Walker v. Brunswick County School Board, Virginia Petition for Writ of Certiorari

    IN THE

#itpnmtp (Efliut of tip? lottos Status
October Term, 1969 

No..............

ANGELA WALKER, etc., et al.,

v.
Petitioners,

COUNTY SCHOOL BOARD OF BRUNSWICK 
COUNTY, VIRGINIA, et al.,

Respondents.

PHEMIE D. HAWTHORNE, etc., et al.,
Petitioners,

v.
COUNTY SCHOOL BOARD OF LUNENBURG 

COUNTY, VIRGINIA, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

JACK GREENBERG 
JAMES M. NABRIT III 
W ILLIAM BENNETT TURNER 

10 Columbus Circle 
New York, New York 10019

S. W. TUCKER 
HENRY L. MARSH, III 

Hill, Tucker & Marsh 
214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Petitioners



I N D E X

PAGE

Table of Authorities ............................. ...... -..................  ii

Citations to Opinions Below ..........................................  2

Jurisdiction ......................................-....... ..................... — 2

Question Presented ........................................................ - 2

Rule and Constitutional Provision Involved -...............  3

Statement .............. —......................................................... 3
A. Walker v. County School Board of Brunswick

County, Virginia ...................................... -........  3
B. Hawthorne v. County School Board of Lunen­

burg County, Virginia........................................  5

R easons F or Gran tin g  th e  W rit .................................  7
I. Introduction: Importance of the Issue.... ........  7

II. Fees and Costs Should have been Awarded in
these Cases under Rule 38 ..................... ........... 8

III. Counsel Fees Should have been Awarded in the 
Equitable Discretion of the Court of Appeals.... 11

C onclusion  ................................ ......................................  12

A ppendix

Opinion of Court of Appeals........ ..... ....................  la

Decision of District Court ........ .................. ........... 3a,



11

T able of A uthorities

Cases: p a g e

Alexander v. Holmes County Board of Education, No.
632 (October 29, 1969) ................................................  7

Bell v. School Board of Powhatan County, Virginia,
321 F.2d 494 (4th Cir. 1963) ................................... . 10

Brown v. Board of Education, 347 U.S. 483 (1954) .....2, 3n
Brown v. Board of Education, 349 U.S. 294 (1955)....3n, 8,

9,10,11,12

Clark v. Board of Education of Little Rock School Dis­
trict, 369 F.2d 661 (8th Cir. 1966) ......... ..................  11

Cooper v. Aaron, 358 U.S. 1 ............................................. 9
Coppedge v. Franklin County Board of Education, 394 

F.2d 410 (4th Cir. 1968) ..............................................  10

Felder v. Harnett County Board of Education, 409 F.2d 
1070 (4th Cir. 1969) ............ ................................5, 6, 9,10

Griffin v. School Board, 277 U.S. 218......... ...................  9

Lee v. Macon County Board of Education, No. 604-E
(M.D. Ala. August 28, 1968) ........................ ............. 9

Monroe v. Board of Commissioners of the City of 
Jackson, Tennessee, 391 U.S. 450 (1968) .............. 4, 5, 6, 8

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 
(1968) ....................... ......................... .................... .....11,12

Vaughn v. Atkinson, 366 U.S. 567 (1962) ...................... 11

Wallace v. United States, 389 U.S. 215 ..........................  9



Ill

Statutes and Rules:
PAGE

28 U.S.C. § 1254 (1) ....
28 U.S.C. § 1912...........

Fed. R. App. P. Rule 38

2

lln

3, 7, 9,12

Other Authorities:

Advisory Committee’s Note, 43 F.R.D. 61,155 (1968) ..9, lln
United States Civil Rights Commission, Federal En­

forcement of School Desegregation (September 11, 
1969) ...................................-.......................................... 10



In the

Supreme ©curt of %  Intfrfc BttxUB
October Term, 1969 

No..... .......

A ngela W alk er , etc., et al.,

v.
Petitioners,

C ou nty  S chool B oard of B ru n sw ic k  C o u n ty , 
V irgin ia , et al.,

Respondents.

P h e m ie  D . H aw th orn e , etc., et al.,

Petitioners,
v.

Co u n ty  S chool B oard of L unenburg  C o u n ty , 
V irgin ia , et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgments of the United States Court of Appeals for 
the Fourth Circuit entered in these two cases on July 11, 
1969.



2

Citation to Opinions Below

The opinion of the United States Court of Appeals for 
the Fourth Circuit, covering both cases, is reported at 413 
F.2d 53 and is set forth in the Appendix, infra, p. la. The 
orders of the United States District Court for the Eastern 
District of Virginia are not reported. The District Court 
order, findings of fact and conclusions of law in the Walker 
case are set forth in the Appendix, infra, at pp. 4a-9a and 
in the record at pp. 139-142, 146 (Volume I). The District 
Court order, findings of fact and conclusions of law in the 
Hawthorne case are set forth in the Appendix, infra, at pp. 
10a-15a and in the record at pp. 59-64 (Volume II).

Jurisdiction

The judgments of the United States Court of Appeals 
for the Fourth Circuit were entered on July 11, 1969. The 
time for filing a petition for writ of certiorari was extended 
to and including November 9, 1969, by order of Chief Jus­
tice Warren E. Burger, dated October 1, 1969. Jurisdiction 
of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

Question Presented

Whether counsel fees and double costs on appeal should 
be awarded Negro plaintiffs in these school desegregation 
cases where respondent school boards, still maintaining 
their segregated school systems 15 years after Brown v. 
Board of Education, prosecuted appeals from integration 
orders in the face of binding precedent foreclosing their 
contention that to desegregate would cause white students 
to flee the system.



3

Rule and Constitutional Provision Involved

This case involves Rule 38 of the Federal Rules of Appel­
late Procedure, which provides as follows:

If a court of appeals shall determine that an appeal 
is frivolous, it may award just damages and single or 
double costs to the appellee.

This case also involves Section I of the Fourteenth 
Amendment to the Constitution of the United States.

Statement

A. Walker v. County School Board of 
Brunswick County, Virginia

This school desegregation case was filed on March 17, 
1965 as a class action on behalf of the Negro students in 
Brunswick County, Virginia. Until that time, the County 
School Board had simply ignored the Brown decision1 2 and 
the Court’s direction in Brown IP  that the transition to a 
non-raeial system be effected with all deliberate speed.

After the filing of this suit and until the current school 
year, the School Board operated a “freedom of choice” 
desegregation plan. In the school year 1968-69, the School 
Board maintained 9 schools (infra, p. 4a). Of this number, 
2 were all-white and 5 were all-black. Only about 100 of the 
2,900 Negro students attended formerly white schools; thus, 
more than 96.5% of the Negro students were in all-black 
schools. No white student chose to attend a formerly all- 
black school. Also, as the district, court found, “ faculty 
desegregation is practically nil” (infra, id. 5a).

1 Brown v. Board of Education, 347 U.S. 483 (1954).
2 Brown v. Board of Education, 349 U.S. 294 (1955).



4

The district court found that the freedom of choice plan 
was not adequate to bring about the conversion to a unitary- 
school system. The court said that “it might well be twenty 
to thirty years under the existing plan before the result 
required by the law would come about” (infra, p. 6a).

The School Board’s sole contention in the district court 
was that any plan which actually dismantled the racially 
dual school system would result in a flight of white students 
from the school system. The district court, however, found 
that “I don’t believe it is going to happen” (infra, p. 5a), 
and held that, in any event, this possibility was ruled out 
as a defense by this Court’s decision in Monroe v. Board of 
Commissioners of the City of Jackson, Tennessee, 391 U.S. 
450, 459 (1968).

At the conclusion of the hearing held on November 8, 
1968, the court directed the School Board to file a plan other 
than freedom of choice. On December 6, 1968, the School 
Board filed a report showing that by pairing schools in the 
County, a unitary school system would result. But the 
Board refused to submit such a plan on the ground that it 
could agree only to freedom of choice. On December 9, 
1968, the district court ordered the School Board to develop 
a plan other than freedom of choice to disestablish the dual 
system (infra, p. 8a). The School Board appealed to the 
Fourth Circuit from this order.

On appeal, again the School Board’s sole contention was 
that only freedom of choice would work and that any plan 
which actually integrated the schools would result in the 
flight of white students from the school system. Petitioners 
moved in the Court of Appeals for summary affirmance and 
for an award of counsel fees and double costs pursuant to



5

Fed. E. App. P. Rule 38.3 The appeal was argued on June 
9, 1969. On July 11, 1969, the Court of Appeals affirmed 
the judgment of the district court, holding that this Court’s 
decision in Monroe, supra, foreclosed the School Board’s 
sole contention {infra, p. 3a). However, the Court of Ap­
peals denied petitioners’ motion for double costs and coun­
sel fees, without giving any reasons, citing its earlier deci­
sion in Felder v. Harnett County Board of Education, 409 
F.2d 1070 (4th Cir. 1969). The Felder case held that fees on 
appeal were not available in school cases unless the board 
had engaged in an “extreme” pattern of evasion or its 
appeal had been mooted by compliance. 409 F.2d at 1075.

B. Hawthorne v. County School Board of 
Lunenburg County, Virginia

This case was filed on August 28, 1968. As in the Walker 
case, the School Board was then maintaining a substantially 
segregated system. In 1965-66, the Board began operating 
a “ freedom of choice” plan. Three years later, the Board 
was still maintaining 3 all-black schools and only 140 of 
the 1,567 Negro students in the system were attending for­
merly all-white schools (thus, more than 91% were in the 
all-black schools) {infra, pp. lla-12a). Not a single white 
student chose to attend a school formerly reserved for black 
students. The district court also found that the Board 
operated a segregated bus system and assigned teachers in 
a racially discriminatory manner.

As in Walker, the district court ruled out freedom of 
choice, stating that there was not a “ scintilla of evidence” 
to indicate that the free choice plan would disestablish the

3 Petitioners are represented by private counsel in Richmond, 
Virginia, associated with salaried attorneys of the NAACP Legal 
Defense and Educational Fund, Inc., a non-profit civil rights 
organization dedicated to the vindication by legal means of the 
rights of our Nation’s black citizens.



6

dual system in the reasonably near future (infra, p. 14a). 
The court overruled the “white flight” defense on the au­
thority of Monroe, supra, and directed the School Board 
to file a new plan within 30 days. The Board filed a plan 
on January 29, 1969, two days after it filed notice of appeal.

On appeal, again the Board’s sole contention was that 
only freedom of choice would work and that any plan 
which actually dismantled the dual system would result in 
the flight of white students. As in Walker, petitioners 
moved for summary affirmance and for counsel fees and 
double costs. The appeal was argued and decided with 
Walker. The Court of Appeals affirmed on the authority 
of Monroe but denied the motion for fees and double costs, 
without giving any reasons, citing its decision in Felder, 
supra.



7

REASONS FOR GRANTING THE WRIT

I.

Introduction: Importance of the Issue

This Court’s recent decision in Alexander v. Holmes 
County Board of Education, No. 632 (October 29, 1969), 
demonstrates that ’procedure is crucial to the actual reali­
zation of the rights of Negro school children to an inte­
grated education. Alexander establishes that judicial and 
administrative delay can no longer be used to put off the 
time for converting to unitary school systems. Even though 
such delay is thus ruled out, there remains the certainty 
that some school boards will continue to litigate whether 
their desegregation plans constitute substantive compliance 
with Brown. That is, they will continue to burden the al­
ready overloaded federal courts with litigation seeking ap­
proval of weak and inadequate plans for achieving “unitary” 
systems. School boards will continue to appeal from decrees 
which reject such plans. The instant cases are typical.

Yet the Federal Rules of Appellate Procedure do con­
template a procedure to deter those who by litigation seek 
to defeat rights which have been clearly defined. Rule 38 
provides for the award of counsel fees and double costs in 
frivolous appeals. Petitioners submit that such awards 
are an essential element of procedure in enforcing the 
constitutional right to an integrated education. Petitioners’ 
interest is in assuring effective and expeditious desegrega­
tion of the public schools, and they believe that counsel fee 
awards should be made in furtherance of this purpose.

This Court has never dealt with the standards for grant­
ing counsel fees on appeal under Fed. R. App. P. Rule 38. 
Nor has the Court dealt in particular with the question 
whether counsel fees on appeal should be granted in school



8

desegregation cases where school boards elect to litigate 
rather than integrate. Although the Court has repeatedly 
been called upon to consider the substantive meaning of 
Brown, it has never considered the effect of counsel fee 
awards as a means of enforcing Brown. Consequently, the 
Courts of Appeals have been left to fashion their own 
standards, and the result is that counsel fees are almost 
never awarded and school boards continue to use litigation 
to put off compliance with their plainest obligations.

We submit that counsel fees and double costs should have 
been awarded by the Fourth Circuit in these cases. We fur­
ther submit that the standards applied by the court below 
are wholly inappropriate for school desegregation cases at 
this stage of the desegregation process. Fees and costs 
should be awarded as a matter of course where a school 
board appeals an integration order, unless the board in good 
faith raises a truly novel issue on appeal.

II.
Fees and Costs Should Have Been Awarded in These 

Cases Under Rule 38.

In these cases, the school boards’ only defense in the 
district court was that white students would likely flee a 
unitary school system. This contention had been foreclosed 
by this Court, however, in Monroe v. Board of Commis­
sioners, 391 U.S. 450, 459 (1968):

“We are frankly told in the Brief that without the trans­
fer option it is apprehended that white students will 
flee the school system altogether. ‘But it should go 
without saying that the vitality of these constitutional 
principles cannot be allowed to yield simply because of 
disagreement with them.’ Brown II, at 300.”



9

Indeed, the white resistance argument has been rejected 
over and over by the courts:

“ . . . the courts and the school boards, in carrying out 
their constitutional duties of desegregating the public 
school systems that are based on race, cannot yield in 
the exercise of that duty because of the possibility that 
white students will flee the public school system or that 
the public will discontinue its financial support of its 
public school system. See Cooper v. Aaron, 358 U.S. 1, 
Griffin v. School Board, 211 U.S. 218, Wallace v. United 
States, 389 U.S. 215.” Lee v. Macon County Board of 
Education, No. 604-E (M.D. Ala. August 28, 1968).

In other words, the school boards’ argument in the trial 
court and on appeal was not only old and tired; it had been 
rightly perceived by the courts not to be an argument in 
favor of “freedom of choice” as a desegregation plan but as 
an impermissible plea for continued segregation.4 In these 
circumstances, one would have supposed these cases to be 
the model “ frivolous” appeal contemplated by Rule 38 of 
the Federal Rules of Appellate Procedure. As the Advisory 
Committee on the Rules has noted, courts of appeals may 
grant counsel fees and double costs on a frivolous appeal 
without any showing that the appeal has resulted in a delay 
in enforcing the appellee’s rights. 43 F.R.D. 61, 155 (1968). 
Yet the court below, without giving any reasons, denied 
petitioners’ prayer for counsel fees on appeal. The court 
relied on its earlier decision in Felder v. Harnett County 
Board of Education, 409 F.2d 1070 (4th Cir. 1969), where 
the court mentioned (409 F.2d at 1075) two situations in 
which counsel fees could be awarded:

4 The appeal of the Brunswick County School Board was espe­
cially frivolous because of the trial court’s finding of fact that the 
board’s “white flight” prediction was not entitled to credence. 
See infra, p. 5a.



10

(1) where the school board has engaged in an “ex­
treme” pattern of evasion and obstruction. Bell v. 
School Board of Powhatan County, Virginia, 321 F.2d 
494 (4th Cir. 1963); and

(2) where the issues on appeal have been mooted by 
compliance. Coppedge v. Franklin County Board of 
Education, 394 F.2d 410 (4th Cir. 1968).

But, we submit, these situations are not appropriate stan­
dards for awarding fees in school cases 15 years after 
Brown. Rather, we believe with Judge Sobeloff, dissenting 
in Felder, that a counsel fee award

“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 re­
sponsible for the deprivation, but it would also provide 
a suitable and necessary incentive to the school authori­
ties to get on with the task of desegregating.” 409 F.2d 
at 1075-6.

In short, these are not ordinary cases involving stubborn 
litigants; these cases are part of a pattern of resistance to 
integration, where the law and facts are perfectly clear but 
the school boards will not voluntarily take even the obvious 
step without litigating each point that might somehow be 
productive of further delay. See generally, United States 
Civil Rights Commission, Federal Enforcement of School 
Desegregation, 12, 28 (September 11, 1969). In these cir­
cumstances, Rule 38 should not be given the restrictive in­
terpretation of the court below. Rather, it should be pre­
sumed that fees on appeal are available to appellee Negro 
schoolchildren unless the school board raises a genuine 
issue. In other words, relitigating the issue of compliance 
with the school board’s affirmative obligation to integrate



11

the schools should be considered prima facie frivolous with­
in the meaning of Eule 38.

III.

Counsel Fees Should Have Been Awarded in the 
Equitable Discretion of the Court of Appeals.®

The federal courts have equitable power to award coun­
sel fees even in the absence of explicit statutory authoriza­
tion. See Vaughn v. Atkinson, 366 U.S. 567 (1962); Newman 
v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, n.4 
(1968). The typical case is where the court labels a litigant’s 
position “vexatious” or in “bad faith” or taken for the pur­
pose of delay.6 Id. We submit that 15 years after Brown 
appeals by school boards resisting their plainest constitu­
tional obligations are per se vexatious, unless a new and 
unusual issue is raised. Negro school children should not 
have to bear the “constant and crushing expense of enforc­
ing their constitutionally accorded rights,” Clark v. Board 
of Education of Little Rock School District, 369 F.2d 661, 
671 (8th Cir. 1966), and the expense of litigating appeals 
from integration orders should be imposed on the party 
causing the expense—the recalcitrant school board. More­
over, where, as here, a class action is brought seeking finally 
to end racially segregated education, the proceeding is pri­

B Counsel for petitioners also represent the petitioners in Wil­
liams v. Kimbrough, from the Court of Appeals for the Fifth 
Circuit, and we are filing a petition for certiorari in that case 
simultaneously herewith. In Williams, the petitioners urge that 
counsel fees should have been granted by the district court, as a 
matter of complete equitable relief.
_ 6 Courts of appeals also have “discretion” under 28 U.S.C. Sec­

tion 1912 to award an appellee “just damages for his delay.” The 
“ damages” may include attorneys’ fees and other expenses in­
curred by the appellee. See Advisory Committee’s Note, 43 F E D  
61, 155 (1968).



12

vate in form only—petitioners act as “private attorneys 
general” in vindicating the rights of the class and further­
ing the public policy of the nation. Cf. Newman v. Piggie 
Park Enterprises, Inc., swpra, at 402. Just as in Piggie 
Park counsel fee awards were seen as essential in enforc­
ing substantive rights under the Civil Rights Act of 1964, 
here such awards have now become crucial in bringing a 
halt to school litigation and a beginning to the integration 
promised by Brown. Thus, counsel fee awards should be 
made so that the “private attorney general” will not be 
penalized for performing the public function of eradicating 
unconstitutional discrimination in the schools.

CONCLUSION

We submit that counsel fee awards can be an effective 
tool in enforcing Brown and in making it plain to recalci­
trant school boards that integration decisions mean what 
they say. We ask that the Court grant certiorari to deter­
mine the standards for granting counsel fees in school cases 
under Rule 38 and in the equitable power of the federal 
courts.

Respectfully submitted,

J ack  G reenberg 
J am es M. N abrit  III 
W illiam  B en n ett  T urner  

10 Columbus Circle 
New York, New York 10019

S. W. T ucker  
H en ry  L. M a r sh , III 

Hill, Tucker & Marsh 
214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Petitioners



APPENDIX



Opinion o f the Court of Appeals for the Fourth Circuit

UNITED STATES COURT OF APPEALS 
F ob th e  F ourth  C ircu it  

No. 13,283

A ngela "Walker , etc., et al., 

versus
Appellees,

C o u n ty  S chool B oard oe B r u n sw ic k  C o u n ty , 
V irgin ia , et al.,

Appellants.

No. 13,284

P h e m ie  D. H aw th o r n e , etc., et al.,
Appellees,

versus

C o u nty  S chool B oard oe L unenburg  Co u n t y , 
V irgin ia , et al.,

Appellants.

Appeals from the United States District Court for the 
Eastern District of Virginia, Richmond Division. 

R obert R. M erh ige , J r ., District Judge.

Argued June 9, 1969 Decided July 11, 1969

Before S obeloee, B oreman  and Craven , Circuit Judges.



2a

Emerson D. Baugh and Frederick T. Gray (Williams, 
Mullen & Christian; and Samuel N. Allen on brief) for 
Appellants and Henry L. Marsh, III (S. W. Tucker; Hill, 
Tucker & Marsh; Jack Greenberg and James M. Nabrit, 
III, on brief) for Appellees.

Opinion of the Court of Appeals for the Fourth Circuit

P er  Cu riam  :

We noted the similarity of the issues presented and 
consolidated these separate appeals for purposes of oral 
argument and disposition.

These cases present the hard practical problem con­
fronting school boards in systems where Negro students 
are in a substantial majority.1 Relatively little integration 
has occurred under the freedom of choice method of opera­
tion of these schools and the plans of operation may fairly 
be described as dual systems. Since Green v. County 
School Board of New Kent County, 391 U.S. 430 (1968), 
reversing 382 F.2d 338 (4th Cir. 1967), freedom of choice 
may not be held an adequate compliance with a school 
board’s duty to devise a non-racial system unless it “prom­
ises realistically to work, and promises realistically to 
work now.”  391 H.S. at 439. It is not seriously urged 
upon us—indeed, it could not be—that freedom of choice 
has worked or is likely to work in the foreseeable future 
in the sense meant by the Supreme Court in Green: the 
disestablishment of former state imposed segregation and 
its replacement with an entirely desegregated system.2 3

1 In Lunenburg County 1567 pupils are Negro and 1385 are 
white; in Brunswieh County 71% of students are Negro and 29%
white.

3 The famous Briggs v. Elliott dictum— adhered to by this court 
for many years—-that the Constitution forbids segregation but



3a

Instead, the school boards urge upon, us that freedom 
of choice will work better than any more drastic method 
because if general racial mixing is forced in a school 
population heavily Negro the white minority will flee the 
school system. It is urged that it is better to have some 
racial mixing in a freedom of choice system than to have 
an all Negro system abandoned by white pupils.

Whatever the appeal of such an argument the Supreme 
Court has foreclosed our consideration of it—at least in 
the context of a theoretical possibility.3 In Monroe v. 
Board of Commissions, 391 U.S. 450, 459, the Court re­
jected the same contention made in the context of defend­
ing 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, at 300.”

Motion of appellees to award double costs and counsel 
fees is denied. See, Felder v. Harnett County Board of
Education, ------ F.2d ------  (4th Cir. No. 12,894, Apr. 22,
1969).

The judgments of the district court will be
A ffirm  ed. * 3

Opinion of the Court of Appeals for the Fourth Circuit

does not require integration, (132 F.Supp. 776 (E.D.S.C. 1955) 
is now dead. Green v. County School Board of New Kent County, 
391 U.S. 430 (1968); Monroe v. Board of Commissioners of the 
City of Jackson, 391 U.S. 450 (1968); cf. United States v. Jeffer­
son County Board of Education, 380 F.2d 385 (5th Cir. 1967) 
(Griffin B. Bell and Gewin, dissenting).

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.



4a

Findings of Fact and Conclusions of Law 
From the Bench

(Walker v. County School Board of Brunswick County)

November 8, 1968 — 10 :00 a.m.

The Court: All right, I would ask the members of the 
School Board to remain so that there is no misunderstand­
ing as to whatever ruling the Court may make.

Suffice it to say, I think I had best dictate into the record 
my findings of fact and conclusions of law, gentlemen.

Plaintiff’s motion for further relief is granted. This 
Court has no doubt whatsoever from the evidence before 
the Court that the mandate, or the requirements of the 
New Kent case have not been met. This Court has no 
doubt but that the freedom of choice plan now in existence 
and heretofore approved by this Court has failed to ac­
complish that which everybody, I am satisfied, was hopeful 
it would accomplish at the time it was put into effect, and 
therefore as of the end of the school year, is no longer 
acceptable to the Court.

The Court finds from the evidence before the Court and 
the interrogatories, that Brunswick County consists of the 
following schools: Elementary schools—Alberta, with a 
capacity of 240 to 256 students, presently has 202 white 
students and no Negro; Red Oak Elementary School, with 
a capacity of approximately 480 students, now has an 
enrollment of approximately 410, all Negro students; 
Lawrenceville Primary School, or Elementary School, 
which has a capacity of approximately 500 students, now 
has an enrollment of approximately 359, of whom 335 are 
White and 24 are Negro; Sturgeon, with a capacity of ap­
proximately 480, has 402 presently enrolled, all Negro; 
South Brunswick with a capacity of 250 to 275 students, 
presently has an enrollment of 186, all white; Meherrin- 
Powellton, with a capacity of approximately 660 students, 
has an enrollment of approximately 498, all Negro; and



oa

Totoro, with a capacity of approximately 480 students, 
presently has an enrollment of approximately 470, all 
Negro.

There are two high schools. One is Brunswick, with a 
capacity of 600 students, the present enrollment consisting 
of approximately 493 white students and 75 Negro stu­
dents; and the J. S. Russell High School, with a capacity 
of 1100 to 1150 students; presently has an enrollment of 
approximately 1039, all Negro students. Not one white 
student has asked for assignment to a school predominantly 
Negro, and approximately 100 out of 2900 Negro students 
are now attending white schools.

The Court finds that there has been no direct order by the 
Board of the School Board to the Superintendent to bring 
in a plan which would result in a dismantling of the school 
systems to the end that racial identity would be done away 
with, but on the contra the Court finds from the School 
Board and responsible citizens of the county, that the 
Board came to the conclusion that any plan other than the 
plan that is now in effect would result in a fleeing from the 
school system of the white students. That is the evidence 
before the Court.

The Court is satisfied that the people who have testified 
are sincere in that belief, but I don’t believe it is going to 
happen and must say that under the law, the law cannot 
yield simply because of the fact that they might do that. 
See Brenda K. Monroe, et al v. Board of Commissioners for 
the City of Jackson, Tenn., et al, decided by the United 
States Supreme Court on May 27, 1968.

Faculty desegregation is practically nil.
There is a burden on the School Board to establish that 

additional time is necessary to insure compliance at the 
earliest practicable date of the requirements of the Green

(Walker v. County School Board of Brunswick County)
Findings of Fact and Conclusions of Law From the Bench

case.



6a

The Court finds from the evidence here that unless 
this Court orders a plan, it might well be twenty to thirty 
years under the existing plan before the result required by 
the law would come about.

It is interesting to note, and the Court wishes the record 
to show, that of all of the witnesses who testified here 
today, all were members of the Caucasian race, though 
the evidence before the Court is that there are members of 
the Negro race in the community who are considered to be 
what has been described in the pleadings as members of the 
power structure, but not one has come here today to affirm 
the evidence that has been introduced by the oral testimony.

There is a burden on the School Board to take whatever 
steps are necessary to convert to a unitary system, and this 
they have failed to do.

Any plan under the law must promise meaningful and 
immediate progress toward desegregation. See Green v. 
New Kent County, etc.

The Court finds nothing to indicate that the one plan 
which has been offered, which is a continuation of the 
freedom of choice, would promise meaningful and im­
mediate progress as required. In the Court’s opinion, the 
contra is true; that plan makes it unlikely that any progress 
would ever occur.

No gentlemen, I have no doubt there is a burden on this 
Board to fashion steps which promise realistically to con­
vert to a system without a white school and without a Negro 
school, but just schools. I am not unconscious of the emo­
tional problems which you gentlemen have described, and 
I hope you don’t think that I am. I feel sorry that folks 
have those emotional problems, and I don’t say it face­
tiously but I will offer my prayers for them because it 
must be difficult for them. But if I were to sit here and not 
take an affirmative step, I could never live with myself for

(Walker v. County School Board of Brunswick County)
Findings of Fact and Conclusions of Law From the Bench



7a

the harm that would be done to the children of Brunswick 
County. If I don’t do what I am about to do, then I have 
hurt the children of Brunswick County because it would be 
just one generation after another with this same problem. 
As one witness said, it may be forever.

Now, that is too late.
All right. Is there any misunderstanding that the free­

dom of choice as heretofore approved by this Court is 
wiped out? I don’t want any doubt about it. It is gone, 
so far as this Court is concerned, as of the end of this 
school year.

I am satisfied that there are sufficiently mature Amer­
icans of greater capacity for educational benefits than I, 
who reside in Brunswick County; and I include the mem­
bers of the School Board, the faculties, and the Superin­
tendent of Schools. Hence, I am going to direct or grant 
leave to the defendants to file with this Court a plan which 
will accomplish that which has to be accomplished, and we 
all know what it is. In the event that such a plan is not 
forthcoming, and I would ask counsel to notify me imme­
diately if there is any doubt that it is going to be forth­
coming, then I shall have to draft one myself, which I don’t 
want to do. I will need everyone’s help if I do it, but it is 
going to be done.

I will direct that it be forthcoming within one month, 
and within three days after it is filed the plaintiffs are to 
file any exceptions, and within two days after that, unless 
the two days fall on a Sunday, this Court will enter an ap­
propriate order; and if you all wish to be here again you 
can be here at eight o’clock that morning, whatever day it is, 
and that includes Saturdays, and I will enter the order 
on that day.

/ s /  R obert R . M erh ige , J r .
United States District Judge

(Walker v. County School Board of Brunswick County)
Findings of Fact and Conclusions of Law From the Bench



8a

Order

(Walker v. County School Board of Brunswick County) 

December 9, 1968

Whereas, under date of October 23, 1968, the defendants 
were directed to file with the Court by November 4, 1968 a 
detailed plan for total desegregation of the student body 
and faculty of each school referred to in defendant’s An­
swers to Interrogatories filed in this cause, and the defen­
dants having failed to so do, the Court did after an ore 
tenus hearing on November 8, 1968, dictate its Findings 
of Fact and Conclusions of Law From the Bench, and did 
grant leave to the defendants to file a plan which would best 
result in the public school system of Brunswick County, 
Virgina, being in compliance with the decision of the 
Supreme Court of the United States in Green v. County 
School Board of Neiv Kent County;

And, it appearing to the Court that the defendants have 
not seen fit to file any such plan, but have instead on De­
cember 6, 1968 filed what is styled a Report; and the Court 
deeming it proper so to do for the reasons assigned from 
the bench at the conclusion of the hearing on November 8, 
1968, doth A djudge , Order and D ecree :

1. That the defendants herein, their successors, agents 
and employees, be, and they are hereby mandatorily en­
joined, permanently, to dis-establish the existing dual sys­
tem of racially identifiable public schools being operated 
in Brunswick County, Virginia, and to replace that system 
of schools with a unitary system, the components of which 
are not identifiable as either “White” or “Negro” schools.

2. The defendants are further directed to cause by Sep­
tember 1, 1969, the assignment of the faculties of the



9a

(Walker v. County School Board of Brunswick County)
Order

schools of Brunswick County, Virginia, in such a manner 
as to dissolve the historical pattern of segregated faculties.

3. The defendants are further enjoined to file with this 
Court a detailed plan leading to the implementation of 
pairing of classes in all schools in Brunswick County, Vir­
ginia, to be effective as of the school term commencing in 
September 1969, as suggested in the report attached to 
defendants’ pleading of December 6, 1968.

4. The defendants are further ordered to report to the 
Court by no later than May 15, 1969, the anticipated en­
rollment of each school in Brunswick County, Virginia, as 
well as the racial composition of the student body of each 
school and the racial composition of the faculties of same.

Let the Clerk send copies of this order to all counsel of 
record.

It is further ordered that copies of this order be served 
by the United States Marshal on each of the defendants 
herein.

/ s /  R obert R . M ebhige , J r .
United States District Judge.

December 9, 1968.



10a

Order
(Hawthorne v. County School Board of Lunenburg County)

Pursuant to the Court’s announced Findings of Fact 
and Conclusions of Law made from the bench at the hear­
ing on this matter, and deeming it proper so to do, it is 
A djudged , Ordered and D ecreed :

1. That the defendants herein, their successors, agents 
and employees he, and they hereby are, mandatorily en­
joined, permanently, to disestablish the existing dual sys­
tem of racially identifiable public schools being operated in 
the County of Lunenburg, and to replace that system of 
schools with a unitary system the components of which are 
not identifiable with either “white” or “Negro” schools, all 
as of the commencement of the school year 1969-70.

2. The defendants are further directed to file with this 
Court within thirty days from this date a plan of deseg­
regation based on the pairings of grades in the school 
system of Lunenburg County, to the end that a unitary 
system be established and put into effect with the com­
mencement of the school year 1969-70.

3. The defendants are further directed, commencing 
with the school term September 1969-70, to cause the as­
signment of the faculties of the schools in Lunenburg 
County in such a manner as to dissolve the historical 
pattern of segregated faculties and to cause the faculties 
of each of the schools to be composed of at least 25% of a 
race different from that of a majority of the students in 
each respective school.

Let the Clerk send copies of this order to all counsel of 
record.

Nunc pro tunc December 30, 1968.
*  #  *



11a

Findings of Fact and Conclusions of Law 
as Stated From the Bench

(Hawthorne v. County School Board of Lunenburg County)

F I L E D  
FEB 19 1969

CLERK, U. S. DISX. COURT 

RICHM OND, VA.

Before: H onorable R obert R. Meehige, J r .
United States District Judge

T h e  C o u r t : Gentlemen, the Court will attempt to give 
its find ings of fact and conclusions of law.

This suit is brought by three infants by their father and 
next friend, against the County School Board of Lunen­
burg County, Virginia, the Superintendent of Schools, and 
the members of the Board. Jurisdiction of this Court is 
attained under the 14th Amendment to the Constitution, 
and the Court has jurisdiction under Title 42, § 1981.

The Court treats this as a class action and rules that the 
plaintiffs have an absolute right to maintain it. Plaintiffs 
are Negro citizens of the Commonwealth of Virginia. Much 
of the allegations is admitted in the Answer.

It is admitted by the defendants that prior to 1954, the 
School Board established and operated a bi-racial school 
system as was required by the laws of Virginia at that 
time. The Court finds as a fact that Lunenburg County 
School Board operates a total of seven schools, two of 
which are high schools with grades 8 through 12, one of 
which has grades 1 through 6, and the others grades 1 
through 7.

In the seven schools, the Court finds that there are 1,385 
White students and 1,567 Negro students. One of the 
schools, Central High School, with a capacity of 600 stu-



12a

dents, jjresently has slightly over that attending, of whom 
573 are White and 66 are Negro; with 33 White teachers 
and 2 Negro teachers, who do not in fact teach academic 
courses but are used either in the physical education de­
partment or in an elective course. In Lunenburg High 
School, which is an all-Negro school, there are no White 
teachers at all. In Kenbridge Elementary there are 308 
White and 41 Negro pupils; and there are 16 plus White 
teachers and 2 part-time Negro members of the faculty, 
one of whom is associated with the band. In any event, 
there are two part-time teachers.

The Court finds there are no Negro teachers whatsoever 
as regular classroom teachers in White schools. Nor are 
there any White teachers as regular classroom teachers in 
Negro schools.

The Court finds that there is no residential racial zoning 
in the county; that members of both races live throughout 
the entire county. The Court finds from the evidence be­
fore it that a plan of zoning would not be feasible.

Each of the high schools teach generally the same sub­
jects, one difference being that in Lunenburg High School 
there is taught brick masonry, general music and business 
law, which are not taught in the other school. In the Cen­
tral High School there is taught Spanish Distributive Edu­
cation and vocational drafting, which as the Court under­
stands the evidence, are not taught in Lunenburg High 
School. However, generally, the courses are the same.

The Court finds that the athletic programs are similar. 
There is no baseball at Lunenburg High School because 
of an apparent lack of enthusiasm on the part of the stu­
dent body, and not because of any action of the defendants.

(Hawthorne v. County School Board of Lunenburg County)
Findings of Fact and Conclusions of Law

as Stated From the Bench



13a

The Court finds that there is no athletic competition be­
tween the high schools.

The Court finds that the school operates a segregated 
bus system. There are 41 busses that operate throughout 
the county and pick up the children by schools arid not by 
routes. For all practical purposes, there is a segregated 
bus system operated in the County.

The Court finds that the defendants chose the freedom 
of choice system in 1965-66, and in the first year 66 Negro 
students chose to go to formerly all-White schools. The 
number has now, going on four years later, increased to 
140. Not the first White child has chosen to go to a for­
merly all-Negro school. The Court finds there is no real 
freedom of choice plan in Lunenburg County—there is 
s im p ly  a right to choose the school one wants to go to, 
but no provision is made in the event an excess number of 
children of a particular race choose a school of a different 
race. No provision whatsoever has been made in that re­
gard.

It has been suggested that if the freedom of choice plan 
is not approved by this Court, and any other plan is or­
dered by the Court, that there will be a mass exodus by 
the White students by virtue of their parents’ transferring 
them. That argument is not a viable argument and was 
answered in the Monroe case wherein Justice Brennan 
stated that it goes without saying that vitality of the 
Constitutional principles cannot be allowed to yield simply 
because of disagreement with them.

The Court finds that there has been no effort by the 
defendant school board to do away with the dual school 
system which is now operated in Lunenburg County.

(Hawthorne v. County School Board of Lunenburg County)
Findings of Fact and Conclusions of Law

as Stated From the Bench



14a

The Court finds that the school superintendent has a 
right to assign teachers, under their contract, to any school 
he sees fit, but he has not exercised that right, stating that 
it is done only under extraordinary circumstances.

The Court finds there are no attendance zones for the 
schools; each school serves the entire county.

The Court finds that the teachers are, in fact, assigned 
in a racially discriminatory manner, which is a violation of 
the mandate of the United States Supreme Court and can­
not stand.

The burden is on the School Board to establish that 
additional time is necessary in order to fully effectuate the 
requirements of law and the rights of these plaintiffs and 
all others in the county, and the Board has not sustained 
that burden. There is not a scintilla of evidence before the 
Court which the Court accepts as being factual which would 
indicate that a freedom of choice would at any time within 
the reasonably near future result in the abolition of the 
dual system of schools. The fact that the School Board 
opened the White schools to Negro children under their 
freedom of choice was merely the beginning. It is merely 
the first inquiry as to whether it will lead to the end of a 
dual segregated system as required in the Green v. New 
Kent case.

The Court finds no meaningful assurance of prompt or 
effective disestablishment of the dual system, and that 
there are no real prospects as it now exists. The Court 
further finds that the best plan, in order to establish that 
which is required, would require that the Court manda- 
torily enjoin the defendants, and they are as of this day 
enjoined from the operation of their school system under

(Hawthorne v. County School Board of Lunenburg County)
Findings of Fact and Conclusions of Law

as Stated From the Bench



15a

their present freedom of choice, effective with the Septem­
ber term 1969.

In addition to the Court accepting the defendants’ tes­
timony that the only other educational alternative is a 
pairing, the Court directs that the defendants file with the 
Court within thirty days from this date a plan of pairing 
of classes, to the end that there is an abolition of White 
and Negro schools, and that we attain only schools, neither 
White nor Negro.

In addition, the Court requires that the defendants file a 
plan concerning the assignment of faculty, which will result 
in an assignment in such a manner that at least twenty-five 
percent of the faculty are assigned to schools formerly 
composed of a majority of the opposite race. These things 
are not easy for the people to accept, and I understand 
that. I am not unsympathetic with their plight, but this 
condition was brought about by virtue of the State impos­
ing segregation, and it does no good to do it piecemeal 
because in this instance the Court finds it wouldn’t work, 
it simply would never come about. The only way it is going 
to come about is to do it promptly and meaningfully. I do 
not wish to be the Superintendent of Schools of Lunenburg 
County, but the United States Supreme Court has issued 
a mandate, gentlemen, and we are going to abide by it. 
If we have to, we have to.

I thank you all for your help.

(Hawthorne v. County School Board of Lunenburg County)
Findings of Fact and Conclusions of Law

as Stated From the Bench,



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