UNITED STATES of America and Linda Stout, by
her father and next friend, Blevin
Stout, Appellants,
v.
v.
The BOARD OF EDUCATION OF the CITY OF
FAIRFIELD et al., Appellees.
v.
The BOARD OF EDUCATION OF the CITY OF
BESSEMER et al., Appellees.
v.
v.
The BOSSIER PARISH SCHOOL BOARD et al.,
Appellees.
Margaret M. JOHNSON et al., Appellants,
v.
Yvornia Decarol
BANKS et al., Appellants,
v.
School desegregation cases. The United States District Court for the Northern District of Alabama, Seybourn H. Lynne, Chief Judge, and Harlan Hobart Grooms, J., and the District Court for the Western District of Louisiana, Benjamin C. Dawkins, Jr., Chief Judge, entered judgments from which appeals were taken. The Court of Appeals, Wisdom, Circuit Judge, held that desegregation standards of Department of Health, Education, and Welfare are within rationale of decision of United States Supreme Court in Brown case and congressional objectives of Civil Rights Act of 1964. The Court further held that the Constitution compels formerly de jure segregated public school systems based on dual attendance zones to shift to unitary, non-racial systems, with or without federal funds.
Reversed and remanded
WISDOM, Circuit Judge:
Once again the Court is called upon to review school desegregation plans to determine whether the plans meet constitutional standards. The distinctive feature of these cases, consolidated on appeal, is that they also require us to reexamine school desegregation standards in the light of the Civil Rights Act of 1964 and the Guidelines of the United States Office of Education, Department of Health, Education, and Welfare (HEW).
When the United States Supreme Court in 1954 decided Brown v. Board of Education [FN1] the members of the High School Class of 1966 had not entered the first grade. Brown I held that separate schools for Negro children were ‘inherently unequal’. [FN2] Negro children, said the Court, have the ‘personal and present’ right to equal educational opportunities with white children in a racially nondiscriminatory public school system. For all but a handful of Negro members of the High School Class of ‘66 this right has been ‘of such stuff as dreams are made on’. [FN3]
FN1. Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I). See Brown v. Board of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II).
FN2. 347 U.S. at 495, 74 S.Ct. 686.
FN3.
Shakespeare, The Tempest, Act IV. The cases consolidated for appeal involve
“The Brown case is misread and misapplied when it is construed simply to confer upon Negro pupils the right to be considered for admission to a white school”. [FN4] The United States Constitution, *846 as construed in Brown, requires public school systems to integrate students, faculties, facilities, and activities. [FN5] If Brown I left any doubt as to the affirmative duty of states to furnish a fully integrated education to Negroes as *847 a class, Brown II resolved that doubt. A state with a dual attendance system, one for whites and one for Negroes,must ‘effectuate a transition to a (unitary) racially nondiscriminatory school system.’ [FN6] The two Brown decisions established equalization of educational opportunities as a high priority goal for all of the states and compelled seventeen states, which by law had segregated public schools, to take affirmative action to reorganize their schools into a unitary, nonracial system.
FN4. Braxton v. Board of Public Instruction of Duval County, S.D.Fla.1962, 7 Race Rel.L.Rep. 675, aff’d, 5 Cir. 1964, 326 F.2d 616, cert. den’d 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964). Senator Humphrey cited this case in explaining Section 604 of The Civil Rights Act of 1964. See Section IV D of this opinion.
FN5. The mystique that has developed over the supposed difference between ‘desegregation’ and ‘integration’ originated in Briggs v. Elliott, E.D.S.C.1955, 132 F.Supp. 776: ‘The Constitution * * * does not require integration. It merely forbids (segregation)’. 132 F.Supp. at 777. This dictum is a product of the narrow view that Fourteenth Amendment rights are only individual rights; that therefore Negro school children individually must exhaust their administrative remedies and will not be allowed to bring class action suits to desegregate a school system. See Section III A of this opinion.
The Supreme Court did not use either term, ‘desegregation’ or ‘integration’, in Brown. But the Court did quote with approval a statement of the district court in which ‘integrated’ was used as we use it here. For ten years after Brown the Court refrained from using the terms ‘integration’ or ‘integrated’. Then in 1964 in Griffin v. County School Board of Prince Edward County, 375 U.S. 391, 84 S.Ct. 400, 11 L.Ed.2d 409, the Court noted that ‘the Board of Supervisors decided not to levy taxes or appropriate funds for integrated public schools’, i.e. schools schools under a desegregation order. There is not one Supreme Court decision which can be fairly construed to show that the Court distinguished ‘desegregation’ from ‘integration’, in terms or by even the most gossamer implication.
Counsel for the
By ‘desegregation’ we mean the duty imposed by Brown upon schools which previously compelled segregation to take affirmative steps to eliminate such compulsory segregation so as to allow the admission of students to schools on a non-racial admission basis. By ‘integration’ we mean the actual placing of or attendance by Negro students in schools with whites.
They can do so only by narrowing the definitions to the point of inadequacy. Manifestly, the duty to desegregate schools extends beyond the mere ‘admission’ of Negro students on a non-racial basis. As for ‘integration’, manifestly a desegregation plan must include some arrangement for the attendance of Negroes in formerly white schools.
In this opinion we use the
words ‘integration’ and ‘desegregation’ interchangeably. That is the way they
are used in the vernacular. That is the way they are defined in Webster’s Third
New International Dictionary: “integrate’ to ‘desegregate”. The Civil Rights
Commission follows this usage: for example, ‘The Office of Education * * *
standards * * * should * * * ensure that free choice plans are adequate to
disestablish dual, racially segregated school systems * * * to achieve
substantial integration in such systems.’
The
Eighth Circuit used ‘integration’ interchangeably with ‘desegregation’ in Smith
v. Board of Education of Morrilton, 8 Cir. 1966, 365 F.2d 770. So did the Third Circuit in Evans
v. Ennis, 3 Cir. 1960, 281 F.2d 385. See also
Brown v.
We use the terms ‘integration’ and ‘desegregation’ of formerly segregated public schools to mean the conversion of a de jure segregated dual system to a unitary, nonracial (nondiscriminatory) system-- lock, stock, and barrel: students, faculty, staff, facilities, programs, and activities. The proper governmental objective of the conversion is to offer educational opportunities on equal terms to all.
As we see it, the law imposes an absolute duty to desegregate, that is, disestablish segregation. And an absolute duty to integrate, in the sense that a disproportionate concentration of Negroes in certain schools cannot be ignored; racial mixing of students is a high priority educational goal. The law does not require a maximum of racial mixing or striking a racial balance accurately reflecting the racial composition of the community or the school population. It does not require that each and every child shall attend a racially balanced school. This, we take it, is the sense in which the Civil Rights Commission used the phrase ‘substantialintegration’.
As long as school boards understand the objective of desegregation and the necessity for complete disestablishment of segregation by converting the dual system to a nonracial unitary system, the nomenclature is unimportant. The criterion for determining the validity of a provision in a desegregation plan is whether it is reasonably related to the objective. We emphasize, therefore, the governmental objective and the specifics of the conversion process, rather than the imagery evoked by the pejorative ‘integration’. Decision-making in this important area of the law cannot be made to turn upon a quibble devised over ten years ago by a court that misread Brown, misapplied the class action doctrine in the school desegregation cases, and did not foresee the development of the law of equal opportunities.
FN6. Brown v. Board of Education, 1955, 349 U.S. 294, 301, 75 S.Ct. 753, 756.
The only school desegregation plan that meets constitutional standards is one that works. By helping public schools to meet that test, by assisting the courts in their independent evaluation of school desegregation plans, and by accelerating the progress but simplifying the process of desegregation the HEW Guidelines offer new hope to Negro school children long denied their constitutional rights. A national effort, bringing together Congress, the executive, and the judiciary may be able to make meaningful the right of Negro children to equal educational opportunities. The courts acting alone have failed.
We hold, again, in determining whether school desegregation plans meet the standards of Brown and other decisions of the Supreme Court, [FN7] that courts in this circuit should give ‘great weight’ to HEW Guidelines. [FN8] Such deference is consistent with the exercise of traditional judicial powers and functions. HEW Guidelines are based on decisions of this and other courts, are formulated to stay within the scope of the Civil Rights Act of 1964, are prepared in detail by experts in education and school administration, and are intended by Congress and the executive to be part of a coordinated national program. The Guidelines present the best system available for uniform application, and the best aid to the courts in evaluating the validity of a school desegregation plan and the progress made under that plan.
HEW regulations provide that schools applying for financial assistance must comply with certain requirements. However, the requirements for elementary or secondary schools ‘shall be deemed to be satisfied if such school or school system is subject t a final order of a court of the United States for the desegregation of such school or school system * * *.’ [FN9] This regulation causes our decisions to have a twofold impact on school desegregation. Our decisions determine not only (1) the standards *848 schools must comply with under Brown but also (2) the standards these schools must comply with to qualify for federal financial assistance. Schools automatically qualify for federal aid whenever a final court order desegregating the school has been entered in the litigation and the school authorities agree to comply with the order. Because of the second consequence of our decisions and because of our duty to cooperate with Congress and with the executive in enforcing Congressional objectives, strong policy considerations support our holding that the standards of court-supervised desegregation should not be lower than the standards of HEW-supervised desegregation. The Guidelines, of course, cannot bind the courts; we are not abdicating any judicial responsibilities. [FN10] But we hold that HEW’s standards are substantially the same as this Court’s standards. They are required by the Constitution and, as we construe them, are within the scope of the Civil Rights Act of 1964. In evaluating desegregation plans, district courts should make few exceptions to the Guidelines and should carefully tailor those so as not to defeat the policies of HEW or the holding of this Court.
Case by case over the last twelve years, courts have increased their understanding of the desegregation process. [FN11] Less and less have courts accepted the question-begging distinction between ‘desegregation’ and ‘integration’ as a sanctuary for school boards fleeing from their constitutional duty to establish an integrated, non-racial school system. [FN12] With the benefit of this experience, the Court has restudied the School Segregation Cases. We have reexamined the nature of the Negro’s right to equal educational opportunities and the extent of the correlative affirmative duty of the state to furnish equal educational opportunities. We have taken a close look at the background and objectives of the Civil Rights Act of 1964. [FN13]
We approach decision-making here with humility. Many intelligent men of good will who have dedicated their lives to public education are deeply concerned for fear that a doctrinaire approach to desegregating schools may lower educational standards or even destroy public schools in some areas. These educators and school administrators, especially in communities where total segregation has been the way of life from cradle to coffin, may fail to understand all of the legal implications of Brown, but they understand the grim realities of the problems that complicate their task.
The Court is aware of the gravity of their problems. (1) Some determined opponents of desegregation would scuttle public education rather than send their children to schools with Negro children. These men flee to the suburbs, reinforcing urban neighborhood school patterns. (2) Private schools, aided by state *849 grants, have mushroomed in some states in this circuit. [FN14] The flight of white children to these new schools and to established private and parochial schools promotes resegregation. (3) Many white teachers prefer not to teach in integrated public schools. They are tempted to seek employment at white private schools or to retire. (4) Many Negro children, for various reasons, prefer to finish school where they started. These are children who will probably have to settle for unskilled occupations. (5) The gap between white and Negro scholastic achievements causes all sorts of difficulties. There is no consolation in the fact that the gap depends on the socioeconomic status of Negroes at least as much as it depends on inferior Negro schools.
FN14.
No court can have a confident solution for a legal problem so closely interwoven with political, social, and moral threads as the problem of establishing fair, workable standards for undoing de jure school segregation in the South. The Civil Rights Act of 1964 and the HEW Guidelines are belated but invaluable helps in arriving at a neutral, principled decision consistent with the dimensions of the problem, traditional judicial functions, and the United States Constitution. We grasp the nettle.
I.
‘No army is stronger than an idea whose time has come.’ [FN15] Ten years after Brown, came the Civil Rights Act of 1964. [FN16] Congress decided that the time had come for a sweeping civil rights advance, including national legislation to speed up desegregation of public schools and to put teeth into enforcement of desegregation. [FN17] Titles IV and VI together constitute the congressional alternative to court-supervised desegregation. These sections of the law mobilize in *850 aid of desegregation the United States Office of Education and the Nation’s purse.
A. Title IV authorizes the Office of Education to give
technical and financial assistance to local school systems in the process of
desegregation. [FN18] Title VI requires all federal agencies administering any
grant-in- aid program to see to it that there is no racial discrimination by
any school or other recipient of federal financial aid. [FN19] School
boards cannot, however, by giving up federal aid, avoid the policy that
produced this limitation on federal aid to schools: Title IV authorizes the
Attorney General to sue, in the name of the
FN19. 78 Stat.
252-53, 42
U.S.C. § 2000d (1964). Section
601 states: ‘No person in the
FN20. 78 Stat. 246-49, 42 U.S.C. § 2000c (1964). In addition, Title IX authorizes the Attorney General to intervene in private suits where persons have alleged denial of equal protection of the laws under the 14th Amendment where he certifies that the case is of ‘general public importance.’ 78 Stat. 266, Title IX § 902, 42 U.S.C. § 2000 h-2 (1964).
The Chief Executive acted
promptly to carry into effect the Chief Legislature’s
mandate. President Lyndon B. Johnson signed the bill into law
In April 1965 Congress for the first time in its history adopted a law providing general federal aid-- a billion dollars a year-- for elementary and secondary schools. [FN24] It is a fair assumption that Congress would not have taken this step had Title VI not established the principle that schools receiving federal assistance must meet uniform national standards for desegregation. [FN25]
FN25. ‘The
Elementary and Secondary Education Act of 1965 greatly increased the amount of
federal money available for public schools, and did so in accordance with a
formula that pumps the lion’s share of the money to low-income areas such as
the Deep South. Consequently, Title VI of the Civil Rights Act of 1964 has
become the main instrument for accelerating and completing the desegregation of
Southern public schools.’ The New Republic,
To make Title VI effective, the Department of Health, Education, and Welfare (HEW) adopted the regulation, ‘Nondiscrimination in Federally assisted Programs.’ [FN26] This regulation directs the Commissioner of Education to approve applications for financial assistance to public schools only if the school or school system agrees to comply with a court order, if any, outstanding against it, or submits a desegregation plan satisfactory to the Commissioner. [FN27]
To make the regulation effective, by assisting the Office of Education in determining whether a school qualifies for federal financial aid and by informing school boards of HEW requirements, HEW formulated certain standards or guidelines. In April 1965, nearly a year after the Act was signed, HEW published its first Guidelines, ‘General Statement of Policies under Title VI of the Civil Rights Act of 1964 Respecting Desegregation of Elementary and Secondary Schools.’ [FN28] These Guidelines fixed the fall of 1967 as the target date for total desegregation of all grades. In March 1966 HEW issued ‘Revised Guidelines’ to correct most of the major flaws revealed in the first year of operation under Title VI. [FN29]
B. The HEW Guidelines raise the question: To what extent
should a court, in determining whether to approve a school desegregation plan,
give weight to the HEW Guidelines? We
adhere to the answer this Court gave in four
earlier cases. The HEW Guidelines are ‘minimum standards’, representing for the
most part standards the Supreme Court and this Court established before the
Guidelines were promulgated. [FN30] Again we
hold, ‘we attach great weight’ to the Guidelines.
Singleton v. Jackson Municipal Separate School District, 5 Cir. 1965, 348 F.2d
729 (Singleton I). ‘We put these standards to
work. * * * (Plans should be) modeled after the Commissioner *852 of
Education’s requirements * * *. (Exceptions to the guidelines should be)
confined to those rare cases presenting justiciable, not operational,
questions. * * * The applicable standard is essentially the HEW
formulae.’ Price v. Denison Independent School District, 5 Cir. 1965, 348 F.2d
1010. ‘We consider it to be in the best interest
of all concerned that School Boards meet the minimum standards of the Office of
Education * * *. In certain school districts and in certain respects, HEW
standards may be too low to meet the requirements established by the Supreme
Court and by this Court * * *. (But we also) consider it important to make
clear that * * * we do not abdicate our judicial responsibility for determining
whether a school desegregation plan violates federally guaranteed rights.’ Singleton
v. Jackson Municipal Separate School District, 5 Cir. 1966, 355 F.2d 865
(Singleton II). In Davis
v. Board of School Commissioners of Mobile County, 5 Cir. 1966, 364 F.2d 896, the most recent school case before this Court, we approved
Singleton I and II and Price v.
Courts in other circuits are in substantial agreement with this Court. In Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, 18-19, the Court said: ‘The Court agrees that these (HEW) standards must be heavily relied upon * * *. The courts should endeavor to model their standards after those promulgated by the executive. They are not bound, however, and when circumstances dictate, the courts may require something more, less or different from the H.E.W. guidelines.’ Concurring, Judge Larson observed: ‘However, that ‘something different’ should rarely, if ever, be less than what is contemplated by the H.E.W. standards.’ 352 F.2d at 23. Smith v. Board of Education of Morrilton, 8 Cir. 1966, 365 F.2d 770 reaffirms that the Guidelines ‘are entitled to serious judicial deference’.
Although the Court of Appeals
for the Fourth Circuit has not yet considered the effect of the HEW standards,
district courts in that circuit have relied on the guidelines. See Kier
v. County School Board of Augusta County, W.D.Va.1966,
249 F.Supp. 239; Wright
v. County School Board of Greenville County, E.D. Va.1966, 252 F.Supp. 378; Miller
v. Clarendon County School District No. 2, D.S.C., 253 F.Supp. 552,
The orderly progress of desegregation is best served if school systems desegregating under court order are required to meet the minimum standards promulgated for systems that desegregate voluntarily. Without directing absolute adherence to the ‘Revised Statement’ guidelines at this juncture, this court will welcome their inclusion in any new, amended, or substitute plan which may be adopted and submitted.
In this circuit, the school problem arises from state action. This Court has not had to deal with nonracially motivated de facto segregation, that is, racial imbalance resulting fortuitously in a school system based on a single neighborhood school serving all white and Negro children in a certain attendance area or neighborhood. For this circuit, the HEW Guidelines offer, for the first time, the prospect that the transition from a de jure segregated dual system to a unitary integrated system may be carried out effectively, promptly, and in an orderly manner. See Appendix B, Rate of Change and Status of Desegregation.
II.
We read Title VI as a congressional mandate for change-- change in pace and method of enforcing desegregation. The 1964 Act does not disavow court-supervised desegregation. On the contrary, Congress recognized that to the courts belongs the last word in any case *853 or controversy. [FN31] But Congress was dissatisfied with the slow progress inherent in the judicial adversary process. [FN32] Congress therefore fashioned a new method of enforcement to be administered not on a case by case basis as in the courts but generally, by federal agencies operating on a national scale and having a special competence in their respective fields. Congress looked to these agencies to shoulder the additionalenforcement burdens resulting from the shift to high gear in school desegregation.
A. Congress was well aware that it was time
for a change. In the decade following
Brown, court-supervised desegregation made qualitative progress: Responsible
Southern leaders accepted desegregation as a settled constitutional principle. [FN33]
Quantitively, the results were meagre. The statistics speak eloquently. See
Appendix B, Rate of Change and Status of Desegregation. In 1965 the public
school districts in the consolidated cases now before this Court had a school
population of 155,782 school children, 59,361 of whom were Negro. Yet under the
existing court-approved desegregation plans, only 110 Negro children in these
districts, .019 per cent of the school population, attend formerly ‘white’
schools. [FN34] In 1965 there was no faculty desegregation in any of these
school districts; indeed, none of the 30,500 Negro teachers in
The dead hand of the old past and the closed fist of the recent past account for some of the slow progress. There are other reasons-- as obvious to Congress as to courts. (1) Local loyalties compelled school officials and elected officials to make a public record of their unwillingness to act. But even school authorities willing to act have moved slowly because of uncertainty as to the scope of their duty to act affirmatively. This is attributable to (a) a misplaced reliance on the Briggs dictum that the Constitution ‘does not require integration’, [FN38] (b) a misunderstanding of the Brown II mandate, desegregate with ‘all deliberate speed’, [FN39] and (c) a mistaken notion that transfers under the Pupil Placement Laws satisfy desegregation requirements. [FN40] (2) Case by case development *855 of the law is a poor sort of medium for reasonably prompt and uniform desegregation. There are natural limits to effective legal action. Courts cannot give advisory opinion, and the disciplined exercise of the judicial function properly makes courts reluctant to move forward in an area of the law bordering the periphery of the judicial domain. (3) The contempt power is ill-suited to serve as the chief means of enforcing desegregation. Judges naturally shrink from using it against citizens willing to accept the thankless, painful responsibility of serving on a school board. [FN41] (4) School desegregation plans are often woefully inadequate; they rarely provide necessary detailed instructions and specific answers to administrative problems. [FN42] And most judges do not have sufficient competence-- they are not educators or school administrators-- to know the right questions, must less the right answers. (5) But one reason more than any other has held back desegregation of public schools on a large scale. This has been the lack, until 1964, of effective congressional statutory recognition of school desegregation as the law of the land. [FN43]
Considerable progress has been made * * *. Nevertheless, in the last *856 decade it has become increasingly clear that progress has been too slow and that national legislation is required to meet a national need which becomes ever more obvious.’ [FN44] Title VI of the Civil Rights Act of 1964, therefore, was not only appropriate and proper legislation under the Thirteenth and Fourteenth Amendments; it was necessary to rescue school desegregation from the log in which it had been trapped for ten years. [FN45]
The Civil Rights Commission, doubtless better able than any other authority to understand the significance of the Civil Rights, Act of 1964, had this to say about Title VI:
‘This statute heralded a new era
in school desegregation * * *. Most significantly * * * Federal power was to be
brought to bear in a manner which promised speedier and more substantial
desegregation than had been achieved through the voluntary efforts of school
boards and district-by-district litigation. * * * During fiscal year 1964,
$176,546,992 was distributed to State and
local school agencies in the 17 Southern and
B. The congressional mandate, as embodied in the Act and as carried out in the HEW Guidelines, does not conflict with the proper exercise of the judicial function or with the doctrine of separation of powers. It does however profoundly affect constructive use of the judicial function within the lawful scope of sound judicial discretion. When Congress declares national policy, the duty the two other coordinate branches owe to the Nation requires that, within the law, the judiciary and the executive respect and carry out that policy. Here the Chief Executive acted promptly to bring about uniform standards for desegregation. The judicial branch too should cooperate with Congress and the executive in making administrative agencies effective instruments for supervising and enforcing desegregation of public schools. Justice Harlan F. Stone expressed this well:
‘Legislatures create administrative agencies with the desire and expectation that they will perform efficiently the tasks committed to them. That, at least, is one of the contemplated social advantages to be weighed in resolving doubtful construction. Its aim is so obvious as to make unavoidable the conclusion that the function which courts are called upon to perform, in carrying into operation such administrative *857 schemes, is constructive, not destructive, to make administrative agencies, whenever reasonably possible, effective instruments for law enforcement, and not to destroy them.’ [FN47]
In an analogous situation involving enforcement of the Fair Labor Standards Act, the Supreme Court has said, ‘Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons.’ Skidmore v. Swift & Co., 1944, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124. In an appeal from the district court’s denial of an injunction to enforce labor standards under the Act this Court has pointed out:
‘* * * this proceeding is only superficially related to a suit in equity for an injunction to protect interests jeopardized in a private controversy. The public interest is jeopardized here. The injunctive processes are a means of effecting general compliance with national policy as expressed by Congress, a public policy judges too must carry out-- actuated by the spirit of the law and not begrudgingly as if it were a newly imposed fiat of a presidium. * * * Implicit in the defendants’ non-compliance, as we read the briefs and the record, is a certain underlying, not unnatural, Actonian distaste for national legislation affecting local activities. But the Fair Labor Standards Law has been on the books for twenty-three years. The Act establishes a policy for all of the country, and for the courts as well as for the agency required to administer the law. Mitchell v. Pidcock, 5 Cir. 1962, 299 F.2d 281, 287, 288.
C. We must therefore co-operate with Congress and the Executive in enforcing Title VI. The problem is: Are the HEW Guidelines within the scope of the congressional and executive policies embodied in the Civil Rights Act of 1964. We hold that they are.
The Guidelines do not purport to
be arule or regulation or order. They constitute a statement of policy under section
80.4(c) of the HEW Regulations issued after the
President approved the regulations
The Guidelines have the vices of all administrative policies established unilaterally without a hearing. Because of these vices the courts, as the school boards point out, have set limits on administrative regulations, rulings, policies, and practices: an agency construction of a statute cannot make the law; it must conform to the law and be reasonable. To some extent the administrative weight of the declarations depends on the place of such declarations in the hierarchy of agency pronouncements extending from regulations down to general *858 counsel memoranda and inter-office decisions. …
It is evident to anyone that the Guideliness were carefully formulated by educational authorities anxious to be faithful to the objectives of the 1964 Act. To the members of this Court, who for years have gone to bed and waked up with school segregation problems on their minds, it is evident that the HEW standards are strikingly similar to the standards the Supreme Court and this Court have established. The Guidelines, therefore, are not run-of-the-mine agency pronouncements low in the hierarchy of administrative declarations. They are not regulations requiring the approval of the President. They may be described as a restatement of the judicial standards *859 applicable to disestablishing de jure segregation in the public schools.
Courts therefore should cooperate with the congressional-executive policy in favor of desegregation and against aiding segregated schools.
D. Because our approval of a plan establishes eligibility for federal aid, our standards should not be lower than those of HEW. Unless judicial standards are substantially in accord with the Guidelines, school boards previously resistent to desegregation will resort to the courts to avoid complying with the minimum standards HEW promulgates for schools that desegregate voluntarily. As we said in Singleton I:
‘If in some district courts judicial guides for approval of a school desegregation plan are more acceptable to the community or substantially less burdensome than H.E.W. guides, school boards may turn to the federal courts as a means of circumventing the H.E.W. requirements for financial aid. Instead of a uniform policy relatively easy to administer, both the courts and the Office of Education would have to struggle with individual school systems on ad hoc basis. If judicial standards are lower than H.E.W. standards, recalcitrant school boards in effect will receive a premium for recalcitrance; the more the intransigence, the bigger the bonus.’ 348 F.2d at 731.
In Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, the Court concluded:
‘(HEW) standards must be heavily relied upon. * * * Therefore, to the end of promoting a degree of uniformity and discouraging reluctant school boards from reaping a benefit from their reluctance the courts should endeavor to model their standards after those promulgated by the executive.’ 352 F.2d at 18, 19.
Concurring, Judge Larson, speaking from his experience as a district judge, pointed out that school boards which do not act voluntarily retard the desegregation process to the disadvantage of the individual’s constitutional rights. ‘Judicial criteria’, therefore, ‘should probably be more stringent’ than HEW Guidelines:
‘A school board which fails to act voluntarily forces Negro students to solicit aid from the courts. This not only shifts the burden of initiating desegregation, but inevitably means delay in taking the first step. As Judge Gibson observes, we are not here concerned with regulating the flow of Federal funds. Our task is to safeguard basic constitutional rights. Thus, our standards should be directed toward full, complete, and final realization of those rights.’ 352 F.2d at 23.
The announcement in HEW
regulations that the Commissioner would accept a final school desegregation
order as proof of the school’s eligibility for federal aid prompted a number of
schools to seek refuge in the federal courts. Many
of these had not moved an inch toward desegregation. [FN49] In
We shall not permit the courts to be used to destroy or dilute the effectiveness of the congressional policy expressed *860 in Title VI. There is no bonus for foot-dragging.
E. The experience this Court has had in the last ten years
argues strongly for uniform standards in court-supervised desegregation.
The
first school case to reach this Court after Brown v. Board of Education was Brown
v. Rippy, 5 Cir. 1956, 233 F.2d 796. Since then
we have reviewed 41 other school cases, many more than once. [FN51] The
district courts in this circuit have considered 128 school cases in the same
period. Reviewing these cases imposes a taxing, time-consuming burden on the
courts not reflected in statistics. An analysis of the cases shows a wide lack
of uniformity in areas where there is no good reason for variations in the
schedule and manner of desegregation. [FN52] In some
cases there has been a substantial time-leg between this Court’s opinions and
their application by the district courts. [FN53] In certain cases-- cases we consider unnecessary to cite--
there has even been a manifest variance between this Court’s decision and a
later district court decision. A number of district courts still mistakenly
assume that transfers under Pupil Placement Laws superimposed on
unconstitutional initial assignment satisfy the requirements *861 of a
desegregation plan. The lack of clear and uniform standards to govern school
boards has tended to put a premium on delaying actions. In sum, the lack of uniform standards has retarded the development
of local responsibility for the administration of schools without regard to
race or color. What
Before HEW published its Guidelines, this Court had already established guidelines for school desegregation: to encourage uniformity at the district court level and to conserve judicial effort at both the district court and appellate levels. We did so by making detailed suggestions to the district courts.In other areas of the law involving recurrent problems of regional or national interest, this Court has also found guidelines advantageous. In United States v. Ward, 5 Cir. 1965, 349 F.2d 795, and United States v. Palmer, 5 Cir. 1966, 356 F.2d 951, suits to enjoin registrars of voters from discriminating against Negroes, we attached identical proposed decrees for the guidance of district courts. [FN54] See also Scott v. Walker, 5 Cir. 1966, 358 F.2d 561, one of a series of cases on the exclusion of Negroes from juries.
F. We summarize the Court’s policy as one of encouraging the maximum legally permissible correlation between judicial standards for school desegregation and HEW Guidelines. This policy may be applied without federal courts’ abdicating their proper judicial function. The policy complies with the Supreme Court’s increasing emphasis on more speed and less deliberation in school desegregation. [FN55] It is consistent with the judiciary’s duty to the Nation to cooperate with the two other coordinate branches of government in carrying out the national policy expressed in the Civil Rights Act of 1964.
FN55. ‘There has been entirely too much deliberation and not enough speed in enforcing the constitutional rights which we held in Brown v. Board of Education, supra, had been denied Prince Edward County Negro children. ‘Brown never contemplated that the concept of ‘deliberate speed’ would countenance indefinite delay in elimination of racial barriers in schools * * *.’ (Goldberg, J.)
III.
The
defendants contend that the Guidelines require integration, not just
desegregation; that school boards have no affirmative duty to integrate. They
say that in this respect the Guidelines are contrary to the provisions of the
Civil Rights Act of 1964 and to constitutional intent expressed in the Act.
This argument rests on nothing that the United *862 States Supreme Court
held or said in Brown or in any other case. It rests on two glosses on Brown:
the opinions in Briggs
v. Elliott, E.D.S.C. 1955, 132 F.Supp. 776 and Bell
v. School City of Gary, N.D.Ind.1963, 213 F.Supp. 819, aff’d, 7
Cir. 1963, 324 F.2d 209. Briggs, decided only six
weeks after Brown II, is one of the earliest cases in this field of law. The
portion of the opinion most quoted is pure dictum. Briggs did not paraphrase
the law as the Supreme Court stated it in Brown or as the law must be stated today
in the light of Aaron v. Cooper, Rogers v. Paul and Bradley v. School Board.
These and other decisions compel states in this circuit to take affirmative
action to reorganize their school systems by integrating the students,
faculties, facilities, and activities. As for
A. Briggs, an action to desegregate the public schools in Clarendon County, South Carolina, was one of the school cases consolidated with Brown v. Board of Education of Topeka, Kansas. On remand, a distinguished court (Parker and Dobie, Circuit Judges, and Timmerman, District Judge) felt that it was important to ‘point out exactly what the Supreme Court has decided and what it has not decided.’ The Court said:
‘It has not decided that the federal courts are to take over or regulate the public schools of the states. It has not decided that the states must mix persons of different races in the schools or must require them to attend schools or must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a state may not deny to any person on account of race the right to attend any school that it maintains. * * * The Constitution, in other words, does not require integration. It merely forbids (segregation).’ 132 F.Supp. at 777.
Ten years later
This Court and other courts, gratuitously for the most part, have often paraphrased or quoted with approval the Briggs dictum. [FN57] It is not surprising, *863 therefore, that Briggs prompted Pupil Placement Laws, the most effective technique for perpetuating school segregation. And it is not surprising that school officials-- the Briggs dictum dinned into their ears for a decade-- have not now faced up to faculty integration. However, as this Court’s experience in handling school cases increased, the Court became aware of the frustrating effects of Briggs. In Singleton I we referred to the dictum as ‘inconsistent with Brown (II) and the later development of decisional and statutory law in the area of civil rights.’ 348 F.2d at 730 n. 5. In Singleton II we called it an ‘oversimplified’ construction of Brown I. We added: ‘The Constitution forbids unconstitutional state action in the form of segregated facilities, including segregated public schools. School authorities, therefore, are under the constitutional compulsion of furnishing a single, integrated school system.’ 355 F.2d at 869. Other federal courts have disapproved of the Briggs dictum. [FN58]
*864 The Briggs dictum may be explained as a facet of the Fourth Circuit’s now abandoned view that Fourteenth Amendment rights are exclusively individual rights and in school cases are to be asserted individually after each plaintiff has exhausted state administrative remedies. [FN59] The Court disallowed class suits because Negro students who had not asked for transfers to white schools had not individually exhausted their remedies and were therefore not similarly situated with the plaintiffs. Thus in Carson v. Warlick, 4 Cir. 1956, 238 F.2d 724, Judge John Parker, for the Court, stated:
‘There is no question as to the right of these (Negro) school children * * *. They (are to be) admitted, however, as individuals, not as a class or group; and it is as individuals that their rights under the Constitution are asserted. * * * (The) school board must pass upon individual applications made individually to the board. * * *’ 238 F.2d at 729.
In Covington v. Edwards, 4 Cir. 1959, 264 F.2d 780, 783, the court commented that ‘the County board has taken no steps to put an end to the planned segregation’, but still held for the board for failure of the plaintiffs to exhaust their remedies and for filing the suit as a class action. As late as 1961, a district court observed:
‘It can fairly be said that
what the children and their parents are still seeking is only a desegregation
of the Caswell County School System rather than a protection of their own
rights . . ..’ Jeffers v. Whitley, M.D.N.C.
The Fourth Circuit moved away
from this view, holding that administrative remedies need not be exhausted
where the School Board’s past discriminatory practices made clear that
exhaustion would be futile, or where there was no time to seek redress through
proper administrative channels. Jeffers
v. Whitley, 4 Cir. 1962, 309 F.2d 621; Green v.
School Board of the City of
‘Even if limited to its narrowest interpretation, it holds that after one Negro child exhausted his administrative remedies, he may bring suit on behalf of all children segregated in the school system. The other children do not have to follow individually the labyrinth of administrative steps in the pupil placement act.’ Emerson, Haber & Dorsen 1668 (2d ed. 1967).
‘(It) would be almost a cruel joke to say that administrative remedies must be exhausted when it is known that such exhaustion of remedies will not terminate the pattern of a racial assignment.’ Jackson v. School Board of City of Lynchburg, W.D.Va.1962, 201 F.Supp. 620. McNeese v. Board of Education for School District 187,1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, put beyond debate the need to exhaust remedies and the right of Negro students to file a class action. See also Armstrong v. Board of Education of the City of Birmingham, 5 Cir. 1963, 323 F.2d 333, cert denied sub. nom. Gibson v. Harris, 376 U.S. 908, 84 S.Ct. 661, 11 L.Ed.2d 606 (1964).
In
the sense that an individual pupil’s right under the equal protection clause is
a ‘personal and present’ right not to be discriminated against by being
segregated, [FN60] the dictum is a cliche. The Fourteenth Amendment provides,
‘nor shall any State * * * deny to any *865 person within its
jurisdiction the equal protection of the laws’. The dictum would also be
defensible, if the Briggs court had used the term ‘integration’ to mean an
absolute command at all costs that each and every Negro child attend a racially
balanced school. [FN61] But what
is wrong about the dictum is more important than what is right about it. What
is wrong about Briggs is that it drains out of Brown that decision’s
significance as a class action to secure equal educational opportunities for
Negroes by compelling the states to reorganize their public school systems. [FN62] All four
of the original School Segregation cases were *866 class actions and
described as such in the opinions. 347
We do not minimize the importance of the Fourteenth Amendment rights of an individual, but there was more at issue in Brown than the controversy between certain schools and certain children. Briggs overlooks the fact that Negroes collectively are harmed when the state, by law or custom, operates segregated schools or a school system with uncorrected effect of segregation.
Denial of access to the dominant culture, lack of opportunity in any meaningful way to participate in political and other public activities, the stigma of apartheid condemned in the Thirteenth Amendment are concomitants of the dual educational system. The unmalleable fact transcending in importance the harm to individual Negro children is that the separate school system was an integral element in the Southern State’s general program to restrict Negroes as a class from participation in the life of the community, the affairs of the State, and the mainstream of American life: Negroes must keep their place. [FN63]
“Segregation is a group phenomenon. Although the effects of discrimination are felt by each member of the group, and discriminatory practice is directed against the group as a unit and against individuals only as their connection with the group involves the antigroup sanction. * * * (As) a group-wrong * * * the mode of redress must be group-wide to be adequate.’ [FN64] Adequate redress therefore calls for much more than allowing a few Negro children to attend formerly white schools; it calls for liquidation of the state’s system of de jure school segregation and the organized undoing of the effects of past segregation. ‘Beyond (a child’s) personal right (under the Fourteenth Amendment) however, or perhaps as an aspect of it, the lower federal courts seem to be recognizing a right in Negro school children, enforceable at least by a class action, to have the school system administered free of an enforced policy of segregation irrespective of whether any colored pupil has been denied admission to any particular school on the ground of his race.’ [FN65]
It is undoubtedly true that the intangible inadequacies of a segregated education harm the individual, but the Supreme Court treated these inadequacies as inherent attributes which prevail universally. [FN66] For example, the Court said:
*867 (Education) is the very foundation of good citizenship. Today it is a principle instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms 347 U.S. at 493, 74 S.Ct. at 691.
Again, in a critical passage:
To separate (children) from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. 347 U.S. at 494, 74 S.Ct. at 691.
With this predicate it is not surprising that Brown II, a year after Brown I was decided, going beyond recognition of the ‘personal’ right in the individual plaintiffs, fashioned a remedy appropriate for the class. The Court imposed on the states the duty of furnishing an integrated school system, that is, the duty of ‘effectuat(ing) a transition to a racially nondiscriminatory school system.’ [FN67] In addition, Brown II subordinated the ‘present’ right in the individual plaintiffs to the right of Negroes as a class to a unitary, nonracial system-- some time in the future. [FN68]
The central vice in a formerly de jure segregated public school system is apartheid by dual zoning: in the past by law, the use of one set of attendance zones for white children and another for Negro children, and the compulsory initial assignment of a Negro to the Negro school in his zone. Dual zoning persists in the continuing operation of Negro schools identified as Negro, historically and because the faculty and students are Negroes. Acceptance of an individual’s application for transfer, therefore, may satisfy that particular individual; it will not satisfy the class. The class is all Negro children in a school district attending, by definition, inherently unequal *868 schools and wearing the badge of slavery separation displays. Relief to the class requires school boards to desegregate the school from which a transferee comes as well as the school to which he goes. It requires conversion of the dual zones into a single system. Faculties, facilities, and activities as well as student bodies must be integrated. No matter what view is taken of the rationale in Brown I, Brown II envisaged the remedy following the wrong, the state’s correcting its discrimination against Negroes as a class, through separate schools, by initiating and operating a unitary integrated school system. The gradual transition the Supreme Court authorized was to allow the states time to solve the administrative problems inherent in that change-over. No delay would have been necessary if the right at issue in Brown had been only the right of individual Negro plaintiffs to admission to a white school. Moreover, the delay of one year in deciding Brown II and the gradual remedy Brown II fashioned can be justified only on the ground that the ‘personal and present’ right of the individual plaintiffs must yield to the overriding right of Negroes as a class to a completely integrated public education. [FN68a]
FN68a. ‘A year
later, when the ‘deliberate speed’ formula was promulgated, the significance of
the changed emphasis became clear. The Court had determined to deal with the problem
as involving the rights of the Negro race rather than the rights of
individuals.’ Lusky, The Stereotype: Hard Core of Racism, 13
Although psychological harm and lack of educational opportunities to Negroes may exist whether caused by de facto or de jure segregation, a state policy of apartheid aggravates the harm. Thus, Chief Justice Warren quoted with approval the finding of the district court in the Kansas case: ‘The impact (of the detrimental effect of segregation upon Negro children) is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system.’ Brown I, 347 U.S. at 494, 74 S.Ct. at 691. The State, therefore, should be under a duty to take whatever corrective action is necessary to undo the harm it created and fostered. [FN69] ‘State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.’ Cooper v. Aaron, 358 U.S. at 7, 78 S.Ct. at 1404. Some may doubt whether tolerance of de facto segregation is an unsubtle form of state action. There can be no doubt as to the nature and effect of segregation that came into being and persists because of state action as part of the longstanding pattern to narrow the access *869 of Negroes to political power and to the life of the community.
In a school system the persons capable of giving class
relief are of course its administrators. It is they who are under the
affirmative duty to take corrective action toward the goal of one integrated
system. As Judges Sobeloff and
‘* * * the initiative in achieving desegregation of the public schools must come from the school authorities. * * * Affirmative action means more than telling those who have long been deprived of freedom of educational opportunity. ‘You now have a choice.’ * * * It is now 1965 and high time for the court to insist that good faith compliance requires administrators of schools to proceed actively with their nontransferable duty to undo the segregation which both by action and inaction has been persistently perpetuated.
In Northcross v. Board of Education of the City of Memphis, 6 Cir. 1962, 302 F.2d 818, the defendants asserted, as the defendants assert here, that continued segregation is ‘voluntary on the part of Negro pupils and parents because they do not avail themselves of the transfer provisions.’ The Court held: ‘The Pupil Assignment Law * * * will not serve as a plan to convert a biracial system into a nonracial one * * * Negro children cannot be required to apply for that to which they are entitled as a matter of right. * * * The burden rests with the school authorities to initiate desegregation * * * (The Board should submit) some realistic plan for the organization of their schools on a nonracial basis’. In Dowell v. School Board of Oklahoma City Public Schools, W.D.Okla.1965, 244 F.Supp. 971, 976, 978-979, aff’d, 10 Cir. Jan. 23, 1967, 375 F.2d 158, the School Board in Oklahoma City had ‘superimposed’ a geographic zone plan on ‘already existing residential segregation initiated by law.’ The court held: A school board must ‘adopt policies that would increase the percentage of pupils who are obtaining a desegregated education. * * * (The) failure to adopt an affirmative policy is itself a policy, adherence to which, at least in this case, has slowed up * * * the desegregation process. * * * Where the cessation of assignment and transfer policies based solely on race is insufficient to bring about more than token change in the segregated system, the Board must devise affirmative action reasonably purposed to effectuate the desegregation goal. This conclusion makes no new law.’
The position we take in these consolidated cases is that the only adequate redress for a previously overt system-wide policy of segregation directed against Negroes as a collective entity is a system-wide policy of integration. In Singleton I the Court touched on the state’s duty to integrate:
‘In retrospect, the second Brown opinion clearly imposes on public school authorities the duty to provide an integrated school system. Judge Parker’s well-known dictum * * * should be laid to rest. It is inconsistent with Brown and the later development of decisional and statutory law in the area of civil rights.’ 348 F.2d at 730 n. 5.
Three years before Singleton I this Court analyzed the problem in Potts v. Flax, 5 Cir. 1963, 313 F.2d 284. In that case the Court rejected a school board’s contention that a suit brought by two Negro parents was not a class action even though the record contained testimony that one parent was bringing the action only for his own children and not for other Negro children. The Board contended that a court order was not needed because it was willing to admit any Negro child to a white school on demand of any Negro child. Judge Brown, speaking for the Court, said:
‘Properly construed the purpose of the suit was not to achieve specific *870 assignment of specific children to any specific grade or school. The peculiar rights of specific individuals were not in controversy. It was directed at the system-wide policy of racial segregation. It sought obliteration of that policy of system-wide racial discrimination. * * *’ [FN70]
Brown was an inevitable, predictable extension of Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114, and McLaurin v. Oklahoma State Regents, 1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149. [FN72] Those cases involved separate but equal or identical graduate facilities. Factors ‘incapable of objective measurement’ but crucial to a good graduate education were not available to segregated Negroes. These were the intangible factors that prevented the Negro graduate students from having normal contacts and association *871 with white students. Apartheid made the two groups unequal. In Brown I these same intangibles were found ‘(to) apply with added force to children in grade and high schools’; educational opportunity in public schools must be made available to all on equal terms.
The Brown I finding that segregated schooling causes psychological harm and denies equal educational opportunities should not be construed as the sole basis for the decision. [FN73] So construed, the way would be open for proponents of the status quo to attempt to show, on the facts, that integration may be harmful or the greater of two evils. Indeed that narrow view of Brown I has led several district courts into error. [FN74] We think that the judgment ‘must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed.’ [FN75] The relief Brown II requires rests on recognition of the principle that state-imposed separation by race is an invidious classification and for that reason alone is unconstitutional. [FN76] Classifications based upon race are especially suspect, since they are ‘odius to a free people’. [FN77] In short, compulsory *872 separation, apartheid, is per se discriminatory against Negroes.
A number of post-Brown per curiam decisions not involving education make it clear that the broad dimensions of the rationale are not circumscribed by the necessity of showing harmful inequality to the individual. In these cases Negroes were separated from whites but were afforded equal or identical facilities. Relying on Brown, the Court ordered integration of the facility or activity. [FN78] See also Anderson v. Martin, 1964, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed.2d 430, 433, holding that compulsory designation of a candidate’s race on the ballot is unlawful. The designation placed ‘the power of the State behind a racial classification that induces racial prejudice at the polls.’
Bolling
v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, provides further evidence of the breadth of the right
recognized in Brown. There, because the case concerned the
‘
As in the jury exclusion cases, when the classification is not ‘reasonably related to any proper governmental objective’ equal protection and due process merge.
If Brown has only the narrow meaning Briggs gives it the system of state sanctioned segregated schools will continue indefinitely with only a little token desegregation. White school boards, almost universal in this circuit, will be able to continue to say that their constitutional duty ends when they provide relief to the particular Negro children who, as individuals, claim their personal right to be admitted to white schools. If the Briggs thinking should prevail, the dual system will, for all practical purposes, be maintained: white school officials in most key positions at the state and county levels; Negro faculties in Negro schools, white faculties in white schools; no white children or only a few white children of way-out parents in Negro schools; a few Negroes in some white schools; at best, tokenism in certain school districts.
Brown’s broad meaning, its
important meaning, is its revitalization of the national constitutional right
the Thirteenth, Fourteenth, and Fifteenth Amendments created in favor of
Negroes. This is *873 the right of Negroes to national citizenship,
their right as a class to share the privileges and immunities only white citizens had enjoyed as
a class. Brown erased Dred Scott, used the Fourteenth Amendment to breathe life
into the Thirteenth, and wrote the Declaration of Independence into the
Constitution. Freedmen are free men. They are created as equal as are all other
American citizens and with the same unalienable rights to life, liberty, and
the pursuit of happiness. No longer ‘beings of an inferior race’-- the Dred
Scott article of faith-- Negroes too are part of ‘the people of the
A primary responsibility of federal courts is to protect nationally created constitutional rights. A duty of the States is to give effect to such rights-- here, by providing equal educational opportunities free of any compulsion that Negroes wear a badge of slavery. The States owe this duty to Negroes not just because every citizen is entitled to be free from arbitrary discrimination as a heritage of the common law or because every citizen may look to his state for equal protection of the rights a state grants its citizens. As Justice Harlan clearly saw in the Civil Rights Cases (1883), 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835, the Wartime Amendments created an affirmative duty that the States eradicate all relics, ‘badges and indicia of slavery’ lest Negroes as a race sink back into ‘second-class’ citizenship.
B. The factual situation dealt with in Bell
v. School City of Gary, N.D.Ind. 1963, 213 F.Supp. 819, aff’d 7
Cir. 1963, 324 F.2d 209, cert. den’ d 377
U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964) is
not the situation the Supreme Court had
before it in Brown or that we deal with in this circuit. Brown dealt with state-imposed segregation based on dual
attendance zones.
We must assume that Congress was
well aware of the fact that
The facts, as found by the Court
in
Barksdale
v. Springfield School Committee, D.Mass.1965, 237 F.Supp. 543, similar on the facts to
‘The defendants argue,
nevertheless, that there is no constitutional mandate to remedy racial
imbalance.
‘In short, Barksdale (does not
analyze Brown) in terms of propriety of school board action, but proceeds in
terms of a right on the part of Negro students to an equal educational
opportunity, which in light of the ruling in Brown that separate schools are
inherently unequal, must perforce be a right to an integrated educational setting.’ [FN82] On
appeal, the First Circuit accepted the district court’s findings of fact but
vacated the order with directions to dismiss without prejudice because the
school board, on its own initiative, had taken action identical with the court
ordered action. 348
F.2d 261. The Court noted a difference between ‘the
seeming absolutism’ of the opinion and the less sweeping order ‘(to) eliminate
(segregation) to the fullest extent possible * * * within the framework of
effective educational procedures’. [FN83] Taking
both opinions together, they recognize that ‘the state would not be permitted
to ignore the problem of de facto segregation. The holding in Brown,
unexplained by its underlying reasoning, requires no more than the decision in
Although Brown points toward the existence of a duty to integrate de facto segregated schools, [FN85] the holding in *876 Brown, unlike the holding in Bell but like the holding in this, circuit, occurred within the context of state-coerced Segregation. The similarity of pseudo de facto segregation in the South to actual de facto segregation in the North is more apparent than real. Here school boards, utilizing the dual zoning system, assigned Negro teachers to Negro schools and selected Negro neighborhoods as suitable areas in which to locate Negro schools. Of course the concentration of Negroes increased in the neighborhood of the school. Cause and effect came together. In this circuit, therefore, the location of Negro schools with Negro faculties in Negro neighborhoods and white schools in white neighborhoods cannot be described as an unfortunate fortuity: It came into existence as state action and continues to exist as racial gerrymandering, made possible by the dual system. [FN86] Segregation resulting from racially motivated gerrymandering is properly characterized as ‘de jure’ segregation. See Taylor v. Board of Education of City School Dist. of the City of New Rochelle, S.D.N.Y.1961, 191 F.Supp. 181. [FN87] The courts have had the power to deal with this situation since Brown I. In Holland v. Board of Public Instruction of Palm Beach County, 5 Cir. 1958, 258 F.2d 730, although there was no evidence of gerrymandering as such, the court found that the board ‘maintained and enforced’ a completely segregated system by using the neighborhood plan to take advantage of racial residential patterns. See also Evans v. Buchanan, D.Del.1962, 207 F.Supp. 820, where, in spite of a genuflexion in the direction of Briggs, the Court found that there was gerrymandering of school districts superimposed on a pre-Brown policy of segregation.
C. The defendants err in their contention that the HEW and the courts cannot take race into consideration in establishing standards for desegregation. ‘The Constitution is not this colorblind.’ [FN88]
The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate governmental purpose. For example, jury venires must represent a cross-section of the community. Strauder v. State of West Virginia, 1880, 100 U.S. 303, 25 L.Ed. 664. The jury commissioners therefore must have a ‘conscious awareness of race in extinguishing racial discrimination in jury service’. Brooks v. Beto, 5 Cir. 1966, 366 F.2d 1. Similarly, in voter registration cases we have used the ‘freezing principle’ to justify enjoining the use of a constitutional statute where, in effect, the statute would perpetuate past racial discrimination against Negroes. *877 United States v. State of Louisiana, E.D.La.1963, 225 F.Supp. 353, aff’d 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709. ‘It is unrealistic to suppose that the evils of decades of flagrant racial discrimination can be overcome by purging registration rolls of white voters. * * * Unless there is some appropriate way to equalize the present with the past, the injunctive prohibitions even in the most stringent, emphatic, mandatory terms prohibiting discrimination in the future, continues for many years a structure, committing effectual political power to the already registered whites while excluding Negroes from this vital activity of citizenship.’ United States v. Ward, 5 Cir. 1965, 349 F.2d 795, 802. ‘An appropriate remedy * * * should undo the results of past discrimination as well as prevent future inequality of treatment.’ United States v. Duke, 5 Cir. 1965, 332 F.2d 759, 768. If the Constitution were absolutely colorblind, consideration of race in the census and in adoption proceedings would be unconstitutional.
Here race is relevant, [FN89] because the governmental purpose is to offer Negroes equal educational opportunities. The means to that end, such as disestablishing segregation among students, distributing the better teachers equitably, equalizing facilities, selecting appropriate locations for schools, and avoiding resegregation must necessarily be based on race. School officials have to know the racial composition of their school populations and the racial distribution within the school district. The Courts and HEW cannot measure good faith or progress without taking race into account. ‘When racial imbalance infects a public school system, there is simply no way to alleviate it without consideration of race. * * * There is not constitutional right to have an inequality perpetuated.’ [FN90] Judge Sobeloff’s answer in Wanner v. County School Board of Arlington County, 4 Cir. 1966, 357 F.2d 452, 454-455, is our answer in this case:
‘If a school board is constitutionally forbidden to institute a system of racial segregation by the use of artificial boundary lines, it is likewise forbidden to perpetuate a system that has been so instituted. It would be stultifying to hold that a board may not move to undo arrangements artificially contrived to effect or maintain segregation, on the ground that this interference with the status quo would involve ‘consideration of race.’ When school authorities, recognizing the historic fact that existing conditions are based on a design to segregate the races, act to undo these illegal conditions-- especially conditions that have been judicially condemned-- their effort is not to be frustrated on the ground that race is not a permissible consideration. This is not the ‘consideration of race’ which the Constitution discountenances. * * * There is no legally protected vested interest in segregation. If there were, then Brown v. Board of Education and the numerous decisions based on that case would be pointless. Courts will not *878 say in one breath that public school systems may not practice segregation, and in the next that they may do nothing to eliminate it.’
D. Under Briggs’s blessing, school boards throughout this circuit first declined to take any affirmative action that might be considered a move toward integration. Later, they embraced the Pupil Placement Laws as likely to lead to no more than a little token desegregation. Now they turn to freedom of choice plans supervised by the district courts. As the defendants construe and administer these plans, without the aid of HEW standards there is little prospect of the plans ever undoing past discrimination or of coming close to the goal of equal educational opportunities. Moreover, freedom of choice, as now administered, necessarily promotes resegregation. The only relief approaching adequacy is the conversion of the still-functioning dual system to a unitary, non-racial system-- lock, stock, and barrel.
If this process be ‘integration’ according to the 1955 Briggs court, so be it. In 1966 this remedy is the relief commanded by Brown, the Constitution, the Past, the Present, and the wavy foreimage of the Future.
IV.
We turn now to the specific provisions of the Civil Rights Act on which the defendants rely to show that HEW violates the Congressional intent. These provisions are the amendments to Title IV and VI added in the Senate. The legislative history of these amendments is sparse and less authoritative than usual because of the lack of committee reports on the amended version of the bill.
A. Section 401(b) defines desegregation:
“Desegregation’ means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but ‘desegregation’ shall not mean the assignment of students to public schools in order to overcome racial imbalance.’
The affirmative portion of this definition, down to the ‘but’ clause, describes the assignment provision necessary in a plan for conversion of a de jure dual system to a unitary, integrated system. The negative portion, starting with ‘but’, excludes assignment to overcome racial imbalance, that is acts to overcome de facto segregation. As used in the Act, therefore, ‘desegregation’ refers only to the disestablishment of segregation in de jure segregated schools. Even if a broader meaning should be given to ‘assignment * * * to overcome racial imbalance’, Section 401 would not mean that such assignments are unlawful:
‘The intent of the statute is that no funds and no technical assistance will be given by the United States Commissioner of Education with respect to plans for the assignment of students to public schools in order to overcome racial imbalance. The statute may not be interpreted to mean that such assignment is illegal or that reasonable integration efforts are arbitrary or unlawful. [FN91]
The prohibition against assignment of students to overcome racial imbalance was added as an amendment during the debates in the House to achieve the same result as the anti-bussing provision in section 407. Some of the difficulty in understanding the Act and its legislative history arises from the statutory use of the undefined term ‘racial imbalance’. It is clear however from the hearings and debates that Congress equated the term, as do the commentators, with ‘de facto segregation’ that is, non-racially motivated segregation in a school system based on a single neighborhood school for all children in a definable area. [FN92] Thus, *879 Congressman William Cramer who offered the amendment, was concerned that the bill as originally proposed might authorize the government to require bussing to overcome de facto segregation. In explaining the amendment, he said:
‘In the hearings before the committee I raised questions on ‘racial imbalance’ and in the sub-committee we had lengthy discussions in reference to having these words stricken in the title, as it then consisted, and to strike out the words ‘racial imbalance’ proposed by the administration. P The purpose is to prevent any semblance of congressional acceptance or approval of the concept of ‘de facto’ segregation or to include in the definition of ‘desegregation’ any balancing of school attendance by moving students across school district lines to level off percentages where one race outweighs another.’
The neighborhood school system is rooted deeply in American culture. [FN93] Whether its continued use is constitutional when it leads to grossly imbalanced schools is a question some day to be answered by the Supreme Court, but that question is not present in any of the cases before this Court. As noted in the previous section of this opinion, we have many instances of a heavy concentration of Negroes or whites in certain areas, but always that type of imbalance has been superimposed on total school separation. And always the separation originally was racially motivated and sanctioned *880 by law in a system based on two schools within a neighborhood or overlapping neighborhoods, each school serving a different race. The situations have some similarity but they have different origins, create different problems, and require different corrective action. [FN94]
In the 1964 Act (and again in 1966 during consideration of amendments to the Elementary and Secondary Education Act of 1965) Congress, within the context of debates on aid to de facto segregated schools declined to decide just what should be done about imbalanced neighborhood schools. [FN94a] The legislative solution, if there is one to this problem, will require a carefully conceived and thoroughly debated comprehensive statute. In the 1964 Act Congress simply directed that the federal assistance provided in Title IV, § § 403-405 was not to be used for developing plans to assign pupils to overcome racial imbalance. [FN95] Similarly, Congress withheld authorizing the Attorney General, in school desegregation actions, to ask for a court order calling for bussing pupils from one school to another to ‘achieve a racial balance.’ [FN96]
B. Section 407(a)(2) of Title IV authorizing
the Attorney General to file suit to desegregate, contains the ‘antibussing’
proviso:
‘* * * nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards.’
First, it should be noted that the prohibition applies only to transportation; and only to transportation across school lines to achieve racial balance. The furnishing of transportation as part of a freedom of choice plan is not prohibited. Second, the equitable powers of the courts exist independently of the Civil Rights Act of 1964. It is not contended in the instant cases that the Act conferred new authority on the courts. *881 And this Court has not looked to the Act as a grant of new judicial authority.
Section 407(a)(2) might be read as applying only to orders issued in suits filed by the Attorney General under Title IV. However, Senator, now Vice President Humphrey, Floor Manager in the Senate, said it was his understanding that the provision applied to the entire bill. In particular, he said that it applies to any refusal or termination of federal assistance under Title VI since the procedure for doing so requires an order approved by the President. Senator Humphrey explained:
‘This addition seeks simply to preclude an inference that the title confers new authority to deal with ‘racial imbalance’ in schools, and should serve to soothe fears that Title IV might be read to empower the Federal Government to order the bussing of children around a city in order to achieve a certain racial balance or mix in schools. P Furthermore, a new section 410 would explicitly declare that ‘nothing in this title shall prohibit classification and assignment for reasons other than race, color, religion, or national origin.’ P Thus, classification along bona fide neighborhood school lines, or for any other legitimate reason which local school boards might see fit to adopt, would not be affected by Title IV, so long as such classification was bona fide. Furthermore, this amendment makes clear that the only Federal intervention in local schools will be for the purpose of preventing denial of equal protection of the laws.’
Senator Humphrey spoke several
times in the language of Briggs but his references to
‘I do * * *. That language
is to be found in Title IV. The provision (§ 407(a) (2)) merely quotes the
substance of a recent court decision which I have with me, and which I desire
to include in the Record today, the so-called
Senator Humphrey explained:
‘Judge Beamer’s opinion in
the
The thrust of the Gary case (Bell) was that if school districts were drawn without regard to race, but rather on the basis of such factors as density of population, travel distances, safety of the children, costs of operating the school system, and convenience to parents and children, those districts are valid even if there is a racial imbalance caused by discriminatory practices in housing. Thus, continuing his explanation, Senator Humphrey said:
‘The bill does not attempt to integrate the schools, but it does attempt to eliminate segregation in the schools. The natural factors, such as density of population, and the distance that students would have to travel are considered legitimate means to determine the validity of a school district, if the school districts are not gerrymandered, and in effect deliberately segregated. The fact that there is a racial imbalance per se is not something which is unconstitutional. That is why we have attempted to clarify it with the language of Section 4.:
C. Section
601 states the general purpose of Title VI of the
Act:
‘No person in the
*882 This is a clear congressional statement that racial discrimination against the beneficiaries of federal assistance is unlawful. Children attending schools which receive federal assistance are of course among the beneficiaries. In the House, Congressman Celler explained:
‘The legality is based on the general power of Congress to apply reasonable conditions. * * * P In general, it seems rather anomalous that the Federal Government should aid and abet discrimination on the basis of race, color or national origin by granting money and other kinds of financial aid. It seems rather shocking, moreover, that while we have on the one hand the 14th amendment, which is supposed to do away with discrimination since it provides for equal protection of the laws, on the other hand, we have the Federal Government aiding and abetting those who persist in practicing racial discrimination.’
In the Senate, Senator Javits, an assistant floor-manager, expressed concern as to the clarity of the statement of policy:
‘I ask the Senator whether we now have a clear understanding that if title VI shall be enacted as it is now proposed, the express and clear policy of Congress against aiding discrimination will prevail * * *.’
Senator Humphrey answered:
‘Some Federal agencies appear to have been reluctant to act in this area. Title VI will require them to act. Its enactment will thus serve to insure uniformity and permanence to the nondiscrimination policy.’
D. Section 604 of the Act, 42 U.S.C. § 2000d-3 is the section the defendants principally rely upon and the section most misunderstood. [FN97] It provides:
‘Nothing contained in this title shall be construed to authorize action under this title by any department or agency with respect to any employment practice of any employer, employment agency, or labor organization except where a primary objective of the Federal financial assistance is to provide employment.’
The defendants contend that this section bars any action requiring desegregation of faculties and school personnel.
Section 604 was not a part of the original House bill. Senator Humphrey, while introducing The Act explained: ‘(The) Commissioner might also be justified in requiring elimination of racial discrimination in employment or assignment of teachers, at least where such discrimination affected the educational opportunities of students. See Braxton v. Board of Public Instruction of Duval County, 5 Cir. 1964, 326 F.2d 616.‘ 110 Cong.Rec. p. 6345. That was in March 1964. In June 1964, in explaining the amendments, Senator Humphrey said, ‘This provision is in line with the provisions of section 602 [FN98] and serves to spell out more precisely the declared scope of coverage of the title.’ In the same speech he stated (110 C.R. 12714): ‘We have made no changes of substance in Title VI.’ This explanation plainly indicates that the amendment was not intended as a statutory bar to faculty integration in schools receiving federal aid.
However, in the interval between these two explanations the Attorney General, in response to a letter from Senator Cooper, stated that Section 602 would not apply to federally aided employers who discriminated in employment practices: ‘Title VI is limited * * * to discrimination against the beneficiaries of federal assistance programs. * * * Where, however, employees arethe intended beneficiaries of a program, Title VI would apply.’ [FN99] He gave as an example accelerated public works programs. It was after the receipt of the Attorney General’s letter that the amended Senate *883 bill was passed. The school boards argue therefore that Section 604 was enacted, because of the Attorney General’s interpretation, to exclude interference with employment practices of schools.
In its broadest application this argument would allow racial discrimination in the hiring, discharge, and assignment of teachers. In its narrowest application this argument would allow discrimination in hiring and discharging but not in assigning teachers, an inexplicable anomaly. [FN100] There is no merit to this argument. Section 604 and the Attorney General’s letter are not inconsistent, since under Section 601 it is the school children, not the teachers (employees), who are the primary beneficiaries of federal assistance to public schools. Faculty integration is essential to student desegregation. To the extent that teacher discrimination jeopardizes the success of desegregation, it is unlawful wholly aside from its effect upon individual teachers.
After Section 601 was proposed, additional clarifying language was suggested to make it clear that discrimination in certain employer-employee relationships, not affecting the intended beneficiaries of the program, would be excluded from the reach of the statute. See Hearings, H.R.Comm. on Rules, H.R. 7152, 88th Cong., 2d Sess. (1964), pp. 94, 226; 110 C.R. 6544-46 (Senator Humphrey). For example, there was a serious question as to whether the bill would forbid a farmer who was receiving benefits under the Agricultural Adjustment Act from discriminating upon the basis of race in the selection of his employees. Hearings, H.R.Comm. on Rules, H.R. 7152, 88 Cong., 2d Sess., 1964, p. 94, 110 C.R. 6545 (Senator Humphrey). The addition of Section 604 to the bill as originally proposed clearly excluded the application of the Act to this type of situation. Congress did not, of course, intend to provide a forum for the relief of individual teachers who might be discriminatorily discharged; Congress was interested in a general requirement essential to success of the program as a whole. [FN101]
Collaterally to their argument on Section 604, the defendants cite Section 701(b) of Title VII, covering Equal Employment Opportunities, which specifically excepts a ‘state or political subdivision thereof’. This section has no application to schools. Section 701(b), defines ‘employer’ as ‘a person engaged in an industry affecting commerce who has twenty-five or more employees * * *.’
Section 604 was never intended as a limitation on desegregation of schools. If the defendants’ view of Section 604 were correct the purposes of the statute would be frustrated, for one of the keys to desegregation is integration of faculty. As long as a school has a Negro faculty it will always have a Negro student body. As the District Court for the Western District of Virginia put it is Brown v. County School Board of Frederick County, 1965, 245 F.Supp. 549, 560:
‘The presence of all Negro teachers in a school attended solely by Negro pupils in the past denotes that school a ‘colored school’ just as certainly as if the words were printed across its entrance in six-inch letters.’
As far as possible federal courts must carry out congressional policy. But we must not overlook the fact that ‘we deal here with constitutional rights and not with those established by *884 statute’. [FN102] The right of Negro students to be free from racial discrimination in the form of a segregated faculty is part of their broader right to equal educational opportunities. The ‘mandate of Brown * * * forbids the discriminatory consideration of race in faculty selection just as it forbids it in pupil placement.’ Chambers v. Hendersonville City Board of Education, 4 Cir. 1966, 364 F.2d 189.
In Brown II the Supreme Court specifically referred to the
reallocation of staff as one of the reasons permitting desegregation ‘with all
deliberate speed’. In determining the additional time necessary ‘* * * courts
may consider problems related to administration, arising from * * * personnel *
* *.’ 349
U.S. at 300, 75
S.Ct. at 756. For ten years, however, this Court
and other circuit courts [FN103] had
approved district courts’ postponing hearings on faculty desegregation. Bradley
v. School Board of the City of Richmon, 1965, 382 U.S. 103, 86 S.Ct. 224, 15
L.Ed.2d 187 put an end to this practice. In
Bradley the Supreme Court held that faculty segregation had a direct impact on
desegregation plans. The court summarily remanded the case to the district
court holding that it was improper for that court to approve a desegregation
plan without considering, at a full evidentiary hearing, the impact of faculty allocation on a racial basis. The Court said, ‘(There
is) no merit to the suggestion that relation between faculty allocation on an
alleged racial basis and the adequacy of the desegregation plans are entirely
speculative.’ Moreover, ‘Delays in desegregating school systems are no longer
tolerable.’ 382
U.S. at 105, 86 S.Ct. at 226. In Rogers
v. Paul, 1965, 382 U.S. 198, 200, 86 S.Ct. 358, 360, 15 L.Ed.2d 265, the Supreme Court held that Negro students in grades not
yet desegregated were entitled to an immediate transfer to a white high school.
They ‘plainly had standing’ to sue on two theories: (1) ‘that racial allocation
of faculty denies them equality of educational opportunity without regard to
segregation of pupils; and (2) that it renders inadequate an otherwise
constitutional pupil desegregation plan soon to be applied to their grades.’ In
Singleton II this Court, relying on Bradley, held that it was ‘essential’ for
the
FN103. For example, Lockett v. Board of Education of Muscogee County, 5 Cir. 1965, 345 F.2d 225, 229; Calhoun v. Latimer, 5 Cir. 1963, 321 F.2d 302, 307; Bradley v. School Board of the City of Richmond, 4 Cir. 1965, 345 F.2d 310, 320.
In a recent decision of the Eighth Circuit, Clark v. Board of Education of Little Rock School District, 369 F.2d 661, December 15, 1966, the Court required a ‘positive program aimed at ending in the near future the segregation of the teaching and operating staff’. The Court stated: ‘We agree that faculty segregation encourages pupil segregation and is detrimental to achieving a constitutionally required non-racially operated school system. It is clear that the Board may not continue to operate a segregated teaching staff. * * * It is also clear that the time for delay is past. The desegregation of the teaching staff should have begun many years ago. At this point the Board is going to have to take accelerated and positive action to end discriminatory practices in staff assignment and recruitment.’
In Braxton v. Board of Public Instruction of Duval County, 1964, 326 F.2d 616, 620, cert. denied 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216, the case cited by Senator Humphrey, this Court affirmed an order of the district court prohibiting assignment of ‘teachers and other personnel * * * on a racially segregated basis.’ In Smith v. Board of Education of Morrilton, 8 Cir. 1966, 365 F.2d 770, 778, the Court said:
‘It is our firm conclusion
that the reach of the Brown decisions, although *885 they specifically
concerned only pupil discrimination, clearly extends to the proscription of the
employment and assignment of public school teachers on a racial basis. Cf. United
Public Workers (of America (CIO)) v. Mitchell, 330
U.S. 75, 100, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Wieman
v. Updegraff, 344 U.S. 183, 191-192, 73 S.Ct. 215, 97 L.Ed. 216 (1952). See Colorado
Anti- Discrimination Comm’n v. Continental Air Lines, Inc., 372 U.S. 714, 721,
83 S.Ct. 1022, 10 L.Ed.2d 84 (1963). This is
particularly evident from the Supreme Court’s positive indications that
nondiscriminatory allocation of faculty is indispensable to the validity of a
desegregation plan. Bradley v. School Board of the City of
In Wheeler v. Durham City Board of Education, 4 Cir. 1966, 363 F.2d 738, 740 the Court stated: ‘We read (Bradley) as authority for the proposition that removal of race considerations from faculty selection and allocation is, as a matter of law, an inseparable and indispensable command within the abolition of pupil segregation in public schools as pronounced in Brown v. Board of Education, supra, 347 U.S. 483, 74 S.Ct. 686. Since no proof of the relationship of faculty allocation and pupil assignment was required here. The only factual issue is whether race was a factor entering into the employment and placement of teachers.’ In Wright v. County School Board of Greensville County, E.D.Va.1966, 252 F.Supp. 378, 384, holding that a faculty desegregation provision approved by the Commissioner of Education was not sufficient, the court said:
‘The primary responsibility for the selection of means to achieve employment and assignment of staff on a nonracial basis rests with the school board. * * * Several principles must be observed by the board. Token assignments will not suffice. The elimination of a racial basis for the employment and assignment of staff must be achieved at the earliest practicable date. The plan must contain well defined procedures which will be put into effect on definite dates. The board will be allowed ninety days to submit amendments to its plan dealing with staff employment and assignments practices.’
In Kier v. County School Board of Augusta County, W.D.Va.1966, 249 F.Supp. 239, 246, the court held that free choice plans require faculty integration:
‘Freedom of choice, in other words, does not mean a choice between a clearly delineated ‘Negro school’ (having an all-Negro faculty and staff) and a ‘white school’ (with all-white faculty and staff). School authorities who have heretofore operated dual school systems for Negroes and whites must assume the duty of eliminating the effects of dualism before a freedom of choice plan can be superimposed upon the pre-existing situation and approved as a final plan of desegregation. It is not enough to open the previously all white schools to Negro students who desire to go there while all-Negro schools continue to be maintained as such. * * * The duty rests with the School Board to overcome the discrimination of the past, and the long-established image of the ‘Negro school’ can be overcome under freedom of choice only by the presence of an integrated faculty.’
We cannot impute to Congress an intention to repudiate Senator Humphrey’s explanation of Section 604 and to change the substance of Title VI, tearing the vitals from the statutory objective. Integration of faculty is indispensable to the success of desegregation plan. Nor *886 can we impute to Congress the intention to license, unconstitutionally, discrimination in the employment and assignment of teachers, a conspicuous badge of de jure segregated schools. [FN104]
E. As we construe the Act and its legislative history, especially the sponsors’ reliance on Bell, Congress, because of its hands-off attitude on bona fide neighborhood school systems, qualified its broad polity of nondiscrimination by precluding HEW’s requiring the bussing of children across district line or requiring compulsory placement of children in schools to strike a balance when the imbalance results from de facto, that is, non- racially motivated segregation. As Congressman Cramer said, ‘De facto segregration is racial imbalance’. But there is nothing in the language of the Act or in the legislative history that equates corrective acts to desegregate or to integrate a dual school system initially based on de jure segregation with acts to bring about a racial balance in a system based on bona fide neighborhood schools.
Congress recognized that HEW’s requirements for qualifying for financial assistance are one thing and the courts’ constitutional and judicial responsibilities are something else again. The Act states, therefore, that it did not enlarge the court’s existing powers to ensure compliance with constitutional standards. But neither did it reduce the courts’ power.
V.
The HEW Guideline agree with decisions of this circuit and of the similarly situated Fourth and Eight Circuits. And they stay within the Congressional mandate. There is no cross-district or cross-town bussing requirement. There is no provision requiring school authorities to place white children in Negro schools or Negro children in white schools for the purpose of striking a racial balance in a school or school district proportionate to the racial population of the community or school district. [FN105] The provision referring to percentages is a general rule of thumb or *887 objective administrative guide for measuring progress in desegregation rather than a firm requirement that must be met. [FN106] See footnotes 105 and 106. Good faith in compliance should be measured by performance, not promises.
In reviewing the effectiveness of an approved plan it seems reasonable to use some sort of yardstick or objective percentage guide. The percentage requirements in the Guidelines are modest, suggesting only that systems using free choice plans for at least two years should expect 15 to 18 per cent of the pupil population to have selected desegregated schools. This Court has frequently relied on percentages in jury exclusion cases. Where the percentage of Negroes on the jury and jury venires is disproportionately low compared with the Negro population of a county, a prima facie case is made for deliberate discrimination against Negroes. [FN107] Percentages have been used in other civil rights cases. [FN108] A similar inference may by drawn in school desegregation cases, when the number of Negroes attending school with white children is manifestly out of line with the ratio of Negro school children to white school children in public schools. *888 Common sense suggests that a gross discrepancy between the ratio of Negroes to white children in a school and the HEW percentage guides raises an inference that the school plan is not working as it should in providing a unitary, integrated system. Thus Evans v. Buchanan, D.C. Del.1962, 207 F.Supp. 820 [FN109] held that this natural inference coupled with the board’s possessing but failing to come forth with the probative facts that might rebut the inference created a presumption that the proposed desegregation plan was unconstitutional.
The Guidelines were adopted for the entire country. However, they have been formulated in a context sympathetic with local problems. Sections 403-405 of the 1964 Civil Rights Act provide that, upon request, the Commissioner of Education may render technical assistance to public school systems engaged in desegregation. The Commissioner may also establish training institutes to counsel school personnel having educational problems occasioned by desegregation; and the Commissioner may make grants to school boards to defray the costs of providing in-service training on desegregation. In short, the Commissioner may assist those school boards who allege that they will have difficulty complying with the guidelines. When desegregation plans do not meet minimum standards, the school authorities should ask HEW for assistance. And district courts should invite HEW to assist by giving advice an raising the levels of the plans and by helping to coordinate a school’s promises with the school’s performance. In view of the competent assistance HEW may furnish schools, there is a heavy burden on proponents of the argument that their schools cannot meet HEW standards.
VI.
School authorities in this
circuit, with few exceptions, have turned to the ‘freedom of choice’ method for
desegregating public schools. The method has serious shortcomings. Indeed, the ‘slow
pace of integration in the Southern and
A free choice plan does not abandon geographical criteria, but requires no rigid adherence to attendance zones. Theoretically every child may choose his school, but its effectiveness depends on the availability of open places in balanced schools. Moreover, unless there is some provision to prevent white children transferring out of an imbalanced *889 school this plan will promote resegregation. [FN111]
‘Under freedom of choice plans, schools tend to retain their racial identification.’ [FN112] Such plans require affirmative action by parents and pupils to disestablish the existing system of public schools. In this circuit white students rarely choose to attend schools identified as Negro schools. Negro students who choose white schools are, as we know from many cases, only Negroes of exceptional initiative and fortitude. New construction and improvements to the Negro school plant attract no white students and diminish Negro motivation to ask for transfer. Nevertheless, the Eighth Circuit has approved freedom of choice plans ‘as a permissible method at this stage’, although recognizing that such a plan ‘is still only in the experimental stage and it has not yet been demonstrated that such a method will fully implement the decision of Brown and subsequent cases and the legislative declaration of § 2000(d) of the Civil Rights Act of 1964.’ [FN113] We have said: ‘At this stage in the history of desegregation in the deep South a ‘freedom of choice plan’ is an acceptable method for a school board to use in fulfilling its duty to integrate the school system. In the long run, it is hardly possible that schools will be administered on any such haphazard basis’. Singleton II, 355 F.2d at 871. HEW recognizes freedom of choice as a permissible means of desegregation. See Revised Guidelines, Subpart B, 181.11, and all of Subpart D.
Courts should scrutinize all such plans. Freedom of choice plans ‘may * * * be invalid because the ‘freedom of choice’ is illusory. The plan must be tested not only by its provisions, but by the manner in which it operates to provide opportunities for a desegregated education.’ Wright v. County School Board of Greenville County, E.D.Va.1966, 252 F.Supp. 378, 383. In that case the court was concerned that ‘operation under the plan may show that the transportation policy or the capacity of the schools severely limits freedom of choice, although provisions concerning these phases are valid on their face’. In Lockett v. Board of Education of Muskogee County, Ga., 5 Cir. 1965, 342 F.2d 225, we were concerned that ‘proper notice’ be given so that ‘Negro students are afforded a reasonable and conscious opportunity to apply for admission to any school which they are otherwise eligible to attend without regard to race’. Also, as Judge Bell, for the Court, pointed out, ‘a necessary part of any plan is a provision that the dual or biracial school attendance system * * * be abolished.’ See also Dowell v. School Board of Oklahoma City Public Schools, W.D.Okla.1965, 244 F.Supp. 971, aff’d, 10 Cir. Jan. 23, 1967, 375 F.2d 158; Bell v. School Board of City of Staunton, W.D.Va.1966, 249 F.Supp. 249; Kier v. County School Board of Augusta County, W.D.Va.1966, 249 F.Supp. 239.
There is much that school authorities should do to meet their responsibilities:
‘(Brown) called for responsible public officials throughout the country to reappraise *890 their thinking and policies, and to make every effort to afford Negroes the more meaningful equality guaranteed them by the Constitution. The Brown decision, in short, was a lesson in democracy, directed to the public at large and more particularly to those responsible for the operation of the schools. It imposed a legal and moral obligation upon officials who had created or maintained segregated schools to undo the damage which they had fostered.’ Taylor v. Board of Education of City School Dist. of the City of New Rochelle, S.D.N.Y.1961, 191 F.Supp. 181, 187, aff’d 294 F.2d 36, cert. den’d 368 U.S. 940, 82 S.Ct. 382 (1961).
School officials should
consult with Negro and white school authorities before plans are put in final
form. They should see that notices of plans and procedures are clear and
timely. They should avoid the discriminatory use of tests and the use of birth
and health certificates to make transfers difficult. They should eliminate
inconvenient or burdensome arrangements for transfer, such as requiring the
personal appearance of parents, notarized forms, signatures of both parents, or
making forms available at inconvenient times to working people. They should
employ forms which do not designate the name of a Negro school as the choice or
contain a ‘waiver’ of the ‘right to attend white schools. Certainly school
officials should not discourage Negro children from enrolling in white schools,
directly or indirectly, as for example, by
advising them that they would not be permitted to engage or would not want to
engage in school activities, athletics, the band, clubs, school plays. If
transportation is provided for white children, the schedules should be
re-routed to provide for Negro children. Overcrowding should not be used as an
excuse to avoid transfers of Negro children. In Bradley
v. School Board of the City of Richmond, 4 Cir. 1965, 345 F.2d 310, 323, Judges Sobeloff and
‘A plan of desegregation is more than a matter of words. The attitude and purpose of public officials, school administrators and faculties are an integral part of any plan and determine its effectiveness more than the words employed. If these public agents translate their duty into affirmative and sympathetic action the plan will work; if their spirit is obstructive, or at best negative, little progress will be made, no matter what form of words may be used:
Freedom of choice means the maximum amount of freedom and clearly understood choice in a bona fide unitary system where schools are not white schools or Negro schools-- just schools.
We turn now to a discussion of the specific elements of a freedom of choice plan that make it more than a mere word of promise to the ear.
A. Speed of Desegregation. The announced speed of desegregation no longer seems to be a critical issue. The school boards generally concede that by the school year 1967-68 all grades should be desegregated.
B. Mandatory Annual Free Choice. Underlying and tending to counteract the effectiveness of all the freedom of choice plans before the Court is the initial unconstitutional assignment of all students by race. When the freedom of choice plan is ‘permissive’ or ‘voluntary’ the effect is to superimpose the same old transfer plan on racial assignments and dual zones. We hold that any freedom of choice plan is inadequate if based upon a preliminary system of assignment by race or dual geographic zones. See Singleton II, and Lockett v. Board of Education of Muscogee County, Ga., 5 Cir. 1965, 342 F.2d 225, restating the requirement of Stell v. Savannah-Chatham County Board of Education, 5 Cir. 1964, 333 F.2d 55 and Gaines v. Dougherty County Board of Education, 5 Cir. 1964, 334 F.2d 983. It is essential that dual or biracial school attendance systems be abolished contemporaneously *891 with the application of a plan to the respective grades reached by it.
In place of permissive freedom of choice there must be a mandatory annual free choice of schools by all students, both white and Negro. ‘If a child or his parent is to be given a meaningful choice, this choice must be afforded annually.’ Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, 22. The initial choice of assignment, within space limitations, should be made by a parent or by a child over fifteen without regard to race. This mandatory free choice system would govern even the initial assignment of students to the first grade and to kindergarten. At the minimum, a freedom of choice plan should provide that: (1) all students in desegregated grades shall have an opportunity to exercise a choice of schools. Bardley v. School Board of the City of Richmond, 4 Cir. 1965, 345 F.2d 310, vacated and remanded, 1965, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187; (2) where the number of applicants applying to a school exceeds available space, preferences will be determined by a uniform non-racial standard, Stell v. Savannah-Chatham County Board of Education, 5 Cir. 1964, 33 F.2d 55, 65; and (3) when a student fails to exercise his choice, he will be assigned to a school under a uniform non-racial standard, Kemp v. Beasley, 8 Cir. 1965, 352 F.2d 14, 22.
C. Notice. The notice provisions of the HEW Guidelines are reasonable and should be followed. Where public notice by publication in a newspaper will assure adequate notice, individual notice will not be necessary. Individual notice should be required if notice by publication is likely to be inadequate.
D. Transfers for Students in Non-desegregated
Grades and with Special Needs. In
Singleton II we held that children in still-segregated grades in Negro schools ‘have
an absolute right, as individuals, to transfer to schools from which they were
excluded because of their race.’ [FN114] 355
F.2d at 869. See also Rogers
v. Paul, 1965, 382 U.S. 198, 86 S.Ct. 358, 15 L.Ed.2d 265. A transfer provision should be included in the plan. The
right to transfer under a state Pupil
Placement Law should be regarded as an additional right that takes into
consideration criteria irrelevant to the absolute right referred to in
E. Services, Facilities, Activities, and Programs. In Singleton II we held that there should be no segregationor discrimination in services, facilities, activities, and programs that may be conducted or sponsored by, or affiliated with, the school in which a student is enrolled. We have in mind school athletics and inter-scholastic associations of course, but also parents- teachers associations. In order to eliminate any uncertainty on this point, we hold that the plan should contain a statement that there will be no such segregation or discrimination.
F. School Equalization. In recent years, as we are all well aware, Southern states have exerted great effort to improve Negro school plants. There are however many old and inferior schools readily identifiable as Negro schools; there are also many superior white schools, in terms of the quality of instruction. A freedom of choice plan will be ineffective if the students cannot choose among schools that are substantially equal. A school plan therefore should provide for closing inferior schools and should also include a provision for remedial programs to overcome past inadequacies of all-Negro *892 schools. This will, of course, require the local school authorities and the trial courts to examine carefully local situations and perhaps seek advice from qualified, unbiased authorities in the field.
G. Scheduled Compliance Reports. Scheduled compliance reports to the court on the progress of freedom of choice plans are a necessity and of benefit to all the parties. These should be required following the choice period and again after the opening of school. None of the school boards expressly objected to this provision, or one similar to it, and it does not appear onerous.
H. Desegregation of Faculty and Staff. The most difficult problem in the desegregation process is
the integration of faculties. See Section IV D of this opinion. A recent survey
shows that until the 1966-67 session not a single Negro teacher in
In the past year, district courts have struggled with the problem of framing effective orders for the desegregation of faculty. (1) Some courts have focused upon the specific results to be reached by reassignment of teachers previously assigned solely upon the basis of their race. The orders entered in these cases require the defendant school boards to assign any *893 newly employed teachers and reassign already-employed faculty so that the proportion of each race assigned to teach in each school will be the same as the proportion of teachers of that race in the total teaching staff in the system, or at least, of the particular school level in which they are employed. (2) Other courts have not bee specific as to the number of teachers of each race that should be assigned to each school in order to remove the effects of past discriminatory assignments. These courts have focused upon the mechanics to be followed in removing the effect of past discrimination rather than upon the result as such. Thus, in Beckett v. School Board of the City of Norfolk, Civil Action No. 2214 (E.D.Va., 1966); Gilliam v. School Board of the City of Hopewell, Civil Action No. 3554 (E.D.V.a.1966); and Bradley v. School Board of the City of Richmond, Civil Action No. 3353 (E.D.Va.1966), the courts approved consent decrees setting forth in detail the considerations that would control the school administrators in filling faculty vacancies and in transferring already employed faculty members in order to facilitate faculty integration. (3) In a third group of cases, the district court, while emphasizing the necessity of affirmative steps to undo the effects of past racial assignments of faculty and while requiring some tangible results, has not been specific regarding the mechanics or the specific results to be achieved. See Harris v. Bullock County Board of Education, M.D.Ala.1966, 253 F.Supp. 276; United States v. Lowndes Board of Education, Civil Action No. 2328-N (M.D.Ala.1966); Carr v. Montgomery County Board of Education, M.D.Ala.1966, 253 F.Supp. 306.
We agree with the Eighth Circuit’s statement: ‘The lack of a definite program will only result in further delay of long overdue action. We are not content at this late date to approve a desegregation plan that contains only a statement of general good intention. We deem a positive commitment to a reasonable program aimed at ending segregation of the teaching staff to be necessary for the final approval of a constitutionally adequate desegregation plan.’ Clark v. Board of Education of the Little Rock School District, 369 F.2d 661, December 15, 1966. In that case the Court did not impose ‘a set time with fixed mathematical requirements’. However the Court was firm in its position: ‘First, as the Board has already positively pledged, future employment, assignment, transfer, and discharge of teachers must be free from racial consideration. Two, should the desegregation process cause the closing of schools employing individuals predominately of one race, the displaced personnel should, at the very minimum, be absorbed into vacancies appearing in the system. Smith v. Board of Education of Morrilton School District, No. 32, supra. Third, whenever possible, requests of individual staff members to transfer into minority situations should be honored by the Board. Finally, we believe the Board should make all additional positive commitments necessary to bring about some measure of racial balance in the staffs of the individual schools in the very near future. The age old distinction of ‘white schools’ and ‘Negro school’s must be erased. The continuation of such distinctions only perpetrates inequality of educational opportunity and places in jeopardy the effective future operation of the entire ‘freedom of choice’ type plan.’
In Singleton I we agreed with the original HEW Guidelines in requiring that an ‘adequate start’ toward faculty desegregation should be made in 1966-67. The requirement that all grades be desegregated in 1967-68 increases the need for substantial progress beyond an ‘adequate start’. It is essential that school officials (1) cease practicing racial discrimination in the hiring and assignment of new faculty members and (2) take affirmative programmatic steps to correct existing effects of past racial assignment. If these two requirements are prescribed, the district court should be able to add specifics to meet the particular situation the case presents. *894 The goal should be an equitable distribution of the better teachers. [FN119] We anticipate that when district courts and this Court have gained more experience with faculty integration, the Court will be able to set forth standards more specifically than they are set forth in the decrees in the instant cases.
We have carefully
examined each of the records in these cases. In each instance the record
supports the decree. However, the provisions of the decree are intended, as far
as possible, to apply uniformly throughout this circuit in cases involving
plans based on free choice of schools. School boards, private plaintiffs, and
the
As Brown dictates, the decree places responsibility on the school authorities to take affirmative action to bring about a unitary, non-racial system. As the Constitution dictates, the proof of the pudding is in the eating: the proof of a school board’s compliance with constitutional standards is the result-- the performance. Has the operation of the promised plan actually eliminated segregated and token-desegregated schools and achieved substantial integration?
The substantive requirements of the decree derive from the Fourteenth Amendment as interpreted by decisions of the Supreme Court and of this Court, in Many instances before the HEW Guidelines were published. For administrative details, we have looked to the Office of Education. For example, those familiar with the HEW Guidelines will note that the decree follows the Guidelines exactly as to the form letters which go to parents announcing the need to exercise a choice of schools, and the forms for exercising that choice are the same. Indeed a close parallel will be noted between much in Parts II through V of the decree and the Guideline provisions.
The great bulk of the school districts in this circuit have applied for federal financial assistance and therefore operate under voluntary desegregation plans. [FN120] Approval of these plans by the Office of *895 Education qualifies the schools for federal aid. In this opinion we have held that the HEW Guidelines now in effect are constitutional and are within the statutory authority created in the Civil Rights Act of 1964. Schools therefore, in compliance with the Guidelines can in general be regarded as discharging constitutional obligations.
Some schools have made no move to desegregate or have had plans rejected as unsatisfactory by district courts or the HEW. We expect the provisions of the decree tobe applied in proceedings involving such schools. Other schools have earlier court-approved plans which fall short of the terms of the decree. On motion by proper parties to re-open these cases, we expect these plans to be modified to conform with our decree. In some cases the parties may challenge various aspects of HEW-approved plans. Our approval of the existing Guidelines and the deference owed to any future Guidelines is not intended to deny a day in court to any person asserting individual rights or to any school board contesting HEW action. [FN121] In any school desegregation case the issue concerns the constitutional rights of Negroes, individually and as a class, and the constitutional rights of the State-- not the issue whether federal financial assistance should be withheld under Title VI of the Civil Rights Act of 1964.
When school systems are under court-ordered desegregation, the courts are responsible for determining the sufficiency of the system’s compliance with the decree. The courts’ task, therefore, is a continuing process, especially in major areas readily susceptible of observation and measurement, such as faculty integration and student desegregation. (1) As to faculty, we have found that school authorities have an affirmative duty to break up the historical pattern of segregated faculties, the hall-mark of the dual system. To aid the courts in its task, the decree requires the school authorities to report to the district courts the progress made toward faculty integration. The school authorities bear the burden of justifying an apparent lack of progress. [FN122] (2) As to students the decree requires school authorities to make reports to the court showing by race, by school, by grade, the choices made in each ‘choice period’. A similar report is required after schools open to show what actually happened when schools opened.
What the decree contemplates, then, is continuing judicial evaluation of compliance by measuring the performance-- not merely the promised performance-- of school boards in carrying out their constitutional obligation ‘to disestablish dual, racially segregated school systems and to achieve substantial integration within such systems.’ [FN123] District courts may call upon HEW for assistance in determining whether a school board’s performance measures up to its obligation to desegregate. If school officials in any district should *896 find that their district still has segregated faculties and schools or only token integration, their affirmative duty to take corrective action requires them to try an alternative to a freedom of choice plan, such as a geographic attendance plan, a combination of the two, the Princeton plan, [FN124] or some other acceptable substitute, perhaps aided by an educational park. Freedom of choice is not a key that opens all doors to equal educational opportunities.
Given the knowledge of the educators and administrators in the Office of Education and their day to day experience with thousands of school systems, judges and school officials can ill afford to turn their backs on the proffer of advice from HEW. Or from any responsible government agency or independent group competent to work toward solution of the complex problem of de jure discrimination bequeathed this generation by ten preceding generations.
Now after twelve years of snail’s
pace progress toward school desegregation, courts are entering a new era. The
question Parish School Board
In
the suit against the Caddo Parish School Board July 19, 1965The
This Court denied the motion of certain appellants to consolidate their cases, but allowed consolidation of briefs and, in effect, treated the cases as consolidated for purposes of appeal. The Court, however, in each case has separately considered the particular contentions of all the parties in the light of the record.
The Court reverses the judgments below and remands each case to the district court for further proceedings in accordance with this opinion.
WILLIAM HAROLD COX, District Judge (dissenting).
The majority opinion herein impels my dissent, with deference, to its general theme, that precedent required the public schools to mix the races rather than desegregate such schools by removing all effects of state action which may have heretofore compelled segregation, so as to permit these schools to be operated upon a proper free choice plan. This Court has heretofore firmly and soundly (as decision and not gratuitously) committed itself to the views expressed by the distinguished jurists in Briggs v. Elliott, 132 F.Supp. 776. The majority now seeks to criticize the Briggs case and disparage it as dictum, although this Court in several reported decisions had embraced and adopted Briggs with extensive quotations from it as the decisional law of this Circuit. Surely, only two of the judges of this Court may not now single-handedly reverse those decisions and change such law of this Circuit.
These school cases all stem from
the decision of the Supreme Court of the
No informed person at this late date would now argue with the soundness of the philosophy of the Brown decision. That case simply declared the constitutional right of negro children to attend public schools of their own free choice without any kind of restraint by state action. That Court has made it clear that the time for ‘deliberate’ speed in desegregating these public schools has now expired, but the majority opinion herein is the first to say that the Brown case, together with the Civil Rights Act of 1964, makes it necessary that these public schools must now integrate and mix these schools and their facilities, ‘lock, stock and barrel.’ That view comes as a strange construction of the Fourteenth Amendment rights of colored children. The passage of time since the rendition of the Brown case; and of natural disparities which are found in so many school plans before the Court; and the difficult problems posed before the Court by such plans certainly can provide no legal justification or basis for this extreme view and harsh and mailed fist decision at this time. These questions involving principles of common sense and law are readily resolved by a court of equity without being properly accused of giving an advisory opinion. The decision in such case is not overtaxing on a court of equity and its articulated conclusions can be implemented by an enforceable decree even at the expenditure of some well spent time, patience and energy of the Court. If a Court is to write a decree, it should be the decree of that Court and not the by-product of some administrative agency without knowledge or sworn obligation to resolve sacred constitutional rights and principles. Unilaterally prepared guidelines allegedly devised by the Commissioner may or not accord with his own views, but such an anomalously prepared document could not justify this Court in adopting it ‘lock, stock and barrel’ under any pretext and even with repeated disavowals of such intention or purpose.
The Constitution of the United States is not the dead hand of the past strangling the liberties of a free people; it is a living document designed for all time to perpetuate liberty, freedom and justice for every person, young or old, who is born under or who comes within its protecting shield. As was said many years ago, ‘in moving water there is life, in still waters there is stagnation and death.’ The Constitution was framed not for one era, but for all time. But when the Courts transform viability into elasticity, constitutional rights are illusory. The rope of liberty may be twisted and become a garrote which strangles those who seek its protection. It the majority opinion in these cases is permitted to stand, it will, in the name of protecting civil rights of some, destroy civil rights and constitutional liberties of all our citizens, their children and their children’s children.
*907 The Supreme Court, in Brown II, said that ‘school
authorities have the primary responsibility for elucidating, assessing, and
solving these problems; courts will have to consider whether the action of
school authorities constitutes good faith implementation of the governing
constitutional principles.’ It thereupon
became the duty of the Court, acting as a Court of Equity, under such
principles to see that public schools, still operating under the dual system by
state action, were desegregated (not integrated) in accordance with the vested
constitutional right of colored children. Judicial haste and impatience cannot
justify this Court in equating integration with desegregation. No Court up to
this time has been heard to say that this Court now has the power and the
authority to force integration of both races upon these public schools without
regard to any equitable considerations, or the will or wish of either race. The
decisions of this Court deserve and must have stability and integrity. It was
the 1965 guidelines of HEW that were approved by this Court in Jerome Derek Singleton
v. Jackson Municipal Separate School District, 355 F.2d 865. Judge Wisdom wrote for the Court and Judge Thornberry
concurred in that case on
The last reported school case
from this Circuit, decided August 16, 1966 by Judge Tuttle and Judge Thornberry
in Birdie Mae Davis,
et al. v. Board of School
Commissioners of Mobile County, et al., 364 F.2d 896, this Court still wrote of accelerating a plan of
desegregation. As if to foreshadow the point of Judge Wisdom’s ‘nettle’ in the
majority opinion in this case, Judge Tuttle wrote in his Note 1 an explanation
of his changing requirements in these school cases for the delayed enjoyment of
constitutional rights by accelerating desegregation. Davis said that negro
children, as individuals, had the right to transfer to schools from which they
wereexcluded because of their race, and said that this had been the law since
the Brown decision; but that misunderstanding of that principle was perhaps due
to the popularity ‘of an oversimplified dictum that the constitution ‘does not
require integration’ (Briggs
v. Elliott, E.D.S.C.1955, 132 F.Supp. 776, 777).‘
That is the first and only expressed criticism of Briggs found among the
decisions of this Circuit, but the Court did not comment upon the viability and
soundness of the many decisions of this Circuit which wholeheartedly embraced
and repeatedly reaffirmed the so-called dicta in Briggs.
In Alfred Avery, Jr., a Minor by his Mother and Next Friend, Mrs. Alfred, this Court said:
‘The Constitution as construed in the School Segregation Cases, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Id., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, and Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, forbids any state action requiring segregation of children in public schools solely on account of race; it does not, however, require actual integration of the races. As was well said in Briggs v. Elliott, D.C.E.D.S.C., 132 F.Supp. 776, 777:
‘* * * it is important that we point out exactly what the Supreme Court has decided and what it has not decided in this case. It has not decided that the federal courts are to take over or regulate the public schools of the states. It has not decided that the states must mix persons of different races in the schools or must require them to attend schools or *908 must deprive them of the right of choosing the schools they attend. What it has decided, and all that it has decided, is that a state may not deny to any person on account of race the right to attend any school that it maintains. This, under the decision of the Supreme Court, the state may not do directly or indirectly; but if the schools which it maintains are open to children of all races, no violation of the Constitution is involved even though the children of different races voluntarily attend different schools, as they attend different churches. Nothing in the Constitution or in the decision of the Supreme Court takes away from the people freedom to choose the schools they attend. The Constitution, in other words, does not require integration. It merely forbids discrimination. It does not forbid such segregation as occurs as the result of voluntary action. It merely forbids the use of governmental power to enforce segregation. The Fourteenth Amendment is a limitation upon the exercise of power by the state or state agencies, not a limitation upon the freedom of individuals.’
Again, this Court in Hilda Ruth Borders, a Minor, et at. v. Dr. edwin L. Rippy, et al., 247 F.2d 268 (1957) said: ‘The equal protection and due process clauses of the fourteenth amendment do not affirmatively command integration, but they do forbid any state action requiring segregation on account of their race or color of children in the public schools. Avery v. Wichita Falls Independent School District, 5 Cir., 1957, 241 F.2d 230, 233. Pupils may, of course, be separated according to their degree of advancement or retardation, their ability to learn, on account of their health or for any other legitimate reason, but each child is entitled to be treated as an individual without regard to his race or color.’
In a public housing case, participated in by Judge Wisdom, Queen Cohen v. Public Housing Administration, 5 Cir., 257 F.2d 73, it is said: ‘Neither the Fifth nor the Fourteenth Amendment operates positively to command integration of the races, but only negatively to forbid governmentally enforced segregation.’
This Court in Sandra Craig Boson, et al. v. Dr. Edwin L. Rippy, et al., 285 F.2d 43, said: ‘Indeed, this Court has adopted the reasoning in Briggs v. Elliott, D.C. E.D.S.C.1955, 132 F.Supp. 776, relied on by the Sixth Circuit, and has further said: ‘The equal protection and due process clauses of the fourteenth amendment do not affirmatively command integration, but they do forbid any state action requiring segregation on account of their race or color of children in the public schools. Avery v. Wichita Falls Independent School District, 5 Cir., 1957, 241 F.2d 230, 233. Pupils may, of course, be separated according to their degree of advancement or retardation, their ability to learn, on account of their health, or for any other legitimate reason, but each child is entitled to be treated as an individual without regard to his race or color.’ Borders v. Rippy, 5 Cir., 1957, 247 F.2d 268, 271.
‘Nevertheless, with deference to the views of the Sixth Circuit, it seems to us that classification according to race for purposes of transfer is hardly less unconstitutional than such classification for purposes of original assignment to a public school.’ It is that decision in Briggs v. Elliott, supra, which the majority here now seek to criticize and repudiate.
In Ralph Stell, et al. v. Savannah-Chatham County Board of Education, et al. (5 CA) 333 F.2d 55, 59, in footnote 2 it is said: ‘No court has required a ‘compulsory racially integrated school system’ to meet the constitutional mandate that there be no discrimination on the basis of race in the operation of public schools. The interdiction is against enforced racial segregation. Incidental integration, of course, occurs through the process of desegregation.
This Court in Darrell Kenyatta *909Evers, et al. v. Jackson Municipal Separate School District, 328 F.2d 408 (1964) said: ‘This is not to say that the Fourteenth Amendment commands integration of the races in the schools, or that voluntary segregation is not legally permissible. The Supreme Court did not hold otherwise in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873.‘ The same teaching is expressed in a park case from this Court, styled City of Montgomery, Alabama v. Georgia Theresa Gilmore, 277 F.2d 364. In the many cases from this Court involving the race issue in public schools (there being some forty-one of them according to the majority opinion), not one of them speaks of any requirement or duty of the school to forcefully integrate the races, or to compel the races to mix with each other in public schools; but every one of them speak of desegregating such schools. The word desegregate does not appear in Webster’s New International Dictionary, Second Edition, Edited in 1950. But Webster’s New Collegiate Dictionary (a Merriam-Webster) defines desegregation as: ‘To free itself of any law, provision or practice requiring isolation of the members of a particular race in separate units, especially in military service or in education.’
In sum, there is no law to require one of these public schools to integrate or force mix these races in public schools. But these public schools, which have been heretofore segregated by state action, and operate under a dual system, should be required to remove every vestige of state influence toward segregation of the races in these schools; and these colored children should be fully advised of their constitutional right to attend public schools of their choice, completely without regard to race. Many problems exist and are created by the proper enforcement of desegregation plans that will assure a full sweep of real freedom of choice to these negro children, and this Court cannot by only two of its members become impatient as trail-blazers and rewrite the decisional law of this Circuit as my good friends have undertaken to do in this case.
Such a course would do violence to the ancient rule of Stare Decisis. In Donnelly Garment Co. v. National Labor Relations Board, (8 CCA) 123 F.2d 215: ‘It is a long-established rule that judges of the same court will not knowingly review, reverse or overrule each other’s decisions. Shreve v. Cheesman, 8 Cir., 69 F. 785, 790, 791; Plattner Implement Co. v. International Harvester Co., 8 Cir., 133 F. 376, 378, 379. The necessity of such a rule in the interest of an orderly administration of justice is clear.’ In Sanford Napoleon Powell v. United States, (7 CA) 338 F.2d 556 (1964), it is said: ‘Our decision in Lauer has been criticized. However, this decision is the law of this Circuit unless and until this Court (presumably sitting en banc) would determine otherwise or unless higher authority might so determine.’
Rule 25a of the Fifth Circuit provides for a rehearing in any case upon vote of a majority of the circuit judges in active service for any reason which appears to them to be sufficient in the particular case. Ordinarily, a hearing or rehearing en banc is not ordered except ‘when necessary to secure or maintain uniformity or continuity in the decisions of the Court, (etc.)’ The majority opinion simply does not reflect the well considered and firmly stated composite decision of this Circuit; and in that view, is not an accurate or proper statement of the law in this case as it now exists in the Fifth Circuit.
The Civil Rights Act of 1964(42
U.S.C., 1958 ed., § 2000c-6) refers to ‘desegregation
in public education’ and not to forced mixing or integration of the races. That
same section states ‘provided that nothing herein shall empower any official or
court of the United States to issue any order seeking to achieve a *910
racial balance in any school by requiring the transportation of pupils or
students from one school to another or one school district to another in order
to achieve such racial balance, or otherwise enlarge the existing power of the
court to insure compliance with constitutional standards.’ The English language
simply could not be summoned to state any more clearly than does that very
positive enactment of Congress, that these so- called ‘guidelines’ of this
administrative agency are not sacrosanct expositions of school law (if so
intended), but are actually promulgated and being used in opposition to and in
violation of this positive statute. Contrary to the majority opinion, it was
never the intention or purpose of the Congress to constitute the Commissioner
of Health, Education and Welfare as the sidewalk superintendent of this Court
in these school cases. On the contrary, 42
U.S.C., 1958 ed., § 2000c-2 provides that the
Commissioner, only upon application of a school board, state, municipality,
school district or other governmental unit, can render any technical assistance
to such an applicant. Nowhere in that act
is it contemplated that this court should abdicate its power and authority to
act upon and decide a case on appeal to it as a court of equity, and simply
decide it by rubber stamping one of the annual guideline bulletins of an
administrative bureau of the
There were seven consolidated cases before the Court which are embraced in this decision. Most, if not all, of the plans in those cases were defective and needed updating for a more realistic and effective application of the free choice principle under the former decisions of this Court; but they did not need or deserve the harsh and unprecedented treatment accorded these schools by the majority decision in these cases. The colored children are not befriended and their lot is not improved by this unprecedented majority opinion and the entire school system will suffer under the impact of this improvident administrative directive as thus adopted by this Court.
Myduty impels me to file this dissent to the majority view in these cases with great deference to both of my distinguished associates.
372 F.2d 836