra) were followed.

We find that the all-Negro or virtually all-Negro junior

high school and senior high school in St. Petersburg, as

well as four of the seven elementary schools which would

remain all-Negro or virtually all-Negro under the board’s

plan, can be desegregated through pairing, grouping, and

relocating of zone lines without creating impractical attend-

ance zones or inordinate transportation problems. In

setting out our modifications below for the schools in St.

Petersburg, we refer to the zone lines and attendance

figures projected by the board for the 1970-71 school year.

These lines slightly modify the 1969-70 attendance zone

lines in that a small number of Negroes are zoned out of

the 40-square-block area and into adjacent zones. How-

ever, the seven elementary, the junior high and the senior

high schools remain all- or virtually all-Negro. We, there-

fore, OrpER implementation of the following modifications

of these projected zones for the 1970-71 school year.

ELEMENTARY ScHOOLS

Glenoak Elementary (490 Negroes, 7 whites) is bounded

on the south by two predominantly white elementary

schools—Lakewood Elementary (77 Negroes, 431 whites)

and, further south, Bay Vista (7 Negroes, 482 whites )—

which are one and one-half miles and two and one-half

ii Sl ncn

A24

miles, respectively, by road from Glenoak. It is OrpEREep

that Glenoak Elementary be desegregated by implement-

ing either of the following alternative plans:

(1) By pairing Glenoak and Lakewood, resulting in

a racial composition in the new school zone of 567

Negroes and 438 whites, or

(2) By grouping Glenoak, Lakewood and Bay Vista,

resulting in a racial composition in the one zone in

which these three schools are placed of 574 Negroes

and 920 whites.

Under either alternative, the school facilities are to be

employed in such a manner that will best utilize the school’s

capacities and as will prove, in the opinion of the board,

to be the most educationally sound.

Lakeview Elementary (704 Negroes, 4 whites) is

bordered on the south by a new school, Maximo Elemen-

tary (78 Negroes, 552 whites), and one mile further south

is Bay Point Elementary (3 Negroes, 452 whites). Maxi-

mo and Bay Point are two and three miles, respectively,

from Lakeview. It is Orperep that Lakeview Elementary

be desegregated by implementing either the following

alternative plans:

(1) By pairing Lakeview and Maximo, resulting in

a racial composition in the new school zone of 782

Negroes and 556 whites, or

(2) By grouping Lakeview, Maximo and Bay Point,

resulting in a racial composition in the one zone in

which the three schools are placed of 785 Negroes and

1008 whites.

Again, the manner in which the grade levels and enroll-

ment figures are to be allotted in each school under either

alternative must best utilize the schools’ capacities and

prove, in the opinion of the board, to be most educationally

sound.

A25

Wildwood Elementary (752 Negroes, 1 white) is in the

northwestern part of the 40-square-block area. It is

OrvereD that this school be desegregated in the following

manner: The Forest Hills zone line is to be extended into

the southeast corner of the Bear Creek zone so as to pick

up 50 white elementary students and bring that school

down to its capacity. The western zone line of the Fair-

mount Park zone is to be moved westward in to the Forest

Hills zone so as to pick up 100 white elementary students,

bringing both Forest Hills and Fairmount Park (with one

relocatable placed on the Fairmount Park site) close to

their relative capacities. The West Central zone line is to

be extended into the southeastern corner of the Mt. Vernon

zone so as to take into the West Central zone 100 white ele-

mentary students which it can accommodate by placing two

relocatables on the West Central site. These zone lines hav-

ing been thus redrawn, the three schools, Fairmount Park

(66 Negroes, 282 whites), West Central (147 Negroes, 432

whites), and Wildwood (752 Negroes, 1 white), all of which

have contiguous attendance zones. and are approximately

one and one-half miles equi-distant from each other, are

OrvERED to be grouped, with the grade levels and enroll-

ments in each of the three schools to be allotted in the

same manner described in the two preceding paragraphs.

The racial composition resulting from such a grouping is

965 Negroes and 715 whites.

Campbell Park (701 Negroes, 0 white) is in the north-

eastern section of the 40-square-block area, and is bordered

on all sides by desegregated schools—West Central (147

Negroes, 432 whites), Euclid (180 Negroes, 53 whites), and

Roser Park (165 Negroes, 141 whites)—or all-Negro

schools Jordan and Melrose to the southwest. However,

approximately one mile further north, there are four all-

white schools. Campbell Park is OrpEerEp to be desegre-

gated in the following manner: The zone lines of Wood-

lawn are to be extended into the Norwood attendance zone

so as to pick up 100 white elementary students. The east-

A26

ernmost part of tue Woodlawn zone, east of Ninth Street

N., is to be zoned into the Euclid zone (approximately 50 or

more white elementary students). The Euclid zone is then

to be extended further north into the southern part of the

North Shore zone to pick up another 50 white elementary

students. While this rezoning leaves Norwood and North

Shore short of capacity (42 and 85 students, respectively),

it brings both Woodlawn and Euclid—both formerly under-

capacity—to full capacity. The zone lines of North Ward

Elementary are to be extended northward into the southern

part of the North Shore zone so as to pick up 50 white

elementary students, bringing North Shore below capacity

and requiring full capacity at North Ward, with two re-

locatables being situated on that site. Having thus re-

drawn these zone lines, the four schools, Woodlawn (4

Negroes, 320 whites), Euclid (180 Negroes, 153 whites),

North Ward (2 Negroes, 348 whites), and Campbell Park

(701 Negroes, 0 white), are OrpERED to be grouped with

the grade levels and enrollments in each school to be

allotted by the school board in the same manner as set

forth in the preceding paragraphs. The fourth through

the sixth grades in the four zones could be housed in Camp-

bell Park and Euclid, while the first through the third

grades could be housed in Woodlawn and North Ward,

though such allocation is only one of many ways in which

the school board could effectuate this grouping. Such a

grouping would involve no more distant traveling than two

and one-half miles (the greatest distance among the schools

being only two miles) and would result in a racial composi-

tion in the one zone in which the four schools are placed of

887 Negroes and 821 whites.

The district court is directed to incorporate any other

additional elementary facilities which have heretofore not

been in operation into the system on a desegregated basis

and as will be consistent with the above modifications.

A27

Juniokn HicH ScHOoLs

The board plan leaves one all-Negro junior high school,

Sixteenth Street Junior High (1,573 Negroes, 0 white).

Its attendance zone lines are nearly co-extensive with the

40-square-block Negro concentration in St. Petersburg.

Of the four contiguous junior high school attendance zones,

that of Disston to the west is the zone in which the school

itself is closest to Sixteenth Street School. Disston Junior

High (29 Negroes, 971 whites) is approximately three miles

from Sixteenth Street Junior High. All of the other con-

tiguous junior high attendance zones are more expansive

and the junior high schools therein are more distant.

Having considered the capacities of the schools, the dis-

tances to be traveled, and the alternatives involving the

other junior high schools in St. Petersburg, Disston Junior

High is Orpverep to be paired with Sixteenth Street Junior

High within their present 1969-70 attendance zones.‘ The

resulting proportion of Negroes to whites in the new zone

would be 1,602 Negroes and 971 whites.

Senior Hich ScHoous

Likewise, one senior high school, Gibbs Senior High

School (992 Negroes, 1 white) would remain all-Negro

under the board plan. Its attendance zone boundaries are

exactly co-extensive with the 40-square-block area, and all

three contiguous senior high school attendance zones ex-

tend outward covering more than twice the area of the

Gibbs zone. Two of the three contiguous zones have the

high schools situated in. relatively close proximity to

Gibbs—St. Petersburg Senior High (128 Negroes, 1,082

whites) being one and one-half miles away, and Boca

* Since the capacity of Sixteenth Street Junior High is twice that

of Disston Junior High, a feasible pairing plan would assign one

of the three grades of these ‘‘middle schools’? to Disston, and

assign the other two grades to Sixteenth Street.

A28

Ciega Senior High (65 Negroes, 1,873 whites) being two

miles distant. Desegregation of Gibbs must be accom-

plished by either of the two following methods:

(1) Extend the zone lines of the Boca Ciega attend-

ance zone into the southwestern section of the Gibbs

zone so as to incorporate 200 Negroes into the Boca

Ciega zone. Then draw a new zone line running north

to south between Gibbs Senior High and St. Peters-

burg Senior High so as to divide the remaining 800

Negroes in the Gibbs zone and the 1,082 whites in the

St. Petersburg High zone equally between St. Peters-

burg Senior High and Gibbs Senior High. The result-

ing proportion of Negro to white in these three re-

drawn zones would be: Boca Ciega—265 Negroes,

1,873 whites (the additional 200 Negroes in the Boca

Ciega facility would still leave that facility short of

capacity); St. Petersburg—528 Negroes, 541 whites;

Gibbs—400 Negroes, 541 whites.

(2) An alternative for the desegregation of Gibbs

Senior High is to close the present Gibbs facility and

redraw the zone lines of the three contiguous high

school zones so as to incorporate in equal numbers the

Negro students in the present Gibbs zone. The district

court is OrpERED to give consideration to the views of

the school board and the advice given the school board

by the bi-racial committees as to the choice between

the alternatives. The school facilities in the three

contiguous high school zones are large and would not

be strained by the influx of the additional 330 Negro

students.

In conclusions, we feel that the modifications herein

ordered to be implemented before the September Term of

the 1970-71 school year effectively convert the Pinellas

County student body composition into a unitary school

system. It is noted that these modifications, while leaving

A29

three all-Negro elementary schools in the center of St.

Petersburg, reduce from 64% to 14.2% the percentage of

Negroes attending all-Negro schools, and all these N egroes

will later attend desegregated junior high and senior high

schools.

The district court is further directed to order that a bi-

racial committee similar in function to that established in

Ellis, supra, be implemented and that the majority to

minority transfer policy be made available to all students.

See pages 10-11 of Mobile, supra, slip opinion, as to the

operational correlation between these two features of the

school plan for the 1970-71 school year.

Dericrencties To Be REMEDIED

We conclude that only one of the six elements which go

to make up a unitary school system is deficient—student

body composition. This deficiency must be remedied not

later than August 14, 1970, as heretofore set out.

Once the orders and directions have been effectuated

in accordance with the standards heretofore set forth,

the district court must retain jurisdiction for a reasonable

time to insure that the system is operated in a constitu-

tional manner. As the Supremé Court stated in Green,

supra, ‘‘... whatever plan is adopted will require evalua-

tion in practice, and the court should retain jurisdiction

until it is clear that the state-imposed segregation has been

completely re:oved’’. 391 U.S. 439.

This court, having modified the opinion of July 1, 1970,

subject to such modifications, the appellees’ petition for

rehearing is Dentep.

School

Elementary

Anona Elem.

Azalea Elem.

Bay Point Elem.

Bay Vista Elem.

Bear Creek

Belcher lem.

Belleair

Blanton

Campbell Park

Childs Park

Clearview Ave.

Cross Bayou

Curtis Elem.

Dunedin Elem.

Euclid

Fairmount Park

Fifty-Fourth Ave.

Forest Hills

Fuguitt

Glenoak

Gulf Beaches

Gulfport

Harris Elem.

High Point Elem.

Jordan Elem.

Kings Highway

Lakeview

A30

APPENDIX ‘‘A’”’

Projected Student

Enrollment

Under Board’s

Proposed Plan

Negroes Whites

120 520

0 831

1 724

0 725

0 370

1 779

70 680

0 610

730 0

200 190

0 568

0 580

325 0

37 792

180 53

70 195

0 643

0 224

0 740

356 4

0 377

6 504

0 194

0 605

463 0

0 760

1,090 6

Projected Student

Enrollment Under

Modifications

Ordered by

this Court

Negroes Whites

120 520

0 831

See Opinion

See Opinion

1 354

1 779

70 680

0 610

See Opinion

200 190

0 568

0 580

329 868

Paired with

Curtis Elem.

See Opinion

See Opinion

0 643

1 161

92 595

See Opinion

0 377

6 504

0 194

0 605

487 0

Paired with

Palmetto

See Opinion

A31

Projected Stittent

Projected Student Enrollment U™4er

Enrollment Modificati?™

Under Board’s Ordered bY

Proposed Plan This Cous*

School Negroes Whites Negroes Whites

Lakewood See Opinion

Largo Central 1 659 81 478

Lealman Ave. 0 487 0 487

Lincoln Heights 0 0 0 0

Lynch Elem. 0 934 0 934

Madeira Beach Elem. 0 903 0 553

Maximo 78 552 See Opinion

Melrose 644 9 636 0

Mildred Helms 0 850 116 681

Mt. Vernon 0 445 0 364

North Shore 0 570 0 449

North Ward-Clw. 170 280 170 280

North Ward-S.P. 14 306 See Opinion

Northwest 0 385 0 385

Norwood 0 292 0 292

Oakhurst 0 900 133 787

Oldsmar 8 317 8 317

Orange Grove 0 370 0 370

Ozona 0 205 0 205

Palm Harbor 0 225 0 295

Palmetto 331 0 260 650

Pasadena 0 500 0 500

Perkins 694 0 615 0

Pinellas Park 0 708 0 708

Plumb 0 675 0 675

Ponce de Leon 0 775 0 775

Ridgecrest 380 0 64 416

Rio Vista 0 481 0 481

Roser Park 150 107 150 107

Safety Harbor Elem. —_97 422 229 729

San Jose — 20 714 20 714

Seminole Elem. 1 » 639 1 639

A32

Projected Student

Projected Student Enrollment Under

Enrollment Modifications

Under Board’s Ordered by

Proposed Plan this Court

School Negroes Whites Negroes Whites

Seventy-Fourth St. 0 520 0 520

Shore Acres 0 651 0 651

Skycrest 64 535 64 &35

Skyview 0 700 0 700

South Ward 45 515 45 515

Starkey 0 950 0 950

Sunset Hills 32 290 90 322

Sunshine 0 205 0 205

Tarpon Springs 60 574 154 620

Tyrone Elem. 0 680 0 680

Union Academy 139 0 0 0

West Central 215 357 See Opinion

Westgate 0 714 0 714

Wildwood 836 0 See Opinion

Woodlawn 31 269 See Opinion

Elementary ‘‘A”’ 68 585 68 585

Elementary ‘‘D’’ 0 . 652 0 652

Junior High

Azalea Jr. 0 1275 0 1275

Bay Point Jr. 0 950 0 950

Clw. Comprehensive 100 250 100 250

Disston Jr. 20 980 Paired with

Sixteenth St.

Dunedin Jr. 150 1016 150 1016

Kennedy Jr. 219 1081 219 1081

Largo Jr. 200 1400 200 1400

Lealman Jr. 0 875 0 875

Made*.a Beach Jr. 1 1015 1 1015

Meadowlawn Jr. 77 1173 77 1173

Oak Grove Jr. 0 1350 0 1350

A33

Enrollment Under

Projected Student Modifications

Enrollment Ordered by

Under Board’s this Court

Proposed Plan Projccted Student

School Negroes Whites Negroes Whites

Palm Harbor Jr. 0 217 0 217

Pinellas Park Jr. 0 1450 0 1450

Riviera Jr. 0 1310 0 1310

Safety Harbor Jr. 70 468 70 468

Seminole Jr. 110 890 110 890

Sixteenth St. Jr. 1600 - 0 1602 971

Southside Jr. | 475 225 475 225

Tarpon Springs Jr. 145 455 145 455

Tyrone Jr. 0 1205 0 1205

Senior High

Boca Ciega Sr. 162 2228 265** 1873 _»

Clearwater Sr. 150 2150 150 2150

Dixie Hollins Sr. 15 2385 15 2385

Dunedin Sr. 175 1325 175 1325

Gibbs Sr. 1075 38 400** 541

Lakewood Sr. 201 1149 124** 1136

Largo Sr. 125 1750 125 1750

Northeast Sr. 0 2200 0 2200

St. Petersburg Sr. 160 1064 028** 541

Seminole Sr. 1 1524 1 1524

Tarpon Springs Sr. 75 635 75 635

** The figures given are the results achieved if the first alterna-

tive for senior high schools is adopted. Figures resulting if the

second alternative is adopted are:

N W N W

Boca Ciega 395 1873 Lakewood 509 955

Gibbs 0 0 St. Petersburg 458 1082

A34

APPENDIX B

DISTRICT COURT JUDGMENT FOLLOWING

REMAND

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

No. 64-98-Civ. T.

Leon W. Brap.ey, Jr., a minor, by * ton W. Bran ey, Sr.

his father and next friend, et al, Plaintiffs,

Vv.

Boarp or Pustic INSTRUCTION OF PINELLAS CounNTY,

Foripa, et al, Defendants.

FinaL ORDER

On August 4, 1969, this Court entered a Final Order

approving Defendant School Board’s Revised Plan, as

amended, for desegregation of the Pinellas County School

System and concluded that said plan effectively ‘‘converted

the old dual system to a unitary system in which racial

discrimination is eliminated.’’ On September 12, 1969,

Plaintiffs filed a Notice of Appeal from this Order to the

United States Fifth Circuit Court of Appeals and, after .

oral argument, the Fifth Circuit requested supplemental

findings of fact. Pursuant to this order, supplemental

findings of fact were filed by this Court on April 28, 1970.

On July 1, 1970, the Fifth Circuit reversed the August

4, 1969, Order of this Court and remanded this cause with

certain directions. Bradley v. Board of Public Instruc-

tion of Pinellas County, Florida, et al, No. 28639, — F.2d

— (5th Cir., July 1, 1970). However, in light of subse-

quent changes made by the School Board in attendance

A35

zones and enrollment figures, and in order to incorporate

into the Pinellas County School System new schools not

shown in the original record, the Fifth Circuit withdrew

its July 1, 1970, decision and substituted in lieu thereof a

decision dated July 29, 1970. Bradley v. Board of Public

Instruction of Pinellas County, Florida, et al, No. 28639,

— F.2d — (5th Cir., July 29, 1970).

The Circuit Court tested the Pinellas County School Sys-

tem against the six criteria enumerated in Green v.

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

430 (1968) i.e., faculty, transportation, staff, facilities,

extracurricular activities and student body composition,

and the end to be achieved as set out in Alexander v. Holmes

County Board of Education, 396 U.S. 19 (1969) that the

schoo] system no longer operate as a dual system based

upon race or color but as a ‘‘unitary school system within

which no person is to be effectively excluded from any

school because of race or color’’, and made the following

conclusions :

Facuuty anp STAFF

The faculty and staff desegregation standard enunciated

in Singleton v. Jackson Municipal Separate School Disirict,

419 F.2d 1211 (5th Cir. 1969) requires assignment on a

basis whereunder the ratio of Negro to white teachers and

staff members in each school is substantially the same as

each such ratio is to teachers and staff in the entire school

system. The Fifth Circuit concluded that this standard has

been met in the Pinellas County School System in light

of the Board’s ‘Instructional Personnel Assignments”’

dated July 15, 1970, which indicated that each school

system has a faculty composition which closely approxi-

mates the 87.5% white - 12.5% Negro ratio in compliance

with Singleton.

A36

TRANSPORTATION, FACILITIES AND EXTRACURRICULAR

ACTIVITIES

After an examination of the record, the Circuit Court

concluded that the Pinellas County transportation system

is being operated on a desegregated basis and is equally

available to both Negro and white students in Pinellas

County.

The same was found to be true concerning the extracur-

ricular activities and facilities of the Pinellas County

schools.

STUDENT ASSIGNMENT

With respect to student assignment, the Circuit Court

concluded that the Board’s Plan, as approved by this Court,

was deficient. Accordingly, they considered various means

of modifying the plan so as to eliminate all-Negro or vir-

tually all-Negro student bodies while at the same time at-

tempting to maintain the neighborhood school concept

and found that by pairing, redrawing zone lines, and by

grouping several schools into a common attendance zone,

the situation could be greatly improved. The Circuit

Court found that these modifications will reduce the num-

ber of all-Negro or virtually all-Negro elementary schools

from nine to three and will eliminate St. Petersburg Six-

teenth Street Junior High School and Gibbs Senior High

School from being all-Negro.

The Fifth Circuit also found that instead of 64% of

Negro students being assigned to all-Negro schools, the

situation under the School Board’s Plan, the result under

their modification would be 14.2%. Further, every Negro

student would attend an integrated school at some time

during his educational career.

In their decision the Cireu:t Court provided alternative

plans for the desegregation of Glenoak Elementary, Lake-

view Elementary and Gibbs Senior High Schools. In ref-

A37

erence to Gibbs Senior High, the Circuit Court directed

this Court to give consideration to the views of the School

Board and the advice given the Board by the bi-racial

committees before selecting one of the alternatives.

A hearing was held before this Court on August 5, 1970,

at which tinie Defendant filed a Response to the Fifth Cir-

cuit’s decision of July 29, 1970. In this Response, the De-

fendant Board concluded that the most educationally sound

plan would be to group Glenoak Elementary with Lake-

wood and Bay Vista, and further that Lakeview be de-

segregated by grouping Lakeview, Maximo and Bay Point.

Concerning Gibbs Senior High, the Bi-Racial Advisory

Committee recommended to the Defendant Board that the

present Gibbs facility be closed and zone lines for the

three contiguous high schools be redrawn So as to incor-

porate those Negro students in the present Gibbs zone.

Further, the Committee recommended that when Gibbs

reopens it do so as a comprehensive high school. Plaintiffs’

counsel did not object to the Defendants’ conclusions con-

cerning the Glenoak and Lakeview Elementary Schools, nor

did he object to the Bi-Racial Committee’s Suggestion con-

cerning Senior High School.

in its Response, Defendant Board also requests the

approval by this Court of certain proposed grade assign-

ments not specifically decided by the Circuit Court’s Order.

Plaintiffs’ counsel voiced no objections to these requests.

The Court has otherwise considered the Fifth Circuit’s

directive, the Response filed by the Defendant Board, and is

fully advised in the premises. It is therefore, upon con-

sideration,

ORDERED AND DECREED:

1. That the Defendant School Board’s Plan, as amended

and revised by the United States Fifth Circuit Court of

Appeals in the decision of Bradley v. Board of Public

OMAN IR rt me tap aM il ed | ERE OP ERAT RET ON Fo ORE anseenemas ARAN

i Sa

DRA SHEAR GL AY aA ce rad RANE Toa'b tas Seggib QURAN RN age AA

A38

Instruction of Pinellas County, Florida, No. 28639, — F.2d

— (July 29, 1970), be, and the same is hereby APPROVED

and ApopTED by this Court, and the Defendant School Board

is directed to put said plan into operation forthwith and by

August 14, 1970, for conduct of its school system for the

1970-1971 school year.

2. That the Defendant School Board is ordered to im- .

plement its ‘‘Instructional Personnel Assignments’’ which

pertains to faculty and staff assignment for its 1970-1971

school year.

3. That the Defendant School Board is directed and

ordered to maintain the continued desegregation of facil-

ities and extracurricular activities.

4. That the transportation system shall be completely

re-examined regularly by the Superintendent, his staff, and

the School Board. Bus routes and the assignment of stu-

dents to the buses will be designed to insure the trans-

portation of all eligible pupils on a non-segregated and

otherwise non-discriminatory basis.

5. That all future school construction, school consolida-

tion, and site selection (including the location of any tem-

porary classrooms) in the system shall be done in a manner

which will prevent the recurrence of the dual school struc-

ture. .

6. That Curtis Elementary be paired with Dunedin Ele-

mentary, located approximately two miles to the north.

Curtis Elementary will consist of kindergarten and grades

5 and 6. Dunedin Elementary will have a kindergarten and

also grades 1, 2, 3 and 4.

7. That Glenoak Elementary be desegregated by group-

ing Glenoak, Lakewood and Bay Vista, resulting in a racial

composition in the one zone in which these three schools

are placed of 574 Negroes and 920 whites. Glenoak will

A39

serve kindergarten and grades 5 and 6; Lakewood will serve

kindergarten and grades 1, 2, 3 and 4; and Bay Vista, kin-

dergarten and grades 1, 2, 3 and 4.

8. It is ordered that Lakeview Elementary be desegre-

gated by grouping Lakeview, Maximo and Bay Point, re-

sulting in a racial composition in the one zone in which

the three schools are placed of 785 Negroes and 1,008

whites. Lakeview will consist of kindergarten and grades

5 and 6; Maximo, grades 1, 2, 3 and 4; and Bay Point of

kindergarten and grades 1, 2, 3 and 4.

9. It is ordered that Wildwood Elementary School be

desegregated in the following manner: The Forest Hills

zone line is to be extended into the southeast corner of the

Bear Creek zone so as to pick up 50 white elementary stu-

dents and bring that school down to its capacity. The

Western zone line of the Fairmount Park zone is to be

moved westward into the Forest Hills zone So as to pick

up 100 white elementary students, bringing both Forest

Hills and Fairmount Park (with one relocatable placed

on the Fairmount Park site) close to their relative capac-

ities. The West Central zone line is to be extended into

the southeastern corner of the Mt. Vernon zone so as to

take into the West Central zone 100 white elementary stu-

dents which it can accommodate by placing two relocatables

on the West Central site. These zone lines having been

thus redrawn, the three schools, Fairmount Park (66 Ne-

groes, 282 whites), West Central (147 Negroes, 432 whites),

and Wildwood (752 Negroes, 1 white), all of which have

contiguous attendance zones and are approximately one

and one-half miles equidistant from each other, are ordered

to be grouped. The racial composition resulting from

such a grouping is 965 N egroes and 715 whites. Under this

plan West Central will serve kindergarten and grades 1

and 2; Wildwood will serve kindergarten and grades 3, 4

and 5; and Fairmount Park will serve kindergarten and

grade 6.

EEE LIAL IES) OR EF

LOT ELLER ILS CEN LE LE LT

SELES RE TTL EL IE RETIRE ELT We RE

SPH RS TROA RUNS eS F Ss NINN eID ORO NNRE

Nieeho eats

Ses 5

ah

ne, VOPR

A38

Instruction of Pinellas County, Florida, No. 28639, — F.2d

— (July 29, 1970), be, and the same is hereby APPROVED

and Apoptep by this Court, and the Defendant School Board

is directed to put said plan into operation forthwith and by

August 14, 1970, for conduct of its school system for the

1970-1971 school year.

2. That the Defendant School Board is ordered to im-

plement its ‘‘Instructional Personnel Assignments’’ which

pertains to faculty and staff assignment for its 1970-1971

school year.

3. That the Defendant School Board is directed and

ordered to maintain the continued desegregation of facil-

ities and extracurricular activities.

4, That the transportation system shall be completely

re-examined regularly by the Superintendent, his staff, and

the SCuvul DVaiU. DDS iuucedd aiuu LUA aoosguuscme us “Sob

dents to the buses will be designed to insure the trans-

portation of all eligible pupils on a non-segregated and

otherwise non-discriminatory basis.

5. That all future school construction, school consolida-

tion, and site selection (including the location of any tem-

porary classrooms) in the system shall be done in a manner

which will prevent the recurrence of the dual school struc-

ture.

6. That Curtis Elementary be paired with Dunedin Ele-

mentary, located approximately two miles to the north.

Curtis Elementary will consist of kindergarten and grades

5 and 6. Dunedin Elementary will have a kindergarten and

also grades 1, 2, 3 and 4.

7. That Glenoak Elementary be desegregated by group-

ing Glenoak, Lakewood and Bay Vista, resulting in a racial

composition in the one zone in which these three schools

are placed of 574 Negroes and 920 whites. Glenoak will

89

serve kindergarten ana graues 5 and 6; Lakewood will serve

kindergarten and grades 1, 2, 3 and 4; and Bay Vista, kin-

dergarten and grades 1, 2, 3 and 4.

8. It is ordered that Lakeview Elementary be desegre-

gated by grouping Lakeview, Maximo and Bay Point, re-

sulting in a racial composition in the one zone in which

the three schools are placed of 785 N egroes and 1,008

whites. Lakeview will consist of kindergarten and grades

5 and 6; Maximo, grades 1, 2, 3 and 4; and Bay Point of

kindergarten and grades 1, 2, 3 and 4.

9. It is ordered that Wildwood Elementary School be

desegregated in the following manner: The Forest Hills

zone line is to be extended into the southeast corner of the

Bear Creek zone so as to pick up 50 white elementary stu-

dents and bring that school down to its capacity. The

Western zone line of the Fairmount Park zone is to be

anuveu’ westivenu lint ule @Ures’ AIS zune so as to pick

up 100 white elementary students, bringing both Forest

Hills and Fairmount Park (with one relocatable placed

on the Fairmount Park site) close to their relative capac-

ities. The West Central zone line is to be extended into

the southeastern corner of the Mt. Vernon zone so as to

take into the West Central zone 100 white elementary stu-

dents which it ean accommodate by placing two relocatables

on the West Central site. These zone lines having been

thus redrawn, the three schools, Fairmount Park (66 Ne-

groes, 282 whites), West Central (147 N egroes, 432 whites),

and Wildwood (752 Negroes, 1 white), all of which have

contiguous attendance zones and are approximately one

and one-half miles equidistant from each other, are ordered

to be grouped. The racial composition resulting from

such a grouping is 965 Negroes and 715 whites. Under this

plan West Central will serve kindergarten and grades 1

and 2; Wildwood will serve kindergarten and grades 3, 4

and 5; and Fairmount Park will serve kindergarten and

grade 6.

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10. Campbell Park is ordered to be desegregated in the

following manner: The zone lines of Woodlawn are to be

extended into the Norwood attendance zone so as to pick up

100 white elementary students. The easternmost part of

the Woodlawn zone, east of Ninth Street North, is to be

zoned into the Euclid zone (approximately 50 or more white

elementary students). The Euclid zone is then to be ex-

tended further north into the southern part of the North

Shore zone to pick up another 50 white elementary students.

While this rezoning leaves Norwood and North Shore short

of capacity (52 and 85 students, respectively), it brings

both Woodlawn and Euclid—both formerly under capacity

—to full capacity. The zone lines of North Ward Ele-

mentary are to be extended northward into the southern

part of the North Shore zone so as to pick up 50 white

elementary students, bringing North Shore below capacity

and requiring full capacity at North Ward, with two re-

locatables being on that site. Having thus redrawn these

zone fines, the four sdnovis, Wedlaiwn “& Years, 2

whites), Euclid (180 Negroes, 153 whites), North Ward

(2 Negroes, 348 whites), and Campbell Park (701 Negroes,

0 whites), are ordered to be grouped. Under this plan,

North Ward will serve grades 1 and 2; Euclid will serve

kindergarten and grade 3; Woodlawn will serve kinder-

garten and grades 1 and 2; and Campbell Park will serve

kindergarten and grades 4, 5 and 6.

11. Disston Junior High is ordered to be paired with

Sixteenth Street Junior High within their present 1969-70

attendance zones. Grades 8 and 9 will attend Sixteenth

Street Junior High, and grade 7 will attend Disston.

12. That Gibbs Senior High School be desegregated by

closing the present Gibbs facility and redrawing the zone

lines of the three contiguous high school zones so as to in-

corporate in equal numbers the Negro students in the

present Gibbs zone.

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13. That a bi-racial committee of the type descril,, di

Ellts v. Board of Public Instruction of Orange Ch ty

Florida, 423 F.2d 203 (1970) be established, if this h: aa

already been done. This committee shall serve in et

visory capacity to the School Board in the areas < f the

operation of the majority to minority transfer rul th

promulgation and maintenance of zone lines, and in”. ““°

site location. school

14, That the school district shall permit any ‘ad ‘

attending a school in which his race is in the majo U@°?

choose to attend another school where his race is 1'Y to

minority. Further, all transferring students must bé@. the

transportation, if they desire it, and transferees ar: 8'V@

given priority for space. Davis v. Board of Schoo to

missioners of Mobile County, — F.2d — (5th Ci Com-

29332, June 8, 1970). ‘y No.

15. That this Court retains jurisdiction of this ca:

the. entering of. such. further, orders_ag.may, be ng Se for

or advisable in the enforcement of this Order and te>*'

that the Pinellas County School System is operate,y ~

constitutional manner.

Done and Onpzrep at Tampa, Florida, this 6th ‘day of

August, 1970.

/s/ JosErH P. Lizs

United States District Judge