UNITED STATES of America and Linda Stout, by her father and next friend, Blevin Stout, Appellants, v.JEFFERSON COUNTY BOARD OF EDUCATION et al., Appellees. UNITED STATES of America,Appellant, v. The BOARD OF EDUCATION OF the CITY OF FAIRFIELD et al., Appellees. UNITEDSTATES of America, Appellant, v. The BOARD OF EDUCATION OF the CITY OF BESSEMER et al.,Appellees. UNITED STATES of America, Appellant, v. CADDO PARISH SCHOOL BOARD et al.,Appellees. UNITED STATES of America, Appellant, v. The BOSSIER PARISH SCHOOL BOARD et al.,Appellees. Margaret M. JOHNSON et al., Appellants, v. JACKSON PARISH SCHOOL BOARD et al.,Appellees. Yvornia Decarol BANKS et al., Appellants, v. CLAIBORNE PARISH SCHOOL BOARD et al.,Appellees. Jimmy ANDREWS et al., Appellant, v. CITY OF MONROE, LOUISIANA et al., Appellees.Clifford Eugene DAVIS, Jr., et al., Appellants, v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.,AppelleesNos. 23345, 23331, 23335, 23274, 23365, 23173, 23192, 23253, 23116UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
380 F.2d 385
1967 U.S. App. LEXIS 6946
March 29, 1967SUBSEQUENT HISTORY:
[**1] Dissenting OpinionJune 27, 1967. Certiorari Denied October 9, 1967.
Tuttle, Chief Judge, and Brown, Wisdom,Gewin, Bell, Thornberry, Coleman, Goldberg, Ainsworth,Godbold, Dyer and Simpson, Circuit Judges.
[*389] 1. The Court sitting en banc adopts theopinion and decree filed in these cases December 29, 1966,subject to the clarifying statements in this opinion and thechanges in the decree attached to this opinion.2. School desegregation cases involve more than adispute between certain Negro children and certain schools.If Negroes are ever to enter the mainstream of Americanlife, as school children they must have equal educationalopportunities with white children.3. The Court holds that boards and officialsadministering public schools in this circuit
have theaffirmative duty under the
to bringabout an integrated, unitary school system in which thereare no Negro schools and no white schools -- just schools.Expressions in our earlier opinions distinguishing betweenintegration and desegregation
must yield to thisaffirmative duty we now recognize. In fulfilling this duty itis not enough for school [**2] authorities to offer Negrochildren the opportunity to attend formerly all-whiteschools. The necessity of overcoming the effects of the dualschool system in this circuit requires integration of faculties, facilities, and activities, as well as students. Tothe extent that earlier decisions of this Court (more in thelanguage of the opinions, than in the effect of the holdings)conflict with this view, the decisions are overruled. Werefer specifically to the cases listed in footnote 3 of thisopinion.
1 "In the South", as the Civil Rights Commissionhas pointed out, the Negro "has struggled to get intothe neighborhood school. In the North, he isfighting to get out of it." Civ.Rts.Comm.Rep.,Freedom to the Free. 207 (1963).This Court did not "excuse" neighborhoodschools in the North and West which have de factosegregation. No case involving that sort of schoolsystem was before the Court.School segregation is "inherently unequal" byany name and wherever located. But de factosegregation resulting from residential patterns in anon-racially motivated neighborhood school systemhas problems peculiar to such a system. The schoolsystem is already a unitary one. The difficulties liein finding state action and in determining how farschool officials must go and how far they may go incorrecting racial imbalance. In such cases
Shelley v.Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161(1948)
may turn out to be as important as
.A broad-brush doctrinaire approach, therefore, that
abolition of the dual school system solvesall problems is conceptually and pragmaticallyinadequate for dealing with de facto-segregatedneighborhood schools.We leave the problems of de facto segregationin a unitary system to solution in appropriate cases