V. O. Taylor et al., Plaintiffs-appellees, v. Houston Municipal Separate School District et al., Defendants-appellants, 444 F.2d 118 (5th Cir. 1971)

BY THE COURT:

Appellants were operating a dual school system when this suit seeking injunctive relief was filed in February, 1970. Promptly thereafter they adopted a plan designed to eliminate the dual system and convert it to a unitary system, effective September, 1970. The parties were invited to give the plan judicial sanction by entering into a consent decree embracing the plan but apparently were unable to agree on such a decree. The court, in August, 1970, entered an injunctive order generally following uniform orders then widely being used in school cases throughout this Circuit, requiring that the board plan be put into effect.

The injunction was not, as appellants urge, a penalty visited upon them. The District Judge was under a duty to see that the plan was given judicial sanction, if not by a consent decree then by the court's own decree, and to see that not only did the plan promise to end the dual system in September, 1970 but that in actuality it did so. He did not abuse his discretion by entering the injunction, and would have erred had he not done so.

Counsel for the parties represent to this court that there are not involved in the case any of the issues embraced in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554, and that the system is unitary.

It is ordered that the judgment of the District Court is affirmed. The cause is remanded to the District Court with instructions to determine if the system is unitary and if so to enter a final order terminating the case.