OpenJurist

425 F2d 1224 Harvest v. Board of Public Instruction of Manatee County Florida

425 F.2d 1224

Caroline HARVEST et al., Plaintiffs-Appellees,
v.
BOARD OF PUBLIC INSTRUCTION OF MANATEE COUNTY, FLORIDA, a
public body corporate, et al., Defendants-Appellants.

No. 29425.

United States Court of Appeals, Fifth Circuit.

March 27, 1970, Dissenting Opinion March 31, 1970.

See also D.C., 312 F.Supp. 269.

David K. Dietrich, Robert L. Scott, Dye, Dye, Smith, Cleary & Scott, Bradenton, Fla., for defendants-appellants.

Earl M. Johnson, Jacksonville, Fla., Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, Drew S. Days, III, New York City, for Intervenor, et al.

Before JOHN R. BROWN, Chief Judge, and MORGAN and CLARK, Circuit judges.

PER CURIAM.

1

It is ordered that the motion of defendants-appellants for a stay of the order of the District Court entered on January 29, 1970 in this cause be and the same is hereby denied.

CLARK, Circuit Judge (dissenting):

2

The order of the District Court, in the guise of enforcing the Fourteenth Amendment right of Negro citizens to equal protection of law, deprives literally thousands of children of major educational benefits. A proper analysis will disclose that the order does not enforce a right but rather creates a wrong. There is no statutory or constitutional right to enforced racial integration. Yet that is the only 'right' that will be conferred by this order, rearranging students so close to the end of a year.

3

With only 54 days of attendance time left in the 1969-70 school term, young children, wholly without blame, are separated from their classmates or their teachers or their schools, or all three.1 The only proof before this Court shows that the result of this last minute shuffle will be destructive of existing educational values and utterly without a redeeming equity of any sort.2 The greatest irony of it all is that the impact of what is enjoined will fall most heavily on the Negro children affected.3

4

It has been advanced as justification for this order that the school district officials have known for some time that such a student change-over could be required. This is not pertinent at all. Even the assumption that these officials had been guilty of deliberate delay could not justify taking rights away from school children. If equity demands that punishment be inflicted, it surely should be fastened on the guilty-- not upon the innocent. What is being taken from these children by approving this order is the very right nominally enforced, the right to equal educational opportunity. That right is no longer viable when it is used as a pall to cover what naked could readily be seen as a deprivation of educational benefits.

5

A large part of the cause of the disheartening failure of court experimentation with school desegregation is that we have fallen into the practice of dealing with statistics. The Manatee County problem we face today cannot be adequately understood or expressed by numbers or percentages. It can only be comprehended in terms of individual lives. We wholesale the 'rights' of Susan and Bill and Tommy and nameless thousands of other unknowns. They lose their identity in a complex ocean of faces. Only the color of their skin becomes important to our en masse reasoning. Justice takes on a strange appearance indeed when she takes off her blindfold and weights her scales to be sure, sometimes ten times sure, that the personal rights of each individual robber or murderer have not been brushed or bruised,4 yet we herd guiltless youngsters about with seeming abandon, never knowing who they are, or what their special problems may be, or what we do to their lives or to the lives of those who love them and are charged with the legal duty to care for them.

6

Precedent certainly does not justify what the majority here allows to stand. No school district has ever been disrupted at this late a point in a school term. In fact, this very court has already recognized that the immediate desegregation requirement of the Supreme Court5 does not have to blind us to the educational realities resulting from its application to specific school situations. In Hall v. St. Helena Parish School Board, 424 F.2d 320 (5th Cir. 1970), we refused interdiction of the term in that school district, which had approximately five weeks remaining for elementary students, and permitted compliance to begin at the 1970-71 term. The difference between the St. Helena Parish and Manatee County cases is not one of principle but of degree, and only slight degree at that.

7

Based on the facts of record before us I would, without the slightest hesitation, grant the stay requested for the short duration of the present school term. It may be that all of the parties to this action will agree that it would be unwise to effectuate this order at this point in time. If they do then the school session could be completed without disruption, for after all it is their lawsuit and they may waive this court-fashioned 'relief' if neither side really wants it. If they do not, I can only hope that when history records the results of this Easter edict it will show that somehow all the children affected, both Negro and white, suffered less damage than I now anticipate.

8

                                   APPENDIX
TABLE 1--Students By Grade Who Are Required to Change Teachers, Change Class
  Membership or to Change Schools.
-------------------------------------------------------------------------------
SCHOOL             1      2      3      4      5       6     7     8     TOTAL
---------------  -----  -----  -----  -----  ------  -----  ----  ----  -------
Anna Maria                                             32                    32
Ballard                                        32      33                    65
Bayshore Elem.     79     62     86     77     75      75                   454
Bradenton         130     88     96    103     97                           514
Daughtrey          92     79     90     82     86     100                   529
Ellenton           28     35     34     33     25                           155
Manatee                                        30      60                    90
Memorial          107    101     98     76     96      85                   563
Miller             99     84     94     64     82      86                   509
Orange Ridge                                   25      35                    60
Palm View                                      24                            24
Pama Sola          79     88     86     96     97      89                   535
Palmetto           86    101    108     71     95     129                   590
Parrish            35     43     27     22     22                           149
Prine              68     71     89     91     89     100                   508
Samoset            64     71     65     68     66      54                   388
Tillman            45     58     49     53     57      61                   323
Bayshore Middle                                             325   325       650
First St.                                                   300   300       600
  Middle
Lincoln                                                     167   148       315
Palmetto High                                               195   218       413
---------------  -----  -----  -----  -----  ------  -----  ----  ----  -------
TOTALS            912    881    922    836    998     939   987   991     7,466
-------------------------------------------------------------------------------
9

Source: 5th Month Attendance Report-Manatee County School District January 9 -

February 6, 1970

10

                              TABLE 2
             Students by Grade Moved to Another School
--------------------------------------------------------------------
SCHOOL          1     2     3     4     5     6     7     8    TOTAL
-------------  ----  ----  ----  ----  ----  ----  ----  ----  -----
Bayshore                                75    75                150
Bradenton      130    88    96   103                            417
Daughtrey                               86   100                186
Ellenton                                25                       25
Lincoln                                                  148    148
Memorial       107   101    98    76                            382
Miller                                  82    86                168
Palma Sola                              97    89                186
Palmetto                                95   129                224
Palmetto High                                      195          195
Parrish                                 22                       22
Prine                                   89   100                189
Samoset                                 66    54                120
Tillman         45    58    49    53                            205
-------------  ----  ----  ----  ----  ----  ----  ----  ----  -----
TOTALS         282   247   243   232   637   622   195   148   2617
--------------------------------------------------------------------
1

See Tables 1 & 2 in the Appendix to this dissent

2

The affidavits of classroom teachers and other educators were filed in support of the motion to stay. No counter-affidavits or opposition were presented

3

According to the affidavit of Professor of Education, Dr. Virgil Strickland (Ph.D.)

4

We would allow any common criminal repeated trials, appeals, post conviction remedies and multiplied State and Federal habeas corpus review. See e.g. Vera v. Beto, 422 F.2d 1052 (5th Cir. 1970) (February 20, 1970)

5

Alexander v. Holmes County Bd. of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); See also Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970)