423 F.2d 203
Evelyn R. ELLIS, a minor, et al., Plaintiffs-Appellants,v.The BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, FLORIDA,Defendant-Appellee.
No. 29124.
United States Court of Appeals, Fifth Circuit.
Feb. 17, 1970.

Norris D. Woolfork, III, Orlanda, Fla., Jack Greenberg, Norman Chachkin, James M. Nabrit, III, Drew S. Days, III, New York City, for plaintiffs-appellants.
James W. Markel, Winter Park, Fla., Joel H. Sharp, Charles R. Fawsett, Orlando, Fla., for defendant-appellee.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
BELL, Circuit Judge:


1
The issue presented in this case is whether the Orange County Florida public school system is now unitary.  The answer depends on a review of the posture of the system in light of two controlling decisions of the Supreme Court.1  In Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, the mechanics of what must be done to bring about a unitary system were outlined.  They were stated in terms of eliminating the racial identification of the schools in a dual system in six particulars: composition of student bodies, faculty, staff, transportation, extracurricular activities, and facilities.  391 U.S. at 435, 88 S.Ct.  It was such dual systems, organized and operated by the states acting through local school boards and school officials, which were held unconstitutional in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), and which were ordered abolished in Brown v. Board of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II).


2
In Green the court spoke in terms of the whole system-- of converting to a unitary, nonracial school system from a dual system.  Then, in Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, the court pointed to the end to be achieved.  The result, if a constitutionally acceptable system may be said to exist, must be that the school system no longer operates as a dual system based on race or color but as a 'unitary school * * * (system) within which no person is to be effectively excluded from any school because of race or color.' 396 U.S. at p. 20, 90 S.Ct. at p. 30, 24 L.Ed.2d at p. 21.


3
Tested in this frame of reference, we conclude that the Orange County school system falls short of being a unitary system only in one respect: A part of the student desegregation plan.  It follows that the motion for injunction pending appeal will be denied so as to afford the district court, along with the school board, an opportunity to complete the conversion from a dual to a unitary system.  We take the case for final decision on the merits.2  The judgment of the district court will be affirmed in part, reversed in part, and the case remanded to the district court with direction.

I.
THE ORANGE COUNTY SCHOOL SYSTEM

4
This system covers the whole of Orange County including the urban areas of Orlanda, Winter Park, Winter Garden and Apopka, as well as rural areas embraced in a county having a land area of 910 square miles, or almost the size of Rhode Island (1,049 square miles).  The system is comprised of 26 secondary schools, 66 elementary schools, 3 vocational schools and 3 special education schools, or a total of 98 separate schools.  There are 68,012 white and 14,856 Negro students in the system, or a total of 82,868 students as of the present time (February 2, 1970).  The racial ratio of students is approximately 82 per cent white-18 per cent Negro.  There are a total of 3,563 teachers in the system, 2,913 white and 650 Negro, or much the same racial ratio as students.


5
On February 1, teachers were transferred so as to establish a substantial racial ratio in each school.3  As an example, Jones High School which has a student population of 1,136 Negro students and 121 white students, now has a faculty composed of 66 white teachers and 14 Negro teachers, 82.5 per cent white and 17.5 per cent Negro.  The greatest percentage departure in the system (Orange Center Elementary School) from the system-wide faculty ratio would involve the change of three faculty positions to be exact.  Attached as Appendix I is the present faculty population by school and race.


6
In our recent decision in Singleton v. Jackson Municipal Separate School District, 5 Cir., 1969, 419 F.2d 1211 (consolidated cases en banc) (Nos. 26285 et al., dated December 1, 1969), in order to mandate compliance with the Green and Alexander v. Holmes County decisions, we required, not later than February 1, 1970, that the faculty and staff be desegregated on the following basis:


7
'Effective not later than February 1, 1970, the principals, teachers, teacher-aides and other staff who work directly with children at a school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for Negro students or white students.  For the remainder of the 1969-70 school year the district shall assign the staff described above 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.'


8
The Orange County system has complied with this directive as to faculty and staff.  It has also agreed to comply in full with the Singleton provision as to continuing non-discriminatory practices in maintaining and replacing faculty and staff.


9
We also required that transportation systems, in those school districts having transportation systems, be designed to insure the transportation of all eligible pupils on a non-segregated and otherwise non-discriminatory basis.  Orange County has been in compliance with this directive since 1964.  In addition, a bi-racial committee will review the transportation system from time to time to insure non-discriminatory operation.4


10
It also appears that all extracurricular activities, including sports, are being operated on a non-segregated basis and this is likewise true as to facilities.


11
The requirement of Singleton that all school construction, school consolidation and site selection (including the location of any temporary classroom) in the system be done in a manner which will prevent the recurrence of the dual school structure by taking into consideration residential housing patterns has also been adopted by Orange County.  The bi-racial committee will consider and review matters falling into this category.  Fn. 4, supra.


12
These facts demonstrate full compliance with five of the six criteria of Green: Faculty, staff, transportation, extracurricular activities and facilities, leaving only the question of student body composition.


13
In order to facilitate the integration of student bodies, we required a majority to minority transfer policy in Singleton as follows:


14
'The school district shall permit a student attending a school in which his race is in the majority to choose to attend another school, where space is available, and where his race is in the minority.'


15
This policy is designed to facilitate the integration of all-white and all-Negro student body schools.  The Orange County system has exceeded this directive.  A majority to minority transfer rule has been promulgated wherein any transferee is to be furnished free transportation, and all parents have been notified of this provision.  Moreover, the transferee is given absolute priority for space and thus the transfer is not dependent on space being available.  Again, under the plan of desegregation, the bi-racial committee will review the operation of this rule from time to time in the interest of fairness and effectiveness.  Fn. 4, supra.


16
This leaves for discussion the question whether the Orange County plan of student desegregation is deficient to the extent that it prevents the systems from being unitary.  It is urged that all student assignment is on a neighborhood school basis, subject, of course, to the majority to minority transfer rule.  The defendant school officials wish to maintain such a basis of assignment.


17
It was not clear from the opinion and findings of the district court that the defendants were in fact maintaining a neighborhood school system as we would define such a system.  A neighborhood school system cannot be a system where variances are allowed to permit children a choice of not attending the nearest school to his or her residence and thereby avoiding assignment to a formerly Negro or formerly white school as the case may be.


18
The sum of the present assignment system is that ten elementary schools and one junior high school remain with all-Negro student bodies.  There is no high school with an all-Negro student body.  It appears that 7,518 Negro students attend these eleven schools (ten elementary and one junior high) with the result that 51 per cent of the total of 14,856 Negro students are assigned to schools having all-Negro student bodies.5


19
In order to have full facts available, as to neighborhood assignment and the results obtained on a school to school basis, we required the district court, by order dated January 30, 1970, to file supplemental findings of fact within five days addressed to the specifics.  They were promptly filed after a further hearing in the district court on short notice.  These supplemental findings demonstrate that variances are now allowed from the neighborhood school assignment system with the result that some white students are attending schools located greater distances from their home than nearby schools where the student body is all Negro.  As will be seen, this cannot be permitted in a school system operated on a neighborhood basis.


20
If not permitted in Orange County, eight of the eleven schools having all-Negro student bodies will have integrated student bodies.  The percentage of Negro students attending schools having integrated student bodies will increase from 49 to 84 per cent. Moreover, the increase will be even greater if students avail themselves of the majority to minority transfer rule.

II.
THE NEIGHBORHOOD SCHOOL SYSTEM

21
In the typical southern dual school system in operation prior to Brown I and II, the student was assigned to attend the school nearest his or her home.  This so-called neighborhood assignment system was designed to eliminate transportation costs and to permit the student to remain as near home as possible.  Under the dual system as ruled unconstitutional, a Negro student would be assigned to the nearest Negro school to his or her home and a white student would be assigned to the nearest white school.  Negro students might pass a white school or schools en route to a Negro school.  White students might pass a Negro school or schools en route to the white school.  Under a neighborhood assignment basis in a unitary system, the student must attend the nearest school whether it be a formerly white school or a formerly Negro school.  Orange County is generally using this approach but it is now apparent, under the current plan, that it is not being correctly observed.


22
As stated, based on the supplemental findings of fact, it appears that a true neighborhood assignment system, assigning students to the school nearest the student's home up to the capacity of the given school, will result in the desegregation of eight of the remaining eleven all-Negro student body schools in the Orange County system, leaving three elementary schools.  In four of these eight schools, the number of whites assigned would be somewhat greater if an equi-distance rule between schools was used as a basis for assignment rather than the capacity of the school.6  This would necessitate, however, increasing the size of the four schools in question.


23
Stated differently, under equidistance assignment, zone lines would be located equi-distant between two schools and all students within the zone would attend a given school without regard to the capacity of the school.  On the other hand, under the nearest school to student assignment basis, the assignment would be limited by the capacity of the school, and those unable to be accommodated would go to the next nearest school to the home.  We hold that the assignment system must take into consideration the existing capacity of the schools.  Whether to expand present facilities is a question for the school authorities.


24
We also hold that the neighborhood system, based on school capacity, must be observed without exception.  This will prevent any variance based on traffic conditions, such as are disclosed in the supplemental findings of fact with respect to 53 students who should go to Callahan school, or by zone line locations as is the case with five children who should be assigned to the Webster Avenue school.  Variances by arbitrary zone lines, or for reasons of traffic, while reasonable on their face, may destroy the integrity and the stability of the entire assignment plan.  If Orange County wishes to maintain a neighborhood assignment system, then it must do so without variances.  Each student in the system must be assigned to attend the school nearest his or her home, limited only by the capacity of the school, and then to the next nearest school.


25
There are a number of all-white student body schools in the Orange County system.  This is due to the preponderant white student population (82 per cent), and to residential patterns.  The three all-Negro student body schools which will remain, if the neighborhood assignment system is properly invoked, are also the result of residential patterns.  The majority to minority transfer provision under the leadership of the bi-racial committee is a tool to alleviate these conditions now.  Site location, also under the guidance of the bi-racial committee, will guarantee elimination in the future.  In addition, open housing, Title VIII, Civil Rights Act of 1968, 42 U.S.C.A. 3601 et seq., Jones v. Alfred H. Mayer Co., 1968, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, will serve to prevent neighborhood entrapment.


26
A view of the student body status of the eleven schools which now have all-Negro student bodies, once this order has been effectuated, can be had from Appendix II, attached.  The present status of all of the schools in the system is reflected in Appendix III.  The figures shown have not been adjusted to reflect what we are now requiring.

III.
DEFICIENCIES TO BE REMEDIED

27
We conclude that five of the six elements which go to make up a unitary system have been accomplished in the Orange County system: faculty, staff, transportation, extracurricular activities, and facilities.  We conclude also that the sixth element, student desegregation, will be accomplished once the district court requires and ascertains as a fact that the neighborhood student assignment system, based on the definition herein contained, is invoked and the transfers made necessary thereby have been made.7


28
Once done, and when the district court, by the standards herein stated, has made its own conclusion as to the system being unitary, the district court must retain jurisdiction for a reasonable time to insure that the system is operated in a constitutional manner.  As the Supreme Court said in Green, '* * * whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that the state-imposed segregation has been completely removed.'  391 U.S. at 439, 88 S.Ct. at 1695.


29
Affirmed in part; reversed in part; remanded with direction.


30
                APPENDIX I
       Orange County Public Schools
   INSTRUCTIONAL POSITIONS AS OF 1-27-70
Secondary Schools    White   Black   Total
Apopka Memorial          54       9      63
Apopka Junior            30       9      39
Boone                    74      12      86
Carver Junior            41       8      49
Cherokee Junior          43       6      49
Colonial                 92      14     106
Conway Junior            50       8      58
Edgewater                74      12      86
Evans                    76      12      88
Glenridge Junior         47       7      54
Howard Junior            47       7      54
Jackson Junior           56       8      64
Jones                    66      14      80
Lakeview                 44       7      51
Lee Junior               43       7      50
Lockhart Junior          32       5      37
Maitland Junior          36       5      41
Meadowbrook Junior       44       5      49
Memorial Junior          48       7      55
Mid-Florida Tech         58       9      67
Oak Ridge                87      13     100
Ocoee                    43       6      49
Robinswood Junior        46       7      53
Union Park Junior        45       7      52
Vocational               27       4      31
Walker                   58       6      64
Winter Park Junior       31       5      36
Winter Park Senior      105      16     121
Wymore                   21       7      28
                    -------  ------  ------
TOTALS:                1518     242    1760
Elementary Schools   White   Black   Total
Aloma                    25       8      33
Audubon Park             22       7      29
Azalea Park              14       7      21
Blankner                 21       6      28
Bonneville               14       4      18
Brookshire               22       7      29
Callahan                 15       5      20
Catalina                 21       6      27
Cheney                   21       6      27
Chickasaw                25       8      33
Columbia                 12       4      16
Conway                   23       6      29
Cypress Park              9       3      12
Delaney                  12       4      16
Dillard Street           12       4      16
Dommerich                26       8      34
Dover Shores             25       8      33
Dream Lake               28       9      37
Durrance                 24       7      31
Eccleston                27       8      35
Engelwood                25       3      28
Fern Creek               24       7      31
Forrest Park             19       3      22
Gateway                  25       3      28
Grand Avenue             14       7      21
Hiawassee                23       7      29
Hillcrest                12       3      15
Holden Street            25       7      32
Hungerford               15       5      20
Ivey Lane                23       7      30
Kaley                    17       6      23
Killarney                24       7      31
Lake Como                22       6      28
Lake Silver              23       7      30
Lake Sybelia             15       4      19
Lake Weston              20       6      26
Lakemont                 25       7      32
Lancaster                28       9      37
Lockhart                 17       5      22
Lovell                   27       8      35
McCoy                    22       7      29
Magnolia                 10       4      14
Maxey                    16       5      21
Ocoee                    13       4      17
Orange Center            26       2      28
Orlo Vista               21       6      27
Pershing                 24       7      31
Pine Castle              22       6      28
Pine Hills               24       7      31
Pineloch                 24       7      31
Princeton                15       4      19
Ray                      22       6      28
Richmond Heights         23       7      30
Ridgewood Park           19       6      25
Riverside                15       4      19
Rock Lake                24       7      31
Rolling Hills            23       7      30
Sadler                   21       7      28
Shenandoah               18       5      23
Spring Lake              22       6      28
Tangelo Park             21       7      28
Tildenville              15       4      19
Union Park               25       7      32
Washington Shores        26       8      34
Webster Avenue           14       4      18
Wheatley                 23       7      30
Windermere               16       5      21
Winter Garden            12       4      16
Zellwood                 18       6      24
                    -------  ------  ------
TOTALS                 1395     408    1803
TOTAL COUNTY:
Elementary             1395     408    1803
Secondary              1518     242    1760
                    -------  ------  ------
TOTALS                 2913     650    3563


31
                                  APPENDIX II
                 School Population, By Race and Proximity Area
                                                  Proximity Proximity Proximity
                         Present Present  Present   Area      Area      Area
School           Grades   White   Black    Total    White     Black     Total
Carver Jr.           7-9    1        1143    1144  47            1100      1147
Callahan Elem.       K-6    1         389     390 101 *           404       452
Eccleston Elem.      1-6    0         904     904   0             889       889
Holden St. Elem.     K-6    1         717     718   0             725       725
Hungerford Elem.     K-6    0         448     448 141             353       494
Maxey Elem.          K-6    1         468     469  38             461       499
Org.  Cen. Elem.      1-6    0         716     716  50             655       705
Rich.  Hts. Elem.     K-6    0         703     703  22             692       714
Wash.  Shs. Elem.     K-6    0         797     797   0             783       783
Web.  Ave. Elem.      1-6    3         410     413  76 **          352       423
Wheatley Elem.       K-6    0         824     824  29             811       840
*  Includes 53 now in other schools by reason of variance based on traffic
  conditions.
**  Includes 5 now in another school because of location of zone line.


32
                       APPENDIX III
    School Population, By Race, As Of February 2, 1970
SECONDARY
School                      Grades  White   Black    Total
Apopka Memorial High          9-12     903     366    1269
Apopka Junior High            7- 8     664     355    1019
Boone High                   10-12    1869     102    1971
Carver Junior High            7- 9       1    1143    1144
Cherokee Junior High          7- 9     741     244     985
Colonial High                10-12    2355       6    2361
Conway Junior High            7- 9    1417       9    1426
Edgewater High               10-12    1720     209    1929
Evans High                   10-12    1908      17    1925
Glenridge Junior High         7- 9    1325       3    1328
Howard Junior High            7- 9     813     364    1177
Jackson Junior High           7- 9    1597       3    1600
Jones High                   10-12     121    1136    1257
Lakeview High                 7-12     847     229    1076
Lee Junior High               7- 9     932     240    1172
Lockhart Junior High          7- 9     656     127     783
Maitland Junior High          7- 9     895      69     964
Meadowbrook Junior High       7- 9    1150       0    1150
Memorial Junior High          7- 9    1003     266    1269
Oak Ridge High               10-12    1986     149    2135
Ocoee High                    7-12     855     265    1120
Robinswood Junior High        7- 9    1213      11    1224
Union Park Junior High        7- 9    1179       0    1179
Walker Junior High            7- 9    1591      33    1624
Winter Park High             10-12    2462     113    2575
Winter Park Junior High       7- 9     652     184     836
                                    ------  ------  ------
           Total                     30855    5643   36498
ELEMENTARY
School                      Grades  White   Black    Total
Aloma                          1-6     896       2     871
Audubon Park                   K-6     802       0     802
Azalea Park                    K-6     854       2     856
Blankner                       1-6     689       2     691
Bonneville                     K-6     450       0     450
Brookshire                     1-6     722       1     723
Callahan                       K-6       1     389     390
Catalina                       K-6     667      21     688
Cheney                         K-6     718       0     718
Chickasaw                      K-6     857       0     857
Columbia                       1-6     432       0     432
Conway                         K-6     760       0     760
Cypress Park                   1-6     207      50     257
Delaney                        K-6     277      71     348
Dillard Street                 4-6     272      79     351
Dommerich                      K-6     898      16     914
Dover Shores                   1-6     821       0     821
Dream Lake                     K-6     862      84     946
Durrance                       1-6     742      28     770
Eccleston                      1-6       0     904     904
Englewood                      K-6     736       2     738
Fern Creek                     K-6     817       3     820
Grand Avenue                   1-6     188     233     421
Hiawassee                      1-6     798       0     798
Hillcrest                      1-6     328       1     329
Holden Street                  K-6       1     717     718
Hungerford                     1-6       0     448     448
Ivey Lane                      1-6     173     499     672
Kaley                          K-6     479       1     480
Killarney                      1-6     808       4     812
Lake Como                      1-6     751       0     751
Lake Silver                    1-6     787       1     788
Lake Sybelia                   1-6     474      32     506
Lake Weston                    K-6     715      24     739
Lakemont                       1-6     708     103     811
Lancaster                      1-6    1005       2    1007
Lockhart                       K-6     530       0     530
Lovell                         K-6     898       6     904
McCoy                          1-6     769       0     769
Maxey                          1-6       1     468     469
Ocoee                          1-6     365       1     366
Orange Center                  K-6       0     716     716
Orlo Vista                     1-6     746       0     746
Pershing                       K-6     817       2     819
Pine Castle                    K-6     751       1     752
Pine Hills                     1-6     809       1     810
Pineloch                       1-6     738       0     738
Princeton                      K-6     480       9     489
Ray                            1-6     722       8     730
Richmond Heights               1-6       0     703     703
Ridgewood Park                 1-6     638       3     641
Riverside                      1-6     547       5     552
Rock Lake                      1-6     234     236     470
Rolling Hills                  K-6     600       1     601
Sadler                         1-6     776       0     776
Shenandoah                     1-6     490      14     504
Spring Lake                    1-6     695       1     696
Tangelo Park                   K-6     532     199     731
Tildenville                    K-6     279     164     443
Union Park                     1-6     878       4     882
Washington Shores              K-6       0     797     797
Webster Avenue                 1-6       3     410     413
Wheatley                       K-6       0     824     824
Windermere                     1-6     538       8     546
Winter Garden                  1-3     336      80     416
Zellwood                       1-6     354     248     602
                                    ------  ------  ------
          Total                      35194    8628   43822
VOCATIONAL
Mid-Florida Tech                      1076      47    1123
Vocational                             390     208     598
Wymore Tech                             63     233     296
                                    ------  ------  ------
          Total                       1529     488    2017
SPECIAL EDUCATION
Forrest Park                           117      15     132
Gateway                                172      19     191
Magnolia Special Education
    Center                             145      63     208
                                    ------  ------  ------
          Total                        434      97     531
                            White   Black   Total
Secondary                    30855    5643   36498
Elementary                   35194    8628   43822
Vocational                    1529     488    2017
Special Education              434      97     531
                            ------  ------  ------
Total                       68,012  14,856  82,868



1
 Lower court decisions, if any, which may be inconsistent with these Supreme Court decisions on the requirments for comverting from dual to unitary systems obviously must yield to the principles there enunciated


2
 Under the stringent requirements of Alexander v. Holmes County Board of Education, supra, which this court has carried out in United States v. Hinds County School Board, 5 Cir., 1969, 423 F.2d 1264 (Nos. 28030, 28042, Nov. 7, 1969), this court has judicially determined that the ordinary procedures for appellate review in school segregation cases have to be suitably adapted to assure that each system, whose case is before us, 'begin immediately to operate as unitary school systems.'  Upon consideration of the record, the court has proceeded to dispose of this case as an extraordinary matter.  Rule 2, FRAP


3
 The transfers are complete with the exception of 25 teachers whose transfer orders are being reviewed on the basis of hardship


4
 The bi-racial committee is constituted by the district court from names submitted by the parties to this suit.  The membership of thirty will be divided equally between whites and Negroes.  The chairmanship is to alternate annually between a white chairman and a Negro chairman.  The committee is to review the operation of the transportation system and the majority to minority transfer rule, and also is charged with responsibility in the area of selecting school sites.  The committee is authorized to hold hearings and make recommendations to the school board in connection with any of these activities


5
 Five of the eleven schools have three or less white students in attendance but we, as did the district court, considered these as schools with all-Negro student bodies


6
 There would be 44 additional white students in Orange Center, 143 additional in Webster, 9 in Wheatley, and 90 in Carver


7
 Under the facts of this case, it happens that the school board's choice of a neighborhood assignment system is adequate to convert the Orange County school system from a dual to a unitary system.  This decision does not preclude the employment of differing assignment methods in other school districts to bring about unitary systems.  There are many variables in the student assignment approach necessary to bring about unitary school systems.  The answer in each case turns, in the final analysis, as here, on all of the facts including those which are peculiar to the particular system


