United States District Court, Northern District of Illinois, E.D
November 18, 1963
JAMES WILLIAM WEBB, JR., AND ANDRE WEBB, MINORS, BY JAMES R. WEBB, THEIR PARENT AND NEXT FRIEND, ET AL., PLAINTIFFS,
BOARD OF EDUCATION OF THE CITY OF CHICAGO AND BENJAMIN C. WILLIS, AS GENERAL SUPERINTENDENT OF PUBLIC SCHOOLS OF THE CITY OF CHICAGO, DEFENDANTS.
The opinion of the court was delivered by: Marovitz, District Judge.
This class action has been brought by the parents of several
Negro children presently enrolled in the public schools of
Chicago, Illinois. Plaintiffs ask upon their own behalf, and also
upon the behalf of others similarly situated, that
the Defendants, the Board of Education of the City of Chicago,
and Dr. Benjamin C. Willis, Superintendent of Schools, be
enjoined pendente lite from maintaining and requiring attendance
at racially segregated public schools.
Plaintiffs contend that the Board, and Dr. Willis, have
deliberately created and fostered a segregated school system in
Chicago, in violation of the equal protection clause of the
Fourteenth Amendment to the Constitution of the United States.
More specifically, Plaintiffs allege that Defendants have
gerrymandered the boundaries of school districts, adopted a
permissive transfer plan for white students, and constructed
additional schools in Negro areas, while failing to utilize
vacant seats in White classrooms. The Plaintiffs have submitted a
detailed affidavit from Attorney Paul Zuber of New York City,
along with numerous exhibits, in support of their motion. Mr.
Zuber has set forth data, attempting to demonstrate the
predominance of one race or the other in many Chicago schools. He
then presents statistical surveys tending to show that
overcrowding, use of branch schools and mobile classrooms, and
new building activity, are more prevalent in Negro residential
areas than in those inhabited by both races, or White persons
In response, the Defendants have submitted to this Court, the
affidavit of Defendant Willis. Dr. Willis defends the School
Board's actions with evidence that such procedures have been
necessary to efficiently administer the school system. Dr. Willis
contends that the large influx of Negroes into areas containing
low cost public housing and other factors have dictated the
Board's construction and districting policy, as it attempts to
eliminate double shifts and overcrowding. In his affidavit Dr.
Willis has categorically denied that he or his office has ever
been motivated to maintain or perpetuate racially segregated
schools. On Page 18 of Dr. Willis' affidavit, he states:
"I categorically deny that I or my office has ever
been motivated to maintain or perpetuate racially
segregated schools, nor are we maintaining and
perpetuating racially segregated schools, nor are we
committed to policies which result in racially
segregated schools. The unsupported statements made
on Page 39 of Plaintiffs' affidavit are totally
Plaintiffs have come before the bench today, asking this Court
to issue a preliminary injunction. They ask that Defendants be
enjoined from requiring Plaintiffs and their class to attend
segregated schools, from maintaining a segregated school system,
from requiring Plaintiffs and their class to attend overcrowded
public schools while seats lie empty in classrooms serving White
residential areas, and from any other acts which deny to
Plaintiffs the equal protection of the laws.
It is not necessary for the Court to determine at this time the
respective merits of these contentions. We need only note that
substantial questions of fact are raised as to whether the
segregation complained of is the result of an active and
intentional design of the Defendants. The United States Court of
Appeals for the Seventh Circuit, on October 31, 1963, upheld the
constitutionality of the "neighborhood school policy" in Bell v.
School City of Gary, Indiana, 324 F.2d 209.
"We agree with the argument of the defendants stated
as `there is no affirmative U.S. Constitutional duty
to change innocently arrived at school attendance
districts by the mere facts that shifts in population
either increase or decrease the percentage of either
Negro or white pupils.'"
The Court continued, quoting from the District Court opinion of
"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. * * *" D.C., 213 F. Supp. 819.
It would therefore appear that the only basis for equitable
relief in this case must be found in the form of an intentional
design on Defendants' behalf to maintain segregation in the
public schools. De facto segregation resulting from the
implementation of a neighborhood school policy, or residential
segregation is not enough.
A temporary injunction, especially one altering the status quo,
should not be issued unless the Plaintiffs demonstrate that there
is a great probability they will prevail. Plaintiffs must also
demonstrate that their injuries would be irreparable if the
temporary injunction were not issued. The purpose of a temporary
injunction is to prevent the destruction of Plaintiffs' rights
until such time as a hearing upon the merits may be held. In
Corica v. Ragen, 140 F.2d 496 (1944), the United States Court of
Appeals for the Seventh Circuit, quoting from Russell v. Farley,
105 U.S. 433, 26 L.Ed. 1060, said,
"A court of chancery should `* * * regard the
comparative injury which would be sustained by the
defendant, if an injunction were granted, and by the
complainant, if it were refused. * * * And if the
legal right is doubtful, either in point of law or of
fact, the court is always reluctant to take a course
which may result in material injury to either party;
* * *' * * *
"Taking all the circumstances into consideration,
including the fact that the only grounds for granting
the injunction were to be found in the unsupported,
contradicted and impeached affidavit of plaintiff, we
do not think it can be said that plaintiff had
established his right to the relief sought so clearly
as to be reasonably free from doubt, so as to warrant
an injunction prior to trial."
This Court is aware of the irreparable harm which could result
from segregation under the sanction of law. Brown v. Board of
Education of Topeka, Shawnee County, Kan, 347 U.S. 483
, 74 S.Ct.
686, 98 L.Ed. 873. However, school segregation resulting from
residential segregation, alone, is not a violation of any right
over which this Court can take cognizance. In Bell v. School City
of Gary, Indiana, supra, the Court held that there is no
Constitutional right to be integrated with persons of other
Races. The Constitution only forbids States from actively
pursuing a course of enforced segregation.
Further, irreparable harm is, by itself, insufficient to
warrant the granting of a preliminary injunction. In Vergas v.
Shaughnessy, 97 F. Supp. 335 (D.C.N.Y. 1951), an application for
an injunction which, if granted, would have prevented temporarily
Plaintiff's deportation, was denied, notwithstanding the danger
of irreparable harm. The Court, in refusing the injunction, said,
"It is a cardinal principle of equity jurisprudence that a
preliminary injunction shall not issue in a doubtful case."
Branche v. Board of Education, 204 F. Supp. 150 (E.D.N.Y. 1962)
dealt with a neighborhood school policy in Hempstead, N Y
Defendant's motion for summary judgment was denied, but the case
was subsequently suspended. Branche can be read to say that the
mere act of requiring attendance in a segregated school,
determined by numbers, constitutes State action under the
Fourteenth Amendment. That is, that all schools having a high
percentage of one race are presumptively unconstitutional. To
take this construction would seem illogical, as residential
segregation may very often lead to a predominantly Negro school
district, even when that district is drawn
with reasonable boundaries. A more intelligent approach to
Branche would lead to the conclusion that passive gerrymandering
may create an unconstitutionally segregated school. However,
there must be some affirmative action of "segregating", to
violate the Fourteenth Amendment, even if it is only the passive
refusal to redistrict unreasonable boundaries. Mere residential
segregation is not enough.
The case of Henry v. Greenville Airport Commission, 4 Cir.,
284 F.2d 631, cited by Plaintiffs, is not in point, here. In that
case, the existence of separate waiting rooms was established and
uncontradicted. Since that was the only question of fact
involved, the relief was correctly granted. In the case at bar,
however, many facts upon which Plaintiffs' right to relief
depends are in doubt. Therefore, the status quo should not be
upset until these facts are determined by the Court.
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