The Gould (Arkansas) School District, which has a population of
about 60% Negroes, with no residential segregation, maintains two
combination elementary and high schools located about ten blocks
apart in the district's only major town. In the 1964-1965 school
year, the schools were totally segregated. As in
Green v.
County School Board, ante, p.
391 U. S. 430, the
School Board in 1965 adopted a "freedom of choice" plan in order to
remain eligible for federal financial aid. The plan applies to all
school grades, and pupils are required to choose annually between
the schools; those not choosing are assigned to the school
previously attended. No white student has sought to enroll in the
all-Negro Field Schools in three years, and although about 85 Negro
students were enrolled in the formerly all-white Gould Schools in
1967, over 85% of the Negro pupils still attend the all-Negro Field
Schools. In the first year under the plan, applications for certain
grades at the Gould Schools exceeded available space, and
applications of 28 Negroes were refused. This action was brought on
behalf of some of them for injunctive relief against their being
required to attend the Field Schools, the provision of inferior
school facilities for Negroes, and respondents' "otherwise
operating a racially segregated school system." During the pendency
of the case, plans were made to replace the high school building at
Field Schools. Petitioners sought to enjoin that construction,
contending that it should be built at the Gould site to avoid
continued segregation. The District Court denied all relief and
dismissed the complaint, ruling that, since the "freedom of choice"
plan was adopted without court compulsion, the plan was approved by
the Department of Health, Education, and Welfare, and some Negroes
had enrolled in the Gould Schools, the plan was not a pretense or a
sham. The Court of Appeals affirmed the dismissal, suggesting that
the issue of the adequacy of the plan or its implementation was not
raised in the District Court. Since construction of the high school
at the Field site was nearing completion, petitioners modified
their position and urged the Court of Appeals to require conversion
of the Gould Schools to a desegregated high school and the Field
site to a
Page 391 U. S. 444
desegregated primary school. The Court of Appeals rejected this
proposal, since it was not presented to the trial court for
consideration.
Held:
1. Since the issue of the adequacy of the "freedom of choice"
plan was before the District Court in the prayer of the complaint
to enjoin respondents' "otherwise operating a racially segregated
school system," and the District Court and the Court of Appeals
considered the merits of the plan, the question of the adequacy of
"freedom of choice" is properly before this Court. P.
391 U. S.
447.
2. As in
Green v. County School Board, supra, the
school system remains a dual system, and the plan is inadequate to
convert it to a unitary, nonracial system. P.
391 U. S.
447.
3. On remand, petitioners may present their proposal for
converting one school to a desegregated high school and the other
to a desegregated primary school. P.
391 U. S.
448.
4. The District Court's dismissal of the complaint was an
improper exercise of discretion, and inconsistent with that court's
responsibility under
Brown. v. Board of Education,
349 U. S. 294, to
retain jurisdiction
"to insure (1) that a constitutionally acceptable plan is
adopted, and (2) that it is operated in a constitutionally
permissible fashion so that the goal of a desegregated, nonracially
operated school system is rapidly and finally achieved."
Kelley v. Altheimer, 378 F.2d 483, 489. P.
391 U. S.
449.
381 F.2d 252, reversed and remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case presents the question of the adequacy of a "freedom of
choice" plan as compliance with
Brown
v.
Page 391 U. S. 445
Board of Education, 349 U. S. 294
(
Brown II), a question also considered today in No. 695,
Green v. County School Board of New Kent County, ante, p.
391 U. S. 430. The
factual setting is very similar to that, in
Green.
This action was brought in September, 1965, in the District
Court for the Eastern District of Arkansas. Injunctive relief was
sought against the continued maintenance by respondent Board of
Education of an alleged racially segregated school system. The
school district has an area of 80 square miles and a population of
some 3,000, of whom 1,800 are Negroes and 1,200 are whites. Persons
of both races reside throughout the county; there is no residential
segregation. The school system consists of two combination
elementary and high schools located about 10 blocks apart in Gould,
the district's only major town. One combination, the Gould Schools,
is almost all white, and the other, the Field Schools, is
all-Negro. In the 1964-1965 school year, the schools were totally
segregated; 580 Negro children attended the Field Schools and 300
white children attended the Gould Schools. Faculties and staffs
were and are segregated. There are no attendance zones, each school
complex providing any necessary bus transportation for its
respective pupils.
The state-imposed segregated system existed at the time of the
decisions in
Brown v. Board of Education, 347 U.
S. 483,
347 U. S. 349
U.S. 294. Thereafter, racial separation was required by School
Board policy. As in
Green, respondent first took steps in
1965 to abandon that policy to remain eligible for federal
financial aid. The Board adopted a "freedom of choice" plan
embodying the essentials of the plan considered in
Green.
It was made immediately applicable to all grades. Pupils are
required to choose annually between the Gould Schools and the Field
Schools and those not exercising a choice are assigned to the
school previously attended.
Page 391 U. S. 446
The experience after three years of operation with "freedom of
choice" has mirrored that in
Green. Not a single white
child has sought to enroll in the all-Negro Field Schools, and,
although some 80 to 85 Negro children were enrolled in the Gould
Schools in 1967, over 85% of the Negro children in the system still
attend the all-Negro Field Schools.
This litigation resulted from a problem that arose in the
operation of the plan in its first year. The number of children
applying for enrollment in the fifth, tenth, and eleventh grades at
Gould exceeded the number of places available, and applications of
28 Negroes for those grades were refused. This action was thereupon
filed on behalf of 16 of these children and others similarly
situated. Their complaint sought injunctive relief, among other
things, against their being required to attend the Field Schools,
against the provision by respondent of public school facilities for
Negro pupils inferior to those provided for white pupils, and
against respondent's "otherwise operating a racially segregated
school system." While the case was pending in the District Court,
respondent made plans to replace the high school building at Field
Schools. Petitioners sought unsuccessfully to enjoin construction
at that site, contending that the new high school should be built
at the Gould site to avoid perpetuation of the segregated system.
Thereafter the District Court, in an unreported opinion, denied all
relief and dismissed the complaint. In the District Court's view,
the fact that respondent had adopted "freedom of choice" without
the compulsion of a court order, that the plan was approved by the
Department of Health, Education, and Welfare, and that some Negro
pupils had enrolled in the Gould Schools "seems to indicate that
this plan is more than a pretense or sham to meet the minimum
requirements of the law." In light of this conclusion, the District
Court held that petitioners were not entitled to the
Page 391 U. S. 447
other relief requested, including an injunction against building
the new high school at the Field site. The Court of Appeals for the
Eighth Circuit affirmed the dismissal. 381 F.2d 252. We granted
certiorari, 389 U.S. 1034, and set the case for argument following
No. 740,
Monroe v. Board of Commissioners of the City of
Jackson, post, p. 450.
The Court of Appeals suggested that
"no issue on the adequacy of the plan adopted by the Board or
its implementation was raised in the District Court. Issues not
fairly raised in the District Court cannot ordinarily be considered
upon appeal."
381 F.2d at 257. Insofar as this refers to the "freedom of
choice" plan, the suggestion is refuted by the record. Not only was
the issue embraced by the prayer in petitioners' complaint for an
injunction against respondent "otherwise operating a racially
segregated school system," but the adequacy of the plan was tried
and argued by the parties and decided by the District Court.
Moreover, the Court of Appeals went on to consider the merits,
holding, in agreement with the District Court, that "we find no
substantial evidence to support a finding that the Board was not
proceeding to carry out the plan in good faith."
Ibid.
[
Footnote 1] In the
circumstances, the question of the adequacy of "freedom of choice"
is properly before us. On the merits, our decision in
Green v.
County School Board, supra, establishes that the plan is
inadequate to convert to a unitary, nonracial school system. As in
Green,
"the school system remains a dual system. Rather than further
the dismantling of the dual system, the plan has operated simply to
burden children and their parents with
Page 391 U. S. 448
a responsibility which
Brown II placed squarely on the
School Board. The Board must be required to formulate a new plan
and, in light of other courses which appear open to the Board, such
as zoning, fashion steps which promise realistically to convert
promptly to a system without a 'white' school and a 'Negro' school,
but just schools."
Id. at 441-442.
The petitioners did not press in the Court of Appeals their
appeal from the denial of their prayer to have the new high school
facilities constructed at the Gould Schools site, rather than at
the Field Schools site. Due to the illness of the court reporter,
there was delay in the filing of the transcript of the proceedings
in the District Court and meanwhile the construction at the Field
Schools site was substantially completed. Petitioners therefore
modified their position and urged in the Court of Appeals that
respondent be required to convert the Gould Schools to a completely
desegregated high school and the Field site to a completely
desegregated primary school. The Court of Appeals rejected the
proposition on the ground that it
"was not presented to the trial court and no opportunity was
afforded the parties to offer evidence on the feasibility of such a
plan, nor was the trial court given any opportunity to pass
thereon."
381 F.2d at 254. Since there must be a remand, petitioners are
not foreclosed from making their proposal an issue in the further
proceedings. [
Footnote 2]
Page 391 U. S. 449
Finally, we hold that, in the circumstances of this case, the
District Court's dismissal of the complaint was an improper
exercise of discretion. Dismissal will ordinarily be inconsistent
with the responsibility imposed on the district courts by
Brown
II. 349 U.S. at
349 U. S.
299-301. In light of the complexities inhering in the
disestablishment of state-established segregated school systems,
Brown II contemplated that the better course would be to
retain jurisdiction until it is clear that disestablishment has
been achieved. We agree with the observation of another panel of
judges of the Court of Appeals for the Eighth Circuit in another
case that the district courts
"should retain jurisdiction in school segregation cases to
insure (1) that a constitutionally acceptable plan is adopted, and
(2) that it is operated in a constitutionally permissible fashion
so that the goal of a desegregated, nonracially operated school
system is rapidly and finally achieved."
Kelley v. Altheimer, 378 F.2d 483, 49.
See also
Kemp v. Beasley, 389 F.2d 178.
The judgment of the Court of Appeals is reversed and the case is
remanded to the District Court for further proceedings consistent
with this opinion and with our opinion in
Green v. County
School Board, supra.
It is so ordered.
[
Footnote 1]
Compare the developing views of the feasibility of
"freedom of choice" plans expressed by various panels of the Court
of Appeals for the Eighth Circuit in
Kemp v. Beasley, 352
F.2d 14;
Clark v. Board of Educational, 374 F.2d 569;
Kelley v. Altheimer, 378 F.2d 483;
Kemp v.
Beasley, 389 F.2d 178, and
Jackson v. Marvell School
District No. 2, 389 F.2d 740.
[
Footnote 2]
The Court of Appeals, while denying petitioners' request for
relief on appeal, did observe that
"there is no showing that the Field facilities, with the new
construction added, could not be converted at a reasonable cost
into a completely integrated grade school or into a completely
integrated high school when the appropriate time for such course
arrives. We note that the building now occupied by the
predominantly white Gould grade school had originally been built to
house the Gould High School."
381 F.2d at 255.
