Petition for Writ of Certiorari — School Board of Orange County v. Ellis

| _ INTHE

| FS Supreme Court of the United

OcToBER TERM, 1972

»

THE ScHoot Boarp or Orance County, FLorDA,

Petitioner,

Vv.

EvELYN R. ELLs, Ev AL.,

Respondents.

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PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

JAMES W. MARKEL

221 South Knowles Avenue

Post Office Drawer 1690

Winter Park, Florida 32789

Attorney for Petitioner

* Purss or Brnon S. Avams Pumrrmve, Inc., Wasmmrorom, D. C.

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Constitutional Provisions Involved ................. 2

iin WE wn cennccedseeene 3

1, Proceedings in the District Court ............ 3

2. The Decision of the Court of Appeals ........ 4

Reasons for Granting the Writ ..................... 4

EE EE RETR TS het a TO 10

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Opinion of the United States Court of Appeals for

the Fifth Circuit, entered August 17, 1972 ...... la

Orders of the United States District Court for the

Middle District of Florida, Orlando Division:

Entered July 22, 1971 .............ccccccuce 4a

Entered August 16, 1971 ................0005. lla

Entered September 17, 1971 ................. 25a

CITATIONS

Brown v. Board of Education (Brown II), 1955, 349

| __ RAER R NS PeRSeT 6

Ellis v. Board of Public Instruction of Orange County,

Florida, 5 Cir. 1970, 423 F.2d 203 .............. 3

Swann v. Charlotte-Mecklenburg Board of Education,

Wy © OD ii vii dic hodvandawcdvs 3, 4, 5, 6, 7,8

Fourteenth Amendment, Constitution of the United

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Dieta St SE Ab 7 aah ER BPA RO

IN THE

Supreme Court of the United States

OcToBER TERM, 1972

No.

THE ScHooL Board oF ORANGE County, FLoripA,

Petitioner,

v.

EvELYN R. ELLIs, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to

review the order and judgment entered on August 17,

1972, by the United States Court of Appeals for the

Fifth Cireuit.

OPINIONS BELOW

The order, judgment and opinion of the United

States Court of Appeals for the Fifth Circuit entered

August 17, 1972, is set forth in the Appendix, p. 1a.

The opinion of that Court is not yet reported. The

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decisions of the United States District Court for the

Middle District of Florida entered on July 22, 1971, on

August 16, 1971, and on September 17, 1971, are set

forth in the Appendix, pp. 4a, lla, 25a. These decisions

are not reported.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was made and entered on August

17, 1972. The jurisdiction of this Court is invoked

under and pursuant to 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether schools constructed in 1964 and 1966 as

a result of a legal stipulation entered into by the

parties in a school desegregation action constitutes dis-

eriminatory action by school authorities.

2. Whether in a school desegregation action a school

board has an obligation under traditional concepts of

equity jurisprudence to correct in 1972 the effects of a

legal stipulation filed in 1964.

3. Whether a finding of the District Court that fvr-

ther desegregation of one school is not feasible under

the circumstances then existing can be reversed by the

Court of Appeals in the absence of any stated reasons

for reversal.

CONSTITUTIONAL PROVISIONS INVOLVED

This petition involves the Equal Protection clause

of the Fourteenth Amendment to the Constitution of

the United States.

ASE OPERA TT ED STEER ON Se NE PIES BIS PANE RM ng .

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STATEMENT OF THE CASE

1. Proceedings in the District Court

In May of 1971, the respondents, following this

Court’s decision of Swann v. Charlotte-Mecklenburg

Bd. of Ed., 402 U.S. 1 (1971), filed a motion for fur-

ther relief before the District Court. (The Orange

County school system previously had been adjudged

unitary and fully desegregated in February of 1970.

Ellis v. Board of Public Instruction of Orange County,

Florida, 5 Cir. 1970, 423 F. 2d 203.) The respondents’

motion prayed that the District Court restructure the

student body compositions of eleven schools attended

predominantly or solely by black students, alleging that

the racial composition of the schools was a “continuing

effect of past and present discriminatory action” by

petitioner. (emphasis supplied) |

The District Court conducted hearings to determine

if the racial composition of the eleven schools con-

stituted a ‘‘vestige”’ of a state-imposed dual school sys-

tem. The District Court ruled that four of the schools

(Hungerford, Maxey, Orange Center, and Richmond

Heights) were not vestiges of past discriminatory

action since these schools were constructed after re-

spondents in 1964 entered into a joint stipulation re-

ceding with prejudice from any objections to the con-

struction of these schools. (This litigation was begun

in 1962.) The District Court further found that de-

segregation of one school (Eccleston) was not ‘fea-

sible” in that a wide band of schools surrounding this

school had mixed student bodies making it imprac-

ticable to achieve further mixing. The District Court

ordered petitioner to prepare and implement a de-

segregation plan for the remaining six schools. Peti-

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tioner appealed the District Court’s order while re.

spondents filed a cross appeal.

2. The Decision of the Court of Appeals

Approximately one year after the entry of the final

order by the District Court, the Court of Appeals en-

tered its order and opinion.

The Court of Appeals held that two of the fou

schools (Hungerford and Maxey) constructed after the

stipulation were desegregated. The Court ruled that

two of these schools (Orange Center and Richmond

Heights) together with Eccleston, must be desegre-

gated further. The Court of Appeals gave no specific

reasons for overturning the findings of the District

Court as to the non-discriminatory origin of the schools

built by stipulation. Likewise the Court of Appeals set

forth no reasons for overturning the District Court's

finding that numerical desegregation of Eecleston was

not feasible.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals should be re-

viewed in that it is in conflict with and erroneously

applies the decision of this Court of Swann v. Char-

lotte Mecklenburg Board of Education, 402 U.S. 1

(1971). This Court is the proper forum to decide and

clarify the important questions of Constitutional law

presented.

1. There is no Constitutional violation requiring the

exercise of judicial power unless school authorities

create or maintain racially segregated schools.

This Court has been presented with virtually every

nuance and variation of governmental policy to sep-

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arate pupils solely on the basis of race. Each time this

Court has exposed se*ool authorities to rigid Constitu-

tional scrutiny and has never failed to strike down

inherently unequal treatment of pupils based upon

racial considerations even when these considerations

are masked behind legal arguments. However, this

Court has never been called upon to decide the issue

of whether a school system must be held responsible

for the actions of the attorneys for the plaintiffs ap-

proving the construction of schools.

The issue presented by this petition transeends what

may appear to be the final legal grumblings of a school

board enmeshed in desegregation litigation since 1962.

The goal expressed by this Court in Swann, supra, at

page 32 that neither school authorities nor district

courts ‘are constitutionally required to make year by

year adjustments of the racial composition of student

bodies” becomes an unrealized dream if schoo] authori-

ties are required to correct the results of actions and

agreements undertaken by their adversaries in litiga-

tion. Whatever changes may occur in schools which

are included in current desegregation plans, school

authorities can never effectively counter a future

charge that they contributed to and are responsible

for the educational success or failure of these schools,

uiless they can be assured that present legal proceed-

ings participated in and approved by the litigants will

not be held to be unconstitutional. Therefore, this

petition does not present the narrow issue of the fate

of three schools, but rather presents the broad issue of

Whether there are limits to the Constitutional duties

of school authorities in the area of school desegregation

When, as in this cause, the action of school authorities

Was non-diseriminatory on its face since it was ap-

6

proved by all parties. One does not need to indulge

in soothsaying to conclude that today’s desegregation

plan will be the catalyst of tomorrow’s litigation. The

forces urging compensatory education lie waiting to

strike down desegregation plans approved or consented

to by the representatives for the present class actions.

This Court should grant a writ of certiorari to clarify

whether a legal stipulation relied upon by the petitioner

is merely an historical anomaly affecting Orange

County alone or whether all pleadings approved by the

litigants are non-discriminatory and thus legally

binding.

2. Remedial action taken by District Courts in de-

segregation actions is governed by traditional equitable

concepts. This petition seeks to test whether these

equitable considerations referred to in Brown v. Boar!

of Education (Brown I1), 1955, 349 U.S. 294, and em-

phasized in Swann, supra, govern the actions of the

parties as well as those of the District Courts.

The logical positive postulated by the Court of Ap-

peals that the involved schools constructed following

the joint stipulation were part of the dual school sys-

ter which existed prior to that Court’s decision of

1970 which ruled Orange County to be unitary is super

ficially appealing, but constitutionally incorrect. Peti-

tioner has set forth above that the present racial com-

position of a school constructed with the legal approval

of the adverse litigants in desegregation litigation cau

in no sense be the “‘result of present or past discrim-

inatory action on their (school authorities’) part”.

Swann, supra, p. 26. Another and a deeper issue it-

volving fundamental fairness is raised in this petition

an issue of “‘substance not semanties’’, Swann, supré.

p. 31.

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In 1964, Orange County approved additional taxes

to fund a bond issue of twenty-five million dollars,

which funds were to be used to build or improve

schools. Orange Center and Richmond Heights schools

were listed in the bond election as proposed new

schools. On May 13, 1964, the attorneys for the peti-

tioner and for the respondents filed a joint stipulation

in which respondents receded with prejudice from

their motion for preliminary injunction which sought

to enjoin the spending of the bond proceeds. The stip-

ulation waived any and all rights to appeal. Attached

to the stipulation was a desegregation plan which re-

quired the re-location of two proposed schools, one of

which was Orange Center. There is no factual dispute

that respondents clearly and unequivocally raised the

issue of school location and later clearly and unequivo-

cally approved the location and construction of Orange

Center and Richmond Heights. As this Court has

stated in Swann, p. 16: “As in any equity case, the

nature of the violation determines the scope of the

remedy”. The petitioner did not violate any Constitu-

tional or equitable duty in constructing these schools.

The respondents were at the time they raised the issue

of school construction in litigation with petitioner and

were in the strongest legal position since the spending

of the funds for needed school construction was neces-

sary to insure adequate educational opportunity. The

respondents were not in doubt as to the Constitutional

rights they were asserting. In addition, they were in

a favored position to gain redress of these asserted

rights.

Petitioner urges that the past actions of respondents

be governed by traditional equitable concepts includ-

ing the doctrines of clean hands and estoppel. This

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issue likewise transcends the particular circumstances

present in Orange County since the conduct of both

parties in Constitutional litigation must be governed

by prescribed standards if the litigation is to come

to an end.

3. The power of a District Court to fashion a de-

segregation remedy is broad and virtually unlimited

The District Court must, however, exercise its remedial

diseretionary powers in a manner which is “‘reasen-

able’’, “feasible” and “‘workable”’. Swann, p. 31. The

reviewing function of the Court of Appeals is to deter-

mine whether the District Court corrected, “by a bal-

aneing of the individual and collective interests the

condition that offends the Constitution.”’ Siann, p. 16.

As to one-race schools, the remedy of the District

Court may allow certain schools to remain “all or

largely of one race until new schools can be provided

or neighborhood patterns change”. Swann, p. 25.

The District Court found that desegregation of

Eccleston was not feasible:

“A wide belt of schools to the north, east and

south of Eeeleston school contains schools whieb

are already integrated with considerable numbers

of black students, so that pairing or clustering of

Eceleston with any of such schools would accom

plish little in the way of desegregation. The pair-

ing of Eccleston with a school beyond sueh a belt

would require cross busing of the youngest school

children (grades one through six ) which this Court

finds is not feasible.”’ (App. p. 34a)

The District Court concluded that with the effective

use of the mandatory majority to minority transfer

policy and the expected growth requiring a new school

Eccleston could remain without alteration:

‘Plaintiffs’ counsel takes the position that Ee

cleston and Washington Shores cannot remain with

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the present racial compositions. This Court notes

that in Charlotte Mecklenburg the Supreme Court

specifically commended the use of the majority to

minority transfer as first promulgated in this liti-

gation (and the Supreme Court referred to this

ease by name). If it had been the intention of

Charlotte Mecklenburg to uire the immediate

termination of all black or substantially all black

schools (with which that portion of the opinion

dealt) it would have been completely unnecessary

to recommend the use of the majority to minority

transfers. This Court construes Charlotte Meck-

lenburg as contemplating under certain conditions

the existence of all black or nearly all black schools

and that in such cases the majority to minority

transfer right can be used by those desiring

transfers.

As the expected growth of population—both

white and black—develops west and southwest of

Eeeleston, a new look should then be taken at the

possibility of invoking a feasible plan to alter

the racial composition of that school and any site

selected for a new elementary school in the growth

area should be made with that as an objective.”

(App. p. 36a)

The Court of Appeals’ treatment of the District

Court's findings is deficient. The Court of Appeals

ruled that Eccleston was part of the dual school sys-

tem, a fact which was found by the District Court and

whieh is acknowledged by the petitioner. Rather than

addressing itself to the correctness of the remedy pro-

posed by the District Court, the Court of Appeals ruled

that Eccleston “be desegregated”. For a number of

years it has been accepted practice of the Court of

Appeals for the Fifth Cirenit to over-rule orders of the

Distriet Courts which are constitutionally deficient. To

the knowledge of petitioner these appellate reviews

have never been undertaken without a showing by the

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Court of Appeals as to why or in what manner the

District Court’s action was erroneous.

The conduct of the Court of Appeals is so great a

departure from the proper course of appellate proceed-

ings that this Court should exercise its power of

supervision.

CONCLUSION

For the reasons set forth above, it is respectfully

urged by petitioner that this petition for writ of cer-

tiorari should be granted.

Respectfully submitted,

James W. MARKEL

221 South Knowles Avenue

Post Office Drawer 1690

Winter Park, Florida 32789

Attorney for Petitioner

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APPENDIX

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APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-2696

Evetyn R. Euuis, et au., Plaintiffs-A ppellees,

v.

Tue Boarp or Pusuic Instruction or ORANGE County,

Forma, Defendant-A ppellant.

Appeal from the United States District Court for the

Middle District of Florida

(August 17, 1972)

Before Bet., Arnswortn, and Gopsoxp, Cireuit J udges.

Bet, Circuit Judge: We are now presented with further

appeals arising out of the efforts to desegregate the Orange

County School system. The appeal was filed by the School

Board and the plaintiffs have filed a cross-appeal.

The School Board strenuously objects to the district

court’s having granted further relief to the plaintiffs fol-

lowing the decision of the Supreme Court in Swann vy.

Charlotte-Mecklenburg Board of Education, 1971, 402 U.S.

1, 91 S.Ct. 1267, 28 L.Ed.2d 554. The School Board con-

tends that the system was finally and conclusively desegre-

gated beginning with the 1970-71 school term in accordance

with our mandate in Ellis v. Board of Public Instruction

of Orange County, Fla., 5 Cir., 1970, 423 F.2d 203. In an

ordinary lawsuit we would agree. School desegregation

law, however, is unlike ordinary law in that the confines of

what is necessary to desegregate a school system were

never settled until the Swann decision, if then, and thus

formerly segregated school districts must comply with that

a8 a supervening decision of the Supreme Court on the

. |

subject. We affirm the orders of the district court grant-

ing further relief to plaintiffs.

In our prior decision, 423 F.2d at 205, supra, we noted

that the Orange County School district was almost the size

of Rhode Island (1,049 square miles). For the 1970-71

school term, there were 98 separate schools housing 82,868

students—82 per cent white and 18 per cent black. The

enrollment increased to 86,705 by the 1971-72 school term.

There were 15,747 black children in the system.

All that remains of the more than a decade of litigation

3 over desegregation of the system is now presented to us in

: the cross-appeal of plaintiffs. First, plaintiffs urge that

five elementary schools have not yet been desegregated.

Second, they resist the closing of two schools having black

student bodies, or alternatively, if closed, they contend that

the protective elements of our decision in Singleton v. Jack-

son Municipal Separate School District, 5 Cir., 1970, 419

F.2d 1211, respecting faculty and staff, must be ordered by

the district court.

The five schools in question are Eccleston, Orange Cen-

ter, Maxey, Richmond Heights and Hungerford. We hold

that Maxey and Hungerford are already desegregated and

that no further relief is required as to them. Maxey, as of

October 26, 1971, had a student body comprised of 360 black

students and 95 white students. On the same day there

were 270 black students and 70 white students at Hunger-

ford. It is to be noted that black students are in the ma-

jority in these schools but the majority to minority trans-

fer provision of Swann, 402 U.S. at 26-7, citing Ellis v.

Orange County, 423 F.2d at 206, may be utilized by those

black students in these schools who seek a majority white

student body. The majority to minority transfer option

with free transportation has been widely used in Orange

County where it is fostered by a bi-racial committee. In

the 1970-71 school term, it was utilized by 2,095 black stu-

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dents out of the total of 14,856 black students in the system

at the time.

Student bodies at Eccleston, Orange Center and Rich-

mond Heights on October 26 were comprised as follows:

Black White

School Students Students

Eccleston 1,249 2

Orange Center 717 29

Richmond Heights iH 0

These schools have never been desegregated and were a

part of the dual school system which existed prior to our

190 decision, supra. We hold that plaintiffs are entitled

to an order requiring that these three schools be desegre-

gated. See Cisneros v. Corpus Christi Independent School

District, 5 Cir., 1972, — F.2d — [No. 71-2397, slip opinion

dated August 2, 1972], for the remedy to be applied in the

desegregation process as to the three schools in question.

The next issue has to do with the order of the district

court permitting the closing of the Holden Street and Web-

ster Avenue Elementary Schools. The findings were that

these schools were closed for the reason that they were

located in heavy traffie areas which had lately become

highly commercialized and the School Board wished to sell

the land on which the schools were located because of its

increase in value. There was no indication whatever of

the schools being closed for racial reasons. We conclude

that the findings of fact of the district court in support of

the decision to allow the closing of these schools were am-

ply supported and not clearly erroneous. See Lee v. Macon

County Board of Education, 5 Cir., 1971, 448 F.2d 746;

and Mims v. Duval County School Board, 5 Cir., 1971, 447

F.2d 1330, for a discussion of the propriety and impro-

priety of closing formerly black schools.

Lastly, plaintiffs complain that the district court erred

M connection with the closing of the schools, in decreeing

ha NN ABE RAEN Aone A ERE COMA ar cI eves eid cle Rien aa i os

Ve pre Ser MONROE ESN ar Le el adie MR Ee 4

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a standard less than that enunciated by this court in Single-

ton v. Jackson Municipal Separate School District, supra,

to protect the faculty and staff of these schools. These

claimed deficiencies are difficult to perceive inasmuch as the

district court ordered, as a condition to closing Holden and

Webster Schools, that the School Board provide any ‘‘dis-

placed principal, staff member, or faculty member ... with

a comparable position.’? However, out of an abundance of

caution, we direct the district court to require that the

School Board comply with the provisions of Singleton v.

Jackson with respect to the faculty and staff at these

schools, as indeed all of the provisions of Singleton are to

be complied with as to the entire school system.

4a

ArrirMep as to the appeal; AFFIRMED in part and re-

versed in part on the cross-appeal; RemanveED for further

proceedings not inconsistent herewith.

Let the mandate issue forthwith.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

No. 1215-Ort-Crv.

Evetyn R. Es, et at, Plaintiffs,

Vv.

Tue Boarp or Pusiic INSTRUCTION OF ORANGE CouNTY,

Fioripa, Defendant.

Order

The plaintiffs have filed another ‘‘ Motion for Further

Relief’? which was set down for hearing and arguments

heard.

A brief review of the more recent history of this case is

in order. On February 17, 1970, the Court of Appeals in

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Wy ae re eee et Pe ee ee ee

Ellis v. Board of Public Instruction of Orange County,

Florida, 423 F. 2d 203 (Sth Cir.) restated the six elements

necessary for effecting a unitary nonracial school system."

That Court then held, p. 204:

**, .. we conclude that the Orange County school

system falls short of being a unitary system only in

one respect: A part of the student desegregation

plan.”’

The Court then proceeded to approve a neighborhood

assignment system based on assigning students nearest the

student’s home up to the capacity of the given school

coupled with a majority to minority transfer right with

guaranteed priority as to space and free transportation.

The Court proceeded to then find, p. 208:

“There are a number of all-white student body

schools in the Orange County system. This is due to

the preponderant white population (82 percent), and

to residential patterns. The three all-Negro student

body schools which will remain, if the neighborhood

assignment system is properly invoked, are also the

result of residential patterns. The majority to minor-

ity transfer provision under the leadership of the bi-

racial committee is a tool to alleviate these conditions

now. Site location, also under the guidance of the bi-

racial committee, will guarantee elimination in the

future. In addition, open housing, Title VIII Civil

Rights Act of 1968, 42 U.S.C.A., § 3601, et seq, Jones

v. Mayer, 1968, 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed.

2d 1189, will serve to prevent neighborhood entrap-

ment.’’

The Court then proceeded in Appendix II of its opinion

'o list the anticipated racial composition of the then all-

———_

‘Composition of student bodies, faculty, staff, transportation,

extracurricular activities, and facilities,

F 6a

Negro schools once the assignment plan required by that

Court was effectuated. The assignment plan as directed

by the Court of Appeals was implemented by the school

: board for the 1970-71 school year with results—as later

: herein specifically set forth—which closely approximated

the expectations of the Fifth Circuit.

: The February 17, 1970 Fifth Cireuit ruling was not ap-

pealed; nor was there an appeal of this Court’s order of

4 March 24, 1970 finding that a unitary school system would

} exist upon implementation of the Fifth Cireuit’s directions

in the February 17, 1970 opinion. The assignment system

as contemplated was implemented and now plaintiffs chal-

‘ lenge not the implementation but the plan itself as insufi-

4 cient under the recent Supreme Court cases of Swan v.

F Charlotte Mecklenburg Board of Edueation, — US. —,

98 L. Ed. 2d 554, 91 S. Ct. —, and Davis v. Board of School

Commissioners of Mobile County, — U.S. —, 28 L. Ed. 2d

577, 91 S. Ct. —.

Specifically plaintiffs object to the present racial compo-

sition of Jones Senior High School, Carver Junior High

School and the following elementary schools: Holden

Street, Hungerford, Maxey, Orange Center, Richmond

Heights, Washington Shores, Webster Avenue, Wheatley

and Eccleston.

Mace bea: MR TAT

The racial composition of each of the schools in Febru-

ary 1970, the anticipated composition for the 1970-71 school

year by the present plan in effect, the September 1970 ae-

E tual composition and the May 1971 actual composition for

each of the challenged schools follows:

Feb. <Antici- Sept. May

School 1970 pated 1970 1971

Jones Sr. Black 1136 (notcon- 815 $03

High School White 121 sidered) 1838 146

Carver Jr. Black 1148 1100 1035 =: 1085

High School White 1 47 81 59

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Feb. Antici- Sept. May

School 1970 ~=pated 1970 1971

Holden Black 717 725 882 765

Street White 1 0 10 8

Hungerford Black 448 393 303 292

White 0 141 56 48

Maxey Black 468 461 390 469

White 1 38 60 67

Orange Black 716 655 655 629

Center White 0 50 22 34

Richmond Black 703 692 782 798

Heights White 0 22 0 0

Washington Black 797 783 727 731

Shores White 0 0 0 3

Webster Black 410 352 262 265

Avenue White 3 76 38 29

Wheatley Black 824 811 898 980

White 0 29 140 195

Eccleston Black 904 889 1044 1191

White 0 0 0 3

In the ‘‘Motion for Further Relief’ it is contended by

plaintiffs :

**Pupils of all grades should be assigned in such a

way that as nearly as practicable the various schools

at various grade levels have about the same propor-

tion of black and white students.”’

To accomplish the foregoing objective the plaintiffs have

Proposed a plan for pairing or clustering thirty schools

(3 senior high schools, 3 junior high schools and 24 ele-

mentary schools). The schools involved would all then

have student bodies with blacks in the minority—ranging

from 32 to 45 percent. There would then be no all-black

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schools but there would still be 24 all-white or nearly all-

white schools.

In Charlotte-Mecklenburg the Court said in reference to

schools all or largely of the minority race:

** _. . In some circumstances certain schools may re-

main all or largely of one race until new schools can

be provided or neighborhood patterns change. Schools

all or predominately of one race in a district of mixed

population will require close scrutiny to determine

that school assignments are not part of state-enforced

segregation.

In light of the above, it should be clear that the ex-

istence of some small number of one-race, or virtually

one-race schools within a district is not in and of itself

the mark of a system which still practices segregation

by law. The district judge or school authorities should

make every effort to achieve the greatest possible de-

gree of actual desegregation and will thus necessarily

be concerned with the elimination of one-race schools.

No per se can adequately embrace all the difficulties of

reconciling the competing interests involved; but in a

system with a history of segregation the need for re-

medial criteria of sufficient specificity to assure a

school authority’s compliance with its constitutional

duty warrants a presumption against schools that are

substantially disproportionate in their racial composi-

tion. Where the school authority’s proposed plan for

conversion from a dual to a unitary system contem-

plates the continued existence of some schools that are

all or predominately of one race, they have the burden

of showing that such school assignments are genuinely

nondiscriminatory. The Court should scrutinize such

schools, and the burden upon the school authorities

will be to satisfy the Court that their racial composi-

——— niet petted PR PAM OI, le PEEL ET NTR

> .

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arr

tion is not the result of present or past discriminatory

action on their part.’’

The foregoing Supreme Court opinion in effect, requires

two results in desegregation efforts—first, the abolition of

any state-imposed segregation in the school system—stu-

dents, staff, facilities, transportation, faculties and extra-

curricular activities; and second, the elimination of all the

vestiges of past segregation.

In the Orange County school system segregation is dead

and its corpse long-since buried; however, the question re-

mains Whether certain schools have all-black or nearly all-

black student bodies because of past state-imposed school

segregation. If so, then the school board must present a

plan to change the racial composition of such schools.

Swann v. Charlotte-Mecklenburg, supra. On the other

hand, if the racial composition of such schools is not the

result of present or past discriminatory action on the part

of the school authorities, then Swann v. Charlotte-Mecklen-

burg does not compel racial redistribution.

The school board has taken the position that its school

system is a unitary one and that the motion for further

relief should be denied. However, Swann v. Charlotte-

Mecklenburg requires the further findings by this Court as

above noted.

Therefore this case is set for further hearing at 10:00

o'clock A.M., August 3, 1971, before this Court for the

school authorities to present either evidence sufficient to

carry their burden that the racial composition of the fol-

lowing listed schools (which in May 1971 had student

bodies which were 90% or more black) is not the result of

past discriminatory action on their part or a plan for

changing the racial composition of such schools as to which

they cannot carry such burden. As already indicated, the

composition is not the result of any present discrimination

re

10a

so the issue involved relates solely to whether the racial

composition is the result of past school discrimination.

The schools involved are:

Carver Junior High School

Eccleston Elementary

Holden Street Elementary

Orange Center Elementary

Richmond Heights Elementary

Washington Shores Elementary

Webster Elemeatary

The defendants and their counsel have access to the facts

from which they should be able to decide if they are re-

quired to present a plan under the existing law without

the necessity of court order. If a plan is required it should

be presented on August 3rd and be sufficient to accomplish

full compliance with Brown I? as amplified by Swann v.

Charlotte-Mecklenburg and related cases. Hopefully this

litigation might then terminate. Chief Justice Burger ree-

ognized such a possibility in these school cases when in

Swann he stated:

‘*At some point, these school authorities and others

like them should have achieved full compliance with

this Court's decision in Brown I. The systems will

then be ‘unitary’ in the sense required by our decisions

in Green and Alereuder.

It does not follow that the communities served by

such systems will remain demographically stable, for

in a growing, mobile society, few will do so. Neither

school authorities nor district courts are constitution

ally required to make year-by-year adjustments of the

racial composition of student bodies once the affirma-

tive duty to desegregate has been accomplished and

racial discrimination through official action is el:mi-

? Brown v. Board of Education, 347 U.S. 483 (1954).

SRR Ea eT Se =>

* =

‘

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lla

nated from the system. This does not mean that fed-

eral courts are without power to deal with future prob-

lems; but in the absence of a showing that either the

school authorities or some other agency of the State

has deliberately attempted to fix or alter demographic

patterns to affeet the racial composition of the schools,

further intervention by a district court should not be

necessary. ...”’

Ir Is So Onvenen this 22nd day of July, 1971.

/3/ Grorce C. Youre

United States District Judge

UNITED STATES DISTRICT COURT

¢ MIDDLE DISTRICT OF FLORIDA

. ORLANDO DIVISION

No. 1215-Ort-Crv.

Every R. Ex.is, et at, Plaintiffs,

Vv.

Tre Boarp or Pustic Ixstrectiox or ORANGE County,

Fiorina, Defendant.

Order

This suit was initiated on April 6, 1962—almost nine and

a half years ago—but still is before this Court. Its lengthy

life is not due to prolonged active litigation or to inatten-

tion by this Court. The reason it still lingers on is because

it has been revived from time to time by plaintiffs’ counsel

because of new developments in the law as determined by

judicial decisions.

Om May 28, 1964 a “‘Plan of Desegregation’’ was filed by

defendant school board; on June 9, 1964 counsel for plain-

tiffs and counsel for defendant filed a joint stipulation

~

agreeing that the plan filed May 28, 1964 complied with the

prayers of the amended complaint and on June 9, 1964 a

‘‘Final Decree’’ was entered directing compliance with the

May 28th plan. The record does not reflect any non-

; compliance with that plan.

The next development in the case—as reflected by the

file—with the filing of a joint motion by counsel for both

sides seeking an order of this Court requiring compliance

with an Amended Plan of Desegregation as attached to the

motion and which amended plan counsel agreed would com-

ply with the requirements of United States v. Jefferson

County Board of Education, et al, 380 F.2d 385 (5th Cir.

1967).

On April 25, 1967 another ‘‘Final Decree’’ was entered

by this Court directing implementation of the amended

plan.

Then on December 2, 1968 a ‘‘Motion for Further Re-

lief’’ was filed alleging the plan in effect had not succeeded

in dismantling the dual school system. No charge was

made that defendant had not complied with the plan in

effect; rather, the charge was against the: plan itself. On

February 18, 1969, after a prior hearing, this Court di-

rected the defendant to present a further plan of desegre-

gation in compliance with the then applicable decisions of

the United States Supreme Court and the Fifth Cireuit

Court of Appeals.

On February 26, 1969 counsel for both sides filed a

‘Joint Motion’’ secking another order of this Court re

quiring board compliance with the then existing plan as

amended by the amendments attached to the said ‘‘ Joint

Motion’’. The proposed amendments—known as Plan <2

—ealled for the closing of Jones, Drew, and Wheatley

Junior and Senior High Schools, and Callahan, Websier,

Avalon and Douglass Elementary Schools at the close of

the 1968-69 school year. Two days later—February 28,

1969—counsel for plaintiffs withdrew their consent to the

;

:

SPEAR AES COS SE A, SRR. OS AMEE MORN IN NR rae SE Tg PTS

*. -

‘

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“Joint Motion’’; on March 5, 1969 defendant’s counsel

withdrew his consent.?

On March 11, 1969 an additional ‘‘Proposed Plan of De-

segregation’’—Plan ‘‘C’’—was filed by the defendant

board. Plaintiffs’ counsel objected to the plan, thereby

requiring the first hearing of contested issues as to a plan

in this law suit. As this Court then noted?

13a

“Except for the objections of persons not parties to

this proceeding, Plan ‘‘B’’ might have been adopted

and the record of unlitigated desegregation have re-

mained intact.’’

On May 13, 1969 this Court entered its 24 page order

analyzing and approving Plan ‘‘C”’. Appeal by plaintiffs’

counsel followed. Thereafter, during the pendancy of the

appeal, the Supreme Court decided Alexander v. Holmes

County Board of Education, 396 US. 19, 24 L. Ed. 2d 19

(1969) and the Fifth Cireuit decided Singleton v. Jackson

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

Cir. 1970). This ease was remanded on December 12, 1969

with an opinion which stated in part, 421 F.2d 134 (5th

Cir. 1970) at page 135:

“The Orange County School Board has made sub-

stantial progress in the course of recent years toward

converting its dual school system into a unitary sys-

tem. The current status must be reviewed, however,

in the light of decisions of the Supreme Court and of

this court which have been tendered since the order of

the district court which forms the subject matter of

this appeal... .”’

—_——

"As noted in this Court's order of May 13, 1969, the consent

withdrawals followed a community protest, including a boycott

by Jones’ students, to the announcement of closing Jones High

School.

* Order of May 13, 1969.

l4a

**... To the end that the district court may now

review the Orange County School desegregation plan

and require that it comport in all respects with these

more recent decisions, we vacate and remand to the

district court.’’

On January 15, 1970 defendant board filed its ‘‘ Notifiea-

tion of Compliance’’ advising that teachers and staff would

be assigned prior to February 1, 1970 so as to fully comply

with Singleton, supra. Such compliance was fully and

timely accomplished. Also on January 15, 1970 the board

filed two pupil desegregation plans identified as Plan I and

Plan Il. By order of January 22, 1970 this Court approved

Plan I and rejected Plan II. Appeal followed and after

submission of additional findings the Fifth Circuit on Feb-

ruary 17, 1970 affirmed in part and reversed in part, re-

quiring certain modifications to Plan I so as to effectuate

a unitary school system. Those modifications were made

and on March 24, 1970 this Court entered its order finding

such implementation would accomplish a unitary school

system. No appeal therefrom was taken and the board has

operated through the 1970-71 school year under a plan

which both this Court and the Fifth Cireuit had found to be

a unitary one.

Subsequently—on April 28, 1971—the Supreme Court de-

cided the cases of Swann v. Charlotte Mecklenburg Board

of Education, 402 U.S. 1 (1971) and Davis v. Board of

School Commissioners of Mobile County, 402 U.S. 33 (1971).

A ‘‘Motion for Further Relief’? was thereafter filed by

counsel for plaintiffs, hearings held on August 3, 4, and 12,

1971 at which evidence was adduced and arguments heard.

Plaintiffs’ counsel by their ‘‘ Motion for Further Relief”

object to the present racial composition (or—to be more

exact—as it was at the end of the 1970-71 school year) of

each of the following:

Jones Senior High School, Carver Junior High School

and Eccleston, Holden Street, Hungerford, Maxey,

OPES Sao LS Oh ENAT OL AS ISR ES He

.

COPY BOUND CLOSE IN CENTE?.

lda

Orange Center, Richmond Heights, Washington

Shores, Webster Avenue and Wheatley elementary

schools.

The racial composition of each of the schools in Febru-

ary 1970, the anticipated composition for the 1970-71 school

year by the present plan in effect, the September 1970 ac-

tual composition and the May 1971 actual composition for

each of the challenged schools follows:

Feb. Antici- Sept. May

School 1970 pated 1970 1971

Jones Sr. Black 1136 (notcon- 813 803

High School White 121 sidered) 183 146

Carver Jr. Black 1143 1100 1035 1085

High School White 1 47 81 59

Eccleston Black 904 889 1044 1191

White 0 0 0 3

Holden Black 717 725 882 765

Street White 1 0 10 8

Hungerford Black 448 353 303 292

White 0 141 56 48

Maxey Black 468 461 390 469

White 1 38 60 67

Orange Black 716 655 655 629

Center White 0 50 22 34

Richmond Black 703 692 782 798

Heights White 0 22 0 0

Washington Black 797 783 727 731

Shores White 0 0 0 3

Webster Black 410 352 262 265

Avenue White 3 76 38 29

Wheatley Black 824 811 898 980

White 0 29 140 195

a

In the most recent motion, counsel for plaintiffs contend:

l6a

‘*Pupils of all grades should be assigned in such a

way that as nearly as practicable the various schools

at various grade levels have about the same proportion

of black and white students.”’

To accomplish the foregoing objective the plaintiffs have

proposed a plan for pairing or clustering thirty schools

(3 senior high schools, 3 junior high schools and 24 elemen-

tary schools). The schools involved would all then have

student bodies with blacks in the minority—ranging from

32 to 45 percent. There would then be no all-black schools

but there would still be 24 all-white or nearly all-white

schools.

a aa A a See De he mc AES RR AL a Sirck Vata Saab RS RO ted Ope t ed

The total student population and the racial break-down

as to each public school in Orange County as of May 21,

1971 is shown in Appendix ‘‘A’’. There were 26 secondary

schools and 66 elementary schools; a total of 83,996 stu-

dents—68,766 white, 15,230 Negro.

This Court does not construe Charlotte-Mecklenburg as

requiring racial ratios but only that ratios could volun-

tarily be utilized by a school board or could be made com-

pulsory by a Court only as a tool to effectuate desegrega-

tion. The history and the accomplishments of desegrega-

tion in Orange County do not require compulsory racial

ratios. However, the Charlotte-Mecklenburg and Davis

cases require—because of the holdings in each—further re-

: view of specific schools which remained all or almost all

Negro in student enrollment. Supreme Court decisions

: under the federal Constitution stand as the paramount law

of the land superseding all conflicting prior decisions of

this and all other courts inferior to it.

eT ee ee

es

Setoleol ak,

Evidence was received as to whether the present racial

composition of each of the challenged schools was the result

of past racial discriminatory action on the part of the de-

fendant board. The issue was limited to past action and

SPP ey PPLE SOS TEE GR Ok EE at SPIGA ET PRR OAT gt PC AER a? W748

.

COPY BOUND CLOSE IN CENTE}?.

17a

excluded consideration of present discriminatory action

because the record is clear that the pupil assignment plan

now in effect in Orange County does not exclude any pupil

of a racial minority from any school directly or indirectly

on account of race. To the contrary, a student of a minor-

ity race can attend the school to which he is assigned with-

out reference to race or may, if he so elects, transfer under

the majority to minority rule with the guarantee of space

in the school of transfer and have free transportation pro-

vided where required.*

But the review as to whether any racial imbalance stems

from past board-imposed segregation is required by the

language of Charlotte-Mecklenburg where the Court said,

pages 25 and 26:

“ . In some circumstances certain schools may

remain all or largely of one race until new schools ean

be provided or neighborhood patterns change. Schools

all or predominately of one race in a district of mixed

population will require close scrutiny to determine that

school assignments are not part of state-enforced seg-

regation.

In light of the above, it should be clear that the ex-

istence of some small number of one-race, or virtually

one-race schools within a district is not in and of itself

the mark of a system which still practices segregation

by law. The district judge or school authorities should

make every effort to achieve the greatest possible de-

gree of actual desegregation and will thus necessarily

be concerned with the elimination of one-race schools.

No per se rule can adequately embrace all the diffi-

culties of reconciling the competing interests involved;

but in a system with a history of segregation the need

for remedial criteria of sufficient specificity to assure

*This option granted by Orange County was recognized with

approval by the Supreme Court in Charlotte-Mecklenburg, page 27.

a school authority’s compliance with its constitutional

duty warrants a presumption against schools that are

substantially disproportionate in their racial composi-

tion. Where the school authority’s proposed plan for

conversion from a dual to a unitary system contem-

plates the continued existence of some schools that are

all or predominately of one race, they have the burden

of showing that such school assignments are genuinely

nondiseriminatory. The Court should scrutinize such

schools, and the burden upon the school authorities

will be to satisfy the Court that their racial composi-

tion is not the result of present or past discriminatory

action on their part.’’

18a

So this Court has construed the foregoing language to

mean that desegregation efforts require two results—first,

the abolition of any board-imposed segregation in the school

system (students, staff, facilities, transportation, faculties

and extracurricular activities) ; and second, the elimination

of all vestiges of past segregation.

To carry the interpretation of Charlotte-Mecklenburg

still further; if a present racial imbalance is a result of

past de jure segregation, then steps are required under the

i idl MIR ate ah A pa Sig SSP AANA NA eh Sh il I Gt A ou IA AINE ie Ad A EI AT ol Ne bie Aha sels oly ~

3 aforesaid Supreme Court ruling to correct such imbalance.

; On the other hand, if a present imbalance is the result of

+ de facto segregation, then such imbalance is not under

_ present law a constitutional violation requiring remedial

{ action.

; Orange County is an area of rapid population growth—

- many of its people have moved here or been born here long

4 after Brown I+ and have not known or experienced school

assignments by race. In the 1960-61 school year there were

53,912 students in the public schools of Orange County, of

which 45,015 were white and 8,897 were Negro. As pre:

viously noted, by the end of the 1970-71 school year the

* Brown v. Board of Education, 347 U.S. 483 (1954).

Cz , ITE eA Ee EE HSS GREE AS tr 4

. —

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— ND a el il NNN 8 0 Hadas Oo 0S PANE aKa ania BF ait Coe eNO Ni ary RL Dl cctenatntinee

19a

total student enrollment in the county had grown to 83,996

of which approximately 82% were white and 18% were

Negro.

The Negro families have been expanding into a previ-

ously undeveloped area lying generally south and west and

southwest of Lake Mann and west of Clear Lake. (See at-

tached map of Orlando-Winter Park schools marked Ap-

pendix ‘*B’’.) Much of the development has been of new

subdivisions of attractive single family residences.® Popu-

lation growth has also expanded into newly constructed

public housing, not only in the areas southwest of Lake

Mann and west of Clear Lake, but also in the area east of

Lake Mann and north of Clear Lake.

The schools now involved fall into several categories but

will be discussed individually in the groups in which they

fall.

Kccieston, Hotpen Street, WeBsTeR AVENUE AND

WHEATLEY

These elementary schools were constructed at different

dates but all prior to the termination of the dual assign-

ment system in Orange County.

At the close of the 1970-71 school year Eccleston had

1,191 Negro students and 3 white ones; it is, therefore,

essentially a one race school. Constructed originally to

serve handicapped Negro students from the whole county,

in 1959 it was converted to an elementary school. The

pupil assignments are not presently made on a basis of

race and the fact the enrollment is almost all Negro results

solely from the area it serves being mostly Negroes. The

school board is not responsible for this situation but be-

cause this school was a part of the dual system under the

Charlotte-Mecklenburg decision it appears that some fur-

5 This Court has personally viewed each of the challenged schools

as well as the surrounding neighborhoods.

ds

a ee eee

ee nO a Me ee ee

[eee eee ee

ya BS NETS GE TRL OIE EY BED UE WP RE: RONEN VERS TREE LA APT ST

e

20a

ther plan should be adopted by the school board to desegre-

gate Eccleston.

Holden Street, built in 1950, served Negro children only

and in May 1971 had 765 Negro students and 8 white ones,

Except that this school was always an academic one the

findings as to Eecleston are equally applicable to Holden

Street. As to this school, also, further desegregation is

required.

Webster Avenue, also built in the 1950’s, was constructed

to serve a Negro community in Winter Park. In May 1971

it had 265 Negro students and 29 white so that approxi-

mately 90% of the student body was Negro and 10% white.

Again because of the past history of the school in light of

Charlotte-Mecklenburg, some additional desegregation

should be undertaken.

In Apopka, a city in the northwest section of Orange

County, all 7th and Sth grades attend Apopka Junior High

School which in May 1971 had 955 students—339 Negro

and 616 white. All 9th, 10th, 11th and 12th grades attended

Apopka Memorial High School with an enrollment of 1,338

—431 Negro and 907 white. In addition to Wheatley there

are two other elementary schools—Dream Lake and Lovell.

Dream Lake in May 1971 had 41 Negro students and 779

white ones; Lovell had 3 Negro pupils and 921 white ones.

Wheatley opened in 1951 to serve a Negro area of Apop-

ka. Under the neighborhood assignment plan now in effect,

in September of 1970 there were 140 white students out of

a total of 1,038 assigned to Wheatley; by the end of the

school year the number of white students had increased to

195 out of a total of 1,175. So the racial ratio in May 1971

was 83.4% Negro and 16.6% white. Although this was

previously a school attended only by Negro children, it is

obvious that it is presently an integrated school. However,

beeause Wheatley was constructed as a part of the dual

assignment system, Charlotte-Mecklenburg requires ‘‘every

effort to achieve the greatest possible degree of actual de-

segregation’’. Since Dream Lake, Lovell and Wheatley are

COPY BOUND CLOSE IN CENTE}.

2la

all within three miles of each other, pairing of two or clus-

tering of the three is a feasible solution. Further, this ean

be accomplished with minimal additional transportation

because over 1,000 students are already provided busing to

these schools (627 of the 924 Lovell students were bused

in 1970-71). Obviously, not all students attending paired

or clustered schools will require transportation.

So the defendant board should provide further desegre-

gation plans for Wheatley.

HunGerrorp, Maxey, ORANGE CENTER AND

Ricumonp Heurts

During the pendancy of this litigation there was a bond

issue approved by the freeholders of Orange County on

November 5, 1968 for the purpose of financing school con-

struction, On May 5, 1964 plaintiffs’ counsel filed in this

‘ase a motion to enjoin the defendant from letting bids for

the construction of a number of schools whieh included the

facilities now constituting Hungerford, Maxey, Orange

Center and Richmond Heights elementary schools. Plain-

tiffs contended the schools would be built at sites to per-

petuate segregation.

On May 18, 1964 plaintiffs’ counsel and counsel for the

defendant filed a joint stipulation wherein it was agreed

that the Court should enter an order denying with preju-

dice plaintiffs’ motion for an injunction, preliminary or

permanent. In the stipulation the plaintiffs specifically

reeeded from the affirmative relief sought in the Motion for

Preliminary Injunetion.

Thereafter, pursuant to consultations with representa-

tives of plaintiffs and under the provisions of the desegre-

gation plan then in effeet which inter alia, provided:

‘Construction of new school facilities and additional

school facilities shall be commenced in accordance with

sound administrative policies in such a manner that

the race or color of the pupils attending the schools

will not be one of the criteria in any determination of

new school facilities or the expansion of existing school

facilities.”’

The four schools—and others—were constructed and put

into operation at differing dates after 1964.

Each of these facilities was built after the dual assign-

ment policy was abolished by Orange County; each was

built after the objections of record in this case by counsel

for plaintiffs had been withdrawn and there is no evidence

they were built with any intent to perpetuate segregation.

Further, as to Richmond Heights and Maxey, they were

built on the edge of undeveloped lands which could later be

occupied by either race. To the west of Maxey a subdivi-

sion occupied by whites has been built—accounting for

some of the 67 whites in Maxey. Around Richmond Ieight«

there has been a spread of attractive neighborhoods of

single-family homes bought by Negroes.

Orange Center was built in an area of numerous apart-

ments and public housing units; Hungerford was built in

the town of Eatonville, a separate municipality of Orange

County occupied solely by Negroes.

Each of these four schools ix a fine, modern facility and

this Court is satisfied that they were built on their present

sites for reasons other than to perpetuate segregation, so

their racial compositions are not vestiges of past segrega-

tion. Under those circumstances the defendant has no

obligation to take further desegregation steps as to those

schools. Of course, if defendant so desired, it would offer

little difficulty for it voluntarily to cluster Maxey with

Winter Garden and Dillard Street elementaries as those

two are already paired and are all only a relatively few

blocks from each other.

Wasutxctron Srores

This elementary school built before the end of the dual

assignment system comes within the category of Eccleston,

Holden Street, Webster and Wheatley except for the prob-

lems obviously inherent in effecting further desegregation

steps. This Court notes that the H.E.W. approved Plan II

of 1970 would have left Washington Shores an all Negro

school. But that was before Charlotte-Mecklenburg. As

to this school, therefore, the defendant should present fur-

ther desegregation procedures or satisfactorily demon-

strate the impracticality of any such further actions per-

taining to Washington Shores.

Carver Justor Hien Scnoor

Carver Junior High School ix a new, modern air condi-

tioned facility which in September 1970 had an enrollment

of 1,035 Negro students and 81 white students; at the end

of the 1970-71 school year in May the enrollment was 1,085

Negro and 59 white pupils.

Deyond Carver to the west and to the south are new resi-

dences occupied by Negro families, so that because of this

new housing the composition of Carver is primarily Negro.

This school opened in 1964 with just classroom facilities

and then in 1966 the auxiliary facilities were completed as

a result of being financed by the 1963 bond ixsue in an

amount of $663,000.00. Because this school was initially

constructed prior to the institution of the first desegrega-

tion plan in this case, it comes within the category of those

schools requiring ‘‘every effort to achieve the greatest pos-

sible degree of actual desegregation.” Davis v. School

Commissioners of Mobile County, 402 U.S. 33 p. 37 (1971).

Some further plan, therefore, should be forthcoming from

the board to accomplish as to Carver the objective required

by the said Supreme Court opinion, taking into account the

practicalities of the situation.

Joxes Hicu Scnooi

Jones Senior High School in February of 1970 had 1,136

Negro students and 121 white students; after the institu-

tion of the neighborhood zone plan for the 1970-71 school

year in September of 1970, there were 813 Negro students

enrolled and 183 white students, and in May of 1971, the

figures had changed somewhat to 803 Negro students and

146 white students. The neighborhood zone resulted in an

assignment of 619 white students and 899 Negro students

to Jones Senior High School; however, as noted above,

only 183 white students enrolled in September of 1970 and

this number had dropped to 146 in May of 1971. The school

board determined that the reasons for the non-attendance

of the 440 whites assigned to Jones were that approxi-

mately 225 transferred to private schools, 115 attended

Mid Florida Tech for a completely vocational program in-

stead of an academic curriculum and approximately 100

moved or dropped out of school entirely.

In considering the racial composition of Jones High

School and whether the school board has fulfilled its obli-

gation to desegregate it, this Court should consider the

numbers of whites and Negroes assigned to the school

which for the past school year were approximately 40%

white and 60% Negro. That percentage in the opinion of

this Court is sufficient to not only constitute integration

but desegregation as well. The school board cannot be

defaulted for the fact that some of the white students failed

to attend where the school board was not responsible for

such non-attendance.

The board is directed to file plans in accordance with the

directions herein by August 23, 1971, and plaintiffs shall

have until August 25, 1971 to file objections, if any, thereto.

If objections are filed a hearing is hereby set thereon for

8:30 o'clock A.M., August 27, 1971.

Doxe and Oxperep in Chambers at Orlando, Florida, this

16th day of August, 1971.

/s/ Gronce C. Youxo

United States District Judge

UNITED STATES DISTRICT CouRT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

No. 1215-Or-Crv.

Everrs R. Extos, er at, Plaintiffs,

v.

Tae Boarp or Pratisc Ixstavcnox of Onaxce

Couwty, Fionma, Defendant.

Order

This ease is before the Court on a ‘‘Motion for Further

Relief” filed by counsel for the plaintiffs. Initial hearings

were held on August 3, 4 and 12, 1971, for the purpose of

determining whether the plaintiffs were entitled to further

relief. By order of August 16, 1971, this Court found that

the plaintiffs were entitled to a portion of the relief sought

and by said order the defendant school board was directed

to file a plan in accordance therewith. A plan has been

filed by the school board on September 10, 1971 and this

Court held a full day of evidentiary hearing on the second

business day thereafter—September 14, 1971.

There is now before the Court the issue as to whether

such school board plan meets the requirements of the law

as enunciated by the decisions of the Supreme Court of the

United States and the Court of Appeals for the Fifth Cir-

cuit. Plaintiffs’ counsel have also filed a plan and the

Congress of Racial Equality (CORE) has sought to inter-

vene and file a plan of its own. In addition the school

board has filed a motion to dismiss this proceeding which

has been pending now since August 16, 1962.

It is unnecessary to restate in this order the history of

this litigation because it was summarized in the order of

Angust 16, 1971. The task of this Court is to comply with

26a

the rulings of the Supreme Court of the United States

(particularly those set forth most recently in Swann y.

Charlotte Mecklenburg Board of Education, 402 US. 1

(1971) and Davis v. Board of School Commissioners of

Mobile County, 402 U.S. 33 (1971), in a way which is equi-

table and gives proper weight to the many conflicting

factors involved. This Court recognizes that school sys-

tems are created and operated at public expense for the

purpose of educating the young and that the rulings per-

taining to desegregation are not intended to replace the

educational objective of schools, but only to have that ob-

jective attained in a non-discriminatory fashion.

Although on January 22, 1971, this Court found the

neighborhood school to be the backbone of the educational

system, the Supreme Court of the United States subse-

quently decided Davis, supra, in which that Court held,

p. 37:

“‘Neighborhood school zoning . . . (is not) per se

adequate to meet the remedial responsibilities of the

school board.’’

The Supreme Court, therefore, while not prohibiting

neighborhood schools, did hold that in certain instances

a local school board might have to resort to some pupil

assignment procedure other than on the basis of a neighbor-

hood school zone.

Charlotte Mecklenburg, supra, required both the elimina-

tion of present segregation and the vestiges of any past

segregation. In this Court’s order of August 16, 1971, as

well as in orders prior thereto, this Court found—and re-

affirms here—that there is presently no segregation by law

involved in the assignment of any students to the public

schools of Orange County, but this Court did find that

certain schools were constructed in black neighborhoods

prior to the end of discriminatory assignments and that

such schools constituted vestiges of a prior segregation

COPY BOUND CLOSE IN CENTE}?.

27a

practice which required further remedial action. Counsel

for the plaintiffs contended that eleven schools should be

further desegregated by the school board; this Court after

the August hearings found, for the reasons stated in its

order of August 16, that only six of the schools came within

the category of ‘‘vestiges of prior segregation”? and that

as to only those schools would further action be required.

Eccleston, Holden Street, Webster Avenue, Wheatley and

Washington Shores Elementary Schools and Carver Junior

High School were the six schools to which the board was

directed to give further desegregation consideration. The

board has filed what it has termed its ‘‘Education Plan’”’,

which, in brief, contemplates the extension of the assign-

ment zone for Wheatley Elementary School so as to in-

elude an additional 64 white students; the closing of

Holden Street and Webster Avenue Elementary Schools

and the reassigning of the students to other schools; the

conversion of facilities of Eccleston Elementary and Carver

Junior High schools to a special educational complex serv-

ing emotionally disturbed and physically handicapped

children, and other children requiring specialized education

and the assigning of students now attending those schools

to a new elementary and a new junior high school and to

other neighboring schools, and leaving the assignment of

pupils to Washington Shores as at present, but increasing

interschool activities of the students with the students of

other schools.

Wueatiey Evewenrtary

Wheatley Elementary is in an area southwest of Apopka

and its enrollment on September 13, 1971 was 914 black

students and 164 white students.’ The proposal of the

board is to extend the attendance zone line to the south

of Wheatley, so as to include 64 white students who would

_—_

"Enrollment figures for all Orange County schools on Septem-

ber 13, 1971 is attached as Appendix A.

otherwise be assigned to Spring Lake Elementary, in the

area of Ocoee.

This Court finds that proposal is in accord with con-

stitutional requirements, provided that those students re-

siding south of Highway 424 now being bused to Lovell

Elementary School (which lies north of U.S. 441) are in-

cluded within the Wheatley attendance zone. This Court

is informed? that approximately 60 white students residing

south of Highway 424 are transported by bus to Lovell and

it would not in any way increase the busing burden of the

school board for the assignment of those students to

Wheatley instead of Lovell. Therefore, the eastern attend-

ance zone of Wheatley should be extended east to High-

way 424 so as to include those students presently being

bused to Lovell Elementary School. Wheatley would then

have 914 black and 288 white students.

In this Court’s order of August 16, a clustering of Dream

Lake, Lovell and Wheatley was suggested as a means of

further desegregating Wheatley. The board has instead

proposed the extension of the Wheatley attendance zone

and if such proposal meets constitutional requirements as

interpreted by the Supreme Court, this Court should not

substitute its judgment for that of the board. A cluster-

ing of the schools would distribute the black students now

attending Wheatley among the three schools and result in

a majority of white students in each school; however, the

amount of busing required would be increased and for

some grades, students would be attending schools some

distance from their own neighborhoods. The Charlotte

Mecklenburg decision used the language that a board should

utilize ‘‘every effort to achieve the greatest possible degree

of desegregation’’. If that language were lifted out of

context of that decision, it could have no other meaning

than to require a fixed racial ratio in every school because

? From statistics furnished by the school board staff subsequent

to the last hearing pursuant to a request from this Court.

a racial ratio in every school is obviously ‘‘the greatest de-

gree of actual desegregation’. In Apopka it would re-

quire the clustering of the only three elementary schools.

However, this Court in its initial interpretation of Char-

lotte Mecklenburg, did not construe that, that case, taken

as a whole, required fixed racial ratios and this Court

further stated that fixed racial ratios were not required

in Orange County. This Court further concludes that the

words ‘‘greatest possible degree of actual desegregation”’

mean that desegregation which is practical and feasible

pursuant to an equitable remedy, taking into consideration

all the conflicting factors. The addition of approximately

124 white students to Wheatley will, in this Court’s opin-

ion, constitute sufficient desegregation to meet the require-

ments of the law.

Howpen Street

Holden Street Elementary School is one of the older

schools in the county system, having been built in 1950

and is at a site which is rapidly changing from residential

tocommercial. It is adjacent to U. S. 441, a much traveled

divided highway, with tremendous commercial develop-

ment for miles in each direction. Traffic noises are dis-

turbing and the traffic itself is, of course, a hazard to

children attending the school. The site is small and there-

fore not subject to a large group physical education or

playground activities. The new east-west expressway will

be passing immediately north of the school and the acquisi-

tion of right-of-way has and will cause the relocation of

numerous families from the area. Its impact in enroll-

ment reduction has already been felt. The board proposes

to close this school and to reassign the students now attend-

ing Holden Street to other area schools which will for the

most part be within walking distance and not require trans-

portation to those not previously transported. There are

presently fourteen relocatable classrooms on the Holden

Street site, which the board would plan to move to the

St

PLS, DRAPE, SAP Te IIL EE AE ETS

.

30a

site of the Grand Avenue Elementary School during the

1971 Christmas vacation, so that students and teachers now

utilizing those relocatables would be transferred as of

January 1, 1972 to Grand Avenue; the remainder of the

Holden Street students under the plan would be reassigned

for the commencement of the 1972-73 school year to other

area schools.

The almost all black student enrollment of Holden Street

would be disbursed to Grand Avenue, Rock Lake, Prince-

ton and Orange Center; except for the latter school students

would be in schools with either a majority of white students

or a substantial percentage of white students. This Court

finds, therefore, that the closing of Holden Street is a

desirable action for the school board to take for sound edu-

cational and business reasons, not connected with race,

but that such action would result in substantial desegrega-

tion of the students now enrolled at Holden Street, pro-

vided that the attendance zones of Hillerest and Blankner

are extended so as to include some of the Holden Street

students; such assignments to Hillerest and Blankner

should be used to reduce the large transfers to Grand Ave-

nue and Orange Center schools.

Wesster AveNvE ELEMENTARY

Webster Avenue Elementary, built in the 1950’s, is now

in a highly commercial area surrounded by 4-lane heavily

traveled streets. Directly across the street to the south

lies the Winter Park Shopping Mall, one of the largest of

its kind in Central Florida. At the end of the block to the

west of the school lies Highway 17-92, one of the main

highways through Florida, as well as a heavily traveled

road for intra-city traffic. Immediately to the east of the

school is a heavily traveled 4-lane intra-city road. The

board proposes to close this school and to transfer the

students presently enrolled there to other schools in

~

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3la

the area which would result in substantial desegregation

of the student body of Webster.

The board has established sufficient grounds for the

closing of Webster for sound reasons other than race, so

this portion of the board’s proposal should be and is ac-

cepted. It is noteworthy that none of the black students

transferred from Webster will be assigned to a school with

a majority of black students.

Eccieston-Carver ComPLex

To accomplish further desegregation of Eccleston Ele-

mentary School and Carver Junior High School, the school

board has proposed to convert the campuses of those two

schools, which are adjacent to each other, to a special edu-

cation complex replacing Forrest Park, Gateway and Mag-

nolia Center special schools. Forrest Park is a school

operated by the school board for physically handicapped

children; Gateway School is also operated by the county

school board for emotionally disturbed and perceptionally

damaged children; and Magnolia Center operates for the

trainable, mentally retarded child. The school board has

found that the largest proportion of the children requir-

ing such special attention comes from the southwest seg-

ment of Orange County and believes, therefore, that one

facility providing all of the services required for handling

special students should be congregated on one campus in

the southwest portion of the county. The combined cam-

puses of Eccleston and Carver provide a large area in

which additional buildings are planned as a special edu-

cation center and for therapeutic services.

The present facilities of the special schools (Forrest

Park, Gateway and Magnolia Center) are inadequate and

undesirably located so as to require new facilities, apart

from the racial issues involved in this case.

The school board plans to build a new elementary school

in an area northwest of the Carver-Eccleston complex and

Pa on eau Re ee vn roe

Peer ee

.

32a

a new junior high school to be called ‘‘Orla Vista Junior

High School’’ in the area west of the Carver-Eccleston

complex. Both of these schools would be in the area of

Kirkman Road, north of the new Valencia Community

College, which has just been completed for occupancy but

will continue to have growth for some years. The area

west of the Carver-Eccleston complex to Kirkman Road

(as will be seen from Appendix B) is primarily undevel-

oped, as is the area on west of Kirkman Road. It is this

area lying just northeast of a large real estate develop-

ment just underway (Major Realty) and Disneyland (which

opens in October of this year) in which it is expected that

rapid future population growth will occur with both white

and black families. Projected schools in this area are not

only desirable but necessary and offer expectation for in-

tegrated enrollment.

The school board’s plan is to reassign some of the pres-

ent Carver pupils to the new Orla Vista Junior High

School as walk-ins and to transport by bus some of the

Carver students to Robinswood and Westridge Junior

High School. The board plans to open both the new ele-

mentary school and the new Orla Vista Junior High School

in September 1972 by the use of temporary relocatable

facilities pending the completion of permanent construction.

The board has made a good case for relocating Forrest

Park, Gateway and Magnolia Center, but it has not estab-

lished the need for converting Carver and Eccleston to that

use. Those two schools—Carver and Eccleston—are in

modern facilities and on desirable sites. Prior to the

present controversy other sites have been considered by

the board for relocating the special schools and there is

ample open space to the west of Eccleston and Carver for

such a special school complex, without converting the two

existing facilities necessitating the use of portable build-

ings for replacement schools.

If the board desires to build an additional junior high

school and elementary school as proposed, this order is not

POST SEDGE NT NI ENE LATER SARE NEES ERE SEI ATES SES

.

7

COPY BOUND CLOSE IN CENTE}.

33a

intended to foreclose such action. However, consultation

as to the proposed sites should be made with the Bi-racial

Advisory Committee and, such schools—if built—should

supplement, not replace, Eccleston and Carver.

This Court is required by the order of the Court of Ap-

peals issued September 3, 1971, to direct plans in place of

any board plan disapproved by this Court. Therefore, the

Court directs that until other schools or population

changes—or both—dictate otherwise, the facility at Carver

should be utilized by all 7th grade students from Robins-

wood, Carver and Westridge; Robinswood should handle

all 8th and 9th grade students in the Robinswood neighbor-

hood zone plus a portion of the 8th and 9th grade students

from Carver; and Westridge should handle all 8th and 9th

grade students in its neighborhood zone plus the remainder

of the Carver 8th and 9th grade students. The evidence

showed that the majority of Westridge students are now

being transported to that school by bus and the board’s

plan calls for transporting some Carver students to Robins-

wood and to Westridge. Therefore, this change to the

board’s plan should not substantially increase transporta-

tion requirements over those presently in existence and

those that were planned by the school board’s proposal.

Each day approximately 423 former Robinswood 7th

graders and 263 former Westridge 7th graders (a total of

about 686) will attend Carver and approximately 780 former

Carver 8th and 9th graders will attend Robinswood and

Westridge. The effect on desegregation will be substantial

as the present racial compositions of the three schools are

as follows:

Black White

Carver 1,115 54

Robinswood 72 1,196

Westridge 91 699

34a

A wide belt of schools to the north, east and south of

the Eccleston school contains elementary schools which are

already integrated with considerable numbers of black

students, so that pairing or clustering of Eccleston with

any of such schools would accomplish little in the way of

desegregation. The pairing of Eccleston with a school

beyond such a belt would require cross busing of the

youngest school children (grades one through six) which

this Court finds is not feasible.

hic Sa SODA ABM ARR LM PRO TNREE tiet gah ae semen |

WasHincton SHores ELEMENTARY

4 Washington Shores Elementary School is located in the

3 center of the black community and presents great problems

‘ in desegregation. The school board states on page 6 of the

3 plan:

; ‘‘The location of this school does not allow for the

P alteration of the composition of its student body while

3 at the same time preserving the neighborhood school

; concept.”’

; As previously noted, while the neighborhood school is in the

opinion of this Court the most desirable for educational

purposes, it is not under the ruling of Charlotte Mecklen-

burg sacrosanct. A determination therefore as to whether

any change should be made in the present composition of

a school’s student body must be determined on a basis

other than whether it offends the neighborhood school

concept. The same problem as outlined above concerning

Eccleston is present as to Washington Shores; it is sur-

rounded by a belt of already racially integrated schools

which precludes pairing or clustering with any one or

more of them. As with Eccleston, this Court concludes

that pairing or clustering with distant schools would be

4 adverse to the interests of the young students involved.

MRI oh tS We es

RO TT on

oA, eR ATS

The unanimous opinion in Charlotte Mecklenburg ap-

peared to recognize that in formulating a plan involving

DISARM EAI! ENR he IF MEE IT BRE EE RISE SYR LTRS WT AIELLO DS t

e : 7

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oo oN 4 ti Ree AIRS oes eI DR PG OAR OE FAROE!

35a

transportation, the age of the students and distance in-

volved was a factor to be considered. In lieu of reassign-

ment of Washington Shores’ students, the school board

plan calls for increased activities of the Washington

Shores’ students in various inter-school programs. The

proposal is for attendance at a number of social activities,

such as the Florida Symphony Orchestra and the Navy

graduation exercises which are, of course, desirable pro-

grams for the children to attend, but they do not offer the

integrated activities represented to be the objecive of the

program. The plan further proposes:

‘‘Inter-school exchange will be planned for students

at Washington Shores on a regular basis . . . there will

be grade level exchanges between two or more schools

according to a schedule. For example, there will be

opportunities for inter-school physical competition with

sixth graders from nearby schools. In addition, there

will be opportunities for students to compare art and

musical talents, as well as physical feats.”’

The acceptance of the board’s proposal as to Washington

Shores is made with the additional requirement that such

a schedule of inter-school exchanges covering all grades

of Washington Shores be prepared, a copy filed with the

Court, and carried out as planned. The same requirement

is made as to Eccleston.

Plaintiffs’ counsel takes the position that Eccleston and

Washington Shores cannot remain with the present racial

compositions. This Court notes that in Charlotte Mecklen-

burg the Supreme Court specifically commended the use

of the majority to minority transfer as first promulgated in

this litigation (and the Supreme Court referred to this case

by name). If it had been the intention of Charlotte Meck-

lenburg to require the immediate termination of all black

or substantially all black schools (with which that portion

of the opinion dealt) it would have been completely unnec-

36a

essary to recommend the use of the majority to minority

transfers. This Court construes Charlotte Mecklenburg as

contemplating under certain conditions the existence of all

black or nearly all black schools and that in such cases the

majority to minority transfer right can be used by those

desiring transfers.

As the expected growth of population—both white and

black—develops west and southwest of Eccleston, a new

look should then be taken at the possibility of invoking a

feasible plan to alter the racial composition of that school

and any site selected for a new elementary school in the

growth area should be made with that as an objective.

Puarntirrs’ Proposau

Counsel for plaintiffs have filed in writing on September

9, 1971, a proposed plan which corresponds to the oral

proposal previously submitted in open court in August and

to which this Court alluded on page 8 of its August 16, 1971

order. The proposal calls for the pairing or clustering of

thirty schools, requiring extensive cross-busing of approxi-

mately an estimated 16,000 students. For the reasons

stated in the August 16th order, further action by the school

board is not required as to five of the schools so that plain-

tiffs’ plan as to those schools could not be compulsorily

directed by this Court. As to the remainder of the schools,

except as to Carver Junior High School, the proposals call

for action unnecessarily burdensome to all children in-

volved—both black and white. Remedial procedures can

under the cireumstances—to the extent required—be ac-

complished by more equitable means.

As to Carver Junior High School, the proposal seeks

a clustering of Robinswood, Memorial and Carver, but the

proposal is outdated as it contemplates 1,077 white students

at Memorial, whereas it now develops the enrollment as of

September 13, 1971 at Memorial Junior High School was

626 white students and 514 black ones.

CS PE PPE EES LS EG TTS a

- :

COPY BOUND CLOSE IN CENTE}F.

a

37a

Although this Court found that Jones Senior High had

sufficient desegregation action by the school board to pre-

clude the necessity of further remedial action and there-

fore, the plaintiffs’ plan as to it is superfluous; neverthe-

less, a word as to plaintiffs’ proposal pertaining to that

school may be in order. Plaintiffs’ proposal seeks to

cluster Edgewater, Jones and Boone High Schools with all

12th grade students attending Jones, all 11th grade

students attending Edgewater, and all 10th grade students

attending Boone. Even if Jones required some further de-

segregation, such a proposal is so totally inconsistent with

the best interests of the involved high school students as

to be unacceptable to this Court. Probably at no other time

in an average student’s life does he or she attain such

loyalty and interest in a school as in high school. Extra-

curricular activities become a vital part of a student’s

matriculation; plaintiffs’ plan would eliminate the con-

tinued participation in inter-scholastie activities—such as

football—of Jones, Edgewater and Boone, and extinguish

each as a separate high school entity.

Plaintiffs also propose an alternative plan as to Jones

High School whereby Evans Senior High School would be

closed and its students reassigned to various high schools,

including Jones. No evidence was presented by plaintiffs

that there is any reason to close Evans Senior High School

other than for racial purposes.

The proposal of the plaintiffs is found not acceptable

and implementation of it will not be ordered.

Motion To InTervere

The Congress of Racial Equality (CORE) on Septem-

ber 14, 1971, filed a motion to intervene and a motion for

leave to file a plan amicus curiae and attached thereto a

proposed plan. The proposed plan of CORE opposes what

it terms the ‘‘dispersion concept of integration’’ and pro-

poses instead a neighborhood community school district

with localized control.

This Court has previously, during the course of this

litigation, denied intervention to various would-be inter-

venors. As previously noted, the school board is the

primary determiner of the school system’s affairs and the

only function of a federal court is to determine whether the

actions of the school board meet the constitutional require-

ments as interpreted by the Supreme Court of the United

States and the United States Court of Appeals for the Fifth

Cireuit. There is no reason shown why that issue cannot

be resolved without intervention. While this Court is deny-

ing the motion of CORE to intervene and present its plan,

it is perhaps of interest to note that the action herein taken

by this Court gives recognition to the position that blacks

as well as whites are entitled to neighborhood schools where

they do not offend desegregation rulings. This principle is

particularly applicable to the western portion of the black

community in which Eccleston and Carver are located.

That area consists of many new or relatively new, single-

family residences in well kept attractive neighborhoods

justifying pride in ownership and the community.

Oprtiox To Urmize CLosep ScHoots

In its proposal to close Webster Avenue and Holden

Street Elementary schools, the board has stated it wishes

to have an option in the sale of the lands to utilize the

buildings. Plaintiffs’ counsel has construed this request

as a possible intention of the board to continue full use of

these buildings. The school board witness, however, indi-

cated that the option was solely for the purpose of permit-

ting the board to utilize the buildings in total or in part

when the land was sold, rather than having them bulldozed

and removed for salvage by the buyers of the sites.

It seems only good business sense for the board to

salvage whatever economic value there may be from the

|

Pee ee RRR OR RR eNEY RNa

> “a

COPY BOUND CLOSE IN CENTE}.

<P AT ERR IE PEERS “St TIOLEOR PTE SY ee DT ae

—

40a

Derenpant’s Motion To Dismiss

The defendant board has filed a motion to dismiss this

cause which at this time is not considered, because the

motion is premature. However, this Court restates as it

has several times in recent orders, that it contemplates

that when the issues now involved are finally determined

and a reasonable time thereafter has elapsed to assure

implementation of the actions required, that then this Court

intends to finally dismiss this case.

Date or IMPLEMENTATION

The board’s plan calls for transferring a number of

Holden Street students to Grand Avenue during the

Christmas recess this year and then at the end of the

1971-72 school year, closing Holden and Webster, effecting

the assignments as contemplated for Holden, Webster and

Wheatley for the beginning of the 1972-73 school year.

The Fifth Circuit Court of Appeals on September 3, 1971,

issued its order directed to this Court providing among

other things, that:

«| Students and faculty to be transferred under

such plan as is approved by Court order will be reas-

signed at once to carry out the plan.”’

The words ‘‘at once”’ foreclose approval by this Court of a

delay for transfer of students to the beginning of the

1972-73 school year and even foreclose an approval of de-

laying the transfer of some students from Holden to Grand

Avenue until the Christmas vacation this year. The

students to be transferred in accordance with the plan as

modified or altered herein must be accomplished ‘‘at once”,

which this Court construes to be immediately but with a

reasonable time to accomplish such transfers. On balance

it would appear that the transfers should be accomplished

within two (2) weeks from the date of this order and if any

further delay is sought it will have to be presented to the

Court of Appeals as this Court construes the September 3,

COPY BOUND CLOSE IN CENTE}.

1971 directive to it divested it of power to extend the

period of transferring students beyond that time; it is

therefore,

ORDERED :

1. That the proposed plan of the plaintiffs be and is

hereby not approved.

2. That the motions of the Congress of Racial Equality

to intervene and to file a plan be and is hereby denied.

3. That the motion of the plaintiffs to substitute Cathi

Q. Mitchell, by her father and next friend, James Q.

Mitchell, and Shonda Denise Johnson, by her mother and

next friend, Constant Y. Brewer, for plaintiffs in this cause

for those previously named as plaintiffs, be and is hereby

granted.

4. That the motion to dismiss this cause will be held in

abeyance for consideration at a later date.

5. That the plan of the defendant board is rejected in

part and accepted in part as modified by this Court’s diree-

tives as contained herein and the board is hereby directed

to implement the plan as modified so that all transfers of

students and faculty involved in connection with Wheatley,

Webster, Holden, Carver, Robinswood and Westridge will

be completed for the opening of school on October 4, 1971.

6. Defendant board shall file with the Clerk of this Court

semi-annual reports similar to those required in United

States v. Hinds County School Board, 433 F. 2d 611 (5th

Cir. 1970).

7. The board is directed to comply with all other provi-

sions of this order although not specifically listed in this

ordering paragraph.

Doxe and Orperep in Chambers at Orlando, Florida,

this 17th day of September, 1971.

Grorce C. Youne

United States District Judge

—