Means v. Alabama Brief for Appellant
Public Court Documents
January 1, 1966
3 pages
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Brief Collection, LDF Court Filings. Brewer v. The School Board of the City of Norfolk, Virginia Brief and Appendix for Appellants, 1970. 2dc43357-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/96c6e063-c3d7-4593-a61a-df8d7d707c41/brewer-v-the-school-board-of-the-city-of-norfolk-virginia-brief-and-appendix-for-appellants. Accessed August 19, 2025.
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BRIEF AND APPENDIX FOR APPELLANTS
United States Court of Appeals
FOR THE FOURTH CIRCUIT
No. 15,044
Carlotta M ozelle Brewer and Demetria Y vonne
Brewer, infants by O ner Brewer, their father and
next friend, et al.,
v. Appellants,
T he School Board O f T he City O f
Norfolk, V irginia, et al.,
Appellees.
Appeal from the United States District Court for the
Eastern District of Virginia at Norfolk
H enry L. M arsh , III
S. W. T ucker
214 East Clay Street
Richmond, Virginia 23219
V ictor J. A she
Suite 702-Plaza One
St. Paul’s Boulevard & Plume Street
Norfolk, Virginia 23510
Louis R. L ucas
525 Commerce Title Building
Memphis, Tennessee 38103
Jack Greenberg
James M. N abrit, III
N orman J. Ch a c h k in
10 Columbus Circle, Suite 2030
New York, New York 10019
Counsel for Appellants
Page
Issues Presented For R eview ....... .............. ..................................- 1
Statement O f T he Case .............—— ........................................ 2
Statement Of Facts ...... -.................. -...................... -.............. ........ 6
High Schools ..................................................................................... 7
Junior High Schools ........................ -.......... -................................... 9
Elementary Schools .........-.....- ........-.............. -................. ............ 10
All Schools ........................................................................-............... 12
Transportation .............................................. 13
A rgument .................................... ....................................-.............. 15
I. Norfolk’s Plan And Its Deliberate Failure To Vindicate
Immediate And Urgent Constitutional Rights Constitute A
Flagrant Violation Of This Court’s Orders In this Case..... IS
A. The Board’s Actions Demonstrate An Overt Hostility
To The Mandate Of This C ourt.......................................... 15
B. The Board Permitted Impermissible Considerations To
Affect Its Decisions.... .............................................. -........... 18
II. This Court Should Now Order Implementation Of The
Alternative Plan In The Record Which All Parties Agree
Is The Best Plan To Totally Desegregate The School
System..... ................... - ................... -............................................ 19
Conclusion ...... .......................-............................................................. 20
TA B LE OF CASES
Brewer v. School Board of City of Norfolk, No. 14,544 (C.A. 4,
June 22, 1970 ......... ................... -...........-.................... -................... 7
Brown v. Board of Education (Brown I ) , 347 U.S. 483 .............. 20
Hawthorne v. County School Board of Lunenburg County, 413
F.2d 53 (4th Cir. 1969) ................................................................. 18
TABLE OF CONTENTS
18
Swann v. Charlotte-Mecklenburg, ..... F.2d ..... (4th Cir., No.
14,517 and No. 14,518, May 26, 1970) .......................... 18, 19, 20
Walker v. County School Board of Brunswick County, 413 F.2d
53 (4th Cir. 1969)
Monroe v. Board of Commissioners, 391 U.S. 450 (1968) ..........
18
United States Court of Appeals
FOR THE FOURTH CIRCUIT
No. 15,044
Carlotta M ozelle Brewer and D emetria Y vonne
Brewer, infants by O ner Brewer, their father and
next friend, et al.,
Appellants,
v.
T he School Board O f T he City O f
Norfolk, V irginia, et al.,
Appellees.
Appeal from the United States District Court for the
Eastern District of Virginia at Norfolk
BRIEF FO R APPELLANTS
ISSUES PRESENTED FO R R E V IE W
I
Whether Norfolk’s plan, which assigns 62 per cent of
its black students and 52 per cent of its white students to
racially segregated schools, satisfies the requirements of
the Constitution and the mandate of this Court that the
Norfolk School Board must operate a unitary school system.
2
II
Whether this Court should order implementation o f the
alternative plan in the record which all parties agree is the
best plan to totally desegregate the school system.
ST A T E M E N T O F T H E CASE
Following the June 22, 1970 decision by this Court in
this case, the District Court entered an order on June 23
requiring the defendants to submit a plan for unitary schools
on or before July 27, 1970. In language identical to that in
this Court’s opinion, the order further provided:
“ (2 ) The plan may be based on the suggestions made
by the Government’s expert witness, Dr. Michael J.
Stolee, or on any other method that may be expected
to provide a unitary school system.
“ (3 ) The plan shall immediately desegregate all senior
high schools.
“ (4 ) The defendants shall explore reasonable methods
of desegregation of all elementary and junior high
schools, including rezoning, pairing, grouping, school
consolidation, and transportation. If it appears that
black residential areas are so large that all schools
cannot be integrated, the plan must assure that no pupil
is excluded because o f his race from a desegregated
school.” [Appendix (hereinafter referred to as A .)
p. 1 ); Record (hereinafter referred as to R .) pp.
982-83]
The order of the District Court further stated:
“ In attempting to interpret the opinion of the appellate
court, even though the Court of Appeals does not ex
pressly so decide, this Court is of the view that the ap
pellate court has effectively approved racial balancing
for all schools with the possible exception o f the ele
mentary schools in Berkley-Campostella area. To ac
3
complish this end result extensive cross-bussing will
be required. Although the appellate court says nothing
as to the impossibility o f obtaining school buses for the
school year beginning September 1970, it is obvious
that such is impossible. The only solution, if it can be
referred to in that manner, is for the School Board
to contract with the Virginia Transit Company for
as many buses as possible, and then stagger the opening
and closing of all schools to meet the transportation
problem, irrespective of inconveniences to pupils and
faculty” (A . p. 3; R. p. 985).
Over the strenuous objection of the plaintiffs, and with
the acquiescence of the defendants, the Court permitted
certain white citizens to intervene as parties-defendant (Tr.
Vol. X X X V I, pp. 13-28). These defendants indicated that
they would assert:
(1 ) That the present operation of the Norfolk city
schools does not violate the “ constitutional rights of
the plaintiffs or of any other person,”
and
(2 ) “ That the relief prayed for by the plaintiffs in
their recent appeal o f this action to the Court o f Ap
peals, 4th Circuit, that all public schools in the city of
Norfolk, Virginia, be racially balanced, will violate the
constitutional rights of these intervenors and all others
similarly situated.” (R. p. 1026)
On July 27, 1970, plaintiffs moved the Court for an
order joining the Council of the City of Norfolk and the
individual members thereof as parties-defendant. Plaintiffs
urged that such joinder was necessary to insure that what
ever orders the District Court might enter would be binding
on all parties having responsibility for the operation of
Norfolk public schools (R. p. 996). This motion was denied
4
by the District Court on July 29, 1970 (Tr. Vol. X X X V I,
p. 39).
On July 27, 1970, the last day on which the board was
permitted by the Court to file its plan, the board met and
approved a plan which was on that day fded with the Court
(R. p. 999).
The plan filed by the board contained schedules showing
the estimated results anticipated in the racial mix o f the
student bodies of each school. (See Appendix pages 4
through 17, and School Board Exhibits 1-1 and 1-3
[1970]; R. pp. 1000-18.) For a comparison of the ele
mentary enrollment under the board’s 1970 plan with that
o f the “ Long Range Plan” condemned in the June 22
opinion, see Government’s Exhibit 3 [1970] (A . pp. 20-21).
The plan also contained a “ Revision of Stolee Plan A ”
and a “ Revision of Stolee Plan C” and the estimated results
under each plan. The Stolee A revision consists of seven
groupings or clusters of three schools each and indicates
the board’s best judgment of the “ grouping required within
the constraint of having contiguous zones.” (School Board
Ex. 1-4 [1970] A. p. 6; R. p. 1017.)
The Stolee C revision indicates the board’s best judgment
of the “ groupings necessary for the desegregation of all of
the elementary schools north of the Eastern Branch of the
Elizabeth River.” This revision would cluster or pair all
but thirteen of the fifty-four elementary schools and would
result in a minimum racial mix of 20% in all but five of
the elementary schools. (See A. pp. 16-17 and School Board
Exhibit 1-5 [1970]; R. pp. 1013-14.)
The school board made it clear that it did not favor any
of the plans which would provide any significantly addi
tional racial mix. It pointed out that the revised Stolee plans
were submitted “ [i]n order that the Court may compare
5
the disadvantages of any such plan(s)” (A . p. 6; R. p.
1002).
On August 4, 1970, the plaintiffs filed exceptions to the
plan of the school board (A . pp. 18-19; R. pp. 1037-39).
Plaintiffs objected to the assignment provisions for each
level of education, the failure of the board to provide (free)
transportation for all pupils, to the special facilities and
program provision of the plan, and to failure of the plan
to protect black administrators and teachers.
The United States filed exceptions on August 3, chal
lenging the elementary assignment plan, the rising senior
provision, the absence of free transportation for indigent
students and for students exercising their rights under the
majority to minority transfer provision, the failure of the
board to protect black administrators and teachers, and the
absence of reporting provisions (R. pp. 1033 and 1034).
On August 5, 1970, the United States filed a submission
purporting to contain two alternative plans for the opera
tion of the elementary schools (R. pp. 1040-42).
After two days o f hearings held on August 11 and
August 12, 1970, the Court filed a Memorandum-Order on
August 14. The Court overruled plaintiffs’ exceptions and
approved the board’s plan, with certain modifications at the
elementary level. (A . pp. 22-44; R. pp. 1060-87).
Plaintiffs filed their notice of appeal on August 18, 1970
(R. p. 1093).
On August 17, plaintiffs moved for an injunction pend
ing appeal to restrain the defendants from refusing to im
plement for the 1970-71 school year, the Stolee plan or
some other plan which would effectively desegregate each
school operated by the school board (R. p. 1090). The mo
tion was denied by the District Court (R. p. 1092).
On August 27, 1970, the court entered an order formally
approving the board’s plan with certain modifications (R.
6
pp. 1100-1103). The order required the board to file on or
before September 15, 1970, “ a schedule setting forth for
the system as a whole and for schools at each level of the
system” certain statistical data including the numbers and
percentages of white and black students in each school.
Portions o f this report, which was filed on September 22,
1970, are reproduced herein (A . pp. 49-51).
Defendant-intervenors filed their Notice of Appeal on
August 20, 1970. (R. p. 1097). That appeal, which is be
ing considered together with this appeal, is designated No.
15,045. The School Board of the City of Norfolk filed its
Notice of Appeal on August 27, 1970. (R. p. 1106). That
appeal, designated No. 15,046, is also being considered at
this time.
ST A T E M E N T OF FACTS
The pertinent facts concerning the Norfolk school system
during the 1969-70 school year were as cited in this Court’s
June 22, 1970 opinion, v iz :
“ Approximately 56,600 pupils, of whom 32,600 are
white and 24,000 are black, attend the Norfolk schools.
During the 1969-70 school year the board operated five
senior high schools. One of these was all black, and
more than half of Norfolk’s black high school pupils
attended it. The other four had enrollments ranging
from 9% to 53% black.
“ O f the eleven junior high schools, five enrolled about
77% of the district’s black junior high pupils. Four of
these schools were virtually all black and one was 91 %
black. At the other extreme, three junior high schools
were 92% to 97% white. The remaining three schools
had black enrollments of 12%, 16%, and 54%.
“ The district had 55 elementary schools. Eighty-six
per cent of the black pupils attended twenty-two schools
7
which were more than 92% black. In contrast, 81%
of the white pupils attended twenty-five that were more
than 92% white. The remaining- eight schools had
student bodies from 10% to 75% black.
“ During the 1969-70 school year, most of the schools
could be racially identified by the composition of their
faculties. At only two o f the seventy-three schools
did the assignment of faculty reflect the racial compo
sition of the district’s teachers, which is approximately
34% black and 66% white. Throughout the district
only 16% of the teachers were assigned across racial
lines.
“ The evidence clearly depicts a dual system of schools
based on race.” Brewer v. School Board o f City o f
Norfolk, No. 14,544 (C.A. 4, June 22, 1970).
High Schools
At the time the board decided on its plan, black high
school students constituted from 36% to 38% of the high
school population. The board recognized that if a minority
of white students was assigned to Booker-T, there was a
danger that many white students would not show up and
that resegregation would occur. Dr. McLaulin indicated
that “ the best opportunities for stabilization” would be
offered with 65% white and 35% black at Booker-T (Tr.
Vol. X X X V II, page 141).
The high school plan approved below contained a rising-
senior option. The board believed that most of the seniors
would exercise their option and remain at the schools they
attended in previous years (Tr. Vol. X X X V II, page 153).
Clearly, it expected 75% to 80% white enrollment at Lake
Taylor, Granby and Norview and 65% to 70% black at
Booker-T (Tr. Vol X X X V II, p. 153). This expectation
was realized in the September 16 enrollment data:
8
Total % White °fo Black
Granby High 2218 75 25
Lake Taylor High 2513 77 23
Norview High 2388 72 28
Washington High 1854 17 83
Maury High 2133 45 55
T otal Senior H igh 11,106 59 41
The high school assignment was made b j adjusting- the
boundary lines which were in effect last year. In some cases,
non-contiguous geographical zones were utilized (See
School Board Ex. 1-1 [1970]). Dr. McLaulin admitted
that by using non-contiguous zones and by adjusting the
zone lines, the five high schools could have been racially
balanced as under the Long Range Plan which the board
had proposed to achieve by 1972 (Tr. Vol. X X X V II, pp.
134-d36). However, the board abandoned its plan to
balance the high schools and rejected all options for further
desegregation at the high school level because of the ap
parent opposition of black and white children and their
parents (Tr. Vol. X X X V II, pp. 134, 241, 291).
Dr. McLaulin, the principal architect of the school
board’s plan, indicated that in view of the fact that over
forty per cent of Norfolk’s pupils are black, he did not con
sider a school containing a 10% racial minority of students
a desegregated school. He indicated that his goal in prepar
ing the plan was to achieve “ a critical mass of students in
a school of a given race, whether they be black students or
white students” and that as a general guide, in his judg
ment, a school with a racial minority of 25 per cent or less
would not have such critical mass (Tr. Vol. X X X V II, pp.
146 and 151 [1970]).
9
Junior High Schools
The Enrollment Report shows that 55% of the junior
high school pupils are white and 45% are black.
The feeder plan adopted by the board for the junior high
assignment resulted in the following enrollment in the city’s
ten junior high schools:
Total % W h ite % Black
Azalea Gardens Jr. 1441 9 9 1
Campostella Jr. 1134 1 99
Ruffner Jr. 1042 7 93
Northside Jr. 1377 90 10
Jacox Jr. 791 15 85
Norview Jr. 1204 65 35
Rosemont Jr. 891 62 38
Willard Jr. 1161 57 43
Lake Taylor Jr. 1224 56 44
Blair Jr. High 1454 60 40
T o t a l J r . H ig h 11,719 55 45
The five schools first listed above, which enroll 49% of
the junior high pupils, are clearly racially identifiable. None
of the five possesses the “ critical mass” as defined by the
board’s expert.
The following information, which was taken from the
enrollment report (A . p. 49), shows the racial character of
the junior high schools as they are currently operating under
the court approved plan:
1 0
100% 100% Minority Minority less All
Black White 10% or less than 25% Schools
C l a ss if ic a t io n of Ju n io r H ig h S ch ool E n ro llm e n ts
Number of Schools 0
Students in Each Classification:
Total Students
Number 0
Percentage 0
Black Students
Number 0
Percentage 0
White Students
Number
Percentage . .
0 4 5 10
0 4994 5785 11,719
0 42% 49%
2244 2917 5296
- 42% 55%
0 2750 2868 6423
0 43% 45%
As is indicated above, 55% of the black junior high school
students, 45% of the white junior high school students and
49% of all junior high students attend schools that are
racially identifiable.
Elementary Schools
The board described its elementary plan as “ an area-
attendance plan under which children residing with an at
tendance area will attend the school serving that area (A .
p. 6, R. p. 1001). With the exception of several minor
changes in the elementary lines which were effected prior
to this Court’s June 22 decision, the elementary plan is
virtually the same plan which was condemned by this Court
in its previous decision. The plan anticipated that 16 schools
would remain all black, 9 would be all white, 11 would en
roll 10% or less black students. Only 5 of the 54 schools
would enroll racial minorities of at least 25%. The overall
percentage at the elementary level is 56% white and 44%
black.
11
When compared with the Long Range elementary plan,
27 of the 54 schools in the proposed plan had the identical
percentage of black and white students and 42 of these
schools had percentages within 5 percentage points of that
indicated in the rejected plan. A comparison of the results
expected under the two plans is contained on Government’s
Ex. 3 (A . pp. 21-22).
The modifications ordered by the District Court amended
the school board plan by grouping 15 elementary schools
in five separate clusters of 3 schools each (A . p. 37; R. p.
1079). These five clusters are among the seven indicated by
the school board in the revision of Stolee A which was filed
with the July 27, 1970 plan (A . p. 14; R. p. 1011). The
racial percentages resulting from the modified plan are
shown on the board’s enrollment report (A . pp. 49-51).
Under the modified plan, 21 of the 551 elementary schools
enrolled pupils of only one race, 32 o f the 55 schools enrolled
racial minorities of 10% or less, and 36 o f the 55 schools
enrolled racial minorities of less than 25% (A . pp. 49-51).
The following information, which was taken from the
enrollment report (A . pp. 49-51), shows the racial character
of the elementary schools as they are currently operating
under the court approved plan:
1 Only 54 schools are shown on Gov. Ex. 3 [1970] (A. pp. 20-21).
Norview Elementary is divided into Norview Elementary and Nor-
view Annex to add an additional school in the Enrollment Report
(A . p. 50).
12
100% 100% Minority Minority less All
Black White 10% or less than 25% Schools
C l a ssif ic a t io n of E l e m e n t a r y S ch ool E n r o llm e n ts
Number of Schools 14 7
Students in Each
Classification:
Total Students
Number
Percentage
7595
24%
3865
12%
Black Students
Number
Percentage
7595
52%
White Students
Number
Percentage
3865
22%
32 36 55
17,736 20,793 31,8222
56% 65%
9604 10,164 14,639
66% 69%.
8132 10,629 17,183
47% 62%
Sixty-nine per cent of the black elementary pupils, 62%
of the white elementary pupils and 65% of all elementary
pupils attend racially segregated schools under the plan
approved by the District Court.
All Schools
The enrollment report submitted by the school board
reveals the extent to which desegregation has occurred in
the City of Norfolk under the modified plan. The informa
tion printed below shows that 62% of all black students,
52% of all white students, and 57% of all students are still
attending racially segregated schools.
2 The Enrollment Report shows a total elementary enrollment of
31,632. Addition of the individual school enrollments, however, gives
a total enrollment of 31,822.
13
C l a ssif ic a t io n of A ll S ch ool E n ro llm e n ts
100%
Black
100%
White
Minority
10% or less
Minority less
than 25%
All
Schools
Number of Schools 14 7 36 43 70
Students in Each
Classification:
Total Students
Number
Percentage
7595
14%
3865
7%
22,730
42%
30,945
57%
54,647
Black Students
Number
Percentage
7595
31%
11,848
48%
15,198
62%
24,436
White Students
Number
Percentage
3865
13%
10,882
36%
15,747
52%
30,211
T ranspor t ation
The number of students estimated to be transported for
1970-71 was determined by counting last year’s (1969-70)
trip requirements and adding to that number an estimate of
the trips needed for 1970. The number of 1970 trips was
determined by counting the total number of pupils to be
transferred away from each school as indicated by the par
ticular plan under consideration and dividing by 60. For
example, the transportation requirements for the revision
of Stolee A were ascertained by counting by school the
total number of pupils assigned to a different school. The
number for each school was then divided by 60 to determine
the number of trips required. To this number was added
the number of trips needed by schools not changed by the
plan. See Plaintiff’s Ex. 3 [1970] and Tr. Vol. X X X V III
pp. 379, 384.)
The estimate of the elementary requirements under the
school board’s plan was based on the full 37 trips made in
1969 plus 23 new trips which were determined by counting
the total number of pupils transferred to a different school
14
and dividing by 60. The same procedure was followed in
making the estimates at all three levels of education (Tr.
Vol. X X X IX pp. 403-4).
The estimated requirements for the Revised Stolee C
were determined in the same manner. For each school, the
number of pupils transferred to a different school was
divided by 60 to determine the number of trips. The total
number o f trips was then added to the trips for schools
not grouped. Each trip was counted as one bus in deter
mining the number of buses required (Tr. Vol. X X X V III
pp. 355, 360, 381-85 and Plaintiff’s Ex. 4 [1970]). In
determining the number of trips, where there were less
than sixty pupils they would be counted as one trip and
assigned one bus (Tr. Vol. X X X V III p. 357).
In all areas where the bus company had no prior exper
ience in transporting pupils, they assumed that 100% of the
students transferred to a different school would ride on a
special bus (Tr. Vol. X X X V III pp. 344-45, 359), regard
less o f the existence of regular line service (Tr. Vol.
X X X V III pp. 345-46), regardless of the proximity of the
pupils to the school (Tr. Vol. X X X V III pp. 360-61, Tr.
Vol. X X X IX pp. 436-38), even in cases where the pupils
lived next door to the school (Tr. Vol. X X X IX pp. 436-38).
The company did not take into consideration the pupils who
are transported by their parents or in car pools, pupils who
drive or ride with others, or pupils who walk to school (Tr.
Vol. X X X V III pp. 359-361).
The company assumed that each trip would require 45
minutes regardless of the distance of the trip and even
though many trips would only require 6 to 8 minutes (Tr.
Vol. X X X IX pp. 427-30, 432-34 and 439-43). Although
in previous years many trips have been combined on one
run, no such effort had been made in arriving at the 1970
estimates (Tr. Vol. X X X IX pp. 403-404). Moreover, trips
for each school are listed independently, although two
15
schools are located in the same area (Tr. Vol. X X X V III
pp. 393-96).
An analysis of the 1969-70 special bus schedule route
indicates that the average trip is in the range of 20-25
minutes rather than 45 minutes (Sch. Bd. Ex. 3 p. 5 and PX
2). However, the company allocated 45 minutes for each
trip. The bus company official conceded that he could
shorten many trips by picking up pupils at a central place
rather than winding through each neighborhood to pick up
children. He stated that he had considered but had not imple
mented a policy of one stop in a central area (Tr. Vol.
X X X IX p. 435).
The company official indicated that only 75 or 77 buses
were available for special school routes during the peak
morning hours. However, in view of his admission that
buses from the morning peak period became available as
early as 8:30 A.M., it is obvious that a different staggering
of openings would make more vehicles available for special
routes.
Mr. Little admitted that no allowance had been made
for special runs which were discontinued or unnecessary
after the 1969-70 school year (Tr. Vol. X X X IX pp. 412-
18).
A R G U M E N T
I .
Norfolk’s Plan And Its Deliberate Failure T o Vindicate Immediate
And Urgent Constitutional Rights Constitute A Flagrant Vio
lation O f This Court’s Orders In This Case.
A
The Board’s Actions Demonstrate An Overt Hostility
To The Mandate O f This Court
Notwithstanding 14 years of litigation seeking to end
racially segregated education in the city’s public schools,
16
more than one-half of the Norfolk’s public school children
are assigned by the school board to racially segregated
schools. Notwithstanding the mandate of this Court follow
ing its June 22, 1970 opinion, the Norfolk School Board
filed and the Court below approved a plan which assigned
most of Norfolk’s children to racially segregated schools.
The order entered on this Court’s mandate directed the
board to submit a plan for unitary schools for the 1970-71
school year. The board responded by adopting a plan which
at the elementary level was patterned on an area-based or
neighborhood-school concept and which was nearly identical
to the plan rejected by this Court in the previous appeal,
and at the junior and senior high level the plan assigned
approximately one-half of the children to racially segre
gated schools.
In the preamble of its plan the board stated:
“ In accomplishing all of the mixing of races of pupils
that can be reasonably attained, the School Board has
attempted to preserve an educationally sound school
system, but in certain instances, the requirements of
the Courts for racial mix are contrary to the best judg
ment of the School Board.” (A . p. 4; R. p. 1000).
In spite of the consensus by all parties to this litigation
that extensive transportation of students will be necessary
to effect meaningful integration the plan states:
“ The School Board has never in the past and does not
now consider the operation by it o f a bus system for
the transportation of pupils between home and school
to be either necessary or educationally desirable. It has
not construed the court decisions and orders in this case
to require the inauguration of such a system.
“ The implementation of any Stolee-type plan is limited
by the capacity of the public bus transportation system
17
as it may be rearranged to provide maximum effi
ciency.” (A . pp. 6, 7; R. p. 1000).
As expressed by the Superintendent, the attitude of the
board has been:
“A. * * * This was not a matter of choosing what
we wanted. We had what we wanted in the other plan.
Q. You are referring to the long range plan?
A. That’s right. W e had what we wanted in the
other plan.” (Tr. Vol. X X X V II, p. 287)
This defiant attitude by the defendants, -which has been
demonstrated over the years, has been apparent since the
June 22 decision of this Court.
Although the order on the mandate was entered on June
23, the board did not decide on its plan until July 27, the
last day for its filing with the Court. The plan it finally
submitted practically disregarded the requirements of this
Court. In fact, no other plan considered by the board pro
vided for less desegregation than the one it selected (Tr.
Vol. X X X V II, pp. 166-7).
The board acknowledged that additional transportation
was required to substantially increase the desegregation
provided by its plan. Yet, it failed to give the transporta
tion requirements of its plans to the transit officials until
July 30 or later (Tr, Vol. X X X V III, p. 342). Moreover,
the information finally given the transit company was
grossly inflated and patently unrealistic.
The plaintiffs offered to show that an ample supply of
used buses was available to the Virginia Transit Com
pany, but that the board had made no inquiry of the com
pany concerning additional transportation facilities (Offer
of Proof of Plaintiffs, Tr. Vol. X X X V II, p. 231-3).
18
The board’s action in welcoming the Interveners into
the case to fight for freedom of choice and neighborhood
schools while opposing the joinder of the City Council
which could appropriate funds needed for implementing de
segregation orders is further evidence of the board’s atti
tude.
B
The Board Permitted Impermissible Considerations To
To Affect Its Decisions
It is clear that the board’s decision to limit desegregation
of the high schools and of the other levels of education has
been based in part on the consideration of the opposition of
white and black parents and children (Tr. X X X V II, pp.
134, 241, 291). The fear of resegregation has been cited
as a reason for limiting the amount of desegregation in
many areas of the board’s activity.
The public’s unwillingness to accept certain amounts of
bussing to accomplish desegregated schools has been cited
by the defendants and the Court on several occasions.
This Circuit has laid to rest all notions that community
opposition can defeat the equal protection rights of black
children to receive an integrated education. Walker v.
County School Board o f Brunswick County, 413 F.2d 53
(4th Cir. 1969) (per curiam ); Hawthorne v. County
School Board of Lunenburg County, 413 F.2d 53 (4th Cir.
1969); Swann v. Charlotte-Mecklenburg,___F .2d___ (4th
Cir., No. 14,517 and 14,518, May 26, 1970). See also
Monroe v. Board o f Commissioners, 391 U.S. 450 (1968).
Notwithstanding this Court’s opinion in this case and
Swann, supra, the board continues to rely on the area
based or neighborhood school concept to justify its elemen
tary plan. As this Court stated in Swann :
1 9
“ The district court properly disapproved the school
board’s elementary school proposal because it left about
one-half of both the black and white elementary pupils
in schools that were nearly completely segregated.”
II.
This Court Should Now Order Implementation O f The Alternative
Plan In The Record Which All Parties Agree Is The Best Plan
T o Totally Desegregate The School System.
In the June 22 opinion in this case, this Court issued the
following instructions:
“ The district court shall direct the school board to sub
mit a plan for unitary schools on or before July 27,
1970. The plan may be based on suggestions made by
the government’s expert witness, Dr. Michael J. Stolee,
or on any other method that may be expected to pro
vide a unitary school system.”
Dr. McLaulin, who prepared the board’s plan, frankly
admitted that, given Dr. Stolee’s purposes ( desegregating
all of the schools without regard to an area based limita
tion), the Stolee plan was as good as could be drawn (28
Tr. 97-98).
In its current plan, the board states:
“ As shown by the previous evidence in this case, any
plan for this City effecting substantially more racial
mix at the elementary level than herein provided for
must inevitably be developed along the lines proposed
by Dr. Stolee.” (A . p. 6; R. p. 1002)
Although the District Court and all parties below recog
nize that the Stolee C series is the only plan to totally de
segregate the Norfolk school system, it is now apparent
that if such plan is to be ordered, it must be ordered by this
Court.
2 0
“Alexander v. Holmes County Bd. of Ed., 396 U.S. 19
(1969), and Carter v. West Feliciana School Bd., 396
U.S. 290 (1970), emphasize that school boards must
forthwith convert from dual to unitary systems. In
Nesbit v. Statesville City Bd. of Ed., 418 F.2d 1040
(4th Cir. 1969), and Whittenberg v. School Dist. of
Greenville County, ---- F.2d ...... (4th Cir. 1970), we
reiterated that immediate reform is imperative.”
(Swann v. Charlotte-Mecklenburg Bd. of Educ., supra)
C O N C L U SIO N
The picture presented by this appeal is only slightly
different from that in the previous appeal. The school sys
tem is slightly less segregated than it was last May. The
white citizens opposing the Brown decision have now for
mally entered the case and are fighting at the side of— and
with the cooperation of— the school board to defeat the
rights of the black plaintiffs. The United States of America
in the lower court took a position nearly identical with that
of the school board and has declined to join in the appeal to
this Court. Moreover, the District Judge still proclaims that
he will not order substantial relief for the black plaintiff
class.
Since 1956, when this litigation was commenced, only
the black plaintiffs have remained constant. The record re
veals some signs that the frustration of 15 years of segrega
tion and defeat is beginning to take its toll. An increasing
number of blacks are now openly demanding separation.
Because of the inordinate delays in effecting relief for the
plaintiff class, the rule of law is now facing a growing chal
lenge which promises to increase with the passage of time.
For the reasons stated above, the judgment of the Dis
trict Court should be reversed and the defendants should
21
be required to implement the plan prepared by Dr. Michael
J. Stolee (referred to as the Stolee C series) or some other
plan which will create a unitary system at the earliest prac
tical date.
Respectfully submitted,
H enry L. Marsh, III
O f Counsel for Appellants
H enry L. M arsh , III
S- W. T ucker
214 East Clay Street
Richmond, Virginia 23219
V ictor J. A she
Suite 702-Plaza One
St. Paul’s Boulevard & Plume Street
Norfolk, Virginia 23S10
Louis R. L ucas
525 Commerce Title Building
Memphis, Tennessee 38103
Jack Greenberg
James M. N abrit, III
N orman J. Ch a c h k in
10 Columbus Circle, Suite 2030
New York, New York 10019
Counsel for Appellants
A P P E N D I X
A P P E N D I X
TABLE OF C O N TEN TS
App. Page
Order of United States District Court—filed June 23, 1970 ......... 1
Plan of School Board, 1970-71— filed July 27, 1970 .................... 4
Exhibit 1-A— Senior High Enrollment .................................... 9
Exhibit 2—Junior High School Feeder Plan............... ............ 10
Exhibit 3-A— Elementary School Enrollment...... .................... 12
Exhibit 4-A— Revision of Stolee Plan “A ” ............................. - 14
Exhibit S-A— Revision of Stolee Plan “ C” ----------------- -------- 16
Plaintiff’s Exceptions to Plan— filed August 4, 1970 .................... 18
Comparison of Long Range Plan With 1970 Plan [Government
Exhibit No. 3]— filed August 12, 1970 ...................... ............. 20
Memorandum of United States District Court-—filed August
14, 1970 ................................ ............................................. -....... 22
Order of United States District Court—filed August 27, 1970 ....... 45
School Enrollment— September 16, 1970 ......................... -.......... - 49
ORDER
Filed June 23, 1970
The Court having received a copy of the opinion of the
United States Court of Appeals for the Fourth Circuit,
filed June 22, 1970, and in anticipation that the mandate
shall be received forthwith, and
In obedience to the opinion of said United States Court
o f Appeals for the Fourth Circuit, the Court, acting sua
sponte, doth
Order that—
(1) The defendants shall submit a plan for unitary
schools on or before July 27, 1970.
(2 ) The plan may be based on the suggestions made
by the Government’s expert witness, Dr. Michael J. Stolee,
or on any other method that may be expected to provide a
unitary school system.
(3 ) The plan shall immediately desegregate all senior
high schools.
(4 ) The defendants shall explore reasonable methods of
desegregation of all elementary and junior high schools,
including rezoning, pairing, grouping, school consolidation,
and transportation. If it appears that black residential areas
are so large that all schools cannot be integrated, the plan
must assure that no pupil is excluded because of his race
from a desegregated school.
(5 ) In any school remaining predominantly black, the
plan must make available to such black pupils, on an inte
grated basis, such special classes, functions and programs
as will afford such black children an introduction to inte
gration. Any plan must provide for the assignment of black
pupils attending predominantly black schools to integrated
schools for a substantial portion of their school careers.
App.2
(6 ) The plan shall freely allow majority to minority
transfers and shall provide transportation by bus or com
mon carrier to any pupil desiring to exercise the majority
to minority transfer right. No percentage limitation shall be
imposed upon such transfer right other than the fact that
it be a majority to minority transfer.
(7 ) The plan must provide for the assignment o f facul
ties, subject to exceptions for specialized faculty positions,
so that in each school the racial ratio shall be approximately
the same as the ratio throughout the system, same to be
effective with the school year beginning September 1970.
The foregoing is substantially verbatim with the require
ments of the United States Court o f Appeals for the Fourth
Circuit. The entry o f this order does not in any manner
indicate agreement with the findings or procedure.
The plaintiff and plaintiff-intervenors shall file, on or
before August 3, 1970, any exceptions to said plan.
Assuming that exceptions will be filed, a hearing on
same will be conducted on August 11, 1970, beginning at
9:30 a.m. No requests for a continuance will be considered
as the time schedule fixed by the United States Court of
Appeals for the Fourth Circuit is such that it is impos
sible to grant any continuance.
Any plan approved by this Court must be effective in
September 1970, and it should be noted that the district
court has no authority or power to stay the execution of
any order approving such plan. Any stay order must be
granted by the United States Court of Appeals for the
Fourth Circuit or the United States Supreme Court.
Once again, the appellate court has declined the invita
tion to define an “ integrated” school, a “ desegregated”
school, or a “unitary” school system. An appropriate guide
line would assuredly assist the school boards and lower
courts. While it appears from the opinion that all schools
App. 3
need not be “ integrated” if the size of the black residential
areas are so large that it is impossible to do so, no suggestion
is made as to where these areas may be located, although
this factual information was available in the record. In
attempting to interpret the opinion of the appellate court,
even though the Court of Appeals does not expressly so
decide, this Court is of the view that the appellate court
has effectively approved racial balancing for all schools
with the possible exception of the elementary schools in
Berkley-Campostella area. To accomplish this end result
extensive cross-bussing will be required. Although the ap
pellate court says nothing as to the impossibility o f obtain
ing school buses for the school year beginning September
1970, it is obvious that such is impossible. The only solution,
if it can be referred to in that manner, is for the School
Board to contract with the Virginia Transit Company for
as many buses as possible, and then stagger the opening and
closing of all schools to meet the transportation problem,
irrespective of inconveniences to pupils and faculty.
The Court does not construe the opinion as requiring free
transportation to anyone, although the opinion does require
that transportation by bus or common carrier shall be pro
vided for pupils exercising the majority to minority transfer
provision. Whether, as to these pupils, free transportation
must be provided is an open question. As to Booker T.
Washington High School, “desegregation” must be effected
by September 1970. To accomplish this purpose massive
bussing of white children to the school, to replace black
children who must be moved to another school, is required.
The Clerk will forward certified copies of this order to
all counsel o f record.
/ s / W alter E. H offman
United States District Judge
At Norfolk, Virginia
June 23,1970
App. 4
T H E SC H O O L B O AR D O F T H E C IT Y O F N O R F O L K PLAN
F O R U N IT A R Y SC H O O LS FO R T H E 1970-71 Y E A R
Filed July 27, 1970
I.
P urpose.
The Plan is designed to effectuate a constitutionally ap
propriate unitary school system in compliance with the
requirements of the Decision of the United States Court
of Appeals for the Fourth Circuit, entered on June 22,
1970, and the Order of the United States District Court for
the Eastern District of Virginia entered pursuant thereto
on June 23, 1970. In accomplishing all of the mixing of
races of pupils that can be reasonably attained, the School
Board has attempted to preserve an educationally sound
school system, but in certain instances, the requirements of
the Courts for racial mix are contrary to the best judgment
of the School Board.
II.
Faculty.
Teachers will be assgined in the best interests o f the
school system to the end that faculties o f the schools will
reflect the ratio of available white and Negro teachers in
the system for the Plan year.
Instructional and supervisory teaching personnel, not
assigned to a specific school, will approximately reflect the
ratio of white and Negro teachers in the system.
The system has approximately two-thirds white and one-
third Negro teachers. Ratios and numbers are subject to
reasonable variances and to administrative necessities under
the limitations of teacher qualifications and program re
quirements, but no adjustments will be made to avoid racial
balance of faculties.
App.5
III.
School Organization.
A. Senior High Schools.
The City is divided into five (5 ) senior high school at
tendance areas, with each area served by a single school
and designated by the name of such school. Subject to
provision for the rising-senior option hereinafter set forth,
children residing within an attendance area will attend the
school serving that area. The boundaries of the senior high
school attendance areas for the Plan year are shown on the
map identified as “ Map— Senior High Schools,” attached
hereto as Exh ibit 1 and the estimated results thereof in
terms of racial mix of pupils are as shown on Exh ibit 1-A.
Work toward constructing a new high school on Tide
water Drive at the head of Mason Creek was suspended
upon disapproval of the Long Range Plan in connection
with which that site was determined. The construction o f a
new high school at a site near the present Washington High
School is proposed, subject to effective implementation of
this overall Plan.
B. Junior High Schools.
Children are assigned to junior high schools through a
feeder system under which the graduates of each elementary
school are assigned to a particular junior high school. The
elementary schools selected to feed each of the junior high
schools and the results in terms of racial mix o f each school
are set forth on Exh ibit 2.
C. Elementary Schools.
The Board has explored reasonable methods of desegre
gation, including rezoning, pairing, grouping, school con-
App. 6
solidation, and transportation. The Plan proposed by the
Board is an area-attendance plan, under which children
residing within an attendance area will attend the school
serving that area. The boundary lines o f each attendance
area are shown on the map identified as “ Map— Elementary
Schools,” attached hereto as E x h ib it 3, and the estimated
results thereof in terms of racial mix o f pupils in each
school are as shown on the schedule attached hereto as
E xh ib it 3-A.
The School Board recognizes that its judgment as to the
reasonableness of the Plan will be reviewed by the Courts.
As shown by the previous evidence in this case, any plan
for this City effecting substantially more racial mix at the
elementary level than herein provided for must inevitably
be developed along the lines proposed by Dr. Stolee. In
order that the Court may compare the disadvantages of any
such plan, the grouping required within the constraint of
having contiguous zones is shown on the map identified as
“ Revision of Stolee Plan A ,” attached hereto as Exh ibit
4, and the estimated results thereof in terms of racial mix
are as shown on Exh ib it 4-A. The disadvantages en
countered with groupings necessary for the desegregation
o f all o f the elementary schools north of the Eastern Branch
of the Elizabeth River are shown on a map identified as
“ Revision of Stolee Plan C,” attached hereto as Exh ib it 5,
and the estimated results thereof in terms o f racial mix are
as shown on E xh ib it 5-A.
D. Transportation o f Pupils.
The School Board has never in the past and does not
now consider the operation by it of a bus system for the
transportation of pupils between home and school to be
either necessary or educationally desirable. It has not con-
App. 7
strued the court decisions and orders in this case to require
the inauguration o f such a system.
The implementation of any Stolee-type plan is limited by
the capacity of the public bus transportation system as it
may be rearranged to provide maximum efficiency.
IV.
T ransfer P rovisions .
Any pupil will be permitted to transfer from the school
to which he is assigned where his race is in the majority to
a school which has a minority of his race and has available
space in grade. Rules of uniform application designed to
encourage desegregation will be established by the School
Board. The administrative procedure for such transfers
shall be readily available to each child. At such time as the
transportation requirements can be determined, the best
available transportation will be arranged for transferring
students at the expense of the student.
V.
S p e c ia l F a c il it ie s and P rograms.
There are to be a number of special schools and programs
which are not specifically provided for above.
Norfolk Vocational Technical Center, situate on the
Military Highway, established in September, 1968, pro
vides for daily instruction on a half-day basis to children
from all of the City’s high schools. The racial composition
of the Center approximately reflects the racial composition
of the high school student body. The Center is operating
successfully and its programs will be maintained.
; Several programs are conducted under provisions of Title
I o f the Elementary and Secondary Education Act. By
their terms, the programs are designed for the benefit of the
App. 8
disadvantaged children. They are operated by the School
Board on a desegregated basis, but involve primarily Negro
children because of the high correlation between Negro
children and the disadvantaged.
The School Administration will develop compensatory
educational methods for use in any school which remains
predominantly Negro. Compensatory programs will include
such elements as reduced teacher-pupil ratio, revised ad
ministrative organization for instruction, individualized in
struction, supplementary pupil services, and augmented cul
tural and recreational activities.
All pupils will be assigned to integrated schools for a
substantial portion of their school careers, most for at
least half o f it. Special classes, functions, and programs
such as those set forth above will be available to pupils in
predominantly Negro schools on an integrated basis.
VI.
A d m in i stration .
The School Administration will make such administrative
transfers of classes of children or individual children as are
desirable for the orderly operation of the public schools of
the City, such transfers being necessary from time to time
for various reasons which include but are not limited to
the following: to prevent overcrowding of a school building,
to comfortably fill a school building, or to adjust for dam
age to or destruction of a school building, provided that such
transfers will not be made to perpetuate segregation.
The School Administration will also make such adminis
trative transfers of classes of children or individual children
as are desirable to provide for the needs of children for
special subjects, to provide for the needs of mentally or
physically disabled children, or to relieve hardships on chil-
App. 9
dren or their parents or guardians, provided that such trans
fers will not be made to perpetuate segregation.
In the event a child’s residence is moved from one at
tendance area to another during a school year, the child may,
at the option of his parent or guardian, complete such
school year at the school which he is attending at the time
his residence is moved.
In the event the residence of a child who has begun the
eleventh grade is moved from one attendance area to
another, the child may, at the option of his parent or
guardian, remain through graduation in the school in which
he began the eleventh grade.
A rising senior who is assigned under this Plan to a
different high school from that attended in the preceding
year may, at the option of the parent or guardian, remain
through graduation at the school to which he was assigned
for the preceding year.
E X H IB IT 1-A
Sen io r H igh S chools
Estimated Enrollment and
Racial Distribution
School
Estimated,
E nrollm ent*
P ercentage
W h ite
P ercen tage
N egro
Granby 2250 75% 25%
Lake Taylor 2300 65% 35%
Maury 1900 50% 50%
Norview 2300 70% 30%
Washington 2300 48% 52%
* Includes approximately 700 ninth grade pupils.
N o te : Estimated enrollment and percentages of white and Negro
pupils does not take into account the option of seniors to re
main in the same school where they completed the 11th grade.
App. 10
E X H IB IT 2
Ju n io r H ig h S chool F eeder P lan
Estimated Enrollment and
Racial Distribution
1970-71
Junior H igh
S chools
F eed er E lem entary
Schools
Estim ated
Enrollm ent
P ercen tage
W h ite
P ercen tage
N eg ro
Azalea Gardens Bay View
Tarrallton
Little Creek Elementary 1300 100% 0%
Blair
Larchmont
Stuart
Taylor
Sewells Point
Camp Allen
Meadowbrook
Madison
Monroe ( West of
Colonial Avenue) 1250 64% 36%
Campostella
Gatewood
St. Helena
Lincoln
Tucker
Diggs Park
Campostella Elementary 1000 0% 100%
Jacox
Coleman Place
West
Roberts Park
Bowling Park 1025 35% 65%
Lake Taylor
Carey
Fairlawn
Easton
Poplar Halls
Lee
Chesterfield
Liberty Park 1200 60% 40%
App. 11
Junior H igh
S chools
F eed er E lem entary
S chools
Estimated
E nrollm ent
P ercentage
W h ite
P ercentage
N egro
Northside
Willoughby
Ocean View
Calcott
Oceanair
Granby Elementary
Suburban Park 1200 88% 12%
Norview
Norview Elementary
Lindenwood
Sherwood Forest
Lansdale 1250 65% 35%
Rosemont (Upon
the completion
of additions)
Oakwood
Crossroads
Larrymore 850 70% 30%
Ruffner
Goode
Ingleside
Young Park
Titus
Tidewater Park
Pineridge 1360 25% 75%
Willard
Lakewood
Lafayette
Ballentine
Marshall
Monroe (East of
Colonial Avenue) 1225 60% 40%
* Pretty Lake Primary, East Ocean View Primary and Little Creek Primary will
feed into Little Creek Elementary School.
App. 12
E X H IB IT 3-A
E l e m e n ta r y S chools
Estimated Enrollment and
Racial Distribution
1970-71
Elementary
Schools Grades
Estimated
Enrollment
Percentage
White
Percentage
Negro
Ballentine 1-6 285 98% 2%
Bay View 1-6 815 100% 0%
Bowling Park 1-6 775 0% 100%
Calcott 1-7 840 100% 0%
Camp Allen 1-6 900 80% 20%
Campostella 1-6 200 25% 75%
Carey 1-6 400 0% 100%
Chesterfield 1-7 600 13% 87%
Coleman Place 1-7 950 100% 0%
Crossroads 1-6 975 90% 10%
Diggs Park 1-6 615 0% 100%
Easton 1-7 475 94% 6%
East Ocean View 1-4 190 0% 100%
Fairlawn 1-6 460 98% 2%
Gatewood 1-6 400 0% 100%
Goode 1-6 475 0% 100%
Granby 1-7 700 84% 16%
Ingleside 1-6 475 96% 4%
Lafayette 1-6 300 50% 50%
Lakewood >■, 1-6 780 83% 17%
Lansdale 1-6 700 95% 5% .
Larchmpnt 1-6 625 72% 28%
Larrymore 1-6 1075 . 77% 23%
Lee kn: 1-6 600 17% 83%
App. 13
Elementary
Schools (Grades
Estimated
Enrollment
Percentage
White
Percentage
Negro
Liberty Park 1-7 625 0% 100%
Lincoln 1-6 320 0% 100%
Lindenwood 1-6 650 23% 77%
Little Creek Elementary 4-6 730 100% 0%
Little Creek Primary 1-4 615 100% 0%
Madison 1-7 800 0% 100%
Marshall 1-7 600 0% 100%
Meadowbrook 1-6 540 80% 20%
Monroe 1-6 950 17% 83%
Norview 1-6 725 72% 28%
Oakwood 1-6 490 30% 70%
Oceanair 1-6 795 100% 0%
Ocean View 1-7 850 94% 6%
Pineridge 1-6 370 93% 7%
Poplar Halls 1-6 550 94% 6%
Pretty Lake 1-4 105 100% 0%
Roberts Park 1-6 545 0% 100%
St. Helena 1-6 400 0% 100%
Sewells Point Elementary
and Annex 1-6 720 80% 20%
Sherwood Forest 1-6 725 100% 0%
Stuart 1-6 850 17% 83%
Suburban Park 1-6 500 85% 15%
Tarrallton 1-5 725 98% 2%
T aylor 1-6 275 82% 18%
Tidewater Park 1-6 500 0% 100%)
Titus 1-6 610 0% 100%
Tucker 1-6 450 0% 100%
West 1-6 500 0% 100%
Willoughby 1-6 650 90% 10%
Young Park 1-6 650 0% 100%
App. 14
E X H IB IT 4-A
R evision of Stolee
P la n A
Elementary Estimated Percentage
Group Schools Grades Enrollment White
1 Calcott 5-6 650
Crossroads 1-4 900
Oakwood 1-4 550
2100 75%
2 Granby 1-4 820
Suburban Park 1-4 620
Stuart 5-6 610
2050 57%
3 Larchmont 1-4 675
Madison 5-6 525
Taylor 1-4 435
1635 50%
4 Lakewood 1-4 825
Lafayette 1-4 365
Lindenwood 5-6 500
1690 60%
5 Coleman Place 1-4 825
Ballentine 1-4 250
Roberts Park 5-6 575
1640 70%
6 Lansdale 5-7 700
Pineridge 1-4 425
Bowling Park 1-4 925
2050 55%
7 Liberty Park 5-6 570
Ingleside 1-4 430
Poplar Halls 1-4 550
1550 65%
Percentage
Negro
25%
43%
50%
40%
30%
45%
35%
App. 15
Elementary
Group Schools Grad
S chools N o t G rouped
Bay View 1-6
Camp Allen 1-6
Campostella 1-6
Carey 1-6
Chesterfield 1 -7
Diggs Park 1-6
Easton 1-7
East Ocean View 1-4
Fairlawn 1-6
Gatewood 1 -6
Goode 1-6
Larry more 1-6
Lee 1-6
Lincoln 1-6
Little Creek
Elementary 4-6
Little Creek
Primary 1-4
Marshall 1-7
Meadowbrook 1-6
Monroe 1-6
Norview 1-6
Oceanair 1-6
Ocean View 1-7
Pretty Lake 1-4
St. Helena 1-6
Sewells Point
Elementary and
Annex 1-6
Sherwood Forest 1-4
T arrallton 1 -5
Tidewater Park 1-6
Titus 1-6
T ucker 1-6
West 1-6
Willoughby 1-6
Young Park 1-6
Estimated Percentage Percentage
Enrollment White Negro
815 100% 0%
900 80% 20%
200 25% 75%
400 0% 100%
600 13% 87%
615 0% 100%
475 94% 6%
190 0% 100%
460 98% 2%
400 0% 100%
475 0% 100%
1075 77% 23%
500 0% 100%
320 0% 100%
730 100% 0%
615 100% 0%
600 0% 100%
540 80% 20%
950 17% 83%
725 72% 28%
795 100% 0%
850 94% 6%
105 100% 0%
400 0% 100%
720 80% 20%
725 100% 0%
725 98% 2%
500 0% 100%
610 0% 100%
450 0% 100%
500 0% 100%
650 90% 10%
650 0% 100%
App. 16
E X H IB IT 5-A
R e v i s i o n o f S t o l e e
P l a n C
Elementary Estimated Percentage
Group Schools Grades Enrollment White
A Willoughby 5-6 555
Ocean View 1-4 835
Young Park 1-4 600
1990 70%
B Oceanair 1-4 800
Titus 5-6 375
1175 55%
C Bayview 1-4 820
Goode 5-6 450
1270 65%
D Pretty Lake 1-4 140
East Ocean View 1-4 100
Carey 5-6 240
480 50%
E Tarrallton 1-4 930
Lee 5-6 420
1350 65%
F Little Creek
Elementary &
Primary 1-4 1450
Monroe 5-6 945
2395 50%
G Granby 1-4 570
Suburban Park 5-6 540
Marshall 1-4 450
1550 55%
H Sherwood Forest 1-4 825
West 5-6 350
1175 70%
I Fairlawn 1-4 510
Easton 1-4 475
Tidewater Park 5-6 490
1475 60%
Percentage
Negro
30%
45%
35%
50%
35%
50%
45%
30%
40%
App. 17
Elementary Estimated Percentage Percentage
Group Schools Grades Enrollment White Negro
J Calcott 5-6 650
Crossroads 1-4 900
Oakwood 1-4 550
2100 75% 25% .
K Larchmont 1-4 675
Madison 5-6 525
Taylor 1-4 435
1635 50% 50%
L Lakewood 1-4 825
Lafayette 1-4 365
Lindenwood 5-6 500
1690 60% 40%
M' Coleman Place 1-4 825
Ballentine 1-4 250
Roberts Park 5-6 575
1640 70% 30%
N Lansdale 5-7 700
Pineridge 1-4 425
Bowling Park 1-4 925
2050 55% 45%
O Liberty Park 5-6 570
Ingleside 1-4 430
Poplar Halls 1-4 550
1550 65% 35%
Schools Not Grouped
Larrymore 1-6 1075 77% 23%
*Norview 1-6 725 72% 28%
Stuart 1-7 750 50% 50%
Meadowbrook 1-6 540 80% 20%
Camp Allen 1-6 900 80% 20%
*Sewells Point 1-6 720 80% 20%
Chesterfield 1-7 600 13% 87% :
Campostella 1-6 200 25% 75%
T ucker 1-6 450 0% 100%
Diggs Park 1-6 615 0% 100%
Gatewood 1-6 400 0% 100%
St. Helena 1-6 400 0% 100%
Lincoln 1-6 320 0% 100%
* Includes A nnex
E XC E PT IO N S T O T H E PLAN
Filed August 4, 1970
1. The assignment of black and white students on a
50%-50% basis to Maury and on a 52%-48% basis to
Washington fails to erase the racial identifiability of those
schools when their racial composition is compared with
that of other high schools; and such failure carries the
potential of future increases in the percentage o f black
students at Maury and Washington Schools.
2. The rising senior provision of the plan will result
in a substantial maladjustment in the number of black and
white students attending each school as nearly all of the
seniors will elect to remain in the schools which they, re
spectively, attended in 1969-70 and thus to contribute to the
maintenance of the racial identifiability which such school
then had.
3. At the junior high and elementary school levels the
plan proposes obviously white schools and obviously black
schools contrary to the admonition of the Supreme Court
in Green v. County School Board of New Kent County.
4. The plan fails to provide for the transportation of
pupils to the schools to which they are assigned. Having
established and nurtured the dual system, the board may
not transfer to the victims o f that system the financial
burdens incident to its disestablishment.
5. The special facilities and program section of the plan
proposes a substitution of shadow for substance. Brown
dealt with the right of black children to racially non-dis-
criminatory school assignments. This suit was brought to
obtain for black children racially non-discriminatory school
assignments. The rejection o f this suit’s object and the
App. 18
App. 19
substitution of special classes function and programs is a
gross denial o f due process of law.
6. The eleventh grade option provision of the plan is
totally without justification and will delay the elimination
o f the segregated character of the high schools.
7. The plan should provide that the assignment of prin
cipals, assistant principals and other administrative per
sonnel will result in at least as many black administrators
in each o f the above mentioned categories as are presently
employed in the school system.
8. The plan should provide that the board, in its re
cruitment and hiring practices, will not reduce the per
centage of black teachers employed by the Norfolk school
system below the level presently employed by the system.
W herefore , plaintiffs pray that the plan o f the school
board be rejected and that the Court will order the imple
mentation of the plan presented to the Court by Government
Expert, Dr. Michael J. Stolee and referred to as the “ C”
series.
/s / H e n r y L. M arsh , III
Of Counsel for Plaintiffs
App. 20
G O V E R N M E N T E X H IB IT N O . 3
Filed August 12,1970
P r o j e c t e d E l e m e n t a r y S c h o o l E n r o l l m e n t A n d
P e r c e n t a g e N e g r o U n d e r T h e S c h o o l B o a r d ' s L o n g
R a n g e P l a n F i l e d 6/21 /69 A n d T h e P l a n F i l e d
7/27/70
Total Enrollment Percentage Negro
School
7/27170
Plant
Ballentine 285
Bay View 815
Bowling Park 775
Calcott 840
Camp Allen 900
Campostella 200
Carey 400
Chesterfield 600
Coleman Place 950
Crossroads 975
Diggs Park 615
East Ocean View 190
Easton 475
Fairlawn 460
Gatewood 400
Goode 475
Granby 700
Ingleside 475
Lafayette 300 .
Lakewood 780
Lansdale 700
Larchmont 625
Larrymore 1,075
Lee 600
Liberty Park 625
Lincoln 320
Long Range
Plan2
7/27/70
Plan1
Long Range
Plan2
675s 2 25s
850 0 0
850 100 100
850 0 0
735 20 25
225 75 75
500 100 100
725 87 85
875 0 0
970 10 35
600 100 100
150 0 0
475 6 10
540 2 0
500 100 100
425 100 100
800 16 15
420 4 10
3 50 3
750 17 15
700 5 10
675 28 25
1,000 23 20
575 83 100
625 100 100
450 100 100
App. 21
School
Total Enrollment Percentage Negro
7127170
Plant-
Long Range
Plan2
7/27/70
Plant
Long Range
Plan2
Lindenwood 650 550 77 100
Little Creek Elementary 730 675 0 0
Little Creek Primary 615 575 0 0
Madison 800 750 100 100
Marshall 600 675 100 100
Meadowbrook 540 575 20 20
Monroe 950 1,000 83 100
Norview 725 700 28 30
Oakwood 490 70
Oceanair 795 750 0 0
Ocean View 850 875 6 10
Pineridge 370 425 7 10
Popular Halls 550 525 6 10
Pretty Lake 105 150 0 0
Roberts Park 545 525 100 100
St. Helena 400 325 100 100
Sewells Point 720 600 20 25
Sherwood Forest 725 725 0 2
Stuart 850 550 83 40
Suburban Park 500 625 15 12
Tarrallton 725 825 2 0
Taylor 275 400 18 15
Tidewater Park 500 425 100 100
Titus 610 550 100 100
Tucker 450 500 100 100
West 500 400 100 100
Willoughby 650 600 10 10
Young Park 650 575 100 100
1 A s stated in Exhibit 3 -A , School B oard Plan filed July 28, 1970.
2 A s stated in Defendant’s Exhibit N o. IS, dated O ctober 8, 1969.
3 L ong Range Plan provided fo r pairing o f Ballentine and Lafayette for
1971-1972.
App. 22
M E M O R A N D U M
Filed August 14, 1970
Remanded to this court on June 22, 1970, with directions,
to prepare and file a new plan by July 27, 1970, we are again
met with an opinion which presents no guidelines to assist
the School Board and the court. Despite efforts by the
district court to obtain appropriate definitions of “ dual
system,” “ unitary system,” “ segregated,” “ integrated,”
“ racially unidentifiable,” no appellate ruling is forthcoming.
Issues such as “ racial balancing” and massive compulsory
“ cross-bussing” were avoided by the majority opinion.
Many express findings of fact were made in the district
court opinions.1 It does not appear that the appellate court
is in disagreement with any particular finding; the dif
ferences lie in the legal conclusions to be drawn from such
findings.2 Indeed, it would appear that the fact-finding
process by the district court is of little or no significance in
school desegregation cases, irrespective of the weight stated
to be given to district court’s findings in the implementing
decision in Brown v. Board of Education, 349 U.S. 294,
75 S.Ct. 753, 99 L.Ed. 1083 (1955).
It is apparent from the majority opinion, and the special
concurring opinions of Judges Sobeloff and Winter, that
desegregation or integration is now paramount to sound
1 Beckett v. School Bd. of the City of Norfolk, 302 F. Supp. 18,
and 308 F. Supp. 1274 (E.D. Va. 1969).
2 No significance is attached to the fact that certiorari was denied
(Mr. Justice Black dissenting) on June 29, 1970. The opinion of the
United States Court of Appeals was filed on June 22, 19701. The
petition for a writ of certiorari was delivered to the Clerk of the
United States Supreme Court on Friday, June 26, at noon. The
Supreme Court, faced with a long-established precedent of disposing
of all pending cases by the last Monday in June, denied the petition
on Monday, June 29, 1970. Time did not permit an intelligent analysis
of the problems presented in this case.
App. 23
education principles. Only the special concurring opinion of
Judge Bryan mentions the word “ education.” The seven
teen (17) cardinal principles established by the School
Board are abolished, with Judges Sobeloff and Winter
characterizing them as “ spurious.”
The rejection of these principles and the innovation seek
ing to implement them, wherein children, white or black,
will do better in schools which are predominantly white, is
grounded upon the first Brown decision, Green v. County
School Bd. of New Kent County, 391 U.S. 430 (1968), and
Alexander v. Holmes County Ed. o f Ed., 396 U.S. 19
(1969). With deference to the superior wisdom of the ap
pellate court, it is difficult to read into the cited cases any
prohibition against such principles and the plan implement
ing them. True, race is a factor considered, but in any school
desegregation plan submitted throughout the nation the
issue of race remains of utmost importance. In the Fourth
Circuit we are already required to assign the faculty on a
principle of racial balancing without regard to the qualifica
tions of the particular teacher. W e are forced to assign
black children into predominantly white schools and white
children into predominantly black schools to an extent which
is at least beyond token desegregation.
Not a single word in any of the three opinions filed
by the Court of Appeals mentions the testimony of Dr.
Thomas F. Pettigrew, the recognized expert in school inte
gration cases upon whom the School Board relied in formu
lating and presenting its optimal plan which has now been
rejected. Nevertheless, in the separate concurring and dis
senting opinion of Judge Craven, with Chief Judge Hayns-
worth and Judge Bryan joining therein, in Brunson v. Bd.
o f Trustees o f School District No. 1 of Clarendon County,
South Carolina, ......F. (2d) ....... , argued on the same day
as the Norfolk case, D'r. Pettigrew’s testimony in the Nor
App. 24
folk case is substantially accepted by these three judges
even though the witness did not testify in the South Caro
lina case. Judge Craven’s opinion in the South Carolina
case states that “ judges, in fashioning remedies, cannot
ignore reality.”
Shortly thereafter, Judges Sobeloff and Winter saw fit
to file a separate concurring opinion in the South Carolina
case, severely criticizing Judges Craven, Haynsworth and
Bryan for accepting the Pettigrew philosophy, and dis
counting the testimony of Dr. Pettigrew given in the Nor
folk case.
It is frustrating to think that the appellate court, ap
parently in disagreement as to the legal effect and conclu
sions drawn by the most experienced man in the nation who
admits to being an integrationist, has discussed Dr. Petti
grew’s testimony in a case in which he never testified and,
at the same time, failed to mention him in a case in which
he did testify. One can readily imagine that what would be
forthcoming if a district court in Virginia relied upon testi
mony in a South Carolina case in arriving at its conclusons.
While the Pettigrew philosophy is, for the moment, dead,
anyone experienced in the field will predict that it must, in
due time, be restored if integration is to be successful.
Especially is this true when the legal effect o f appellate
court rulings is applied with equal force throughout the
fifty states. Unfortunately, Dr. Pettigrew and the Norfolk
City School Board are three to five years ahead o f the times.
In addition to the fact that the benefits of sound educa
tion have now been clearly subordinated to the requirement
that racial bodies be mixed, the majority opinion of the
Court of Appeals pointedly states that—
(1 ) Booker T. Washington senior high school must
be “ desegregated” for the school year beginning Sep
tember 1970.
App. 25
(2 ) Faculties in each and every school must be
racially balanced, effective with the school year begin
ning September 1970 in the approximate ratio of white
to black faculty members prevailing in the several
branches o f the school system; to-wit, senior high
schools, junior high schools, and elementary schools.
(3 ) Junior high schools must be “ desegregated” for
the school year beginning September 1970.
(4 ) Elementary schools, to the extent reasonably
possible, must be “desegregated” for the school year
beginnnig September 1970.
There is no ambiguity with reference to the mandate
relating to faculty assignments and it requires no discus
sion. While faculty assignments had previously been made
in anticipation of the approval of the plan now rejected by
the Court of Appeals, it is apparent that there will have to
be some further shuffling of these assignments in order to
comply with the ruling of the higher court. However, the
School Board had substantially accomplished the racial bal
ancing of faculties prior to June 22, 1970. The now pro
posed plan will complete this undertaking.
As to the assignment of pupils, the district court made
an express finding that a “ racially unidentifiable” school or
a “ desegregated” school was one in which 10 percent of
the pupils were of a different race than the remaining 90
percent.3 The Court of Appeals did not disapprove of this
finding. W e have no guidance as to what amounts to “ token
desegregation” and where to draw the line between a “ de
segregated” school and “ token desegregation.” Since only
Judges Sobeloff and Winter have openly advocated the
3 Beckett v. School Board of City of Norfolk, 308 F. Supp. 1274,
1291.
App. 26
adoption of the Stolee plan,4 and since the appellate court
has expressly avoided the use of the term “ racial balanc
ing,” which is exactly what the Stolee plan “ C” provides
and which was admitted by all counsel at the hearings in
the district court, it must be assumed that some plan, short
of racial balancing, may possibly meet with favor on the
appellate level. Convinced that the total Stolee plan would
bring about a complete disruption of the school system and
in the absence of a clear mandate from the Court of Ap
peals, the Stolee plan “ C” cannot be directed by the district
court.
There is a reference in the majority opinion indicating
what should be done “ if it appears that black residential
areas are so large that not all schools can be integrated.”
This is in line with the majority opinion in the Charlotte
case, Swann v. Charlotte-Mecklenburg Board of Educa
tion, ...... F. (2d) (4 Cir., May 26, 1970), certiorari
granted (June 29, 1970), where it was stated “ that not
every school in a unitary school system need be integrated.”
W e must assume that the use of the word “ integrated” is
synonymous with the word “ desegregated,” as most as
suredly that does not correspond with the use of these
words by Dr. Pettigrew which are quoted with approval by
Judge Craven in Brunson, supra.
The principal difficulty with engrafting any exception
to the edict of the Court of Appeals requiring all schools to
be desegregated is the absence of any guideline as to what
would pass muster on the appellate level. The district court,
in rejecting massive compulsory cross-bussing called for
by the Stolee plan “ C,” has emphatically stated that the
4 The majority opinion written by Judge Butzner does state: “ The
plan may be based on suggestions made by the government’s expert
witness, Dr. Michael J. Stolee, or on any other method that may be
expected to provide a unitary school system.”
App. 27
Stolee plan is “ impossible” and “ beyond comprehension.”
It could readily be pointed out— and is already in the
record from prior hearings— that there are black residential
areas which are so large that not all schools can be desegre
gated by using “ reasonable means,” but this may be tanta
mount to an avoidance of the evil day if the N AACP or
the Civil Rights Division should see fit to appeal.
Faced with this dilemma, we look to other alternatives.
Judge Butzner’s opinion in the Charlotte case does suggest
that, in determining who should be bussed and where they
should be bussed, it is appropriate to consider the age o f the
pupils, the distance and time required for transportation,
the effect on traffic, and the cost in relation to the Board’s
resources. If age and time factors are important, it stands
to reason that there perhaps should be less bussing with
the younger child. However, the neighborhood school con
cept was effectively discarded in the Charlotte case and
judges Sobeloff and Winter, in the separate concurring
opinion in the Norfolk case, refer to the neighborhood
school concept as a “ shibboleth.” Thus, according to the
higher court, the neighborhood school attended by so many
of the young children is a judicial outcast except to the ex
tent that the particular school serves an appreciable per
centage of both races.
S e n i o r H i g h S c h o o l s
The new plan as filed by the School Board on July 27,
1970—all as directed and scheduled by the Court of Appeals
— clearly meets any standard required by the appellate
court on the senior high school level. The senior high schools
will be, in fact and law, racially desegregated to the fullest
extent possible. With approximately 1,104 white children
being assigned to Booker T. Washington located in the hard
core of the central city— all of whom will be required to
App. 28
use public transportation— it follows that an approximately
equal number of black pupils must resort to public transpor
tation to attend Lake Taylor, Norview and Granby. Since
Maury is already the victim of resegregation, it is not pos
sible to permit any black children from the former Wash
ington area to attend that school. Presumably many of the
black children will be drawn from the Berkley-Campostella
area which is on the southern end of Norfolk separated from
the balance of Norfolk by the Eastern Branch of the Eliza
beth River. As many of these children have previously used
the bus to reach Booker T. Washington, it is unlikely that
the longer bus ride (about 8 miles) to Lake Taylor will
seriously disrupt the prevailing system.
The N AACP and Civil Rights Division object to the
senior high school plan even though it provides for 52%
black and 48% white in Booker T. Washington, heretofore
substantially all black, and 50-50 at Maury. The grounds
for this objection are that “ rising seniors” in each high
school are being given the option of remaining in the high
school which they attended this past year. It is true that
this will reduce the percentage of white pupils at Booker T.
Washington to approximately 35% for the 1970-71 school
year but, even so, it remains a heavily desegregated school.
The figure would adjust itself for the 1971-72 school year.
The “ rising senior” option has been in effect for many
years. It merely gives to the boy or girl, completing the
eleventh grade, the privilege of remaining in that par
ticular school in order that the student may graduate with
his or her class. The “ rising senior” proviso is contained in
many desegregation plans throughout the country and,
indeed, in former hearings was approved by experts testi
fying at the instance of the N AACP and Civil Rights Divi
sion. It is not, as noted above, being used to avoid desegre
gation. While the “ rising senior” proviso is applicable to
App. 29
all senior high schools, its effect upon the racial composi
tion of the student body will only be noticed at Booker T.
Washington where there are probably 500 to 600 seniors.
The option to remain in Washington senior high school is
not automatic. The senior student must affirmatively elect
to remain there; otherwise he will attend the senior high
school to which he would be assigned according to his
residence.
There is a further provision called an eleventh grade
election which could not possibly affect any substantial
number of students. For many years there has been a rule
that if a student, once having started in the eleventh grade,
moves from the school areas to another school area within
the city, he is given the right to complete the eleventh grade
and, if he passes, he then becomes entitled to the ‘‘rising
senior” option in order to graduate with his class. The
evidence discloses that this rule could not affect more than
a handful of pupils in the system.
As to Maury High School, the “ rising senior” option
will have little or no racial effect as the percentage of whites
and blacks has been substantially identical for the past year.
It is not clear as to exactly what the NAACP wants with
respect to senior high schools. They urge racial balancing
which, on the senior high level, would be approximately
60-40, perhaps a bit more than 60% white. On the other
hand, assuming that the blacks at Booker T. Washington
exercise their “ rising senior” options, the racial balance for
1970-71 will be approximately 65-35 black. They argue,
along with the Civil Rights Division, that the “ rising
senior” option should be abolished, thus creating a 52-48
ratio for the 1970-71 session at Washington. This, if con
sidered from the racial balance standpoint, would mean
that at least 12% more whites should be added. However,
the N AACP urges that the blacks should remain the pre
App.30
dominant number at Washington as it is a school located in
the hard core of the central city and the blacks are proud
of their school.
In any event, the objections of the N AACP and Civil
Rights Division to the senior high school phase of the plan
are, in the words of Judges Sobeloff and Winter, “ spu
rious.” They are, accordingly, overruled.
J u n i o r H i g h S c h o o l s
There are ten (10) junior high schools. In accordance
with the mandate of the Court of Appeals, seven will be de
segregated to the extent of 30% of one race attending each
school. As to the remaining three schools, Northside con
templates 88% white and 12% black; Azalea Gardens,
located at the extreme northeastern corner o f the city is
listed as 100% white, although there are a few blacks in
attendance; Campostella, located in the southern area of
the city and separated from the main portion of Norfolk by
the Eastern Branch of the Elizabeth River, will have less
than 10% white in attendance.
While Campostella and Azalea Gardens present an un
usual problem in that they are widely separated (approxi
mately 9 miles), the direction o f the appellate court is
interpreted to mean that every reasonable effort must be
made to desegregate any existing black school. A t the
request of the N A A C P at the hearing, since it appeared
from the paper record that Norview junior high school
would not be filled to capacity, the court directed the bussing
of approximately 150 black children from Campostella to
Norview or, at the option of the School Board, to Azalea
Gardens or Northside, or a combination of the three schools.
Counsel for the N AACP was given the opportunity to elect
which school or schools these Campostella children would
attend, but he declined to exercise this option.
App. 31
There had been no evidence introduced as to the physical
ability of Norview junior high school to accommodate the
additional ISO pupils. Action was taken solely upon the ex
hibit filed by the School Board which demonstrated that
this school had a standard operating capacity of 1,509 and
an estimated enrollment for 1970-71 of 1,250, thus leaving
apparent space for 259 students.
On the following day the School Board’s counsel met
with the court and N AACP counsel. The attorney for the
Civil Rights Division had left the city but, as to the junior
high school plan, the Civil Rights Division had not filed any
objection. The attorney for the defendant-intervenors was
likewise not present but, with respect to the narrow consti
tutional issue raised by these intervenors, the result of this
limited hearing could not adversely affect them. A stipula
tion was dictated into the record to the effect that, by
reason of the present physical condition or Norview junior
high school, the true pupil capacity was 1,250 and not 1,509.
The assignments to this school had intentionally been re
duced to 1,250 because of the physical condition of a por
tion of the school. Accordingly, the court revoked that por
tion of its prior verbal pronouncement with respect to the
bussing of 150 black children from Campostella to Nor
view.5 As Azalea Gardens and Northside, nearly 100%
white and 88% white respectively, are already filled to
capacity, there is no other available space.
It may be argued that Azalea Gardens and Campostella
should have been paired. The answer to this argument is
threefold. First, pairing on the junior and senior high school
5 Counsel for the NAACP did not except to this particular action
by the court, but reserved the right to contend that the court should
have paired Campostella and Azalea Gardens, or should have other
wise ordered a large block of Campostella pupils to be assigned to
some junior high school, with a reverse assignment of whites to
Campostella. This the court declined to do.
App. 32
level is vastly different on an educational standpoint from
pairing on the elementary level. Secondly, there is obviously
an insufficient number of buses available to accomplish this
movement and every bus used on the junior high level will
diminish the prospects of desegregation on the elementary
level which is now the critical problem. Thirdly, the dis
tance and time involved is too great to justify such drastic
action. One could argue that the opening of Azalea Gardens
and Campostella could be staggered but, according to trans
portation facilities available for 1970-71, all schools will
have to be staggered on the respective levels o f education,
with the senior high schools (except Norview) anticipating
an opening at approximately 7:45 a.m.; the junior high
schools (except Norview) opening at 8:30 a.m.; and the
elementary schools, together with Norview senior and junior
high schools, opening at 9:15 or 9:30 a.m. The reason that
the two Norview schools were selected for delayed opening
is that these schools are centrally located and are sur
rounded by many elementary trips. The buses converging on
that area may be more efficiently dispatched from that
point.
The Court o f Appeals directed the immediate desegrega
tion of all high schools. However, the appellate court fol
lowed by saying, “ With respect to elementary and junior
high schools, the board should explore reasonable methods
of desegregation” and, “ If it appears that black residential
areas are so large that not all schools can be integrated, the
school board must take further steps to assure that no pupil
is excluded because of his race from a desegregated school.”
Subject to the presentation of more specific plans, as ordered
by the appellate court, as to functions and programs on an
integrated basis, the specificity of which cannot be formu
lated until the School Board knows the problem confronting'
it, the junior high school plan as presented by the School
App, 33
Board is approved, and the objections of the NAACP are
overruled. It is noted that Campostella children will attend
Lake Taylor senior high school, with a contemplated 65-35
ratio, for at least three years and, of course, the Campostella
junior high pupils may exercise the majority-minority trans
fer privilege which has now been amended to comply with
the edict of the Court of Appeals.
E l e m e n t a r y S c h o o l s
Removing the transfer of 150 children from Campostella
enabled a few more buses to become available for use on
the elementary level.
The plan as submitted by the School Board, while deemed
to be reasonable to the district court under the circum
stances, did not meet the test of forced desegregation irre
spective of costs and convenience as commanded by the
Court o f Appeals.
The short answer to the problem of thoroughly desegre
gating the elementary schools lies in the nonavailability of
buses. Immediately after the Court of Appeals opinion on
June 22, 1970, the School Board conferred with the City
Council and was advised that no additional funds were
available, or could be made available, for bussing children
to and from schools. The School Board budget is committed
to the maximum, with no funds available from that source.
For years, Norfolk has used the local transit company
for transportation of school children, the details of which
are fully set forth in the prior opinions of this court. School
tickets are sold at reduced rates, but must be purchased by
the children. While the issue of expense of transportation
was previously before the Court of Appeals in this case, the
higher court said nothing about the expense except to touch
upon the question as related to majority to minority trans
fers. With the exception of the latter point, the district
App. 34
court now holds that the expense o f transportation must
be paid by the children or their parents or guardians. The
N AA CP argues that the court should order that the cost
of transportation, especially as to the low-income group,
be paid by the School Board or the City of Norfolk. This
court knows of no constitutional right to enter such an
order as this is a matter for the legislative body to deter
mine; and, as noted above, the School Board has no excess
funds and has no power to levy and collect taxes. The cost
o f providing free transportation to all pupils, according to
the School Board plan as submitted, is approximately $600,-
000 per annum. This figure will be increased to an unknown
amount by reason o f the grouping of elementary schools as
ordered herein.
Experience demonstrates that very few pupils on any
level of education avail themselves of the majority to minor
ity option. This is cogent evidence of the fact that the chil
dren and their parents, white and black, prefer the neigh
borhood school which they are now being substantially
required to forego. It is acknowledged that the majority to
minority provision cannot be made effective if transporta
tion expense is involved. W e hazard the guess that there
would be no material change if transportation for these
pupils is provided at the expense of the School Board.
Nevertheless, the special concurring opinion of Judge Bryan
specifies that pupils exercising the majority to minority
option must be provided free transportation. Judge Butz-
ner’s majority opinion merely states that this select group
of pupils must be provided “ transportation by bus or com
mon carrier.” W e interpret the intent of the Court of Ap
peals as requiring free transportation by bus or common
carrier for this particular group, from a point at or near the
school from which the majority school is located to a point
at or near the minority school to which the pupil elects to
App. 35
attend. W e reject the notion that taxicabs or station wagons
must render door-to-door service. While the court is aware
of the fact that the School Board has nothing in its budget
to provide for this item of expense, and the court is of the
opinion that it is exceeding its authority in ordering the
same, there remains the cold fact that the Court o f Appeals
has ordered it paid. There is no alternative available to the
district court. Administratively the children can be pro
vided bus tickets by the school administration.
The expert from the Virginia Transit Company was the
only witness as to the available buses. Based upon the School
Board’s plan, the required number of trips per morning
was 238 with only 73 buses available.8 Thus, it is estimated
that 91 trips will be required on the senior high level; 87
trips on the junior high level; and 60 trips on the elementary
level— a total of 238 as contrasted with 115 for the 1969-70
school year.
For the afternoon, the total number of trips will increase
to 285 based upon past experience. However, it may not
increase by approximately 20% as per previous records be
cause the grouping, now required by the court at the direc
tion of the Court of Appeals, will undoubtedly overtax the
morning facilities and tend to reduce the afternoon increase,
due largely to the fact that fewer parents will be delivering
their children to the school in the morning.
It is argued that many of these trips for 1969-70 were
occasioned by the freedom of choice assignment plan which
will no longer be in effect. The record does not reflect that
the school system operated on any wholesale freedom of
choice plan for 1969-70, and there is no evidence that any 6
6 It will be noted that each bus will be required to make an average
of 3.2 trips per bus. Some will make less than the average and some
more, dependent upon the length of the trip and traffic conditions
prevailing.
App. 36
large number of children used public transportation under
any freedom of choice setup.
A comparison of some of the 1969-70 route trips will
reveal a slightly less need for buses if the same school plan
was made effective for 1970-71. For example— and the
principal relief afforded— it was necessary to transport
children in the Camp Allen area to Willoughby during 1969-
70 because the new Camp Allen elementary school was not
completed. It is ready for occupancy as of September 1970,
and bus service to this new school will be minimized. There
are other instances, especially in the new areas allocated by
the School Board plan, where there may be an overload of
service for pupils residing in the immediate vicinity of a
school, and who would probably walk b> school.
On the other hand, the required grouping of 15 elemen
tary schools will substantially tax the facilities, as these
groupings eliminate any possibility of walking to school
for at least four out of six years for most children. More
over, the relief afforded by parents providing private trans
portation in the morning hours will be seriously diminished
because of (1 ) the staggering of the opening o f schools, and
(2 ) the greater distance involved for the parent.
The N AACP and Civil Rights Division would have this
court arbitrarily act without regard to the facts. If the
transcript is ever reviewed,7 the record will demonstrate
that this court, in an effort to squeeze the last drop of
blood as ordered by the Court of Appeals, has placed a
terrific burden upon the Virginia Transit Company and the
School Board, in further amending the School Board plan
by grouping 15 schools in five separate clusters.
7 The transcripts and exhibits at the time of the last appeal in this
case were neatly packed in large boxes, taped, and taken to the Court
of Appeals. Later they were taken to the Supreme Court. The boxes
were returned with the same taping in the identical places and were
never opened by either appellate court.
App. 37
Accordingly, the elementary school plan as presented hy
the School Board will be approved as amended in the fol
lowing particulars:
Schools Grades
Estimated Bus
T rips
Group I
Lansdale 5-7 )
Pineridge 1-4 ) 15
Bowling Park 1-4 )
Group II
Granby 1-4 )
Suburban Park 1-4 ) 14
Stuart 5-6 )
Group III
Oakwood 1-4 )
Crossroads 1-4 ) 18
Calcott 5-6 )
Group IV
Lakewood 1-4 )
Lafayette 1-4 ) 14
Lindenwood 5-6 )
Group V
Larchmont 1-4 )
Madison 5-6 ) 16
Taylor 1-4 )
The right is reserved to modify the foregoing by elim
inating groups in the inverse order if the School Board,
after a more thorough study, can establish that it is impos
sible to make the transportation facilities available through
the Virginia Transit Company.
App. 38
The overall effect of this grouping from the “ numbers
game” standpoint, all of which is apparently foremost in
the minds o f certain judges, is as follows:
Schools
Number of pupils
transferred away from
each school
Group I
Lansdale 570
Pineridge 105
Bowling Park 200
T otal 875
Group II
Granby 230
Suburban Park 150
Stuart 440
Total 823
Group III
Calcott 450
Crossroads 410
Oakwood 160
Total 1,020
Group IV
Lakewood 270
Lafayette 80
Lindenwood 480
Total 830
Group V
Larchmont 200
Madison 600
Taylor 130
Total 930
App. 39
The feeder plan system under which the elementary pupils
have been heretofore assigned to certain junior high schools
will have to be amended to provide that wherever children
are required or elect to attend an elementary school outside
of the elementary school zone in which they reside during
their last year in elementary school, they shall be assigned
to the junior high school which would receive pupils from
the area in which the students reside.
As to the elementary schools remaining all black, the
court having found that it is impossible to desegregate them
for the 1970-71 session, the School Board must, in ac
cordance with the directions of the Court of Appeals, ‘ ‘make
available to pupils in the black schools special classes, func
tions, and programs on an integrated basis.” As to all ele
mentary schools except those located south of the Eastern
Branch of the Elizabeth River, the pupils are assured of
a substantially desegregated education during their junior
and senior high school level o f education.
T h e P o s i t i o n o f D e f e n d a n t s - I n t e r v e n o r s
Certain children and parents of children were granted
leave to intervene. They objected to the School Board plan
as submitted, and their objection continues to all suggested
plans, as well as the final action of the district court.
The position of these intervenors may be briefly stated
in suggested findings of fact which the court readily agrees
should be made. They are as follows:
1. The court finds as a fact that the School Board plan
as submitted and as now supplemented by the court, as well
as all of the Stolee plans and the Civil Rights Division plan
as submitted at this hearing, all require children to attend a
school other than the school closest to their homes solely
becrnse o f their color.
App. 40
2. The court finds that, under the aforesaid plans, the
children are precluded from going to the school closest to
their homes, where they could otherwise be accommodated,
solely because of their color.
3. The court finds that, under the aforesaid plans, many
children who would ordinarily walk to school will now be
required to ride buses to school at considerable expense
solely because of the insistence o f the appellate court that
racial bodies be mixed.
With these irrefutable findings of fact, the intervenors
rest their case. As an original proposition, without the aid
of judicial decisions over the past fifteen years, this court
would have little hesitancy in ruling with the intervenors
in concluding that their constitutional rights have been in
vaded. The difficulty is that the Constitution has been ju
dicially rewritten over the years in question, and it is now
apparent, from these judicial decisions which are binding
upon this trial court, that such findings as here made do not
constitute impermissible action and, indeed, are now re
quired by appellate decisions. The court must, therefore,
reject the legal conclusions asserted by these intervenors
irrespective of the findings of fact as stated herein.
O t h e r O b j e c t i o n s
The remaining objections by the N AA CP and Civil
Rights Division were either not pressed, not substantiated
by the evidence, or otherwise too frivolous to require dis
cussion.
P r i m a r y R e a s o n f o r A p p r o v i n g t h e P l a n a s
S u p p l e m e n t e d b y t h e C o u r t
It should be crystal clear that the action of the district
court now taken does not constitute a finding or conclusion
App. 41
that the final plan, or any other plan submitted at this hear
ing, is (1 ) educationally sound, (2 ) reasonable, or (3 )
in the best interest o f the children irrespective of race. We
are no longer concerned with anything except “ numbers”
and “ body mixing.” The action taken is because it is ap
parent that the Court o f Appeals is demanding forced
desegregation without regard to the principles aforesaid,
and irrespective of the inconvenience, cost and public ac
ceptance. But the very foundation o f our judicial system
is such that lower courts must obey what the higher courts
order in any given case. To that extent this district court
has reluctantly complied to the maximum permitted by the
circumstances. In short, the district judge would like to
object and except to his own actions herein.
The Supreme Court may, in time, reach many of the
problems presented. Whatever may be said by the highest
court in the land is binding upon courts of appeals and
district courts. It is impossible to predict what may be forth
coming but, when and if the Supreme Court speaks with any
reasonable clarity, the district court is then open for further
relief at the request of either party in interest.
T h e S c h o o l B o a r d
The special concurring opinion of Judge Bryan praised
the School Board in its efforts to better the offerings of
public education. Several weeks later Judges Sobeloff and
Winter wrote a special concurring opinion in which they
said:
“ Finally, we must disassociate ourselves from the un
deserved blessing conferred on the Board by our
brother Bryan. This litigation has been frustratingly
interminable, not because of insuperable difficulties of
implementation but because of the unpardonable re
App. 42
calcitrance of the defendants. The new, and spurious,
‘principles’ devised by the Board and endorsed by the
Judge as justification for the failure to desegregate fly
in the face of Brown v. Board o f Education, 347 U.S.
483 (1954), and are simply new rationalizations for
perpetuating illegal segregation.”
Times have brought about a change, either with respect
to the Constitution or the personalities of the judges. Ten
years ago in Hill v. School Board of City o f Norfolk, Vir
ginia, 282 F. (2d) 473 (1960), the then Chief Judge Sobel-
off, together with Judges Haynsworth and Boreman, had
this to say:
“ W e are mindful of the valiant and consistent efforts
Judge Hoffman has made in the past in marshalling
community support for the law and in encouraging
obedience by those charged with official responsibility.
W e give weight also to the past conduct of the School
Board and the history it has established, and to the
District Court’s finding that it is the Board’s purpose
to proceed in good faith and with reasonable speed in
compliance with the direction of the Supreme Court.”
When Hill was decided, the extent o f desegregation was
minimal. Under the guidance of the School Board great
progress has been achieved. Certainly it ill behooves two
judges, who could not have read the record in the case, to
attempt to undermine the School Board of this community.
The School Board members are powerless to refute these
biased charges, and at least Judge Sobeloff knows that the
facts will not substantiate these ill-chosen words. I have
heard many school desegregation cases, and I have yet to
find a more cooperative School Board and its attorneys.
I cannot sit idly in the background and see the Board criti
App. 43
cized in the manner exhibited by the special concurring
opinion of these judges, and I have no apology to offer in
responding.
It is quite true that this litigation has been “ frustratingly
interminable” and the reason is obvious. The Court of Ap
peals refuses to establish any guidelines which may serve
as a direction to any School Board. If the Board is to accept
all directions of the Civil Rights Division8 or any other
body, the Court of Appeals need only say so. It must be
remembered that the School Board plan, now rejected by
the Court of Appeals, was heartily approved by Dr. Thomas
F. Pettigrew, the most outstanding educator in the field
and an admitted integrationist. Dr. Pettigrew, along with
many others, feels that the quality educational system is
gradually being diluted to the point that it will soon become
polluted. When that situation develops, what happens to
the children ?
It is amazing to contrast the present words of Judge
Sobeloff with his language in Bradley v. School Board of
City of Richmond, Virginia, 345 F .(2d) 310, 323 (1965),
where he and Judge J. Spencer Bell said:
“ This is far from suggesting that children are to be
uprooted arbitrarily and bussed against their will to
distant. places merely to place them with children of
the other race.”
8 At this hearing the Civil Rights Division presented and recom
mended a revision of the groupings as suggested by the School Board.
The Civil Rights Division presented this revision through a Pro
gram Officer of HEW. It was a pitiful picture to see this young man
subjected to cross-examination by counsel, with even the NAACP
attorney objecting to the Civil Rights Division’s recommendation.
Without regard to the capacity of the schools, the numbers were
juggled. If the court adopted the Government’s suggested plan, there
would be hundreds of children receiving their education on thê school
grounds and not in the buildings. What a sorry exhibition this was,
and it assuredly demonstrates the fact that the Government is not
always right in these matters.
App. 44
Since there has been no controlling decision from the
Supreme Court on the subject of bussing since that date,
is there any wonder that the School Board cannot keep up
with the inner-workings of a judge’s mind ?
As we look back at the prior history of Norfolk’s school
case, we know that there must be many parents who will
recall the school-closing days of September 1958 to Feb
ruary 1959, when the children were without any education.
W e assume that some of these children are now parents of
youngsters entering school. Whatever may be said about
the inconvenience and expense in connection with forced
desegregation and the abandonment of the neighborhood
school concept, I am confident that the citizens of Norfolk
as a whole would far prefer that public education continue
under the direction of the School Board even though this
body has been confronted with vague and evasive directives
from the appellate court.
Since the undersigned district judge will not be available
for one week, this memorandum may be considered as an
order for appellate purposes. If no immediate appeal is to
be taken, counsel may present a more formal order during
the week beginning August 24,1970.
/ s / W a l t e r E. H o f f m a n
United States District Judge
At Norfolk, Virginia
August 14, 1970
App. 45
ORDER
Filed August 27, 1970
This cause came on again to be heard upon the P l a n f o r
U n i t a r y S c h o o l s f o r t h e 1970-71 Y e a r , filed by The
School Board of the City of Norfolk on July 27, 1970, and
the objections thereto of the plaintiffs, the plaintiff-inter-
venor, United States of America, and the defendant-inter -
venors; upon the evidence introduced at the hearings held
during the week of August 10, 1970, and the stipulations of
counsel; upon the balance of the entire Record in this cause,
including all prior proceedings and all Memoranda Opinions,
Reports and papers filed; and upon the arguments of coun
sel.
Upon consideration whereof and for the reasons set forth
in the Memorandum of the Court filed August 14, 1970,
which shall be considered as findings of fact and conclusions
of law for the purposes of Rule 52, F.R.Civ.P., it is
A d j u d g e d , O r d e r e d and D e c r e e d :
1. That the P l a n f o r U n i t a r y S c h o o l s f o r t h e
1970-71 Y e a r is hereby approved; subject, however, to the
following modifications:
(a ) That the provisions of said Plan for the assignment
of pupils to elementary schools is amended so that pupils are
assigned to elementary schools according to the area-attend
ance plan delineated on the map entitled “ Elementary School
Boundary Lines For 1970-71,” prepared by the School
Board and filed herewith as “ Exhibit A ,” which map in
dicates the boundaries of single school attendance areas and
also indicates the exterior boundaries of the attendance area
of five (5 ) groups of three (3 ) elementary schools clustered
as follows:
App. 46
Schools Grades
Group I
Lansdale 5-7
Pineridge 1-4
Bowling Park 1-4
Group II
Granby 1-4
Suburban Park 1-4
Stuart 5-6
Group III
Oakwood 1-4
Crossroads 1-4
Calcott 5-6
Group IV
Lakewood 1-4
Lafayette 1-4
Lindenwood 5-6
Group V
Larchmont 1-4
Madison 5-6
Taylor 1-4
In the event the School Board, after a thorough study,
establishes that it is impossible to make transportation fa
cilities available through the Virginia Transit Company
to accommodate all of the foregoing school clusters, it may
request modification o f the foregoing provision.
(b ) That the provisions of said Plan for the assignment
of pupils to junior high schools on the basis o f a feeder
system are adjusted to accommodate the grouping o f certain
elementary schools above required, so that pupils are as
signed to junior high schools according to an area-attend
App. 47
ance plan, as described on the map entitled “Junior High
School Boundary Lines 1970-71,” prepared by the School
Board and filed herewith as “ Exhibit B,” which map con
tains certain additional consequential adjustments required
by school capacities, transportation convenience, etc., not
substantially affecting desegregation.
(c ) Section IV of said Plan is amended to provide that
transportation required for students transferring under the
majority-minority transfer provision shall be at the expense
of the School Board, which may discharge such obligation
by furnishing bus tickets or by other means as it deems
desirable.
2. That the authority of the School Board under Sec
tion V I of the Plan to make administrative transfers of
classes and groups of children shall extend to and include
the rearrangement of the grade structure of schools, such
as by retaining the seventh grade class at the elementary
level, transferring it to the junior high school level, or by
retaining the ninth grade class at the junior high level or
transferring it to the senior high level. The following ad
ministrative transfers made subsequent to the preparation
of Exhibit B and prior to the entry hereof, involving 100
or more junior high school pupils, are hereby approved:
(a) Pupils from Titustown, North Titustown and
Carney Park to Northside from Blair.
(b ) 9th grade pupils from north of Little Creek Road
in the Rosemont area to Granby Senior High from Rose-
mont.
(c ) 9th grade pupils from east of Military Highway in
the Rosemont area and from south of Little Creek Road in
Azalea Gardens to Lake Taylor Senior High from Azalea.
(d ) Pupils from the Carey elementary school attendance
area to Willard from Lake Taylor.
3. That the objections o f the plaintiffs, the plaintiff-
intervenors and the defendant-intervenors, except as they
are incorporated in the foregoing modifications to said
Plan, are overruled.
4. That the School Board shall file with this Court on
or before September 15, 1970, a schedule setting forth for
the system as a whole and for schools at each level o f
the system
(a) the number and percent of black and white pupils;
(b ) the number and percent of black pupils assigned to
schools more than 90% black and assigned to other schools ;
(c ) the number and percent of white pupils assigned to
schools more than 90% white and assigned to other schools;
and
(d ) the number of schools with more than 90% black
pupils assigned, the number with more than 90% white
pupils assigned, and the number with 10% or more of both
such races assigned.
5. Notices of appeal filed herein prior or subsequent to
the entry of this order shall be deemed to constitute notices
of appeal from this order as well as from the memorandum/
order entered on August 14,1970.
6. That this cause shall continue on the docket of this
Court.
/s / W a l t e r E. H o f f m a n
United States District Judge
At Norfolk, Virginia
August 27,1970
App. 49
Filed September 22, 1970
S c h o o l E n r o l l m e n t a n d R a c i a l D i s t r i b u t i o n
September 16, 1970
Total % White % Black
Granby High 2218 75 25
Lake Taylor High 2513 77 23
Maury High 2133 45 55
Norview High 2388 72 28
Washington High1 1854 17 83
Total Senior High 11,106 59 41
Azalea Gardens Jr. 1441 99 1
Blair Jr. High 1454 60 40
Campostella Jr. 1134 1 99
Jacox Jr.2 791 15 85
Lake Taylor Jr. 1224 56 44
Northside Jr. 1377 90 10
Norview Jr. 1204 65 35
Rosemont Jr. 891 62 38
Ruffner Jr.3 1042 7 93
Willard Jr. 1161 57 43
Total Jr. High 11,719 55 45
Ballentine 258 92 8
Bay View 902 100
Bowling Park 781 43 57
Calcott 653 75 25
Camp Allen 1024 75 25 ,
1 Whereas 756 White pupils were assigned to Washington High
School, only 318 were in membership on September 16, 1970.
2 Whereas 250 White pupils were assigned to Jacox Jr. High
School, only 116 were in membership by September 16, 1970.
3 Whereas 205 White pupils were assigned to Ruffner Jr. High
School, only 77 were in membership by September 16, 1970.
App. 50
Campostella
Carey
Chesterfield
Coleman Place
Crossroads
Diggs Park
Easton
East Ocean View
Fairlawn
Gatewood
Goode
Granby Elem.
Ingleside
Lafayette
Lakewood
Lansdale
Larchmont
Larrymore
Lee
Liberty Park
Lincoln
Lindenwood
Little Creek Elem.
Little Creek Prim.
Madison
Marshall
Meadowbrook
Monroe
Norview Elem.
Norview Annex
Oakwood
Oceanair
Ocean View
% W h ite % Black
32 6 8
100
7 93
100
83 17
100
9 0 10
100
100
100
100
6 6 34
9 4 6
62 38
61 39
54 4 6
41 59
8 0 2 0
100
2 98
100
59 41
100
100
4 6 54
1 9 9
7 6 2 4
100
62 38
62 38
50 50
9 8 2
8 6 14
Total
147
3 4 4
591
961
6 9 6
6 5 6
4 6 8
197
4 4 6
385
4 0 4
6 5 7
4 0 0
2 8 8
686
7 4 6
661
9 7 6
521
6 9 8
3 0 9
475
7 0 8
5 5 6
6 6 9
562
535
1173
5 8 6
2 1 7
461
6 8 2
8 5 0
App. 51
Pineridge
Poplar Halls
Pretty Lake
Roberts Park
St. Helena
Sewells Pt. Elem.
Sherwood Forest
Stuart
Suburban Park
Tarrallton
Taylor
Tidewater Park
Titus
Tucker
West
Willoughby
Young Park
Total Elementary
T o t a l A l l S c h o o l s
°/o W hite % Black
56 4 4
9 0 10
100
100
100
66 34
9 9 1
62 3 8
73 27
9 7 3
52 4 8
100
100
100
100
95 5
100
54 4 6
56 4 4
Total
3 7 7
558
95
5 7 0
4 2 8
805
7 9 9
782
6 5 8
692
3 5 6
5 7 6
536
527
575
5 6 8
591
3 1 ,6 3 2
54 .4 5 7