Motion by Etowah County Defendants' to Exclude Certain Evidence at the Trial of This Cause; Other Court Documents Re Etowah County Redistricting Trial

    BRIEF FOR APPELLEES

United States Court of Appeals
FD R  T H E  FO U RTH  C IR C U IT

No. 13,626

BRENDA LEE TRAYNHAM , e t c ., e t  a l .,
Appellees,

CO U NTY SCH O O L BOARD OF H A LIFA X  
CO UNTY, V IRG IN IA , e t  a l .,

Appellants.

Appeal from the United States District Court for the 
Western District of Virginia, Danville Division 

Honorable Robert R. Merhige, Jr,, Judge Designate

S. W. T u cker  
H en r y  L. M a r sh , III  
H il l , T u cker  & M arsh  

214 East Clay Street 
Richmond, Virginia 23219

J ack  G reenberg  
J am es M. N abrjt, III

10 Columbus Circle, Suite 2030 
New York, New York 10019

Counsel for Appellees



TABLE OF CONTENTS
Page

... 1T h e  I s s u e s  

Ar g u m e n t  .

I. The Case Stated By The Appellant School Board Is In­
distinguishable From Walker v. County School Board of 
Brunswick County............................................................................

II. Appellees Should Be Awarded Double Costs And Counsel 
Fees......................................................................................- .............

C o n c l u s i o n ................................................................................................................

A p p e n d ix

Resolution of Board of Supervisors, May 5, 1969 .................... App.
Motion For Summary Affirmance ............................................ -App.
Motion For Damages And Double Costs...................................App.

TABLE OF CASES

Anthony v. Marshall County Board of Education, 409 F. 2d 
1287 (1969) .......................................................................................3,

Bell v. School Board of Powhatan County, Virginia, 321 F. 2d 
494 (4th Cir. 1963) ..........................................................................

Betts v. County School Board of Halifax County, Virginia, 269 
F. Supp. 593 (W.D. Va. 1967) .....................................................

Brown v. Board of Education (Brown I ) ,  347 U.S. 483 (1954) ....

Brown v. Board of Education (Brown II ) , 349 U.S. 294 (1955) ..3,

Coppedge v. Franklin County Board of Education, 394 F. 2d 410 
(4th Cir. 1968) ................................................. .................... -...........

Felder v. Harnett County Board of Education, 409 F. 2d 1070 
(4th Cir. 1969) ................................................................................ 4,

2

2

4

6

1
2
2

5

4

2

4

4

4

5



Page

Hawthorne v. County School Board of Lunenburg County, Vir­
ginia, 413 F. 2d 53 (1969) ..........................................................3, 4, 5

Monroe v. Board of Commissioners, 391 U.S. 450 (1968) ..............  3

Walker v. County School Board of Brunswick, Virginia, 413 F. 2d 
53 (1969) ....................................................................................... 3, 4, 5



United States Court of Appeals
FO R T H E FO U RTH  CIRCU IT

No. 13,626

BRENDA LEE TRAYNHAM, e t c ,, e t  a l .,
Appellees,

v.

CO U NTY SCH O O L BOARD OF H A LIFA X
CO UNTY, V IRGIN IA, e t  a l .,

Appellants.

Appeal from the United States District Court for the 
Western District of Virginia, Danville Division 

Honorable Robert R. Merhige, Jr., Judge Designate

BRIEF FOR APPELLEES

THE ISSUES

The appellant school authorities contend that they are 
not or should not be required to disestablish racial segre­
gation in the public schools, but that they should be per­



2

mitted to continue their dual school system except as modi­
fied through the operation of freedom of choice.

By their motion for summary affirmance and their motion 
for damages and double costs (both of which are copied 
as an appendix hereto), the appellees submit:

1. The Appellants’ Contentions Are Clearly And Ex­
plicitly Foreclosed By Prior Decisions Of The Supreme 
Court And This Court.

2. This Appeal, Being Groundless And Vexatious, 
Warrants An Award Of Damages And Double Costs.

ARGUM ENT

I.

The Case Stated By The Appellant School Board Is Indistinguishable 
From Walker v. County School Board of Brunswick County

The School Board concedes that the dual school system 
continues notwithstanding the unhampered operation of the 
“ freedom of choice” plan which was specifically approved in 
Betts v. County School Board of Halifax County, Virginia, 
269 F. Supp. 593 (W.D. Va. 1967). It asserts that “ the . . . 
evidence, like that in the Lunenburg [Hawthorne] and 
Brunswick [Walker] cases decided by this Court on July 11, 
1969, is that large numbers of the white children will flee 
the system if a system other than freedom of choice is 
required and that funds to build essential improvements 
will be difficult, if not impossible, to obtain if the schools 
are totally integrated.”

On May 16, 1969 the school authorities assured the Dis­
trict Court that funds for the construction of two junior high 
schools will be forthcoming. (App. 37. The May 5, 1969 
resolution of the Board of Supervisors referred to in para­
graph 4 on App. 37 is copied as an appendix hereto.) On



3

the strength of these assurances, the District Court, by order 
of June 5, 1969 aproved freedom of choice as the basis for 
operation of secondary schools for the semester commencing 
in September of 1969. The School Board may not now be 
heard to argue here that “ the integration of schools will 
make it doubly hard . . .  to obtain funds for the needed 
junior high schools.”

As their brief virtually admits, the case for the school 
authorities is identical with Walker v. County School Board 
of Brunswick, Virginia and Hawthorne v. County School 
Board of Lunenburg County, Virginia, 413 F. 2d 53, which, 
as noted in the Appellants’ Brief at page 5, this Court 
decided on July 11, 1969. There, addressing itself to the 
identical arguments which the school board makes here, this 
Court said:

“ Whatever the appeal of such an argument the Su­
preme Court has foreclosed our consideration of it— 
at least in the context of the theoretical possibility.3 
In Monroe v. Board of Commissioners, 391 U.S. 450, 
459, *  *  *  the Court rejected the same contention made 
in the context of defending a free transfer provision:
“ ‘We are frankly told in the Brief that without the 
transfer option it is apprehended that white students 
will flee the school system altogether. “But it should 
go without saying that the vitality of these constitu­
tional principles cannot be allowed to yield simply be­
cause of disagreement with them.” Brown II, Brown v. 
Board of Education, 349 U.S. 294 at 300, *  *  ”

“3 The record does not indicate that there has been as yet, any 
fleeing of the school systems. With respect to Brunswick County 
the district judge expressed the opinion it would not occur.” (413 
F. 2d at 54).

The same result had been reached by the Fifth Circuit in 
Anthony v. Marshall County Board of Education, 409 F. 2d 
1287 (1969). No other result could have been reached in



4

the light of these controlling principles as stated unequivo­
cally by the Supreme Court:

“ We conclude that in the field of public education the 
doctrine of ‘separate but equal’ has no place. Separate 
educational facilities are inherently unequal.” (Brown 
v. Board of Education (Brown I ) ,  347 U.S. 483 
(1954))

*  *  *
“All provisions of federal, state or local law requiring 
or permitting such discrimination must yield to this 
principle.” (Brown v. Board of Education (Brown I I ) ,  
349 U.S. 294, 298 (1955))

*  *  *

II.

Appellees Should Be Awarded Doable Costs And Counsel Fees

In Felder v. Harnett County Board of Education, 409 
F. 2d 1070 (4th Cir. 1969) this Court (over dissent of 
Judges Sobeloff and Winter) declined to award double 
costs and counsel fees against appellant school authorities, 
saying:

“Although we have seen more meritorious appeals, we 
do not think this one may be characterized fairly as 
groundless or vexatious. There is not present here the 
pattern of evasion and obstruction labeled ‘extreme’ in 
Bell v. School of Powhatan County, Virginia, 321 F. 2d 
494 (4th Cir. 1963). Nor are the issues here mooted 
by compliance as were those in Coppedge v. Franklin 
County Board of Education, 394 F. 2d 410 (4th Cir. 
1968).'”

In Walker v. County School Board of Brunswick County, 
supra and in Hawthorne v. County School Board of Lunen­
burg County, supra, double costs and counsel fees were 
again denied on authority of Felder. The appellants’ brief



5

had been filed on the same day the Fifth Circuit overturned 
a District Court opinion on which the County School Boards 
of Brunswick and Lunenburg counties were relying (An­
thony v. Marshall County Board of Education, supra).

Two judges, dissenting in Walker and Hawthorne, 
thought the county school boards of Brunswick and Lunen­
burg counties had prosecuted frivolous and vexatious ap­
peals. No judge thought the appeals had merit. Those cases 
were decided July 11, 1969.

The instant appellants’ brief was not filed until Septem­
ber 22, 1969, over two months after this Court had spoken 
to the issues they now reargue. They do not cite one decision 
or other authority as supporting their contention. They ad­
mittedly argue in the very teeth of this Court’s decision in 
Walker and its reliance on the Supreme Court’s decision in 
Monroe.

Since no result varying from that reached by the District 
Court can be expected, the appeal is both frivolous and 
vexatious. We submit for the Court’s consideration and ap­
plication here the thought of Judges Sobeloff and Winter, 
dissenting on the point in Felder v. Harnett County Board 
of Education, supra:

“The allowance of reasonable counsel fees, including 
disbursements, would not only transfer the burdensome 
cost of the litigation from those who have been and 
continue to be deprived of their constitutional rights 
to those responsible for the deprivation, but it would 
also provide a suitable and necessary incentive to the 
school authorities to get on with the task of desegre­
gation.” (409 F. 2d at 1075-6).



6

CONCLUSION

The judgment of the district court should be summarily 
affirmed. The appellees should be awarded reasonable at­
torneys’ fees and double costs.

Respectfully submitted,

S. W. T u c k e r

Of Counsel for Appellees
S. W. T u c k e r  
H e n r y  L. M a r s h , I I I  
H i l l , T u c k e r  & M a r s h  

214 East Clay Street 
Richmond, Virginia 23219

J a c k  G r e e n b e r g  
J a m e s  M . N a b r it , III

10 Columbus Circle, Suite 2030 
New York, New York 10019

Counsel for Appellees



A P P E N D I X

A t  T h e  R e g u l a r  M e e t in g  O f  T h e  B oard O f  S u p e r ­
v iso r s , H e ld  O n  T h e  F if t h  D a y  O f  M a y , N i n e t e e n  
H u n d r e d  S ix t y  N in e , I n  T h e  B oard R oom  A t  H a l if a x , 
V irg in ia , W it h  T h e  F o l lo w in g  M e m b e r s  P r e s e n t : 
Messrs. O. B. Tate, H. W. Matthews, T. H. Bass, Clarence 
A. Bowen, T. N. Snow, Jr., Lewis Compton, Richard Abbott 
and Dr. N. H. Wooding

Upon the motion of Dr. N. H. Wooding, seconded by 
Mr. H. W. Matthews and duly carried, the following resolu­
tion was passed, with the following recorded vote:

O. B. Tate, no H. W. Matthews, yes
Dr. N. H. Wooding, yes T. N. Snow, Jr., yes 
Clarence A. Bowen, no Lewis Compton, yes
T. H. Bass, yes Richard Abbott, abstaining

from voting.

RESO LUTION

B e  I t  R e s o l v e d : That the resolution of the County 
School Board of Halifax, Halifax, Virginia, passed by it on 
April 30, 1969, relating to the building of two junior high 
schools and the borrowing of $3,000,000.00 from the Vir­
ginia Supplemental Retirement System therefor, a copy of 
which resolution was this day submitted by said School 
Board to this board and a copy of which is to be included 
for perpetuation in these minutes immediately following 
this resolution, is hereby approved, and said School Board 
is hereby authorized:

1. To acquire sites for said schools,

2. To have the plans for said schools prepared, and



A pp.2

3. To negotiate and enter into an agreement with the 
Board of Trustees of the Virginia Supplemental Retire­
ment System for the borrowing of the aforesaid money for 
said undertaking.

/s /  O. B. Tate, Chairman / s /  H. M. Sizemore, Clerk

Extract from Minutes Book 9, page 398

A copy teste: / s /  H. M. Sizemore, Clerk
Halifax County Board of Supervisors

M OTION FOR SUM M ARY AFFIRM ANCE

The appellees move that, without hearing oral argument 
and pursuant to this Court’s Rule 7(b) ,  the Court will 
summarily affirm the judgment of the United States District 
Court for the Western District of Virginia, Danville Divi­
sion, from which the captioned appeal was taken.

This motion is based on the ground that the appeal pre­
sents no substantial question of law or fact; the case stated 
by the appellants being clearly and explicitly controlled by 
decisions of the Supreme Court and by decisions of this 
Court.

S. W. T u c k e r

Of Counsel for Appellees

M OTION FOR DAMAGES AND DOUBLE COSTS

The appellees move that, pursuant to Rule 38 of the 
Federal Rules of Appellate Procedure, the Court will make 
a determination that this appeal is frivolous and that there­
upon the Court will award to the appellees just damages, 
including a reasonable fee to appellees’ attorneys, and double 
costs.

S. W. T u c k e r

Of Counsel for Appellees