Tasby v. Estes (412 F. Supp. 1192, 1976)

OPINION AND ORDER

WILLIAM M. TAYLOR, Jr., Chief Judge.

The task presented to this Court is to adopt and implement a desegregation plan for the Dallas Independent School District (DISD) which will finally conclude the tortured history of this litigation and which will establish a unitary, nonracial system of public education in the DISD, as required by Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). This cause is here on remand from the Fifth Circuit Court of Appeals’ decision of July 23, 1975, which affirmed in part and reversed in part this Court’s 1971 desegregation order. The Fifth Circuit has instructed this Court to formulate a student assignment plan which will remedy the dual nature of the DISD found to exist in 1971.

I. The Parties

The cast of legal characters in this desegregation drama has changed since 1971, with the addition of new intervenors and the departure of intervenors previously in the case. The present actors still include the plaintiffs, representing a class of black and Mexican-American students in the DISD; the defendant DISD; the Curry intervenors, representing a group of North Dallas students; the intervenor James T. Maxwell, representing himself; and the City of Dallas. Additionally, the Metropolitan Branches of the National Association for the Advancement of Colored People (NAACP) were granted leave to intervene on August 25,1975; the Strom intervenors, representing a class of persons living in naturally integrated areas of Western Oak Cliff and Pleasant Grove, were granted leave to intervene on August 25, 1975; and the Brinegar intervenors, representing a class of persons living in the naturally integrated area of East Dallas, were given leave to intervene on September 17, 1975.

On September 16 the Court challenged the business leaders of Dallas to become involved and further pointed out that everyone in the district had a job to do — that it was not a job for the Court alone. The business leaders have responded to the challenge and have shown their sincere interest. Many churches, their leaders, and many organizations have expressed significant interest and offered to assist the Court. Additionally, a group of citizens formed a committee composed of six blacks, seven Mexican-Americans, one American Indian and seven Anglos. This group became an affiliate of the Dallas Alliance and became known as the Educational Task Force of the Dallas Alliance. The Dallas Alliance is a community service organization designed to act on and aid in the solution of urgent issues of the community. It consists of a forty member Board of Trustees, and seventy-seven correspondent organizations in the Dallas area.

This Task Force met for a period of four months and spent approximately 1500 hours together in devising concepts and principles for a desegregation plan for a DISD. They sent various members of their group to cities around the country to discover all possible tools for desegregation, and met with or talked with thirty leading figures in the desegregation field. Finally, on February 17, 1976, the Alliance group filed their plan for the DISD with the Court. The Court granted them the status of Amicus Curiae for the purpose of presenting their ideas and plan to the Court, and heard evidence from Dr. Paul Geisel regarding the plan.

The Court has before it several student assignment plans, offered to remedy the dual nature of the DISD. The School Board, being charged with the responsibility of devising an acceptable plan, filed its plan on the 10th of September, 1975. The NAACP devised a student assignment plan which was also filed on September 10. The Court was not wholly satisfied with either of these plans, as it indicated in a hearing on September 16. Therefore, the Court employed an expert in the field of education and desegregation, Dr. Josiah C. Hall of Miami, Florida. Dr. Hall presented a student assignment plan to the Court which was filed December 29,1975. The plaintiffs meanwhile were working on a student assignment plan, and ended up filing two plans on January 12, 1976. Likewise, the Education Task Force of the Dallas Alliance met for several months considering concepts for a desegregation plan for the DISD, and filed their results with the Court on February 17, 1976. In addition, the Court received and has considered other plans and suggestions from various citizens and groups.

II. Applicable Law

In this complex and ever-changing area of the law, it is difficult if not impossible to discover hard and fast rules for this Court to follow. Certainly, the “transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about.” Green v. County School Board, 391 U.S. 430, 436, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716, 722 (1967); Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Brown v. Board of Education II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). Similarly, this Court recognizes that “[t]he objective today remains to eliminate from the public schools all vestiges of state-imposed segregation.” Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554, 566 (1970).

Nevertheless, school districts are like fingerprints — each one is unique. Although the goal of a unitary, nonracial system is a constant, the method or plan for achieving that goal must be tailored to fit the particular school district involved. A plan that is successful in a district having a small student population or occupying a small area geographically, a rural district, a countywide district, or a majority Anglo school district, will not necessarily be successful in a large urban district such as the DISD. As the Supreme Court observed in Brown II, supra, 349 U.S. at 299, 75 S.Ct. at 756, 99 L.Ed. at 1105:

Full implementation of these constitutional principles may require solution of varied local school problems. 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. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal.

Throughout the proceedings on remand, this Court has held foremost in its mind the unique characteristics of the DISD, in order to insure that a feasible, workable plan is adopted which will realistically establish a unitary system in the DISD.

The Fifth Circuit remanded this case with instructions to formulate a new “student assignment plan.” The DISD has maintained throughout these proceedings that the Court can consider nothing except a bare-bones student assignment plan. Although this Court recognizes that the mandate from the Fifth Circuit referred consistently to formulating a “student assignment plan,” it does not interpret that language as limiting this Court to a plan which merely provides for moving bodies between buildings. As the Fifth Circuit held in Calhoun v. Cook, 522 F.2d 717 (1975), rehearing denied, 525 F.2d 1203 (1975):

The aim of the Fourteenth Amendment guarantee of equal protection on which this litigation is based is to assure that state supported educational opportunity is afforded without regard to race; it is not to achieve racial integration in public schools.

A student assignment plan cannot operate in a vacuum; it must include whatever additional tools are necessary to carry out the mandate that equal educational opportunity be provided, and to insure that a truly unitary system is established.

In adopting a student assignment plan, this Court is required to arrive at a delicate balance — the dual nature of the system must be eliminated; however, a quota system cannot be imposed. The Supreme Court ruled in Swann, supra, 402 U.S. at 26, 91 S.Ct. at 1281, 28 L.Ed.2d at 572, that

[t]he district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools.

On the other hand, the Supreme Court held that

[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.

Ibid, at 24, 91 S.Ct. at 1280, 28 L.Ed.2d at 571.

In arriving at this balance, the practicalities of the situation are to be taken into account. Davis v. School Commissioners of Mobile County, 402 U.S. 33, at 37, 91 S.Ct. 1289, at 1291, 28 L.Ed.2d 577, at 580 (1970). These practicalities include travel time and distance, and the age of the children.

An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process . It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students.

Swann, supra, 402 U.S. at 30, 91 S.Ct. at 1283, 28 L.Ed.2d at 575.

The Fifth Circuit instructed this Court to use the techniques discussed in Swann to dismantle the vestiges of the dual nature of the DISD. The Supreme Court said in Swann that “[desegregation plans cannot be limited to the walk-in school,” if this will not produce a unitary system. Swann, supra at 30, 91 S.Ct. at 1283, 28 L.Ed.2d at 575. All available techniques are to be considered in the formulation of student assignment plans, including the restructuring of attendance zones and the pairing of both contiguous and noncontiguous attendance zones. Swann, supra; Davis, supra.

The Supreme Court’s decision in Swann also emphasized the equitable nature of the remedies phase of a desegregation case. It quoted the following language from Brown II:

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.

Swann, supra at 12, 91 S.Ct. at 1274, 28 L.Ed.2d at 564. Later it stated:

In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation ... As with any equity case, the nature of the violation determines the scope of the remedy.

This Court has kept in mind throughout these proceedings that its findings in 1971 were that the “vestiges” of a dual school system remained in the DISD, and not that the DISD was a dual system at that time. The plan adopted now must therefore remedy these vestiges without exceeding this Court’s equitable powers to balance public and private needs.

Finally, guidance as to the role of this Court has been given by the Supreme Court in Green, supra, 391 U.S. at 439, 88 S.Ct. at 1695, 20 L.Ed.2d at 724:

The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. . . . Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that the state-imposed segregation has been completely removed.

With this task in mind, the Court heard testimony regarding the feasibility and effectiveness of these plans presented by the parties during hearings which lasted continuously from February 2 to March 5. All the plans utilize, to varying degrees, the concepts of pairing and clustering schools, and of transporting students for the purpose of establishing an integrated or unitary school system, as approved by the Supreme Court in Swann, supra. Each of the plans incorporates other tools, as well as transportation, to help insure that an integrated school system is achieved. The Court finds some meritorious suggestions in each of the plans, including the concept of magnet schools suggested by the DISD, the plaintiffs and others; the majority to minority transfer program advocated by all parties; and the concept of a monitor or auditor proposed by the plaintiffs, the NAACP and the Dallas Alliance Task Force. The Court is convinced that the plan of the Educational Task Force of the Dallas Alliance will effectively establish a unitary system of education in the DISD and that it “promises realistically to work now.” Green, supra at 439, 88 S.Ct. at 1694, 20 L.Ed.2d at 724.

III. Present Characteristics of the DISD

The most significant feature of the DISD now as opposed to 1971 is that the DISD is no longer a predominantly Anglo student school system. In the years which have intervened since this Court’s 1971 order, the percentage of Anglos in the DISD has declined from 69% to 41.1%, and projections show no reversal of this trend to a predominantly minority district. According to the most recently compiled figures, the racial composition of the DISD student body is 41.1% Anglo, 44.5% black, 13.4% Mexican-American, and 1.0% “other.” In the 1970-71 academic year, the DISD enrolled 163,-353 students in grades 1-12, whereas in December, 1975, the DISD enrolled only 131,757 students. Over the past five years the DISD has lost, for one reason or another, 40.9% of its Anglo student population.

Nevertheless, the DISD continues to be the eighth largest school district in the nation, covering an area of approximately 351 square miles. Its 180 separate campuses house 141,122 students (including kindergarten), and its total expenditure for the 1975-76 academic year is $164,788,000.

Although the DISD in 1975-76 cannot be considered to be wholly free of the vestiges of a dual system, significant strides in desegregation have been made since the Court’s 1971 order as a result of natural changes in residential patterns in the past three years. In the 1970-71 school year, 91.7% of all black students in the DISD attended predominantly minority schools, whereas in the 1975-76 school year, the percentage has dropped to 67.6%. Testimony during the hearings showed that large areas of Dallas which formerly reflected segregated housing patterns are now integrated, namely Western Oak Cliff, Pleasant Grove, East Dallas, the area of North Dallas included in the attendance zone for Thomas Jefferson High School.

Testimony also established that the DISD has undertaken in good faith and on its own to equalize the educational opportunity for all children during recent years. The plaintiffs introduced a 209-page Report of a Study of Instruction in the Dallas Independent School District 1974-75 which was conducted by Dr. Francis S. Chase and eight staff associates. This report was initiated by the School Board, but Dr. Chase testified that he and his staff, who had no connection with the DISD, were not impeded in any way in conducting this study or presenting their findings. Their findings included the following passage:

The staff of the Study of Instruction has identified a number of characteristics in which the Dallas Independent School District is either pre-eminent or close to the top among public school systems. Some of these characteristics which hold high potential for the improvement of education are:

1. The commitment to, and the heavy investment of resources in, curriculum, design, development, and implementation.

2. A broadly conceived and well-staffed program of research and evaluation to define needs, inform decisions, assess the effectiveness of programs and services, and indicate deficiencies in,program implementation or operation.

3. The creation of an extensive network of communications through which community organizations and large numbers of teachers, students, parents, and other citizens may learn about and participate in educational decisions and programs.

4. Frank acknowledgment of barriers to equal educational opportunity, followed by constructive measures such as the Affirmative Action Program, the extension of Multi-Ethnic Education, the implementation of Plan A for better treatment of learning disabilities, and support for inner-city school renewal projects.

5. The number and variety of innovations initiated and the continuing search for ways of responding to the demands for improved education.

6. The extensive program of personnel development through released time, other special programs, and four area teacher centers which work in cooperation with seven colleges and universities.

7. The planning, development, and operation of career education programs and emphases — with continuing efforts to extend and improve career education at all levels.

In spite of the DISD’s efforts, Dr. Chase’s study concluded that there is still a gap between intent to provide equal educational opportunity and the achievement of this goal. But the study also concluded that the DISD is accepting the continuing challenge to speed progress and close this gap.

The Dallas Independent School District, in recent years, has acknowledged frankly the existence of persisting inequalities and inadequacies in its provisions for education. Instead of regarding these conditions as inevitable, the District has moved progressively to treat them as challenges with which it must cope swiftly and effectively. All school systems, and especially those in our larger cities, are faced with the urgent necessity of alleviating the learning disabilities which have their roots in poverty, prejudice, and other forms of discrimination. No other school district offers a better prospect for significant progress in this direction.

The study thoroughly evaluated the DISD’s programs, pin-pointing areas which needed improvement and making recommendations to that end. Dr. Chase testified that this study was unique in the amount of response it elicited from the School Board and the Administration; he testified that there is not one item cited that the Board and Administration have not responded to in some way. His testimony was that there can never be a perfect school system, but that at least the DISD is conscientiously on the road to providing equal educational opportunity for all.

The plan which this Court is ordering to be implemented promises to continue this trend of desegregation and will, when fully implemented, remove all vestiges of the former dual system in the DISD. The Court is convinced that this plan will, at the same time, “assure that state supported educational opportunity is afforded without regard to race.” Calhoun, supra at 719. Milliken v. Bradley, 418 U.S. 717, 740-741, 94 S.Ct. 3112, 3125, 41 L.Ed.2d 1069, 1088-1089 (1974); Alexander v. Holmes County Board of Education, 396 U.S. 19, 20, 90 S.Ct. 29, 24 L.Ed.2d 19, 21 (1969); Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083, 1106 (1955).

IV. An Analysis of the Plans Before the Court

A. DISD’s Plan

The DISD’s plan was devised by the staff of the DISD under the direction and supervision of Dr. Nolan Estes. The district is divided into three categories for the purpose of student assignment — the integrated parts of the school district the remaining predominantly Anglo parts of the district, and certain minority parts of the district. The DISD’s plan proposes to retain the present student assignment patterns for the naturally integrated areas, as desegregation has already occurred in these areas. Pairing and clustering techniques, both contiguous and noncontiguous, were used to desegregate grades 4-12 of the predominantly Anglo areas of the district. The grade configurations were proposed to be:

K-3 Elementary Schools

4-5 Intermediate Schools

6-7 Middle Schools

8-9 Junior High Schools

10-12 Senior High Schools.

The remaining predominantly minority areas of the districts would continue to be served by predominantly one-race minority schools.

In addition, the DISD proposed to set up 17 magnet schools to serve the entire district. Ten of these magnets would be for the elementary level, and would offer “fundamental” programming or “individually guided” programming. Seven of the magnets would operate on the secondary level (grades 8-12 in six of the seven cases), and would offer a variety of programs oriented toward careers, the creative and performing arts transportation and technology, and world cultures. These programs are all in existence now in the DISD and are proving extremely successful.

Finally, the DISD’s proposal included the retention of the majority to minority transfer program presently in existence in the DISD.

The analysis showed that 13,947 students would be transported for desegregation purposes, and that the total cost to implement would be $6,811,240, causing a 9$ tax increase.

B. Plaintiffs’ Plans

Plaintiffs’ proposed plans were devised by the plaintiffs’ attorneys, using guidelines laid down by Dr. Charles Willie of Harvard.

1. Plan A

Under Plan A, the DISD would be divided into seven elementary subdistricts. An attempt was made to have each school reflect the racial composition of that subdistrict. The naturally integrated elementary schools retained their present student assignment patterns. All other schools were paired or clustered for grades 1-12. The grade configurations proposed were grades K, 1-3, 4-6, 7-9, and 10-12.

Plaintiffs proposed the use of magnet schools constructed in the inner city to draw Anglos into those areas. They suggested the retention of the majority to minority program. They suggested that the DISD expand and improve its in-service training program for faculty and staff. Finally, they proposed a system of accountability to insure that the DISD complies with this Court’s order and with the goal of quality education for each student enrolled in public school.

An analysis of Plaintiffs’ Plan A showed that approximately 69,000 students would be transported, and that the projected total cost to implement would be $22,030,590, causing a 29.4