Dillard v. City of Charlottesville, VA School Board Cross-Appellees' Brief

    lititefc dxmxt iif Kppmlz
F oe the F ourth Circuit 

No. 8638

I n  the

D oris D illard, et al.,
Cross-Appellees,

T he S chool B oard of the City of 
Charlottesville, V a ., et al.,

Cross-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF VIRGINIA 

CHARLOTTESVILLE DIVISION

CROSS-APPELLEES’ BRIEF

S. W . T ucker
H enry L. Marsh, III

Southern Aid Building 
214 East Clay Street 
Richmond, Virginia

Otto L. T ucker
901 Princess Street 
Alexandria, Virginia

J ack Greenberg
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Cross-Appellees



I N D E X
PAGE

Statement of the Case ....................................................  1

Question Involved ............................................................ 3

Statement of the Facts ....................................................  3

Argument ...........................................................................  6

Conclusion ........    9

T able oe Cases

Dodson v. School Board of City of Charlottesville,
289 F. 2d 439 (4th Cir. 1961) ......................2, 3, 5, 6, 7, 8

Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) ........... 8
Green v. School Board of City of Roanoke,------F. 2d

------ (4th Cir., No. 8534, May 22, 1961) ..................  6, 8

Hamm. v. County School Board of Arlington, 264 F. 2d
945 (4th Cir. 1959) .........    6

Hill v. School Board of City of Norfolk, 282 F. 2d 473 
(4th Cir. 1960) ................................................................ 6

Jones v. School Board of City of Alexandria, 278 F. 2d 
77 (4th Cir. 1960) ........................................................  6

Mannings v. Board of Public Instruction, 277 F. 2d 370
(5th Cir. 1960) ...........................      6

McKissick v. Carmichael, 187 F. 2d 949 (4th Cir. 1951) 8
Norwood v. Tucker, 287 F. 2d 798 (8th Cir. 1961) ....... 6, 8
School Board of City of Charlottesville, Va. v. Allen,

240 F. 2d 59 (4th Cir. 1956), cert. den. 353 U. S. 910 2
School Board of City of Charlottesville, Va. v. Allen,

263 F. 2d 295 (4th Cir. 1959) 2



I n  the

luttefc #tate (Unitrt of Kppmls
F oe the F ourth Circuit 

No. 8638

D oris D illard, et al.,
Cross-Appellees,

— y.—

T he S chool B oard oe the City of 
Charlottesville, Va., et al.,

Cross-Appellants.

appeal from the united states district court for the
WESTERN DISTRICT OF VIRGINIA 

CHARLOTTESVILLE DIVISION

CROSS-APPELLEES’ BRIEF

Statement of the Case

This cross-appeal was taken by the defendants School 
Board of the City of Charlottesville, Va., et al., from an 
injunction entered December 18, 1961 (59a).1

The defendants’ cross-appeal is from the portions of the 
December 18th order relating to high school pupil assign­
ments (e.g., the first two paragraphs on 60a). The issues 
involved on plaintiffs’ appeal from the portions of this 
order relating to elementary school pupils are discussed 
in a separate “Appellants’ Brief” previously filed herein.

1 The appendix references herein are to pages in the Appellants’ 
Appendix filed herein on the appeal by plaintiffs below unless other­
wise indicated.



2

Various aspects of this school segregation case have been 
before this Court on several prior occasions. See School 
Board of City of Charlottesville, Va. v. Allen, 240 F. 2d 59 
(4th Cir. 1956), cert, den. 353 U. S. 910; Id,, 263 F. 2d 295 
(4th Cir. 1959); and same case sub nom. Dodson v. School 
Board of City of Charlottesville, 289 F. 2d 439 (4th Cir. 
1961). The injunction involved in this cross-appeal resulted 
from further proceedings in the trial court following this 
Court’s decision in Dodson, supra. On August 11, 1961, 
twenty-five Negro pupils (8 high school students and 17 
elementary pupils) filed a motion for further relief (16a) 
attacking the Charlottesville School Board’s pupil assign­
ment practices as racially discriminatory and seeking ad­
mission to various predominantly white schools for the 
1961-62 term. One additional high school pupil was per­
mitted to join the motion subsequently (21a). The trial 
court allowed those pupils not already parties to the case 
to intervene and held a trial on October 23-24, 1961.

On December 18, 1961, the District Court filed an opinion 
(48a). With regard to the high schools the Court held that 
“ it is plain that the practices in force cannot be approved 
in the light of the Court of Appeals’ opinion in Dodson v. 
School Board” (54a). The Court held that since “white 
pupils are allowed to attend Lane High School without 
regard to where they live in the city and without regard 
to their scholastic attainments or prospects” this “ same 
privilege must be accorded to Negro students” (57a). Find­
ing that the school authorities were continuing the same 
practices with respect to high school pupils which had been 
previously held to be discriminatory by this Court in the 
Dodson opinion, supra, the Court ordered the defendants 
to admit the 9 Negro plaintiffs who had applied to Lane 
High School to that school, enjoined the defendants “ from 
denying admission to Lane High School to any child in the



3

City of Charlottesville, situated similarly to such plaintiffs 
and intervenors, by the application of any criteria which do 
not apply to white children attending that school” (60a). 
The trial court stayed its order pending appeal (61a).

The School Board filed its notice of cross-appeal on Janu­
ary 16, 1962. Subsequently, the School Board withdrew its 
appeal as to two of the high school plaintiffs whose appli­
cations were opposed only on the ground that they lived 
closer to the all-Negro Burley School than to Lane High 
School (see School Board’s Brief herein, p. 21), and this 
portion of the cross-appeal was dismissed on May 8, 1962.

Question Involved

Can the school authorities exclude Negro pupils from 
a predominantly white (formerly all-white) high school, to 
which every white high school pupil in the City is assigned 
automatically, on the basis of academic standards not ap­
plied to any white pupils assigned to this school.

Statement of the Facts

The facts relating to this cross-appeal are relatively 
simple and are uncontradicted. The trial court’s finding 
that no significant change has been made in the high school 
assignment practices since this Court’s opinion in Dodson 
v. School Board, 289 F. 2d 439, 433 (4th Cir., April 14,1961), 
is not challenged in the Board’s brief. The material facts 
are set forth in the following quoted portions of the opinion 
below:

The two high schools in the city are Lane, the school 
for white pupils, and Burley, the school for Negroes. 
No areas of residence have been fixed for attendance 
at these schools, and before this litigation began all



4

white pupils in the city went to Lane and all Negroes 
to Burley. As a result of court action in recent years 
some Negroes have been admitted to Lane while all 
white students continue to go there. However, in deter­
mining attendance at Lane different rules are applied 
as between white and Negro children. Any white child 
who finishes elementary school may enter Lane High 
School automatically—i.e. without being subject to any 
test or condition as to residence or academic qualifica­
tion. On the other hand, in order to attend Lane, 
Negroes must live closer to that school than to Burley 
and must also satisfy certain tests touching their scho­
lastic advancement and intelligence (54a-55a).

#  *  #  *

The curriculum at Lane is about the same as the aver­
age white high school, designed to prepare students 
to enter the standard college and pursue their educa­
tion there. At Burley more attention is given to manual 
training and studies aimed to furnish the student a 
means of livelihood at some manual or domestic em­
ployment upon finishing high school. Some of the col­
lege preparatory courses given at Lane are absent from 
Burley. Speaking of this the Superintendent of Schopls 
said that Burley “ can take better care of children whose 
competences don’t lie in the academic realm.” This 
condition lends encouragement to the practice which 
the school authorities have exercised of considering the 
academic record and prospects of pupils in assigning 
them to one school or the other. Negroes displaying 
good records and high intelligence may be, and some 
have been, assigned to Lane. But those of less promise 
are sent to Burley (56a).2

2 See also testimony at pp. 35-36, School Board’s Appendix.



5

Prior to the 1961-62 school term, 9 Negro plaintiffs (4 
of whom were appellants in Dodson) applied for Lane and 
were denied admission (School Board’s Appendix, 33-34); 
10 other Negroes were admitted to Lane this year (School 
Board’s Appendix, 41). A total of 16 Negro pupils attended 
Lane during the current term (Id.).

The achievement and intelligence test scores and teach­
ers’ comments for the high school applicants who were 
denied transfer on the basis of the academic criterion ap­
pear in the record (School Board’s Appendix, 11-14, 16). 
The four plaintiffs who had been appellants in Dodson 
were rejected on the basis of the same academic records 
presented to the Court in 1960. Similar test scores were 
presented with respect to the others, except plaintiff George 
W. King, III, with respect to whom no information was 
presented. As the court below stated, these pupils were 
rejected on the basis of the school superintendent’s belief 
that they “would not do satisfactory work if allowed to 
enroll in the white school” (55a-56a).

As indicated above, the defendants have withdrawn their 
appeal as to the two pupils who were denied admission to 
Lane only because they lived closer to Burley High School. 
The defendants’ brief indicates that they are now prepared 
to abandon this residence requirement and propose to 
screen Negro pupils applying to Lane only on the basis of 
the academic standards, stating that “any Negro child in 
the City of Charlottesville can qualify for enrollment in 
Lane as far as geographical factors are concerned” (p. 23, 
“ Brief of Appellees and Cross-Appellants” ).



6

Argument

The single issue involved in this cross-appeal has been 
decided repeatedly against the contention made by the 
School Board by this Court in this3 and other cases,4 5 as 
well as by other appellate courts.6 The consistent line of 
decisions hold that the application of transfer or assign­
ment criteria to Negro pupils and not to white pupils is a 
violation of the Fourteenth Amendment. This same issue 
was before this Court in this ease just a year ago and was 
decided against the School Board’s claim. At that time the 
Court ruled in unequivocal language that the defendants’ 
application of its assignment plan with respect to high 
schools was “ offensive to. the constitutional rights of Ne­
groes” (Dodson, supra at 443). This Court stated that it 
was not reversing the trial court judgment which had re­
fused to enjoin these practices, as it “would normally be 
required to” do, because the “ school authorities have not 
attempted to defend the present method of assigning pupils 
as a permanent assignment system” and the procedures 
were “ designed to be temporary measures only” (Id. at 
444). The Court observed that the District Judge could 
“ re-examine the situation prior to the opening of schools 
in the coming year” (Id.). The present appeal is the prod­
uct of that re-examination. The trial judge properly con-

3 Dodson v. School Board of City of Charlottesville, 289 F. 2d 
439, 443 (4th Cir. 1961).

4 Green v. School Board of the City of Roanoke, not yet reported 
(4th Cir., No. 8534, May 22, 1961); Jones v. School Board of City 
of Alexandria, 278 F. 2d 72, 77 (4th Cir. 1960); Hill v. School 
Board of City of Norfolk, 282 F. 2d 473 (4th Cir. 1960); Hamm v. 
County School Board of Arlington County, 264 F. 2d 945, 946 
(4th Cir. 1959).

5 Norwood v. Tucker, 287 F. 2d 798, 803, 806-809 (8th Cir.
1961); Mannings v. Board of Public Instruction, 277 F. 2d 370 
374-37 (5th Cir. 1960).



7

eluded that under this Court’s opinion it was bound to find 
the assignment procedures to be discriminatory (58a), and 
it enjoined their continued use.

The pattern of discrimination is very clear. All white 
students in Charlottesville who complete the elementary 
grades are automatically assigned to Lane High School. 
But Negro pupils have again been required, as they have 
in the past, to meet special geographic and academic 
standards to enter Lane. Otherwise, they are assigned 
to the all-Negro Burley High School. The School Board’s 
belated withdrawal of the geographic requirement pending 
this appeal cannot bolster up the discriminatory academic 
requirements still sought to be imposed on Negro pupils 
entering Lane. This Court made it clear in Dodson, supra, 
that both the academic and geographic criteria were being 
applied improperly in the Charlottesville High Schools, 
stating (289 F. 2d at 443):

All white students are automatically assigned initially 
to Lane High School, regardless of their place of resi­
dence or level of academic achievement. All white 
public high school students in the city presently attend 
Lane. Absolutely no assignment criteria are applied 
to them. On the other hand, residence and academic 
achievement criteria are applied to Negro high school 
pupils. As the plan is presently administered, if a 
coloted child lives closer to Burley than to Lane, lie 
must attend Burley High School. Moreover, even if a 
Negro student does live closer to Lane, he may not be 
permitted to attend it unless he performs satisfactorily 
on scholastic aptitude and intelligence tests—a hurdle 
white students are not called upon to overcome.

Such administration of public school assignments is 
patently discriminatory. As pointed out previously, 
the law does not permit applying assignment criteria 
to Negroes and not to whites.



8

The present cross-appeal is a manifest attempt to reliti­
gate the same issues previously decided herein. The School 
Board’s request that the holding in Dodson, supra, be over­
ruled is accompanied by an argument that the plaintiff 
high school pupils have academic deficiencies so serious 
and test scores so low that they cannot do successful work 
at Lane and that it would be to their detriment to be trans­
ferred as they request. The District Court answered this 
argument in a manner consistent with the rulings of this 
Court, stating at one point during the trial:

The Court: However good reason that might be 
in its appeal to the school authorities, however their 
experience in handling the school children and so forth, 
that fact is that this child and her parents, or his 
parents, whichever it is, didn’t regard that as a reason 
for not applying for admission to the white school. 
Now, if they had a constitutional right to go to that 
school, then the judgment of the school authorities 
shouldn’t be set up to bar that right, now how un­
fortunate the exercise of it might turn out to be 
(School Board’s Appendix, p. 49).

On May 22nd of this year, this Court made a similar 
holding in Green v. School Board of City of Roanoke, not 
yet reported (4th Cir., No. 8534), stating:

The board’s explanation that this special requirement 
is imposed on Negroes to assure against any “who 
would be failures” is no answer. The record discloses 
that no similar solicitude is bestowed upon white pupils.

See Dove v. Parham, 282 F. 2d 256, 258 (8th Cir. 1960); 
Norwood v. Tucker, 287 F. 2d 798, 809 (8th Cir. 1961); and 
cf. McKissick v. Carmichael, 187 F. 2d 949, 953-954 (4th 
Cir. 1951), all rejecting the same argument that Negroes



9

should be retained in segregated schools because this would 
be in their best interests as determined by state authorities.

It may be noted, in conclusion, that the School Board 
no longer defends this criterion as a temporary measure 
which is part of a desegregation plan. Certainly no specific 
timetable6 for eliminating this requirement has ever been 
proposed by the School Board. In this circumstance the 
court below was plainly correct in enjoining this practice. 
The court also properly retained jurisdiction of the case 
for any appropriate further proceedings (61a).

CONCLUSION

It is respectfully submitted that those portions of the 
judgment below which relate to the defendants’ practices 
in assigning the plaintiffs who are high school pupils 
and others similarly situated should be affirmed.

Respectfully submitted,

S. W . T ucker
H enry L. Marsh, III

Southern Aid Building 
214 East Clay Street 
Richmond, Virginia

Otto L. T ucker
901 Princess Street 
Alexandria, Virginia

J ack Greenberg
J ames M. Nabrit, III 

10 Columbus Circle 
New York 19, New York

Attorneys for Cross-Appellees

6 Cf. Green v. School Board of the City of Roanoke, not yet re­
ported (4th Cir., No. 8534, May 22, 1962); Hill v. School Board 
of City of Norfolk, 282 F. 2d 473, 475 (4th Cir. 1960).



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