DocketNumber: Civ. A. Nos. 4396, 7747, 7749, AC-1240, 8752, 8753, 66-183, 66-536, 66-96, 66-598, 68-697, 8301, 7210, 68-698, 67-628, 68-699, 68-830, 68-1065 and 69-43 to 69-46
Judges: Hemphill, Martin, Russell, Simons
Filed Date: 3/31/1969
Status: Precedential
Modified Date: 10/19/2024
ORDER
All of the above actions seek desegregation of certain school districts in South Carolina. After hearings, decrees were entered in 13 of such actions and, for some time, the schools involved in those actions have been operated in conformity with such decrees. Nine of the actions, filed within recent months, have not proceeded to a decree. Following the decisions of the Supreme Court in Green v. County School Board (1968) 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, and the two related cases of Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 and Monroe v. Board of Commissioners,
The plaintiffs in all the actions, after reviewing the returns of the school districts, have entered their objections to those returns, contending that the outstanding decrees and plans of operation by the school districts do not comply with
In this situation, the Court is faced with the task of fashioning decrees that will assure compliance by the school districts with the applicable constitutional standards. The school districts involved in these actions, however, vary considerably in composition and character; they require individual appraisal of their practical, administrative and educational condition; they do not lend themselves to a uniform type of decree.
It must be borne in mind that there are but 22 South Carolina school districts whose operations would be affected by decrees entered in these actions. There are, though, 93 school districts in South Carolina. All are confronted in some degree with the same problem of compliance faced by the school districts involved in these actions. Enforcement of compliance on the part of most of these districts, however, has been assumed not in adversary proceedings in the Courts, but by administrative action on the part of the office of Education of H. E. W. Thus, 34 school districts are either presently operating under, or will commence operating in September, 1969, under plans of compliance approved by H. E. W. Fourteen others are involved in administrative proceedings for enforcement of compliance, conducted under the authority of H. E. W.
The authority of H. E. W. in this area derives from Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d, which requires such Department “to assume responsibility for seeing that every school in the United States was (is) desegregated”, providing it with the right to terminate federal aid as the instrument of enforcement. 77 Yale Law J. 322. There are thus two governmental bodies, one judicial and the other executive, charged with, and engaged in, the common task of enforcing the 14th Amendment ban against segregation in public schools in South Carolina, though the powers of enforcement of the two are somewhat different. In such a situation, it is inevitable that confusion, even justifiable resentment, will result if there is substantial variation in the requirements imposed separately by the judicial and executive branches in this common task of the two.
It is true the Courts may not abdicate in the field of education their responsibilities as the traditional guardian of constitutional rights or transfer those responsibilities wholly to the Office of Education; and the guidelines for desegregation promulgated by H. E. W. are “not determinative” or “binding on the courts” (Bowman v. County School Board of Charles City County, Va., 4th Cir. 1967, 382 F.2d 326, 328, rev. on other grounds, Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed. 716; Cypress v. Newport News General & Non-Sectarian Hosp. Ass’n, 4th Cir. 1967, 375 F.2d 648, 657, note 15) and may not be deemed “our absolute pole star for determining constitutional rights and duties in the area of school desegregation” (Clark v. Board of Education of Little Rock Sch. Dist., 8th Cir. 1967, 374 F.2d 569, 570). Nonetheless, the guidelines for desegregation issued by H. E. W. “are entitled to serious judicial deference” (Smith v. Board of Education of Morrilton School District No. 32, 8th Cir. 1966, 365 F.2d 770, 780), “respectful consideration” (Bowman v. County School Board, supra,, 382 F.2d, at p. 328) and “great weight” (Wright v. County Board of Greensville, Va., D.C.Va.1966, 252 F.Supp. 378, 383) “to the end of promoting a degree of uniformity and discouraging reluctánt school boards from reaping a benefit from their reluctance the courts should endeavor to model their standards after those promulgated by the executive” (Kemp v. Beasley, 8th Cir. 1965, 352 F.2d 14, 19, reh. den. 389 F.2d 178); and, “There should be a close correlation, therefore, between the judiciary’s standards in enforcing the national policy requiring desegregation of public schools and the executive department’s standards in administering this policy” (Singleton v. Jackson Municipal Separate School District, 5th Cir. 1965, 348 F.2d 729, 731). In short, though, “They are not bound, however, and when circumstances dictate, the courts may require more, less or different from the H. E. W. guidelines” (Kemp v. Beasley, supra), “At the least a close partnership between the judiciary and the executive is required” (77 Yale L.J. 365).
Actually, the formulation of appropriate decrees in the cases before the Court present few, if any, justiciable is
For the foregoing reasons,
It is hereby ordered, that all defendant school districts shall promptly submit to the Office of Education, H. E. W., their existing method of operation, along with any changes proposed by them under the order of this Court issued September 13, 1968 and shall seek, within 30 days, to develop, in conjunction with the experts of such Office, an acceptable plan of operation, conformable to the constitutional rights of the plaintiffs in these actions, and consonant in timing and method with the practical and administrative problems faced by the particular district. If such plan can be agreed upon by the defendant school district and H. E. W. within the time fixed, the Court will approve such plan, unless the plaintiffs within ten days make proper showing that the plan does not meet constitutional standards. Should the defendant school district be operating under a plan of desegregation approved by H. E. W. for future operation of the school district, such plan shall be adopted as the decree of this
APPENDIX
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CYRIL B. BU9BEE •tatk supkrinycndbnt or education
COLUMBIA, S. C. 29201
March 27, 1969
MEMORANDUM
STATUS REPORT OF SCHOOL DISTRICT DESEGREGATION IN SOUTH CAROLINA
THIRTY-FOUR SCHOOL DISTRICTS HAVE SUBMITTED AND RECEIVED APPROVAL OF PLANS TO COMPLY WITH REQUIREMENTS OF TITLE VI OF THE CIVIL RIGHTS ACT. THESE PLANS WILL BE IMPLEMENTED IN PROGRESSIVE STEPS OVER THE*1968-69, 1969-70 AND IN SOME SCHOOL DISTRICTS UNTIL SEPTEMBER OF 1970. DISTRICTS WITH PLANS EXTENDING TO 1970 HAVE BUILDING CONSTRUCTION THAT VITALLY AFFECTS THE IMPLEMENTATION OF THEIR PLAN:
AIKEN COUNTY NEWBERRY COUNTY
ANDERSON DISTRICTS #1, #2, #5 OCONEE COUNTY
CHEROKEE COUNTY PICKENS COUNTY
CHESTER COUNTY SPARTANBURG DISTRICTS #1, #2, #3, #4, #5, #6, #7
FLORENCE DISTRICTS #2, #3, #5 SUMTER DISTRICT #17
GREENWOOD DISTRICT #51 UNION COUNTY
KERSHAW COUNTY RICHLAND DISTRICT #2
LAURENS DISTRICT #55 WILLIAMSBURG COUNTY
LEXINGTON DISTRICTS #2, #4, #5 YORK DISTRICTS #1, #2, #3, #4
MARION DISTRICT #2
FOURTEEN SCHOOL DISTRICTS HAVING A LARGE MAJORITY OF NEGROES HAVING BEEN INSTRUCTED BY THE TITLE VI OFFICE FOR jCIVIL RIGHTS TO SUBMIT A PLAN BY SEPTEMBER 30, 1968 TO ELIMINATE THE DUAL STRUCTURE IN 1969-70, HAVE NOT RECEIVED APPROVAL OF A PLAN AS OF THIS DATE:
BAMBERG DISTRICT #1 FLORENCE DISTRICT #4
BARNWELL DISTRICT #19 HAMPTON DISTRICT #2
BEAUFORT COUNTY JASPER COUNTY
DILLON DISTRICT #1 McCORMICK COUNTY
EDGEFIELD COUNTY ORANGEBURG DISTRICTS #1, #3, #6, #8
FAIRFIELD COUNTY
TWELVE DISTRICTS ARE OPERATING UNDER A COURT ORDER TO DESEGREGATE:
CHARLESTON DISTRICT #20 (District consolidated into county unit but court order is still in effect)
CLARENDON DISTRICTS #1, .#2', #3
DARLINGTON COUNTY
DORCHESTER DISTRICTS #2, #3
GREENVILLE COUNTY
LEXINGTON DISTRICT #1
ORANGEBURG' DISTRICTS #5, #7
SUMTER DISTRICT #2
SIX DISTRICTS HAVE SUBMITTED BRIEFS IN RESPONSE TO THE JUSTICE DEPARTMENT’S REQUEST TO SUBMIT AN- ACCEPTABLE PLAN TO DESEGREGATE OR FACE A SUBPOENA TO DEFEND THEIR DESEGREGATION PLAN BEFORE FEDERAL COURT:
ALLENDALE COUNTY (Funds have not been terminated)
ANDERSON piSTRICT #3 (Funds terminated March 7, 1968)
DORCHESTER DISTRICT #1 (Funds have not been terminated)
CHESTERFIELD COUNTY (Funds have not been terminated)
BAMBERG DISTRICT #2 (Funds have not been terminated)
GEORGETOWN COUNTY (Funds terminated March 25, 1968)
THREE DISTRICTS HAVE HAD ADMINISTRATIVE HEARINGS, HAVE BEEN DECLARED BEING IN. ÑON-COMPLIANCE, AND AN APPEAL IS PENDING BEFORE A REVIEWING BOARD:
FLORENCE DISTRICT #1
GREENWOOD DISTRICT #50
LEXINGTON DISTRICT #3
DECISION OF NON-COMPLIANCE ISSUED BY A REVIEWING BOARD:
LEE COUNTY
DECISION OF NON-COMPLIANCE ISSUED FOLLOWING A HEARING OR DEFAULT PROCEEDINGS:
ORANGEBURG DISTRICTS #2, #4
THREE DISTRICTS HAVE HAD ADMINISTRATIVE HEARINGS WITH ADMINISTRATIVE PROCEEDINGS CONTINUING AGAINST THEM BUT THEY HAVE BEEN TEMPORARILY REMOVED FROM THE DEFERRED STATUS BY AGREEING TO SUBMIT A PLAN TO ELIMINATE THE DUAL SCHOOL SYSTEM BY 1969-70. THIS MEANS ADDITIONAL PROJECTS MAY BE SUBMITTED OR EXISTING PROJECTS ALTERED:
HORRY COUNTY
MARION DISTRICT #1
MARLBORO COUNTY
TOO DISTRICTS HAVE BEEN PLACED IN A DEFERRED STATUS AWAITING AN ADMINISTRATIVE . HEARING:
BERKELEY COUNTY
MARION DISTRICT #4
RICHLAND DISTRICT #1 HAD AN ADMINISTRATIVE HEARING — AWAITING THE DECISION OF THE EXAMINING OFFICER.
COLLETON COUNTY HAS ADMINISTRATIVE PROCEEDINGS CONTINUING AGAINST THEM BUT DEFERRAL OF FUNDS HAS BEEN LIFTED UPON AN AGREEMENT OF THE DISTRICT TO SUBMIT A PLAN TO ELIMINATE THE DUAL SYSTEM.
CHARLESTON COUNTY HAS BEEN GRANTED PERMISSION TO ADOPT A PLAN AND SUBMIT IT FOR APPROVAL BY APRIL 21, 1969.
(The districts listed on this page are at varying stages in the administrative proceedings cycle for non-compliance.)
SIXTEEN DISTRICTS HAVE HAD THEIR FUNDS TERMINATED AS OF MARCH 15, 1969 FOR NON-COMPLIANCE:
**AB3EVILLE COUNTY January 29, 1969
ANDERSON DISTRICT #3 March 7, 1968
ANDERSON DISTRICT #4 January 19, 1969
BARNWELL DISTRICT #29 September 14, 1968
CALHOUN DISTRICT #1 March 25, 1968
CALHOUN DISTRICT #2 December 31, 1966
DILLON DISTRICT #2 December 19, 1968
DILLON DISTRICT #3 March 25, 1968
GEORGETOWN COUNTY March 25, 1968
GREENWOOD DISTRICT #52 March 15, 1969
HAMPTON DISTRICT #1 September 14, 1968
LANCASTER COUNTY December 19, 1968
LAURENS DISTRICT #56 September 14, 1968
MARION DISTRICT #3 October 16, 1967
SALUDA COUNTY September 14, 1968
NOTE,: There are ninety-three (93) school districts in South Carolina. Anderson District #3, Charleston #20, and Georgetown County have been listed twice.
. For interesting comments on these decisions, see 21 Vanderbilt L.Rev. 1093 (1968) and 82 Har.L.Rev. 111-8 (1968).
. That each school district is entitled to the consideration of its own unique administrative problems in the formulation of a plan of desegregation seems evident from the comment of the Court in the second Brown v. Board of Education Case that, in developing its decree, the District Court should go into every aspect of “problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, * * 349 U.S. 294, 300-301, 99 L.Ed. 1083, 75 S.Ct. 753, 756.
. Cf., however, Brewer v. School Board of City of Norfolk, Norfolk, Virginia, 4th Cir. 1968, 397 F.2d 37.
. Cf., the comment in 82 Har.L.Rev. 114 on the Green Case: “It may also have been important to the decision (in the Green Case) that the County population (involved) was not predominantly Negro, and that therefore the goal of an integrated education for all Negro pupils was feasible, absent white withdrawal.” In this same comment, the editors suggest that the Green decision left open and unresolved what they described as the “hard questions”, such as, “in formulating desegregation plans, what weight is to be given to sound policies of education and school administration; what weight to wishes of southern black nationalists for separation, even where by the lights of the larger community the result will be ‘inferior’ education; what weight to such evidence as exists that once the ratio of Negro pupils passes beyond a critical point the educational benefits from integration are reduced or lost altogether?” 82 Har.L.Rev. 114-5.
. A full statement from the State Superintendent of Education of the situation of all the South Carolina school districts, as of March 27, 1969, is appended hereto.
. See, also, 82 Har.L.Rev. 118: “The existence of parallel administrative and judicial requirements for desegregation has created problems for both H.E.W. and the Courts and has engendered considerable discussion.”
. Cf., Price v. Denison Independent School District, 5th Cir. 1965, 348 F.2d 1010, 1014: “By the 1964 Act and the action of HEW, administration (of school desegregation plans) is largely where it ought to be — in the hands of the Executive and its agencies with the function of the Judiciary confined to those rare cases presenting justiciable, not operational, questions.”
. Cf., however, note 4.
. See, also, the comments in 81 Har.L.Kev. 1511 at p. 1525, on Hobson v. Hansen (D.C.D.C.1967) 269 F.Supp. 401, appeal dismissed 393 U.S. 801, 89 S.Ct. 40, 21 L.Ed.2d 85, and “the institutional competence of the judiciary to exercise broad review over education,” even for purposes of “correcting racially motivated educational policies.”
These districts' funds are held in escrow while they submit a plan within 60 days from January 29, 1969. If a plan is not accepted in 60 days, funds will be terminated as of January 29, 1969.