Eric Cleveland et al., Appellants, v. Union Parish School Board et al., Appellees.alfreda Trahan et al., Appellants, v. Lafayette Parish School Board et al., Appellees.virgie Lee Valley et al., Appellants, United States of America, Appellant-intervenor, v. Rapides Parish School Board et al., Appellees, 406 F.2d 1331 (5th Cir. 1969)

A. P. Tureaud, New Orleans, La., Stephen J. Pollak, Asst. Atty. Gen., Merle W. Loper, Nathan Lewin, Jesse H. Queen, Robert T. Moore, Frank M. Dunbaugh, Attys. Dept. of Justice, Washington, D. C., Edward L. Shaheen, U. S. Atty., Shreveport, La., William Bennett Turner, Jack Greenberg, Norman C. Amaker, Franklin E. White, New York City, Jerris Leonard, Asst. Atty. Gen., Edward S. Christenbury, Atty., Department of Justice, Washington, D. C., for appellants.

Fred L. Jackson, Homer, La., Edwin O. Ware, Dist. Atty., Gus Voltz, Jr., Asst. Dist. Atty., Alexandria, La., E. Rudolph McIntyre, Winnsboro, La., John A. Richardson, Shreveport, La., for appellees.

ORDER

The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the motion for Hearing En Banc is denied.

 /s/ John R. Brown CHIEF JUDGE

Before JOHN R. BROWN, Chief Judge, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, CLAYTON^*  and MORGAN, Circuit Judges.

ON MOTION FOR HEARING EN BANC

WISDOM, Circuit Judge, with whom BROWN, Chief Judge, and GOLDBERG, Circuit Judge, join.

I respectfully dissent from the denial of the hearing en banc.

Fifteen years after Brown,¹  school boards in the Western District of Louisiana are still unwilling to face up to the prerequisites to effective desegregation. These prerequisites are the transitionary short steps which must be taken now and the planning for the long steps that must be taken in 1969-70/1970-71 to effect lock-stock-and-barrel desegregation. More than two years after Jefferson,²  this Court is still not able to get the message through to these school boards that the standard for determining the effectiveness of a desegregation plan is an objective one: Does it work?³  Fidelity to our earlier holding in these very cases now consolidated in three appeals,⁴  fidelity to other decisions of this Court⁵  and of the Sureme Court,⁶  indeed fidelity to federal judicial process command summary reversal.⁷ 

These thirty cases, consolidated in three appeals, were among forty-four cases consolidated on appeal in Adams v. Mathews, No. 26501. In Adams, on August 20, 1968, we set deadlines for action by the school boards and by the district court. We did so to prevent the delay here granted by the district court and now blessed by a majority of this Court. Our object was to forestall the ubiquitous contention that it is too late this school term to make extensive changes in the next school term.

The order in Adams is short. It is quoted, in pertinent part, in the footnotes.⁸  We required the district court to "treat school desegregation cases as entitled to the highest priority and conduct a hearing in each case at the earliest practicable time, no later than November 4, 1968".⁹  If, in a particular case, the district court concluded that the existing freedom of choice plan was not working but that it was not administratively feasible for the board to shift "immediately" to other alternatives the court was directed to require the board

(1) "to take forthwith such steps toward full desegregation as may be practicable in the first and second semesters of the 1968-69 school year, and (2) to formulate and submit to the Court by November 28, 1968, a plan to complete the full conversion of the school district to a unitary, non-racial school system for the 1969-70 school year". (Emphasis added.)

We directed the district court to "enter an order by such date as will permit effective review, if review is necessary, of the court-approved actions the Board will institute in the 1968-69 year as well as the 1969-70 year". Unfortunately for the constitutional rights of Negro students, the 1968-69 term will be over by the time this case is heard and decided on "expedited" appeal. Full desegregation in the 1969-70 term is made difficult, if not impossible, by the unwillingness of the school boards to take effective transitionary action.

On remand, the district court found that the "school boards are acting in good faith". But good faith does not excuse non-compliance; it is relevant only as a necessary ingredient of an acceptable desegregation plan.

The district court's major finding was that the decree under which the boards have been operating since the fall of 1967 has "real prospects for dismantling the dual system `at the earliest practicable date'" — whenever that is. Apparrently because of this finding, the district court did not require the school boards to "take forthwith" any steps for the 1968-69 school year. And instead of requiring the boards to submit by November 28, 1968, specific plans for full conversion to a unitary, non-racial system, the district court required each board to "re-assess its own system and on or before March 1, 1969, make a report * * * as to what additional courses are open to it to bring about the end result required by the Supreme Court in Green."

I turn now to the Supreme Court's conclusions as to what does not constitute "real prospects for dismantling the dual system". In Green, the Supreme Court found the following criteria relevant to workability of a school desegregation plan (1) A school board's adoption of a freedom of choice plan 11 years after Brown I was decided and 10 years after Brown II raises the inference that the board deliberately perpetuated the unconstitutional dual system. "Such delays are no longer tolerable * * *. The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now"; not at "the earliest practicable date".¹⁰  (2) Freedom of choice is not acceptable if its effect is to shift the burden of desegregating schools from the school board to the children and their parents.¹¹  (3) Existence of an all-Negro school¹²  and (4) the fact that 85 percent of the Negro children attend all-Negro schools demonstrate, as a matter of law, that a desegregation plan is not working.¹³  (5) Green does not deal with faculty desegregation. The Supreme Court has held, however, that students in public schools have a constitutional right to attend schools where teachers have not been assigned on the basis of race.¹⁴  As to faculty, Jefferson held that nothing less is required than "that the pattern of teacher assignment to any particular school not be identifiable as tailored for a heavy concentration of either Negro or white pupils in the school".¹⁵  Bessemer set a date for "C-day", the first day of the 1970-71 term, for full compliance with the requirement of faculty integration.¹⁶  The Fourth and Tenth Circuits require, as a remedy to eliminate faculty segregation, "the same approximate percentage of non-white teachers in each school as there now is in the system".¹⁷ 

This Court has held that "school authorities bear the burden of justifying an apparent lack of progress".¹⁸  At the November 12 hearing the school boards came forward with no suggested steps that might ease the transition from a dual to a unitary system. They relied on the so-called Jefferson reports to the courts, statistical records showing the degree of desegregation. These reports show that there is no basis for the district court's findings. On the contrary, there is not one case where a desegregation plan meets the Green-Jefferson criteria and none that offers any hope of "working" without substantial additions and changes.

There are seven school districts involved in the cases consolidated in No. 27,087.¹⁹  Here are the facts as to those districts. (a) The 37 traditionally Negro schools remain all-Negro schools. (b) The number and percentage of Negroes attending formerly all-white schools is as follows:

 STUDENT DESEGREGATION - NO. 27,087 Percentage No. of of Negroes Negroes attending at former former No. of No. of white white School System Negroes whites schools schools Union Parish 2300 2700 17 0.5 City of Monroe 5300 ____ 54 1 Concordia Parish 3400 ____ 37 1 Claiborne Parish ____ ____ 23 1 Ouachita Parish 4500 12,300 79 1.5 Winn Parish 1520 2400 69 3.8 Jackson Parish 1500 ____ 83 5 * according to choice forms

(c) The figures on faculty integration are unclear, e. g. they do not reflect the courses taught by teachers or whether an arts teacher for several schools is treated as a member of the faculties in the several schools. The number of Negro teachers on the faculties in white schools and the number of white teachers on the faculties of Negro schools is as follows:

 FACULTY DESEGREGATION - NO. 27,087 School System Teachers on Faculties in Teachers on Faculties Former white schools of Negro schools whites Negroes whites Negroes Claiborne Parish 108 0 8 112 Union Parish 134 17 13 91 Concordia Parish 184 1/2 14 13 160 Winn Parish 140 10 3 68 Jackson Parish 127 1/3 7 1/2 8 1/3 80 2/3 Monroe (City) 266 23 27 215 Ouachita Parish Figures not given in 1968 Report.

There are 13 school districts involved in the cases consolidated in No. 27106. There are 103 virtually all-Negro schools enrolling 97 percent of the Negro students; that is, three percent attend white schools. In 12 of the 13 school districts 5 percent, or less, of the Negro students attend white schools; in Avoyelles Parish 12 percent of the Negro students attend white schools. No white students attend or have attended Negro schools in 11 of these districts; one white student attends a Negro school in Bossier Parish, and one in Caddo Parish. The faculty desegregation is as follows:

 FACULTY DESEGREGATION - NO. 27106 Number of Teachers Percentage of Teachers Number of Teachers Assigned to School Assigned to School of In System of Opposite Race Opposite Race School System School Year*  white Negro Negro white white Negro ______________________________________________________________________________________________________ AVOYELLES 1967-68 293 126 6 3 1.02 4.76 1968-69 317 126 8 9 3.15 6.66 ______________________________________________________________________________________________________ BIENVILLE 1967-68 119 1/4 135 3/4 8  7  5.87 5.89 1968-69 121 4/5 133 1/2 13 1/2 13 10.67 10.11 ______________________________________________________________________________________________________ BOSSIER 1967-68 551 212 14 7 1.27 6.60 1968-69 614 213 33 22 3.58 15.49 ______________________________________________________________________________________________________ CADDO 1967-68 1418 1117 15 7 .49 1.34 1968-69 1395 1094 91 66 3.26 8.31 (See Footnote ) (See Footnote3) ______________________________________________________________________________________________________ CLAIBORNE 1967-68 102 115 0 8 7.84 0 1968-69 108 112 0 8 7.40 0 ______________________________________________________________________________________________________ CONCORDIA 1967-68 184 147 2  4  1968-69 184.5 160 14 13 7.04 8.75 ______________________________________________________________________________________________________ DE SOTO 1967-68 154  1936 1968-69 136  1847 14 14 10.52 7.69 ______________________________________________________________________________________________________ EAST CARROLL 1967-68 84 109 4 5 5.95 3.66 1968-69 83 97 4 7  8.43 4.12 ______________________________________________________________________________________________________ GRANT 1967-68 127 49 0 0 1968-69 128 51 3 4 2.89 5.88 ______________________________________________________________________________________________________ JACKSON 1967-68 124 84 8 1/3 7 1/3 5.91 9.91 1968-69 127 1/3 80 2/3 7 1/2 8 1/3 6.54 9.29 ______________________________________________________________________________________________________ LA SALLE 1967-68 140 23 0 0 1968-69 139 25 1/2 5 3 2.15 19.60 ______________________________________________________________________________________________________ LINCOLN 1967-68 174 133 5  79 1968-69 182 142 16 2/3 17 9.34 11.73 ______________________________________________________________________________________________________ RAPIDES 1967-68 766 409 5 3 .33 1.22 1968-69 807.5 416 37 26 3.21 8.41 ______________________________________________________________________________________________________ RICHLAND 1967-68 168 139 0 0 0 0 1968-69 175 150 11 11 5/6 6.76 7.33

There are fifteen school districts involved in the cases consolidated in No. 27,054. In a few districts there has been progress in student desegregation. In Vermilion Parish, for example, 44 percent of all Negro students attend former white schools.²⁰  But it can hardly be said that free choice is working in Evangeline Parish. In that parish the percentage of Negro students attending white schools dropped from 2.9 percent in 1967-68 to 2.3 percent in 1968-69. The following tables show the extent of student and faculty desegregation as of September-October of 1968:

 STUDENT DESEGREGATION IN SCHOOL DISTRICTS - NO. 27,054 No. of Negroes & %age No. of Negro No. of white attending No. of All-Negro All-white School System Students Students white Schools Schools Schools Schools Caddo 25,414 33,879 642 (2.5%) 77 26 15 Bossier 4,268 13,949 188 (4.4%) 24 5 5 Madison 3,235 1,255 83 (2.6%) 8 5 0 Jeff Davis 2,069 5,976 270 (13%) 19 5 1 Lafayette 6,984 20,311 1,195 (17%) 35 10 4 Acadia 2,694 8,930 149 (5.5%) 22 4 9 Iberia 4,897 10,070 426 (8.7%) 30 11 4 St. Martin 3,516 4,871 128 (3.6%) 15 7 1 St. Mary 5,390 10,537 729 (13.5%) 26 9 1 Vermilion 1,644 8,138 722 (44%) 18 1 2 Rapides 9,671 18,856 402 (4.3%) 51 19 16 Evangeline 3,114 5,624 71 (2.3%) 14 5 2 St. Landry 10,754 11,779 330 (3%) 43 20 3 Natchitoches 4,601 4,327 101 (2.2%) 26 10 7 FACULTY DESEGREGATION - NO. 27,054 No. of No. of Average Negro white No. at All-white All-Negro No. of No. of Teachers Teachers Schools Faculties or Faculties or Negro white at white at Negro of other No. of having 1 having 1 School System Teachers Teachers Schools Schools Race Schools Negro white Caddo 1,099 1,395 96 66 2.1 77 2 2 Bossier 213 614 33 22 2.3 24 1 1 Madison 137 81 5 13 2.25 8 2 1 Jeff Davis 110 287 11 2 .7 19 14 5 Natchitoches 247.07 301 29 33 2.4 26 10 Lafayette 283 911 45 28 2.1 35 7 2 Acadia 127 389 23 12 1.6 22 12 not given Iberia 231 430 24 2 .86 30 9 2 St. Martin 161 215 15 8 1.5 15 3 3 St. Mary 246 455 52 12 2.5 26 1 4 Vermilion 62 371.5 23 3 1.4 18 11 not given Rapides 392 786.5 35 28 1.2 51 11 10 Evangeline 142 274 19 12 2.2 14 not given 2 St. Landry 484 547 23 21 1.02 43 23 19

I am not suggesting that freedom of choice should necessarily be abandoned in favor of zoning. In some areas, because of residential patterns based on race, court-approved school zoning would legalize the Southern equivalent of Northern de facto segregation. In many school districts freedom of choice has not worked because school boards have thought that they complied with the law simply by opening the doors of white schools to Negro children bold enough to apply for entrance. That is not the law. This Court and the Supreme Court have held that the dual system must be done away with, root and branch. There is nothing necessarily unconstitutional about freedom of choice or geographic zoning or a combination of the two. Whatever plan is used, transfers should be favored when a transferee is from a school where the transferee's race constitute a majority and he is transferring to a school where students of his race are in the minority; minority to majority transfers should not be favored. Principals are enormously important, especially in rural areas. They should be rotated or assigned to schools where students of the opposite race are in the majority. All athletic activities should have been desegregated years ago.

The statistical evidence points plainly to the fact that in a freedom of choice system white students will not attend a school having a Negro principal and all-Negro faculty. One remedy is for the school authorities to assign teachers on the basis of race, so that the faculty of each school will substantially reflect the racial composition of the total number of teachers in the system. The rule should not be inflexible. The proportion of teachers and staff in a school should substantially reflect the ratio of Negro teachers in a school to all teachers in the system such as would have resulted if, in the past, teachers had been assigned without regard to race. As this Court has held in other cases, race may be considered when it is necessary in fashioning a remedy to undo past unconstitutional discrimination.²¹  The purpose is not to achieve racial balance as an end in itself but to use it as a means of ending the dual system based on segregated faculties in segregated schools. As the Seventh Circuit recently pointed out in a decision upholding a district court's order requiring bussing of children from one Chicago school to another, "This is not done to achieve racial balance, although that may be the result, but to counteract the legacy left by the Board's history of discrimination." United States v. School District 151 of Cook County, Illinois, Dec. 17, 1968, 404 F.2d 1125.

Freedom of choice as now administered by the defendant school boards fails all of the tests established by Green and restated in Adams in these very cases now before us.²²  The judgments below should be summarily reversed with instructions that each defendant school board be ordered to submit immediately a desegregation plan that "promises realistically to work now", to the end that the school system be converted to one without white schools and Negro schools, but just schools.