Brief for Appellant

    BRIEF FOR APPELLANT 
  
  

United States Court of Appeals 
for the Fourth Circuit 

  

  

CHARLES C. GREEN, ET AL., 

Appellants, 

Y. 

County ScHooL Boarp or NEw KENT 

CoUNTY, VIRGINIA, ET AL., 

Appellees. 

S. WW. TuCRER 

Henry L. Marsh, III 

WirLLarp H. DoucLas, Jr. 

214 East Clay Street 

Richmond, Virginia 

Jack GREENBERG 

James M. Nasrir, 111 

Suite 2030 

10 Columbus Circle 

New York, New York 

Counsel 

  
   



    

 



TABLE OF CONTENTS 

Page 

SP AREMENT OF THE CASE. Sn 1 

URSTIONS INVOLVED eo eh a 2 

SENN Or TRE FACTS. a 2 

ARGUMENT Th Roem 5 

I. There Is No Justification For Further Delay In Achieving 

The Total Desegregation Of The New Kent County 

School Syeteny Le a 5 

I1. The Faculties Should Be Desegregated Immediately ............ 5 

ITI. The School Board Should Be Required To Adopt A Plan 

Which Will Immediately Desegregate The County’s Two 

Scholes ay en i 9 

ONCLUSION i 11 

TABLE OF CITATIONS 

Cases 

Bradley v. School Board, 38217.5.103, (1965) ................o....o.. 5 

Brown v. Board of Education, 3471.5. 433 (1954) ............c......c0o. 11 

Cooper vo Aaron, 3531S. 1, (1058). i. lias 5 

Dowell v. School Board, 244 F. Supp. 971, (W.D. Okla. 1965) .... 6 

Kier v. Augusta County, 249 F. Supp. 239, (W.D. Va. 1966) .. 5, 6, 8 

Rovers v, Paul, 3320.5. 198, (1968)... ici ccrrensornconsens 5 

Wheeler v. Durham, ...... Fd ...., (4th Cir Tuly 5, 1966) ......-... 5  



  

Wright v. Greensville, 252 F. Supp. 378, {E.D. Va, 1966)...........- 5.6 

Wright v. School Board of Greensville County, Virginia, No. 4263 
(ED. Va. Jan. 27 and May 13, 1908) .......o....cooincieiin in iicsdssnns 9 

Other Authorities 

Code of Virginia, 1950, as amended, §§22-232.1, et seq .................... 4 

   



  

United States Court of Appeals 
for the Fourth Circuit 

  

No. 10,792 
  

CHARLES C. GREEN, ET AL., 
Appellants, 

County ScHOoOL Boarp oF NEW KENT 

CouNTY, VIRGINIA, ET AL., 

Appellees. 

  

BRIEF ON BEHALF OF APPELLANTS 

  

STATEMENT OF THE CASE 

This action was instituted on March 15, 1965. Plaintiffs 

prayed, inter alia, that the defendants be required to bring in 

a plan requiring the prompt and efficient elimination of 

racial segregation in the county schools, including the elim- 

ination of any and all forms of racial discrimination with 

respect to administrative personnel, teachers, clerical, cus- 

todial and other employees, transportation and other facil- 

ities, and the assignment of pupils to schools and classrooms 

(A. 2). 

The defendants filed a desegregation plan on May 10, 

1966 (A. 24). On May 17, the District Court ordered the 

defendants to amend their plan to provide for employment  



  

2 

and assignment of the staff on a non-racial basis (A. 22). 

Defendants submitted amendments to the plan on May 23, 

1966 (A. 27). At the hearing on June 10th, plaintiffs filed 

exceptions to said plan (A. 23). On June 28th, the District 

Court approved the plan as submitted by the defendants 

(A. 30). On July 27th the plaintiffs filed their notice of ap- 

peal challenging the June 28 1966 order which approved the 

defendants’ plan (A. 31). 

QUESTIONS INVOLVED 

1 

Is There Justification For Further Delay In Achieving 

The Total Desegregation Of The New Kent County School 

System? 
11 

In The Absence Of Administrative Obstacles To Justify 

Any Further Delay, Should The Faculties Of The County’s 
Two Schools Be Desegregated Immediately ? 

It 

In The Absence Of Administrative Obstacles To Justify 

Any Further Delay, Should The School Board Be Required 

To Adopt A Plan Which Will Immediately Desegregate The 

County’s Two Schools? 

STATEMENT OF THE FACTS 

New Kent County is a rural county located in central 

Virginia. Approximately 1290 children attend the county’s 

public schools, about 740 of whom are Negroes and 550 of 

whom are white. 

Prior to and during the 1964-65 school year, the school 

   



3 

board operated but two schools—the New Kent School 

which was attended by all of the county’s white pupils, and 

the Geoorge W. Watkins School which was attended by all 

of the County’s Negro pupils. 

Other pertinent information pertaining to these schools 

is contained in the following tables: 

  

  

  

  

  

  

Number of Number of Pupil- Average 
Grades Teachers Pupils* Teacher Class 

Name of School Taught Ww N w N Ratio Size 

New Kent 1-12 2% 0 552 0 22 21 

George W. 
Watkins 1-12 0 726 0 739 28 26 

Planned Number of Variance Average 
Capacity Pupils by from Number Putils 

Name of School by Buildings Buildings Capacity Buses Per Bus 

New Kent: 

Elementary 330 367 + 37 10 54.8 
High 207 185 — 22 

George W. Watkins: 
Elementary 420 538 +118 11 64.5 
High 207 Mm. ie 
  

  

* The county’s 18 Indian pupils attended a school in nearby Charles 
City County by special arrangement with the Charles City School 
Board. A special bus which transported these 18 pupils also transported 
60 Charles City County Indian pupils. 

The eleven Negro buses canvas the entire county to deliver 

the county’s 739 Negro pupils to the Watkins school which 

is located in the western half of the county. The ten white 

buses canvas the entire county to transport the county’s 552 

white pupils to the New Kent School which is located in the 

eastern half of the County. (See plaintiffs’ exhibits numbers 

A and B, and answers 4 and 5 to the interrogatories, A. 10.) 

Prior to and during the 1964-65 school year, the county  



  

4 

operated under the Virginia Pupil Placement Act, §§ 22- 

232.1 et seq., Code of Virginia, 1950, as amended. 

In executing its power or purported power of enrollment 

or placement of pupils in and determination of school districts 

for the public schools of the county, the Pupil Placement 

Board followed or approved the recommendations of the 

county school board, except that the Pupil Placement Board 

would refuse to deny the application of a Negro parent for 

the assignment of his child to a white school and would 

refuse to deny the application of a white parent for the as- 

signment of his child to a Negro school. (Complaint, para- 

graph 10 and Answer, paragraph 7.) 

Up until September 4, 1964, no Negro pupil had applied 

for admission to the New Kent School and no white pupil 

had applied for admission to the George W. Watkins 

School. 

Over the last five years, an average of three new Negro 

teachers have been employed by New Kent County and an 

average of 2.6 new white teachers have been employed to 

teach in New Kent County. : 

Prior to March 15, 1965, petitions ‘signed by several 

Negro citizens were filed with the school board asking the 

school board to end racial segregation in the public school 

system and urging the Board to make announcement of its 

purpose to do so at its next regular meeting and promptly 

thereafter to adopt and publish a plan by which racial dis- 

crimination will be terminated with respect to administrative 

personnel, teachers, clerical, custodial and other employees, 

transportation and other facilities, and the assignment of 

pupils to schools and classrooms. 

On March 15, 1965, several of the plaintiffs filed this 
action in the District Court. 

   



ARGUMENT 

I 

There Is No Justification For Further Delay In Achieving The 

Total Desegregation Of The New Kent 
County School System. 

New Kent County has two schools, each with 26 teachers 

and identical programs of instruction (A. 11). Eleven buses 

driven by Negroes canvass the entire county, transporting 

the 710 Negro children to George W. Watkins School, lo- 

cated in the western half of the county. All of the teachers 

assigned to this school are Negroes. Ten buses driven by 

white persons canvass the entire county, transporting 552 

white children to New Kent School located in the eastern 

half of the county. Only white teachers are assigned to this 

school. Both schools accommodate pupils in excess of their 

planned capacities, the Negro school being the more over- 

crowded. No administrative obstacles are shown to exist, the 

systematic removal of which might necessitate or justify 

delay in “eliminat|[ing] racial segregation from the public 

schools” Cooper v. Aaron, 358 11.8. 1,6, (1953). 

II 

The Faculties Should Be Desegregated Immediately 

One thing obviously essential to elimination of racial 

segregation from the New Kent County School system is 

the desegregation of the teaching staffs of the two schools. 

Bradley v. School Board, 382 U.S. ‘103, (1965); 
Rogers v. Paul, 382 U.S. 198 (1965); Wheeler v. 
Duthil, woeves Lol eens, (4th Cir. July 5, 1966) ; Kier 
v. Auguste Conniv, 249 EF, Supp. 239, (W.D. . Va. 
1966) and Wright v. Greensville, 252 F. Supp. 378, 
(E.D. Va, 1966)  



  

6 

In Kier v. Augusta County, supra, the District Court, 

after enjoining the board to desegregate the faculties and 

administrative staffs completely for the following (1965- 

66) school year, stated: 

“Some guideline must be established for the School 
Board in carrying out the Court’s mandate. Insofar as 
possible, the percentage of Negro teachers in each school 
in the system should approximate the percentage of the 
Negro teachers in the entire system for the 1965-66 
school session. Such a guideline can not be rigorously 
adhered to, of course, but the existence of some standard 
is necessary in order for the Court to evaluate the suf- 
ficiency of the steps taken by the school authorities pur- 
suant to the Court's order. A similar standard was 
adopted by the District Court in deciding the school 
desegregation suit involving Oklahoma City. Dowell v. 
School Bd., 244 F. Supp. 971, 977-78 (W.D. Okla, 
1965).” 

In Wright v. Greensville, supra, adopted as the opinion in 

this case, the Court, after indicating that the School Board 

had to provide for the elimination of racially segregated 

faculties, set forth the following standard to be applied by 

the School Board in desegregating the teaching staffs: 

“Token assignments will not suffice. The elimination of 
a racial basis for the employment and assignment of 
staff must be achieved at the earliest practicable date. 
The plan must contain well defined procedures which 
will be put into effect on definite dates.” 

In the face of these admonitions, the defendants on the 

6th of June, 1966, proposed to the Court that it would adhere 

to the following procedures: 

“1. The best person will be sought for each position 
without regard to race, and the Board will follow the 
policy of assigning new personnel in a manner that will 

   



7 

work toward the desegregation of faculties. We will not 
select a person of less ability just to accomplish desegre- 
gation, 

2. Institutions, agencies, organization, and individ- 
uals that refer teacher applicants to the school system 
will be informed of the above stated policy for faculty 
desegregation and will be asked to so inform persons 
seeking referrals, 

3. The School Board will take affirmative steps to 
allow teachers presently employed to accept transfers 
to schools in which the majority of the faculty members 
are of a race different Irom that of the teacher to be 
transferred. 

4. No new teacher will be hereafter employed who is 
not willing to accept assignment to a desegregated 
faculty or ina desegregated school. 

5. All workshops and in-service training programs 
are now and will continue to be conducted on a com- 
pletely desegregated basis. 

6. All members of the supervisory staff will be as- 
signed to cover schools, grades, teachers and pupils 
without regard to race, color or national origin. 

7. All staff meetings and committee meetings that 
are called to plan, choose materials, and to improve the 
total educational process of the division are now and 
will continue to be conducted on a completely desegre- 
gated basis. 

8. All custodial help, cafeteria workers, maintenance 
workers, bus mechanics and the like will continue to be 
employed without regard to race, color or national 
origin, 

9. Arrangements will be made for teachers of one 
race to visit and observe a classroom consisting of a 
teacher and pupils of another race to promote acquaint- 
ance and understanding.”  



  

8 

As pointed out by the plaintiffs in their exceptions to the 

above plan, these provisions merely constitute a refusal by 

the school board to take any initiative to desegregate the 

faculties of its two schools (A. 29). Under this plan, the 

board need not assign any teachers to schools with teachers 

of the opposite race. Under this plan, the board might take 

twenty or even thirty years to complete the desegregation of 

its faculties. 

These provisions fall far short of the standard established 

by the Court in Kier v. Augusta County, supra. Moreover, 

they do not contain “well-defined procedures which will be 

put into effect on definite dates.” Even the token assign- 

ments which the District Court below had warned would not 

suffice, are not required by this plan. 

In condemning proposals (not unlike those finally ap- 

proved for New Kent) submitted by the Greensville County 

School Board, the District Court in a May 11, 1966 opinion 

had declared: 

“The plan has no well-defined procedures which will be 
put in effect on definite dates. It contains no assurance 
that the present pattern of allocation of staff on a racial 
basis will ever be changed. Its basic deficiency is the 
transfer of responsibility from the school board to 
individual teachers. It thrusts upon the teachers the 
onus of discharging the school board’s responsibility to 
allocate the faculty on a non-racial basis.” (A. 49) 

In approving the New Kent plan, the District Court made 

the following comments: 

“The plan for faculty desegregation is not as definite 
as some plans received from other school districts. The 
court 1s of the opinion, however, that no rigid formula 
should be required. The plan will enable the school board 

   



9 

to achieve allocation of faculty and staff on a non-racial 
basis. The plan and supplement satisfy the criteria men- 
tioned in Wright v. School Board of Greensville 
County, Virginia, No. 4263 (E.D. Va., Jan. 27 and 
May 13,1966). 

The New Kent Plan clearly shifts the onus of the board’s 

responsibility to the individual teacher. Other than the bold 

assertion in the opinion, the Court does not attempt to 

demonstrate how the New Kent plan satisfies the criteria 

in the Wright opinion or otherwise satisfies the require- 

ments of the law. 

In view of the ease with which this record demonstrates 

that the faculties of the two schools could be desegregated 

and the absence of any administrative obstacles to the im- 

mediate total desegregation of the teaching staffs of both 

schools, the District Court had no authority to approve a 

plan which is certain to create administrative problems and 

prevent the elimination of the racially segregated faculties 

“at the earliest practical date.” 

III 

The School Board Should Be Required To Adopt A Plan Which Will 
Immediately Desegregate The County’s Two Schools 

Under the Pupil Placement Board procedure, the parents 

of white and Negro pupils have been afforded an unrestricted 

choice between having their children attend white and 

Negro schools since 1956. During this time, not a single ap- 

plication was made for the transfer of any child to the 

school attended by pupils of the opposite race. 

Notwithstanding the obvious ease with which the school 

system could be desegregated by the adoption of a geo- 

graphical zoning plan, the school board selected the means  



  

10 

to accomplish the desegreation of the schools which was 

least likely to work in New Kent County. 

The key provisions of the plan are as follows: 

1 

“ANNUAL FREEDOM oF CHOICE OF SCHOOLS 

A. The County School Board of New Kent County 
has adopted a policy of complete freedom of choice to be 
offered in grades 1, 2, 8,9, 10, 11, and 12 of all schools 
without regard to race, color, or national origin, for 
1965-66 and all grades after 1965-66. 

Por 

V1 

OVERCROWDING 

A. No choice will be denied for any reason other than 
overcrowding. Where a school would become over- 
crowded if all choices for that school were granted, 
pupils choosing that school will be assigned so that they 
may attend the school of their choice nearest to their 
homes. No preference will be given for prior attendance 
at the school. 

B. The Board plans to relieve overcrowding by build- 
ing during 1965-66 for the 1966-67 session.” 

These provisions operate as limitations on the Pupil Place- 

ment procedure which had demonstrated that a free choice 

procedure in New Kent County would not result in de- 

segregated schools. 

Moreover, the school board failed to show any adminis- 

trative obstacles which would justify any delay in the im- 

mediate total desegregation of its two schools. 

In the opinion adopted in this case, the Court stated: 

“This circuit has recognized that local authorities 
should be accorded considerable discretion in charting 
a route to a constitutionally adequate school system. 

   



11 

Freedom of choice plans are not in themselves invalid. 
They may, however, be invalid because the ‘freedom 
of choice’ 1s illusory. The plan must be tested not only 
by its provisions, but by the manner in which it operates 
to provide opportunities for a desegregated education. 
In this respect operation under the plan may show that 
the transportation policy or the capacity of the schools 
severely limits freedom of choice, although provisions 
concerning these phases are valid on their face.” 

The instant plan clearly does not meet the test of the principle 

enunciated by the Court below. 

In view of the time which has elapsed since the 1954 

Brown decision, and the failure of the board to eliminate 

the segregated system it has created, this board should now 

be required to immediately desegregate the two schools 

under its jurisdiction. 

CONCLUSION 

This record shows the school board still operating its two 

schools in open defiance of the 1954 Brown decision. Unless 

the fundamental principle announced in that decision is to 

be reduced to mere egalitarian pronouncements, this Court 

must make it clear that local school boards must affirmatively 

remove all vestiges of racial segregation from their school 

systems. 

Respectfully submitted, 

5. W. Tucker 

HENRY L. MARrsH, 111 

WiLrLArp H. DoucgLas, Jr. 
214 East Clay Street 
Richmond, Virginia 

Jack GREENBERG 

James M. Nasrir, 111 

10 Columbus Circle 

New York, New York