EVELYN R. ELLIS, A MINOR, ET AL., PLAINTIFFS-APPELLANTS,

v.

THE BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, FLORIDA, DEFENDANT-APPELLEE

BELL, Circuit Judge: The issue presented in this case is whether the Orange County Florida public school system is now unitary. The answer depends on a review of the posture of the system in light of two controlling decisions of the Supreme Court.1 In Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, the mechanics of what must be done to bring about a unitary system were outlined. They were stated in terms of eliminating the racial identification of the schools in a dual system in six particulars: composition of student bodies, faculty, staff, transportation, extracurricular activities, and facilities. 391 U.S. at 435, 88 S.Ct. It was such dual systems, organized and operated by the states acting .through local school boards and school officials, which were held unconstitutional in Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Brown I), and which were ordered abolished in Brown v. Board of Education, 1955, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (Brown II).

In Green the court spoke in terms of the whole system — of converting to a unitary, nonracial school system from a dual system. Then, in Alexander v. Holmes County Board of Education, 1969, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19, the court pointed to the end to be achieved. The result, if a constitutionally acceptable system may be said to exist, must be that the school system no longer operates as a dual system based on race or color but as a “unitary school * * * [system] within which no person is to be effectively excluded from any school because of race or color.” 396 U.S. at p. 20, 90 S.Ct. at p. 30, 24 L.Ed.2d at p.

21.

Tested in this frame of reference, we conclude that the Orange County school system falls short of being a unitary system only in one respect: A part of the student desegregation plan. It follows that the motion for injunction pending appeal will be denied so as to afford the district court, along with the school board, an opportunity to complete the conversion from a dual to a unitary system. We take the case for final de cisión on the merits.2 The judgment of the district court will be affirmed in part, reversed in part, and the case remanded to the district court with direction.

I.

THE ORANGE COUNTY SCHOOL SYSTEM This system covers the whole of Orange County including the urban areas of Orlanda, Winter Park, Winter Garden and Apopka, as well as rural areas embraced in a county having a land area of 910 square miles, or almost the size of Rhode Island (1,049 square miles).

The system is comprised of 26 secondary schools, 66 elementary schools, 3 vocational schools and 3 special education schools, or a total of 98 separate schools. There are 68,012 white and 14,856 Negro students in the system, or a total of 82,-868 students as of the present time (February 2, 1970).

The racial ratio of students is approximately 82 per cent white -18 per cent Negro. There are a total of 3,563 teachers in the system, 2,913 white and 650 Negro, or much the same racial ratio as students.

On February 1, teachers were transferred so as to establish a substantial racial ratio in each school.3 As an example, Jones High School which has a student population of 1,136 Negro students and 121 white students, now has a faculty composed of 66 white teachers and 14 Negro teachers, 82.5 per cent white and 17.5 per cent Negro. The greatest percentage departure in the system (Orange Center Elementary School) from the system-wide faculty ratio would involve the change of three faculty positions to be exact. Attached as Appendix I is the present faculty population by school and race. In our recent decision in Singleton v. Jackson Municipal Separate School District, 5 Cir., 1969, 419 F. 2d 1211 (consolidated cases en banc) [Nos. 26285 et al., dated December 1, 1969], in order to mandate compliance with the Green and Alexander v. Holmes County decisions, we required, not later than February 1, 1970, that the faculty and staff be desegregated on the following basis: “Effective not later than February 1, 1970, the principals, teachers, teacher-aides and other staff who work directly with children at a school shall be so assigned that in no case will the racial composition of a staff indicate that a school is intended for Negro students or white students. For the remainder of the 1969-70 school year the district shall assign the staff described above so that the ratio of Negro to white teachers in each school, and the ratio of other staff in each, are substantially the same as each such ratio is to the teachers and other staff, respectively, in the entire school system.” The Orange County system has complied with this directive as to faculty and staff. It has also agreed ,to comply in full with the Singleton provision as to continuing non-discriminatory practices in maintaining and replacing faculty and staff. We also required that transportation systems, in those school districts having transportation systems, be designed to insure the transportation of all eligible pupils on a non-segregated and otherwise non-discriminatory basis. Orange County has been in compliance with this di rective since 1964. In addition, a bi-racial committee will review the transportation system from time to time to insure non-discriminatory operation.4 It also appears that all extracurricular activities, including sports, are being operated on a non-segregated basis and this is likewise true as to facilities. The requirement of Singleton that all school construction, school consolidation and site selection (including the location of any temporary classroom) in the system be done in a manner which will prevent the recurrence of the dual school structure by taking into consideration residential housing patterns has also been adopted by Orange County. The bi-racial committee will consider and review matters falling into this category. Fn. 4, supra. These facts demonstrate full compliance with five of the six criteria of Green: Faculty, staff, transportation, extracurricular activities and facilities, leaving only the question of student body composition. In order to facilitate the integration of student bodies, we required a majority to minority transfer policy in Singleton as follows: ‘The school district shall permit a student attending a school in which his race is in the majority to choose to attend another school, where space is available, and where his race is in the minority.” This policy is designed to facilitate the integration of all-white and all-Negro student body schools. The Orange County system has exceeded this directive. A majority to minority transfer rule has been promulgated wherein any transferee is to be furnished free transportation, and all parents have been notified of this provision.

Moreover, the transferee is given absolute priority for space and thus the transfer is not dependent on space being available. Again, under the plan of desegregation, the bi-racial committee will review the operation of this rule from time .to time in the interest of fairness and effectiveness. Fn. 4, supra. This leaves for discussion the question whether the Orange County plan of student desegregation is deficient to the extent that it prevents the systems from being unitary. It is urged that all student assignment is on a neighborhood school basis, subject, of course, to the majority to minority transfer rule. The defendant school officials wish to maintain such a basis of assignment. It was not clear from the opinion and findings of the district court that the defendants were in fact maintaining a neighborhood school system as we would define such a system. A neighborhood school system cannot be a system where variances are allowed to permit children a choice of not attending the nearest school to his or her residence and thereby avoiding assignment to a formerly Negro or formerly white school as the case may be. The sum of the present assignment system is that ten elementary schools and one junior high school remain with all-Negro student bodies. There is no high school with an all-Negro student body. It appears that 7,518 Negro students attend these eleven schools (ten elementary and one junior high) with the result that 51 per cent of the total of 14,856 Negro students are assigned to schools having all-Negro student bodies.5 In order to have full facts available, as to neighborhood assignment and the results obtained on a school to school basis, we required the district court, by order dated January 30, 1970, to file supplemental findings of fact within five days addressed to ,the specifies. They were promptly filed after a further hearing in the district court on short notice. These supplemental findings demonstrate that variances are now allowed from the neighborhood school assignment system with the result that some white students are attending schools located greater distances from their home than nearby schools where the student body is all Negro. As will be seen, this cannot be permitted in a school system operated on a neighborhood basis. If not permitted in Orange County, eight of the eleven schools having all-Negro student bodies will have integrated student bodies. The percentage of Negro students attending schools having integrated student bodies will increase from 49 to 84 per cent.

Moreover, the increase will be even greater if students avail themselves of the majority to minority transfer rule.

II.

THE NEIGHBORHOOD SCHOOL SYSTEM In the typical southern dual school system in operation prior to Brown I and II, the student was assigned to attend the school nearest his or her home. This so-called neighborhood assignment system was designed to eliminate transportation costs and to permit the student to remain as near home as possible. Under the dual system as ruled unconstitutional, a Negro student would be assigned to the nearest Negro school to his or her home and a white student would be assigned to the nearest white school. Negro students might pass a white school or schools en route to a Negro school. White students might pass a Negro school or schools en route to the white school. Under a neighborhood assignment basis in a unitary system, the student must attend the nearest school whether it be a formerly white school or a formerly Negro school. Orange County is generally using this approach but it is now apparent, under the current plan, that it is not being correctly observed. As stated, based on the supplemental findings of fact, it appears that a true neighborhood assignment system, assigning students to the school nearest the student’s home up to the capacity of the given school, will result in the desegregation of eight of the remaining eleven all-Negro student body schools in ,the Orange County system, leaving three elementary schools. In four of these eight schools, the number of whites assigned would be somewhat greater if an equidistance rule between schools was used as a basis for assignment rather than the capacity of the school.6 This would necessitate, however, increasing the size of the four schools in question. Stated differently, under equidistance assignment, zone lines would be located equi-distant between two schools and all students within ,the zone would attend a given school without regard to the capacity of the school. On the other hand, under the nearest school to student assignment basis, the assignment would be limited by the capacity of the school, and those unable to be accommodated would go to the next nearest school to the home.

We hold that the assignment system must take into consideration the existing capacity of the schools. Whether to expand present facilities is a question for the school authorities. We also hold that the neighborhood system, based on school capacity, must be observed without exception. This will prevent any variance based on traffic conditions, such as are disclosed in the supplemental findings of fact with respect to 53 students who should go to Callahan school, or by. zone line locations as is the case with five children who should be assigned to the Webster Avenue school. Variances by arbitrary zone lines, or for reasons of traffic, while reasonable on their face, may destroy the integrity and the stability of the entire assignment plan. If Orange County wishes to maintain a neighborhood assignment system, then it must do so without variances. Each student in the system must be assigned to attend the school nearest his or her home, limited only by the capacity of the school, and then to the next nearest school. There are a number of all-white student body schools in the Orange County system. This is due to the preponderant white student population (82 per cent), and to residential patterns. The three all-Negro student body schools which will remain, if the neighborhood assignment system is properly invoked, are also the result of residential patterns. The majority to minority transfer provision under the leadership of the bi-racial committee is a .tool to alleviate these conditions now. Site location, also under the guidance of the bi-racial - committee, will guarantee elimination in the future. In addition, open housing, Title VIII, Civil Rights Act of 1968, 42 U.S.C.A. § 3601 et seq., Jones v. Alfred H. Mayer Co., 1968, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, will serve to prevent neighborhood entrapment. A view of the student body status of the eleven schools which now have all-Negro student bodies, once this order has been effectuated, can be had from Appendix II, attached. The present status of all of the schools in ,the system is reflected in Appendix III. The figures shown have not been adjusted to reflect what we are now requiring.

III.

DEFICIENCIES TO BE REMEDIED We conclude that five of the six elements which go to make up a unitary system have been accomplished in the Orange County system: faculty, staff, transportation, extracurricular activities, and facilities.

We conclude also that the sixth element, student desegregation, will be accomplished once the district court requires and ascertains as a fact that the neighborhood student assignment system, based on the definition herein contained, is invoked and the transfers made necessary thereby have been made.7 Once done, and when the district court, by the standards herein stated, has made its own conclusion as to the system being unitary, the district court must retain jurisdiction for a reasonable time to insure that the system is operated in a constitutional manner. As the Supreme Court said in Green, “* * * whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that the state-imposed segregation has been completely removed.” 391 U.S. at 439, 88 S.Ct. at 1695.

Affirmed in part; reversed in part; remanded with direction. APPENDIX I Orange County Public Schools > INSTRUCTIONAL POSITIONS AS OF 1-27-7(1 / Total Secondary Schools White Black 63 Apopka Memorial 54 9 39 Apopka Junior 30 9 86 Boone 74 12 49 Carver Junior 41 8 49 Cherokee Junior 43 6 106 Colonial 92 14 58 Conway Junior 50 8 86 Edgewater 74 12 88 Evans 76 12 54 Glenridge Junior 47 7 54 Howard Jimior 47 7 64 Jackson Junior 56 8 80 Jones 66 14 51 Lakeview 44 7 50 Lee Junior 43 7 37 Lockhart Junior 32 5 41 Maitland Junior 36 5 49 Meadowbrook Junior 44 5 55 Memorial Junior 48 7 67 Mid-Florida Tech 58 9 100 Oak Ridge 87 13 49 Ocoee 43 6 53 Robinswood Junior 46 7 52 Union Park Junior 45 7 31 Vocational 27 4 64 Walker 58 6 36 Winter Park Junior 31 5 121 Winter Park Senior 105 16

Rule 2, FRAP. . The transfers are complete with the exception of 25 teachers whose transfer orders are being reviewed on the basis of hardship. . The bi-racial committee is constituted by the district court from names submitted by the parties to this suit. The membership of thirty will be divided equally between whites and Negroes. The chairmanship is to alternate annually between a white chairman and a Negro chairman. The committee is to review the operation of the transportation system and the majority to minority transfer rule, and also is charged with responsibility in the area of selecting school sites. The committee is authorized to hold hearings and make recommendations to the school board in connection with any of these activities. . Five of the eleven schools have three or less white students in attendance but we, as did the district court, considered these as schools with all-Negro student bodies. . There would be 44 additional white students in Orange Center, 143 additional in Webster, 9 in Wheatley, and 90 in Carver. . Under the facts of this case, it happens that the school board’s choice of a neighborhood assignment system is adequate to convert the Orange County school system from a dual to a unitary system. This decision does not preclude the employment of differing assignment methods in other school districts to bring about unitary systems. There are many variables in the student assignment approach necessary to bring about unitary school systems. The answer in each case turns, in the final analysis, as here, on all of the facts including those which are peculiar to the particular system. ‘