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

    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. H aynsworth  
Chief Judge, Fourth Circuit

Filed
Apr. 7, 1965

M aurice S. D ean  
Clerk

N o t e : The map on the facing page is a photographic
reproduction of the original Defendant’s Exhibit 1, 
with hand coloring of significant features to ap­
proximate the original coloring.

(See opposite) iE§p



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