Bradley v. School Board of the City of Richmond Plaintiffs' Opposition to Stay of District Court Order of April 5, 1971; Motion of Defendant, School Board of the City of Richmond for Modification of the Order of This Court of April 5, 1971

    IN THE UNITED STATES COURT OF AFPEALS
FOR THE FOURTH CIRCUIT 

NO.

CAROLYN BRADLEY and MICHAEL BRADLEY, infants, etc., at ai.,
Plaintiffs,

vs.
THE SCHOOL BOARD OF THE CITY OF 
RICHMOND, VIRGTNIA, et a1.,

Defendants,
CITY OF RICHMOND, et al.,

Applicants for Stay.

PLAINTIFFS
7 rr.T-, m
j  -L a.

OPPOSITION TO STAY
o  r> T> «"> r sr ~ t a r-> t- r~ t «w i\ L V in \  o r  r-v zr D  t jl  ~J / ±

Plaintiffs Carolyn Bradley, et al., respectfully 
oppose any stay of the district court's order of April 5, 
1971, for the following reasons:

1* History of tnis case: This litigation was commenced 
September 5, 1961 to desegregate the public schools of Richmond, 
Virginia. Prior to June 26, 1970, neither the City of Richmond 
nor the members of the City Council of Richmond were parties 
to this lawsuit. On that date, the district court granted the 

o L th0 plaintiff its to add the Citv sue the members cf 
tae City Council as additional parties defendant “to the <?nrl



that whatever injunctive order embodying a new plan of deseg­
regation may be issued by this Court shall be binding on all 
parties having responsibility for the Richmond public schools."

The current proceedings commenced March 10, 1970 
when plaintiffs filed a Motion for Further Relief alleging 
that the "freedom of choice" plan of desegregation then 
operative in Richmond had failed to create a unitary school 
system. Following issuance of a "show cause" order, the 
school board conceded at a pre-trial conference March 31, 1970 
that "the public schools of the City of Richmond are not being 
operated as unitary schools in accordance with the most recent 
enunciations of the Supreme Court of the United States." The 
district court also specifically found free choice constitu­
tionally insufficient and vacated its prior order of March 30, 
1966 approving freedom of choice; the school board was directed 
to submit a new plan.

The first plan submitted by the board in 1970 was 
drafted by representatives of the Department of Health, 
Education and Welfare and was rejected by the district court 
as equally insufficient as free choice to disestablish the 
dual school system in Richmond. The second 1970 plan, 
devised by the administrative staff of the school system, was 
also found to be \iltimately insufficient by the court, but 
it was ordered implemented for the 1970-71 school year as an 
"interim plan." The City of Richmond and the School Board 
of Richmond appealed from the district court's determination

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that the HEW plan was insufficient but. that appeal has not 
yet been disposed of because of delays granted by this Court 
at the instance of the City and the School Board, discussed 
below and in the district court's April 5 opinion.

The City also sought a stay of the district court's 
August 17, 1970 order requiring 1970-71 school year imple­
mentation of the "interim plan" but its successive requests 
for such a stay were denied by the district court [Chief 
Judge Hon. Walter E. Hoffman] on August 27, 1970, by this 
Court [Chief Judge Hon. Clement Haynsworth, Jr.] on August 
28, 1970, and by the Supreme Court of the United States [Chief 
Justice Hon. Warren E. Burger] on August 29, 1970.

The appeals by all parties from the district court's 
August 17, 1970 order were docketed in this Court on October 
19, 1970. On October 23, 1970, the City Council of Richmond 
filed a motion in this Court to defer briefing and disposition 
of the appeals until 40 days after the Supreme Court of the 
United States rules in Swann v. Charlotte-Mecklenburg Bd. of 
Educ,, now pending on certiorari from this Court. A similar 
motion was filed by the School Board of the City of Richmond; 
although plaintiffs filed opposition to the motion, this Court 
by order of November 6, 1970 did defer further consideration 
of the appeals involving the "interim plar" until after the 
Supreme Court rules. Plaintiffs sought rehearing en banc of 
that order, whicf was denied on December 1, 1970.

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The district court's opinion of August 17, 1970
specifically held that the "interim plan" was incapable of
creating a unitary school system in Richmond, and that more
would have to be done for the 1971-72 school year. The
accompanying order therefore directed the defendants

to file with this Court, within 90 days 
from this date, a report specifically 
setting out such steps as they may have 
taken in order to create a unitary system 
of the Richmond public schools and 
specifying in said report the earliest 
practical and reasonable date that any 
such system could be put into effect..
The parties are reminded that the 
approval referred to in paragraph 1 of 
this order is not to be interpreted as 
a finding that the implementation of that 
plan results in a unitary system of schools.

Thus the City could have sought an expeditious determination
of its appeal from the August 17, 1970 order and in that manner
resolved the issue which it new7 suggests warrants a stay:
whether the further steps which the district court has now
ordered, even beyond the "interim plan", are legally required
to bring about a unitary school system in the City of Richmond.

Three new plans were filed in January, 1971 by the 
School Board of Richmond to comply with the provisions of the 
August order, each purportedly calculated to bring about a 
unitary school system in Richmond upon their implementation in 
the 1971-72 school year. Following further hearing in March, 
1971, the district court entered the order of which stay is 
sought on April 5, 1971, requiring implementation of one of 
the plans submitted by the school board effective with the 
beginning of the 1971-72 school year.

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2. The present application for a stay attempts to 
manufacture a legal issue which does not exist in this case, 
as is amply demonstrated by the frivolous citation of Erie R. 
Co. v. Tompkins, 304 U.S. 64, in this non-diversity action 
brought pursuant to 42 U.S.C. §1983 and 28 U.S.C. §1343. The 
federal courts have general discretionary power to frame their 
equitable relief in such a manner as to make the remedy 
accompanying a declaration of rights effective. See, in 
general, Louisiana v. United States, 380 U.S. 145 (1965). 
Almost every desegregation decree ordered by any court has 
involved the expenditure of public funds in order to overcome 
the effects of past expenditures of funds to maintain and 
preserve segregation. As early as 1946, the Supreme Court 
said that

where federally protected rights have 
been invaded, it has been the rule 
from the beginning that courts will be 
alert to adjust their remedies so as to 
grant the necessary relief.

Bell v. Hood, 327 U.S. 678, 684; see also, Griffin v. County 
School Bd. of Prince Edward County, 377 U.S. 218 (1964);
Harkless v. Sweeny Independent School Dist., 427 F.2d 319 (5th 
Cir. 1970) ; Plaquemines Parish School Bd. v. United States,
415 F.2d 817 (5th Cir. 1969); United States v. School Dist. No. 
151, 301 F. Supp. 201 (N.D. 111. 1969); Pettaway v. County 
School Bd. of Surry County, 230 F. Supp. 480 (E.D. Va. 1964); 
Hosier v. Evans, 314 F. Supp. 316 (D.V.I. 1970); cf. Sullivan
v. Little Hunting Park. 396 U.S. 229, 238-40 (1969); Jones 
v. Alfred H. Mayer Co., 392 U.S. 409, 414-15 n.14 (1968).

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This Court in Swann v. Chariotte-Mecklenburg Bd. of
Educ., 431 F.2d 138 (4th Cir. 1970) stated that "[o]pposition 
to . . . bussing . . . cannot justify the maintenance of a
dual system of schools" and in that case approved a portion of 
a desegregation plan which required additional transportation 
of pupils and the consequent acquisition by the school board 
of additional transportation facilities. This Court's language 
in Swann that "[b]ussing is neither new nor unusual. It has 
been used for years to transport pupils to consolidated schools 
in both racially dual and unitary school systems" is echoed 
by the district court's finding in this case that the School 
Board of Richmond, an entity funded by the City Council of 
Richmond, has in the past utilized busing for the purpose of 
segregating students —  a policy and practice of segregation 
which traditionally required extra expenditures from public 
funds for the operation of the public schools of Richmond.

3. It is significant to note that it is not the 
School Board of the City of Richmond which here seeks to stay 
the decision of the lower court. That party has sought some 
modification of other provisions of the district court's order 
in a motion filed with the district court [appended hereto 
as Exhibit "A"], but in said motion it has specifically advised 
the district court that it does not seek to stay the court's 
order with respect to the requirement that buses be purchased. 
It is also a fact: on this record that the School Board previ­
ously purchased a similar number of buses for the purpose of 
operating a complete school bus transportation system in an

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are, formerly of Chesterfield County, recently annexed to the 
City of Richmond. No opposition to that purchase was forth­
coming from the City of Richmond; funds were made available 
to the School Board for said purchase. It was contemplated 
at that time that the majority of the pupils to be transported 
would be white, and the transportation of said pupils would 
be to predominantly white schools. Subsequent orders of the 
district court have required the utilization of some of these 
new vehicles to transport not only white children, but also 
black children, as an aid to desegregation of the school 
system of the City of Richmond.

4. The State may not decline to provide the funds 
necessary to effectuate the Fourteenth Amendment right to 
equal educational opportunity because of cost. See Shapiro 
v. Thompson, 394 U.S. 618 (1969).

5. The stay presently sought is for the purpose of 
delaying desegregation of the Richmond schools. First of all, 
should the Supreme Court in Swann establish lesser consti­
tutional standards than this Court enunciated and the district 
court applied in framing its order, as the court below put it

the expense and disruption of conversion 
to a less costly program of integration 
will in all probability be far less than 
the cost of a hasty reorganization to 
conform to current law, if such law 
remains viable.

Furthermore, the City makes no representation of any irrep­
arable injury resulting from the immediate execution of the 
district court's order. In fact, counsel for the School Board

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stated at the April 7 district court hearing on the stay 
(transcrijjt of which has been ordered but is not yet avail­
able) that if additional buses were purchased but the court's 
order were not required to be implemented in September, the 
new buses could be utilized anyway or be disposed of without 
significant financial loss. Far more irreparable would be 
the harm if a stay issued and the district court's order was 
subsequently upheld, but because early orders were not placed, 
buses to implement the order were not available in September.
A stay would lead to a recurrence of the situation which 
required the district court to approve an unconstitutional plan 
for 1970-71 on an "interim" basis.

6. On August 28, 1970 the City of Richmond applied
to the Chief Judge of this Court for a stay pending appeal
from the August 17 order of the district court directing
implementation of the "interim plan." It is significant that
the School Board did not at that time request such a stay.
Chief Judge Haynsworth, quoting from the opinion of Judge
Craven in Scott v. Winston-Salem/Forsvth County Bd. of Educ.
of August 20, denied the stay and said,

Prior decisions of the Supreme Court in 
Carter v. West Feliciana Parish School 
Board, 396 U.S. 90 (1970) and Alexander 
v. Holmes County Board of I:ducation, 3 96 
U.S. 19 (1969) and of this court in 
Stanley v. Darlington County School 
District, 424 F.2d 195 (4th Cir. 1970) 
leave no doubt that 'there remains no 
judicial discretion to postpone immed- 
iate implementation' of this plan. 424 
F 2d at 196. The import of these cases 
is clear. Plans effectuated by district 

1 courts must be first implemented, then

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litigated. See Nesbit v. Statesville 
City Board of Education, 418 F.2d 1040 
(4t.h Cir. 1969). Any doubt that I 
might, yet entertain with regard to my 
lack of authority as a single circuit 
judge to enter the stay order is 
removed by the mandate of the Supreme 
Court entered June 29 in Swann v. 
Charlotte-Mecklenburg Board of Education, 
399 U.S. 926 (1970). In remanding to 
the district court the Supreme Court left 
undisturbed the judgment of the Fourth 
Circuit 'insofar as it remands the case 
to the district court for further 
proceedings,' but the Supreme Court 
ordered that 'the district court's 
judgment is reinstated and shall remain 
in effect pending those proceedings.'
Whatever my own viewpoint may be about 
the common sense of putting into effect 
complicated changes in a school system 
prior to final adjudication, I am 
convinced by the authorities cited that 
the question is not one I may properly 
considered. The motion for stay pending 
appeal is therefore denied.

7. The Supreme Court of the United States has 
consistently refused to postpone school desegregation by issu­
ing stays or declining to vacate such stays when granted by 
lower courts. See, e.g., Lucy v. Adams, 350 U.S. 1 (1955); 
Houston Independent School Dist. v. Ross, 364 U.S. 803 (1960); 
Danner v. Holmes, 364 U.S. 939, 5 Race Rel. L. Rep. 1092 (1961) 
(refusing to reinstate a stay dissolved by Chief Judge Tuttle 
of the Fifth Circuit in Holmes v. Danner, 5 Race Rel. L. Rep. 
1091 (1961)); Boomer v. Beaufort County Bd. of Educ. (August 
30, 1968)(unreporeed order of Mr. Justice 3lack, vacating 
stays granted by this Court). Recent actions of the Supreme 
Court, both before and after oral argument in Swann, make it 
clear that the Court did not intend to vitiate the rule of

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Alexander when it granted review in Swann. E.g. , Swann v.
Charlotte-Mecklenburg Bd, of Educ., No. 281, O.T. 1970 (August 
25, 1970) (unreported order of full court denying requested 
stays, pending disposition of Swann on meri'es, of school 
desegregation in Charlotte, Winston-Salem, Fort Lauderdale 
and Miami); Metropolitan County Bd. of Educ. of Nashville and 
Davidson County v. Kelley (February 3, 1971)(unreported order 
of Mr, Justice Stewart, denying application for stay, pending 
certiorari, of requirement that proceedings in school 
desegregation case continue); Cotton Plant School Dist. No. 1 
v. United States (February 10, 1971)(unreported order of Mr. 
Justice Blackmun, denying stay pending certiorari of district 
court order requiring immediate implementation of desegregation 
plan); Eckels v. Ross (March 1, 1971) (unreported order of full 
Court denying stay, pending certiorari, of modifications to 
desegregation plan ordered by United States Court of Appeals 
for the Fifth Circuit).

WHEREFORE, plaintiffs respectfully pray that the
stay be denied.

JACK GREENBERG 
JAMES M. NABRIT, III 
10 Columbus Circle 
New York, New York 10019 

LOUIS R. LUCAS 
525 Commerce Title Building 
Memphis, Tennessee 38103 
JAMES R. OLPHIN 
214 East Clay Street 
Richmond, Virginia 23219 

M. RALPH PAGE 
420 North First Street 
Richmond, Virginra 23219 

Attorneys for Plaintiffs

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IN THE UNITED STATES DISTRICT COURT 
EOR TilE EASTERN DISTRICT OF VIRGINIA 

Richmond Division

CAROLYN BRADLEY and MICHAEL )
BRADLEY, infants, etc., ct al ))v. ) CIVIL ACTION

) No. 3353
THE SCHOOL BOARD OF THE CITY )
OF RICHMOND, VIRGINIA, et al )

MOTION OF DEFENDANT, SCHOOL BOARD OF THE 
CITY Pi' RICHMOND ?(T MODIFICATION OF THE ORDER 

OF THIS COURT OF APRIL 5, 19~7I

Defendant School Board of the City of Richmond, by counsel 
moves this Court to modify its Order of April 5, 1971, and as 
grounds therefor states that it believes a compelling reason for 
the timing of the Court's Order of April 5, 1971, was the assur­
ance that there would be adequate time for the acquisition of 
transportation facilities required to implement Plan III.

In view of the Court's emphasis that defendants take 
immediate steps to obtain sufficient transportation facilities, 
the School Board respectfully represents unto the Court as follows

1. It will forthwith request of the City Council of the 
City of Richmond sufficient funds to purchase what the School 
Board determines to be the necessary number of buses for the 
beginning of the school year 1971-72, said buses to be available 
for use no later than September 1, 1971, and in^no event shall the 
number of buses be less than .56.

2. The orderly implementation of Plan III can be accom­
plished within a period of 60 days.

In view of the foregoing representations, the Richmond 
School Board requests this Court to modify its Order of April 5, 
1971, and as further support thereof states the following:



;
1. The modification of the Court's Order of April 5,

| 1971, would eliminate t.he necessity of an additional appeal at 
the present time when all counsel are engaged in active and 
detailed preparation for extended hearings before this Court 
commencing April 26, 1971. Such a modification, in light of this 
defendant's representations, would not prejudice the rights of 
the plaintiffs to the relief afforded by the Court's latest Order.

2. Additional time would be available for this Court and 
the Fourth Circuit Court of Appeals to receive expected guidelines 
from the Supreme Court concerning the law of desegregation, thus 
enabling all Orders and plans to be reviewed and modified with 
greater accuracy and assurance. The awaiting of such guidelines 
for an additional sixty (60) days would not prejudice the rights 
of the plaintiffs to the relief afforded by the Court's latest 
Order.

3. The pending appeals of this Court's Order of August 
17, 1970 could be processed in logical sequence, including the 
predictable course that following the High Court decision, all 
such existing appeals will be remanded for reconsideration con-

j sistent with the Supreme Court's directives.
4. There is a distinct liklihood that a definitive order 

may be forthcoming from this Court prior to June 30, 1971 on the 
question of consolidation of the school systems of the City of 
Richmond and the Counties of Chesterfield and Henrico. While 
such a consideration cannot and did not influence the Court in 
deciding the relief granted on April 5, (as noted in the Court’s 
memorandum opinion), such a determination is extremely important 
to all of the parties most directly affected by the Order of 
April 5 and deserves the Court's consideration in light of the 
representations made.

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' ! "  
i

L



Wherefore, the School Board of the City of Richmond 
requests the Court to modify its Order of April 5, 1971, to 
require that the School Board of the City of Richmond and the Cit ' 
Council of the City of Richmond take immediate action to acquire 
by purchase or lease the number of buses which the School Board 
determines to be necessary for the opening of schools in 
September, 1971, and in no event less than 56 buses, and that 
such acquisition of buses not cause any reduction in educational 
effort or the discontinuance or reduction of courses, services, 
programs, or extra-curricular activities which traditionally are 
offered, and that the necessity of further steps toward implemen­
tation of Plan III be deferred until further order of this Court, 
either sua sponte, or on motion of any party.

Respectfully submitted,
THE SCHOOL BOARD OF THE CITY OFRICHMOND

George B. Little
Browder, Russell, Little & Morris 1510 Ross Building 
Richmond, Virginia 23219
Conard B. Mattox, Jr.
City Attorney 
402 City Hall 
Richmond, Virginia 23219
J. Edward Lawler 
615 Mutual Building 
Richmond, Virginia 23219

CERTIFICATE
I hereby certify that Norman J. Chachkin, counsel of 

record for the plaintiffs was notified on April 6, 1971, that the

3



defendant Richmond School Board would present the foregoing 
Motion to the Court on April 7, 1971/ and that copies of this 
Motion were mailed thereafter to all counsel of record this 
7th day of April/ 1971, as follows:
James R. Olphin, Esquire 
214 East Clay Street 
Richmond, Virginia 23219
Frederick T. Gray, Esquire 510 United Va. Bank Bldg. 
Richmond, Virginia 23219
Walter E. Rogers, Esquire 
510 United Va. Bank Bldg. 
Richmond, Virginia 23219
John S. Battle, Jr., Esquire 1400 Ross Building 
Richmond, Virginia 23219
R. D. Mcllwaine, III, Esauire P. O. Box 705
Petersburg, Virginia 23803
Louis R. Lucas, Esquire 
525 Commerce Title Building 
Memphis, Tennessee 38103
Oliver D. Rudy, Esquire 
Commonwealth Attorney of 
Chesterfield County 
Chesterfield, Virginia 23832
J. Mercer White, Jr., Esquire County Attorney for 
Kcnrico County 
P. 0. Box 27032 
Richmond, Virginia

M. Ralph Page, Esquire 
420 North First Street 
Richmond, Virginia 23219
J. Segar Gravatt, Esquire 
105 East Elm Street 
Blackstone, Virginia
Edward S. Hirschler, Esquire 
Everett G. Allen, Jr., Esquire 
Massey Building 
Richmond, Virginia 23219
Hon. Andrew P. Miller 
Attorney General of Virginia 
Supreme Court Building 
Richmond, Virginia 23219
Norman J. Chachkin, Esquire 
10 Columbus Circle 
Suite 2030
New York, New York 10019
William G. Broaddus, Esquire 
D. Patrick Lacy, Jr., Esquire 
Assistant Attorneys General 
Supreme Court Building 
Richmond, Virginia 23219
L. Paul Byrne, Esquire 
701 East Franklin Street 
Richmond, Virginia 23219

4



CERTIFICATE OF SERVICE

I hereby certify that on this tenth day of
April, 1971, I mailed a copy of

the foregoing Plaintiffs' Opposition to Stay of District Court Order 
of April 5, 1971
via United States mail, first class, postage pre-paid to each of 
the following counsel herein:

Walter E. Rogers, Esq.
510 United Virginia Bank Bldg. 
Richmond, Virginia 23219
John S. Battle, Jr., Esq.1400 Ross Building 
Richmond, Virginia 23219
Conrad B. Mattox, Jr.
City Attorney 402 City Hall 
Richmond, Virginia 23219
Hon. Andrew P. Miller 
Attorney General of Virginia 
Supreme Court Building 
Richmond, Virginia 23219
R. D. Mcllwaine, III, Esq.
P. O. Box 705
Petersburg, Virginia 23803
Oliver D. Rudy 
Commonwealth Attorney of 

Chesterfield County 
Chesterfield, Virginia 23832
L. Paul Byrne, Esq.
7th and Franklin Office Building 
Richmond, Virginia 23219

Edw. S. Hirschler, Esq.
E. G. Allen, Jr., Esq,
2nd Floor, Massey Building 
4th and Main Streets 
Richmond, Virginia 23219
George B. Little, Esq.
1510 Ross Building 
Richmond, Virginia 23219
Edward Lawler, Esq.
615 Mutual Building 
Richmond, Virginia 23219
Frederick T. Gray, Esq.
510 United Va, Bank Bldg. 
Richmond, Virginia 23219
J. Segar Cravatt, Esq.
105 East Elm Street 
Blackstone, Virginia
J. Mercer White, Jr.
County Attorney for Henrico County
P. O. Box 27032 
Richmond, Virginia