Derek Jerome Singleton et al., Plaintiffs-appellants, v. Jackson Municipal Separate School District et al., Defendants-appellees, 426 F.2d 1364 (5th Cir. 1970)

This is an appeal from an order of the District Court entered pursuant to the remand from Singleton v. Jackson Municipal Separate School District (Singleton III),¹  5 Cir., 1969, 419 F.2d 1211 (consolidated cases en banc), rev'd in part, sub nom., Carter v. West Feliciana Parish School Bd., 1970, 396 U.S. 290, 90 S. Ct. 608, 24 L. Ed. 2d 477. Prior to this remand the district was operating under a Jefferson^1a model freedom-of-choice plan. And after remand for the adoption of a unitary plan the District Court called for the school board to invoke the assistance of the Office of Education of the United States Department of Health, Education and Welfare in preparing new desegregation plans. HEW filed a plan with three alternative proposals for secondary schools. The school board proposed modifications (see note 8, infra) that reduced the amount of desegregation that would result and these modifications were, after an evidentiary hearing on January 19, 1970, for the most part approved by the District Court. And this new plan was ordered implemented on February 1, 1970.

Our concern is whether the system approved by the District Court is unitary. We believe that, although faculty,²  staff, extra curricular activities, etc., see Green v. County School Bd. of New Kent County, 1968, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716; Ellis v. Board of Public Inst. of Orange Cty., 5 Cir., 1970, 423 F.2d 203, appear so far to have become unitary, the existence of a substantial number of schools with segregated student bodies, the students of which will for a large part have a completely segregated education, prevents the system from being a unitary one when there is a reasonable alternative plan that will result in a more nearly unitary system. We thus remand this case.³ 

The Proposals for Unitary System

At the commencement of the 1969-70 school year, Jackson had 10,527 Negro and 10,432 white elementary school students attending 38 elementary schools. Of those schools, 13 were all- or virtually all-Negro and 20 were all- or nearly all-white. Of the 5 substantially integrated schools, 3 were predominantly Negro, 2 predominantly white. And Jackson was operating 9 junior high schools (grades 7-9), 2 junior-senior high schools (grades 7-12), and 6 senior high schools (grades 10-12). There were 7,700 Negro and 10,380 white students enrolled. Of those students, 7,300 (93.5%) Negroes were enrolled in 6 all-Negro schools. All of the white students attended 11 schools ranging from 86.5 to 100 percent white.

The plan suggested by HEW to remedy this is essentially a zone plan. It was constructed on the assumption that other alternatives were foreclosed by state statutory limitations on state-granted financial assistance to local school districts to provide intracity transportation.⁴  In addition, the HEW plan indicated that other limitations "to developing a plan resulting in total desegregation of all schools in the system were" (1) the size of the district, (2) natural and man-made barriers that constitute safety hazards and restrict mobility,⁵  (3) demographic pattern of the district, (4) lack of a compulsory attendance law, (5) possibility of resegregation and (6) the need to develop a "plan which would result in the least amount of disruption and which would be implemented immediately."

The HEW plan was a zoning plan within the framework of the former 1-6 grade structure. The zoning was designed to maximize desegregation and was supplemented by pairing of two schools and a cross-zone assignment of two schools. It was projected that the plan would produce 5 all-white schools and 6 all-black schools with 15 predominantly white schools and 12 predominantly black schools.⁷ 

This was basically the plan adopted by the District Court.⁸  But not even these projected results have been achieved. As of March 26, 1970⁹  there were seven elementary schools with all black student bodies and six more in which the student body is made up of at least ninety percent Negro students. In addition there are 6 elementary schools out of a total of 38 that have only white students attending them and two other schools with over ninety percent white student bodies.

The direct challenge here is not, however, to the elementary system, but is to the school board's modifications of the HEW plan — or more appropriately plans A, B, and C — at the secondary level. (See note 6, supra). The HEW plans were based on principles of pairing and zoning. All three plans resulted in breakdown of the grade structure — 6-3-3 — under which the district had previously been operating. Plan B, for which plaintiffs-appellants expressed a preference, proposes geographic zoning with junior high schools continuing to serve one or more of grades 7 through 9. Under Plan B, of the eleven junior high schools, one would serve grades 7-9, six would serve grades 7-8, and four would serve grade 9 only. Plan B calls for the same type of organization at the high school level — six high schools are to serve grades 10-12, two are to serve grades 11-12, and one grade 10 only.

The modifications proposed by the Board and adopted by the District Court were not really modifications at all. They were instead a completely different plan based on geographic zoning. The zoning was, however, based on the assumption of retaining the District's 6-3-3 grade structure.

After approximately six weeks operation under this plan there were 7537 white students and 8156 Negro students in the District's secondary schools. There were no all-Negro or all-white secondary schools. (See Appendix B). There are, however, at least four schools where the student body is overwhelmingly Negro.¹⁰  In contrast, the projected enrollment under any of the HEW plans would not have produced any virtually all-Negro schools. See Appendices C-E.

Deficiencies in the Present Plan

It is not contended that the school board's zoning plan was gerrymandered to produce little desegregation. But it is contended that the school board plan is not the best available alternative. Andrews v. City of Monroe, 5 Cir., 1970, 425 F.2d 1017. And it is contended that the board has not carried "its * * * heavy burden * * * to explain its preference for an apparently less effective method." Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 439, 88 S. Ct. 1689, 1695, 20 L. Ed. 2d 716, 724. It is also claimed that the school board's secondary plan zone lines were not drawn to promote desegregation as required by this Court. Valley v. Rapides Parish School Bd., 5 Cir., 1970, 423 F.2d 1132; United States v. Indianola Municipal Separate School Dist., 5 Cir., 1969, 410 F.2d 626; Davis v. Board of School Commissioners of Mobile County, 5 Cir., 1968, 393 F.2d 690.

We are of the clear view that the plaintiffs'-appellants' complaints are valid. Jackson Separate School District is not a unitary system. The deficiencies do not lie in the simple existence of some schools that are all or virtually all Negro or white. They lie instead in the fact that a substantial number of Negro students will receive their entire public school education in a segregated school environment,¹¹  which is presumably largely the result of the State's operation of a dual school system with schools located to serve that system. And these deficiencies are critical in light of the existence of readily available means, which can be implemented without significant administrative, educational, economic, or transportation costs (see note 14, infra), to avoid for substantially all the students of this district the school life-long segregated education. See Andrews v. City of Monroe, supra.

This Court realizes that the time for adoption and effectuation of a plan in this school district was short and that the physical and logistical problems involved were great. And it recognizes that significant progress has been achieved both as to the student body and the other Green factors as a result of the plan put into effect pursuant to the District Court's order. Although under the stringent mandate of Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S. Ct. 29, 24 L. Ed. 2d 19; Carter v. West Feliciana Parish School Board, 1970, 396 U.S. 290, 90 S. Ct. 608, 24 L. Ed. 2d 477, this was to be a final plan, two things warrant comment. First, the Judge approached it in terms or immediacy with some expectation of correcting deficiencies¹²  revealed by actual operation. Second, we have to look on it in terms of its acceptability as a final plan now.

Furthermore, we are not now confronted with the problems and dislocations that a midyear change in the traditional grade structure — 6-3-3 — would involve. (See III (2), infra). Although the changes under the HEW plans for the secondary schools may require future adjustment, they are not educationally, administratively, or economically unreasonable. And it appears that under these circumstances and in this case, subject, of course, to the experience of actual operation, there is a good possibility that these plans will establish a unitary school system at the secondary level.

Steps to be Taken to Correct Deficiencies

In order to achieve a unitary system it is necessary that steps be taken immediately:

1. A majority to minority transfer rule¹³  must be adopted and all transferring students must be given transportation if they desire it. As approved in Ellis v. Board of Public Inst. of Orange Cty., 1970, 423 F.2d 203, the transferee is to be given priority for space and thus the transfer is not to be dependent on space being available. See also Taylor v. Ouachita Parish School Bd., 5 Cir., 1970, 424 F.2d 324.

2. Second, the district is to adopt one of the presently available HEW plans for the secondary level for use in the 1970-71 school year. These are the only currently available plans that give any promise of presently ending the dual system.¹⁴  United States v. Board of Education of Baldwin Cty., 5 Cir., 1970, 423 F.2d 1013; Banks v. Claiborne Parish School Board, 5 Cir., 1970, 425 F.2d 1040. The plan adopted shall remain in effect until, after substantial operation under the plan during the 1970-71 school year, it can be shown that modifications¹⁵  are needed and there is a finding that such modifications will not tend to reestablish a dual school system or that operation under the plan has not in fact produced a unitary system. We specify July 1, 1970¹⁶  as the date to be fixed by the District Court for making pupil assignments for the 1970-71 school year and notifying parents of those assignments.

3. The District Court shall without delay initiate proceedings to eliminate the dual system which still remains in the elementary level. The District Court shall call for new proposals from the parties, HEW, and the Bi-Racial committee.

It is evident that the factors delineated by the HEW plans as reasons for not more fully desegregating the elementary level cannot justify this continued segregation. And it is also evident that the burden will be heavy on the school district to find alternatives that hold promise of disestablishing the dual system now. And the District Court shall make findings of fact that specifically evaluate the alternatives in terms of cost as well as administrative, educational, or economic factors bearing on the elimination of the dual system. The findings shall specifically include the reasons, if any, for the continuation of any all Negro or all white schools.¹⁷  The District Court shall expedite this proceeding and shall have completed all findings and entered all orders by June 15, 1970. The time for assignments and notification pursuant to this order is, as in paragraph 2 above, to be on July 1, 1970. Further proceedings in the District Court are to conform to part III of Singleton v. Jackson Municipal Separate School District, 5 Cir., 1969, 419 F.2d 1211 (consolidated cases en banc).

4. Following the pattern of Ellis, supra, and United States v. Hinds County School Bd., 5 Cir., 1970, 423 F.2d 1264, a Bi-Racial committee is to be constituted by the District Court from names submitted by the parties to this suit. The number of members is to be left to the District Court, but there shall be no more than 40 nor less than 10 members. The membership is to be divided equally between whites and Negroes. The chairmanship is to alternate annually between a white chairman and a Negro chairman. This committee is to recommend to the school board ways to attain and maintain a unitary system.

5. Finally, the District Court is to retain jurisdiction of this case and the school board and the Bi-Racial committee are to make bi-annual reports — on December 1 and April 1 — to it on the maintenance of a unitary school system.¹⁸  Such reports are to be made until the District Court finds that the dual system will not be or tend to be reestablished.

Reversed and remanded.

 Appendix A Projected Enrollment under HEW Plan for Elementary Schools Building School White Negro Capacity Sykes 544 0 576 Lee 370 0 416 Marshall 600 0 576 Baker 310 24 512 Wilkins 600 16 416 Key 513 68 576 Lester 320 152 480 Clausell 47 165 224 Isable*  0 640 1120 Reynolds 0 1009 1088 George 100 106 192 Martin 76 220 384 Lake 600 0 576 Whitfield 282 166 416 Barr 123 90 192 Poindexter 47 102 192 Robertson 6 575 544 Davis 46 182 224 Jones 70 1171 1248 Galloway 185 262 448 Brown 0 575 832 Power 383 216 544 Raines 780 72 736 French 354 83 576 Johnson 71 1023 1088 Duling 194 227 448 Casey 420 0 576 Bradley 33 293 384 Smith 0 917 928 Walton 0 527 1120 Dawson 65 387 608 Morrison 0 338 616 Watkins 773 291 608 Boyd 395 127 576 Green 380 149 576 McWillie 624 74 620 Spann 539 39 540 McLeod 500 66 608

 Appendix B JACKSON PUBLIC SCHOOLS Jackson, Mississippi Student Enrollment as of March 26, 1970 SCHOOL Elementary Negro Other Total Baker 4 321 325 Barr 41 83 124 Boyd 168 420 588 Bradley 339 14 353 Brown 658 0 658 Casey 0 451 451 Clausell 201 5 206 Davis 309 55 364 Dawson 421 10 431 Duling 126 115 241 French 138 313 451 Galloway 388 170 558 George 67 111 178 Green 123 480 603 Isable 760 0 760 Johnson 857 54 911 Jones 1248 10 1258 Key 0 487 487 Lake 0 609 609 Lee 0 365 365 Lester 99 236 335 Marshal 0 569 569 Martin 207 20 227 McLeod 50 669 719 McWillie 64 502 566 Morrison 481 0 481 Poindexter 91 85 176 Power 37 368 405 Raines 131 502 633 Reynolds 999 0 999 Robertson 317 0 317 Smith 1024 0 1024 Spann 47 491 538 Sykes 0 457 457 Walton 852 0 852 Watkins 132 517 649 Whitfield 163 238 401 Wilkins 16 490 506 _____ _____ _____ TOTAL 10558 9217 19775 Secondary Negro Other Total Bailey 514 408 922 Blackburn 593 34 627 Chastain 523 660 1183 Enochs 562 101 663 Hardy 424 758 1182 Peeples 218 864 1082 Powell 796 673 1469 Rowan 609 31 640 Whitten 346 579 925 Brinkley 1076 2 1078 Callaway 86 1027 1113 Central 192 564 756 Hill 376 50 426 Lanier 713 7 720 Murrah 180 864 1044 Provine 278 637 915 Wingfield 51 897 948 _____ _____ _____ TOTAL 7537 8156 15693 TOTAL ELEMENTARY 19775 TOTAL SECONDARY 15693 _____ GRAND TOTAL 35468

 Appendix C Projected Secondary Enrollment Under HEW Plan A Junior High Building School Grades White Negro Capacity Whitten 7-8 370 165 868 Peeples 7-8 801 282 1286 Isable-Hill 9 501 190 Hill 200 Isabell 500 Blackburn 7-8-9 268 756 1458 Hardy 7-8 572 697 1278 Enochs 9 248 293 830 Bailey 7-8 692*  632* 1310 Rowan 9 285 281 996 Chastain 7-8 823 482 1234 Powell 9 509 379 1574 Callaway 7-8 456**  402** 550 Senior High Hill 10 532 167 894 Wingfield 11-12 924 289 894 Provine 10-12 873 533 1180 Murrah 11-12 772 531 1180 Brinkley 10 875 762 1154 Callaway 11-12 851 759 448

 Appendix D Projected Secondary Enrollment Under HEW Plan C Building School Grades White Negro Capacity Peeples-Whitten 7-8 1382 438 2154 Enochs 7-8 128 408 830 Hardy 7-8 549 587 1286 Bailey-Rowan 7-8 1243 983 2306 Chastain 7-8 884 546 1434 Hill-Isable 9-10 1022 401 1374 Blackburn 9-10 691 869 1458 Brinkley 9-10 645 531 1154 Powell 9-10 1085 708 1574 Wingfield 11-12 825 338 894 Provine 11-12 507 581 1180 Murrah 11-12 707 502 1180 Callaway 11-12 779 584 998 Appendix E RACIAL COMPOSITION OF STUDENT BODIES JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT SCHOOLS Under HEW Plan B JUNIOR HIGH: WHITE NEGRO Whitten 370 165 Peeples 801 282 Isable-Hill 501 190 Blackburn 268 756 Hardy 572 697 Enochs 248 293 Bailey 942 682 Rowan 285 281 Chastain 823 482 Powell 509 379 Callaway 206 350 Lanier 0 0 SENIOR HIGH: Brinkley 627 629 Callaway 853 441 Murrah 707 625 Provine 741 521 Hill 456 169 Wingfield 730 276 MAGNET HIGH SCHOOLS: Central 823 532 Lanier 734 339

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and 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 Petition for Rehearing En Banc is also denied.

COLEMAN, Circuit Judge, voted in favor of an en banc rehearing.