Bradley v. School Board of the City of Richmond Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    I n  t h e

§5>n$xmw ( ta r t  0! %  H&mteb
O ctober  T e e m , 1965

C arolyn  B radley , et al.,

---y . _
Petitioners,

T h e  S chool  B oard of  t h e  C it y  of 
R ic h m o n d , V ir g in ia , et al.

PETITION FOB WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR. THE FOURTH CIRCUIT

J ack  G reen b er g  
J am es M . N abrit , III 

10 Columbus Circle 
New York, N. Y. 10019

S. W. T u c k e r  
H e n r y  L. M a r sh , III 

214 East Clay Street 
Richmond, Virginia

Attorneys for Petitioners



I N D E X

PAGE

Citations to Opinions Below .........................................  1

Jurisdiction ....................................................................  2

Questions Presented ...................................................... 2

Statutes and Constitutional Provisions Involved........  3

Statement .......................        3

Reasons for Granting the W rit......................   16

I. The Richmond Pupil Assignment Plan, Viewed 
in the Context of Continuing Faculty Segre­
gation and Other Factors, Is Fundamentally 
Inadequate to Disestablish the Segregated 
System of Schools ...............................   19

II. Segregation of Public School Teachers Vio­
lates the Fourteenth Amendment and Negro 
Pupils Are Entitled to Relief Against This 
Element of Segregated School Systems ........  25

Conclusion ......................................................................  35

Appendix .......     la

Memorandum of July 25, 1962 ............................... la

Opinion of May 10, 1963 .........................................  9a
Memorandum of March 16, 1964 ............................  29a



11

PAGE

Order Dated March 16, 1964 .................................. 39a
Opinion of April 7, 1965 .........................................  40a

Judgment Filed April 7, 1965 ................................ 71a

T able of  C ases

American Enka Corp. v. N. L. R. B., 119 F. 2d 60 (4th
Cir. 1941) ..................................... ..............................  25

Anderson v. Martin, 375 U. S. 399 ........................... ...21, 30
Augustus v. Board of Public Instruction of Escambia 

County, 306 F. 2d 862 (5th Cir. 1962) ....................... 29

Bailey v. Patterson, 369 U. S. 31 ........................ .......... 25
Board of Public Instruction of Duval County v. 

Braxton, 326 F. 2d 616 (5th Cir. 1964), cert, denied,
377 IT. S. 924 ........................................................ 28

Bowditch v. Buncombe County Board of Ed., 345 F. 2d
329 (4th Cir. 1965) ...................................................16, 28

Brooks v. School District of City of Moberly, Mo., 267 
F. 2d 733 (8th Cir. 1959), cert, denied, 361 U. S. 894 .. 29

Browder v. Gayle, 352 U. S. 903 ................... ................  26
Brown v. Board of Education, 347 U. S. 483, 349 IT. S.

294 ................................................................ 2, 6, 23, 25, 26,
28, 34, 35

Brown v. County School Board of Frederick County,
----- F. 2d —  (4th Cir. No. 9825, May 24, 1965) .... 16

Bryan v. Austin, 148 F. Supp. 563 (E. D. S. C. 1957),
judgment vacated 354 IT. S. 933 ................................ 32

Bush v. Orleans Parish School Board, 308 F. 2d 491 
(5th Cir. 1962) 20



Ill

PAGE

Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1963), va­
cated and remanded 377 U. S. 263 ..................... .....27, 29

Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956) ....... . 20
Christmas v. Board of Education of Harford County,

231 F. Supp. 331 (D. Md. 1964) ........ ..................... 29
Colorado Anti-Discrimination Commission v. Conti­

nental Air Lines, 372 U. S. 714.................................. 25

Dawson v. Baltimore City, 350 IT. S. 877 ....................... 26
Dillard v. School Board of the City of Charlottesville,

308 F. 2d 920 (4th Cir. 1962), cert, denied, 374 IT. S.
82 ................................................................................. 12

Dodson v. School Board of City of Charlottesville, 289
F. 2d 439 (4th Cir. 1961) ...................................... ....  20

Dowell v. School Board of Oklahoma City Public 
Schools, 219 F. Supp. 427 (N. D. Okla. 1963) ..........  29

Franklin v. County School Board of Giles County, 
Civil No. 64-C-73-R, W. D. Va. June 3, 1965 ..........29, 30

Gilliam v. School Board of City of Hopewell, 345 F. 2d
325 (4th Cir. 1965) ............................. .......................  28

Green v. School Board of City of Roanoke, 304 F. 2d
118 (4th Cir. 1962) .... .......... ............ ..... .................. 20

Griffin v. Board of Supervisors, 339 F. 2d 486 (4th
Cir. 1964) .............................. ...................................... 28

Griffin v. School Board of Prince Edward County, 377 
IT. S. 218................................................................. . 26

Holmes v. Atlanta, 350 IT. S. 879 26



IV

PAGE

Jackson v. School Board of the City of Lynchburg, 321
F. 2d 230 (4th Cir. 1963) ........................................... 28

Johnson v. Virginia, 373 U. S. 61 .................................. 25

Lawrence v. Bowling Green, Ky. Board of Education,
Civil No. 819, 8 Race Bel. L. Rep. 74 (N. D. Ky.
1963) ...........................................................................  29

Louisiana v. United States, 380 U. S. 145.....................  24

Manning v. Board of Public Instruction of Hillsborough 
County, Fla., Civil No. 3554, 7 Race Rel. L. Rep. 681
(S. D. Fla. 1962) .......................................................  29

Mapp v. Board of Education of City of Chattanooga,
319 F. 2d 571 (6th Cir. 1963) .....................................  29

Mason v. Jessamine County, Ky. Board of Education, 
Civil No. 1496, 8 Race Rel. L. Rep. 75 (E. D. Ky.
1963) ...........................................................................  29

McLaurin v. Oklahoma State Regents, 339 U. S. 637 .... 34

Nesbit v. Statesville City Board of Education, 232 F. 
Supp. 288 (W. D. N. C. 1964), vacated 345 F. 2d 333
(4th Cir. 1965) ........................................... ...............  29

N. L. R. B. v. Newport News Shipbuilding & Dry Dock
Co., 308 U. S. 241...................    24

Northcross v. Board of Education of Memphis, 302
F. 2d 818 (6th Cir. 1962) ........................................... 20

Northcross v. Board of Education of Memphis, 333 
F. 2d 661 (6th Cir. 1964) ........................................... 29

Peterson v. Greenville, 373 U. S. 244 ............................  25
Price v. The Denison Independent School District, 

----- F. 2d------ (5th Cir. No. 21,632, July 2, 1965) .... 17



V

PAGE

Shelton v. Tucker, 364 U. S. 479 ................. .................. 32
Singleton v. Jackson Municipal Separate School Dis­

trict, ----- F. 2 d ------ , 5th Cir. No. 22,527, June 22,
1965 .......................... ............ ...... ...... ......................... 19

Sperry Gyroscope Co., Inc. v. N. L. R. B., 129 F. 2d 922 
(2nd Cir. 1942) ............... ...........................................  25

Tillman v. Board of Instruction of Volusia County, 
Florida, Civil No. 4501, 7 Race Rel. L. Rep. 687
(S. D. Fla. 1962) .......................................................  29

Turner v. Memphis, 369 U. S. 350 .................................. 26

United States v. Crescent Amusement Co., 323 U. S.
173 ...............................................................................  24

Wheeler v. Durham City Board of Education, ——- 
F. 2d-----  (4th Cir. No. 9630, June 1, 1965) .......... 16, 28

S tatu tes

Ala. Acts 40, 41, 1956 1st Sp. Sess................. ................  32

Ala. Acts 239, 361, 1957 Sess................................... ......  32
Code of Va., 1950 (1964 Replacement VoL), §22-205 .... 27 
Code of Va., 1950 (1964 Replacement Vol.), §22-207 .... 28

F. R. Civ. Proc., Rule 23(a) .......................................  3
La. Acts 1956, Acts 248, 249, 250, 252 ......................... 32
S. C. Acts 1956, Act 741, repealed by Act 223 of 1957 .... 32 

28 U. S. C. §1254(1) ...................................................... 2



vi

PAGE

28 IT. S. C. §1331........ .
28 U. S. C. §1343 .........
42 U. S. C. §§1981, 1983

42 U. S. C. A. §2000d ...

O t h e r  A u t h o r it ie s

1960 Census of Population, Vol. 1, “Characteristics of 
the Population,” Part I, U. S. Summary Table 230 .... 32

110 Cong. Eec. 6325 (daily ed. March 30, 1964) ..........  17

General Statement of Policies Under Title VI of the 
Civil Rights Act of 1964 Respecting Desegregation 
of Elementary and Secondary Schools, HEW Office 
of Education, April 1964 .........................17,18,24,33,34

Lamanna, Richard A. “The Negro Teacher and Deseg­
regation”, Sociological Inquiry, Vol. 35, No. 1, Winter 
1965 .............................................................................  32

Research Division—National Education Association, 
Teacher Supply and Demand in Public Schools, 1965 
(Research Report 1965-R10, June 1965) .................. 32

Southern Education Reporting Service, “Statistical 
Summary of School Segregation—Desegregation in 
the Southern and Border States”, 14th Rev., Nov.
1964 .................................-.......-...................... 10,23,30,31

............  3

............  3

............ 3

16,17, 33, 34

Southern School News, May 1965 17



I n' t h e

Bnpvmt (Emtrt stf tty IntM  S>Uti>z
O ctober T e r m , 1965 

No................

Carolyn  B radley , et al., 

— v .—

Petitioners,

T h e  S chool  B oard of t h e  C ity  of 
R ic h m o n d , V ir g in ia , et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners pray that a writ of certiorari issue to re­
view the judgment of the United States Court of Appeals 
for the Fourth Circuit entered in the above-entitled cause 
on April 7, 1965.

Citations to Opinions Below

The memorandum opinion of the District Court of July 
25, 1962 (R. 1-61)1 is unreported and is printed in the ap­
pendix hereto, infra p. la. The opinion of the Court of 
Appeals issued May 10, 1963 (R. 1-76), printed in the ap-

1 The record contains Volumes I to VI. Each volume begins with 
a page numbered 1. Thus record citations herein are to the volume 
and page number as above indicating Volume I, page 61.



2

pendix hereto, infra p. 9a, is reported at 317 F. 2d 429. 
The District Court’s opinion of March 16, 1964 (E. 1-128), 
appears in the appendix below at page 29a. The second 
opinion of the Court of Appeals dated April 7, 1965 (E. 
V-5), printed in the appendix p. 40a, infra, is reported at 
345 F. 2d 310.

Jurisdiction

The judgment of the Court of Appeals was entered on 
April 7, 1965 (E. V-36); appendix p. 71a, infra. Mr. Jus­
tice Goldberg on June 28, 1965, extended the time for fil­
ing the petition for certiorari until August 1, 1965. The 
jurisdiction of this Court is invoked under 28 U. S. C. Sec­
tion 1254(1).

Questions Presented

1. Whether the Eichmond, Virginia school board’s “free­
dom of choice” policy is adequate under Brown v. Board of 
Education to disestablish the system of racial segregation 
created by past compulsory pupil assignment policies in the 
context of a continuing practice of assigning all school 
teachers on the basis of race in a segregated pattern.

2. Whether Negro pupils are entitled to demand a 
prompt end to the school authorities’ practice of racially 
segregating teachers by assigning them on the basis of 
race as a violation of the pupils’ right to attend a non- 
discriminatory public school system.



3

Statutes and Constitutional Provisions Involved

This ease involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement

This cause was filed in the United States District Court 
for the Eastern District of Virginia September 5, 1961, by 
petitioners, a group of Negro parents and children in Rich­
mond, Virginia, who sought injunctive relief against public 
school segregation pursuant to 28 U. S. C. §1343 and 42 
U. S. C. §§1981 and 1983.2 Petitioners sought an injunc­
tion against the Richmond school board and superintendent 
and against the Virginia Pupil Placement Board, a state 
agency with statutory responsibilities concerning the as­
signment of pupils. Petitioners here seek a review of the 
adequacy of the school board’s desegregation plan which 
was approved by the courts below.

The complaint, brought as a class action under Rule 
23(a), F. R. Civ. Proc., alleged, inter alia, that the school 
authorities had not devoted efforts toward initiating non­
segregation and bringing about the elimination of racial 
discrimination in the public school system and that they 
had not “made a reasonable start to effectuate a transition 
to a racially non-discriminatory system . . . ” (R. 1-11).

2 The complaint also alleged “Federal Question” jurisdiction 
under 28 U. S. C. §1331.



4

The complaint as amended3 requested an order requiring 
admission of the 11 minor petitioners in specified all-white 
schools and also general injunctive relief against the segre­
gated system and discriminatory practices. It included a 
request that the defendants be required to submit to the 
court a desegregation plan as well as periodic reports of 
their progress in effectuating a transition to a racially non- 
discriminatory school system (R. 1-36-37). Petitioners also 
sought attorneys’ fees. The defendants generally denied 
that petitioners were entitled to relief; the Richmond offi­
cials contended that sole responsibility for placing pupils 
was in the hands of the defendant Pupil Placement Board 
(R. 1-53, 55).

July 23, 1962, the case was tried before Hon. John D. 
Butzner, Jr.,4 and on July 25, 1962, Judge Butzner filed 
an opinion (R. 1-61) and entered an injunction (R. 1-71) 
against the defendants requiring the admission of ten peti­
tioners to white schools,5 but refusing any general injunc­
tion against discrimination.

Although all of the petitioners were thereby admitted to 
white schools, they appealed the refusal to enter general 
injunctive relief and to require a desegregation plan. The 
Fourth Circuit (Judge Bryan dissenting) reversed and re­
manded, directing entry of an injunction against the dis­
criminatory practices and indicating that the school board

3 Following motions to dismiss the original complaint (R. 1-15, 
20) the complaint was amended January 4, 1962 (R. 1-26). The 
amended complaint alleged facts concerning the applications of the 
individual plaintiffs’ admission to specified schools.

4 The transcript of the trial of July 23, 1962, is Yol. II of the 
record.

5 The remaining infant petitioner had been admitted by the 
school authorities prior to the hearing.



5

should be encouraged to submit a more definite plan for 
termination of the discriminatory system (317 F. 2d 429, 
May 10, 1963). The majority opinion contains a detailed 
factual statement describing the segregated operation of 
the Richmond schools, and the limited first steps which had 
departed from total segregation. It referred to earlier 
school segregation litigation in Richmond from 1958 to 
1961 culminating in the admission of 1 Negro to a white 
school by an order of District Judge Lewis, refusing any 
class relief and dismissing the prior case from the docket/’ 
The Court of Appeals concluded that it found “nothing to 
indicate a desire or intention to use the enrollment or as­
signment systems as a vehicle to desegregate the schools” 
and that the refusal to enter an injunction left the defen­
dants “free to ignore the rights of other applicants” for 
nonracial assignments.

When the present case commenced in September 1961 
Richmond had 41,568 children (17,777 white and 23,791 
Negro)7 attending 61 schools.8 Only 37 Negro children were

6 The Court of Appeals’ description of the prior case is in 317 F. 
2d at 432, n. 3, 435. The prior suit. Warden v. School Board of 
City of Richmond (E. D. Va„ July 5, 1961), unofficially reported 
6 Race Rel. L. Rep. 1025, was filed September 2, 1958, by Negro 
pupils who had been denied admission in two white schools. As 
the Fourth Circuit observed, the school board converted the white 
school which most of the plaintiffs sought to enter to a Negro 
school by transferring out its white students and faculty and mov­
ing in Negro students and faculty. A single remaining plaintiff 
who sought transfer from a Negro school five miles from her home 
to a white school in her neighborhood finally obtained admission 
by the court order entered July 5, 1961, three years after her 
original application. (School Board Minutes pertaining to the 1958 
events described are Pi’s Exhibits 16 and 17 in the present record.)

7 Pi’s Exhibit 8, Depositions of Willet, et al. p. 8 (hereinafter 
cited as Deposition).

8 (R. 1-43-44.)



6

assigned with whites at three schools (R. 1-45-46). The first 
desegregation had begun in the 1960-61 term with 2 Negroes 
in white schools. Judge Butzner’s opinion described the 
manner in which pupils were initially placed in schools and 
promoted from one to another on the basis of race through 
use of dual overlapping attendance areas for Negroes and 
whites. It also described the discriminatory application 
of transfer criteria to those Negro pupils who actively 
sought admission to white schools (R. 1-62-64, 66-68). Al­
though the local school board professed not to have assign­
ment power, it continued to maintain dual attendance areas 
adopted before the Brown decision which governed an esti­
mated 98% of the children who were placed routinely by 
the Pupil Placement Board in accord with the locally estab­
lished pattern. The routine placement of Negroes in all- 
Negro schools was sought to be justified at the trial by the 
authorities on the theory that Negroes preferred segrega­
tion. Chairman Oglesby of the Placement Board testified 
(R. 11-54-55):

Normally, I would say fully 99 per cent of the Negro 
parents who are entering a child in First G-rade prefer 
to have that child in the Negro school.

#  #  #  #  *

And it is true that in general there will be two schools 
that that child could attend in his area, one white and 
one Negro, and we assume that the Negro wants to go 
to the Negro school unless he says otherwise, but if he 
says otherwise, he gets the other school.

Pupils who sought transfers out of the zones were judged 
by the Pupil Placement Board’s transfer standards. This



7

involved, the court found, the rejection of Negro transfer 
applications on academic and residence standards not ap­
plied to white pupils routinely enrolled in the same schools 
(R. 1-65-68).

Richmond pupils had been assigned to schools on the 
basis of separate overlapping attendance areas for Negroes 
and whites for many years.9 Maps indicating the location 
of schools and the areas for the high schools (Pi’s Ex. 5), 
junior high schools (Pi’s Ex. 6) and elementary schools 
(Pi’s Ex. 7) were introduced in evidence. Plaintiffs also 
introduced school census data showing that Negroes and 
whites lived in the same neighborhoods in many sections 
of the City.10

The faculties in the white pupil schools were all white, 
and the schools with Negro students had all Negro teachers 
(Deposition 13). The school board’s Rules and Regulations 
describe the personnel policies and procedures (Pi’s Ex. 1 
at p. 28):

# # * # #

2. Assignment of Employees.
Each employee of the school board shall be assigned 
to a specific position by and under the direction of the 
superintendent of schools and may be transferred to 
any other position for which qualified.

9 Testimony at pp. 27-28 illustrates the operation of the over­
lapping zones, where white pupils and Negroes in the same areas 
attend different schools.

10 See generally R. 11-12-24 explaining Pi’s Exhibits 12-15. 
Exhibit 14, a plastic overlay, indicates the number of white and 
Negro pupils by age group in each section of the City, and can be 
compared with the school attendance areas when placed over Ex­
hibits 5, 6 or 7.



3. Transfer of employees.

Transfer may be made by the superintendent on his 
own authority or at the request of the employee for 
any purpose which in the judgment of the superin­
tendent is for the welfare of the employee or the 
schools.

A statement of “Richmond Public Schools Administrative 
Policies” (attached to Pi’s Ex. 1) indicates that the respon­
sibility for personnel selection is shared by the administra­
tion, Personnel Department and the school principal or 
department head concerned. Teachers in Richmond are 
given ten month contracts, serve a two year probation 
when first employed, and thereafter usually have continuing 
contracts which are renewed unless they are notified to 
the contrary by April 15th of each year. (See Pi’s Ex. 1, 
Rules and Regulations, Ch. VI, pp. 24-31.)

The evidence showed a pattern of severe overcrowding 
in Negro schools and under-utilization of white schools. As 
the Court of Appeals observed (317 F. 2d at 435), the 
authorities had not dealt with overcrowding by assigning 
Negro pupils to schools with white children which had 
available space in the same areas (R. 11-32). Instead, they 
built new schools for Negroes and converted white schools 
to all-Negro schools {ibid.). At the time of the trial 90 
Negro children had been granted transfers to white schools 
for the 1962-63 term in addition to the 37 enrolled during 
the 1961-62 year (R. 11-77-78).

After the Fourth Circuit remanded the case the district 
court entered an order June 6, 1963, enjoining the defen­
dants from refusing the admission of any pupil to any



9

public school on the basis of race, from assigning pupils 
on the basis of dual overlapping zones, from assigning 
pupils on the basis of race upon promotion from one school 
to another, and from conditioning the grant of transfers 
on the applicants’ submission to futile, burdensome or dis­
criminatory procedures (R. 1-97-98). The court also invited 
the defendants to submit a desegregation plan, and stipu­
lated that the injunction would be superseded by an ap­
proved plan (R. 1-98).

On July 11, 1963, plaintiffs moved for further injunctive 
relief challenging the school board’s action in assigning 
pupils for the forthcoming term in accord with a resolution 
the board had adopted March 18, 1963 (B. X-100). At the 
hearing on this motion on July 29, 1963 (E. Volume III), 
the school board filed its March 18, 1963 resolution and 
requested that the court approve it as a plan of desegrega­
tion (Defendants’ Ex. 1 and la). The full text of the resolu­
tion is set out in the margin.11

11 “Whereas, the Richmond School Board has been advised by 
special counsel and the City Attorney that in order to comply with 
the decision of the Federal District Court in the case of Bradley 
v. The School Board of the City of Richmond and the State Pupil 
Placement Board, the school attendance areas previously estab­
lished for white and Negro schools may no longer he used in the 
assignment of pupils.

“Now, Therefore, he it Resolved as follows:
“ (a) Recommendations for assignment of pupils seeking 

enrollment in the public school system for the first time or 
initial enrollment in the junior or senior high schools shall be 
made upon consideration of the distance the pupils live from 
such schools; the capacity of such school; availability of space 
in other schools; whether the program of the pupil can be 
met by such school; the school preference as shown on the 
pupil placement application form; and what is deemed to be 
in the best interest of such pupil.

“ (b) The school administration shall recommend that pupils 
be assigned to the schools which they attended the preceding



10

At the hearing the superintendent testified that for the 
then forthcoming 1963-64 term dual attendance zones had 
been abolished and no new zones were adopted (R. III-6, 8); 
that all pupils entering school were required to apply for a 
specific school (R. III-8); that every child finishing the 
top grade in elementary school or junior high school was 
required to choose a school (ibid. ) ; that no Negro applicant 
to a white school was denied admission (ibid.)-, that the 
only criteria applied thus far were school capacity (but this 
had not resulted in denial of any Negro application to a 
white school) (R. III-10) and a May 31st deadline for 
transfers (R. 111-12); that pupils enrolled in a school con­
tinued in that school unless they requested to move out or 
reached the top grade (R. III-17-18); that a total of 239 
Negroes applied before the deadline and were admitted at 
white schools (148 finishing highest grade in school, 81 in 
grades below top grade, 10 beginning school) (R. III-22).12

year, except those eligible for promotion to another school. 
However, application may be made by the parent, guardian 
or other person having custody of such pupils for their place­
ment in another school named in the application in which case 
the reason for the requested transfer should be stated. The 
school administration may recommend to the Pupil Placement 
Board that such application be approved if it be deemed to be 
in the best interest of the pupil.

“ (c) Applications for transfers to a particular school must 
be made and received by the school administration before 
June 1 preceding the school year to which the placement 
requested is to be applicable.” (Defendant’s Exhibits 1 and 
la.)

12 No current figures on Richmond desegregation are in the rec­
ord. A. published report indicates that in November 1964 there 
were 846 Negro children attending 13 schools with white children. 
This represented about 3% of the Negroes in the system. Southern 
Education Reporting Service, “Statistical Summary of School 
Segregation—Desegregation in the Southern and Border States”, 
14th Rev., Nov. 1964, p. 59.



11

After hearing this testimony the Court set dates for the 
petitioners to file exceptions to the plan as it had been 
explained and indicated it would schedule a further hearing 
on the proposed plan.

On August 22, 1963, plaintiffs filed exceptions to the 
plan attacking it as vague and indefinite and conferring 
absolute discretion on the school authorities to determine 
assignments, and asserting that as the plan had no specific 
school zones the plan “affords the Court no basis upon 
which to appraise the practical impact of an order approv­
ing the plan or any part of it” (R. 1-110-111). The peti­
tioners objected to the provision granting transfers if 
“deemed to be in the best interest of the pupil” and also 
objected that the plan “omits any provision for the assign­
ment or reassignment of teachers and staff of the schools 
on a nonracial basis” saying they were asserting “their per­
sonal rights to attend a school system in which there is no 
racial segregation or discrimination” (R. 1-112).

September 9, 1963, plaintiffs filed a motion for a tempo­
rary restraining order to require the admission at a white 
high school of two Negro pupils who had been denied trans­
fers on the ground that their applications were not received 
before the deadline. The Court granted the restraining 
order on the basis of the prior injunction (R. 1-123), and it 
was subsequently made permanent (R. 1-143-144).

On December 20, 1963, there was a further hearing on 
the plan and on petitioners’ motion for attorneys’ fees (R. 
Volume IV). By agreement prior evidence was considered 
part of the evidence on the plan. The application forms 
were placed in evidence ;1S the superintendent indicated that

13 Curiously, the statewide Pupil Placement form (Def’s Ex. 3) 
has no space designated for pupils to indicate the school they desire



12

pupils other than those completing the last grade in a 
school were asked to state the reason they sought a trans­
fer. The superintendent stated that in 1963 there was one 
instance in which about 40 or 50 white children applied 
to a school that was overcrowded and “the parents were 
consulted” but no one was “sent to a school against his 
will” (R. IY-10). Counsel for the Pupil Placement Board 
advised the Court that that board approved the plan (R. 
IV-19).

The superintendent testified at the July hearing that the 
school board’s purpose was to follow a “freedom of choice” 
plan similar to the one in Baltimore, and that the board 
had been guided in this by a suggestion made by the Fourth 
Circuit in the Charlottesville14 case (R. III-7).

On March 16, 1964, Judge Butzner approved the plan 
and dissolved the injunction entered June 6,1963 (R. 1-128). 
The Court said that while the plan was framed in broad 
language, it was valid as it was being administered and 
interpreted; that the “best interest” criterion could not be 
used to deny transfers or admission unless made more defi­
nite; and that the school capacity criterion presented no 
problem at present but that if the situation changed resi­
dential requirements must avoid discrimination. The Court 
said that the absence of provision for faculty desegregation 
did not require rejection of a plan for the assignment of 
pupils.

to attend. But the superintendent testified that all parents were 
required to indicate the school they chose when the child entered 
school or finished the highest grade in a school.

14 Dillard v. School Board of the City of Charlottesville, 308 P. 
2d 920, 923-924 (4th Cir. 1962), cert, denied 374 U. S. 827.



13

On petitioners’ appeal the Fourth Circuit, en banc, af­
firmed, with Judges Sobeloff and Bell dissenting in part 
(345 F. 2d 310; appendix 40a). The Court held that the 
plan allowing “free transfers is an acceptable device for 
achieving a legal desegregation of schools,” noting that 
the Court required “the elimination of discrimination from 
initial assignments as a condition of approval of a free 
transfer plan” and that “discrimination is eliminated as 
readily by a plan under which each pupil initially assigns 
himself as he pleases as by a plan under which he is in­
voluntarily assigned on a geographic system” (345 F. 2d 
at 318-319). The court said that the board might have estab­
lished a single zone system for initial placements but that 
“would have been a major task” and that eliminating zon­
ing was the equivalent of rezoning and “easier of accom­
plishment” when the board intended to allow pupils to 
choose schools in any event (ibid.).

The Court held that the District Court did not abuse its 
discretion in declining to order staff desegregation, stating 
that there was no inquiry “as to the possible relation, in 
fact or in law, of teacher assignments to discrimination 
against pupils” or as to the impact of an order upon the 
administration of the schools, and thus petitioners had not 
“discharged the burden they must shoulder of showing that 
such assignments effect a denial of their constitutional 
rights” (345 F. 2d at 320). The Court said, in part:

Whether and when such an inquiry is to be had are 
matters with respect to which the District Court also 
has a large measure of discretion. The Fifth and Sixth 
Circuits have so held, and we agree. When direct 
measures are employed to eliminate all direct discrimi-



14

nation in the assignment of pupils, a District Court 
may defer inquiry as to the appropriateness of sup­
plemental measures until the effect and the sufficiency 
of the direct ones may be determined. The possible 
relation of a reassignment of teachers to protection of 
the constitutional rights of pupils need not be deter­
mined when it is speculative. When all direct discrimi­
nation in the assignment of pupils has been eliminated, 
assignment of teachers may be expected to follow the 
racial patterns established in the schools (ibid.) (foot­
notes omitted).

The Court affirmed the disallowance of counsel fees as 
within the trial judge’s discretion saying that an award was 
required “only in the extraordinary case” (id. at 321).

Judges Sobeloff and Bell concurred in approval of the 
freedom of choice plan but made their “concurrence tenta­
tive on the assumption that the Resolution is an interim 
measure only and will be subject to a full review and re­
appraisal at the end of the present school year, or certainly 
not later than this fall after the opening of the 1965-66 
school term, when the results of two years of the Resolu­
tion’s operation will be known” (345 F. 2d at 321). They 
said that they were “not fully persuaded that the plan will 
be enough to enable the Negro pupils to extricate them­
selves from the segregation which has long been firm ly 
established and resolutely maintained in Richmond” (id. at 
322), and that much depended upon the board’s attitude, 
which in the past had been that it had no duty “to integrate 
a particular school or desegregate it” or “to promote inte­
gration.” They asserted that “good faith compliance re­
quires administrators of schools to proceed actively with



15

their nontransferable duty to undo the segregation which 
both by action and inaction has been persistently perpetu­
ated” {id. at 323).

Judges Sob el off and Bell dissented from the rulings con­
cerning staff desegregation, the dissolution of the 1963 in­
junction, and counsel fees. On the teacher issue they wrote 
{id. at 324) :

The composition of the faculty as well as the com­
position of its student body determines the character 
of a school. Indeed, as long as there is a strict sepa­
ration of the races in faculties, schools will remain 
“white” and “Negro,” making student desegregation 
more difficult. The standing of the plaintiffs to raise 
the issue of faculty desegregation is conceded. The 
question of faculty desegregation was squarely raised 
in the District Court and should be heard. It should 
not remain in limbo indefinitely. After a hearing there 
is a limited discretion as to when and how to enforce 
the plaintiffs’ rights in respect to this, as there is in 
respect to other issues, since administrative considera­
tions are involved; but the matter should be inquired 
into promptly. There is no legal reason why desegre­
gation of faculties and student bodies may not proceed 
simultaneously.



16

Reasons for Granting the Writ

This case involves two of the issues of greatest current 
concern in school segregation litigation throughout the 
South, the question of the adequacy of so-called freedom 
of choice desegregation plans to disestablish patterns of 
racial segregation created by governmental compulsion in 
the context of continuing faculty segregation, and the right 
of Negro pupils to demand a prompt end of the practice of 
assigning teachers on the basis of the race of the pupils in 
schools. Adoption of the Richmond plan and approval of 
it by the Fourth Circuit has been emulated widely by 
school districts and courts. At least four cases involving 
comparable issues already have been decided by the Fourth 
Circuit, and the views expressed in the Richmond case have 
been reaffirmed.16 Indeed, the major new phenomenon in 
school desegregation litigation is the sudden abandonment 
of age-old normal school zoning practices and adoption of 
so-called free choice plans.

The issue of faculty desegregation is of transcendent 
importance in thousands of school districts where teachers 
are still assigned on the basis of race in a segregated pat­
tern. The United States Commissioner of Education, as 
authorized by Title VI of the Civil Rights Act of 1964,16

16 See, e.g., Bowditch v. Buncombe County Board of Education, 
345 F. 2d 429 (4th Cir. 1965) • Nesbit v. Statesville City Board of 
Education, 345 F. 2d 333 (4th Cir. 1965); Brown v. County School
Board of Frederick County, -----  F. 2 d ----- (4th Cir. No. 9825,
May 24, 1965) ; Wheeler v. The Durham City Board of Education, 
----- F. 2 d ------ (4th Cir. No. 9630, June 1, 1965).

16 Title VI conditions federal financial assistance on nondiscrimi­
nation. Act of July 2, 1964, P. L. 88-352, Title VI, 72 Stat. 252, 
42 U. S. C. A. §2000d, et seq.



17

lias adopted a rule requiring that all desegregation plans 
submitted by districts receiving federal financial assistance 
“shall provide for the desegregation of faculty and staff” 
by making “initial assignments” nonracially and by steps 
toward the elimination of teacher and staff segregation 
resulting from prior assignments based on race.17 It is 
important that this Court announce a similar unequivocal 
position against faculty segregation practices to establish 
a uniform rule for those districts in litigation (and sub­
mitting court approved plans as the basis for federal aid) 
and those submitting plans to the Commissioner of Edu­
cation. The Congressional proponents of the Civil Eights 
Act of 1964 proceeded on the express assumption that the 
Commissioner could require faculty desegregation. Intro­
ducing Title VI, Vice President (then Senator) Humphrey 
made express reference to a Fifth Circuit opinion requir­
ing faculty desegregation which this Court had declined 
to review, saying:

In such cases the Commissioner might also be jus­
tified in requiring elimination of racial discrimination 
in employment or assignment of teachers at least 
where such discrimination affected the educational op­
portunities of students. See Board of Education v. 
Braxton [326 F. 2d 616 (5th Cir. 1964)].

This does not mean that Title VI would authorize 
a federal official to prescribe pupil assignments, or to

17 General Statement of Policies Under Title VI of the Civil 
Rights Act of 1964 Respecting Desegregation of Elementary and 
Secondary Schools, HEW, Office of Education, April 1964, Part V. 
B (l) (cited hereinafter as General Policy Statement). This State­
ment is reprinted in the appendix to Price v. The Denison Indepen­
dent School District,-----  F. 2 d ----- (5th Cir. No. 21632, July 2,
1965), and also in Southern School News, May 1958, p. 8.



18

select a faculty, as opponents of the bill have sug­
gested. The only authority conferred would be au­
thority to adopt, with the approval of the President, 
a general requirement that the local school authority 
refrain from racial discrimination in treatment of 
pupils and teachers and authority to achieve compli­
ance with that requirement by cutting off funds or by 
other means authorized by law. (110 Cong. Rec. 6325 
(daily ed. March 30, 1964))

However, the prospect of federal administrative pres­
sure for faculty desegregation does not eliminate the 
urgent need for a similar expression from this Court. 
First, with respect to particular districts in litigation, the 
Commissioner of Education has indicated that a “final 
order of a court of the United States” will be accepted in 
lieu of a plan submitted to the agency (General Policy 
Statement, parts II.B and IV). Court orders finally ap­
proving plans which fail to contain basic provisions like 
faculty desegregation will work to create conflict. As 
Judge Wisdom of the Fifth Circuit recently wrote:

The judiciary has of course functions and duties dis­
tinct from those of the executive department, but in 
carrying out a national policy we have the same ob­
jective. There should be a close correlation, therefore, 
between the judiciary’s standards in enforcing the na­
tional policy requiring desegregation of public schools 
and the executive department’s standards in admin­
istering this policy. . . .  If in some district courts 
judicial guides for approval of a school desegregation 
plan are more acceptable to the community or sub­
stantially less burdensome than H. E. W. guides, school



19

boards may tarn to the federal courts as a means of 
circumventing the H. E. W. requirements for financial 
aid. (Singleton v. Jackson Municipal Separate School
District,----- F. 2d------ , 5th Cir. No. 22,527, June 22,
1965.)

Second, with respect to general standards the Commis­
sioner obviously will be guided to some substantial degree 
by the legal principles emanating from the courts. Judi­
cial declarations casting doubt on the necessity for faculty 
desegregation might immeasurably impair and stir re­
sistance to the effective administration of the Commis­
sioner’s existing policy implementing the Act of Congress.

I.
The Richmond Pupil Assignment Plan, Viewed in the 

Context of Continuing Faculty Segregation and Other 
Factors, Is Fundamentally Inadequate to Disestablish 
the Segregated System of Schools.

Richmond’s plan for assigning pupils, or rather, not 
assigning them, to schools is basically inadequate to effec­
tuate the constitutionally required transition of a racially 
segregated school system to one operated without dis­
crimination. There is no question here of the right of a 
school board in the abstract to allow pupils to choose their 
schools. The question is whether adoption of a policy pro­
viding for pupils to choose their schools is adequate to 
undo the effects of past wrongs, and discharge the duty 
to eliminate a segregated system. Petitioners submit that 
a school board does not adequately discharge its affirma­
tive duty to initiate desegregation when, after years of 
actively placing pupils in schools on a segregated basis,



20

it adopts a “hands-off” attitude about pupil placements 
while maintaining faculty segregation in the schools.

Richmond traditionally has placed pupils in schools by 
the use of geographic attendance areas, allowing pupils 
choice in some situations between two schools in the same 
vicinity. Separate schools and attendance areas were main­
tained for Negroes. The totally segregated situation ex­
isting before, and for a number of years after, Brown v. 
Board of Education, 347 U. S. 483, was entirely the work 
of state agents. The authorities’ attempt to evade com­
pliance with Brown through grossly discriminatory appli­
cation of the Virginia Pupil Placement law is spread on 
the record of this case, and recounted in the first opinion 
of the court below (317 F. 2d 429). In the era before the 
courts finally denounced use of the “pupil placement laws” 
to maintain segregation by initial placements based on 
race and discriminatory transfer procedures for those who 
sought to escape segregation,18 segregationist school boards 
widely proclaimed as the utmost wisdom a judicial declara­
tion that “ [s]omebody must enroll the pupils in the schools. 
They cannot enroll themselves; and we can think of no one 
better qualified to undertake the task than the officials of 
the schools and the school boards having the schools in 
charge” (Carson v. Warlick, 238 F. 2d 724 (4th Cir. 1956)).

Faced with judicial condemnation of their pupil place­
ment scheme, and the knowledge that assignment of chil-

18 See, for example, Green v. School Board of City of Roanoke, 
304 F. 2d 118 (4th Cir. 1962) ; Dodson v. School Board of City of 
Charlottesville, 289 F. 2d 439 (4th Cir. 1961) ; Bush v. Orleans 
Parish School Board, 308 F. 2d 491, 498 (5th Cir. 1962) ; North- 
cross v. Board of Education of Memphis, 302 F. 2d 818 (6th Cir. 
1962).



21

dren by fairly drawn geographic areas in Richmond would 
result in desegregation of a substantial number of schools 
and the assignment of white children to Negro schools,19 
the authorities have announced the principle of “free 
choice.” They have done so fortified by the knowledge 
that social pressure will tend to preserve much of the 
pattern of segregation, their theory that “99 per cent of 
the Negro parents . . . prefer . . . the Negro school” (R. 
11-54), and the continued practice of faculty segregation 
which proclaims the pattern the state has struggled to 
preserve, so that no one can mistake a “Negro school” or 
a “wdiite school.”

Faculty segregation is the key factor in the equation. 
It racially identifies schools as effectively as a sign over 
the door and enables the plan to offer parents a choice 
between a Negro-faculty school and a white-faculty school. 
Continued faculty segregation obviously discourages whites 
from attending Negro schools no matter how accessible or 
convenient. The principal implication of segregation prac­
tices, that Negroes are considered inferior and unfit to 
associate with whites, is surely not lost on white parents 
confronted with a school board policy which indicates by 
its very existence that the race of teachers makes a dif­
ference and is something to be taken into account in organ­
izing schools. Cf. Anderson v. Martin, 375 IT. S. 399. Nor 
is it lost on Negro parents that the school authorities are 
moving only grudgingly under pressure, clinging to ves­
tiges of the segregated system to make it clear that at least 
as a gross proposition Negro pupils enter white schools

19 See the maps and overlays indicating the number of pupils in 
various areas of the city discussed in note 10, supra.



22

as unwelcome aliens, and that the school board will never 
take the initiative to put them there. Negroes know that 
Negro teachers face a diminishing need for their services 
to the extent that Negro pupils choose desegregated schools 
if Negroes are excluded from the possibility of assignments 
to teach white children. Teachers who are a significant 
portion of the Negro leadership group are thus faced with 
a cruel dilemma by the school authorities.

A basic effect of the free choice plan—especially when 
combined with faculty segregation—is to perpetuate the 
all-Negro school. The board knows that there are no ap­
plications by whites to attend Negro schools. It also knows 
that although initially white schools have the capacity to 
absorb some Negro pupils in vacant seats, that capacity 
is finite and indeed very limited when compared with the 
total number of Negro pupils. The promise to deal with 
such an overcrowding by prescribing attendance zones or 
some geographic standard if more Negroes apply to a 
white school than it can hold, is no complete answer. It 
apparently ignores the obligation of the school board to 
prevent overcrowding in Negro schools by assigning Negro 
pupils to nearby white schools with vacant space in order 
to provide an equal educational opportunity in both schools. 
The school board’s theory that it will not force Negro 
children to go to school with whites and that there is noth­
ing wrong with “voluntary” pupil segregation, coupled 
with mandatory teacher segregation, runs afoul of its ob­
ligation to provide equal educational opportunity without 
regard to race.

The so-called freedom of choice—joined with staff seg­
regation—plan represents a partial abdication of the school



23

board’s duty to insure equal education by equal utilization 
and allocation of available facilities. There is no evidence 
to support, and good reason to doubt, the conclusion of the 
court below that a free choice plan is “administratively, far 
easier of accomplishment” than a plan of initially placing 
pupils in schools. It is as reasonable to think that large 
numbers of transfers would make planning for the future 
infinitely more difficult and complicated, and render useless 
the normal type of projections of school enrollments used 
in school building plans and the like under the previous 
zoning system. (See Pi’s Ex. 2—the school board’s five 
year projection of enrollments in each school from the 
1962-63 to 1966-67 term.) The projected administrative 
feasibility of the freedom of choice plan seems clearly 
linked to an expectation that relatively few of the more 
than 23,000 Negroes in the system will transfer to white 
schools.

None of the above is intended to deny a school board’s 
abstract, hypothetical, right to adopt a free choice plan in 
other circumstances. The school board relies on the fact 
that Baltimore used such a plan. As Judges Sobeloff and 
Bell pointed out in their concurring opinion, Baltimore had 
an entirely different official response to the Brown decision 
than Richmond did. And Baltimore, which had free choice 
before Brown, desegregated its faculties.20 The majority 
below apparently rejects the suggestion of Judges Sobeloff 
and Bell that the free choice plan cannot be properly ap­
praised until experience indicates how it works, and seems

20 “Statistical Summary of School Segregation—Desegregation,” 
supra, p. 31, indicates Baltimore City had 2,052 Negro teachers in 
desegregated positions.



24

to decide that the method of allowing parents to choose 
schools is unobjectionable per se and thus it does not matter 
to what extent the method actually desegregates the school 
system. It should be noted that the Commissioner of Edu­
cation, while indicating that freedom of choice plans as 
well as other types of plans may be submitted to the Office 
of Education, has served advance notice that actual per­
formance will be a test in evaluating plans to determine 
if they accomplish the purposes of the Civil Rights Act 
(General Policy Statement, supra, part V. B.(6)), and that 
periodic compliance reports will be required.

Courts of equity have in other circumstances required 
wrongdoers to do more than cease their unlawful activities 
and compelled them to take further affirmative steps to 
undo the effects of their wrongdoing. This Court only re­
cently approved such a decree in Louisiana v. United States, 
380 U. S. 145, 154, saying:

[T]he court has not merely the power but the duty 
to render a decree which will so far as possible elimi­
nate the discriminatory effects of the past as well as 
bar like discrimination in the future.

Analogies exist under the Sherman Antitrust Act, where 
unlawful combinations are commonly dealt with through 
dissolution and stock divestiture decrees (see, e.g. United 
States v. Crescent Amusement Co., 323 IJ. S. 173, 189, and 
cases cited), and under the National Labor Relations Act 
where it was early recognized that disestablishment of an 
employer-dominated labor organization “may be the only 
effective way of wiping the slate clean and affording the 
employees an opportunity to start afresh in organizing 
. . . ” (N. L. R. B. v. Newport News Shipbuilding <& Dry



25

Dock Co., 308 U. S. 241, 250).21 Similar equitable princi­
ples should be applied here where the school board has 
adopted the method of operation least calculated to extend 
a desegregated education to large numbers of pupils.

II.
Segregation of Public School Teachers Violates the 

Fourteenth Amendment and Negro Pupils Are Entitled 
to Relief Against This Element of Segregated School 
Systems.

The segregation of public employees by race plainly vio­
lates the Fourteenth Amendment under principles settled 
in Brown v. Board of Education, 347 II. S. 483, 349 U. S. 
294, and the long line of cases applying the Amendment to 
prohibit all racial discrimination by the states.22 Diserimi-

21 See also American Enka Corp. v. N. L. R. B., 119 F. 2d 60, 63 
(4th Cir. 1941). In Sperry Gyroscope Co. Inc. v. N. L. R. B., 129 
F. 2d 922, 931-932 (2nd Cir. 1942), Judge Jerome Frank compared 
Labor Board orders requiring disestablishment of company-dom­
inated unions to “the doctrine of those cases in which a court of 
equity, without relying on any statute, decrees the sale of assets 
of a corporation although it is a solvent going concern, because the 
past repeated unconscionable conduct of dominating stockholders 
makes it highly improbable that the improper use of their power 
will ever cease” (citing cases).

22 In a unanimous opinion this Court said:
“ . . . [UJnder our more recent decisions any state or 

federal law requiring applicants for any job to be turned away 
because of their color would be invalid under the Due Process 
Clause of the Fifth Amendment and the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment.”

Colorado Anti-Discrimination Commission v. Continental Air Lines, 
372 U. S. 714, 721.

See also, Johnson v. Virginia, 373 U. S. 61 (courtroom) ; Bailey 
v. Patterson, 369 U. S. 31 (transportation) ; Peterson v. Greenville,



26

nation in the hiring and assignment of public school 
teachers surely violates the teachers’ rights. The defen­
dants cannot seriously contend to the contrary. The only 
possible justification for withholding relief is that peti­
tioners who are public school pupils are not entitled to 
invoke the aid of the courts to halt the admittedly unlawful 
practice. Petitioners submit that the unlawful practice is 
closely linked to their right under Brown v. Board of Edu­
cation, 349 U. S. 297, to have the district courts supervise 
the effectuation of “a racially nondiseriminatory school 
system” (349 U. S. at 301, emphasis added). The Court in 
deciding the second Brown case, supra, pointed to admin­
istrative problems related to “the physical condition of the 
school plant, the school transportation system, personnel, 
revision of school districts and attendance areas into com­
pact units to achieve a system of determining admission 
to the public schools on a nonracial basis, and revision of 
local laws and regulations . . .  ”, as matters to be considered 
in appraising the time necessary for good faith compliance 
(emphasis added). We believe that the Court plainly re­
garded the task as one of ending all discrimination in school 
systems, including discrimination in the transportation sys­
tem, attendance districts or the other factors mentioned. 
The delay countenanced by the “deliberate speed” doctrine 
was predicated on the assumption that dual school systems 
would be reorganized.

373 U. S. 244 (restaurant) ; Turner v. Memphis, 369 U. S. 350 
(airport restaurant) ; Browder v. Gayle, 352 U. S. 903 (buses) ; 
Griffin v. School Board of Prince Edward County, 377 U. S. 218 
(schools) ; Dawson v. Baltimore City, 350 U. S. 877 (municipal 
beaches); Holmes v. Atlanta, 350 U. S. 879 (municipal golf 
courses).



27

The brief of the United States, as amicus curiae, in 
Calhoun v. Latimer, 377 'U. S. 263, argued in this Court 
that:

Obviously, a public school system cannot be truly non- 
discriminatory if the school board assigns school per­
sonnel on the basis of race. Full desegregation can 
never be achieved if certain schools continue to have 
all-Negro faculties while others have all-white faculties. 
Schools will continue to be known as “white schools” 
or “Negro schools” depending on the racial composi­
tion of their faculties. It follows that the school au­
thorities must take steps to eliminate segregation of 
personnel as well as pupils. (Brief of the United 
States, pp. 39-40.)

The Court in Calhoun vacated the judgment without dis­
cussion of this issue. We submit that this case presents an 
appropriate occasion to consider this question.

The record indicates the complete segregation of school 
faculties and the general personnel policies of the school 
system (see pp. 7-8, supra). Virginia law, and the personnel 
policies of Richmond, authorize the superintendent to as­
sign and reassign teachers and other staff serving the 
pupils. Code of Va. 1950 (1964 Replacement Vol.), §22-205.23

23 Section 22-205 provides :
Assignment of teachers, including principals, by superinten­
dent.—The division superintendent shall have authority to 
assign to their respective positions in the school wherein they 
have been placed by the school board all teachers, including 
principals, and reassign them therein, provided no change or 
reassignment shall affect the salary of such teachers; and 
provided, further, that he shall make appropriate reports and 
explanations on the request of the school board.



Another Virginia law enacted in 1962, Code of Va, 1950 
(1964 Replacement Vol.), §22-207, plainly encourages 
teacher segregation by expressly authorizing teachers to 
terminate their contracts with school boards if pupils or 
teachers at their schools are desegregated.24 This law, 
plainly enacted in defiance of Brown, shows the link be­
tween teacher and pupil segregation in segregationists’ 
thinking.

But the Fourth Circuit has not stated its disapproval of 
faculty segregation in any of the cases in which it has con­
sidered the matter26 and apparently has adopted the view

24 §22-207. Written contracts with teachers required; termination 
by teachers.—Written contracts shall be made by the school board 
with all public school teachers, except those temporarily employed 
as substitute teachers, before they enter upon their duties, in a 
form to be prescribed by the Superintendent of Public Instruction. 
Such contracts shall be signed in duplicate, each party holding a 
copy thereof.

Every such contract hereafter entered into, whether or not 
expressly provided therein, may be terminated by the teacher, by 
notice in writing to the local school board, at any time after loth 
white and Negro pupils shall have leen enrolled, or loth white and 
Negro teachers shall have leen employed, in the school to which 
the contracting teacher is assigned. (Emphasis supplied.)
(The second paragraph was added by a 1962 amendment: Acts of 
Va. 1962, chapter 183.)

25 Faculty segregation was first considered by the Fourth Circuit 
m Jackson v. School Board of the City of Lynchburg, 321 F. 2d 
230, 233 (4th Cir. 1963), where it held that a complaint asking 
for desegregation of a school system was sufficient to raise the 
question. See also, Griffin v. Board of Supervisors, 339 F. 2d 
486, 493 (4th Cir. 1964) ; Bowditch v. Buncombe County Board 
of Ed., 345 F. 2d 329, 332, 333 (4th Cir. 1965) ; Wheeler v.
Durham City Board of Education, ------ F. 2d ___  (4th Cir.
No. 9630, June 1, 1965), and Gilliam v. School Board of City of 
Hopewell, 345 F. 2d 325 (4th Cir. 1965).

In the Fifth Circuit see: Board of Public Instruction of Duval 
■County v. Braxton, 326 F. 2d 616, 620 (5th Cir. 1964), cert.



29

that faculty desegregation must depend upon some kind 
of evidentiary showing by plaintiff Negro pupils that they 
are disadvantaged by the practice in the circumstances of 
the particular case. That is the only reasonable explana­
tion for the Fourth Circuit’s repeated statements in cases 
where the existence of faculty segregation is undisputed, 
that there was insufficient showing that faculty segregation 
was a denial of plaintiffs’ constitutional rights. The Fourth 
Circuit apparently accepts the standing of pupils to litigate 
the question but demands that they prove that faculty 
segregation is a discrimination against them—as opposed 
to a discrimination against the teachers themselves.

denied 377 U. S. 924 (affirming a trial court order requiring a 
faculty desegregation plan). See also Augustus v. Board of Public 
Instruction of Escambia, County, 306 F. 2d 862 (5th Cir. 1962) ; 
Calhoun v. Latimer, 321 F. 2d 302 (5th Cir. 1963), vacated and 
remanded 377 U. S. 263.

The Sixth Circuit has twice held that it was proper for pupils 
and their parents to raise the issue of segregation of teachers. 
Ma-pp v. Board of Education of City of Chattanooga, 319 F. 2d 
571, 576 (6th Cir. 1963) ; Northcross v. Board of Education of 
City of Memphis, 333 F. 2d 661, 666 (6th Cir. 1964).

Several other courts have discussed the question of segregation 
of teachers with a variety of results. Brooks v. School District 
of City of Moberly, Mo., 267 F. 2d 733 (8th Cir. 1959), cert, 
denied 361 IT. S. 894 (1959) (teacher firing); Franklin v. County 
Scool Board of Giles County, Civil No. 64-C-73-B, W. D .Va., 
June 3, 1965 (same) ; Christmas v. Board of Education of Har­
ford County, 231 F. Supp. 331 (D. Md. 1964) ; Nesbit v. Statesville 
City Board of Education, 232 F. Supp. 288 (W. D. N. C. 1964), 
vacated, 345 F. 2d 333 (4th Cir. 1965) ; Tillman v. Board of In­
struction of Volusia County, Florida, Civil No. 4501, 7 Race Rel. 
L. Rep. 687 (S. D. Fla. 1962) ; Manning v. Board of Public Instruc­
tion of Hillsborough County, Fla., Civil No. 3554, 7 Race Rel. L. 
Rep. 681 (S. D. Fla. 1962) ; Lawrence v. Bowling Green, Ky. Board 
of Education, Civil No. 819, 8 Race Rel. L. Rep. 74 (N. D. Ky. 
1963) ; Mason v. Jessamine County, Ky. Board of Education, Civil 
No. 1496, 8 Race Rel. L. Rep. 75 (E. D. Ky. 1963) ; Dowell v. School 
Board of Oklahoma City Public Schools, 219 F. Supp. 427 (N. D. 
Okla. 1963).



30

But, as Judges Sobeloff and Bell have said, faculty segre­
gation obviously makes student desegregation more diffi­
cult. To the extent that students or parents are given a 
choice between schools, faculty segregation encourages 
them to make their choice on a racial basis. The very exist­
ence of faculty segregation reflects the school authorities’ 
judgment that the race of teachers is significant and makes 
a difference. Cf. Anderson v. Martin, 375 U. S. 399. This 
is obvious in the context of states where school segregation 
has been defended vigorously by public officials for a decade 
since Brown.

Faculty segregation assures continuance of the prevail­
ing trend of one-way desegregation, i.e., movement of Negro 
pupils to formerly white schools without any corresponding 
movement of white pupils to Negro faculty schools. 
Throughout the southeast part of the country there are few 
exceptions to this brand of “desegregation” which leaves 
the “Negro” school intact with an all-Negro student body 
and faculty.26 If the established trend continues it may 
have extraordinarily serious implications threatening the 
jobs of large numbers of Negro teachers. They are not 
assigned to teach white pupils and face the departure of 
some Negro pupils to white-faculty schools, with a corre­
sponding decrease in demand for their services. A recent 
decision by Judge Michie in the Western District of Vir­
ginia enjoined school authorities who discharged every 
Negro teacher in a small system when the schools desegre­
gated (Franklin v. School Board of Giles County, —— F.

26 See the comprehensive statistics published by the Southern 
Education Reporting Service in its periodic “Statistical Summary 
of School Segregation—Desegregation in the Southern and Border 
States,” 14th Revision, November 1964, passim.



31

Supp.----- , W. D. Va., Civ. No. 64-C-73-R, June 3, 1965).
Cases involving Negro teacher discharges coincident with 
desegregation are pending in district courts in North Caro­
lina, Texas and Oklahoma.

The public importance of the issue is illuminated perhaps 
by consideration of some societal factors involved. It is 
estimated that there are 419,199 white teachers and 116,028 
Negro teachers in 11 southern states, 6 border states (ex­
cluding Maryland) and the District of Columbia.27 In 1963- 
64, Virginia public schools employed 31,443 white teachers 
and 9,051 Negro teachers.28 There were 733,524 white pupils 
and 34,176 Negro pupils (total 967,700).29 Of 128 districts 
with Negro and white pupils, 81 districts had at least one 
Negro pupil in school with whites in November 1964, but 
only five of those districts had Negroes teaching in school 
with whites.30 There was no faculty desegregation in Ala­
bama, Georgia, Louisiana, Mississippi and South Caro­
lina.31 One North Carolina district, 2 Florida districts, and 
7 Tennessee districts had some faculty desegregation, and 
one Arkansas district had a Negro supervisor of elementary 
schools but no Negro teachers in desegregated classes.32

27 Southern Education Reporting Service, Statistical Summary 
of School Segregation-Desegregation (cited supra, note 12) (Nov. 
1964), p. 2.

28 Id. at 59.
29 Ibid.
30 Ibid. The summary reports: “Some Negro teachers are teach­

ing in schools with whites in Alexandria and Roanoke, and in 
Arlington and Fairfax Counties. In Prince Edward County, nine 
of the 68 teachers in the county’s one high school and three ele­
mentary schools are white.”

31 Id. at 2.
32 Id. at 8,15, 39, 50.



32

There has been a prolonged national shortage of teachers 
and the supply of new teachers does not meet the demand.33 
This pattern holds true in Virginia.34 The N. E. A. Re­
search Division conservatively estimates the national 
teacher turnover rate at 8.5 percent of teachers withdraw­
ing from teaching annually.35

Within the Negro community Negro teachers generally 
are recognized as having a leadership role with a compara­
tively high economic position,36 but their potential as 
leaders in efforts to promote desegregation of public facili­
ties and schools is limited by the vulnerability of their posi­
tion as employees of segregationist state agencies.37 Con­
tinued faculty segregation, posing the danger of discharge

38 Research Division—National Education Association, Teacher 
Supply and Demand in Public Schools, 1965 (Research Report 
1965-R10, June 1965), passim.

34 Id. at 57.
35 Id. at 29.
36 According to the 1960 census the median income for the non- 

white family was $3,662, but the median for the non-white family 
whose head was employed as an elementary or secondary teacher 
was $6,409 (1960 Census of Population, Vol. I, “Characteristics 
of the Population,” Part I, U. S. Summary, Table 230, pp. 1-611).

37 Lamanna, Richard A., “The Negro Teacher and Desegrega­
tion”, Sociological Inquiry, Vol. 35, No. 1, Winter 1965. Alabama 
has enacted 7 laws to permit firing of teachers who advocate de­
segregation (1956 1st Sp. Sess., Acts 40, 41; 1957 Sess., Act 239, 
361; 1961 Sp. Sess., Acts 249, 383, 443). Arkansas laws prohibited 
NAACP members from holding public employment and required 
teachers to list organization membership until Shelton v. Tucker, 
364 U. S. 479. A series of Louisiana laws provided for dismissal 
of public employees advocating integration (La. Acts 1956, Acts 
248, 249, 250, 252). Until challenged in court South Carolina 
barred public employment of NAACP members (S. C. Acts 1956, 
Act 741), repealed by Act 223 of 1957. See Bryan v. Austin, 148 
F. Supp. 563 (E. D. S. C. 1957), judgment vacated 354 U. S. 
933.



33

of Negro teachers as Negro pupils go to white schools 
where no Negro teachers are assigned threatens potentially 
disastrous social consequences for one of the most impor­
tant social and economic groups in Negro communities in 
the South.

Petitioners submit that faculty segregation per se vio­
lates the constitutional rights of Negro pupils because of 
its inevitable tendency to impede desegregation of pupils. 
In recognition of this the United States Commissioner of 
Education, implementing Title VI of the Civil Rights Act 
of 1964,38 has announced the following ruling to all school 
districts submitting plans for desegregation in order to 
qualify for federal financial aid (General Policy Statement, 
supra, Part V. B .):

1. Faculty and staff desegregation. All desegrega­
tion plans shall provide for the desegregation of fac­
ulty and staff in accordance with the following require­
ments :

a. Initial assignments. The race, color, or national 
origin of pupils shall not be a factor in the assignment 
to a particular school or class within a school of 
teachers, administrators or other employees who serve 
pupils.

b. Segregation resulting from prior discriminatory 
assignments. Steps shall also be taken toward the 
elimination of segregation of teaching and staff person­
nel in the school resulting from prior assignments 
based on race, color, or national origin (see also, V. E. 
4(b)).

38 42 U. S. C. A. §2()00d.



34

The General Policy Statement also indicates that it will 
not accept an “Assurance of Compliance” (HEW Form 
441) from any school system in which “teachers or other 
staff who serve pupils remain segregated.” We submit that 
the determination by the United States Commissioner of 
Education that faculty desegregation must be included in 
order for a desegregation plan to be “adequate to accom­
plish the purposes of the Civil Rights Act” is entitled to 
substantial weight. But beyond that the Commissioner’s 
determination implements the clear intent of the Congres­
sional proponents of Title VI. See Vice President (then 
Senator) Humphrey’s interpretation of Title VI quoted 
supra, pp. 17-18.

The Fourth Circuit has not indicated that there is any 
justification for the policy of assigning teachers on the 
basis of the race of the pupils, and the school authorities 
have not suggested any. Nor have the school authorities 
made any effort to establish that there are administrative 
obstacles to faculty desegregation justifying delay under 
the doctrine of the second Brown decision (349 U. S. at 
300-01).

A policy of assigning teachers to schools on the basis of 
the race of the pupils is plainly invidious even without 
regard to its effect on what schools various pupils attend. 
Pupils admitted to public schools are entitled to be treated 
alike without racial differentiations in those schools. 
McLaurin v. Oklahoma State Regents, 339 U. S. 637. The 
student’s relationship with teachers is central to the edu­
cational experience in public schools. When a state decrees 
that those Negro pupils in all-Negro schools be taught only 
by Negro teachers and that those Negro pupils in schools



35

with white children be taught only by white teachers, it 
significantly perpetuates the segregation of Negro Ameri­
cans in their educational experience. This is contrary to 
the egalitarian principle of the Fourteenth Amendment and 
the teaching of Brown that segregated education is “in­
herently unequal.”

The issues presented by the “freedom of choice” plans 
and the faculty segregation issue merge into a common 
problem of vital importance to the implementation of the 
Brown decision, and are worthy of the attention of this 
Court.

CONCLUSION

W h e re fo re , f o r  th e  fo re g o in g  rea so n s  it  is re sp e c t­
fu lly  su b m itte d  th a t  th e  p e ti t io n  f o r  c e r t io ra r i  sh o u ld  be 
granted.

Respectfully submitted,

J ack  Greenberg  
J am es M . N a b eit , III 

101 Columbus Circle 
New York, N. Y. 10019

S. W. T u c k er  
H en r y  L. M a r sh , III 

214 East Clay Street 
Richmond 19, Virginia



A P P E N D I X



A P PE N D IX

M e m o ra n d u m  o f  th e  C o u rt

[July 25, 1962]

Eleven Negro students, their parents and guardians in­
stituted this action to require the defendants to transfer the 
students from Negro public schools to white public schools. 
The plaintiffs also pray, on behalf of all persons similarly 
situated, that the defendants be enjoined from operating 
racially segregated schools and that the defendants be 
required to submit to the Court a plan of desegregation.

The Pupil Placement Board answered, admitting that the 
plaintiffs had complied with its regulations for transfer 
and denying the other allegations of the complaint. The 
City School Board and the Superintendent of Schools an­
swered and moved to dismiss on the ground that sole 
responsibility for the placement of pupils rested with the 
Pupil Placement Board pursuant to the Pupil Placement 
Act of Virginia, Sections 22-232.1 through 232.17 of the 
Code of Virginia, as amended.

The defendants interpreted the bill of complaint as at­
tacking the constitutionality of the Pupil Placement Act 
and moved to dismiss on the ground that its constitution­
ality should first be determined by the Supreme Court of 
Appeals of Virginia, or the case should be heard by a dis­
trict court of three judges.

The evidence disclosed that the City of Eichmond is 
divided into a number of geographically defined attendance 
areas for both white and Negro schools. These areas were 
established by the School Board prior to 1954 and have not



2a

Memorandum of the Court

been changed in a material way since that time. Several 
areas for white and Negro schools overlap. The Pupil 
Placement Board enrolls and transfers all students. Neither 
the Richmond School Board nor the Superintendent makes 
recommendations to the Pupil Placement Board.

During the 1961-1962 school term, thirty-seven Negro 
students were assigned to white schools. For the 1962-1963 
school term, ninety additional students have been assigned. 
At the start of the 1962-1963 school term all of the white 
high schools will have Negro students in attendance. Negro 
students will also attend several of the white junior high 
schools and elementary schools.

Rigid adherence to placement of students by attendance 
areas has been modified in four respects. First, the Chair­
man of the Pupil Placement Board testified that any Negro 
child applying for enrollment in the first grade of a white 
public school in his attendance area is assigned to that 
school. Second, the Superintendent of Schools testified that 
George Wythe High School and John Marshall High School 
had been constructed to accommodate all high school stu­
dents in their respective attendance areas. Counsel stated 
in argument that six Negro students had applied for admis­
sion to George Wythe High School for 1962 and all had 
been accepted. Third, a Negro student presently attending 
a white school, upon promotion to a higher school, is rou­
tinely assigned to a white school. Fourth, some Negro stu­
dents have been assigned to schools in white attendance 
areas.

Usually, however, assignments of students based on pro­
motion from an elementary school to a junior high school



3a

Memorandum of the Court

and from junior high to high school are routinely made by 
the Pupil Placement Board. These assignments generally 
follow a pattern, aptly described as a system of “feeder 
schools,” that existed prior to 1954. Thus, a student from 
a white elementary school is routinely promoted to a white 
junior high school and in due course to a white high school. 
A Negro student is routinely promoted from a Negro ele­
mentary school to a Negro junior high school and finally a 
Negro high school. In order to change the normal course 
of assignment based on promotion all students must apply 
to the Pupil Placement Board. The majority of the plain­
tiffs in the present case are such applicants.

The Chairman of the Pupil Placement Board testified 
that 98 per cent of the applications were of a routine nature 
and were handled by the staff of the Board. The remain­
ing 2 per cent, divided about equally between white and 
Negro applicants, requested transfers from one school to 
another outside of the regular routine. These percentages 
applied to the entire state, but there was no evidence that 
they varied materially for the City of Richmond.

First to be determined are the defendants’ motions to 
dismiss on the ground that the case involves the consti­
tutionality of the Pupil Placement Act. The plaintiffs have 
made no challenge of the constitutionality of the Act, 
and the motions are denied.

The second issue is the joinder of the School Board and 
Superintendent of Schools. The State Pupil Placement 
Board has authority over the placement of pupils, and the 
local officials refrain from making recommendations to the 
Board, but approximately 98 per cent of the placements



4a

Memorandum of the Court

are made routinely as a result of the regulations of the 
School Board pertaining to attendance areas. The evidence 
shows that the State Pupil Placement Board has no inclina­
tion to vary these attendance areas, although undoubtedly 
it has authority to do so. In view of this situation, the 
School Board and the Superintendent of Schools are proper 
parties.

The next issue concerns the plaintiffs’ applications. The 
Court was advised that Lemuel Wimbish, Jr. has been 
assigned to Chandler Junior High School to which he had 
made application. His case is moot.

The following students who have completed elementary 
school seek admission to Chandler Junior High School: 
Carolyn Bradley, Rosalind Hobson, John Edward Johnson, 
Jr., and William Dunbar Quarles, Jr.

The State Pupil Placement Board, after comparing test 
scores of these students with test scores of other students, 
denied the applications on the ground of lack of academic 
qualifications. The plaintiffs do not challenge the tests or 
the method of comparison used by the State Pupil Place­
ment Board. The plaintiffs emphasize, however, that stu­
dents from white elementary schools in the same attend­
ance area are placed routinely in Chandler Junior High 
School, and their scores are not scrutinized by the State 
Pupil Placement Board. On the other hand, the plaintiffs, 
because they sought transfer based on promotion from a 
Negro elementary school, are screened by the State Pupil 
Placement Board. This is a valid criticism of the procedure 
inherent in the system of “feeder schools.”



5a

Memorandum of the Court

Proper scholastic tests may be used to determine the 
placement of students. But when the tests are applied only 
to Negroes seeking admission to particular schools and not 
to white students routinely assigned to the same schools, 
the use of the tests cannot be sustained. Jones v. School 
Board of Alexandria, 278 F. 2d 72 (4th Cir. 1960).

Plaintiff, Morgan N. Jackson, who was promoted from 
Graves Junior High School, seeks admission to John Mar­
shall High School. His application was denied because he 
lives thirteen blocks from the John Marshall High School 
and five blocks from a Negro high school. The plaintiffs 
point out that he lives in the attendance area of John Mar­
shall High School, and had he been a white student he 
would have been routinely assigned to John Marshall High 
School without determination of whether his residence was 
closer to that high school or any other high school. Resi­
dence may be a proper basis for assignment of pupils, but 
it is an invalid criteria when linked to a system of “feeder 
schools.” Dodson v. School Board of the City of Char­
lottesville, 289 F. 2d 489 (4th Cir. 1961).

The third group of plaintiffs, namely, Michael Bradley, 
Daria A. Cameron, Bruce W. Johnson, Phyllis Antoinette 
Johnson and Robert S. Meyers, seek to transfer from 
Graves Junior High School to Chandler Junior High 
School. They were denied transfer because of lack of aca­
demic qualifications. The evidence showed that the same 
standards for determining transfer from one junior high 
school to another junior high school were applied by the 
Board indiscriminately to both white and colored students. 
Were this the only factor in this phase of the case, the issue



6a

Memorandum of the Court

would involve only judicial review of the decision of an 
administrative board. However, the situation of these 
plaintiffs must be considered in the context of the system 
of “feeder schools,” which routinely placed them in the 
Graves Junior High School while white students routinely 
were placed in Chandler Junior High School. The applica­
tion of scholarship qualifications under these circumstances 
is discriminatory. Green v. School Board of the City of 
Boanohe,-----  F. 2d —— (4th Cir., May 22, 1962).

The foregoing facts and conclusions of law require the 
admission of the plaintiffs to the schools for which they 
made application.

The plaintiffs prayed that the defendants be enjoined 
from continued discrimination in the city schools and that 
the School Board be required to submit a desegregation 
plan. The Court has weighed all of the factors presented 
by the evidence in this case and finds that the defendants 
have taken measures to eliminate racially discriminatory 
enrollments in the first grade. Apparently they are elimi­
nating discriminatory enrollments in George Wythe High 
School and they are routinely assigning Negro students in 
white junior high schools to white high schools.

While the School Board has not presented a formal plan 
of desegregation, the Court finds that the defendants have 
made a reasonable start toward a non-discriminatory school 
system resulting in the attendance of 127 Negro students 
in white schools for the 1962-1963 school term. In view of 
the steps that have been taken in this direction, the Court 
concludes that the defendants should be allowed discretion



7a

Memorandum of the Court

to fashion within a reasonable time the changes necessary 
to eliminate the remaining objectionable features of the 
system of “feeder schools.”

In Brown v. Board of Education, 349 U. S. 294, 300 (1955), 
the Supreme Court stated “Traditionally, equity has been 
characterized by a practical flexibility in shaping its rem­
edies and by a facility for adjusting and reconciling public 
and private needs.” The Court is of the opinion that the 
relief decreed in this case is sufficient at this time in view 
of the evidence presented. The refusal of broad injunctive 
relief now is not to be construed as approval to continue the 
“feeder school system” as it is now operated. See Hill v. 
School. Board of the City of Norfolk, Virginia, 282 F. 2d 
473 (4th Cir. 1960); Dodson v. School Board of the City of 
Charlottesville, 289 F. 2d 439 (4th Cir. 1961).

This case will be retained on the docket for such further 
relief as may be appropriate.

J o h x  D . B tjtzner , J r . 
United States District Judge

Richmond, Virginia 
July 25, 1962



8a

D ecree

This cause came on to be heard upon the bill of complaint, 
the amended complaint, the several motions to dismiss and 
answers filed by the Pupil Placement Board of the Com­
monwealth of Virginia and the School Board of the City of 
Richmond and the Division Superintendent of Schools, the 
depositions of witnesses duly taken and filed, the testimony 
of witnesses heard ore tenus and exhibits; and was argued 
by counsel.

Upon consideration whereof, for reasons appearing in 
the Memorandum of the Court this day made a part of the 
record, the Court doth A d ju d g e , Order and D ecree  as fol­
lows :

1. The motions to dismiss are denied.
2. The defendants, and each of them, are enjoined and 

restrained from denying Carolyn Bradley, Michael Bradley, 
Daria A. Cameron, Rosalind Dobson, Bruce W. Johnson, 
John Edward Johnson, Jr., Phyllis Antoinette Johnson, 
Robert S. Meyers and William Dunbar Quarles, Jr., admis­
sion to Chandler Junior High School, and from denying 
Morgan N. Jackson admission to John Marshall High 
School.

3. The prayer of the plaintiffs for further injunctive 
relief is denied at this time.

4. This cause is retained on the docket, with leave of any 
party, or of persons constituting a class with the plaintiffs, 
to petition for appropriate relief.

J o h n  D. B ijt z x e k , J r .
United States District Judge

Richmond, Virginia 
July 25, 1962



9 a

Opinion of Boreman, U.S.C.J.

UNITED STATES COUET OF APPEALS 

F o u r th  C ir c u it  

No. 8757
Argued Jan. 9,1963 

Decided May 10,1963

M inerva  B radley , I. A. J a ck so n , J r., R osa L ee  Q u a r les , 
J o h n  E dward J o h n s o n , E l ih u  C. M yers a n d  E l iz a b e t h  

S. M yers ,
Appellants,

T h e  S chool  B oard of t h e  C ity  of R ic h m o n d , V ir g in ia , 
H. I. W il l e t , Division Superintendent of Schools of the 
City of Richmond, Virginia, and E. J .  O glesby , A lfred  
L . W ingo  and E . T . J u s t is , individually and constitut­
ing the Pupil Placement Board of the Commonwealth 
of Virginia,

Appellees.

Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, 
Richmond, Va., on brief) for appellants.

Henry T. Wickham, Sp. Counsel, City of Richmond 
(J. Elliott Drinard, City Atty., Richmond, Va. and Tucker, 
Mays, Moore & Reed, Richmond, Va., on brief) for ap­
pellees, The School Board of the City of Richmond, Vir­
ginia, and H. I. Willet, Division Superintendent of Schools.



10a

Opinion of Boreman, U.S.C.J.

Before B orem an , B ryan  and J. S pe n c e r  B e l l , Circuit 
Judges.
B o rem a n , Circuit Judge:

This is a school case involving alleged racially discrimina­
tory practices and the maintenance of public schools on a 
racially segregated basis in the City of Richmond, Virginia. 
In September 1961 eleven Negro pupils, their parents and 
guardians instituted this action to require the defendants to 
transfer the pupils from Negro public schools to white pub­
lic schools.1 The plaintiffs also pray, on behalf of all persons 
similarly situated, that the defendants be enjoined from 
operating racially segregated schools and be required to sub­
mit to the District Court a plan of desegregation. The Dis­
trict Court ordered that the individual infant plaintiffs be 
transferred to the schools for which they had applied. This 
appeal is based upon the refusal of the court to grant further 
injunctive relief.

Defendant, Virginia Pupil Placement Board, answered 
the complaint, admitting that plaintiffs had complied with 
its regulations pertaining to applications for transfer but 
denying discrimination and other allegations of the com­
plaint. The defendants, School Board of the City of Rich­
mond and the Richmond Superintendent of Schools, an­
swered and moved to dismiss on the ground that sole 
responsibility for the placement of pupils rested with the 
Virginia Pupil Placement Board pursuant to the Pupil

1 Of eleven original pnpil plaintiffs, one was assigned by the 
Pupil Placement Board to an integrated Junior High School to 
which he had made application before the hearing in the District 
Court. His case became moot.



11a

Opinion of Boreman, U.S.C.J.

Placement Act of Virginia, Sections 22-232.1 through 232.17, 
Code of Virginia, 1950, as amended.2

The defendants interpreted the bill of compaint as attack­
ing the constitutionality of the Pupil Placement Act and the 
motions to dismiss were grounded also on the theory that 
constitutionality should first be determined by the Supreme 
Court of Appeals of Virginia or the case should be heard 
by a District Court of three judges. The court below cor­
rectly denied the motions to dismiss after determining that 
the constitutionality of the Act had not been challenged by 
plaintiffs.

The record discloses that the City of Richmond is divided 
into a number of geographically defined attendance areas 
for both white and Negro schools. These areas were estab­
lished by the School Board prior to 1954 and have not been 
materially changed since that time. It is admitted that 
several attendance areas for white and Negro schools over­
lap. The State Pupil Placement Board enrolls and trans­
fers all pupils and neither the Richmond School Board nor 
the city Superintendent of Schools makes recommendations 
to the Pupil Placement Board.

2 Raised below (but not involved in this appeal) was the issue 
as to the joinder of the Richmond School Board and Superin­
tendent of Schools as parties defendant. Correctly, we think, the 
District Court held:

“ * * * The State Pupil Placement Board has authority 
over the placement of pupils, and the local officials refrain 
from making recommendations to the Board, but approxi­
mately 98 per cent of the placements are made routinely as a 
result of the regulations of the School Board pertaining to 
attendance areas. The evidence shows that the State Pupil 
Placement Board has no inclination to vary these attendance 
areas, although undoubtedly it has authority to do so. In view 
of this situation, the School Board and the Superintendent 
of Schools are proper parties.”



12a

Opinion of Foreman, U.S.C.J.

During the 1961-62 school term, 37 Negro pupils were 
assigned to “white” schools. For the 1962-63 school term, 
90 additional Negro pupils had been so assigned. At the 
start of the 1962-63 school term, all of the “white” high 
schools had Negro pupils in attendance. Negro pupils also 
attend several of the “white” junior high schools and ele­
mentary schools.

Certain additional facts are clearly established by the 
record. The City School Board maintains five high schools, 
three for whites and two for Negroes; five junior high 
schools for whites and four for Negroes; eighteen elemen­
tary schools for whites and twenty-two for Negroes. As of 
April 30, 1962, there were 40,263 pupils in Richmond public 
schools, 23,177 Negroes, 17,002 whites and 84 non-whites of 
a race other than Negro but considered white for the pur­
pose of assignment in the Richmond public school system. 
Only 37 Negroes were then attending schools which white 
children attended, 30 of those being in the “white” Chandler 
Junior High School. Three of the remaining seven were in 
attendance at the “white” John Marshall High School, one 
attended the “white” Westhampton Junior High School and 
three handicapped children attended the Richmond Cerebral 
Palsy Center. With the possible exception of the three last 
mentioned, these children had sought transfers from Negro 
schools and all but one were able to satisfy the residential 
and academic criteria which the Pupil Placement Board ap­
plies in case of transfers but not in case of initial enroll­
ment. The remaining child had been admitted by court 
order in earlier litigation.3

3 On September 2, 1958, a suit styled Lorna Renee Warden et al. 
v. The School Board of the City of Richmond, Virginia, et al. was



13a

Opinion of Boreman, U.S.C.J.

The 1961-62 Directory of the Richmond, Virginia, Public 
Schools shows “White Schools” in one division and “Negro 
Schools” in the other. The “White Schools” are staffed en­
tirely with faculties and officials of the Caucasian race. 
The schools listed as “Negro Schools” are staffed entirely 
with faculties and officials of the Negro race.

Thus it is clear, as found by the District Court, that Rich­
mond has dual school attendance areas; that the City is 
divided into areas for white schools and is again divided 
into areas for Negro schools; that in many instances the 
area for the white school and for the Negro school is the 
same and the areas overlap. Initial pupil enrollments are 
made pursuant to the dual attendance lines. Once enrolled, 
the pupils are routinely reassigned to the same school until 
graduation from that school. Upon graduation, the pupils 
are assigned in the manner found by the District Court to 
be as follows:

instituted in the District Court, praying, inter alia, that a per­
manent injunction be entered restraining the Richmond School 
Board and its division Superintendent of Schools from any and 
all actions that regulate or affect, on the basis of race or color, 
the admission, enrollment or education of the infant plaintiffs, 
or any other Negro child similarly situated, to and in any public 
school operated by the defendants.

That suit was decided on July 5, 1961. The District Court 
ordered that the then one remaining Negro plaintiff be transferred 
from the Negro school located five miles from her home and 
admitted to the white school in her neighborhood. However, the 
court denied class relief, stating: “There is no question as to the 
right of the infant plaintiff to be admitted to the schools of the 
City of Richmond without discrimination on the ground of race. 
She is admitted, however, as an individual, not as a class or group; 
and it is as an individual that her rights under the Constitution are 
asserted.”

The court refused to grant a permanent injunction and dismissed 
the case from the docket.



14a

Opinion of Foreman, U..S.C.J.

“ * * * [Assignments of students based on promo­
tion from an elementary school to a junior high school 
and from a junior high school to high school are rou­
tinely made by the Pupil Placement Board. These as­
signments generally follow a pattern, aptly described 
as a system of ‘feeder schools’, that existed prior to 
1954. Thus, a student from a white elementary school 
is routinely promoted to a white junior high school 
and in due course to a white high school. A Negro stu­
dent is routinely promoted from a Negro elementary 
school to a Negro junior high school and finally a Negro 
high school. In order to change the normal course of 
assignment based on promotion all students must apply 
to the Pupil Placement Board. The majority of the 
plaintiffs in the present case are such applicants.”

As of April 30, 1962, a rather serious problem of over­
crowding existed in the Richmond Negro public schools. Of 
the 28 Negro schools, 22 were overcrowded beyond normal 
capacity by 1775 pupils and the combined enrollments of 23 
of the 26 white schools were 2445 less than the normal 
capacity of those schools. For the current 1962-63 school 
term, the applications for transfers from Negro to white 
schools of only 127 Negro pupils had been granted.

Four of the infant plaintiffs, who had completed elemen­
tary school, sought admission to the white Chandler Jun­
ior High School. After comparing test scores of these pu­
pils with test scores of other pupils, the Pupil Placement 
Board denied the applications on the ground of lack of 
academic qualifications. These plaintiffs contended that 
pupils from white elementary schools in the same attendance



15a

Opinion of Boreman, U.S.C.J.

area are routinely placed in Chandler Junior High and their 
scholastic attainments or qualifications are not scrutinized 
by the Pupil Placement Board. The District Court con­
cluded that academic criteria were applied to Negro pupils 
seeking transfer based on promotion, which criteria were 
not applied to the white pupils promoted from elementary 
schools to junior high schools. This, said the court, is dis­
criminatory and is a valid criticism of the procedure in­
herent in the system of “feeder schools”. The court further 
stated:

“Proper scholastic tests may be used to determine 
the placement of students. But when the tests are ap­
plied only to Negroes seeking admission to particular 
schools and not to white students routinely assigned to 
the same schools, the use of the tests can not be sus­
tained. Jones v. School Board of the City of Alexan­
dria, 278 F. 2d 72 (4th Cir. I960).”

Another of the Negro plaintiffs, who was promoted from 
a Negro junior high school, sought admission to the “white” 
John Marshall High School. His application had been 
denied because he lived thirteen blocks from the John Mar­
shall High School and only five blocks from a Negro high 
school. However, it was pointed out in the court below that 
this plaintiff lives in the attendance area of the John Mar­
shall High School and, had he been a white student, he 
would have been routinely assigned there without consider­
ing the distance of his residence from that school or from 
another high school. The District Court said: “ * * * Besi- 
denee may be a proper basis for assignment of pupils, but it



16a

Opinion of Boremcm, U.S.C.J.

is an invalid criteria when linked to a system of ‘feeder 
schools’. Dodson v. School Board of the City of Charlottes­
ville, 289 F. 2d 439 (4th Cir. 1961).”

The remaining five plaintiffs sought transfers from the 
Graves Junior High School (Negro) to the “white” Chan­
dler Junior High School. They were denied transfer by the 
Pupil Placement Board because of lack of academic qualifi­
cations. The evidence showed that the same standards for 
determining transfers, upon application, from one junior 
high school to another junior high school were applied by 
the Board indiscriminately to both white and Negro pupils. 
The District Court stated:

“ * * * Were this the only factor in this phase of the 
case, the issue would involve only judicial review of the 
decision of an administrative board. However, the 
situation of these plaintiffs must be considered in the 
context of the system of ‘feeder schools’, which rou­
tinely placed them in the Graves Junior High School 
while white students routinely were placed in Chandler 
Junior High School. The application of scholarship 
qualifications under these circumstances is discrimina­
tory. Green v. School Board of the City of Eoanoke 
[304] F. 2d [118] (4th Cir., May 22, 1962).” 4

With respect to a determination of the rights of all of 
the infant Negro plaintiffs, the District Court held:

4 The case to which the District Court referred is styled Green 
v. School Board of City of Roanoke, Virginia, and is now reported
in 304 F. 2d 118.



17a

Opinion of Boreman, U.S.G.J.

“The foregoing facts and conclusions of law require 
the admission of the plaintiffs to the schools for which 
they made application.”

An appropriate order was entered enjoining and restraining 
the defendants from denying the infant plaintiffs, therein 
named, admission to the schools for which they had made 
application. The defendants have not appealed from this 
order.

It follows that each infant plaintiff has been granted the 
relief which he or she individually sought. But the District 
Court, although expressing its disapproval of the “feeder 
school system” as now operating in the City of Richmond, 
denied further injunctive relief. The case was ordered re­
tained on the docket for such further relief “as may be 
appropriate”.5

5 In its written opinion the District Court stated as follows:
“The plaintiffs prayed that the defendants he enjoined from 

continuing discrimination in the city schools and that the 
School Board be required to submit a desegregation plan. The 
Court has weighed all of the factors presented by the evidence 
in this case and finds that the defendants have taken measures 
to eliminate racially discriminatory enrollments in the first 
grade. Apparently they are eliminating discriminatory enroll­
ments in George Wythe High School [white] and they are 
routinely assigning Negro students in white junior high schools 
to white high schools.

“While the School Board has not presented a formal plan 
of desegregation, the Court finds that the defendants have made 
a reasonable start toward a nondiscriminatory school system 
resulting in the attendance of 127 Negro students in white 
schools for the 1962-1963 school term. In view of the steps 
that have been taken in this direction, the Court concludes 
that the defendants should be allowed discretion to fashion 
within a reasonable time the changes necessary to eliminate 
the remaining objectionable features of the system of ‘feeder 
schools’.

(footnote continued on following page)



18a

Opinion of Boreman, U.S.C.J.

The conclusion of the District Court that a “reasonable 
start toward a non-discriminatory school system” had been 
made appears to have been based primarily upon considera­
tion of four factors discussed in its opinion as follows:

“Kigid adherence to placement of students by at­
tendance areas has been modified in four respects. 
First, the Chairman of the Pupil Placement Board tes­
tified that any Negro child applying for enrollment in 
the first grade of a white public school in his attendance 
area is assigned to that school. Second, the Superin­
tendent of Schools testified that George Wythe High 
School and John Marshall High School had been con­
structed to accommodate all high school students in 
their respective attendance areas. Counsel stated in 
argument that six Negro students had applied for ad­
mission to George Wythe High School for 1962 and all 
had been accepted. Third, a Negro student presently 
attending a white school, upon promotion to a higher 
school, is routinely assigned to a white school. Fourth,

“In Brown v. Board of Education, 349 U. S. 294, 300 [75 
S. Ct. 753, 99 L. Ed. 1083] (1955), the Supreme Court stated 
‘Traditionally, equity has been characterized by a practical 
flexibility in shaping its remedies and by a facility for adjust­
ing and reconciling public and private needs.’ The Court is 
of the opinion that the relief decreed in this case is sufficient 
at this time in view of the evidence presented. The refusal 
of broad injunctive relief now is not to be construed as 
approval to continue the ‘feeder school system’ as it is now 
operated. See Hill v. School Board of the City of Norfolk, 
Virginia, 282 P. 2d 473 (4th Cir. 1960) ; Dodson v. School 
Board of the City of Charlottesville, 289 F. 2d 439 (4th Cir. 
1961).

“This case will be retained on the docket for such further 
relief as may be appropriate.”



Opinion of Boreman, U.S.C.J.

some Negro students have been assigned to schools in 
white attendance areas.”

In the context of this case the principal questions to be 
determined may be stated as follows: (1) Are these four 
basic factors cited by the District Court sufficient to evi­
dence a reasonable start toward maintaining a non-discrim- 
inatory school system and consistent with the true concept 
of equal constitutional protection of the races; and (2) 
should the court have granted further injunctive relief? We 
think question (1) must be answered in the negative and 
question (2) in the affirmative in view of the discriminatory 
attitude displayed by the Pupil Placement Board toward 
the transfers sought by the infant plaintiffs in the instant 
case and which transfers, denied as the result of discrimina­
tory application of residential and academic criteria, were 
effected only through this protracted litigation.

It is notable that there is no assertion here, as in some of 
the other school cases, of a defense based upon a claim that 
a reasonable start has been made toward the elimination of 
racially discriminatory practices coupled with a suggestion 
that additional time, consistent with good faith compliance 
at the earliest practicable date, is necessary in the public 
interest. Instead, the answer of the City school authorities 
denied that anything done or omitted by them had given 
rise to the present litigation. The answer of the Pupil 
Placement Board admitted that the plaintiffs had complied 
with its administrative procedures but denied and demanded 
strict proof of racial discrimination.

One of the interrogatories served by the plaintiffs was: 
“What obstacles, if any, are there which will prevent the



20a

Opinion of Boreman, U.S.C.J.

racially non-discriminatory assignment of students to pub­
lic schools in the City of Richmond at the commencement of 
the 1962-1963 school session?” The local school authorities 
side-stepped the question by claiming to be unable to answer 
because all power to assign students to schools had been 
vested by law in the Pupil Placement Board. That Board 
replied to the interrogatory as follows: “ * * * [T]hat to 
the extent that such question implies discrimination, such 
implication is denied and that such question lacks sufficient 
specificity to evoke an intelligent answer which does not 
involve broad conclusions or have argumentative deduc­
tions. Aside from that, and under Brown v. Board of Edu­
cation, these defendants know of no reason why students 
should not he assigned to public schools without discrimina­
tion on the ground of race, color, or creed.” (Emphasis 
added.)

The Superintendent of Schools testified that the City 
School Board had not attempted to meet the problem of 
overcrowded schools by requesting that Negro pupils in 
overcrowded schools in a given area be assigned to schools 
with white pupils. He stated that some new schools and 
additions to existing schools had been provided. The record 
discloses that the earlier litigation, Warden v. The School 
Board of the City of Richmond, referred to in our footnote 
3, was instituted on September 2,1958. At a special meeting 
held on September 15, 1958 (approximately two weeks after 
the beginning of the school term), the School Board voted 
to request the Pupil Placement Board to transfer the pupils 
then attending the Nathaniel Bacon School (white) to the 
East End Junior High School (white), and that a sufficient 
number of pupils be transferred from the George Mason



21a

Opinion of Boreman, U.S.C.J.

(Negro) and Chimborazo (Negro) schools to the Nathaniel 
Bacon building to utilize its capacity, thus converting Na­
thaniel Bacon to a Negro school.

The attitude of the City school authorities, as disclosed 
by the Superintendent of Schools in his testimony, is and has 
been “that the state law took out of the hands of the School 
Board and the Superintendent of Schools any decision re­
lating to the integration of schools [and that] * * * it has 
been a feeling of both the School Board and the Administra­
tion that any conflict that might exist between the state and 
federal law should be decided by the Courts, not by the 
School Board and the Administration.”

The following is taken from the testimony of the Chair­
man of the Pupil Placement Board:

“Q. Well, what do you do where you have overlap­
ping school zones and school areas?

“A. You have got that, of course, in Richmond.
“Q. Yes.
“A. Normally, I would say fully 99 per cent of the 

Negro parents who are entering a child in First Grade 
prefer to have that child in the Negro school. Judging 
by the small number of applications we get, that must 
be true. Now, we do not think that this Board was 
appointed for the purpose or that the law required the 
attempt on our part to try to integrate every child pos­
sible. What we thought we were to do was to be com­
pletely fair in considering the requests of Negroes, we 
will say, to go into White schools, but certainly not 
trying to put those in that didn’t want to go in.



22a

Opinion of Boreman, U.S.C.J.

“Now, when a Negro parent asks for admission of his 
child in the First Grade of a White school, very clearly 
he is asking for desegregation or for integration, or 
whatever yon want to call it, and he gets it. And it is 
true that in general there will he two schools that that 
child could attend in his area, one White and one Negro, 
and we assume that the Negro wants to go to the Negro 
school unless he says otherwise, but if he says other­
wise, he gets the other school.” (Emphasis supplied.)

It is true that the authority for the enrollment and place­
ment of pupils in the State of Virginia has been lodged in 
the Pupil Placement Board6 unless a particular locality 
elects to assume sole responsibility for the assignment of 
its pupils.7 The School Board of the City of Richmond has 
assumed no responsibility whatever in this connection. It 
does not even make recommendations to the Pupil Place­
ment Board as to enrollments, assignments or transfers of 
pupils. It here defends charges against it of racial discrimi­
nation in the operation of the City’s schools on the ground 
that the sole responsibility is that of the State Board. At 
the same time the system of dual attendance areas which 
has operated over the years to maintain public schools on a 
racially segregated basis has been permitted to continue. 
Though many of the Negro schools are overcrowded and 
white schools are not filled to normal capacity, the only ef­
fort to alleviate this condition has been to provide new 
buildings or additions to existing buildings, a move ob-

6 Va. Code Ann. §§22-232.1-232.17 (Supp. 1960).
7 Ya. Code Ann. §§22-232.18-232.31 (Supp. 1960).



23a

Opinion of Boreman, U.8.G.J.

viously designed to perpetuate what has always been a 
segregated school system.

It is clear that the pupil assignments are routinely made 
by the Pupil Placement Board. The Chairman of that 
Board says that now initial enrollments are on a voluntary 
basis and a Negro child may be enrolled in a white school 
upon request. But in the absence of a request, the long es­
tablished procedure of enrollment of Negro children in 
Negro schools and white children in white schools persists. 
Then the “feeder” system begins to operate and the only 
means of escape is by following the prescribed administra­
tive procedure of filing requests or applications for trans­
fer. The difficulties to be encountered in pursuing this 
course are graphically demonstrated by the experiences of 
the infant plaintiffs in this litigation. They were able to 
escape from the “feeder” system only after the District 
Court made possible their release by ordering transfers.

A Negro child, having once been caught in the “feeder” 
system and desiring a desegregated education, must extri­
cate himself, if he can, by meeting the transfer criteria. As 
this court said in Breen v. School Board of City of Roanoke, 
Virginia, 304 F. 2d 118, 123 (4th Cir. 1962):

“ * * * These are hurdles to which a white child, liv­
ing in the same area as the Negro and having the same 
scholastic aptitude, would not be subjected, for he would 
have been initially assigned to the school to which the 
Negro seeks admission.”

It was pointed out in Jones v. School Board of City of 
Alexandria, Virginia, 278 F. 2d 72, 77 (4th Cir. 1960), that, 
by reason of the existing segregation pattern, it will be



24a

Opinion of Boreman, U.S.C.J.

Negro children, primarily, who seek transfers. The truth 
of this statement is evidenced by the fact that in Richmond 
only 127 Negro children out of a total of more than 23,000 
are now attending previously all-white schools. This court 
further said in Jones, supra: “Obviously the maintenance 
of a dual system of attendance areas based on race offends 
the constitutional rights of the plaintiffs and others simi­
larly situated * * * ” 278 F. 2d 72, 76.

In recent months we have had occasion to consider the 
legality of other “feeder” systems found in operation in the 
public schools of Roanoke County, Virginia, and in the City 
of Roanoke, Virginia. See Marsh v. County School Board 
of Roanoke County, Va., 305 F. 2d 94 (4th Cir. 1962), and 
Green v. School Board of City of Roanoke, Virginia, 304 F. 
2d 118 (4th Cir. 1962). In those cases, in opinions prepared 
by Chief Judge Sobeloff, the unconstitutional aspects of the 
systems there in operation were discussed in the light of 
the decisions of the Supreme Court in Brown v. Board of 
Education, 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), 
and 349 U. S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955), and 
in the light of numerous prior decisions of this and other 
courts. We find it unnecessary to again cite or review the 
pertinent decisions applicable to the maintenance of racially 
segregated school systems. In the Marsh and Green cases 
we reached the conclusion that injunctive relief, not only for 
the individual plaintiffs but for those who might find them­
selves confronted with the same problems, was justified.

A start has, indeed, been made to end total segregation 
of the races in the Richmond schools. The first step has been 
taken, one which, no doubt, was distasteful to those who are 
traditionally and unalterably opposed to an integrated



25a

Opinion of Boreman, U.S.C.J.

school system. But, upon this record and from the state­
ments of the school officials, we find nothing to indicate a 
desire or intention to use the enrollment or assignment sys­
tem as a vehicle to desegregate the schools or to effect a 
material departure from present practices, the discrimina­
tory character of which required the District Court to order 
relief to the infant plaintiffs before it. In the present status 
in which the case was left by the District Court, the school 
authorities are yet free to ignore the rights of other appli­
cants and thus to require the parents of new applicants to 
protest discriminatory denials of transfers, to require an 
infant applicant with his or her parents to attend a hearing 
on the protest which is not likely to be held earlier than 
August of 1963, and then to require the applicants to inter­
vene in the pending litigation (possibly to be met with de­
fensive tactics calculated to result in delay), the applicants 
fervently hoping to obtain relief from the court not long 
after the beginning of the 1963-64 school session if such 
relief is to be meaningful.

The School Board of the City of Richmond has abdicated 
in favor of the Pupil Placement Board leaving the latter 
with a school system which, in normal operation, has demon­
strated its potential as an effective instrumentality for 
creating and maintaining racial segregation. Nearly nine 
years have elapsed since the decisions in the Brown v. Board 
of Education cases and since the Supreme Court held racial 
discrimination in the schools to be unconstitutional. The 
Richmond school authorities could not possibly have been 
unaware of the results of litigation involving the school sys­
tems of other cities in Virginia, notably Norfolk, Alex­
andria, Charlottesville and Roanoke. Despite the knowledge



26a

Opinion of Boreman, U.S.C.J.

which the authorities must- have had as to what was hap­
pening in other nearby communities, the dual attendance 
areas and “feeder” system have undergone no material 
change.

Assignments on a racial basis are neither authorized nor 
contemplated by Virginia’s Pupil Placement Act. We are 
told that initial assignments are now made on a purely vol­
untary basis but the Placement Board assumes that a Negro 
child prefers to attend a school with children of his own 
race and he is so assigned unless otherwise requested. Rich­
mond’s administration of her schools has been obviously 
compulsive and it is evident that there has been little, if 
any, freedom of choice.

“Though a voluntary separation of the races in 
schools is uncondemned by any provision of the Con­
stitution, its legality is dependent upon the volition of 
each of the pupils. If a reasonable attempt to exercise 
a pupil’s individual volition is thwarted by official co­
ercion or compulsion, the organization of the schools, to 
that extent, comes into plain conflict with the constitu­
tional requirement. A voluntary system is no longer 
voluntary when it becomes compulsive.” See Jeffers 
v. Whitley, 309 F. 2d 621, 627 (4th Cir. 1962).

Notwithstanding the fact that the Pupil Placement Board 
assigns pupils to the various Richmond schools without 
recommendation of the local officials, we do not believe that 
the City School Board can disavow all responsibility for 
the maintenance of the discriminatory system which has 
apparently undergone no basic change since its adoption. 
Assuredly it has the power to eliminate the dual attendance



27a

Opinion of Boreman, U.S.C.J.

areas and the “feeder” system which the District Court 
found to be primarily responsible for the discriminatory 
practices disclosed by the evidence. It would be foolish in 
the extreme to say that neither the City School Board nor 
the Pupil Placement Board has the duty to recognize and 
protect the constitutional rights of pupils in the Richmond 
schools. That there must be a responsibility devolving upon 
some agency for proper administration is unquestioned. 
We are of the opinion that it is primarily the duty of the 
School Board to eliminate the offending system.8

In these circumstances, not only are the individual infant 
plaintiffs entitled to relief which has been ordered but the 
plaintiffs are entitled, on behalf of others of the class they 
represent and who are similarly situated, to an injunction 
against the continuation of the discriminatory system and 
practices which have been found to exist. As we clearly 
stated in Jeffers v. Whitley, 309 F. 2d 621, 629 (4th Cir. 
1962), the appellants are not entitled to an order requiring 
the defendants to effect a general intermixture, of the races 
in the schools but they are entitled to an order enjoining the 
defendants from refusing admission to any school of any 
pupil because of the pupil's race. The order should prohibit 
the defendants’ conditioning the grant of a requested trans­
fer upon the applicant’s submission to futile, burdensome or 
discriminatory administrative procedures. If there is to be 
an absolute abandonment of the dual attendance area and 
“feeder” system, if initial assignments are to be on a non-

8 Brown v. Board of Education, 347 U. S. 483, 74 S. Ct. 686, 98 
L. Ed. 873 (1954) ; Brown v. Board of Education, 349 U. S. 294, 
75 S. Ct. 753, 99 L. Ed. 1083 (1955) ; Cooper v. Aaron, 358 U. S. 1, 
78 S. Ct. 1401, 3 L. Ed. 2d 5 (1958).



28a

Dissenting Opinion of Bryan, U.S.C.J.

discriminatory and voluntary basis, and if there is to be a 
right of free choice at reasonable intervals thereafter, con­
sistent with proper administrative procedures as may be 
determined by the defendants with the approval of the Dis­
trict Court, the pupils, their parents and the public gener­
ally should be so informed.

If, upon remand, the defendants desire to submit to the 
District Court a more definite plan, providing for immediate 
steps looking to the termination of the discriminatory sys­
tem and practices “with all deliberate speed,” they should 
not only be permitted but encouraged to do so.

The District Court should retain jurisdiction of this case 
for further proceedings and the entry of such further orders 
as are not inconsistent with this opinion.

Reversed in part and remanded.

A lbert  V . B ry a n , Circuit Judge (dissenting in part).
I see no need for the prospective injunction. With fair­

ness and clarity the opinion of the Court comprehensively 
discusses and approves the course the District Court pre­
scribed for the defendants to follow in the future. With 
no reason to believe his directions will not be respected, the 
District Judge refused the injunction. In this he exercised 
the discretion generally accorded the trial judge in such 
situations, especially when the necessity for an injunction 
must be measured by local conditions. Of these we have no 
knowledge more intimate than his. I would not add the in­
junction.



29a

M e m o ra n d u m  o f  th e  C o u rt

[Filed March 16, 1964]

The Court of Appeals for the Fourth Circuit, when re­
manding this case for the entry of an injunction, said in 
Bradley v. School Board of the City of Richmond, Virginia, 
317 F. 2d 429, 438 (4th Cir. 1963):

“If, upon remand, the defendants desire to submit 
to the District Court a more definite plan, providing 
for immediate steps looking to the termination of the 
discriminatory system and practices ‘with all deliber­
ate speed,’ they should not only be permitted but en­
couraged to do so.”

Pursuant to the foregoing paragraph in the opinion of 
the Court of Appeals, the School Board submitted a plan 
in the form of a resolution providing as follows:

“ (a) Recommendations for assignment of pupils 
seeking enrollment in the public school system for the 
first time or initial enrollment in the junior or senior 
high schools shall be made upon consideration of the 
distance the pupils live from such schools; the capacity 
of such school; availability of space in other schools; 
whether the program of the pupil can be met by such 
school; the school preference as shown on the pupil 
placement application form; and what is deemed to 
be in the best interest of such pupil.

“ (b) The school administration shall recommend 
that pupils be assigned to the schools which they at-



30a

Memorandum of the Court

tended the preceding year, except those eligible for 
promotion to another school. However, application may 
be made by the parent, guardian or other person hav­
ing custody of such pupils for their placement in an­
other school named in the application in which case 
the reason for the requested transfer should be stated. 
The school administration may recommend to the 
Pupil Placement Board that such application be ap­
proved if it be deemed to be in the best interest of the 
pupil.

“ (c) Applications for transfers to a particular 
school must be made and received by the school ad­
ministration before June 1 preceding the school year 
to which the placement requested is to be applicable.”

The plaintiffs filed exceptions to the plan and the Court 
conducted a hearing on its sufficiency. The exceptions are:

“1. The plan fails to satisfy the requirement of the 
opinion of the United States Court of Appeals for the 
Fourth Circuit that the Richmond City School Board

“ (a) eliminate the dual system of attendance 
areas in the initial assignment of pupils to schools.

“ (b) end the feeder system of assigning pupils 
to schools, and

“(c) refrain from conditioning the grant of a 
requested transfer on burdensome or discriminatory 
criteria.



31a

Memorandum of the Court

“2. Paragraph 1(a) of the plan (which provides 
for initial enrollment in the school system or in junior 
or senior high schools) is vague and indefinite and 
is inadequate to protect the constitutional rights of 
the Negro pupils to racially non-discriminatory school 
assignments.

“(a) This provision confers on the school admin­
istration unlimited discretion to assign pupils, in­
cluding racially determined assignments. It fails to 
provide standards to govern the exercise of the 
superintendent’s discretion in making assignments, 
thus conferring an absolute discretion which ren­
ders the caveat against racial discrimination mean­
ingless, and thus does not adequately protect against 
the use of racial considerations in placing pupils 
in schools.

“ (b) This provision purports to indicate a general 
basis for determining school attendance areas. The 
formulation of standards for determining attendance 
areas is, of course, within the control of the defen­
dants so long as race is not used in determining 
zones, selecting school sites, etc.; however, the gen­
eral statement made in the plan, without any indi­
cation of specific school zones to be used either next 
year or in any subsequent years, affords the Court 
no basis upon which to appraise the practical impact 
of an order approving the plan or any part of it. 
It is not possible to determine whether or not the



32a

Memorandum of the Court

plan would in fact accomplish any desegregation of 
the school system.
“3. Paragraph 1 (b) of the plan (which provides 

for the transfer of pupils) is calculated to frustrate 
rather than protect the rights of Negro pupils to 
racially nondiscriminatory school assignments.

“ (a) This provision requires the assignment of 
pupils in accordance with the dual zones which have 
been condemned by the Court of Appeals and by this 
Court in this case and in many other cases.

“ (b) It then provides that in order to escape this 
assignment, the pupil must induce his parents to 
follow the state’s Pupil Placement Board procedure 
which, in a form more favorable to the rights of the 
Negro child, was condemned by the Court of Ap­
peals and by this Court in this case. Now, instead 
of refraining from making a recommendation, the 
school administration is given permission to make 
a favorable recommendation, ‘ . . .  if it be deemed 
to be in the best interest of the pupil.’

“4. Plaintiffs object to the plan in that it omits any 
provision for the assignment or reassignment of 
teachers and staff of the schools on a nonracial basis. 
In this connection, plaintiffs assert their personal 
rights to attend a school system in which there is no 
racial segregation or discrimination.

“5. Plaintiffs object to the plan in that it fails to 
provide any arrangement for the desegregation of



33a

Memorandum, of the Court

special education programs now conducted or which 
may be conducted in the future, including such things 
as special classes for the handicapped or gifted pupils, 
kindergarten, or other pre-school programs, adult 
education programs, summer school programs, etc. In 
this connection, the plan fails to provide for the de­
segregation of the special project for the improvement 
of culturally deprived children being financed by the 
Ford Foundation and being conducted in several of 
the city’s schools on a segregated basis.

“6. Plaintiffs further object that the plan makes 
no provision for pupils seeking or needing education 
in specialized courses.”

For the purpose of evaluating the resolution the Court 
has considered its interpretation by the School Board and 
administrative authorities. From the resolution and the 
evidence pertaining to its interpretation and administration 
the Court finds that the plan by which pupils are assigned 
to schools provides:

1. Each child entering first grade may attend any 
school of his choice. The choice of the pupil must be indi­
cated. He is not assigned to any school until he makes ap­
plication to a specific school.

2. Each pupil is assigned to the school where he is pres­
ently enrolled until he completes the grades offered in that 
school; but a pupil has the unqualified right to transfer



34a

Memorandum of the Court

for the next school year to any other school which has the 
capacity to receive him. At the present time no school is 
designated as filled to capacity and therefore this factor 
is not a restriction npon transfers.

3. The parents of each pupil who completes the last 
grade in an elementary or junior high school must indicate 
the school the pupil wishes to attend. Each pupil has an 
unqualified right to attend any school of his choice subject 
to capacity which presently is not a restrictive factor.

4. Attendance areas have been abolished.

5. The “feeder system” of schools has been abolished.

6. All requests for transfer for the following school 
year must be submitted before June 1.

7. Forms and instructions are provided at each school 
to enable pupils to transfer. Principals are required to give 
pupils information about their rights to school assignments.

8. The actual assignment is made by the pupil place­
ment board upon recommendation of the School Board.

9. The plan encompasses all public schools in the City.

The foregoing constitute the essential elements of the 
plan as it is now being administered. The Court also finds:

10. The plan went into effect in September 1963. No 
student who applied for transfer before May 31 was denied



35a

Memorandum of the Court

admission to a school of his choice. Two students who 
sought transfers after May 31 were denied. (The Court 
directed their admission under the injunction previously 
entered.)

11. Certain criteria mentioned in the resolution have 
not yet been applied to deny any pupil admission to a 
school. These pertain to the “distance the pupils live from 
such schools * * * whether the program of the pupil can 
be met by such school * * * and what is deemed to be in 
the best interest of such pupil.”

12. The plan makes no reference to the employment of 
Negro and white faculty and staff.

C o n c l u s i o n s  o f  L a w

The plan, as presently administered, generally conforms 
with the description of a voluntary system found in Jeffers 
v. Whitley, 309 F. 2d 621, 624 (4th Cir. 1962). It is ap­
proved subject to the following qualifications. The resolu­
tion is framed in such broad language that its validity 
depends upon the interpretation placed upon it by the 
School Board and the manner in which it is administered. 
Presently this is valid. The School Board must not, how­
ever, vary the plan’s interpretation or administration with­
out securing the Court’s approval of amendments setting 
forth any changes they propose.

The plan has been described by the defendants as a 
“freedom of choice plan.” To condition “freedom of choice” 
upon the School Board’s determination of the “best interest



36a

Memorandum of the Court

of such pupil” is anomalous. Moreover, the “best interest” 
criterion is unduly vague. No students have yet been denied 
admission to a school because of this provision. Conse­
quently neither interpretation nor administration furnishes 
a guide for determining its validity. The School Board, 
therefore, must not deny admission or transfer of a pupil 
because of the “best interest” provision until they secure 
approval of an amendment to the plan making more definite 
this requirement.

No pupil has been denied admission to any school by 
reason of the residential or “program” criteria mentioned 
in the resolution. Reasonable, non-discriminatory scholastic 
and residential requirements are not invalid. See Green v. 
School Board of the City of Roanoke, Virginia, 304 F. 2d 
118, 123 (4th Cir. 1962).

Transfers conditioned on “whether the program of the 
pupil can be met” by the school to which the pupil seeks 
admission should present little difficulty if approval of the 
transfer is based solely upon whether the courses the pupil 
seeks are taught in the school. Experience has shown, how­
ever, that evaluation of a pupil’s “program” through aca­
demic achievement tests presents serious obstacles. Green 
v. School Board of the City of Roanoke, Virginia, 304 F. 2d 
118 (4th Cir. 1962).

At present no school is filled to capacity. If this situation 
should change, care must be exercised to avoid discrim­
ination in formulating definite residential requirements, cf. 
Marsh v. County School Board of Roanoke County, Vir­
ginia, 305 F. 2d 94 (4th Cir. 1962).



37a

Memorandum, of the Court

Jackson v. School Board of City of Lynchburg, 321 F. 2d 
230, 233 (4th Cir. 1963) pointed out that assignment of 
faculty was a suitable element for inclusion in a school 
board’s plan. See also Board of Public Instruction of Duval 
County, Florida v. Braxton, 326 F. 2d 616 (5th Cir. 1964). 
It does not appear, however, that the absence of such pro­
visions requires the rejection of a plan for the assignment 
of pupils.

The requirement that applications for transfer be sub­
mitted prior to June 1 is reasonable when applied in a non- 
discriminatory manner. Planning for the next school year 
necessitates knowledge of the conditions that will exist. 
The date conforms with the regulation of the State Pupil 
Placement Board under which many transfers of Negro 
pupils were made last year. This Court previously has 
conditioned assignment upon compliance with this admin­
istrative requirement, e.g. McLeod v. County School Board 
of Chesterfield County, No. 3431, E. D. Va., Nov. 15, 1962. 
It has not, however, been included as a prerequisite to as­
signments in injunctions granted since the Court of Ap­
peals directed this Court to encourage the submission of 
plans by local school boards. Bradley v. School Board of 
the City of Richmond, Virginia, 317 F. 2d 429, 438 (4th 
Cir. 1963).

The information about the plan appears to have been 
well disseminated last year. The method employed, as 
shown by the evidence was not insufficient. Here again, 
however, much depends on the administration of the plan. 
If further experience indicates that more notification of the



38a

Memorandum of the Court

rights of pupils should be given, the Court will receive the 
suggestions of the parties. Jeffers v. Whitley, 309 F. 2d 621, 
629 (4th Cir. 1962).

With approval of the School Board’s plan, the injunction 
entered June 6, 1963 will be dissolved. The case, however, 
will be retained on the docket with leave of any party to 
seek further relief.

The temporary restraining order admitting William Per- 
nell Andrews and Martha Melvina Boston to George Wythe 
High School will be made permanent. They qualified for 
admission under the terms of the general injunction en­
tered June 6, 1963.

The plaintiffs have moved for the allowance of counsel 
fees. Since the submission of a plan was not a mandate 
placed upon the School Board, the Court deems inappro­
priate the allowance of counsel fees with respect to the 
hearings on the plan.

Counsel for the plaintiffs did, however, appear on behalf 
of two students who were improperly denied admission to 
George Wythe High School. Counsel fees in the amount 
of $75.00 will be allowed the plaintiffs’ attorneys for this 
phase of the case. Bell v. School Board of Powhatan 
County, Virginia, 321 F. 2d 494, 500 (4th Cir. 1963); Scott 
v. School Board of the City of Fredericksburg, No. 3438, 
E. D. Va., Sept. 19, 1963.

J o h n  D . B u t z n e r , J r . 
United States District Judge



39a

Order

[Entered March 16, 1964]

For reasons stated in the Memorandum of the Court 
this day filed, it is A dju d g ed  and O rdered :

1. The plan of the School Board of the City of Rich­
mond is approved to the extent mentioned in the Memo­
randum of the Court.

2. The injunction entered June 6, 1963 is dissolved.

3. The defendants, and each of them, their successors 
in office, agents and employees are enjoined from denying 
admission to William Pernell Andrews and Martha Mel- 
vina Boston to George Wythe High School.

4. The motion for allowance of counsel fees with re­
spect to hearings on the School Board’s plan is denied.

5. Counsel for the plaintiffs are jointly allowed counsel 
fees in the amount of $75 against the School Board of the 
City of Richmond and the Division Superintendent of 
Schools for their appearance in behalf of pupils denied 
admission to George Wythe High School in September 
1963.

Let the Clerk send copies of this order and the Memo­
randum of the Court to counsel of record.

J o h n  D. B u t z n e r , J r .

United States District Judge



40a

O p in io n  o f  A p ril 7 , 1 9 6 5

UNITED STATES COURT OF APPEALS 

F oe t h e  F o u r t h  C ie c u it

No. 9471

C abot,v u  B radley a n d  M ic h a e l  B radley , in f a n ts ,  b y  
M in erv a  B radley , t h e i r  m o th e r  a n d  n e x t  f r ie n d ,  et al.,

versus
Appellants,

T h e  S chool  B oard oe t h e  C it y  of R ic h m o n d , V ir g in ia , 
H. I. W il l e t t , Division Superintendent of Schools of 
the City of Richmond, Virginia, and E. J .  O glesby , 
A lfred  L. W ingo  and E. T. J u s t is , individually and 
constituting the Pupil Placement Board of the Com­
monwealth of Virginia,

Appellees.

Appeal from the United States District Court for 
the Eastern District of Virginia, at Richmond.

John D. Butzner, Jr., District Judge.

(Argued October 5, 1964. Decided April 7, 1965.)

Before S obelo ff , Chief Judge, and H a y n sw o r th , B ore- 
m a n , B ry a n , and J. S p e n c e r  B e l l , Circuit Judges, sitting 
en banc.



41a

Opinion of April 7, 1965

Henry L. Marsh, III, and S. W. Tucker for Appellants, 
and Henry T. Wickham, Special Counsel, City of Rich­
mond (J. Elliott Drinard, City Attorney of Richmond, and 
Tucker, Mays, Moore & Reed on brief), for Appellees The 
School Board of the City of Richmond, Virginia, and H. I. 
Willett, Division Superintendent of Schools of Richmond, 
Virginia.

H a y n sw o r th , Circuit Judge:

This is the second time the second of two Richmond 
school cases has been before us. This time the principal 
question is whether the School Board adequately discharges 
its duty under the law when it gives to every pupil an 
unrestricted right to attend the school of his choice, or that 
of his parents. The District Court held that it does, and we 
agree. There are other subsidiary questions.

I

This case was begun by eleven Negro pupils and their 
parents or guardians. The eleven pupils had been denied 
admission to schools attended entirely, or predominantly, 
by white pupils. Before trial, one was admitted to the school 
of his choice, and the Court ordered the admission of the 
remaining ten. In doing so, the Court found that, in gen­
eral, assignments were being made on the basis of dual 
attendance zones, that promotions from primary to junior 
high schools and from junior high schools to senior high 
schools were controlled by a feeder system, and that trans-



42a

Opinion of April 7, 1965

fer requests by Negroes attending Negro schools were de­
nied on the basis of criteria which were not employed in 
processing the applications of white pupils living in the 
same residence area and wishing to attend the same school 
to which the Negro pupils sought to be transferred. These 
discriminatory practices, of course, were condemned, and 
it was because they had been employed that the District 
Judge ordered the admission of the remaining ten plaintiffs.

While the District Judge thus clearly pointed up the 
faults in the practices which had governed school assign­
ments for the 1961-1962 school year, the requested general 
injunctive order was denied. Denial of injunctive relief be­
yond the requirement of enrollment of the individual plain­
tiffs in the schools of their choice was predicated upon the 
Court’s finding that the School Board had taken affirmative 
steps to eliminate discriminatory practices in handling en­
rollments in the first grade of all primary schools and in 
those of one of the high schools.

On the first appeal the question in this Court was whether 
the District Court should have granted general injunctive 
relief in addition to requiring the admission of the indi­
vidual plaintiffs. We concluded1 that he should have issued 
the requested injunction because of the evident fact that 
discriminatory practices had been followed in handling ad­
missions and transfer applications. One member of this 
Court dissented upon the ground that he thought an in-

1 Bradley v. School Board of City of Richmond, Virginia, 4 Cir., 
317 F. 2d 429.



43a

Opinion of April 7, 1965

junction unnecessary since the District Court had clearly 
pointed out to the Board what was necessary to be done, 
and there was no reason to suppose that the Board would 
not do it. The case was to be retained upon the docket, 
which was adequate, in the opinion of the dissenter, to 
assure that if further relief became requisite, it could be 
had readily.

The first appeal in this case was brought to this Court 
by the plaintiffs, not by the School Board, and in this Court 
the Board did not take issue with the conclusions of the 
District Court about the deficiencies in its earlier handling 
of admissions and transfer applications. It suggested a 
willingness to comply with the requirements outlined in the 
District Judge’s memorandum opinion, contending only that 
it should have a reasonable opportunity to do so without the 
need of a formal injunctive order.

It was thus not surprising that while the first appeal 
was still in the bosom of this Court, the Richmond School 
Board adopted resolutions designed to eliminate the objec­
tionable features in the practices theretofore followed by it 
and the Virginia Pupil Placement Board.

These resolutions, adopted in March, 1963, as subse­
quently construed and limited by the District Court, provide 
that every pupil initially entering the Richmond School sys­
tem, or his parent for him, is required to state his choice 
as to the school he wishes to attend. He is assigned to the 
school of his choice. Every pupil promoted from any ele­
mentary school in Richmond, or his parent for him, is re­
quired to make a similar choice, and he is assigned to the 
school of his choice, as are those promoted from junior high



44a

Opinion of April 7, 1965

school to senior high school. Every other pupil is assigned 
to the school he previously attended, but he may apply for 
a transfer to any other school, and, since transfer requests 
are routinely granted without hearings or consideration of 
any limiting criteria,2 he is assigned to the school of his 
choice. When this case was orally argued in this Court on 
October 5, 1964, we were assured that no timely transfer 
application had been denied since adoption of the resolu­
tions of March, 1963.

Since pupils have been assigned in the Richmond schools 
pursuant to the 1963 scheme for the 1963-4 and 1964-5 
school years, it appears that every pupil in the first two 
grades of primary school, junior high school and senior 
high school are attending the school affirmatively selected 
by bim or his parents as the one he and they wished him to 
attend. Every other pupil in the school system has and has 
had an unrestricted right of transfer, which the District 
Court found had been adequately publicized and made 
known to pupils and parents.

Under the School Board’s resolutions, as construed by 
the District Court, all attendance areas have been aban­
doned ; there is no longer a feeder system for handling pro­
motions from one level to another, and transfer requests 
are allowed without discriminatory conditions.

There are some limiting factors. Transfer applications 
by one previously assigned to a school must be submitted

2 The resolution provides that school capacity may be a limiting 
factor. As a practical matter it has not been thus far. That matter 
is discussed, infra.



45a

Opinion of April 7, 1965

before June 1 to be granted effectively as of the opening of 
the next school year. This requirement the District Court 
found reasonable in light of the planning needs of the 
Board. There is also a provision that a transfer application 
by a pupil previously assigned to a school may be denied, if 
the school to which entry is sought does not have the capac­
ity to receive him. The plan does not spell out what would 
happen in the event of a denial of an application upon the 
ground of want of capacity, but the District Judge thought 
that the reservation was not of practical importance be­
cause, so far, there has been no want of capacity to allow 
all transfer applications, and no transfer request has been 
denied on that ground, or, indeed, for any other reason 
except lack of timeliness.3

Upon remand of the case after the first appeal, the Dis­
trict Court entered an appropriate general injunction in 
conformity with the opinion of this Court. Thereafter the 
School Board filed with the Court the resolutions it had 
adopted in March 1963, and counsel for the plaintiffs filed 
objections to them as a plan for the subsequent operation 
of the schools.

The original plaintiffs having all been admitted to schools 
of their choice, two other pupils and their parents entered 
the case. They had applied on September 6, 1963 for ad­
mission to a high school attended predominantly by white 
pupils, and their applications had been denied as being too 
late. The District Judge promptly ordered their admission, 
since he had not approved the plan and its requirement that

3 Two transfer applications made on September 6, 1963 were 
denied as tardy. They are mentioned below.



46a

Opinion of April 7, 1965

transfer applications be filed before June 1 to be granted 
effectively for the ensuing school year. Thereafter, there 
was a further hearing as to the reasonableness and pro­
priety of the resolutions adopted by the School Board, after 
which the Court filed a memorandum opinion on March 16, 
1964 approving the Board’s plan as construed and limited 
by the Court.4

In the posture in which the case comes to us, therefore, 
it appears that the School Board’s resolutions, as construed 
by the District Court, provide for a freedom of choice by 
every individual in the Richmond school system as to the 
school he attends. There also is a requirement that the 
choice be affirmatively exercised by every pupil entering 
the system for the first time and by every other pupil as 
he moves from one level to another.

In finding that the plan, as operated, does provide for 
unrestricted freedom of choice, the District Judge largely 
disregarded the potential limitation of the school capacity

4 The School Board’s resolutions, for instance, provide for denial 
of transfer applications when denial “is in the best interest of the 
pupil.” Such a provision, of course, could provide a means of 
discrimination, and the District Court ordered that it not be 
applied in any case unless its purpose and effect were made definite 
and certain by an amendment, and the amendment had been ap­
proved by the Court, The School Board’s resolutions also contain 
a limiting qualification that the chosen school must be equipped to 
meet the pupil’s “program.” This qualification the District Court 
approved with the admonition that it should be employed only when 
the courses the pupil seeks are not taught in the school he seeks 
to enter. Obviously, there is no discrimination involved if primary 
grade pupils are not allowed to enter high schools or when pupils 
are required to remain within other program subdivisions based 
upon objective criteria unrelated to race and applied without 
discrimination.



47a

Opinion of April 7, 1965

provision. For the present, we think he was justified in 
doing so. It had not been invoked at the time of the hearing 
for the purpose of denying any transfer application, and we 
are assured that it has not since then been invoked. Until 
some occasion arises for its invocation, it is irrelevant. 
Thereafter, what the School Board does may affect the 
validity of its operation,6 but we are entitled to assume that 
the unrestricted freedom of choice which has been available 
to all pupils and parents in the school system for the past 
two school years will continue to be available, or that the 
School Board will make other adjustments which are ap- 
provable by the Courts.6 The mere fact, however, of a 
possibility that capacity problems may affect the operation 
of the plan in future years has no immediate bearing upon 
the validity of what the School Board has done for the 
years now under consideration when the capacity limitation 
was inoperative.

_ 5 There was testimony by one of the school officials that the inten­
tion was to proceed as do the Baltimore schools when a particular 
school reaches capacity; indeed, that the intention was to apply 
all of the Baltimore plan just as it is operated in Baltimore. Obvi­
ously, if the capacity limitation is so applied as to result in the 
denial of transfer applications of Negro pupils attending schools in 
which there are few or no white pupils upon the ground that all 
schools attended substantially by white pupils are over-capacity, 
there would be no “freedom of choice,” as that term has been 
employed in this context. Such freedom exists in a practical sense 
only when a pupil wishing to attend a school with substantial 
numbers of the other race has an unequivocal and realizable right 
to do so. If his first choice be unavailable, some other reasonable 
alternative must be available to him.
_ 6 The District Court limited its approval of the plan prospec­

tively, so that if and when the Board resorts to the capacity limi­
tation, its use of it must be approvable.



48a

Opinion of April 7, 1965

The Negro plaintiffs do not question the present existence 
of an unrestricted freedom of choice in selection of schools. 
Their position on appeal is that freedom of choice is not 
an appropriate means for elimination of segregation. Ex­
tracting a phrase from the second Brown decision,7 in which 
there was reference to “states requiring or permitting such 
discrimination,” the plaintiffs insist that there are a suffi­
cient number of Negro parents who wish their children to 
attend schools populated entirely, or predominantly, by 
Negroes to result in the continuance of some schools at­
tended only by Negroes. To that extent, they say that, under 
any freedom of choice system, the state “permits” segre­
gation if it does not deprive Negro parents of a right of 
choice.

It has been held again and again, however, that the Four­
teenth Amendment prohibition is not against segregation 
as such. The proscription is against discrimination. Every­
one of every race has a right to be free of discrimination 
by the state by reason of his race. There is nothing in the 
Constitution which prevents his voluntary association with 
others of his race or which would strike down any state 
law which permits such association. The present sugges­
tion that a Negro’s right to be free from discrimination re­
quires that the state deprive him of his volition is incon­
gruous.

The phrase from the second Brown decision as to which 
the plaintiffs refer lends no support to their contention. 
The first paragraph of the opinion, in which the phrase

Brown v. Board of Education, 349 U. S. 294, 298.



49a

Opinion of April 7, 1965

appears, clearly and precisely expresses the, proscription 
against “discrimination.” There is no hint of a suggestion 
of a constitutional requirement that a state must forbid 
voluntary associations or limit an individual’s freedom of 
choice except to the entent that each individual’s freedom 
of choice may be affected by the equal right of others. A 
state or a school district offends no constitutional require­
ment when it grants to all students uniformly an unre­
stricted freedom of choice as to schools attended, so that 
each pupil, in effect, assigns himself to the school he wishes 
to attend.

This and other courts have repeatedly referred to the 
legality and propriety of a system of free transfers.

We first did so in Dillard v. School Board of City of 
Charlottesville, 4 Cir., 308 F. 2d 920, 923-4. In an opinion 
previously prepared by Senior Judge Soper, subsequently 
adopted per curiam as the opinion of the en banc court, 
there was approving reference to systems of unrestricted 
rights of transfer, which were said to have been conspicu­
ously successful in Baltimore and in Louisville. Subse­
quently, in Jeffers v. Whitley, 4 Cir., 309 F. 2d 621, while 
condemning a compulsive system sought to be justified on 
the basis of assertions of volition of the pupils, we indi­
cated en banc our approval of a truly voluntary system 
under which at reasonable intervals reasonable alternatives 
were available to all pupils, so that those who wished to do 
so might attend a school with members of the other race. 
Finally, when this case was before us earlier, this Court, 
anticipating the School Board’s implementation of a system 
of free assignments and transfers, indicated its appropri-



50a

Opinion of April 7, 1965

ateness, provided pupils, parents and the public in general 
were all informed of it. We there said in summary:8

“ * * * As we clearly stated in Jeffers v. Whitley, 309 
F. 2d 621, 629 (4th Cir. 1962), the appellants are not 
entitled to an order requiring the defendants to effect a 
general intermixture of the races in the schools but 
they are entitled to an order enjoining the defendants 
from refusing admission to any school of any pupil 
because of the pupil’s race. The order should prohibit 
the defendants’ conditioning the grant of a requested 
transfer upon the applicant’s submission to futile, bur­
densome or discriminatory administrative procedures. 
If there is to be an absolute abandonment of the dual 
attendance area and ‘feeder’ system, if initial assign­
ments are to be on a nondiscriminatory and voluntary 
basis, and if there is to be a right of free choice at 
reasonable intervals thereafter, consistent with proper 
administrative procedures as may be determined by 
the defendants with the approval of the District Court, 
the pupils, their parents and the public generally should 
be so informed.” (Emphasis in original.)

Though the School Board’s resolutions of 1963 were 
adopted before our previous opinion was announced, they 
were clearly in anticipation of it. As subsequently put into 
practice with the limitations and interpretations imposed 
upon them by the District Court, the School Board has fol-

8 Bradley v. School Board of City of Richmond, 4 Cir., 317 F. 2d 
429,438.



51a

Opinion of April 7, 1965

lowed precisely the suggestions of this Court made in this 
very case.

The underlying principle was originally announced by 
three-judge courts upon remand of two of the original 
school cases decided in Brown.9 It has received recent affir­
mation in decisions in the Second, Fifth and Seventh Cir­
cuits, as well as in this one.

In the New Rochelle, New York, cases, after Judge 
Kaufman found that the all-Negro Lincoln School was in 
a gerrymandered zone deliberately drawn by the School 
Board for the purpose of segregating the school popula­
tion,10 the question arose as to the appropriate remedy. The 
School Board submitted a plan of limited transfers, which 
the District Court modified so as to make it a plan of sub­
stantially unrestricted tranfers. The modified plan was 
approved by the District Court.11 tinder this plan, each 
pupil in the Lincoln school was to be given the right to 
transfer to some other school in New Rochelle. Each trans­
fer applicant was to be requested to list four other elemen­
tary schools in the order of his preference, and such appli­
cations would be granted subject to the capacity of the 
school, or schools, to which entry was sought. Transfer 
applications had to be submitted before June 1st to be con-

9 Briggs v. Elliott, E. D. S. C., 132 F. Supp. 776; Brown v. Board 
of Education, D. C. Kan., 139 F. Supp. 468.

10 Taylor v. Board of Education of City School District of City 
of New Rochelle, D. C. S. D. N. Y., 191 F. Supp. 181.

11 Taylor v. Board of Education of City School District of City of 
New Rochelle, D. C. S. D. N. Y., 195 F. Supp. 231.



52a

Opinion of April 7, 1965

sidered for the ensuing school year, and the parents of the 
transfer applicants were advised that they, themselves, 
would have to furnish whatever transportation was re­
quired.

The Court of Appeals for the Second Circuit affirmed 
the plan embodied in Judge Kaufman’s decree.12 It con­
strued that plan as comparable to the Baltimore plan and 
said of it, “We think this plan an eminently fair means of 
grappling with the situation in accord with the principles 
stated in the Brown case.”

Judge Moore dissented in Taylor. His primary disagree­
ment was with the original finding that the Lincoln zone 
was gerrymandered, and that the School Board purposely 
imposed the racial character of the school. He also thought 
the permissive transfer plan, approved as an appropriate 
solution, was unfair because other pupils in the New Ro­
chelle school district had no comparable rights. His dissent, 
however, suggests no disagreement with the principle that 
if all the pupils in a school district are given a substantially 
unfettered freedom of choice as to the schools they attend, 
the School Board fully complies with the requirements of 
the Brown case and its successors.

In Bell v. School City of G-ary, Indiana, 7 Cir., 324 F. 2d 
209, the Court, in approving assignments based upon geo­
graphic zoning, emphasized the Constitution’s proscription 
against discrimination and the absence of any prohibition

12 Taylor v. Board of Education of the Citv School District of 
New Rochelle, 2 Cir., 294 F. 2d 36.



53a

Opinion of April 7, 1965

of segregation, itself. The inflexible geographic zoning sys­
tem was approved, notwithstanding the fact that its product 
was de facto segregation in the schools.13

In Calhoun v. Latimer, 5 Cir., 321 F. 2d 302, Atlanta’s 
inverted stair-step plan of desegregation was approved, not­
withstanding it would not be accomplished until well within 
the 1970’s, and notwithstanding that the only means jjro- 
vided for desegregation of the “desegregated” grades was 
permissive transfer, which, under the plan approved by the 
District Court, was allowable only if the applicant met cer­
tain criteria. His achievement, for instance, had to be at 
least as high as the average in the school to which he sought 
to be transferred. Judge Eives dissented, both because the 
transfer provision was restricted and because twelve years 
for the accomplishment of desegregation in all grades was 
too long. In denying a petition for rehearing, the majority 
made it clear that, in subsequent operation, transfer appli­
cations should be processed on a nondiscriminatory basis, 
and specifically required that the scholastic requirement be 
abandoned except to the extent it was required of white 
applicants.

13 See also Downs v. Kansas City Board of Education, 10 Cir.,
-----  F. 2 d ----- (33 Law Week 2168) ; Lynch v. Kenston School
District Board of Education, N. D. Ohio, 229 F. Supp. 740; Webb 
v. Board of Education of City of Chicago, N. D. Ill, 223 F. Supp. 
466; Evans v. Buchanan, D. Del., 207 F. Supp, 820; Henry v. 
Godsell, E. D. Mich., 165 F. Supp. 87; Brown v. Board of Educa­
tion, D. Kan., 139 F. Supp. 468, 470. Cf. Blocker v. Board of 
Education of Manhasset, New York, E. D. N. Y., 226 F. Supp. 208, 
and Branehe v. Board of Education of Town of Hempstead, School 
District No. 1, E. D. N. Y., 204 F. Supp. 150.



54a

Opinion of April 7, 1965

The judgment in Calhoun v. Latimer was vacated by 
the Supreme Court.14 The opinion of the Supreme Court 
recites that the Atlanta School Board had adopted “addi­
tional provisions offering free transfers with certain limita­
tions” in the “desegregated” grades of the high schools. 
The Court thought that the new resolutions should be first 
appraised by the District Court after an evidentiary hear­
ing, and, for that purpose, the case was remanded, with 
the admonition, based upon other recent cases, that the 
discretion for approval of a prolonged transition period is 
not so great now as it once was.

We, of course, would not have approved the transfer 
provisions considered by the Fifth Circuit in Calhoun v. 
Latimer.15 The interesting thing, however, is that the Court 
approved a plan for the allowance of transfers as an ap­
propriate device to bring the school system into compliance 
with the legal requirements. Even the Atlanta Board’s most 
recent resolutions, adopted on April 8, 1964, were said by 
the Supreme Court to have contained factors to be con­
sidered by the Board in making initial assignments and in 
allowing transfers. If a remand was appropriate there, 
there is certainly no suggestion that provision for an un­
restricted freedom of choice in initial assignments to each 
school level and in procuring transfers is not a permissible

14 377 U. S. 263.
15 Green v. School Board of City of Roanoke, Virginia, 4 Cir., 304 

F. 2d 118; Dodson v. School Board of City of Charlottesville, 
Virginia, 4 Cir., 289 F. 2d 439; Jones v. School Board of City of 
Alexandria, Virginia, 4 Cir., 278 F. 2d 72.



55a

Opinion of A pril 7, 1965

and appropriate means of finally terminating all enforced 
segregation and bringing the school system into full com­
pliance with the law.

That it is, was also indicated by the Supreme Court in its 
opinion in Goss v. Board of Education of Knoxville, 373 
U. S. 683, 687. In disapproving a provision for minority 
transfers, it specifically noted that it would have an entirely 
different case if the plan provided for transfers regardless 
of the race of the applicant and the racial composition of 
the school to which he was assigned. Such a plan, the Su­
preme Court said, would permit freedom of choice “entirely 
free of any imposed racial considerations.”

In addition to the cases previously considered, this Court 
has indicated that a system of free transfers superimposed 
upon a plan of geographic zoning is unobjectionable and 
permissible.16 The plaintiffs suggest agreement that such an 
arrangement would be unobjectionable, but they urge that 
an approvable geographic scheme of original assignments 
must underlie a plan giving all pupils freedom of choice. 
We find, however, that an underlying geographic plan is 
not a prerequisite to the validity of a freedom of choice 
plan. A system of free transfers is an acceptable device for 
achieving a legal desegregation of schools.17 Its accept-

16 Dodson v. School Board of City of Charlottesville, Virginia, 
4 Cir., 289 F. 2d 439.

17 Calhoun v. Latimer, 5 Cir., 321 F. 2d 302, vacated and re­
manded for another reason, 377 U. S. 263; Taylor v. Board of 
Education of City School District of City of New Rochelle, 2 Cir., 
294 F. 2d 36 • Dodson v. School Board of City of Charlottesville, 
Virginia, 4 Cir., 289 F. 2d 439 (plan found discriminatorily 
applied) ; Dillard v. School Board of City of Charlottesville, Vir­
ginia, 4 Cir., 308 F. 2d 920, 923-4.



56a

Opinion of April 7, 1965

ability is not dependent upon the concurrent use of some 
other device which also might be adequate. In this circuit, 
we do require the elimination of discrimination from initial 
assignments as a condition of approval of a free transfer 
plan.18 Imposed discrimination is eliminated as readily by a 
plan under which each pupil initially assigns himself as he 
pleases as by a plan under which he is involuntarily assigned 
on a geographic basis.

The Bichmond School Board was clearly told by the 
opinion of the District Judge after the first hearing that it 
must abolish its former system of dual zones. In the opinion 
of this Court in the first appeal, we affirmed and restated 
the obvious illegality of dual zoning.

The School Board might have complied with the direc­
tions of the District Court, affirmed here, by redrawing all 
zone boundaries so as to provide a single zone for each 
school without overlapping, but that would have been a 
major task and open to challenge everywhere as to whether 
zone lines were reasonably and fairly drawn without regard 
to race. The other means of abolishing the dual zone sys­
tem was to do away with zones completely. From the point 
of view of the ultimate objective of eliminating the illegal 
dual zoning, dezoning seems the obvious equivalent of re­
zoning and, administratively, far easier of accomplishment 
when the School Board intends ultimate operation to be 
founded upon the free choice of the pupils.

It is suggested in this Court that fault should be at­
tributed to the Board because “it has done nothing” since

18 Buckner v. County School Board of Greene County, Virginia, 
4 Cir., 332 F. 2d 452.



57a

Opinion of April 7, 1965

our mandate went down following the first appeal. The sug­
gestion is a perversion of the facts. The Board’s resolutions 
of March 1963 were adopted, of course, before our mandate 
went down. They preceded the entry of the judgment, but, 
as subsequently construed and amended by the District 
Judge, they effectively abolished the dual zoning system, 
the feeder system and the requirement that transfer ap­
plications be considered in the light of discriminatory cri­
teria. The resolutions effectively removed all of the objec­
tionable features which the District Court had found in the 
procedures which had been followed earlier. That a defen­
dant acquiesces in the adverse findings of the District Court 
and brings itself into compliance with the District Court’s 
opinion before its affirmance on an appeal in which they are 
uncontested by the defendant is reason for some commenda­
tion and not for censure.

Of course, it is literally untrue that the Board has done 
nothing since the mandate of this Court in the first appeal 
went down. It has accepted the District Court’s limitations 
upon and restriction of its March 1963 resolutions, and has 
actually operated under them as so construed and limited. 
Subsequent operation entirely free of any taint of the 
discriminatory practices which this Court condemned is 
substantial activity following in point of time the earlier 
judgment of this Court. If the Board’s subsequent conduct 
fully complies with the earlier opinion of this Court, the 
Board is subject to no criticism whatever for having taken 
initial steps to bring itself in compliance with this Court’s 
mandate before this Court formally acted.



58a

Opinion of April 7, 1965 

II
The plaintiffs also complain that the District Court did 

not enjoin consideration of race in the assignment of teach­
ers and administrative staff.

It has been held that when there is enforced segregation 
of pupils, an order requiring the desegregation of teachers 
and staff does not go “beyond the permissible range of the 
trial court’s choice of means to put an end to an operation 
of schools on a racially segregated basis.” 19 In such a case, 
the District Court may prefer other means, and when he 
employs more direct methods, exclusively, there generally 
will be involved no abuse of discretion.20 In the usual ease, 
so long as the ultimate objective is adequately served, the 
choice of means is finally, as well as initially, for the Dis­
trict Court.

In a particular factual setting, it may be contended that 
consideration of race in the assignment of teachers and 
staff coerces the pupils and effects a discrimination against 
them. The pupils have standing to raise such a question to 
the extent it involves an asserted denial of constitutionally 
protected rights of the pupils.21 An appropriate allegation

19 Board of Public Instruction of Duval County Florida v. Brax­
ton, 5 Cir., 328 F. 2d 616, 620.

20 See Calhoun v. Latimer, 5 Cir., 321 F. 2d 302, vacated on other 
grounds, 377 U. S. 263.

21 Griffin v. County School Board of Prince Edward County,
Virginia, 4 Cir., ----- F. 2d ------- (decided Dec. 2, 1964) ; North-
cross v. Board of Education of City of Memphis, Tenn., 6 Cir., 333 
F. 2d 661; Jackson v. School Board of City of Lynchburg, Vir­
ginia, 4 Cir., 321 F. 2d 230; Mapp v. Board of Education of City



59a

Opinion of April 7, 1965

tendering such a question may not be stricken, for, whether 
in a particular case it may be regarded as a question of 
law or of fact, a resolution of so important a matter should 
await a full hearing on the merits.22

The question of assignment of teachers was ignored in 
the hearings below. The plaintiffs have made no effort to 
develop a record upon which a finding of actual discrimina­
tion against pupils could be predicated. There has been no 
inquiry as to the possible relation, in fact or in law, of 
teacher assignments to discrimination against pupils, nor 
has there been any inquiry as to the impact of such an order 
as the plaintiffs seek upon the administration of the schools 
and upon the teachers and the administrative personnel. 
The undeveloped record furnishes no basis for judgment 
apart from a conviction, in agreement with the Fifth Cir­
cuit,23 that decision cannot precede a full and complete in­
quiry in the District Court into the merits.

When there has been no inquiry into the matter, it cannot 
be said that the plaintiffs have discharged the burden they 
must shoulder of showing that such assignments effect a 
denial of their constitutional rights.

Whether and when such an inquiry is to be had are mat­
ters with respect to which the District Court also has a

of Chattanooga, Tenn., 6 Cir., 319 F. 2d 571; Augustus v. Board 
of Public Instruction of Escambia County, Florida, 5 Cir., 306 F. 
2d 862; Christmas v. Board of Education of Harford County, 
Maryland, D. C. D. Md. 231 F. Supp. 331.

22 Augustus v. Board of Public Instruction of Escambia County, 
Florida, 5 Cir., 306 F. 2d 862.

23 Augustus v. Board of Public Instruction of Escambia County, 
Florida, 5 Cir., 306 F. 2d 862.



Opinion of April 7, 1965

large measure of discretion. The Fifth24 and Sixth25 Cir­
cuits have so held, and we agree. When direct measures are 
employed to eliminate all direct discrimination in the as­
signment of pupils, a District Court may defer inquiry as 
to the appropriateness of supplemental measures until the 
effect and the sufficiency of the direct ones may be deter­
mined. The possible relation of a reassignment of teachers 
to protection of the constitutional rights of pupils need not 
be determined when it is speculative. When all direct dis­
crimination in the assignment of pupils has been eliminated, 
assignment of teachers may be expected to follow the 
racial patterns established in the schools. An earlier judicial 
requirement of general reassignment of all teaching and 
administrative personnel need not be considered until the 
possible detrimental effects of such an order upon the ad­
ministration of the schools and the efficiency of their staffs 
can be appraised along with the need for such an order in 
aid of protection of the constitutional rights of pupils.

I l l

Finally, the attorneys for the appellants ask an award of 
attorneys’ fees. They asked for such fees in the District 
Court and were awarded a nominal fee because of their 
representation of the two additional plaintiffs whose entry 
into the school of their choice was ordered by the District

24 Augustus v. Board of Public Instruction of Escambia County, 
Florida, supra, note 23.

25 Mapp v. Board of Education of City of Memphis, Tenn., 6 Cir., 
319 F. 2d 571.



61a

Opinion of April 7, 1965

Judge, despite the fact that their applications were belated. 
While the District Court’s order was otherwise generally 
unfavorable to the plaintiffs, and we affirm it here, the 
plaintiffs’ attorneys say that as a result of their efforts in 
the first trial the plaintiffs obtained very substantial relief. 
It is true that the original plaintiffs did obtain substantial 
relief in the District Court in the first trial, and it is true 
also that we directed an award of attorneys’ fees in Bell v. 
School Board of Powhatan County, Virginia, 4 Cir., 321 
F. 2d 494.

It is only in the extraordinary case that such an award 
of attorneys’ fees is requisite. In school cases throughout 
the country, plaintiffs have been obtaining very substantial 
relief, but the only case in which an appellate court has 
directed an award of attorneys’ fees is the Bell ease in this 
Circuit. Such an award is not commanded by the fact that 
substantial relief is obtained. Attorneys’ fees are appropri­
ate only when it is found that the bringing of the action 
should have been unnecessary and was compelled by the 
school board’s unreasonable, obdurate obstinacy. Whether 
or not the board’s prior conduct was so unreasonable in that 
sense was initially for the District Judge to determine. 
Undoubtedly he has large discretion in that area, which an 
appellate court ought to overturn only in the face of com­
pelling circumstances.

We can find no abuse of the District Court’s discretion 
in refusing to allow attorneys’ fees in a larger amount 
than it did.

We thus find no error in the District Court’s order.

Affirmed.



62a

Concurring and Dissenting Opinions of April 7, 1965

A lbert  V. B ryan , Circuit Judge, concurring:

Just what more is the entitlement of the Negro pupils 
beyond what the Richmond School Board has done to 
eliminate racial discrimination in pupil attendance is not 
clear to me. I expressly note my concurrence in the present 
opinion, which is every way satisfactory, only to accent the 
view that the Board’s concern, consideration and action 
have been exemplary. Besides, this attitude demonstrates 
the needlessness of the injunction we imposed in the prior 
Richmond appeal.
S obelo ff  and J. S pe n c e r  B e l l , Circuit Judges, concurring 

in part and dissenting in p a rt:

We gravely doubt whether the Resolution of the Rich­
mond School Board qualifies as a “plan of desegregation.” 
In approving it, however, the District Court expressed 
several careful reservations and cautions to the Board which 
we understand our brethren of the majority accept and 
adopt as part of their affirmance. In light of this, and in 
the hope of encouraging the Board so to administer the 
Resolution as to make it a genuine and effective plan of 
desegregation, we concur in that part of the majority’s 
affirmance. We feel constrained, however, to make such 
concurrence tentative on the assumption that the Resolution 
is an interim measure only and will be subject to full review 
and reappraisal either at the end of the present school year, 
or certainly not later than this fall after the reopening of 
the 1965-66 school term, when the results of two years of 
the Resolution’s operation will be known.



63a

Concurring and Dissenting Opinions of April 7, 1965

I

The Richmond School Board, in reading the majority 
opinion, must keep in mind the teaching of the Supreme 
Court, and this court as well, in a stream of cases decided 
during the past decade: that the initiative in achieving de­
segregation of the public schools must come from the school 
authorities. The paper Resolution is not being hailed as the 
attainment of the final goal. The defendants have only- 
stated an hypothesis—that once Negro pupils are given the 
right to choose where they want to go to school they will 
be in a position to avail themselves of the opportunity and 
the segregated school system will disappear. The majority 
opinion permits that hypothesis to be tested against the 
realities of the Richmond situation to determine whether 
it will in fact achieve the desired result.

Only experience will show whether the so-called plan, 
represents a real change in the officials’ attitude toward 
their constitutional duty, or merely a strategic retreat to 
a new position behind which the forces of opposition will 
regroup.

While we join in permitting this experiment, we are not 
fully persuaded that the plan will be enough to enable the 
Negro pupils to extricate themselves from the segregation 
which has long been firmly established and resolutely main­
tained in Richmond. A procedure which might well succeed 
under sympathetic administration could prove woefully in­
adequate in an antagonistic environment. The procedure 
cannot be separated from the spirit that produced it and 
will motivate its application.



64a

Concurring and Dissenting Opinions of April 7, 1965

As the defendants claim that theirs is the “Baltimore 
Plan” for free determination of school assignments, it is 
in order to examine not only the text but the context of 
the Baltimore Plan. There are reasons why a Free Transfer 
System could achieve a measure of success in Baltimore.

Maryland is a border state which in the Civil War re­
mained in the Union by a very slim margin. Baltimore is 
only 150 miles from Richmond. Before the Brown decision 
the traditions of the people of the two cities in regard to 
public education were not divergent. Baltimore’s City Code 
also required separate schools for Negroes. The reception 
accorded the decision of May 17, 1954, however, was mark­
edly different. Within two weeks thereafter, the City Solici­
tor of Baltimore ruled that all laws imposing segregation 
could no longer be considered constitutional. The members 
of the School Board and other public officials organized no 
program of resistance. There was no holding back for con­
tested lawsuits to wind their way through the courts nor 
were they content to pass a resolution casting upon Negro 
children and their parents the onus of ending the existing 
system.

Promptly the Board took the initiative to integrate. In 
less than a month after the Court spoke, the Superintendent 
of Schools assembled every teacher in the Baltimore school 
system. He addressed them at length on the duty to abolish 
racial separatism in public education in an effort to prepare 
them for such steps as needed to be taken to make the Su­
preme Court decision effective in practice.1 Similar meas-

1 The following passage appears in the address delivered to the 
5000 Baltimore teachers by Dr. John H. Fisher, now Dean of



65a

Concurring and Dissenting Opinions of April 7, 1965

ares were taken by the School Board to enlist the active sup­
port of the Co-ordinating Council of Parent-Teacher Or­
ganizations, which included men and women of both races.

Other meetings were held throughout the city under the 
sponsorship of the Department of Education to make the 
transition from a segregated to an integrated nonracial ad­
ministration as smooth as possible, and school faculties were 
encouraged to receive graciously new pupils and staff mem­
bers of the other race.

Prom time to time the Board on its own initiative re­
examined the practical operation of its policies to assure 
their effectiveness. Notable is its forthright declaration 
that “the presence whenever possible of qualified persons 
of varied ethnic, cultural, religious, and educational back­
grounds on the staff of a given school, bureau or division 
is considered desirable.” 2

Sharply contrasting has been the course of events in 
Richmond. Ten years after the Supreme Court’s decision 
outlawing segregation, and five years after the invalidation 
of Virginia’s massive resistance laws by the Supreme Court 
of Appeals of Virginia as well as the federal court, the 
School Board’s attitude, as presented by its attorneys in

Education at Columbia University, then the Superintendent of the 
Baltimore Department of Education:

“Without fear and without subterfuge, our Board has met its 
responsibility. Paraphrasing the words of Robert E. Lee, we 
cannot now do more than our duty, we shall not want to 
do less # *

2 “Equality of Educational Opportunity—A Progress Report for 
the Baltimore City Public Schools” (1964).



66a

Concurring and Dissenting Opinions of April 7, 1965

this case, is that “there is no duty upon the School Board 
to integrate a particular school or desegregate it” or to 
“promote integration.” A change from this attitude is im­
perative if the Richmond declaration, whether it is called a 
Resolution or a Plan, is to be constitutionally implemented.

A plan of desegregation is more than a matter of words. 
The attitude and purpose of public officials, school adminis­
trators and faculties are an integral part of any plan and 
determine its effectiveness more than the words employed. 
If these public agents translate their duty into affirmative 
and sympathetic action the plan will work; if their spirit 
is obstructive, or at best negative, little progress will be 
made, no matter what form of words may be used.

Affirmative action means more than telling those who 
have long been deprived of freedom of educational oppor­
tunity, “You now have a choice.” In many instances the 
choice will not be meaningful unless the administrators are 
willing to bestow extra effort and expense to bring the de­
prived pupils up to the level where they can avail them­
selves of the choice in fact as well as in theory. A court, 
before approving a plan, must scrutinize it in detail to 
satisfy itself that the assumptions upon which the plan is 
predicated are actually present. The district judge must 
determine whether the means exist for the exercise of a 
choice that is truly free and not merely pro forma. This 
may involve considering, for example, the availability of 
transportation, the opportunity to participate on equal 
terms in the life of the school after the pupil’s arrival, and 
any other circumstances that may be pertinent.



67a

Concurring and Dissenting Opinions of April 7, 1965

All recognize that the problems of education are not 
simple and are intertwined with problems in other areas of 
public and private activity. But while a complete solution 
does not lie in the hands of the present defendants, there 
is much they can do in their own sphere of responsibility to 
disestablish the heritage arising from imposed racial dis­
criminations of the past.

It is now 1965 and high time for the court to insist that 
good faith compliance requires administrators of schools 
to proceed actively with their nontransferable duty to undo 
the segregation which both by action and inaction has been 
persistently perpetuated. However phrased, this thought 
must permeate judicial action in relation to the subject 
matter.3

This is far from suggesting that children are to be up­
rooted arbitrarily and bussed against their will to distant 
places merely to place them with children of the other race. 
No such thing has been proposed or contemplated in Rich­
mond or, so far as we know, anywhere in this circuit. The 
true alternative, however, surely is not abdication of Board

3 Speaking of the district court’s duty in a similar context, the 
Supreme Court said:

“ [T]he court has not merely the power hut the duty to 
render a decree which will so far as possible eliminate the 
discriminatory effects of the past as well as bar like discrimi­
nation in the future.”

The Court also speaks of—
“The need to eradicate past evil effects and to prevent the 

continuation or repetition in the future of the discriminatory 
practices * * Louisiana, et al. v. United States, 33 U. S. L. 
Week 4262 (U. S. March 8, 1965).



'68a

Concurring and Dissenting Opinions of April 7, 1965

responsibility and the leaving of accomplishment of a non- 
racial educational system to the unaided efforts of individ­
uals who, even if not deliberately obstructed, lack the 
knowledge and mastery of the school system possessed by 
the Board. The authorities, not these individuals, have the 
duty and power to provide adequate leadership in reaching, 
with a minimum of personal frictions, alarms and frustra­
tions, the constitutionally protected goal of equal educa­
tional opportunity for all children. See Fiss, Racial Im­
balance in the Public Schools: The Constitutional Concepts, 
78 Harv. L. Rev. 564 (1964).

II

There are certain features of the court’s decision with 
which we are unable to agree. These concern the desegre­
gation of faculties and staffs, the dissolution of the 1963 
injunction, and the adequacy of the counsel fee awarded.

The composition of the faculty as well as the composition 
of its student body determines the character of a school. 
Indeed, as long as there is a strict separation of the races 
in faculties, schools will remain “white” and “Negro,” mak­
ing student desegregation more difficult. The standing of 
the plaintiffs to raise the issue of faculty desegregation is 
conceded. The question of faculty desegregation was 
squarely raised in the District Court and should be heard. 
It should not remain in limbo indefinitely. After a hearing 
there is a limited discretion as to when and how to enforce 
the plaintiffs’ rights in respect to this, as there is in re­
spect to other issues, since administrative considerations



69a

Concurring and Dissenting Opinions of April 7, 1965

are involved; but the matter should be inquired into 
promptly. There is no legal reason why desegregation of 
faculties and student bodies may not proceed simultane­
ously.

The “freedom of choice” plan being only an interim 
measure, the adequacy of which is yet unknown, this court 
should reinstate the June 3, 1963, injunction dissolved by 
the District Court when it approved the plan. In Brooks v. 
Arlington Comity, 324 F. 2d 303 (4th Cir. 1963), where an 
injunction had been dismissed by the District Court im­
mediately after a school board adopted a resolution form­
ally rescinding its policy of segregation, this court ordered 
reinstatement of the injunction. We there held the dis­
missal premature because there had been no showing by 
the school board of continuing compliance.

We also dissent from the allowance of only $75.00 as 
counsel fees to the plaintiffs, which we deem egregiously 
inadequate. It will not stimulate school boards to desegre­
gate if they see that they can gain time by resisting to the 
eleventh hour without effective discouragement of these 
tactics by the courts.

The principle applied by this court in Bell v. School Board 
of Powhatan County, Virginia, 321 F. 2d 494 (4th Cir. 
1963), needs to be extended, not narrowed. See Note, 77 
Harv. L. Eev. 1135 (1964). It ought not to be reserved 
for the most extreme cases of official recalcitrance, but 
should operate whenever children are compelled by deliber­
ate official action or inaction to resort to lawyers and courts 
to vindicate their clearly established and indisputable right 
to a desegregated education. Counsel fees are required in



70a

Concurring and Dissenting Opinions of April 7, 1965

simple justice to the plaintiffs. The award of fees in this 
equity suit is in the court’s judicial discretion and should 
be commensurate with the professional effort necessarily 
expended. One criterion which may fairly be considered is 
the amounts found reasonable in compensating the Board’s 
attorneys for their services. While public monies, aggre­
gating thousands of dollars, are paid defense lawyers, the 
attorneys for the plaintiffs who have prosecuted these cases 
for two full rounds in the District Court and on appeal are 
put off with a miniscule fee of $75.00.



71a

J u d g m e n t

[Filed, and Entered, April 7,1965]

UNITED STATES COURT OF APPEALS 
F ob t h e  F o u r th  C ir c u it  

No. 9471

Carolyn  B radley a n d  M ic h a e l  B radley , in f a n ts ,  b y  
M inerva  B radley , th e i r  m o th e r  a n d  n e x t  f r ie n d , et al.,

Appellants,

-vs.

T h e  S chool  B oard of t h e  C ity  of R ic h m o n d , V ir g in ia , 
H. I. W il l e t , Division Superintendent of Schools of the 
City of Richmond, Virginia, and E. J .  O glesby , A lfred  
L. W ingo  and E. T. J u s t is , individually and constitut­
ing the Pupil Placement Board of the Commonwealth of 
Virginia,

Appellees.

Appeal from the United States District Court for the 
Eastern District of Virginia.

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



72a

Judgment

On consideration whereof, It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court appealed from, in this cause, be, and the same 
is hereby affirmed with costs.

April 7,1965.

Cl e m e n t  F. H a y n sw o rth  
Chief Judge, Fourth Circuit

Filed
April 7,1965
M a u rice  S. D ea n  

Cleric



G^l§|g|3 38