Lee v. O'Kelly Court Opinion
Public Court Documents
June 1, 1971

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Brief Collection, LDF Court Filings. Lee v. O'Kelly Court Opinion, 1971. 53545516-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e6646d0d-ec75-4c4f-95c0-a2ecb9a391d5/lee-v-okelly-court-opinion. Accessed April 19, 2025.
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IN THE United States Court of Appeals FOR THE FIFTH CIRCUIT N o . 3 0 4 0 4 CYNTHIA, MARY LEE, and FLORA ANN GEORGE, ETAL, Plain tiffa-Appellants, versus H. B. O’KELLY, ET AL, Defendants-Appellees. A ppeal from the United S ta tes D istrict Court for the Southern D istrict of Georgia. (June 1,1971) B efore WISDOM, C ircuit Judge, DAVIS*, Judge, and GOLDBERG, C ircuit Judge. WISDOM, C ircuit Judge: This case deals w ith re m ed ia l education p ro g ram s in a school system under going desegregation. U nfortunately, th e plaintiffs have concen tra ted too m uch of their effort here on the im proper p a st actions of the school board. The righ ts and wrongs of the specific p a s t actions a re no longer *U. S. Court of Claims, Washington, D.C., sitting by designation. 2 GEORGE, ET AL. v. O’KELLY, ET AL. the sub ject of dispute. There is, however, still a live issue. T hat is the p resen t and fu ture operation of th e rem ed ial program . We rem and the case to the d istric t court for fu rth e r consideration. The public school system of Oandler County, Georgia, is 58 percen t white and 42 percen t black. There are th ree schools in the system . P rio r to the 1970-71 school y e a r one of the schools was a. tw elve-year all-black school; one was an overw helm ingly white e lem en tary school and one ,w asr ,ap overw helm ingly white high school. D uring the w inter of 1969-70, the school system was o rdered to d ism antle its seg rega ted p rog ram and to c luster its th ree schools so; th a t all children in each grade would be in the gam e school. H aving agreed to com ply w ith the court order, the school d istric t be cam e eligible for federa l funds th a t had previously been cut off for noncom pliance .with the desegregated guidelines. i U nder Title 1 of the E lem en ta ry and Secondary E du cation Act of 1965, 20 XJ.S.C. §241ia et seq., the school system was eligible.for g ran ts am ounting to $120,000 for support of p rog ram s to m eet “the special education al needs of educationally deprived children.” In F eb ru ary 1970 the county school board decided not to apply for these funds. At the tim e of the decision the sta tu te provided that, if the funds w ere not used by the1 county for a sum m er program , they would be red istribu ted to other counties in Georgia. The board ’s reasons for de ciding to pass up the opportunity to use these funds a re uncertain. The appellants alleged th a t it was sim ply because, under the board’s incorrec t understanding GEORGE, ET AL. v. O’KELLY, ET AL. 3 of the federa l guidelines, only black children would benefit from a Title 1-funded sum m er program . P a re n ts of b lack children sued in federa l d is tric t court to requ ire the board to apply for and m ake use of the funds to conduct a su m m er program . They con tended th a t the board should be requ ired to do th is for two reasons: 1) the board ’s m otive in refusing to apply, for the funds w as unconstitutional; 2) as p a r t of its af firm ative duty to d ism antle the dual school system , the board had a duty to m ake use of the funds to provide rem ed ia l education to p rep are black students for th e ir f irs t y e a r in an in teg ra ted school system . The plaintiffs nam ed as defendants the county school superintendent, the m em bers- of the county school board, and the s ta te superin tenden t of schools. The d istric t court for the N orthern D istric t of Georgia, A tlan ta Division, w here the plaintiffs filed the action,, tran sfe rred the case to the d is tric t court for the South e rn D istric t of. Georgia. T hat court held a hearing June 10, 1970. By the tim e of the hearing, an im portan t change had occurred in the law. Money not used by the county for a sum m er p rog ram would no longer im m ediately be red istribu ted to o ther counties. This m oney would now be availab le for the school board ’s use during the regu lar 1970-71 school year. At the hearing the school superin tenden t explained the decision n o t to have a sum m er p rog ram with th ree reasons. F irst, still operating under ia m isim pression about restric tions on the composition of the sum m er p rogram , the superin tendent said the board had de 4 GEORGE, ET AL. v. O’KELLY, ET AL. cided th a t it would be b e tte r to spend the m oney during th e school y e a r when it could benefit both b lack and white educationally deprived children th an during th e su m m er w hen it could be used only fo r b lack children. Second, he siaid th a t renovations req u ired by th e change of g rade s tru c tu re in th e school buildings would p re ven t the use of the buildings for a sum m er program . Third, he said th a t the person who otherw ise would run such a p ro g ram would not be availab le during the sum m er. The d is tric t court m ade no findings on th e original m otivation of the board in deciding not to have the sum m e r progrtam. R ath er he view ed the controversy from the fac ts availab le a t the time- of the hearing , including th e change th a t allowed the board to c a rry the funds over to the reg u la r school year. The judge sta ted th a t th e problem in the case- w as not w hether to have a r e m ed ia l p rog ram but only w hen to have it. This, he held, was an adm in istr ative r a th er th an a constitutional question. And he found th a t the board ’s adm in istra tive decision w as not unreasonable, a rb itra ry , or an abuse of -discretion. The sum m er of 1970 is beyond our pow er to recall. Any possible unconstitu tional m otivation for the de cision not to have a sum m er p ro g ram during 1970’ is irre lev an t now in determ ining in junctive relief with resp ec t to a rem ed ial p ro g ram in th e C andler County schools. According to the- briefs of the- appellees, the school system has used Title I funds to run a 1970-71 reg u la r y e a r rem ed ia l p rog ram -and p lans to ru n pro g ram s during the sum m er of 1971 and during the 1971- GEORGE, ET AL. v. O’KELLY, ET AL. 5 72 school year. W ithin the fac tu al context now before us the orig inal dispute is moot. H ow ever we do not dism iss this case. D uring the h e a r ing below and in argum en t before th is Court, the plain- tiffs-appellantsi suggested th a t b lack children w ere in g re a te r need of rem ed ial education because of a long h istory of inferior education and they ra ised questions as to w hether the extensive testing conducted by the school board w ith Title I funds will be used to divide studen ts into achievem ent track s, which m igh t resu lt in the reestab lishm ent of segregation w ithin the school. Cf. Hobson v. Hansen, D.D.C. 1967, 269 F. Supp. 401; Note, “E quality of Educational Opportunity: A re ‘Com pensato ry P ro g ram s’ Constitutionally R equired?” 42 So. Calif. L. Rev. 146, 157 (1969). Also in the hearing below, the plain tiffs’ expert w itness suggested th a t inso fa r as the school board was spreading the Title I funds throughout the system ra th e r th an concen trating them on those students who a re re la tive ly m ore educationally deprived, the board w as stray ing from the purpose of Title I. On rem and, the d istric t court should hold a hearin g on the operation and planning of the C andler County’s Title I p rogram . The court should consider w hether achievem ent grouping or rem ed ial p rog ram s during the reg u la r school y e a r resu lt in rac ia l segregation w ithin the school. If so, the court should inquire w hether th is resu lts from the county’s provision of re la tively inferior education to the black com m unity in the past. If this should be the case the court should consider w ays to achieve the rem edial p rog ram without m ain- 6 GEORGE, ET AL. v. O’KELLY, ET AL. tam ing seg rega ted classroom s. F o r instance, one w ay to do this wo-uld be to concen trate rem ed ia l p ro g ram s during the sum m er. Also, if the court finds th a t b lack children have a low er educational achievem ent level because of inferior education to the b lack com m unity in the past, it should consider w hether the board ’s alloca tion of Title I funds com ports with, its duty to overcom e any special educational deprivation of b lack children due to p a s t discrim ination. See Plaquem ines Parish School Board v. United States, 5 Cir. 1969, 415 F.2d 817, 831; United S ta tes v. Jef ferson County Board of E duca tion, 5 Cir. 1966, 372 F.2d 836, . , 893, aff’d en banc,. 1967, 380 F.2d 385, 394. The purpose of Title I of the E le m en ta ry and Secondary Education Act of 1965 is con g ruen t w ith the affirm ative duty of the board to! take appropria te action to overcom e any effects of p a s t r a cial discrim ination. . , The judgm ent of the d is tric t court is VACATED and th is case is REM ANDED to the d istric t court for p ro ceedings consistent w ith this opinion. The costs, of ap peal shall be divided equally betw een the parties. Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La..