521 F.

2d 1136

Warren H. WHEELER et al., Appellants,

v.
The DURHAM COUNTY BOARD OF EDUCATION, a body
politic, et
al., Appellees.
Nos. 74-2137, 74-2138.

United States Court of Appeals,

Fourth Circuit.
Argued May 8, 1975.
Decided Aug. 4, 1975.

J. LeVonne Chambers, Charlotte, N. C. (Adam Stein, Charlotte, N. C.,

Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, New York
City, William A. Marsh, Jr., and J. H. Wheeler, Durham, N. C., on brief),
for appellants in Nos. 74-2137 and 74-2138.
Marshall T. Spears, Jr., Durham, N. C., and (Jerry L. Jarvis, Durham, N.
C. on brief), for appellee Durham City Board of Education in Nos. 742137 and 74-2138.
James L. Newsom, Durham, N. C. (Newsom, Graham, Strayhorn,
Hedrick, Murray & Bryson, Durham, N. C., on brief), for appellees
Durham County Board of Education, its Superintendent and Members in
Nos. 74-2137 and 74-2138.
Rufus C. Boutwell, Jr., Asst. City Atty. (W. I. Thornton, Jr., City Atty.,
and Douglas A. Johnston, Asst. City Atty., on brief), for appellees The
City Council of the City of Durham and the Individual Members of the
City Council in Nos. 74-2137 and 74-2138.
Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD,
Circuit Judges.
CRAVEN, Circuit Judge:

These appeals are from orders entered in 1974 by the district court denying
requests made by plaintiffs in 1972 for further injunctive relief with respect to
desegregating the Durham City and County School systems. Both systems have
been operating under plans approved by the district court in 1969 (County) and
1970 (City). The prior freedom-of-choice plans,1 by then virtually condemned
by the Supreme Court in Green v. County School Board, 391 U.S. 430, 88 S.Ct.
1689, 20 L.Ed.2d 716 (1968),2 were abandoned in those years in favor of
mandatory student assignments through geographic zoning, the stated goal of
which was to establish immediately the requisite "unitary" system.3 Finding
that a unitary system had been attained under the 1969 and 1970 plans in each
jurisdiction, the court below denied all injunctive relief and subsequently
approved the Boards' plans for the 1974-75 school year.4

With respect to the City we hold that operation under its 1970 plan has not yet
effectively eliminated "all vestiges of state-imposed segregation," and reverse.
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct.
1267, 28 L.Ed.2d 554 (1971). With respect to the County system we are of the
opinion that a unitary system has been achieved, and affirm the denial of further
relief.

The primary relief requested by plaintiffs in 1972 was a merger of the City and
County systems or, in the alternative, an "annexation" by the City
Administrative School Unit of that part of Durham City governed under the
County School Unit, I. e., making the boundaries of the City school district
coterminous with the City limits.5 Those requests for inter-district relief were
denied, the reasons for which are presently only of academic interest,6 since
plaintiffs have not appealed.

With respect to Intra-district relief, the district court in a published opinion,7

affirmed the continuing validity of the 1969-1970 plans. Attendance zones
under those plans were modified pursuant to, and subsequently approved by,
orders entered in July and August 1974, as discussed below. Although it had
already adjudged the City Unit to be unitary, the district court in the latter order
nevertheless directed the City to submit its proposed8 revisions to its plan for
the 1975-76 school year, ordering "(e)mphasis . . . placed on schools which
currently have a white pupil enrollment of 20 per cent or less."

I.
5

The main questions presented on appeal are:9 (1) Did the district court err in
ruling that implementation of the 1970 plan for the City had resulted in a
unitary system? (2) Should the district court have rejected that portion of the

County's proposed plan converting two majority-black schools to single-grade

centers as unfairly burdening black students?
A.
6

The second question requires little discussion. The "City Out"10 area had
recently experienced rapid growth in its black population due to the placement
in that area of public low-cost housing, which growth created substantial black
majorities in two of the area's elementary schools. Acceptance of the County's
solution as opposed to that advanced by plaintiffs was within the discretion of
the district court, and we so hold.11

The adopted solution was to change Lakeview and Bragtown Schools

(previously grades 1-6 elementary schools) into single-grade schools: Lakeview
became a kindergarten center for all pupils, black and white, within a larger
geographic area,12 and Bragtown became a sixth-grade center for all pupils,
black and white, within that area. The result is that students in the
predominantly white portion of this area will be bussed to Lakeview and
Bragtown for the kindergarten and sixth-grade years, and that students in the
predominantly black area, previously served only by Lakeview and Bragtown,
will be bussed to the four other schools in this area for grades 1-5. The impact
of bussing falls more heavily upon those students in the Lakeview-Bragtown
area. The County justified its plan through testimony of Smith, an
administrative assistant to the superintendent, to the effect that Lakeview and
Bragtown were physically smaller or less adaptable for utilization as centers for
grades 1-5. Dr. Yeager,13 the County superintendent, testified that the sixschool cluster proposed by the County and approved by the court would result
in a better racial mix than two three-school clusters proposed by the County's
consultant. The only way to further equalize the bussing burden would be to put
another grade into Lakeview or Bragtown. But Lakeview was too small
capacity 250 or 300 and Bragtown's capacity, though larger (800) consisted
partly of temporary buildings separated from the permanent structure. In view
of the above testimony, we are unable to say that the court abused its discretion
in opting for the County plan. See Allen v. Asheville City Board of Education,
434 F.2d 902 (4th Cir. 1970).

B.
8

While giving due consideration to the district court's first-hand familiarity with
the situation, we cannot, however, affirm his conclusion that the City system
had achieved the requisite unitary state. In 1970-71, the first year of the City's
implementation under the court-approved geographic attendance zone plan,

some 13,100 students, with a black:white percentage ratio of 63:37 (8,200

blacks:4,900 whites),14 were distributed among 24 schools, as to nine of which
the following figures obtained:15
9

The sum of the figures with respect to the six heavily black schools reveals that
some 3,300 black students, approximately 40 percent of the 8,200 total City
black student population, attended schools where they were in majorities
ranging from 80 percent to 97 percent. In contrast to Shepard and Whitted,
Brogden Junior High had a black enrollment representing a 42 percentage-point
variation from the system as a whole; similarly, Powe and Watts Elementary
Schools varied 38 and 28 percentage points, respectively.

10

In 1973-74, enrollment figures with respect to the same schools were:

Grades % Black White Total

------ ----- ----- ----- ----11
Brogden Jr. High 7-9 20/80 86 355 441
12
Shepard Jr. High 7-9 96/4 448 17 465
13
Whitted Jr. High 7-9 93/7 498 37 535
14
Burton 1-6 93/7 456 36 492
15
Fayetteville St. 3-6 89/11 452 57 509
16
Pearson 1-6 98/2 424 9 433
17
Powe 1-6 28/72 80 205 285
18
Spaulding 1-6 97/3 390 12 402
19
Watts 1-6 45/55 95 115 210
20
21

Total enrollment had in the meantime dropped to 10,000, 7,100 of which were
black students, with a resulting change in the black:white ratio to 71:29. Again,
aggregating the numbers of black students in those same six heavily-black
schools, we note that some 2,700 blacks approximately 38 percent of the total
black student population attended schools where they were in majorities
ranging from 89 percent to 98 percent.

22

Finally, the City's plan 1974-75, approved by the district court, projected the

22

Finally, the City's plan 1974-75, approved by the district court, projected the
following figures for those schools (Appx. 541):

Grades % Black White Total

------ ----- ----- ----- ----23
Brogden Jr. High 7-9 20/80 85 345 430
24
Shepard Jr. High 7-9 97/3 469 15 484
25
Whitted Jr. High 7-9 95/5 478 24 502
26
Burton 1-3 78/22 319 91 410
27

Fayetteville St. 3-6 91/9 469 45 514

Pearson 1-6 98/2 455 8 463
Powe 1-6 31/69 102 222 324
Spaulding 1-6 97/3 442 14 456
Watts 1-6 44/56 83 107 190
With total enrollment at 9,700, with 6,900 blacks, the black:white ratio was still
71:29. Some 2,600 black students again representing almost 38 percent of the
total black student population were to attend six schools where, with one
exception, they were in excess of a 90 percent majority. The exception Burton
Elementary School, to have a 78:22 ratio represented the One substantial
revision in the 1970 plan, as to these nine schools, effected by the City board in
four years: Burton was paired with Holloway Street School, which theretofore
had an approximate 50:50 ratio.
That for four years at least 38 percent of the black student population attended
schools in which they were overwhelmingly in the majority mostly in the 90
percent range in a system whose total black student population rose eight
percentage points from 63 percent to 71 percent, is, we think, unacceptable. In
Medley v. School Board of City of Danville, Virginia, 482 F.2d 1061, 1063
(4th Cir. 1973), Cert. denied, 414 U.S. 1172, 94 S.Ct. 933, 39 L.Ed.2d 120
(1974), we rejected a proposed plan resulting in virtually the same kind and
degree of racial imbalance: there 42 percent of the city's black elementary
school children were to be enrolled in two schools with black majorities of 89

percent and 91 percent.

The district court was ambivalent as to the City having attained a unitary
condition. Reviewing the plan proposed by the City for the 1972-73 school
year (but not adopted because of the then-pending prayer for consolidation),
the court found as a matter of fact that, if subsequently adopted, it "will effect
substantial progress in the further desegregation of (the City Schools), although
this Court specifically refrains from deciding that such action is constitutionally
required." Wheeler, 379 F.Supp. at 1366. Further on, the court stated: "The
City of Durham has also acted in compliance with the (1970) court-approved
desegregation plan. However, several schools in the City unit are now over 90
per cent black." Id., at 1372. Finding no Per se violation therein under Swann, it
then stated: "However, the increasing racial imbalance in some schools . . .
suggests the need for some revision." Id., at 1372. While that opinion held that
the City's affirmative duty had been accomplished, Id., at 1375, the subsequent
August 1974 order "approved" the City's 1974-75 plan and further "directed"
the submission for 1975-76 of proposed revisions "with emphasis" on schools
having 80 percent or more black majorities. While the directive is consistent
with the perceived "need for some revision," it is anomalous with respect to the
court's denial of future injunctive relief on the express ground that the City
system was unitary under Green and Swann.
Swann makes it quite clear that once a system is adjudged unitary under green,
(n)either school authorities nor district courts are constitutionally required to
make year-by-year adjustments of the racial composition of student bodies once
the affirmative duty to desegregate has been accomplished . . . .
402 U.S. at 31-32, 91 S.Ct. at 1284. Only with "a showing that either school
authorities or some other agency of the State has deliberately attempted to fix or
alter demographic patterns to affect the racial composition . . ." should further
intervention be necessary. Id., at 32, 91 S.Ct. at 1284; See Wright v. Council of
the City of Emporia, 407 U.S. 451, 479, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972)
(Burger, C. J., dissenting). If we were to agree with the basic ruling that the
City system had become unitary, we could not sanction the district court's
continuing role in "directing" future revised plans to be filed for its "approval,"
but instead would have to order dismissal of the action under Swann.
The marked racial disparities here cannot be excused or explained away by
referring to demographic changes resulting from "white flight," for it is clear
that the substantial and intractable racial disparity in the listed schools existed
from the Initial implementation of the 1970 decree. In Medley, supra, rejecting

a plan which relied heavily on geographic zoning, to the substantial exclusion

of the more effective techniques set out in Swann, we held:
In the light of the history of state-enforced segregation in the Danville schools,
the marked residual disparity in the racial balance of the schools under the plan
of the District Court strongly suggests that the plan is ineffective to attain an
acceptable degree of realistic desegregation.
482 F.2d at 1063. We there also rejected, as we do here, any suggestion that
plaintiffs were insisting "that each school should mirror the racial composition
of the entire system," Medley, supra, at 1063, noting Swann's observation that "
(t)he court should scrutinize (predominantly one-race) schools, and the burden
upon the school authorities will be to satisfy the court that their racial
composition is not the result of present or past discriminatory action on their
part." 402 U.S. at 26, 91 S.Ct. at 1281.
Nothing on the record indicates that the 1970 assignments to the nine listed
schools were not mere reflections of prior state-imposed segregation which was
perpetuated by the ineffective freedom-of-choice plan.
As in Medley and earlier in Adams v. School District No. 5, Orangeburg Co., S.
C., 444 F.2d 99 (4th Cir.), Cert. denied, Winston-Salem/Forsyth County Board
of Education v. Scott, 404 U.S. 912, 92 S.Ct. 230, 30 L.Ed.2d 186 (1971), we
find that the lower court, confronted in 1972 with a request, Inter alia, for
intradistrict relief, failed to give due consideration to "the use of All techniques
for desegregation," as enumerated in Swann. Adams,444 F.2d at 101 (emphasis
added). We therefore remand for immediate formulation and implementation of
a plan specifically directed at the "elimination of one-race schools," Adams,
444 F.2d at 101, and one which is generally aimed at achieving "the greatest
possible degree of actual desegregation, taking into account the practicalities of
the situation." Davis v. Board of School Commissioners of Mobile County, 402
U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971).
II.
The initial 1972 "Motion for Further Relief" named only the Durham City
Board as a defendant. Having been granted a later motion to add the County
Board, the County Board of Commissioners, the City Council, and the State
Board of Education as defendants,16the plaintiffs then directed their
supplemental complaint to the more drastic merger or "annexation" relief
mentioned above. In the course of the trial (the city and county school cases
having been consolidated), plaintiffs adduced evidence apparently showing that

placement in 1972 of low-cost housing in the "City Out" area had created
substantial racial imbalance in a few of the elementary schools. There is
testimony by various city officials, including the city planner and the directors
of the city's Housing Authority and Redevelopment Commission, tending to
show little or no coordination among the responsible officials to avoid that kind
of impact.
Plaintiffs assert error in the failure of the lower court to grant future injunctive
relief against the City or its various agencies with respect to the location of
public housing projects. But we agree with the City Council's observation that
neither were the appropriate city housing agencies (or members thereof) named
nor was this particular issue more than subliminally before the court, given its
primary focus on the prayers for drastic inter-district relief. As Swann has
pointed out, "(o)ne vehicle can carry only a limited amount of baggage." 402
U.S. at 22, 91 S.Ct. at 1279.
Given the absence of any findings by the district court on this question, we
think it inappropriate to do more than instruct the district court that on remand
it should give plaintiffs the opportunity, if they are so advised, to file a
complaint properly directed to the responsible officials. The district court can
thereafter consider the propriety of future injunctive relief for the purpose of
insuring that future housing projects have neither a resegregative purpose or
effect.
Affirmed in part, reversed in part, and remanded with instructions.
1

See Wheeler v. Durham City Bd. of Educ., 363 F.2d 738 (4th Cir. 1966) (en
banc)

See also Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 90 S.Ct. 29,
24 L.Ed.2d 19 (1969)

See Nesbit v. Statesville City Bd. of Educ., 418 F.2d 1040 (4th Cir. 1969) (en
banc) Consolidated with Thompson v. Durham County Bd. of Educ., No.
13,583 (4th Cir.)

The City plans submitted and approved consisted in a redrawing of high school
attendance lines and pairing of two additional elementary schools with
contiguous attendance zones. The basic approach of the original 1969-1970
schemes geographic zoning has to date remained unchanged. No "satellite"
zoning or noncontiguous pairing techniques have been utilized

Historically, because of the difference in school tax rates, residents of those

portions of the County annexed by the City have been given the option to
remain within and be governed by the County Administrative School Unit as
opposed to the City Unit. Since 1955, most of the annexed areas have exercised
that option. The so-called "City In" area that part of Durham City governed by
the City school board now comprises about one-half of Durham City's
geographic area. The "City Out" area the remainder of Durham City is
governed, along with Durham County, by the County board
6

See Bradley v. School Bd. of City of Richmond, Virginia, 462 F.2d 1058 (4th
Cir. 1972), Aff'd by an equally divided court, 412 U.S. 92, 93 S.Ct. 1952, 36
L.Ed.2d 771 (1973)

Wheeler v. Durham City Bd. of Educ., 379 F.Supp. 1352 (M.D.N.C.1974)

The City's "Report" on its attendance plan for 1974-75 (filed after the July
1974 order), after summarizing the relatively minor changes that would be
made in geographic zones, stated:

A study of revision of attendance zones by the Board . . . is continuing, and if

the proposed changes in the plan approved on July 31, 1970, are approved for
the 1974-75 school year, the Board will present to the Court by January 15,
1975, a revised comprehensive plan for pupil assignments to be implemented at
the beginning of the 1975-76 school year
It is to this proposal that the above language in the court's August 1974 order
was directed.

A third question, relating to possible future injunctive relief against city

agencies responsible for low-cost housing, will be considered Infra

10

See n. 5 Supra

11

Since this is the only objection raised with respect to the County plan as
currently implemented, our rejection thereof necessarily serves to approve the
lower court's ruling that the County system is now unitary. We see no reason
why the instant action as to it should not now be dismissed

12

This larger area was comprised of the contiguous attendance zones for six
elementary schools, each of which previously served grades 1-6: Holt,
Hillandale, Glenn, and Merrick-Moore, as well as Lakeview and Bragtown

13

Dr. Yeager, the author of the plan, had been hired in 1973 by the County, and
his prior experience included consultant work and service as a Senior Civil
Rights Advisor for HEW

14

All figures are rounded off

15

All tables through 1973-74 for both systems are reproduced in Wheeler, 379
F.Supp. at 1355-59

Brogden Jr. High

Shepard Jr. High
Whitted Jr. High
Burton
Fayetteville St.
Pearson
Powe
Spaulding
Watts

16

Grades
-----7-9
7-9
7-9
1-6
3-6
1-6
1-6
1-6
1-6

%
----21/79
92/8
93/7
85/15
80/20
95/5
25/75
97/3
35/65

Black
----139
453
731
503
438
680
119
491
112

White
----511
38
54
92
111
35
349
14
210

Total
----650
491
785
595
549
715
468
505
322

Members of all defendant bodies were, in their official capacities, later made
defendants under our decision in Singleton v. Vance County Bd. of Educ., 501
F.2d 429 (4th Cir. 1974)