Ross v. Eckels, 317 F. Supp. 512 (S.D. Tex. 1970)

US District Court for the Southern District of Texas - 317 F. Supp. 512 (S.D. Tex. 1970)
May 30, 1970

317 F. Supp. 512 (1970)

Delores ROSS, a minor, by her Next Friend, Mary Alice Benjamin, et al., Plaintiffs,
United States of America, Plaintiff-Intervenor,
v.
Robert ECKELS, as President of the Board of Trustees of the Houston Independent School District, et al., Defendants.

Civ. A. No. 10444.

United States District Court, S. D. Texas, Houston, Division.

May 30, 1970.

*513 Weldon H. Berry, Houston, Tex., and Conrad K. Harper, New York City, for plaintiffs.

John M. Rosenberg, Washington, D. C., for plaintiff-intervenor.

Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Houston, Tex., for defendants.

 
MEMORANDUM AND ORDER:

CONNALLY, Chief Judge.

This is another chapter in the effort presently to create a unitary school system, and further to disestablish the dual school system maintained by the defendant Houston Independent School District prior to 1954. This action was filed in December, 1956. Any number of hearings have been held, and orders have been entered, over the intervening years. Beginning with a one grade per year desegregation plan; followed by an acceleration of this to a two grade per year plan; followed by the integration of athletics and other extracurricular activities; and culminating with the freedom of choice plan[1] presently in operation and initiated pursuant to order of this Court of September 5, 1967, Houston has, in my judgment, come a long way along the road. Substantial integration has been achieved in many areas;[2] and, of almost equal importance, has been achieved without incident or racial confrontation.

To bring what has been done, and what remains to be done, into proper perspective, these facts should be borne in mind. The Houston Independent School District is the largest in the South, and is the sixth largest in the nation. It covers 311 square miles. It has a student population of 238,460, of *514 which almost exactly two-thirds (66.9%) are white and one-third (33.1%) black. It employs 9,624 teachers, of which approximately two-thirds (68%) are white, one-third (32%) black. It operates 230 schools on 225 campuses,[3] of which 170 are elementary schools, 36 are junior high and 24 are high schools.

Pursuant to a motion by the plaintiffs for further relief, a hearing was held June 14-23, 1969. At that time I found, and so advised the parties, that the incidence of integration, both of faculty and student body, under the present plan did not meet the requirements of the recent cases. [Green v. County School Board of New Kent Co., 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968); Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S. Ct. 29, 24 L. Ed. 2d 19 (1969); Singleton v. Jackson Municipal Separate School District, "Singleton III", 419 F.2d 1211 (5th Cir. 1969). The School Board was directed to devise a new plan and to submit same for consideration by January 1, 1970.[4]

The Board of Trustees of the Houston Independent School District is composed of seven members, all elected. An election was held for members of this Board in December, 1969. Four members of the Board were replaced by the same number of new members. The new Board took office January 10, 1970. Almost immediately the firm of attorneys who had represented the Board during the 14 years of litigation in this matter withdrew from the case, and new counsel theretofore completely unrelated to this litigation in any fashionwas employed and entered an appearance. The new counsel requested, and was granted, a matter of a few weeks to familiarize himself with the litigation. At the request of new counsel, the defendant Board has hastily prepared detailed student locator maps showing the residence, race[5] and grade standing of each of the almost one-quarter million students in the School District. Thus, now, for the first time, one may forecast accurately the effect of any new plan of integration which may be invoked.

The opinion of the Supreme Court in Green, supra, and of the Court of Appeals for the Fifth Circuit in Singleton, supra, have been cited in cases too numerous to mention as furnishing the criteria which a school district is required to meet to establish the desired "unitary" system. The conversion involves the merger of faculty and staff, students, transportation, services, athletics and other extracurricular school activities (Singleton, supra, and Ellis v. Board of Public Instruction of Orange County, Florida, 423 F.2d 203 (1970). There is no controversy here except as to the means to be used for increased student integration. While the integration of faculty and staff today does not meet the two-thirds whiteone-third Negro ratio required by Singleton, the defendant Board recognizes its obligation in this respect and does not contest the issue.

In all other respects (transportation, services, facilities, athletics and other extracurricular school activities), the defendant Board is presently in compliance with the Green and Singleton requirements.[6]

The only question which remains is that of student integration. The question is not easily resolved. Few meaningful guidelines have been established *515 by the appellate courts. In the great majority of cases, without saying what is required, the appellate courts have simply said to the District Courts, "This is not enough." (See the opinion of Judge Coleman, dissenting in part, in Singleton v. Jackson Municipal Separate School District, 425 F.2d 1211 (5th Cir. en banc, January 21, 1970).

In approaching the problem I consider it to be the duty of this Court to adopt a plan which will serve realistically (a) to bring about now a high degree of overall student integration, (b) to assure that every student, if not receiving his education in an integrated atmosphere today, soon will do so, and (c) to do this in a manner which is consistent with good education, good administration, and with sound economic practices.

Presently there are seven plans before the Court for consideration. They will be denominated hereafter as follows:

 
1. The plaintiff's plan;
 
2. The Intervenor (U.S.) or the Stolee plan;
 
3. The Ted-Tac plan;
 
4. The freedom of choice plan;
 
5. The neighborhood zoning plan;
 
6. The equi-distant attendance plan; and
 
7. The geographic capacity plan.

Numbers 4 and 5 were filed herein December 31, 1969, by the outgoing (1969) School Board. Numbers 6 and 7 have been recently filed by the new (or 1970) School Board. The plans will be briefly summarized hereafter.

 
1. THE PLAINTIFF'S PLAN.

This is a computerized scheme composed by a Computer Center in Boston, Massachusetts, whose services were availed of by the National Association for the Advancement of Colored People Legal Defense Fund.[7] It is based upon the premise that the law requires that every school in the District shall have the same ratio of white to Negro students as prevails throughout the District. For practical purposes plaintiff's counsel concedes that some margin must be allowed, and suggests that this margin should be no more than 10% above or below. Thus every school would have a ratio of white to Negro students ranging from 57% white 43% Negro to 77% white 23% Negro.

Further recognizing the realities of the situation, however, the computerized plan does not go this far, by reason of the admittedly prohibitive costs involved. The plan as submitted would result in no school having a student body in excess of 50% Negro. In light of the geographical size of the District and the residential patterns which prevail, to accomplish this result would require the daily busing of an estimated 44,000 students, approximately 34,000 white and 10,000 Negro. The plan is designed to restrict the maximum haul to a distance of 10 miles from the home of any student, and as not to overtax the capacity of any given school.

The plaintiff's witness estimates the annual and recurring cost of the busing at the figure of $1,100,000. Witnesses for the defendant Board have estimated that an initial capital outlay for new equipment would come to $2,800,000, with a recurring annual expense of $1,300,000.

If the premise on which this plan is based is accepted, then plaintiff's plan affords a reasonably efficient way to achieve this result.

I am unable, however, to accept this premise. The overall educational process the assurance that a high school graduate will have received a full and well-rounded education involves a great deal more than the body count at the schools which he attended. The one million plus dollars admittedly required annually to implement the plaintiff's proposal can be *516 better spent in providing more and better teachers, newer and more efficient schools and other facilities than in increasing ever so slightly the Negro-to-white ratio in a few specific schools. There are better ways of accomplishing comparable and acceptable results.

The mass busing procedure raises more problems than it solves. In a hypothetical situation, which would arise many times under the plaintiff's proposal, a black child who lives two blocks from School A, a predominantly black school, is to be bussed, together with 50% of his schoolmates, to School B, a predominantly white school, ten miles away; and 50% of the students at School B are to be bussed the same ten miles in the opposite direction. The plaintiff's plan is silent as to how the black children who are to be required to go, no doubt against the will of many of them, should be chosen. Are the school authorities to set up some draft system, with deferments based on hardships or other valid considerations? Are the names of those to fill the quota to be drawn in public from a goldfish bowl? Is provision to be made for a review procedure, with ultimate appeals to the courts?[8]

The hypothetical child who is thus transported against his wishes will be deprived of many educational opportunities. He will be unable to participate in athletics, in dramatics, or in the band for he will be unable to remain after school to practice and participate in these activities. His bus would leave without him. This result would discourage the integration of athletics and other activities commanded by Singleton and adopted many years ago by the Houston School District, for only those resident within a close proximity to the school might participate.

Our hypothetical student well might say to the Superintendent of Instruction, "You are excluding me from School A, two blocks from my home, because I am black, and for no other reason. How can you do this when the Supreme Court of the United States in its latest pronouncement on the subject[9] imposes on you the duty `to operate as [a] unitary school systems within which no person is to be effectively excluded from any school because of race or color'?" (Emphasis added.) I would be interested to know how this question would be answered.

No Supreme Court decision, and no other controlling authority with which I am familiar, requires that a predetermined ratio be established, and children bussed from distant areas to meet these quotas. I am unalterably opposed to such procedure and would impose this upon the School District only if specifically required to do so by order of a higher court.

 
2. THE INTERVENOR'S (UNITED STATES OF AMERICA) PLAN.

The proposal of the United States is based on the testimony of Dr. Michael J. Stolee, Director of the Florida School Desegregation Consulting Center. While it is not complete in several respects,[10] nevertheless the proposal shows a thoughtful consideration of the problems of the Houston District. The plan includes a combination of the principles of zoning, pairing, and busing. The *517 zones, of course, are gerrymandered to increase the integration factor.

As I interpret the plan and projected figures, the results may be summarized as follows:

 
(a) With respect to the senior high schools, zoning is used exclusively. A child would be required to travel a maximum of five miles to reach school. The proposal would eliminate all-black high schools. One all-white high school would remain. Most of the high schools would have a white population varying from approximately 30 to 60%.
 
(b) With respect to the junior high schools, zoning again is used with a single exception, where pairing is employed. Again the plan would eliminate the all-Negro junior high. Three all-white junior highs would remain. In general, the white population of the others would be approximately 50 to 70%.
 
(c) With respect to the elementary schools, of course, the problem is more complex because of the large number of students concerned and of the fact that by reason of their tender years any extended travel is undesirable. Under the Stolee plan, 27 elementary schools are zoned and 51 are paired. The plan contemplates that the children would walk to the school nearest their homes from which point they would be bussed to the school with which it is paired. This, however, would leave approximately 15 all-black elementary schools. The plan recommends that busing be utilized to eliminate this condition. The number of students to be bussed under this proposal, the distances which they would be transported, and the expense thereof do not appear in the evidence.

This plan is too incomplete to be accepted in its present form. Other more attractive proposals are available.

 
3. THE TED-TAC PLAN

The Texas Educational Desegregation Technical Assistance Center is an agency funded by the Department of Health, Education and Welfare at the University of Texas to offer assistance to various interested parties with problems in its field. At the hearing in July, 1969, the School Board was directed to seek the assistance and advice of this agency ("Ted-Tac") in framing its (the Board's) new proposal which was to be filed January 1, 1970. The Board states that there was no consultation; rather that the Ted-Tac staff visited the various schools in the District and received a mass of information from the Board's files; and thereafter drafted its own plan without regard to the Board's desires, and after consultation only with the officials of HEW. Hence, the defendant Board does not espouse or endorse the plan. In the later stages of this proceeding, the Government has supported it. In general, it is much like the Stolee proposal.

The purpose was to make all schools majority white, although without an effort to achieve the precise white-black ratio which was the aim of the plaintiff's plan.

This plan, again, is based primarily on zoning and pairing. There would remain, however, 13 essentially all-black elementary schools. The solution recommended for the elimination of this result is the pairing of these with 13 unidentified predominantly white schools. The available white bodies in the vicinity of these 13 schools, however, are already put to use elsewhere to integrate other predominantly black schools. Hence, each of these 13 schools would of necessity be paired with a predominantly white school a great distance away. Thus, the recommended solution again is a cross-town busing plan, though much less extensive than that proposed by plaintiff. It is suggested that use be made of the extensive freeway systems of this city to provide rapid transportation for the great distances involved. There is no evidence before me as to the number of students to be bussed or the cost thereof.

*518 At the time the proposal was submitted in July, 1969, the plan was incomplete and the results to be contemplated could not be determined with any degree of certainty with respect to many of the schools. Since preparation of the pupil locator maps, however, counsel for the Government has made additional calculations which in large measure fill these gaps.

As I understand these results, they will be essentially as follows.

With respect to the high schools, there will be no all-Negro schools, and no all-white schools.

There will be no high schools with less than 50 white students, and two with less than 50 Negro students.

There will be no high schools with less than 100 white students, and two with less than 100 Negro students.

With respect to the junior high schools, it appears that there will be no all-Negro junior highs; four all-white junior highs.

There will be no junior highs with less than 50 white students, and 6 with less than 50 Negro students.

There will be no junior highs with less than 100 white students, and 7 with less than 100 Negro students.

With respect to the elementary schools, the results will be these. Two all-Negro elementary schools will remain, 24 all-white elementaries.

There will be 6 elementary schools with less than 50 white students, and 47 with less than 50 Negro students.

There will be 9 elementary schools with less than 100 white students, and 49 with less than 100 Negro students.

As stated above, there will remain the cross-town busing with respect to 13 predominantly Negro elementary schools paired with 13 predominantly white elementary schools.

Ted-Tac does not limit its recommendation to the desegregation factor. It recommends the closing of certain schools and a change in designation of others because of their curriculum. It is suggested, "There is no way for the students in these small high schools to receive a comprehensive course offering due to the limited enrollment." I consider the choice of curriculum to be within the discretionary province of the School Board and no part of the present controversy.

 
4. FREEDOM OF CHOICE PLAN.

This is a proposal of the 1969 School Board and simply urges that the present plan of freedom of choice be maintained. The Court indicated in July, 1969, that this course might not be followed. This was so because, in view of the size of the District, the residential patterns, and the obvious desire of parents that their children attend the school nearest their home, it did not appear that the degree of integration required by law would be attained within the foreseeable future.

The present composition of the schools under freedom of choice is as follows: Of the 24 high schools, 3 are all-Negro, but with an additional 4 having less than 5 white students. There are no all-white high schools. Seven of the high schools have less than 50 white students, and 6 have less than 50 Negro students. Seven high schools have less than 100 white students, and 12 have less than 100 Negro students.

With respect to the 36 junior high schools, 4 are all-Negro and an additional 4 have less than 5 white students. There is one all-white junior high. There are 11 junior highs with less than 50 white students and 13 with less than 50 Negro students. There are 11 with less than 100 white students, and 14 with less than 100 Negro students.

Of the 170 elementary schools, 26 are all-Negro, with an additional 11 having less than 5 white students. There are 40 all-white elementaries. There are 43 elementary schools with less than 50 white students, and 92 with less than 50 Negro students. There are 48 elementary schools with less than 100 white students, and 100 with less than 100 Negro students

Looking at the same figures from a different approach, the percentage of *519 Negro students attending schools with 50 or more white students is as follows: In the high schools, 10.1%; in the junior high schools, 18.8%; and in the elementary schools, 26.6%.

The percentage of Negro students attending school with at least 100 white students is as follows: In the high schools, 10%; in the junior high schools, 18.8%; and in the elementary schools, 21.4%.

As indicated in the earlier paragraphs hereof, by reason of the large number of all-Negro or essentially all-Negro schools and of the low overall instance of integration, I am of the view that these results are insufficient.

 
5. NEIGHBORHOOD ZONING PLAN.

This is another alternative proposed by the 1969 School Board and filed December 31, 1969. It would zone the elementary, junior high, and high schools in the District, and is designed to achieve a higher degree of integration. Insofar as I can determine, there is no systematic scheme or plan followed in the designation of these zones. Natural barriers, hazardous crossings, and school capacities are considered.

The results under this zoning plan are as follows. With respect to the 24 high schools, there would be no all-black high schools, two all-white. There would be one high school with less than 50 white students, and 6 with less than 50 blacks. There would be two high schools with less than 100 white students, 9 with less than 100 blacks.

With respect to the 36 junior high schools, 5 would be all-white, none all-black. Two of the junior highs would have less than 50 white students, 10 less than 50 Negro students. Two would have less than 100 white students, and 14 less than 100 Negro students.

With respect to the 170 elementary schools, 52 would be all white, 4 all Negro. Twenty-eight would have less than 50 white students, 95 would have less than 50 Negro students. Thirty-four would have less than 100 white students, 100 would have less than 100 Negro students.

 
6. THE EQUI-DISTANT ZONING PLAN.

This is a proposal advanced by the new or 1970 School Board. Admittedly, it is patterned very closely after the plan approved by the Court of Appeals for the Fifth Circuit for the Orange County, Florida, School District in Ellis v. Board of Public Instruction of Orange County, Florida, February 17, 1970, 423 F.2d 203. In that opinion the Court noted that the size of the District magnified the Board's problem. Many characteristics of the Orange County District are similar to those of Houston.[11]

This plan contemplates that the District will be zoned (separately, of course, for high school, junior high and elementary schools) drawing the zone lines exactly equi-distant between the adjacent schools. Each student is required to attend the school nearest his home at the time of enrollmentand to remain in that school for the ensuing semester, regardless of a later change of residence. Where the capacity of a school would be exceeded by this method of determining the composition of its student body, the geographic area to be served by such school would be decreased (and that of the neighboring school increased) by narrowing its boundaries, with a line or lines parallel to those originally proposed; *520 and in every case effecting the change where one is necessary in a manner which will increase the integration factor.[12] The only exception to the requirement that a student attend the school closest to his home would permit the voluntary transfer of a student whose race is in the majority to another school in which his race is in the minority, with these options:

 
(a) If such student chooses the nearest school in which his race is in the minority, he is afforded automatic admission despite the capacity of the school (i. e., he is permitted to "bump" a student of the opposite race) and he is afforded free transportation from his home;
 
(b) If such student prefers any other school in the District in which his race is in the minority, he may attend on a "space available" basis, and if he furnishes his own transportation.

Under this plan[13] there will be no all-Negro high schools and one all-white high school.

There will be no high schools with less than 50 white students, and 6 with less than 50 Negro students.

There will be no high schools with less than 100 white students,[14] and 8 with less than 100 Negro students.

There will be no all-Negro junior highs and 2 all-white junior highs.

There will be no junior high schools with less than 50 white students, and 8 with less than 50 Negro students.

There will be one junior high school with less than 100 white students, and 12 with less than 100 Negro students.

Of the 170 elementary schools, 4 will be all-Negro and 51 all-white.

There will be 19 elementary schools with less than 50 white students, and 87 with less than 50 Negro students.

There will be 28 elementary schools with less than 100 white students, and 98 with less than 100 Negro students.

To look at these anticipated results solely from the standpoint of the Negro student, there will be no high schools with a Negro student population exceeding 90%; and only 2 wherein 70% is exceeded. These two (Kashmere and Yates) show a combined Negro-white population of 2,831-409, respectively. Thus, 32% of the Negro high school *521 students will attend schools with a Negro population exceeding 70%; and none exceeding 90%.

At the junior high school level, one School (Ryan) will have an anticipated Negro student population in excess of 90%1,781 Negro, 93 white, or 94.5% Negro. Thus, 11% of the total Negro junior high school students will attend school with a population exceeding 90% Negro.

Comparable comparisons for the 170 elementary schools have not been submitted by the parties.

 
7. GEOGRAPHIC-CAPACITY ZONING PLAN.

This is a second plan filed and urged by the 1970 School Board. It is closely patterned after the plan approved by the Court of Appeals for the Fifth Circuit in Bivins v. Bibb County Board of Education, February 5, 1970, 424 F.2d 97.

Under this plan a zone is drawn around each school in a non-discriminatory manner, with the size of the zone determined and measured by the capacity of the school. Once the zone is determined for a given school year, every student residing within that zone must attend such school, subject to the majority-to-minority transfer rule required by Singleton.

The plan contemplates that in the delineation of the zone lines consideration might, and should, be given to questions of natural boundaries, traffic hazards and pupil density.

The results under this zoning plan are as follows. With respect to the 24 high schools, there would be no all-Negro high schools, and one all-white. There would be no high school with less than 50 white students, and 2 with less than 50 Negro students. There would be no high school with less than 100 white students, and 8 with less than 100 Negro students.

With respect to the 36 junior high schools, none would be all-Negro, and 4 would be all-white. None of the junior high schools would have less than 50 white students, and 10 would have less than 50 Negro students. None of the junior high schools would have less than 100 white students, and 12 would have less than 100 Negro students.

With respect to the 170 elementary schools, 4 would be all-Negro, and 46 would be all-white. Thirteen elementary schools would have less than 50 white students, and 86 would have less than 50 Negro students. Twenty-nine would have less than 100 white students, and 99 would have less than 100 Negro students.

Again, looking at the figures only from the standpoint of the Negro student, no high school will have a Negro population exceeding 90%, and only two exceeding 70% (Kashmere, 83%; and Yates, 79%). Thus, 32% of the Negro high school students will attend schools with a Negro population exceeding 70%; and none exceeding 90%.

At the junior high school level there will be no junior high school with a Negro population exceeding 90%.

Of the seven alternatives discussed above, several may be rather summarily dismissed.

With respect to the plaintiff's plan, the inordinate expense which it would entail and the very legitimate complaints, both practical and legal, which might be interjected by the 44,000 students to be transported render it completely inappropriate.

With respect to the Intervenor or Stolee plan (No. 2), it is incomplete. Insofar as comparisons are possible, it appears to follow the same approach, and achieve the same results as the No. 3, or Ted-Tac, plan. If it came to a choice between these two, I would be inclined to leave the choice to the defendant School District.

The freedom of choice plan (No. 4) has been administered fairly and completely without discrimination by the defendant *522 District for several years. Literally, any child who was unhappy with his original school assignment could enroll in any school of his choice simply by appearing at the schoolhouse door on the enrollment date. Such a scheme has much to commend it in theory; but it is condemned by recent authorities because it does not achieve a sufficiently high incidence of integration. For that reason, it cannot be further considered here.

The "neighborhood zoning plan" (No. 5) advocated by the 1969 School Board is not now urged or endorsed by any of the parties to the suit. While it increased the incidence of integration to some extent, it did not do so as effectively as the plans to be discussed hereafter.

There remain the Ted-Tac plan or, its counterpart, the Stolee plan, and the two plans submitted and equally endorsed by the Board. All three achieve a high degree of integration and, when coupled with the other requirements of Singleton discussed above, in my judgment will achieve a clearly unitary system.

Of the three, I am of the view that the equi-distant plan will best serve the needs of the student body, and will afford as uniformly a fair and nondiscriminatory school assignment plan as well may be devised. In accepting this plan, I am mindful of the admonition contained in the Ellis opinion, and reiterated in Andrews v. City of Monroe, 425 F.2d 1017 (5th Cir. 1970), and in Singleton IV [Singleton v. Jackson School District, 426 F.2d 1364 (5th Cir. 1970)] that the Ellis neighborhood assignment plan is not necessarily the final answer for all large Southern school districts. It is not to be followed blindly. In my judgment, however, it not only creates a completely unitary system, but offers advantages not otherwise available.

It is true that the Ted-Tac proposal gives a slightly higher incidence of integration than do the equi-distant and geographic capacity plans, which are, for all practical purposes, the same in this respect. A shorthand comparison of the integrational effect of these three, with the present freedom of choice plan, upon the Negro student, is reflected in the following table:

 
                  Freedom                                   Geographic
                 of choice    Ted-Tac    Equi-Distant        Capacity 
High Schools
     All Negro      3             0           0              0
     Less than
     50 whites      7             0           0              0
     Less than
     100 whites     7             0           0              0
Junior High
Schools    
     All Negro      4             0           0              0
     Less than
     50 whites     11             0           0              0
     Less than
     100 whites    11             0           1              0
Elementary
Schools   
     All Negro     26             2           4              4
     Less than
     50 whites     43             6          19             13
     Less than
     100 whites   100             9          28             29

The Ted-Tac proposal with the zoning, pairing and cross-town busing is attended with many disadvantages which to my mind outweigh the slight increase in integration. The pairing of many schools of necessity will cause a disruption of the present grade structure and the initiation of a new curriculum. It will require the reassignment of many teachers and almost all students. Without the cross-town busing feature of the "non-adjacent pairing," 13 predominantly all-black elementary schools would remain. Cross-town busing is objectionable in any event. Certainly that is true when applied entirely to children of elementary school age.

The geographic zoning plan offers an attractive solution. It offers a complete integration at both the high school and junior high school levels, and a high incidence with respect to the elementary schools. It is not unnatural for the defendant District to take cognizance in its zoning plan of natural boundaries, traffic hazards, and other such considerations. As is pointed out in Ellis, supra, however, it is this very factor of discretion in the drawing of the lines which renders such a plan suspect. No matter how high the integration factor under a plan drawn without strict guidelines, the *523 contention can always be advanced that such lines might have been drawn differently, and with a better result. In short, while I am convinced it is not the case in the present instance, whenever a School Board draws its zone lines today in a discretionary fashion, it is subject to being charged with doing so to continue its dual system.

This leaves the equi-distant zoning plan. It is completely fair and impartial. Every child attends the school closest to his home. It will reduce travel to a minimum. It is non-discriminatory in all but one respect, namely, where changes have been made to accommodate school capacities, they have been made in such fashion as to increase integration. Every Negro child at the high school and junior high school level will receive his education in an integrated atmosphere. The four all-Negro elementary schools will have student bodies as follows:

 
                                   Race
                   Black    White   Unknown
Douglas            737      0       12
Henderson, N.Q.    570      0        3
Pleasants          530      0        6
Pleasantville      977      0        0

If it be assumed that the "unknowns" are all black, the total of 2,836 Negro students attending all-black schools is only 6% of the Negro elementary school total, or 3.9% of the overall Negro total. These four schools are located within sizable areas of high density Negro population. Their composition as all black, as is true of the all white student bodies, results from the city's residential patterns.[15] These four all-Negro elementary schools cannot be substantially integrated at this time without a program of cross-town busing.[16]

These children, however, are not condemned to a segregated public school education. At worst, this condition will only continue through elementary school. At best, it may be corrected immediately, at the desire of any child so affected, who may transfer, and ride free of charge, to the nearest school in which his race is in the minority. Thus every Negro child has the opportunity for an integrated education todaythe vast majority simply by attending the school nearest his home. Those elementary students who do not have it, and do not desire it today, will have it forced upon them at the junior high and high school levels. They will receive such education from a completely integrated faculty and staff.

In the presentation of this plan, as well as in Ellis upon which it is patterned, no mention is made as to whether, in drawing the equi-distant lines between schools, account is taken of impassable obstacles.[17] From my examination of Ellis and of the evidence offered here, I am of the view that in both instances the distances are taken "as the crow flies." In approving the equidistant plan, I do so with this reservation, based on the following facts. Buffalo Bayou winds its tortuous way through the city and the School District area until it reaches the Turning Basin, from which point eastward it becomes the Houston Ship Channel. Of course, it may be crossed only where bridges are available. In *524 many instances these are many miles apart. A freeway system encircles and crosses the city. These freeways may be crossed only where underpasses are provided for vehicular and pedestrian traffic. If the school closest to a child's ressidence is one-half mile away, but on the opposite side of Buffalo Bayou; and it may be reached only by a travel of 6 or 7 miles, it seems foolish to require attendance at that school if there be another perhaps a mile from his residence in the opposite direction. A child is not required to swim or to fly to school. I am unable to determine the frequency with which this problem will present itself. It may be in some cases that the lines need be redrawn. More likely it can be surmounted by transfers on an individual basis.

Further, with respect to transfers, this additional observation is in order. By what has been said heretofore with reference to allowing transfers only under the majority-to-minority rule, it is not intended to deny the School Board the authority to effect transfers for entirely legitimate reasons. Physically handicapped children, mentally retarded children, highly gifted children, those who seek vocational courses, and other special-course students, should be permitted to attend those schools offering appropriate facilities and courses. It goes without saying that all such transfers will be on a non-discriminatory basis.

Under this equi-distant proposal, every advantage of the neighborhood school is retained. The plan is economically and administratively sound. Additionally, the commands of Brown I[18] and of Alexander, supra, are fully met. In its assignment policy, the School District will be as color-blind as it is possible to be, still achieving a high degree of integration; and no child will be effectively excluded from any school because of race.

Counsel for the defendant Board will prepare an order instituting the equi-distant zoning plan for the assignment of students, referred to herein as Plan 6, essentially as described in Ellis, supra, and with such modifications as are directed above. This plan for the assignment of students will be effective the beginning of the September, 1970, school session.

The order further will provide that principals, teachers, teacher's aides, and other staff who work directly with children shall be assigned in every school in such manner that the ratio of white-to-Negro teachers and staff in that school shall vary no more than 5%, above or below, from the ratio of white-to-Negro teachers and staff throughout the District (presently 68% white32% Negro). I am advised that within recent months the faculties of the various schools have been so assigned as greatly to increase the integration factor. This will be continued and accelerated until such time as the ratios above set out are met; and at no event later than the beginning of the September, 1970, term.

The order will further include the provisions required in Singleton III, supra, with reference to the transportation system, school construction and site selection, location of temporary classrooms and other matters designed to promote integration.

The order will further provide for the appointment by the Court of a bi-racial committee of local citizens of ten members to be charged with the responsibility of investigating, and consulting and advising with the School Board periodically, with respect to all matters tending to promote the operation of a unitary system as ordered in Ellis, supra, and in Singleton IV, supra.

The order will further provide that this Court will retain jurisdiction for a reasonable time to insure that the system is operated in a constitutional manner.

Attached hereto as appendices are charts showing the number of schools with the indicated ratio of white-to-Negro students under various proposals; and the anticipated student population, by race, under the plans discussed.

 
*525 Appendix *526 *527 *528 *529 *530 NOTES

[1] Pursuant to United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966).

[2] Approximately 25% of the Negro students now attend formerly all white schools. Every faculty is integrated, though not as thoroughly as is now required by law.

[3] Five schools are joint junior-senior high schools: Furr, Lincoln, Scarborough, Washington, B.T., and Williams.

[4] This was prior to Singleton, supra, but anticipated that holding to some extent.

[5] This statement is not entirely accurate as to race. Questionnaires submitted to all the students in some instances were returned with this question unanswered. These are shown as "race unknown" in the statistics discussed hereafter. In only a few instances are these "unknown" figures of any great significance.

[6] The plaintiff does not concede that the defendant Board is in full compliance in these respects, but neither plaintiff nor Intervenor has raised the question, or offered evidence to the contrary. From my own continuing familiarity with the problem, I am sure that such is the case.

[7] I am advised that this Center has been the source of many similar plans advocated by the plaintiffs in other school desegregation suits in major cities throughout the country.

[8] This suggestion is not as absurd as it sounds. This Court has been called upon in perhaps a dozen instances within the last few months to examine school procedures with respect to the right of a child to attend school with his hair too long; her skirts too short; charged, but not convicted, of possession of marihuana; the distribution of underground newspapers, etc. We well might be called upon to review a procedure, alleged to be discriminatory, which requires some black students to be bussed ten miles to school, while their black neighbors are permitted to attend schools within two blocks of their homes.

[9] Alexander v. Holmes Co., supra, 396 U.S. at p. 20, 90 S.Ct. at p. 30.

[10] The plan admittedly shows only an approach to the problem, not a solution. Of the 170 elementary schools, data on only 78 was considered.

[11] Orange County Houston 910 square miles 311 square miles* 98 schools 230 schools 82,868 students (82% white) 238,460 students (67% white) 3,563 teachers (82% white) 9,624 teachers (68% white) * Including 150 square miles within the City of Houston, the remainder being suburban or semi-rural.

[12] From the original drawing of the lines with mathematical or geometrical precision equi-distantly between the schools, there have been surprisingly few instances in which the zones thus designated must be reduced by reason of school capacity. Of the 230 schools, only 53 would require modification (35 elementary, 11 junior high, and 7 senior high).

[13] An overall consideration of the figures from the various statistical studies submitted by the parties shows certain obvious errors with respect to the figures relative to this equi-distant zoning plan, and the geographical-capacity zoning plan to be discussed hereafter. The figures shown for freedom of choice are taken from present enrollments, and are accurate. This reflects, for example, 12.601 Negro high school students; 18,491 Negro junior high schools students; and 47,881 Negro elementary students, for a total of 78,973 Negro students. Comparable figures for the equi-distant zoning plan show 8,702 Negro high school students; 17,211 Negro junior high school students; and 46,030 Negro elementary students, for a total of 71,943. Comparable figures for the geographical capacity zoning plan show 9,755 Negro senior high school students; 16,575 Negro junior high school students; and 47,895 Negro elementary students, for a total of 74,225 Negro students. It should be borne in mind that the figures for the equi-distant zoning plan and for the geographical capacity zoning plan are both projections. The discrepancy is explained by these two considerations. First, the "race unknown" students are not included in either of the latter two plan figures; and second, these figures result in part from human error. They are made from an actual count of the dots, indicating the residence of each of the almost 240,000 students, each dot being somewhat smaller than the head of a pin. No two counts result in quite the same answer. For practical and comparative purposes, however, I think these inaccuracies may be disregarded.

[14] This is probably accurate, in that the Worthing School shows an expected attendance of 94 whites, 1,228 Negro and 774 "race unknown".

[15] Like most other cities in the South, Houston has definite racial residential patterns. Unlike some other cities, however, these patterns within recent years have been subject to constant change. Sections of the city which a few years ago were inhabited almost entirely by whites are now almost 100% black. A number of the schools with which this Court has dealt in prior years as substantially all-white schools now under freedom of choice are predominantly black. Statistics show that approximately 20% of the students of the defendant District move their residence every year.

[16] Compare the incidence of integration achieved here, overall and at every level, with that of the following recent Fifth Circuit cases: Ellis, supra; Bivins v. Bibb County, supra; Singleton IV, 1970, 426 F.2d 1364; and Mannings v. Board of Education of Hillsborough County, Florida, 1970, 427 F.2d 874.

[17] To be distinguished from traffic hazards, railroad crossings, etc., the bypassing of which might be desirable, but is not essential.

[18] Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873.