Mapp v. Board of Education

ENGEL, Circuit Judge. This desegregation case is once more before the court,1 this time on cross-ap [170] peals from an order of the district court entered June 24, 1974. That order denied motions filed by both parties to modify or amend an earlier order of the court entered December 18, 1973, directed implementation of the final school desegregation plan previously approved by the court with certain modifications. The December 18, 1973 order provided as well that “[To] the extent the Court has previously given only tentative approval to the High School Zoning Plan, the same is now approved finally.” Both appeals in effect seek to relitigate all of those same issues which we decided in an en banc decision in this court, reported in Mapp v. Board of Education of Chattanooga, 477 F.2d 851 (6th Cir. 1973), cert. denied, 414 U.S. 1022, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973). We there affirmed a final plan of desegregation in all respects except as to the high schools in Chattanooga. While the district judge had at that time approved the plan as to Kirkman Technical High School, and our affirmance made the same final, District Judge Frank W. Wilson had given only tentative approval to the plan for desegregation for other high schools in the City of Chattanooga, see Mapp v. Board of Education of Chattanooga, 341 F.Supp. 193 (E.D.Tenn.1972), being uncertain particularly whether three rather than four general purpose high schools would be feasible or desirable in Chattanooga. With respect to Judge Wilson’s refusal to modify the previous final plan of desegregation, we find that he did not abuse his discretion in so doing, particularly since this court has given its approval of that plan. Accordingly, we see as the sole issue remaining on this appeal the question of whether the district judge erred in ordering final approval of the tentative plan of desegregation for the Chattanooga high schools. At the time the tentative plan was proposed, it was anticipated that the zoning for the four high schools would produce a racial balance approximately as follows: Black Students White Students Brainerd High School 32% 68% Chattanooga High School 44% 56% Howard High School 75% 25% Riverside High School 75% 25% When, however, the plan was placed into effect in the fall of 1971 rather than having the attendance anticipated, the four high schools experienced the following racial balance: Black Students White Students Brainerd High School 39% 61% Chattanooga High School 43% 57% Howard High School 99% 1% Riverside High School 99% 1% While an actual head count had showed that as late as July 1971 there were 393 (29%) white high school students in the Howard High School zone and 311 (29%) white students in the Riverside zone, only ten reported that September to Howard and three to Riverside. It is the contention of the plaintiffs that a school board’s duty in a previously dual and segregated school system cannot be said to have been performed where, after implementation of a plan of desegregation, such an imbalance in the racial mix of the students yet remains. After taking extensive testimony on this issue and on the other issues raised by the parties’ motions to amend the earlier judgment, Judge Wilson, in his Memorandum Opinion of November 16, 1973, made the following findings of fact: To the extent that the Court has previously given only tentative approval to the high school zoning plan, final approval will now be given that plan. Two high schools, Howard High School and Riverside High School, have not acquired an enrollment of white students as projected by the Board when the plan was proposed in 1971, but rather have remained substantially all black. It was a concern for the accuracy of these projections that caused the Court to initially give only tentative approval to the high [171] school zoning plan. However, subsequent evidence has now demonstrated that changing demographic conditions within the City and other de facto conditions beyond the control and responsibility of the School Board, including the voluntary withdrawal of white students from the system, have become the causative factors for the present racial composition of the student body in those schools and not the original action of the Board in creating segregated schools at these locations. It should be recalled in this connection that the plan previously approved included provision for students to elect to transfer from a school in which they were in a majority to a school in which they would be in a minority. While the cause of the departure of white students was disputed, there can be little doubt upon the record that the difference between the anticipated mix and the actual attendance of the high schools when the plan was put into effect was due to a substantial departure of white students from the public schools in Chattanooga, a circumstance which the district judge found to have occurred beyond the control and responsibility of the School Board. No one who firmly believes in the social and educational value of racial balance in a desegregated school system can help being seriously concerned when such a plan for achieving racial balance does not achieve its objectives on implementation. That such a concern was shared by the district judge is manifest throughout the entire record upon appeal. Nevertheless, the district judge concluded that the demographic changes in the city itself were the cause of the remaining imbalance, a finding which finds support in the record and which we hold is not clearly erroneous. We are satisfied that, in giving final approval to the high school desegregation plan, Judge Wilson was by no means yielding to irrational concerns over white flight which merely masked inherent Board resistance to integration. To the contrary, he carried out the plan in spite of the apprehended result, and beyond that resisted the defendant Board’s further efforts to modify the earlier approved plan for the remainder of the system with this language in his November 27, 1973 opinion: “The Court is not unsympathetic to the concern expressed by the Board for minimizing the voluntary departure of white students from the system. It must be apparent, however, that this objective cannot serve as a limiting factor on the constitutional requirement of equal protection of the laws, nor as a justification for retaining de jure segregation. Concern over ‘white flight’, as the phenomenon was often referred to in the record, cannot become the higher value at the expense of rendering equal protection of the laws the lower value. As stated by the United States Supreme Court in the case of Monroe v. Board of Commissioners, 391 U.S. 450 [88 S.Ct. 1700, 20 L.Ed.2d 733]. . . . : ‘We are frankly told in the Brief that without the transfer option it is apprehended that white students will flee the school system altogether. “But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of the disagreement with them.” Brown II [Brown v. Board of Education of Topeka II] [349 U.S. 294] at 300 [75 S.Ct. 753, 99 L.Ed. 1083], . . . “Moreover, it is the ‘effective disestablishment of a dual racially segregated school system’ that is required, Wright v. Council of City of Emporia, 407 U.S. 451 [92 S.Ct. 2196, 33 L.Ed.2d 51] . not, as seems to be contended by the defendants, the most ‘effective’ level of voluntarily acceptable ‘mixing’ of the races.” (Footnote omitted) Having implemented the plan for desegregating the high schools by establishing zones for attendances which were designed to achieve a high degree of racial balance throughout the system, and [172] having provided further for continuance of a majority-to-minority transfer policy, the district judge conceived that he had obeyed the mandate of Brown v. Board of Education of Topeka II, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II) and more particularly of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). So do we. Presumably, the district judge might have ordered a further realignment when the first plan did not achieve the proper balance ratio, and yet another if that did not hold. Indeed if such were found to have been required to carry out the constitutional mandate to eliminate the vestiges of a dual system, it would simply have to be done, and we have no doubt the district judge would faithfully have carried out that duty. What he was finally faced with here, however, was rather a more subtle and lingering malaise of fear and bias in the private sector which persisted after curative action had been taken to eliminate the dual system itself. Swann v. Board of Education recognizes that this, latter may be beyond the effective reach of the Equal Protection Clause: “Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.” Swann v. Board of Education, supra, 402 U.S. at 23, 91 S.Ct. at 1279. Affirmed. Footnotes [1] For previous decisions of this court in this litigation see Mapp v. Board of Education of Chattanooga, 295 F.2d 617 (6th Cir. 1961), 319 F.2d 571 (6th Cir. 1963), 373 F.2d 75 (6th Cir. 1967), 477 F.2d 851 (6th Cir. 1973) cert. denied 414 U.S. 1022, 94 S.Ct. 445, 38 L.Ed.2d 313.