432 F.2d 927
Derek Jerome SINGLETON et al., Plaintiffs-Appellants,v.JACKSON MUNICIPAL SEPARATE SCHOOL DISTRICT et al.,Defendants-Appellees.
No. 29226.
United States Court of Appeals, Fifth Circuit.
Aug. 12, 1970, Supplemental Order Aug. 25, 1970.

Fred L. Banks, Jr., Melvyn R. Leventhal, Reuben V. Anderson, John A. Nichols, Jackson, Miss., Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, Jonathan Shapiro, New York City, for plaintiffs-appellants.
Robert C. Cannada, Thomas H. Watkins, Jackson, Miss., for defendants-appellees.
Jerris Leonard, Asst. Atty. Gen., David D. Gregory, Atty., Civil Rights Division, U.S. Dept. of Justice, Washington, D.C., amicus curiae.
Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit judges.
PER CURIAM:


1
Here we review the District Court's order imposing a plan for a unitary school system for the elementary grades in the Jackson Municipal Separate School System.  This plan was adopted pursuant to our mandate in Singleton IV, Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 426 F.2d 1364.1


2
That mandate required the District Court to reconsider the plan (adopted in January 1970) for the system at the elementary level.  The District Court appointed a Bi-Racial Committee also pursuant to that mandate.  And that Committee2 and HEW proposed new plans. The School Board offered no new plan, but did support the Bi-Racial Committee's proposal.  Plaintiffs did not propose a new plan, but did suggest substantial modifications to the January 1970 plan put forward by HEW.3


3
Under the stringent time limitations imposed by Alexander v. Holmes County School System, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19; Singleton III, Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 419 F.2d 1211, and Singleton IV, the District Court held an evidentiary hearing4 on June 8, 1970, and on June 15, 1970 it ordered the plan proposed by the BiRacial Committee5 to be implemented.6


4
We find the results to be unacceptable.  Under this plan approximately 70% Of the Negro elementary students will be in all (or substantially all) Negro elementary schools.  In fact the 70% Figure is an understatement for Bradley and Dawson are not included in the schools that are substantially all Negro.  The integration in those schools is confined to only two grades.  See note 5, supra, items 3 and 8.  We have to be particularly sensitive to this because the zones for some substantially segregated sceondary schools cover the same areas as are covered by the all Negro elementary school zones.  And some students will likely have an education in predominately Negro schools throughout their school life.  This is especially true for those students attending Blackburn Junior High and Lanier High School.  See charts in Singleton V, Singleton IV; Davis v. Board of School Commissioners of Mobile County, 5 Cir., 1970, 430 F.2d 883; Mannings v. Board of Public Instruction of Hillsborough County, 5 Cir., 1970, 427 F.2d 874; Bradley v. Board of Public Instruction of Pinellas County, 5 Cir., 1970, 431 F.2d 1377.


5
The HEW plan7 was a substantial improvement over the plan approved by the District Court.  It reduced the number of all Negro schools from 9 to 4 and the number of Negroes in which they constituted 95% Or more of the student body to 2,731.  Plaintiffs' modifications8 of the HEW plan were an even greater improvement.  There were to be no all Negro schools under that plan.


6
Both of these plans are based on a type of zoning that divides the District into large Areas, 10 in both plans, and then establishes a separate grade structure in the Area.  For example, under the HEW plan, Area II, which is about 4 miles across, contains four schools in which grades 1-4 are presented and one large school in which grades 5-6 are presented.  (See note 5, lines 14, 17, 18, 20, 23, supra).  There was much discussion in the briefs that under this type of 'clustering' it will be necessary for the School District to provide intra-city transportation for the plans to be effective.  But we do not reach this since the changes we mandate persuade us that there is a variety of ways to improve the result.


7
We repeat that the result below is not acceptable.  When making this determination in many recent cases, we have often specified the full form that the desegregation plan is to take.  However we do not believe this is the wise course here since the record is inadequate.  Consequently, a remand will be required. But meantime something must be done now.  We cannot accept the proposition that over 70% Of the Negro elementary students are to remain in substantially all Negro schools during the time the case undergoes more complete exploration.  Consequently, pending the remand hearing and order of the District Court, discussed next, the School District is to operate under the plan approved below by the order of June 15, 1970, but with the following modifications:


8
(i) Brown is to be paired with Power.


9
(ii) Boyd is to be paired with Walton.


10
(iii) George is to be paired with Martin.


11
(iv) Robertson is to be paired with Poindexter.


12
(v) Lester is to be paired with Isable.


13
(vi) Watkins, Morrison, and Smith are to be grouped.9


14
(vii) The School District shall have the option of pairing: (a) Jones with Lake or (b) Johnson with Lake.


15
By these pairings and clusterings the percentage of Negroes in substantially all Negro schools will be reduced from over 70% To about 20%.10  We must reemphasize that these mandated modifications are an interim requirement and are not 'frozen'.  The District Court is to begin a hearing not later than September 25, 1970.  The hearing and order will canvass the whole elementary system with whatever changes are needed such as appropriate or required pairing, grouping, clustering, grade restructuring, and all other factors called for by our decisions and those of the Supreme Court.  It will, of course, prescribe the time the changes are to become effective which must be at a time not later than January 1971 representing a midyear date regardless of formal terms or semesters.  Likewise, all of the provisions of Part III, Singleton will apply as to appeals, record, briefs, etc.


16
Of course, the changes that will come as a result of the modifications we now specify and from the November order now called for will cause midyear disruptions, pupil reassignment and the like.  But on balance, this is less costly than a continued loss of rights of a large number of students.


17
Modified and remanded.

SUPPLEMENTAL ORDER

18
To the extent consent of this Court is necessary or desirable the Court on motion of the Trustees of the Jackson Municipal Separate School District (Defendant-Appellee) joined therein by Plaintiffs-Appellants, ORDERS:


19
First: The opinion-order of August 12, 1970 is modified as follows:


20
(a) To delete the requirement that the School District is to operate under interim modifications of the plan approved by District Court order of June 15, 1970; such deletion to be conditioned upon an immediate hearing by the District Court prior to commencement of the September school term.


21
(b) To provide that the September term for elementary schools may open under a new, comprehensive order of the District Court as required by the August 12 opinion of this Court.


22
(c) To provide that the opening of elementary schools may be delayed, if necessary, a reasonable length of time to permit a hearing and order by the District Court, so that midyear changes and accompanying disruption may be avoided.


23
Second: In addition to the action taken by this Court as an interim matter in our opinion of August 12, 1970, the attention of the District Court is called to our recent cases in which this Court has mandated pairings, clustering or such other equally effective devices to reduce the number of all black schools (90% Or more black) and the percentage and number of blacks in all black schools.  See, e.g., Valley v. Rapides Parish Sch. Bd., 5 Cir., 1970, 434 F.2d 144; Pate v. Dade County Sch. Bd., 5 Cir., 1970, 434 F.2d 1151; Henry v. Clarksdale Mun. Sep.  Sch. Dist., 5 Cir., 1970, (No. 29,165, August 12, 1970); Ross v. Eckels, 5 Cir., 1970, 434 F.2d 1140; Allen v. Bd. of Public Instruction of Broward County, Fla., 5 Cir., 1970, 432 F.2d 362.


24
Third: The Court commends the evident collaboration of counsel and the parties and expresses its confident hope that a constitutional unitary system will be established on this hearing and the order to emerge from it.



1
 With the intervening order for the secondary level of July 20, 1970, Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 430 F.2d 368 (As Singleton V, the current one becomes Singleton VI)


2
 The Bi-Racial Committee is composed of 12 persons, 6 white, who were suggested by the School Board, and 6 Negro, who were suggested by Plaintiffs.  Its proposal was a result of extensive effort by people with little expertise in this field, practically no assistance for staff, and no funds.  Its work did, however, represent a very commendable effort and a contribution to this community problem
This experience suggests that for the problems posed by our reversal and remand the District Court should enlist the cooperation of both HEW and the School Board in supplying one or more liaison representatives to the Committee.  With this professional staff-like assistance this will enable it to be directly involved in the essential exploratory activities leading to recommendations to the District Court.


3
 Hereafter all references to the 'HEW Plan' will be to the June HEW unless otherwise specifically stated


4
 On the hearing the District Court did not allow the Plaintiffs to make any testimonial inquiry into the considerations taken into account in the preparation of the Bi-Racial Committee's plan.  It is not necessary for us to categorize this as 'error' especially since under our mandated time schedules the hearings themselves often must be compressed.  But in the full factual development of justifications required on remand, we think the proposals and any modifications should be explored as fully as needed to determine strengths and weaknesses, etc


5
 The results under this plan are:
                                               Under District Court
                                                  Approved Plan
            Schools                Negro            White          Percentage *
 1.         Baker                       4             323               99%
 2.         Boyd                      171             340               67%
 3.         Bradley                   341              92 ***           79%
 4.         Brown                     658               0              100%
 5.         Casey                      30             451               94%
 6.         Clausell                   57             166               75%
 7.         Davis                     303              52               85%
 8.         Dawson                    420             109 ***           79%
 9.         Duling                    122             118               51%
10.         French                    142             318               69%
11.         Galloway                  385             162               70%
12.         George                     83              91               52%
13.         Green                     123             484               80%
14.         Isable          1-4**     517               0              100%
15.         Johnson                   862              50               94%
16.         Jones                   1,234              10               99%
17.         Key                        50 **          480               90%
18.         Lake                       50             615               92%
19.         Lee                        51 **          371               88%
20.         Lester                    138 **          228               62%
21.         McLeod                     51             665               93%
22.         McWillie                   38             495               93%
23.         Marshall                   55 **          573               91%
23a.        Martin                    206              17               92%
24.         Morrison                  472              78               86%
25.         Poindexer                 134             167               55%
26.         Power                      39             366               90%
27.         Raines                     81             494               86%
28.         Reynolds                  982               0              100%
28a.        Robertson                 320               0              100%
29.         Smith                   1,022               0              100%
30.         Spann                      47             497               91%
31.         Sykes                      51 **          452               90%
32.         Walton                    845              80               91%
33.         Watkins                   129             270               68%
34.         Whitfield                 159             230               59%
35.         Wilkins                   116             373               76%
                                   ---------------  -------------  ------------
               TOTAL               10,488           9,217
* The percentage figures here and elsewhere reflect the proportion that the
childrenn of the majority race bear to the total student enrollment.
Percentaages are listed here strictly as informational aids.  We expressly
disclaimm any intimation that racial balance is the standard by which we
determinne the acceptability of various desegregation plans.
** This plan provides for the reassignment of blacks attending Isable 5 and
6, "more or less" equally among the formerly white Lester, Key, Marshall,
Sykes and Lee Schools.  Therefore the desegregation reflected in those
formerlyy white schools is limited to grades 5 and 6 only.
*** Whites assigned to these schools were assigned to Watkins under previous
court order; and since Watkins serves grades 5-6 only, these grades are
*931_ Note intergraated in grades 5-6 only.


6
 The District did modify the Bi-Racial Committee's plan slightly by pairing Clausell and Wilkins Schools and closing Barr School and assigning those students to Poindexter


7
 The results under the HEW Plan are:*
                                                 Under HEW Plan
            Schools          Grades      Negro      White    Percentage **
        1.  Baker              1-6           153        307       67%
        2.  Boyd               5-6           360        269       57%
        3.  Bradley            1-6           174        203       54%
        4.  Brown              3-6           530        244       68%
        5.  Casey              1-4            10        362       97%
        6.  Clausell           5-6            57        166       75%
        7.  Davis              1-6           303         52       85%
        8.  Dawson             1-6           420        174       75%
        9.  Duling             5-6           244        171       59%
       10.  French             1-2           404        154       72%
       11.  Galloway           1-6           385        162       70%
       12.  George             1-6            83        103       57%
       13.  Green              1-4            95        518       84%
       14.  Isable             5-6           607        467       57%
       15.  Johnson            3-6           790        310       72%
       16.  Jones              4-6           676        434       61%
       17.  Key                1-4             0        368      100%
       18.  Lake               1-3           329        307       52%
       19.  Lee                1-6           128        296       70%
       20.  Lester             1-4            68        156       70%
       21.  McLeod             1-6            51        665       93%
       22.  McWillie           1-4            42        517       92%
       23.  Marshall           1-4             0        432      100%
       24.  Morrison           1-4           549          0      100%
       25.  Poindexter         1-6           118         82       59%
       26.  Power              1-2           267        122       68%
       27.  Raines             1-6           261        360       58%
       28.  Reynolds           1-4         1,056          0      100%
       29.  Smith              1-4           488          0      100%
       30.  Spann              1-6            47        497       91%
       31.  Sykes              1-6           179        400       69%
       32.  Walton             1-4           638          0      100%
       33.  Watkins            5-6           317        259       55%
       34.  Whitfield          1-3           369        127       74%
       35.  Wilkins            1-4           116        373       76%
                                       ---------  ---------
                                          10,314      9,028
               Special Ed.                   218        153
                                       ---------  ---------
             TOTAL                        10,532      9,181
                                       ---------  ---------
* Under this plan Barr, Robertson, and Martin would be closed.
** For use of percentages see note 5* supra.


8
 
                          HEW Plan With Modifications
                          as Proposed by Plaintiffs *
NAME OF SCHOOL                                 NEGRO        WHITE       % **
 I            - All-Negro
                as of
                May 8, 1970
 1.             Brown                           530          244         68%
 2.             Isable                          607          467         57%
 3.             Morrison                        349          200         64%
 4.             Reynolds                        576          300         66%
 5.             Robertson                                  CLOSED
 6.             Smith                           388          100         80%
 7.             Walton                          438          200         69%
 II           - All-white
                as of
                May 8, 1970
 1.             Casey                           110          262         70%
 2.             Key                             200          218         52%
 3.             Lake                            329          307         52%
 4.             Lee                             128          296         70%
 5.             Marshall                        200          282         59%
 6.             Sykes                           179          400         69%
 III          - Overwhelmingly
                white or Negro
                as of May 8,
                1970
 1.             Baker                           153          307         67%
 2.             Bradley                         174          203         54%
 3.             Clausell                         57          166         75%
 4.             Dawson                          420          174         75%
 5.             Johnson                         790          310         72%
 6.             Jones                           676          434         61%
 7.             Martin                                     CLOSED
 8.             McLeod                           51          665         93%
 9.             Power                           267          122         68%
10.             Spann                            47          497         91%
11.             Wilkins                         116          373         76%
 IV           - Integrated
                as of
                May 8, 1970
 1.             Barr                                       CLOSED
 2.             Boyd                            360          269         57%
 3.             Davis                           303           52         85%
 4.             Duling                          244          171         59%
 5.             French                          404          154         72%
 6.             Galloway                        385          162         70%
 7.             George                           83          103         57%
 8.             Green                           295          318         52%
 9.             Lester                          148          156         51%
10.             Poindexter                      118           82         59%
11.             Raines                          261          360         58%
12.             Watkins                         317          259         55%
13.             Whitfield                       369          127         74%
14.             McWillie                        242          317         58%
* Only the italicized schools are affected by Plaintiffs' modifications.  And
all grade structures and zone boundaries are identical to those of th HEW
plan.
*931_ ** For use of percentages see note 5 * supra.


9
 
        School          N   W
   (i)  (Power         39  366
        (Brown        658    0
  (ii)  (Boyd         191  340
        (Walton       845   80
 (iii)  (George        83   91
        (Martin       206   17
  (iv)  (Robertson    320    0
        (Poindexter   134  167
   (v)  (Lester       138  228
        (Isable       517    0
  (vi)  (Watkins      129  270
        (Morrison     472   78
        (Smith       1022    0
vii(a)  (Jones       1234   10
        (Lake          50  615
vii(b)  (Johnson      862   50
        (Lake          50  615
              Jones-Lake      Johnson-Lake
               N      W             N    W
 (i) - (vi)  4754   1637         4754   1637
 vii(a)      1284    625   vii(b) 912    665
             ----   ----         ----   ----
 TOTAL       6038   2262         5666   2302


10
 The final number in the paired schools will vary depending on the option under (vii)(a) or (b), supra:


