
    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.
    
      
      . 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.
    
   BELL, Circuit Judge:

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. 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).

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.

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 decisión on the merits. 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

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.

On February 1, teachers were transferred so as to establish a substantial racial ratio in each school. 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.

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:

“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.”

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.

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.

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.

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.

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.

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

‘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.”

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.

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.

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.

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.

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 specifies. 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.

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

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.

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 equidistance rule between schools was used as a basis for assignment rather than the capacity of the school. This would necessitate, however, increasing the size of the four schools in question.

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.

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.

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.

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

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.

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.

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

APPENDIX I

Orange County Public Schools >

INSTRUCTIONAL POSITIONS AS OF 1-27-7(1 /

Total Secondary Schools White Black

63 Apopka Memorial 54 9

39 Apopka Junior 30 9

86 Boone 74 12

49 Carver Junior 41 8

49 Cherokee Junior 43 6

106 Colonial 92 14

58 Conway Junior 50 8

86 Edgewater 74 12

88 Evans 76 12

54 Glenridge Junior 47 7

54 Howard Jimior 47 7

64 Jackson Junior 56 8

80 Jones 66 14

51 Lakeview 44 7

50 Lee Junior 43 7

37 Lockhart Junior 32 5

41 Maitland Junior 36 5

49 Meadowbrook Junior 44 5

55 Memorial Junior 48 7

67 Mid-Florida Tech 58 9

100 Oak Ridge 87 13

49 Ocoee 43 6

53 Robinswood Junior 46 7

52 Union Park Junior 45 7

31 Vocational 27 4

64 Walker 58 6

36 Winter Park Junior 31 5

121 Winter Park Senior 105 16

28 Wymore 21 7

1760 TOTALS: 1518 242

Elementary Schools White Black Total

Aloma 25 8 33

Audubon Park 22 7 29

Azalea Park 14 7 21

Blankner 2,1 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 2,6 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

Elementary Schools White Black Total

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

Killamey 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

Center 26 2 28

Orlo Vista 21 6 27

Pershing Pine Castle 24 22 7 6 31 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

Elementary Schools White Black Total

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

Tángelo 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

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 1-6 869 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

Engelwood 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

School Grades White Black Total

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

Tángelo 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

School Grades White Black Total

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 
      
      . 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 eases have to be suitably adapted to assure that eacli system, whose case is before us, “begin immediately to operate ás unitary school systems.” Upon consideration of the record, the court has proceeded to dispose of this case as an extraordinary matter. Rule 2, FRAP.
     
      
      . The transfers are complete with the exception of 25 teachers whose transfer orders are being reviewed on the basis of hardship.
     
      
      . 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.
     
      
      . 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.
     
      
      . There would be 44 additional white students in Orange Center, 143 additional in Webster, 9 in Wheatley, and 90 in Carver.
     
      
      . 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. ‘
     