United States v. Board of Education for the City of Savannah, Chatham County Brief for Plaintiff-Intervenor and Appellant

    I n  t h e

(to rt nf tlir llnxtth Stairs
O ctober T er m , 1972 

No. 72-667

T h e  S chool B oard of

T h e  C it y  of N ew port  N ew s , V irgin ia , et al.,

Petitioners,
—v.—

F r a n k  V . T h o m pso n , et al.

BRIEF IN OPPOSITION TO CERTIORARI

H en ry  L. M a r sh , III 
S. W. T u cker  
J am es  W . B en to n , J r .

214 East Clay Street 
Richmond, Virginia 23219

P h il ip  S. W alker  
1715 25th Street 
Newport News, Virginia 23607

J ack  Greenberg 
J am es M . N abrit , I I I  
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



TABLE OF CONTENTS

P A G E

Opinions Below ................................................................ . 1

Jurisdiction .................    2

Questions Presented...................................      2

Statement of the Case ......................................................  3

Reasons Why the Writ Should Be Denied ............... 4

Conclusion  ..............................................................    11



I n  th e

§>upmtte (Emtrt nf %  Intfrfc States
O ctober T e r m , 1972 

No. 72-667

T h e  S chool B oard of 
T h e  C it y  of N ew port  N ew s , V irg in ia , et al.,

Petitioners,
— v.—

F r a n k  V . T h o m pso n , et al.

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the United States Court of Appeals for 
the Fourth Circuit, filed August 2, 1972, is now reported at 
465 F.2d 83. The unreported August 12, 1971 oral opinion 
of the District Court and its order endered August 23,1971, 
are reprinted at pp. 15 and 23, respectively, of the Appen­
dix to the Petition.

There are no prior reported opinions in this case; how­
ever, opinions in a predecessor action, AclMns v. School 
Board of Newport News, are reported at 148 F. Supp. 430 
(E.D. Va.), aff’d 246 F.2d 325 (4th Cir.), cert, denied, 355 
U.S. 855 (1957).



2

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 28 
U.S.C. § 1254(1).

Questions Presented

(1) Whether residential segregation in Newport News, 
which predated the commencement of this litigation and 
which continues virtually unabated to any substantial de­
gree, excuses the school authorities from dismantling seg­
regated units of their former dual school system which are 
located in segregated neighborhoods.

(2) Whether the courts below erred in holding that a 
freedom-of-choice plan had failed to bring about effective 
desegregation of the Newport News public schools.

(3) Whether the Court of Appeals erred in remanding, 
for further findings, the District Court’s action exempting 
all first- and second-graders from inclusion in the desegre­
gation process, irrespective of the particular time or dis- 
stance any individual student or group of students of any 
age might have to be transported.

(4) Whether a school system which previously trans­
ported nearly 70% of its enrollment may avoid effectively 
desegregating its schools because it contends that trans­
portation of students to achieve desegregation will subject 
them to dangerous conditions because of congested traffic 
patterns.



3

Statement of the Case

The essential facts concerning this matter are as follows:

This snit was commenced July 23, 1970 to desegregate 
the public schools of Newport News.1 Proceedings were 
initially deferred pending this Court’s decision in Swann 
v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1 
(1971); thereafter, the School Board submitted a plan call­
ing for retention of freedom-of-ehoice at the secondary 
school level, and “neighborhood” (generally segregated) 
zoning for elementary schools. The Board also presented 
an alternate secondary plan (which it did not favor) utiliz­
ing pairing and non-contiguous zoning to desegregate all 
secondary facilities in the system.

Following a hearing, the District Court on August 4, 
1971 rejected the Board’s proposal to continue freedom-of- 
choice at the secondary level but accepted the alternate 
secondary desegregation plan. At the same time, the Court

1 A  decade before, black schoolchildren had brought suit to de­
clare unconstitutional the Yirginia pupil placement laws enacted 
in response to Brown v. Board of Educ., 347 U.S. 483 (1954) ; 349 
U.S. 294 (1955), and to start the process of desegregation in New­
port News. Adkins v. School Bd. of Newport News, 148 F. Supp. 
430 (E.D. Va.), aff’d 246 F.2d 325 (4th Cir.), cert, denied, 355 
U.S. 855 (1957). Following merger of the Cities of Warwick and 
Newport News in 1958 (Petition, p. 9), a second suit seeking the 
same relief was brought against the new entity, Adkinson v. School 
Bd. of Newport News, Civ. No. 642 (E.D. Va., Newport News 
Div’n, filed September 3, 1958). These suits did not result in 
orders for system-wide desegregation and their prosecution lan­
guished in the 1960’s. Following enactment of the Civil Eights 
Act of 1964, 42 U.S.C. §§2000d et seq., the Newport News school 
system adopted a freedom-of-choice plan. This proved ineffective 
as a desegregation device and the U.S. Department of Health, 
Education and Welfare had virtually completed procedures to 
terminate federal funding to the district when the District Court’s 
order in the instant case was entered. See U.S. Dep’t of H.E.W., 
Status of Title VI Compliance: Interagency Report, Cumulative 
List No. 254, p. 4 (Docket No. CE 669).



4

required submission of a new elementary plan by the school 
system. This plan, ultimately approved by the District 
Court, retained “neighborhood” zoning for students in 
grades 1 and 2 while utilizing non-contiguous pairing to 
desegregate the remaining elementary grades.

Both parties appealed: the School Board claiming it had 
been required to do too much, and the plaintiffs that a 
unitary school system could not be achieved under the plan 
approved by the District Court. In the meantime, both 
the Board’s alternate secondary school and revised ele­
mentary school desegregation plans were implemented com­
mencing with the 1971-72 school year.

On August 2, 1972, the United States Court of Appeals 
for the Fourth Circuit, sitting en banc, rejected the Board’s 
appeal virtually in its entirety and remanded the case to 
the District Court with instructions to make findings con­
cerning two issues raised by plaintiffs: whether under the 
School Board’s elementary plan, as to the grades it affected, 
black students were bearing a disproportionate share of 
the burden of desegregation; and whether any sufficient 
ground existed to eliminate the first and second grades from 
the desegregation process, particularly if the plaintiffs 
could present a viable and practicable alternative ele­
mentary plan including those grades.

Reasons Why the Writ Should Be Denied

Petitioners attack the desegregation order of the District 
Court on every possible ground, contending: that they did 
not operate a dual school system, that in any event the 
Court was bound to permit continuation of a free choice 
plan which had not effectively desegregated their schools, 
that Newport News streets and highways are so grossly 
inadequate to transport students to desegregated schools



5

that the District Court exceeded its remedial equitable 
authority by ordering a plan requiring pupil busing, and 
finally, that the Court of Appeals should not have required 
further findings to justify blanket exemption of first- and 
second-grade students from whatever plan of desegregation 
is required to be implemented.

I.

The first two and last two “ Questions Presented” de­
scribed in the Petition (pp. 2-3), and the confusing dis­
cussion at pp. 13-23 thereof, represent an attempt by the 
Petitioners to cloud the remedial issues of the case by 
making the bald and unsupportable claim that no violation 
of the Fourteenth Amendment wTas shown warranting relief 
in the nature of that authorized by this Court in Swann. 
The School Board presents alternate theses to support 
this rationale: that its freedom-of-choice plan was working 
and its schools were not segregated; and that its school 
segregation had nothing to do with discrimination or its 
past operation of a dual school system.

Petitioners cannot seriously contend that their schools 
were not substantially segregated at the time this action 
was commenced. In the 1970-71 school year, 13 of the 
system’s 39 schools were virtually all-black.2 Petitioners’ 
counsel as much as conceded that freedom of choice had 
been inadequate at the District Court hearing of June 16, 
1971 when he said:

. . .  if the sole basis for determining whether the free­
dom of choice plan is valid in Newport News is a racial

2 The failure of the freedom-of-choice plan to produce meaning­
ful results led the Department of Health, Education and Welfare 
to conduct enforcement proceedings under Title VI of the Civil 
Rights Act of 1964 for the purpose of terminating federal financial 
assistance to the school district. See n. 1, supra.



6

black-white ratio question, then we would agree that 
it has no chance of passing. (A. 7)3

Of course, this Court held in Green v. County School Bd. 
of New Kent County, 391 U.S. 430, 441 (1968), that where 
freedom-of-choice plans had produced results comparable 
to those in Newport News—in terms of numbers—then the 
availability of alternatives promising greater desegrega­
tion—again in terms of numbers—must be explored.4 * The 
District Court in this case was clearly correct in rejecting 
a continuation of freedom of choice where the Board itself 
submitted a feasible alternative plan which promised full 
desegregation at once.

Petitioners were equally unsuccessful below in establish­
ing that the 1970 segregation in their schools was unrelated 
to their previous operation of a dual school system.6 To 
meet their burden under Swann, 402 U.S. at 26, they pre­
sented only the testimony of the School Superintendent,6

3 Citations are to the printed Appendix in the Court of Appeals.
4 The notion that Green and Alexander v. Holmes County Bd. of 

Educ., 396 U.S. 19 (1969) were limited in application to small, 
rural school systems, (Petition, p. 20), was laid to rest in North-
cross v. Board of Educ. of Memphis, 397 U.S. 232 (1970),

6 Obviously, they could not contend that at some time between 
1957 and 1970 they had implemented an efficacious plan and had 
“achieved full compliance with this Court’s decision in Brown I.”  
Swann v. Charlotte-Mecklenburg Bd. of Educ., supra, 402 U.S. at 
31. The only desegregation device ever employed in Newport News, 
freedom of choice, was concededly inadequate under the standards 
of Green.

6 The Petition asserts that the Superintendent was qualified as 
a historical expert for the purpose of his testimony but no such 
representation was made to the District Court. The entire expert 
“qualification” is as follows:

Q. Mr. McIntosh, do you know of anyone else that knows 
any more or as much about the Newport News School System 
as you do? A. No, sir.



7

who claimed that the racial characteristics of student en­
rollments in Newport News public schools were determined 
solely by long-standing patterns of racial residential con­
centration. The Superintendent did not and could not tes­
tify that Newport News had not operated a dual school 
system, but he ignored the continuing effect of the long­
standing practice of faculty and pupil segregation as well 
as school site location and other policy decisions made 
with full knowledge of the residential segregation. See 
Swann, 402 U.S. at 20-21.7

Residential segregation in Newport News antedates this 
lawsuit, and the School Board was well aware of it in 
designing its segregated “neighborhood” zones. But de­
segregation plans “cannot be limited to the walk-in school,” 
Swann, 402 U.S. at 30. The existence of continuing or even 
changing patterns of residential segregation in a school 
district which has never acted affirmatively to effectively 
dismantle its racially segregated system does not alter the 
constitutional obligation of school authorities. E.g., Henry 
v. Clarksdale Municipal Separate School List., 409 F.2d 
682 (5th Cir.), cert, denied, 396 U.S. 940 (1969) ; Kelley 
v. Metropolitan County Bd. of Educ., 463 F,2d 732, 744 
(6th Cir.), cert, denied, 41 U.S.L.W. 3254 (1972); Clark 
v. Board of Educ., 426 F.2d 1035 (8th Cir. 1970), cert, 
denied, 402 U.S. 952 (1971); Dowell v. Board of Educ.,

Mr. Beale: If your Honor please, I tender the witness as 
an expert in the educational field—

The Court: Yes.
Mr. Beale: — and, in particular, upon the Newport News 

School System.
The Court: You may proceed. (A. 28).

7 The Superintendent’s denial that today’s segregation in the 
Newport News public schools relates to yesterday’s racial discrim­
ination is essentially the same as the characteristic denial of discrim­
ination voiced by jury commissioners. See Norris v. Alabama, 294 
U.S. 587, 598 (1935) ; Turner v. Fouche, 396 U.S. 346, 361 n. 21 
(1970), and cases cited.



8

465 F.2d 1012 (10th Cir.), cert, denied, 41 U.S.L.W. 3313 
(1972); Flax v. Potts, 464 F.2d 865 (5th Cir.), cert, denied, 
41 U.S.L.W. 3274 (1972).

II.

Petitioners also claim that inadequate traffic arteries in 
Newport News are so congested that no desegregation plan 
involving the transportation of students at the elementary 
level could properly have been ordered by the District 
Court.

The pairing plan for elementary school grades 3-7 has 
been in effect for a year and a half in Newport News; yet 
on no occasion has the school district encountered the grave 
and serious problems which it told the District Court it 
was anticipating with the pupil transportation required to 
desegregate its schools. The school district has not found 
it necessary to request any modification of the plan based 
on practical problems it was actually encountering in im­
plementation. Thus, this case is much like Kelley v. Metro­
politan County Bd. of Educ., supra, and Flax v. Potts, 
supra, in which school boards sought to attract attention 
with inflated claims of danger and chaos which simply 
did not materialize when desegregation plans were carried 
out.

The Court of Appeals considered Petitioners’ arguments8 
in great detail and with considerable sympathy but found 
nothing to suggest the District Court had erred in requir­
ing implementation of an elementary school desegregation

8 The cases relied upon by Petitioners are inapposite. Boss v. 
Eckels, 434 F.2d 1140 (5tli Cir. 1970) was a pre-Swann decision 
consistent with Davis v. Board of School Comm’rs, 430 F.2d 883, 
889 (5th Cir. 1970), rev’d 402 U.S. 33 (1971). The District Court 
decision in Calhoun v. Cook has been reversed, No. 72-2453 (5th Cir., 
November 24, 1972).



9

plan involving pupil transportation for grades 3-7; the 
Court said “the objections of the school district are without 
merit.”

During the 1970-71 school year, preceding implementa­
tion of the District Court’s order, the system transported 
22,000 of its 31,500 students, including 12,900 elementary 
students (A. 50,129); as the District Court noted, many 
school buses in Newport News were already crossing- the 
“dangerous intersections” which Petitioners contend here, 
and contended below, are so unsafe that a desegregation 
plan requiring a school bus to traverse them ought not be 
effected.

The district courts retain jurisdiction in school desegre- 
gation cases, Raney v. Board of Educ., 391 U.S. 443 (1968), 
and like any courts of equity, Swann, supra, their decrees 
are always subject to modification. I f the School Board is 
experiencing great difficulty in implementing the District 
Court’s order, it should take the matter up with that Court; 
its failure to do so for a year and a half thoroughly sup­
ports the action of the District Court in requiring deseg­
regation.

III.

Finally, Petitioners contended below that since pupil 
transportation was necessary, elementary schools should 
not be desegregated because the additional time required 
would be harmful to the health of young children.

Although 12,900 elementary students in Newport News 
were already bused (to segregated schools), Petitioners 
did not differentiate between potential harm to these chil­
dren and to those students who previously walked to class. 
Instead, they presented the testimony of a pediatrician, in



10

general practice for five years, who responded to a hypo­
thetical question based upon the average system-ivide travel 
time under Petitioners’ plan, and recommended rest or 
nap periods for younger children (A. 60).9 He was un­
familiar with the details of the plan or the amounts of time 
elementary pupils spent getting to school prior to desegre­
gation (A. 65).

The District Court found the testimony unconvincing 
(A. 149) but decided to exempt first- and second-graders 
on its own:

. . . the reason that I think it is important to keep chil­
dren in the first and second grades in the neighborhood 
area is that while it is not supported by any testimony 
in this case, I am old-fashioned enough to think that 
it is vitally important that a child, starting his or her 
public education, should commence the same with some 
degree of happiness and satisfaction, including some 
degree of comfort on the part of the parent . . . (A. 
150) (emphasis added).

The Court of Appeals remanded with instructions that 
further findings were necessary to support the District 
Court’s action, noting with respect to the “medical” testi­
mony that if “ there is any credible evidence along this line 
developed on remand, the District Court may give such 
consideration to it as it finds is warranted,” 465 F.2d at 
88, n.7.10

Petitioners’ complaint apparently is that the Courts 
below should have refused to order any elementary desegre­
gation on the basis of the evidence that long school days

9 The school system schedules rest periods for first and second 
graders (A. 68).

10 Thus, there is no need for this Court to review the issue until 
it is finally resolved below.



11

without sufficient rest periods might be detrimental to the 
health of young children—even though that opinion was 
not linked to the additional transit time required of specified 
students or groups of students but was advanced as equally 
affecting all pupils. We think the Court of Appeals was 
more than justified in remanding—and in fact should prop­
erly have directed inclusion of the first two grades. The 
general principle recognized in all of the Circuits which 
have decided the question is that desegregation plans must 
affect all grades absent compelling justification for specific 
exemption. E.g., Flax v. Potts, supra; Clark v. Board of 
Educ., 465 F.2d 1044 (8th Cir. 1972), cert, pending.

CONCLUSION

W herefore, for the foregoing reasons, Respondents re­
spectfully pray that the Writ be denied.

Respectfully submitted,

H en ry  L. M arsh , III 
S. W. T u cker  
J am es W. B e n t o n , J r .

214 East Clay Street 
Richmond, Virginia 23219

P h il ip  S. W alker  
1715 25th Street 
Newport News, Virginia 23607

J ack  Greenberg 
J am es M. N abrit , ITT 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



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