Lee v. O'Kelly Court Opinion

    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.

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