Riddick v The School Board of the City of Norfolk Writ of Certiorari

    No. 85-

I n  t h e

Supreme QJmtrt nf %  Imfcb States
O ctober T eem , 1985

P aul R . R iddick , Jk., et  al .,

v.
Petitioners,

T h e  S chool B oard of t h e  C ity  of N orfolk , et al.

APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

H enry L. Marsh, III 
S.W. Tucker 
Randall G. J ohnson 
H ill, Tucker & Marsh 

509 North 3rd Street 
P.O. Box 27363 
Richmond, Virginia 23261 
(801) 648-9073

George B. L ittle 
E lizabeth Turley 
Timothy M. Kaine 
L ittle, P arsley & Cluverius, PC  

1300 Fed. Reserve Bank Bldg. 
P.O. Box 555 
Richmond, Virginia 23304 
(804) 644-4100

Gwendolyn J ones J ackson 
P.O. Box 622 
Norfolk, Virginia 23501 
(804) 622-9031

* J ulius LeVonne Chambers 
J ames M. Nabrit, III 
Napoleon B. W illiams, J r.

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

^Counsel of Record

Attorneys for Petitioners



I N D E X

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O rd e r  of the United Sta tes D istr ic t  
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Judgm ent of the United States C o u rt  
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D eny in g  R ehearing , M arch  19,
1986 ..................................................  158A



UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 84-1815

Paul R. Riddick, Jr., and Phelicia Rid­
dick, infants, by Paul R. Riddick, their 
father and next friend,
Cynthia C. Ferebee, Johnny Ferebee, Gary 
Ferebee, and Wilbert Ferebee, infants, by 
Rev. Luther M. Ferebee, their father and next friend,
Anita Fleming, infant, by Blanche Fleming, 
her mother and next friend,
Darrell McDonald and Carolyn McDonald, 
infants, by Ramion McDonald, Sr., their 
father and next friend,
Eric E. Nixon and James L. Nixon, infants, 
by Patricia Nixon, their mother and next 
friend, Johnny Owens; Trent Owens; Myron 
Owens, Shawn Owens, and Antonio Owens, in­
fants, by Annette Owens, their mother and 
next friend; Paul R. Riddick, Rev. Luther 
M. Ferebee, Blanche Fleming, Ramion 
McDonald, Sr., Patricia Nixon, and Annette Owens,

Appellants
versus



The School Board of the City of Norfolk 
Thomas G. Johnson, Jr., Dr. John H. Fos­
ter, Dr. Lucy R. Wilson, Jean C. Bruce, 
Cynthia A. Heide, Robert L. Hicks, Hor- 
tense R. Wells,

Appellees
The Lawyers' Committee for Civil Rights 
Under Law,

Amicus Curiae.

Appeal front the United States Dis­
trict Court for the Eastern District of 
Virginia, at Norfolk. John A. MacKenzie, 
Chief Judge. (C/A 83-326N)

Argued January 8, 1985 
Decided February 6, 1986

Before WIDENER, SPROUSE and ERVIN, 
Circuit Judges.

Henry L. Marsh, III (S. W. Tucker; Ran­
dall G. Johnson; Hill, Tucker & Marsh, on 
brief) and Julius Levonne Chambers (James 
M. Nabrit, III; Napoleon B. Williams, 
Jr.; Gwendolyn Jones Jackson; Delk, James 
& Jackson: Elizabeth Turley; Little, 
Parsley & Cluverius, on brief) for Appel­
lants; Jack E. Greer (J. Anderson Stal- 
naker; M. Wayne Ringer; Williams, Wor­
rell, Kelly & Greer; Philip R. Trapani, 
on brief) for Appellees; William Brad­
ford Reynolds, Assistant Attorney General 
(Charles J. Cooper, Deputy Assistant At­
torney General; Michael Carvin, Depart­
ment of Justice, on brief) for Amicus

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Curiae United States: (Fred N. Fish­
man; Robert H. Kapp; Norman Redlich; 
William K. Robinson; Conrad K. Harper; 
Eleanor M. Fox: Richard E. Meade: 
Simpson Thacher & Bartlett, on brief) 
for Amicus Curiae The Lawyers Committee 
for Civil Rights Under Law.

WIDENER, Circuit Judge:

The plaintiffs, Paul R. Riddick 
and others, appeal the district court's 
refusal to invalidate a new pupil assign­
ment plan for the elementary schools 
(grades K-6) of the City of Norfolk. 
Under the new assignment plan, manda­
tory cross-town busing, required at first 
by court order in 1971, is abolished. In 
its place, students are assigned in most 
instances to neighborhood schools, with a
transfer provision with free transporta-

1
tion for minority students who desire it. 
Plaintiffs contend that adoption of the

Secondary schools are not affected by the 
plan. Busing is continued for them.

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new assignment plan was racially motivated 
and that its implementation violates their 
constitutional rights under the Four­
teenth Amendment to the United States 
Constitution. We affirm.

I. Background
To better understand the issues 

involved in the instant appeal, the 
history of litigation arising out of 
racial segregation in Norfolk's public 
schools should be examined. Prior to the 
Supreme Court's opinion in Brown v. Board 
of Education, 347 U.S. 483 ( 1954), segre­
gation of public schools in Norfolk and 
elsewhere in Virginia was sanctioned by 
state law.

In 1956, litigation began which 
sought the integration of Norfolk's public 
schools. Beckett v. School Board of the 
City of Norfolk, 148 F.Supp. 430 (E.D.
Va.), aff'd 246 F.2d 325 (4th Cir.), cert.

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den. 355 U.S. 855 (1957). Following 
intervention of additional plaintiffs, 
the case became styled Brewer v. 
School Board of the City of Norfolk, see 
349 F.2d 414 (4th Cir. 1965) (referred to 
herein as Brewer or Beckett).

In 1970, this court upheld a finding 
that the Norfolk school board operated a 
dual school system based on race. Brewer, 
434 F.2d 408, 410 (4th Cir.), cert. den. 
399 U.S. 929 (1970). The district court 
was ordered to implement a plan in 
order to achieve a unitary school system 
in Norfolk. Brewer, supra, at 412. Fol­
lowing the Supreme Court's decision in 
Swann v. Charlotte-Mecklenburg Board of 
Education. 402 U.S. 1 (1971), the court

i
again remanded Brewer to the district 
court for implementation of a desegrega­
tion plan conforming with Swann1s expanded 
scope of remedies. Brewer, sub nom. Adams

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v. School District No. 5, Orangebarg Co.,
S ■ C ♦ , 444 F . 2d 99 (4th Cir), cert. den. 
404 U.S. 912 (1971).

Following remand, the district court 
adopted a desegregation plan which util­
ized pairing and clustering of schools 
in Norfolk, as well as cross-town 
busing in the assignment of students 
to accomplish desegregation. This court 
affirmed implementation of the busing 
plan with a modification of the plan 
to provide for free transportation for 
those students bused. Brewer v. School 
Board of the City of Norfolk, 456 F.2d 943 
(4th Cir.), cert. den. 406 U.S. 933 
(1972).

Three annual reports by the school 
board were reviewed by the district court 
following its 1971 order. In 1975, 
the district court determined that ra­
cial discrimination had been eliminated

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from the Norfolk school system and that 
the school system had become unitary. 
Therefore, the district court dismissed 
the Beckett action. The full text of that 
order is:

ORDER
It appearing to the Court that all 
issues in this action have been dis­
posed of, that the School Board of 
the City of Norfolk has satisfied its 
affirmative duty to desegregate, that 
racial discrimination through offi­
cial action has been eliminated from 
the system, and that the Norfolk 
School System is now "unitary," the 
Court doth accordingly
ORDER AND DECREE that this action is 
hereby dismissed, with leave to any 
party to reinstate this action for 
good cause shown.

/s/ JOHN A. MacKENZIE 
UnitecTstTates District Judge

Dated: February 14, 1975
We ask for this:
/s/ Henry L. Marsh, III 
Counsel for Plaintiffs
/s/ Allan G. Donn 

Counsel forDefendants
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No appeal was taken from the order 
dismissing the case. No legal action was 
taken with respect to the desegrega­
tion of Norfolk's public schools from 
1975 until the present action was filed in 
1983.

Although no longer under court 
order, the Norfolk school board con­
tinued cross-town busing until 1983. At 
that time, the board concluded that de­
clining white enrollment figures required 
that the busing plan be modified to abo­
lish mandatory busing of elementary school 
students. In its stead, the board adopted 
a pupil assignment plan based on geogra­
phic zones for its elementary schools. 
The board sought district court approval 
of its proposed plan by filing a motion to 
reinstate the Beckett case and by filing 
a civil action, School Board of the

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et al No.City of Norfolk v. Bell,
83-225-N (E.D. Va. 1983). The Riddick
plaintiffs (those presently before the 
court) thereafter filed this class 
action suit challenging the proposed 
pupil assignment plan. The board volun­
tarily dismissed the Bell case and with­
drew its motion in the Beckett case. The 
issues raised in those proceedings are 
raised here.
II. Facts

In 1970, the population of Norfolk 
was 307,951, 70% (215,069) white and
28% (87,261) black. The Norfolk public
schools enrolled 56,830 pupils during the 
1969-70 school year, 57% (32,586) of
those students being white and 43% 
(24,244) being black.

In 1980, the population of Norfolk 
had declined more than 11% to 266,979, 61% 
(162,300) white and 35% (93,987) black.

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The public school enrollment, racially and 

otherwise, had even more drastically 
changed. By the 1980-81 school year, 
enrollment had shrunk to 36,643, a 37% 
drop in overall enrollment. Even more 
startling, the white enrollment that year 
was 15,629 or 42.6% of the total school 
enrollment. Black enrollment (21,014) 
now comprised 57.4% of the total 
school enrollment. While the overall 
percentage of white enrollment had dropped 
14.4%, white school enrollment had dropped 
52%, although the white population de­
creased only 24%. By 1983, school en­
rollment was down to 34,803, 58% 
(20,191) black and 42% (14,611) white.

Largely because of the drop in 
overall student enrollment during those 
years, 17 elementary schools were closed. 
Most of these schools closed were located 
in predominantly black neighborhoods.

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Since 1971, the school board had 
used a 70%-30% ratio in assigning stu­
dents under the busing plan. A school 
was considered as a racially identifiable 
black school if its enrollment consisted 
of more than 70% black students. In 1977, 
one elementary school was over 70% black. 
By 1981, seven elementary schools were 
over 70% black. During this same period, 
parental involvement, as shown by PTA 
membership, dropped dramatically, from 
15,000-20,000 down to 3,500.

Alarmed about the continued loss of 
white students from the public school sys­
tem and the drastic drop in parental in­
volvement, the school board appointed an 
ad hoc committee in 1981 to examine the 
feasibility of reducing cross-town 
busing. The committee members initially 
were Mrs. Jean Bruce, Mrs. Hortense Wells, 
Tommy Johnson, Robert Hicks, and John

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Foster. It was later expanded to a
committee of the whole. The Committee
members visited other school systems
to study their desegregation programs,
including the Shreveport, La. and
Richmond, Va. school systems. A task
force was appointed to produce data for 

2
the committee. The committee communi­
cated with experts in the field for con­
sultation, including Dr. Ron Edwards, Dr. 
Robert Green, Dr. Sarah Lightfoot, and Dr. 
David Armor. Three members of the ad 
hoc committee favored a proposal end­
ing busing of elementary school stu­
dents. Dr. Foster opposed the change.

The board engaged Dr. Armor to
prepare a report on the problems of 
continued integration of Norfolk's
schools. Armor concluded that mandatory 2

2 '  ‘Its members included Dr. Jane Carter, Dr. 
John McLaulin, and Dr. Aaron Gay.

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busing had led to significant white 
flight and that if busing continued, the 
Norfolk school system would be 75% 
black by 1987. At the point of 75% 
black, no matter in which year it occurr­
ed, of course the average black child 
could not expect to be educated in a dese­
gregated school according to the 70/30 
definition used and which Armor stated was 
consistent with most definitions of segre­
gation. Busing, he said, had aided the 
obtainment of racial balance but such 
balance was of little aid as the system 
was resegregating with the rapid loss of 
white students. He concluded that under 
such circumstances busing did not signi­
ficantly aid black academic achievement 
and that white student enrollment would 
stabilize if busing were eliminated.

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The board held a series of public
hearings to present the new pupil assign- 

3
ment plan. Groups both opposed to and 
supportive of the new plan presented 
their views at these hearings. Support­
ers of the plan were concerned with the 
lengthy transportation of their children, 
with problems inherent with having 
their children in schools far from 
their homes, with lack of parental in­
volvement in these distant schools and 
with a general feeling that busing was not 
working. Those opposed to changing the 
busing plan expressed concerns over the 
number of schools that would become almost 
completely black, the adverse effects of 
such separation of the races, fear that

An alternate plan, Plan II, was also 
presented at these hearings. That plan 
provided for changing but not eliminating 
busing but did not meet with public sup­
port .

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the segregation of the past was returning 
and concern that busing was needed to 
guarantee equal allocation of both ma­
terial and human resources.

III. The Proposed Plan 
On February 2, 1983, the Norfolk

school board adopted the "Proposal For a
Voluntary Stably Desegregated School Sys-

4
tem" by a vote of 5-2. Under the plan,
cross-town busing of elementary school

5
students was eliminated. All of the ele-

Those school board members in favor of 
the new plan included Thomas Johnson 
(white), Jean Bruce (white), Cynthia 
Heide (white), Mrs. Hortense Wells 
(black), and Robert Hicks (white). 
Those opposed were Rev. John Foster 
(black) and Dr. Lucy Wilson (black).
Of thirty-seven elementary schools at the 
time of trial, there were twenty-two 
elementary schools attended by students 
that were bused. One of those, Ghent Ele­
mentary School, offered an open classroom 
program and accepted students from any­
where in the city. The remaining fourteen 
schools were single attendance zone 
schools whose students were not bused.

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mentary schools became single attendance 
zone schools (neighborhood schools). 
Those single attendance zones were gerry­
mandered so as to achieve maximum

6
racial integration. Students attending 
any certain elementary school were fed 
into a certain one of eight junior high 
schools. Under this feeder plan, all 
the junior high schools were fully 
integrated racially. The maximum black/ 
white ratio was 72/28, and the minimum 
56/44 .

Under the plan, twelve of Norfolk's 
thirty-six elementary schools will be 70% 
or more black, compared to four under the 
busing plan presently in effect. Of those

Plaintiffs do not challenge the method by 
which the zones were drawn, or the zones 
themselves, but instead challenge the plan 
as a whole.

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twelve schools, ten will be 95% or more
black. Six schools will become 70% or 

7
more white.

7 Projected % %
School Assignment White Minority

Bay View 710 84 16
Bowling Pk. 589 1 99
Calcott 563 61 39
Camp Allen 689 62 38
Chesterfield 572 1 99
Coleman Place 970 47 53
Crossroads 714 37 63
Diggs Pk. 381 2 98
Fairlawn 282 73 27
Granby El. 674 44 56
Ingleside 665 38 62
Jacox 769 1 99
Larchmont 685 52 48
Larrymore 768 31 69
Lindenwood 492 21 79
Little Cr.El&Pri 1037 75 25
Meadowbrook 512 61 39
Monroe 831 0 1 00
Norview 602 32 68
Oakwood 415 35 65
Oceanair 672 71 29
Oceanview 586 78 22
Poplar Halls 388 43 57
Roberts Pk. 401 0 100
St. Helena 355 2 98
Sewells Pt. 664 64 36
Sherwood For. 627 70 30
Suburban Pk. 539 55 45
Tarrallton 548 48 52
Taylor 487 54 46
Tidewater Pk. 276 2 98
Tucker 312 3 97

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containsThe plan contains a majority- 
minority transfer option, described in 
Swann, p. 26, as a "useful part of 
every desegregation plan." Under this 
option, any student assigned to attend a 
school at which his race constitutes 70% 
or more of the student body can transfer 
to a school where his race constitutes 
less than 50% of the students. The 
plan provides for free transportation 
for those students choosing such a trans­
fer. The school board estimates that 10- 
15% of eligible students would take advan­
tage of the M/M transfer the first years. 
Five year projections show as many as 40% 
of the students may opt for M/M transfers. 
If 20% of those eligible black students

Willard 802 26 74
Willoughby 558 65 35
Young Pk. 510 1 99
Ghent 600 (open classroom

program)

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opt for M/M transfer, only one school 
would remain more than 70% white. 
Some of the ten schools with 95% or more 
black pupils would have smaller percen­
tages of black students but all would yet 
be above 95%.

The plan also provides for multi-cul­
tural programs to expose students in 
racially isolated elementary schools to 
students of other races. A parental in­
volvement program is also included.

A Plan II was drawn up by Dr. John 
Foster which reduced the length of bus 
rides for elementary students 'out increas­
ed the number of students that would be 
bused . No school would have been less 
than 25% of any one race. Plan II would 
have required the redrawing of all of 
the attendance zones in the school 
system. That plan was also presented at 
the public hearings. No support was ex­

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pressed for Plan II at those hearings, and 
the plan was not adopted by the board. 
Plaintiffs do not here seek an adoption of 
Plan II in lieu of the plan adopted: they 
seek a return to the original busing plan.

IV. District Court Opinion
On July 9, 1984, the district court 

upheld the constitutionality of Norfolk's 
proposed plan for elementary school 
assignments. As a preliminary matter, 
the court held that its 1975 ruling that 
Norfolk's school system was unitary was 
fully supported by the record and remained 
in effect at the time of this suit. In so 
concluding, the court rejected plaintiffs' 
argument that the 1975 order was merely a 
consent decree and therefore had no effect 
upon these plaintiffs.

The court held that the 1975 order 
had the effect of placing the burden of 
proof on the plaintiffs instead of the

20A



defendant school board. The burden was on 
the plaintiffs to show that the proposed 
plan was adopted by the board with an in­
tent to discriminate on the basis of race. 
Upon entry of the 1975 order, the court 
reasoned , the Norfolk school board had 
discharged its affirmative duty to dese­
gregate its schools. Thus, as of the 1975 
order, the school board was no longer 
operating a de jure dual school system 
with a concomitant duty to desegre­
gate as required by Brown and later 
cases. Because no de jure discrimina­
tion was present, the plaintiffs were re­
quired to show that the school board acted 
with an intent to discriminate as required 
by Arlington Heights v. Metropolitan 
Housing Dev. Corp., 429 U.S. 252 ( 1977), 
and Washington v. Davis, 426 U.S. 229 
( 1976) .

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Finally, the district court found 
that the plaintiffs had not satisfied 
their burden of proving discriminatory 
intent. In reaching that conclusion, the 
court reviewed the six aspects of public 
education which must be free from racial 
discrimination before a system can become 
unitary: faculty, staff, transportation 
practices, extracurricular activities, 
facilities and pupil assignment. Green v . 
County School Board, 391 U.S. 430, 435 
(1968).

There follows, briefly stated, the 
district court's findings of fact and con­
clusions of law in its analysis of that 
question.

Norfolk's school board was racially 
mixed, composed of four white and three 
black members. The superintendent of the 
schools, Dr. Gene R. Carter, was black. 
Two of the three Regional Assistant

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Superintendents were black. The faculty 
was 56% white and 44% black. Black per­
sonnel comprised 52% of the total. Such 
data reflected that the faculty and 
staff were fully integrated. Relying on 
this, the district court rejected plain­
tiffs' allegation that school resources 
would inequitably be distributed with 
predominantly white schools receiving 
a greater percentage of these resources. 
In addition, the court noted the new plan 
itself required periodic judicial review 
of the school board's allocation of educa­
tional resources.

The court found credible the testi­
mony of expert witnesses that Norfolk 
would continue to lose white students 
because of busing and that over a period 
of time the school system would become 
predominantly black. Norfolk's school 
system might well become 90% black as are

23A



systems in cities such as Baltimore and
Washington, D.C., or 86% black as in
Richmond, resulting in resegregation
regardless of busing and pupil assignment
plans. The court found that Norfolk had
lost between 6000-8000 white students

8
because of busing. As a result of this 
white flight, Norfolk's schools were 
resegregating under the busing plan.

The district court recognized that 
white flight cannot be used as a reason 
for failure to dismantle a dual school 
system. United States v. Scotland Neck 
Board of Education, 407 U.S. 484 (1972). 
The consideration of white flight in de­
vising a voluntary plan to improve the 
racial balance of the schools was

g~ *
Students were lost from the public 
schools in two ways, those who left the 
schools after once being enrolled and 
those who settled in communities sur­
rounding Norfolk instead of Norfolk 
itself.

24A



proper however. Higgins v. Board of Edu­
cation of City of Grand Rapids, 508 F.2d 
779 (6th Cir. 1 974). It found the 
board's consideration of white flight was 
proper because it was voluntarily attempt­
ing to keep its schools stably integrated. 
It was under no affirmative court order 
to desegregate at the time. Such con­
sideration was not a pretext for racial 
discrimination. In sum, the district 
court found that keeping white students in 
the schools was necessary to insure a 
desegregated education, and, since the 
white students had been lost because of 
busing, the board was justified in re­
ducing the busing in an effort to keep 

white students.
Likewise, the court found as a fact 

and credited the board's second reason for 
adoption of the proposed plan, that of 
seeking an increase in the level of

25A



parental involvement. All the evidence 
at trial, both from plaintiffs and the 
board, indicated that parental involvement 
at the elementary level was essential to 
the well-being of the school system. 
Because of busing, however, parental 
involvement through the vehicle of the PTA 
had been virtually destroyed. PTA enroll­
ment had dropped from approximately 
15,000-20,000 members to 3,500 members. 
During this period of declining enroll­
ment, the board had tried to bolster 
membership by various means, including 
providing free transportation to parents 
to enable them to attend meetings at their 
children's school. The board's efforts 
were unsuccessful. Evidence at trial con­
vinced the court that parental involvement 
declined as a result of their children 
attending schools across town instead of 
close to their home with resulting easy

26A -



access of parents to the school. The 
proposed plan offered by the board 
represented a reasonable proposal to try 
to solve the dilemma of declining paren­
tal involvement.

Based upon the above reasoning and 
fact findings, the court rejected the 
plaintiffs' contention that the proposed 
plan was adopted for the purpose of racial 
discrimination. It found that neither the 
board's purpose of trying to create a 
stably integrated student body nor its 
effort to increase necessary parental 
involvement was pretextual. Therefore, 
the district court found that plain­
tiffs had not carried their burden of 
proving intent to discriminate on the part 
of the school board.

The court also rejected the plain­
tiffs' claim that discriminatory intent 
can be inferred from the procedure used by

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the board in considering and adopting the 
proposed plan. It found that the board 
had followed a thorough and reasonable 
procedure, including creating a special 
committee, hiring experts and holding 
six public hearings throughout the com­
munity. It also found no basis in fact 
for the plaintiffs' claim that the board 
had acted in concert with local housing
authority officials to determine the loca-

9
tion of housing projects and thereby 
determine the location of black elementary 
schools.

Plaintiffs appeal the district 
court's order rejecting their claim of 
intentional discrimination by the school 
board in adopting the proposed plan for

Twenty-five percent of Norfolk's black 
families live in public or subsidized 
housing projects. These twenty-two pro­
jects are occupied almost exclusively by 
black residents

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neighborhood elementary schools in 
Norfolk. Specifically, they claim error 
in (1) the district court's holding that 
the 1975 order declaring the Norfolk 
school system to be unitary remains effec­
tive and applicable to this lawsuit; (2) 
the district court's conclusion that 
Norfolk's school system is in fact uni­
tary: (3) the court's conclusion that
the burden of proof in this action is upon 
the plaintiffs to prove intent to discri­
minate by the school board; and (4) the 
court's holding that the school 
board's actions were not motivated by 
racial criteria in violation of the 
Fourteenth Amendment. We will consider 
these arguments in turn.

V. Effect of 1975 Order 
In 1975, the district court in 

Beckett found that the Norfolk school 
system had "satisfied its affirmative

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duty to desegregate, that racial discri­
mination through official action [had] 
been eliminated from the system and 
that the Norfolk School System [was] 
'unitary'." That holding marked the 
culmination of almost two decades of 
desegregation litigation in Norfolk. The 
Beckett litigation was effectively com­
pleted in 1971 when a busing order was 
entered. Following its entry, the dis­
trict court monitored the school system 
for four years and became satisfied that 
the system had ridded itself of racial 
discrimination. Being satisfied that the 
plan had succeeded in eradicating segrega­
tion, the court dismissed the suit.

Plaintiffs contend that the 1975 
order is no more than a consent order 
entered by the parties and therefore 
is not binding upon them. While the 
plaintiffs are correct in stating that, as

30A



a general rule, all consent orders do not
necessarily have collateral estoppel
effect, United States v. International
Bldg. Co., 345 U.S. 502 (1953), we believe
that the 1 975 order was not a compromise

10
judgment. Id. at 506. As previously
noted, that order culminated a lengthy and 
hotly contested lawsuit which resulted in 
the ending of segregated schools in 
Norfolk. The court monitored the desegre­
gation plan for several years and, after 
finding that all of the claims raised in 
the complaint had been disposed of, dis­
missed the case. Because the court made 
findings on the merits of the plaintiffs' 
claims for relief, the order is not a con­
sent order in settlement of a suit but is 
an order on the merits of the same. The

See generally IB Moore's Fed, Practice 
11 .444 [3] for a discussion of the colla- 
teral estoppel effect of consent orders.

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fact that the parties agreed to the 
order does not alter that conclusion. 
International Bldg. Co. supra, at 506. 
Unlike an order compromising a claim by 
agreement, the district court in the order 
now contested ruled on the questions of 
law and fact in dispute. Because the 
order represents the court's findings on 
the issues raised and not a compromise 
entered into by the parties, the consent 
order exception to application of col­
lateral estoppel principles is inapplic­

able here.
Such a conclusion is consistent with 

the duty placed upon district courts in 
disposing of school desegregation cases. 
A district court is under an obliga­
tion to retain Jurisdiction over the 
school system under a proposed inte­
gration plan to determine its effective­
ness in achieving desegregation. Swann,

32A -



supra, 402 U.S. at 21; Green, supra, 391 
U.S. at 439; Raney v. Board of Education, 
391 U.S. 443, 449 (1968). It is required 
to retain jurisdiction until it determines 
that the school system has become unitary. 
United States v. Texas Ed. Agency, 647 
F . 2d 504, 508 (5th Cir. 1981). Such 
a determination should only occur after 
the district court has retained Juris­
diction over the school system to make 
certain that "it is operated in a 
constitutionally permissible fashion so 
that the goal of a desegregated, non- 
racially operated school system is rapidly 
and finally achieved." Raney, supra, 391 
U.S. at 449; Felder v. Harnet Co. Board 
of Education, 409 F.2d 1070, 1075 (4th 
Cir. 1969). The district court followed 
the monitoring procedure as it was 
required to do. It did not end the liti­
gation until it was satisfied that the

33A



school system was free from racial 
segregation. Such active participation by 
the court belies any argument that the 
1 975 order is anything less than a judg­

ment on the merits.
Plaintiffs next contend that the 1975 

order should be given no effect here 
because the United States, a party to the 
prior action, was not given notice of, nor 
consented to, that order. Plaintiffs have 
no standing to raise such a claim, 
especially since the United States does 
not challenge the 1975 order. See
generally the government's brief 12-15.

We likewise reject plaintiffs' argu­
ment that the 1975 order is not to be 
given effect here because it was not a 
final order. That contention derives
from language in the order that the
action "is dismissed, with leave to any 
party to reinstate this action for good

34A



cause shown." If we consider that only 
final orders are to be given preclu­
sive effect, Kasper Wire Works, Inc, v. 
Leco Engineering & Mach., 575 F.2d 530, 
537-8 (5th Cir. 1978), we find no vio­
lation of that maxim here. The 1975 
order concluded a complex legal battle of 
almost twenty years' duration in which all 
parties had ample opportunity to be heard. 
That order could have been appealed under 
28 U.S.C. § 1291 if the parties so chose. 
They did not. The order finally disposed 
of all remaining issues in the litiga­
tion, and it could have been appealed. As 
such, preclusion principles attach.

The fact that the district court gave 
the parties an opportunity to reinstate 
the cause upon the docket with a showing 
of good cause does not alter our

11 See 18, Wright, Miller & Cooper Federal 
Practice and Procedure, § 4432.

35A



holding. That language is not dissimilar 
to the language in Fed. R. Civ. Pro. 
60(b) which allows parties to seek 
relief from a judgment under certain 
prescribed circumstances. Rule 60(b) 
specifically provides, however, that 
such opportunity to seek relief from judg­
ment does not affect the finality of an 
order. We believe that the same reasoning 
should apply here.

Plaintiffs further argue that the 
1 975 order should not be binding on them 
because the district court did not comply 
with Fed. R. Civ. Pro. 23(e) by giving 
notice to members of the class prior to 
dismissal or compromise of the class 
action. We have found that the 1975 
order is not a voluntary dismissal 
or compromise but instead represents an 
adjudication on the merits. Thus, such an 
order is not subject to 23(e)'s notice

36A -



r e q u i r e m e n t s S e e  S h e l t o n  v .  P a r g o ,

Inc. , 582 F .2d 1 298, 1300 n. 1 (4th Cir.
1 978 ); Hutchinson v. Fidelity____Inv.
Assoc . , 106 F.2d 431 (4th Cir. 1939);
Wright & Miller, Federal Practice and 
Procedure, 1972, § 1797, p. 235-236.

Once a court decides an issue of law
or fact necessary to its judgment, that 
decision can be binding upon a party to it 
if the party was given a "full and
fair opportunity to litigate 
in the earlier case." Allen
449 U.S. 90, 94-5 ( 1 980) .
has summarized its thoughts 
v. United States, 440 U.S.

[the] issue 
v. McCurry, 
The Court 
in Montana 
147, 153-4

(1979);
A fundamental precept of common- 

law adjudication, embodied in the 
related doctrines of collateral 
estoppel and res judicata, is that a 
'right, question or fact distinctly 
put in issue and directly determined 
by a court of competent jurisdic­
tion ... cannot be disputed in a 
subsequent suit between the same 
parties or their privies....' South­

37A



Co. v . Unitedern Pacific R.
States, 168 U.S. 1, 48-49 (1897).
Under res judicata, a final judgment 
on the merits bars further claims by 
parties or their privies based on the 
same cause of action. (Citations 
omitted) Under collateral estoppel, 
once an issue is actually and nec­
essarily determined by a court of 
competent jurisdiction, that determi­
nation is conclusive in subsequent 
suits based on a different cause of 
action involving a party to the 
prior litigation. (Citation omit­
ted) Application of both doctrines 
is central to the purpose for which 
civil courts have been established, 
the conclusive resolution of dis­
putes within the jurisdictions. 
(Citation omitted) To preclude
parties from contesting matters that 
they have had a full and fair 
opportunity to litigate protects 
their adversaries from the expense 
and vexation attending multiple 
lawsuits, conserves judicial re­
sources, and fosters reliance on 
judicial action by minimizing the 
possibility of inconsistent deci­
sions. (Footnote omitted)

The principles of collateral estoppel or 
issue preclusion are applicable to 
school desegregation cases. Los Angeles 
Branch NAACP v. L.A. Unified School Dist., 
750 F.2d 731 (9th Cir. 1985); Bronson v.

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B o a r d  o f  E d u c a t i o n  o f  C i t y  S c h o o l  D i s t . ,

687 F.2d 836 (6th Cir. 1982); 525 F.2d 344 
(6th Cir. 1975).

Plaintiffs' final claim on this point 
is that they have not had a full and fair 
opportunity to litigate the unitary find­
ing. The Beckett plaintiff class repre­
sented black school students in the 
Norfolk school system. It litigated for 
almost twenty years. Norfolk's black 
school children are the plaintiffs here. 
While the actual makeup of class members 
may be different because of the passage 
of time (as it is bound to have been at 
the beginning and ending of Beckett), we 
believe that the two classes are in suf­
ficient privity for the principles of col­
lateral estoppel or issue preclusion to 
apply. Bell v. Board of Educ. Akron 
Public Schools, 683 F.2d 963 (6th 
Cir. 1982); Bronson, supra, 525 F.2d at

39A



349. The Beckett plaintiffs had a full 
and fair opportunity to contest the dis­
trict court's 1975 unitary finding. 
These plaintiffs cannot now relitigate 
that issue here. Los Angeles Branch 
NAACP, supra; Bronson, supra: see Azalea 
Drive-In Theatre, Inc, v. Hanft, 540 F.2d 
713 (4th Cir. 1976), cert. den. 430 U.S. 

941 (1977).
Mindful of the Court's admonition in 

Montana , p. 163, that "[un]reflective in­
vocation of collateral estoppel against 
parties with an ongoing interest in con­
stitutional issues could freeze doctrine 
in areas of the law when responsive­
ness to changing patterns of conduct or 
social mores is critical," we neverthe­
less conclude that the district court did 
not err in finding that its 1975 order was 
binding upon these parties.

40A



The question of whether the Norfolk 
school system was unitary at the time of 
the trial was explored at trial, perhaps 
with the intent to show that the school 
system was not unitary in 1 983 and 1984 
although it might have been in 1975.

m  Green v. County School Board, 391 
U.S. 430 (1968), the Court for the first 
time spoke of the goal of school desegre­
gation as the transition of a dual school 
system into a unitary one. The Green 
plaintiffs brought suit challenging the
freedom of choice plan initiated in New

12
Kent County, Virginia. New Kent County 
is a rural county in eastern Virginia, its 
school system consisted of two schools, a 
white school serving grades 1-12 and a

T2 The freedom of choice plan allowed the 
student to choose the public school he 
wished to attend, with minor qualifica­
tions not pertinent here.

V I .  N o r f o l k  a s  a U n i t a r y  S c h o o l  S y s t e m

41A



black school serving the same grades. 
School segregation had existed, of course, 
in all parts of Virginia prior to Brown I, 
under both constitutional and statutory 
command. When the Green complaint was 
filed, pupil assignment in the county was 
governed by a pupil placement board 
created by state law. Green at 432-3. 
Students were generally reassigned each 
school year to the school they had attend­
ed the prior year unless they sought re­
assignment by the placement board. After 
the Green suit was filed, the school board 
adopted a freedom of choice plan to dese­
gregate their two schools.

In finding the freedom of choice plan 
constitutionally inadequate as a remedy 
under the facts of that case, the Court 
first concluded that the county had esta­
blished and operated a school system under 
state law like that forbidden by Brown - a

42A



" d u a l  s y s t e m ,  p a r t  ' w h i t e '  and  p a r t

'Negro'." Green, supra, 391 U.S. at 435. 
Additionally, the county had delayed the 
dismantling of that dual system, and the 
freedom of choice plan had induced only 
1 5% of Negro students to attend the for­
merly all white school. No white student 
had attended the all Negro school. Within 
that factual setting, the freedom of 
choice plan did not provide any meaningful 
assurance that the dual system would be 
promptly dismantled. The facts showed 
otherwise because, after three years of 
operation under the freedom of choice 
plan, 85% of the county's black students 
still attended all black schools.

Under the mandate of Brown "[s]chool 
boards . . . then operating state-compelled 
dual systems were ... clearly charged with 
the affirmative duty to take whatever 
steps might be necessary to convert to a

43A



unitary system in which racial discrimi­
nation would be eliminated root and 
branch." Green, supra, 391 U.S. at 437-8. 
All aspects of public education must be 
freed from the vestiges of state sanc­
tioned racial segregation before a school 
system becomes unitary. Integration must 
occur in the system's faculty, staff, 
transportation practices, extracurricular 
activities, facilities and pupil assign­
ment. Green, supra, 391 U.S. at 435.

As we have previously stated, the 
mere implementation of a desegregation 
plan does not convert a dual system into a 
unitary one. United States v. Texas Ed. 
Agency, supra, 647 F.2d at 508.

The district court here found that 
its 1975 finding that the Norfolk school 
system had achieved a unitary status was 
a correct one and that the school system 
retained its unitary status until the pre­

44A



sent. It found that "the Norfolk School 
Board is an integrated body, the Norfolk 
school administration is racially balanc­
ed, the racial composition of the faculty 
and staff is mixed, and the overwhelming 
majority of school children, of both 
races, on the elementary, junior and 
senior high school levels, attend schools 
whose student bodies are racially mixed. 
In addition, there has been no contention, 
nor could there be one, that the extra­
curricular activities, transportation net­
work and school facilities are operated in 
a dual fashion. Finally ... there has 
been no challenge to any of the Board's 
actions in the Beckett litigation since 
some time before the 1 975 order was 
entered."

Our review of the district court's 
findings that the school system is unitary 
is under Fed. R. Civ. Pro. 52(a)'s re­

45A



quirement that findings of fact be set 
aside only if clearly erroneous. Vaughns 
v. Board of Education of Prince George's 
Co., 758 P.2d 983 (4th Cir. 1985). Factual 
findings by a district court in school 
desegregation cases, especially where 
the presiding judicial officer has lived 
with the case for many years, are 
entitled to great deference on review. 
Vaughns, supra, at 990; see Goldsboro 
City Board of Education v. Wayne Co. 
Board of Education, 745 F.2d 324, 327 
(4th Cir. 1984); Columbus Board of Educa­
tion v. Penick, 443 U.S. 449, 457 n. 6 
( 1 979) .

Under the clearly erroneous standard, 
a reviewing court may not reverse the 
findings of the trial court simply because 
it would have decided the case different­
ly. "If the district court's account of 
the evidence is plausible in light of the

46A -



record viewed in its entirety, the court 
of appeals may not reverse it even though 
convinced that had it been sitting as the 
trier of fact, it would have weighed the 
evidence differently. Where there are two 
permissible views of the evidence, the 
factfinder's choice between them cannot be 
clearly erroneous." Anderson v. City of
Bessemer City, N.C., ___ U.S. ____, 53
U.S.L.W. 4314, 4317 (1985). This rule 
applies even when the district court's 
findings rest upon physical or documentary 
evidence. We are cautioned that our 
appellate role is violated if we seek to 
decide the matter anew.

We cannot say that the trial court's 
finding that the school system is unitary 
is clearly erroneous. The evidence in the 
record supports the court's conclusion 
that the faculty and staff are fully inte­
grated. Three of the seven board members

47A



are black. The superintendent and two of 
the three regional assistant superinten­
dents are black. No serious question is 
raised that the faculty and staff are 
still segregated, and we agree that no 
such segregation exists.

The district court found that the 
overwhelming majority of Norfolk's stu­
dents attend racially mixed schools. The 
statistics in the record bear out that 
conclusion. As a general rule, the school 
board has been able to keep its elementary
schools within the 70%-30% guideline

1 3
adopted in the early 1970's. We agree 
with the district court's finding that 
Norfolk's students are attending integrat­
ed schools. No one argues that the school

 ̂ Following the district court's order, 
the school board defined racially iden­
tifiable schools as those with fewer than 
30% or more than 70% minority or non­
minority students.

48A -



facilities, extracurricular activities or 
transportation system are operated in a 
dual manner. We note again that the bus­
ing of students continues in grades 7-12.

The district court reviewed all six 
factors set out in Green and found that 
Norfolk's school system had remained 
unitary since 1975. There is substan­
tial evidence in the record to sup­
port such a finding. We therefore affirm 
its holding.

VII. Effect of the Unitary Finding
This brings us to the principal issue 

in this appeal: What effect does the 
finding that Norfolk's school system is 
unitary have upon the prosecution of a 
constitutional challenge to the proposed 
neighborhood school assignment plan? 
What procedure governs a challenge to a 
student assignment plan for a school dis­
trict that historically practiced de jure

49A



segregation but had obtained a valid judi­
cial order that it has ridded itself of 
all vestiges of that racial discrimina­
tion? A related inquiry must be to what 
extent and for how long must a previously 
discriminating school system submit to 
judicial control. Does judicial involve­
ment end when unitary status is achieved 
or does judicial involvement continue in
perpetuity to prevent resegregation ab-

14
sent a showing of intent to discriminate?

The district court concluded that 
its finding that the Norfolk school 
system is unitary had the effect of shift-

We decide the case under the de facto/de 
jur6 distinction which we think is the 
law. See, e.g., Keyes v. School Dist. No. 
J_r 413 U.S. 189 rf973) . One respected 
commentator, however, has predicted the 
distinction could not survive. See 
Bickel, Untangling the Busing Snarl, The 
New Republic, Sept. 23, 1972. The sepa^ 
rate op in ions of Justices Douglas and 
Powell in Keyes take the position that it 
should not.

50A



ing the burden of proof from the defendant 
school board to the plaintiffs. It held 
that plaintiffs had the burden of proving 
that the school board implemented the con­
tested pupil assignment plan with an in­
tent to discriminate on the basis of race.

Plaintiffs disagree with the allo­
cation of the burden of proof by the 
district court. They claim that the 
burden of proof remains on the school 
board to prove that implementation of the 
new assignment plan will not perpetuate 
the vestiges of the past de jure dual sys­
tem. While we find no case which has 
addressed the issue under a fact situation 
the same as present here, we agree with 
the district court's allocation of 
the burden of proof.

Since 1954, de jure racial segregation 
in public schools has been unlawful as in 
violation of the Fourteenth Amendment to

51A



the Constitution. Brown, supra. Such
discriminating schools were placed under 
an "affirmative duty to 'effectuate a 
transition to a racially non-discrimina- 
tory school system'." Keyes v. School 
Dist. No. 1, Denver, Col., 413 U.S.189, 
200 (1973), quoting Brown v. Board of Edu- 
cat ion, 349 U.S. 2 94, 301 (1955) (Brown
11) • State sanctioned dual school systems 
must take whatever steps are necessary to 
completely eliminate racial discrimina- 
tion. Dayton Board of Ed. v. Brinkman, 443 
U.S. 526, 537-8 (1979); (Dayton II); Col­
umbus Bd. of Ed. y. Penick, 443 U.S. 449, 
458-59 (1979); Swann, supra, 402 U.S. at 
15; Gr.een , supra, 391 US. at 437-8 . Each 
instance of a refusal or failure to per­
form its duty to desegregate constitutes a 
constitutional violation by the school 
board. Columbus Bd. of Ed., supra, at 459, 
citing other cases.

52A



Once a plaintiff shows that segrega­
tion exists in a school system that was 
authorized or required by state law at the 
time Brown was decided, it follows as 
a matter of course that the school autho­
rities have a duty to eliminate such 
segregation. Keyes, supra, 413 U.S. at 
200-3. The board cannot satisfy its duty 
by merely abandoning its prior discrimina­
tory purpose. Nor can it take any action 
that would impede the process of con­
verting to a unitary system. Dayton II, 
supra, 443 U.S. at 538. The board is under 
a heavy burden of showing that any action 
it takes that continues the effects of the 
illegal dual system serves a legitimate 
end. Id. The burden remains upon the 
school board to dismantle the segregated 
system and convert to a "unitary system in

53A



which racial discrimination [is] eliminat­
ed root and branch." Green, supra, 391 
U.S. at 438.

Rescission of a voluntary desegrega­
tion plan itself may be found to be an act 
of segregation for a school board which 
has been found to have practiced de jure 
segregation and has not completed the 
transition from a dual to a unitary school 
system. NAACP v. Lansing Bd. of Ed., 559 
F.2d 1042 (6th Cir.), cert. den. 434 U.S. 
997 (1977). In a school system that 
has not become unitary, the school board 
is not barred from ever changing a dese­
gregation plan. In such a situation, 
however, the board must show that the pro­
posed changes are consistent with its con­
tinuing affirmative duty to eliminate 
discrimination. Clark v. Board of Educ. 
of Little Rock School Dist., 705 F.2d 265 
(8th Cir. 1983) .

54A



The continued existence of a small
number of one race schools within such a 
school district does not establish in and 
of itself a constitutional violation. 
Swann, supra, 402 U.S. at 26: Clark, 
supra, 705 F.2d at 272. The burden is 
upon the school board, however, to show 
that the existence of such schools are 
genuinely nond iscriminatory and not ves­
tiges of past segregation. Swann, supra, 
402 U.S. at 26; Davis v. E. Baton Rouge 
Parish School Bd ■ , 721 F.2d 1425, 1434 
(5th Cir. 1983).

A district court is under a duty to 
enter a desegregation order that will go 
as far as possible toward eliminating se­
gregation. Green, supra, 391 U.S. at 
438 n. 4. The court's equitable powers in 
such decrees are broad indeed, but they 
are not plenary. They are limited to 
those cases in which a constitutional vio­

55A



lation has occurred, either where a de 
jure segregated system exists, where 
intent to discriminate is presumed, or 
where a de facto segregated system 
exists and intent to discriminate has 
been proven. In situations in which a 
school board has defaulted on its obliga­
tions, the court can use its broad powers 
to fashion a remedy in order to assure a 
unitary system. Swann, supra, 402 U.S. at 

16.
Once such a remedy is fashioned, the 

district court retains jurisdiction until 
it is clear that the unlawful segregation 
has been completely eliminated. But 
once the goal of a unitary school 
system is achieved, the district court's 
role ends. See, generally, Pasadena City 
Bd. of Ed. v. Spangler, 427 U.S. 424 
(1976). Foreseeing such a time, the Swann 
Court stated:

56A -



At some point these school auth­
orities and others like them should 
have achieved full compliance with 
this Court's decision in Brown I. 
The systems would then be 'unitary1 
in the sense required by our deci­
sions in Green and Alexander.

It does not follow that the 
communities served by such systems 
will remain demographically stable, 
for in a growing, mobile society, few 
will do so. y Neither school authori­
ties nor district courts are con­
stitutionally required to make year- 
by-year adjustments of the racial 
composition of student bodies once 
the affirmative duty to desegregate 
has been accomplished and racial 
discrimination through official ac­
tion is eliminated from the system. 
This does not mean that federal 
courts are without power to deal with 
future problems; but in the absence 
of a showing that either the school 
authorities or some other agency 
of the State has deliberately at­
tempted to fix or alter demographic 
patterns to affect the racial compo­
sition of the schools, further 
intervention by a district court 
should not be necessary.

Swann, supra, 402 U.S. at 31-32.

57A



In Pasadena. supra, 427 U.S. 424, the
Court again recognized that the right of 
the federal courts must end when the 
objective sought has been achieved. A 
court ordered desegregation plan was 
adopted in 1970 which provided that stu­
dents must be assigned in such a manner so 
that no school in the district would be 
comprised of "a majority of any minority 
students." Id. at 428. The district 
court retained jurisdiction in the 
case. Neither party appealed, and the 
plan became effective that same calendar 
year.

Four years later, the school board 
returned to court, seeking, among other 
things, relief from the no "majority of 
any minority students" provision in the 
form of a lifting of the court's injunc­
tion. The district court refused to 
grant the school board relief from its

58A



order primarily because it perceived that 
the school board had not properly complied 
with its order after the first year it was 
in force. The school board had adjusted 
attendance zones in 1970 to comply with 
the order but had not readjusted each 
year thereafter. As a result, schools 
slipped out of literal compliance with the 
not to exceed 50% mandate by the next 
school year. By the time of the district 
court hearing, five of the system's 32 
schools no longer met the less than 50% 
rule. Id. at 431. The district court 
made clear that it expected the school 
board to readjust student attendance 
figures yearly to comply with the court's 
ruling. Id. at 433. The court of appeals 
found that the district court had not 
abused its discretion in imposing such 
an annual requirement.

59A -



The Supreme Court disagreed. Initial­
ly, it found that the district court was 
impermissibly requiring a "particular de­
gree of racial balance or mixing" which 
Swann expressly condemned. Id. at 434. 
While such a racial balance can be a 
starting point on the road to complete 
desegregation, it reasoned, it can never 
be an inflexible requirement.

Next, the Court rejected the district 
court's authority to impose such a re­
quirement absent a showing that the de­
fendant school board was responsible for 
the intervening changes in the racial com­
position of the schools. The Court relied 
approvingly on the cautionary language of 
Swann that "'it must be recognized that 
there are limits' beyond which a court may 
not go in seeking to dismantle a dual 
school system. [Citation omitted] These 
limits are in part tied to the necessity

60A



of establishing that school authorities 

have in some manner caused unconstitu­
tional segregation, for ' [a]bsent a con­
stitutional violation there would be no 
basis for judicially ordering assignment 
of students on a racial basis'." Id. at 

434.
The district court had found a con­

stitutional violation in 1970 and thus had 
the initial authority to cause the re­
assignment of students on the basis 
of race. But once Pasadena adopted a 
racially neutral system, no further con­
stitutional violation could be found 
unless by acts attributable to the school 
board. At that point, the district court 
exceeded its authority by requiring the 
readjustment of attendance zones absent 
such a constitutional violation. Because 
the school board was not responsible for 
the demographic shifts in the population

61A



which caused the schools to slip out of 
compliance, it was under no duty to ad­
just school attendance figures to reflect 
those changes. The Court concluded that 
"having once implemented a racially neu­
tral attendance pattern in order to 
remedy the perceived constitutional viola­
tions on the part of the defendants, the 
District Court had fully performed its 
function of providing the appropriate 
remedy for previous racially discrimina­
tory attendance zones." Id. at 436-7.

We have only recently examined both 
Pasadena and Swann and concluded that a 
district court's power to effect addi­
tional remedial orders is limited. "Once 
a school system has achieved unitary sta­
tus, a court may not order further relief 
to counteract resegregation that does not 
result from the school system's inten­
tionally discriminatory acts." Vaughns,

62A



s u p r a , a t 9 8 8 . O t h e r  c o u r t s  h a v e

reached the same conclusion. Davis, 
supra, 721 F.2d at 1435 ("Changes in 
neighborhood ethnicity taking place 
after school officials have transformed 
their system into a unitary one need not 
be remedied, of course, for school offi­
cials are under no duty to adjust for the 
purely private acts of those who chose to 
vote with their feet."); Ross v . Houston 
Independent School Dist., 699 F.2d 218, 
225 (5th Cir. 1983) ("When state offi­
cials have not only made good faith ef­
forts to eliminate the vestiges of segre-

g at ion, but have actually achieved a

school system clean of every residue of

past official discrimination, immutable 
geographic factors and post-demographic 
changes that prevent the homogenation of 
all student bodies do not bar judicial 
recognition that the school system is

63A



unitary.") But see United States v. 
Hendry Co. Sch. Dist., 504 F.2d 550, 554 
(5th Cir. 1974) ("We cannot tolerate 
resegregation of a former dual school 
system, and the school board of such a 
system must demonstrate that the new con­
struction will not tend to promote such a 
relapse." The decision was prior to Pasa­

dena , however.)
We agree with the district court that 

Swann and the cases that follow, both in 
the Supreme Court and in the courts of 
appeals, require a plaintiff to prove dis­
criminatory intent on the part of the 
school board of a unitary school system.

We think the rationale of these cases 
is applicable here. We recognize some 
factual differences between those cases, 
where factors outside the school board's 
control such as demographic changes cause 
the racial composition of schools to

64A



change, and the case we consider today, 
where an act of the school board in chang­
ing a part of a desegregation plan results 
in the shifting racial composition of the 
schools. We do not take lightly this 
factual distinction but conclude that 
the plaintiffs must be required to carry 
the burden of proving discriminatory 

intent.
While we find no case decided in the 

same situation as that before us, the 
Ninth Circuit has alluded to markedly 
similar facts in holding that the district 
court must relinquish jurisdiction over 
the Pasadena case following remand. 
Spangler v. Pasadena, 611 F.2d 1239 (9th 
Cir. 1979). Following the Supreme Court 
decision in Pasadena, the school board 
sought to have the district court dissolve 
the injunction entered in the case and

65A



relinquish jurisdiction. The district 
court refused to end its oversight over 

the Pasadena school system.
The court of appeals concluded that 

the district court's refusal was based 
upon a belief that "unless it retained 
jurisdiction, the Board might at some 
future date, by action or inaction, cause 
or suffer to occur some degree of avoid­
able, ' resegregation.'" Spangler, supra, 

16
at 1240. In reversing that decision, the 
Ninth Circuit relied upon the three fac­
tors set out in Millikin v. Bradley, 433 
U.S. 267 , 280-1 ( 1 977) (Millikin II) , in
ascertaining the propriety of the remedial

15

The district court had previously refused 
such a request, which refusal was affirmed 
on appeal. Spangler, supra, 519 F.2d 430, 
rev'd on otfier grounds, 427 U.S. 424 .

1 6 Judges Goodwin and Kennedy delivered 
separate opinions. Judge Anderson con­
curred in the reasoning and result of 
both, thus both are opinions of the 
court.

66A -



measures to be used following a finding of 
de jure school segregation. First, the 
court must consider the nature and scope 
of the constitutional violation; second, 
the remedial objective sought is to be the 
restoration of the victims of discrimina­
tion to the position they would have 
occupied absent the constitutional viola­
tion: and, third, consideration must be 
given to the interests of allowing state 
and local authorities to manage their own 
affairs. Finding all three factors were 
met following nine years of court supervi­
sion, the Ninth Circuit concluded that the 
time had come to end court intervention in 
Pasadena's school system. 611 F.2d at 
1240-1241 (Judge Goodwin).

Judge Kennedy's opinion set out in 
more detail the basis for the district 
court's concerns over resegregation. The 
district court feared that once jurisdic­

67A



tion terminated, the school board planned 
to return to a neighborhood school plan as 
had existed before the 1970 court ordered 
desegregation plan. If the neighborhood 
plan were readopted, the racial composi­
tion of Pasadena's schools would revert to 
approximately what it was before the de­
segregation plan. Spangler, supra, at 
1 243 . School board members had made it 
known publicly that they endorsed return 
to a neighborhood school plan. It was 
upon these facts that the district court 
based its finding of continuing inten­
tional discrimination by the school board. 
Spangler, supra, at 1244.

The court found (Judge Kennedy) that 
the district court had committed errors of 
law in reaching that conclusion. Initial­
ly, the district court appeared to be 
requiring a certain racial balance to be 
maintained in Pasadena's schools, a con­

68A



cept disapproved by the Supreme Court. It 
said "[t]he Supreme Court has emphasized 
that when a large percentage of minority 
students in a neighborhood school results 
from housing patterns for which school 
authorities are not responsible, the 
school board may not be charged with un­
constitutional discrimination if a racial­
ly neutral assignment method is adopt­
ed ... . From the standpoint of racial 
balance in pupil assignments, com­
pliance with the [court's desegregation 
plan] for nine years is sufficient in 
this case, given the nature and degree of 
the initial violation, to cure the ef­
fects of previous improper assignment 
policies." Spangler, supra, at 1244.

It rejected the district court's 
justification that continuing jurisdiction 
was required to prevent readoption of a 
neighborhood school plan with its concomi­

69A



tant change in racial balance, and 
found that adoption of a neighborhood plan 
was not necessarily synonymous with an 
intent to discriminate. "Adopting a stu­
dent assignment method different from 
the [court's plan] may have the fore­
seeable effect of increasing racial 
imbalance in the Pasadena schools. 
This fact is relevant in determining 
whether a plan was adopted as a result of 
invidious intent, but other factors must 
also be examined.... The fact that the 
Board has explored assignment alterna­
tives which may increase racial im­
balance provides little support for 
the conclusion ... that the proposal, if 
adopted, would result from constitutional­
ly infirm motives." Spangler, supra, at 
1245.

70A



Both opinions agreed that if a new 
student assignment plan were adopted in 
Pasadena with the intent to discriminate, 
a new suit could be brought to challenge 
such a plan. In the absence of such in­
tentional acts, authority to run the 
school system should be returned to the 
school board. Spangler, 611 F.2d at 1241, 
1242, 1247.

The 1975 order of the district 
court in Norfolk returned control of the 
city's schools to the school board by its 
finding that the school system was uni­
tary. Nothing in the record about events 
between then and the proposal of the 
pupil assignment plan here in question has 
changed that situation. The Norfolk board 
recently took the very action the court 
considered to be contemplated by the 
Pasadena school board. While the Ninth 
Circuit had only the question of termina­

71A



tion of district court jurisdiction before 
it, that court made clear that following 
such relinquishment, a plaintiff must 
prove that the school board acted with an 
intent to discriminate in adopting a new 
student assignment plan. We find that 
reasoning persuasive and consistent with 
our reasoning in Vaughns. We hold that 
the burden of proving discriminatory in­
tent attaches to a plaintiff once a de 
jure segregated school system has been 
found to be unitary.

Once a constitutional violation has 
been remedied, any further judicial ac­
tion regarding student assignments without 
a new showing of discriminatory intent 
would amount to the setting of racial quo­
tas, which have been consistently condemn-
ed by the Court in the context of
school integration absent a need to
remedy an unlawful condition. Pasa-

72A



d e n a , s u p r a , 427 U . S . a t  4 3 3 - 4 ;  M i l -

likin v. Bradley, 418 U. S. 71 7, 740-41 
( 1 974 ) (Mil1ikin I) ; Swann, supra, 402 
U.S. at 24-5. Racial quotas are to be used 
as a starting point in remedying de jure 
segregation but not as an ultimate goal to 
be continued in perpetuity. Indeed, since 
almost every action of a school board 
with respect to pupil assignments in a 
mixed school system necessarily affects 
racial balance, if we were to require the 
Norfolk school board to justify every ac­
tion it takes that affects the racial 
balance of its schools, we would make a 
finding that the school system is unitary 
virtually meaningless in that context. 
The 1975 unitary finding marks the end 
of de jure segregation in the system. 
Following such a finding, control of the 
system must be allowed to return to local 
officials. No one seriously disputes that

73A



public education has traditionally been 
a local concern. Generally, Millikin I, 
supra, at 741-2. And the power of the 
federal courts is not plenary, Swann, p. 
16; rather, it depends upon a constitu­
tional violation for its exercise. Pasa­
dena , p. 434.

We reject plaintiffs' argument that 
the Norfolk school board must continue to 
justify all of its actions because of the 
history of segregation. While that history 
of discrimination cannot and should not be 
ignored, it "cannot in the manner of 
original sin, condemn governmental action 
that is not itself unlawful." City of 
Mobile v. Bolden, 446 U.S. 55, 74 (1980) 
(plurality opinion of the Court by Jus­
tice Stewart). If the rule were otherwise, 
virtually every action of the school board 
with respect to any of its various af­
fairs would be suspect. And, to repeat, we

74A



keep in mind that while the history 
of discrimination is not dispositive, it 
is relevant to a court's determination of 
the school board's intent.

Plaintiffs' reliance on cases such as 
Columbus Board of Education, supra, 443 
U.S. 449; Dayton Board of Education v. 
Brinkman, 443 U.S. 526 (1979) (Dayton 
II ) ; Keyes, supra, 413 U.S. 189; Swann, 
supra, 402 U.S.; and Green, supra, 391 
U.S. 430, for placing the burden of 
proof on the school board is misplaced 
because all of those cases involved state 
sanctioned discriminating school dis­
tricts that had not dismantled their 
dual systems. None had reached the goal 
of a unitary system as Norfolk has done.

VIII. Plaintiffs' Proof
We next consider whether or not 

plaintiffs met their burden of proof. 
Plaintiffs raise errors both of law and

75A



fact in the district court's decision
making process. Initially, they claim the 
district court erred in its approval of 
the school board's consideration of white 
flight as one reason for abandonment of 
busing of elementary school children. We 
agree with plaintiffs that white flight 
cannot be used as a justification for 
failing or refusing to dismantle a dual 
school system. United States v. Scotland 
Neck Board of Education, supra, 407 U.S. 
at 491; Monroe v. Board of Commissioners, 
391 U.S. 450, 459 (1972). White 
flight cannot be used as an excuse to re­
sist or evade a present duty to desegre­
gate. But the Norfolk .school board is 
not operating a dual school system with a 
present duty to desegregate.

Consideration can be given to the 
phenomenon of white flight under certain 
circumstances. As the Sixth Circuit said

76A -



in a much quoted opinion "[i]t does 
not follow that a board must ignore
the probability of white flight in
attempting to formulate a voluntary plan 
which would improve the racial balance in 
the schools without at the same time 
losing the support and acceptance of 
the public.... [T]here is a valid dis­
tinction between using the defense of 
white flight as a smokescreen to avoid 
integration and realistically considering 
and dealing with the practical problems 
involved in making voluntary efforts to 
achieve integration." Higgins, supra, 508 
F .2d at 794 (emphasis in the original). 
The circuits have consistently followed 
this language and allowed consideration of 
white flight in the formulation and 
adoption of integration plans. Lee v . 
Anniston City School System, 737 F.2d 952, 
957 n. 3 (11th Cir. 1984); Liddell v.

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State of Mo., 731 F.2d 1294, 1314 (8th
Cir. 1 984), cert. den. 105 S.Ct. 82; 
Johnson v. Bd. of Education of City of 
Chicago, 604 F.2d 504, 516-517 (7th Cir. 
1979), vacated on other grounds, 449 U.S. 
915 (1980); Parents Assn. of Andrew
Jackson High School v. Ambach, 598 F.2d 
705, 719-20 (2d Cir. 1979); Stout v.
Jefferson Co. Bd. of Ed., 537 F.2d 800, 
802 (5th Cir. 1976).

We are of opinion the district 
court correctly concluded that the 
school board could legitimately consider 
the presence of white flight in the pur­
suit of a voluntary plan to stabilize 
school integration in Norfolk. We reject 
plaintiffs' argument that under Regents of 
the University of California v. Bakke, 438 
U.S. 265 (1978), the neighborhood school 
plan is suspect because its assignments 
are based upon race. School assign­

78A



ments are based upon the residence of the 
child, not the race of the child. Plain­
tiffs present no evidence to support a 
finding that such a residential classifi­
cation is a pretext for discrimination 
based on race. The board assigned stu­
dents to schools under the new plan 
solely on the basis of their residence. 
The only consideration of race involved 
was an effort on the board's part to 
gerrymander the school assignment lines to 
result in the maximum amount of integra­
tion possible.

The concept of a neighborhood school 
system in and of itself is not violative 
of the Constitution. E.g. Crawford v. 
Los Angeles Board of Education, 458 
U.S. 527, 537 n. 15; Swann, supra, 402 
U.S. at 28; Thompson v. Sch. Bd. of City 
of Newport News, Va., 465 F.2d 83 (4th 
Cir. 1972). Congress has recognized that

79A



absent discrimination the neighborhood 
school is the appropriate basis for 

school assignments. 20 U.S.C. § 1701. 
Without more, we find nothing constitu­
tionally suspect in the board's pre­
ference for a neighborhood school plan.

Whether white flight was present 
in Norfolk during the relevant times is 
of course a question of fact. The dis­
trict court concluded that the evidence 
revealed a significant amount of white 
flight from Norfolk's public schools. it 
found that the system lost 6000-8000 white 
students because of busing. it further 
found that because of this exodus of white 
students, the school system was becoming 
more and more black and faced the real 
danger of resegregation. As set forth in 
Part VI, supra, our review of such factual 
findings is limited by the clearly erro­
neous rule. We conclude that there are

80A -



sufficient facts in the record to support
the district court's finding that white
students are leaving the public schools
because of busing. The school attendance
figures show that white students have
gone from a 60% majority to a 42% minority
during the decade of the 1970's. By 1982,
whites comprised only 40.87% of the total

17
school enrollment. During this same time

An agreed trial exhibit reveals the 
following race distributions for public 
school students, elementary and secon­
dary :

Percent
White Black Total iWhite**

1967-68 33,838 22,546 56,384 60.00
1968-69 33,103 23,023 56,126 59.00
1969-70 32,586. 24,244 56,830 57.00
1970-71 30,246 24,425 54,671 55.32
1971-72 25,858 23,930 49,788 51.94
1972-73 24,224 23,578 47,802 50.68
1973-74 24,337 24,714 49,051 49.62
1974-75 23,536 24,451 47,987 49.05
1975-76 22,957 24,420 47,377 48.46
1976-77 22,080 23,976 46,056 47.94
1977-78 20,412 23,282 43,694 46.72
1978-79 18,913 22,686 41,599 45.47
1979-80 16,373 21,395 37,768 43.35
1980-81 15,629 21 ,014 36,643 42.65
1981-82 14,435 20,885 35,320 40.87

81A



frame, white residents continued to be a 
majority of the city, falling from 70% to 
60%. Clearly, white students are leaving 
Norfolk's public schools at a much higher 
rate than they are leaving the city it­
self.

In addition to students who attend 
private schools, Norfolk's public schools 
were losing those students whose families 
would otherwise move into the city but 
who chose to move elsewhere to avoid bus­
ing. In 1981, for example, Virginia Beach 
(273,600) and adjoining Norfolk (273,000) 
were almost the same size but the school 
system in Virginia Beach (54,776) was more 
than half again larger than that of 
Norfolk (35,816). This supports the dis- **

** "White" - includes approximately 3% 
other minority races.

82A



trict court's finding that a dispropor­
tionate number of white families are 
choosing to move to Virginia Beach.

Dr. Gene Carter, superintendent of 
the Norfolk school system, testified 
that students had left the city's 
public schools because of the mandatory 
busing plan. Former superintendent, Dr. 
Albert Ayars, an opponent of the neighbor­
hood plan, nevertheless recognized that 
some students were leaving the system 
because of busing.

Plaintiffs argue that the district 
court's findings are clearly erroneous 
because their school enrollment figures 
show that white enrollment in the 
public schools had stabilized during
the early 1980's. These figures set out

1 8
below reveal that black students com-

•| g ““ ““
Summary seventh day enrollment 
Norfolk Public Schools 

1969-1983
83A



prised 42.4% of the student population in 
1969. That percentage consistently in­
creased until 1981 when blacks represented 
59.2% of the students. In 1982, the black 
percentage dropped to 58.8% and to 
58% the following year. Plaintiffs 
rely upon this slight increase in 
white student enrollment over two years

W B T %B
1 969 32603 24000 56603 42.4
1970 30229 24418 54647 44.7
1971 25836 23921 49757 48.1
1 972 24196 23568 47764 49.3
1 973 24304 24699 49003 50.4
1974 23504 24442 47946 51 .0
1 975 22934 2441 1 47345 51.6
1976 22036 23949 45985 52.1
1977 20365 23251 43616 53.3
1 978 18873 22658 41531 54.6
1 979 1 6336 21361 37697 56.7
1980 1 5600 20995 36595 57.4
1 981 1 4427 20892 35319 59.2
1982* 14521 20735 35256 58.8
1 983* 14611 20191 34802 58.0
* 1982 
elude

and 1983 
"others."

figures for whites in-

84A



to show that white flight, if ever pre­
sent, had ended. There is evidence in 
the record to show that this overall 
increase in enrollment since 1980 is 
an aberration due to housing patterns of 
the Navy during this time. Even absent 
such an explanation, plaintiffs' enroll­
ment figure differences are not sufficient 
for us to find that the district court was 
clearly erroneous. "Where there are two 
permissible views of the evidence, the 
factfinder's choice between them cannot 
be clearly erroneous." Anderson, supra, 
53 U.S.L.W. at 4317.

It is also claimed that the board's 
reliance upon a decrease in parental in­
volvement under the busing plan is 
merely a pretext for discriminating on 
the basis of race. As we have pre­
viously noted, one of the board's con­
cerns in amending its busing plan was

85A



the dramatic drop in parental involvement. 
No one disputes that such involvement is 
critical to the well-being of a school 
system. Former Superintendent Ayars testi­
fied that according to a Gallup poll 
parental involvement was characterized 
as the "most significant factor in the 
education of a child." Dr. Ayars himself 
considered parental involvement "vital" to 
the health of a school system.

The district court found that Nor­
folk's public schools were facing a crisis 
because of the sharp decline in pa­
rental involvement. PTA enrollment had 
dropped from 15,000-20,000 to 3500. Dr. 
Ayars testified that busing "virtually 
destroyed" Norfolk's PTA. Efforts to 
increase parental involvement had been 
somewhat successful but much more needed 
to be done to encourage parental in­
terest .

86A



Superintendent Carter testified that 
many parents had approached him regarding 
their inability to participate in their 
children's education under the busing 
plan. School board members also expressed 
concern over the lack of parental in­
volvement in the public schools. The dis­
trict court found that Norfolk's public 
schools faced a crisis because of the 
sharp decline in parental involvement 
during the years of busing and that the 
new plan offered a reasonable alternative 
to counter such a decline. We agree. The 
Norfolk school board was faced with the 
difficult task of bringing parents back 
into the school system. These parents 
stopped participating during the time 
their children attended schools across 
town. For many, a lack of transportation 
to those distant schools could have served 
as a stumbling block to their participa­

87A



tion. For others, the extra time and 
expense required to drive across town may 
have prevented their participation. For 
still others, the feeling of a lack of 
community with a cross-town school may 
have been a factor. Returning these 
children to schools close to their homes 
represented a reasonable attempt to once 
again obtain the involvement of their 
parents in the school system.

Plaintiffs contend that the dis­
trict court's findings regarding paren­
tal involvement are clearly erroneous 
because prior attempts by the school 
board had been successful in obtaining 
the return of parents to the schools. 
Former Superintendent Ayars did testify 
that a past effort had succeeded in ob­
taining many parents to volunteer to 
assist in planning school programs. Dr. 
Ayars admitted, however, that much more

88A



needed to be done to increase the number 
of parents involved at the elementary 
school level. Plaintiffs also contend 
that PTA enrollment figures are an 
inappropriate method of measuring 
parental involvement. They offer no al­
ternative method, however. We know of no 
better gauge of parental interest in a 
school system than involvement in its PTA 
program. We find substantial evidence in 
the record to support the district court's 
conclusion that the school board's concern 
over parental involvement was not a pre­
text for racial discrimination.

Plaintiffs also argue that discrimi­
natory intent can be seen in the board's 
failure to follow normal procedures in 
adoption of the proposed plan. These im­
proper procedures include raising the bus­
ing issue at a board meeting where such a 
topic was not on the agenda and when

89A



busing's leading proponent, Dr. John 
Foster, was absent. Plaintiffs also fault 
the board for failure to solicit the 
opinions of Dr. Ayars and for failing to 
investigate the psychological impact of 
such a neighborhood plan on black 
children.

The district court properly found 
that the decision making procedure follow­
ed by the board was reasonable and not 
indicative of discriminatory intent. The 
actions taken by the board show nothing 
short of a reasonable, deliberative pro­
cess where the citizens of Norfolk were 
encouraged to speak up and express their 
views. The board's adoption of the neigh­
borhood plan was not the result of a 
single meeting behind closed doors. 
Instead, the board first established a 
committee to investigate the issue. That 
committee appointed a task force to obtain

- 90A -



data on the subject. The committee visit­
ed several school systems to study their 
plans. The board solicited the opinions 
of several experts in the field and re­
tained Dr. Armor for more extensive find­
ings. Six public meetings were held
to elicit public comment and criticism. 
We know of little else the board could
have done to make the procedure more fair 

19
and open.

We find plaintiffs' remaining claims 
to be without merit. Plaintiffs fear that 
school resources will be inequitably 
distributed under the new plan so that 
schools with predominantly white students 
will receive more than their fair share 
of both material and human resources. As 
we have pointed out, the school adminis-

Acting with the utmost caution, the 
board also sought judicial review of the 
proposed plan before implementation.

91A -



tration is completely integrated. The 
superintendent and two of the three re­
gional assistant superintendents are 
black. Blacks comprise 41% of the sys­
tem's principals and 44% of its teachers. 
We conclude that plaintiffs' fears are 
not enough to prove a claim such as this 
when the decision-makers in the system 
are themselves integrated. We are 
additionally reminded that the plan itself 
provides for judicial review of resource 
allocation.

Plaintiffs infer discriminatory in­
tent from the board's failure to provide 
for an alternative plan should the neigh­
borhood plan be unsuccessful at stopping 
the exodus of white students. We agree 
with the district court that such a 
failure would not have an appreciably dif­
ferent effect than continuation of the

92A



busing plan under present trends. In 
either case, the school system would 
become predominantly black.

We find no evidence in the record to 
support the plaintiffs' contention that 
the school board and the housing authority 
have acted in concert with the intent to 
discriminate on the basis of race. As 
the district court pointed out, Norfolk's 
housing projects were constructed as a 
general rule to replace slum areas in 
the city. Those residents displaced by 
that demolition were given priority in 
assignment to the new housing projects. No 
one disagrees that most of those residents 
were black, and blacks still represent 
the vast majority of housing project 
tenants in Norfolk. This record shows no 
evidence by either the housing authority

93A



by race following the culmination of the 
20

Beckett case.

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

We think the district court was cor­
rect in its holding that the discrimina­
tory impact alone shown here is not suf­
ficient to make out such a claim. Arling- 
ton Heights, supra, 429 U.S. at 266: Wash­
ington , supra, 426 U.S. at 242. Such 
impact is clearly relevant to a determina­
tion of intent, however. Columbus Bd. of 
EcK, supra, 443 U.S. at 464; Dayton II, 
supra, 443 U.S. at 536 n. 9; Washington, 
supra, 426 U.S. at 242. In a school 
desegregation case in which intent is not

In 1969, the district court rejected such 
an argument in the Beckett litigation. 302 
F.Supp. 18, 27. It concluded that housing 
patterns resulted from de facto segrega­
tion or a desire of blacks to live with 
blacks and whites to live with whites. 
This court did not disturb that finding 
when it considered the matter on appeal 
and reversed on other grounds. Brewer, 
supra, 434 F.2d 408. ------

94A



«

presumed, a plaintiff must show a discri­
minatory purpose on the part of the defen­
dant in order to make out a constitutional 
violation. This purpose, or intent to 
discriminate, marks the difference between 
de facto and de jure segregation. The 
finding that a school population is not 
homogenous, standing by itself, does not, 
absent intent, indicate a constitutional 
violation. Dayton Bd. of Ed. v . Brink- 
man , 433 U.S. 406, 413: Swann, supra, 402 
U.S. at 17-18. Hence, the presence of 
one-race schools within a community, 
standing alone, is not a violation of 
the Constitution. See Washington, supra, 
426 U.S. at 240; Swann, supra, 402 U.S. at 
26.

We agree with the district court that 
the evidence reveals that Norfolk's 
neighborhood school assignment plan is 
a reasonable attempt by the school

95A



board to keep as many white students in 
public education as possible and so ac­
hieve a stably integrated school system. 
It also represents an attempt to 
improve the quality of the school system 
by seeking a program to gain greater 
parental involvement. While the effect of 
the plan in creating several black 
schools is disquieting, that fact alone is 
not sufficient to prove discriminatory 
intent. While the number of substantially 
all black schools in the system will not 
be decreased by the minority to majority 
option, the number of students attending 
such schools will be significantly 
decreased.

Our holding is a limited one, 
applicable only to those school systems 
which have succeeded in eradicating all 
vestiges of de jure segregation. In those 
systems, the school boards and not the

96A



federal courts will run the schools, 
absent a showing of an intent to discrimi­
nate. We do not think this is a case in 
which a school board, upon obtaining a 
judicial decision that it is unitary, 
turns its back on the rights of its 
minority students and reverts to its 
old discriminating ways. If such were 
the case, we would, of course, not approve 
Norfolk's new assignment plan. But such 
is not the case. The school board of 
Norfolk has done a reasonable job in seek­
ing to keep its schools integrated in the 
face of a massive exodus of white stu­
dents. We should not tie its hands and 
refuse to allow it to try another plan 
that may be successful in stopping that 
exodus.

97A



The district court has thoughtfully 
and carefully considered the complex 
issues before it, and its judgment is 
accordingly

AFFIRMED

98A



Filed July 9, 1984 
IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

NORFOLK DIVISION 
CIVIL ACTION NO. 83-326-N 
PAUL R. RIDDICK, ET AL.,

Plaintiffs, 
v.
SCHOOL BOARD OF THE 
CITY OF NORFOLK, ET AL.,

Defendants.

MEMORANDUM OPINION
Procedural History of Recent Complaint

This suit was filed by the plain­
tiffs, parents of public school children, 
as a class action against the School Board 
of the City of Norfolk, Virginia, and the 
members thereof, on May 5, 1983. The suit 
challenges, on constitutional grounds, a 
new proposed pupil assignment plan (here­
inafter "Proposed Plan") in which cross­

99A



town busing of elementary school children 
is curtailed. The Proposed Plan was 
adopted by the School Board on February 2, 
1983 and is scheduled for implementation 
in the school year beginninq September, 
1984. Plaintiffs contend that the adop­
tion of the Proposed Plan was racially mo­
tivated and that its implementation would 
violate the rights of the plaintiffs under 
the Fourteenth Amendment.

Defendants contend that the present 
plan, with its massive crosstown busing, 
has had the effect of resegregating the 
school system and that continuation of the 
present plan would result in even further 
resegregation. Defendants argue that the 
Proposed Plan was adopted, in large mea­
sure, to promote stability in the school 
system and thereby to ensure that the Nor­
folk school system remains as desegregated 
as possible over the long term.

1 00A



Past History of Proceedings
Desegregation litigation in Norfolk 

began in 1956, styled Beckett v. School 
Board of the City of Norfolk, before Judge 
Walter E. Hoffman. Beckett, renamed Brewer 
v. School Board of the City of Norfolk, 
became the individual docket responsibil­
ity of Judge John A. Mackenzie on July 7, 
1971, and the district court decisions 
from that date, to the present, have all 
been those of Judge Mackenzie.

Following the decision in Swann v. 
Charlotte-Mecklenburq Board of Education, 
402 U.S. 1 (1971), Brewer v. Norfolk 
School Board was remanded to the District 
Court by the Fourth Circuit Court of Ap­
peals, with instructions to obtain from 
the Norfolk School Board a new desegrega­
tion plan which would give effect to 
Swann. Brewer, sub nom., Adams v. School

1 01A



District No. 5, Orangeburg County, South 
Carolina, 444 F.2d 99 (4th Cir. 1971), 
cert, denied, 406 U.S. 933 (1972).

Acting under that mandate, this Court 
received a revised desegregation plan from 
the School Board. This plan, modified in 
some respects by this Court, was institut­
ed by an Order of this Court entered in 
July 1971. The plan utilized several dif­
ferent methods of pupil assignment includ­
ing single school attendance zones, group­
ings and pairings of schools, and a major­
ity-minority transfer provision. It also 
ordered crosstown busing as a technique to 
overcome the remaining vestiges of Nor­
folk's dual school system. That plan was 
approved by the Fourth Circuit with the 
minor change that crosstown busing was to 
be without cost to the students. This 
pupil assignment plan, which was subjected

1 02A



to periodic review over the next several 
years, is essentially the plan now in ef­
fect .

Background
In July 1971, when the current dese­

gregation plan was instituted and busing 
began, the population of Norfolk was 
307,951 of which 70% (215,096) were white 
and 28% (87,261) were black. The Norfolk 
school system in 1970 enrolled 56,830 
pupils, of which 57% (32,586) were white 
and 43% (24,244) were black.

By 1983, when the Proposed Plan was 
adopted by the School Board, the situation 
had changed significantly. The 1980 Cen­
sus pegged the population of the City of 
Norfolk at 266,979 of which 61% (162,300) 
were white residents and 35% (93,987) were 
black resident. Total enrollment in the 
Norfolk school system stood at 35,540 in 
1983. And in 1983, the racial composition

1 03A



of the school system was the following: 
58% of the students (20,681) were black 
and 42% (13,327) were white. In the past 
twelve years then, there has been a 37% 
loss in enrollment (21,290) and, specific- 
ally, a drop in the white student popula­
tion of 59% ( 19,259) .

These figures are noteworthy in two 
respects: first, that the racial compo­
sition of the school population had re­
versed itself, in 1983 it was 58% black, 
42% white while in 1970 it had been 57% 
white and 43% black. Second, while the 
population of the City of Norfolk was 61% 
white in 1983, the school population was 
42% white. This is to be compared with 
the situation in 1971 when the City's pop­
ulation was 70% white and the school pop­
ulation was 60% white.

In 1970 there were fifty-four elemen­
tary schools. In 1983 there were only

1 04A



thirty-six. This reflects the shrinking 
elementary school population as part of 
the 37% drop overall in school enrollment.

The Proposed Plan
On February 2, 1983, the School Board 

of the City of Norfolk adopted the Propos­
ed Plan which provides for a change in the 
system by which pupils in the elementary 
grades are assigned to schools. The Nor­
folk school system operates thirty-six 
elementary schools, and defines the ele­
mentary grades to include Kindergarten 
through Sixth Grade (K-6). (One of the 
thirty-six elementary schools, Ghent Ele­
mentary, is not now and will not become a 
neighborhood school. It offers an open 
classroom program and any student may ap­
ply for admission to it.) At the present 
time, there are fourteen single attendance 
zone schools (an increase of twelve since 
1971) while the other elementary students

1 05A



in the school system are involved in the 
crosstown basing program. The Board has 
proposed instead that all elementary stu­
dents attend single attendance zone 
schools (otherwise known, somewhat inac­
curately, as neighborhood schools), the 
zones having been drawn to achieve the 
maximum amount of racial integration. The 
plaintiffs have not attacked the zones as 
drawn.

Under the Proposed Plan, crosstown 
busing for racial balance in Grades K-6 
would be eliminated. The Proposed Plan 
would have the effect of increasing the 
number of black racially identifiable ele­
mentary schools from 7 to 12. (This Court 
considers a school to be "racially identi­
fiable" if the school population contains 
more than 70% of a particular race.)

1 06A



The Proposed Plan includes a Major­
ity-Minority transfer option ("M/M trans­
fer"). No student would be required to at­
tend a school in which his race consti­
tutes more than 70% of the student body. 
Under the M/M transfer program, the stu­
dent could transfer, at his parents' op­
tion, to a school in which his race con­
stitutes less than 50% of the student 
body. The school administration has cal­
culated that 10-15% of those eligible for 
the M/M transfer program would choose to 
use it in the first year and that up to 
30-40% of those eligible would opt for it 
over the next five years. After consider­
ing the evidence of experts for both the 
plaintiffs and defendants, this Court 
finds that the school administration's 
figures are a reasonable estimate of the 
outcome of the M/M transfer proqram. This 
Court therefore finds that the School

1 07A



Board's figures— calculated on the basis 
that approximately 17-18% would opt to 
transfer— give a fair illustration of the 
effects of the M/M transfer program upon 
the elementary school population. After 
M/M transfers, only one elementary school 
would be over 70% white, i.e., Bayview 
(74%).

The Norfolk school system also in­
cludes Grades Seven-Twelve (7-12), located 
in eight Junior High Schools, five Senior 
High Schools and six Special Instruction 
Schools. These schools are not affected by 
the Proposed Plan. Under the Proposed 
Plan, crosstown busing will still be used 
to achieve racially mixed student bodies 
in those schools. The Proposed Plan 
creates a feeder pattern of elementary 
schools for the assignment of students to 
Junior High Schools. Each Junior High 
School will have a racially balanced stu­

108A



dent body as a result. In short, these 
schools will retain their present charac­
teristics .

While the Proposed Plan also involves 
the creation of programs designed to im­
prove achievement, parental involvement, 
cross-cultural contacts and to ensure 
equal allocation of education resources, 
the major issues raised in this suit con­
cerned the pupil assignment component.

The 1975 Order in
Beckett v. School Board; Its Meaning

As has been pointed out, the desegre­
gation plan for the Norfolk school system 
was entered in July 1971 by the same judge 
as here presiding, and remains the frame­
work for the organization of the school 
system. In 1972, 1973 and 1974, this
Court received reports which described, in 
considerable detail, the operation of the 
school system. In particular, this Court

1 09A



reviewed the construction of new schools 
and the closing of other schools in 1972, 
1973 and 1974. An application for the es­
tablishment of a transition school to aid 
school dropouts was opposed by the Beckett 
plaintiffs, but was nevertheless approved 
by this Court in August, 1972.

All of this activity culminated in an 
Order dated February 14, 1975, which is 
here fully set out:

LEOLA PEARL BECKETT, et al.,
Plaintiffs

v. : CIVIL ACTION
: NO. 2214THE SCHOOL BOARD OF THE CITY:

OF NORFOLK, VIRGINIA, :
et al., :

Defendants:

ORDER
It appearing to the Court that all issues 
in this action have been disposed of, that 
the School Board of the City of Norfolk 
has satisfied its affirmative duty to de­
segregate, that racial discrimination 
through official action has been eliminat­

1 10A



ed from the system, and that the Norfolk 
School System is now "unitary," the Court 
doth accordingly
ORDER AND DECREE that this action is here­
by dismissed, with leave to any party to 
reinstate this action for good cause 
shown.

/s/ JOHN A. MacKENZIE 
United States Distrtict Judge

Dated: February 14, 1975

We ask for this:
/s/ Henry L. Marsh, III 
Counsel for Plaintiffs
/s/ Allan G. Donn_____
Counsel for Defendants

The lanquage of the Order of February 
14, 1 975 was fully agreed to by counsel 
for plaintiffs and defendants. Attorney's 
fees had been the only issue in the law­
suit for nearly three years before the en­
try of the Final Decree in February, 1975.

1 1 1A



The Order of February 14, 1975, as
appears on its face, was more than just a 
mere order of dismissal. Rather, the 
Order made specific findings

"... all issues in this action have 
been disposed of
"... that the School Board of the 
City of Norfolk has satisfied its af­
firmative duty to desegregate
"... that racial discrimination 
through official action has been 
eliminated from the system [emphasis 
added]

"... that the Norfolk School System 
is now 'unitary'...."

That Order was entered by the same judge 
who is now hearing this present action, 
after he had had the case in his charge 
for over four years and after he had been 
monitoring the operation of the school 
system for four years; at a time more than 
four years after he had ordered into ef­
fect the desegregation plan which today 
provides the structure by which the Nor­

11 2A



folk school system is organized; at a time 
when the plan in effect had been unaltered 
in any appreciable respect since July, 
1971, and which, incidentally, has re­
mained essentially unaltered into 1984. No 
attempt to revive or reinstate the Beckett 
litigation was made during the nine years 
which passed from the time the Order was 
entered in 1975 until the present contest. 
This Court therefore cannot agree with the 
present efforts of plaintiffs to label the 
February 1 4, 1975 Order as a "Consent" 
Decree or an Order entered without the 
consideration of evidence to support its 
entry.

This Court finds that the Norfolk 
school system displays today, as it did in 
1975, all indicia of "unitariness." In 
Green v. County School Board, 391 U.S. 430 
(1968), the Supreme Court explained that a 
dual system was one in which,

1 13A



[r]acial identification of the sys­
tem's schools was complete, extending 
not just to the composition of stu­
dent bodies at the two schools but to 
every facet of school operations 
— faculty, staff, transportation, ex­
tracurricular activities and facili­
ties. In short, the State, acting 
through the local school board and 
school officials, organized and oper­
ated a dual system, part "white" and 
part "Negro".

Id. , at 435. It has now been twelve years 
since crosstown busing was introduced and 
almost 30 years since the start of deseg­
regation litigation in Norfolk. Every 
piece of evidence in this case points to 
the fact that the Norfolk school system is 
unitary: the Norfolk School Board is an 
integrated body, the Norfolk school admin­
istration is racially balanced, the racial 
composition of the faculty and staff is 
mixed, and the overwhelming majority of 
schoolchildren, of both races, on the ele­
mentary, junior and senior high school 
levels, attend schools whose student

1 14A



bodies are racially mixed. In addition, 
there has been no contention, nor could 
there be one, that the extracurricular 
activities, transportation network and 
school facilities are operated in a dual 
fashion. Finally, as noted elsewhere, 
there has been no challenge to any of the 
Board's actions in the Beckett litigation 
since some time before the 1975 Order was 
entered. Compare, Clark v. Board of Edu­
cation of the Little Rock School District, 
705 F . 2d 265 (8th Cir. 1983); United 
States v. Texas Education Agency, 647 F.2d 
504 (5th Cir. 1981), cert. denied, 454 
U.S. 1143 (1982).

In short, this Court finds that its 
Order of February 14, 1975, was c a r e f u l l y  

considered for every phrase it contained. 
The Order manifested this Court's determi­
nation that, as a factual matter, the Nor­
folk system was free of discrimination and

1 15A



was unitary in 1975. This Court holds 
that such a finding was fully justified in 
1975 and remains a finding which is today 
fully justified.

Burden of Proof
What then is the effect of the 1975 

Court Order? For the purposes of the pre­
sent posture of this case, the effect of 
the Order is to shift the burden of proof 
from the defendant School Board to the 
plaintiffs, who must now show that the 
1983 Proposed Plan results from an intent 
on the part of the School Board to discri­
minate on the basis of race.

It is well-established that a School 
Board which has maintained a dual school 
system has committed a constitutional vio­
lation. E . g , , Keyes v. School District 
No., 1 , 413 U.S. 189 ( 1973). (The same 
principle, of course, applies to school 
systems which have been maintained as dual

1 16A



by operation of law. Brown v. Board of 
Education, 347 U.S. 483 (1954).) A dual 
system is one which is created by state 
authorities acting intentionally, with 
discriminatory purpose, to segregate the 
races. See, Keyes, 413 U.S. at 198; Swann 
v. Charlotte-Mecklenburg Board of Educa­
tion, 402 U.S. 1, 6 (1971). When such a 
constitutional violation has been found, 
the offending school board is then under a 
continuing affirmative obligation to "take 
whatever steps might be necessary to con­
vert to a unitary system in which racial 
discrimination would be eliminated root 
and branch." Green v. County School 
Board, 391 U.S. 430, 437-38 (1968); Swann, 
402 U.S. 1 (1971). A school board charged 
with the duty to dismantle an existing 
dual system bears the burden of justifying 
its action in light of that duty. See,

1 17A



Columbus Board of Education v. Penick, 443
U.S. 449, 460-61 (1979); Swann, 402 U.S.
1 .

A different situation, however, is 
present in the suit at bar. This Court, in 
its 1975 Order, specifically held that the 
Norfolk School Board had fully discharged 
its affirmative obligation to create a 
unitary system, that the school system had 
shed its dual, <le jure segregated charac­
ter and that the system was unitary. Con­
sequently, the burden now falls upon these 
plaintiffs to show that the defendant 
School Board's actions were taken in vio­
lation of the Constitution. In order to 
make this showing, plaintiffs must prove 
that the Board acted with an intent to 
discriminate. Washington v. Davis, 426 
U.S. 229 (1976); Arlington Heights v.
Metropolitan Housing Development Corp., 
429 U.S. 252 (1977); Keyes, 413 U.S. 189.

1 18A



The presence of discriminatory intent will 
not be inferred solely from the dispropor­
tionate impact of a particular measure 
upon one race. As the Supreme Court has 
made clear, "... official action will not 
be held unconstitutional solely because it 
results in a racially disproportionate im­
pact. 'Disproportionate impact is not ir­
relevant, but it is not the sole touch­
stone of an invidious racial discrimina­
tion.'" Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. at 
264-265, quoting, Washington v. Davis, 426 
U.S. at 242. Moreover, it is clear that 
the existence of one race or substantially 
one race schools is not unconstitutional 
without a showing that such schools were 
created for the purpose of discriminating 
on the basis of race. Keyes, 413 U.S. 
189; See, Crawford v. Board of Education 
of the City of Los Angeles, 458 U.S. 527

1 19A



(1982). Plaintiffs have attempted to 
carry their burden by pointing to various 
facts and circumstances regarding the 
adoption and effect of the Proposed Plan, 
specifically the following: that the im­
pact of the Proposed Plan is such as to 
indicate discriminatory intent, that the 
procedures used by the Board in consider­
ing and adopting the Proposed Plan were 
suspect, that the Board improperly con­
sidered the effect of "white flight", and 
that the Board's stated justifications 
were pretexts for discrimination.

This Court finds that plaintiffs have 
failed to satisfy their burden. As will 
be developed below, the evidence in this 
case falls short of demonstrating the 
requisite discriminatory intent.

(The plaintiffs have made several 
arguments with respect to the allocation 
of the burden of proof, all of which this

120A



Court rejects. First, plaintiffs argue 
that Swann requires the School Board to 
provide a nondiscriminatory justification 
as to why its Proposed Plan will create 
some schools with student bodies composed 
disproportionately of one race. However, 
Swann is inapplicable here. The questions 
resolved by the Supreme Court in Swann 
involved the fashioning of an appropriate 
remedy for the dismantling of a dual 
school system. In the case at bar, by 
contrast, the Norfolk school system has 
been held to be unitary and the question 
is whether the School Board has committed 
a constitutional violation in adopting the 
Proposed Plan. Second, plaintiffs con­
tended that the principles announced in 
Regents of the University of California v. 
Bakke, 438 U.S. 265 (1978), require that 
this Court strictly scrutinize the Pro­

121A



posed Plan. As discussed in greater depth 
below, however, Bakke is inapplicable to 
this case.)

School Resources Allocation
Plaintiffs have argued that as a 

result of the adoption of the Proposed 
Plan, and the emergence of a larger number 
of racially identifiable black schools 
than presently exists, the resources of 
the school system might be unequally dis­
tributed. Specifically, plaintiffs sug­
gest that the greater concern would be 
shown to schools with a larger percentage 
of white enrollment and that the better 
equipment and better faculty would be 
diverted to these schools. Such an argu­
ment is hardly worth the review of the 
evidence that thoroughly defeats it.

The School Board of Norfolk is ra­
cially mixed, with four white members and 
three black members. The administration

1 22A



of the Norfolk school system is now in the 
capable hands of a very competent and 
integrated staff. The Superintendent of 
Schools, Dr. Gene R. Carter, is black. Two 
of the three Regional Assistant Super­
intendents are also black. There are 88 
principals in the system, 59% are white, 
41% are black. The faculty is likewise 
fully integrated, 56% white, 44% black. 
When all personnel are counted, including 
the maintenance staff, administration and 
faculty, the mix is 47% white, 52% black 
(1983 figures). Given that the staff is 
completely integrated and given that very 
qualified blacks are at the top of the 
organization, the fear that white students 
will stand to reap some benefit over black 
students is totally lacking in credence. 
And even though it is unlikely that addi­
tional oversight is necessary, the Pro­
posed Plan specifically requires periodic

1 23A



judicial review of the allocation of 

educational resources, both human and 
material.

Integration: New Plan as an Aid
A significant amount of expert testi­

mony was solicited during the long trial 
of this case on the question of whether 
the scholastic achievement of students, 
black and white, is affected when the 
school they attend is racially mixed. In 
order to evaluate the Proposed Plan, and 
without attempting to balance the experts, 
let us assume that integration produces 
some positive impact upon achievement. 
Under this assumption, it becomes clear 
that the goal of any school plan must be 
to ensure that the greatest number of stu­
dents of both races remain enrolled. And 
in fact, one of the purposes of the Pro­
posed Plan is to stabilize elementary 
school population at its present ratio of

1 24A



black students and white students, roughly 
60-40. There is some speculation that 
with the Proposed Plan in place the ratio 
might be narrowed to 55-45.

If the Proposed Plan is successful 
and the racial composition of the school 
population stabilizes, the school adminis­
tration will have considerably more white 
students for the purpose of integrating 
the system than it would have if the pre­
sent plan continues in operation, accord­
ing to various forecasts. As noted else­
where in this opinion, even plaintiffs' 
experts recognize the distinct possibility 
that Norfolk will go the way of other cen­
tral core cities whose school populations 
have become overwhelmingly minority, and 
that therefore Norfolk's student ratio may 
dwindle under the present plan to 75-25, 
black to white or 86-14, black to white, 
as in nearby Richmond, or even 90-10,

125A



black to white, as in Washinaton and Bal­
timore. This Court gives credence to 
these predictions. Clearly then, given 
that experts on both sides indicate that 
stability in the level of white enrollment 
is a desirable objective, and given the 
assumption that the achievement of all 
students may be improved by having an in­
tegrated education, the possibility that 
the Proposed Plan would increase the num­
ber of white students would be a strong 
point in its favor.

Let us suppose the Proposed Plan 
fails to stem the tide of "white flight" 
and the racial composition of the student 
population fails to stabilize at 55-45, or 
60-40, black to white. In such a situa­
tion, the number of elementary schools 
that can be racially identified as black 
will necessarily increase since white stu­
dents will not be available in sufficient

1 26A



numbers to maintain integration. Thus, 
the failure of the Proposed Plan to retain 
white students would produce a result no 
different from that of the continued 
operation of the present plan.

If stability in the ratio of white 
elementary students to black elementary 
students is a proper goal, then a plan 
which would achieve that goal must be 
appropriate. If the Proposed Plan is suc­
cessful, it will produce such a result, 
but if it fails, the result will be no 
worse than the outcome which appears to be 
likely with the continued operation of the 
present plan —  that is, resegregation. 
In short, the Proposed Plan represents a 
reasonable, voluntary attempt on the oart 
of the School Board to ensure that the 
school system retains the qreatest degree 
of integration over the long term.

127A



White Flight
The Court finds that the credible 

evidence in the case at bar reveals that 
there has been significant "white flight" 
from the Norfolk school system. Norfolk 
has experienced two types of "white 
flight": students who left the system 
after once having been enrolled in it, and 
families who have avoided settling in Nor­
folk but have instead settled in com­
munities such as Virginia Beach or 
Chesapeake. The Court finds that, as a 
result of busing, the Norfolk school sys­
tem has lost between 6000 and 8000 white 
students who otherwise would have been 
enrolled there.

The Court further finds that, as a 
result of this white flight, the Norfolk 
schools are faced with imminent resegrega­
tion. Dr. Crain, one of plaintiffs' key 
experts, stated in an unguarded moment

128A



that the school population of the City of 
Norfolk was undoubtedly moving towards a 
high ratio of black to white. The situa­
tion in Norfolk is not unlike that of 
other nearby cities which, like Norfolk, 
have an older central core. In Richmond, 
for example, the racial composition of 
the student population stands at 86% 
black, 14% white even though it began at 
approximately the same level as that in 
Norfolk. In short, it is clear that the 
Norfolk school system faces a serious pro­
blem brought on by the effects of white 
f 1 ight.

It is well settled that "white 
flight" cannot be used as a justification 
for the failure to comply with the Court 
Order to dismantle a dual school system. 
The commands of the Constitution may not 
bend to the popular will. United States 
v. Scotland Neck Board of Education, 407

1 29A



U.S. 484 (1972); Davis v. East Baton Rouge
Parish School Board, 721 F.2d 14 25 (5th 
Cir. 1983). However, when the proper set 
of circumstances exists, white flight may 
be considered by the school board, and by 
the Court, in solving the integration 
equation. See, Parent Association of 
Andrew Jackson High School v. Ambach, 598 
F.2d 705, 720 (2d Cir. 1979); Johnson v. 
Board of Education of Chicago, 604 F.2d 
504, 516 (7th Cir. 1979), vacated and re­
manded for consideration of subsequent 
developments, 449 U.S. 915 (1980); Stout 
v. Jefferson County Board of Education, 
537 F.2d 800, 802 (5th Cir. 1976); Higgins 
v. Board of Education of the City of Grand 
Rapids, 508 F.2d 779, 794 (6th Cir. 1974). 
This Court finds, as further developed 
below, that this case presents circum­
stances which make consideration of "white 
flight" appropriate.

1 30A



Exodus of White Students as a 
Proper Criterion for Planning

Plaintiffs argue that the School 
Board bears the burden of proving that the 
Proposed Plan can survive strict scrutiny 
under the Equal Protection Clause because 
the Board allegedly employed racial cri­
teria in designing the Proposed Plan. 
Specifically, plaintiffs claim that the 
Proposed Plan is suspect because it was 
developed in part, to stem white flight 
and because it has the effect of creating 
twelve racially identifiable black 
schools. The plaintiffs cite Bakke, 438 
U.S. 265 (1978), as support for this pro­
position .

The short answer to this argument is 
that the Proposed Plan does not create an 
impermissible classification. Under the 
Proposed Plan, the residence of the child 
will determine the school to which the

1 31A



child will be assigned. The Proposed Plan 
seeks to confer the benefit of neighbor­
hood schooling upon all students in the 
City, and makes it available to all, re­
gardless of race. See, Crawford, 458 (J.S. 
at 537. The case at bar presents a clear 
instance of state action which addresses 
race related matters in neutral fashion. 
As the Supreme Court has stated, "A neigh­
borhood school policy in itself does not 
offend the Fourteenth Amendment." Id. at 
537, n. 15; Swann, 402 U.S. at 28. Thus, 
on its face, the Proposed Plan does not 
establish a classification grounded on 
race. This distinguishes the case at bar 
from Bakke in which a medical school 
overtly considered applicants for admis­
sion differently according to race or 
ethnic origin.

1 32A



Moreover, there is no evidence in 
this case to indicate that the Board used 
"residence" as a factor determining which 
school a child will attend as a pretext 
for discriminating on the basis of race. 
While the Board considered race when draw­
ing up the boundary lines of the various 
attendance zones, it did so to ensure the 
maximum amount of integration in each 
school. Thus, it cannot be said that this 
line-drawing technique suggests that the 
Proposed Plan invidiously discriminates on 
the basis of race. And the fact that the 
Propose Plan increases the number of ra­
cially identifiable black schools to 
twelve does not, standing alone, dictate a 
finding that an impermissible classifica­
tion was established. See, Washington v. 
Davis, 426 U.S. 229. The evidence has
failed to show that the Board intended to

1 33A



use this Proposed Plan as a subterfuge for 
a deliberate attempt to discriminate on 
the basis of race.

Plaintiffs further argue that the 
Board's consideration of "white flight" 
was improper. This Court has already 
found that, as a factual matter, the Nor­
folk school system has been a victim of 
"white flight". Certainly, the mere fact 
that the Board considered the problems of 
white enrollment loss does not indicate 
that the Board acted with a discriminatory 
purpose when it adopted the Proposed Plan.

There is nothing inherently suspect 
in the Board's consideration of the "white 
flight" problem in 1983. As noted above, 
it is established that the possibility of 
white flight cannot justify a school 
board's failure to comply with court- 
ordered desegregation, nor would it 
excuse actions which would tend to make

1 34A



t h e  c o u r t  o r d e r  u n w o r k a b l e ,  S c o t l a n d  N e ck

Board of Education, 407 U.S. 484; Davis, 
721 F . 2d 1 425. However, those cases are 
distinguishable from the one at bar be­
cause the school board in each of those 
cases was under court order to dismantle a 
dual school system. In Norfolk, by con­
trast, the school system was declared 
unitary in 1975 and the Board's continu­
ing, affirmative duty to desegregate was 
discharged at that time. The School Board 
therefore did not act improperly in 1983 
when it took into account the problems of 
white enrollment loss in considering a 
pupil assignment plan to ensure that the 
Norfolk school system would remain inte­
grated over the long term. See, Ambach, 
598 F .2d 705; Higgins, 508 F.2d 779. As 
the Sixth Circuit stated,

... It does not follow that a board 
must ignore the probability of white 
flight in attempting to formulate a 
voluntary plan which would improve

1 35A



the racial balance in the schools 
without at the same time losing the 
support and acceptance of the pub­
lic.

Higgins, 508 F.2d at 794 (emphasis in
original).
Parental Involvement and the Proposed Plan

As noted above, plaintiffs have 
argued that the Proposed Plan was adopted 
and designed for the purpose of discrimi­
nating on the basis of race, and that the 
Board's stated justifications for adopting 
the Proposed Plan were mere pretexts. This 
Court has determined that the primary 
objective of the Board in adopting the 
Proposed Plan -- providing a response to 
the threat posed by white flight to the 
long term integration of the Norfolk 
school system —  was not a pretext for 
discrimination. This Court also finds 
that plaintiffs have failed to produce 
convincing evidence to substantiate their

136A



claim that the School Board's other key 
objective in adopting the Proposed Plan 
(i.e., increase the level of parental in­
volvement) was pretextual.

One of the School Board's primary 
concerns has been the involvement of the 
parents in the process of education. The 
evidence produced in this case by both 
sides is absolutely clear that parental 
involvement at the elementary school level 
is essential to the health and well-being 
of a school system. When asked whether 
involvement of parents in the school sys­
tem was desirable, every witness —  socio­
logists, educators, parents —  responded 
affirmatively. Dr. Foster, one of plain­
tiffs' key experts, stated, "... today 
parental involvement is considered to be 
one of the most important ingredients for 
quality education." Tr. at 189. Dr. 
Albert Ayars, who served as Superintendent

137A



of the Norfolk school system until about a 
year ago, testified that parental involve­
ment was "vital". Dr. Ayars pointed out 
that a nationwide Gallup Poll conducted in 
1976 revealed that 65% of those responding 
believed that the "most significant 
factor" in a child's education was the 
involvement of parents.

While plaintiffs' acknowledged that 
parental involvement was important in 
making a school system successful, they 
attempted to defend the extent of parental 
involvement under the present plan. Plain­
tiffs also tried to intimate that programs 
to increase parental involvement which are 
to be implemented in connection with the 
Proposed Plan could work equally well un­
der the current plan. These efforts fell 
short. Dr. Ayars, who was particularly 
well qualified to make such an assessment, 
stated that crosstown busing had "virtual­

138A



ly destroyed" the PTA in Norfolk. PTA 
membership has fallen from approximately 
15,000-20,000 to a mere 3,500. Dr. Ayars 
testified that, during his tenure, the 
school administration engaged in extensive 
efforts to improve the level of parental 
involvement and to increase the number of 
PTA members. One such effort was to offer 
free transportation to parents to enable 
them to attend meetings at their child­
ren's schools which were across town. How­
ever, these efforts were all to no avail.

At trial, individual parents testi­
fied that they lacked the transportation, 
and in many instances the energy, to make 
the trips to distant schools. These par­
ents also testified, as did Dr. Ayars, 
conversely, that their interest and in­
volvement would be revived if their child­
ren attended an elementary school in the 
neighborhood.

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In short, this Court finds as a fac­
tual matter that the Norfolk School Board 
faced a critical problem caused by the 
precipitous decline in the level of paren­
tal involvement as a result of crosstown 
busing. Further, this Court has deter­
mined that the Proposed Plan constitutes a 
reasonable solution developed by the 
School Board to the difficult problem of 
declining parental involvement. There­
fore, contrary to plaintiffs' argument, 
there is insufficient evidence from which 
to conclude that this objective of the 
School Board was, in fact, a pretext for 
discriminating on the basis of race.

No Alternative Plan 
The School Board commissioned Dr. 

McLaulin to devise another plan as an al­
ternative to the Proposed Plan which 
divides the City into attendance zones. 
The purpose of this alternative plan was

1 40A



to determine whether it would be feasible 
to retain a system of crosstown busing but 
at the same time to reduce the amount of 
time a child would spend on a bus each 
day. (The evidence proffered here showed 
that many children spend as much as 45 
minutes on a bus traveling just one way to 
school.) This alternative plan was pre­
sented to the community at a series of 
public hearings held to aid the School 
Board in its decision-making process. The 
public was fully informed as to the prin­
ciple underlying the alternative plan and 
as to the actual design of the alternative 
plan. However, the evidence produced in 
this case clearly established that abso­
lutely no interest was expressed at the 
public hearings in the alternative plan. 
Therefore, the alternative plan was appro­
priately shelved. In short, this Court 
finds that the alternative plan was never

1 4 1A



a viable program and plaintiffs' arguments 
to the contrary, as well as their attempts 
to question the consideration which the 
alternative plan received, are completely 
unavailing.

The Board's Procedures
Plaintiffs have argued that the pro­

cedures used by the Board to consider and 
adopt the Proposed Plan were suspicious. 
Plaintiffs further contend that the suspi­
cious nature of this process suggests that 
the Board acted with discriminatory pur­
pose .

The Court finds, however, that the 
School Board's decision-making procedures 
were reasonable and do not indicate that 
the Board acted with discriminatory 
intent. There is no evidence of clandes­
tine action on the part of the Board, or 
even the hint that any took place. Indeed, 
the facts are to the contrary. The Board

142A



established a special committee, the Ad 
Hoc Committee, to investigate the matter; 
later, a committee of the whole Board con­
sidered the matter. The Board solicited 
studies and opinions from further experts 
(Doctors Green, Edmonds, Lightfoot, Armor) 
as to various problems facing the school 
system and as to possible solutions. The 
Board held a series of six public hearings 
at different sites throughout the City 
during which the comments of the community 
were sought and received. The Board re­
quested the opinions and advice of Dr. 
Ayars and Dr. Carter as well as those of 
their staffs. Plaintiffs' criticisms, made 
with the clear vision of hindsight, amount 
to no more than a claim that the Board 
failed to meet a standard of near-perfec­
tion in its decision-making process. In 
short, plaintiffs' criticisms of the 
Board's procedures do not, considered sep­

143A



lead to thearately or in combination, 
conclusion or even amount to a suggestion 
that the Board was in fact acting with an 
intent to discriminate on the basis of 

race.
Housing

Plaintiffs have argued that those 
neighborhood schools which would be 
racially identifiable as black under the 
Proposed Plan are those schools which are 
located in housing projects or areas of 
subsidized housing, and that therefore the 
official actions of the housing authori­
ties have, in large part, determined where 
the children of the residents of those 
projects will attend school. However, 
plaintiffs' argument does not lead to a 
finding that the School Board has acted 
with discriminatory purpose in the adop­
tion and design of the Proposed Plan.

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All of the evidence points out that 
the slum clearance projects undertaken by 
the Norfolk Redevelopment and Housing 
Authority ("NRHA"), and any other agency 
involved with housing, beginning in the 
1950's did, in fact, eliminate areas which 
were truly slums. The abominable living 
conditions in those slums were made even 
worse by the crowding of several families 
into units designed for single family 
habitation. These slum areas were 
occupied by those on the lowest rung of 
the economic ladder, many of whom were 
black. Therefore when the slums were 
cleared, most of those who were displaced 
were black. The cleared slum areas became 
the sites of modern housing projects which 
were, by law, intended to house low income 
families; space in those projects was,

U SA



again by law, to be offered first to those 
who had been displaced by the demolition 
of the slum areas.

Today, Norfolk's fifteen public hous­
ing projects and seven subsidized housing 
projects are occupied almost exclusively 
by black residents. These projects house 
approximately 25% of Norfolk's black fami­
lies and, by deduction, 25% of Norfolk's 
black school children. However, it defies 
logic to suggest that because the City of 
Norfolk and the appropriate City agencies 
had undertaken an aggressive and progres­
sive plan to eradicate unlivable slums and 
to replace them with modern, affordable 
living spaces for low income residents, 
the School Board is responsible in some 
way for the fact that under the Proposed 
Plan, the racially identifiable black 
schools are located in close proximity to 
those projects. No plaintiff expert wit-

1 46A



ness suggested that the School Board 
should have insisted to the City, or to 
the appropriate City agencies (e.g., the 
NRHA), that the statutory requirement that 
those displaced have priority in the 
assignment of rental units be ignored, 
that some of the units be made available 
to those of greater financial means, that 
the long waiting lists of prospective 
black tenants (which exist even today) be 
disregarded or that some of the new accom­
modations be set aside and held, even if 
unoccupied, for white residents only. As 
Justice Powell wrote in Columbus Board of 
Education v. Penick,

There are unintegrated schools in 
every major urban area in the country 
that contain a substantial minority 
population. This condition results 
primarily from familiar segregated 
housing patterns, which —  in turn —  
are caused by social, economic, and 
demographic forces for which no 
school board is responsible....

1 47A



443 U.S. 449, 480 ( 1979); Cf., Bell v.
Board of Education, Akron Public Schools, 
683 F.2d 963 (6th Cir. 1982) (discrimina­
tion in housing by governmental agencies 
not imputable to school authorities other­
wise innocent of segregative intent). And 
as Professor Alexander Bickel stated, in a 
passage quoted by the Court in Penick,

In most of the larger urban areas, 
demographic conditions are such that 
no policy that a court can order, and 
a school board, a city or even a 
state has the capability to put into 
effect, will in fact result in the 
foreseeable future in racially bal­
anced public schools. Only a re­
ordering of this environment involv­
ing economic and social policy on the 
broadest conceivable front might have 
an appreciable impact.

Id., at 480.
The focus of the school desegregation 

cases has been upon the elimination of 
dual school systems. As Chief Justice 
Burger stated in Sv/ann,

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We are concerned in these cases with 
the elimination of the discrimination 
inherent in the dual school systems, 
not with myriad factors of human ex­
istence which can cause discrimina­
tion in a multitude of ways on ra­
cial, religious, or ethnic grounds. 
The target of the cases from Brown I 
to the present was the dual school 
system. The elimination of racial 
discrimination in public schools is a 
large task and one that should not be 
retarded by efforts to achieve 
broader purposes lying beyond the 
jurisdiction of school authorities. 
One vehicle can carry only a limited 
amount of baggage. It would not 
serve the important objection of 
Brown I to seek to use the school de­
segregation cases for purposes beyond 
their scope, although desegregation 
of schools ultimately will have im­
pact on other forms of discrimina­
tion .

402 U.S. at 22-23.
Conclusion

Briefly stated, this Court holds as 
follows:

1. The 1975 Order entered in Beckett 
is to be given full force and effect. It 
was signed four years after this Court 
ordered crosstown busing, and after this

1 49A



Court had overseen the operation of the 
school system for four years. The Order 
was entered only after due reflection and 
consideration by this Court. And it is 
clear, moreover, that the school system 
displays the various indicia of a unitary 
system.

2. As a result of the proper find­
ings made in the 1975 Order, that the 
School Board has satisfied its affirmative 
duty to desegregate and that the system is 
unitary, the plaintiffs in this action 
bear the burden of proof. Plaintiffs must 
show that the School Board's actions in 
adopting the Proposed Plan were taken with 
an intent to discriminate on the basis of 

race.
3. It is clear to this Court that 

plaintiffs have failed to sustain their 
burden. The School Board had two principal 
reasons for adopting the Proposed Plan

1 50A



— to try to meet the threat posed by white 
flight to the integration of the school 
system over the long term and to attempt 
to increase the level of parental involve­
ment. The Court finds that there is a fac­
tual basis for the School Board's 
concerns, that the solution proposed by 
the Board is a reasonable one and was a 
result of reasoned consideration, and 
further that the Board's stated justifica­
tions for adopting the Proposed Plan were 
not pretextual. In addition, this Court 
finds that the Board's procedures in 
adopting the Proposed Plan were not flawed 
in any manner which might indicate that 
the Board was acting with discriminatory 

purpose.
4. Plaintiffs have attempted to 

link the actions of the School Board with 
those of the Norfolk housing agencies for 
the purpose of establishing that the

151A



School Board acted improperly in designing 
and adopting the Proposed Plan. This 
Court concludes, for the reasons stated 
above, that plaintiffs' argument on this 
point must also fail.

5. Plaintiffs' motion to set aside 
the Order of February 14, 1975 in Beckett 
v. School Board of the City of Norfolk is 
DENIED.

/s/ John A. MacKenzie_____
United States District Judge

Norfolk, Virginia 
July 9th, 1984.

152A



Filed July 9, 1984 
IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

NORFOLK DIVISION

PAUL R. RIDDICK, ET AL.,
Plaintiffs

V. CIVIL ACTION
NO. 83-326-N

SCHOOL BOARD OF THE 
CITY OF NORFOLK, ET AL.,

Defendants

ORDER

In accordance with a Memorandum 
Opinion this day filed, this Court finds.

1 . That the Pupil Assignment Plan 
adopted by the School Board of the City of 
Norfolk on February 2, 1983, is not uncon­

stitutional ;
2. That the prayer of plaintiffs for 

injunctive relief is DENIED; and

1 53A



3. Plaintiffs' motion to set aside 
the Order of February 14, 1975 in Beckett 
v. School Board of the City of Norfolk is 

DENIED.
It is so ORDERED.

/s/ John A, MacKenzie_____
United States District Judge

Norfolk, Virginia 
July 9th, 1984.

154A



Filed Feb. 6, 1986 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 84-1815

Paul R. Riddick, Jr., and Phelicia Rid­
dick, infants, by Paul R. Riddick, their 
father and next friend,
Cynthia C. Ferebee, Johnny Ferebee, Gary 
Ferebee, and Wilbert Ferebee, infants, by 
Rev. Luther M. Ferebee, their father and 
next friend,
Anita Fleming, infant, by Blanche Fleming, 
her mother and next friend,
Darrell McDonald and Carolyn McDonald, 
infants, by Ramion McDonald, Sr., their 
father and next friend,
Eric E. Nixon and James L. Nixon, infants, 
by Patricia Nixon, their mother and next 
friend,
and
Paul R. Riddick, Rev. Luther M. Ferebee, 
Blanche Fleming, Ramion McDonald, Sr., 
Patricia Nixon, and Annette Owens,

Appellants

1 55A



versus
The School Board of the City of Norfolk 
Thomas G. Johnson, Jr.f Dr. John H. Fos­
ter, Dr. Lucy R. Wilson, Jean C. Bruce, 
Cynthia A. Heide, Robert L. Hicks, Hor- 
tense R. Wells,

Appellees
The Lawyers' Committee for Civil Rights 
Under Law,

Amicus Curiae.

Appeal from the United States District 
Court for the Eastern District of Vir­
ginia.

This cause came on to be heard on the 
record from the United States District 
Court for the Eastern District of Vir­
ginia, and was argued by counsel.

On consideration whereof, It is now 
here ordered and adjudged by this Court 
that the judgment of the said District

1 56A



Court appealed from, in this cause, be and 
the same is hereby affirmed.

/s/John M. Greacen 
CLERK

1 57A



Filed March 19, 1986 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 84-1815

Paul R. Riddick, Jr., et al.,
Appellants,

versus
The School Board of the City of Norfolk, 
et al.,

Appellees.

O R D E R

We have considered appellants' motion 
to supplement the record and are of 
opinion it is without merit.

It is accordingly ADJUDGED and 
ORDERED that the motion to supplement the 
record shall be, and it hereby is, denied.

1 58A



There having been no request for a 
poll of the court, it is accordingly 
ADJUDGED and ORDERED that the petition for 
rehearing en banc shall be, and it hereby 
is, denied.

The panel has considered the petition 
for rehearing and is of opinion it is 
without merit.

It is accordingly ADJUDGED and 
ORDERED that the petition for rehearing 
shall be, and it hereby is, denied.

With the concurrences of Judge 
Sprouse and Judge Ervin.

/s/ _________
For the Court

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JA M E S  M. N A B R IT, HI

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