Davis v. East Baton Rouge Parish School Board (533 F. Supp. 1161, 1982)

SUPPLEMENTAL AND AMENDING ORDER

JOHN V. PARKER, Chief Judge.

The court has previously granted summary judgment in favor of plaintiffs-intervenors and the United States in this school desegregation case (see 498 F.Supp. 580 [M.D.La.1980]) and, after extensive hearings and a failure of negotiations between the parties, the court has ordered a desegregation plan implemented (see 514 F.Supp. 869 [M.D.La.1981]). The plan was ordered to be implemented in two stages: elementary schools in 1981 and secondary schools in 1982.

On June 12, 1981, the court granted the request of the defendant, East Baton Rouge Parish School Board, to prepare and submit an alternate plan for desegregation of the secondary schools. The court fixed September 30, 1981 as the last date upon which to submit such a plan and, upon request of the Board, that date was later extended to October 30, 1981. The School Board advised the court that it was unable to agree upon any alternate plan but the Board submitted to the court copies of various proposals, some directed to the entire secondary system, and some to only portions of that system. Although it could not itself agree upon any alternative plan, the Board requested that the court review these plans and proposals. By minute entry dated November 4, 1981, the court directed the Superintendent and his staff to begin planning for implementation of the court’s desegregation order of May 1, 1981 insofar as that order relates to the secondary school system. A report has been filed indicating that the planning process has begun and the court assumes that it is continuing.

An alternate secondary desegregation plan developed by Superintendent Arveson and his staff was included in the material submitted on October 31, 1981. The court requested comment from plaintiffs-intervenors and the United States regarding the plan submitted by the Superintendent. Predicated upon the response of the Department of Justice, discussions between Superintendent Arveson and the attorneys for all the parties were initiated, with a view toward developing a proposal which the attorneys and Superintendent Arveson could recommend to their respective clients.

The court and the parties have recognized all along that the desegregation order of May 1, 1981 did not provide all details and that a supplemental order would be necessary to provide a complete desegregation plan for the secondary system. Because of the ongoing discussions among the attorneys and the Superintendent, the court has withheld issuance of any supplemental order.

The court has now been informed by a “motion regarding implementation of secondary school plan for 1982-83 school year” that Superintendent Arveson and the attorney for the School Board have now terminated any further discussions with the attorneys representing the other parties to the litigation.

The Superintendent further represents to the court that the opening of schools for the fall of 1982 is so close and that the work necessary to properly implement any secondary school plan is of such magnitude that the court should supplement its order at the earliest possible time. In addition, the court is informed that the East Baton Rouge Parish School Board has adopted a resolution in which the Board requests that the court “take immediate action on a middle school and high school desegregation plan.” While the Board submits no alternative plan, it does request that the court modify the plan contained in the order of May 1, 1981.

This court is not irrevocably committed to any specific plan for desegregation of the public schools. The record of this case demonstrates that the court has repeatedly called upon the School Board to develop a plan which meets the requirements of the Constitution, and that the court has repeatedly attempted to facilitate concurrence among the parties in such a plan. A desegregation plan is simply the tool by which the unconstitutional dual system of public education is to be dismantled. Had all the parties to this litigation agreed to the middle school plan submitted by Superintendent Arveson (with the modifications suggested by the Department of Justice) the court would almost surely have approved it since, with the modifications, the plan facially appears to meet constitutional standards. Where, however, neither the School Board nor any of the other parties has approved the Superintendent’s proposal, an entirely different situation is presented to the court.

The court must consider any proposed alternatives to the order of May 1, 1981 against the background of the law and the facts of this case.

The defendant School Board was, until 1954, required by state law to operate a system of segregated public schools and the Board continued to do that even after 1954 until it began implementing the court’s order of May 1, 1981. As the local governing agency which created, operated and perpetuated an unconstitutional dual school system, the School Board has the duty in the first instance to take whatever steps may be necessary to convert to a unitary system in which racial discrimination will be eliminated “root and branch.” Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1698, 20 L.Ed.2d 716 (1968); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Bradley v. School Board, City of Richmond, Va., 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965); Carr v. Montgomery County Board of Education, 429 F.2d 382 (5th Cir. 1970), cert. den. 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975). It is only where local school authorities default upon their affirmative obligation to dismantle an unconstitutional school system that the courts become involved. Where such default occurs, however, the courts are forced to act and they have broad equitable powers to fashion remedies that will assure unitary school systems. Swann v. Charlotte-Meklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Armstrong v. Board of Education of City of Birmingham, 323 F.2d 333 (5th Cir. 1963), cert. den. Gibson v. Harris, 376 U.S. 908, 84 S.Ct. 661, 11 L.Ed.2d 606 (1964).

This court has already fashioned a remedy for the East Baton Rouge Parish School System. It is contained ' in the court’s order of May 1, 1981 and, if fully implemented by the defendant School Board that plan will, without doubt, dismantle the dual system of public education. That order will eliminate every one-race school at the middle school level. The plan offered by Superintendent Arveson will not do that and in any desegregation plan, the existence of one-race schools is ordinarily unacceptable. Swann v. Charlotte-Meklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Lee v. Demopolis City School System, 557 F.2d 1053 (5th Cir. 1977); United States v. Mississippi, 567 F.2d 1276 (5th Cir. 1978). Indeed, this very case was reversed and remanded because of the continued existence of one-race schools. See, Davis v. East Baton Rouge Parish School Board, 570 F.2d 1260, at 1263 (5th Cir. 1978).

Superintendent Arveson and his staff are commended for the long hours they have expended in their attempt to devise a desegregation plan for the middle schools that satisfies the mandate of the Constitution, promotes quality education in public schools and substantially meets local political demands. Since none of the parties to the litigation has adopted the Superintendent’s plan, however, its status before the court is questionable. In any event the presumption against one-race schools makes it impossible for the court to accept Superintendent Arveson’s alternate plan. Davis v. East Baton Rouge Parish School Board, 570 F.2d 1260 (5th Cir. 1978).

The court has carefully considered, not only the Superintendent’s proposal, but all the other information and proposals submitted along with it. Many of these were proposals by citizens groups regarding specific areas of the parish. Some were very well thought out and represented good faith attempts by parents and others to achieve desegregation of particular schools. The deficiency in these proposals is that they address only specific schools, not the entire school system. The requirement of the Constitution which rests upon this court and upon the School Board is to desegregate the entire school system.

Accordingly, neither the plan submitted by Superintendent Arveson nor the other proposals can be accepted by the court as alternatives to the order of May 1, 1981.

The School Board and Superintendent have repeatedly stated that the court’s plan for the middle schools, grades six, seven and eight, is “educationally unsound” because of the single and double grade centers for which it provides. The court has carefully reviewed these objections. Superintendent Arveson, with his usual candor, has conceded that although he thinks the school centers will be educationally unsound, there is no data to support that opinion. The court suggests that desegregation of the middle schools under the order of May 1, 1981 does not necessarily have to impair educational standards.

One positive feature of the court’s plan for the middle schools not found in others is that the burden of desegregation falls evenly upon white and black alike and evenly throughout the parish. Although they will not be in the same building each year, sixth, seventh and eighth grade classes will progress through the middle school years together and certainly the Superintendent and staff have the skill and experience needed to make those years educationally rewarding. The court calls upon them, as it did in the minute entry of November 4, 1981, to emphasize positive aspects of desegregation of the public schools and to maintain quality public education.

Current enrollment figures submitted by the Superintendent indicate that the capacity of a number of senior high schools will probably be exceeded under the terms of this court’s order of May 1, 1981. A rearrangement of feeder schools is obviously necessary and the Superintendent has included a proposal for the high schools in his “Submission” dated November 25, 1981.

Also included in the material submitted was a comparison of estimated transportation services between that required at the senior high school level under the court’s order of May 1, 1981 and that required under the Superintendent’s proposal dated November 25, 1981. That analysis, Exhibit C, indicates that transportation requirements would be reduced under the Superintendent’s proposal. The court has carefully reviewed that proposal and concludes that most of it is acceptable and, if implemented, would effectively desegregate the senior high schools. The court will revise the feeder schools at the senior high schools, adopting the Superintendent’s recommendation dated November 25, 1981, in all instances, except Woodlawn High School, where the recommendation would exceed capacity.

Although nearly thirty years have passed since the Supreme Court of the United States decided Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), there remain among us those few who cannot or will not understand and accept the simple refrain of that decision and those which followed: The Fourteenth

Amendment to the Constitution prohibits state imposed segregation by race in the public schools and the state must remove every vestige of racial discrimination in order to satisfy the requirements of the Constitution.

I have faith, however, in the common sense and good will of the vast majority of this community, white and black. With sound leadership they can make school desegregation successful.

That leadership can be provided and constitutional mandates observed, if each member of the School Board, the Superintendent, the staff and each and every teacher and school administrator will commit himself to the cause of eliminating racial discrimination in our public schools. If that commitment is made, each will then look for ways to make school desegregation work, instead of for ways to make it not work. The schools will be desegregated, the system will become truly unitary and the final chapter of this long standing controversy can be closed.

ORDER

For the foregoing reasons, it is appropriate that the court amend the order of May 1,1981. The enrollment figures upon which this order is predicated are contained in the submission entitled “Graphic Arrangement of May 1st Court-Ordered Student Movement” a copy of which is marked Exhibit “A” and attached hereto.

The order of the court dated May 1, 1981 is hereby amended and supplemented in the following respects:

I. Senior High Schools

A. Zone I

Feeder schools for high schools in Zone I are hereby revised as follows:

BAKER HIGH SCHOOL B W Total

Bakerfield - Excluding area north of Irene Road 97 175 272

Baker Heights 74 318 392

Beeehwood 163 2 165

Crestworth 257 0 257

Parkrldge 22 286 308

White Hills - Excluding area west of Plank Road 0 120 120

Total 613 901 1514 407, (B)

WHITE HILLS ELEMENTARY AREA TO BE ASSIGNED TO ZACHARY HIGH

Line north of Carlton Road from Plank Road to Comite River, Comite River, south to line south of Brown Heights, east on line south of Brown Heights to Plank Road, Plank Road to line north of Carlton Road.

CENTRAL HIGH SCHOOL B W Total

Bellingrath Hills 11 396 407

Progress 287 0 287

Ryan 262 5 267

Tanglewood 2 353 355

Greenbriar - Only attendance area north and east of Comite River 0 120 120

Total 562 874 1436 397