Gilliam v. City of Hopewell, VA School Board Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit
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January 1, 1965

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Brief Collection, LDF Court Filings. Gilliam v. City of Hopewell, VA School Board Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit, 1965. 304e2c65-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0da5c23a-5688-4e7f-aeb6-f4acabe43793/gilliam-v-city-of-hopewell-va-school-board-petition-for-writ-of-certiorari-to-the-united-states-court-of-appeals-for-the-fourth-circuit. Accessed July 16, 2025.
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I n the (Emirt of tip Imtpft States O ctober T erm , 1965 No................. R e n ee P atrice G illia m , et al., v. Petitioners, S chool B oard op t h e C ity op H opew ell , V irg in ia , et al. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT J ack Greenberg J ames M. N abrit, III 10 Columbus Circle New York, N. Y. 10019 S. W. T ucker H enry L. M arsh , III 214 East Clay Street Richmond 19, Virginia Attorneys for Petitioners I N D E X Citations to Opinions Below ........................ .................. 1 Jurisdiction ................ ................................................... 2 Questions Presented............................................... ........ 2 Statutes and Constitutional Provisions Involved........ 3 Statement of the Case........ ...... ......................... ........... 3 Reasons for G-ranting the Writ ......................... .......... 17 I. The Pupil Assignment Plan Approved Below Operates to Minimize Desegregation and Is Not Adequate to Correct Racial Segregation Created by Public Officials .............................. 19 II. Segregation of Public School Faculties Vio lates the Fourteenth Amendment and Should Be Abolished .................................................... 30 Conclusion............ 41 Appendix........................................ la Memorandum of July 11, 1963 .......................... ....... la Ruling of April 6, 1964 ............... ............................... 9a Opinion Dated May 25, 1964 ................................... . 15a Ruling of July 2, 1964 .......... ..... ................................ 22a Order Entered July 6, 1964 ...................................... 26a PAGE 11 Opinion Dated April 7, 1965 ....................................... 27a Judgment of April 7, 1965 ....................................... 37a Map ................................................. ............................ 39a PAGE T able oe Ca se s : Anderson v. Martin, 375 U. S. 399 ................................ 34 Augustus v. Board of Public Instruction of Escambia County, 306 F. 2d 862 (5th Cir. 1962) ......................... 33 Bailey v. Patterson, 369 U. S. 31 ................................ 30 Bell v. School City of Gary, Ind., 324 F. 2d 209 (7th Cir. 1963), cert, denied, 377 U. S. 924 ......................... 27 Board of Public Instruction of Duval County v. Brax ton, 326 F. 2d 616 (5th Cir. 1964), cert, denied, 377 U- S. 924 .............................................................. ......33, 38 Bowditch v. Buncombe County Board of Ed., 345 F. 2d 329 (4th Cir. 1965) ...................................... ............... 33 Bradley v. School Board of the City of Richmond, 345 F. 2d 310 (4th Cir. 1964) .....................15,16,17, 32, 33, 39 Brooks v. County School Board of Arlington County, Va., 324 F. 2d 303 (4th Cir. 1963) ............................ 11 Brooks v. School District of City of Moberly, Mo., 267 F. 2d 733 (8th Cir. 1959), cert, denied, 361 IT. S. 894 33 Browder v. Gayle, 352 IT. S. 903 ................... ................ 30 Brown v. Board of Education, 347 IT. S. 483, 349 U. S. 294 ........ ............. ...............2, 6,17,19, 27, 30, 31, 34, 39, 40 Bryan v. Austin, 148 F. Supp. 563 (E. D. S. C. 1957), judgment vacated 354 U. S. 933 ................................ 36 Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1963), va cated and remanded 377 U. S. 263 .....................31, 32, 33 Ill ' PAGE Christmas v. Board of Education of Harford County, 231 F. Supp. 331 (D. Md. 1964) ............................. . 33 Colorado Anti-Discrimination Commission v. Conti nental Air Lines, 372 U. S. 714.................................... 30 Dawson v. Baltimore City, 350 IJ. S. 877 ....... ............. 30 Dowell v. School Board of Oklahoma City Public Schools, 219 F. Supp. 427 (N. D. Okla. 1963) ........... 33 Franklin v. County School Board of Giles County, Civil No. 64-C-73-R, W. D. Va., June 3, 1965 ......... .........33, 36 Griffin v. Board of Supervisors, 339 F. 2d 486 (4th Cir. 1-964) .............. 33 Griffin v. School Board of Prince Edward County, 377 U- S. 218 ................................................................... 6,30 Holmes v. Atlanta, 350 U. S. 879 ................................ 30 Jackson v. School Board of the City of Lynchburg, 321 F. 2d 230 (4th Cir. 1963) ................................. . 33 Johnson v. Virginia, 373 TJ. S. 61 ................................ 30 Lane v. Wilson, 307 U. S. 268 ....................................... 17 Lawrence v. Bowling Green, Ky. Board of Education, Civil No. 819, 8 Race Rel. L. Rep. 74 (N. D. Ky. 1963) 33 Manning v. Board of Public Instruction of Hillsbor ough County, Fla., Civil No. 3554, 7 Race Rel. L. Rep. 681 (S. D. Fla. 1962) ................................................... 33 Mapp v. Board of Education of City of Chattanooga, 319 F. 2d 571 (6th Cir. 1963) .................................... 33 IV PAGE Mason v. Jessamine County, Ky. Board of Education, Civil No. 1496, 8 Race Eel. L. Rep. 75 (E. D. Ky. 1963).......................... ...... ............................. .............. 33 McLanrin v. Oklahoma State Regents, 339 U. S. 637 40 Nesbit v. Statesville City Board of Education, 232 F. Supp. 288 (W. D. N. C. 1964), vacated 345 F. 2d 333 (4th Cir. 1965) ........................................................... 33 Northcross v. Board of Education of Memphis, 333 F. 2d 661 (6th Cir. 1964) ................ .............................. 33 Peterson v. Greenville, 373 U. S. 244 ............................ 30 Price v. The Denison Independent School District, ----- F. 2 d ----- (5th Cir. No. 21,632, July 2, 1965) 18 Shelton v. Tucker, 364 U. S. 479 .................................... 36 Taylor v. Board of Education, 191 F. Supp. 181 (S. D. N. Y. 1961), aff’d 294 F. 2d 36 (2nd Cir. 1961), cert. denied, 368 U. S. 940 .......................................... ........ 28 Tillman v. Board of Instruction of Volusia County, Florida, Civil No. 4501, 7 Race Rel. L. Rep. 687 (S. D. Fla. 1962) ..................................... ............................... 33 Turner v. Memphis, 369 U. S. 350 ................................ 30 Wheeler v. Durham City Board of Education,----- F. 2d----- (4th Cir. No. 9630, June 1, 1965) ......... ........... 33 Statutes: Ala. Acts 40, 41, 1956 1st Sp. Sess.................................. 36 Ala. Acts 239, 361, 1957 Sess.......................................... 36 Ala. Acts 249, 383, 443, 1961 Sp. Sess........................... 36 V Code of Va., 1950 (1964 Replacement Vol.), §22-205 32 Code of Ya., 1950 (1964 Replacement Vol.), §22-207 32 F. R. Civ. Proc., Rule 23(a) ......... 3 La. Acts 1956, Acts 248, 249, 250, 252 ............................ 36 S. C. Acts 1956, Act 741, repealed by Act 223 of 1957 .... 36 U. S. Constitution, Fourteenth Amendment, Sec. 1.......2,10 28 U. S. C. §1254(1) ...................................................... 2 28 IT. S. C. §1331 .............................................................. 3 28 U. S. C. §1343 .................................. 3 42 IT. S.C. §§1981, 1983 .................................................. 3 42 IT. S. C. A. §2000d.............................................. 18, 37, 38 PAGE Other Authorities: Brief of United States as Amicus Curiae, Calhoun v. Latimer, 377 U. S. 263 ........... ................................... 31, 32 1960 Census of Population, Vol. 1, “Characteristics of the Population,” Part I, U. S. Summary Table 230 36 110 Cong. Rec. 6325 (daily ed. March 30, 1964) .......... 18, 38 Fiss, “Racial Imbalance in the Public Schools: The Constitutional Concepts”, 78 Harv. L. Rev. 564 (1964) 28 General Statement of Policies Under Title VI of the Civil Rights Act of 1964 Respecting Desegregation of Elementary and Secondary Schools, HEW, Office of Education, April 1964 ..................... ..........18,19, 37, 38 Lamanna, Richard A. “The Negro Teacher and Deseg regation”, Sociological Inquiry, Vol. 35, No. 1, Winter 1965 ........................................ ..................................... 36 Y1 PAGE Southern Education Reporting Service, “Statistical Summary of School Segregation-Desegregation in the Southern and Border States”, 14th Rev., Nov 1964........................................................................... - ...................................................................... .. .................................................................................... 35 Southern School News, May 1965 ................ ............... 18 Isr the irtprpmp (Hmtrt 0! % IttiM States O ctober T erm , 1965 No................. R en ee P atrice G illia m , et al., Petitioners, —v.—■ S chool B oard op t h e City of H opew ell , V irg in ia , et al., PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Petitioners pray that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Fourth Circuit entered in the above-entitled cause on April 7,1965. Citations to Opinions Below The memorandum opinion of the District Court of July 11, 1963 (R. 1-43)1 is unreported and is printed in the 1 The record contains Volumes I to VI. Each volume begins with a page numbered 1. Thus record citations herein are to the volume and page number; the text above indicates Volume I, page 43. There is an additional transcript of a hearing March 23, 1964 (Testimony of Charles W. Smith) which is cited herein as “Smith Tr.” (see Note 13, infra). 2 appendix hereto, infra, p. la. The opinion of the Court of Appeals issued May 25, 1964 (E. 1-77), printed in the ap pendix hereto, infra, p. 15a, is reported at 332 F. 2d 460. Further unreported oral opinions of the District Court on April 6, 1964 (R. IV-23) and July 2, 1964 (R. V-42), appear in the appendix below at pages 9a and 22a, re spectively. The second opinion of the Court of Appeals dated April 7, 1965 (R. VI-5), printed in the appendix, p. 27a, infra, is reported in 345 F. 2d 325. J u r is d ic t io n The judgment of the Court of Appeals was entered on April 7, 1965 (R. VI-16; appendix, p. 37a, infra). Mr. Jus tice Goldberg on June 28, 1965 extended the time for filing the petition for certiorari until August 1, 1965. The juris diction of this Court is invoked under 28 U. S. C. Section 1254(1). Q u estio n s P re se n te d 1. Whether the Hopewell, Virginia school assignment plan based on geographic attendance areas is inadequate under Brown v. Board of Education, on the ground that it substantially preserves a segregated situation which was created by racial gerrymandering and related practices, and was not remedied by the board’s inadequate pupil transfer rule? 2 2. Whether Negro pupils seeking desegregation of a public school system under Brown v. Board of Education are entitled to relief against a practice of segregating teachers on the basis of the race of pupils ? 3 Statutes and Constitutional Provisions Involved This case involves Section 1 of the Fourteenth Amend ment to the Constitution of the United States. Statement of the Case This case involving racial segregation in the public schools of the City of Hopewell, Virginia, was filed October 17, 1962, by petitioners, a group of Negro parents and children,2 who invoked the jurisdiction of the United States Distinct Court for the Eastern District of Virginia seeking equitable relief pursuant to 28 U. S. C. §1343 and 42 U. S. C. §§1981 and 1983.2 3 Petitioners sought an injunction against the city school board and superintendent and against the Vir ginia Pupil Placement Board, a state agency with statutory responsibilities concerning the assignment of pupils. Peti tioners here seek review of the adequacy of a school board desegregation plan which was approved below after nu merous hearings in the trial court and two appeals. The complaint, brought as a class action under Rule 23(a), P. R. Civ. Proe., alleged inter alia that the school board “maintains and operates a bi-racial school system in which certain schools .. . are designated for Negro students only and are staffed by Negro personnel and . . . certain schools . . . are designated for white students and are staffed by white personnel” ; that the defendants had not 2 The original plaintiffs were 9 children attending the public schools and their parents. Fifteen other pupils and their parents subsequently joined as intervenors. 3 The complaint also alleged “federal question” jurisdiction under 28 U.S.C. §1331. 4 devoted efforts to initiate desegregation or made a start to effectuate a transition to a racially nondiscriminatory school system; that children were routinely assigned to schools on a racial basis; and that Negro children, includ ing plaintiffs, who applied to white schools were refused enrollment on a discriminatory basis (R. 1-2-12). The complaint requested an order requiring admission of the 9 minor plaintiffs in specified all-white schools and more generally applicable injunctive relief against the seg regated system and discriminatory practices. It included a request that the court enjoin defendants “from operating a biracial school system” or require them to submit a plan for “reorganization of the schools on a unitary nonracial basis” (R. 1-11). The school authorities generally denied that the Negro children were entitled to relief (R. 1-15, 17). The case was tried before Hon. John D. Butzner4 * and on July 11, 1963, Judge Butzner filed an opinion (R. 1-45) and entered an injunction requiring admission of the 9 pupils as requested, and enjoining further use of racially dis criminatory criteria including the established attendance areas (R. 1-54). The order invited the local authorities to submit a desegregation plan to the Court and stated that the general injunction would be suspended upon approval of a plan (ibid.). At trial it was established that Hopewell’s 905 Negro students and 40 Negro teachers were completely segregated from the 3,530 white pupils and 133 white teachers in the 8 schools of the system. The white pupils and staff were assigned to three elementary schools and one high school 4 The transcript of this first hearing on June 10, 1963, is Vol. I l l of the record. 5 and the Negroes were assigned to three different elementary schools and a high school as indicated in the margin.5 Negro pupils who sought admission to white schools in 1960 and in 1962 were denied transfers.6 Pupil assignments were made on the basis of a geographical attendance area map adopted in 1942 and occasionally modified thereafter.7 The map designated 6 attendance areas for the 6 ele mentary schools; three areas were all-white and three were all-Negro. Superintendent Smith testified that the boun- 5 The following chart was furnished by the school board Decem ber 4, 1962, in response to an interrogatory (R. 1-25) : No. No. No. No. White Colored White Colored School Capacity Pupils Pupils Teachers Teachers Patrick Copeland Elementary Harry E. James 740 770 0 26 0 Elementary 330 0 167 0 7 Arlington Elementary 270 0 195 0 10 Dupont Elementary 870 832 0 29 0 Woodlawn Elementary Carter G. Woodson 720 649 0 24 0 Elementary Carter G. Woodson 300 0 286 0 9 High School 350 0 257 0 14 Hopewell. High School 1075 1279 0 54 0 The school board’s chart shows not only the pattern of student and faculty segregation, but also that the uniformly smaller Negro schools were under-utilized as compared to the large white schools which were either overcrowded or almost filled. 6 Plaintiffs’ Exhibit 8 lists seven 1960 applicants. With respect to 1962 applicants see complaint, para. 12 and schedule “A” (R. 1-8, 13-14.),; Answer of Pupil Placement Board (R. 1-17, 18); and Testimony of E. J. Oglesby (R. III-46-53). 7 The board asserted that for many years pupils were assigned on the basis of attendance areas (R. 1-26). A map showing these areas as then established is marked as Plaintiffs’ Exhibit No. 7 (R. III-6). 6 daries had not ever been fixed to permit Negro and white children to attend the same schools (R. III-12). All high school pupils living in the areas of the 3 Negro elementary schools (Arlington, Woodson and James) were assigned to the all-Negro Woodson High School and all pupils in the 3 white elementary zones (Woodlawn, Dupont and Cope land) were assigned to Hopewell High School (R. III-32- 33). All eight school buildings were constructed or acquired during this period of complete segregation.8 The trial court’s injunction against the continued use of this set of attendance areas was based upon findings that the boun daries had been, for the most part, established prior to Brown; that the prescribed areas “follow the distribution of Negro and white residences in the city” ; that some areas had “natural boundaries” but “in others there is no dis tinction other than the racial composition of the neighbor hoods” (R. 1-45) ; and that the school capacity and atten dance figures provided “no rational criterion for the boun daries” (R. 1-47). No Negroes lived in any of the white school zones. The few white children living in the area of a Negro school had in the past been granted transfers to a white school in another area (R. III-35-36, 40-41). 8 Virginia’s massive resistance laws purported to require com plete segregation and the closing of any desegregated schools until 1959. See a brief discussion of the massive resistance program in Griffin v. School Board, 377 U. S. 218, 221. The most recently constructed schools in Hopewell are the all-Negro Woodson Ele mentary and Woodson High Schools occupied in 1958 (R. III-1Q- 11). The principal area served by Woodson Elementary School was a white residential neighborhood until about 1957 when Wood- son School was begun and the whites moved away (R. IV-18-19). Before Woodson was constructed white children in the area at tended the Dupont School across the railroad tracks to the north (ibid.). 7 No one appealed the July 11, 1963 injunction. However, on September 4, 1963, fifteen more Negro pupils moved to intervene and for further injunctive relief asserting that they had been refused admission to white schools in viola tion of the injunction (R. 1-56-64). The Court heard evi dence September 12, 1963,® and ruled that since no de segregation plan had been presented or approved the 15 intervenors wTere entitled to the requested transfers (R. IT-41-48). Thus, the first desegregation of regular classes in Hope- well took place in September 1963 when 26 or 27 Negro children entered two white schools.9 10 The group included 24 petitioners (plaintiffs and intervenors) and 2 or 3 others living in the same neighborhoods (R. IY-12). The racially segregated pattern of school staffing continued unchanged (ibid.). The school authorities appealed the September 13, 1963, order requiring admission of the 15 intervenors to white schools (R. 1-66).11 The trial court had set dates for the filing of a desegregation plan, objections to the plan, briefs and a hearing (R. 1-67). Proceedings relating to the de segregation plan continued in the trial court while the appeal was being considered. On May 25, 1964, the .Court of Appeals, voting 4-1, dismissed the appeal as moot on 9 See Record Volume IT. 10 Two of the plaintiffs had attended summer school at Hopewell High School in 1963 (R. 11-19-20, 23-24). In September 1963 plaintiffs enrolled at Hopewell High and Copeland Elementary schools. 11 The hearing was conducted as one for a temporary restraining order (R. II-2), but a permanent order was entered upon, agree ment that the court could finally decide the matter (R. 1-66). the ground that the academic year was nearly ended and that assignments for future years could be governed by the plan being considered in the trial court or a further interim order (R. 1-77-81; 332 F. 2d 460).12 Meanwhile, during this appeal, the school board filed its first “Plan for Operation of Schools” and a motion to dis solve the injunction on October 21, 1963,13 14 and the Court held a hearing on March 23“ and April 6, 1964,15 and re jected the proposed plan (R. IV-23-29). The October 21, 1963, plan provided basically for assign ments of pupils on the basis of a new attendance map (De fendant’s Exhibit l )16 which made three changes of the boundaries on the prior map (Pi’s Exhibit 7).17 First, the boundary between the Patrick Copeland (white) and Harry “ Judge Bryan dissented arguing that the rejection of the 15 requests on residential and procedural grounds was “entirely lawful” (R. 1-82). 13 The motion and plan as well as the attached map of proposed school zones may be found in that portion of the record on file in this Court which contains the exhibits. They are all marked Defendants’ Exhibit 1 (DX-1). The school zone map (DX-1), is the one now in use. (The original map on file with this Court may be found folded flat with the other exhibits; it is not one of the rolled maps in the file.) A black and white photographic reproduc tion of this large multi-color map is at the end of the appendix hereto, infra. 14 The March 23, 1964, transcript (Testimony of Charles W. Smith) was printed in Appellee Appendix in the Court of Appeals, but the original was by error omitted from the record. It has been filed in this Court by stipulation. It is cited as “Smith Tr.” ' 15 Record Volume IV. 16 See Note 13 supra; also the map at appendix hereto infra. 17 Transcript of hearing on March 23, 1964, “Testimony of Charles W. Smith” (hereinafter cited as “Smith Tr.”), pp. 13-16. 9 E. James (Negro) elementary schools was altered to con form to a railroad line placing about 51 Negro children in the Copeland area (Smith Tr. 14).18 Second, the board changed a short portion of the boundary between Woodlawn (white) and Arlington (Negro) schools. This change was said to have incorporated three white homes into the Arling ton zone (R. IV-14-15), but the Superintendent did not know whether this placed any white school children in the Negro school area (Smith Tr. 15). Third, the boundary was changed between the Dupont (white) and Woodson (Negro) schools to add a small triangular shaped enclave containing white homes (area bounded by railroad tracks in two direc tions and 15th Avenue) to the Woodson zone (Smith Tr. 16). The five white children in this area either moved or went to private schools -when placed in the Negro zone (R. IV-13). The plan continued the same pattern of high school as signments based on elementary school zones; pupils in the two all-white zones (Woodlawn, Dupont) and one predomi nantly white zone (Copeland) were assigned to Hopewell High and those in the 3 all-Negro zones (James, Arlington and Woodson) to Woodson High. The plan had two trans fer provisions. One stated that transfers would be granted for “some specific reason,” giving as an example the trans portation convenience of a handicapped child, and that race would not be a factor in granting or refusing such transfers. The second, an explicitly racial provision, allowed transfer 18 The earlier boundary between Copeland and James was a winding line between Negro and white residences which made approximately 20 turns and moved back and forth, across a rail road line. Compare the first map, Pi’s Ex. 7, with the second map, DX-1. 10 of “any colored child, assigned by reason of residence to a school in which he is in the racial minority” to an all-Negro school if both his parents and the board thought the non- segregated assignment was “detrimental” to the child. This latter provision was made severable in the event that the court thought it unconstitutional. To summarize, the net effect of the plan was to permit a total of 51 Negro children to attend Copeland Elementary School or Hopewell High School and to leave the racial composition of the two other white schools and the four Negro schools unchanged. Petitioners objected to the plan as inadequate and in valid under the Fourteenth Amendment on various grounds, including an objection to the map asserting that it was “an attempt to continue the discrimination previously enjoined” (E. 1-74-75). This pleading also asserted that “the plan as a whole is inadequate in that it fails to make provision for the assignments or reassignments of teachers and other professional personnel on a nonracial basis” (R. 1-75). As previously noted the trial court rejected the plan April 6, 1964 (R. IV-23-29). The court noted that all pupils in the 3 white elementary zones were assigned to Hopewell High and all in the Negro zones to Woodson High; that the Hopewell enrollment exceeded its capacity while the Woodson enrollment did not ;19 and that white children from the Woodlawn zone “have to go a considerable distance 19 The finding was based on Plaintiffs’ Exhibit la indicating in part: September 1963 Capacity Enrollment Hopewell High 1,075 1,358 Woodson High 350 277 11 farther to Hopewell High School than if they were assigned to the Carter G. Woodson High School” and also “have to cross more railroad tracks and highways” (E. IV-26-27). The Court also criticized the Arlington and Woodlawn boundary stating (R. IV-27): The area adjacent to the Arlington School zone, which presently feeds into the Woodlawn School, is predominantly white. The line has been drawn sep arating the predominantly white neighborhood from the predominantly Negro neighborhood. = » # # # # The primary responsibility is, the Court recognizes for the School Board to draw these lines. But when it ends up, as it does, with a completely segregated school system, the Court is of the opinion that the language of the Court of Appeals in the Brooks case is pertinent. [Court then read from Brooks v. County School Board of Arlington County, Va., 324 F. 2d 303, 308 (4th Cir. 1963).] Two months later (June 4, 1964) the board filed an amended plan using the very same attendance areas which had been filed with the first plan and rejected on April 6, 1964 (E. 1-84-86). But the new plan provided that elemen tary pupils in the Woodlawn and Arlington zones might transfer if “their residence is nearer an elementary school” outside their zone of residence (R. 1-85). The plan also stated that high school students could transfer out of their zones if their “residence is nearer a high school other than the one to which” they are initially assigned (E. 1-85). The racial minority transfer rule for Negro children was omitted 12 from the amended plan. Petitioners objected to the plan, basically adopting their exceptions to the first plan (E. 1-95). An examination of the attendance area map (Defendants’ Exhibit 1 ; see appendix infra) shows at a glance that no part of the Negro Arlington area is nearer to the white (Woodlawn) school than to Arlington, although white resi dences in the Woodlawn zone are closer to Arlington than to Woodlawn since a portion of the Woodlawn zone is within 1 block of Arlington school.20 Similarly, parts of Woodlawn zone are closer to the Negro Woodson High School than to Hopewell High but the Negro school zones are all closer to Woodson High than to Hopewell High (R. IV-26-27). At a hearing on the amended plan (July 2, 1964; E. Volume V) the board filed the affidavit of Superintendent Smith (R. 1-89) stating that the boundaries were the same as those previously submitted and that a survey showed that boundary changes suggested by petitioners’ counsel to the school board would Overcrowd Arlington and Woodson schools.21 The affidavit also reported “expected enroll ments” for several schools in September 1964 and some 20 See Def’s Ex. 1. See also, testimony at the original trial at R. III-31. _ “ Petitioners did not propose any boundaries to the Court. They did suggest to the school board possible modifications of zones to include white pupils in 3 under-capacity Negro school zones, but did so tentatively without benefit of any survey of pupil residences. The school board did not present any data relating to the feasibility of any intermediate boundaries between its proposals and plain tiffs’ suggestions. 13 new arrangements of classes.22 No evidence other than the affidavit was offered at the hearing on the new plan (R. Volume V). 22 In order to make the enrollment, and capacity figures more readily available and comprehensible, the following data is ex tracted from various exhibits, affidavits, etc.: a. 1962-63 school year, see note 5, supra; b. 1963-64 school year (September 1963); from plaintiffs’ ex hibit 1-A (4-6-64) (same document also marked Def’s Exhibit 5): Pupil-Teacher School Capacity Attendance Ratio Woodlawn 720 667 27.8 Dupont 870 858 30.1 Copeland 720 780 30.0 Hopewell High 1,075 1,358 31.5 Woodson High 350 277 19.7 James 300 150 15.0 Arlington 270 190 21.1 Woodson Elementary 300 280 28.0 c. Estimates for 1964-65 school year; from Smith affidavit (R. 1-89-94) indicating “expected” enrollments: School Capacity “Expected Attendance” Woodlawn 720 712 Dupont 870*** 858*** Copeland 720 780*** Hopewell High 1,250* 1,440 Woodson High 400** 250 James 300 ■ 150*** Arlington 270 234 Woodson Elementary 240** 220 * Capacity increased by use of increased number of teaching periods; no new classrooms. ** Shift of 2 rooms from elementary to high school use changed capacities, *** Figure based on previous year; no newer data supplied. 14 After hearing arguments23 the trial court approved the school board’s amended plan24 stating: The chief difference between the situation that now exists and that which existed at the hearing this spring when the Court declined to approve the plan is that the new plan submitted by the Board provides for transfer of Arlington or Woodlawn Elementary pupils to any school nearer a pupil’s residence. It also provides that high school students may transfer from the Hopewell High or Woodson High, as the case may be, to the high school which is nearer their residence. # # # # # The Court finds that the School Board has attempted in good faith to create zones consistent with the capac ity and attendance of the schools, and the Court be lieves that the plan which has been suggested is con sistent with the suggestion made by the Court of Ap peals pertaining to some other assignment method in the unsettled zones (R. V-44-45). The Court ruled that the 24 Negro children assigned to white schools by prior court order could continue in those schools notwithstanding the fact that they lived in all- Negro zones, and entered an order approving the plan, dis solving the injunction and retaining the cause on the docket (R. 1-97-98). Petitioners appealed the order approving the plan and dissolving the injunction and the School Board cross- 23 The faculty desegregation issue was argued by plaintiffs (R. V-33-36). 24 The oral opinion is at R. V-42-45. appealed the order allowing the Negro litigants to continue in the white schools (R. 1-99,101). The Fourth Circuit, en banc, affirmed on both appeals (345 F. 2d 325). The opinion of the Court by Judge Hayns- worth said the trial court was justified in concluding that the boundaries were “reasonably drawn in accordance with natural geographic features and not on racial lines,” that “de facto segregation” resulted from the residential pat terns and that assignment by fair zones was constitutional. The Court affirmed the failure of the District Court to enter an order against faculty segregation citing its contempo raneous decision in Bradley v. School Board of the City of Richmond, 345 F. 2d 310 (4th Cir. 1964), where it said that pupils have standing to raise the issue to the extent it in volved an asserted denial of their rights, but that the issue was ignored below and there was “no inquiry as to the pos sible relation, in fact or in law, of teacher assignments to discrimination against pupils” or of the impact of such an order. It said that the District Court had “a large measure of discretion” concerning “whether and when” to make an inquiry into faculty desegregation (345 F. 2d at 320). The Fourth Circuit upheld the order permitting plain tiffs to remain in the schools they had entered under the earlier court orders notwithstanding this was inconsistent with the zoning plan saying that the trial court had a dis cretion to make such exceptions “as fairness and justice seem to it to require.” Judge Bryan dissented in part argu ing that the plaintiffs should be retransferred to the schools in their zones (345 F. 2d at 329). Judges Sobeloff and Bell concurred separately agreeing that zone boundaries drawn without racial discrimination 16 may be accepted, bat noting that “the size and location of a school building may determine the character of the neigh borhood it serves” and that the school board “must keep in mind its paramount duty to afford equal educational oppor tunity to all children without discrimination; otherwise school building plans may be employed to perpetuate and promote segregation” (345 F. 2d at 329). Judges Sobeloff and Bell also stated that their concurrence was subject to the views expressed in their separate opinion of the same date in Bradley v. School Board of the City of Bichmond, 345 F. 2d 310, 321. In that case they dissented from the failure of the court to order desegregation of teaching staffs: The composition of the faculty as well as the com position of its student body determines the character of a school. Indeed, as long as there is strict separa tion of the races in faculties, schools will remain “white” and “Negro,” making student desegregation more difficult. The standing of the plaintiffs to raise the issue of faculty desegregation is conceded. The question of faculty desegregation was squarely raised in the District Court and should be heard. It should not remain in limbo indefinitely . . . (345 F. 2d at 324). 17 Reasons for Granting the Writ The approval of Hopewell’s desegregation plan by the courts below presents questions of general public im portance bearing on the extent to which the principle of Brown v. Board of Education, 347 U. S. 483, 349 TJ. S. 294, will be implemented in the states which have required public school segregation. First, the case involves the adequacy of a school board’s arrangements to satisfy its duty to disestablish a segregated school system which it created over the years by racially gerrymandering school attendance districts and related practices. It is important that this Court deal with this issue, even though it involves details of local assignment practices, in order to guide and encourage the lower federal courts to deal with the important detailed problems that ultimately determine whether Brown is implemented in any meaningful fashion vdiere a school board is recalci trant. As some districts retreat from massive resistance they may believe that segregation can be maintained by “sophisticated” rather than “simple minded” (cf. Lane v. Wilson, 307 U. S. 268, 275) techniques. To them it must be shown that their ingenuity should be directed at achiev ing compliance, not in avoiding it. Second, there is a question on the level of principle rather than that of implementation. Faculty segregation is a matter of widespread concern in thousands of school sys tems. The teacher segregation problem, also presented in the companion petition for certiorari filed in Bradley v. The School Board of the City of Richmond, supra, is a 18 matter which cries out for prompt resolution by this Court. As we argue below, faculty segregation preserves the seg regated all-Negro schools and prevents the creation of truly nondiscriminatory school systems. The United States Com missioner of Education in implementing Title VI of the Civil Eights Act of 1964 (42 U. S. C. A. §2000d) has an nounced in a general policy statement that “all desegrega tion plans shall provide for the desegregation of faculty and staff,” 25 but only a few courts have taken unequivocal action. The Commissioner of Education is faced with the problem of passing upon thousands of school district de segregation plans within a very brief period of time. To this end, he has established procedure whereby school boards may qualify for aid by filing with his office either an “Assurance of Compliance” (HEW Form 441), or a final court order requiring desegregation, or an acceptable plan for desegregation (General Policy Statement, supra, II). The failure of the school board herein to act with respect to teachers apparently violates HEW requirements. More over, if HEW were to review the desegregation plan in operation in Hopewell it might disapprove of it. But the 25 General Statement of Policies Under Title VI of the Civil Rights Act of 1964 Respecting Desegregation of Elementary and Secondary Schools, HEW, Office of Education, April 1964. The document, hereinafter cited as “General Policy Statement” is re printed in the appendix to Price v. The Denison Independent School District,----- P. 2 d ------ - (5th Cir. No. 21632, July 2, 1965), and in Southern School News, May 1965, pp. 8-9. The Commissioner’s action is clearly in accord with the intent of the legislative proponents of the Act. See the speech of Vice President (then Senator) Humphrey introducing Title VI in the Senate, clearly stating that the Commissioner can require “elimina tion of discrimination in employment or assignment of teachers” (110 Cong. Eec. 6325 (daily ed. March 30, 1964)). 19 “final court order” rule which HEW has adopted apparently insulates Hopewell from its scrutiny. Moreover, the gen eral policy of HEW has been to impose requirements com parable to those required by the federal judiciary in the area. It is in the national interest that a uniform rule be announced by this Court. I. The Pupil Assignment Plan Approved Below Operates to Minimize Desegregation and Is Not Adequate to Cor rect Racial Segregation Created by Public Officials. When this case commenced Hopewell’s public school children were completely segregated by race in eight schools established on a racial basis by the use of school attendance areas adopted for the purpose of separating Negroes from whites. After prolonged litigation the courts below ap proved a plan sanctioning minimal changes. The approved plan employs school zones only slightly different from those used before, with the result that one formerly white ele mentary school and one formerly white high school have a few Negro pupils and the other schools remain as they were before the suit. The trial court ultimately approved a plan based on attendance zones which it found were established on the basis of race prior to Brown v. Board of Education, supra, on the mistaken ground that a pupil transfer provision in the plan would alleviate the situation in the “unsettled zones” established for Woodlawn and Arlington Elemen tary Schools and for Hopewell and Woodson High Schools. Although the trial court had relied on the earlier Fourth 20 Circuit suggestion of some nongeograpliic assignment method in these areas (see 332 F. 2d at 462), the Fourth Circuit approved the plan on a different ground. It held (we believe erroneously) that the trial court had found the zones fair and nonracial, and added its own conclusion that this was so. Both courts employed the term de facto seg regation to describe the results of the plan, thus ignoring the school board’s role in creating and continuing the seg regated situation and excusing its failure to ameliorate the situation it created. The approved plan employed the very same school zones which the trial court denounced three months before as based on race resulting in segregation.26 The trial court referred to the pupil transfer rules in the amended plan, which were only applicable to the specific areas previously criticized, as “the chief difference” between the plan ap proved and the plan rejected earlier (R. V-44). However, this difference in the form of the plan made absolutely no difference in the results of the plan. The transfer rule, applicable only to elementary pupils in the Woodlawn and Arlington areas, and to high school pupils, allowed transfers out of attendance areas only for pupils who lived closer to a school outside their areas. The reality —-as a glance at the map reveals—is that only white pupils 26 On April 6, 1964, Judge Butzner criticized the high school zones and the Arlington-Woodlawn elementary zones. He specifi cally said that the Arlington-Woodlawn boundary “line has been drawn separating the predominantly white neighborhood from the predominantly Negro neighborhood” (R. IY-27). Actually, the Woodlawn zone was “entirely,” rather than “predominantly,” white and there was no testimony that there w'ere any white school children in the Arlington zone (Smith Tr. 15). 21 were so situated and no Negro pupils lived in areas where they could use this transfer rule. If white pupils were attempting to get transfers out of all-white schools to attend schools with Negro pupils and all-Negro faculties, the provision would indeed promote desegregation. But, as is well understood, that situation does not exist in Hope- well. Negroes were the ones who are seeking to end the segregated pattern in Hopewell. Thus, it was totally un reasonable to expect that any change in the racial composi tion of the schools would occur because of this transfer rule. The rule was meaningless because the Negroes who wanted transfers could not get them and the whites who could get transfers did not want them. Considering the realities, it is not at all surprising that the Court of Appeals barely mentioned the transfer rule and placed little if any reliance on it to sustain the plan. But there is considerable irony in this because although the trial court had rejected the plan in the absence of the trans fer feature, the Fourth Circuit approved the plan on the ground that the zones were fair and nonracial and asserted that the trial court supported this view. There is no persuasive indication that the trial court on July 2, 1964, modified its April 6, 1964, finding that the zones were drawn on a racial basis to separate the Negro and white residential areas. The later opinion expressly embraced the earlier findings modifying them only to the extent to mentioning new data estimating school enroll ments for the affected schools in the forthcoming (Septem ber 1964) term. There was no enrollment change which could be thought to have supported a different conclusion, since neither Arlington nor Woodlawn school was over 22 crowded at any time during the litigation, while the pattern of overcrowding in the white high school and under-utili zation of the Negro high school also continued throughout.27 It cannot be gainsaid that Judge Butzner repeatedly indi cated that the transfer feature of the new plan, which he conceived as consistent with the suggestion made by the Court of Appeals in its first opinion, was the principal basis for his approval of the plan. The one sentence in his oral opinion which lends any support to the view that he ap proved the zones was one in which he said that he thought the board was trying in good faith to create zones con sistent with school capacity and attendance. Yet in this very sentence Judge Butzner again referred to the “un settled zones” and the Fourth Circuit suggestion for another assignment method in those areas. In any event, there are a variety of reasons why the zones should not have been approved by either the Fourth Circuit or the trial court (if it did approve them). The controversy focuses on the Woodlawn-Arlington Elementary boundary and also on the high school attendance pattern. We shall discuss them in that order, before reviewing several more general problems relating to the obligation of a school board to correct an unlawful system which it has created. Throughout the case the Arlington-Woodlawn boundary has effectively separated the Negro and white pupils living on each side of the boundary between the two completely segregated schools. The boundary was drawn for this pur pose at a time when segregation was mandated by Virginia 27 See statistics for 3 consecutive school years bearing this out in notes 5 and 22, supra. 23 law. Arlington, a small school at the western edge of the City has served the small Negro population in that area. Woodlawn, a larger school, serves the larger white popula tion in the nearby area which comes within one block of Arlington School. Arlington, like all of the Negro schools, is much smaller than the white schools. None of the Negro schools has enrolled or is built to accommodate even half as many pupils as the smallest white school. Although the Arlington area was based on race, the boundary accomplished this without any ingenious classical gerrymander. This boundary just ran along ordinary streets that separated the Negro and white pupils’ resi dences. True to its purpose, the boundary did zone white pupils living just one block from the Negro school into a white school more than a dozen blocks away (R. III-31). But the racial residential pattern was such that there was no need for a meandering line forming a classical gerry mander with a grotesque shape. Such a flagrant and obvious gerrymander in the classic sense had been used in Hopewell to separate the James and Copeland schools; the line meandered through 20 or more turns back and forth across a railroad track to separate Negro and white homes (see P i’s Ex. 7, the first zone map). The change of this gerrymander was the only alteration of the prior zones which has produced any actual desegrega tion of a school. The only Negro pupils in Hopewell entitled to attend a white school are approximately 51 children at the eastern side of the City who live in the area changed from James to Copeland. The high school pupils among this group of 51 are in the Hopewell High School zone ac counting for the only high school desegregation under the plan. 24 The school board did make a slight change of the Arling- ton-Woodlawn boundary; it straightened one portion of the line which wound between Negro and white houses without affecting the school population (Smith Tr. 15). This change moved a short segment of the line from Arlington Road one block west to Wall Avenue (ibicl.). As noted, Judge Butzner condemned the boundary before and after it was altered (R. 1-45; IV-27). But the Court of Appeals said that the boundary was logical and rea sonable because the court said it followed “a main arterial highway” (345 F. 2d at 327). This determination that the line followed a highway is obviously based on a misunder standing of the testimony. The school board never really claimed this, and the only trial court finding on the sub ject tends to show the contrary, as does the testimony. At the first trial, June 10, 1963, the superintendent, when asked if there was any barrier between Arlington and Woodlawn, replied: “No. There is no gully, ravine, that soft of thing. There is a street” (R. III-43). There was a finding to this effect (R. 1-47). After the new map was adopted Superintendent Smith gave a great deal of testi mony about this boundary in hearings on March 23 (Smith Tr. 20-26) and April 6, 1964 (R. IV-2-8, 14-18, 19), and an affidavit (R. 1-92). In all of this testimony there was no claim that the boundary followed a main traffic route and there is testimony to the contrary.28 There is a major road 28 Some of the streets which constitute the boundary are Old Courthouse Road, Berry Street, Wall Avenue and Wall Street. Superintendent Smith said Old Courthouse Road “is not a major traffic artery, but it is used sometimes in getting to Route 36.. . . for people who live in this area” (Smith Tr. 22). There was.no testimony that Berry Street was a major traffic artery. At one 25 in the area, a four lane highway along Palm Street and Plant Street (R. IV-16-17) which runs across the Wood- lawn attendance area and across a small portion of the Arlington area but does not serve as a boundary at all. The school board in arguing the ease below has made much of the fact that a boundary change proposed to the board by petitioners would overcrowd Arlington School. But the fact remains that large numbers of white pupils do live closer to the Negro school, some of them within a block of Arlington and more than a dozen blocks from Woodlawn. The school board continues to assign them to the white school, the Superintendent saying: “Woodlawn School could hold them. There was no point taking them out of there” (R. IV-19). While Arlington could not accom modate every white pupil in the nearby area so long as the present number of Negroes are assigned there it could accommodate some of them. The number obviously de pends on the number of Negroes living greater distances from Arlington than the whites who are assigned to Arling ton. The present number of Negroes at Arlington also relates to the fact pupils in grades 6 and 7 in the Arlington area were recently returned to Arlington from the Wood- son School (Superintendent’s Affidavit, R. 91). The sum of the matter is that the school board, faced with a variety of courses of action, has consistently chosen the course of point the Superintendent said he thought Wall Street was going to be connected to Palm Street, an “arterial throughway” (Smith Tr. 23-24). But he acknowledged that there was no existing connection between Wall and Palm (Smith Tr. 24), subsequently retracted the original statement by saying that Wall and Palm would not connect (R. TV-3-4), and filed an affidavit that the con nection might be at High Street and Palm (R. 1-92). So Wall Street is not a highway, or connected to a highway, or even a through street (Smith Tr. 25-26). 26 action which maintains Arlington and Woodlawn Schools completely racially segregated. Petitioners submit that something more than this is necessary to satisfy the board’s constitutional duty to undertake to reform the segregated situation which it deliberately created in the first place. The high school attendance plan is even more patently designed to maintain racial segregation. All pupils in the areas of the three Negro elementary school zones are as signed to Woodson High and all pupils in the two all-white and one predominantly white elementary zones are assigned to Hopewell High. The Fourth Circuit upheld the zones based on the following reasoning: (1) The elementary zones are reasonable; (2) the high school zones are com binations of the elementary zones; ergo, (3) the high school zones are reasonable. The court’s reasoning ignores the critical facts that the secondary schools have different en rollments, capacities, and locations than the various ele mentary schools. The result of the high school zoning is shocking. The large white high school has been overcrowded consistently and remains overcrowded even with the school program altered by a special extended day operation to increase the capacity of the building without adding more rooms. The small all-Negro high school (about one-third the size of the white school) is significantly under-utilized operating on a regular school day basis.29 This pattern is not com pelled by any topographic features and residential pat 29 The overcrowding at Hopewell High and under-utilization of Woodson High has existed at least since 1960. See enrollment statistics for November 1960 (Plaintiffs’ Exhibit 11) and September 1962 (Plaintiffs’ Exhibit 17c). The more recent enrollment data appears in notes 5 and 22, supra. terns. Large numbers of white pupils live closer to the Negro high school than they do to Hopewell High. Some of these white pupils traveling to Hopewell High from the Woodlawn attendance area not only live closer to AVood- son, but have to cross more railroad tracks and highways to get to Hopewell. Judge Butzner so found (R. IV-26-27). The school board, before the suit was filed, maintained segregation by assigning all white children to Hopewell and all Negroes to Woodson. Hopewell High School was built in 1925 and expanded over the years to serve the white high school population (R. III-ll). Carter G. Woodson High School was planned, located and built for Negroes during Virginia’s massive resistance e ra ; it opened in 1958 as an all-Negro school (R. I II- ll; IV-18-19). Woodson was built to accommodate approximately one-fourth of the pupils in a system where almost one-fourth are Negro, and assigned an all-Negro staff. It was located on the edge of the Negro ghetto, and white families in the area moved away during its construction (R. IV-18-19). Thus, the school segregation policy may have had a direct impact on the residential pattern. Certainly, it is true that the segre gation system at the high school level was reenforced and concretized subsequent to the Brown decision by the erec tion of a new all-Negro high school. The school’s location and size facilitates segregation. The court-approved plan allows a small number of Negro children living at the edge of the ghetto (Copeland area) to attend the white high school and leaves the pre-existing situation otherwise intact. In discussing both high schools and elementary schools the court below uses the term de facto segregation and cites Bell v. School City of Gary, Indiana, 324 F. 2d 209 (7th Cir. 1963), cert, denied 377 U. S. 924, a case involving distinct issues in a northern community. Whatever may be the constitutional obligation of school systems with racially imbalanced schools caused by varied conditions and policy decisions (see generally, Fiss, “Racial Imbalance in the Public Schools: The Constitutional Concepts,” 78 Harv. L. Rev. 564 (1964)), this case presents the signifi cantly different problem of a segregated school system which was carefully and deliberately established as such over a period of years under Jim Crow laws compelling segregation. The issues here relate to the duty of a school system to take the action necessary to eliminate the effects of its own deliberate and long sustained deliberate segrega tion policies. Segregation in Hopewell was actively fostered by locating schools of particular sizes on particular sites to accommodate Negro pupils (and only Negro pupils) and by drawing school zones to embrace the Negro population. Hopewell’s case is much like that of New Rochelle, New York, where the courts required steps to undo the effects of past racial gerrymandering and transfer policies. Taylor v. Board of Education,. 191 F. Supp. 181 (S. D. N. Y. 1961), aff’d 294 F. 2d 36 (2nd Cir. 1961), cert, denied 368 IJ. S. 940. The differences are that Hopewell’s segrega tionist practices were open, compelled by law and much more recent than the gerrymandering in New Rochelle which was covert and occurred many years before the law suit. Whatever might be said of Hopewell’s geographic zoning plan for assigning pujuls if it were appraised hypothetically in another context where there was no history of compul sory segregation, this case should be decided in its factual context against the background of school planning and manipulation to foster segregation. Against that back ground it is reasonable to judge the plan by its results. A plan which leaves the four all-Negro schools completely segregated, and allows only about 50 Negro pupils to attend two of four white schools, plainly has not been adequate to eliminate the segregated situation created by past prac tices. Hopewell has exerted every effort to keep desegre gation to a minimum, including twice appealing to the Court of Appeals to remove Negroes from white schools. The courts below have allowed Hopewell’s board to succeed in minimizing desegregation by giving approval to the plan of geographic areas organized on a racial basis around schools located for Negroes. The artificiality of the present system is made entirely plain when one contemplates the fact that not one of the Negro schools has even one-half as many pupils as the smallest white school. The continu ance of segregation cannot be justified by topography or alleged natural barriers such as railroad tracks which were ignored frequently in constructing zones to accomplish seg regation prior to the lawsuit. Nor can school segregation be passed off as an inevitable consequence of residential patterns where schools have been deliberately established so as to conform exactly to the segregated housing pattern; 30 II. S e g reg a tio n o f P u b lic S choo l F a c u ltie s V io la tes th e F o u r te e n th A m e n d m e n t a n d S h o u ld B e A b o lish ed . We submit that the courts below have erred in refusing to require Hopewell’s public school authorities to end the practice of assigning all white teachers to white schools and all Negro teachers to Negro schools. Petitioners’ view is that this segregationist practice of hiring and placing public school teachers on a racial basis is unconstitutional per se and has not the slightest justification under the Constitution. In a long series of cases since Brown this Court has invalidated state requirements of segregation in every context in which they have appeared.30 The only possible justification for withholding relief in this case is that petitioners who are public school pupils are not entitled to invoke the aid of the courts to halt the admittedly unlawful practice. Petitioners submit that the 30 In a unanimous opinion this Court said: “ . . . [U]nder our more recent decisions any state or federal law requiring applicants for any job to be turned away, because of their color would be invalid under the Due Process Clause of the Fifth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.” Colorado Anti-Discrimination Commission v. Continental Air Lines, 372 U. S. 714, 721. See also, Johnson v. Virginia, 373 U. S. 61 (courtroom); Bailey v. Patterson, 369 U. S. 31 (transportation) ; Peterson v. Greenville, 373 U. S. 244 (restaurant) ; Turner v. Memphis, 369 U. S. 350 (airport restaurant) ; Browder v. Gayle, 352 U. S. 903 (buses); Griffin v. School Board of Prince Edward County, 377 U. S. 218 (schools) ; Dawson v. Baltimore City, 350 U. S. 877 (municipal beaches) ; Holmes v. Atlanta, 350 U. S. 879 (municipal golf courses). 31 unlawful practice is closely linked to their right under Brown v. Board of Education, 349 U. S. 297, to have the district courts supervise the effectuation of “a racially non- diseriminatory school system” (349 U. S. at 301, emphasis added). The Court in deciding the second Brown case, supra, pointed to administrative problems related to “the physical condition of the school plant, the school transpor tation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonraeial basis, and revision of local laws and regulations . . . ”, as matters to be considered in appraising the time necessary for good faith compliance (emphasis added). We believe that the Court plainly regarded the task as one of ending all discrimination in school systems, including “personnel” as well as discrimination in the transportation system, at tendance districts or the other factors mentioned. The de lay countenanced by the “deliberate speed” doctrine was predicated on the assumption that dual school systems would be reorganized. The brief of the United States, as amicus curiae, in Calhoun v. Latimer, 377 U. S. 263, argued in this Court that: Obviously, a public school system cannot be truly non- discriminatory if the school board assigns school per sonnel on the basis of race. Full desegregation can never be achieved if certain schools continue to have all-Negro faculties while others have all-white faculties. Schools will continue to be known as “white schools” or “Negro schools” depending on the racial composi tion of their faculties. It follows that the school au thorities must take steps to eliminate segregation of 32 personnel as well as pupils. (Brief of the United States, pp. 39-40.) The Court in Calhoun vacated the judgment without dis cussion of this issue. We submit that this case presents an appropriate occasion to consider this question. Faculty segregation was an integral part of the segre gated school systems maintained under the separate but equal doctrine. It was the well-known general practice that Negroes taught only Negroes and whites taught only whites. Virginia law encourages teacher segregation by providing that teachers may terminate their contracts when pupils are desegregated “or both white and Negro teachers shall have been employed in the school to which the contracting teacher is assigned.” 31 An all-Negro faculty is as sure an indicator that a school is a “Negro” school as a racial sign over its door. Judges Sobeloff and Bell were plainly right in their dissent in the Richmond school case32 where they said that “composition of the faculty as well as the composition of its student body determines the character of a school,” and that with “strict separation of the races in faculties, schools will remain 'white’ and ‘Negro,’ making student desegregation more difficult.” 33 31 Code of Va., 1950, §22-207 (1964 Replacement Vol.). The above-quoted provision encouraging faculty segregation was adopted in 1962. (Va. Laws 1962, c. 183.) Under Virginia law division school superintendents have authority to assign and re assign teachers. Code of Va. 1950, §22-205. 32 Bradley v. School Bd. of City of Richmond, Va., 345 F 2d 310, 324 (4th Cir. 1965). 33 Id. at 324. 33 But the Fourth Circuit has not stated its clear disap proval of faculty segregation in any of the cases in which it has considered the matter34 and apparently has adopted the view that faculty desegregation must depend upon some kind of evidentiary showing by plaintiff Negro pupils that 34 Faculty segregation was first considered by the Fourth Circuit in Jackson v. School Board of the City of Lynchburg, 321 F. 2d 230, 233 (4th Cir. 1963), where it held that a complaint asking for desegregation of a school system was sufficient to raise the question. See also, Griffin v. Board of Supervisors, 339 F. 2d 486, 493 (4th Cir, 1964) ; Bowditch v. Buncombe County Board of Ed., 345 F. 2d 329, 332, 333 (4th Cir. 1965) ; Wheeler v. Durham City Board of Education,----- F. 2 d -------(4th Cir. No. 9630, June 1, 1965), and, of course, the Bradley ease, supra, and the instant case. In the Fifth Circuit see: Board of Public Instruction of Duval County v. Braxton, 326 F. 2d 616, 620 (5th Cir. 1964), cert, denied 377 U. S. 924 (affirming a trial court order requiring a faculty desegregation plan). See also Augustus v. Board of Public Instruc tion of Escambia County, 306 F. 2d 862 (5th Cir. 1962); Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1963), vacated and remanded 377 U. S. 263. The Sixth Circuit has twice held that it was proper for pupils and their parents to raise the issue of segregation of teachers. Mapp v. Board of Education of City of Chattanooga, 319 F. 2d 571, 576 (6th Cir. 1963) ; Northcross v. Board of Education of City of Memphis, 333 F. 2d 661, 666 (6th Cir. 1964). Several other courts have discussed the question of segregation of teachers with a variety of results. Brooks v. School District of City of Moberly, Mo., 267 F. 2d 733 (8th Cir. 1959), cert, denied 361 U. S. 894 (1959); Franklin v. County School Board of Giles County, Civil No. 64-C-73-R, W. D. Va., June 3, 1965; Christmas v. Board of Education of Harford County, 231 F. Supp. 331 (D. Md. 1964); Nesbit v. Statesville City Board of Education, 232 F Supp. 288 (W. D. N. C. 1964), vacated, 345 F. 2d 333 (4th Cir. 1965); Tillman v. Board of Instruction of Volusia County, Florida, Civil No. 4501, 7 Race Rel. L. Rep. 687 (S. D. Fla. 1962) ; Manning v. Board of Public Instruction of Hillsborough County, Fla Civil No. 3554, 7 Race Rel. L. Rep. 681 (S. D. Fla. 1962); Lawrence v. Bowling Green, Ky. Board of Education, Civil No. 819, 8 Race Rel. L. Rep. 74 (N. D. Ky. 1963); Mason v. Jessamine County, Ky. Board of Education, Civil No. 1496, 8 Race Rel. L. Rep. 75 (E. D. Ky. 1963) Dowell v. School Board of Oklahoma City Public Schools, 219 F. Supp. 427 (N. D. Okla. 1963), 34 they are disadvantaged by the practice in the circumstances of the particular case. That is the only reasonable expla nation for the Fourth Circuit’s repeated statements in cases where the existence of faculty segregation is undisputed, that there was insufficient showing that faculty segregation was a denial of plaintiffs’ constitutional rights. The Fourth Circuit apparently accepts the standing of pupils to litigate the question but demands that they prove that faculty segregation is a discrimination against them—as opposed to a discrimination against the teachers themselves. But, as Judges Sobeloff and Bell have said, faculty seg regation obviously makes student desegregation more dif ficult. A school board decision that it is willing to assign some Negro pupils to classes with white pupils and white teachers but that it is unwilling to assign white pupils to classes with Negro teachers obviously limits the range of choices the board has when it determines pupil assignment patterns or attendance areas. The Negro faculty school obviously continues as a school for Negro pupils only. To the extent that students or parents are given a choice be tween schools, faculty segregation encourages them to make their choice on a racial basis. The very existence of fac ulty segregation reflects the school authorities’ judgment that the race of teachers is significant and makes a dif ference. Cf. Anderson v. Martin, 375 U. S. 399. This is obvious in the context of states where school segregation has been defended vigorously by public officials for a decade since Brown. Faculty segregation assures continuance of the prevail ing trend of one-way desegregation, i.e., movement of Negro pupils to formerly white schools without any cor responding movement of white pupils to Negro faculty 35 schools. Throughout the southeast part of the country there are few exceptions to this brand of desegregation which leaves the “Negro” school intact with an all-Negro student body and faculty. It is estimated that there are 419,199 white teachers and 116,028 Negro teachers in 11 southern states, 6 border states (excluding Maryland) and the District of Columbia.35 In 1963-64, Virginia public schools employed 31,443 white teachers and 9,051 Negro teachers.36 There were 733,524 white pupils and 34,176 Negro pupils (total 967,700).37 Of 128 districts with Negro and white pupils, 81 districts had at least one Negro pupil in school with whites in November 1964, but only five of those districts had Negroes teaching in school with whites.38 There was no facility desegregation in Alabama, Georgia, Louisiana, Mississippi and South Carolina.39 One North Carolina district, 2 Florida districts, and 7 Tennessee districts had some faculty desegregation, and one Arkansas district had a Negro supervisor of ele mentary schools but no Negro teachers in desegregated classes.40 35 Southern Education Reporting Service, Statistical Summary of School Segregation-Desegregation in the Southern and Border States, 14th Rev. (Nov. 1964), p. 2. 36 Id, at 59. 37 Ibid, 38 Ibid. The summary reports: “Some Negro teachers are teach ing in schools with whites in Alexandria and Roanoke, and in Arlington and Fairfax Counties. In Prince Edward County, nine of the 68 teachers in the county’s one high school and three ele mentary schools are white.” 39 id. at 2. 40 Id. at 8, 15, 39, 50. 36 Within the Negro community Negro teachers generally are recognized as having a leadership role with a compara tively high economic position,41 but their potential as leaders in efforts to promote desegregation of public facili ties and schools is limited by the vulnerability of their posi tion as employees of segregationist state agencies.42 Con tinued faculty segregation, posing the danger of discharge of Negro teachers as Negro pupils go to white schools where no Negro teachers are assigned, threatens potentially disastrous social consequences for one of the most impor tant social and economic groups in Negro communities in the South. A recent decision by Judge Michie in the Western Dis trict of Virginia enjoined school authorities who discharged every Negro teacher in a small system when the schools desegregated (Franklin v. School Board of Giles County, ----- F. Supp. ----- , W. D. Va., Civ. No. 64-C-73-K, June 3, 1965). Other cases involving Negro teachers discharged 41 According to the 1960 census the median income for the non white family was $3,662, but the median for the non-white family whose head was employed as an elementary or secondary teacher was $6,400 (1960 Census of Population, Vol. I, “Characteristics of the Population,” Part I, U. S. Summary, Table 230, pp. 1-611). 42 Lamanna, Richard A., “The Negro Teacher and Desegrega tion”, Sociological Inquiry, Vol. 35, No. 1, Winter 1965. Alabama has enacted 7 laws to permit firing of teachers who advocate de segregation (1956 1st Sp. Sess., Acts 40, 41; 1957 Sess., Act 239, 361; 1961 Sp. Sess., Acts 249, 383, 443). Arkansas laws prohibited NAACP members from holding public employment and required teachers to list organization membership until Shelton v. Tucker, 364 U. S. 479. A series of Louisiana laws provided for dismissal of public employees advocating integration (La. Acts 1956, Acts 248, 249, 250, 252). Until challenged in court South Carolina barred public employment of NAACP members (S. C. Acts 1956, Act 741), repealed by Act 223 of 1957. See Bryan v. Austin, 148 F. Supp. 563 (E. D. S. C. 1957), judgment vacated 354 U. S. 933 37 coincident with desegregation are pending in various dis trict courts. (A partial listing of communities where such cases were recently filed includes Morganton, N. C., Hender sonville, N. C., Asheboro, N. C., Pitt County, N. C., Stanton, Texas, and Wagoner, Oklahoma.) Petitioners submit that faculty segregation per se vio lates the constitutional rights of Negro pupils because of its inevitable tendency to impede desegregation of pupils. In recognition of this the United States Commissioner of Education, implementing Title VI of the Civil Eights Act of 1964,43 has announced the following ruling to all school districts submitting plans for desegregation in order to qualify for federal financial aid (General Policy State ment, supra, Part V.B.) : 1. Facility and staff desegregation. All desegre gation plans shall provide for the desegregation of faculty and staff in accordance with the following requirements: a. Initial assignments. The race, color, or national origin of pupils shall not be a factor in the assign ment to a particular school or class within a school of teachers, administrators or other employees who serve pupils. b. Segregation resulting from prior discriminatory assignments. Steps shall also be taken toward the elimination of segregation of teaching and staff per sonnel in the school resulting from prior assignments based on race, color, or national origin (see also, V.E. 4(b)). 43 42 U. S. C. A. §2000d. 38 The General Policy Statement also indicates that HEW will not accept an “Assurance of Compliance” (HEW Form 441) from any school system in which “teachers or other staff who serve pupils remain segregated.” We submit that the determination by the United States Commissioner of Education that faculty desegregation must be included in order for a desegregation plan to be “adequate to ac complish the purposes of the Civil Eights Act” is entitled to substantial weight. Furthermore, the Commissioner’s determination implements the clear intent of the Civil Eights Act as expressed by congressional proponents of Title VI. Vice President (then Senator) Humphrey clearly expressed the view that Title VI authorized the Commissioner to require elimination of teacher segre gation when introducing the provision in the Senate: In such cases the Commissioner might also be jus tified in requiring elimination of racial discrimina tion in employment or assignment of teachers, at least where such discrimination affected the educa tional opportunities of students. See Board of Edu cation v. Braxton . . . This does not mean that Title VI would authorize a federal official to prescribe pupil assignments, or to select a faculty, as opponents of the bill have sug gested. The only authority conferred would be au thority to adopt, with the approval of the President, a general requirement that the local school authority refrain from racial discrimination in treatment of pupils and teachers and authority to achieve compli ance with that requirement by cutting off funds or by other means authorized by law. (110 Cong. Eec. 6325 (daily ed. March 30, 1964).) 39 The Fourth Circuit has not indicated any justification for the policy of assigning teachers on the basis of the race of the pupils, and the school authorities have not sug gested any. Nor have the school authorities made any effort to establish that there are administrative obstacles to faculty desegregation justifying delay under the doc trine of the second Brown decision (349 U. S. at 300-01). But in the Bradley case, supra (relied upon in deciding this case), the Fourth Circuit apparently embraced the idea that teacher assignments in accord with the race of pupils were acceptable and seems to have assumed that there were administrative problems in faculty desegrega tion which justified delays. The Court said: The possible relation of a reassignment of teachers to protection of the constitutional rights of pupils need not be determined when it is speculative. When all direct discrimination in the assignment of pupils has been eliminated, assignment of teachers may he expected to follow the racial patterns established in the schools. An earlier judicial requirement of gen eral reassignment of all teaching and administrative personnel need not be considered until the possible detrimental effects of such an order upon the admin istration of the schools and the efficiency of their staffs can be appraised along with the need for such an order in aid of protection of the constitutional rights of pupils. (345 F. 2d at 320-321; emphasis supplied.) There was no explanation of why the teachers assignment patterns should follow the racial patterns of pupils, and no discussion of the duty of the school board to make 40 initial teacher assignments in the future on a nonracial basis. The opinion contains no indication that it is the responsibility of a school board to hire and place new employees without regard to race and to develop a plan for faculty reorganization; or that the board has the burden of establishing the existence of any administrative prob lems proffered to support delay under the deliberate speed doctrine. A policy of assigning teachers to schools on the basis of the race of the pupils is plainly invidious even without regard to its effect on what schools various pupils attend. Pupils admitted to public schools are entitled to be treated alike without racial differentiations in those schools. McLcmrin v. Oklahoma State Regents, 339 U. S. 637. The student’s relationship with teachers is central to the edu cational experience in public schools. When a state de crees that those Negro pupils in all-Negro schools be taught only by Negro teachers and that those Negro pupils in schools with white children be taught only by white teachers, it significantly perpetuates the segregation of Negro Americans in their educational experience. This is contrary to the egalitarian principle of the Fourteenth Amendment and the teaching of Brown that segregated education is “inherently unequal.” 41 CO NCLUSIO N I t is re s p e c tfu lly s u b m itte d th a t f o r th e fo re g o in g re a so n s th e p e ti t io n f o r c e r t io r a r i sh o u ld b e g ra n te d . J ack Greenberg J ames M. N abrit, III 10 Columbus Circle New York, N. Y. 10019 S. W. T u ck er H enry L. M arsh , III 214 East Clay Street Richmond 19, Virginia Attorneys for Petitioners A P P E N D I X APPENDIX M e m o ra n d u m o f th e C o u rt [Filed July 11, 1963] Nine Negro students and their parents instituted this action to require the defendants to transfer the students from Negro public schools to white public schools. The plaintiffs filed their suit as a class action on behalf of all persons similarly situated and prayed that the defendants be enjoined from denying any students admission to a white school on the basis of race. The defendants answered, generally denying that the plaintiffs are entitled to the relief which they seek. The City of Hopewell operates the following public schools which are attended by wdiite pupils: Capacity Attendance Patrick Copieland Elementary 740 770 DuPont Elementary 870 832 Woodlawn Elementary 720 649 Hopewell High School 1,075 1,279 The City also operates the following schools wdrich are attended by Negro pupils: Capacity Attendance Harry E. James Elementary 330 167 Arlington Elementary 270 195 Carter G. Woodson 300 286 Carter G. Woodson High School 350 257 The plaintiffs, who sought transfer to Hopewell High School, were denied assignment primarily because they 2a lived outside the “long established attendance area.” As signments to public schools in Hopewell are made accord ing to geographical attendance areas. The Pupil Placement Board usually makes formal assignment upon the recom mendation of the City School Board. The attendance areas for the several schools were estab lished prior to the decision in Brown v. Board of Educa tion, 347 U. S. 483 (1954). Minor changes have been made from time to time. The areas follow the distribution of Negro and white residences in the city. In some instances the areas are defined by natural boundaries; in others there is no distinction other than the racial composition of the neighborhoods. The attendance areas for Arlington School, Carter G. Woodson School and Harry E. James School lie generally south of the Norfolk and Western Railway tracks. The Harry E. James School attendance area is bounded on the west by the railway classification yard. The Seaboard Air Line Railroad forms the boundary between Arlington School and Carter G-. Woodson School. The defendants argue that for reasons of safety and convenience the tracks form natural boundaries for these areas. Some of the Harry E. James School attendance area lies to the north of the tracks. A ravine isolates a part of this area from the Patrick Copeland School area. If the boundaries of the attendance areas had been lo cated only with, reference to the tracks and ravine, the defendants’ argument would have considerable merit. How ever, the tracks have not been used consistently as bound Memorandum of the Court 3a aries. The same Norfolk and Western tracks bisect the Woodlawn school attendance area. The Seaboard Air Line tracks cross the DuPont School area. Portions of the DuPont and Patrick Copeland school areas lie south of the Norfolk and Western tracks, and part of the Harry E. .James School area lies north of the tracks. Also there is no natural barrier between the Woodlawn School area and the Arlington School area. The capacity of the schools, compared with the attend ance of the students, provides no rational criterion for the boundaries which have been selected. For example, the Patrick Copeland School has a capacity of 740 students, with attendance of 770. Adjacent to this school area is the Harry E. James School with a capacity of 330 but only 167 in attendance. Nevertheless a portion of the Patrick Copeland School area flows across the railway tracks into the Harry E. James School area. Hopewell High School for white students has approximately 200 students over its capacity. The Carter G. Woodson High School for Negro students has approximately 100 students less than capacity. On one occasion white students whose family moved into a Negro residential area were enrolled in a white school instead of the school which served the attendance area of their residence. This was done, in part, because the family intended to build a home in a white residential area. In Brown v. Board of Education, 349 U. S. 294, 300 (1955), the Court said: “While giving weight to these public and private considerations, the courts will require that the defen- Memorandum of the Court 4a dants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that addi tional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defen dants to establish that such time is necessary in the public interest and is consistent with good faith com pliance at the earliest practicable date. To that end, the courts may consider problems related to adminis tration, arising from the physical condition of the school plant, the school transportation system, person nel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a non-racial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the de fendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.” This case falls within the language of Brown pertaining to “revision of school districts and attendance areas into compact units to achieve a system of determining admis sion to the public schools on a nonracial basis.” The racial composition of neighborhoods may result in predominantly white or predominantly Negro school dis tricts even after the areas have been reshaped to comply Memorandum of the Court with the mandate of Brown. This, in itself, would not be a badge of unconstitutionality. Thompson v. County School Board of Arlington County, Virginia, 204 F. Supp. 620 (E. D. Va. 1962). The existence of this situation was recog nized in Dillard v. School Board of the City of Charlottes ville, 308 F. 2d 920 (4th Cir. 1962). The vice of the Char lottesville plan was not the composition of its attendance areas. The plan was invalid because of its unconstitutional provision for the transfer of students who found them selves in a racial minority. Goss v. Board of Education, 31 U. S. L. Week 4559 (U. S. June 3, 1963). The use of race to establish residential requirements for school assignments has been held invalid in this Circuit. In Green v. School Board of the City of Roanoke, Virginia, 304 F. 2d 118, 122 (4th Cir. 1962), Chief Judge Sobeloff wrote: “This court has on several occasions recognized that residence and aptitude or scholastic achievement cri teria may be used by school authorities in determining what school pupils shall attend, so long as racial or other arbitrary or discriminatory factors are not con sidered. See, e.g., Dodson v. School Board of City of Charlottesville, Virginia, 289 F. 2d 439, 442 (4th Cir., 1961); Jones v. School Board of City of Alexandria, Virginia, 278 F. 2d 72, 75 (4th Cir., 1960). But if these criteria, otherwise lawful, are used in a racially dis criminatory manner, the resulting assignment is not saved from illegality. As we have more than once made clear, school assignments, to be constitutional, 5 a Memorandum of the Court 6a must not be based in whole or in part on consideration of race.” In Evans v. Buchanan, 207 F. Supp. 820, 824 (D. Del. 1962), the distinction between valid and invalid attendance areas is clearly drawn: “There have been many lower court decisions since the Brown case held children may not be denied en trance to public schools solely on the basis of race. One of the teachings of these cases is that whether Negro children are deprived of their constitutional rights is a question of fact. Criteria such as trans portation, geography and access roads are rational bases for establishing public attendance areas or desig nating school districts. If, however, these criteria are merely camouflage and school officials have placed chil dren in particular districts solely because of race, a cause of action under the Constitution exists.” The Court concludes that the application of the fore going principles to the facts in this case demonstrates that the present attendance areas do not satisfy the require ments set forth in Brown v. Board of Education, 349 U. S. 294, 300 (1955). The plaintiffs, who sought admission to Hopewell High School, also were denied assignment to that school because of the distance from their residences to the school. White students were admitted to Hopewell High School regard less of the distance of their residences from the school. Memorandum of the Court 7a The Court concludes that the reasons assigned for deny ing admission to the plaintiffs were constitutionally dis criminatory. These students were also denied admission for failure to follow established procedure. Two students seeking ad mission to Patrick Copeland Elementary School were de nied admission because they failed to apply on an official blank. One application to Hopewell High School was “filed too late.” It is quite obvious, however, that the primary reason that all students were denied admission was be cause of the defendants’ rigid adherence to the long estab lished attendance areas. Under these circumstances it is well settled that failure to exhaust administrative remedies is not a defense. McNeese v. Board of Education, 31 U. S. L. Week 4567 (U. S. June 3, 1963); Bell v. School Board of Powhatan County, Virginia, No. 8944 (4th Cir. June 29, 1963). The Court further concludes that a general injunction should be granted against the school officials prohibiting racial discrimination in the admission of students to schools and from assigning students on the basis of the school attendance areas currently existing. The defendants may submit to the Court a more definite plan providing for immediate steps looking to the termination of discrimina tory systems and practices. Bradley v. The School Board of the City of Richmond, Virginia, No. 8757 (4th Cir. May 10, 1963). The plaintiffs also pray that the defendants be required to pay costs and attorneys’ fees. In Bell v. School Board of Powhatan County, Virginia, No. 8944 (4th Cir. June 29, Memorandum of the Court 8a 1963), the Court of Appeals, pointing to “ # * # the long continued pattern of evasion and obstruction * * * ” on the part of the defendants, allowed attorneys’ fees. The Court does not find that the same situation exists in this case, and the prayer for attorneys’ fees is denied. Costs will be al lowed. / s / J o h n D. B tjtznee, J r . United States District Judge July 11, 1963 Memorandum of the Court 9a [April 6, 1964] The Court: Gentlemen, the situation in Hopewell is rather unusual in Virginia. Most Virginia cities have the Negro population and the white population scattered through them. In Hopewell, for some reason—possibly because it is largely an industrial city—but for some historic reason, the Negro population and the white population oc- cupy generally different residential zones. In that respect, it is somewhat like many of the cities of the North where the great issue before the Courts is one of de facto segre gation. There is a split of authority concerning that situation. Some of the New York courts have condemned the de facto segregation, and opposed to them is the case of Bell v. School Board of Gary, which is reported in 32 Law Week 2219 (7th Cir. 1963). The starting point for consideration of these cases is, of course, Brown v. Board of Education, 349 U. S. 294 (1955). That is the second Brown case, where at page 300, the Court said: “To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transporta tion system, personnel, revision of school districts and attendance areas into compact units to achieve a sys tem of determining admission to the public schools on a nonracial basis, and revision of local laws and regu R u l i n g o f t h e C o u r t 10a lations which may be necessary in solving the fore going problems.” Then the Court goes on to speak about the period of transition to achieve such a school system; and in more recent cases, has indicated that period of transition has about completed its course. The Court is of the opinion that the Court of Appeals for the Fourth Circuit has interpreted Brown to justify, or to permit school districts based on neighborhoods which may or may not result in predominantly white or Negro schools. The Court realizes that the exact problems presented by this case have not been considered by the Court of Appeals for the Fourth Circuit, but it has come to the conclusion, which it mentioned through consideration of Dillard v. School Board of the City of Charlottesville, 308 F. 2d 920 (4th Cir. 1962). The trouble with the Charlottesville plan was not the composition of its attendance areas. The Court recognized that they were not gerrymandered. The plan was invalid because of the provision for transfers. This case was before this Court previously on July 1.1, 1963. The Court filed a memorandum, which must be con sidered in its decision today. There is no need of repeating all of it, but that decision will be incorporated in the deci sion of the Court today. The Court finds that the school zones are as set out in the map which has been filed as an exhibit; that the capacity of the several schools, their attendance, the pupil-teacher Ruling of the Court 11a ratio, as of May 1963 and as of September 1963, are as set forth in Plaintiffs’ Exhibit 1A, with the exception that the Court does find from the testimony that the capacity of the James School is 300 in May 1963 and not 330 as set forth in the exhibit. I am going to mark that exhibit so it can be more readily understood to write after the word “Hopewell,” the word “High,” as counsel have indicated at the Bench during the trial; and after “Woodson,” the word “High;” and the bottom Woodson will be called “Elementary.” That is what the evidence showed, and it simply makes the exhibit plainer to understand. The question, then, before the Court is primarily one of fact. The Court is of the opinion that the law, as set forth in Bell v. Indiana School District, is consistent with the law that has been applied by the Court of Appeals for the Fourth Circuit. We do not have the question of law before us concerning de facto segregation. The Court believes that this conclusion is also consistent with Brown v. Board of Education, 349 U. S. 294 (1955). The plan, to conform with Brown, would have to take into consideration the language of Brown, which the Court has previously mentioned. As far as assignment of students is concerned, it would be the “revision of school districts and attendance areas into compact units to achieve a sys tem of determining admission to public schools on a noil- racial basis.” Turning to the factual situation which is before the Court, the Court finds that the plan contemplates that all of the children presently attending the Patrick Copeland Elementary School, the Dupont Elementary School, and the Biding of the Court 12a Wo cull awn Elementary School are assigned to the Hopewell High School. These elementary schools are predominantly white schools, and Hopewell High School is predominantly a white school. The children attending the Harry E. James Elementary School, the Arlington Elementary School, and the Carter G. Woodson Elementary School all attend the Carter G. Woodson High School. These elementary schools are pre dominantly Negro, and the Carter G. Woodson High School is predominantly Negro. The capacity of Hopewell High School is overtaxed. The capacity of the Carter G. Woodson High School has not been reached. The pupil-teacher ratio also shows a large discrepancy with a higher pupil-teacher ratio than the Hopewell High School. Contrasted with that is the situation of the Woodlawn Elementary School zone. Children from that zone have to go a considerable distance farther to Hopewell High School than if they were assigned to the Carter G. Woodson High School. They also have to cross more railroad tracks and highways. The area adjacent to the Arlington School zone, which presently feeds into the Woodlawn School, is predominantly white. The line has been drawn separating the predomi nantly white neighborhood from the predominantly Negro neighborhood. Now, the Court recognizes that, as counsel have said, you could draw a line, or suggest drawing lines, any place, Ruling of the Court 13a and that the School Board has exercised its discretion in drawing the line where it did along Wall Street—or Wall Avenue. If that caused an imbalance, say, from 30 to 40 per cent didn’t quite bring it out to 50 per cent—white and Negro, why, the Court would certainly follow that line of reasoning. The primary responsibility is, the Court recog nizes, for the School Board to draw these lines. But when it ends up, as it does, with a completely segregated school system, the Court is of the opinion that the language of the Court of Appeals in the Brooks case is pertinent. That language is in Brooks v. County School Board of Arlington County, Virginia, 324 F. 2d 303 (4th Cir. 1963), page 308. There, the Court of Appeals, speaking of the District Court for this District said: “The District Court’s finding that there is no evi dence to sustain the charge that geographical bounda ries were established to maintain segregation is clearly erroneous. The testimony offered in the 1957 hearing was made a part of the record in this case. There the Division Superintendent of Schools, called by the plaintiffs as an adverse witness, testified that the Hoff- man-Boston facility was established as the only Negro senior and junior high school for the entire county; that this action was based entirely upon race; that the boundaries of the three elementary school districts were fixed in a like manner; and that later the Pupil Placement Board assigned approximately 2000 pupils of all grades, and in each instance without exception whites were assigned to white schools and Negroes to Negro schools, effectively freezing white and Negro Ruling of the Court 14a children in their racially segregated schools. By stip ulation it appears that since the 1957 hearing, except for the disjunction of the non-contiguous northern territory, the districts remain unchanged.” This case presents a number of unusual and different problems, which have not been considered by the Court of Appeals for this Circuit, insofar as the Court has been advised through counsel’s research, and insofar as the Court itself knows; and also problems that have not been considered by the District Courts in this Circuit. Neverthe less, applying the principles which have been expressed in Brown and in Gary and in Brooks, the Court is of the opinion that the plan does not satisfy the requirements which have been stated by the appellate courts. For that reason, the motion to approve the plan is denied. * * # Ruling of the Court 15a [Filed May 25,1964] UNITED STATES COURT OF APPEALS F or t h e F ourth C ircu it Opinion Dated May 25, 1964 No. 9258 R e n ee P atrice Gtluiam and R eu b en L em u e l G ill ia m , J r ., infants, by R eu b en L. G illia m and J oy T. G ill ia m , their father and mother and next friends, et al., Appellees, versus S chool B oard of t h e C ity of H opew ell , V irg in ia , and Charles W. S m it h , Division Superintendent of Schools of the City of Hopewell, Virginia; and E. J . Oglesby, A lfred L. W ingo and E. T. J u stis , constituting the Pupil Placement Board of the Commonwealth of Vir ginia, Appellants. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. J o h n D. B u t zn e r , J r., District Judge. (Argued April 27, 1964. Decided May 25, 1964.) 16a Opinion Dated May 25, 1964 B e f o r e : S obeloff, Chief Judge, H aynsw orth , B oreman , B ryan a n d J. S pen c er B e l l , Circuit Judges, sitting en banc. Frederick T. Gray and A. B. Scott (Robert Y. Button, Attorney General of Virginia, R. D. Mellwaine, III, Assis tant Attorney General, and Williams, Mullen and Christian, and Peyton, Beverley, Scott and Randolph on brief) for Appellants, and Henry L. Marsh, III (S. W. Tucker on brief) for Appellees. H aynsw orth , Circuit Judge: The issues tendered by the defendants in this school case have become moot. The appeal will be dismissed for that reason. As background, reference should first be made to an earlier order from which no appeal was taken. The Hopewell School Board had been assigning pupils on the basis of geographic zoning, except that members of racial minorities thus assigned to a school were allowed to transfer to some other school in which their race was in the majority. Nine Negro students, in a spurious class action, attacked this method of assignment. In an order dated July 11, 1963, the District Court found that the zone boundaries in some instances had been drawn along racial residential lines, rather than along natural boundaries or the perimeters of compact areas surrounding particular 17a schools. It concluded that denial of admission of the nine pupils to the schools of their choice was discriminatory. A general injunction was issued. There was a proviso, however, that the School Board might submit a plan for the termination of its discriminatory practices, and, if ap proved, the general injunction would be suspended and the Board’s plan placed in effect. The School Board accepted this order, and took no ap peal from it. Thereafter, it undertook a revision of the school attendance areas, and it eliminated the provision for minority transfers. Before the Board’s revision of its assignment plan was completed, however, and before it was submitted to the Court for approval, it denied fifteen other transfer appli cations. As to seven, it did so upon the ground that their applications had not been filed by May 31, 1963. As to eight, it did so upon the groimd that each of the eight lived close by the school to which he had been assigned and rela tively far from the school to which he sought admission.1 The fifteen filed a motion to intervene in the pending suit and a motion for further relief. By an order dated Sep tember 13, 1963, the District Court ordered admission of the fifteen intervening plaintiffs to the schools of their choice. From this order of September 13, 1963, the School Board and the other defendants have appealed. They contend that seven of the fifteen pupils involved had not applied for transfers prior to May 31, 1963, as required by the rules Opinion Dated May 25, 1964 1 This is also true of the seven whose transfer applications were tardy. 18a of Virginia’s Pupil Placement Board, one of the appealing defendants, and that the denial of the transfer applications was on non-racial, non-discriminatory grounds. In connec tion with the latter contention, the School Board says it was not applying its old attendance zones but new ones, revised for the purpose of meriting the approval of the District Court. In any event, it says, the school to which each of the fifteen was assigned by it was so close and con veniently accessible to his residence that under any con ceivable geographic assignment system he could not have been assigned to any other school. It professes its good faith in denial of the fifteen transfer applications, and its effort in good faith to comply with the law is elsewhere evidenced. The only immediate effect of the order of September 13, 1963, wxas the admission of the fifteen intervening plaintiffs to the schools of their choice for the academic year 1963-4. They were admitted, as the order required. That academic year approaches its end. Retransfers at this late date are impractical, as the Board concedes. Indeed, a retransfer of those fifteen pupils during this academic year was not an object of this appeal. When the School Board transferred the fifteen pupils and accepted those transfers as final for the entire aca demic year 1963-4, it fully complied with the order of Sep tember 13, 1963. The order requires nothing else of it. The controversy has thus become moot. It is apparent that this appeal was perfected by the School Board out of fear of some future order which it en visions as being within the implications of the order of September 13, 1963. It reads the order of September 13, Opinion Dated May 25, 1964 Opinion Bated May 25, 1964 1963, as implying that it has no control of assignments, because of the injunction order of July 11, 1963, until it shall have obtained approval of a revised assignment plan. It conjures up the spectre of its helplessness if faced with a flood of transfer applications seeking admission to one of its schools for the 1964-5 academic year. Its alarms are groundless. The order of September 13, 1963, has no such implications. Until a new assignment plan is approved, the School Board may limit attendance at any particular school in terms of that school’s capacity. It may be that, in order to avoid discrimination, it should permit enrollment in a par ticular school on a first come first served basis, regardless of race, but when that school is filled, the remaining appli cants may be relegated to a second choice of some school not yet filled. Moreover, the District Court has a wide discretion in authorizing the use of assignment criteria in an interim period during which permanent assignment plans are being formulated and considered. If the School Board feels the need of greater authority than it supposes it has in the interim period, it may apply to the District Court for an interim order accommodating the needs of the Board and the rights of the pupils. Here, illustratively, the School Board represents to us that it has submitted a revised geographic assignment plan which the District Court has found objectionable only with respect to one boundary. Until the boundary between those two of a number of zones has been acceptably redrawn, it may be that, upon application, the District Court would 20a permit geographic assignments of all pupils living in all of the other zones, while requiring some other assignment method for pupils living in the two unsettled zones. Whether or not it would, and under what circumstances, would be for the District Court to determine in an exercise of an enlightened discretion with full knowledge of the relevant facts. It is mentioned here only as illustrative of the possibilities of relief for a School Board, endeavoring to bring itself into compliance with the requirements of the law, when it stands in real need of interim authority beyond that it clearly possesses. Of course, the most effective means by which the School Board may avoid anticipated difficulty in handling assign ments for 1964-5 is to produce and submit an approvable plan in time to have it become operable when those assign ments are to be made. Since there has been full compliance with the order of September 13, 1963, and since we cannot now review some order which may be entered in the future affecting assign ments for the school year 1964-5, the appeal is moot. Appeal dismissed. I concur. S im o n E. S obeloff U.S.C.J. A lbert Y. B ryan , Circuit Judge, dissenting: I think the appellant School Board still has a lively and substantial concern: what control does it retain over the schools while the new plan is in the making? Further, I do not think the order disapproving the original school Opinion Bated May 25, 1964 21a zoning, and granting a general injunction against racial discrimination, should meanwhile oust the Board of the power—indeed the responsibility—to exercise reasonable supervision over the schools. The regulation instantly undertaken by the Board—and voided by the Court—was the rejection of 15 applications for transfer because the schools requested therein were located far from the residences of these pupils. The Board had assigned them to schools nearby their homes, that is to their neighborhood schools, an entirely lawful basis of selection. Bell v. School City of Gary, Indiana, 32 U. S. L. Week 2219 (7 Cir. Oct. 31,1963), cert, denied------U. S .------ (May 4, 1964). Furthermore, 7 of the applications had not been timely filed. That this assignment is sensible and this requirement is needed is undenied and undeniable, but the majority now holds they cannot be effectuated, during the pendency of the over-all plan, except by previously and specially obtained permission of the Court. The reverse, I think, should be the rule: regulation by the School Board continues until the Court deems it misdirected, for the bona tides of the Board is unquestioned. These are current and pressing problems. Delineation of the remaining province of the Board should now be de clared, at least to the lifting of the present circumscription. Opinion Dated May 25, 1964 22a [July 2,1964] The Court: Gentlemen, the school year is fast approach ing, and I believe that it is better that the Court decide this matter promptly so the authorities responsible for the edu cation of children, and the children themselves, will under stand the basis of their assignment. The question of the school zones in Hopewell has been before the Court several times. On July 11, 1963, the Court filed a written memorandum. On April 6, 1964, the Court stated from the Bench its findings and conclusions when the plan was presented to it. As a result of the hearings, and as a result of the con sideration that the School Board has given, there have been substantial changes in the plan, or in the school zones since they were first presented to the Court. The problem of the Woodlawn and Arlington zones still exists. Basically, the problem in this case, as the Court has previously mentioned, is one of de facto segregation. When the Court considered the case on April 6, it fol lowed the ruling in the Gary School case. Since that time, certiorari has been denied in the Gary case. Also, since the April 6 hearing, the Court of Appeals has written its opinion in this case. There, the Court held that the question before it was moot, but it did consider the question of the Arlington and Woodlawn zones. It suggested that until the boundary be tween those two zones has been acceptably redrawn, that Ruling of the Court Ruling of the Court upon application, the District Court could permit geo graphic assignments of all students living in all the other zones, while requiring some other assignment method for pupils living in the two unsettled zones. There have been a number of suggestions before the Court for redrawing the boundary between the Arlington and Woodlawn zones. The Court need not restate the find ings of fact that it has previously made, except to note that the Woodlawn School, which has a capacity of 720, and which previously had a capacity of 720, has an anticipated enrollment next fall of 712, as compared with the atten dance of 649 which the Court found in the previous hearing. Arlington School has a capacity of 270, and has an antici pated enrollment of 234, as compared with the attendance of 195 to which the Court previously made reference. Woodson School, with the transfer of two classrooms from elementary to high school, would have a capacity of 240, as compared to the 300 previously mentioned, and would have an enrollment of 220, as compared to the pre viously mentioned attendance of 286. I believe with those amendments the findings of fact are substantially as the Court has found them in the pre vious hearing, and the Court makes reference to its pre vious findings at this time, and incorporates them in this hearing. The chief difference between the situation that now exists and that which existed at the hearing this spring when the Court declined to approve the plan is that the new plan submitted by the Board provides for transfer of Arlington or Woodlawn Elementary pupils to any school nearer a 24a pupil’s residence. It also provides that high school students may transfer from the Hopewell High or Woodson High, as the case may be, to the high school which is nearer their residence. The Court recognizes that the plaintiffs are not required to rezone—or present a plan of rezoning the problem area in Hopewell. Indeed, during the testimony there were several suggestions made about rezoning between the Wood- lawn and the Arlington zones. It is significant, however, that the suggestions made by the plaintiffs do result in imbalance in the various schools involved. The Court finds that the School Board has attempted in good faith to create zones consistent with the capacity and attendance of the schools, and the Court believes that the plan which has been suggested is consistent with the suggestion made by the Court of Appeals pertaining to some other assignment method in the unsettled zones. Accordingly, the plan will be approved. The injunction will be dissolved. All students who are presently assigned by Court order to a school will be permitted to finish their education in that school. There will not be a reassignment of those children, except by application of those children. There has been no application, because that point has not been brought up specifically. This has been treated from that time on more or less as a class action. Those individual plaintiffs have not presented their views to the Court. Mr. Gray: May I make an inquiry? The Court: Yes, sir. Ruling of the Court 25a Mr. Gray: Would that ruling apply also to the inter- venors about whom the Court of Appeals said—they ap parently felt that the ruling applied only to one year. The Court: Yes, sir. The rule applies. Mr. Gray: To both? The Court: It will apply to them also. It will apply to all of the children whom the Court has assigned. # # # # * Ruling of the Court 26a O rd e r [Entered July 6,1964] For reasons stated in tire Memorandum of the Court filed July 11, 1963 and the rulings of the Court reported April 6, 1964 and July 2, 1964; it is ADJUDGED and ORDERED: 1. Subject to the requirement for notice stated in para graph 4 of this order, the plan for the operation of schools filed by the School Board of the City of Hopewell, Virginia on June 4, 1964 is approved and the exceptions thereto are overruled. 2. The injunction granted in paragraph 2 of the order entered July 11,1963 is dissolved. 3. All pupils heretofore assigned by the Court may con tinue their education in the school to which they have been assigned. 4. The School Board shall give notice in writing to each pupil entitled to make application for transfer under the plan. For the first year of the plan, applications for trans fer must be filed within thirty days from the date notice is mailed to students eligible for transfer. 5. The motion for counsel fees is continued. 6. This cause is retained on the docket with leave of any party to seek further relief. Let the Clerk mail copies of this order to counsel of record. / s / J o h n D. B u tzx er , J e. United States District Judge July 6,1964 27a UNITED STATES COURT OF APPEALS F or t h e F ourth C ircu it No. 9625. Opinion Dated April 7, 1965 R en ee P atrice G illiam and R eu ben L em u e l G ill ia m , J r ., infants, by R eu ben L. G illia m and J oy T. G ill ia m , their father and mother and next friend, and all others of the plaintiffs, Appellants, versus S chool B oard of t h e City of H opew ell , V irg in ia , and C harles W . S m it h , Division Superintendent of Schools of the City of Hopewell, Virginia, Appellees. No. 9626. R e n ee P atrice G illia m and R eu ben L em u e l G illia m , J r., infants, by R eu b en L. G illia m and J oy T. G ill ia m , their father and mother and next friend, and all others of the plaintiffs, Appellees, versus S chool B oard of t h e C ity of H opew ell , V irg in ia , and C harles W. S m it h , Division Superintendent of Schools of the City of Hopewell, Virginia, Appellants. 28a Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. John D. Butzner, Jr., District Judge. Opinion Dated April 7, 1965 (Argued November 5, 1965. Decided April 7, 1965.) B e f o r e : S obeloff, Chief Judge, an d H aynsw orth , B oreman , B ryan a n d J. S pen c er B e l l , Circuit Judges, sitting en banc. Henry L. Marsh, III, and S. W. Tucker for Appellants in No. 9625 and for Appellees in No. 9626, and Frederick T. Gray (Williams, Mullen and Christian on brief) for Appellees in No. 9625 and for Appellants in No. 9626. Haynsworth, Circuit Judge: These are cross appeals from an order of the District Court approving Hopewell’s geographic plan for the as signment of pupils to its schools and refusing to require the retransfer of certain Negro pupils attending schools outside of their geographic zones under a previous order of the Court. Finding no error on either appeal, we affirm. Hopewell, Virginia, is an industrial city located at the confluence of the James and Appomattox Rivers. It is roughly bisected by the Norfolk and Western Railroad, which runs from Hopewell’s southwestern border roughly northeasterly to the James River, while the Seaboard Air line Railroad divides the city in an approximately east- west direction. Except in the southwestern portion of the 29a city, the Norfolk and Western Railroad is bounded on its southeastern side by many factories, and there are long reaches of that railroad which are uncrossed by streets. These railroads, and the industrial sections which bound them, constitute obvious and natural geographic bounda ries between residential areas, some of which are made remote from each other by the intervening industrial, non- residential sections which abut the railroads. The School Board adopted a geographic zoning plan. The zone boundaries were drawn along natural geographic boundaries, particularly the railroads. The schools are cen trally located in each zone, except for two zones in areas annexed to the City of Hopewell after those two schools had been constructed. Some Negroes live on the northwestern side of the Nor folk and Western Railroad. They are in an elementary school zone in which the majority of the residents are white. Pupils from the elementary school in that zone are fed automatically to a high school in which the majority of the pupils are white. The great majority of the Negro residents of Hopewell live on the southeastern side of the Norfolk and Western Railroad. With an exception to be mentioned presently, the residential areas in which they live are separated from residential areas inhabited principally by white people by the railroad and by industrialized, nonresidential sections. One elementary school is located centrally in the area it serves, as is another combined elementary and high school attended entirely by Negroes. A third elementary school attended solely by Negroes is located at the extended city limits, this being one of the schools which came into the Opinion Dated April 7, 1965 30a Hopewell City School System by annexation after it had been constructed. When this action was first commenced and before the court approved Hopewell’s geographic zoning plan, it or dered the admission of the then infant plaintiffs into the schools of their choice. They were admitted, after which the School Board took an appeal to this Court. We held that the question was moot, since the order required their admission only for the current year and the School Board had fully complied with the order.1 Thereafter, after some modification of the plan, princi pally the addition of a provision giving any child who lived nearer to a school outside of the zone in which its residence was located a right to attend that school, the District Court approved the plan. It refused, however, to require, or per mit, the involuntary retransfer of the original plaintiffs transferred pursuant to the earlier order of the Court. The plaintiffs concede, in general, that the elementary school zone boundaries were drawn, along natural geo graphic boundaries and barriers. They contend as unrea sonable only the boundary between Arlington and Wood- lawn School zones. That boundary, however, runs along a main arterial highway, and the plaintiffs can suggest no other boundary between those zones of geographic signifi cance. Use of that boundary incorporates in the Woodlawn zone certain areas which are closer to Arlington School. However, any transfer to Arlington of any readily divisible portion of that part of the Woodlawn School zone lying Opinion Dated April 7, 1965 1 Gilliam v. School Board of City of Hopewell, Virginia, 4 Cir., 332 F. 2d 460. 31a closer to Arlington School would result in a transfer to Arlington School of far more pupils than it could receive, leaving Woodlawn School greatly underpopulated. These are the two schools wThieh Hopewell acquired by annexation of adjacent territory. Neither is centrally lo cated in the zone it serves, but the main highway along which the School Board has drawn the boundary which separates those two zones is patently the most logical and reasonable. Such an artery is a natural boundary to choose in the absence of any other significant geographic feature. The fact that a portion of Woodlawn zone lies closer to Arlington School than Woodlawn School is not a valid objection to the plan when incorporating a portion of that area into the Arlington School zone would leave Arlington overwhelmed with pupils, for which it could not care, and Woodlawn greatly underpopulated. Arlington zone’s other boundaries are the limits of the City, the Seaboard Airline Railroad and industrial areas, so that there are no feasible compensating adjustments by which portions of the Arling ton zone might be shifted to permit it to include a portion of Woodlawn zone. Under these circumstances, the District Court was abun dantly justified in concluding that the zone boundaries were reasonably drawn in accordance with natural geographic features and not on racial lines. Assignments to the high schools are made in accordance with a feeder system. We find nothing objectionable in this when the primary school zoning is on a nonracial basis, for the result is, in effect, to create reasonable zones for the high schools. The zones of those primary schools which feed each high school are collectively the zone for the high Opinion Dated April 7, 1965 32a school. So viewed, the high school zones are as compact and reasonable as the primary school zones which we have considered. The plaintiffs suggested below that the high school zones might have been drawn differently, but their suggestion was impractical because it would have overly crowded one school while underpopulating another. The School Board’s lines achieved an even distribution of pupils, and there was an evidentiary basis supporting the District Court’s approval of them. Under the plan, the School Board reserved the right to consider transfer applications to a school other than the one serving the zone in which the pupil resides if founded upon some specific reason, but the plan provides that the race of the applicant will not be a factor to be considered in granting or denying such a transfer application. The School Board in this Court insists that the reservation is intended to take care of extraordinary cases such as that of a crippled child whose mother is a teacher in a school other than one in the zone in which they reside. It is not to be used, the Board says, for the purpose of avoiding or in creasing the extent of the mixing of the races in the schools which results from the geographic zoning plan. That is the clear purpose and effect of the plan’s limitation upon the reservation. The restriction saves the reservation which would otherwise be suspect, for permissive transfers of minorities granted because of their race are unlawful.2 Opinion Dated April 7, 1965 2 Goss v. Board of Education of Knoxville, Tennessee, 373 U. S. 683; Dillard v. School Board of City of Charlottesville, 4 Cir., 308 F .2d 920. 33a The plaintiffs object that the result of the geographic zoning is a large measure of de facto segregation. It is true that it is, but this is because of the residential segregation that exists. The Harry E. James School zone, for instance, bounded in part by Hopewell’s city limits, is otherwise largely surrounded by railroad classification yards and in dustrial tracks, with adjacent industrialized areas, which isolate the residential portions of that zone from all other residential areas. De facto segregation could be avoided for those pupils only by transporting them to distant schools. While the Carter Woodson and the Arlington school zones are not so isolated as the Harry E. James school zone, substantially the same thing may be said of them. They are not gerrymandered zones designed to impose a segregated school population, but de facto segregation results from the fact that the surrounding residential areas are inhabited entirely by Negroes. The Constitution does not require the abandonment of neighborhood schools and the transportation of pupils from one area to another solely for the purpose of mixing the races in the schools.3 4 The plaintiffs also complain that the District Court did not order a general reassignment of teachers and admin istrative personnel on a nonracial basis. There has been no inquiry into that matter in the District Court, and the failure of the District Court here to enter an order in ac cordance with this request of the plaintiffs is affirmed for Opinion Dated April 7, 1965 3 Bell v. School City of Gary, Indiana, 7 Cir., 324 F. 2d 209; see also Bradley v. School Board of City of Richmond, Virginia, 4 Cir., ——• F. 2 d ----- (decided this day). 34a the reasons stated in Bradley v. School Board of City of Richmond, Virginia, 4 Cir., ——- F. 2d ----- (decided today). The School Board’s appeal from the Court’s refusal to require or permit the involuntary reassignment of the fif teen pupils, we also find to be without merit. It is true that in our earlier opinion4 we held that the original order of the District Court required the admission of these fifteen pupils to the schools of their choice for the then current school year only. That was the school year of 1963-4. Under the geographic zoning plan, which the Court has now approved, those fifteen pupils would be as signed to other schools than those they now attend. A reassignment of those fifteen pupils to the schools they attended prior to 1963-4 may have a substantially adverse effect upon them. The District Court was entitled to give consideration to that fact, though their continued attend ance at the schools where they were assigned for 1963-4 is inconsistent with the otherwise uniformity of the geo graphic attendance plan. In approving a geographic zoning plan, indeed, any other plan for the assignment of pupils, a District Court has a large measure of discretion in imposing such conditions or exceptions as fairness and justice seem to it to require. The question, therefore, is not answered by a finding that the assignment of these pupils is a departure from the geo graphic zoning plan which we now approve. It is an excep tion to it, but the exception imposed by the District Court 4 Opinion Dated April 7, 1965 4 Gilliam v. School Board of City of Hopewell, Virginia, 332 F. 2d 460. 35a in the interest of fairness to these fifteen individuals was not beyond the range of discretion vested in it. We find no reversible error in the order of the District Court. Affirmed. Opinion Dated April 7, 1965 S obeloff a n d J. S pen c er B ell , Circuit Judges, concurring separately: The neighborhood school concept is a legitimate one, and insofar as zone boundaries are drawn without racial dis crimination along natural geographical lines we agree that they may be accepted as valid. We are conscious, however, that the size and location of a school building may deter mine the character of the neighborhood it serves. In apply ing the neighborhood school concept, the School Board, therefore, must keep in mind its paramount duty to afford equal educational opportunity to all children without dis crimination; otherwise school building plans may be em ployed to perpetuate and promote segregation. We also note the reservation contained in the opinion of the court in respect to the possible misuse of the trans fer plan, and assume that the District Court will be alert to prevent abuses. With these considerations in mind and subject to the views expressed more fully in our separate opinion in the Richmond case decided this day, we concur in the judgment of the court. 36a A lbebt V. B byan , Circuit Judge, dissenting in p a rt: With the plan of desegregation approved, as it is, I can see neither logic nor other ground for not retransferring the fifteen pupils to the school the plan provides for them. The School Board has requested the reassignment. How ever, the Court finds it would “have a substantially adverse effect” upon the students. It seems to me the school au thorities are better versed than are we on that score. More over, the assignment initially was understood to be simply provisional. Finally, the Board as well as the scholars is entitled to indiscriminate enforcement of a legitimate plan. Opinion Dated April 7, 1965 37a Ju d g m e n t UNITED STATES COURT OF APPEALS F or t h e F ourth C ircu it No. 9625 R en ee P atrice G illia m and R eu ben L em u el G ill ia m , J r ., infants, by R eu b en L. G illia m and J oy T. G ill ia m , their father and next friend, and all others of the plaintiffs, Appellants, vs. S chool B oard oe t h e C ity of H opew ell , V irg in ia , and C harles W; S m it h , Division Superintendent of Schools of the City of Hopewell, Virginia, Appellees. Appeal from the United States District Court for the Eastern District of Virginia. This cause came on to be heard on the record for the United States District Court for the Eastern District of Virginia, and was argued by counsel. 38a Judgment On consideration whereof, It is now here ordered and adjudged by this Court that the judgment of the said Dis trict Court appealed from, in this case, be, and the same is hereby, affirmed with costs. April 7, 1965 Cl e m e n t F. 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