Rebecca E. Henry, Plaintiffs-Appellants-Cross-Appellees v. The Clarksdale Municipal Separate School District, Defendants-Appellees-Cross-Appellants , 433 F.2d 387 ( 1970 )

SIMPSON, Circuit Judge:

Following the limited remand accomplished by our April 15, 1970 order in this school desegregation case, Henry, et al. v. Clarksdale Municipal Separate School District, et al., 5 Cir., 1970, 425 F.2d 698 (Clarksdale II) the district court conducted a hearing upon the Special Master’s Report and the exceptions thereto on April 24 and on May 8, 1970, entered its findings of fact and conclusions of law in a memorandum opinion and order. Thereafter the supplemental record was filed in this Court and further briefs have been received from the parties under a court-imposed accelerated briefing schedule, under the procedures detailed in Part III of Singleton III (Singleton v. Jackson Municipal Separate School District, 5 Cir. 1969, 419 F.2d 1211). See Rule 2, F.R.App. Proc. Under extensions granted by the Court at the urgent requests of the parties the last brief was filed with the Clerk on July 22, 1970. The case is disposed of as an extraordinary matter upon consideration of the record and briefs. Singleton III, supra, and Rule 2, F.R.A.P.

The opening of the 1970-71 school term is less than a short month in the future. In order to meet the already overdue deadlines imposed by Alexander,¹ Singleton III, supra, and Carter² so that complete conversion of this district to a unitary school system ³ may be accomplished by the beginning of the new term, we must act with dispatch. Time limitations will require prompt action by the School Board under the stringent requirements of the district court upon our remand.

Our directions to the district court upon remand from the prior appeal of this matter, Henry v. Clarksdale Municipal Separate School District, 5 Cir. 1969, 409 F.2d 682 (Clarksdale I) were as follows:

“ * * * the Board bears the burden of taking corrective action. An effective plan should produce desegregated faculties, staff, facilities, transportation, and school activities (such as athletics) along with integrated student bodies. If there are still all-Negro schools, or only a small fraction of Negroes enrolled in white schools, or no substantial integration of faculties and school activities then, as a matter of law, the existing plan fails to meet constitutional standards as established in Green and its companion cases. The board should consider redrawing its attendance-zone boundaries, incorporating a majority-to-minority transfer provision in its plan, closing all-Negro schools, consolidating and pairing schools, rotating principals, and taking other measures to overcome the defects of the present system. As to its attendance zones, zone boundaries or feeder patterns designed or used to perpetuate or promote segregation shall be discontinued, and such zone lines shall be redrawn, wherever feasible, to maximize desegregation or eliminate segregation. No zone boundaries or feeder patterns which maintain what is essentially a segregated school structure shall be used. Braxton v. Board of Public Instruction of Duval County, M.D.Fla.1967.” 409 F.2d at 689.

The district court’s directions to its Special Master referred to him:

“the task of aiding the court to develop a new student desegregation plan applicable to all 12 grades of the Clarksdale Municipal Separate School District, effective for the school year beginning September 1970 and thereafter. Said plan must produce a unitary school system in which no child is effectively excluded from attending any school because of his race or color; and, to be constitutional, the plan must provide for no schools attended solely by Negro students and no formerly all-white schools attended only by a small number of Negro students; that is, there must not be ‘white’ schools or ‘Negro’ schools, but just schools”.

These directions were clear.

But the Special Master by his report failed completely to follow them with respect to the elementary schools of the district. See column 3 of the tables collected in footnote 11, infra.

The district judge held a hearing on the Special Master’s report, exceptions thereto and argument thereon. His decisión of May 8, 1970, from which this appeal is taken, confirmed the Special Master’s report and adopted the school plan proposed by it. This was error under our instructions on remand in Clarksdale I.

The Special Master was an educator, not a lawyer, but his testimony indicates that he read and interpreted Ellis⁴ to permit complete disregard of our earlier express requirements with respect to the elementary schools of the Clarksdale Municipal School District. The district judge also gave undue weight to EUis (perhaps because he misapprehended the significance of the Master’s findings, see footnote 6, infra), with the result that he failed to follow our clear directions to him in Clarksdale I as well as the constitutional requirement already clearly present in the case as explicated by the Supreme Court in Green and further clarified in the interim by several decisions by this Court and by the Supreme Court.⁵

The plan recommended by the Special Master ⁶ did implement desegregation of the senior and junior high schools by proposing to make the former Clarksdale junior and senior high schools (formerly all white) into a single senior high school for the entire district, and by proposing to make Higgins junior and senior high schools (formerly all black) into a single junior high school for the whole district. It proposed to leave unchanged the totally (or nearly so) segregated elementary school program under the zoning system already disapproved by Clarksdale I and indeed by the district court’s order of January 10, but now sought to be restored to acceptability and brought forward under the Ellis neighborhood school or geographical proximity or “equal distance zoning” label. No change with respect to the elementary schools of Clarksdale would occur except the nomenclature employed. The racial makeup of pupils attending the several elementary schools would continue exactly as before. The student bodies of Heidelberg, Kirkpatrick and Oakhurst elementary schools would continue all white, serving grades from 1 to 6, in the same neighborhoods as under the former school board plan. Similarly, Oliver, Myrtle Hall, Riverton, and Booker T. Washington elementary schools would continue all black in student body, each serving Negro students from its immediate environs.⁷

The sole change of any note as to the elementary schools is adoption of a majority-minority transfer policy. We approve this provision without reservation and direct that it be continued. However, much, much more must be accomplished by the September, 1970 school opening date in order to convert this district into a unitary system.

The result achieved and approved in Ellis v. Board of Public Instruction, Orange County, Florida, supra, represented this Court’s appraisal of the maximum that could be accomplished in converting to a unitary system under the facts in that case. Orange County, Florida, is a countywide district including a heavily populated metropolitan core and numerous outlying smaller population centers. It involved 2913 teachers and a student population of 36,-498 in junior and senior high schools, 43,822 in elementary schools and 2548 in vocational and special educational classes, for a total school population of 82,868. The maximum desegregation possible of accomplishment in such a school system as Orange County bears little relation to the factual situation in this case.

Here we deal with a compact district of four square miles whose boundaries are coterminous with the city limits of Clarksdale, containing a school population of about 5300, roughly 3169 blacks and 2106 whites, formerly housed in seven elementary schools, three junior high schools and two senior high schools. At its widest points, the district (and the city) measures about 2 miles north to south and about 4 miles east to west. Ellis has its place when it is properly applied,⁸ but reliance upon it by the district judge in the situation here totally ignores the real key to Ellis, the strong caveat of footnote 7, 423 F.2d at page 408:

“7. Under the facts of this case, it happens that the school board’s choice of a neighborhood assignment system is adequate to convert the Orange County school system from a dual to a unitary system. This decision does not preclude the employment of differing assignment methods in other school districts to bring about unitary systems. There are many variables in the student assignment approach necessary to bring about unitary school systems. The answer in each case turns in the final analysis, as here, on all of the facts including those which are peculiar to the particular system.” (Emphasis supplied)

The size and physical makeup of the district here under consideration markedly resemble that of the City of Monroe, Louisiana, whose school plan was recently reviewed by this Court in Andrews, et al. v. City of Monroe, et al., 5 Cir. 1970, 425 F.2d 1017. Monroe is a larger city with a school population of about 11,000, made up of approximately 5750 white pupils and 5250 black pupils, with twelve elementary schools, three junior high schools and three senior high schools. But its pattern of all black and all white neighborhoods and physical barriers in the form of railways, highways and rivers is similar. In Andrews, after noting that Ellis “convinced the district court that the school board’s plan was constitutionally permissible”, we quoted from Ellis and continued:

“However, we do not reject the School Board’s plan solely on the ground that it does not fit the Orange County definition of a ‘neighborhood’ system. Even if, as presently constituted the plan were a true neighborhood plan, we would reject it because it fails to establish a unitary system. Orange County does not say that a ‘neighborhood’ system of student assignment per se is a unitary system. To the contrary, Orange County carefully pointed out:”

Here footnote 7 of Ellis, supra, was quoted in its entirety. The Andrews court continued:

“The School Board contends adamantly that a dual system is eliminated by its plan because the zone lines were drawn geographically without regard to the race of the students within those lines. While such a system of student assignment may be less offensive than one which intentionally segregates students, it does not necessarily follow that it creates a unitary system. The Supreme Court has made it clear that school boards cannot avoid their responsibility to create a unitary system simply by resorting to non-discriminatory, geographical zoning where such zoning would be ineffective:

‘In view of the situation found in New Kent County, where there is no residential segregation, the elimination of the dual school system and the establishment of a “unitary, nonracial system” could be readily achieved with a minimum of administrative difficulty by means of geographical zoning * * * [However] a geographical formula is not universally appropriate. * * * ’

Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 442 n. 6, 88 S.Ct. 1689, 1696 n. 6, 20 L.Ed.2d 716 (quoting from Bowman v. County School Board, 4 Cir. 1967, 382 F.2d 326, concurring opinion).

“In this case, whether the School Board’s plan is called a ‘neighborhood’ plan or a geographical zoning plan, it does not disestablish the dual system. The Orange County system encompassed both rural and urban areas, comprised a large land area, had a total of 98 schools, and had a racial ratio of students of approximately 82 per cent white — 18 per cent black. The Monroe City system, on the other hand, encompasses an urban area only, comprises a relatively small land area, has a total of only 18 schools, and has a racial ratio of students of approximately 51 per cent white — 49 per cent black. In view of these circumstances, we reject as facially invalid the School Board’s plan, under which close to 85 per cent of the black elementary students would continue to attend four traditionally black schools, two of which remain all-black (Lincoln and Clark) and two of which remain nearly all-black (Carver and Berg Jones). The two elementary schools which would remain all-black would alone house about 66 per cent of the approximately 3000 black elementary students. Furthermore, the plan provides for Carroll Jr. and Carroll Sr. High Schools (traditionally black) to house approximately 77 per cent of the black secondary students in the system, while a student ratio of about 10 black to 1 white is maintained in those schools.”

The disposition in Andrews was a limited remand for further study and findings by the district court as to the HEW plan and the board plan originally adopted by the district court (and later erroneously discarded by the lower court on the basis of the intervening decisions in Ellis v. Orange County, supra, and Bivins v. Bibb County Board of Education, 5 Cir. 1970, 424 F.2d 97).

Here as in other recent cases ⁹ following the tenor of Alexander v. Holmes County, supra, footnote 1, and Carter v. West Feliciana (supra, footnote 2) it is necessary to shift the burden from the standpoint of time for converting to a unitary system from a status of litigation to a status of unitary operation pending litigation.

The findings by the court below as to the unsoundness of the plan proposed by HEW would be of doubtful validity standing in isolation. In the context here present they are clearly, erroneous. The district court was faced with a constitutional imperative, the requirement that this school system be converted to a unitary system. The plan proposed by HEW, as the only plan in existence promising to “work now”, must be put into effect as of the beginning in September of the 1970-71 school year. With this plan in operation, the district court may proceed to consider alterations and amendments to it, to the extent that they represent forward, not backward steps.¹⁰

Under the HEW plan integration of six of the seven elementary schools is achieved by superimposing pairing of grades upon existing zone boundaries. The HEW plan reverses the uses to which Clarksdale junior-senior and Higgins would be put: formerly white Clarksdale junior and senior high schools would be combined to form a eitywide junior high school, grades 7 and 8; and the Higgins school (now junior and senior) would be combined with Oliver Elementary (across the street) to form a citywide senior high school composed of grades 9 through 12. Oliver Elementary would handle the ninth grade and the other three would be housed at the two adjacent buildings of the Higgins complex.

The restructuring of grades at the elementary level is as follows:

Grades served under Students* previous School HEW proposal assignments

Myrtle Hall 1-2 Oliver, Myrtle Hall and Oakhurst

Oakhurst 4-6 Myrtle Hall and Oakhurst

Oliver (part of Higgins-Oliver Complex; closed as elementary school)

Riverton Junior 3-6 High (converted to elementary school) Oakhurst and Myrtle Hall (grade 3 only); Oliver grades 3-6

Heidelberg 3-4 Heidelberg, Kirkpatrick and Riverton elementary

Kirkpatrick 5-6 Heidelberg, Kirkpatrick and Riverton elementary

Riverton 1-2 elementary CA 26453 Heidelberg, Kirkpatrick and Riverton elementary

The table set out in the margin gives a comparison of the racial composition of student bodies for the eleven schools in the Clarksdale system under the School Board’s original plan, under the HEW plan and under Dr. Murphy’s plan.¹¹ The figures are taken from the Appendix to the plaintiffs-appellants’ brief, and are apparently derived from reliable sources. Their accuracy is not questioned in the district’s brief. Variance in totals is caused by time differences in collecting figures.

As the tables in footnote 11 demonstrate, the HEW plan accomplishes substantial desegregation at all of the schools of the system with the exception of Booker T. Washington Elementary and the roughly 500 Negro children who presently attend Washington. These children represent about 16% — 17% of all the Negro pupils in the system, about 27% — 28% of the blacks in elementary grades. Examination of the maps in evidence suggests the reason for Washington being a more difficult location to desegregate pupilwise. The Washington attendance area is circumscribed by rather formidable boundaries: the city limits to the south, the north-south railroad line to the east, Highway 61 to the north and the Sunflower River to the west. Additionally, between the school and the highway the area is heavily industrialized along the north-south railway tracks. All of these factors make it more difficult for children to enter the Washington area from the east or go out of it to the east. Study of the maps indicates that access into and out of the area to the north and west may be had by using Sunflower Avenue which parallels the river to the east of it. With pupils using this route the Washington school may possibly be combined into the Riverton-Oakhurst-Myrtle Hall cluster. Some other arrangement may be better. We leave this for determination by the district court under the leadership of the school board and HEW, with the help of the bi-racial committee required hereunder, infra. During the first semester of the 1970-71 school year studies as to the ultimate use of Washington and the Negro children presently assigned there should be undertaken as a high priority project so that these children may start receiving the benefits of a completely integrated education beginning with the second semester of the coming school year.

We have given careful attention to the criticisms of the district court in its May 8 order directed toward the HEW plan. Concededly the plan is not perfect, but its one paramount advantage outstrips and overcomes each of the criticisms leveled at it by the district judge: it accomplishes desegregation of the Clarksdale Municipal Separate School District. As the only plan now extant even approaching this goal, its adoption for the present at least is a must.

The objections as to children being required to walk as much as two miles as opposed to an average of 0.5 miles heretofore, and of having to traverse natural or man-made barriers and the claim that a 2-2-2 grade division is somehow less desirable than a 1-6 division, all fail. The objections as to distance and crossing highways are covered by what we have said in Clarksdale, I, Indianola, supra, United States v. Greenwood Municipal Separate School District, 5 Cir. 1969, 406 F.2d 1086; Anthony, et al. v. Marshall County Board of Education, 5 Cir. 1969, 409 F.2d 1287; Board of Public Instruction, Duval County, Fla., v. Braxton, 5 Cir. 1968, 402 F.2d 900, and numerous other cases. Barriers which did not prevent enforced segregation in the past will not be held to prevent conversion to a full unitary system.

With respect to the objection of lack of “articulation” caused by the breakup of grade composition between two or more schools under zoning or clustering, it is sufficient to cite the breakdown required in a few of the southern Mississippi school districts covered by our consolidated cases reported as United States v. Hinds County School Board, et al., 5 Cir. 1969, 417 F.2d 852: Canton Municipal Separate District, 3-3-1-5; Columbia Municipal Separate School District, 2-3-2-5; Lawrence County, 4-4-4, 4-5-3; Meridian Municipal Separate District, 6-1-2-3; Natchez Special Municipal Separate District, 1-1-2-2-3-4; North Pike Consolidated District, 4-4-4; Quitman Consolidated District, 3-3-3-3, and Yazoo Municipal Separate District, 2-1-2-1-3-3.¹² Clarksdale will fare no worse than the districts indicated.

Upon remand the district court is directed forthwith to see that a bi-racial committee of the type described in Ellis v. Orange County, supra, is established. The court is further directed to require that the bi-racial committee serve in an advisory capacity to the school board and to the court in the area of the promulgation and maintenance of zone lines in pairing or clustering problems and in school site location problems as they may arise, as well as in such areas as may appear appropriate from time to time. The aid of the bi-racial committee shall be sought in consideration of the ultimate utilization of Booker T. Washington Elementary School and the allocation of the pupils presently assigned there, discussed supra.

The school district cross-appealed from the January 10, 1970 order’s disapproval of the plan submitted by it, urging that since its desegregation plan and geographic zoning was structured on a nonracial basis, it is constitutional regardless of the fact that only all-black and all-white schools resulted therefrom because of residential patterns in the community. Of course our prior mandate of March 1969 in Clarksdale I disposed of this on the basis of Green v. New Kent County, supra. The subsequent jurisprudence in this Circuit including the cases collected in footnote 5 to this opinion as well as what we have said above provides sufficient answer to this and similar contentions of the school district. As to all issues raised by the cross-appeal, we affirm the district court.

The time is short but the need is compelling. The orders of the district court of January 10, 1970 and May 8, 1970, as they apply to elementary schools are reversed and this cause is remanded to the district court with directions to take immediate action consistent with this opinion. Upon the cross-appeal of the school district the orders of the district court are affirmed.

The mandate shall issue forthwith. No stay will be granted pending petition for rehearing or application for certiorari.

Reversed and remanded as to principal appeal; affirmed as to cross-appeal.

1 . Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1966).

2 . Carter v. West Feliciana School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970).

3 . Of the six recognized criteria for eliminating the racial identification of schools: composition of student bodies, faculty, staff, transportation, extra-curricular activities and facilities, see Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (391 U.S. 435, 88 S.Ct. 1689, 20 L.Ed.2d 716) and further see Ellis v. Board of Public Instruction, Orange County, Florida, 5 Cir. 1970, 423 F.2d 203, 204, only composition of student bodies is involved in this appeal. The district is compact and furnishes no transportation as such. Elimination of duality as to faculty, staff, extra-curricular activities and facilties was accomplished by the district court’s order of January 10, 1970.

4 . Ellis v. Board of Public Instruction of Orange County, Florida, 5 Cir. 1970, 423 F.2d 203.

5 . Among others are the following: Adams v. Mathews, 5 Cir. 1968, 403 F.2d 181; United States v. Indianola Separate School District, 5 Cir. 1969, 410 F.2d 626; Andrews v. City of Monroe, 5 Cir. 1970, 425 F.2d 1017; Alexander v. Holmes County, supra, footnote 1; Carter v. West Feliciana, supra, footnote 2; United States v. Hinds County Board of Education, 5 Cir. 1969, 417 F.2d 852.

6 . The district court’s opinion of May 8 notes that the Special Master was appointed under Buie 53 of the Federal Buies of Civil Procedure, and that “the findings of the Special Master as contained in his report, are binding upon the court as to all questions of fact unless such findings are clearly erroneous”. On the other hand, the district court gave no such weight to the HEW plan, prepared by a team of three experts working more or less continuously for 7 days. The weight given the so-called Special Master’s Beport is erroneous, since it did not represent findings of fact on sworn testimony and evidence considered by the Master. The report of such a master is not governed by Buie 53. He was a school expert who gathered information and spoke to school authorities, personnel and patrons of the district. His function did not differ from that performed by the HEW team. Faced as the court was with an intransigent Board, the appointment of an independent expert to study the system and make recommendations was perhaps a practical necessity. We simply point out that his report was entitled to no greater weight because he was called a master. His report was of similar weight to the HEW report.

7 . Under the orginal school board plan 7 whites were attending Myrtle Hall whereas Dr. Murphy’s plan indicates 5 will attend. The school board plan had 2 whites and 463 blacks attending Oliver, whereas Dr. Murphy’s plan indicates no whites and 415 blacks will attend Oliver.

8 . This panel on July 14 relied strongly on Elllis in Hightower, etc., et al. v. West, etc., et al., 5 Cir. 1970, 430 F.2d 552, involving the Fulton County, Georgia, school system outside the corporate limits of Atlanta, but a part of metropolitan Atlanta.

9 . For example, in addition to Singleton III, supra, see Charles v. Ascension Parish School Board, 5 Cir. 1969, 421 F.2d 656; Williams v. Iberville Parish School Board, 5 Cir. 1969, 421 F.2d 161; Jones v. Caddo Parish School Board, 5 Cir. 1970, 421 F.2d 313; Boykins v. Fairfield Board of Education, 5 Cir. 1970, 421 F.2d 1330; United States v. Board of Education of Baldwin County, 5 Cir. 1970, 423 F.2d 1013.

10 . For instance, whether the Clarksdale Junior-Senior High complex is ultimately the single high school and the former Higgins Junior-Senior High complex is ultimately the single Junior High School or their functions are reversed, may well be left to the School Board to determine. Also, rearrangements between schools zoned or clustered, as to which buildings serve which grades may be undertaken. The point is that changes which tend to permit lessened desegregation will not be permitted.

11

12 . These figures are taken from reports to the Court filed April 15, 1970 as required by this Court’s order of Mareh 30, 1970. United States v. Hinds County, supra.