Legal Defense Fund Asks Federal Court to Order Admission of Montgomery Negro to Alabama University Graduate School

    In the
Itttfrii #tate (Emirt nf Appeals

F or the F ourth Circuit 
No. 14,544

Carlotta Mozelle B rewer and Demetria Y vonne B rewer, 
infants by Oner B rewer, their father and next friend, et al.,

vs.
Appellants,

T he School B oard oe the City op Norfolk, V irginia, et al.,
Appellees.

[Together with No. 14,545, United States of America, 
Appellant vs. The School Board of the City of Norfolk, 
Virginia, et al., Appellees]

a p pe a ls  pr o m  t h e  u n it e d  states  d ist r ic t  co urt
POR THE EASTERN DISTRICT OP VIRGINIA

BRIEF FOR APPELLANTS

Henry L. Marsh, III
S. W . T ucker

216 East Clay Street 
Richmond, Virginia 23219

V ictor J. A she
1134 Church Street 
Norfolk, Virginia 23510

J. H ugo Madison
1017 Church Street 
Norfolk, Virginia 23510

L ouis R. Lucas, E sq.
525 Commerce Title Building 
Memphis, Tennessee 38103

J ack Greenberg
James M. Nabrit, III
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



TABLE OF CONTENTS

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

Issues Presented for Review. . . .  ...................  1

Statement. ................................................2

The Norfolk School System in 1970 ................ 6

Residential Racial Discrimination ............... 9

The Board's Plan.................................... 18
The Alternative Plan .   . 2 6

ARGUMENT . . . . .    36

Introduction..........     37

I Norfolk's Plan To Assign Black Students 
To All-Black Schools On The Basis Of 
Their Race, Which The District Court 
Approved, Violates The Constitution Of 
The united States And Cannot Be justified
On Grounds Of Educational policy . . . . . .  39

II This Court Should permit No Further Delay 
In Eliminating Norfolk's Dual School System 
But Should Order The Implementation Of The 
Alternative plan In This Record Which Will 
Make All Of Norfolk's Schools Unitary Schools 55

Conclusion . . . . .  ................................... 59

Page

l



TABLE OF AUTHORITIES
Page

Cases

Alexander v. Holmes County Bd. of Educ., 396 U.S.
19 (1969) .......................................

Andrews v. City of Monroe, No. 29358 (5th Cir.,
April 2 3, ~ 1970) .................................

Beckett v. School Bd. of City of Norfolk, 148 F.
Supp. 430 (E.D. Va.), aff'd sub nom. School 
Bd. of City of Newport News v. Adkins, 246 
F .2d 325 (4th Cir.), cert, denied, 355 U.S. 855 
(1957)................. .........................

" v. " , 2  Race Rel. L. Rep. 336 (E.D. Va.),
aff'd sub nom. School Bd. of City of Newport 
News v. Adkins, 246 F.2d 325 (4th Cir.), cert, 
denied, 355 U.S. 855 (1957) ...................

" v.
" V.

" V.
Va.) , a i

" v . " , 181 F. Supp. 870 (E.D. Va. 1959),
aff'd sub nom. Hill v. School Bd. of City of 
Norfolk, 282 F.2d 473 (4th Cir. 1960) .........

" v. " , 185 F. Supp. 459 (E.D. Va. 1959),
aff'd 281 F .2d 131 (4th Cir. 1960). . . . . . .

" v. " , 9  Race Rel. L. Rep. 1315 (E.D. Va.
1964), vacated and remanded sub nom. Brewer v. 
School Bd. of City of Norfolk, 349 F.2d 414 
(4th Cir. 1965) ................................

" v. " , 11 Race Rel. L. Rep. 1278 (E.D.
Va. 1 9 6 6 ) .................................... .

" v. " , 269 F. Supp. 118 (E.D. Va. 1967),
rev'd sub nom. Brewer v. School Bd. of City of 
Norfolk, 397 F.2d 37 (4th Cir. 1968)........ •

" v . " , 302 F. Supp. 18 (E.D. Va. 1969) .

Bell v. Maryland, 378 U.S. 226 (1964).............

20, 37, 44, 55

50

, 2 Race Rel. L. Rep. 945 (1958) . .

, 2 Race Re 1 <» L. Rep. 955 (1958) . .

, 3 Race Rel. L. Rep. 1155 (E.D.
d 260 F. 2d 18 (4th Cir . 1958) . . .

4

4

4

4

6
6 , 48 

47

xi



page

Brewer v. School Bd. of City of Norfolk, 397 F.2d
37 (4th Cir. 1968).............................. .. 6 , 49

Brooks v. County School Bd. of Arlington County,
324 • F . 2d 303 (4th Cir. 1963). ....................  50-51

Brown v. Board of Educ., 347 U.S. 483 (1954) ........  2, 36, 37, 38,
53, 54

Buchanan v. Warley, 245 U.S. 60 (1917) . ............. 46
Cato v. Parham, 297 F. Supp. 403 (E.D. Ark. 1969). . . 50

Cooper v. Aaron, 358 U.S. 1 (1958) . . . . .  ......... 39

Coppedge v. Franklin County Bd. of Educ., 404 F . 2d
1177 (4th Cir. 1968). ............................. 39

Davis v. School Dist. of City of Pontiac, Civ. No.
32392 (E.D. Mich., February 17, 1 9 7 0 ) ........... 49

Dove v. Parham, 282 F.2d 256 (8th Cir. 1960) ......... 50

Dowell v. School Bd. of Oklahoma City, 244 F. Supp.
971 (W.D. Okla. 1965), aff'd 375 F.2d 158 (10th 
Cir.), cert, denied, 389 U.S. 847 (1967)......... 46

Dowell v. School Bd. of Oklahoma City, Civ. No.
9452 (W.D. Okla., Aug. 8 , 1969), aff'd 396
U.S. 296 (1969) ................................... 50

Evans v. Abney, 396 U.S. 435 (1970) . . . . . . . . . .  17

Gaston County v. United States, 395 U.S. 285 (1969). . 43

Goins v. County School Bd. of Grayson County, 186 F.
Supp. 753 (W.D. Va. 1960), stay denied, 282 
F . 2d 343 (4th Cir. 1960).......................... 51

Green v. County School Bd. of New Kent County, 391
U.S. 430 (1968)................. ................. 37, 44, 52

Haney v. County Bd, of Educ, of Sevier County, 410
F . 2d 920 (8 th Cir. 1969).......................... 50

Harrison v. Day, 200 Va. 439, 106 S.E.2d 636 (1959). . 5

Cases (continued)

iii



Page

Henry v. Clarksdale Municipal Separate School Dist.,
409 F .2d 682 (5th Cir.), cert, denied, 396
U.S. 940 (1969) . .................................  46, 50

Holland v. Board of Public' Instruction of Palm Beach
County, 258 F.2d 730 (5th Cir. 1958).............  46

James v. Almond, 170 F. Supp. 331 (E.D. Va. 1959). . . 5

James v. Duckworth, 170 F. Supp. 342 (E.D. Va.), 
aff'd 267 F.2d 224 (4th Cir.), cert, denied,
361 U.S. 835 (1959)............................ . 5

Kemp v. Beasley, No. 19782 (8th Cir., March 17, 1970). 45

Keyes v. School Dist. No. 1, Denver, 303 F. Supp.
279 (D. Colo.), stay vacated, 396 U.S. 1215
(1969)(Mr. Justice Brennan, in Chambers)........  50

Monroe v. Board of Comm'rs of Jackson, 391 U.S.
450 (1968).........................................  37, 39

Nesbit v. Statesville city Bd. of Educ., No. 13,229
(4th Cir., Dec. 2, 1 969)......................... 23, 44, 55, 56

Ross v. Dyer, 312 F.2d 191 (5th Cir. 1 9 6 2 ) ........... 51

School Bd. of Warren County v. Kilby, 259 F.2d
497 (4th Cir. 1 9 5 8 ) ..............................  51

Shelley v. Kraemer, 334 U.S. 1 (1948).................  46, 48

Spangler v. Pasadena City Bd. of Educ., Civ. No.
68-1438-R (C.D. Cal., March 12, 1970) ........... 50

Stanley v. Darlington County School Dist., No.
13,904 (4th Cir., Jan. 16, 1970).................  44, 55

Swann v. Charlotte-Mecklenburg Bd. of Educ., 300
F. Supp. 1358 (W.D.N.C. 1 9 6 9 ) ................... 4 9 , 5 0 , 51

v - " / Civ..No. 1974 (W.D.N.C., Dec. 1, 1969)44
United States v. Board of Educ. of Baldwin County,

No. 28880 (5th Cir., March 9, 1 9 7 0 ) .............  56

United States v. Greenwood Municipal seprate School
Dist., 406 F.2d 1086 (5th Cir. 1969)............. 45, 50

Cases (continued)

IV



Page

United States v. Guest, 383 U.S. 745 (1966)........... 49

United States v. Indianola Municipal Separate School 
Dist., 410 F.2d 626 (5th Cir.), cert, denied,
396 U.S. 1011 (1969). . ............................ 44, 50

United States v. School Dist. No. 151, 286 F. Supp.
786 (N.D. 111.), aff'd 404 F.2d 1125 (7th Cir.
1 9 6 8 ) .............................................  49

Valley v. Rapides Parish School Bd., No. 29237 (5th
Cir., March 6 , 1970). ...................... .. 50

Walker v. County School Bd. of Brunswick County, 413
F.2d 53 (4th Cir. 1969) (per curiam)............. 39

Other Authorities

Abrams, Forbidden Neighbors (1955) . . . . .  ......... 48

Pettigrew, Thomas F., De Facto Segregation, Southern
Style, integrated Education, June-July, 1967. . . 13

Racial isolation in the Public Schools, A Report
of the U.S. Commission on Civil Rights (1967) . . 47, 48

Weaver, The Negro Ghetto (1948)........................ 48

Weinberg, Race and Place -- A Legal History of the
Neighborhood School (U.S. Gov't Printing Office,
Catalog No. FS 5.238:38005, 1967) ...............  51

Cases (continued)

v



IN THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

NO. 14,544

CARLOTTA MOZELLE BREWER and DEMETRIA YVONNE 
BREWER, infants by ONER BREWER, their 
father and next friend, et al.,

Appellants,

vs.

THE SCHOOL BOARD OF THE CITY OF NORFOLK, 
VIRGINIA, et al.,

Appellees.

[Together with No. 14,545, United States of America, Appellant 
vs. The School Board of the City of Norfolk, Virginia, et al., 
Appellees]

Appeals from the United States District Court for the 
Eastern District of Virginia

BRIEF FOR APPELLANTS 
Issues Presented for Review

1. Whether Norfolk may avoid its immediate affirmative duty 

to eliminate root and branch its state —imposed dual school system 

by adopting or applying any policy, educational theory or device 

which has the effect of perpetuating racially identifiable schools.

2. Whether this Court should order implementation of the 

alternative presented by appellant's expert witness which all 

parties agreed was the best plan to totally desegregate the school

system.



Statement

The Norfolk school system has affirmatively acted to segregate

77% of its black elementary schoolchildren in all-black schools, in

the context of what purports to be a "desegregation plan." Stripped

of rubric, artifice and rationalization, the plan adopts white

hostility to integration as a predicate and justification to limit.

to a "tolerable" number the attendance of black children at white
1/, 2/

schools (28 Tr. 39-40; Principle X, DX 1, 10/69).
In this fourteen-year-old litigation to desegregate the Norfolk, 

Virginia public schools, this court has repeatedly been required to 

direct further action by the district court. Nearly every conceivable 

tactic to delay, frustrate or avoid the mandate of Brown v. Board of 

Educ,, 347 U.S. 483 (1954) has been raised by the defendants.

1/ Under this plan, 32 of Norfolk's 67 public schools will
enroll only students of one race. An additional seven schools 
will enroll less than 10% minority students. See Table 1, 
Appendix, infra.

2/ The following abbreviations will be used in citations in
this Brief: plaintiffs,' United States', and School Board's
exhibits (see Certificate of the Clerk on the Exhibits) will 
be identified as PX, GX and DX, respectively, with the addition 
of the date of the hearing, e.g., GX G-19, 4/69. The 
transcripts of the hearings and the November 11, 1969 deposition 
will be referred to by the volume numbers contained in the 
Clerk's transmittal letter of April 10, 1970, Table of Contents 
pp. 7-8. The proceedings in the spring of 1969 are recorded in 
volumes XII-XX inclusive, and the proceedings in October-November, 
1969 in volumes XXI-XXXI inclusive. Appellants have requested 
that the Clerk mark these transcript volumes with corresponding 
arabic numeral designations to facilitate their citation and 
reference to them by the Court. Pleadings will be referred to 
by date and title as listed in the Table of Contents, Clerk's 
transmittal letter of April 10, 1970.

-2-



initially the school board claimed immunity from suit as an agency 

of the Commonwealth of Virginia, which had not consented; it denied 

any responsibility for pupil assignment during the era of the 

Virginia placement Board; subsequently, it established its own 

pupil placement apparatus with placement criteria similar to those
3/

contained in the voided state law. The Board has consistently 

sought (and again seeks) to divert the courts' attention from the 

lack of adequate results of its desegregation plans by putting in 

issue so-called "principles" or theories which it adopted in each 

instance to explain retention of its segregated system. Thus, 

until 1963 the case was focused upon the validity and application, 

by either the school board or the Virginia Pupil Placement Board, of 

placement principles and standards by which individual applications 

to transfer across racial lines were disposed of. Subsequent hearings 

and appeals have involved the effect of the Norfolk choice within 

zones" method of pupil assignment, faculty desegregation and school

3/ The obscene gauntlet which Negro students seeking to attend white
schools were forced to run included "interviews" conducted by 
the Superintendent at which they were questioned as to their 
"fitness" to attend "white" schools, achievement tests and 
evaluations of their scores in relation to the scores at the 
sending and receiving schools, family background (social class), 
etc. Two examples of such interviews, test scores and 
evaluations which illustrate the process have been included in 
this record. Court Exhibit 12, 13,1959.

3



construction. The detailed history of this case is set out in 
4/

a footnote.

4/ After the complaint was filed in 1956, all action was
deferred pending the holding of a planned special session of 
the Virginia Legislature on the subject of school integration, 
and then again pending the effective date of the "massive 
resistance" legislation passed at the special session.
January 11, 1957, the district court denied the school board's 
motion to dismiss, and on February 12, 1957, the district court 
entered an injunction against the school board restraining it 
from:

refusing, solely on account of 
race or color, to admit to, or 
enroll or educate in, any school 
under their operation, control, 
direction or supervision, directly 
or indirectly, any child otherwise 
qualified for admission to, and 
enrollment and education in such 
school.

Beckett- v. School Bd. of City of Norfolk, 148 F. Supp. 430,
2 Race Rel. L . Rep„ 336 (E.D. Va.), both aff1d sub nom.
School Bd. of City of Newport News v. Adkins, 246 F.2d 325 
(4th Cir.), cert, denied, 355 U.S. 855 (1957). However, all 
proceedings were again stayed pending disposition of appeals 
and petitions for certiorari. It was not until July, 1958 
that the school board adopted pupil placement criteria and 
procedures. The board thereupon denied all 151 applications 
filed by black students to attend previously all-white 
facilities during the 1958-59 school year. 2 Race Rel. L.
Rep. 945 (1958). The district court ordered the board to 
reconsider and on August 29, 1958, the board announced that 
seventeen of the transfer requests would be granted. 2 
Race Rel.. L. Rep. 955 (1958). The board sought an additional 
delay in admitting the seventeen black students, but the 
district court denied it and this court affirmed. Beckett v. 
School Bd. of City of Norfolk, 3 Race Rel. L. Rep. 1155 (E.D. 
Va.), aff1d 260 F.2d 18 (4th Cir. 1958). On plaintiffs' 
cross-appeal from the district court's refusal to order the 
admission of the remaining 134 students, the matter was 
remanded since the district court had indicated he would 
consider separately the validity and application of the 
criteria under which the applications were denied. The schools 
to which the seventeen Negro students were assigned, however, 
were closed pursuant to Virginia's "school closing" laws from

4



4/ (continued)

the fall of 1958 until February, 1959, when the laws 
and similar Norfolk City ordinances were declared 
unconstitutional in James v. Almond, 170 F. Supp. 331 
(E.D. Va. 1959)3-judge court); Harrison v. Day, 200 
Va. 439, 10.6 S.E.2d 636 (1959); James v. Duckworth, 170 
F. Supp. 342 (E.D. Va.), aff'd 267 F.2d 224 (4th Cir.),
cert. denied, 361 U.S. 835 (1959). At that time plaintiffs' 
supplemental 3-judge court complaint was dismissed as moot, 
and late in the 1958-59 school year, the district court 
refused to overturn the board's denial of the 134 transfer 
applications, holding its placement principles facially 
constitutional. Beckett v. School Bd. of City of Norfolk,
181 F. Supp. 870, 870-81 (E.D. Va. 1959)', aff'd sub nom. Hill 
v. School Bd. of City of Norfolk, 282 F.2d 473 (4th Cir.
1960). The district court subsequently permitted the board 
to assign pupils by these principles, although holding that 
the board need not utilize the procedures of the Virginia 
Pupil Placement Board in view of that agency's policy of 
not granting any transfer requests. Beckett v. School Bd. 
of City of Norfolk, 185 F. Supp. 459 (E.D. Va. 1959), aff'd 
281 F.2d 131 (4th Cir. 1960). During 1961 and 1962, the 
district court had occasion to review and overturn school 
board denials of black students' transfer requests (unreported 
opinions) although there was no across-the-board attack on 
assignment procedures. However, when in 1963 the plaintiffs 
filed a motion for further relief, the board discarded pupil 
placement and proposed what has come to be known as the 
"Norfolk choice" plan -- transfer between black and white 
schools located within the same attendance area. This plan 
was approved by the district court and on plaintiffs' appeal 
this Court reversed and remanded for reconsideration in light 
of its then recent decisions in this field. The district 
court was specifically instructed to consider the legality or 
propriety of superimposing a city-wide zone for all-black 
Booker T. Washington High School on all other city high school 
zones. Beckett v. School Bd. of City of Norfolk, 9 Race Rel.
L. Rep. 1315 (E.D. Va. 1964), vacated and remanded sub nom.
Brewer v. School Bd, of City of Norfolk, 349 F.2d 414 (4th Cir. 
1965). Proceedings subsequent to that remand and negotiations 
between the parties resulted in the entry of a consent order 
on March 17, 1966, approving a new desegregation plan. Beckett 
v. School Bd. of City of Norfolk, 11 Race Rel. L. Rep. 1278 (E.D. 
Va. 1966). Under that plan, reluctantly approved by the district 
court, there were multiple-school zones but at the high school 
level, transfers between the three white high schools and Booker 
T. Washington High were permitted only to facilitate integration. 
The following year, completion of Lake Taylor High School 
necessitated the filing of an amended plan by the school board, 
proposing five high school zones, and allowing only Booker T. 
Washington students to transfer to schools outside their zone 
of residence. The district court required that transfer 
privileges be extended to all high school students but rejected

5-



The Norfolk School System in 1970

The School Board of the City of Norfolk presently operates 
5/

seventy-one regular schools within the corporate limits of Norfolk, 

which are coterminus with the school district boundaries. 

Geographically, the furthest extension of the city from north to 

south is approximately 8-3/4 miles (DX 1-C, 10/69). The city is 
bisected from southeast to northwest by Interstate Route 64, a 

limited access highway, and the Chesterfield-Campostella bridge 

areas near the small (black) portion of Norfolk south of the Eastern

4/ (continued)
plaintiffs' attacks upon the zone lines and upon the proposed 
replacement of Booker T. Washington High School on the same 
site. This Court reversed and remanded, directing the district 
court to consider, with respect to both issues, whether 
segregated neighborhood patterns in Norfolk resulted from 
racial discrimination, of which the board was seeking advantage 
in its zone lines. Beckett v. School Bd. of City of Norfolk,
269 F. Supp. 118 (E.D. Va. 1967), rev'd sub nom. Brewer 
v. School Bd. of city of Norfolk, 397 F.2d 37 (4tF~Cir7 
1968). The district court found this Court's decision "vague 
and confusing." 302 F. Supp. at 20. Negotiations between the 
parties following the remand failed to produce agreement. As 
an interim plan for 1969-70 the school board proposed zone line 
changes between Lake Taylor and Booker T. Washington to increase 
integration, and similar changes between Maury and Granby.
After hearings in the Spring of 1969, the district court approved 
the interim plan for 1969-70. Beckett v. School Bd. of city of 
Nor folk, 302 F. Supp. 18 (E.D. Va. 1969) . After extensive 
hearings in the fall of 1969 on the long-range plan of 
desegregation for 1970-71 and thereafter, which is the subject 
of this appeal, the district court approved the school board's 
submission on January 9, 1970.

5/ Excluding the facility serving children with cerebral palsy,
the vocational-technical school, and treating Sewells Point 
Elementary and Sewells Point Annex as a single unit.

6



Branch, Elizabeth River, are linked to the Lake Taylor section 

in the eastern part of the city by another limited access highway, 

Interstate 264. Norfolk abuts the cities of Virginia Beach to the 

east, Chesapeake to the south, Portsmouth to the west (across the 

Southern and Western Branches of the Elizabeth River) and Hampton 

and Newport News to the north (across Hampton Roads and Chesapeake 

Bay) .
6/

The 1969-70 school enrollment was 56,603 -- 57.6% white and 

42.4% black (DX 3,20, GX 3, 10/69). Assignments are based upon 

geographic attendance zones at the high school level and free 

choice within attendance zones in the elementary and junior high 

schools, with the following results in 1969-70:
Grades Students Teachers

HIGH SCHOOLS: Served White Black White Black

Granby 9-12 2022 291 102 9
Norview 1 0 -1 2 2062 394 106 8
Maury 1 0 -1 2 926 1047 1001; 13

Lake Taylor 9-12 2220 220 104 8
7230 1952 412^ 38

Booker T. Washington 1 0 -1 2 7 2268 28 92

Total 7237 4220 440^ 130
(1 1 ,457) (570h)

6/ Regular enrollment exclusive of the school for children
with cerebral palsy and the vocational-technical school.

7



Grades Students Teachers
JUNIOR HIGH SCHOOLS: Served White Black White Black
Azalea Gardens, Lake

Taylor, Northside,
Norview* and Willard 7-9* 6387 558 284 30

Blair 7-9 651 759 64 12

Rosemont* 7-9* 41 409 10 14
Campostella 7-9 1 )Madison* 7-9* 1) 2994 41 124
Ruffner 7-9 1)
jacox 7-9 0 1183 13 61

Total 7082 5903 412 241
(1 2 ,985) (653)

(* Junior high schools marked with an asterisk have sixth grades 
assigned from overcrowded elementary schools).

ELEMENTARY SCHOOLS:
7/

During the 1969-70 school year, 50 of the 55 elementary 

schools remained almost totally segregated, enrolling 90% or 

greater majorities of one race. Seventeen elementary schools were 

all-black (the 1970-71 plan projects an increase to 19 all-black 

schools), and a total of 22 had fewer than 10% white pupils; there 

were 8 all-white elementary schools (there will be 10 in 1970-71) 

and a total of 28 had less than 10% black students. The remaining 

five elementary schools enrolled but 8% of Norfolk's elementary 

students. Thus, 92% of the 32,161 elementary students presently 

attend almost totally segregated schools.

7/ There are 55 elementary schools not counting the cerebral
palsy center and treating Sewells Point Elementary and Annex 
as a single unit.

8



The total elementary school teaching staff was 38% black 

in 1969-70 but the combined faculties assigned to the 22 virtually 

all-black elementary schools were 71% black, and the combined 
faculties assigned to the 28 virtually all-white schools were 

88% white.
Few of the 71 schools had principals or other administra­

tive personnel assigned to supervise either faculties in which 

teachers of a different race predominated (DX 3, 10/69) or 

student bodies in which the majority of the pupils were of a 

different race (compare DX 3, 10/69 with GX 3, 10/69).

Residential Racial Discrimination
In 1968 this court directed the district court to determine 

the extent of racial discrimination with regard to housing 

in the City of Norfolk. Evidence was taken in conformance 

with the remand during the April, 1969 hearings. The district 

court in its 1968 opinion, and again in its May 19, 1969 

opinion, 302 F. Supp. 18, described in a summary fashion some 

of the instances of public and private activity which has had 

the effect of containing or restricting the residential 

mobility of black citizens to certain areas of the City of 

Norfolk (16 Tr. 23).

-9



PUBLIC ACTION

1. Public Housing projects

Twelve of the 14 public housing projects operated by the Norfolk 

Redevelopment and Housing Authority are occupied exclusively by

blacks. The remaining two projects are racially mixed (16 Tr. 122-25)

The Assistant Regional Administrator, HUD, having jurisdiction

over Virginia, qualified as an expert on racial housing patterns.

He testified that prior to Title VI of the Civil Rights Act of 1964,

tenants were assigned to public housing projects on the basis of

race (Tr. 114). From 1964 to June of 1967, most local authorities

in the region adopted either a freedom of choice or a first come,

first serve policy. Since June of 1967, the HUD regulations have

required all housing authorities to adopt the first come, first served
9/

method of tenant selection and assignment (16 Tr. 114).

Although Norfolk adopted the freedom of choice method of tenant 

selection following the passage of the Act, and the "first come, 

first served" method in April of 1968, there has been "little change 

in the racial character of the occupancy of projects operated by 

the Norfolk Housing and Redevelopment Authority." (16 Tr. 116).

8/

8/ Of the federally-assisted projects (the Authority totally owns
3), the ten all-black projects house a total of 3719 families 
or 89.4% of the total number of project families. The one 
racially mixed project houses 394 families or 10.6% of the total. 
(See GX M, M-l, 4/69).

9/ The new policy actually operates as a limited freedom of
choice. Depending on the number of projects operated by the 
local authority, an eligible applicant may have up to a 
maximum of three opportunities to refuse assignment to a 
particular project as long as such refusal is not based on 
race (16 Tr. 15).

-10  -



Generally speaking, prior to the passage of the 1964 Civil 

Rights Act, public housing sites were selected in areas where they 

would serve only one race. (16 Tr. 112-115). From 1964 to February 

of 1967, the general criteria for acceptability of sites v/as to the 

effect that they should be in areas reasonably accessible to both 

white and black citizens.
The HUD expert testified that because public housing projects 

generally generate 3.5 school age children per family, the location 

of the project has a direct effect on the school system; that in 

many cases it is necessary to build additional schools to absorb the 

children coming from the projects; and that when those schools are 

built within or contiguous with existing public housing projects, 

the schools tend to reflect the racial character of the project 

(16 Tr. 118-19).
An example of the relationship between public housing projects 

and the racial character of the surrounding public schools is found 

in the "Four Year Construction program" dated July 6 , 1950 (GX F-16, 

4/69) which lists many new schools necessitated by housing projects, 

and the School Board minutes of September 13, 1951 (GX F-20, 4/69).
A clear indication of the interaction between the two agencies is 

also found in the 1949 program Statement of the Housing Authority 

which identifies numerous schools to be constructed for pupils of a 

particular race or converted from white to black because of public 

housing development (GX G-l, 4/69, pp. 35, 37-38). Thirteen of the 

14 projects were constructed prior to 1955 (GX M, 4/69).

H



Since February of 1967, the regulations of the Department 

(of H.U.D.) have required local authorities to select sites which 

will permit the inclusion of applicants from all races and will 

provide an opportunity for minority groups to obtain federally 

assisted housing outside their area of concentration (16 Tr. 112). 

All of Norfolk's 13 projects were constructed prior to 1964. (See 

GX M-l, 4/69).

Since the announcement of the 1967 criteria for site selection, 

the Norfolk Redevelopment and Housing Authority has made eight 

submissions for new sites to federal authorities. Six of these site 

were rejected because they were located in areas of racial 

concentration and were the only sites submitted for review (16 Tr. 

121) .
2. Public School Location

The location of schools has always been an important factor

in the development of the residential patterns in Norfolk. The

deliberate location of Booker T. Washington High School, built in

1929 as a school for black students, adjacent to a 95% white area

had the predictable effect of transforming it to an all-black area
10/

within a period of 7 to 8 years (16 Tr. 128, 131). At least 63 of 

of the 73 schools in Norfolk were constructed during the period when

10/ other examples of the impact of school siting may be
found in GX D-16, F-20, G-l, pp. 36-38, 4/69.

12



they were deliberately planned for pupils of one race (GX D, 4/69).

In addition to its cooperation with the housing authority in

the location and construction of segregated schools, the Norfolk

board has acted in other ways to build its exclusionary attendance

areas upon both public and private racial discrimination.

. . . the test of residential proximity
is rigorously applied.
Honors go to Norfolk for executing "the 
northern plan" to the point of caricature.
To strengthen its exploitation of existing 
housing patterns, many of the city's new 
schools are small, three-to-four room 
structures for the first three-to-four 
grades. These little boxes are carefully 
located to maximize de_ facto school 
segregation. At one point, Norfolk's 
city council considered a proposal for 
constructing sixty-eight of these tiny and 
inefficient schools. Negroes joked the 
city would soon provide a separate school 
for every Negro child in his own backyard.

Pettigrew, Thomas F., De Facto Segregation, Southern Style,
12/

Integrated Education, June-July, 1967.
3. State Statutes and City Ordinances

Several Virginia statutes and Norfolk City ordinances 

prohibited black people from living in the same area of Norfolk as

11/

11/ GX D shows that 28 of the existing schools were constructed
prior to 1930, 33 between 1930 and 1960 (with 25 of these 
between 1950 and 1960) and only 10 since 1960.

12/ The rest of the quoted material is pertinent: "The city
has its own placement criteria: achievement test performance,
'ability to adjust,' and place of residence. In assigning 
students to schools, only Negro test scores are considered 
. . . ." See pp. 2 - 4 supra.

13



1 3 /white people.

PRIVATE ACTION

In addition to the policies and practices of the federal, 

state and city governments, private discrimination or non-governmental 

actions have played a substantial role in establishing Norfolk's 

segregated housing patterns.

Historically, some of the black areas developed from areas 

inhabited by servants who lived just adjacent to the very affluent 

areas of the city. Blacks who migrated to the city from rural areas 

were almost automatically directed to the pockets where black people 

lived (16 Tr. 211-12 ). Some examples of the areas which developed

13/ Chapter 157 of the Acts of 1912 is captioned "An Act to
provide for designation by cities and towns of segregation 
districts for residence of white and colored persons; for 
the adoption of this Act by such cities and towns and for 
penalties for the violations of its terms." (12 Tr. 165). 
This Act reappeared in 1916 and 1919 (12 Tr. 167), and 
these sections were not included with other acts which were 
repealed in the 1944 and 1946 supplements. The 1948 Code 
reflects that these sections (3043 and 3053) were omitted. 
This enabling legislation permitted cities to adopt local 
ordinances requiring residential segregation.

The city of Norfolk adopted such an ordinance in 1920. 
Chapter 7 is entitled "Segregation of White and colored 
residents" and Section 11 is headed "Residence in same block 
prohibited." (Code of 1920, pp. 107, 108). The Code of the 
city of Norfolk of 1944 indicates that between 1920 and 1944 
the ordinance had been amended to forbid residence by white 
and Negro persons in the same community, except by agreement 
by the majority of the residents of the community, as well 
as those in the same block (12 Tr. 167-68). (Code of the 
City of Norfolk, Va., chapter 12, Sections 153 and 154, 
pp. 159-61). The ordinances were not repealed until May 1, 
1951.

14



in this manner are Bowling park, Titustown and the area adjacent 

to Chesterfield Heights (16 Tr. 212).

1. Real Estate Sales and Rentals

It is estimated that 99.9% of the real estate market in 

Norfolk is controlled by white realtors (16 Tr. 203).

Prior to the recent thrust for open housing, it was extremely 

difficult for white real estate agents to sell property to blacks 

in traditionally white neighborhoods. During the early fifties a 

white real estate agent was practically run out of town for selling 

a house in the (then) all-white Campostella area to a black 

purchaser (16 Tr. 166). Racial discrimination against black 

purchasers was "a very prevalent practice" 18 or 20 years ago 
(16 Tr. 167) .

Unitl 1967, real estate sales in the daily paper were listed 

separately for whites and blacks (16 Tr. 182). Black realtors could 

not advertise any property for sale except in a column designated 
"for sale to colored." The only property they could offer at all 

was that located "in an established colored neighborhood." (16 Tr. 
183) .

Black realtors were not permitted to advertise property in 

white neighborhoods for sale in the "for sale to colored" column 

even though the owner had requested that we sell it to colored, or 
anybody for that matter" (16 Tr. 182-83).

The availability of housing which black brokers can offer for 

sale is further limited because they are not permitted to become 

members of Multiple Listing (16 Tr. 190). As a member of Multiple 

Listing, a broker would have hundreds of houses at his disposal to

15



show clients as compared with the present average of "eight or

nine houses for sale at any one time" (Ibid.). The black brokers 

are denied the right to participate in Multiple Listing solely 

because of race (16 Tr. 193).

Additional limitations on the availability of housing offered 

for sale or rent to black purchasers are caused by the unwillingness 

of white brokers to co-broke on houses that are offered to blacks in 

mixed or white areas (16 Tr. 190), although they are quite willing
1 4 /

to co-broke predominantly black areas (16 Tr. 232).

Other practices by white brokers include the outright refusal 

to show houses in white areas to black purchasers or the discouraging 

of white purchasers or the discouraging of black purchasers with 

statements such as "your client won't be happy here" (16 Tr. 190) 

or "you don't want to live in this neighborhood." "You want to 

live where you'd be happy." (16 Tr. 177).

The few black agents who managed to sell homes in white 

neighborhoods often did so at great financial sacrifice. In some 

cases the black agent had to relinquish'his commission on the sale, 

because, in an effort to block the sale, the white agent would 

refuse to co-broke the transaction. Most of the houses sold in 

mixed areas or in previously all-white neighborhoods were sold 
under the government programs, such as FHA and VA repossessions or 

foreclosures and were thereby available to all purchasers without 

discrimination (16 Tr. 185, 240).

14/ Co-broking . means the listing agent agrees with the
selling agent to split the commission (16 Tr. 233).

- 16



2. Restrictive Covenants

Many of the deeds to residential property in Norfolk contain

racial restrictive convenants (16 Tr. 259). Some of these

convenants contain a reverter condition which requires a release

from a trustee (Ibid.), and some of the restrictions will not

expire until 1997. (See GX E-l; E-2, E-4 and 16 Tr. 258-69). The

extra expense of securing a release ranges from $20.00 to $75 per

deed (16 Tr. 251). Such convenants, like the repealed city

ordinances (which may have no present standing in the law) contribute

to segregated residential patterns, and the regressive effects of

these restrictions continue long after they have been lifted (16 
15/

Tr. 137-38) .

3. The Continued pattern Of Discrimination

Racial discrimination against blacks seeking housing has not 

ceased in recent years (16 Tr. 187-188, 230, 232). On at least 20 

occasions immediately preceeding the April 28, 1969 hearing, a 

black real estate agent was expressly told that certain houses would 

not be shown to or was not available to black purchasers or renters 

(16 Tr. 190).

The president of a local fair housing organization personally 

received several hundred complaints from black families seeking 

housing during each of the past two years (16 Tr. 208).

In a survey taken by the Fifth Naval District Headquarters in 

May of 1967 only 41% of the facilities surveyed and 46% of the units 

affected had a policy of renting to black armed services personnel.

15/ Compare Evans v. Abney, 396 U .S . 435 (1970).

17



Of the 393 facilities (containing 29,209 units) listed in the

survey, only 162 facilities (containing 13,504 units) indicated
16/

that they followed a non-discrimination policy (16 Tr. 152).

The district court misconstrued the mandate of this Court 

in holding that the evidence "falls far short of establishing 

any discrimination which would be tantamount to governmental 

action realistically affecting residential areas." 302 F. Supp. 

at 27. For it is clear that the combination of governmental 

decisions determining the zoning and the use of land, together 

with the actions of persons and institutions who control housing 

and land, such as property owners, builders, real estate agents, 

lending institutions, brokers and other governmental agencies, 

have resulted in Norfolk in a severe limitation of the choices 

available to blacks seeking housing and consequently resulted in 

racial residential segregation (16 Tr. 126-27).

The Board's Plan
The Board's proposed plan incorporates two different methods 

of pupil assignment: a single geographic zone for each elementary

and high school and a feeder pattern for junior high schools.

However, the high school assignments will take effect in two stages, 

which the board has denominated Phases 1 and 2, respectively.

16/ After a period of time during which those facilities not
agreeing to accept black servicemen were made unauthorized 
for military occupancy (16 Tr. 163), 97% of the facilities 
containing 99% of the units)agreed to accept military personnel 

of all races.) As of April of 1969, 381 facilities (containing 
36,290 units) of a total of 392 facilities (containing 36,587 
units) agree to accept black servicemen (16 Tr. 157).

18



The elementary school plan (DX 1-A) creates contiguous
17/

attendance zones around each of the 52 schools. These zones

are then combined in a feeder pattern so that the elementary

zone residence of a pupil determines his junior high school 
18/assignment.

The Phase 1 high school zones (DX 1-B, .10/69) to be
employed until the construction of the new high school on Tidewater

19/
Drive is completed —  retain the zone boundaries in effect in

17/ Initially there will be 53 zones? however, upon completion
of a new elementary school under construction in the 
Ballentine—Lafayette area, use of those, facilities will be 
discontinued and a zone for the new school established 
encompassing both attendance areas and a portion of the initial 
Lindenwood attendance area (DX 1, 10/69). Also, Little Creek 
Elementary and Little creek primary School share the same 
geographic zone (DX 1-A, 10/69).

18/ The junior high school assignment plan may thus also be
expressed as zones. Such zones are contiguous, unlike the 
phase 2 high school zones, but otherwise hardly resemble the 
elementary school zones. Like the high school zones, they 
cover very extensive areas of the city and are sectored by 
many natural and man-made boundaries (28 Tr. 22-28) . ̂ The 
result is not even a reasonable racial distribution in the 
junior high schools, however. The projected racial composition 
of each junior high school practically mirrors its 1969-70 
free choice composition (GX 3, 10/69). The only signifxcant 
change is at Rosemont. Whereas one junior high school is 
attended solely by students of one race in 1969-70, the board 
projects three such schools under its plan, enrolling 31/ of 
all junior high students. Forty-five per cent of the black 
junior high students will attend all-black schools. (See 
Table 1, Appendix, infra).

19/ At the October 1969 hearings, the earliest completion date
for the new high school was estimated to be the 1972-73 school 
year assuming no construction or other delays interfering with 
the building (27 Tr. 52). Dr. McLaulin recognized that such 
delays could postpone the opening of the new high school for a 
"substantial period of time" (28 Tr. 4).

19



1969-70, with no significant modifications (27 Tr. 126, 202).

Under this plan, Booker T. Washington High School will remain
20/

virtually all-black and the other high schools will experience no 

shifts in their racial composition.

The district and the court below, despite an Alexander motion, 

rejected alternatives which would desegregate Booker T. Washington 

High School under phase 1, because desegregation of this school 

would require assignment of white students to this traditionally 

black school -- a move unpopular with whites (28 Tr.l4). The 

district also claimed its decision not to integrate Booker T. 

Washington was based upon its desire to avoid two substantial 

student reassignments within a short period of time and to avoid 

the busing necessary to make Washington a majority-white school 

reflective of the system-wide population and consonant with the 

"principles" of its plan. (28 Tr. 11-13). Since Washington serves 

grades 10-12, however (GX 3, 10/69), and the new facility could not 

open before 1972-73, the same pupils would not be shifted twice if 

Washington were desegregated in September, 1970; and the number of 

black students who must be transported from the Washington area to 

other schools under Phase 2 is nearly the same as the number requiring 

transportation if Washington were to be desegregated now (28 Tr. 7-11) .
When construction of the new facility is completed, Booker 

T. Washington will be discontinued as a regular high school

20/ The present Washington zone was first delineated by the
board for the 1967-68 school year, when as now, less than 
ten white children attended the school (27 Tr. 129).

20



21/ 22/
(DX 1, 10/69). The projected zoning of the remaining high

schools (DX 1-C, 10/69) contemplates the attendance of relatively

equal percentages of black students at each high school through

the use of non-contiguous zoning and school district transportation
23/

of pupils (GX 3, 10/69; 22 Tr . 98-99, 27 Tr. 188, 28 Tr. 35-36).

21/ There was vague testimony at the hearings about using
Washington for special education (28 Tr. 15) or reopening it 
as an all-black high school should the system-wide percentage 
of black students exceed the "optimal" percentage as expressed 
in the principles (28 Tr. 21). When this occurs, the plan 
calls for the reopening of the school as an all-black 
"warehouse" for excess blacks (28 Tr. 20-22).

22/ The location of this new senior high school and the
closing of Booker T. Washington present different legal 
issues in the present context of the Board's plan, which 
contemplates the assignment of students in such a way as to 
achieve racial balance in each high school.

23/ (Dr. Foster):

The senior high projection -- if we assume that 
Booker T. Washington would remain in force for 
at least three or four years, or however long it 
takes to get a new high school built, according 
to this year's figures, there are 3,315 blacks 
assigned to schools of over 40 per cent Negro 
population. This makes a total of 78.6 per cent 
of all the senior high blacks, and there are 933 
whites or 12.9 per cent of the senior high whites 
assigned to such schools...

Well, the figures I have for the long-range plan 
on that would be sort of a balance, which would 
mean there would only be one school above the 40 
per cent level, according to this, and that would 
be Maury, which would be at the 45 per cent level.
All the rest would be under the 40 per cent outside 
limit that the Board's principles stated.

(22 Tr. 98-99) .

21



Although Norfolk's student population is 42% black (cf.

27 Tr. 17), the effect of the plan is to create eleven (11)

all-white and twenty-one (21) all-black schools. All the schools

retain the- traditional racial identities they developed under

previous dual zoning, pupil placement, and free choice (see GX 3, 
24/

10/69). Table 1, printed at the beginning of the Appendix to 

this Brief, infra, provides complete detailed information on the 

effect of the school board's plan.

The Board admits these are the results obtained under its 

plan and seeks to justify them by adopting certain purportedly 
nondiscriminatory, educational "principles" which it says guided * I

24/ (Dr. Foster):
I figured these out a little bit last night, and if we 

assume considerable desegregation it may not occur in many 
elementary schools. For example, they have projected a ten 
per cent desegregation figure, which may not be too realistic, 
but the long-range plan, as I understand it, will result in 
the Board's relegating the following numbers to what, by their 
own definition in the principles, would be the academic scrap 
heap if you use 40 per cent Negro, as they have, as the top 
figures for racial mixture:

Now, at the elementary level, as I read these figures, 
there would be 11,585 blacks in schools more than 40 per 
cent black. This includes 19 elementary schools which would 
be all black and two which would be mostly black. One would 
be Campostella, which the figure states as 75 per cent black. 
The other is Chesterfield, which would be 85 per cent black. 
So, this indicates that 83^ per cent of the black elementary 
student population would be assigned to these 19 all-black 
schools or the two, Campostella and Chesterfield, which are 
largely black. In addition, there would be a hundred and 
sixty-five whites assigned to these two mixed schools at the 
elementary level.

At the junior high level my figures indicated 3,700 blacks 
would be assigned to schools over 40 per cent black, which 
makes a total of 62.7 per cent of the total black junior high 
population. Five hundred and fifty whites would be assigned

22



25/
it in developing its plan.

There is no mention of the area-based assignment concept

in the formal statement of principles portion of the board's

plan. Its selection as the basic method of assignment limits

all of the other principles upon which the district purports to

base its plan (28 Tr. 99); operating within this framwork, the

Principles have the effect of further limiting desegregation under
2 6/

the area-based plan.

24/ (continued)

to these schools, which is, according to my figures 7.8 
per cent of the junior high whites. (Tr II 96-98).

25/ A considerable portion of the extended hearings below,
and particularly the examination of the expert witnesses 
for all parties, was devoted to a minute analysis and 
explication of the principles. The further one delves into 
these postulates to test their inaccuracies of formulation 
or application, the more difficult it is to extricate 
oneself and to return to a consideration of what the plan 
actually does. The forest is lost for the trees.

This Court has indicated that results, not rhetoric, are 
the central issue in school desegregation cases. E_.c[. ,
Nesbit v. Statesville City Bd. of Educ., No. 13,229 (4th 
Cir., Dec. 2, 1969). We accordingly do not treat the 
principles at length here, (they are set out in full in 
the district court's opinion at pp. 15-22) but merely 
suggest their function and relation to the final result 
achieved by the plan.

26/ The utility of geographic zoning alone is limited because
of racial residential segregation in Norfolk. See discussion 
supra, pp. 9 - 18

23



The Principles purport to be conclusions drawn

by the Board from research studies to support the thesis

that no school which white students attend should have
2 8/

more than a 40%-Negro enrollment.-  The district judge 

commented during the cross-examination of Dr. McLaulin 

(28 Tr. 69) :

27/

. . . I daresay the principles
were primarily drawn, although 
I have no knowledge of it, by 
Mr. Toy D. Savage, who is a 
lawyer in this case. You 
cannot put him on the witness 
stand.

27/ See note 25 supra.

28/ It is difficult to succinctly state the "Principles
without some oversimplification. The Board admits 
the greater educational desirability of desegregated 
schools over all-black schools, but distinguishes 
between majority-white and majority-black desegregated 
schools, using research based on achievement test 
scores. The former are said to afford increased 
educational opportunity to black children, but the 
latter are said to decrease the opportunities of 
both white and black children. This conclusion 
is stated in terms of social class, but the Board 
determines that in Norfolk race and class are 
synonymous.

■24-



Dr. McLaulin attempted to apply these principles in the
29/

process of circumscribing a zone around each school. Since 

he did not possess particularized socioeconomic data for each 

street or block in any zone (28 Tr. 47-48) or for any individual 

zone in gross (28 Tr. 49-50), he relied upon generalized data 

for planning districts and a school system Title I study (28 Tr.

46, 60). Since the principles also assume an identity between 

black and lower class, the process really involved drawing lines 

around white schools (which Dr. McLaulin assumed were middle-class 

schools) to limit the number of Negro students who could attend 
these schools (28 Tr. 73).

This effectively minimized integration (28 Tr. 74) and resulted

in anomalous patterns between adjacent zones. For example, Monroe

Elementary School will be all-black and must house 75 students

over its 1969-70 capacity, while the adjacent Stuart Schoolwill have

so-called "optimal" desegregation but also 295 vacant spaces (28 
30/

Tr. 63-63).

29/ The resultant zones sometimes followed, sometimes ignored
natural and artifical boundaries such as railroads and 
highways (28 Tr. 102-105).

30/ Dr. McLaulin testified that shifting pupils from overcrowded
to underutilized schools, would require school district- 
furnished pupil transportation and would lead to demands that 
all children be bused at school expense (28 Tr. 90-91).

25



The Alternative plan

The United States, as plaintiff-intervenor in this matter, 

presented to the district court an alternative plan to disestablish 

the Norfolk dual school system prepared at its request by its 

expert witness Dr. Michael j. Stolee, Associate Dean of the School 

of Education at the university of Miami and formerly the Director 

of the HEW-funded Title IV consulting center at that university. 

Plaintiffs in the district court supported the government's request 

for implementation of this alternative plan, and we seek similar 

relief from this Court.

The Stolee plan referred to in the record as "Overlay c"
31/

(GX 18-C-l through 18-C-6) combines, at the elementary level, three

basic techniques of pupil assignment: single school geographic
32/, 33/

zoning, contiguous, and non-contiguous groupings or pairings.

31/ The exhibits consist of compatible transparent overlays
designed to be placed upon a map of the school system such 
as DX 1-A, 10/69, and which together illustrate how pupil 
attendance at each school for each grade level is determined. 
The senior high school feeder zones are illustrated on the 
transparent sheet labelled GX 18-C-l and each high school is 
treated separately on sheets 18-C-2 through 18-C-6 for a 
clearer appreciation of how elementary and junior high 
attendance at the feeder schools is determined.

32/ pairing of schools or Princeton grouping (26 Tr. 88-91)
(Madison-Larchmont-Taylor) is a common educational device 
utilized as a part of regular school assignment practices 
as well as in the context of plans to disestablish dual 
school systems (24 Tr. 64-65).

Non-contiguous grouping or pairing involves the matching 
of school facilities of related size and grade structure 
although the traditional service areas are not contiguous

26



No single method would, if applied to every school in the system, 

provide the degree of flexibility, in light of the existing 

facilities, the segregated pattern of school construction and the 

related segregated housing patterns, which is offered by the 

application in various areas of the differing methods of assignment.

The junior and senior high schools are desegregated under the 

Stolee plan by the use of feeder patterns; thus, the flexibility 

offered by the use of different techniques at the elementary school 

level carries through to the other grades.

32/ (continued)

and in some instances may actually be a substantial distance 
apart. This pattern of pupil assignment is also found in the 
educational process where desegregation is not at issue. For 
example there may be an area of high density of pupil 
population with a corresponding lack of sufficient classroom 
facilities in the immediate area while at the same time there 
exists within the system other school facilities with excess 
space. The school board to relieve overcrowding or to avoid 
large construction expenditures assigns either certain grades 
or all of the students living in a portion of the overcrowded 
zone to the school with excess capacity. (24 Tr. 64) .
In the context of a school desegregation plan the use of this 
technique of assignment enables a school board to overcome the 
effect of segregated construction and assignment policies, 
which in conjunction with a community-wide pattern of 
discrimination and in particular housing have contained black 
patrons of the system. With the enormous investment in school 
plants in areas of black or white residences where there are no 
contiguous black and white schools, non-contiguous grouping or 
pairing with the students transported to the respective schools 
provides the cheapest method of meeting the Board's affirmative 
duty to disestablish the pattern of state imposed segregation 
in those schools.

Dr. Stolee's testimony expressed the option as a method 
of transporting substantially fewer children over longer 
distances (24 Tr. 76-77). particularly in Stolee's plan 
whereby the non-contiguous pairings are made between the 
schools in the most northern section (East Ocean View) and the 
most southern portion (Diggs) (23 Tr. 134) the distances which 
the majority of the other children in the system must walk or 
be transported to school is thereby minimized (23 Tr. 125, 133- 
34) -

- 27



Dr. McLaulin, who prepared the Board's plan, frankly 

admitted that given Dr. Stolee's purpose (desegregating all of 

the schools without regard to an area based limitation) , the 

Stolee plan was as good as could be drawn (28 Tr. 97-98).

In the respective areas in which Dr. Stolee recommended 

their use, both contiguous and non-contiguous grouping or cluster 

pairing serve to preserve some aspects of the neighborhood school

32/ (continued)

In some instances the Stolee plan uses a single zone 
drawn around a particular school where the use of such a 
zone results in substantial desegregation (24 Tr. 63).

33/ The defendants' long-range plan utilized pairing to a
degree at the elementary level (28 Tr. 36-37). At other 
grade levels, it employed the concept of non-contiguous 
zoning:

Q. . . .  [U]nder the Board's long-
range plan you do use the concept 
of non-contiguous zoning; is that 
correct?

A. Yes.

(27 Tr. 38) .

28



Each child would attendand to minimize bus transportation, 
the closest school during some part of his elementary experience 

(24 Tr. 86-87). The evidence in the record demonstrates that 

existing regular line service of the transit authority, in a 

number of instances, already provides ample bus service within 

the grouped, cluster of schools.
The amount of bus transportation necessary and the capacity 

needed to execute the Stolee plan is in some dispute. The Board 

estimated the number of pupils required to be transported by 

assuming the use of transit authority buses and limited its

34/

34/ "Now, let me —  let me talk, sir, if I may, about the
Madison-Larchmont-Taylor group which on the overlay, (GX18-A) 
which is outlined in blue, is the third group on the legend. 
Q. All right, sir. A. Under this sort of a plan, Madison 
might handle grades 5 and 6 for the entire area on the 
overlay, which is outlined in blue, and then the Larchmont 
and Taylor schools might each house grades 1 through 4.

Now, it anticipates, then, for these two 1 through 4 
schools that there would be a boundary line drawn somewhere 
through the existing Madison attendance area on the base 
map so that all children south of that line in grades 1 
through 4 would attend Taylor and all the children in the 
whole area, as I said in grades 5 and 6 would attend Madison. 
Now, the reason I say this would serve to minimize 
transportation is because, in this sort of thing the children 
in grades 1 through 4, I believe, would all be within walking 
distance of their schools if they are, indeed, within walking 
distance today.

The children in grades 5 and 6, I believe there might be 
some transportation necessary at the extreme northern end 
of the Taylor area." (23 Tr. 101-02).

29



consideration to gross estimates without allowance for pupils

who customarily utilize regular existing "line routes" of the

transit company (26 Tr. 91). Similarly, the transit company

based its cost estimates of the number of buses needed for the

Stolee plan solely on figures furnished by the Board, without

consideration of its existing regular transit routes (5 Tr. 137;

6 Tr. 90). The Board's projections, adopted by the district court

in its May, 1969 opinion, fail to take into account the transit

company's ability to carry approximately 2400 additional students

by filling the special buses in use at the present time to their
35/

capacity (26 Tr. 77-81). (The present average load is 45 students,

ibid.). The estimates also do not consider present excess capacity

on regular transit line service routes which serve almost all the 
36/

schools, nor the possible operation by the district, with state 

aid, of a school bus service to supplement the present Virginia 

Transit Company capacity (25 Tr. 79-80).

The Norfolk school board operates now district-owned buses to 

provide transportation to its vocational-technical school and for 

handicapped children (25 Tr. 85). in 1968-69, four such buses were 

operated and the board received $5,184.40 in state aid for their

35/ Mr. Armstrong of the transit company admitted the obvious
by agreeing that the per pupil cost to the company would be 
reduced if each bus was filled to capacity (29 Tr. 83-84).

36/ Mr. Armstrong testified that the average load per hour
on regular transit routes was 30.5 passengers (29 Tr. 78).

30



37/
maintenance (id., at 82) .

The Virginia Transit Company presently operates special school

buses in conjunction with the Board of Education. These buses are

routed to pick up students near their homes each morning and

.transport them to the school of their assignment. Routes are

jointly established, changed or added to meet changes made by the
38/

School Board in its assignment patterns. in 1968-69, 82 such

buses (26 Tr. 50), with a capacity of sixty and an average load of
39/

forty-five students, operated each morning (26 Tr. 58).

37/ Since 1942 Virginia has offered assistance to local school
district transportation programs (25 Tr. 60) covering 
maintenance, operating expenditures bus replacement costs, etc.
(Id. at 74) . Up to 100% of operating expenditures qualify 
for reimbursement upon the application of a school district 
(5 Tr. 69).

38/ The Virginia Transit Company is required under the terms
of its franchise with the City to provide such service with 
a reduced fare to the student.

39/ Norfolk has historically required black students to make
transportation arrangements to get to school. "The location 
of public schools for Negro children generally follows the 
density pattern of the Negro population. However, two small 
areas, Atlantic City and Bolling Brook, are not served by 
schools at all, which means that the children living there 
must travel great distances to and from school, at their own 
expense." (GX G-l, 4/69, p. 36). Similarly, from 1963-64 to 
1969-70, when black children were afforded choices between 
black and white schools within attendance areas, no transportation 
assistance was afforded by the school system -- even when the 
Booker T. Washington High School zone overlapped the entire city 
boundaries. Finally, under the Board's proposed phase II plan, 
nearly 2300 black high school students will be required to 
travel from the Booker T. Washington area to distant facilities 
in other parts of the city (28 Tr. 5-6) .

31



These buses are in addition to those operating on regularly 

scheduled transit routes. Plaintiffs introduced a large map 

prepared by the transit company showing all existing regular 

transit routes (DX 7, 10/69) . The record (25 Tr. 120 e^ secy. ) 

and the exhibit demonstrate that most schools in the system are 

already served by one or more regular transit routes passing in 

close proximity to the schools.
The system of special school bus transportation has operated 

in Norfolk for many years. During the 1969-70 school year, 8,190 
students were transported each day by special bus to public schools 

(26 Tr. 76). In addition, many other students are transported to 

public schools by private automobile (6 Tr. 42). The determination 

of the number of students using transit authority buses is based 

on the number of reduced fare tickets turned in to the transit 

company. Of the 8,190 daily round trips reflected in reduced fare 

tickets collected (26 Tr. 76), between 23 and 25% of the pupils do 

not ride the special buses but instead utilize the regular "line" 

transit routes (25 Tr. 118).
The National Education Association reports that each day 

during the 1967—68 school year, 17,271,218 pupils were transported 

to school at public expense (GX 20, 10/69). That same study shows 

that pupil transportation is a growing facet of public education. 

From 1954-55 to 1967-68, the national total almost doubled: up

from 9,509,699 to 17,271,718. As the District Court noted (24 Tr.

56) :

- 32



I will take judicial notice 
of the fact that there are fewer 
children now who walk to school 
than walked when I went to school.
I can tell you that. They all 
have automobiles and ride buses.

In Virginia the number of pupils transported at state expense

during the 1967-68 school term was 573,207 (25 Tr. 65). The state

appropriations for transportation in 1969-70 were $9,140,460., up

from $5,705,800. in 1960-61 (25 Tr. 64-65). Within the cities of

Virginia alone, the number transported at state expense was 82,700 
40/

pupils.
The Annual Report of the Superintendent of Public Instruction

for 1967-68 (PX 5, 10/69) states at page 103 that "[m]ore than

60% of the pupils attending public schools in the State are

transported in school buses. The number of pupils has been
increasing at an annual rate of approximately three per cent." In

cities adjoining the City of Norfolk, pupil transportation by the

school district with state assistance is a common factor. During

1967-68 in Virginia Beach, to the east of Norfolk, 33,431 pupils

were transported; in Chesapeake City 18,600 pupils were transported

to the north, Newport News transported 20,197 pupils and at Hampton
41/

Roads it was 5,495 students. (PX 6, 10/69). Some of the larger,

40/ These figures do not include bus transportation to private
schools, nor students riding, as in Norfolk, public transit 
at their own expense.

41/ The table in PX 5 at pp. 118-19 shows that school buses
operated with state aid in cities carried a higher "Average 
Number of Pupils per Bus" and a lower "Average Miles per 
Bux Per Day" than in the counties.

33



highly urban counties including Arlington (9,840 pupils), Fairfax 

(64,293), Chesterfield (20,160), Henrico (21, 369) and Roanoke 
(15,696) receive State assistance for their transportation 

programs (Ibid).
The average per pupil transportation cost for the State in

1967-68 was $26.91 (PX 5, 10/69). For cities in Virginia it was
42/

$19.91 (Id at 118-19).

Dr. Stolee considered both the existing modes of pupil 

transportation and the means available to meet additional capacity 

needs in drawing his plan;

[The Court]:
I take it, Doctor, as to any bussing, we are now 

abandoning any thought of public transportation and we 
are going into school operated bussing; isn't that 
true, under any -- any plan, at least, that you have 
advocated here, that public bussing is out of the 
question?

THE WITNESS: Nq sir, and you're getting at the
reason why I did not compute the cost of the bussing, 
because there are so many ways it could be done. One 
is for the School Board, as you state, to purchase a 
fleet of school buses. . . and operate them. The
second one is to continue the arrangement with the 
Virginia Transit Company for that sort of transportation.
The third --

THE COURT: Well, I understand that. But how in
the world could you ever allocate these -- and schedule 
these drivers, with all this interchange that you 
propose? After all, they have to do something besides 
just drive a bus for school children. They are hired 
on an eight-hour schedule proposition. And is that 
feasible?

42/ The record reveals that buses meeting the state
requirements could be purchased by the transit authority 
for $8,200 (29 Tr. 80) and by contract with the system 
receive state assistance (25 Tr. 98-99). The record also 
reflects that buses when owned and operated by school 
systems actually result in lower per pupil costs and 
consequently higher levels of state assistance (25 Tr. 
97-100).

34



I thought now that we were probably disregarding 
entirely any question of the Virginia Transit Company 
providing transportation, no matter who pays for it.

THE WITNESS: Well, Your Honor, there are many
ways of taking care of this. One of the best ways I 
have seen is used by the school system in Broward 
County, Florida -- that's the Fort Lauderdale area -- 
in which the schools start at different times. There 
is no real reason why every school in the city must 
start at the same time, and their fleets of buses serve 
as many as four separate schools in the afternoon, and 
they keep their men pretty busy during the whole time, 
and they work three or four hours in the morning; they 
work three or four hours in the afternoon. They might 
have a much longer lunch hour than most of us would 
have, but they get in a full day by that, but the 
school system —  by changing times of schools or by 
having schools open at different times and close at 
different times results in considerable savings in 
terms of equipment and salaries.

That's one of the things that might strongly be 
considered here.

(23 Tr. 204-06).

35



ARGUMENT

Q. If the school board says to the Negro 
child, when [s]egregation is required by 
law, that "You stay in this all-black 
school" and if under your plan he is still 
in the same school and [it] is still all­
black, what's the difference as far as the 
effects of your action as a school board?
A. Well, we are saying to the child . . .
that his faculty will be ultimately the 
equal of other faculties; that the building 
and material things will be the same . .
and that other compensatory procedures 
will be afforded to make up for our 
inability . . .  to put him in a desegre­
gated situation.

---School Board president Thomas
October 8, 1969 {21 Tr. 205)

We come then to the question presented: 
Does segregation of children in public 
schools solely on the basis of race, 
even though the physical facilities and 
other "tangible" factors may be equal, 
deprive the children of the minority 
group of equal educational opportunities? 
We believe that it does.

-- Brown v. Board of Educ^, 347 U.S.
483, 493 (May 17, 1954)

-36-



Introduction

Sixteen years after Brown v. Bd. of Educ.; fourteen years 

after 150 black pupils and their parents commenced this litiga­

tion; twelve years after this city closed its public schools 

rather than permit a single black child to enter a "white" 

school, the Norfolk School Board is telling black children that 

they may not attend public schools because they are black.

The district court's approval of a so-called "desegregation 

plan, " which operates to increase segregation, not to facilitate 

integration, is another slap in the face to thousands of black 

parents in Norfolk who have watched as an entire generation of 

their children attended and departed segregated schools, while 

they put their faith in the law.
The commands of the Constitution could not be more plain, 

simple and direct. in Green v. County School Bd. of New Kent 

County, 391 U.S. 430, 437-38, 442 (1968), the Supreme Court noted 

that Brown required school districts to take "whatever steps might 

be necessary to convert to a unitary system in which racial 

discrimination would be eliminated root and branch . . .  to convert 

promptly to a system without a 'white' school and a 'Negro' school, 

but just schools," large districts and small districts alike,

Monroe v. Board of Comm'rs of Jackson, 391 U.S. 450 (1968). In 

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20 (1969), 

the Court reaffirmed the law's command that "no person is to be

-37-



effectively excluded from any school because of race or color."

The conflict between the board's plan, which minimizes integration, 

and these rulings is perfectly obvious. Yet the district court 

approved the plan.

In 1968 this Court warned that geographic zones which 

produced heavy proportions of students of one or the other race 

in various schools could not be employed if "residence in a 

neighborhood is denied to Negro pupils solely on the ground of 

color . . . [i]f residential racial discrimination exists, it is

immaterial that it results from private action." 397 F.2d at 41. 

The evidence in this record of consistent and continuing public 

and private action to keep blacks from living in "white" areas 

(see pp. 9-18 supra) compels the conclusion that the board's 

zoning plan, which results in 32 schools attended solely by student 

of one race, is unconstitutional. Yet the district court approved 

the plan.

In Brown v. Board of Educ., supra, 347 U.S. at 494-95, the 

Court wrote:

To separate [black children] from 
others of similar age and qualifica­
tions solely because of their race 
generates a feeling of inferiority 
as to their status in the community 
that may affect their hearts and 
minds in a way unlikely ever to be 
undone. . . . Separate educational
facilities are inherently unequal.

Norfolk's "plan" itself explicitly tells black children that they
are being placed in all-black schools because they are "low

socio-economic class," a term which can hardly be said to connote

superiority. Yet the district court approved the plan.

38-



Finally, the plan's ultimate justification is the "maintenance

of a substantial, middle-class enrollment in the school system,"

and it defines the middle class as white; in other words, the

purpose of the plan is
to stabilize the city, to keep the 
white flight from accelerating?
A. Right.

(Board President Thomas, 21 Tr. 207). Yet, in the face of Cooper 

v. Aaron, 358 U.S. 1 (1958); Monroe v. Board of Comm'rs of Jackson, 

supra, 391 U.S. at 459; and Walker v. County School Bd. of 

Brunswick County, 413 F.2d 53 (4th Cir, 1969) (per cur jam) , the * I

district court approved the plan.

I

NORFOLK'S PLAN TO ASSIGN BLACK STUDENTS 
TO ALL-BLACK SCHOOLS ON THE BASIS OF 
THEIR RACE, WHICH THE DISTRICT COURT 
APPROVED, VIOLATES THE CONSTITUTION OF 
THE UNITED STATES AND CANNOT BE JUSTIFIED 
ON GROUNDS OF EDUCATIONAL POLICY

This Court has always scrutinized desegregation plans very 

carefully to discover their actual results —  not their fancied 

intentions. E .g ., Coppedge v. Franklin County Bd, of Educ., 404 

F .2d 1177 (4th Cir. 1968). Such an analysis of the Norfolk plan 

is a shocking revelation of how sophisticated rationalizations 

can mask the handiwork of racism. Table 1, printed in the 

Appendix, infra, sets out detailed information on the effects 

the plan will have on the racial composition of the student bodies 
at the various schools in the system. We summarize some important 

findings here.

-39-



Implementation of the plan will increase segregation in the 

Norfolk school system by adding to the already significant number 

of all-black and all-white schools. While there were 26 such 

schools (out of a total of 71 schools) in 1969-70, there will be 

32 if the plan is executed —  even though the total number of 

schools will be reduced to 67. The number of all-white schools 

will increase from eight to ten, and the number of all-black school 

from nineteen to twenty-two. These uniracial schools are projected 

to enroll 38% of all Norfolk students; however, black students are 

predictably more harshly affected by the operation of a rule that 

they may not attend schools in their areas also attended by whites, 

in proportions greater than 40%. 77% of the black elementary

students, and 68% of the black elementary and junior high school 

students combined, will be assigned by the Board to all-black 

schools. Under phase 1 of the Board's plan, 70% of Norfolk black 

students at all grade levels will go to segregated, all-black 

schools. ^ Even when the high schools are ultimately racially 

balanced under Phase 2, more than a majority of all black students 

(57%) will attend all-black Norfolk public schools under the plan.

in addition to the all-black and all-white schools, many 

will enroll very overwhelming proportions of students of one race 

or the other (see GX 3, 10/69). Most of these schools can 
validly be considered virtually all-white or virtually all—black, 

they are clearly still segregated schools existing within a system

43/ Booker T. Washington High School, which is expected to enroll 
2268 black students and up to seven whites, is treated as an 
all-black school for the purposes of this calculation only.
This record shows specific complaints from Norfolk's black 
citizens about the conditions at the Booker T. Washington High 
School dating from the 1959 hearings with the Superintendent 
(Court Exhibits 1,2,7,8,9,10,11,12 and 13, 1959). Complaints 
involving Booker T. Washington have been recurring issues

40-



which is far from unitary. Table 1 provides descriptions of

43/ (continued)
throughout this litigation. As recently as the 1967-68 
school year, the board assigned more than 2400 black 
students to the 1750-capacity Booker T. Washington School, 
while only 1749 students were assigned to the (white)
Lake Taylor High School, which had a capacity of 2200, 
and only 1905 students were assigned to the adjacent 
(predominantly white) Maury High School, with a capacity 
of 2000.
In an earlier appeal to this Court, the appellants pointed 
out that by deliberately locating the new Lake Taylor High 
School on the easternmost fringe of the city, away from the 
black community, the school board might well have incurred 
a specific obligation to transport both white and black 
students in order to integrate Booker T. Washington and Lake 
Taylor. In their objections to the Board's plan, the 
plaintiffs pointed out that the plan would "result in the 
complete segregation of the Booker T. Washington School" 
(Plaintiffs' Objections to Norfolk Desegregation Plan As 
Amended April 3, 1969, 4/11/69). During the April, 1969 
hearing, the government's expert witness suggested a plan 
which would pair Booker T. Washington and Lake Taylor 
and which would have desegregated both schools by September 
1969. 302 F. Supp. 18, 22. The school board also consid­
ered a plan which would assign either a minority or a 
majority of the nearby whites to Booker T. Washington, 
thereby desegregating it by September, 1969 (27 Tr. 128, 130). 
The board rejected all of these plans.
During the October, 1969 hearings (plaintiffs' Motion To 
Require the Adoption of a plan for the Complete Desegregation 
of the Norfolk School System By 1970-71, 10/15/69) and again 
during the December 10, 1969 argument in the district court, 
plaintiffs urged that the racially segregated character of 
Booker T. Washington be eliminated by midsemester of the 
1969-70 school year but in any event no later than the 
commencement of the 1970-71 school year.
Nevertheless, the school board adopted a plan by which 
Booker T. Washington remains virtually all-black for at 
least three more years. Notwithstanding the excuses advanced 
by the board it is clear that the real reason why the school 
remains virtually all-black is that the board feels the 
white citizens of Norfolk would object to attending the 
present Booker T. Washington School in its present location 
in the black community (See p. 20, supra; see also 27 Tr.
129, 28 Tr. 14). Moreover, the board's promise that when
the'new high school is built, Booker T. Washington will be 
retained as an overflow school to house the excess of black 
pupils which would be created by population growth in excess 
of the ideal mix limitation (27 Tr. 154, 28 Tr. 21).

-41-



system-wide enrollments for one category which may be selected;
44/schools enrolling less than 10% minority students.- ~ The Table

indicates that as the measure decreases from 100% uniracial 

downwards, the results are even less favorable to the school 

board's claims of creating a unitary system.

Yet the district court approved this plan.

Dr. Foster, another of the government's expert witnesses,

described the all-black schools to which a majority of black ,

students will be assigned as "the academic scrap heap" (22 Tr. 97),

since the principles assume educational achievement only in
45/majority-white schools. Dr. Foster described the Rosenthal

44/ This was Dr. McLaulin's definition of a "segregated school" 
but we reject that as being considerably under-inclusive if 
applied to a school system that is 42% black, as is Norfolk.

45/ This assumption ignores data from Norfolk; some of its own 
schools have experienced increases in the number of black 
students or constant high proportions of black students without 
any decrease in white or black achievement (22 Tr. 84-92).
Data on achievement testing throughout the entire system 
shows, however, a substantial disparity in achievement 
levels between the predominantly black schools and the 
predominantly white ones. Dr. Gordon Foster testified 
with respect to the testing exhibits, graphs, etc., placed 
into evidence by the government:

— about my reaction to the testing information.

As I think I stated, first of all, it seems to 
me a number of these -- and I have read the 
numbers -- indicate the failure over the last 
three years that these tests represent, at least 
in the Norfolk city system, to provide a quality 
education as measured by achievement and to some 
extent intelligence test scores, to provide a 
quality education in their all-black schools; 
secondly, the general failure of the Title I 
compensatory education in terms of closing the 
gap between the total system and the compensatory 
schools both in achievement and IQs, and this 
conclusion in particular I think leads me to 
believe that the only way you are going to close 
this gap is by actual desegregation rather than 
compensatory education per se.

42-



study entitled "Pygmalion in the Classroom," which indicated 

that when a teacheris told that a child is a high or low 

achiever, the teaching effort and result tend to closely 

follow that identification. He and Dr. Brazziel described 

the result as a 'teelf-fulfilling" prophecy (22 Tr. 201-02, 204; 

26 Tr. 128-30):
Well, it seems to me safe to assume 
that to a considerable extent the 
children who find themselves in 
these schools would tend to perceive 
themselves as low achievers and as not 
having particular potential and would, 
therefore, tend to act this way and 
fulfill this assumption or prophecy, 
as you wish.

(22 Tr. 204) . * I

45/ [continued]
I think there's a good deal of evidence 
generally that desegregation of the 
schools, itself, contributes more 
toward an improved learning situation 
than the compensatory education.

Then another conclusion I would draw 
from this exhibit is that in thinking 
about the seventeen principles which 
the board has proposed, the comparison 
of scores for Campostella and Chesterfield 
and again for chesterfield and Blair would 
indicate that some of the statements in 
those principles are incorrect insofar as 
those schools are concerned.

(22 Tr. 94-95). The Board attempts to turn this disparity to its 
own advantage by purporting to assign black students to black 
schools on the basis of achievement test score related research 
studies rather than race (cf. 28 Tr. 97). The Norfolk test 
results are predictable in light of the historic educational 
deprivations suffered by blacks. Compare Gaston County v. Uni ted 
States, 395 U.S. 285 (1969); see 22 Tr. 187-92, 194-95. Thus, 
these are also self-fulfilling prophecies (see discussion in 
text, infra) which may be used to justify segregation.

-43-



As Judge McMillan said, in referring to a similar 

achievement gap between students at white and black schools 

in Charlotte;

Until unlawful segregation is eliminated, 
it is idle to speculate whether some of 
the gap can be charged to race differences 
or to "socio-economic-cultural" lag.

Swann v. Charlotte-Mecklenburg Bd. of Educ., Civ. No. 1974

(W.D.N.C., 12/1/69), p. 4.

In Green v. County School Bd. of New Kent County, 391 U.S.

430, 438, 442 (1968), the Supreme Court held it to be the 

affirmative obligation of school boards to eliminate the dual 

biracial system of public education "root and branch" and 

establish " a system without a 'white' school and a 'Negro' school, 

but just schools."
This Court adopted the rule there announced and reaffirmed

by Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 (1969)

in Nesbit v. The Statesville City Bd. of Educ., No. 13,229 (4th

Cir., Dec. 2, 1969):
No school district may continue to 
operate a dual system based on race.
Each must function as a unitary 
system within which no person is to 
be excluded from any school on the 
basis of race.

Accord, Stanley v. Darlington County School Dist., No. 13,904 

(4th Cir., Jan. 16, 1970).
The Fifth Circuit explicated the same constitutional standard 

in United States v. Indianola Municipal Separate School Dist., 410 

F.2d 626, 631 (5th Cir. 1969), cert, denied, 396 U.S. 1011 (1970) 

in referring to "a unitary school system with both substantially 

desegregated student bodies and teaching staffs" (emphasis supplied)

44-



Accord, Henry v. Clarksdale Municipal Separate School Diet.,

409 F.2d 682 (5th Cir.), cert. denied, 396 U.S. 940 (1969);

United States v. Greenwood Municipal Separate School Dist., 406 

F .2d 1086 (5th Cir. 1969); Kemp■v . Beasley, No. 19,782 (8th 

Cir., March 17, 1970) (Blackmu.n, J.).

Judged by these standards, the Board's plan will not create 

a unitary school system in Norfolk, Virginia, for it limits 

desegregation and expressly assigns black students to segregated- 

schools because of their race. It results in 21 all-black schools 

and 11 all-white schools.
The board argues that it has applied an objective standard 

in the drawing of zones, and that it is thus relieved of 

responsibility for the resulting continued segregated pattern of 

attendance. We see no validity in such an argument.

In the first place, the Board adopted this "objective 

standard" with full knowledge that it would not meet its 

affirmative Constitutional responsibilities by so doing. It was 

aware of the extent of racial residential segregation in Norfolk. 
It has an obligation to overcome this pattern. The uncontroverted 

evidence adduced in the court below (see pages 9-18, supra) 

conclusively proves that the racially segregated housing patterns 

existing in Norfolk were basically the result of governmental 

action constituting "state action" subject to the Fourteenth 

Amendment.
There can be little legitimate debate about governmental 

responsibility for creating residential segregation in a 
community where racially restrictive covenants on real property 

are commonplace (as they are in Norfolk), and where state statutes

-45-



and city ordinances for many years required residential sagrega- 
4 6/tion.

The significance of the State's enforcement of racially

restrictve covenants is that this device was the functional and

practical equivalent of residential segregation laws and 
' 4 7 /ordinances.—

The United States Commission on Civil Rights observes that 

after the Supreme Court outlawed residential segregation by lav/ 

in 1917 (Buchanan v. Warley, 245 U.S. 60), a number of cities *

46/ Although enforcement of the racially restrictive covenants 
was held to be unconstitutional state action in Shelley v. 
Kraemer, 334 U.S. 1 (1948), and the city ordinances was 
repealed in 1951, the regressive effects of these restriction 
continue long after they have been lifted (16 Tr. 137-38).

The Court of Appeals for the Fifth Circuit held in 1958 
that a school board could not contain Negro pupils in an 
all-black school zone where a residential segregation or­
dinance had confined Negroes to that area of the community. 
Holland v. Board of Public Instruction of Palm Beach County, 
258 F .2d 73Cb 732 (5th Cir~ 1958). The court said that "in 
light of compulsory residential segregation of the races by 
city ordinance, it is wholly unrealistic to assume that the 
complete segregation existing in the public schools is 
either voluntary or the immediate result of valid rules not 
based on race." Accord, Dowell v. School Bd. of Oklahoma 
City, 244 F. Supp. 971, 975-77 (W.D. Okla. 1965), aff1d 
375 F .2d 158 (10th Cir.), cert, denied, 389 U.S. 847 (1967).

47/ Shelley was argued to the Supreme Court on this basis (by 
the Solicitor General, among others), as Mr. Justice Black 
has described:

This type of agreement constituted a restraint 
on alienation of property, sometimes in 
perpetuity, which, if valid, was in reality 
the equivalent of and had the effect of state 
and municipal zoning laws accomplishing the

-46-



continued to enforce such ordinances for many years, but that "as 

the prohibition in Buchanan, supra, gradually took effect, the 
racial restrictive covenant gained widespread use." Racial iso­

lation in the Public Schools, A Report of the U.S. Commission on 

Civil Rights (1967), Legal Appendix, pp. 255-56 (DX 2, 4/69). 

indeed, the Commission's formal findings about the causes of 

residential segregation in the United States are entirely corrob­

orated by the evidence in this case on the extent of governmental 
48/involvement.

47/ (continued)
same kind of racial discrimination as 
if the State had passed a statute instead 
of leaving this objective to be accom­
plished by a system of private contracts.

Bell v. Maryland, 378 U.S. 226, 329 (1964)(Mr. Justice Black, 
dissenting) .

48/ . . .  5. Within cities, as within metropolitan areas,
there is a high degree of residential segregation -- 
reflected in the schools —  for which responsibility 
is shared by both the private housing industry and 
government.

(a) The discriminatory practices by city landlords, 
lending institutions, and real estate brokers have 
contributed to the residential confinement of Negroes.

(b) State and local governments have contributed 
to the pattern of increasing residential segregation 
through such past discriminatory practices as racial 
zoning ordinances and racially restrictive covenants 
capable of judicial enforcement. Current practices 
in such matters as the location of low-rent public 
housing projects, and the displacement of large numbers 
of low-income nonwhite families through local improvement 
programs also are intensifying residential segregation.

(c) Federal housing programs and policies serve
to intensify racial concentrations in moderate-income 
housing programs such as low-rent public housing and

-47-



All of the evidence regarding the racially segregated

housing patterns was offered prior to the district court's May

19, 1969 opinion. Yet the court found:

The testimony . . . falls far short of
establishing that requisite governmental 
involvement is present. We think it 
clear that the planning districts through­
out Norfolk have primarily grown up as a 
result of de facto segregation, stated 
otherwise, the desire of the Negro to live 
among Negroes and the desire of the white 
to live among members of the white race.

302 F. Supp. at 27. We think the record overwhelmingly compels

a contrary conclusion. And while residential patterns might * 6

48/ (continued)

FHA 221(d) (3) do not promote the location of housing 
outside areas of intense racial concentration.
Federal urban renewal policy is insufficiently 
concerned with the impact of relocation on racial 
concentrations within cities.

6. Individual choice contributes to the mainten­
ance of residential segregation, although the impact 
of such choice is difficult to assess since the hous­
ing market has been restricted.
(Racial isolation in the public Schools, supra at 201-02).

The Commission also reported that the policy of the Federal 
Housing Administration in the 1930's and 1940's was a 
"principal impetus to housing discrimination" (id. at 254). 
The Federal Housing Administration not only recommended 
the insertion of racial covenants, but even after Shelley 
v. Kraemer, supra, the Commission reports, the "FHA 
continued to treat racial integration in housing as a 
reason for denying benefits to an applicant." Id. at 
254, citing Abrams, Forbidden Neighbors 233 (1955) and 
Weaver, The Negro Ghetto 71-73 (1948).

-48-



also be the result in part of private discriminatory or even 

non-discriminatory action, the Board would still not be relieved 

of its duty. "[T]he involvement of the State need [not] be 

exclusive or direct. In a variety of situations the Court has 

found state action of a nture sufficient to create rights under 

the Equal protection Clause even though the participation of the 

State was peripheral or its action was only one of several co­

operative forces leading to the constitutional violation." United 

States v. Guest, 383 U.S. 745, 755-56 (1966).
Furthermore, it is established in this case that the school 

board is directly responsible for its present inability to 

substantially desegregate the schools by zoning. As the evidence 

below reveals, the board has made choices in locating schools, 

fixing the sizes and grade structure of schools, converting 

schools from black to white, assigning faculty and staff on a 

racial basis, and adopting the policy of assigning pupils by 

residence. Housing segregation results in school segregation 

only in the context of those choices by the school board. See 

Swann v. Charlotte-Mecklenburg Bd. of Educ., 300 F. Supp. 1358, 

1369 (W.D.N.C. 1969). It is the school district's responsibility 

now to disestablish what it has created. See United States v. 

School Dist. No. 151, 286 F. Supp. 786, 799 (N.D. 111.), aff'd 

404 F .2d 1125 (7th Cir. 1968); Brewer v. School Bd. of City of 

Norfolk, supra; Davis v. School Dist, of City of Pontiac, Civ.

No. 32392 (E.D. Mich., February 17, 1970). The school district 
may not permissibly continue its p st discriminatory assignment 

policies by the present application of neutral standards which

-49-



do not achieve the result of dismantling the dual system. This 

is true whether the method used is free choice or geographic 

zoning. Otherwise "the equal protection clause would have little 

meaning. Such a position 'would allow a state to evade its 

constitutional responsibility by carve-outs of small units.' " 

Haney v. County Bd, of Educ. of Sevier County, 410 F.2d 920, 924 

(8th Cir. 1969). See Dowell v. School Bd. of Oklahoma City, Civ. 

No. 9452 (W.D. Okla., Aug. 8, 1969), aff'd 396 U.S. 296 (1969); 
Keyes v. School Dist. No. 1, Denver, 303 F. Supp. 279, 289 (D. 

Colo.), stay vacated, 396 U.S. 1215 (1969) (Mr. Justice Brennan, 
in Chambers); Henry v. Clarksdale Municipal Separate School Dist.,

supra; United States v. Greenwood Municipal Separate School Dist.,

supra; united States v. Indianola Municipal Separate School Dist.,

supra; Valley v. Rapides parish School Bd., No. 29237 (5th Cir.,

March 6, 1970); Cato v. Parham, 297 F. Supp. 403, 409-10 (E.D.

Ark. 1969); Swann v. Charlotte-Mecklenburg Bd. of Educ., supra; 

Spangler v. Pasadena City Bd. of Educ., Civ. No. 68-1438-R 

(C.D. Cal., March 12, 1970); Andrews v. City of Monroe, No. 29358 

(5th Cir., April 23, 1970).
The district seeks to avoid meeting its responsibility by 

claiming adherence to educational theories purportedly unrelated 

to race but which may "inadvertently" contribute to the mainten­

ance of segregated schools. "Standards of placement cannot be 

devised or given application to preserve an existing system of 

imposed segregation. Nor can educational principles and theories 

serve to justify such a result." Dove v. Parham, 282 F.2d 256,

258 (8th Cir. 1960); accord, Brooks v. County School Bd. of

-50-



Arlington County, 324 F.2d 303, 308 (4th Cir. 1963); Ross v. Dyer, 

312 F .2d 191, 196 (5th Cir. 1962).

The district relies upon the "neighborhood school theory" to 

support the area-based concept of assignment incorporated in its 

plan, and upon a theory of the ideal social class mix to support 

its 40%-Negro enrollment limitation at schools which whites attend.

The so-called neighborhood school concept is a recent

invention of school districts which were more than willing to pay
49/

it no heed in the past in order to maintain segregation. There 

is reason to believe it has been honored more in the breach than 

in performance., Weinberg, Race and Place -- A Legal History of 

the Neighborhood School, (U.S. Gov't Printing Office, Catalogue 

No. FS 5.238:38005, 1967). "When racial segregation was required 

by law, nobody evoked the neighborhood school theory to permit 

black children to attend white schools close to where they lived 

. . . . The neighborhood school theory has no standing to

override the Constitution." Swann v. Charlotte-Mecklenburg Bd. 

of Educ., supra, 300 F. Supp. at 1369 (emphasis in original).

In the face of the evidence presented at the April hearings 

concerning racial discrimination with regard to housing, continued 
reliance by the school board upon the so-called neighborhood 

school theory is ludicrous; in light of this Court's prior mandate 

in this case, Norfolk may not employ the sham of the "neighborhood 

school educational theory" in order to beningnly permit zone lines 

following racial patterns to effectively contain black students in

49/ E_.G., School Bd. of Warren County v. Kilby, 259 F.2d 497
(4th Cir. 1958); Goins v. County School Bd. of Grayson County, 
186 F. Supp. 753 JW75T V a . ~ T stay denied, 282 F.2d 343 
(4th Cir. 1960).

51



all-black schools. If the Equal Protection Clause does not

enjoin those who discriminated in the past (through school site

selection, state encouraged if not mandated housing segregation

and compulsory racial school segregation) to undo the effects of

such discrimination, then the right assured black children rests

on quicksand. Truly black children would be effectively excluded

from the protection of the law. In Louisiana v. United States,

380 U.S. 145, 154 (1965), cited by the Green court, it was held:

The court has not merely the power 
but the duty to render a decree which 
will so far as possible eliminate the 
discriminatory effects of the past as 
well as bar like discrimination in the 
future.

The only effective remedy is to destroy the incentive to move to 

a particular area of the city where housing patterns make it 

doubtful that school desegregation will take place under simple 

zoning, by completely desegregating every school in the system.

Extensive testimony was taken in the district court concerning 

the "social class” theory which the Board's plan employs in 

tandem with the neighborhood or area-based school assignment 

concept, to perpetuate segregated schools in Norfolk. No other 

course was possible. Neither plaintiffs nor the united States 

could permit the assertions of the school board concerning the 

source and validity of the "Principles" to be uncontradicted. The 

district judge evidently found those facts as the school board 
presented them. We suggest that such findings were clearly erroneous

- 52



in light of innumerable testimonial inconsistencies and the basic 

agreement among all the expert witnesses that (1) the research upon 

which Norfolk relies is fragmentary, tenative and open to 

considerable doubt, and (2) the Stolee plan was the best plan 

that could be devised to desegregate all the schools in the system 

without regard to any quota or area-based limitations.
It is not necessary to the disposition of this appeal, 

however, for this court to resolve such factual issues. The Court 

need not undertake the burden of poring through this lengthy 

record to familiarize itself with achievement testing, ability 

grouping, socio-economic indicators and a hundred other such 

matters.
The plan proposed by the board directly violates the Fourteenth 

Amendment in classic fashion. It establishes and enforces an 
invidious classification scheme which results in minimal educational 

opportunities, by the board's own admission, for over half of all 

black children in Norfolk. It is a direct attack upon the legal 

principle of Brown v. Board of Education —  that separate 

educational facilities are inherently unequal and cannot be 

justified by any State policy, on whatever hypothesis that policy 

might be based. As a matter of law any plan which baldly retains 

segregation must be stricken whatever its purported justification.

The Board could hardly have adopted an approach more 

inconsistent with the Fourteenth Amendment than this one, which

53



denies an equal chance to more than half of Norfolk's black

schoolchildren because fate has made them black, or low class.

It could hardly have adopted an approach more deprecating to the

black students and parents of .Norfolk. Nor could the board's

approach be more inconsistent with the ideals of American education:

What it is saying is that it is something 
wrong, that something very bad will 
happen if you go to school with poor 
people, working class people or black 
people. . . .The American school system
was not set up to foster any credo or any 
ethos regarding social class. So to try 
and build school policy and develop a 
school system around social class is 
repulsive to the average administration 
or the average person who has done a lot 
of thinking about what the American school 
system should be like and where it should 
be headed.

. . . to pick out a racial or an ethnic
group and set a quota is also repulsive.
To make invidious comparisons about this 
racial group is repulsive.

(26 Tr. 105)(Dr. Brazziel).

The Board's plan is unquestionably racial in design and 

effect -- and, we suggest, in motivation. We agree with the 

characterization of it in the Brief for the United States in the 

companion appeals, Nos. 14,276 and 14,278 [Franklin City and 

Southampton County].
We urge this Court to turn back Norfolk's attack upon Brown 

promptly and forcefully.

54



II

THIS COURT SHOULD PERMIT NO FURTHER 
DELAY IN ELIMINATING NORFOLK'S DUAL 
SCHOOL SYSTEM BUT SHOULD ORDER THE 
IMPLEMENTATION OF THE ALTERNATIVE 
PLAN IN THIS RECORD WHICH WILL MAKE 
ALL OF NORFOLK'S SCHOOLS UNITARY 
SCHOOLS

At the October hearings the government's expert witness,

Dr. Michael Stolee, presented and explained an alternative plan 

which would totally desegregate Norfolk's schools (see pp. 26-29, 

supra). Dr. Stolee's plan adopts many of the premises of the 

Board's plan and applies them in a manner which effectually 

desegregates each school in the system. For example, in deference 
to the Board's preference for "majority-white schools," the 

alternative plan is so designed that 62 of the 67 schools will have 

student bodies within a 10% range of the Board's proposed 40% 

limitation (GX 18, 10/69). Under the Board's plan, there will be 

only six such schools under Phase 1 and ten such schools under 

Phase 2 (GX 3, 10/69).

Each of the techniques utilized by Dr. Stolee was also 

employed by the school board, although not to the same extent 

(27 Tr. 38) .

This Court's response to Alexander, supra, was made clear in 

Nesbit v. Statesville City Bd. of Educ., supra, and in Stanley v. 

Darlington County School Dist., supra, where the Court recognized 

the urgency of the mandate of Alexander and ordered specific relief 

in accordance with a specific timetable. In Nesbit, the Court stated

55



That recent decision of the Supreme 
Court teaches "fujnder explicit holdings 
of this Court the obligation of every 
school district is to eliminate dual 
school systems at once and to operate 
now and hereafter only unitary schools."
The clear mandate of the Court is 
immediacy. Further delays will not be 
tolerated in this Circuit. No school 
district may continue to operate a dual 
system based on race.

In the five cases decided under the Nesbit title and in 

other school desegregation appeals heard by this Court since 

that time, specific decrees to insure the earliest possible 

conversion to a unitary system have been the practice.

All of the witnesses, including Dr. McLaulin, agreed that 

given Dr. Stolee's purpose (desegregating all of the schools 

without reference to an area-based or quota limitation), the 

plan was as good as could be drawn (28 Tr. 97-98, 27 Tr. 173-75) . 

The Stolee plan can be and should be implemented no later than 

the commencement of the 1970-71 school year.

The Fifth Circuit also has recently been ordering such

relief. . E_.<j., United States v. Board of Educ. of Baldwin County,

No. 28880 (5th Cir., March 9, 1970):
Since the HEW plan is the only one 
currently available that gives any 
promise of ending the dual system, 
we must order its implementation. . . .

Similarly, this Court must now order the implementation of 

the Stolee plan, since it is the only plan in this record that 

gives any promise of ending the dual system. Such relief is

56



particularly necessary because the court below has made it crystal

clear that it will not order substantial relief in favor of the
55/

black plaintiffs.

Counsel Fees
The plaintiffs-appellants are entitled to an award of counsel 

fees to be taxed as costs aginst the school board for the efforts 

of their counsel, both in the district court and in this Court. 

Rarely has any court confronted a situation so extreme as the, 

reckless disregard of plain duty (and precedent) and the long- 

continued pattern of evasion by a defendant as is reflected by 

casual observation of this record. A remand to the district 
court, which denied plaintiffs any relief, would be a futile 

gesture. Surely the equitable relief will not be complete unless 

this Court determines that plaintiffs are entitled to an award of 

substantial attorneys fees.

55/ Some examples of the hostility of the district court
to the plaintiffs and plaintiff-intervenor are set out below:

Refusal to grant the Motion for Injunction pending 
Appeal Requiring the Board to Implement by September 
of 1969, a plan for complete faculty desegregation 
[despite numerous requests, the court refused to 
accelerate the board’s two-year schedule for faculty 
desegregation], desegregation of Booker T. Washington 
High School, and additional elementary and junior 
high school desegregation (20 Tr. 365-66).

Refusal to grant the Motion for Order requiring 
the Board, pending litigation, to finalize the 
approach suggested by Dr. Stolee providing for 
relief for 1969-70— in a discussion of this motion,
Judge Hoffman stated:

They [the school board and division superin­
tendent] are not going to get an adverse 
decision by this Court because I have made 
myself perfectly clear on that. (20 Tr. 367-69).

-57-



55/ [continued]
Forcing the united States' attorneys to divulge 

what information they were seeking to elicit 
during examination of a hostile witness (12 Tr. 161-65)

Attempt to limit the evidence at the commencement 
of the spring, 1969 hearings (12 Tr. 36-50).

Attempt to impugn the integrity of the United 
States' attorneys (12 Tr. 36-50).

Express refusal to require adequate transportation 
to implement desegregation:

[D]uring the course of trial, the Court 
expressed itself freely on the subject of 
bussing and advised counsel that _it would 
not be ordered by this judge.

(302 F. Supp. at 25)(emphasis supplied).

-58



CONCLUSION

The immediate and personal constitutional rights for which 

vindication was sought in this, litigation exactly 14 years ago 

have been irrevocably lost. The irreparable harm, proscribed by 

Brown nearly 16 years ago has been inflicted on children of tender 

age (and their parents) because of the actions of the very men 

who take sworn oaths to defend the constitution of the United 

States. The inability of the judicial process to grant relief 

over such a protracted period has raised questions which challenge 

the foundations on which rest the structure of our government. 

Prompt and decisive action by this court is imperative.
WHEREFORE, for all of the above reasons, the judgment below 

should be reversed, and this court should enter an order requiring 

(a) the implementation of the one currently available plan that 

gives any promise of ending the dual system —  the Stolee plan 

(GX 18-C)—  ; (b) that the board be required to desegregate the

Booker T. Washington High School no later than the fall of 1970; 

(c) that the faculties of each school be assigned in accordance 

with the requirements of Nesbit; (d) an award of substantial

attorneys’ fees to plaintiffs; appellants further pray that this 

Court award them their costs, reasonable attorneys' fees on the

59



appeal, and for such other relief as to this court may 

appear appropriate and just.

Respectfully submitted,

HENRY L. MARSH, III
S. W. TUCKER

216 East Clay Street 
Richmond, Virginia 23219

VICTOR J. ASHE
1134 Church Street 
Norfolk, Virginia 23510

J. HUGO MADISON
1017 Church Street 
Norfolk, Virginia 23510

LOUIS R. LUCAS
525 Commerce Title Building 
Memphis, Tennessee 38103

JACK GREENBERG
JAMES M. NABRIT, III
NORMAN J. CHACHKIN

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

60



A P P E N D I X



Kv:::.r

Hv'""

T A B L E  1



Table 1

Student Enrollment projections Under Board's Long-Range plan
(See GX 3, 10/69)

All-White Schools:

Elementary Schools , . . 
junior High Schools . . 
Total-Elementary & Jr. 
High Schools (phase 1) 
Total-All grade levels

(Phase 1) .......
High ^Schools (phase 2) 
Total-All Grade levels 

(Phase 2) .......

All-Black Schools:
Elementary Schools - . . 
Junior High Schools - . 
Total-Elementary & Jr. 
High Schools (phase 1) 
Total-all grade levels

(Phase 1) .......
High Schools (Phase 2) 
Total-all grade levels 

(Phase 2) .......

High

High

Numbe r 
of

Schools

White
Students
Enrolled

% of All 
White 
Students, 
This Grade 
Level

Black
Students
Enrolled

% of All 
Black 

Students, 
This Grade 
Level

Total
Students
Enrolled

% of All 
Students 
This Grade 

Level

. 10 . . ... 6240 .. ... 35.3 ... . . . 0 . . .___  0 .... . 6240 ... ... 19.6
1 1475 .. 21*3 * * * . . . . 0 . . . . ,. 1475 ... ... 12.5

. 11 ... .. 7715 .. ... 31.4 ... . . . 0 . . .___  0 ____. 7715 ... ... 17.7
o 0 . . 0 . . .. . . 0 . . .. . . . 0 . . . . 0 . . . 0

. 11 ... .. 7715 .. 24.2* .. . . . 0 . . .___  0 ____. 7715 ... ___ 14.0*
0 . . . 0 . . 0 0 . . 0 0 0

. 11 ... .. 7715 .. 24.5* 0 0 7715 14.2*

. 19 ------ 0 . . . . o . . . . .  1 0 , 80 0  . . . . 7 6 . 4 . . 1 0 , 8 0 0  ............. 2 4 . 0
? . . . . 0 . . . . 0 . . .  2 ,175  . . . . 4 4 . 5 . .  2 ,175  ............ 1 8 . 4

. 2 1 ____ 0 ____ o . . . . .  1 2 ' 9 7 5  ____ 68 .2 12,975 2 9 . 8

. 0 ____ 0 ____ o . . ...............  0 ____ 0 0 0

21 ....  0 ....  0 ....  12,975 ___  55.8* 12,975 .....  23.6
0 ___ 0 ___ 0 . .......  0 ___ 0 ... . . . . 0 ..... 0

. 2 1 ___ 0 ___ 0 . .... 12,975 ___ 56.7* 12,975 ..... 23.9*



Number
of

Schools

Schools Attended by Students 
of One Race Only:

Elementary Schools.............29 ... .
Jr. High Schools............... 3....
Total-Elementary & Jr. High....32....
High Schools (phase 1)......... 0....
Total-all grade levels

(Phase 1)............... 32 ... .
High Schools (Phase 2)........ 0....
Total-all grade levels

(Phase 2)...................32....

Biracial Schools Enrolling 
Less Than 10% Black Studentsi**

Elementary Schools.............. 4
Jr. High Schools................ 0
Total-Elementary & Jr. High.... 4
High Schools (Phase 1)....... ..1
Total-all grade levels

(Phase 1)....................5
High Schools (Phase 2)...... ...0
Total-all grade levels

(Phase 2) . . .................. 4

% of All 
White

White Students, Black
Students This Grade Students 
Enrolled Level Enrolled

% of All 
Black
Students, Total 
This Grade Students 

Level Enrolled

% of All 
Students 
This Grade

Level

. 6 2 4 0 . . . . . . . .  3 5 . 3  . . . .  1 0 , 8 0 0 ........... . . 7 6 . 4 . . ____ 1 7 , 0 4 0 . . 5 3 . 5

. 1 4 7 5 . .................2 1 . 3 _____  2 , 1 7 5 ........... . . 4 4 . 5 . . ____  3 , 6 5 0 . . . .  3 0 . 9

. 7 7 1 5 . .................3 1 . 4 _____ 1 2 , 9 7 5 ............. . . 6 8 . 2 . . . . . 2 0 , 6 9 0 . 4 7 . 4
0 . ................. 0 _____ 0 ............ . . 0 . . 0 . ...........  0

. 7 7 1 5 . .................2 4 . 2 * . . . 1 2 , 9 7 5 . . . . . . . 5 5 . 8 * . _____2 0 , 6 9 0 . 3 7 . 6
0 . . .  0 ____  0 . ...........  o

. 7 7 1 5 . .................2 4 . 5 * .  . . 1 2 , 9 7 5 ............. . . 5 6 . 7 * . _____2 0 , 6 9 0 . 3 8 . 0

, .1945.___ . . .11.0.. . ___ 145____ ___ 1..0______2,090.. . ___ 6.6
0 . . . .  . . . . 0 __ ___  0 ____ ___ 0 ____  0. . . ___ 0

7.9. 145 ____ 0..8_______ 2,090.. . ___ 4.8
. . .30.7. . . ____ 220_____ ____ 5..2____ ____ 2,440.. . . . .21.3

13 1• • » X • x # • •____ 365____ . . . . 1,.6____ ____ 4,530. . . . . . 8.2
0 ........... . . . 0 . . . ____  0 ____ ____ 0 ____  0. . . . . . 0

.145 0.61945. . 6 . 2 2,090___ 3.8



Number White 
of Students

Schools Enrolled

Biracial Schools Enrolling Less 
Than 10% White Students:**

Elementary Schools......... ....0  ...0 ....
Junior High Schools.............1  20 ....
Total-Elementary & Jr. High....l ....... 20 ....
High Schools (phase 1)....... 1 ........ 7 ....
Total-all grade levels

(Phase 1)................... 2 ....... 27 ....
High Schools (Phase 2)........ .0   0 ....
Total-all grade levels

(Phase 2).................. 1 ....... 20 ....

Schools Enrolling Less Than 
10% Black Students:**

Elementary Schools.... .........14 .....8185
Jr. High Schools....... ......... 1 .....1475
Total-Elementary & Jr. High...15 .....9660
High Schools (Phase 1) .. ...... . 1 ..... 2220
Total-all grade levels 

(Phase 1) ........... , . ......16 ___ 11880
High Schools (phase 2),........  0 ___  0
Total-all grade levels

(Phase 2)........ 15 ... 9660

% of All 
White

Students, Black
This Grade Students 

Level Enrolled

% of All 
Black
Students, Total 
This Grade Students 

Level Enrolled

% of All 
Students 
This Grade 

Level

0
___ 0.3 .
....0.08. 
....0.09.

____0.08.
___ 0

___ 0.06.

...46.4.. 

...21.3.. 

...39.3.. 

...30.7..

...37.3.. 

. . . 0 . .

. . o ......... 0 ____ ..0 ........ 0

. 8 8 0 ........ 1 8 - 0 ____ 900 ..... 7 . 6

. 8 8 0 4 . 6  900  • «••••«• * • ® • . . 2 . 1
2268 5 3 . 7  2275 .1 9 . 9

3148 ........ 1 3 .5 . . . 3 1 7 5 .......  5 . 8
0 ........  0 ... 0 .......  0

___  880 ........  3.8... 900 .......  1.7

.145 ........ 1.0. ..8330 ... ___ 26.2

. 0 ........ 0 ...1475 ... 12.5
145• •••••••• 0.8. ..9805 ... ___ 22.5

. 220 ......... 5.2. ..2440 ... ___ 21.3

. 365 ........ 1.6. .12245 ... ____22.2

. 0 ........ 0 . 0 . . .___  0

30.7 145 0.6.. 9805 18.0



Numbe r White
of Students

Schools Enrolled

Schools Enrolling Less Than
10% White Students:**

Elementary Schools.......... . . . 19 .. ...... 0 . .
Jr. High Schools............ . . . 3 . . .
Total-Elementary & Jr. High. ...22 ... ___ 20 . .
High Schools (phase 1)..... . . . . 7 . .
Total-all grade levels

(Phase 1)............... ...23 ... ___ 27 . .
High Schools (Phase 2)..... . . . 0 . . .___  0 . .

Total-all grade levels
(Phase 2)................. ...22 ...

Schools Enrolling Less Than 
10% Students of Opposite 
Race From Majority:**

Elementary Schools.......... ...33 .. --- 8185
Jr. High Schools............ . . . 4 . .--- 1495
Total-Elementary & Jr. High. ...31 .. --- 9680
High Schools (Phase 1)...... --- 2 . . ---  2227
Total-all grade levels

(Phase 1)............... ...39 •• ...11907
High Schools (phase 2)..... 0
Total-all grade levels

(Phase 2)........ 37 9680

% of All 
White
Students, Black 
This Grade Students 

Level Enrolled

% of All
Black % of All
Students, Total Students 

This Grade Students This Grade 
Level Enrolled Level

0 .....  10,800.. ..76.4 ....  10,800. . ....34.0
0.3 ......  3,055.. . . 62.5 _____ 3,075... ...26.0
0.08. .....  13,855.. ..72.8 ....  13,875... ...31.8
0.09. .....  2,268. ...53.7 ....  2,275... ...19.9

COo•o ..... 16,123. . ..69.4 .... 16, 150. . . ...29.3
0 .....  0. .. . 0 ....  0. . .__ 0

0.06. ••••••13,855.. . . 60.5 ... ..13,875... ...25.5

. . .46.4- ...... 10,945.. ..77.5. ...60.2

...21.6. «•••••• 3,055.. . . 62.5. ..... 4,550... ...38.5

...39.4. . ...... 14,000. .. . 73.6. ....  23,680... ...58.3

...30.8. ......  2,488.. . . 59.0. ....  4,715... ... 41.15

...37.4. ......  16,488. . •0̂•or-•• ....  28,395. . -...51.6

. . . 0 .......  o.... o .....  o... . . . 0

30.7 14,000. .61.1 23,680 43.5



All-White or Majority- 
White Schools:

Number White 
of. Students

Schools Enrolled

Elementary Schools ............ 31 .....  17,150
Jr. High Schools............. 6 ......  6,385
Total-Elementary & Jr. High ...37 ......23,545
High Schools (phase 1 ) ......  3 ......  6,304
Total-all grade levels

(Phase 1) ...........    40 .....  29,839
High Schools - (phase 2).....  5 ...... 6,900
Total-all grade levels

(Phase 2).................  42 ...... 30,435

All-Black or Majority- 
Black Schools:

Elementary Schools .... ....... 2 1 ---- .... 165
Jr. High Schools ..... ..... . . 4 --- .... 550
Total-Elementary & Jr. High ... 25 . . .. .... 715
High Schools (phase 1). .......  2 --- .... 933
Total-all grade levels 

(Phase 1).......... ....... 2 7 ____ --- 1648
High Schools (phase 2). ---  0
Total-all grade levels

(Phase 2)........ . 25 715

% of All 
White
Students, Black 
This Grade Students 

Level Enrolled

% of All 
Black

Students, Total 
This Grade Students
Level Enrolled

% of All 
Students 
This Grade

Le ve 1

.97.13 .... 2715 .... . . 19.2 ... .19,865 .... £2.5

. 92.1 ... . . 1190 .... . . 24.3 ___  7,475 .... £3.2

. 95.8 ....  3905 ...... 20.5 . . . 27,450 .... 62.9

.87.1 ....  905 •••••*• 21*4 ... 7,209 .... 62.9

. 93.8 .... 4810 ...... 20.7 .. . 39,094 .... 71.0
100.0 ....  3875 .....  100.0 .. . 10,775 ---  .100.0

. 96.6 . . . . . 7780 .....  34.0 ... 38,215 .... 70.3

. 0..9 --- JL1,585 • - - --- 82. .0 • • • 11,750 • - ■• . - 37..0

. 8..0 • • • • • 3,700 ••• --- 75. .7 . . • 4,250 - • •• • • 35..9

. 2..9 .... 15,285 ... ..•.80..4 • •• 16,000 . . - 36..7
12..9 ---  3,315 . • •--- .78. .6 .- . 4,248 • • .. . . 36..7

5..2 .... 18,600 • • •--- 80. .0 . . • 20,248 • • •. . . 36,.8
0 ---  o ... ---  0 0 • •. . . 0

2..3 ---  15,285 ... .8 .. . 16,000 . •. . . 29,.4



% of All % of All
White Black % of All

Number White Students, Black Students, Total Students
of Students This Grade Students This Grade Students This Grade

Schools Enrolled Level Enrolled Level Enrolled Level

All Schools;
Elementary........ < .- 17,655 •...100.0 --- ..14,130 .. . . 100.0 .. .. . . 31,785. ....100.0
jr. H i g h ........... .. 6,935 ....100.0 --- ... 100.0 . . .. . 11,825. ....100.0
Total-Elementary & Jr. High.... 62 . ...24,590 ....100.0 --- ..19,020 .. . . 100.0 ..., . . 43,610. ....100.0
High Schools (phase 1) • .. 7,237 •..•100.0 .... .. 4,220 .. . . 100.0 ..., . . 11,457*. ...100.0
Total-all grade levels

(Phase 1)..... . ....... 67 . . . . 31,827*. ...100.0 --- . . 23,240*. . . . 100.0 .... . . 55,067*. . .. 100.0
High Schools (phase 2). .......  5 • •.. 6,900*. ... 100.0 .... . . 3,875*. . . . 100.0 ... ...100.0
Total-all grade levels

(Phase 2) .... • • 31 , 490** * • • 100.0 * * *• . . 22,895*. •••100.0 ••«, . . 54,385*. ...100.0

* Figures may differ because phase 1 projections based on actual 1969-70 enrollment; phase 2 
projections on school board estimates.

** Cf. 27 Tr. 34 (Dr. McLaulin):
Q. Now, what is the definition of desegregated schools under this projection?
A. A school which enrolls no more than 90 per cent of children of one race, and 

that is a school which enrolls at least 10 per cent white pupils or 10 per cent 
Negro pupils.



District Court Opinion of May 19, 1969 

[302 F. Supp, 18]



IN THE 
FOR THE

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF VIRGINIA 
Norfolk Division

L e o l a  P e a r l  B e c k e t t ,  e t  a l ,  )

P l a i n t i f f s ,  )
)

and )

C a r l o t t a  M o z e l l e  B re w e r ,  e t  a l ,  )
and U n i t e d  S t a t e s  o f  A m e r i c a ,  )

) C i v i l  A c t i o n  No. 2 2 iA
P l a i n t i f f  -  I n t e r v e n o r s , )

V. )

The S c h o o l  Board  o f  t h e  )
C i t y  o f  N o r f o l k ,  e t  a l ,  )

D e f e n d a n t s .  )

MEMORANDUM

In a m a t t e r  i n v o l v i n g  t h e  b e t t e r  p a r t  o f  

s e v e n  days  o f  t e s t i m o n y ,  t o  s a y  n o t h i n g  o f  t h e  m u l t i t u d e  

o f  e x h i b i t s  and p r e t r i a l  p r o c e e d i n g s , p r u d e n c e  d i c t a t e s  

t h a t  a c o n s i d e r e d  o p i n i o n  i s  i n  o r d e r .  N e v e r t h e l e s s ,  

c o m p e l l i n g  r e a s o n s  a r e  p r e s e n t e d  w h i c h  r e q u i r e  a 

d e c i s i o n  a t  t h i s  p a r t i c u l a r  t i m e  i n  o r d e r  t o  a l l e v i a t e ,  

s u b j e c t  t o  a p p e l l a t e  r e v i e w ,  t h e  u n r e s t  e x i s t i n g  among 

s c h o o l  c h i l d r e n  and t h e i r  p a r e n t s  i n  t h e  C i t y  o f  N o r f o l k  

a n d ,  i n  a d d i t i o n ,  t o  e x p e d i t e  an a p p e a l  w h i c h  has  been  

c l e a r l y  i n d i c a t e d .  R e s e r v i n g  t h e  r i g h t  t o  a m p l i f y  o r  

m o d i f y  t h e  v i e w s  e x p r e s s e d  h e r e i n  f o l l o w i n g  t h e  c o m p l e ­

t i o n  o f  t h e  t r a n s c r i p t ,  t h e  C o u r t ,  a s s u r e d  o f  t h e  

s o u n d n e s s  o f  i t s  c o n c l u s i o n ,  has o r a l l y  d i r e c t e d  an 

o r d e r  a p p r o v i n g  t h e  i n t e r i m  p l a n  f o r  t h e  1 9 6 9 - 7 0  s c h o o l  

y e a r  as s u b m i t t e d  by t h e  S c h o o l  B o a r d ,  c a l l i n g  f o r  a 

- c o n t i n u a t i o n  o f  t h e  m o d i f i e d  f r e e d o m - o f - c h o i c e  p l a n  i n



-2-

t h e  e l e m e n t a r y  and j u n i o r  h i g h  s c h o o l s  and t h e  a d o p t i o n  

o f  t h e  p r o p o s e d  g e o g r a p h i c  z o n e  p l a n  f o r  t h e  s e n i o r  

h i g h  s c h o o l s .  The s u b m i s s i o n  o f  t h e  f i n a l  p l a n  w i l l  ' .

r e m a in  as h e r e t o f o r e  o r d e r e d  a t  t h e  h e a r i n g  on  A p r i l  2 ,

1 9 6 9 ,  t o - w i t ,  on  o r  b e f o r e  June 2 3 ,  1 96 9 .  The t im e  

s c h e d u l e d  f o r  f i l i n g  o b j e c t i o n s  t o  t h e  f i n a l  p l a n  i s  

J u l y  7 ,  1 9 6 9 ,  a t  w h i c h  t i m e  a p r e t r i a l  c o n f e r e n c e  w i l l  

be  c o n d u c t e d .  A h e a r i n g  on  o b j e c t i o n s ,  i f  a n y ,  i s  

f i x e d  f o r  S e p te m b e r  3 ,  1969 .

S i n c e  t h e  N o r f o l k  s c h o o l s  r e o p e n e d  on  

F e b r u a r y  2 ,  1 9 3 9 ,  f o l l o w i n g  t h e  s c h o o l - c l o s i n g  days  

i n  S e p te m b e r  1 95 8 ,  t h e  c i t i z e n s  o f  N o r f o l k  hav e  

a c c e p t e d  i n t e g r a t i o n  w i t h  m in im a l  c o m p l a i n t .  P r o g r e s s i v e l y ,  

as c o u r t  d e c i s i o n s  h a v e  b r o a d e n e d  t h e  s c o p e  o f  t h e  term s  

" d e s e g r e g a t i o n "  and " i n t e g r a t i o n , "  t h e  S c h o o l  B o a r d . h a s  

i n  g o o d  f a i t h  e n d e a v o r e d  t o  k e e p  up  w i t h  t h e  s w e e p i n g  

c h a n g e s .  I n d e e d ,  t h e  S c h o o l  Board  and i t s  a d m i n i s t r a t i v e  

s t a f f  now r e c o g n i z e  t h a t  r e s e a r c h  has d e v e l o p e d  t h e  

c o n c l u s i o n  t h a t  d e s e g r e g a t e d  s c h o o l s ,  w h e re  t h e  m a j o r i t y  

i n  a t t e n d a n c e  a r e  w h i t e ,  a r e  b e n e f i c i a l  t o  w h i t e  and 

b l a c k  a l i k e .  H ow ever ,  t h i s  same r e s e a r c h  l e a d s  t o  

t h e  c o n c l u s i o n  t h a t  w here  t h e  m a j o r i t y  i n  a t t e n d a n c e  

a t  a p a r t i c u l a r  s c h o o l  a r e  b l a c k ,  t h e  N e gro  d o e s  n o t  

b e t t e r  h i m s e l f  and t h e  w h i t e  c h i l d  s u f f e r s  a p p r e c i a b l y .  ̂I ')

(1) The so-called optimal plan of desegregation as 
suggested by counsel for the School Board on 
April 2 ,  1 96 9 ,  is predicated upon the results 
of these various research projects. To the 
extent reasonably possible, the School Board's 
permanent plan contemplates that from 20% to 407o 
of the Negro children will attend the racially

(continued)



W ith  t h i s  i n  m in d ,  t h e  S c h o o l  Board  a p p r o a c h e d  t h e  

difficult p r o b le m s  c o n f r o n t i n g  i t  f o l l o w i n g  t h e  

remand i n  Brewer v .  School Board of C i t y  of Norfolk, 
V i r g i n i a , 397 F . ( 2 d )  37 ( 4  C i r . , 1 9 6 8 ) ,  r e h e a r i n g  

en ban c  d e n i e d  on  o r  a b o u t  O c t o b e r  7 ,  1 9 6 8 .  The 

m a j o r i t y  o p i n i o n  i n  t h a t  c a s e  has  b e e n  d e s c r i b e d  by 

t h e  u n d e r s i g n e d  as v a g u e  and c o n f u s i n g  i n  t h a t  i t  s e t s  

f o r t h  e x c e r p t s  f ro m  many d e c i s i o n s  but  e s t a b l i s h e s  no 

g u i d e l i n e s  f o r  a c c o m p l i s h i n g  t h e  o b j e c t i v e s  s t a t e d  an d ,  

a d d i t i o n a l l y ,  im p o se s  an i m p o s s i b l e  b u r d e n  u p on  t h e  

C o u r t  and t h e  S c h o o l  B oa rd .

Brewer  was d e c i d e d  f o u r  days  a f t e r  t h e  

Supreme C o u r t  handed  down i t s  o p i n i o n s  i n  G reen  v .

C o u n t y  S c h o o l  B o a r d , 391 U .S .  430 ( 1 9 6 8 ) ,  Raney  v .

Bo a rd  o f  Edu c a 1 1o n , 391 U .S .  443 ( 1 9 6 8 ) ,  and M onroe  

v .  Board  o f  C o m m i s s i o n e r s , 391 U .S .  450 ( 1 9 6 8 ) .

C o n f r o n t e d  w i t h  a new t w i s t  i n  t h e  la w ,  t h e  S c h o o l  

B oard  a p p l i e d  f o r  a r e h e a r i n g  en ban c  w h i c h  was d e n i e d
V

on  o r  a b o u t  O c t o b e r  7 ,  1968 .  The m andate  was r e c e i v e d  

by t h e  d i s t r i c t  c o u r t  on  O c t o b e r  9 ,  196 8 .

C o u n s e l  d i d  n o t  r e q u e s t  any a c t i o n .  P e r s o n a l  

p r o b l e m s  i n v o l v i n g  i l l n e s s  d e l a y e d  im m e d ia t e  a c t i o n  by 

t h e  j u d g e .  On November 2 9 ,  196 8 ,  an o r d e r  was e n t e r e d  

su a  s p o n t e  c o n v e n i n g  a p r e t r i a l  c o n f e r e n c e  o n  D ecem ber  2 7 ,  

1 9 6 8 ,  and c a l l i n g  f o r  s p e c i f i c  i n f o r m a t i o n  r e l a t i v e  t o  1

( 1 )  ( c o n t i n u e d )  m ixed  s c h o o l s ,  thus  l e a v i n g  a 
m a j o r i t y  o f  w h i t e  c h i l d r e n  i n  m ost  s c h o o l s  
w h i c h ,  a c c o r d i n g  t o  r e s e a r c h  s t u d i e s ,  i s  c o n ­
d u c i v e  t o  s ound  e d u c a t i o n a l  p r i n c i p l e s .  W h i l e  
t h e  o p t i m a l  p l a n  w i l l  n o t  r e s u l t  i n  a l l  s c h o o l s  
b e i n g  i n t e g r a t e d  t o  t h e  e x t e n t  m e n t i o n e d  a b o v e ,  
t h e  p l a n  d o e s  c o n t e m p l a t e  t h a t  e v e r y  c h i l d  i n  t h e
s c h o o l  s y s t e m  w i l l  a t t e n d  an i n t e g r a t e d  s c h o o l

( c o n t i n u e d )



( 1 )  t h e  m i n im a l  o b j e c t i v e  t i m e t a b l e  f o r  f a c u l t y  

d e s e g r e g a t i o n ,  ( 2 )  t h e  l o c a t i o n ,  r e l o c a t i o n ,  c o n -  

c o n s t r u c t i o n  o r  r e c o n s t r u c t i o n  o f  B o o k e r  T.  W a s h in g t o n  

High S c h o o l ,  ( 3 )  c o u n s e l ' s  . i n t e r p r e t a t i o n  o f  B r e w e r ,

( 4 )  t h e  p r o d u c t i o n  o f  t h e  r e p o r t  r e l a t i v e  t o  t h e  s i t e  

l o c a t i o n  o f  t h e  new B o o k e r  T. W a s h in g t o n  H igh  S c h o o l  

as p r e p a r e d  by t h e  e x p e r t  e m p lo y e d  by t h e  C i v i l  R i g h t s  

D i v i s i o n  f o l l o w i n g  t h e  d i s t r i c t  c o u r t  o p i n i o n  i n  

B r e w e r , ( 5 )  a r e q u i r e d  s t a t e m e n t  by  t h e  NAACP and 

t h e  C i v i l  R i g h t s  D i v i s i o n  t o  be  made a t  t h e  p r e t r i a l  

c o n f e r e n c e  as t o  o b j e c t i o n s ,  i f  a n y ,  t o  t h e  e x i s t i n g  

p l a n  w i t h  r e s p e c t  t o  t h e  e l e m e n t a r y  and j u n i o r  h i g h  

s c h o o l s ; t h i s  due t o  t h e  f a c t  t h a t  Brewer  d e a l t  o n l y  

w i t h  t h e  s e n i o r  h i g h  s c h o o l  p l a n , a n d  ( 6 )  t h e  r e q u i r e d  

d i s c l o s u r e  a t  t h e  p r e t r i a l  c o n f e r e n c e  o f  t h e  S c h o o l  

B o a r d ' s  p l a n s  o r  c o n t e m p l a t e d  p l a n s  r e l a t i n g  t o  

c o n s t r u c t i o n  o f  f u t u r e  s c h o o l s ,  s u b j e c t  t o  one  

l i m i t a t i o n .
V

On Decem ber  19 ,  196S ,  t h e  S c h o o l  Board  f i l e d  

i t s  r e s p o n s e  i n  c o m p l i a n c e  w i t h  t h e  o r d e r  o f  November  2 7 ,  

196 S ,  and f u r n i s h e d  t h e  d e t a i l s  as t o  ( 1 )  and ( 6 )  

a b o v e .

At t h e  p r e t r i a l  c o n f e r e n c e  o n  Decem ber  2 7 ,

1 9 6 8 ,  ( a  t r a n s c r i p t  o f  w h i c h  i s  a v a i l a b l e ) ,  t h e  C i v i l  1

( 1 )  ( c o n t i n u e d )  f o r  a minimum o f  t h r e e  o f  t h e  t w e l v e  
y e a r s  o f  p u b l i c  e d u c a t i o n .  A l l  o f  t h e  f o r e g o i n g  
w i l l  be a m p l i f i e d  i n  a f u r t h e r  d i s c u s s i o n  o f  t h e  
p r o p o s e d  o p t i m a l  p l a n  o f  d e s e g r e g a t i o n .

- 4 -



-5-

f o \Rights Division requestod,  ̂ ' with the concurrence 
of cne NAACP and the School Board, a continuance 
of the hearing to permit "good fai

a c o n s e n t  o r d e r ,

Lie expressing grave doubts as t 
:o 

ie!

any c o n t r o v e r s i a l  c h a n g e s  f o r  t h e  1 9 6 9 - 7 0  s c h o o l  

s e s s i o n , ( 3 )  t h e  C o u r t  g r a n t e d  t h e  c o n t i n u a n c e  u n t i l  

F e b r u a r y  15 ,  1969 .  On F e b r u a r y  6 ,  1 9 6 9 ,  an a g r e e d  

o r d e r  was e n t e r e d  e x t e n d i n g  t h e  t i m e  f o r  f u r t h e r  

c o n f e r e n c e s  u n t i l  March  14 ,  1969 .  On o r  a b o u t  t h e

, jr t o parm i t " g o o d f,

.rd t o t h e ent r y  o

i n Cto or*o a v e d o u b t s as

■grGG171Gn r and w arn in ;

>la c e -h*Lh i s c a o i n a

( 2 )  "Mr. F l a n n e r y  ( C i v i l  R i g h t s  D i v i s i o n ) :  - -

( 3 )

" M ig h t  i t  be  p o s s i b l e ,  s i r - - w e  a r e  v e r y  h o p e f u l  
t h a t  t h e  i s s u e s  i n  d i s p u t e  c a n  be narrow ed*  
d r a s t i c a l l y  s o  as t o  s a v e  t h e  C o u r t ' s  t im e  when 
we come t o  h e a r i n g .  I  am c o n f i d e n t  t h a t  a l l  
i s s u e s  c a n  be  d i s p o s e d  o f  w i t h o u t  h e a r i n g . "

At t h e  subsequent hearing on January>2, 196 9 ,
Mr. Flannery retracted this statement.- \
"The  C o u r t :  Now, t h e s e  a r e  m a t t e r s  t h a t  i f  you
hav e  any  h o p e  o f  r e v i s i n g  a n y t h i n g  f o r  t h e  s c h o o l  
y e a r  b e g i n n i n g  1 9 6 9 ,  t h a t  i s ,  S e p t e m b e r ,  196 9 ,  we 
must a c t  w i t h  e x p e d i t i o n .  I f  I  r e n d e r e d  a d e c i s i o n  
i n  t h i s  c a s e  i n  J a n u a r y ,  w h a t e v e r  t h e r e  w o u l d  be t o  
d e c i d e ,  i t  i s  d o u b t f u l  t h a t  y o u  [Mr.  A s h e ,  NAACP 
c o u n s e l ]  c o u l d - - a n d  I s a y  ' y o u ' - - y o u  o r  t h e  S c h o o l  
Board o r  t h e  U n i t e d  S t a t e s  c o u l d  g e t  t h e  m a t t e r  t o  
t h e  C o u r t  o f  A p p e a l s  f o r  argument  b e f o r e  May o r  
J u n e ,  an d ,  o f  c o u r s e ,  i f  t h e y  t h e n  t o o k  a n o t h e r  
f i v e  months t o  d e c i d e  i t ,  we w o u ld  be o a s t  th e  
s c h o o l  y e a r ,  and as y o u  g e n t l e m e n  know* f ro m  t im e  
im m e m o r ia l ,  when we f i r s t  met h e r e ,  I  do n o t  mind 
c h a n g i n g  t h e  p r o c e d u r e s  a r e a s o n a b l e  t im e  i n  
a d v a n c e  o f  t h e  b e g i n n i n g  o f  any s c h o o l  y e a r ,  but  
y o u  a r e  j u s t  k n o c k i n g  on  t h e  w ron g  d o o r  when y o u  
a s k  me, as a f e d e r a l  j u d g e ,  t o  d i s t u r b  a s c h o o l  
y e a r  t h a t  has  g o n e  p a s t  t h e  t im e  when t h e y  can  
e f f e c t i v e l y  c h a n g e  d u r i n g  t h a t  p a r t i c u l a r  s c h o o l  
y e a r . "



■6 •

l a t t e r  d a t e ,  t h e  C o u r t  r e c e i v e d  l e t t e r s  f r o m  a l l  

c o u n s e l  r e q u e s t i n g  a f u r t h e r  p r e t r i a l  c o n f e r e n c e .

By o r d e r  d a t e d  March 17 ,  19S9 ,  t h e  p r e t r i a l  c o n f e r e n c e  

was s c h e d u l e d  f o r  A p r i l  2 ,  1969 .

F o l l o w i n g  t h e  p r e t r i a l  c o n f e r e n c e  on  

D ecem ber  2 7 ,  1 9 6 8 ,  t h e  NAACP and C i v i l  R i g h t s  

D i v i s i o n  f i l e d  s u b s t a n t i a l l y  i d e n t i c a l  o b j e c t i o n s  

t o  t h e  s e v e n  s c h o o l  c o n s t r u c t i o n  p r o j e c t s  c o n t e m p l a t e d  

f o r  f u t u r e  new s c h o o l s .  As t o  s e v e n  c o n t e m p l a t e d  

m o d i f i c a t i o n s  and r e n o v a t i o n s  t o  e x i s t i n g  s c h o o l  

b u i l d i n g s ,  o b j e c t i o n s  w e re  i n t e r p o s e d  t o  " C l a s s r o o m s  t o  

Accom m odate  K i n d e r g a r t e n  P u p i l s  C i t y w i d e , "  bu t  t h i s  i s  n o t  

o f  c o n s e q u e n c e  a t  t h i s  t i m e  as t h i s  p r o p o s a l  has  n o t  b e e n  

s u f f i c i e n t l y  f o r m u l a t e d .  W ith  r e s p e c t  t o  t h e  s e v e n  

p r o j e c t s  i n v o l v i n g  new c o n s t r u c t i o n ,  on  t h e  l a s t  

day  o f  t h e  h e a r i n g s  (May 9 ,  196 9 )  c o u n s e l  f o r  a l l  

p a r t i e s  a g r e e d  t h a t  t h e  Camp A l l e n  E le m e n t a r y  S c h o o l  

c o u l d  go  f o r w a r d  and o b j e c t i o n s  t o  t h i s  p r o j e c t  w e re  

w i t h d r a w n .  The r e m a i n i n g  i t e m s  hav e  n o t  b e e n  r e s o l v e d ,  

b u t  w i l l  be  i n c l u d e d  i n  t h e  S c h o o l  B o a r d ' s  f i n a l  p l a n  

t o  be  s u b m i t t e d  o n  o r  b e f o r e  June 2 3 ,  1 9 6 9 .  I t  i s  

c o n c e d e d  by  a l l  t h a t  t h e  r e s o l u t i o n  o f  s i t e  l o c a t i o n s ,  

c a p a c i t y ,  e t c . ,  o f  t h e s e  new s c h o o l s  i s  an i n t e g r a l  p a r t  

o f  any  p l a n  r e s p e c t i n g  s c h o o l  d e s e g r e g a t i o n .

On or about January 6 ,  1 9 6 9 ,  objections 
were filed to the assignment procedures as to all 
schools, and to the School Board's action of December 17,  

1 9 6 8 ,  fixing an objective timetable for faculty desegre­
gation beginning with the 1 9 7 0 - 7 1  school year. Subsequently,



-7-

on  A p r i l  1 0 - 1 1 ,  1 9 6 9 ,  f u r t h e r  o b j e c t i o n s  v /ere  f i l e d  

t o  t h e  i n t e r i m  p l a n  p r o p o s e d  by t h e  S c h o o l  B o a r d ,  and 

w h i c h  i s  now b e f o r e  t h e  c o u r t .

On A p r i l  2 ,  1969.,, c o u n s e l  f o r  t h e  S c h o o l  

Board  v e r b a l l y  p r e s e n t e d  p l a n s  f o r  a l o n g - r a n g e  

a t t e m p t e d  s o l u t i o n  t o  t h e  d e s e g r e g a t i o n  p r o b l e m  

w h i c h  a l l  w i t n e s s e s  c o n c e d e  i s  c o m p l e x .  As an i n t e r i m  

m e a s u r e ,  i n  an e f f o r t  t o  c o m p l y  w i t h  o n e  p l a u s i b l e  

i n t e r p r e t a t i o n  o f  B r e w e r , t h e  s e n i o r  h i g h  s c h o o l  

e a s t e r n  l i n e  d i v i d i n g  t h e  W a s h in g t o n  and Lake T a y l o r  

z o n e s  xoas a d j u s t e d  t o  b r i n g  a p p r o x i m a t e l y  250 more  

N e gro  c h i l d r e n  i n t o  Lake T a y l o r  S e n i o r  H igh  S c h o o l .  

M o r e o v e r ,  s u c h  a c h a n g e  w o u ld  g r e a t l y  r e l i e v e  t h e  

o v e r c r o w d e d  c o n d i t i o n  a t  W a s h in g t o n  S e n i o r  High 

S c h o o l .  O t h e r  l i n e  c h a n g e s  w ere  made t o  p l a c e  m ore  

N e g r o e s  i n  Granby High S c h o o l ,  thus  r e l i e v i n g  t h e  

r a p i d l y  r e s e g r e g a t e d  Maury H igh  S c h o o l ,  and t o  

c o m p e n s a t e  f o r  t h e  c h a n g e s  h e r e t o f o r e  m e n t i o n e d . ,
V  -

H ow e v e r ,  w i t h  t h e  m a j o r i t y  i n  Brewer  d em anding  h e a r i n g s  

and c o u r t  a p p r o v a l  o f  s c h o o l  c o n s t r u c t i o n  p r o j e c t s ,  

a b s e n t  a p p r o v a l  o f  t h e  NAACP and t h e  C i v i l  -R ig h ts  

D i v i s i o n ,  t h e  p r o b l e m  p r e s e n t e d  w i t h  r e s p e c t  t o  the.  

e s s e n t i a l l y  a l l  b l a c k  W a s h in g t o n  H igh  S c h o o l  was 

i n s o l u b l e  a t  t h i s  t i m e .

As t h e  t e s t i m o n y  d e v e l o p e d  t h r o u g h o u t  t h e  

e x t e n s i v e  h e a r i n g s ,  o n e  d o m in a n t  f a c t o r  o f  d i s a g r e e ­

ment  a p p e a r e d .  The C i v i l  R i g h t s  D i v i s i o n  and t h e  NAACP 

do  n o t  a p p e a r  t o  b a s i c a l l y  d i s a g r e e  w i t h  t h e  p r i n c i p l e s  

and p r o p o s e d  o p t i m a l  p l a n s  s u b m i t t e d  by t h e  S c h o o l  Board



-8-

exco -p t  t o  s a y  t h a t  t h e r e  s h o u l d  be  m ore  i n t e g r a t i o n .

They c o u n t e r  by s a y i n g  t h a t  t h e  o n l y  s o l u t i o n  i s  

" b u s s i n g "  ( s o m e t i m e s  r e f e r r e d  t o  as " b u s i n g " ) .  I f  

t h i s  i s  a solution and i f  i t  i s  r e q u i r e d  by c o n s t i t u ­

t i o n a l  m a n d a t e ,  t h i s  C o u r t  a g r e e s  t h a t  m a n d a t o r y  

b u s s i n g  i s  t h e  o n l y  way i n  w h i c h  a l l  s c h o o l s  i n  t h e  

N o r f o l k  s y s t e m  may become r a c i a l l y  b a l a n c e d  o r  t o t a l l y  

d e s e g r e g a t e d ,  and ,  w i t h  r e s p e c t  t o  a f e w  s c h o o l s ,  r a c i a l l y  

i n t e g r a t e d .  Not  e v e n  t h e  p a i r i n g  o f  s c h o o l s  c a n  a c c o m p l i s h  

d e s e g r e g a t i o n  o f  a l l  s c h o o l s .  I f  we may d i s r e g a r d  t h e  

c o s t ,  t h e  m a t t e r  o f  c o n v e n i e n c e ,  t h e  t im e  and e x p e n s e  

o f  t r a n s p o r t a t i o n ,  t h e  n e i g h b o r h o o d  s c h o o l ,  t h e  s o u n d ­

n e s s  o f  an e d u c a t i o n a l  s y s t e m ,  t h e  d i s r u p t i o n  o f  e x t r a ­

c u r r i c u l a r  a c t i v i t i e s  i n v o l v i n g  a f t e r - s c h o o l  h o u r s ,  

p u b l i c  o p i n i o n  i n  g e n e r a l ,  and many o t h e r  f a c t o r s ,  i t .  

i s  p o s s i b l e  t o  a d o p t  t h e  p l a n  a d v a n c e d  by t h e  C i v i l  

R i g h t s  D i v i s i o n ,  a l t h o u g h  e v e n  t h e n  i t  c o u l d  n o t  p o s s i b l y  

be  put  i n t o  o p e r a t i o n  by  S e p t e m b e r  1969 b e c a u s e  o f
V

t r a n s p o r t a t i o n  p r o b l e m s  h e r e i n a f t e r  m e n t i o n e d .

During all the conferences between the 
attorneys, the school administrators, the distinguished 
Chairman of the School Board, and other educators, in­
cluding an expert from HEW and another from the University 
of Virginia, counsel for the NAACP and the Civil Rights 
Division failed to produce any expert in the education 
field to offer any suggestions. It was the School Board 
vino brought in the experts from HEW and the University 
of Virginia. The Civil Rights Division did, however,



-9-

corr.a f o r w a r d  w i t h  a p l a n  a t  t h e  h e a r i n g  on  A p r i l  2 4 - 2 5 ,  

1 9 6 9 ,  p r e p a r e d  by Dr. M i c h a e l  S t o l e e  o f  M iam i ,  F l o r i d a .  

W h i l e  t h e  q u a l i f i c a t i o n s  o f  t h i s  e d u c a t o r  a r e  n o t  

d i s p u t e d ,  t h e  p l a n  s u b m i t t e d  i s  a s a d  e x a m p le  o f  a 

" r u s h  j o b "  w i t h  no t h o u g h t  o f  t h e  c o n s e q u e n c e s  i f  

a d o p t e d .  I n d e e d ,  Dr. S t o l e e  e s s e n t i a l l y  c o n c e d e s  t h a t  

h i s  s o l e  p u r p o s e  was t o  p r e s e n t  a p l a n  w i t h  a maximum 

d e g r e e  o f  d e s e g r e g a t i o n  i n  as many s c h o o l s  as p o s s i b l e .

The backbone of the Civil Rights plan lies 
in bussing. Children attending West Elementary 
School (which would be abolished) would be transported 
past two other elementary schools to attend Coleman 
Place Elementary School, an estimated distance of four 
miles. Children located in Berkley and now attending 
Washington Senior High School would board a bus, 
passing in the proximity of both Washington and Maury 4

( 4 )

High Schools, to attend Granby U? •? rrh School, an cstimated
distance of five to six miles. Ther•e are many o tner
like examples which can be cited by reference to the

( 4 )  To a c h i e v e  r a c i a l  d e s e g r e g a t i o n  a t  W a s h in g t o n
High School, Dr, Stolee proposes that Washington 
and Lake Taylor be paired in a most unusual • 
manner. He suggests that Washington be open 
only to tenth-grade children, and that Lake 
Taylor be open only to eleventh and twelfth- 
grade children. From an educational standpoint, 
all experts■agree that this proposal is unsound. 
This suggestion adequately demonstrates that 
racial motives have far exceeded the necessity 
for sound education of children in the minds of 
Dr. Stolee, the representatives of the Civil 
Rights Division, and the NAACP. Under such 
circumstances, what can be done for the child 
who fails one or two subjects at Washington?
Is he to taxi back and forth between the two 
schools?



- 1 0 -

t r a n s c r i p t ^ )  and e x h i b i t s .

A s i d e  f r o m  t h e  i n c o n v e n i e n c e  and s u b s t a n t i a l  

d e s t r u c t i o n  o f  t h e  e d u c a t i o n  s y s t e m ,  t h e  c o s t  i s  an 

i n s u r m o u n t a b l e  o b j e c t i o n .  B u s s i n g  f o r  t h e  p u r p o s e  

o f  p e r m i t t i n g  a r e l a t i v e l y  few  N egro  c h i l d r e n  t o

( 5 )  The t r a n s c r i p t s  o f  t h e  o r o c e e d i n g s  o f
A p r i l  2 ,  2 2 ,  2 3 ,  2 4 ,  2 5 ;  2 8 ,  May 7 ,  8 and 9 ,  
h a v e  n o t  b e e n  p r e p a r e d  as o f  t h e  t i m e  o f  t h i s  
memorandum. N o t h i n g  was s u g g e s t e d  a t  any 
p r e t r i a l  h e a r i n g  as t o  t h e  n e c e s s i t y  o f  d a i l y  c o p y  
o r  an e x p e d i t e d  t r a n s c r i p t .  N e i t h e r  t h e  C o u r t  n o r  
c o u n s e l  f o r  t h e  S c h o o l  Board  had b e e n  a d v i s e d  t h a t  
t h e  C i v i l  R i g h t s  D i v i s i o n  w o u ld  s u b m it  an a l t e r n a ­
t i v e  p l a n  as s u g g e s t e d  by Dr.  S t o l e e .  A f t e r  
s e v e r a l  days  o f  e x t e n s i v e  t e s t i m o n y ,  t h e  C o u r t  
c a l l e d  c o u n s e l ' s  a t t e n t i o n  t o  t h e  f a c t  t h a t  
t h e  t r a n s c r i p t  c o u l d  n o t  p o s s i b l y  be  c o m p l e t e d  
i n  t im e  t o  t a k e  an e f f e c t i v e  a p p e a l  w h i c h  w o u ld  
r e s u l t  i n  c h a n g e s  f o r  t h e  1 9 6 5 - 7 0  s c h o o l  y e a r .
For  two d ays  t h e r e a f t e r  t h e  C i v i l  R i g h t s  D i v i s i o n  
p r o v i d e d  a s u b s t i t u t e  r e p o r t e r ,  bu t  a l l  o t h e r  
h e a r i n g s  w e re  r e p o r t e d  by t h e  o f f i c i a l  r e p o r t e r .
T h i s  C o u r t  has  a lw a y s  b e e n  w i l l i n g  t o  a c c e p t  t h e  
s e r v i c e s  o f  a c o m p e t e n t  s u b s t i t u t e  r e p o r t e r  o r  
a d a i l y  c o p y  a r r a n g e m e n t  when c o u n s e l  a r e  w i l l i n g  
t o  p r o v i d e  same a t  t h e i r  e x p e n s e ,  t h e r e  b e i n g  no 
fu n d s  a v a i l a b l e  t o  a j u d g e  t o  o r d e r  same.  The 
C o u r t  i s  a l s o  c o g n i z a n t  o f  t h e  p r i o r i t i e s  a c c o r d e d  
t o  C i v i l  R i g h t s  c a s e s ,  i n c l u d i n g  s c h o o l  m a t t e r s ,  
bu t  t h e r e  a r e  e q u a l  p r i o r i t i e s  i n v o l v i n g  c r i m i n a l  
a p p e a l s ,  e t c . ,  w h i c h  a r e  a s o u r c e  o f  c o n s i d e r a b l e  
c o n c e r n  t o  t r i a l  and a p p e l l a t e  c o u r t s  a n d ,  as t h i s  
C o u r t  u n d e r s t a n d s  t h e  p r i o r i t y  r u l e ,  c r i m i n a l  
a p p e a l s  a r e  p r o b a b l y  e n t i t l e d  t o  t h e  h i g h e s t  
p r i o r i t y .  In  any  e v e n t ,  t h e  r e p o r t e r  was i n s t r u c t e d  
t o  f o l l o w  t h e  c u s t o m a r y  p r i o r i t y  p r a c t i c e  w h i c h  has 
e x i s t e d  f o r  many y e a r s .  The C o u r t  d i d  o f f e r  t o  
a c c e p t  a c o m p e t e n t  s u b s t i t u t e  r e p o r t e r ,  i f  p r o v i d e d  
a t  t h e  e x p e n s e  o f  t h e  C i v i l  R i g h t s  D i v i s i o n  a n d / o r  
t h e  NAACP, t h e r e b y  r e l e a s i n g  t h e  o f f i c i a l  r e p o r t e r  
f o r  t h e  p u r p o s e  o f  p r e p a r i n g  t h e  t r a n s c r i p t .



-11-

attend a predominantly white school is not uncommon 
throughout the nation. For example, a research report 
entitled "A Study of the Education Effectiveness of 
Integration11 in Buffalo, New York (the Buffalo report) 
reflects that 1,200 Negro pupils were intentionally 
transported to schools composed primarily of white 
children. The cost, mileage involved, and source of 
funds are not disclosed.

Turning to Norfolk, we find an entirely 
different picture. Based upon uncontroverted evidence 
certain statistics appear. The children, all riding 
within a limited zone, (6) ride for half-fare^) through 
the purchase of school tickets. A round-trip fare for 
school children is 25 cents. There is no subsidy pro­
vided by the local, state or federal governments, and 
each child must pay his own fare by surrendering a 
student bus ticket. During the 1968-69 school year, 
S,165 children will have each day ridden the public 
transportation provided by the Virginia Transit Company. 
The total daily mileage for school bus transportation 
is 2,121. The gross revenue per annum from school 
children is $367,438, but the cost of operation is 
$417,312, or an annual net loss of $49,874,^^ The

(5) A few exceptions appear with respect to
parochial schools invoIving a handful of pupils.

(7) What this rate will be with increased mileage, 
hours, etc., is not known. 8 * * *

(8) //nila the record is not explicit, it is a known 
fact that the Transit Company's agreement with 
the City of Norfolk provides for a maximum 
return of 67c Since the Transit Company has
never been able to attain this return, the City 
indirectly subsidizes the school operation to 
the extent of the loss mentioned, but this is not 
a direct expenditure by the City. The point is
relevant only to suggest that, if the Civil Rights 
plan is adopted, it is obvious that a new agree­
ment will have to be negotiated.



-12-

interim plan advanced by the School Board w: 11

i t s e l f ,  r e q u i r e  an e s t i m a t e d  a d d i t i o n a l  500 s e n i o r  

h i g h  s c h o o l  p u p i l s  t o  be t r a n s p o r t e d .  T h u s ,  we 

a r r i v e  a t  a c o n c l u s i o n  t h a t ,  u n d e r  t h e  i n t e r i m  1 9 6 9 - 7 0  

p l a n ,  a p p r o x i m a t e l y  8 , 5 0 0  c h i l d r e n  p e r  d a y  w i l l  be 

t r a n s p o r t e d  by t h e  T r a n s i t  Company.

The f i g u r e s  o r e s e n t e d  h e r e i n  a r e  p r e d i c a t e d  

u p o n  t h e  a s s u m p t i o n  t h a t ,  f o r  1 9 6 8 - 6 9 ,  an e s t i m a t e d  

1 4 , 4 0 0  p u p i l s  l i v e  more th a n  o n e  m i l e  f rom  t h e  n e a r e s t  

s c h o o l  o r  o t h e r w i s e  have  no  s a f e  w a l k i n g  r o u t e  t o  

s c h o o l . Of  t h i s  n u m b e r , a p p r o x i m a t e l y  8 , 0 0 0  ,

b a s e d  on  t h e  s a l e  o f  bus t i c k e t s ,  r i d e  t h e  T r a n s i t  

Company b u s .  Under t h e  C i v i l  R i g h t s  p r o p o s a l ,  an 

e s t i m a t e d  2 2 , 4 5 0  c h i l d r e n  w i l l  be l i v i n g  more  th a n  

o n e  m i l e  f r o m  t h e  d e s i g n a t e d  s c h o o l  o r  w o u ld  o t h e r w i s e  

hav e  no s a f e  w a l k i n g  r o u t e  t o  s c h o o l .  T h e r e f o r e ,  t h e  9

( 9 )  A p p a r e n t l y  i t  i s  c o n t e m p l a t e d  t h a t  bus. t r a n s p o r t a  
t i o n  may be  l i m i t e d  t o  c h i l d r e n  l i v i n g  b e y o n d  a 
o n e - m i l e  l i m i t a t i o n .  Q u e s t i o n s  may a r i s e  as t o  /  
t h e  p r o p r i e t y  o r  l e g a l i t y  o f  s u c h  a l i m i t a t i o n .
I f  t h e  f i g u r e s  a r e  u s e d  u n d e r  t h e  a s s u m p t i o n  
t h a t  no  c h i l d  l i v i n g  w i t h i n  o n e  m i l e  f r o m  t h e  
s c h o o l  w i l l  d e s i r e  bus t r a n s p o r t a t i o n , '  i t  i s  
b e l i e v e d  t h a t  a s u r v e y  o f  t h e  u s e  o f  b u s e s  may 
be i n  o r d e r .  In t h i s  d ay  and t im e  c h i l d r e n  a r e  
n o t  i n c l i n e d  t o  w a lk  as much as a m i l e  u n l e s s  
r e q u i r e d  t o  do s o  f o r  e c o n o m i c  r e a s o n s .  An 
a c c u r a t e  s u r v e y  w i l l  p r o b a b l y  r e v e a l  t h e  u s e  o f  
bus t r a n s p o r t a t i o n  by many c h i l d r e n  w i t h i n  t h e  
o n e - m i l e  l i m i t .  Of c o u r s e ,  i f  bus t r a n s p o r t a t i o n  
i s  t o  be p r o v i d e d  f r e e  o f  c h a r g e ,  t h e  number 
u s i n g  b u s e s  w i l l  i n c r e a s e  p r o p o r t i o n a t e l y .



-13-

t o ' c a l  number o f  c h i l d r e n  per* day  p o t e n t i a l l y  us  i n  

bus t r a n s p o r t a t i o n  w i l l  be  more th a n  two and o n e -  

h a l f  t i m e s  as g r e a t  as t h e  c o n t e m p l a t e d  u s e  f o r  

1 9 6 9 - 7 0  u n d e r  t h e  i n t e r i m  p l a n ,  and n e a r l y  t h r e e  

t i m e s  as g r e a t  as u n d e r  t h e  1 9 6 8 -6 9  p l a n .

A s s u m p t i o n s  s u c h  as t h e  f o r e g o i n cr are

i d l y  r o u g h  e s t i m a t e s .  I t  a p p e a r s  t h a t ,  f o r  

1 9 6 S - 6 9 ,  p e r h a p s  56%, o f  t h e  c h i l d r e n  f a l l i n g  o u t s i d e  

t h e  o n e - m i l e  c a t e g o r y  u s e d  bus t r a n s p o r t a t i o n .  The 

r e c o r d  d o e s  n o t  r e f l e c t  why f i g u r e s  w e re  s u b m i t t e d

o n  a p r o j e c t e d  75%, u s e  o f  T r a n s i t  Company f a c i l i t i e s  

f o r  t h e  e s t i m a t e d  1 6 , 8 5 0  s t u d e n t s  i n  t h i s  g r o u p  u n d e r  

t h e  C i v i l  R i g h t s  p l a n .  Even i f  t h e  f i g u r e s  a r e  

d i s c o u n t e d  t o  r e f l e c t  a more a c c u r a t e  p i c t u r e ,  t h e  

added  c o s t  i s  t r e m e n d o u s .  And t h e  p e r t i n e n t  q u e s t i o n  

i s  p o s e d ,  w here  i s  t h e  money c o m in g  f r o m ?  I f  t h e  

c h i l d r e n  a r e  t o  p a y ,  t h e  g r e a t e s t  l o s s  w i l l  f a l l  

l a r g e l y  u p on  t h e  d i s a d v a n t a g e d  g r o u p ,  many o f  'whom 

h a v e  l a r g e  numbers o f  s c h o o l  c h i l d r e n  i n  e a c h  f a m i l y .

I f  bus t r a n s p o r t a t i o n  i s  p r o v i d e d  t o  c h i l d r e n  

w i t h o u t  c o s t  t o  t h e m - - p e r h a p s  t h r o u g h  t h e  b e n e v o l e n c e  

o f  o u r  n a t i o n ' s  t a x p a y e r s - - i t  i s  a s a f e  a s s u m p t i o n  t h a t  

n e a r l y  100% o f  t h e  p u p i l s  r e s i d i n g  be y o n d  t h e  o n e - m i l e  

l i m i t  w i l l  u s e  t h e  bus f a c i l i t i e s .  W h i l e  t h e r e  may be 

a f e w  vino w i l l  be  t r a n s p o r t e d  by f a m i l i e s  i n  p r i v a t e  

a u t o m o b i l e s ,  t h e  t e n d e n c y  w o u ld  be  t o  r i d e  t h e  bus 

w here  t h e  r i d e  i s  f r e e .  T h i s  w ou ld  mean t h a t  s u b ­

s t a n t i a l l y  a l l  t h e  2 2 , 4 5 0  p u p i l s  w i l l  be t r a n s p o r t e d .



C e r t a i n  s t a t i s t i c s  thus  d e v e l o p :

-14-

1 9 6 8 -6 9
O p e r a t i o n

C i v i l  R i g h t s  
P la n  Based 
Upon 75%

C i v i l  Rig’ 
P la n  Base. 
Upon 1007o

Numb e r  bu s e s 
X 0. G'L l 11* 6ci

65 193 257

Hours o f  bus 
o p e r a t i o n

276 553 736

M i l e s  o f  
o p e r a t i o n

2 , 1 2 1 4 , 4 2 4 5 , 8 3 0

C o s t  o f  
o p e r a t i o n

$ 2 , 3 1 8 $ 6 , 9 4 5 $ 9 , 1 5 5

C o s t  p e r  
s t u d e n t

2 8 . 4g 4 1 . 2<? 4 0 . 8  g

C o s t ,  o p e r a t i o n  
p e r  h o u r

$ 8 . 4 0 $ 1 2 . 5 6 $ 1 2 . 4 4

As r e l a t e d  t o  t h e  t o t a l  c o s t  o f  o p e r a t i o n  

f o r  1 9 6 8 - 6 9  w h i c h ,  as s t a t e d  a b o v e ,  i s  $ 4 1 7 , 3 1 2 ,  t h e  

C i v i l  R i g h t s  p l a n  p r e d i c a t e d  u p on  u s e  by 75% o f  t h e  

c h i l d r e n  r e s i d i n g  o u t s i d e  t h e  o n e - m i l e  c a t e g o r y  i s  

$ 1 , 2 5 0 , 1 0 0 ,  and w i t h  r e s p e c t  t o  100% u s e  t h e  c o s t  i s  

e s t i m a t e d  a t  $ 1 , 6 4 7 , 9 0 0 .  Sven i f  t h e s e  f i g u r e s  a r e  

a d j u s t e d  f o r  t h e  r e a s o n s  p r e v i o u s l y  m e n t i o n e d ,  i t  i s  

a s a f e  a s s u m p t i o n  t h a t  t h e  a d d i t i o n a l  c o s t  w i l l  be a 

minimum o f  $ 6 0 0 ,0 0 0  p e r  annum a n d ,  i f  f r e e  t r a n s p o r t a ­

t i o n  i s  p r o v i d e d ,  t h e  o v e r a l l  a d d i t i o n a l  c o s t - w i l l  

e x c e e d  $ 1 , 0 0 0 , 0 0 0  p e r  annum.

The p r o b l e m  i s  n o t  s o l v e d  e v e n  t h o u g h  t h e  

money i s  p r o v i d e d .  The 65 b u s e s  now i n  d a i l y  u s e  a r e  

i n t e r l o c k e d  w i t h  t h e  o v e r a l l  t r a n s p o r t a t i o n  s y s t e m .

Men o r  women o p e r a t i n g  same on  a 4 4 - h o u r  week must be 

c a r e f u l l y  s c h e d u l e d  on s c h o o l  runs  i n  c o n j u n c t i o n  w i t h



-15-

other public transportation available to all. The 
limited hours required for school transportation 
cannot provide free time for employees during the 
other hours. These are factors entirely overlooked 
by the zealous advocates of forced integration at 
any cost. With nearly three times the number of 
buses required for a 75% use under the Civil Rights 
plan, the manpower shortage becomes acute, and it 
should not be overlooked that the Union will have 
something to say about the matter.

Finally, we turn to the equipment. The 
buses now serving the children and the public cost 
an estimated $37,000 each. Since the demand for 
public trar.sportation would never justify the purchase 
of this type of bus, any additional equipment would 
be wasted. The only alternative would be to turn to 
the typical yellow-painted school bus. Under any 
circumstances, these buses could not be acquired in 
time for use in September 1969. Either the city would 
be required to make the capital investment, or a long­
term lease and operational arrangement would have to 
be- negotiated with the Transit Company for future

If the transportation problem, standing 
alone, does not justify the finding that the interim 
plan as suggested by the School Board must go forward 
for ana 1969-70 school year, then the writer of this 
memorandum invites a solution from those more qualified 
to speak. It is for these reasons that, during the 
course of trial, the Court expressed itself freely on 
the subject of bussing and advised counsel that it 
wouId not be ordered by this judge.



- 1 6 -

The crux of this case lies in buss ing and

racial balancing. When we compare the tentative long-
range optimal plan and the Civil Rights plan, the
results are not materially different. Let us examine

these results.
ELEMENTARY SCHOOLS

Long-Range 
Optimal Plan

Civil Rights 
Plan

Total number elementary schools 56 54CIO)

Number 90% or more white 13 14

Number 90% or more Negro 19 13
Number, clear majority white 17 15
Number, clear majority Negro 2 12

JUNIOR HIGH SCHOOLS
Long-Range 
Optimal Plan

Civil Rights 
Plan

Total number Jr. High Schools 11 11
Number 90% or more white 1 1
Number 90% or more Negro 4 1
Number, substantially desegre­

gated 6 9
SENIOR HIGH SCHOOLS

Long-Range 
Optimal Plan

Civil Rights 
Plan

Total number Sr. High Schools 5 4(->

Number 90% or more white 0 0
Number 90% or more Negro i 0
Number substantially integrated 4

(10) The Civil Plights plan contemplates the total 
abandonment of two elementary scnools. 11

(11) The Civil Rights proposal treats Washington and 
Lake Taylor as one high school, with Washington 
taking all pupils in this zone for the tenth 
grade, and Lake Taylor receiving all pupils in 
the same zone for the final two grades in senior 
high school.



-17-

It has always bean a problem to determine 
when and under what conditions a school is substantially 
integragated or, stated otherwise, "racially unidenti­
fiable." The expert employed by the NAACP, Dr. Larson, 
expressed the view that 10% was the appropriate figure. 
The Civil Rights expert, Dr. Stolee, did not disagree.
It is for this reason that a 9Q7o figure has been 
chosen.

What follows then is that the School Board 
contemplates a greater number of desegregated schools 
having a white majority which is in accord with 
research studies, whereas the NAACP and Civil Rights 
Division are urging a greater number of white children 
in predominantly Negro schools. As to the senior high 
schools, the Civil Rights Division proposes that only 
Granby and Norview will remain predominantly white,

Taylor, Maury and Washington becoming ncraliy
iced as follows :
Lake Taylor^^^ 47 %
Maury 54%
Washington^ 47%

white 53% Negro
white 46% Negro
white 53% Negro

—

This brings into focus the Civil Rights Act 
42 U.5.C., section 2GQ0c-6, authorizing the

Attorney General, under certain circumstances, to 
institute actions which "will materially further the 
orderly achievement of desegregation in public educa­
tion" after allowing the school board "a reasonable time 
to adjust the conditions." Congress further provided: 12

(12) The percentage figures are identical for the 
reasons indicated in footnote 11.



-18-

" ( T ) h a t n o t h i n g h e r e i n  s h a l l empower

any o f f i c i a l  o r c o u r t  o f  t h e U n i t e d

S t a t e s t o  i s s u e any o r d e r  s e e k i n g  t o

a c h i e v e  a r a c i a l  b a l a n c e  i n  any s c h o o l  

by r e q u i r i n g  t h e  t r a n s p o r t a t i o n  o f  

p u p i l s  o r  s t u d e n t s  f ro m  o n e  s c h o o l  t o  

a n o t h e r  i n  o r d e r  t o  a c h i e v e  s u c h  r a c i a l  

b a l a n c e ,  o r  o t h e r w i s e  e n l a r g e  t h e  

e x i s t i n g  pow er  o f  t h e  c o u r t  t o  i n s u r e  

c o m p l i a n c e  w i t h  c o n s t i t u t i o n a l  s t a n d a r d s . "

T e c h n i c a l l y ,  a t  l e a s t ,  t h i s  a c t i o n  was n o t  

i n s t i t u t e d  by t h e  A t t o r n e y  G e n e r a l .  The U n i t e d  S t a t e s  

was g r a n t e d  l e a v e  t o  i n t e r v e n e  i n  F e b r u a r y  1966 and 

has r e m a in e d  a p a r t y  t h e r e a f t e r .  The a u t h o r i t y  t o  

i n t e r v e n e  i s ,  h o w e v e r ,  d e p e n d e n t  u p on  t h e  C i v i l  R i g h t s  

A c t  o f  1 96 4 .  Under  42 U . S . C . ,  s e c t i o n  2 0 0 0 c ( b ) ,  t h e  

word  " d e s e g r e g a t i o n "  i s  d e f i n e d  a s :

" ‘ D e s e g r e g a t i o n 1 means t h e  a s s i g n m e n t  

o f  s t u d e n t s  t o  p u b l i c  s c h o o l s  and w i t h i n  

s u c h  s c h o o l s  w i t h o u t  r e g a r d  t o  t h e i r  r a c e ,  

c o l o r ,  r e l i g i o n ,  o r  n a t i o n a l  o r i g i n ,  bu t  

' d e s e g r e g a t i o n '  s h a l l  n o t  mean th e  

a s s i g n m e n t  o f  s t u d e n t s  t o  p u b l i c  s c h o o l s  

i n  o r d e r  t o  o v e r c o m e  r a c i a l  i m b a l a n c e . "

V a r y i n g  i n t e r p r e t a t i o n s  hav e  been  g i v e n  t o  

t h e  q u o t e d  la n g u a g e  o f  42 U . S . C . ,  s e c t i o n s  2 0 0 0 c ( b )  

and 2 G 0 0 c - 6 .  In U n i t e d  S t a t e s  v .  J e f f e r s o n  C ou nty  Board  

o f  e d u c a t i o n , 372 F . ( 2 d )  3 3 6 ,  8 7 8 -8 8 6  (5  C i r . , 1 9 6 6 ) ,  an

e x h a u s t i v e  d i s c u s s i o n  c o n c l u d e s :



- 1 9 -

"As we construe the Act and its 
legislative history, especially the 
sponsors' reliance on Bell, Congress, 
because of its hands-off attitude 
on bona fide neighborhood school 
systems, qualified its broad policy 
of nondiscrimination by precluding 
HEW's requiring the bussing of children, 
across district lines or requiring com­
pulsory placement of children in schools 
to strike a balance when the imbalance 
results from de facto, that is, non- 
racially motivated segregation. As 
Congressman Cramer said, 'Be facto 
segregation is racial imbalance.'
But there is nothing in the language 
of the Act or in the ler"' -lative history 
that equates corrective acts to desegre­
gate or to integrate a dual school 
system initially based on da jure 
segregation with acts to bring about a 
racial balance in a system based on 
bona fide neighborhood schools."

The issue of de facto segregation versus 
de jure segregation gave rise to the remand in Brewer, 
supra. The district court was instructed upon remand 
"to determine whether the racial pattern of the districts 
results from racial discrimination with regard to housing 
and that, if residential racial discrimination exists,

u

"it is immaterial that it results from private action."



-20-

Nhile there was nothing in the Brewer record 
demonstrating anything other than de facto segregation; ^ J 
the Court of Appeals drew an inference of de jure segre­
gation by reason of the wide variation in white and 
Negro residential distribution, pointing out that five 
residential planning districts have no Negro residents;
51 have less than 157., Negro; 7 districts are mixed; 
and 17 have more than 80% Negroes. Perhaps the author 
of this opinion invited the error by injecting the 
planning districts into evidence sua spcnte. Beckett 
v. School Board of City of Norfolk, Virginia, 26S F.Supp. 
118, 131-134 (E.D.Va., 1967) At least it invoked a 
controversy as is evidenced by the sharp dissents of 
Chief Judge Haynsworth and Circuit Judge Bryan.

In remanding this issue to the district court, 
the Court of Appeals does not suggest where the burden 
rests, what is meant by "private action" or "racial 
discrimination with regard to housing," nor precisely 
how counsel, the School Board or the Court should go 
about determining these matters.

The testimony presented by the Civil Rights 
division falls far short of establishing that requisite 
governmental involvement is present. We tnink it clear 
that the planning districts throughout Norfolk have pri­
marily grown up as a result of de facto segregation, 13
stated otherwise, the desire of the Negro to live
among Negroes and the desire of the white to live
among members of the white race,

(13) Racial imbalance is frequently labeled "de facto"
segregation to suggest that the requisite governmental 
involvement cannot be found. Fiss, R.acial Imbalance 
in the Public Schools: The Constitutional Concept,
?8 Harv. L. Rev) 5647 566, 584 0.96577 More accurately, 
racial imbalance is used to denote fortuitous racial 
separation in the public schools. King. Racial Imbalance 
in the Public Schools: Constitutional Dimens ions and 
Ju3TcIZT~R^s^ons~e7 T8~Vh and L. Rev. iZW) IT9l 07955).



In s u p p o r t  o f  i t s  argument  t h e  C i v i l  i c i g a t s

D i v i s i o n  p o i n t s  t o  ( 1 )  c e r t a i n  laws o r  t h e  S t a t e  o r  

V i r g i n i a  and o r d i n a n c e s  o f  t h e  C i t y  o f  N o r r o l k ,  cna

L ast  o f whi'ch  went o f f  t h e  book s i n 1 9 5 1 ,  ( 2 ) t h e

t e s t i m o n y  o f  a r e p r e s e n t a t i v e  o f th e Departme n t  o f

Hous ir.g and Urban D e ve lo p m e n t  t o t h e e f f e c t  t nau uiic

l o c a t i o n s  o f  s c h o o l s  w ere  a lw a ys  c o n s i d e r e d  when c o n ­

t e m p l a t i n g  any s lum  c l e a r a n c e  o r  u r b a n  r e n e w a l  p r o j e c t ,  

( 3 )  d e e d  r e s t r i c t i o n s  p r o h i b i t i n g  t h e  s a l e  o f  p r o p e r t y  

t o  p e r s o n s  o f  A f r i c a n  d e s c e n t  f o r  l i m i t e d  p e r i o d s ,  

i n c l u d i n g  r e v e r t e r  c l a u s e s  i n  a m in im a l  number o f  

d e e d s , and ( 4 )  t h e  a t t i t u d e  o f  l o c a l  r e a l  e s t a t e  

a g e n t s  and t h e i r  o p p o s i t i o n  t o  t h e  Open H o u s in g  

l e g i s l a t i o n  o f  1968 .  W h i l e  t im e  d o e s  n o t  p e r m i t  a 

d e t a i l e d  a n a l y s i s  o f  t h e s e  p o i n t s - - c e r t a i n l y  w i t h o u t  

t h e  b e n e f i t  o f  a t r a n s c r i p t - - ! 1!  f a l l s  f a r  s h o r t  o f  

e s t a b l i s h i n g  any d i s c r i m i n a t i o n  w h i c h  w o u ld  be 

tan ta m o u n t  t o  g o v e r n m e n t a l  a c t i o n  r e a l i s t i c a l l y  

a f f e c t i n g  r e s i d e n t i a l  a r e a s .

The s h o r t  answ er  t o  t h e s e  q u e s t i o n s  i s  

p e r h a p s  b e s t  d e m o n s t r a t e d  by what hap p e n e d  t o  t h e  

B r a m b le t o n  a r e a  a f t e r  B o o k e r  T. W a s h in g t o n  High 

S c h o o l  was e r e c t e d  i n  1929 .  The h i g h  s c h o o l  was 

l o c a t e d  on t h e  n o r t h  s i d e  o f  V i r g i n i a  Beach  B o u l e v a r d .  

N o r t h  o f  V i r g i n i a  Beach B o u l e v a r d  t h e  r e s i d e n t i a l  a r e a  

was b l a c k .  S o u t h  o f  V i r g i n i a  Beach B o u l e v a r d  l i e s  t h e  

a r e a  known as B ra m b le to n  w h i c h  was t h e n  a l l  o r  p r e ­

d o m i n a n t l y  w h i t e .  W i t h i n  8 o r  9 y e a r s ,  B r a m b le to n  

became e s s e n t i a l l y  a l l  b l a c k - - t h e  b l a c k s  moved i n  and 

t h e  w h i t e s  moved o u t .  B r a m b le to n  has r e m a in e d  a l l  

b l a c k  s i n c e  t h a t  t i m e .  I f  t h i s  i s  d i s c r i m i n a t i o n ,



in Norfolkthe it exist nd, indeed, tnrougnou.

:ne entire country.

11,

of the Court of Ai

l U U a t  lUil 5

gation in .

in tins nxstory oi. et-ch.
T.-ould require many dayo

search, and endless expens e .

so Ivea without reference to

ng to the majority opin 1Cr.

.ere are 80 planning dis +• - •*ict

s ible that a particu 1

t may ’nave been des igna l. e'wi

m clearance program or ur

h may, in an appropr iate

to break up be jure qprr ° or*e-

. nearby, but this does no -
area in the city is in i. +■*cC. t

.over, while the reco rd doe s

. examination of all slum

clearance projects in Norfolk will adequately demonstrate 
that they were all-Negro populated before the slum 

clearance program was undertaken. In all probability, 
the same situation exists with urban development areas. 
There has been no effort on the part of the Civil Rights 

Division to particularize any school or area and, as 
far as the School Board is concerned, the time element
is such that it cannot be properly done, even prior to 
the time the optimal desegregation plan is submitted.
The city planners were not called as witnesses by the 
parties and, if called, could at best give only the more 
recent history of the particular areas as the Norfolk



-23-

Planning Commission does not extend back to tne days 
of the Civil War which may, in certain areas of this 
old city, be an appropriate starting point. Obliged 
as this Court is to carry out the directions of the 
Court of Appeals, guidelines must be established 
before undertaking this momentous task.

The School Board does not profess to claim 
that its interim plan offers any permanent solution.
Having been rebuffed by the official representatives 
of the Department of Justice after more than 2-1/2 mcr.tns 
of conferences, ( the Board was recurred go lo 
court. They propose to file their optimal plan, 
including site locations for new construction, or. or 
before June 23, 1969.

The proposal submitted by the School nos.ro. 
in January 1959 was thought to be possible of accom­
plishment by September 1959. Is acceptaole, it wouln 
have permitted seven full months for putting tne plan 
into operation. However, as time went on, tne opportunity 
to complete the many necessary details diminished 
rapidly. When the final rejection by the Civil Rigncs 
Division was received on or about March 7, 1959, tne 
School Board realized that it would be required to 
litigate the many issues. It then reluctantly turned 
to the interim plan. With all candor, both the NAAC?

(14) Civil Rights Attorney Flannery absented nimseii 
from most of the conferences. He was represented 
by Attorney Howard, a younger man witft little or 
no authority to speak. At one time tne Court 
inquired of Mr, Howard as to wnetner he had 
indicated his accord with the long-range optimal 
plan. Mr. Howard did not respond and the Court 
did not press the point.

4T> O
O ' .  fa



_ 9 />. _

and the Civil Rights Division agree that the School 
Board has, at all times, been most cooperative in 

providing any and all information and records 
desired. The only alleged lack of cooperation is that 

the School Board has not agreed with the conclusions 

that bussir.g and racial balancing must be accomplished.

:hat the right to disagree will
uniier such circumstances, especially xvh

not oe tare 

ere research
adequately supports the logic of the School Board.

The Board's long-range optimal proposal is 
in evidence. Six cardinal principles are advanced and, 

as indicated above, the NAAC? and the Civil Rights 

Division only express disagreement with these basic 

principles as to the results to be achieved. These 
principles are:

"(1) Desegregation can provide the conditions 
for an improved educational program for the City as a 

whole, but in order to achieve and maintain the benefits 
of desegregation the plan must be solidly designed.

Thus, optimal desegregation should be the goal.

"(2) An unstable school system, in which 
frequent substantial changes are required in pupil and 
faculty assignment, school and grade organization, and 
construction programs, necessarily causes erosion of

and is unman aqeable adminis Lrat ive
be stabilized to the extent that

on of grades , faci lity cons true tio:
', and assignment ot s tudents wi li
siveiy rearranged in the fore -

eeable future. A Plan should not depend upon artific:



_ 2 cJ  -

d e v i c e s  b e c a u s e s u c h  d e v i CCS U G i l d t o  p r o d u c e  i n s t

" ( 3 ) A l t h o u g h c o m ,,  ̂ c d c s  G g lT G gc i  u. 1 0  A  O

pupils in every senooi not fees!oie under cr.e 

;rtheless, the school system

'O'* Ov Lo.id .

each puoil's schoo'

in ecucacionaa pro.]

asu16 upon teachers wno are no— or ay

lly to teach the assigned subjects.

alified and suitable to ^ r ^ pci j. i-O i-

foregoing principlesj neve 
should seek to provide a cos 
experience at some level dur 

career.
"(4) The success 

depends in great measi
prepared.educationally to teach the assigned s 

but who are also qualified and suitable to per 
under the circumstances in which they are placed.
The assignment or reassignment or ::acuity to accompiisr. 
desegregation can be successfully accomplished only wish 

teachers who have been adequately prepared. programs 
should be conducted to provide adequate preparation or 

teachers.
"(5) Broad experimentation with the organiza­

tion of the school system, which is not based on reliaola 
evidence indicating successful results under circumstance 
prevailing in this City, should not be undertaken because 

of the potential destructive erfeci
"(6 ) The uncertainties, f: 

delays attendant to the administration of a school 
system of more than 50,000 pupils under judicial 
supervision is erosive of that system. The responsibiliu 
for the control and operation of the Norfolk public schoo 
should be clearly placed with ti.i.e Scao^l bo^^d, con^oncii.w 

with practical assurance of the constitutional exercise

effect on the system

.t ies , trus trntions a.

of that responsibility tt



These principles adequately state the 
views of this Court; the same views that have con­
sistently been upheld curing the ten-year period 
since the first Negro child entered the previously 
all-white Norfolk public schools, although admittec 
by reason of broadened decisions and the 
rejection of the late Chief Jude

c . U '.b a  a. t i l  1 L

-y >

j o n n J. Parker’1 s
Supp. 776 (E.D. c r

• • 5
.955 - three-judge court), changes have been made. We
do not believe that any court in this nation would now
rej ect these principles as invoked by the School Board

While not in agreement with the author of
the opinion in United States v. Jeffer“S on County Board
of Education, supra, that the intent of Congress in 
enacting 42 U.S.C., sections 20Q0c(b) and 2000c-5, is
limited to prohibiting the required assignment or 
transportation of students in de facxo segregation areas, 
it is quite apparent that Brewer entertains that restricted 
view of the legislative intent. Assuming the correctness 
of this conclusion, it is not too readily ascertainable 
whether a particular residential pattern in a given
area grew up as a result of de facto or de jure segre-
garion, or perhaps both. Many courts are quick to
accept the easier route by ordering mass transfers 
without regard to proper educational standards. As 
previously suggested, unless the Civil Rights Division 
is correct as to what constitutes de jure segregation 
with a spot of the disease poisoning the enxire city or 
county, it appears that any intelligent approach will

days of testimony, research and exhibits.require endless



- 2 7 -

herein lies the difficulty of removing from the school 
administration and transferring, for all practical 
purposes, to the courts, problems relating to assign- ■ 
ir.ent and transportation of school children, especially 
where an intelligent school administration has 
exhibited years of good faith cooperation with a willing 
ness to make changes to comely with the many interpre­
tations of the law by appellate courts.

Turning finally to the research studies 
giving rise to the proposed optimal plan of desegrega­
tion, we find several leading studies worthy of 
comment. )

As Pettigrew says (16)

"Put blunt *Nf-1 children of
tend to do better In 00 o Jlr1 ools with a
middle-class milieu; and this trend
true in the later grades where the
peer-group influence is felt."

all backgrounds
predominant 
is especially 

full force of

(15) Equality of Educational Opportunity, Dr. James S.
Coleman (1S66)(Coleman Report); Desegregation 
Research, Meyer Weinberg (1958)(Weinberg Report); 
Racial Isolation in the Public Schools, 2 volumes, 
United States Commission on Civil Rights (1967) 
(Cavil Rights Commission Report); Desegregation 
Works: A Primer for Parents and Teachers,
Lillian S. Calhoun (1963)(Calhoun Report);
Harvard Educational Review, Vol. 38 (1968)
(Harvard Study, with references to many authors 
including Harold Howe, II, Dr. James Coleman,
Thomas Pettigrew, David K. Cohen, Henry Dyer, 
Kenneth Clark, Mario Fantini, Irwin Katz,
Theodore R. Sizer, Daniel ?. Moynihan, Samuel 
Bowles and others). 16

(16) Harvard Study, p. 67.



-23-

If the foregoing statement is to be accepxed, 
it lends support to the continuation of the neighbor­
hood school in the elementary grades and the basic 
principle that, wherever possible, the majority of 
the children in attendance, at a school should be rhe 
middle-class group. Pettigrew continues(17) by 
pointing out that Negroes in predominantly white class­
rooms score higher on the average, bur those Negroes 
in classrooms with less than one-half whites do no 
better than those in all-Negro classrooms. However, 
as to white children, their achievement scores in 
biracial classes which are predominantly white average 
just as high as those of comparable children in all-

/■ T O \white classes. The Coleman Report^0' points cut 
that often those Negro pupils in classes with only 
a few whites score lower than those in totally 
segregated classes. The same author testified in 
Hobson v. Hansen, 269 F.Supp. 401 (D.D.C., 1367 ), 17 * 19
that the achievement of white students in predominantly 
white schools is higher than the achievement of white 
students in predominantly Negro schools, but the 
difference in their achievement is only about half as 
great as the case for Negro children in predominantly 
white schools.

Racial acceptance and interracial tension 
figure prominently in the success of desegregation. 
Negro students in desegregated classrooms who report no

(17) Harvard Study, p. 71.
(IS) Coleman Report, p. 29.
(19) Hobson v. Hansen, Tr. p. 2090.



29-

interracial acceptance achieve at a lower level than 
those, in the same or similar classrooms, who do 
report such acceptance; but white children who are 
accepted in predominantly Negro schools perform at 
lower levels than those who are not accepted. Just 
as acceptance in a predominantly white school aids 
Negro performance, acceptance of the white child in 
a predominantly Negro milieu has a depressing effect 
upon white performance.^ 0) Thus, where the majority 
of students have low achievement, others will be 
likely to follow suit.^20 21 22"1

Cities such as Norfolk are confronted with 
the danger of white-flight. As suggested, the only 
realistic manner in which certain cities can achieve 
substantial successful integration is in conjunction 
with surrounding suburbs through metropolitan coopera­
tion. (22) Norfolk, largely surrounded by water, can 
turn only to the adjacent City of Virginia Beach where 
the percentage of Negro population is probably not more 
than five percent. Any attempt to radically desegregate 
schools of Norfolk lying readily adjacent to Virginia 
Beach will lead to white-flight, a fact'that is 
certainly not desirable from the standpoint of sound 
educational principles either in Norfolk or Virginia 
Beach. And, as the author suggests, the difficulties 
of achieving metropolitan cooperation on noncontroversia 
problems are nearly insurmountable, thereby making large 
scale metropolitan integration at best problematical.

(20) Harvard Study, p. 130.
(21) Civil Rights Commission Report, p. 89.
(22) Harvard Study, p. 86.



There are just not enough suburban Negroes to desegreg 
schools outside the core of the central cities, and no 
enough affluent urban whites to desegregate schools wi 
the hard-core central city. ' Since Norfolk is one 
of the older cities, the problem is most difficult to 
resolve. One author states that, since the only 
possible plan for achieving integration in large citie 
is through metropolitan integration across present 
school district boundaries, it seems politically
unfeasible (2b)

Much has been said with respect to school 
facilities. Many argue that unequal facilities lead 
to lower student achievement. This is not supported 
by the studies thus far conducted. As Moynihan says, 
"What small differences in school facilities did exist 
had little or no discernible relationship to the level 
of student achievement." 2̂=) Equality in resources 
devoted to the education of children of different 
racial groups will not achieve equality of educational 
opportunity.(26)

Finally we turn to the teaching faculty.
It is conceded that teachers are the most important 
element in the quality of education offered. The 
extent of their experience, the quality of their 
training, and their attitudes reward students all are

(23) Harvard Study, p. 133
(2b) Harvard Study, p. 165
(25) Harvard Study, p. 2b.

(26) Harvard Study, p. 90.



i m p o r t a .n h . (27) F o r m e r  U. S. C C m  TTi. _L S G G_ o r* G if* G X —j G cl G

H a r o l d Kovv G t C Li C1 T 1 G G G 31' C X4 C t h e  K e r n s r  C o m m _ S X — G

i/iany l c acrmci v> c rr> vo i i v\ • p -s~> ,-c. —' ■ yj " i * —- O Cl (t Ca a i ̂  C— , y d e d — OX' aGciGGl — T"1 £ — r i schc

serving disadvantaged children" and they "have what 

is a traumatic experience there and don't last." The

defendant School Board has, for the past sever*ccl y-SaXS .

conducted programs educating teachers of not n rac G S

with respect to the problems confronting such teachers

when assigned to schools where the majority of pupils 

and/or faculty are of a different race. The objective 

timetable required by Brewer is fully consistent with 

these principles.

The foregoing demonstrates a few of the 

problems confronting the School Board. These problems 

seem not to concern the Civil Rights Division and the 

NAACP. Apparently they do nor disturb some courts, but 

they are of major concern to this court.

In the City of Norfolk, we are long pasr the

days of integration . With few excep'lions, childr

(and their parents) expect to encourrter children

different races at some poi.nt during their public

education. It seems to this court that the School 

Board is approaching the overall situation in a realistic 
manner, well supported by research studies which were, 

incidentally, substantially financed by the federal 

taxpayers. Acknowledging that there are adverse

Rights Commission Report,(27) Civil p . S3



i! mi- c i  L -i. V  C  C  . :ects o: - U ion.

c
.■’oblons cannot bo received by a heltor-ske 
: assignment of students or faculty withou

to the basic principles or sourg ecucacion now 
advanced by m e  B o m T s opuimci-i. desegrogci uio.; P—a.:.

bussing to correct racial imbal 
indeed, there is no reputable

Banc;
no b lae ans'
verity sugg>
racial imba
; races. we
balance t ne
: ording to t

■ AauilcZ' l ::cLi )c.i anu s
in need of sore commonsense approach 
erests of the children involved who, 
ivil Rights plan, would be mere 

pawns on the chess board.
The plan proposed by the Civil Rights 

Division, in which the NAACP concurs but insists 
upon even further bussing, has created much disxurbance 
and concern among the school children and Their parents, 
both white and black. They v
bussing as now advocated. While admittedly the 
have little grasp upon the legal complexities p

‘ng that, since the Government (aci

t no part of lne extens!
e a cm[ittedly mese perso:
i. _L comiulexitie:S oresented

cney nave a ree.
nrougn tr.e Civn Rights Division) is advocating this
r. i - Cl CLnd hastily conceived plan, tae aovci’: i-iic-l

always prevails. They do not realize that the Gove;

is only another p.arty litiganl j eniiiied t o  its day

court but Subj 6C L to xhe same criticism as any othe
party. It is unfortunate, however, that a more 
responsible representation cannot present the views o. 
all citizens of all races, consistent with the law, bx 
with a paramount objective ox sound education.



<_
J.

Uvery cioua 

;h of The Oivi may ten so:

'CflG 01 0>nw -n*;

fVd. O O ,/C te to

undoubtedly bri:

ur.ar.ced even r.c

o forth much adverse commen
at teast arow teat in_ r> ̂  , , r .d o J Vc
v» m• inis ddscuc. lO—y ernphas

l n e ne e d for an educational pro gram among all citiz

prior to placin g in operation any long-ran ge optima

plan of desegre gation and, s t an ci—ng alone, WOUld
usti.fy what has been heretofore ordered.

Counsel may request additional fandii 

following the completion of the transcript.

United States District Ju

At Norfolk, Virginia

May.19, 1369



District Court Opinion of December



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

NORFOLK DIVISION

Leola Pearl Beckett, et al,

Plaintiffs,

and

Carlotta Mozelle Brewer, et a l , 

and

United States of America,

Plaintiff-Intervenors, 

v.

The School Board of the City of 
Norfolk, et al,

defendants.

M E M O R A N D U M

Fourteen years following the implementing 

decision in Brown v. Board of Education, 349 U.S.

294 (1955), the courts, litigants, school children 

and parents remain confused with respect to the 

constitutional requirements touching the desegregation 

or integration of public schools. That Brown and the 

later cases have established the clear duty to operate 

a unitary school system cannot be doubted. Many 

problems arise in connection with the interpretation 

of the mandates emanating from judicial decisions as 

applied to the local situation. They may vary accord­

ing to the particular locality; a factor acknowledged

)
)
)
)
)
)
)
)
)
)
)
)
) Civil Action No. 2214 
)
)
)
) '
)
)
)



by the Supreme Court in the second Brown opinion.

"Good faith implementation of the governing consti­

tutional principled" would still appear to be the 

tes t .

As we approach the ultimate and ancillary 

issues to be resolved in the pending case, reference 

should be made to the preliminary hearings pertaining 

to the School Board’s interim plan,^ and the District 

Court's memorandum opinion approving s a m e , Beckett 

v. School Board of the City of Norfolk, 302 F.Supp. 18 

(May 19, 1969). In fact, all prior proceedings in 

this prolonged litigation which commenced on May 10,

1956, have been incorporated into the record. While 

perhaps it cannot be said that counsel for the plaintiffs 

and plaintiff-intervenors are willing to concede that the 

School Board of the City of Norfolk has, at any time since

(1) Transcripts covering the hearings on the interim 
plan consumed 1,284 pages requiring ten separate 
days. The more recent hearings on the optimal 
plan of desegregation are contained in eleven 
volumes— a total of 2,173 pages--but as the hearings were 
sometimes reported by different court reporters, it was 
necessary to number each volume of the optimal hearinqs 
beginning with page 1 in order to expedite the tran­
scription. One volume of the interim hearings was 
also ̂ numbered in like manner. Pretrial proceedings 
required 137 pages being transcribed. Such hearings 
and pretrial proceedings only relate to proceedings 
subsequent to the decision in Brewer v. School Board 
of City of Norfolk, Virginia, 397 F . (2d) 37 (4 Cir.,
1968). 2

(2) The plaintiffs and plaintiff-intervenors indicated 
their intention to appeal the order approving the 
interim plan and the District Court prepared its 
opinion without the benefit of the transcript. No 
appeal was noted, probably due to the lack o f .time 
for appellate review.



- 3 -

thc school-closing days of 1958 , exhibited any lack
j

of "good faith," it is significant to note that the 

courts, both on thd trieil and appellate level, haveI
praised the School jBoard ot the City of Norfolk as
it has approached the problems arising in desegrega­

ting the public school system. Even counsel for the 

NAACP, representing the individual plaintiffs and 

plaintiff-intervenors, and counsel for the Civil

Rights Division of -the Department of Justice, repre­

senting the United States of America as a plaintiff- 

intervenor, will freely concede that the School Board, 

together with its administrative personnel and legal 

staff, has readily supplied all information desired, 

and has conferred at length with opposing counsel 

whenever requested to do so.

In the final analysis there is one primary 

question to resolve. Succinctly stated it is-- 

Does good faith implementation of 

governing constitutional principles 

require racial balancing in each 

individual school throughout a school 

system comprised of many different 

schools where it is freely conceded that 

massive compulsory bussing will be required 

to accomplish such racial balancing?

The NAACP and Civil Rights Division argue thati
the logical answer to the foregoing inquiry is in the



- 4 -

affirmative.^) Tjhe School Board, with whom this 

Court agrees as to this point, contends that the 

answer is in the niegative.

The decisions of the Supreme Court and 

several of the appellate courts, while not expressed 

with emphasis, suggest two mandates imposed upon 

school boards, to-Wit:

(1) A negative mandate which prohibits
i

"effective exclusion" of children|
by reason of race, creed or color.

i
The, key word in this mandate is

"exclusion.1' Such a negative
!

mandate applies with equal force 

throughout our nation and must be
j

be enforced now. '
i

(2) An affirmative mandate, apparently 

applicable thus far only where de jure 

s e g r e g a t i o n ) has existed prior to the 

first Brown decision, imposed upon 

school boards to correct, so far as it

(3) The positions of the NAACP and the Civil Rights 
Division are substantially identical. However, 
counsel for the Civil Rights Division stated, 
during the course of trial, that it might be 
possible to keep "one or two" all-black or 
all-white schools. (Vol. IX, p.35) Counsel 
for the NAACP disagrees and, as to this point, 
argue that the constitutional requirements are 
such that every school must be thoroughly 
desegregated (token desegregation being 
unacceptable). If the constitutional require­
ments go as far as either counsel suggests, the 
Court is inclined to agree with the NAACP as 
applied to the facts of this case. 4

(4) The issue of de facto versus de jure segregation 
w i l l  be considered further in this memorandum.



- 5 -

ma/ bo reasonable and feasible, 

largely segregated schools by 

providing maximum desegregation 

under the circumstances con­

fronting the local school board 

in each area.

There can be no doubts with respect to the 

negative mandate. Many opinions fail to point out 

with any degree of significance that a particular 

case falls within the "exclusion" category. The 

recent cases of Alexander v. Holmes County Board of

Education, ____  U.S. ____ , 38 L.W. 3161 (October 29,

1969), and Nesbit v. The Statesville City Board of

Education, ____ F. (2d) ____  (4 Cir. , Dec. 2, 1969),

speak of children and/or faculty members being 

'^effectively excluded" or "no person is to be excluded."

In Green v. County School Board, 391 U.S. 430 

(1968), and Raney v. Board of Education, 391 U.S. 443 

(1968), it is abundantly clear that there existed no 

valid distinction between the negative and affirmative 

mandates. In Green, a case from Virginia, there were 

only two school buildings in the entire county, both 

housing grades one through twelve, located in the 

eastern and western portions of the county, respectively. 

Buses used overlapping routes to take pupils to and from 

school. One school was all-Negro; the other was approxi­

mately 85% white and, at best, only minimal desegregation 

existed. Despite the fact that "freedom of choice" was 

available to all, only a handful of blacks, and no



I

whites, exercised^ a choice with respect to entering 

a school all or predominantly occupied by children 

of a different race. Thus, "freedom of choice" as 

a plan adopted by^ the school board "effectively 

excluded" childrei desiring to cross racial lines 

and the dual school system continued. Green and Raney 

are illustrative of school boards contending that 

they had desegregated completely and not that desegre­

gation was proceeding at an adequate pace. Indeed, 

in Raney, the predominantly white school was filled 

to capacity and the applications of 28 Negroes were 

denied for this reason. In an interesting review of 

Green, described as an "easy" case, in an article in 

Harvard Law Review, Vol. 82:63, p.lll, at p.114, it 

is said:

"In more difficult cases, where not all 

the factors point the same way, the Court 

will have to refine its analysis of the 

concepts 'dual system,' 'unitary system,' 

'segregated,' 'integrated,' and 'racially 

unidentifiable.' And it will have to begin 

facing some of the hard questions involved 

in implementing Brown: in formulating

desegregation plans, what weight is to be 

given to sound policies of education and 

school administration; what weight to wishes 

of southern black nationalists for separation, 

even where by the lights of the larger 

community the result will be 'inferior'I •

- 6 -



-7-

education; what weight to such evidencei
exists Ŝ hat once the ratio of Negro pupils 

to whites passes beyond a critical point 

the educational benefits from integration 

are reduced or lost altogether? Since
IBrown, l;he lower courts have been grappling
I

with thf-sse issues largely without guidance 

from thd Supreme Court. In Green the Court 

missed an important opportunity to provide 

guidance by re-articulating the reasons for 

and the very meaning of 'desegregation.'"

The City of Norfolk, with its hard-core 

central city area of a black community, now poses some 

of the foregoing problems, together with many others.

The "hard questions" must now be resolved in this case.

A third case decided along with Green and Raney 

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

Factually, Monroe would appear distinguishable from Green 

and Raney, but a careful reading of the opinion demonstrates 

that the Supreme Court declared the "system" to be 

discriminatory and made reference to "a" Negro school.

In discussing the "free transfer" available in Monroe, 

the Supreme Court pointed out that white children were 

at liberty to transfer out of an all or predominantly 

Negro school, even though they resided in the geographical 

area. This is not the transfer provision available in

the instant case.



- 8

Opinions' from other appellate courts point 

to the conclusion that the operation and maintenance 

of a particular school building, attended only by

not per se constitutionally 

States v . Greenwood Municipal

black children, is 

defective. United

Separate School District, 406 F.(2d) 1086, 1093,

(5 Cir., 1969); Goss v. Board of Education, City of 

Knoxville, Tennessee, 406 F . (2d) 1183, 1186 (6 Cir., 

1969); contra: Adams v. Mathews, 403 F . (2d) 181 

(5 Cir., 1968). The language of Mr. Justice Brennan 

in Green emphatically states that the duty is to 

eliminate racial discrimination by "root and branch" 

but, as heretofore indicated, such an expression is 

definitely allied with the concept of the negative 

mandate and, even if not so limited, has been construed 

as not requiring the abolition of all-Negro and all-white 

schools under all circumstances. See: Goss, supra.

The School Board freely concedes that the 

burden rests upon it to demonstrate that the school 

buildings attended only by black children on the one 

hand, or by white children on the other, are not the 

result of continued discrimination.

We turn then to the affirmative mandate.

If such a mandate requires the mixing of racial bodies 

in each and every school building, irrespective of any 

local problems confronting the School Board, the answer 

is obvious. Under such circumstances racial balancing, 

or some system approximating same, must be ordered, and 

it would be a waste of time and effort to file plans
i

which may be educationally beneficial to the children.



- 9-

The Civil Rights Division conceded, in argument, that 
any approach to racial balancing would annually require 
a constant shufflipg and reshuffling of children 
throughout the schbol system. It is agreed by all 
that such a shuffling process is most detrimental to 
children. Yet, under the plan strenuously urged upon 
the Court by the Civil Rights Division and the NAACP, 
elementary school children will probably not attend 
one school building more than two or three years at 
the most.

Assuming arguendo that the affirmative 
mandate is applicable only to instances involving 
states where de jute segregation existed prior to 
Brown I ) we do not construe the obligation of this 
mandate as requiring the performance of the impossible 
or such actions as are wholly unreasonable, impracticable 
and inconsistent with sound educational principles. The 
purpose of education is to teach the children--all children 
regardless of race. If this interpretation is erroneous, 
why file plans? Why take into consideration local 
conditions? Regrettably, .some courts have interpreted 
the abolition of "deliberate speed" and the words 
"desegregate now" as an indication that the mixing of 
bodies is of primary importance and sound educational 
principles must take a back seat. This Court does not 5

(5) The Supreme Court has not spoken on the limitations 
imposed upon school boards in states where de jure 
segregation existed prior to Brown I, as contrasted
with states where or!” cl-a_facto segregation was
present before 195-1. We entertain serious doubts 
whether the absence of do jure segregation is 
sufficient to avoid the affirmative mandate.

' Moreover, we question whether Brown I is a proper 
cut-off point and whether school segregation laws 
constitute the only factor in determining whether 
de jure segregation was created. See discussion 
infra.



- 10-

so interpret the language of the Supreme Court in 
this manner. We still believe that, while imple­
mentation toward a unitary system must be immediate 
and time for compliance with the negative mandate 
has now passed, ŵ iere a school board presents a 
reasonable plan g(rounded upon sound educational 
principles, there1 remains room for the adoption of 
a plan with reasonable prospects for success even 
though there may remain, for a period of several 
years, some school buildings which will be occupied 
only by blacks or by whites.

If the foregoing approach to the problem 
is incorrect, the Supreme Court must properly bear 
the responsibility if public education collapses.
In the face of superior knowledge available as to the 
ultimate effect of merely "mixing the racial bodies" 
without regard to the other aspects of education and 
social class, it cannot be said that the children, 
irrespective of race, will benefit. If desegregation 
in public schools is confined to "mixing racial bodies," 
we agree with the NAACP in this case and, if an appellate 
court orders that type of "desegregation" in the public 
schools of Norfolk, an order will be entered to this 
effect although it would be impossible of immediate 
compliance because of the bussing problem. And whether 
the $4,000,000 capital investment and $800,000 annual 
operating expense will be forthcoming is indeed 
problematical, although counsel for the School Board 
stated in argument that they would make every effort 
to procure the same, even though it meant sacrificing 
other aspects of attempted quality education.



-11-

The difficulties with respect to the 

so-called central city, including Norfolk, are so 

numerous and apparent that it hardly requires any 

discussion. The isolated pocket areas where blacks 
reside throughout the city are of no consequence 

and can be, without insurmountable problems, dove­

tailed into an adequate desegregation plan. But 

when we approach the hard-core black area, the same 

difficult questions arise which would confront New 
York and Los Angeles in their famous ghetto localities 

if and when these two major cities are required to 
thoroughly desegregate the schools located in Harlem 

and Watts. All witnesses and counsel freely concede 

that compulsory massive cross-bussing is the only 

means available to break up either the hard core 

black or white areas where there are no nearby 

areas occupied by the opposite race. If we are to 

strive for an ultimate goal of random housing pattern 
by race, Norfolk requires a massive movement of 

94.6% blacks to white communities according to Pettigrew; 

a situation which is rather typical throughout the larger 

cities of our nation where statistics reflect that a 

move of 87% blacks to a white community is required 

in order to create a random housing pattern by race.

The magnitude of the problem is apparent with housing; 
it is only slightly less a problem with schools.



- 1 2 -

As applied to the facts of this case, and 

under the testimony adduced from experts in the fields 

of education, psychology and social s c i e n c e s , we 

hold that the governing constitutional principles 

require good faith desegregation of races in public 

schools, to an approximate minimum of ten percent where 

the population justifies this percentage, applied to 

each individual school wherever the particular school 

can be desegregated consistent with (1) sound educational 

principles, (2) the cost factor involved including the 

time and expense of transportation, and (3) the future 

planning relating to location of school buildings. On 

the basis of the best available research, we reject 

the argument that a minority of white children should 

be required to attend a predominantly black school 

where the white children reside beyond the bounds of 

a proper and legal zone line. We agree that white and 

black children alike tend to benefit, through achievement 

or o t h e r w i s e , ^  wherever the white pupils are in the 

majority at a particular school. We decline to accept 

the invitation to require massive compulsory bussing

(6) We have no hesitancy in examining the case from 
the standpoint of these criteria. It was upon 
these grounds that the Supreme Court overruled 
Plessy v. Ferguson, 163 U.S. 537 (1896), in 
Brown v. Board of Education, 347 U.S. 483 (1954). 7

(7) The words "or otherwise" include, but are not 
limited to, the environment, the cultural values, 
the necessity of adjusting with persons of a 
different race, and many other intangibles.



-13-

merely to achieve desegregation, especially where the 
cost and travel time involved is out of proportion 

with the probable benefits. Nor do we feel that the 

Constitution commands racial balancing in each schooli
building predicate^ upon the percentage of white and!i
black children in jbhe several levels of public 

education; to-wit, 1 elementary, junior high school, 

and senior high school. We are also of the belief 
that, at least with respect to the first three 

elementary grades, the neighborhood school concept 

should be retained for an indefinite period.

Having stated, as concisely as possible, 

the conclusions reached, we turn to the evidence in 

the case and the collateral issues leading to the 

ultimate inquiry. : In discussing these matters very 

little reference will be made to the prior history 

of the Norfolk public school system or its prolonged 

litigation as the same is fully documented.v ' It is 8

(8 ) Beckett v. School Board of City of Norfolk, Virginia, 
(reported with Adkins v. School Board of the City of 
Newport News), 148 F.Supp. 430 (1957), affirmed sub 
nom. School Board of City of Norfolk, Virginia v. 
Beckett (School Board of City of Newport News, Va. 
v. Atkins) , 246 F. (2d) 325 (4 Cir., 1957) , cert, 
denied sub nom. School Board of City of Newport News, 
Virginia v. Atkins, 355 U.S. 855, 78 S. Ct. 83,
2 L.Ed.(2d) 63 (1957); School Board of City of Norfolk 
v. Beckett, 260 F.(2d) 18 (4 Cir., 1958); Beckett v.
School Board of City of Norfolk, Va., 181 F.Supp. 870 
(1959); Beckett v. School Board of City of Norfolk,
185 F.Supp. 459 (1959), affirmed sub nom. Hill v. 
School Board of City of Norfolk, Virginia, 282 F.(2d) 
473 (4 Cir., .1960); Brewer v. School Board of City of 
Norfolk, Virginia, 349 F.(2d) 414 (4 Cir., 1965); 
Beckett v. School Board of City of Norfolk, Virginia, 
269 F.Supp. 118 (1967); Brewer v. School Board of City 
Norfolk, Virginia, 397 F.(2d) 37 (1968). See, also,

(continued)



-3 4-

significant to notin that theii
law with respect to

desegregation of j 

period of years ad

ubl i a 

the

schools 

j udicial

has changed over a 

decisions have been

forthcoming. For example, only eleven years ago, 

the Supreme Court granted a motion to affirm in 

Shuttlesworth v. Bd. of Education, 358 U.S. 101 

(1958), on the limited ground expressed in the 

District Court's opinion, Shuttlesworth v. Birmingham 

Board of Education, 162 F.Supp. 372, 384 (N.D. Ala., 

1958--three-judge court), upholding a statute requiring 

certain tests to be administered to Negro pupils seeking 

admission to designated schools. It was held that the 

statute was constitutional upon its face. It is 

certainly doubtful that the same conclusion would be 

reached at the present time. 8

(8) (continued) the related cases of James v. Almond, 
170 F.Supp. 131 (E.D.Va., 1959— three-judge 
court); James! v. Duckworth, 170 F.Supp. 342 
(E.D.Va., 1.959) affirmed sub nom. Duckworth 
v. James, 267 F . (2d) 224 (4 Cir., 1959), cert, 
denied 361 U.S. 835, 80 S. Ct. 88, 4 L.Ed.(2d)
76 (1959); Beckett v. School Board of City of 
Norfolk, 2 Race Rel. L. Rep. 337 (E.D.Va., 1957—  
otherwise unreported); Beckett v. School Board of 
City of Norfolk, 3 Race Rel. L. Rep. 942-964 
(otherwise unreported - School Board Resolution 
of July 17, 1958); Harrison v. Day, 200 Va. 439, 
106 S.E.(2d) 636 (1959); Adkinson v. The School 
Board of City of Newport News (unreported opinion 
of May 12 , 1959) .

I



-15-

THE PURPOSE AND PRINCIPLES OF 
THE SCllO'bL~DOARD~rS OPTIMAL PLAN

Since certain modifications were adopted 

by the School Board for the optimal plan following 

the hearings on the interim p l a n , w e  deem it 

appropriate to set forth at length the stated purpose

and seventeen cardinal principles of the optimal plan.
I

These principles, iin the main, are now under attack 

by the NAACP and Civil Rights Division. The full
i

text is set forth herein and, as footnoted, supply{
the research data .upon which the main controverted 

principles are based.

! PURPOSE
I ■ '

The Plan! is designed to effectuate a 
constitutionally appropriate unitary schooli
system which Will provide equal educational

iopportunity for all races to the full extent 

of the capacity of the Norfolk school system, 
i PRINCIPLES

The Plan has been evolved to accomplish 

the stated purposes based upon conclusions 
arrived at by the School Board and the School 

Administration, after careful consideration and 

analysis of the demographic, socio-economic and 9

(9) The principles confronting the court at
the hearings on the interim plan are stated 
in the opinion, 302 F.Supp. 18, 28.



-16-

other circumstances of this school system 
and adjacent school districts, the results 

of extensive recent research, and the advice 

of those well educated and experienced in the

field. The more important of these conclusions
I

are set forth below.
!

1. Desegregation can provide the conditions 

for an improved educational program for the City 
as a whole, but, in order to achieve and maintain 

the benefits of desegregation, the Plan must be 
soundly designed.

2. Children of all backgrounds tend to 

do better in schools with a predominant middle
i

class milieu.; Such a milieu should be maintained 
in each school so far as p r a c t i c a l .  ^0)

3. Although there are a significant number 

of white children in this school system of a low 

socio-economic class and a significant number of 

Negro children of a middle class, there is at 

this time a high statistical correlation in 

Norfolk between white children and a middle 

socio-economic level and between Negro children 
and a lower socio-economic level. In order to 

maintain a predominant middle class milieu, a 
school in the Norfolk system must have a clear 

majority of white children. In most instances, 10 * *

(10) Harvard Educational Review, Vol. 38, No. 1,
p. 67 (Pettigrew); Racial Isolation in Public
Schools, Appendices (U. S. Commission on Civil 
Rights), p. 202 (Wilson Study).



-17-

a predominantly Negro school in Norfolk will 
be of a predominantly disadvantaged socio­
economic class.

4. Negroes in predominantly white schools 
show substantially higher achievement than those 
in all Negro Schools, but Negroes in predominantly 
Negro schools! do no better (if as well) than those 
in all Negro schools. ̂ 2)

5. The achievement: of white children in 
predominantly white schools is no lower than 
that of white children i.n all white schools, but 
the achievement of white children in predominantly 
white schools is substantially higher than that
of white children in predominantly Negro schools.(13)

6. The educational opportunity of Negroes 
in predominantly white schools is substantially 
greater than that of Negroes in all Negro or 
predominantly Negro schools, and the educational 
opportunity of the white students in predominantly 
white schools is no less than that of the opportunity 
of white students in all white schools. A Negro 
pupil in a predominantly Negro school has no greater

(11) Harvard Educational Review, Vol. 38, No. 1,
p . 70 (Pettigrew)? Racial Isolation in Public 
Schools (U. S. Commission on Civil Rights), 
p. 91.

(12) Racial Isolation in Public Schools (U. S. 
Commission on Civil Rights), pp. 113-114; 
Equality of Educational Opportunity, (Office 
of Education, U. S. Department of Health, 
Education and Welfare), p . 29 (James S. Coleman, 
et al). 13

(13) Testimony of Dr. James S. Coleman in Hobsen 
v. Hansen, tr. p. 2090.



- 1 8

( 1 4 )

educational opportunity than a Negro in an 

all Negro school, and a white pupil in a 

predominantly Negro school has less educa­

tional opportunity than he would have in an 

all white or. predominantly white school.

7. There is a tendency for the achievement 

level of children of both races to vary inversely
i

with the percentage Negro in a school, but 
knowledge of. the subject is insufficient at this 

time to allow a prediction of the critical per­

centage Negro in a particular school. Such 

critical percentage Negro varies from school
j

to school, depending primarily upon the socio­
economic class of students of both races, but

i
also upon the number, excellence and preparation 

of faculty; public and pupil attitudes and 

motivation; the nature of physical facilities; 

and the character and quality of the program 

of education offered.
8. It has been clearly established that 

there will be an improved educational opportunity 

for Negroes in nearly all combinations of 
circumstances where the percentage Negro is less 

than 25%. It also has been clearly established 

that it is a practical impossibility to provide 

improved educational opportunity for Negroes or 

maintain the educational opportunity for whites

Racial Isolation in Public Schools (U. S. 
Commission on Civil Rights), p. 204.



- 1 9 -

in a school in which there are more than

50% Negroes, when the Negroes are predominantly

of a lower socio-economic class.

9. In order to provide the best educational 
opportunity for students of both races under the 

circumstances applicable to the schools of Norfolk, 

30% Negro in each school would be optimal at this 

time. The maximum would be 40% Negro in any 

school, and a percentage that high should be 
attempted only in instances in which most of

the additional factors affecting the result 
are favorable. A program of continuing research 

and appraisal for Norfolk schools should be 

established on the basis of which a determination 

of optimal and maximum percentages should be
i

periodically ̂ adjusted.

10. Where the educational opportunity of 

middle class children of either race is sub­
stantially decreased by their being placed in 

the minority in a school enrolling children 

predominantly of a lower socio-economic class, 

those able to do so seek educational opportunity 
elsewhere, with a resultant instability of school 
enrollment for individual schools and the system 

as a whole. The maintenance of a substantial 
middle class enrollment in the school system is

j
essential to the provision for educational 
opportunity for Norfolk pupils of both races 15

(15) School and Family Effects on Black and White
Achievement: A Re-examination of the USOE Data,
p. 34, Dr. David J .  Armor (now in press).



- 2 0 -

which is eqUeil to the educational opportunity 

provided others in Virginia.

11. In Ithe Norfolk system at this time, 

the assignment of a minority of white children

to a predomi nantly Negro school will not foster

equal educational opportunity for either race 

in either the short or long term.

12. Each school in the system should be 

optimally desegregated to the extent of the 

number of middle class children available in
I

the system. To this end, there should be no 

all white sdhools, except as dictated by 

practical necessity. Any plan should seek to

retain the recognized educational advantages
i(

of neighborhood schools at the elementary
•i

school level, but all reasonable alternatives 

should.be examined, and any which are practical 

should be employed to eliminate all white schools

13. Each child in the system should have at 

least a substantial number of years of his school 

career in an optimally desegregated school. 

Compensatory educational methods should be fully 

employed with any predominantly Negro school 

which may result from the limits of the number

of available white middle class children. In 

addition, interschool activities and special 

curricula should provide some desegregated 

experience for children in every school.

i



- 21 -

14. An unstable school system, in which 

frequent substantial changes are required inI
pupil and faculty assignment, school and grade 

organization, and construction programs, 

necessarily causes erosion of the educational 

program and is unmanageable administratively.

The school system should be stabilized to the 

extent that the plans for organization of 

grades, facility construction, the placement 

of faculty, and assignment of students will not 

have to be again massively rearranged in the 

foreseeable future. New methods should be 

examined and attempted, but broad experimenta­

tion with the organization of the school system, 

which is not based on reliable evidence indicating 

successful results under circumstances prevailing 

in this City, should not be undertaken because of 

the potential destructive effect on the system.

15. The success cf an educational program 

depends in great measure upon teachers who are 

not only prepared educationally to teach the 

assigned subjects, but who are also competent

to perform under the circumstances in which they 

are placed. The assignment or reassignment of 

faculty and principals to accomplish desegregation 

should be implemented with those who have been 

adequately prepared. Programs should be conducted 

to provide adequate preparation of all school 
personnel.



- 22 -

16. The uncertainties, frustrations and 

delays attendant to the administration of a

school systejm of more than 50,000 pupils under
I

judicial supervision is erosive of that system.

The responsibility for the control and operation 

of the Norfolk public schools should be clearly 

placed with the School Board, consonant with 

practical assurance of the constitutional 

exercise of that responsibility.

17. Public confidence in the quality of 

the educational opportunity offered by a school 

system is necessary to the maintenance of thar 

quality. Only when the taxpayers and patrons

of a school system have confidence in its present 

and future programs will it receive the financial 

and personal' support which it requires to maintain 

quality education. The involvement of those 

concerned from all segments of the community 

and a full public understanding of the nature 

and reasons for any plan evolved are important 

to public confidence.

The principal attack upon these seventeen 

stated principles is directed to paragraphs numbered 

2 through 14. There is general agreement as to principles 

numbered 1, 15, 16 and 17.

Reduced to simplicity the objections to 

principles numbered 2 through 14 lie in the plain 

fact that, for a number of years at least, certain 

black children may attend an all or predominantly



-23-

black school during their earlier years of

education. The plan, as designed, does assure 

that al1 children > white and black alike, will 

attend a thoroughly desegregated school for a 

minimum of three years during their twelve years 

of public education. Acknowledging that there are 

cumulative adverse effects on blacks from attendance 

at a school which; is occupied solely or predominantly 

by children of their own race, the solution of this 

problem is not readily at hand. Practical diffi­

culties require a balancing of all interests to the 

end that a sound educational system may be maintained 

for all children irrespective of race.

What is apparent from the principles andi
plan is that Norfolk, through its able School Board,I
is endeavoring to attain a maximum of school desegre­

gation wherever it is consistent with a sound educational

(16) This is probably true even though all children 
are granted certain transfer provisions under 
the optimal plan, said provisions stating:

"Any child will be permitted to transfer 
from the school to which he is assigned under 
the rules set forth above, to a school which 
has less than 30% of his race and has available 
space. Availability of space will be determined 
by the School Administration under rules of 
uniform application established by the School 
Board and designed to encourage optimal desegre­
gation. Th$ administrative procedure for such 
transfer shall be readily available to each 
child." ,



- 2 4

system. The olden days of massive resistance are 

gone forever. i

The experts testifying as to the principles 

in behalf of the NAACP and Civil Rights Division were 

Dr. Gordon Foster,1 an Associate Professor of Education 

at the University of Miami and presently serving as 

Director of the Florida School of Desegregation 

Consulting Center,^17) and Dr. William F. Brazziel, 

an outstanding Negro educator who is presently serving 

as Professor of Higher Education at the University of 

Connecticut while on leave from Norfolk State College 

where he served as Director of General Education and, 

of course, he has some knowledge of the local situation. 

To a lesser extent with respect to the principles,

Dr. Jack L. Larsen, the Professor of Education and 

Chairman of the Department of Educational Administration 

at Rhode Island College, also testified at the hearings
/  1 O  \

on the interim plan' 1 but, after having an opportunity

(17) The Florida School of Desegregation Consulting 
Center is operated by the University of Miami, 
but is wholly funded by the federal government. 18

(18) Dr. Larsen was present for the first week of 
hearings on the optimal plan, but was not called 
as a witness. When he testified at the sessions 
involving the interim plan (which included six of 
the principles ultimately incorporated under the 
optimal plan), Dr. Larsen had only a brief period 
to give consideration to the Norfolk school system 
due to the fact that he had testified two days 
earlier in a case involving school desegregation 
in Portsmouth, Virginia, where he proposed a plan 
which was substantially accepted by the Court.
The statement of counsel for the NAACP that 
Dr. Larsen's testimony on the optimal plan would 
be "largely cumulative" cannot be accepted as 
would be apparent from a review of his testimony 
in the Portsmouth case.



-25-

to study the details of the optimal plan, Dr. Larsen 

did not testify further. Likewise, to a lesser extent 

as to the principles of the plan, Dr. Michael J. Stolee 

was presented as a witness for the Civil Rights Division. 

At the time of the interim plan hearings, Dr. Stolee 

was the Director of the Florida School Desegregation 

Consulting Center(19 *) but, by the time of the optimal 

plan sessions, Dr. Stolee had been designated as the 

Associate Dean of the School of Education at the 

University of Miami. As Dr. Foster and Dr. Stolee 

divided their work with respect to this case, Dr. Stolee 

prepared suggested plans or methods of operation of 

the Norfolk school system, whereas Dr. Foster devoted 

his attention to the principles as stated in the plan.

Dr. Stolee concedes that he has•had no training in the 

field of social science.

The School Board presented, in addition to 

the testimony of Mr. Lamberth, the Superintendent of 

Schools, the highly qualified Dr. John C. McLaulin, 

employed by the School Board as Director of the Depart­

ment of Educational Research and Planning, together 

with Dr. James S. Bash, the Director of the University 

of Virginia Center on School Desegregation and a 

Professor in the School of Education, and Howard 0. 

Sullins, a program officer for the United States Office

(19) Dr. Stolee was succeeded in this position
by Dr. Gordon Foster.



- 2 6 -

of Education, Department of Health, Education and 
Welfare at Charlottesville, Virginia. Finally, after 
initial dif ficultids, (20) the testimony of Dr. Thomas F. 
Pettigrew, undoubtedly the most outstanding and 
knowledgeable person in the field of sociology and 
race relations as related to education, was taken.

Weighing this mass of testimony it is 
apparent that the experts are in agreement on certain 
fundamental issues, but part company on others— largely 
due to the practicalities of the existing situation. 
Certain statements made by the School Board's experts 
may be characterized as favorable to the position 
advanced by the NAACP and Civil Rights Division.
Minor concessions tending to support the School Board 
were forthcoming from the experts presented by the 
NAACP and Civil Rights Division. Nevertheless, what­
ever may be the prior history of these experts, it 
can be said without qualification that they all favor 
desegregation of public schools. In fact, one of the 
articles written by Dr. Pettigrew*21* boasts of the

(20) Dr. Pettigrew, after examining Norfolk's 
principles and plan, agreed to testify at the 
instance of the School Board. He was subjected 
to a discovery deposition prior to the optimal 
plan hearings, and thereafter became ill. At 
one time he declined to go further, assigning 
the condition of his health as a reason. Sub­
sequently, he agreed to give his testimony at 
Harvard University and, to comply with the 
Court's prior order that all expert witnesses 
appear personally before the Court, the judge^ 
and counsel went to Harvard to take this testi­
mony. With colleges and universities receiving 
substantial grants for research and related 
matters from the federal government, it is 
increasingly difficult to secure the services 
of expert witnesses in issues touching public 
school desegregation, especially when testifying 
at the instance of a School Board.

(21) Equality of Educational Opportunity in the Large 
Cities of Americas The Relationship between

(continued)



-27-

fact that he is a "racial integrationist." The 

foregoing statements are made simply to demonstrate 

that there are no|"segregationist" views advanced
i

by any witness in this case. Nor are the issues 

raised herein comparable with any other case 

previously decided on the appellate level.

What courts are now overlooking is that 

the primary variable is social class; not race. As 

Dr. Pettigrew so aptly points out during his cross- 

examination, if the courts, the Civil Rights Division, 

and the proponents of desegregation do not awaken 

to this fact, they are likely to "throw out the baby 

with the bath water." Indeed, as Dr. Pettigrew examined 

the prior testimony he "had a little trouble figuring 

out the sides without a program." He states that 

Dr. Stolee, Dr. Foster, and Dr. Brazziel have 

"systematically whittled away and attacked everything 

which demonstrates the efficacy of desegregation."

Thus, in effect, he concludes that unless an intelligent 

approach is made to the problem of desegregation from 
a social class standpoint--and not solely through the 

mixing of racial bodies— desegregation will be a complete 

failure. "Integration," according to Pettigrew, 21

(21)  (continued) Decentralization and Racial 
Integration (Teachers College, Columbia 
University) p. 83. Dr. Pettigrew describes 
the progress of desegregation in the South 
as being "slow and painful since 1 9 5 4 , "  
but in the West and North the "situation 
is worse now than it was at the time of 
the Court ruling [1954]."



- 2 8 -

presupposes desegregation, and the real ultimate 

benefit is achieved through "integration."^22^

The suggested racial balancing, coupled 

with mandatory cross-bussing, will accomplish

"desegregation" as, defined by Dr. Pettigrew, but
!

it will also inevitably mean that the true benefits 

will never be achieved. We cannot believe that the 

Supreme Court, in requiring "desegregation," has 

merely ordered a mixing of racial bodies without 

consideration of the social class factor.

The crux of the controversy between the 

experts lies in the theory that children benefit 

from properly desegregated schools by reason of 

association with a predominant middle class milieu. 

We are not now talking about the individual social 

class of each particular child. It is the social 

class of the overall group in gross which makes 

desegregated schools advantageous to all. Race,

(22) Courts have been reluctant to define such terms 
as "desegregation" and "integration." Experts 
place varying constructions upon these words.
Dr. Pettigrew defines "desegregation" as a mere 
mix of bodies, black and white, in the same 
school, preferably in the percentage ratio of 
20 to 40 black. He does not classify the public 
schools in Washington, D. C., as being "desegregated" 
where the ratio is 92% black and 8% white. Nor 
does he label Burlington, Vermont, a "desegregated" 
school system where the ratio is 2% black and 98% 
white. "Integration," Pettigrew defines, is the 
quality of the mix and the type of interaction 
between children of different races, with special 
emphasis on cross-racial acceptance.



-29-

standing alone, is definitely a secondary factor.

It is significant to note that all experts are in 

substantial agreement that the social class is 

important, although they differ as to the weight 

which should be attached to this factor.

If the social class of the associated 

group is, as Dr. Pettigrew states, the most important 

major criteria in determining the success of desegre­

gation as we now find, it follows that a black child 

of low socio-economic background and status will 

probably benefit as much, by achievement or otherwise, 

if he attends an all-black school of middle class 

children. The same principle applies to white pupils. 

Thus, the social class climate is what brings about 

a heterogeneous school and, to this extent, the school 

system is able to exercise some measure of control 

through the use of a ratio of blacks to whites wherever 

it can be established from a sound educational stand­

point .

In rebuttal, the experts testifying at the 

instance of the Civil Rights Division and NAACP argue 

that the social class of the individual child's family 

is the greatest single correlate of achievement. This 

statement is substantiated by the noteworthy Coleman 

Report. While this may be the acme of perfection, 

the social class of the individual child's family is 

hardly susceptible of control by any school system.



- 30-

It is for this reason that the area-based plan 
predicated upon controlled environment was adopted 
by the School Board of the City of Norfolk which will, 
in the final analysis, benefit the greatest number 
of children, irrespective of race, and thereby 
bring about a successful plan of desegregation 
and ultimate "integration" as defined by Dr. Pettigrew.

Obviously the social climate approach is 
what attracted Dr. Pettigrew to testify in this case.
He concedes that the plan is "weak" in some respects, 
especially at the elementary l e v e l b u t ,  he says, 
we must be practical in resolving the difficulties

(23) Since Dr. Pettigrew testified, information has 
been received that the Norfolk Redevelopment 
and Housing Authority and the Council of the 
City of Norfolk conducted, on December 1, 1969, 
a public hearing on the proposed East Ghent- 
South Redevelopment Project, the area of which 
embraces the Robert E. Lee Elementary School 
which this current year houses 449 Negro and 
7 white children. The area was formerly all 
white, became desegregated, and is now completely 
resegregated. The Redevelopment and Housing 
Authority is also implementing the East Ghent- 
North Redevelopment Project which embraces the 
John Marshall Elementary School which this 
current year houses 525 Negro and 10 white children. 
Like the Robert E . Lee area, the John Marshall 
school was formerly all-white, but gradually 
became black and the location has resegregated over 
a period of years. The two elementary schools 
named above will be demolished. The Housing 
Authority has assured the School Board that the 
overall area (bounded by 21st Street on the 
north, Olney Road on the south, Granby Street 
on the east, and Colonial Avenue on the west) 
will be designed to , rcl tract both white and 
Negro citizens. While it is impossible to state 
when these projects will be completed, it affords 
an opportunity for an educational park complex 
to be established if deemed appropriate. The 
report to the Court on this latest development 
was filed on December 8, 1969. The area is 
located in the southwestern portion of the city.
This is an example of the recurring problems 
confronting a School Board with limited funds 
available for capital improvements.



- 31-

presented according to the local s i t u a t i o n . A s 
Dr. Pettigrew testified with respect to the Norfolk 
plan, it is the—

"First time I have seen a public school 
system fjlatly attempt to explicate 
principles that would guide their plans 
based oh the best social science data 
we now have available."
Again, while admitting weaknesses in the plan 

(not, however, at the senior high school level) , he 
states, with respect to the work of Dr. McLaulin who 
had the primary responsibility of drawing the attendance 
zone lines, the following:

"To maximize desegregation, I think that 
Dr. McLaulin has pushed that effort to 
just about th-' rur.;..,n hile given the area- 
based plan." 24

(24) Near the conclusion of the prolonged hearings, 
the Court noted tL-r- a fuv elementary schools, 
such as Daston ar a .’...'risen, were not filled to 
capacity for die current year. The effective 
student capacity of these two schools is 540.
The maximum student capacity is 600. During 
the current year, Easton houses 410 white and 
45 Negro pupils. Fairlawn is housing 512 white 
and 1C Negro children. While it would require 
bussing by public transportation to move a total 
of approximately .100 Negro children to these two 
predominantly white schools, the overall expense, 
even if assumed by the School Board, is not an 
insurmountable problem. Counsel for the School 
Board agreed to pursue this matter, as well as 
certain other predominantly white schools where 
there may be a reasonable number of vacancies, 
in an effort to attain more desegregation involving 
black children in predominantly white schools.
While the Court is approving the plan as submitted 
by the School Board, immediate steps should be 
taken, effective with the second semester, to 
fill the vacancies in predominantly white schools 
by Negro children and, if possible, from the hard­
core central city area. Application of the transfer 
provision may be the appropriate manner if the 
parents are agreeable.



- 32-

The foregoing are the words of an admitted 
"racial integrationist."

All experts agree that there has been no 
gerrymandering to perpetuate segregation. On the 
contrary, all experts questioned on the subject state 
unequivocally that there have been several instances 
of gerrymandering to effectuate desegregation.

In determining the social class climate, it 
is perhaps true that available research data for Norfolk 
has not been the best. The pressure of time, now 
apparently so urgent with the courts, has precluded 
better data. The experts substantially agree that 
"income" is not the major factor in ascertaining 
social class. However, the School Board, confronted 
with a collapse of negotiations' in mid-March 1969 , was 
ordered to prepare and file its optimal plan by 
June 23, 1969. In the interim period, there were 
eleven (11) days of hearings requiring the attendance 
of counsel and the administrative school personnel.
The census data from 1960 was, of course, available. 
Information obtained from this source, as analyzed by 
Taeuber, a sociologist at the University of Wisconsin, 
reflects that, in 1960 , one-half of white Norfolk was 
middle class, and only 15% to 18% black Norfolk was in 
the same category. This compared with a nationwide 
average of 60% of white America being in the middle 
class, and 25% of black America falling within this 
grouping. Undeniably, this percentage for Norfolk has 
increased among both white and black in the past ten 
years. The 1970 census will demonstrate the extent 
of the change. In the main, the School Board relied 
upon (1) a Neighborhood Analysis, prepared by the



I -33-

City Planning Commission in August 1967, (2) ConsumerI
Profiles for the Norfolk-Portsmouth Metro Area in 

January 1969, andj(3) City Profiles for the Norfolk- 

Portsmouth Metro Area in April 1969. The social con­

ditions set forth in (1) above specify income, educa­

tion, unemployment, infant mortality, tuberculosis 

cases, juvenile offenses, adult offenses, food stamp 

applications, food stamp recipients, welfare appli­

cations, and welfare recipients. This criteria is 

allocated according to planning districts and it

requires no genius to convert a specific school area
i

into the proper planning district. True, some will 

overlap and it does not give precise figures, but it 

cannot be said, as urged by the plaintiffs and 

plaintiff-intervenors, that the'sole basis for such 

determination is on "income." Moreover, it is 

believed that the 1970 census will be comparable with 

the figures supplied by the Planning Commission, except 

to the extent that there has been an interim change 

in housing patterns.(25) 25

(25) The Court makes no specific suggestion as 
to further research on the social class 
climate of each area. The experts indicate 
that the extent of parental education is the 
most important criteria to follow. Whether 
forms could be distributed to school children 
for completion by the parents, thus revealing 
their education, is a matter for the Board to 
determine. Conceivably the parents may object 
to completing such a form, but it may be worth 
the effort.



-34-

With personal knowledge of the particular 

areas throughout the City of Norfolk, it is a reasonably 

safe assumption that, analyzed by any method acceptable 

to the field of social science, the low and middle 

social class climate area-based plan is reasonably
I

accurate as presented by the School Board.

Closely allied with the issue of social 

class climate and ultimate success of the Board's 

plan is the subject of middle class flight. While 

there are those who refer to this as "white flight," 

the experts do not emphasize that term, although there 

may be more whites than blacks who tend to flee from 

central cities. Statistically, it is probably next 

to impossible to determine just how many whites or 

blacks move out of a central city for the purpose of 

protecting a middle class education for their children. ^6) 

The middle class Negro is more likely to move to an 

area outside the hard core black population than is 

the Negro in the lower socio-economic group. Especially 

is this true due to the rapidly shifting population in 

Norfolk where resegregation has become an increasing 

problem. 26

(26) While not a part of the record, it is a matter 
of general knowledge that two of the original 
counsel for the plaintiffs in this case formerly 
lived in the central city area. While they still 
maintain their lav; offices in Norfolk, they have 
since moved across the line to Virginia Beach 
where they reside along with high and middle 
class residents of that area. They live, in 
fact, within several hundred yards of the Norfolk 
city line.



-35-

Anti-metropolitanism, as it is sometimes 

called, brings into focus what will happen to Norfolk 

if racial balancing, coupled with compulsory cross­

bussing, is adopted as advocated by the NAACP and 

Civil Rights Division. The local School Board is 

endeavoring to deter the middle class flight by 

promoting a reasonable ratio of white and blacks 

throughout the school system and, at the same time, 

assuring a thoroughly desegregated school system 

for a minimum of three years throughout the educa­

tional process for all pupils, together with every 

reasonable prospect for long-range successful 

integration according to Pettigrew. ^7) jf the 

middle class elects to move across the city line 

into the adjacent cities of Virginia Beach and 

Chesapeake, there will be nothing left in Norfolk 

which will provide a solid basis for a sound educational 

system as the lower class, whether white or black, 

cannot benefit merely by reason of mixing the bodies.

We are mindful of the fact that the School 

Board's plan may result in a mere experimentation but, 

if so, it is presently well supported by the best available 27

(27) Perhaps the prospects for success of the plan 
are best demonstrated by Dr. Pettigrew's 
agreement to servo the School Board as research 
consultant now and in the future years.



- 3 6 -

research and brains on the subject. Many of the 
difficulties confronting courts and litigants have 
been due to a lack iof more specific definition of 
words. Legal definitions of "desegregation,"
"integration,” "system," "unitary," "nondiscriminatory," 
"racially unidentifiable," and many other words are 
woefully lacking. Does the "system" infer that each 
individual school buildinq must be thoroughly 
"desegregai-'-now? If so, as applied to Norfolk, 
racial balancing and compulsory cross-bussing constitute 
the only answer.(28) not believe that the Supreme
Court has ruled out reasonable experimental plans grounded 
upon factors which give rise to the belief that such 
experimentation will lead to successful integration 
for the city as a whole. On June 2, 1969, the Supreme 
Court, speaking through Mr. Justice Black in United 
States v. Montgomery Bd. of Educ., 395 U.S. 225, 235 
(1969) , stated, in part, "(T)his Court also has recognized, 
in this field the way must always be left open for
experimentation."(29) it is interesting to note that, in

(28) The plan or proposal advanced by the Civil 
Rights Division through Dr. Stoiee was stated 
not to be the perfect answer. However, the 
School Board's experts concede that Dr. Stoiee's 
plan, if required by law, is as good as any that 
could be submitted.

(29) See, also, Green v. County School Board, 391 
U.S. 430, 439 (1968) , where it is said:

"There is no universal answer to complex 
problems of desegregation; there is obviously 
no one plan that will do the job in every 
case. The matter must be assessed in light 
of the circumstances present and the options 
available in each instance. It is incumbent 
upon the school board to establish that its 
proposed plan promises meaningful and immediate 
progress toward disestablishing state-imposed 
segregation. It is incumbent upon the district 
court to weigh that claim in light of the facts 
at hand and in light of any alternatives which

(continued)



I 37-

Montgomory Board of Education, there is dicta with 

respect to the subject of racial balancing among 

the faculty. Apparently the United States conceded 

in its brief that racially balanced faculties are 

not "constitutionally or legally required." However, 

the Supreme Court did not intimate its position on 

the subject. It is, of course, a great temptation 

to any district judge to order racial balancing in 

each individual school building, as such a requirement 

would probably remove school desegregation cases from 

the docket when the computer takes over. Nevertheless, 

there are at least some district judges who feel that 

the primary function of the public school system is to 

furnish the children with the best available education, 

without regard to race, consistent with the long-range 

problems presented by the local situation.

The proponents of massive compulsory 

bussing for the purpose of achieving racial balance 

point to what was accomplished in Berkeley, California. 

The major difference between Berkeley and Norfolk is 

that the former occupies nine (9) square miles, whereas 

Norfolk consists of sixty-one (61) square miles.

Berkeley also has a very high level of Negro education 

among its residents, but the converse is true in Norfolk. 29

(29) (continued) may be shown as feasible and more 
promising in their effectiveness."



-38-

As Dr. Pettigrew expressed the situation:

"I think1it [Berkeley] offers you a 

very inspiring good data to support the 

evidence of effectiveness of integration.

I don't think it tells Norfolk about how

to work out a plan, unfortunately."
j

We should perhaps add that Dr. Pettigrew is 

not per se opposed'to compulsory bussing if held 

within reasonably manageable bounds, and conditioned 

that the mandatory bussing does not "squeeze too hard 

on the middle class flight and metropolitan problem." 

That the massive cross-bussing will definitely put 

the "squeeze" .upon middle class flight, both intercity 

and intracity, is apparent from the record due to the 

high percentage of rental units in Norfolk with its 

large military population. According to the 1960 

census data, out of a total of 85,241 dwelling units 

there were 43,118 renter-occupied dwelling units.

From an intercity standpoint Norfolk is handicapped 

in that Virginia Beach and Chesapeake have.a relatively 

small percentage of lower social class persons in the 

immediate area surrounding Norfolk. Portsmouth, 

separated from Norfolk by the Elizabeth River, has 

a high percentage of blacks, including many of the 

lower social class climate from both races, thereby 

precluding any appreciable middle class flight to 

that city. The Educational Park complex has its 

attractive features from an intercity viewpoint as it 

would not involve cross-bussing, even though it would



-39-

mean massive bussing. Irrespective of the benefitsI
to be derived from: a Metro-Educational Park, it is

obvious that such cannot be. created when Virginiaj
Beach, Chesapeake,j and the Commonwealth of Virginia 
are not parties tol this -action and, even if these

separate politicalj subdivisions and the state were
i

made parties, seribus constitutional questions arise.

While the intracity Educational Park complex 

would perhaps not present too extensive cross-bussing, 

it remains debatable whether it would substantially 

relieve the problems in Norfolk. The opportunity 

for consideration of an intracity Educational Park 

complex is available with the contemplated demolition 

of two elementary schools, Robert E. Lee and John 

Marshall, as heretofore mentioned in footnote (23). 

However, a goodly portion of the central city is 

hard upon the City of Chesapeake where there remains 

no prospect of an effective complex without the 

cooperation of Chesapeake. Moreover, any discussion 

of an Educational Park complex is in its infancy and 

has not been the subject of required research.

It is argued that the elementary schools 

should be paired and/or closed in substantial accordance 

with what is known as Princeton pairing. In rural areas 

this has brought about a marked degree of desegregation 

and, where the ratio of white to black does not exceed 

60-40, it is deemed successful. In the urban areas 

where the lower social class exceeds 10%, Dr. Pettigrew 

refers to pairing and closing as "Band-Aid" methods 

in that the border between white and black is constantly



- 40-

moving in central .cities and any pairing is 
successful only astound the borders of the ghetto.
He likens the Norlialk central city area to Chicago,
Los Angeles, and Mew York where, according to 
Pettigrew, pairing is impossible from the standpoint 
of successful desegregation. Stated otherwise, the 
"Band-Aid" would have to be moved to another finger.
How long such a system could be effective, bearing 
in mind the terrific expense involved, is not only 
problematical but it approaches the ridiculous.
Stated otherwise, it is impossible to have all black 
and white children in optimum desegregated situations 
on the elementary school level.

Much of the argument centers upon the issue 
as to whether minority white children should be required 
to attend majority black schools, especially where the 
white children live beyond the boundary line of a 
school zone where an all-black school is located.
The Civil Rights Division and NAACP contend that 
token desegregation of whites into black schools is 
better than none at all but, in general, they insist 
that the previously all-black school must now consti­
tutionally be made up of at least 25% whites--at all times 
agreeing, however, that it would be preferable to have 
a majority white. For the purpose of avoiding repetition, 
nothing will be discussed at this point with respect to 
the bussing problem--a matter that is all too obvious.

Admittedly data on the achievement of 
minority white in majority black schools is not 
exhaustive. It is difficult to study because whites 
in predominantly Negro schools tend to be the very low 
social class and status throughout the United States.



-41-

Sincc the power of peer culture is that a child 

learns from other children more than he learns from 

the teachers or principal, it follows that achieve­

ment or regression is not readily ascertainable.

The relationship between■percentage Negro and the
i

achievement of stujdents is not linear; if it were 

linear, there would possibly be some improvement 

by adding white children. There is no sound basis 

for concluding that, despite the views of Dr. Foster 

and Dr. Stolee, majority black schools do better than 

all-black schools. In interpreting the use of

variables under the Coleman Report and the more
|

recent Armor Study, Dr. Foster seemed to be of the

wholly erroneous impression that a correlation
|

coefficient should be stated in 'percentages. The 

test scores from Campostella and Chesterfield Heights

elementary schools' furnish no basis at all for con-j
eluding that mixed.' racial schools with minority white 

do as well or bettor than at all-black school. In. I
fact, Dr. Pettigrew vehemently criticizes the views 

of experts who rely upon such incomplete data.

The Coleman Report(30) states in part 

"often those Negroes in classes with only a few 

whites score lower than those in totally segregated 

classes." This brief statement is rather inclusive, 30 *

(30) Equality of Educational Opportunity, U. S.
Department of Health, Education and Welfare, 
Office of Education (Report to the President 
and Congress, July 2, 1966), p. 29.



42-

although Dr. Colenian thereafter testified in 

Hobson v . Hansen, , 2 G 9 l’.Supp. 401 (D.D.C., 19 67),I
that, "As the racial composition of the school isI
a higher proportion of white, the Negro students 
in the school will achieve more than if the raciali

. . icomposition of the school is predominantly Negro; 

...the same result is true for whites as well, but 

the relationship is only about half as strong.

In other words, the achievement of white students 
in predominantly white schools is then higher than 

the achievement of white students in predominantly 
Negro schools, but the difference in their achieve­

ment is only about half as great as the case for 

Negro students." Stated otherwise, if the white 

children of the middle class are required to attend 

a predominant Negro school, those children will not 

achieve nearly as much as they would if permitted to 

attend a predominantly white school.
The very purpose of the study by Dr. Armori

was to update the Coleman data and to verify or refutei
its accuracy. Onithe point in question, (32) Armor

(31) In the document one .toed Racial Isolation in the 
Public Schoolsat .is said at p. 204 , "Predominantly 
Negro schools generally are regarded by the community 
as inferior institutions. 32

(32) School and Family Effects on Blade and White 
Achievement; A lie-examination of the USOE Data,
1969, p. 34 and Figure 2.



-43-

Study tends to show a definite breaking point where 

the black ratio exceeds 30 to 35%, thereby supporting 

the percentage ratio established by the School Board 

in this case. It is also interesting to note that, 

while the white students, generally score higher than 

the black in predominantly white schools, the effect 

is reversed in schools where there is a definite 

majority black, in which event the blacks score 

higher than the whites. Moreover, there is a tendency 

for blacks to score even higher as the percentage 

approaches 100. If we follow this reasoning through 

to its logical conclusion, blacks are better off by 

attending an all-black school as contrasted with 

blacks attending a predominantly black school. On 

the other hand, white children do not achieve as well 

as the blacks in attending predominantly black schools. 
It may well be argued that these figures are due to the 

fact that the white child attending a predominantly 
black school is of the lower social climate but, if 

so, we trust that there is just as much interest in 

the disadvantaged white child as with respect to the 

disadvantaged Negro child.

In sum, Pettigrew assigns five reasons 

why the ratio of 70% white to 30% Negro, with a 

maximum of 60% white and 40% Negro, points to long- 
range success. His testimony is quoted:



-44-

" (1) That I believe it will minimize 
the middle class flight, if you want to

j
call ii; that. I don't think it excludes 

it completely, that's why I use 'minimize.'

"(2 ) ^hat I ■ think it gives you a good
!

chance |for integration, not just desegre­

gation, therefore maximizes black achieve­

ment. 1

"(3) Maximizes or should maximize white 

achievement.

"(4) It should maximize other positive 

benefits, non-achievement benefits, like 

college aspirations, occupational aspirations, 
interracial--better interracial attitudes and 

behavior on the part' of blacks.
"(5) The same non-achievement benefits on 

the part of whites."

With these conclusions of a "racial integra- 

tionist," we turn to the operative effect of the School 

Board plan and the suggestions or plans submitted by 
the experts employed by the Civil Rights Division.

THE OPERATIVE EFFECT OF 
THE SCHOOL BOARD PLAN

Throughout the able examination of witnesses 

by counsel for the Civil Rights Division and NAACP, 

there is constant reference to the percentage of schools

!



which, for the present at least, will remain all
i

or substantially of jone race or another. It is 

suggested by these dounsel, and by experts testifying

in their behalf, that, under the optimal plan, only
i

18% of the school children will be attending 
"desegregated" schools, whereas 82% will remain in 

"segregated" schools. These figures are presented 
without adjustment1, land- they exclude all Negro 

children attending Schools with more than 25% black 
in attendance. Adjusting these figures based upon 

the 1968-69 school year, and assuming that the new 

senior high school will be open by September 1972, 
we find quite a different picture as evidenced by 

School Board Exhibit No. 21 and supported by 
Dr. Pettigrew's predictions. Assuming arguendo that, 

under the optimal plan, the ratio of white to black 

is reasonably maintained at not more than a 60-40 

basis, it is perhaps appropriate only to consider 

the percentage Negro who will be attending a desegre­
gated school. If we further assume that a "racially 

unidentifiable" school is one housing not less than 
10% of one race, the figures (predicated upon current 

enrollment) reveal that the percentage of Negroes
attending such schools will be as follows:!

Elementary schools - 23%

Junior high schools - 43%
Senior high schools - 100%



-46-

A schedule attached (Appendix A) states the schools 

in which children of opposite races are in attendance 
at varying percentages— 10%, 20%, 25%. Appendix A 

likewise reveals other interesting figures which tend 
to show that there now exists considerably more 

desegregated situations than those represented by 

counsel for the plaintiffs and plaintiff-intervenors.

Immediately, of course, an attack is made 

on the acceptance of a 90-10 ratio in classifying a 
school as "racially unidentifiable" or "desegregated."

Until the Supreme Court speaks on the subject, no one 

can tell what is correct. The experts all agree that 

there is some viewpoint supporting the 10% rule. One 
or two prefer 25%. Dr. Pettigrew testified that there 

was no consensus of opinion on the 2 0% as fixed by him; 

nor on any bottom figure; he has merely selected 2 0% 
to be "on the side;of safety." He further states that 

opinions on the bottom figure are far more varied than 

the maximum 40%, or possibly 45% under extreme circum­

stances, of black as an indication of successful integration. 

Bearing in mind that we are in a field of experimentation, 
we have tentatively accepted the 1 0% rule as an initial 

figure of what constitutes a "racially unidentifiable" 
school or a "desegregated" school.

Even for the 1970-71 school year, without a 

new senior high school and using the 90-10 rule, it 
would appear that the elementary schools (unadjusted) 

would be 23%, the junior high schools (adjusted) would 
be 33%, and the senior high schools would result in



- 47 -

62% attendance at desegregated schools. Confusing 

as these figures may be, it is indeed difficult to 
say that Norfolk i^ operating a dual school system, 

unless a unitary system means that each and every 

school building and classroom must be racially 

balanced.

Pettigrew expressed the opinion that,

over a reasonable period of time under the optimal
I

plan, at least 40%, and perhaps as high as 55%, of 
the black elementary children will be in attendance 

in desegregated schools; i.e., schools with at least 

2 0% black in attendance.
ii

We shall now endeavor to outline some of 

the problems on each level of education.
i
i

SENIOR HIGH SCHOOLS

Following the remand in Brewer v. School 

Board of City of Norfolk, Virginia, 397 F.(2d) 37

(4 Cir., 1968), and the order denying rehearing on
|October 7, 1968, counsel were convened as described 

in the opinion on the interim plan, 302 F.Supp. 18, 

20-21. It was readily apparent that the new senior 

high school could not be constructed in the area

adjacent to the existing Booker T. Washington High
|

School without moving a high percentage of white

children into the hard-core central city. The Board
J

finally selected a;50-acre site on Tidewater Drive 
near the Forest Lawn Cemetery. The surrounding

housing area is largely white at present.

;



- 48-

The expbrts and counsel are now substantially 
in agreement as tp the foregoing location. At the time 
of final argumentj on December 8, 1969, counsel, at the 
urging of the couirt, intimated that an agreed order 
would be forthcoming, thereby permitting this construction 
to proceed to the end that it will be ready for occupancy 
by September 1972.

The new senior high school, located at the 
selected site, will provide 100% desegregation on this 
level of education, accepting "desegregation" under 
any definition known to mankind. There are, and will 
be, five senior high schools in Norfolk. While there 
is continuing danger of Maury High School becoming 
increasingly resegregated, the Housing and Redevelopment 
projects referred' to in footnote (23) may tend to 
alleviate the problem.^3)

During the course of the extended hearings 
on the optimal plan, an attorney for the United Black 
Federation of Norfolk appeared and sought to present 
petitions carrying the names of approximately 10,400 
citizens expressing a desire to have the new senior high 
school on the site adjacent to the present Booker T. 
Washington High School, but requesting that the new 
school be integrated. Since this group did not seek 
to intervene, thê  Court could not consider the petitions. 
However, at the suggestion of counsel, the petitions 
were delivered to the Chairman of the School Board and 
this fact is in the record. 33

(33) During the current school year, Maury High School is 
attended by: 926 whites and 1047 blacks; this despite 
the fact that the zone lines were adjusted to place 
,approximate!!y 200 black children from the Maury area 
in to Granby; High School where desegregation is at a 
lower rata.



-4

There aj:e, as of the current year, 2,275 
children in attendance at Booker T. Washington High 
School. All but jievcn (7) are black. The argument 
ii; adv.-meed that i t the new senior high school is
constructed as a modern edifice, complete in every 
respect, white children will seek admission to this 
now school. Dr. Pettier- -’hen questioned about a 
"magnet" school, tsatij. j <•;< that there was no such 
instance in the Uftited Ptate.s where this had worked, 
and that it would be "ainux i.ng" to predict success in 
Norfolk. Aside from the '’act that there would probably 
be few, if any, white children exercising any such 
option, irrespective of the quality of the school, there 
is obviously too much difficulty in "tracking" and keeping 
whites in a high school centered largely in the ghetto 
area.

To desegregate, on a 60-40 basis, a new high 
school located in that area— and for the same reason 
the existing Booker T. Washington High School— on an 
educationally sound basis would require moving 1,358 
white children an appreciable distance. This means 
that 1,358 black children must be cross-bussed to 
other high schools.(34) This alone should be a sufficient 
answer to the arguments for now desegregating Booker T. 
Washington and against relocating the new structure in 
the same area. What will the 1,358 black children and 
their parents say about the 917 black children remaining 
in the new school? Above all, there will be, according 
to Pettigrew, black resentment over the fact that 1,365 34

(34) We acknowledge, of course, that nearly 2,268 black 
senior high school children would require trans­
portation under the optimal plan.



- 5 0 -

white children have "taken over" a school constructed 

in a black area, primarily for the benefit of the 
black children.

If an order is not presented in the interim,
I

the order approving the plan will provide that the 
new senior high school may be constructed at the site 

selected by the School Board. The Court urges counsel, 
even though an appeal will undoubtedly be taken, to 

provide in the order that no appeal is noted as to 

this proposed construction which has been delayed 

entirely too long because of the requirement that a
Il

federal court must! approve site locations for new 
schools.

THE FUTURE OF 
WASHINGTON HIGH SCHOOL

Once replaced, Booker T. Washington remains
j

as a building capable of many uses. By reason of a!
fire in April 1969, it has now been completely 
renovated. It is contemplated that this structure 

may be used as a "special educational facility,"

including use as a community and adult education
!

Center following future renovations. Programs will

include vocational job entry training and adult basic
j

education opportunities with appropriate health,
i

welfare, and recreational services being maintained. 
Space; will, be provided for ancillary services of 

Model City, Central City and other community action

iagencies.



-51-

No fault can be found with the foregoing.

However, it is provided that the uses stated above
|

"will be subject to requirements for high school

level programs whi 
they are needed."

:h may take precedence in the event 
One can readily understand that, in

future years, an overflow condition may develop on any 

level of education and, on a temporary basis at least, 

there may be justification for use of Booker T. 

Washington. :

During the course of the hearings, however, 

there was some suggestion to the effect that the facility 
could be maintained for use by those advocating blackj
separatism. Without a controlling decision from the

j
Supreme Court or United States Court of Appeals for

j
the Fourth Circuit< no approval could be given for use

i
of any public building for such purposes. If the 

Constitution requires desegregation of races in public

schools, there is no room to legalize black separatism
j

in this area. This is not a condemnation of black 

separatism; it is rfterely a statement that it is, at 

present, constitutionally impermissible on the public 

school level. As with respect to Negroes who fought

for desegregation of schools, the black separatists}
will have to pursud the legal, channels before any 

court approval can !be obtained.

Subject to She comments heretofore made, the 

contemplated future uses of the present Booker T. 
Washington High School are approved.



JUNIOR HIGH SCHOOLS

These schools , with minor exceptions,

house grades 7, 8 and 9 The senior high schools

accommodate grades 10 , 11 and 1 2 .

There are presently eleven (11) junior 

high schools in Norfolk. Campostella, Jacox, Madison,
i

Roseraont and Ruffrier are either all or substantially

black from the standpoint of the student body.
IBlair, formerly all-white, is now in the process of

resegregation with the current enrollment indicating
759 blacks and 651 whites. The remaining five (5)

junior high schools clearly show signs of reasonable
idesegregation and,' as to these schools, there are no
I

substantial complaints. Campostella, Jacox, and 

Ruffner are located in the hard-core central city. 

Madison and Roseraont are in pocket areas where there 

is a high degree of concentration involving a reasonably 
large number of black families. Madison, at one time, 

was an all-white school and, as the area rapidly 

turned all black an appreciable number of years ago, 

this school became all-black and was made to house 

elementary and junior high school children. Rosemont 
is essentially an elementary-junior high complex. 

According to present enrollment, Rosemont houses 409 

blacks and 41 whites in the entire complex.

The optimal plan contemplates attendance 

at junior high schools through a feeder system as



- 53-

follows:
Junior High Schools Feeder Elementary Schools
Azalea Gardenp Bay View,(35) Tarrallton,(35)

Little Creek Elementary(35)
Blair Larchmont,(36) Stuart,(36)

Monroe (1/2),(37) Taylor,(35) 
Sewells Point,(36) camp Allen,(38) 
Meadowbrook,(35) Marshall,(37)(39) 
Madison(37)

Campostella 

Jacox

Lake Taylor

Northside

Norview

Rosemont 

Ruffner

Willard

Gatewood,(37) st. Helena, (37)
Lincoln,(37) Tucker,(37) Diggs 
Park,(37) campostella Elementary(36)
Lindenwood,(37) West,(37) Roberts 
Park,(37) Bowling Park(37)
Pineridqe,(35) Fairlawn,(35)
Easton,'36) poplar Halls, (35)
Ingleside,(35) chesterfield,(37) 
Liberty Park(37)
Willoughby,(35) Ocean View,(35) 
Calcott,(35) Granby Elementary,(35) 
Suburban Park(35)
Norview Elementary,(36) Coleman 
Place,(35) Sherwood Forest,(35) 
Lansdale(35)
Oceanair,(35) Crossroads,(35)
Larrymore(36)
Goode,(37) Carey,(37) Young Park,(37) 
Titus, (37) Tidewater Park, (37)
Leo(39)
Lakewood,(35) Monroe (1 /2 ) , (37) 
Lafayette(35)-Ballentine (new)(35)

(35) All or predominantly white schools--less than 10% 
desegregation.

{36) Desegregated at least to the extent of 10% black,
and in several schools the percentage is considerably 
higher.

(37) All or predominantly black schools— less than 10% 
white children in attendance, but several schools 
have a handful of white children.

(38) Camp Allen, now in the process of construction, will 
accommodate the Naval Operating Base area where a 
large group of white and black families live. Hence, 
Camp Allen will be thoroughly desegregated. 39

(39) Robert E. Lee and John Marshall elementary
(continued)



- 54-

The plan states that adjustments in the 
designation of feeder schools for future years may 
become necessary by reason of (1) changing residential 
patterns, (2) construction of new facilities, and 
(3) additions to or abandonment of old facilities but, 
whatever may be the reason for any change, desegrega­
tion will continue to be one of the primary considera­
tions .

It is further stated that the capacity of 
Rosemont and Willard will have to be increased by 350 
and 300 seats, respectively, to accommodate the 
designated feeder schools. A new junior high school 
will be required in the near future and the Board assures 
that its location will assist in providing desegregation 
for children residing in areas how assigned to predominantly 
Negro junior high schools.

It is anticipated that, upon the completion 
of the additions and predicated upon the 1968-69 enroll­
ment data, the junior high schools will then be 66% 
desegregated on the basis of a "desegregated" school 
being at least 10% of one race or the other. However, 
according to the maximum 60-40 ratio as provided in 
the plan, the percentage of blacks attending desegregated 
schools in this level of education will be 43% and the 
percentage of whites will be 82%. Dr. Pettigrew expressed 
the view that these predictions could be accomplished 
without difficulty and leaned to the belief that even 
a greater percentage of blacks would be attending 
desegregated schools on at least a 90-10 basis. 39

(39) (continued) schools are subject to footnote (23) 
relating to the new Redevelopment and Housing 
Projects.



- 5 5 -

JUNIOR HIGH SCHOOLS 
Civil Rights Division and NAACP Plan

Reference will now be made to the junior 
high school suggestions as advanced by Dr. Stolee.

This witness presented a comprehensive 
feeder zone arrangement for all levels of education 
which admittedly is racially balanced and will require 
massive compulsory cross-bussing. As it is agreed 
that the senior high school level will be, under 
the optimal plan, thoroughly desegregated under any 
definition of that word, it is unnecessary to consider 
the junior high schools which will feed into the upper 
level of secondary education.

The Stolee plan contemplates attendance 
at junior high schools through the following feeder 
system:

Junior High Schools 
Azalea Gardens

Blair

Feeder Elementary Schools
Little Creek Elementary 
(grades 5-6), Little Creek 
Primary(40) (grades 3-4), 
Lincoln (grades 1-2),
Gatewood (grades 5-6), 
Larrymore (grades 1-4).
Stuart, Marshall (grades 5-7), 
Meadowbrook (grades 1-4), 
Sewells Point (grades 1-4), 
Madison (grades 5-6),
Larchmont (grades 1-4),
Taylor (grades 1-4).

(40) There is no such school as Little Creek Primary
school. Dr. Stolee devised this procedure as the 
children who would ordinarily attend grades 1-2 
at Little Creek Elementary would be transported to 
Lincoln, a presently all-Negro elementary school 
located in the hard-core central city area. In 
turn, Lincoln black children, after attending 
Lincoln for grades 1-2, will be shuffled off to 
Little Creek for grades 3-4-S-6.
The same pattern is followed with many other 
elementary schools throughout the system. It is 
a clear illustration of racial balancing. Appendix B, 
attached hereto, attempts to give some idea of the 
massive cross-bussing required under Dr. Stolee's plan.



-56-

Junior High Schools Feeder Elementary Schools

Campostella Campostella, Liberty Park 
(grades 5-6), Ingleside 
(grades 1-4), Poplar Halls 
(grades 1-4), Diggs Park 
(grades 3-6), East Ocean 
View (grades 1-2), Pretty 
Lake (grades 1-2), Chesterfield

Jacox i
i

Camp Allen, Roberts Park 
(grades 5-6), Willoughby 
(grades 1-4), Ocean View 
(grades 1-4),

Lake Taylor Tucker (grades 5-6), 
Fairlawn (grades 1-4), 
Easton (grades 1-4), 
Bowling Park (grades 4-6), 
Lansdale (grades 4-6), 
Pineridge (grades 1-3).

Northside Oceanair (grades 4-6),
Young Park (grades 1-3), 
Oakwood,(41) Calcott (grades 
1-5), Crossroads (grades 1-5), 
Titus (closed).

Norview Norview Elementary,
Monroe (grades 5-6), Sherwood 
Forest (grades 1-4), Coleman 
Place (grades 1-4).

Rosemont Suburban Park (grades 4-6), 
Carey (grades 1-3), Lee 
(grades 5-6), Granby (grades 
1-4) .

Ruffner West (grades 5-6), Tarrallton 
(grades 1-4), Bay View (grades 
4-6), Goode (grades 1-3), 
Tidewater Park (grades 1-3).

Willard St. Helena (grades 5-6),
Lakewood (grades 1-4), Ballentine, 
Lafayette (grades 4-5), Lindenwood 
(grades 1-3).

(41) The School Board contemplates converting Oakwood
into a facility to minister to the needs of children 
with special learning problems of both physical and
mental origin, and' the 
a desegregated basis, 
confer with the school 
probable future use of

program will be conducted on 
Dr. Stolee did not bother to 
administrators as to the 
each school.



-57-

We reject, the Stolen plan for the reasons 
heretofore assigned including, but not limited to, 

the massive compulsory cross-bussing program, and 

for the additional reason that such a plan would 

require annual revision to maintain a racial balanceI
in accordance with,the wishes of the Civil Rights

!
Division and the NAACP because of inevitable 
resegregation.(42),

We have not attempted to compute the mileage 

or time of travel for children going from the residential 

areas in the neighborhood of each elementary school to 

the respective junior high schools assigned under the 

Stolee plan. As noted, Appendix B gives a rough 

approximation of the distance to be traversed in 

shuffling between elementary schools under the pairing 

system adopted by Dr. Stolee. The distance and time of

(42) The so-called border areas are constantly
confronted with resegregation. For example, 
Stuart Elementary is located in Colonial Place 
which, at one time, was an all-white residential 
area. Statistics on school attendance at Stuart 
demonstrate the change in housing pattern over 
the past few years as follows:

School Year White Negro
1965-66 883 17
1966-67 821 63
1967-68 703 206
1968-69 337 437
1969-70 281 559

It is obvious that Stuart will soon be resegregated, 
as with respect to Blair, Maury, and other schools, 
if the pattern continues. It should also be noted 
that Colonial Place residents, both white and black, 
have engaged in unified efforts to keep the area 
on a high plane residential location for both 
races.



-58-

travcl from elementary schools to junior high schools 

would be in addition to what is set forth in Appendix B.

We cannot agree that any overall beneficial 

effects of desegregated schools will justify this 

proposed mumbo jumbo. It. is a flagrant example of 
the use of massive cross-bussing to obtain racial 

balancing in each and every school throughout the 
system, except Campostella, Chesterfield Heights 

and Stuart elementary schools as to which three 

schools the author of the plan offers no present 

solution.(43)

ELEMENTARY SCHOOLS - SCHOOL BOARD PLAN * 43

References to Civil Rights Plan 
The Board's plan for elementary schools 

embraces the neighborhood concept, subject to the 

transfer provisions specified in footnote (16). Once 

again, the Board recognizes the necessity for changes 

due to residential patterns, construction of new 

facilities, and additions to or abandonment of old

(43) From Appendix B it will be noted that Campostella, 
Chesterfield Heights and Stuart are heavily black, 
and will remain this way with no effort being made 
to create a predominant white student body which all 
experts agree is preferable from a sound educational 
standpoint. Norview elementary is presently desegre­
gated on an educationally sound basis with 299 whites 
and 170 blacks and is, therefore, not paired with 
any other school. Camp Allen, in process of 
construction, will undoubtedly have a thoroughly 
desegregated facility, and has not been paired 
with any other school.



-59-

facilities, with the complete assurance that desegre­

gation will continue to be one of the primary considera­
tions in any boundary adjustment.

A new school is contemplated in the Ballentine 

Lafayette areas for the 1971-72 school year. The site 

has not yet been selected. During the course of trial 

the Court suggested the possibility of bringing the 

Villa Heights area, now all-black but formerly all-white, 

into this complex, thereby giving promise to a thoroughly 

desegregated school. However, the site location is, 

initially at least, for the determination of the Board.

Oakwood Elementary School will be converted 

as previously noted in footnote (41). The newer portion 

of Titustown Elementary School will be used for the same 

purposes as Oakwood, since the children at Titustown 

will probably attend Camp Allen.
Norfolk has been using funds obtained from 

the federal government under Title I of the Elementary 
and Secondary Education Act. This is more commonly 

known as "compensatory education." The programs are 

designed for the benefit of disadvantaged children.

While they are operatively desegregated, these programs 

involve primarily Negro children because of the high 
correlation between black children and the disadvantaged 

child.
While compensatory education does seem to 

assist with optimal desegregation and integration, it 

is no substitute for desegregation and, in general terms, 

has been a failure. It seems to have run the gauntlet 

after one or two years. It is better than nothing, but



- 60-

its effectiveness has most assuredly been questioned 
by the experts. In St. Louis the full force of compensatory 
education was tested. For the first two years it seemed to 
do well but, thereafter, the record of achievement was 
little better than zero. Irrespective of the apparent 
failure of the compensatory education program (used in 
Norfolk in all-black or predominantly black elementary 
schools), the Board will continue the program so long 
as funds are received under the Elementary and Secondary 
Education Act. While the outside experts are skeptical 
of the success of compensatory education, they agree that 
it is better than nothing, and the administrative personnel 
of the school system seem to believe that some benefit has 
been derived from same.

Dr. Foster, the expert engaged by the 
plaintiffs and plaintiff-intervenors, recommended the 
closing of certain elementary schools. He insisted 
that, in making this determination, desegregation was 
not a major consideration. In sum, Dr. Foster recommends 
the closing of 17 of the 53 elementary schools over a 
period of the next few years. He concedes that he only 
made a "windshield" inspection of these buildings and 
did not enter any of them.(44) He agrees that, before

(44) Dr. Foster only entered one school building which 
was Booker T. Washington High School. His visit 
was in August when workmen were completing the ' 
necessary renovations following the fire in April 
and all equipment, books, and periodicals were not 
in place. However, he stated that he spent 15-20 
minutes in the school library and, when pressed 
as to library deficiencies, mentioned the lack of 
black history research material. Later a count 
was made as to the volumes of black history in this 
library and the total was 536. While the Court is 
not advised as to the aggregate number of publica­
tions pertaining to black history, it would certainly 
appear that 536 publications would be sufficient for 
any library. Testimony such as submitted by Dr. Foster 
tends to question the motive of this witness.



- 6 1 -

declaring a school building obsolete, an interior
i

inspection must be made, and this he did not do. Hei
apparently operates under the theory that all buildings 
over 40 years of age should be abandoned, without regard
to the renovation^ and additions thereto. While it is

itrue that there arje existing school buildings which 
were constructed prior to 1929, it certainly does not 
follow that these buildings are in any sense inadequate 
or otherwise unfit for use. It is also true that the 
Board has selected certain schools for replacement in 
future years. The list is not nearly as long as 
Dr. Foster's. It seems fundamental that the Board, 
with its highly qualified administrative staff, is far 
better qualified to determine when a school building 
should be declared obsolete and should be replaced.

It is also interesting to note that Dr. Foster 
agrees that the Board used the best research materials 
available.in establishing the principles of the optimal 
plan. But Dr. Foster violently disagrees with every 
aspect of this data which may tend to support the 
controverted principles. He recognizes that the 
Coleman Report is the result of testing hundreds of 
thousands of students, yet he says that there is no 
basis for saying that the social class is most important; 
no basis for finding middle class flight to any appreciable 
extent; no basis for stating that good educational results 
cannot be obtained where the percentage Negro exceeds 
50%; and no basis for concluding that the disadvantaged 
Negro performs better with the middle class or advantaged 
Negro. Dr. Foster is, of course, entitled to his opinion, 
but when one reads the entire testimony of Dr. Foster and 
Dr. Brazziel, and then examines the testimony of



t
62 -

Dr. Pettigrew, the differences become apparent 
from the standpoint of knowledge and qualifications 

of the witnesses.

It has previously been said that the 

elementary school system is "weak" from the standpoint 

of desegregation. , It is not as weak from the viewpoint
i

of ultimate success and, as Pettigrew states, "integration." 

Many of the all-black or predominantly black elementary 
schools serve the hard-core central city area. The 

elementary schools at Campostella, St. Helena, Lincoln, 
Tucker, and Diggs Park are located in the Berkley- 

Campostella area which is separated from the main part 

of Norfolk by the Eastern Branch of the Elizabeth River 

and connected with Norfolk by a bridge maintained and 

operated by the Elizabeth River Tunnel Commission, a 

political subdivision of the Commonwealth of Virginia. 

Practically no white -families live in the Berkley- 

Campostella area and it is adjacent to the City of 

Chesapeake. Even if we disregard the hard-core central 

city, it is virtually impossible to desegregate these 

five (5) elementary schools without massive compulsory 

cross-bussing. As Dr. Pettigrew said, if a completely 
unitary system means no all-black and no all-white 

schools, it is not forthcoming in 1970 and, we might 

add, in the reasonably foreseeable future on the 

elementary level for the Berkley-Campostella area 

unless there is intercity cooperation in public schools 

which would permit these children to go to the City of 

Chesapeake.



I -63-

While the public viewpoint cannot, in the 

final analysis, control the determination of consti­

tutional issues, all experts agree--some reluctantly-- 

that the parents and public in general cannot be wholly 

disregarded. When we view the Stolee plan set forth in 

Appendix B, we are confident that, when the public is 

aware of the full impact of the Civil Rights Division- 

NAACP proposal, there will be a controversy second to 

none. The City Council and School Board will be 
besieged with requests to stop the "mumbo jumbo" here­

tofore described. The experts generally agree that 

the future stability of the school system and the 

ability to "desegregate" or "integrate" with success 

is dependent, in a large measure, upon the trauma 
or concern of parents of students. As Dr. Pettigrew 

appropriately remarks, the paramount question in the 
minds of parents, both white and black, will be: "Why

should my child go that far unless he is going to get 

something really better." This is not a feeling of white 

versus black as is evidenced by the efforts of many 

citizens who want the new senior high school in the 

same area as Booker T. Washington. The blacks will 

revolt against the Stolee plan even more than the 
whites and the latter, if at all possible, will 

probably relocate or otherwise resort to private

schools.



- 6 4 -

The School Board is supplied with capital 
and operating funds by the City Council. The Board 
has no power of taxation. The City Council is elected 
by the public and appoints the members of the School 
Board. The budget for the construction and operation 
of the public school system is prepared by the School 
Board and, after review and modification by the City 
Manager, is submitted to the City Council for approval, 
rejection or modification. Thus far, the cooperation 
between the School Board and City Council has been 
excellent. We wonder what the result will be if the 
Board is required to ask the City Council for $4,000,000 
capital investment for buses and $800,000 annual operating 
expense for the same item. Under Virginia law the City 
Council, once having approved the budget, has nothing 
to do with the manner of expenditure of funds by the 
Board, but the Council has the right to assume that the 
Board will make its disbursements in accordance with 
the budget. This Court expresses genuine concern as 
to the public pressure which will be exerted upon the 
City Council if the Civil Rights-NAACP program is 
finalized.

MANDATORY MASSIVE CROSS-BUSSING

We start with the premise that children attending 
public schools in the City of Norfolk have been using
public transportation facilities for many years.

(45)Students now purchase bus tickets at half-fare. 45

(45) The Superintendent of Schools testified that, as
with respect to school books, lunches and, in some 
cases, clothes, for indigent children which are

(continued)



:i 65-

Thc details, subject to the revised computations by 

public transportation experts, are set forth in the 

interim plan opinion, 301 F.Supp. 18, 22-26. While 

the plan presented by Dr. Stolee at the interim plan 

hearings is substantially different from the laterI
suggestions emanating from the same witness, the extent 

of cross-bussing is somewhat greater than previously 
advanced.

Since the witnesses testified at the interim 

plan hearings, there has been a seven cents hourly 
increase in wages granted to operators by the Virginia 

Transit Company, the corporation presently providing 

public transportation services to Norfolk and Chesapeake 

under franchise arrangements. This increase is

reflected in the cost of operation for the current

(45) (continued) supplied gratis, the School Board 
recognizes its obligation to furnish worthy 
indigent children the financial means to get
to and from a school not within walking distance 
under the plan proposed by the Board. The details 
are not divulged and the suggestion by the 
Superintendent is not construed as providing 
free transportation for all. Of course, under 
the Board's plan, public transportation could 
still be used and the expense, while considerable, 
would not be beyond the reach of the School Board. 46

(46) Footnote (8) under the interim plan opinion,
302 F.Supp. 18, 23, was not exactly correct.
The contract with the City of Norfolk provides 
that the Transit Company is allowed a return 
of 3 1/2% on gross earnings. Over and above 
that figure, the Transit Company gets the next 
$10,000. From this point on, there is a division 
with the City of Norfolk. For the past eight or 
nine years, nothing has been paid to the City of 
Norfolk. The school fare, 25 cents per round trip, 
is in obvious danger of being raised to 30 cents.



-66-

school year, but has not been placed upon the exhibits 
as it is impossible to project such future costs 
although, based upon present costs, the estimates 
have been given by Armstrong, the Virginia Transit 
Company expert on costs.

While counsel for the NAACP has made a 
valiant effort to prove that any projected operation 
can be served by the pub]ic transportation system, 
primarily through the method of "staggering" the 
opening and closing times of various schools, it is 
abundantly clear that public transportation is out 
of the question from the standpoint of massive 
cross-bussing.(47) it must be remembered that, at 
the present time, the school buses average 1.9 trips

(47) An effort was also made by the NAACP to establish 
that the Virginia State Department of Education 
would absorb all or a greater portion of the cost 
involved in massive cross-bussing. While Virginia 
does financially assist both county and city- 
operated school bus systems, it contributes 
nothing by way of capital outlay, equipment, 
replacement of buses, etc. Essentially all buses 
owned, or operated under private contract, by 
cities throughout Virginia, have been the result 
of large annexation proceedings which brought 
rural areas into the city, such as Virginia Beach, 
Chesapeake, Newport News and Hampton. The crux 
of the qualification for reimbursement by the 
state is that 16 miles is the minimum mileage 
that buses may be scheduled for operation. Thus, 
the Diggs Park-East Ocean View-Pretty Lake arrange­
ment hereinafter discussed would be sufficient to 
make the buses used for this purpose eligible for 
state reimbursement. A bus making a morning and 
afternoon trip would have to travel 8 miles each 
way; a bus. making two trips in the morning and 
two in the afternoon would be required to average 
4 miles per trip before becoming eligible for 
reimbursement. Virginia Transit buses would not 
qualify unless they met state requirements.
Virginia has not yet been met with the purely 
urban problem of massive cross-bussing to achieve 
racial balancing. To what extent and degree »Norfoik 
would qualify for reimbursement as to operating 
expense if the State Department of Education regulations 
remain as now written is problematical. However, a 
rough guess is that out of $800,000 annual operating 
expense, approximately $250,000 would be reimbursed 
under existing regulations. We cannot predict whether 
the regulation will remain the same.



-67-

per bus, and the record reflects that, even now, all 

schools do not maintain the same opening and closing 
times.

Nor is there any merit to the load factor 

analysis. The Transit Company uses a load factor of 

60 to compute the number of buses required, but this 

figure takes into consideration the children who will 

ride regular commercial buses, thus resulting in an 

actual load nearer 45 than 60.
There is a differential between the school 

buses required in the morning and afternoon. This is 

due, in part at least, to the fact that parents find 

it convenient to drop their children at school while 

en route to work in the morning. In the afternoon, 

of course, this is not the situation.

For the 1969-70 school, year, there are *
63 buses required in the morning, and 82 in the 

afternoon. From a time standpoint, the school buses 
average 7.44 miles per hour. The total daily number 

of trips, morning and afternoon combined, is 273, or 

2,130 school miles per day. The total number of 

school hours required per day is 286. There are 

8,165 students transported on a daily average.
The cost of transporting pupils is $53.00 

per annum, and the revenue received per student on the 
basis of 25 cents per round trip is $45.00. The amount 

charged, including profit, is $56.00 per annum per

child.



68-

Under the interim plan proposed by the 

School Board, there will be 77 buses required in the 

morning and 97 in the afternoon. The number of daily 

trips will be 332, or 2,597 school miles per day.

The daily number of school hours required is estimated 
at 349, and there will be approximately 10,000 students 

transported. The cost increases to $55.00 per pupil 

per annum.
The optimal plan presented by the Board 

contemplates the use of 87 buses in the morning dnd 

110 in the afternoon. The number of daily trips 

will be 374, or 2,924 school miles per day. The 
daily number of school hours required is 393, and there 

will be approximately 11,300 pupils moved by bus. The 
cost increases to $56.00 per child per annum, with a 

total cost of $635,940 per year.
The Transit Company indicates that, by 

September 1970, it will be able to provide the 

additional buses for the morning run which is, of 
course, during the peak hours of bus transportation 

for the general public. It is also felt that, by 
September 1972, when the optimal plan goes into effect, 

87 buses can probably be provided for the morning 

service. For reasons stated in the opinion on the 

interim plan, 302 F.Supp. 18, it is impossible for 

the Transit Company to provide more than 95 to 100 
buses for school purposes at any morning rush hour.

9



69-

We turn to the requirements, even though 

impossible to fill, of the Stolee plan which contemplates 

the extensive feeder system arrangement involving massive 

cross-bussing. The total number of students to be 

transported would be 25,750, including 13,050 elementary 

school children. It would require approximately 225 

buses, covering 6,681 school miles per day, or more 

than double the school mileage contemplated by the 

Board's optimal plan. The daily school trips would 

increase to 856, and the school hours would jump to 

898 based upon 1.03 hours per trip.

Using public transportation, if it were 

available, the total annual cost to the Transit 

Company would be $2,747,160, computed at $107.00 

per pupil, but the Transit Company would expect to 

charge the City of Norfolk at $112.00 per student.

Thus, the total annual cost, irrespective of who 

pays for same, will be approximately four times as 
much as that contemplated by the Board's optimal plan.

There is also testimony with reference to 
Dr. Stolee's plans A and B. Plan A is a suggested 

contiguous grouping of certain schools. Plan B is a 

suggested noncontiguous grouping of schools. Neither 
of these plans is now urged by the NAACP and Civil 

Rights Division for the obvious reason that they will 
not accomplish racial balancing throughout the entire 

city. Under either Plan A, or a combination of A and B, 

the least number of buses required for morning is 115; 

a number .beyond the maximum which can be provided even 
as late as September 1972. . „



70-

In the final analysis, we come to the point 

that, under any plan or system suggested by the NAACP- 

Civil Rights Division, resort must be had to the purchase 

of the typical yellow school bus or an outdated transit- 

type bus. This type of bus, acquired second hand, can 

be purchased for approximately $3,200 and, with some 

additional expense, can be made serviceable. Acquiring 

225 buses may require only an initial expenditure of 

about $2 ,0 0 0 , 0 0 0 but, when we consider the necessity 

for storage, equipment, and many other items, the esti­

mated capital investment of $4,000,000 is not out of 

line. The witnesses do not detail the- estimated annual 

operating cost of $800,000, but it may be assumed that 
this figure is not entirely erroneous when contrasted 

with the operating costs of the Transit Company. The 

operating expense would be subject to any partial 

reimbursement mentioned in footnote (47).

An example of how flagrant the cross-bussing 
will reach is disclosed by Stolee's plan to move the 

children now attending Diggs Park in the Berkley- 
Campostella area to either East Ocean View or Pretty 

Lake for grades one and two. The East Ocean View and 
Pretty Lake children normally attending grades three, 

four, five and six at these latter schools will be 

assigned to Diggs Park. The scaled distance appears 

to be only approximately 10 1/2 miles, but the Transit 

Company expert computes this mileage at 13 plus. Whether 

this latter mileage includes the "loop" necessary to 

pick up the children residing in the areas is not too 

clear, but certainly the scaled mileage does not cover



- 71-

"loop" mileage. Counting "loop" time and discharge 
time, it will take about one hour and eight minutes 
to pick up the children at Diggs Park and deposit 
them at either East Ocean View or Pretty Lake. The 
same one hour and eight minutes will be needed to 
load, travel, and discharge the East Ocean View and 
Pretty Lake children at Diggs Park. As the experts 
seem to agree, the principal vice in bussing, 
disregarding for the moment the questions of cost 
and parental objection, is the time required in.getting 
to and from school. Remembering, as we must, that we 
are here dealing with children six and seven years of 
age, it is almost beyond comprehension that any court 
would approve such a device merely to mix racial bodies.

There are many other examples which could be 
cited under the Stolee plan, each of which would 
adequately demonstrate the end result of massive 
cross-bussing, but the effort required in detailing 
such examples would not alter the principle set forth 
above.

This Court has suggested that, at least 
for the first three elementary grades, the neighborhood 
school concept should be retained. While it is the 
writer's personal view that the neighborhood school 
should continue throughout the elementary level of 
education, it is recognized that there are cumulative 
adverse effects upon black children required to attend 
all or predominantly black schools and, for this reason, 
efforts should be made in the future, as buildings 
become obsolete, to provide more adequate desegregation 
on the lower level. We believe that the cumulative 
adverse effects begin to enter the overall picture



7 2 -

when the child reaches the approximate age of nine, 
although the statistics admittedly do not appear 
to indicate the exact point in life that such 
effects become operative.

Interlocked with massive cross-bussing 
is the issue of de jure - de facto segregation next 
considered.

DE FACTO VERSUS DE JURE SEGREGATION

The long finger of the law has been directed 
primarily to the southern states, all of which had 
segregation laws as applied to public schools at the 
time of the 1954 decision in Brown. Despite the Civil 
Rights Act of 1964, 42 U.S.C., section 2Q00c(b) which 
defines "desegregation,'^48) mandatory bussing has 
been ordered by some courts where de jure segregation 
existed. Congress further provided, 42 U.S.C., section 
2000C-6, as follows:

"(T)hat nothing herein shall empower 
any official or court of the United 
States to issue any order seeking to 
achieve a racial balance in any school 
by requiring the transportation of pupils 
or students from one school to another in 
order to achieve such racial balance, or 
otherwise enlarge the existing power of 
the court to insure compliance with 
constitutional standards."

(43) 42 U.S.C., section 2000c(b) provides:
"'Desegregation' means the assignment of 
students to public schools and within such 
schools without regard to their race, color,

(continued)



73-

These provisions of the law are answered 

by the NAACP and Civil Rights Division in a twofold 

manner. In the first place they argue that the 

Constitution, as now interpreted, requires racial 

balancing wherever complete desegregation cannot be 

accomplished in any other manner. Secondly, they 
say, the provisions of the Civil Rights Act of 1964 

do not imply that transportation may not be required 

in states where de jure segregation played a part in 

formulating the housing patterns which brought about 

segregated schools as they existed on May 17, 1954, 

when Brown I was decided.

.The issue was touched upon in the prior 

remand of this case, Brewer v. School Board of the 

City of Norfolk, Virginia, 397 F. (2d) 37 (4 Cir., 1968) , 

in which the trial court was directed to objectively 

determine whether the new senior high school would 

take its place in a nondiscriminatory system or continue 

de facto the city's former de jure dual system of white * 48

and Negro schools. Since the senior high school level 
of education has now been resolved, the question remains 

as to what must be done with the other levels of education. 

While the Educational Park complex may afford some 

solution to the problem, if adopted as appropriate in

(48) (continued) religion, or national origin, 
but 'desegregation' shall not mean the 
assignment of students to public schools 
in order to overcome racial imbalance."



-74-

urban cities with a large hard-core central black 

area, it is presently too remote to consider.

When the de facto - do jure issue was 

heard along with the interim plan hearings, the Civil 

Rights Division attempted to show that deed restrictions, 

repealed ordinances, and other factors pointed to de jure 
segregation in many areas throughout the city. Neverthe­

less, unless a spot of the disease poisoned the entire 

city, there- remained other areas in Norfolk which could 

not be considered de jure constituted.

The Civil Rights Division now advances the 

argument that de jure segregation exists throughout 

Virginia by operation of law solely because Virginia, 
among many other states, had statutes on its books 

which required segregation of public schools prior to 

Brown I. According to counsel for the Civil Right's 

Division, the complete disestablishment of a previously 

racially segregated public school system requires racial 

balancing although, as heretofore noted, the Civil Rights 

Division concedes the possibility of "one or two" all-black 
schools and "one or two" all-white schools as constitutionally 

permissible. The NAACP contends that the Constitution 

now requires total and complete disestablishment of a 

previously segregated school system "at the earliest 

practicable" date, and without permitting any school 

to be attended solely by white children or solely 

by black pupils.



75-

In sum, the proponents of racial balancing 
insist that de jure segregation continues to exist 
throughout Virginia, regardless of good faith efforts 
on the part of any school board to eradicate it, until 
a totally "unitary system" is attained. That Norfolk 
is now completely free of discriminatory practices 
in housing and schools is best evidenced by the rapidly 
changing housing patterns which, in turn, are leading 
to resegregated schools.

As mentioned in footnote (5), we entertain 
grave doubts that there can be an avoidance of any 
constitutional mandate merely because de facto, and 
not de jure_, segregation existed in 1954 . The Supreme 
Court has not spoken on the subject. We believe that 
an analysis of the entire matter will demonstrate 
rather effectively that there were many discriminatory 
acts by state officials and/or discriminatory state 
laws prior to 1954 which prompted segregated housing 
patterns and, in turn, brought about a neighborhood 
school which was segregated.

If the Constitution requires complete 
disestablishment in the sense that racial balancing 
is required in each individual school and classroom 
wherever the state at any time required segregation 
of public schools, then there is no need to go further; 
there is no necessity for complex plans; and much of 
the elapsed time since the 1954 decision in Brown I 

has been wasted.
In Taylor v. Board of Education, 294 F.(2d)

35 , 39 (2 Cir. , 1961), cert, denied 368 U.S. 940 (1962.), 
the court stated that one line between de facto and 
de jure school segregation was "whether race was being



- 76 -

made the basis for school districting with the 

purpose and effect of producing a substantially- 

segregated school." Under this definition, apparently 

only the actions of the school board would be subject 

to scrutiny, but we doubt that the Second Circuit 
would ignore discriminatory actions by other public 

officials or discriminatory legislation.

In Moses v. Washington Parish School Board,

276 F.Supp. 834, 840, 847 (E.D .La., 1967), the court

said "de jure means simply 'segregation' in the traditional

sense, that is, forced, purposeful separation of races."

As to de facto segregation, the court defined same as 

"the mere chance or fortuitous concentration of those 

of a particular race in a particular class or school—  

fortuitous separation of the races, not accomplished 

in any way by the action of the state officials."

The court later added: "Most situations of so-called

'de facto segregation1 are, in reality, the result of 

intentional discrimination by state officials."

Assuming arguendo that de jure segregation 

is the result of either discriminatory public laws or 

actions by public officials, we have great difficulty 

in determining how any segregation can actually be 

de facto. Research discloses that practically every 

state, outside the so-called "Deep South," at some 

point in history had either (1) mandatory segregation 
of public schools, (2) permissive segregation, (3) anti- 

Negro voting laws, (4) miscegenation statutes, or 

(5j local practices, as revealed by judicial decisions



-77-

or' articles, regardless of state laws. Whether such 

state action required or merely permitted school 

segregation should be irrelevant if the result was 

segregation of the races. Even where such statutes 

were repealed prior to 1954, the pattern of segregation 

may have been so well established that its continued 

existence could only be de jure. (49)

It may be argued that anti-black voting laws 

and miscegenation statutes play no part in de jure 

segregation. When we examine the many states which

(49) Thus, the courts in Bell v. School City of Gary
Indiana, 213 F.Supp. 819 (N.D.Ind., 1963), affirmed 
324 F.(2d) 209 (7 Cir., 1963), cert, denied 377 U.S 
924 (1963), would have been required to consider 
fully whether the pattern of school segregation 
established under Indiana's mandatory school 
segregation law which was repealed in 1949, still 
existed at the time of that decision. If the 
de jure label is crucial, the court should have 
ascertained whether the residential segregation 
then existing was at least in part the result of 
the prior mandatory school segregation law. It 
would not be sufficient merely to consider actions 
since 1949.

Similarly, in Deal v. Cincinnati Board of Education 
369 F.(2d) 55 (6 Cir., 1966), if the de jure label 
is significant, the court should have considered 
the effect, if any, of prior segregation laws in 
creating patterns of residential or school segre­
gation. It does not necessarily follow that 
patterns established by laws in the past would 
not persist even today.



-78-

prohibited blacks, Orientals, Indians, etc., from

voting, we wonder what would have been the end result
|

if these powerful voting blocks could have legally 

mustered their strength on such matters as "open 

housing" and the like. Indeed, school segregation 
laws may not have-been enacted if all persons could 

have cast their ballots. Once the housing pattern 
in a particular area is established as black, history 

demonstrates that it remains black unless it is 

subjected to a massive housing and redevelopment 

project. Undoubtedly, miscegenation statutes do not 

compare with anti-black voting laws as to the cause 
of segregation in schools or housing patterns but, 

according to Loving v. Virginia, 388 U.S. 1, 11 (1967), 

such statutes "must stand on their own justification, 

as measures designed to maintain White Supremacy."

Moreover, we cannot overlook the "moral force" of the 

law in states which, although not saddled with school 

segregation statutes, took action on voting, miscegenation, 
housing, deed restrictions and the like, all pointing to 

the fact that the Negro was considered inferior for one 
reason or another.

We cannot believe that the Constitution may 

be interpreted one way for a group of states, and still 

another way for the remaining states. While we do not 

believe that the mandate of the Constitution goes beyond 
the affirmative mandate mentioned in the earlier portion 

of this opinion, we think it obvious that, whatever may 

be the correct interpretation of the Constitution, the 

same construction must apply to all 50 states. Certainly



-79-

it must be applied to any state where any discriminatory 

statute, judicial decision, or official act existed for 

many years prior to 1954.

Attached hereto as Appendix C will be found, 

on a state-by-state b a s i s , t h e  extensiveness of 

state statutes and/or judicial decisions. The list 

is not intended to be inclusive: for example, where

there was mandatory segregation in public schools, 

other segregation or discriminatory laws were not 

included. It does not refer to housing ordinances 

and deed restrictions legalized in many states. 

Furthermore, it is impossible, through research of 

the cases and statutes alone, to uncover all examples 

of discriminatory action by public officials regardless 

of what the state laws required.

We conclude that the de facto - de jure 

issue is not a determinative factor in arriving at 

what is required under Brown I and the subsequent 

cases. We believe that the affirmative mandate mentioned 

herein applies to all states, but that it must be 

reasonably and feasibly construed consistent with the 
circumstances confronting the local school board in 

each area.

(50) We have omitted from Appendix C any reference, 
to statutes or judicial decisions from the 
states of Virginia, North Carolina, South 
Carolina, Georgia, Florida, Alabama, Mississippi, 
and Louisiana, All of these states had consti­
tutional provisions and/or statutes requiring 
segregation in public schools.



-80-

FACULTY I -------

For the £>ast several years Norfolk has 

taken advantage of the opportunities afforded through 

the Department of Health, Education and Welfare in 

preparing teachers called upon to serve disadvantaged 

children, especially those predominantly of the opposite 

race. All experts agree that this advance preparation 

is of vital importance in securing effective teachers 

in desegregated conditions. Dr. Brazziel indicated 

that some colleges now prepare the prospective teacher 

for these conditions, but the record does not reflect 

how many new teachers have this advance training.
The experts conclude that each teacher called upon 

to teach substantially desegregated schools and/or 
disadvantaged children must be so prepared.

The goal of the School Board, as proposed 
in the optimal plan, is that the faculties of the 

schools will approximately reflect the ratio of 

available white and Negro teachers in the system.(51) 

This goal will be achieved in the 1971-72 school year. 

For the. 1970-71 school year it is anticipated that 
about one-half of the goal will be reached.

(51) This is, of course, a form of racial 
balancing, but it is not crucial with 
faculty members as presumably the majority 
drive, to and from work in private automobiles. 
It involves no massive cross-bussing as with 
respect to pupils.



I -81-

The Civil Rights Division and NAACP have 

no quarrel with the goal under the optimal plan.

They insist, however, that this goal be achieved 

not later than January 31, 1970. Presumably teachers 

already trained for teaching in desegregated schools 

have already been filtered into these positions.

What other teachers, if any, have received the 

necessary advance training is not revealed by the 

evidence.

For the 1969-70 school year, every school 

in the system has teachers assigned across racial 

lines. For example, Booker T. Washington, with 

2,268 black and 7 white children, has 27 white and 

90 Negro teachers. Blair and Maury, now predominantly 

black, have a predominantly white faculty, but also 

have 12 and 13 Negro teachers, respectively. Stuart, 

predominantly black, has 24 white and 10 Negro teachers. 

Campostella and Chesterfield Heights, both predominantly 
black, have majority white faculties. Marshall and 

Monroe, predominantly black, have majority black 

faculties at ratios of 18 to 10 and 24 to 19, respectively. 

A full review of the existing faculty assignments for 

the current year certainly does not indicate that the 

Board is attempting, in the slightest degree, to keep 

the faculty of any school racially identifiable.

While there are many instances of .principals 

and administrators of the white race leading a school 

which is all or predominantly black', only Northside 

and Oceanair, schools predominantly white, are governed



-82-

in whole or in part by black administrators. This 

will, in due time, be corrected as Dr. Pettigrew 

has stressed the importance of having a reasonable 

percentage of black administrators in predominantly 

white schools. A total of 8 administrators out of 

102 have been assigned across racial lines this 

year. A Negro has recently been designated as 

Assistant. Superintendent of Schools and is now 

serving in that capacity.

We think that the objective timetable 

required by the previous decision in Brewer has 

been fully met and is specific in its terms. We 

decline to order the advancement of the goals under 

the optimal plan to January 31, 1970, and we feel 
that the Board's program is entirely reasonable and 

consistent with better educational policies.

We are not unmindful of the recently decided 

Nesbit v. The Statesville City Board of Education, 

supra, in which five school cases were consolidated 

and the Court of Appeals directed as follows:

"All plans must include provisions for 

the integration of the faculty so that 

the ratio of Negro and white faculty members 

of each school shall be approximately the 

same as the ratio throughout the system.

In determining the ratio, exceptions may 

be made for specialized faculty positions."



83-

If the -foregoing language is meant to go 
beyond the plan ahd put the ratio into effect at 

once, then no plan was needed. We construe the 

action of the Fourth Circuit as requiring a fixed 

plan for an orderly transition into the approximate 
ratio mentioned. \

It is rather obvious that, without mentioning 

same, the Fourth Circuit has effectively overruled 
Wheeler v. Durham City Board of Education, 363 F.(2d)

738, 741. Apparently, in order to comply with Nesbit, 

the wishes of the individual teacher are entitled to 

very minor consideration in the matter of assignments. 

However, Norfolk has recently abandoned the school 

designation in contracts submitted for signature.

While the evidence suggests that the Board may yield 
to a teacher who insists upon an assignment to a 

specified school,; this is not in any sense violative
iof constitutional;principles. The Board is entitled 

to exercise some discretion to meet the seller's
j

market which still prevails in the teachers' field.

There is no merit to the contention that 

discrimination has been shown in the assignment of 

substitute teachers. It does not justify any discussion.

In this complex field of desegregation and 

integration of the public school systems throughout 

our country, what is really needed is a return to 

sanity in the enforcement of effective plans which will 

aid children of both races from an educational and cultural



-04-

standpoint. Unless the social class climate is|
given primary consideration, the beneficial results 

of desegregation will never be achieved and the 

educational system will collapse.
Counsel will exchange, on or before[

January 5, 1970, proposed copies of an order to be 

entered in accordance with this memorandum opinion. 

Counsel will meet at Norfolk on January 9, 1970, 

at 2:00 p.m., for the purpose of settling the order 

unless agreement is reached prior thereto.

At Norfolk, Virginia 

December 30, 1969



APPENDIX A

The following contains a list of desegregated 
schools in the City of Norfolk, dependent upon whether

i
a "desegregated" school is classified at 1 0%, 2 0% or 

25%, computed to the nearest percentage point approach­

ing the above-stated percentages. These figures are
i

for the 1969-70 school year.
i
i

10% 20% 25%

Senior High Schools 

Granby Norview
Lake Taylor

Junior High Schools 
Rosemont Norview

Willard

Elementary Schools

Chesterfield Larchmont
Heights

Crossroads

Easton

Larrymore

Meadowbrook
Ocean View

Suburban Park

Maury

Blair

Campostella

Cerebral Palsy

Norview Elementary

Norview Annex
Sewells Point 
Elementary

Sewells Point Annex

Stuart

Total school attendance for 1969-70: 56,628
Total white: 32,621

Total black: 24,007

Total blacks attending schools 
desegregated at least to the 
extent of 10%: 5,918

(Note: These figures include Maury, Blair,
Campostella, Stuart, and Chesterfield 
Heights where the majority are black 
and where whites are in attendance to 
the extent of 1 0% or more.)



Percentage of black children in 
attendance at predominantly white 
schools arid schools which are
racially desegregated at least 10%: 25% (plus)

As of September 1972, when the new senior 
high school is open, 2,268 blacks will 
automatically be added to the 5,918 blacks 
now in attendance at predominantly white 
schools and at schools which are desegregated 
at least 10%, making a total of 8,186, or 33% 
(plus). This figure does not include the 
increases contemplated by other aspects of the 
plan nor, as Dr. Pettigrew stated, the increases 
anticipated over and above the plan itself.

i



B

An approximation 

elementary schools paired 

the Stolee plan, computed 

to be the shortest.

of mileage between 

for certain grades under 

according to route assumed

SCHOOLS PAIRED
Oceanair )

)
Young Park )

Oakwood )
)

Calcott )
)

Crossroads )
)

Titus (closed) )

DISTANCE

7.2 miles

Average 3.1 miles

Note: Oakwood, under Stolee
plan, will house only grade 6 . 
Children attending Calcott, 
Crossroads and Titus will be 
paired for grades 1-2-3-4-5 
and will attend Calcott and 
Crossroads.

Suburban Park )
) 4 miles.

Carey )

Lee )
) 3.7 miles

Granby )

Campostella ) Not paired with any other
school, but well in the process 
of resegregation. Current yea.r: 
blacks 135; whites 45

Liberty Park Average 3.2 miles

Ingleside Note: Children in Liberty Park
will attend Ingleside and Poplar 
Halls for grades 1-2-3-4. Children 
living in Ingleside and Poplar Hails 
will go to Liberty Park for grades 
5-6.

Poolar Halls
)
)
)



SCHOOLS PAIRED

Chesterfield
Heights

Diggs Park 

East Ocean View 

Pretty Lake

Tucker

Fairlawn
Easton

Bowling Park

Lansdale
Pineridge

Stuart

Marshall 

Meadowbrook 

Sewells Point

DIS T7»NCE

) N o t pai red with any o thicr
) soilo o l , bu t now subst aritially

res eg re CJ cl C-e d . Curren t y e a r :
bla cks 671 ; whites 51

)\ Average 1 0 .5 mil es
)\) Note: Testimony of expert on
) ' bus transportataon gives th*i o
) figure as 13 mil es. Child-ren

in Digg s Park area w'i 11 4 -  -v~avel
to East 0 cean View and Pre 4_Utv
Lake for grades 1 - 2 . Cnildren
at East Ocean View and Pretty
Lake wi 11 travel to Diggs Park
for graaes 3-4-5 -6.

) Average 6 .6 mile s (via Vir g -i y~\ -v_U J. j.

) Beach Expressway)
)
) Note: Children in Tucker area
) will travel to Fairlawn or Easton

for grades 1-2-3-4. Children at 
Fairlawn or Easton will travel to 
Tucker for grades 5-6.

) Average 2.9 miles
)
) Note: Children in areas of
) Bowling Park and Lansdale will
) attend Pineridge for grades 1-2-3.

The Pineridge children will attend 
either Bowling Park or Lansdale 
for grades 4-5-6.

) Not paired with any other
school but, as noted in 
footnote (42), it is obvious 
that this school will soon be 
completely resegregated.

) Average 5 miles
)
) Note: Children heretofore
) attending Marshall will travel
) to either Meadowbrook or Sewells

Point for grades 1-2-3-4. Children 
heretofore attending either 
Meadowbrook or Sewells Point will 
go to Marshall for grades 5-6.

"cA



SCHOOLS PAIRED DISTANCE

Madison )
)

Larchmont )
)

Taylor )

Average 2.75

Note: Children ordinarily
attending Madison will be 
divided between Larchmont 
and Taylor for grades 1-2-3-4. 
Children at Larchmont and 
Taylor will be sent to Madison 
for grades 5-6.

St. Helena 
Lakewood

will attend Lakewood for grades 
1-2-3-4. Lakewood children will 
attend St. Helena for grades 5-6.

) 4.9 miles
)
) Note: St. Helena children

Ballentine Will house only grade 6 and will 
draw from Lafayette and Lindenwoo

Lafayette

Lindenwood

Norview

Monroe

) Average 1.7 miles
)
) Note: Lafayette children will

attend Lindenwood for grades 
1-2-3. Lindenwood children will 
attend Lafayette for grades 4-5. 
Children of both Lafayette and 
Lindenwood will attend Ballentine 
for grade 6--an approximate 
distance of 1.7 miles.

) Not paired with any other school.
Nov/ thoroughly desegregated, but 

. with a majority white.

) Average 3.5 miles
Sherwood Forest )

)
Coleman Place )

Note: Children in Monroe area
will be divided between Sherwood 
Forest and Coleman Place for 
grades 1-2-3-4. Children at 
Sherwood Forest and Coleman Plac 
will attend Monroe for grades 5-

Little Creek )
Elementary )

)
Little Creek )
Primary )

) 
)

9 miles

Note: Children at Little Creek
(Elementary and Primary) will 
attend Lincoln for grades 1-2. 
Children at Lincoln will attend 
Little Creek for grades S-4-5-6

S>

Lincoln

0
i 

0)



SCHOOLS PAIRED DISTANCE

Gatewood )
)

Larrymore )

8.3 miles

Note: Children at Gatewood
will attend Larrymore for 
grades 1-2-3-4. Children at 
Larrymore will attend Gatewood 
for grades 5-6.

West

Tarrallton

) 6 . 8 miles
)
) Note: Children in West area

will attend Tarrallton for 
grades 1-2-3-4. Children in 
Tarrallton area will go to West 
for grades 5-6.

Bay View )
)

Goode )
)

Tidewater Park )

Average 7.5 miles

Note: Children in Bay View
area will be divided between 
Goode and Tidewater Park for 
grades 1-2-3. Children in areas 
of Goode and Tidewater Park will 
go to Bay View for grades 4-5-6.

Camp Allen Not paired with any other school. 
In process of construction. Will 
be thoroughly desegregated.

Roberts Park )
)

Willoughby )
)

Ocean View )

8 . 2 miles

Note: Children at Roberts Park
will be divided between Willoughby 
and Ocean View for grades 1-2-3-4. 
Children in Willoughby-Ocean View 
area will be assigned to Roberts 
Park for grades 5-6.

No estimate of time required for travel, an 

admittedly important factor, has been made. The time 

required for the morning run will undoubtedly be longer 

than the afternoon run, due to traffic conditions involving 

people en route to work at approximately the same hour.



APPENDIX C

A list of states with discriminatory laws 

or judicial decisions, excluding the states mentioned 

in footnote (49) in which mandatory school segregation
laws existed on May 17, 1954.

ALASKA ! ------
In Davis v. Sitka' School Board, 3 Alas. 481 

(1908), it was held that semi-civilized Indians did 

not have to be admitted to public schools. It went 

on to find that the step-children of "an industrious, 

law-abiding, intelligent native" Indian, who operated a 

store "according to civilized methods," and had adopted 

the white man's style of dress; spoke, read and wrote 

the English language; and was a member of the Presbyterian 

Church; were not civilized enough to attend white schools 

because they still lived with other members of their 
tribe.

Sing v. Sitka School Board, 7 Alas. 616 (1927), 
upheld separate but equal schools for Indians.

ARIZONA
Ariz. Code Ann. (1939), section 54-416, 

provided for mandatory segregation in elementary schools. 

Under section 54-918, there was permissive segregation 

in high schools, where there were more than 25 blacks 

in the high school district and if approved by a 

majority vote of the. electorate. By an amendment in . 

1951, section 54-416 was made permissive and section 

54-918 was repealed.



ARKANSAS

Ark. Stat, Ann. (1947), section 80-509(c),--------- !-----
required the establishment of separate schools for 
white and colored.

CALIFORNIA
While law$ enacted in 1869-70 and 1880-81 

provided (1) mandatory separate schools for Negro 
and Indian children) and (2) permissive separate 
schools for children of Mongolian or Chinese descent, 
a statute enacted in 1943 but repealed in 1947 reenacted 
the. permissive separate school provision and provided 
that, if separate schools were established for Indian 
children or children of Chinese, Japanese or Mongolian 
parentage, they could not be admitted to any other 
school. Cal. Educational Code, section 8003 (Deering's 
1944). See also: Cal. Laws 1869-70, p. 838; Cal.
Political Code, section 1662 (Deering's 1885).

COLORADO
Miscegenation statute, Col. Stats. Ann, c. 107, 

sections 2, 3 (1935). Jackson v. Denver, 109 Col. 196,
124 P.(2d) 240 (1909) holds that an otherwise valid 
common law marriage between a black and a white was 
declared to be "immoral" and justified a conviction 
under a vagrancy statute defining same to include 
leading an "immoral course of life."

CONNECTICUT
Conn. Const., Art. VI, section 2 (1818), 

limited the electorate to white male citizens owning 
property. In 1845 the property qualification was deleted. 
In 1876 the Constitution was amended by removing the 
requirement that electors be white..

- 2 -



DELAWARE
Del. Const., Art. X, section 2 (1915) 

provided for separate schools. By the Del. Rev. Code,
Ch. 71, section 9 (1935), two kinds of separate schools 
were authorized; "those for white children and those 
for colored children."

DISTRICT OF COLUMBIA
D. C. Code, title 7, sections 249, 252 (1939 Supp,), 

authorizes separate schools for white and colored in the 
District.

IDAHO
Idaho Const.f Art. 6, section 3 (1890), 

prohibits Chinese or Mongolians, not born in the United 
States, from voting, serving as jurors, or holding civil 
offices.

Miscegenation statute: 1867, p. 71, section 3;
R. S. section 2425, reenacted Rev. Code section 2616;
amended 1921, Ch. 115, section 1, p . 291.

ILLINOIS
111. Const., Art. II, section 27 (1818), 

limited the electorate to white males.
Although no statute respecting school 

segregation has been located, history is replete with 
evidence of discriminatory practices in operating 
separate schools for many years. See Ming, The 
E1imination of Segregation in the Public Schools of 
the North and West, 21 J. Negro Ed. 265, 268 (1952);
B. H. Valien, Racial Desegregation of the Public 
Schools in Southern Illinois, 23 J. Negro Ed. 303 
(1954); Shagoloff, A Study of Community Acceptance 
of Desegregation in Two Selected Areas, 23 J. Negro Ed.
330 (1954). See also: United States v. School District
1.51 of Cook.County, 111., 301 F. Supp. 201, 217 (1969) .

-3-



Thus, Illinois, without a specific statute, 
practiced segregation in public schools prior to 1954,
almost as much as in the "Deep South."

INDIANA
Ind. Stat. Ann., section 28-5104 (Burns 1933), 

provided for the establishment of separate schools 
for Negroes if the school authorities believed it to 
be necessary or proper but, if no separate schools 
were established, Negroes could attend white schools.
In 1949, the separate school law was repealed, Laws,
1949, Ch. 186, section 11.

IOWA
Iowa Laws, Ch. 99, section 6 (1846), 

provided that schools were to be open to all white 
persons.

Iowa Laws, Ch. 52, section 30 (1858), called 
for the education of colored children in separate schools 
except where there was unanimous consent of all attending 
the school to allow Negroes to attend the white school. 
This act was declared unconstitutional in District v.
City of Dubuque, 7 Iowa 262 (1858), on the ground that 
the Constitution gave the power to legislate with regard 
to education to the Board of Education and not to the 
General Assembly. Thereafter, the Board of Education 
provided education for all "youth" and in Clark v.
The Board of Directors, 24 Iowa 266 (1868), this was 
construed as requiring admission of Negroes into white 
schools.

The Iowa Const., Art. II, section 1 (1858) ,
provided that only white males could be electors.

-4-



Iowa Codo, Ch. 130, section 2388 ff. (1859), stated 

that no colored person could be a witness.

KANSAS

Kan . Gen. Stat., section 72-1724 (1949), 

gave authority to establish and maintain separate 

primary schools for whites and Negroes throughout 

the state, and separate high schools in Kansas 

City. See: Brown v. Board of Education, 347 U.S.

483 (1954).

KENTUCKY

Ky. Const., section 187, Ky. Rev. State, 

section 158.020 (1946), required separate schools 
for white and colored children.

MARYLAND

Md. Code Ann., Art. 77, sections 124, 207 

(1951), required the county boards of education to 

establish one or more separate schools for Negroes, 

provided that the colored population of any such 

district warranted, in the board's judgment, an 

establishment of separate colored educational facilities.

MASSACHUSETTS

In Roberts v. City of Boston, 59 Mass. 198 

(1849), the court stated that separate schools had been 

maintained for colored children "for half a century."

The court upheld the school committee in denying admission 

to a white school by a Negro child. However, six years 
later Massachusetts by statute abolished the practice 

of excluding on account of race, color or religion.

- 5 -



MICHIGAN

A dissenting opinion in The People v. The 

Board of Education of Detroit, 18 Mich. 400 (1869), • 

states that in 1841 separate schools for colored 

were established in Detroit. The court was construing 

an amendment to the general school law which provided 

that' all residents had an equal right to attend schools 

and the statute was held to apply to Detroit.

In Day v. Owen, 5 Mich. 520 (1858), the 

court upheld a regulation excluding a Negro from the 

cabin of a steamer solely for the reason of his race.

People v. Dean, 14 Mich. 406 (1866), held 

that only whites, or those at least three-fourths 
white, could -vote.

Miscegenation statute, C. L. 1857, 3209,

C. L. 1871, 4724, prohibited marriages between whites 

and Negroes until the statute was amended in 1883.

MINNESOTA

Minn. Rev. Stat., Ch. 5, section 1 (1851), 

and Minn. Const., Art. VII, section 1 (1858), excluded 
Negroes from voting until amendment of November 3, 1868

MISSOURI

Mo. Const., Art. XI, sections 1, 3 (1875),

and Mo. Rev. Stat., section 163.130 (1949), required

separate schools and "it shall be unlawful for any 

colored child to attend any white school or for any 

white child to attend a colored school." These 

provisions were repealed in 1957, three years after 
Brown I.

-6-



MONTANA
Mont. Ter. Laws, 1872, p. 627, provided 

for separate schools of children of African descent 
when requested by at least ten such children. This 
statute was repealed in 1895.

Miscegenation statute, Mont. Rev, Code, 
section 5700 (1935).

NEBRASKA
Neb, Rev. Stat., Ch. 48, section 8 (1866), 

imposed upon the local school directors the duty of takiny 
an annual census of unmarried white youth between the 
ages of five and twenty-one for the purpose of school 
assignments. Neb. Rev. Stat., Ch. 48, section 48 (1866), 
establishing the school system states that it is "for 
the purpose of affording the advantage of a free 
education to all white youth of this territory," and 
further provides that all colored persons shall be 
"exempted from taxation for school purposes." These 
laws were repealed in 1869.

Miscegenation statute. Neb. Rev. Stat., 
section 42-103 (1943).

NEW JERSEY
N . J. Comp. Stat., pp. 4791-92, Schools 

sections 201-204, pp. 4814-16, Schools sections 262-267 (1911), 
established an industrial school for blacks.

In M, T. Wright, Racial Integration in the 
Public Schools in New Jersey, 23 J. Negro Ed. 282 (1954), 
there is reference to an 1850 statute permitting a 
township in Morris County to establish separate schools 
for colored children.

-7-



In Williams and Ryan, Schools in Transition, 

p. 12 2 (19 54) , it is said: "A survey of 62 school

districts, initiated in the spring of 1948, revealed 

that two-thirds had segregated schools sanctioned by 

local custom and practice."

N . J, Const., Art. II, section 1 (1844), 

limited suffrage to white males.
NEW MEXICO

N . M. Stat., section 55-1201(1941 Annot.) 

allowed school boards to place children of African 

descent in separate schools if the facilities were

equal.

NEW YORK

N. Y. Consol. Laws, c. 15, section 921 
(Cahill 1930) , provided that trustees of any union 

school district organized under a special act "may 

establish separate schools for colored children pro­

vided that the facilities are equal." On March 25, 

1938, this law was repealed.

NORTH DAKOTA

Miscegenation statute, N . D . Rev. Code, 
section 14-0304 (1943).

OHIO

Under Ohio Stat., Ch. 101, section 31 

(1854), separate schools for colored children were 

authorized and required when there were more than 

thirty school-aged colored children in a township.

This statute was repealed in 1887. It was held in

8-



. I.'irnos v. I'V’Caim, 21 Ohio St. Rep. 198 (1871) that 
i.he enisling statute deprived the Negroes of the right 

.o admission at white schools.
Separation of races on an educational level 

under the separate but equal theory was upheld in 

State ex rel. Weaver v. Trustees, 126 Ohio St. Rep.

290 (1933).

OKLAHOMA

Mandatory separate but equal schools required 

for black and white children. Okla. Const., Art. I, 

section 5, Art. XIII, section 3; Okla. Stat., Title 70, 

section 5-1 (1949 Supp.).
OREGON

Miscegenation statute. Ore. Comp. Laws Ann., 

section 63-102 (1940). Statute repealed 1951.

PENNSYLVANIA

In Hobbs v. Fogg, 6 Watts 553 (Pa., 1837), 
the Court held that a free male Negro was not a freeman 

entitled to vote under the Pennsylvania Constitution 
providing that all freemen could vote. In 1838, the 

Pennsylvania Constitution, Art. I, restricted voters 

to white freemen. In 1874 this restriction was removed.

While unable to locate the statute, H. M. Bond, 

The Education of the Negro in the American Social Order, 

p. 378 (1934), states that in 1854 Pennsylvania enacted 

an optional separate school law when there were more . 

than twenty Negroes in a district. This law was reportedly 

repealed in 1881.

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RHODE ISLAND

Ammons v ._Charlostovm School District,

7 R. .1. 59 6 (1354) , hold that Indian tribes were 

no a entitled to send their children to local public 

.schools since the state had provided schools for 

.hn-lets rhrough a special state appropriation.

SOUTH- DAKOTA
i

Indians were required to attend federal 

schools established for them whenever such schools 

were available. S. D ., Laws, Ch. 138, sections 290- 

293 (1931); S. D. Code, section 15.3501 (1939).

Miscegenation statute. S. D. Code, section 
14.0106 (1939).

TENNESSEE

Mandatory separate schools for colored 

children. Tenn. Const., Art. XI, section 12;

Tenn. Code, section 2377, 2393-9 (1932).

TEXAS

Mandatory separate schools for colored 
children. Tex. Const., Art. VII, section 7; Tex. Ann. 

Rev. Civ. Stat., Articles 2719, 2900 (1925).

UTAH

Utah Laws and Ordinances, 1851, An Ordinance 

to Incorporate Great Salt Lake City, section 6 , provided 

"all free white male inhabitants are entitled to vote...

Miscegenation statute. Utah Code Ann., 
section 40-1-2 (1943).

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west v,' :g ; .Si i a
Mandatory separate schools for colored 

children. W. Va. Code, Ch. 18, Art. 5, section 14
( x 3 3 jl. ) .

WISCONSIN

Indians required to attend separate schools 

where such schools were available. Wise. Stat., 
section 40.71 (1949). Repealed in 1951.

Under Wise. Stat., section 75.14(4), 

restrictions surviving the issuance of tax deeds 

(after tax sales) which were valid and enforceable 

included those regarding the "character, race, and 

nationality of the owners." Statute repealed in 1951.

WYOMING
Wyo. Comp. Stat. Ann., section 67-624 (1945,

bur. originally enacted in 1876), provided that the 

senool boards could establish separate but equal
schools for Negroes.

SUMMARY

Only as to the states of Maine, New Hampshire, 

Vermont, Washington, Nevada, and Hawaii does it appear 

from this nonexhaustive research that no discriminatory 

laws appeared on the books at one time or another.

No consideration has been given to Puerto Rico, Virgin 
Islands, Canal Zone or Guam.

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