UNITED DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

VIVIAN CALHOUN, et al.

Plaintiffs

vs.

ED S. COOK, et al,
Defendants

CIVIL ACTION NUMBER 6298

On July 28, 1971, this Court entered an order granting certain relief to the plaintiffs, but in general approving the defendants' past and current efforts to comply with the legal requirements of desegregated public education. Specifically, the Court rejected mass busing to achieve a more balanced racial ratio in pupil assignment throughout the system. Following appeal, the case was remanded (on October 21, 1971) to the Court to give further opportunity to the plaintiffs to present an alternative plan to the Court, presumably still under the broad-range examination set out in Swann v. Charlotte-Mecklenburg Board of Education 420 U. S. 1 (1971). The self-implementing directions of the remand were ordered by the Court and directions given for the presentation of such a plan by plaintiffs. Unfortunately, lead counsel for both parties suddenly died pending the Court's order. Simultaneously, serious negotiations*1 for settlement were commenced by the parties, and the Biracial Committee was expanded by the Court to assist. For these reasons, the hearing was successively continued upon the request of all counsel until May 3, 1972. At the hearing, it appears that there are two issues now before the court for ruling:

I. Whether the defendants are in violation of the Court's orders in the matter of faculty assignment.

II. Whether the plaintiffs' plan, in whole or in part, should be implemented by the Court.

I. Faculty assignment.

All parties and the Court are in agreement that the Atlanta School District is bound by the holding in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1970). Of course, it requires that "the district shall assign staff--so that the ratio of Negro to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively in the entire school system." Assuming such premise, there has been considerable confusion as to the meaning of the word "substantially."*2 In carrying out the mandate of Singleton, Judge Hooper for this Court on March 20, 1970, ordered a mid-term mathematical redistribution of teachers throughout the system on a ratio of 60% Black-40% white in elementary schools and of 52% Black-48% white in high schools, the then current distribution of a total faculty ratio of 57% Black-43% white. With minor exceptions, the reassignment was implemented by a computer analysis of race, qualification, etc. In any event, the reassignment in March, 1970 was accomplished and, for purposes of these proceedings, it was agreed at trial that it complied with Singleton and the orders of the Court.

The problem now raised is whether there must be an annual reassignment of faculty in each school to reflect the annual total faculty ratio. Presently, the total faculty ratio in Atlanta is 60% Black-40% white and a number of school faculties show a change of 15-20% from the original ratios of March, 1970.*3 The School Board has been operating under the assumption since that time that vacancies occasioned by resignation, retirement, etc. were to be filled solely on the merit standards required in Singleton and, so far as the record is concerned here, there is no basis to question its good faith in administering such standards.

The question remains, however, whether an annual reassignment must occur to reflect each year's total faculty ratio.*4

The Court itself has been concerned with the answer to the question. See footnote 9, Order of July 28, 1971, wherein it directed the annual reassignment pending further holding. Inasmuch as no explicit opinion has since issued, a careful rereading of Carter v. West Feliciana Parish School Board, 423 F.2d 875 (5th Cir. 1970) is required. There, it is stated:

"The Singleton requirement which is also the requirement of the earlier decision of this court in United States v. Hinds County School Board, 5 Cir. 1969, 423 F.2d 1264, does not contemplate freezing the faculty ratio which is present when faculty desegregation takes place in the system. It contemplates rather that faculty desegregation will be accomplished by invoking the system-wide ratio as a rule for each particular school in the system and that thereafter the system will function from the standpoint of faculty and staff on the merit system. This means that once a unitary system has been established the system-wide racial ratio may thereafter change from time to time as a result of non-discriminatory application of objective merit standards in the selection and composition of faculty and staff.

[3] The key to the Singleton requirement, other than the initial ratio element, is that there is to be no racial discrimination in the operation of the merit system. Non-discriminatory objective and reasonable standards must be developed and used in the dismissal or demotion of teachers."

Inasmuch as a unitary system of faculty assignment has been clearly established by the March, 1970, assignments, it is concluded under this decision that an annual reckoning is not required. See also Smith v. Concordia Parish School Board, 445 F.2d 285 (5th Cir. 1971). This also appears to be the reasoning behind United States v. Montgomery County Board of Education, 395 U. S. 225 (1969) wherein a Singleton-type racially balanced faculty redistribution is viewed as a remedy for past racial assignment and not as a permanent constitutional requirement.

Accordingly, the court rules that annual faculty assignment by race is not required once the district has complied with Singleton and no further reassignment per se is required here.

II. The plaintiff's plan.

(a) The plan as presented to the Court was prepared by Professor Michael J. Stolee of the School of Education, University of Miami, Florida. He is well-qualified in terms of integration problems and has extensive experience in the preparation of surveys and plans for a number of school districts throughout this Circuit and elsewhere. In terms of statistical results, he has prepared a plan for Atlanta which would produce significant changes. The plan is best understood by reference to the projected enrollments, based on 1971-72 figures, shown attached to the plaintiffs' formal motion and to the overlay exhibits used at trial. (P 5-12) and the summary (P-3) (P-4). The plan begins with the use of attendance zones presently utilized by the Atlanta system. Separate plans have been developed for elementary, middle (Grades 6, 7, 8, or 7, 8, 9), and high schools flowing out of these basic zones. In the elementary plan, there are three groups of schools: Series I, Series II, and Series III. Series I are 12 single-zone schools presently used by the system. Series II consists of 47 contiguous zone schools, in 19 groups, involving the pairing or grouping of present zones.*5 Series III consists of 41 non-contiguous attendance zones in which children living in one area attend school in another, and vice versa. Insofar as possible these schools have been grouped to minimize transportation. Inasmuch as Atlanta consists of a black middle and two white ends, it involves essentially "half cross-town" busing.

The middle schools, of which there are only four, are simply rezoned so as to effect a better racial balance.

The 24 high schools are divided into 10 contiguous attendance zones and 14 non-contiguous attendance zones, the latter involving 11 "two-zone schools" and three "three-zone schools." The proposed senior-high school plan is based on a feeder relationship with the elementary schools so that the same group of pupils would theoretically attend high school from their final or last elementary school. However, the "non-contiguous zones" may already be made up of elementary schools whose attendance zones are "non-contiguous."

If adopted, the plan would result in school assignments varying from 54% to 88% Black out of a total enrollment of some 100,000 now standing at 73% Black-27% white.

The plan as a whole is dependent upon transportation for full fruition. Other than the implementation of busing, it simply redeploys the same techniques of rezoning, pairing, etc., used over a long period of years by the Atlanta system together with the construction of line schools, to increase integration.

(b) Pupils affected and costs. It is difficult to make exact findings as to the pupils to be bused and the resultant costs because of unrealistic presentations made by both parties at trial. The Board on its part utilized a one-mile standard*6 and considered each pupil as being transported "point to point" if the closest school to his home were that distance from his new school. In turn, the plaintiffs used a 1-1/2 mile standard, but only counted those pupils who would be moved directly by this plan irrespective of the 1-1/2 miles distance from actual school assignment. This eliminated every student whose present unchanged assignment is more than 1-1/2 miles from his home. In addition, the plaintiffs reduced by some 2,500 (25%) the number of high school students it calculated for estimated non-use. The result is a variance from 23,191 by plaintiffs to 47,765 by defendant.

As is usual, the truth is somewhere in-between. Based on the 1-1/2 mile standard (which the Court considers proper) and assuming that "equal protection" would require everyone to be furnished transportation on the same basis, the Court concludes that approximately one-third of the total enrollment or some 33,000 pupils would have to be bused under the Stolee plan. The principal increase arises at the high-school level due to the fact that the fewer number of high schools are necessarily further away from more pupils than the more numerous lower schools. In terms of time, it appears that the present transit system buses average something less than 13 mph prior to 9:00 A. M. and after 3:00 P. M. Considering the distances involved (the longest being 15 miles) under the plaintiffs' plan, the court is of the view that transportation for the bulk of the pupils would consume an average of 35-45 minutes each way in Atlanta traffic, which is notoriously atrocious during these rush hours.

As to cost, it also appears that the parties have presented somewhat extreme views. Dr. Stolee concluded that the operation of 100 buses would be ample for the estimate of 23,000 pupils. However, he assumed every seat filled for every full run in a large-type bus, and made no allowance for "down time" which runs 6%-11% in the transit system. The defendant, on the other hand, estimates 357 buses by its one-mile standard. By staggering the opening and closing hours, each bus can make three runs each way per day. At absolute efficiency on 78-passenger units transporting 234 pupils each.*7 some 140-145 operating buses would be minimally required daily. A reasonable figure seems to be some 200 operating buses or a total of 220 overall.*8

The initial cost per unit is $13,500-$14,000 each with an average 12-year life. The Atlanta system has no present garage or maintenance facilities, which could be provided for a capital outlay of approximately $1,000,000. Thus the total initial capital required is slightly over $4,000,000. From the evidence presented, it appears that $40.00 per day is a reasonable estimate for operational costs, including maintenance, fuel, salaries, insurance etc. Assuming qualified drivers can be hired only for the months covering the 180-day school session, the annual operating costs would run some $1,800,000 (including depreciation on the units) for each year. To implement the program would require a 2-mil levy for capital purposes and an additional 3/4 mil thereafter for operational costs based on the current tax digest in the city. However, such a program would be safer from an accident basis than walking and would produce savings for those parents who presently transport their children themselves or utilize the public transit reduced student fares. The only public transportation presently provided by the school system is that ordered by this Court to be furnished "majority to minority" transfers under a previous Fifth Circuit mandate, following Swann. This service, for a portion of the 1,750 pupils exercising such option, costs $72,000 per year at present.

(c) Findings and Discussion. The Stolee plan is "workable" in the sense that it can be put into operation by the reassignment of the pupils involved and the expenditure of the sums indicated. It is "feasible" in the sense that it apparently is a sound approach to the problem of redistributing both Black and white pupils on an equal basis so as to create a more nearly perfect racial mix. There is no question that Atlanta would "score well" on September 1, 1972, if it is adopted. The concern of the Court is September 1, 1973, if such course is taken. Thus, it is the "reasonableness" of the plan and whether it is constitutionally required or desirable that troubles the Court.

If it is assumed at this point, as contended by plaintiffs, that Atlanta is still operating a de jure dual school system, then the fact that the Board has no school bus system, receives no state funds for transportation, and has no sources to furnish busing other than a new tax levy is apparently no impediment to its implementation. "It is implicit in the decisions of the Supreme Court and of this Court that it is the responsibility of school officials to take whatever remedial steps are necessary to disestablish the dual school system, including the provision of free bus transportation to students required to attend schools outside their neighborhoods." United States v. Greenwood Municipal Separate School District, F. 2d (5th Cir., April 11, 1972) (citing Swann). See also Brewer V. School Board of the City of Norfolk, Va., F. Supp. F.2d . cert. den. 40 LW 3544. Cf. Lee v. Macon County Board of Education, 448 F.2d 746 at 754, 755 (5th Cir. 1971).

However, as was held in the previous order and as redemonstrated by the plaintiffs at this trial, the Atlanta school system is subject to de facto forces completely beyond its control, primarily in terms of housing, population shifts, and the resegregation process it has experienced over many years. There can be no question that Atlanta has long been a segregated city. This existed prior to 1954 under state law, under court sanction, both state and national*9 and by the attitudes of its people. While Atlanta has progressed well toward the goal of racial equality in the political area, in employment, and in public accommodations, the school situation remains disappointing.

Of prime effect have been the policies of private and public housing. Federal agencies, including the FHA, a number of federal financial regulatory agencies, the Public Housing Administration, plus local agencies administering their programs, have engaged in a broad pattern of affirmative acts to promote racial housing segregation in Atlanta and its suburbs. See Crow & Susman v. Brown, F.2d (5th Cir., March 15, 1972), wherein another judge of this Court wrestles with the housing situation and its effects on the population make-up of Atlanta. In the resegregation process, numerous whites have moved out of the City. The voluminous record in this case demonstrates a "white flight" of school-age children reversing the 70% white-30% Black school ratio in 1959 to a 27% white-73% Black ratio today, while its overall Black population has only moved from 35% to 51% during the same period. The last two school years show a drop of 7,000 white pupils and 5,100 white pupils respectively. This year, since the remand of this case in late fall, an additional 2,300 whites have transferred out.

Contrary to the Court's previous finding, the plaintiffs contend that school integration has no effect on this phenomenon. Its expert sociologist, Dr. Karl Taeuber of the University of Wisconsin, testified that the "white flight" in Atlanta is irrevocable, that the theory of a "tipping point" is invalid, that the Stolee plan would, in fact, retard white outmigration, and that Atlanta like Newark, New Jersey, Gary, Indiana, and Washington, D. C. is already destined to become a predominantly black city anyway. To the extent that he concludes that school orders have effect on this population evolution, his opinions are rejected.*10 To the extent that Atlanta's problem is special and unique as one of the largest school districts with a large Black-majority pupil ratio, they are accepted. All thinking people, both Black and white, are agreed that the preservation of a mixed city is desirable and that the preservation of a mixed-school system is likewise legally and educationally desirable. In fact, the latter is the thesis of Brown I. No one wants an all-Black school system. Even the plaintiffs' experts decry a situation such as Washington, D. C. where the educational and social advantages of desegregated public education are virtually gone due to its school resegregation. And yet, the court remains firmly convinced that the busing plan offered will do just that in a very short time.

Where the whites are already in a desegregated minority position, mathematical balance throughout the system is not required. Harris v. St. John the Baptist Parish, La., 419 F.2d 1211, 1221 (5th Cir. 1969). While one-race schools may be suspect, they are not necessarily unlawful under such circumstances. E.g. Pate v. Dade County School Board, F. Supp. (S. D. Fla June, 1971), aff'd 447 F.2d 150 (1971), cert. den. U. S. - (April 11, 1972) (40 L.W. 3503). Earlier decision reported at 315 F. Supp. 1161 (S.D. Fla. 1970), aff'd in part, rev'd in part, 434 F.2d 1151 (1970), cert. den. 402 U. S. 953 (1971). Substantial integration, even though imperfect, is preferable to an all-Black system or none at all. Thus, preservation of the whole is viewed as more important than any of its parts. This is in keeping with other orders of the court. See United States of America v. The State of Georgia, et al, Civil Action 12972, (Order of August 18, 1971, Hancock County).

CONCLUSION.

Unlike many other districts where busing has resulted from this Court's orders, the special situation in Atlanta and the special consequences of busing here, dictate that it again be rejected. If Dr. Taeuber's fatalistic view is accepted and a resulting all-Black school system is inevitable, then it makes no difference whether the plan is ordered or not. If each and every school-house must be separately desegregated at least one time before a system is legally unitary, then such a plan may be required, regardless of the consequences, as it is true that some predominantly Black schools in Atlanta have always been so. However, where a substantial good faith local effort has been made and the system has been declared unitary through successive court orders, at some point the process should end. See Boyd v. Pointe Coupee Parish School Board, 332 F. Supp. 994 (E. D. La. 1971), app'l dismissed October 26, 1971. This is inherent in the language of Swann. In spite of its obviousness, the court can find no reported cases where a final declaration and discharge has been made.

As for Atlanta, the court knows of no device short of mass-busing to achieve more than the temporary success achieved in the past. Here we have vast numbers of schools which have been desegregated and then resegregated by shifting population trends. Cf. Dandridge v. Jefferson Parish School Board, 456 F.2d 552 (1972). As seen, mass-busing will "significantly impinge on the educational process" by producing a one-race system.

It serves no purpose to reiterate the findings of the July 28, 1971, order. Because Atlanta has long since been a "genuinely nondiscriminatory" unitary system; because it has been a "de facto" city since at least 1967;*11 because its imperfection is due to causes beyond the control of the Board; because no "state-action" is involved any longer; and because Atlanta will most likely evolve into an all-black system if the plaintiffs' plan for busing is adopted, it is again rejected.*12

IT IS SO ORDERED.

This the 8th day of June, 1972.

Sydney O. Smith, Jr.
United States District Judge

Albert J. Henderson, Jr.
United States District Judge

1. The only fruition of these negotiations was apparent agreement upon racial policies in the filling of high-level administrative positions in the system. At least, this was the Court's impression at trial and no issue over this matter appeared at that time. By a supplemental exhibit forwarded to the Court on May 27, 1972, (P-77) and by post-trial brief, there now appears to be some question in this regard. In this respect, plaintiffs are directed to respond specifically to the Board's action on March 27, 1972, (contained in the Defendant's response filed March 29, 1972) as to whether such action is agreed upon and, if not, in what particular it is not. Such response shall be filed on or before July 1, 1972, following which the court will issue further orders if necessary.

2. In Number 12, 972, United States v. State of Georgia, the statewide school case, involving presently some 79 school districts with generally small schools and faculties, it was agreed that "substantially means as near to exact as possible and in no event to exceed over two positions from exact." (See Order of July 16, 1971.) Otherwise, each district would have to have been examined minutely, an almost impossible administrative burden. Of course, a variance of two from exact in a school with 15 or 20 teachers far different from a variance of two in a school with 50 or 75 teachers in terms of percentage. The court is informed that wide variances of 20%-30%, or 40% have been agreed upon by litigants in other cases within the circuit as "substantially the same." In terms of multi-district problems, a more precise definition would be helpful to the trial courts.

3. The two extremes are 84.6% Black and 30.1% Black.

4. The system lost the Title I, HEW funds it had qualified for in 1970-71 for the two successive school years because these variances exceeded "5% + 2" from strict mathematical balance. The Courts, of course, have no present control of the executive policies of the HEW in this respect. Similarly, in spite of West Feliciana, funds have been terminated to systems which failed to maintain the faculty racial ratio in effect upon original desegregation several years ago, irrespective of merit considerations.

5. Professor Stolee has devised a "one-third plan" wherever possible in this Series. Instead of pairing two schools, e.g. grades 1-3 at one and 4-6 at another, the plan incorporates three neighborhood primary (grades 1-3) schools into a fourth elementary school (grade 4-6). In this way, fewer children in the Series are required to go out of the neighborhood until approximately age 10. The idea is an "expanded neighborhood concept" (See P-25).

6. While it might be desirable, it does not officially exist anywhere else in the state where the accepted standard is 1-1/2miles. Ga. Code §32-618( d).

7. Representative performances from other districts are:

Broward County, Florida ----------------211 pupils per bus
Dade County, Florida---------------------144 pupils per bus
Savannah, Georgia-------------------------173 pupils per bus
Fulton County, Georgia------------------135 pupils per bus
Volusia County, Florida-------------------211 pupils per bus.


8. From the material presented by plaintiffs for another purpose (P-74), it appears that the following number of units are utilized in those districts under recent busing orders:

District------------------------------------------------------Number buses----------------Number students

Charlotte, N. C.--------------------------------------------535------------------------------46,000

Winston-Salem, N. C. ----------------------------------351-------------------------------32,000

Hillsborough County, Florida ------------------------186-------------------------------32,000

Pasadena,, California ------------------------------------105--------------------------------13,000

Pontiac, Michigan-----------------------------------------106---------------------------------9,600


9. See such cases as Plessy v. Ferguson, 163 U. S. 537; Glover v. City of Atlanta, 148 Ga. 285 (1918); Brown v. City of Atlanta, 159 Ga. 145 (1924); Dooley v, Savannah Bank & Trust Co.) 199 Ga. 353 (1945).

10. Dr. Taeuber has developed a system of measuring segregation in public housing and in public school systems, based on an index of 0 to 100, with 0 indicating no segregation whatsoever. The housing index is calculated by counting those residential blacks with both white and black inhabitants and relating them to the total. The school index is calculated by comparing the actual racial mix in each school against mathematical perfection. Based on this standard, Atlanta currently scores 92 on housing and 82 on school segregation. While these scores are poor, the realistic comparison with the "best" in the country is against 70 in housing and 51 in schools rather than zero. In this respect, Atlanta schools has moved from an index of 100 in 1961-62 to 82 in 1971-72 (P-50), while housing only moved from 94 in 1960 to 92 today. (P-52). Dr. Taeuber could not furnish current figures for other communities but his authoritative 1967 work (P-65) reveals some interesting comparisons. In general, the smaller the black percentage of enrollment, the lower the index. Thus, of the 60 largest cities, the "best" score is El Paso (51) with only 1.3% Blacks. Of those communities with 25%-50% Black pupil enrollment, the following scores appear:

Akron -----------------------------70
Boston----------------------------- 74
Buffalo -----------------------------80
Charlotte-------------------------- 77
Cincinnati -------------------------77
Columbus, Ohio -----------------81
Dayton -----------------------------90
Ft. Worth-------------------------- 93
Houston ----------------------------92
Indianapolis------------------------ 85
Jacksonville ------------------------92
Jersey City------------------------- 57
Kansas City ------------------------79
Louisville ---------------------------76
Milwaukee-------------------------- 88
Miami-------------------------------- 92
Nashville---------------------------- 85
New York City------------------- 52
Norfolk ------------------------------90
Pittsburgh--------------------------- 72
Rochester--------------------------- 61
San Francisco ---------------------67
Toledo------------------------------- 80

Of those communities with 50% or more Black pupil enrollment, the following scores appear:

Baltimore--------------------------- 87
Birmingham----------------------- 94
Chicago -----------------------------92
Cleveland--------------------------- 90
Detroit -------------------------------79
Memphis---------------------------- 95
Newark------------------------------ 68
New Orleans----------------------- 87
Oakland -----------------------------64
Philadelphia ------------------------76
Richmond--------------------------- 95
St. Louis----------------------------- 91
Washington, D. C.---------------- 77

While Dr. Taeuber contends that school integration has no effect on "white flight," the "best" school scores of five years ago were registered by Jersey City, Newark, Oakland, and Rochester. The Court is under the impression that those four cities have shown a marked increase in Black population since that time.

11. See Griggs v. Cook, 272 F. Supp. 163, aff'd 384 F.2d 705 (5th Cir. 1967).

12. By correspondence in late April and at the end of the May 3-4 hearing, plaintiffs sought time to prepare and present evidence regarding the composition and factual data of the several school districts surrounding Atlanta with a view toward proposing court-ordered consolidation of separate school districts. E.g. Bradley v. School Board of Richmond, Va., 338 F. Supp. 67 (E.D. Va. Jan. 10, 1972), motion for accelerated appeal granted, motion for stay pending appeal granted in part, 456 F.2d 6 (4th Cir. 1972). This question is now contended to be involved under that portion of the remand referring to the section entitled "Comment" in the July 28, 1971, order which preceded Bradley by about six months. While in the court's view such issue is not legally before the court, the direction of the Fifth Circuit was sought in this regard. Informally, the court has been directed to make "findings of fact and conclusions of law on the issue of consolidation," without delay to the Court acting on the remainder of the case.

Accordingly, the plaintiffs are granted 20 days to file amended pleadings in this regard and the defendants named herein are granted 10 days in which to respond. All discovery is to be completed by September 1, 1972, following which the court will schedule a time for hearing and argument on such issue. In any event, a ruling on such question would likely be stayed pending the outcome of Bradley. As of the filing of this order, it has been publicly reported that it has been reversed by the Fourth Circuit on June 6, 1972, the Court holding that cross-district consolidation is not constitutionally required under Brown and its progeny, "absent invidious discrimination in the establishment or maintenance of local governmental units."

source: Federal Archives, File 2, Box 55