430 F.2d 368
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.
July 20, 1970.

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


1
This is an application by the School District to modify in part our mandate in Singleton IV, Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 426 F.2d 1364 [No. 29226, May 5, 1970]. There we directed the District Court to select one of the three presently available HEW plans1 to establish a unitary school system at the secondary level of the Jackson School District. In accordance with that mandate, the District Court held an evidentiary hearing on June 8, 1970 and ordered Plan A be implemented in the District. There was, however, substantial testimony at that hearing by both local school officials and HEW officials that because of population shifts, intervening relocation of portable classrooms, and incomplete information used in the original preparation of the three plans that all three plans would have to be modified to be workable in the 1970-71 school year.


2
Nevertheless, the District Court, correctly feeling that under the mandate of this Court he had no power to vary the prescribed plan, ordered that Plan A be put into effect without modification on June 15, 1970. HEW was, however, requested to suggest modifications to Plan A that would make the plan more workable for the 1970-1971 school year while retaining the essential elements of the plan to thus bring about a unitary system in the secondary grades. Pursuant to this request HEW proposed modifications to both high schools and junior highs in the District. It suggested one set of modifications for the junior highs.2 It posed alternative sets of modifications for the high schools which are referred to as Alternate I3 and Alternate II.4 HEW advised the District Court that both were consistent with the unitary system and retained the essential elements of the original Plan A.


3
Under our mandate of May 5, 1970 the School District was ordered to notify parents of assignments by July 1, 1970.5 Since student assignments on "pure" Plan `A' would have to be redone shortly if modifications were allowed, the School District sought and obtained from this Court a stay of the student assignment notices until we could have the recommendations of the District Court as to either Alternates I or II. Responding in like fashion to the exigencies, Judge Russell, having direct supervision of this problem, held an informal hearing and entered a supplemental order on July 1, 1970 recommending that Alternate II be adopted for the high school level.


4
With this extraordinary action by the District Judge in making a prompt and expeditious determination of these modifications and with the utmost of cooperation and diligence of counsel, we are able to enter this order, knowing that time is important to administrators, parents, and students. We accept the recommendations of the District Court to modify the original HEW Plan A as to the junior high level and adopt the District Court's recommendation for modification of Alternate II at the high school level.


5
Plaintiffs originally objected to any modification in HEW's original Plan A. It was their contention that the modification was in essence a return to the pre-Singleton IV school board plan. Our review of and comparison of the plans convinces us, however, that this is clearly not the case.6 Moreover, it was amply demonstrated both by HEW officials and by local school personnel that modifications were necessary. Indeed, Plaintiffs now virtually concede that changes were necessary in the original HEW Plan A at least to alleviate some severe overcrowding resulting under that plan and to clarify the role of the Vocational Training Center high schools — magnet schools — that were established under Plan A.


6
As an alternate, Plaintiffs contend that if modifications are to be made that the modifications be those tentatively proposed in an informal "observation" by Dr. H. L. Winecoff, furnished to Court and counsel between the June 15, 1970 order and the HEW proposed Alternate I and II to Plan A. But the cogency of this position is drastically reduced because Dr. Winecoff was the head of the HEW team which within a week or so prepared the modifications adopted by the District Court and because he prepared these modifications, not as tentative suggestions as those Plaintiffs recommend, but after further review of the School District's physical capacity and the necessities of operating the School District.


7
Of the two alternates for the high school level, Plaintiffs seem to prefer Alternate I. But the school attendance figures under both modifications are very similar. See notes 3 and 4, supra.


8
The only significant difference in the two alternates is that under Alternate I there are three 10th grade centers, Hill, Provine, Brinkley, while under Alternate II there are only two such 10th grade centers, Hill and Brinkley. The difference is in the grade structure of Central and Provine schools. Under Alternate I, Central High is a 10th grade center and Provine is an 11th and 12th grade school. Under Alternate II, both schools are 10-12 grade schools. For ease of comparison, the projected attendance figures for these schools are set out below.


9
                                 Capacity            Students

Name of School   Grades     Perm. W. Ports.       W      N     T

                               Alternate I

Central             10       980                 335    254   589
Provine          11-12      1114                 737    392  1129

                               Alternate II

Provine          10-12      1114                 698   377   1075
Central          10-12       980                 381   413    794


10
Since the schools have essentially the same attendance patterns for both alternates, this is not the time for this Court to make the choice of grade structures. The local school officials under the careful guidance of the District Court are to make such decisions as long as the unitary goal for the system is achieved.


11
There is a minor criticism by the Plaintiffs in their objection to the zoning of students into Lanier High School, the only magnet school under the modifications. Such zoning is characteristic of both Alternates I and II and undoubtedly the racial composition of Lanier High School provokes significant concern under both alternates. Plaintiffs contend that no student should be zoned at Lanier and that it should serve only as a magnet-vocational training center. It is apparent, however, that at this time it was reasonable that some students had to be zoned into Lanier in order to relieve capacity problems of the original HEW plan. Although close attention must be given to Lanier School throughout the 1970-71 school year and in the future, we cannot say that its racial composition destroys the unitary character of the school system.


12
We thus approve the HEW Alternate II modifications to Plan A and our mandate is altered accordingly.7 This is not, however, to declare that the system is a unitary one for all time. The record indicates that about 10% of the students move each year and that there has been a continuing shift in the demographic patterns in the city. As a result, great care will have to be taken to insure that such schools as Blackburn Junior High (see note 2, supra) and Lanier High School8 (see note 4, supra) are maintained as integrated facilities. See Hightower v. West, 5 Cir., 1970, 430 F.2d 552. One step that should be considered is the enlargement of Lanier's ability to accommodate vocational programs. This might be done by the reduction of the number of Negro students zoned into the school.



Notes:


1
 The plans were known as Plan A, B, C


2
 The projected enrollment under the HEW modifications at junior high level is shown below:
                      JUNIOR HIGH SCHOOL MODIFICATION
                   COMPOSITE BUILDING INFORMATION FORM
                                    Capacity              Students
Name of School       Grades      Perm.   W. Ports.    W      N      T
   Whitten             7-9        868                629    293    922
   Peeples             7-9       1286                898    354   1252
   Blackburn           7-9       1041                 81    941   1022
   Hardy               7-8       1062      1140      572    562   1134
   Enochs                9        519       675      223    341    564
   Bailey              7-8       1000                334    626    960
   Rowan                 9        840                135    281    416
   Chastain            7-8       1200      1300      693    569   1262
   Powell                9       1364      1478      453    419    872
   Callaway**          7-8      257/      257/
                                 1010      1166      272    298    570
  Special Education*                                 48     83    131
                                                    __________________
    Total                                           4338   4767   9105


*
 Blackburn, Enochs, Rowan, Powell, Whitten


**
 Approximately 7 additional portables will be required at Callaway


3
 Under HEW Alternate I the projected enrollment is:
                     HIGH SCHOOL MODIFICATION
                           ALTERNATE I
                COMPOSITE BUILDING INFORMATION FORM
                                    Capacity            Students
Name of School      Grades      Perm.   W. Ports.    W      N      T

  Hill                  10       894                294    158    452
  Wingfield          11-12      1036                617    275    892
  Central               10       980                335    254    589
  Provine            11-12      1114                737    392   1129
  Brinkley              10      1018                504    463    967
  Callaway           11-12      1166                529    380    909
  Murrah             11-12      1092                529    406    935
  Lanier             10-12      1412                185    822   1007


4
 The projected enrollment under Alternate II is:
                      HIGH SCHOOL MODIFICATION
                            ALTERNATE II
                 COMPOSITE BUILDING INFORMATION FORM
                                   Capacity             Students
Name of School      Grades      Perm.   W. Ports.    W      N      T

  Hill                  10       894                294    138    432
  Wingfield          11-12      1036                617    235    852
  Central            10-12       980                381    413    794
  Lanier             10-12      1412                185    871   1056
  Provine            10-12      1114                698    377   1075
  Brinkley              10      1018                507    475    972
  Callaway           11-12      1166                529    380    909
  Murrah             11-12      1092                529    406    935


5
 No modification was made in parent notices for elementary grades under the plan now before us on appeal but not decided here


6
 The enrollment under the Board's pre-Singleton IV plan was:
"Secondary         Negro     Other    Total

   Bailey           514       408       922
   Blackburn        593        34       627
   Chastain         523       660      1183
   Enochs           562       101       663
   Hardy            424       758      1182
   Peeples          218       864      1082
   Powell           796       673      1469
   Rowan            609        31       640
   Whitten          346       579       925
   Brinkley        1076         2      1078
   Callaway          86      1027      1113
   Central          192       564       756
   Hill             376        50       426
   Lanier           713         7       720
   Murrah           180       864      1044
   Provine          278       637       915
   Wingfield         51       897       948
                   ____      ____     _____
                   7537      8156     15693"
See Singleton IV, supra at 426 F.2d p. 1371 [No. 29226], Appendix B.


7
 The notification date for pupil assignment is now fixed at July 29, 1970. Unsatisfactory as it is, there might be need for some revisions in junior high assignments to the extent changes, if any, occur in our disposition of the appeal on elementary grades as they might feed into the junior high system


8
 Lanier is to be the only school offering vocational education at the high school level. Thus auto-mechanics, computer operation, ROTC, and other such courses are all to be offered there


