Hill v. City of Norfolk, VA School Board Court Opinion

    UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 8053.

Julia Elizabeth Hill, an infant, by Geneva B. Hill, 
her mother and next friend, et al., 

Appellants,
versus

The School Board of the City of Norfolk, Virginia, and 
J. J. Brewbaker, Division Superintendent of Schools of the 

City of Norfolk, Virginia,
Appellees.

A p p e a l  f r o m  t h e  U n i t e d  S t a t e s  D i s t r i c t  C o u r t  f o r  
t h e  E a s t e r n  D i s t r i c t  o f  V i r g i n i a , a t  N o r f o l k , 

W a l t e r  E .  H o f f m a n , D i s t r i c t  J u d g e .

(Argued April 22, 1960. Decided September 9, 1960.)

Before S o b e l o f f , Chief Judge, and H a y n s w o r t h  and 
B o r e m a n , Circuit Judges.

Spottswood W. Robinson, III, (Victor J. Ashe, J. Hugo 
Madison, Joseph A. Jordan, Jr., Oliver W. Hill, and 
Thurgood Marshall on brief) for Appellants, and 
Leonard H. Davis (Leigh D. Williams and W. R. C. 
Cocke on brief) for Appellees.



P e r  C u r i a m  :

The Norfolk Virginia school case is again before us. 
In other aspects, it has been frequently before the District 
Court and three times in this court.1

In its opinion of May 8, 1959, the District Court, in 
accordance with the decision in Shuttlesworth v. Birming­
ham Board of Education, 358 U.S. 101, 79 S.Ct. 221, 3 
L.Ed. 2d 145, held certain pupil placement criteria and pro­
cedures adopted by the Norfolk School Board to be facially 
constitutional. Thereafter, the School Board, applying its 
criteria and procedures, granted the applications of some 
Negro pupils seeking admission into schools previously at­
tended solely or predominantly by white pupils and denied 
the applications of other pupils seeking similar transfers. 
The School Board filed a report with the District Court to 
inform the District Judge of what it had done and of a 
conflict which had arisen between it and the State Pupil 
Placement Board.2

1 The previous history is shown in the opinions in Beckett v. School Board 
of the City of Norfolk, Virginia, D.C.E.D.Va., 148 F. Supp. 430, aff. sub 
nom. School Board of the City of Norfolk, Virginia v. Beckett (School Board 
of the City of Newport News, Virginia v. Atkins), 4 Cir., 246 F.2d 325, 
cert. den. sub nom. School Board of City of Newport News, Virginia, v. 
Atkins, 355 U.S. 855, 78 S.Ct. 83, 2 L.Ed. 2d 63; School Board of City of 
Norfolk v. Beckett, 4 Cir., 260 F.2d 18; Beckett v. The School Board of the 
City of Norfolk (unreported opinion of May 8, 1959) ; Beckett v. The School 
Board of the City of Norfolk (unreported opinion of September 8, 1959). 
See, also, the related cases of James v. Almond, D.C.E.D.Va., 170 F. Supp. 
331 (3-judge court) ; James v. Duckworth, D.C.E.D.Va., 170 F. Supp. 342, 
aff. sub nom. Duckworth v. James, 4 Cir., 267 F.2d 224; Beckett v. School 
Board of City of Norfolk, 2 Race Rel. L. Rep. 337 (otherwise unreported) ; 
Beckett v. School Board of City of Norfolk, 3 Race Rel. L. Rep. 942-964
(otherwise unreported) ; Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636; 
Adkinson v. The School Board of City of Newport News (unreported opinion 
of May 12, 1959).

2 See Farley v. Turner, 4 Cir., F.2d (decided June 1960).



3

Thereafter the Court allowed additional pleadings in 
which the rejected applicants sought review of the action 
of the School Board insofar as it affected them.

The District Court found that two of the rejected ap­
plications had been denied on the basis of tests from which 
the School Board, “incorrectly, but not deliberately,” had 
exempted white applicants similarly situated. On that ac­
count, it ordered their admission into the schools of their 
choice. A third child, whose application had been rejected 
by the School Board, was also ordered admitted temporarily 
upon a finding that the child was not responsible for the 
facts which seemed to the School Board to justify her 
exclusion. With these three exceptions, the District Court 
approved the action of the Norfolk School Board.

The unsuccessful applicants have brought this appeal to 
this court.

In its opinion of May 8, 1959, the District Court had 
found that the Norfolk School Board had been cooperative 
and was proceeding in a sincere effort to comply with the 
law. In approving the School Board’s rejection of the ap­
plications of these appellants, the District Court found that 
the School Board had undertaken to apply its criteria and 
procedures honestly and fairly, and he concluded that the re­
sult, as an interim step “in an orderly transition period,” 
was in compliance with the mandate of the Supreme Court 
in the original school cases.8 He retained jurisdiction of 
the case, as he has from the outset, for the entry of such 
further orders and the receipt of such further reports and 
pleadings as may be appropriate. 3

3 Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083.



4

Under the order of the District Court, the testing pro­
gram must be indiscriminately applied to pupils of all races 
at the time of promotion from the primary schools, and 
from the junior high schools to the senior high schools, 
This means that the concept of moving within a so-called 
‘‘normal stream” based upon race can no longer be availed 
of in these situations; and that since the intelligence and 
geographical criteria are not being applied to white pupils 
on promotion from elementary to junior high schools or 
from junior to senior high schools, Negroes so promoted 
are entitled to enter such schools upon equal terms without 
the application to them of such criteria and tests. In other 
words, Negroes upon promotion to a mixed school or 
a formerly all white school may not be subjected to tests if 
white pupils being promoted to those same schools are not 
subjected to the same tests. Such movement out of a segre­
gated to a non-segregated school is not to be deemed an 
“unusual circumstance” warranting treatment different 
from that accorded white pupils entering such schools.

However, assignments to the first grade in the primary 
schools are still on a racial basis, and a pupil thus assigned 
to the first grade still is being required to remain in the 
school to which he is assigned, unless, on an individual ap­
plication, he is reassigned on the basis of the criteria which 
are not then applied to other pupils who do not seek trans­
fers. As we recently held in Jones v. School Board of City 
of Alexandria, Virginia, 4 Cir., 278 F.2d 72, such an ar­
rangement does not meet the requirements of the law.

The District Judge, however, did not approve what has 
been done to the present time on the basis that it was com­
plete and final compliance with the Supreme Court’s com­
mand. He recognized that the Supreme Court contemplated



5

an orderly adjustment, and that compliance might be 
effected through a series of progressive steps taken as 
rapidly as the necessity for practical accommodation per­
mits. His approval of what has been done was thus on the 
basis that the Board has taken interim measures and is 
proceeding toward the ultimate goal of complete compli­
ance, with the deliberate speed which has been ordered.

So far as appears, the School Board did not announce 
in advance a plan for gradual, progressive desegregation 
of grades beginning with high schools and proceeding 
progressively to the lower grades. It appears, however, 
from what the Board has done that it means to proceed 
upon the basis of a plan of progressively opening the grades 
beginning with the higher grades and proceeding toward 
the lower grades. Under this procedure, in due course, the 
plan will reach the first grade and the existing discrimina­
tion in the enrollment of first grade pupils will be elimi­
nated. It is our understanding that such discriminatory 
practices have already been eliminated for those being pro­
moted from one school to another, and the plan, in time, will 
remove the remainder of the proscribed practices. The Dis­
trict Judge should from time to time be informed more 
specifically about the time table contemplated by the Board, 
and such a time table would aid the Judge in determining 
whether to give approval to the Board’s subsequent plans 
and conduct. The proposal of a more detailed plan should 
proceed from the Board to the District Judge in the first 
instance.

We are mindful of the valiant and consistent efforts 
Judge Hoffman has made in the past in marshaling com­
munity support for the law and in encouraging obedience



6

by those charged with official responsibility. We give weight 
also to the past conduct of the School Board and the history 
it has established, and to the District Court’s finding that 
it is the Board’s purpose to proceed in good faith and with 
reasonable speed in compliance with the direction of the 
Supreme Court. In light of the District Court’s approval 
of particular procedures as interim measures only, and sub­
ject to re-examination from time to time of further plans 
to effect compliance with the law, the order of the District 
Court is

Affirmed.