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The evidence shows that the Board has consistently followed the general policy of requiring the students to attend the school designated to serve the district in which they live regardless of race. This is clearly demonstrated by the attendance figures in the 1951-52 and 1961-62 school years in certain school districts. The Tolleston School for example, in 1951-52 had 1,698 students, 74 or 4.3% of whom were Negroes. With no change in the school boundary lines in 1961-62 the school had 1,898 students and 1,455 or 76.65% were Negroes. Another example is the Froebel School which, in the 1951-52 school year had an enrollment of 2,260 students and 1,266 or 56% were Negro. In the 1961– 62 school year the same school, with the same boundary lines, had 2,109 students and 2,004 or 95% were Negro. Beveridge Elementary School in 1951-52 had 465 students, 69 or 14.8% of whom were Negroes. In 1961-62 Beveridge had an enrollment of 470 students and 392 or 83% were Negro.

The problem in Gary is not one of segregated schools but rather one of segregated housing. Either by choice or design, the Negro population of Gary is concentrated in the so-called central area, and as a result the schools in that area are populated by Negro students. If the Negro population was proportionately scattered throughout the city, the racial percentages within the schools would be in relative proportion of Negroes to whites.

[3] The plaintiffs attempted to prove that students attending predominantly Negro Schools are discriminated against because of inferior instruction, inferior curriculum and overcrowded conditions but the evidence was unimpressive.

The evidence as to inferior instruction consisted of figures showing more nontenure teachers with lower pay in some of the predominantly Negro schools, and the results of certain achievement tests disclosing a lower standard of achievement by the students in some of these schools than by the students attending some of the predominantly white schools.

A tenure teacher in Indiana is one who has taught in a school system for at least five years. After that time he attains certain employment security which protects him from discharge, except for cause. Tenure status has nothing to do with his skill or ability as a teacher, except that his employment for the sixth year probably indicates that his first five years of service were satisfactory, otherwise he would not be retained. Since the greatest expansion of students and staff in Gary has been in the schools attended predominantly by Negroes it is only natural that more new teachers would be found there. This does not mean that these teachers are inferior. The evidence shows that the same standards are used in selecting all teachers and that in all cases the administration seeks to select the very best teacher available.

Since the salary increases for the teaching staff is based on years of service in the system, the newer teachers naturally receive less compensation, but again this has nothing to do with the teachers' ability. All teachers with the same length of service receive the same pay.

A comparison of achievement tests sheds little or no light on the quality of instruction, unless there is a corresponding showing of ability to achieve.

The only evidence of inferior curriculum was that certain elective subjects are offered in some schools and not in others. It was explained that these electives are offered on the basis of whether or not there are sufficient students interested in the course in a given school to constitute a class large enough to justify assigning an instructor.

Certain exhibits were introduced by the plaintiffs for the purpose of showing that there was overcrowding in some of the predominantly Negro schools and that the classes were larger in such schools. The defendant offered evidence to show that these exhibits were either inaccurate or misleading. In any event, the variance between class sizes in the various schools was not great. Larger classes and more crowded conditions in the Negro districts might reasonably be expected because that is the area where the greatest increase in student population has occurred in the past ten years. While the greater expansion of facilities has also been in this area, it has been difficult if not impossible, to keep up with the needs. There is no convincing evidence of any discrimination as claimed by the plaintiffs.

The plaintiffs in their briefs have relied heavily upon the case of Taylor v. Board of Education, 191 F. Supp. 181 and 2 Cir. 294 F. 2d 36, to sustain their position that the School Board has deliberately segregated the Gary Schools. The facts here are entirely different than in the Taylor case. The evidence there showed that the Board had deliberately drawn the district lines of the Lincoln School for the purpose of containing most of the Negroes and excluding most of the whites. There is no such evidence in this case and in the Court's opinion

the decision in Taylor does not apply because of lack of intent or purpose on the part of the defendant here to segregate the races in certain schools.

[4] The fact that certain schools are completely or predominantly Negro does not mean that the defendant maintains a segregated school system. See Brown v. Board of Education of Topeka, 139 F. Supp. 468. There, the three judge Court, charged with the duty of implementing the decision of the Supreme Court, 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, held, in passing upon the plan submitted by the school board for de-segregation of the Topeka schools, that a school is not segregated because it is attended by all Negro students if the district is inhabited entirely by Negroes and they are compelled to attend the school in the district in which they live.

The plaintiffs contend, however, that regardless of the motive or intent of the defendant, actual segregation of the races in the Gary schools exists because a large percentage of the Negro children are required to attend schools that are totally or predominantly Negro in composition, whereas, a large percentage of the white students attend schools that are totally or predominantly white. It is the position of the plaintiffs that regardless of school districts or the residence of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 494, 74 part of the defendant to integrate the races so as to bring about, as nearly as possible, a racial balance in each of the various schools in the system.

In support of their proposition, the plaintiffs cite language from the decision of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 494, 74 S. Ct. 686, 691, 98 L. Ed. 873, to the effect that:

"To separate them (Negroes) from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." The plaintiffs concede the question which they now urge has not been passed upon by the Supreme Court, or by any other Court where the question was specifically presented. They contend however that the language above quoted from the Supreme Court in the Brown case, together with language found in certain other cases, principally Taylor v. The Board of Education, supra, and Branche v. Board of Education, 204 F. Supp. 150, indicates that it is the policy of the law that those in charge of the administration of our schools are not only prohibited from segregating the races but they also have the affirmative duty to integrate the races and see that there is racial balance maintained in the schools under their supervision.

Without reviewing the language of the cited decisions here, it must be remembered that in Taylor the Court was dealing with a situation where it found that the School Board had deliberately segregated the races in their school district and whatever the Court said there was stated in the light of the Court's mandate to de-segregate a school which was purposely segregated. In its final analysis Taylor mandated the School Board to undo what had been illegally done. In the Branche case the Court was passing upon a motion for summary judgment filed by the Board of Education. The Court's opinion was that the Board's showing on its motion for summary judgment was not sufficiently convincing and that therefore there must be a trial on the merits. Whatever language the Court used in this posture could not be decisive of the question here.

At the trial of this case the plaintiffs offered an expert, a Dr. Max Wolff, a sociology professor with no experience in public school administration, or for that matter no experience in the field of public school education.

Dr. Wolff defined a segregated school as “any school where the percentage of Negro to white students was one-third greater or one-third less than the percentage of Negro students to white students in the entire system.” Applying his formula to the Gary schools he concluded that any school with less than 36 percent Negro students was a segregated white school and any school with more than 72 percent colored students was a segregated Negro school. Dr. Wolff cited no authority for his definition of segregated schools other than himself. Dr. Wolff's definition of a segregated school may be a good sociological definition, but the Court can find no authority which would indicate that it is a good legal definition. The Court is of the opinion that a simple definition of a segre gated school, within the context in which we are dealing, is a school which a given student would be otherwise eligible to attend, except for his race or color, or, a school which a student is compelled to attend because of his race

[5] The neighborhood school which serves the students within a prescribed district is a long and well established institution in American public school education. It is almost universally used, particularly in the larger school sys

or color.

tems. It has many social, cultural and administrative advantages which are apparent without enumeration. With the use of the neighborhood school districts in any school system with a large and expanding percentage of Negro population, it is almost inevitable that a racial imbalance will result in certain schools. Nevertheless, I have seen nothing in the many cases dealing with the segregation problem which leads me to believe that the law requires that a school system developed on the neighborhood school plan, honestly and conscientiously constructed with no intention or purpose to segregate the races, must be destroyed or abandoned because the resulting effect is to have a racial imbalance in certain schools where the district is populated almost entirely by Negroes or whites. On the other hand, there are many expressions to the contrary, and these expressions lead me to believe that racial balance in our public schools is not constitutionally mandated.

In its original opinion in Brown v. Board of Education, supra, the Supreme Court set the case for further argument on the question of how its decision should be implemented. One of the questions to be re-argued was:

"4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment

“'(a) would a decree necessarily follow providing that, within the limits set by normal geographic districting, Negro children should forthwith be admitted to schools of their choice," (emphasis added). (see

footnote 2, 349 U.S. 298, 75 S.Ct. 755) Following re-argument, the Supreme Court handed down the second decision in the Brown case, 349 U.S. 294, 75 S.Ct. 753, which was in effect its instructions to the District Courts involved as to how its policy of desegregation should be carried out. In instructing the District Courts, the Court said in part:

"While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954 ruling. * * * To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non

racial basis, * * *". (Emphasis added) These instructions clearly indicate that the Supreme Court intended that the desegregation policy was to be carried out within the framework of "school districts and attendance areas". In carrying out the instructions of the Supreme Court, the three-judge District Court in the District of Kansas said in Brown v. Board of Education, 139 F.Supp. 468:

"It was stressed at the hearing that such schools as Buchanan are allcolored schools and that in them there is no intermingling of colored and white children. Desegregation does not mean that there must be intermingling of the races in all school districts. It means only that they may not be prevented from intermingling or going to school together because of race or color.

If it is a fact, as we understand it is, with respect to Buchanan School that the district is inhabited entirely by colored students, no violation of any constitutional right results because they are compelled to attend the

school in the district in which they live." By this expression the District Court clearly indicated that even in a school system that had been segregated and where the burden was on the Board to show that their desegregation plan eliminated racial segregation as such, there could still be all colored schools if all of the students living in a properly constituted school district were Negroes, and that no constitutional rights were violated because students were compelled to attend the school in the disrict in which they lived. In the recent case of Evans v. Buchanan, 207 F. Supp. 820, the Court said:

"The court holds that the States do not have an affirmative, constitutional duty to provide an integrated education. The pertinent portion of the Fourteenth Amendment of the United States Constitution reads, 'nor [shall any State) deny any person within its jurisdiction the equal protection of the laws.' This clause does not contemplate compelling action; rather, it is a prohibition preventing the States from applying their laws unequally.

"When interpreting the equal protection clause in the Brown case the Supreme Court held only that a State may not deny any person on acconnt

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of race the right to attend a public school. Chief Justice Warren, speaking for the court said, "To separate them [Negroes) from others * * * solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.' (Emphasis supplied.) The clear implication of this statement is that if races are separated because of geographic or transportation considerations or other similar criteria, it is no concern of the Federal Constitution. Thus, discrimination is forbidden but integration is not

compelled.” The Court finds no support for the plaintiffs position that the defendant has an affirmative duty to balance the races in the various schools under its jurisdiction, regardless of the residence of students involved. Indeed, their own evidence is that such a task could not be accomplished in the Gary schools. Their expert, Dr. Wolff, submitted a proposal for balancing the races in most of the schools by eliminating four of the eight high schools now existing and building three new high schools and by transferring approximately 6,000 students from their neighborhood school to other schools, some of them great distances away. Even if his plan were adopted, Roosevelt School would still be 100% Negro and Bailly by his definition, would continue to be a segregated white school. In developing his plan, Dr. Wolff, in effect, admitted that he considered only the desirability of creating a racial balance in the schools and that costs, safety factors and other considerations were at least secondary to his main objective.

Unfortunately, the problems confronting the school administration are not as simple as Dr. Wolff's solution. For example, the financial burden of transporting 6,000 students from their home neighborhood to another would be a matter of considerable concern to the administrators of an already heavily taxed and indebted school district. Moreover, the administrative problem of choosing those who would be transferred and those who would not in a rapidly growing school system where the racial complexion of the various neighborhoods is constantly changing would be almost impossible to solve.

Furthermore, requiring certain students to leave their neighborhood and friends and be transferred to another school miles away, while other students, similarly situated, remained in the neighborhood school, simply for the purpose of balancing the races in the various schools would in my opinion be indeed a violation of the equal protection clause of the Fourteenth Amendment.

For reasons stated herein, the Court finds no violation by the defendant of the plaintiffs' constitutional rights.

Defendant's counsel will submit Findings of Fact, Conclusions of Law and Order consistent with this Opinion on or before February 11, 1963.

Senator Ervin. I might add the opinion contains some very sensible observations by Judge Beamer with respect to neighborhood schools.

Attorney General KENNEDY. I want to say how impressed I am by your strong feelings about the neighborhood schools.

Senator ERVIN. I thank you.

Attorney General KENNEDY. And I am happy that that strong feeling is going to be applied to the North and that it also will be applied to the South.

Senator Ervin. And to show that some people in New York City agree with me, I want to have printed in the record at this point å clipping form from the New York Times for August 2, 1963, which states that the parents of certain children there have brought suit in the State supreme court in Brooklyn to obtain an injunction to prevent the transfer of their children from their neighborhood schools into other schools and that the suit is based upon my conviction-rather, their conviction which harmonizes with mine and Judge Beamer'sthat the action of a school board denying children the right to attend neighborhood schools and transporting them elsewhere to mix races in the schools is unconstitutional.

The CHAIRMAN (presiding). That will be done.

(The document referred to follows:)

[From the New York Times, Aug. 2, 1963) SUIT FOR WHITE PUPILS CHARGES DISCRIMINATION-FOUR BROOKLYN PARENTS PROTEST CITY'S RACIAL Quota PLAN IN NEW JUNIOR HIGH

(By Leonard Buder) The board of education has been accused of racial discrimination against white children in a suit brought by four white parents in State supreme court in Brooklyn.

The suit charged that the constitutional rights of white parents and their children were violated and that Negro parents and children were granted "superior" privileges by the school system.

The_court action seeks to restrain the board from assigning white pupils from East Flatbush to a new junior high school in Brownsville on the basis of a racial “quota system.” Under the board's zoning plan, which the parents are trying to upset, the new school would open in the fall with 35.2 percent Negroes, 33.6 percent Puerto Ricans, and 31.2 percent “others."

According to school officials, the suit is probably the first ever brought against the city system on the ground that white children were being discriminated against because of their race and color. Previous suits have charged discrimination against Negroes and Puerto Ricans.

The officials did not comment on the court action, but they noted that if the court upheld the parents, the decision would have a great effect on the system's integration efforts.

The complaint, which was served on school officials earlier in the week, is answerable on August 20.

The suit was brought by Mr. and Mrs. Isidore Balaban, of 749 East 93d Street and Mr. and Mrs. Arthur Gottlieb, of 540 Rockaway Parkway, both of Brooklyn. Their petition said that they were acting in behalf of Mark Balaban and Joel Gottlieb, both 12 years old, and 49 other children, and their parents or guardians.

The parents are being represented by Frank H. Gordon, of the law firm of Samet, Gordon & Riseman. The papers, which were served on the members of the board and top school administrators, were turned over to Leo A. Larkin, the city's corporation counsel.

The Brownsville school involved in the dispute is Junior High 275, at Linden Boulevard and Rockaway Avenue. It has figured in two recent protests over zoning policies.

On March 29, East Flatbush parents kept 7,000 children out of 13 neighborhood schools to protest plans to transport children from the area to Junior High School 275 in the fall. On June 15, there was a second sit-out demonstration, this time involving 3,600 children.

Brownsville parents have also objected to the zones drawn for Junior High School 275, but on different grounds. They have contended that a school opening with a student body of nearly 70 percent Negro and Puerto Rican was likely to become totally “segregated” because white parents would withdraw their children from a school in which they would be in a minority.

In their petition, the two white couples charged that the zoning plan—a modification of one originally proposed by the assistant superintendent in the areaignored traditional neighborhood lines, traffic conditions, topographical barriers, and other factors.

They said that their children and others from East Flatbush would normally have attended Junior High School 285 at Beverly Road and Ralph Avenue. To take the place of the whites who will go to the Brownsville school, the petition said, the board would have to take Negro children to East Flatbush by bus.

The parents charged that the board's quota system was based “upon unreasonable, unconstitutional ethnic and racial considerations."

They added that the action deprived the white children of “the right to associate with their friends and to attend a public school in their neighborhood.”

Senator ERVIN. I shall not dwell on titles IV and V. Title IV establishes the Community Relations Services.

Attorney General KENNEDY. May I just say, Senator, going back to the schools and the need for this legislation, that we didn't really

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