Walker v. Brunswick County School Board, Virginia Petition for Writ of Certiorari
Public Court Documents
December 9, 1968

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Brief Collection, LDF Court Filings. Walker v. Brunswick County School Board, Virginia Petition for Writ of Certiorari, 1968. 182fe72e-c89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/39e65640-fb9c-443c-b22f-6ae0a6e01254/walker-v-brunswick-county-school-board-virginia-petition-for-writ-of-certiorari. Accessed June 13, 2025.
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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, ME1LEN PRESS INC. — N. Y, C. -'tjv..- 219