Board of Visitors of the College of William and Mary v. Motion to Dismiss or Affirm

    Supreme Court of the United States
October Term, 1971

No. 71470

TH E  BO ARD  OF VISITO R S OF T H E  COLEEGE 
OF W IL L IA M  A N D  M A R Y  IN V IR G IN IA , et  a l .,

Appellants,

v.

ETH E L M. N ORRIS, e t c ., et a l .,
Appellees.

M O T IO N  OF APPELLEE, THE BOARD OF VISITORS OF 
VIRGINIA STATE COLLEGE, T O  DISMISS APPEAL 

OR AFFIRM JUDGMENT

E dw ard  S. H ir sc h le r  
E verette  G. A l l e n , Jr . 

Fourth and Main Streets 
Richmond, Virginia 23219 

Attorneys for Appellee



TABLE OF CONTENTS
Page

Statem ent  of th e  Case............................................................................  1

The Decision To Be Affirmed ..... ........ ........................................ 1

The Facts On Which The Opinion Is B ased............................. 3

The Findings Of The District C ou rt.........................................  5

The Holding ........................................... ...................- ................... 5

This Appeal ........................................................................... ..........  6

Q uestions P r e se n t e d ........... .......................................... —-............ -.......  6

Appellee’s Position ...............................-........-......-........................  6

Appellants’ Position .....................................-.................—-...........  10

Conclusion  ...................... -..................................................................... 15

Certificate of Service .... -................................................................. 17

TABLE OF CITATIONS

Cases

Alabama State Teachers Association v. Alabama Public School 
and College Authority, 289 F. Supp. 784 (M .D . Ala. 1968), 
aff’d. per curiam 393 U.S. 400 (1969) ...........— 11, 12, 13, 14

Bradley v. Board of Public Instruction, 10 R ace R el . L. R ep . 
117, Civ. No. 64-98 (M .D . Fla. decided March 15, 1965) .... 8

Brown v. Board of Education, 347 U.S. 483 (1954) ........................  3

Lee v. Macon County Board of Education, 317 F. Supp. 103 
(M .D. Ala. 1970), modified, No. 30944 (5th Cir., decided 
July 15, 1971) ................................................................ 7, 8, 11, 15

Lungren v. Freeman, 307 F.2d 104 (9th Cir. 1962) ......................  9

Sanders v. Ellington, 288 F. Supp. 937 (M .D. Tenn. 1968) ..7, 9, 14



Page

Sweatt v. Painter, 339 U.S. 629 (1950) rehearing denied, 340 
U.S. 846 (1950) .............................................................................  10

Thorpe v. Housing Authority of City of Durham, 393 U.S. 268 
(1969) .....     10

Zucht v. King, 260 U.S. 174 (1922) ...............................................  9

Other Authorities

Boskey and Gressman, The 1967 Changes in the Supreme Court’s 
Rules, 42 F.R.D. 139 .....................................................................  9

Miscellaneous

Fourteenth Amendment, United States Constitution...................... 2, 6

28 U.S.C. 2281 ....................................   2

F ed. R. C iv . P. 52(a) ...........................................................................  9

Supreme Court Rules:
16-1(c )  ..............................    6
16-1 (d ) ...........................................................    9

Virginia Statutes:
Acts of Assembly, 170, Ch. 461 .................................................. 2



Supreme Court o f the United States
October Term, 1971

No. 71-170

T H E  BOARD OF V ISIT O R S OF T H E  COLLEGE 
OF W IL L IA M  A N D  M A R Y  IN V IR G IN IA , et  a l .,

A ppellants,
v.

E TH E L M. N ORRIS, e t c ., et a l .,
Appellees.

M O TIO N  OF APPELLEE, THE BOARD OF VISITORS OF 
VIRGIN IA STATE COLLEGE, TO  DISMISS APPEAL 

O R  AFFIRM JUDGMENT

The Board of Visitors o f Virginia State College, one 
of the Appellees, moves that the judgment of the District 
Court for the Eastern District o f Virginia in the case of 
Ethel M. Norris, etc., et al., v. The State Council o f Higher 
Education for Virginia, et al., Civil Action No. 365-70-R, 
be affirmed or, in the alternative, that the appeal be dismissed 
for the reasons hereinafter set forth.

STATEM ENT OF THE CASE 

The Decision To Be Affirmed

On June 30, 1970, certain faculty members and students 
of predominantly black Virginia State College (Virginia 
State) and area high school students filed suit in the 
United States District Court for the Eastern District of



2

Virginia. They alleged that Virginia was still operating a 
racially identifiable dual system of higher education and 
that a planned escalation of predominantly white Richard 
Bland College (Bland) from a two year college to a four 
year college would encourage and, in fact, perpetuate a 
dual system in the area served by Bland and its neighbor, 
Virginia State. These plaintiffs sought ( i)  to enjoin the 
escalation of Bland, (ii) to require its ultimate merger with 
Virginia State and (iii) to require state officials to prepare 
a plan for the desegregation of every state-supported college 
and university in Virginia. They named the Governor of 
Virginia, the State Council of Higher Education, the Board 
of Visitors o f the College of William and Mary in Virginia 
(William and M ary), the President of Bland, and the 
Board of Visitors of Virginia State as defendants. Since 
the suit challenged the constitutionality of the Virginia Ap­
propriations Act o f 1970, Ch. 461, Item 600, p. 754 (Acts 
of Assembly 1970) (the A ct), which provided funds for 
the escalation of Bland, the Governor of Virginia and the 
State Council of Higher Education moved for a three 
judge Court pursuant to 28 U.S.C. Section 2281. The mo­
tion was granted. The District Court in an opinion by 
Judge John Butzner o f the Fourth Circuit, (Hoffman, J., 
dissenting), held that the provisions of the Act for Bland’s 
escalation violated the Fourteenth Amendment and per­
petuated a state-supported racially identifiable dual system 
of higher education. The Court enjoined the Board of 
Visitors o f William and Mary and the President of Bland 
from proceeding with escalation plans. It denied the other 
relief which the plaintiffs sought.1 (App. “ A ” - l  & 2)

1 At this writing, the case at bar has not been published in any 
printed reports. It is reproduced in its entirety in the Appendix to 
Appellant’s Jurisdictional Statement. It will be cited herein as (App. 
“ A ” ).



3

The Facts On Which The Opinion Is Based

Virginia State was segregated by law as required by 
Virginia’s Constitution and statutes, from its establish­
ment in 1882 up to the decision in Brown v. The Board of 
Education, 347 U.S. 483 (1954). Although segregation in 
education had been legally abolished, Virginia State ac­
cepted no white undergraduates and employed no white 
faculty members from 1954 until 1964, the same year that 
control o f Virginia State was transferred from the State 
Board of Education to an integrated Board of Visitors. The 
District Court found that since 1964 “ Virginia State has 
actively pursued a policy of recruiting white students and 
faculty.” (App. “ A ” -4) O f its 2,524 students 70 or 2.7% 
are white. The number o f its minority students compares 
favorably with other four year colleges in Virginia. For the 
1970-1971 academic year, its faculty and staff numbered 
255, o f which 43 or 16.8% were white, 199 or 78% were 
black and 14 or 5.2% were members o f other races.

Bland was established in 1960 as a two year branch of 
William and Mary. In the 1970-1971 academic year, 14 of 
Bland’s 841 students or 1.6% were black. Not until after 
the present action was filed in the District Court did its 
catalog mention that it was open to all students regardless 
of race. It has never had a black faculty member. Only 
recently did it even try to recruit applicants from pre­
dominantly black high schools or employ black faculty. 
William and Mary, which, as Appellants point out, is the 
second oldest college in the United States, controls the ex­
penditure of appropriations, makes rules and regulations, 
and is responsible for the selection o f the faculty and ad­
ministrative staff of Bland. All the members o f the Board 
of Visitors o f William and Mary are white. The faculty 
and administrative staff o f William and Mary are white—  
except for one black graduate student who has a part-time



4

administrative position. O f its 3,750 students, 51 or 1.3% 
are black.

As the Court below pointed out, the Virginia Commission 
on Higher Education Facilities, the State Council o f Higher 
Education of Virginia and the Governor of Virginia all 
recommended that Bland— located just seven miles from 
Virginia State— be included in the State’s two year com­
munity college system. (App. “ A ” -5) The majority opin­
ion emphasized that in “ pressing for escalation, the rep­
resentatives of William and Mary and Bland seek a goal 
almost without precedent . . . only in one other instance has 
Virginia established in the same community two full fledged 
colleges offering similar curricula and degrees.”  (App. 
“ A ” -5) The Court below said:

“ The realities o f the situation support this finding: 
the colleges are located close to each other; as four- 
year colleges they would offer substantially the same 
curricula; if Bland were escalated, white students would 
be more likely to seek their degrees at predominantly 
white Bland than at predominantly black Virginia 
State; and the part Bland now plays in sending some 
white students to Virginia State for their last two years 
would substantially decrease. (Emphasis supplied.) 
(App. “ A ” -5)

And further:

“ From the evidence, it is reasonable to infer, therefore, 
that the purpose and effect o f Bland’s escalation is to 
provide a four-year college for white students who 
reside nearby. There can be little doubt that this will 
contribute to the perpetuation o f Virginia’s dual system 
of higher education.”  (App. “ A ” -6)

These then are the basic facts condensed from the opinion 
of the Court below and, therefore, are entitled to great 
weight.



5

The Findings Of The District Court

The District Court found that:

(1 ) “ A  racially identifiable dual system o f higher edu­
cation exists in Virginia today.’ ’ (App. “ A ” ~3) It exists 
specifically in the area served by Virginia State and Bland.

(2 ) “ Bland already has a ten year history o f an all- 
white faculty and a virtually all-white student body.”  (App. 
“ A ” -8)

(3 ) “ The racial composition o f students and faculty 
at Bland and William and Mary do not permit us to predict 
confidently that Bland will soon shed its racial identity and 
be operated as ‘just a school.’ ”  (App. “ A ” -8)

(4 ) “ Escalation of Bland would hamper Virginia State’s 
efforts to desegregate its student body.”  (App. “ A ” -5)

(5 ) “ . . . the purpose and effect o f Bland’s escalation is 
to provide a four year college for white students who reside 
nearby. There can be little doubt that this will contribute 
to the perpetuation of Virginia’s dual system of higher edu­
cation.” (App. “ A ” -6)

(6 ) “ Virginia State’s increasingly integrated faculty o f­
fers a full range of courses, which Richard Bland would 
largely duplicate.” (App. “ A ” -8)

Each of these findings has substantial and adequate sup­
port in the record. None of them, on their face or on the 
record, are clearly erroneous. It is within this framework 
that the decision on whether or not to hear the case must 
be made.

The Holding

The Court below held that the provisions o f Item 600 
of the Act violated the Fourteenth Amendment to the Con­



6

stitution o f the United States. It enjoined the Board of 
Visitors of William and Mary and the President of Bland 
from escalating Bland. It denied other relief sought by the 
Plaintiffs without prejudice, and dismissed the Governor 
o f Virginia and the State Council o f Higher Education 
for Virginia as Defendants. ( App. “A ” -9 & 10)

This Appeal

The Board o f Visitors o f William and Mary and the 
President of Bland have appealed from that part o f the 
order declaring Item 600 of the Act violative of the Four­
teenth Amendment and have submitted their Jurisdictional 
Statement to this Court. Virginia State asks that the three- 
judge District Court opinion be affirmed or in the alterna­
tive that the appeal be dismissed.

QUESTIONS PRESENTED 

Appellee’s Position

Virginia State contends the lower court correctly decided 
the case based on its well-documented findings of fact. 
Thus either the decision should be affirmed or the appeal 
dismissed without reaching the broad constitutional ques­
tions which appellants press upon this Court.

Supreme Court Rule 16-1 (c )  provides for affirmation 
of the judgment o f a lower court when it is manifest that 
the questions on which the decisions of the case depend are 
so insubstantial as not to need further argument. The deci­
sion below merely answered in the affirmative the following 
question:

Did the State o f Virginia, acting through its agencies, 
William and Mary and Bland, violate its affimative 
duty to dismantle its dual system on the college level



/

when it directed that Bland become a four year college 
the result o f which would be to perpetuate the dual 
system?

Virginia State submits that it has already been answered 
in the affirmative by decisions in this and other courts.

There is no question that Virginia has an affirmative 
duty to dismantle its dual system of higher education. 
Sanders v. Ellington, 288 F. Sup. 937 (M .D . Tenn. 1968). 
Other courts have already gone far beyond the court below 
in interpreting this affirmative duty. In Lee v. Macon 
County Board o f Education, 317 F.Sup. 103 (M .D . Ala. 
1970), the three judge federal court there ordered the 
Alabama Junior College Authority to show cause:

. . why said Authority and its individual members 
should not be enjoined from  any further expenditure o f  
capital outlay funds for  junior colleges until the Mobile 
State Junior College has been transferred into a fully 
desegregated two year institution serving primarily 
Mobile and Washington Counties and is equal in 
physical facilities and curriculum to the James H. 
Faulkner Junior College.”  (Emphasis added.) 317 
F.Supp. at 111.

Going beyond merely enjoining the expansion o f a two-year 
college, the Court also ordered ( i)  immediate exchange of 
faculty members between the predominantly white and 
predominantly black schools, (ii) establishment o f definite 
attendance areas for each school, and (iii) expansion of 
the curriculum of predominantly black Mobile State Junior 
college to include a computer science program and expansion 
o f other professional programs.

The only provision of the lower court’s decree in issue on 
appeal to the Fifth Circuit involved the establishment of



definite attendance areas. Lee v. Macon County Board of 
Education, No. 30944 (5th Cir., decided July 15, 1971). 
After reviewing in some detail the steps taken by the State 
of Alabama to comply with the other provisions of the 
decree, the Court stated:

“ In view of the facts presented and developments 
which have taken place since the decree of the district 
court (as reflected by reports filed and in the record), 
we conclude to stay and postpone the effective date o f 
that portion o f the court’s decree about which com­
plaint is made on this appeal.. . . ”  Id. at 8.

The Fifth Circuit further noted that:

“ Uncontested on this appeal are provisions o f the 
decree aimed at eradicating present racial imbalance; 
these include requirements for substantial faculty inte­
gration, for significant improvement o f physical facil­
ities, and for the concomitant development and expan­
sion o f the curriculum at Mobile State.”  Id. at 7.

Accordingly, the Alabama federal courts have required 
positive action by State authorities to eliminate the dual 
system in higher education, and it is submitted that these de­
cisions are entirely consistent with the holding of the lower 
court here. The submission that the issues Appellants seek 
to raise in this Court are so insubstantial as not to need 
further argument is strongly suggested by the fact that 
the State authorities in Lee v. Macon County raised on 
appeal only the matter of definite attendance areas, and 
proceeded forthwith to comply with the other dictates of 
the lower court.

The Court below stopped short o f requiring the merger 
o f Bland and Virginia State, a remedy previously applied in 
Bradley v. Board o f Public Instruction, 10 R A CE REL.



9

L. REP. 117, Civ. No. 64-98 (M .D . Fla., decided March 
15, 1965). There a predominantly white junior college was 
merged with a predominantly black junior college— though 
both were being operated on a non-discriminatory basis. The 
Court below also stopped short o f ordering the submission 
of a plan for the desegregation of all state colleges and 
universities as had been done in Sanders v. Ellington, 288 
F.Sup. 937 (M .D . Tenn. 1968).

Virginia State submits that these decisions have fore­
closed the constitutional question presented in the instant 
case and leave no room for real controversy. There is no 
substantial federal question for the court to hear, and the 
decision should be affirmed. Supreme Court Rule 16-1 (c )  ; 
Zucht v. King, 260 U.S. 174 (1922).

Virginia State asserts that further grounds exist for 
either dismissal o f the appeal or affirmance of the judgment 
under Supreme Court rule 16-1 (d ) .2

First o f all, the record abundantly documented the three- 
judge District Court’s finding that the escalation of Bland 
would serve to perpetuate Virginia’s dual system of higher 
education. The undisputed past and present history o f Bland 
and Virginia State— set out in the Statement of the Case 
and the Opinion of the Court below— manifestly show that 
this finding is not clearly erroneous. “ Findings o f fact shall 
not be set aside unless clearly erroneous . . . ”  Fed. Rules 
Civ. P. 52(a) ; Lundgren v. Freeman, 307 F.2d 104 (9th 
Cir. 1962). The decision of the Court below in no way 
conflicts with the decisions of this or any other court.

Secondly, since the State of Virginia and its agencies

2 Commentators have noted that this provision was designed to en­
courage appellees to address themselves to factors such as those 
relevant to the discretionary grant of certiorari. Broskey and Gress- 
man, The 1967 Changes in the Supreme Court’s Rules, 42 F.R.D. 
139,’ l46.



10

have an affirmative duty to dismantle the racial identities 
o f white Bland and black Virginia State, it follows that 
they cannot knowingly and purposely expand Bland in a 
manner which will perpetuate these racial identities. This is 
particularly true when there is no justification for the ex­
pansion on the basis of educational policy. The Governor 
and the leading educational authorities o f the Common­
wealth have unanimously recommended that Bland remain 
a two-year institution. It is not necessary for this Court to 
go beyond these facts and it is surely not necessary to de­
lineate in this case what the boundaries o f this affirmative 
duty are. It is submitted that this Court can and should limit 
itself to deciding that the decision below was correct on its 
facts. Thorpe v. Housing Authority o f  the City o f Durham, 
393 U .S.68 (1969).

Finally, the nature and role o f two-year colleges like 
Bland is only now evolving. Students of such schools live 
in their home communities and commute to class much as in 
high school. Such two-year colleges have tended to blur 
the once clear-cut lines between high school and “ higher 
education.” Virginia State submits that it is unnecessary 
for this court to delineate the constitutional distinctions be­
tween secondary education and junior colleges. The decision 
below can be limited to its own particular and compelling 
facts, allowing this court to decide broader constitutional 
questions in its own cautious tradition. Sweatt v. Painter, 
339 U.S. 629 (1950), rehearing denied, 340 U.S. 846 
(1950).

Appellants’ Position

Appellants urge that the questions decided by the Court 
below are of a substantial nature requiring briefs on the 
merits and oral arguments. On page 13 o f their Jurisdic­
tional Statement they give the following reasons:



11

(1 ) . . the question presented in the case at bar 
is precisely identical to that decided in diametrically 
opposite fashion . . .  in Alabama State Teachers A s­
sociation v. Alabama Public School and College Au­
thority, 289 F.Sup. 784, aff’d mem. 393 U.S. 400.”

(2 ) . . the present case is the first and only 
instance of which Appellants are aware in which a Fed­
eral Court has enjoined the establishment, expansion or 
escalation of a State-supported institution of higher 
learning.”

(3 ) . . this case is the first and only instance of 
which Appellants are aware in which a Federal Court 
has transposed to the field of higher education the re­
medial techniques applicable to public school desegrega­
tion as justification for prohibiting the escalation of 
State-supported college.”

(4 ) . . the majority decision o f the Court below 
enunciates a novel principle o f constitutional law which 
is not only without decision or support, but is squarely 
in contravention of the ‘controlling principles’ approved 
by this court in Alabama.”

In the opinion of this Appellee, these contentions are with­
out merit.

At the outset, Virginia State doubts whether Appellants’ 
second contention justifies plenary consideration of this case 
by this busy Court, but respectfully calls attention to Lee 
v. Macon County Board o f Education, supra.

Appellants’ third contention is equally without merit in 
that in enjoining the escalation of Bland, the lower court 
clearly did not utilize the “ remedial techniques applicable to 
public school desegregation.”

Appellant’s first and fourth points are in essence the 
same: they urge that the following language in Alabama



12

State Teachers' Association v. Alabama Public School and 
College Authority, supra gives them grounds to proceed:

“ W e conclude, therefore, that as long as the State and 
a particular institution are dealing with admissions, 
faculty and staff in good faith the basic requirement of 
the affirmative duty to dismantle the dual system on the 
college level, to the extent that the system may be based 
upon racial considerations, is satisfied.”  (Emphasis 
added.) 289 F.Supp. at 789.

But Alabama is not authority for taking action in this 
case on its facts.

In Alabama the plaintiffs, through a class action, sought 
to prevent the construction and operation of a completely 
new, four-year, degree-granting institution in Montgomery, 
which institution was to be an extension of Auburn Uni­
versity. At that time, Montgomery had four institutions 
of higher learning, two private and two public. One of the 
public institutions was Alabama State College which was 
predominantly black. The other public institution was the 
University of Alabama Montgomery Extension Center, 
which was similar to a junior college. The Alabama Court 
discussed the background of the case, particularly the con­
cept o f constructing and operating a new institution in 
Montgomery. It found that a substantial and thorough in­
vestigation had been made to determine the best means of 
satisfying the higher educational needs within that area. 
No such investigation is in the record, much less in the 
Court’s decision in the instant case, that favors Bland be­
coming a four-year college. All studies which were made and 
meticulously cited in the lower Court’s opinion (App. “ A ” - 
5) reached a diametrically opposite conclusion. For this 
reason, if no other, Alabama is not authority for the posi­
tion taken by the Board of Visitors o f William and Mary in



13

Virginia and James M. Carson, President o f Richard Bland 
College. The Governor of Virginia and the State Council of 
Higher Education, also represented by the Attorney Gen­
eral o f Virginia, did not join in the appeal. They could not. 
They were already on record, based on the type of study 
made in Alabama, as favoring a continuance o f Bland as a 
two-year college.

The Alabama Court further said:
“ As plaintiffs themselves indicate 'in terms o f anything 
heretofore existing in Montgomery, the Auburn branch 
will be for all practical purposes a new institution/  ”  
(Emphasis added) 289 F. Supp. at 789.

Bland is not a new institution. For ten years it has been 
virtually 100% white. The Virginia District Court found 
not only this to be a fact but in addition found that the es­
calation of Bland would thwart the tedious but successful 
desegregation efforts by Virginia State College. In Ala­
bama, the black college there involved (Alabama State) had 
made no effort towards desegregation. The opposite is true 
here. In Alabama, the white college (Auburn University) 
recruited Negro faculty members successfully. Bland’s 
faculty has been and was at the time of the decision below, 
one hundred percent white. In the instant case, the Court 
below found that if escalated Bland and Virginia State 
“ would offer substantially the same curricula.”  (App. “ A ” - 
5). In Alabama, the Court said:

“ . . . evidence was introduced that tended to show that 
Auburn would be more suitable for the purposes en­
visioned because it could offer a wider range of courses, 
greater breadth and depth of faculty, and greater 
physical resources. It was also considered important by 
the educator witnesses that Auburn had higher admis­
sion and transfer requirements.”  289 F. Sup. at 789.



14

Nothing in this finding in Alabama applies to Bland. In 
fact, the opposite is true.

Appellants would (in effect) substitute the word only for 
basic in the language previously quoted on which they rely 
{•op. cit. supra page 8 ). They contend that Bland’s “ positive 
program of actively recruiting Negro faculty and students” 
(Jurisdictional Statement page 34)— which has increased 
black enrollment from 0%  to 1.6% and which has yet to 
integrate the faculty— meets whatever else the affirmative 
duty demands.

The Alabama court noted that the state is under an 
affirmative duty to dismantle the dual system and to maxi­
mize desegregation. “ [Djealing with admissions, faculty 
and staff in good faith”  is but one basic requirement of the 
affirmative duty. The Alabama opinion does not support 
the singularly restrictive interpretation of the affirmative 
duty which Appellants would give it. The Court in Alabama 
did not find as a fact that the creation of the new institution 
would serve to perpetuate the dual system of education. 
The Court in the instant case did find as a fact that the ex­
pansion of Bland would perpetuate Virginia’s dual system 
and would impede Virginia State’s efforts to desegregate.

The summary affirmance of Alabama by the Supreme 
Court does not indicate approval of all that was said in 
the opinion, much less Appellants’ interpretation of it. 
Sanders v. Ellington, supra, in refusing to enjoin construc­
tion of the University of Tennessee Nashville Center, em­
phasized that its decision was based on its finding that the 
construction would not perpetuate the dual system of higher 
education. The Court there expressly stated that Alabama 
did not control.

In summation, Appellants’ main thrust is that Alabama 
controls. It does not. It is clearly distinguishable on its facts.



15

Appellants’ interpretation of the case is not tenable.3 Ala­
bama needs no further review by the Supreme Court.

CONCLUSION

Like the Court below and the Court in Sanders, Virginia 
State offers no comprehensive definition of what a state’s 
affirmative duty requires. Virginia State respectfully sug­
gests, however, that at the very least, such duty requires 
an absence of active conduct which will, or is likely to, 
hinder an institution’s active efforts to desegregate.

A  state’s duty to dismantle its dual school system on the 
college level prohibits one institution supported with tax 
dollars from expanding existing facilities so as to per­
petuate or aggravate an existing dual system. It further 
prohibits one state supported college from directly or in­
directly blocking the efforts of another state supported col­
lege to comply with the law of the land and integrate its 
faculty and students.

Virginia State is, o f course, concerned with the fact that 
Bland, as a two year college, is overwhelmingly white, and 
that it will continue to be overwhelmingly white if escalated. 
Paramount, however, is the interest o f its Board of Visitors 
in its own college, its own constitutionally-imposed affirma­
tive duty to desegregate, and the threat that the proposed 
escalation will forever relegate it to the status of a black 
institution. The Board earnestly wishes to avoid a repeti­
tion of the Old Dominion-Norfolk State College situation

3 The decision in Lee, supra, emerged, like Alabama, from the 
Middle District of Alabama. In fact, the same judge who wrote the 
opinion in Alabama appears to have been on the court which decided 
Lee. Thus, Alabama Courts view a State’s affirmative duty to dis­
mantle its dual system of higher education, not in the narrow view 
presented on page 26 of Appellants’ Jurisdictional Statement, but in 
a view even more expansive than that asserted by the Virginia Court 
in this case.



16

in which, as Appellant points out, a predominantly white 
four-year institution exists practically side-by-side with a 
predominantly black four-year institution. Two wrongs will 
not make a right.

It is obvious that the questions on which the decision in 
this cause depends are so unsubstantial as not to need 
further argument. The findings of fact made by the Court 
below are well supported by the record and not subject to 
attack under the “ clearly erroneous” standard. The relief 
granted is neither unusual nor unprecedented. The Court 
below merely enunciated a minimal requirement o f the well 
recognized duty of a state to dismantle its dual system of 
higher education or at least not to take action which would 
perpetuate it. The decision o f the Court below is in line 
with previous decisions.

This Appellee respectfully urges that this Honorable 
Court dismiss this appeal or affirm the judgment o f the 
District Court without requiring briefs or further argu­
ment.

Respectfully submitted,

T h e  B oard of V isitors  of 
V ir g in ia  St a t e  C ollege

E dw ard  S. H irsc h le r  
E verette  G. A l l e n , Jr .

Massey Building 
Fourth & Main Streets 
Richmond, Virginia 23219

Counsel for  The Board o f Visitors 
o f Virginia State College



17

CERTIFICATE OF SERVICE

I, Edward S. Hirschler, a member of the bar of the 
Supreme Court o f the United States and counsel for the 
Board o f Visitors o f the Virginia State College, hereby 
certify that copies of the within Motion of Appellee to 
Dismiss Appeal or Affirm Judgment were served upon 
counsel o f record for all parties herein by depositing the 
same in the United States Post Office, with first class 
postage prepaid, to their respective addresses o f record as 
follows: to R. D. Mcllwaine, III, P.O. Box 705, Peters­
burg, Virginia 23803, Special Counsel for The Board of 
Visitors of the College of William and Mary in Virginia 
and James M. Carson, President o f Richard Bland College; 
S. W . Tucker, Henry L. Marsh, III, Seymour Dubow and 
James L. Benton, Jr., 214 East Clay Street, Richmond, V ir­
ginia 23219, and Jack Greenberg, James M. Nabrit, III and 
Norman Chachkin, 10 Columbus Circle, Suite 2030, New 
York, New York 10019, counsel for plaintiffs; to Andrew 
P. Miller, William G. Broaddus and D. Patrick Lacy, Jr., 
Supreme Court Building, Richmond, Virginia 23219, coun­
sel for A. Linwood Holton, Governor of Virginia, the 
State Council of Higher Education for Virginia, the Board 
of Visitors of the College of William and Mary in Virginia, 
and James M. Carson, President of Richard Bland College; 
and to Philip J. Hirschkop and Richard E. Croach, P.O. 
Box 234, Alexandria, Virginia 22314, counsel for Amicus 
Curiae, American Civil Liberties Union o f Virginia; this 
3rd day of September, 1971. All parties required to be 
served have been served.

E dw ard  S. H irsch ler

Counsel for The Board of Visitors 
of Virginia State College