Duffy, Senior Circuit Judge, Kiley and Swygert, Circuit Judges. Duffy, Circuit Judge (dissenting).
This is an appeal by defendants from a preliminary injunction order in a civil rights action brought by the United States Attorney General under 42 U.S.C. § 2000c-6(a) to desegregate grammar schools in Illinois School District 151. We affirm the preliminary injunctive order for the government, and remand for further proceedings upon the government's motion for permanent injunction.
The District embraces parts of the cities of Phoenix, South Holland and Harvey -- all in Thornton Township, Cook County, Illinois. Six schools are operated in the District: Madison, Taft, Coolidge, Roosevelt, Eisenhower and Kennedy. Madison, Taft, Roosevelt and Eisenhower accommodate children from kindergarten through eighth grade. Coolidge serves children in third through eighth grades, and Kennedy, immediately adjacent to Coolidge, serves kindergarten through second grade.
Before the Roosevelt School was built in 1934, the only school in the District -- then a sparsely populated farming area -- was the Phoenix School, with a student body 95% White and 5% Negro. The Coolidge School was built in 1936, two years after the Roosevelt School, to replace the old Phoenix School. Constantly increasing population in the District required additions to Roosevelt and Coolidge and construction of four new schools, Madison in 1957, Eisenhower in 1960, and Taft and Kennedy, both in 1966. The Coolidge and Kennedy Schools are adjacent and are located in the northwest part of the District in the city of Phoenix; Taft is southwest of Phoenix in the city of Harvey; Roosevelt, Madison and Eisenhower are located in South Holland, in the area east of Phoenix.
While the population increases were uniform throughout the District, the increase of the Negro population in Phoenix changed the racial makeup of the Coolidge School so that in 1948 the enrollment was 30% Negro and 70% White. Since the school year 1956-57, the enrollment at Coolidge, and since 1966 at Coolidge and Kennedy combined, has been about 99% Negro. Since no Negroes presently reside or have ever resided in the Harvey or South Holland area outside of Phoenix, the population of the area of the four schools, in that area, is "almost exclusively" White.*fn1
Before this suit was filed, charges were made to the Illinois Superintendent of Public Instruction and the United States Department of Health, Education and Welfare, that the School District was deliberately pursuing the policy of segregating Negro pupils and teachers from White schools on the sole basis that they were Negroes. The Superintendent and the Department both found that the evidence did not support the charges. This suit followed, seeking preliminary and permanent injunctions against racial segregation of pupils in the School District. After a lengthy hearing, the district court found substantially that "defendants and their predecessors" had failed to take steps to overcome the effects of past racial discrimination and had engaged in purposeful segregation policies and practices so as to segregate pupils on the basis of "race and color."*fn2
The district court made detailed findings of fact which are for the most part unchallenged here. As ultimate facts the court found substantially that before 1964 defendants' predecessors had segregated Negro from White pupils on the sole basis of their being Negro; and that since 1964 defendants had by their policies and practices not only failed to overcome the unconstitutional discrimination of their predecessors, but had themselves, by their own policies and practices, continued to maintain unconstitutional segregation in the School District through decisions based solely on the fact that Negro pupils were Negro. The court found that these decisions consisted of formal drawing of attendance zones, bussing of pupils, assignment of teachers, location and construction of schools, and rejection of a plan for restructuring the School District. It concluded that this conduct of defendants and their predecessors violated the equal protection clause of the Fourteenth Amendment of the United States Constitution.
On July 8, 1968, the court concluded that the issuance of a preliminary injunction was appropriate and necessary because of the long time since the mandate of Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (Brown, I), and to give defendants sufficient time before the beginning of the 1968-69 school year to undertake compliance with the injunctive order.
That order directed the disestablishment of the Coolidge School as a "predominantly Negro" school by adoption of "Plan C*fn3 or by any other [similar] method" to formulate a plan for disestablishment of the Kennedy School as a "predominantly Negro" school for the 1969-70 school year; to redraw school attendance zones for the Kennedy School; and to provide pupils of the Kennedy School for 1968-69 the right to apply for transfer to any school in the District at their grade where classes have fewer than thirty-four pupils. The order further directed defendants to begin filling teacher vacancies by assigning new teachers to positions in schools where "their race is in the minority," with the objective of eliminating, for the 1969-70 school year, identification of schools by teacher placement as either Negro or White. The defendants were further ordered to achieve 50% of this ultimate objective for the 1968-69 school year. If voluntary transfers or new hiring would not attain either the ultimate or the intermediate objective, the defendants were ordered to reassign presently employed teachers to reach the objective even though their contracts may have been executed for the 1968-69 or the 1969-70 school year. Defendants, under the order, were not to take action for construction of new facilities, or additions to existing facilities, without leave of court to insure that future construction will be guided by the objective of eradicating the effects of past segregation. The order directed defendants to submit to the court detailed plans for the disestablishment of the Coolidge and Kennedy Schools as "predominantly Negro" schools, not later than July 15 and October 15, 1968 respectively. The appeal before us is from that order.
The first contention of defendants is that they were denied a fair hearing because the court refused them adequate time to prepare their defense to the government's motion for preliminary injunction. There is no merit in this contention.
The Attorney General filed suit on April 25, 1968, and applied for the injunctive relief on May 27, 1968. Defendants answered on June 3, 1968. On June 13 the Attorney General moved for a preliminary injunction, and the court set a hearing for June 19, 1968. On June 17 defendants moved for sixty days' continuance. The motion was denied and the hearing proceeded from June 19 through July 2, 1968.
It is true that "voluminous" answers to defendants' interrogatories of June 3 were not filed until June 15. Nevertheless we see no abuse of discretion in denying the continuance. Defendants have not given us any good reason why they could not, after June 15 and until the hearing closed July 2, have prepared for their defense, nor have they shown what matter, specifically, was not offered that would have been had more time been available Neither is there any showing that defendants requested delay, at any time before or after the hearing began, for less than sixty days. And a sixty days' continuance would have brought the hearing date to the middle of August, just a few weeks before commencement of the school year.*fn4
Defendants next contend that they have no constitutional duty to bus pupils, in the District, to achieve a racial balance. It is true that 42 U.S.C. § 2000c-6 withholds power from officials and courts of the United States to order transportation of pupils from one school to another for the purpose of achieving racial balance. However, this question is not before us. Although we recognize that past residential segregation itself, in the District, severely unbalanced racially the school population, the district court's judgment is directed at the unlawful segregation of Negro pupils from their White counterparts which is a direct result of the Board's discriminatory action. Therefore, the district court's order is directed at eliminating the school segregation that it found to be unconstitutional, by means of a plan which to some extent will distribute pupils throughout the District, presumably by bus. This is not done to achieve racial balance, although that may be a result, but to counteract the legacy left by the Board's history of discrimination.
The Constitution forbids the enforcement by the Illinois School District*fn5 of segregation of Negroes from Whites merely because they are Negroes. The congressional withholding of the power of courts in Section 2000c-6 cannot be interpreted to frustrate the constitutional prohibition. The order here does not direct that a mere imbalance of Negro and White pupils be corrected. It is based on findings of unconstitutional, purposeful segregation of Negroes, and it directs defendants to adopt a plan to eliminate segregation and refrain from the unlawful conduct that produced it.
Defendants next contend, on authority of this court's decision in Bell v. School City of Gary, 324 F.2d 209 (7th Cir. 1963), cert. denied, 377 U.S. 924, 84 S. Ct. 1223, 12 L. Ed. 2d 216 (1964), that the district court's judgment is erroneous.
They argue that in the case before us a normal migration of Negroes into Phoenix produced a corresponding racial pattern of de facto segregation of Negro pupils in Coolidge and Kennedy Schools, and White pupils in the other four schools, and that there is no constitutional violation in the Board's "inaction" in the face of racial imbalance.
The Bell case, written by Judge Duffy, is a leading case on the question of neighborhood schools. The Bell neighborhood school doctrine, however, does not control our decision here. That doctrine, followed in Deal v. Cincinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S. Ct. 39, 19 L. Ed. 2d 114 (1967), and Downs v. Board of Education, 336 F.2d 988 (10th Cir. 1964), cert. denied, 380 U.S. 914, 85 S. Ct. 898, 13 L. Ed. 2d 800 (1965), presupposes an "innocently arrived at" de facto segregation with "no intention or purpose" to segregate Negro pupils from White.*fn6 The court in Bell was speaking upon the facts in that case where the Negro plaintiffs' position was that they had a "right to be integrated in school" and that this right was a purpose which overrode considerations of safety and convenience of pupils and the costs of the operation of the school system. The district court in Bell had considered the safety, convenience and cost factors. It had found too that the attendance zone boundaries were determined without any consideration of race or color, and found, with this court's approval, that the boundaries had been "reasonably arrived at and that the lines have not been drawn for the ...