Bratton v. City of Detroit Brief of State Labor Council and Michigan State Lodge - Fraternal Order of Police as Amicus Curiae in Supporting Granting the Writ

    IN THE

United States Court of Appeals

FOR THE FOURTH CIRCUIT

No. 9898

CARLOTTA MOZELLE BREWER, et al., etc., 
Appellants,

v.

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

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE EASTERN DISTRICT OF 

VIRGINIA— NORFOLK DIVISION

BRIEF OF APPELLEES

Leonard H. Davis 
City Attorney 
City Hall Building 
Norfolk, Virginia 23510

W. R. C. Cocke 
1200 Maritime Tower 
Norfolk, Virginia 23510 

Counsel for Appellees



INDEX

Statement of the Case........................................................  1

Questions Presented ............................................................  6

Statement of Facts ..........................................   7

Argument...............................................................................  15

1. Introduction................................................................  15

2. The School Board’s Plan For The Attendance Of
Children In The Public Schools Of The City Of 
Norfolk Is Constitutional........ ................................  18

3. The School Board’s Plan Is Being Applied Con­
stitutionally ................................................................  24

4. Integration Of The Principals, Teachers And
Other Members Of The Professional And Ad­
ministrative Staffs Of The School Board Is Not 
Required ...............................................    25

5. The Plaintiffs Are Not Entitled To an Award
Of Counsel F e e s ........................................................  31

Conclusion ..................................................................   34

Page



TABLE OF CITATIONS

Augustus v. Board of Public Instruction, 5 Cir., 306 
F. 2d 862 ........................................................................  27

Augustus v. Board of Public Instruction of 
Escambia County, Florida, D.C.N.D.
Fla., 185 F. Supp. 450.................................................... 27

Beckett v. School Board of the City of 
Norfolk, Virginia, D.C.E.D. Va., 181 
F. Supp. 870 ..................  .............................................  3

Bell v. School Board of Powhatan
County, Virginia, 4 Cir., 321 F. 2d 494....................  32

Bell v. School City of Gary, Indiana,
7 Cir. (1963), 324 F. 2d 209, cert.
den. 377 U. S. 924, 12 L ed 2d 216.......................... 21, 23

Board of Public Instruction of Duval 
County, Florida v. Braxton, 5 Cir.,
326 F. 2d 616 ................................................................  28

Briggs v. Elliott, D.C.E.D.S.C., 132 
F. Supp. 776 ........................................ ..........................  22

Brooks v. County School Board of 
Arlington County, Virginia, 4 Cir.,
324 F. 2d 303 ................................................................  29

Brown v. Board of Education, 347 U. S.
483, 98 L ed 873, 349 U. S. 294,

Page

Dillard v. School Board of the City of 
Charlottesville, Virginia, 4 Cir. 
(1962), 308 F. 2d 920 ..................... 18



Downs v. Board of Education of Kansas 
City, Kansas, 10 Cir. (1964), 336 F.
2d 988, cert, den.............U. S............. ,
13 L ed 2d 800 .................................................. 21, 22, 23

Goss v. Board of Education, (1963) 373 
U. S. 683, 10 L ed 2d 632 .............................................  19

Griffin v. Board of Supervisors of Prince
Edward County, 4 Cir., 339 F. 2d 486........................  30

Hill v. School Board of the City of 
Norfolk, Virginia, 4 Cir., 282
F. 2d 473 .................................................................. 3, 16, 17

Jackson v. School Board of the City of 
Lynchburg, Virginia, 4 Cir., 321
F. 2d 230 ......................................................................... 29

Jeffers v. Whitley, 4 Cir. (1962),
309 F. 2d 621 ................................................................  18

Mapp v. Board of Education of the City 
of Chattanooga, Tennessee, 6 Cir.,
319 F. 2d 571 ................................................................  29

Pettaway v. County School Board of 
Surry County, Virginia, 4 Cir., 339 
F. 2d 486 ......................................................................... 30

School Board of the City of Newport 
News, Virginia v. Atkins, 4 Cir.,
246 F. 2d 325 ................ ................................................  2

School Board of the City of Newport 
News, Virginia v. Atkins, 355 U. S.
855, 2 L ed 2d 6 3 .......................................................... 2

School Board of the City of Norfolk 
v. Beckett, 4 Cir., 260 F. 2d 18................................. 3

TABLE OF CITATIONS (Cont’d)
Page

iii



IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 9898

CARLOTTA MOZELLE BREWER, et al., etc., 
Appellants, 

v.

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

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE EASTERN DISTRICT OF 

VIRGINIA— NORFOLK DIVISION

BRIEF OF APPELLEES

STATEMENT OF THE CASE

This appeal1 arises from proceedings in 1963 and 1964 
in the Norfolk school case of Beckett v. The School Board 
of the City o f Norfolk, which was filed in the United States 
District Court for the Eastern District of Virginia, Norfolk

’The appellants will be referred to as the “plaintiffs” and 
the appellees will be referred to as the “School Board”.

1



Division, on May 10, 1956 and over which the District 
Court has ever since retained and exercised jurisdiction.

The District Court, by decree filed on February 26, 
1957, enjoined the School Board “from refusing, solely on 
account of race or color, to admit to, or enroll or educate 
in, any school under their operation, control, direction or 
supervision, directly or indirectly, any child otherwise qual­
ified for admission to, and enrollment and education in, 
such school”. By this decree the District Court also retain­
ed jurisdiction “for such future action, if any, as may be 
necessary therein, including the power to enlarge, reduce, 
or otherwise modify the provisions of this decree”. On ap­
peal, this Court affirmed this decree, sub nom. School 
Board of the City of Newport Neivs, Virginia v. Atkins, 4 
Cir., 246 F. 2d 325; and certiorari was denied, sub nom. 
School Board of the City of Newport News, Virginia v. 
Atkins, 355 U. S. 855, 2 L ed 2d 63. As a result of the appel­
late proceedings, and a stay of the effective date of this 
decree granted by this Court on July 15, 1957, the injunc­
tion did not become effective until October 21, 1957, the 
date on which the Supreme Court of the United States 
denied certiorari.

For the 1958-59 school year, 151 Negro children ap­
plied for transfers to or initial enrollments in schools there­
tofore attended only by white children. The School Board 
granted 17 of these applications and denied the remaining 
134, and the District Court approved its action. This Court 
affirmed the District Court as to the 17, and dismissed the 
plaintiffs’ appeal with regard to the 134 as being premature 
because the District Court had reserved for further con­
sideration questions on the validity of the standards, cri­
teria and procedures relating to the assignment of children 
to schools, which had been adopted by the School Board 
on July 17, 1958 and pursuant to which the applications of

2



the 134 had been denied. School Board of the City of Nor­
folk  v. Beckett, 4 Cir., 260 F. 2d 18.

On September 5, 1958 these procedures were amend­
ed by the School Board and when the District Court heard 
the case on remand, on the questions as to the validity of 
the standards, criteria and procedures it considered, by 
agreement of counsel, the amended procedures as having 
been in effect at the outset. By Memorandum and Order 
filed on May 8,1959, the District Court held that the stand­
ards, criteria and procedures were constitutional on their 
face and approved the action of the School Board in deny­
ing the applications of the 134. Beckett v. School Board of 
the City of Norfolk, Virginia, D.C.E.D.Va., 181 F. Supp. 
870. There was no appeal from this decision.

Hill v. School Board of the City o f Norfolk, Virginia, 
4 Cir., 282 F. 2d 473, in which this Court affirmed the de­
cision of the District Court, was an appeal by the plaintiffs 
from the Order of the District Court filed on September 8, 
1959. This Order dealt with the assignment of 33 Negro 
children for the 1959-60 school year and the constitution­
ality of the School Board’s application of the standards, 
criteria and procedures which the District Court on May 
8, 1959 had held constitutional on their face. Hill does not 
relate to the 134 applicants for the 1958-59 school year, as 
stated by the plaintiffs at page 2 of their Brief, although 
in its opinion this Court referred to the District Court’s 
opinion of May 8,1959 for other reasons.

On July 15, 1960 the School Board filed its resolution 
again amending its procedures relating to the assignment 
of children to schools (Plaintiffs’ App. 12).

With regard to the 1960-61 school year there were 
proceedings in the District Court as to 16 Negro children.

3



That Court held that the School Board had improperly ap­
plied its standards, criteria and procedures as to 5 of these 
children, and dismissed the proceedings as to the other 11. 
The 5 were admitted to the schools and grades for which 
they applied and the 11 were not. There was no appeal. 
(Plaintiffs’ App. 15-16.)

With regard to the 1961-62 school year there were 
proceedings in the District Court as to 63 Negro children. 
On motion of the plaintiffs, the proceedings were with­
drawn as to 22 of the children. The District Court referred 
back to the School Board for further consideration the ap­
plications of 2 of the children and upon reconsideration the 
School Board granted these 2 applications. The District 
Court approved the School Board’s action in denying the 
applications of the remaining 39 of these children. There 
was no appeal.

There were no court proceedings with regard to the 
1962-63 school year.

Thus we reach the school year 1963-64 and the pro­
ceedings in the District Court out of which this appeal 
arose.

During the period from July to December, 1963, Car- 
lotta Mozelle Brewer and others intervened as plaintiffs and 
various pleadings were filed. These pleadings include the 
plaintiffs’ motion for further relief, plaintiffs’ motion for 
temporary restraining order which was treated as a com­
plaint for temporary injunction, and the answers of the 
School Board to these motions. (Plaintiffs’ App. 18-20.)

In each of the court proceedings from 1958-59 through 
1961-62 the plaintiffs sought transfers and initial enroll­
ments for Negro children whose applications for such trans­

4



fers and enrollments had been denied by the School Board. 
In 1963 the emphasis was not on individual children, but 
on the plan for the attendance of children in public schools 
which the School Board started into effect with the 1963- 
64 school year (Plaintiffs’ App. 38-39).

The plaintiffs sought:

1. A completely non-racial method of intial enroll­
ment and promotion from elementary to junior high and 
from junior high to senior high schools;

2. Elimination of dual and overlapping attendance 
areas for purposes of initial enrollment and promotion;

3. Elimination of standards, criteria and procedures 
which the School Board had used in processing applica­
tions for transfers and initial enrollments;

4. Elimination of the May 31st deadline for filing such 
applications;

5. Elimination of establishment or alteration of attend­
ance areas on the basis of race so as to perpetuate segrega­
tion;

6. The filing of periodic reports with the Court;

7. The adoption of a timetable with regard to elim­
ination of discriminatory practices;

8. Adoption of a plan providing for:

a. The immediate and complete elimination of ra­
cial discrimination which will afford all children the oppor- 
tunty of a non-racial and non-segregated education, and

5



b. Assignment by the School Board of each child to 
the school nearest his home;

9. Integration of principals, teachers and other pro­
fessional and administrative personnel in the schools; and

10. The allowance of attorneys fees to counsel for the 
plaintiffs. (Plaintiffs’ App. 21-25, 30-32.)

In answer to the plaintiffs’ allegations and prayers, the 
School Board asserted that there was no basis for items 
numbered 5, 6, and 7, that the plaintiffs were not entitled 
to items 8 b., 9 and 10, and that its plan for the attendance 
of children in public schools entitled “Principles To Be Ap­
plied In Determining The Schools And Grades Which Chil­
dren Will Attend And Outline Of Method Of Putting Such 
Principles Into Effect” was a complete answer to the re­
maining items (Plaintiffs’ App. 25-29, 32-34; School Board’s 
App. 56a-59a).

The District Court upheld the contentions of the 
School Board, approved its plan and the application there­
of, and denied the prayers of the plaintiffs (Plaintiffs’ App. 
38-56, 62-63).

QUESTIONS PRESENTED

1. Is the School Board’s plan for the attendance of 
children in the public schools of the City of Norfolk con­
stitutional?

2. Is the plan being applied constitutionally?

3. Must the principals, teachers and other members 
of the professional and administrative staffs of the School 
Board be integrated?

6



4. Are the plaintiffs entitled to an award of counsel 
fees?

STATEMENT OF FACTS

As the District Court repeatedly stated (School 
Board’s App. 89a-92a, 107a-108a, 114a), this case deals 
with the situation as it now exists and will exist in the fu­
ture. References to certain phases of past years are neces­
sary, however, in order to show how the present plan for 
the attendance of children developed.

When Brown v. Board of Education, 347 U. S. 483, 98 
L ed 873, 349 U. S. 294, 99 L ed 1083, was decided, the 
City of Norfolk, for public school purposes, was divided 
into attendance areas for elementary, junior and senior high 
schools. The boundaries of the attendance areas and the 
schools which serve the areas are the same today as they 
were at the time of, and long before, Brown v. Board of 
Education, except for changes that have been made be­
cause of the construction of new schools or because of 
changes in the population density of areas, in which events 
it has been necessary to change the sizes of the areas affect­
ed in order that the schools serving them would be filled 
but not overcrowded. (School Board’s App. 53a, 54a, 55a, 
72a, 87a, 123a-124a, 136a-137a.)

When Brown was decided, each school was attended 
only by Negro children or by white children. In some of 
the attendance areas there lived only persons of the white 
race and in some of the attendance areas there lived only 
persons of the Negro race. Each of these areas was served 
by one school. In some of the attendance areas there lived 
persons of both races and these areas were served by two 
or more schools, one or more for Negro children and one or

7



more for white children. These areas served by two or more 
segregated schools were the dual attendance areas which 
were condemned.

The plan for the assignment of children which the 
School Board adopted on July 17, 1958, as amended on 
September 5, 1958, and which was held to be constitutional 
on its face, contained certain standards and criteria to be 
applied and certain procedures to be followed by the 
School Board and its administrative staff in determining 
whether to grant or deny applications of children for trans­
fers or initial enrollments which involved unusual circum­
stances. Included in the term “unusual circumstances” were 
transfers of children to and initial enrollments of children 
in schools attended wholly or predominantly by children 
of the opposite race.

There were ten standards aand criteria, but from the 
outset only three were used. They were:

1. (No. 4) The assignment shall be made after con­
sideration of the applicant’s academic achievement and 
the academic achievement of the pupils already within the 
school to which he is applying.

2. (No. 7) The assignment shall consider the mental 
ability of the applicant seeking enrollment.

3. (No. 5) The assignment shall be made with con­
sideration for the residence of the applicant.

During the school years 1958-59 through 1962-63 the 
School Board changed from a strict to a liberal construc­
tion of the academic preparedness criteria (No. 4 and No. 
7 above). At first it was necessary for the applicant’s aca­
demic achievement and mental ability to test equal to or

8



higher than the level of his grade in the school sought. 
Gradually this standard was relaxed until it was only nec­
essary for the applicant to test within 2 grades of the level 
of his grade in the school sought, and even when he tested 
lower than that he was admitted on probation.

The procedures prescribed special tests for the appli­
cant children and interviews by the schoool administrative 
staff with the children and their parents or guardians. The 
School Board eliminated the interviews, with the approval 
of the District Court, in July of 1960 (Plaintiffs’ App. 12). 
Beginning with the school year 1963-64, subject to the ap­
proval of the District Court, the School Board eliminated 
the special tests (Plaintiffs’ App. 28-29).

The plan for the attendance of children which is the 
subject of this case was established subject to the approval 
of the Court, it was followed by the School Board for the 
1964-65 school year, the School Board intends to continue 
to follow it unless it is disapproved by the Court, and the 
Principles set forth therein were applied by the School 
Board in its consideration of applications for transfers and 
initial enrollments for the 1963-64 school year. (Plaintiffs’ 
App. 28-29; School Board’s App. 56a-59a, 87a-90a.)

Basically, this plan provides that:

1. If only one school serves an area, all children living 
in the area will a ttend such school; and

2. If two or more schools serve an area, all children 
living in the area may choose, subject to the approval of 
their parents or guardians and subject to the maximum 
capacities of the schools, the school which they wish to 
attend. ( School Board’s App. 56a.)

The choice provided for by this plan is made, for the

9



ensuing year, on a form distributed by the School Admin­
istration, prior to May 1 of the current year, to all affected 
children in attendance in the schools. The forms are readi­
ly available for children who are not in attendance when 
the forms are distributed or who move from one attend­
ance area to another after they make choices and, there­
fore, need to make new choices. ( School Board’s App. 57a.)

For the 1964-65 school year these forms were distribu­
ted to, and completed and returned by, approximately 
32,000 children and the School Board assigned all of these 
children in accordance with their choices (School Board’s 
App. 60a-63a).

Under this plan: the making of applications for trans­
fers and initial enrollments and the May 31st deadline in­
cident thereto are eliminated; the special tests to determine 
academic achievement and mental ability are eliminated 
and the levels of the grades which the children will attend 
are determined by the School Administration, guided by 
the cumulative records, routine tests and performances of 
the children; and the condemned dual attendance areas 
are eliminated. (School Board’s App. 56a-59a.)

Under this plan, there are adjacent areas which are 
served by two or more schools, but one school is not for the 
white children who live in the areas and another school is 
not for the Negro children who live in the areas. The two 
or more schools are for all of the children who live in the 
areas regardless of their race. The children choose the 
school which they wish to attend.

On the reproductions of the maps showing the elemen­
tary and junior high school attendance areas, Plaintiffs’ Ex­
hibits Nos. 1-A-l and l-A-2, (School Board’s App. 53a and 
54a) there are explanatory notations which refer to such

10



adjacent attendance areas as “dual attendance areas”. The 
use of the word “dual”, instead of “adjacent”, is probably 
unfortunate but it is obvious from the plan for the attend­
ance of children (School Board’s App. 56a-59a) and from 
what has been said herein that the phrase “dual attendance 
areas” was used in the notations to refer to areas served by 
two or more schools where there is freedom of choice, as 
distinguished from single attendance areas which are 
served by only one school, and that the phrase refers to 
something entirely different from the condemned dual at­
tendance areas.

On Plaintiffs’ Exhibit No. 1-A-l (School Board’s App. 
53a) there also appears a notation with regard to children 
from Benmoreell, Capehart Housing and Camp Allen. 
These areas are United States Government installations.

Such freedom of choice is not a one-time proposition, 
but will be given every year to every child Who lives in an 
area served by two or more schools.

For convenient reference, the maps showing the boun­
daries of the elementary, junior and senior high schools 
(Plaintiffs’ Exhibits numbered 1-A-l, l-A-2 and l-A-3, re­
spectively) have been reproduced in the School Board’s 
appendix at pages 53a, 54a and 55a. The key to these maps 
(Plaintiffs’ Exhibit No. l-A-4) is printed on pages 64-66 of 
the plaintiffs’ appendix. In preparing this key the School 
Board inadvertently omitted the Lakewood elementary at­
tendance area which is served by the Lakewood Elemen­
tary School.

Every senior high school child has a choice of two 
senior high schools.

All junior high school children, except those who live

11



in the attendance areas served by Azalea Gardens and 
Willard Junior High Schools, have a choice of two junior 
high schools. The children who live in the Azalea Gardens 
and Willard areas, whether they be white or Negro, attend 
Azalea Gardens or Williard Junior High School, depending 
upon which of the two areas they live in.

All of the elementary school children who live in 18 of 
the elementary school attendance areas have a choice of 
two elementary schools. The elementary school children, 
Negro and white, who live in the other 38 (including the 
omitted Lakewood) elementary school attendance areas 
attend the school which serves the area in which they live.

The School Board does not vouch for the accuracy of 
the tabulation of schools on page 5 of the plaintiffs’ Brief, 
but it is correct that in certain of the areas which are served 
by only one school all of the residents are either white or 
Negro. This is the result of residential patterns—choices by 
both Negro and white families of where they wish to live. 
If whites or Negroes choose to move into areas now popu­
lated wholly by persons of the opposite race their children 
will attend, and integrate, the schools serving such areas.

It is also correct that in most of the adjacent areas 
which are served by two schools one of the schools is at­
tended wholly or predominantly by white children and the 
other school is attended wholly or predominantly by Negro 
children. This is the result of the choices of the children.

There is no evidence tending to show that the School 
Board has changed the boundaries of any attendance area 
for the purpose of permitting the school serving it to be a 
school attended wholly by Negroes or a school attended 
wholly by white children, or for the purpose of increasing 
or decreasing the number of Negro or white children at-

12



The figures, set forth at the top of page 9 of the plain­
tiffs’ Brief, which purport to show the number of Negro 
children who at the time of the trial of this case attended 
schools which white children attended, are not accurate. 
The School Board’s answer to Interrogatory 7 (Plaintiffs’ 
App. 37) is cited for these figures, but Interrogatory 7 
(Plaintiffs’ App. 38) did not ask for the number of Negro 
children who attended schools which white children at­
tended. It asked for the number of Negro children “who 
have been initially assigned to attend all-white or predom­
inantly white schools for the first time during the 1963-64 
school term”.

The School Board’s answers to Interrogatories 1 c and 
1 d (School Board’s App. 12a-18a) show the number of 
white children and the number of Negro children in mem­
bership (substantially the same as attendance) as of Sep­
tember 30, 1963, which date was shortly after the begin­
ning of the 1963-64 school year. The following is compiled 
from these answers:

tending a school.

School

Number of 
white children 
in attendance

Number of 
Negro children 
in attendance

Sr. High 
Granby ............. ................. 2731 20
Maury............... ................. 2461 27
Norview ........... ................. 2388 34
Jr. High
Blair .................. .................1236 19
Northside ......... .................1475 5
Norview ........... .................1581 8
Elementary 
Chesterfield ..... .................  531 14
Ingleside........... .................  503 5
Lee .................... ............-.... 10 621
Marshall ........... .................  369 91

13



Meadowbrook .... . ..........  637 5
Monroe .................... ... ......  637 46
Norview Elem ......... .......... 615 19
Stuart ....................... ..........  856 1
Suburban Elem....... .......... 554 37

Totals...... ... . .16,584 952

Thus, 952 Negro children attended schools which white 
children attended.

The quotation from the testimony of Edwin L. Lam- 
herth, Superintendent of Schools of the City of Norfolk, 
which is printed at page 99 of the plaintiffs appendix, is so 
lifted out of context that when read by itself it changes 
completely what Mr. Lamberth said. Mr. Lamberth re­
viewed much of what has been done by the School Board 
since 1958, and explained in some detail the present plan 
for the attendance of children, how it was developed and 
how it differs from the plan previously used. His testimony 
is printed in full in the School Board’s appendix at pages 
70a to 148a.

There was very little evidence introduced with regard 
to the plaintiffs’ contention that the principals, teachers and 
other members of the professional and administrative staffs 
of the School Board should be integrated. The School 
Board’s answer to Interrogatory 1 e discloses that they are 
not integrated (School Board’s App. 19a-21a). The only 
testimony offered was Mr. Lamberth’s statement to the 
effect that they were not integrated (School Board’s App. 
157a-158a).

There was no evidence tending to show that any 
Negro child in the Norfolk Public School Sytem has been 
or will be damaged or has been or will be deprived of his 
constitutional rights by the lack of integration in the prin­

14



cipals, teachers and other members of the professional and 
administrative staffs of the School Board.

ARGUMENT

1. Introduction.

In the second decision in Brown v. Board of Educa­
tion, 349 U. S. 294, 99 L ed 1083, the Supreme Court said:

“Full implementation of these constitutional 
principles [that racial discrimination in public educa­
tion is unconstitutional, and that all provisions of fed­
eral, state, or local law requiring or permitting such 
discrimination must yield to this principle] may re­
quire solution of varied local school problems. School 
authorities have the primary responsibility for eluci­
dating, assessing, and solving these problems; courts 
will have to consider whether the action of school 
authorities constitutes good faith implementation of 
the governing constitutional principles.” 349 U. S. 299, 
99 L ed 1105.

The School Board shouldered its responsibility and 
began solving the school problems in Norfolk with the 
adoption on July 17, 1958 of the standards, criteria and 
procedures relating to the assignment of children to schools 
and the amendment thereof on September 5, 1958. As the 
School Board worked with them it found that it could relax 
its construction of the academic preparedness criteria and 
still maintain the efficiency of its schools. This relaxaton 
continued gradually until all applicants, who qualified 
otherwise, were admitted even if it was necessary to admit 
them on probation insofar as their grade levels were con­
cerned. Also, as the School Board worked with the proce­
dures it found that interviews with applicant children and

15



their parents or guardians could be eliminated, and they 
were.

The School Board also found that applications by chil­
dren for transfers and initial enrollments could be eliminat­
ed, and that the special tests which were being given to 
children to determine academic achievement and mental 
ability could be eliminated.

The School Board found further that every child who 
lived in an area which was served by two schools could be 
given a choice of attending either school, and that such 
choice could be made easily on a form distributed by the 
School Administration in the same manner as other forms 
for informational purposes were distributed.

The School Board’s elucidation, assessment and solu­
tion of the local school problems culminated in the plan 
for the attendance of children which the School Board es­
tablished, subject to the approval of the court, in 1963.

The courts have found that the actions of the School 
Board constituted good faith implementation of the gov­
erning constitutional principles.

In Hill v. School Board of City of Norfolk, Virginia, 
282 F. 2d 473, at p. 474, this Court said:

“In its opinion of May 8, 1959, the District Court 
had found that the Norfolk School Board had been 
cooperative and was proceeding in a sincere effort to 
comply with the law. In approving the School Board’s 
rejection of the applications of these appellants, the 
District Court found that the School Board had un­
dertaken to apply its criteria and procedures honestly 
and fairly, and he concluded that the result, as an in­
terim step ‘in an orderly transition period,’ was in 
compliance with the mandate of the Supreme Court

16



In the Hill case, this Court also said, 282 F. 2d 475:

'“[2] The District Judge, however, did not ap­
prove what has been done to the present time on the 
basis that it was complete and final compliance with 
the Supreme Court’s command. He recognized that 
the Supreme Court contemplated an orderly adjust­
ment, and that compliance might be effected through 
a series of progressive steps taken as rapidly as the 
necessity for practical accommodation permits. His 
approval of what has been done was thus on the basis 
that the Board has taken interim measures and is pro­
ceeding toward the ultimate goal of complete com­
pliance, with the deliberate speed which has been 
ordered.

in the original school cases.”

&  #  #

“We are mindful of the valiant and consistent 
efforts judge Hoffman has made in the past in mar­
shaling community support for the law and in en­
couraging obedience by those charged with official 
responsibility. We give weight also to the past con­
duct of the School Board and the history it has es­
tablished, and to the District Court’s finding that it is 
the Board’s purpose to proceed in good faith and with 
reasonable speed in compliance with the direction of 
the Supreme Court.”

In its Memorandum filed in the instant case, the Dis­
trict Court, after referring to problems which existed in 
Norfolk, said:

“In this setting the Norfolk City School Board has 
struggled with the many problems confronting them. 
They have moved cautiously but steadily forward to 
the point where they now present, in response to plain­
tiffs’ motion for further relief, a plan of operation and 
procedure which goes far—and this Court believes the

17



entire way—in removing all elements of racial discrim­
ination in the school system but, at the same time, af­
fords a freedom of choice to all children (speaking 
through their parents or guardians) to attend the 
school of their choice in accordance with the geo­
graphical location of their homes.” (Plaintiffs App. 
40.)

2. The School Board’s Plan For The Attendance Of 
Children In The Public Schools Of The City Of Nor­
folk Is Constitutional.

In Dillard v. School Board of the City of Charlottes­
ville, Virginia, 4 Cir. (1962), 308 F. 2d 920, this Court 
ruled against the so-called minority transfer plan, pursuant 
to which all children living in an attendance area would 
be assigned to the school serving the area but any child 
assigned to a school attended predominantly by children 
of the opposite race could transfer to a school in another 
attendance area attended predominantly by children of his 
own race, but in so ruling, at 308 F. 2d 923-924, said:

. . It may well be as the evidence in this case 
indicates that some Negroes as well as whites prefer 
the schools in which their race predominates; but the 
wishes of both races can be given effect so far as is 
practicable not by restricting the right of transfer but 
by a system which eliminates restrictions on the right, 
such as has been conspicuously successful in Balti­
more and in Louisville.”

The Norfolk School Board’s plan gives effect to the 
wishes of both races, insofar as is practicable, and consti­
tutes the type of system which this Court mentioned.

In Je fe r s  v. Whitley, 4 Cir. (1962), 309 F. 2d 621, 
this Court, in discussing voluntary separation of the races 
in schools, at p. 627, said:

18



“[5] Though a voluntary separation of the races 
in schools is uncondemned by any provision of the 
Constitution, its legality is dependent upon the voli­
tion of each of the pupils. If a reasonable attempt to 
exercise a pupil’s individual volition is thwarted by 
official coercion or compulsion, the organization of the 
schools, to that extent, comes into plain conflict with 
the constitutional requirement. A voluntary system is 
no longer voluntary when it becomes compulsive.

“[6] This is not to say that when a pupil is as­
signed to a school in accordance with his wish, he 
must be transferred immediately if his wishes change 
in the middle of a school year. It does not mean that 
alternatives may not be limited if one school is over­
crowded while others are not, or that special public 
transportation must be provided to accommodate 
every pupil’s wish. It does mean that if a voluntary 
system is to justify its name, it must, at reasonable 
intervals, offer to the pupils reasonable alternatives, 
so that, generally, those, who wish to do so, may at­
tend a school with members of the other race.”

The School Board believes that the freedom of choice 
aspects of its plan constitute a voluntary system fully 
worthy of the name.

In Goss v. Board of Education, (1963) 373 U. S. 683, 
10 L ed 2d 632, the Supreme Court of the United States 
declared invalid the transfer system which permits a stu­
dent in a school attended predominantly by students of the 
opposite race to transfer to a school attended predominant­
ly by students of his own race, but in its opinion the Court 
made two statements which approve the freedom of choice 
principle which is a part of the School Board’s plan. At 373 
U. S. 687,10 L ed 2d 635, the Court said;

. . Our task then is to decide whether these 
transfer provisions are likewise unconstitutional. In

19



doing so, we note that if the transfer provisions were 
made available to all students regardless of their race 
and regardless as well of the racial composition of the 
school to which he requested transfer we would have 
an entirely different case. Pupils could then at then- 
option (or that of their parents) choose, entirely free 
of any imposed racial considerations, to remain in the 
school of their zone or to transfer to another.”

At 373 U. S. 688, 10 L ed 2d 636, the Court continued:

“This is not to say that appropriate transfer pro­
visions, upon the parents’ request, consistent with 
sound school administration and not based upon any 
state-imposed racial conditions, would fall. Likewise, 
we would have a different case here if the transfer pro­
visions were unrestricted, allowing transfers to or from 
any school regardless of the race of the majority there­
in. But no official transfer plan or provision of which 
racial segregation is the inevitable consequence may 
stand under the Fourteenth Amendment.”

The School Board is aware of the fact that children 
who live in an area which is served by only one school do 
not have the freedom of choice which is available to chil­
dren who live in an area which is served by two schools. 
This is a difference but it is not discrimination. There sim­
ply is no choice to give the children who live in an area 
which is served by only one school. This is a situation 
which results from the manner in which the City has de­
veloped and from the nationally recognized and approved 
practice of establishing, where possible, neighborhood 
schools to better serve the children, especially those in the 
elementary grades. All of the children who live in an area 
which is served by only one school, be they Negro or white, 
are treated alike.

The majority of Norfolk’s neighborhood schools and 
their present attendance areas were established prior to

20



Brown v. Board of Education. Contrary to the accusation of
the plaintiffs, at the top of page 21 of their Brief, of “the 
siting of new school construction so as to preserve the bi- 
racial pattern of the school system”; there is no evidence 
tending to show that any new school has been located or 
constructed for the purpose of perpetuating, or aiding in 
any respect, segregation. There is no evidence tending to 
show that the School Board has fixed or changed the boun­
daries of any attendance area for the purpose of perpetu­
ating segregation.

Such neighborhood schools have been approved by 
the Supreme Court of the United States. Bell v. School City 
of Gary, Indiana, 7 Cir. (1963), 324 F. 2d 209, cert. den. 
377 U. S. 924, 12 L ed 2d 216; Downs v. Board, of Educa­
tion of Kansas City, Kansas, 10 Cir. (1964), 336 F. 2d 988, 
cert, den.............U.S............. , 13 L ed 2d 800.

The Court of Appeals for the Tenth Circuit, in holding 
that a School Board is not required to destroy and abandon 
such neighborhood schools as exist in Norfolk even though 
they result in a racial imbalance in the schools, quoted from 
Bell v. School City of Gary, Indiana, and said:

“Moreover, the question was conclusively ans­
wered in Bell v. School, City of Gary, Indiana, 7 Cir., 
324 F. 2d 209, 213, cert, denied, 377 U. S. 924, 84 S. 
Ct. 1223, 12 L. Ed. 2d 216, where the court held that 

* * there is no affirmative U. S. Constitutional duty 
to change innocently arrived at school attendance dis­
tricts by the mere fact that shifts in population either 
increase or decrease the percentage of either Negro ox- 
white pupils.’

“We conclude that the decisions in Brown and 
the many cases following it do not require a school 
board to destroy or abandon a school system develop­
ed on the neighborhood school plan, even though it

21



results in a racial imbalance in the schools, where, as 
here, that school system has been honestly and con­
scientiously constructed with no intention or purpose 
to maintain or perpetuate segregation,” Downs v. 
Board of Education of Kansas City, Kansas, 336 F. 
2d 998.

The plaintiffs, in their Brief, charge the School Board 
with asserting “that it has no duty to desegregate the 
school's” (p. 13), with a “disavowal of duty or purpose to 
effectuate a transition to a racially nondiscriminatory school 
system” (p. 16), and with “refusing to take the initiative 
to desegregate the schools” (p, 21). There is no foundation 
for these charges.

The School Board’s “Introduction” to its argument 
herein demonstrates that it recognizes, understands and is 
fulfilling its duty, and much of this Brief is devoted to the 
initiative which the School Board has taken to desegregate 
the schools.

The School Board does take the position that it is not 
under a duty to enforce integration, and this position is 
firmly supported by the law. In Briggs v. Elliott, D.C.E.D.
S.C., 132 F. Supp. 776, at p. 777, the three-judge District 
Court said:

“Having said this, it is important that we point 
out exactly what the Supreme Court has decided and 
what it has not decided in this case. It has not decided 
that the federal courts are to take over or regulate the 
public schools of the states. It has not decided that the 
states must mix persons of different races in the 
schools or must require them to attend schools or must 
deprive them of the right o f choosing the schools they 
attend. What it has decided, and all that it has de­
cided, is that a state may not deny to any person on 
account of race the right to attend any school that it

22



maintains. This, under the decision of the Supreme 
Court, the state may not do directly or indirectly; but 
if the schools which it maintains are open to children 
of all races, no violation o f the Constitution is involved 
even though the children of different races voluntarily 
attend different schools, as they attend different 
churches. Nothing in the Constitution or in the d e­
cision of the Supreme Court takes away from the peo­
ple freedom  to choose the schools they attend. The 
Constitution, in other words, does not require integra­
tion. It merely forbids discrimination. It does not for­
bid such segregation as occurs as the result of volun­
tary action. It merely forbids the use of governmental 
power to enforce segregation. The Fourteenth Amend­
ment is a limitation upon the exercise of power by the 
state or state agencies, not a limitation upon the free­
dom of individuals.” (Emphasis supplied.)

In Bell v. School City of Gary, Indiana, 324 F. 2d 209, 
at p. 213, Briggs v. Elliott was cited with approval as 
follows:

“In Briggs v. Elliott (ED SC), 132 F. Supp. 776, 
777, the Court said: ‘The Constituton, in other words, 
does not require integration. It merely forbids dis­
crimination.’ ”

The plaintiffs ask that the School Board assign each 
child to the school nearest his home. In effect ,the plaintiffs 
contend that even though the School Board is not pursuing 
a policy of intentional segregation, there is still segregation 
in fact in the school system and under the principles of 
Brown v. Board of Education the School Board has an af­
firmative duty to eliminate segregation in fact as well as 
segregation by intention. This is the same contention which 
the plaintiffs in Downs v. Board o f Education of Kansas 
City, Kansas made, and which the Court of Appeals an­
swered as follows:

23



. . While there seems to be authority to support 
that contention [citing authorities], the better rule is 
that although the Fourteenth Amendment prohibits 
segregation, it does not command integration of the 
races in the public schools and Negro children have 
no constitutional right to have white children attend 
school with them.” [Authorities cited.] 336 F. 2d 998.

3. The School Board’s Plan is Being Applied 
Constitutionally,

The District Court held “that this plan may be con­
stitutionally administered and that, thus far, it has been so 
applied” (Plaintiffs’ App. 49).

There was no evidence tending to show otherwise. 
For the 1964-65 school year approximtaely 32,000 chil­

dren were given a choice of schools and every one of them 
was assigned to the school which he chose ( School Board’s 
App. 60a-63a). Of these 32,000, 13,348 were Negro chil­
dren. 1251 of the Negro children chose predominantly 
white schools, whereas 12,097 Negro children chose pre­
dominantly or all-Negro schools. (Plaintiffs’ App. 47.)

The plaintiffs, at page 16 of their Brief, apparently 
refer to these 1251 Negro children when they state “Yet, 
despite this extended litigation and one year’s experience 
under the school board’s plan, we find less than 1300 chil­
dren out of a total of more than 55,000 who, during the 
1964-65 school year, could experience any tangible reason 
to believe that our constitution is color blind or that it is 
the supreme law of the land.” The plaintiffs seem to over­
look the fact that 32,000, or nearly three-fifths of the 55,000 
children, had the same opportunity as the 1251 had to ex­
perience such tangible reason, and the plaintiffs seem to 
especially overlook the fact that among those who rejected 
the opportunity were 12,097 Negro children.

24



4. Integration Of The Principals, Teachers And Other 

Members Of The Professional And Administrative 

Staffs Of The School Board Is Not Required.

No evidence was introduced tending to show that an 
assignment of Negro faculties to schools attended wholly 
or predominantly by Negro children and white faculties to 
schools attended wholly or predominantly by white chil­
dren is in fact or in law a violation of any constitutional 
right of the plaintiff children or their parents. Plaintiffs’ 
Brief makes only passing mention of this subject.

No principal, teacher or other member of the profes­
sional or administrative staffs of the School Board is a com­
plaining party.

The memorandum opinion of the District Court quotes 
the following colloquy between the Court and Counsel for 
the Plaintiffs, which took place at the conclusion of the 
evidence:

“The Court: Do I understand that the only thing 
in this record on the contentions of the plaintiffs that 
the school faculties should be integrated is Mr. Lam- 
berth’s statement to the effect that they are not inte­
grated, and you gentlemen will rest on that basis, on 
the school faculty situation?

“Mr. Tucker: I should assume that that would be
adequate because that is all that we could prove. I 
think the better proof is contained in the answers to 
the interrogatories, that some schools have nothing 
but negro faculty and other schools have nothing but 
white faculties. This proves it.

“The Court: Yes, but I don’t have any testimony 
similar to what the Supreme Court in Brown v. Allen 
based it on that this affects in any way the children

25



and their rights. In Brown against Allen, as I remem­
ber, the Supreme Court placed great emphasis upon 
the testimony in some of these cases. I don’t have that. 
I don’t take judicial notice that the reaction against— 
as to Negro children is the same if they’re being taught 
by a Negro teacher or a White teacher. Do I under­
stand that is your contention; that it is the same basis?

“Mr. Tucker: That is not the basis of our conten­
tion here. We don’t have any evidence of psychologi­
cal detriment, but the thing is based on Brown versus 
the Board of Education of a transition to non-racially 
non-discriminatory school systems, and some of the 
conditions, through the court—as a matter of fact the 
Fourth Circuit has indicated that the prayer for a 
transition to a racially non-discriminatory school in­
cludes everything else.

“The Court: In the Lynchburg case Judge Sobel- 
off said by dictum their plan did not mention anything 
about it.

“Mr. Tucker: And other courts have—

“The Court: But he—I don’t remember that he 
sent it back to the District Court in Lynchburg and 
said, Integrate the faculties,’ did he? Judge Michie 
may have thereafter done it, I don’t know. Anyway 
that’s a matter you’re willing to rest on the record.

“I expected some very interesting evidence as to 
the question of the effect on children, but you are 
going to rest on the record, and the School Board rests 
on the record, and I am very much interested to see 
when the judges have got [ten] into the educating 
classes. Maybe we have.” (Plaintiffs’ App. 52-54.)

Apparently the plaintiffs rely on some undefined as­
sumption that such integration is a concomitant of the 
Brown decision, although in neither of the two opinions in 
that case was any such ruling discussed or even intimated.

26



The Answer of The School Board to the plaintiffs’ 
Motion for Further Relief (Plaintiffs’ App. 27) challenges 
the right or standing of the plaintiffs to require such action 
by the Court. A number of the previously all white schools, 
elementary and junior and senior high schools, are now 
mixed schools receiving the instruction of white teachers. 
On what theory or basis the teaching personnel, white and 
Negro, are to be scrambled up into various assignments to 
the schools, is not indicated. Nor is it alleged that the as­
signment of white teachers to schools attended only by 
Negro pupils would accomplish better education of such 
pupils. There is no authoritative decision in support of such 
a demand, and as far as our research discloses only one 
Federal Appellate Court, that of the Fifth Circuit, by a 
majority decision met by a strong dissent, has upheld such 
a contention. That decision will be discussed hereafter.

In Augustus v. Board of Public Instruction of Escam­
bia County, Florida, D.C.N.D. Fla., 185 F. Supp. 450, the 
District Court sustained a motion to strike from the com­
plaint allegations that the assignment of teachers and other 
school personnel on a biracial basis was discriminatory. 
The Court of Appeals for the Fifth Circuit reversed on the 
ground that a motion to strike was not proper in view of 
the fact that factual questions might be involved, but did 
pass on the merits. Augustus v. Board of Public Instruction, 
5 Cir., 306 F. 2d 862. District Judge Carswell, in sustaining 
the motion, adverted to the lack of authority in support of 
the contention of the Negro plaintiffs for the proposal, and 
said:

“Even if these cases do not provide legal prece­
dent for plaintiffs to bring this action, they argue, such 
right under the Constitution is, nevertheless, theirs to 
assert here for they allege that they are suffering ir­
reparable injury by the assignment of teachers, prin­
cipals, and other school personnel. The logic of such

27



contention is questionable. Students herein can no 
more complain of injury to themselves of the selection 
or assignment of teachers than they can bring action 
to enjoin the assignment to the school of teachers who 
were too strict or too lenient. It would be an absurdity 
to say that students in one part of Florida in a county 
where the salaries of teachers are low could maintain 
an action against the school board to increase their 
teachers’ salaries to conform to counties in Florida 
where salaries are higher on the grounds that having 
lower salaried teachers would deprive the student of 
equal protection of the laws under the Constitution. 
This is analogous to the allegations of the complaint 
here.” 185 F. Supp. 453-454.

The Court of Appeals for the Fifth Circuit has decided 
in Board of Public Instruction of Duval County, Florida v. 
Braxton, 5 Cir., 326 F. 2d 616, that reference to considera­
tion by the Court of questions of personnel in the Brown 
opinion opened the door to the integration of personnel and 
teachers. The majority opinion cites no decision from any 
other district or appellate court, and, with due respect, we 
submit that the dissenting opinion of Judge Jones is far 
better reasoned and, indeed, conclusive. We quote from 
his dissent:

“It should be kept in mind, however, that the 
principles of law declared in Brown were dependent 
upon the factual finding of injury to pupils. In this 
case it is found that ‘Negro personnel [teachers, prin­
cipals, supervisory and operating personnel] are as­
signed to Negro schools and white personnel are as­
signed to white schools.’ The appellees, who were 
plaintiffs in the district court, are Negro children who 
are pupils in the public schools of Duval County, Flori­
da. In their complaint they allege that they ‘and the 
members of their class, are injured by the policy of 
assigning teachers, principals and other school person­
nel on the basis of the race and color of the children

28



attending a particular school and the race and color 
of the person to be assigned.’ There was no proof made 
of the injury and no finding by the court that the poli­
cy of assigning Negro personnel to Negro schools and 
white personnel to white schools has a detrimental 
effect upon Negro children. No such finding of fact 
has been made in any other case, so far as I am aware.” 
326 F. 2d 622.

This Court has not directly passed upon the question. 
It is inconclusively mentioned in the opinion in Jackson  v. 
School Board of the City of Lynchburg, Virginia, 4 Cir., 
321 F. 2d 230, but the opinion makes no definitive ruling, 
saying only that the prayer of the Complaint for an Order 
compelling the School Board to “effect . . .  a transition to a 
racially non-discriminatory school system” was broad 
enough to comprehend all aspects of the school’s opera­
tions, including the segregation of faculty and staff.

In Brooks v. County School Board of Arlington Coun­
ty, Virginia, 4 Cir., 324 F. 2d 303, the Court, in reviewing 
the situation in Arlington County, simply said, at page 306:

“Counsel for the School Board also brought to our 
attention a resolution adopted by it one week before 
the hearing of the appeal, declaring against the con­
sideration of race in all future personnel actions. This 
measure is worthy of commendation but, again, it is 
so new that there has been no implementation and no 
experience under it.”

We read the decision of the Court of Appeals for the 
Sixth Circuit in Mapp v. Board of Education of the City of 
Chattanooga, Tennessee, 6 Cir., 319 F. 2d 571, as holding 
that plaintiff children cannot assert the constitutional rights 
of teachers or principals not parties to the cause. The Court 
did not pass, however, on the validity of the contention that 
school children are or may be adversely affected by a bi­

29



racial system of teachers. It did approve the action of the 
lower court in granting a motion to strike “to the extent 
that it applies to allegations relating to the hiring and as­
signment of school personnel other than teachers and prin­
cipals.”

In Griffin v. Board of Supervisors of Prince Edward 
County and Pettaway v. County School Board of Surry 
County, Virginia, 4 Cir., 339 F. 2d 486, this Court held that 
the plaintiffs in Prince Edward and Surry Counties have 
standing to raise the question of discrimination in the em­
ployment and assignment of faculties and other personnel, 
but did not otherwise pass on the question.

The District Court, in its Memorandum (Plaintiffs’ 
App. 38-56), dealt with this subject at some length and 
the following quotation from its opinion is especially per­
tinent:

“It must be remembered that the Supreme Court 
has not yet made integration mandatory just for the 
sake of integrating. This appears reasonably clear from 
its refusal to review Bell v. School City o f Gary, In­
diana, 7 Cir., 324 F. (2d) 809. If it is not incumbent 
upon a school board to 'force’ integration among the 
pupils, why is it required that a school board ‘force’ 
integration upon the school faculties?

“This Court, while personally in agreement with 
the well-reasoned dissent of Circuit Judge Jones in 
Board of Public Instruction of Duval County, Fla. v. 
Braxton, supra, acknowledges that a factual situation 
could be presented. It is recognized as a fact that, in 
many school systems Negro teachers have white chil­
dren in their classes and vice versa. Within a short 
period of time, as integration of the pupils becomes 
more generally accepted, the School Board of the City 
of Norfolk will probably begin integrating the facul­

30



ties. The Superintendent of Schools was not even inter­
rogated as to his views upon this issue. To force the 
School Board to resort to a definite plan at this time 
will only result in ultimate injury to the capable Negro 
teaching personnel.

“Aside from the foregoing, judges should not con­
sider themselves as school administrators. When, in 
the judgment of the highly qualified school adminis­
trators, it is for the best interest of the children to be 
taught by faculties of both races, then the faculties 
should be integrated. To force such action by an in­
junctive order at this time will impair the efficiency of 
the school system and open the avenue to an endless 
stream of litigation involving assignments of person­
nel. In the City of Philadelphia, where a system of 
assignment without regard to race has been in effect 
for many years, the teachers are offered the oppor­
tunity to fill existing vacancies strictly according to 
seniority. This has resulted in litigation by Negro 
plaintiffs who complain that Negro teachers universal­
ly elect to fill positions in predominantly Negro 
schools. While this Court does not consider the Phila­
delphia system as being for the best interests of the 
children being educated—as it totally disregards ef­
ficiency, adaptability and other factors—it is probably 
the only system which could prevent an endless series 
of litigated cases touching upon the propriety and 
legality of teaching assignments. In short, this Court 
favors the vesting of judgment in such matters where 
it belongs—in the school administration and not in the 
hands of a federal judge who has no facts upon which 
he may determine what is proper and legal.” (Plain­
tiff’s App. 55-56.)

5. The Plaintiffs Are Not EntiHed To An Award Of
Counsel Fees.

For answer to the plaintiffs claim for counsel fees and 
the plaintiffs’ allegations of intransigence and evasion on

3f



the part of the School Board, and to show that this claim 
and these allegations of the plaintiffs are without founda­
tion, the School Board refers to the “Introduction” to its 
Argument herein, especially the quotations from opinions 
of this Court and the District Court which are set forth 
therein.

Further discussion of the facts would be repetition of 
what has already been stated, but the School Board does 
remind the plaintiffs that the reasons for the denials of the 
transfers enumerated on pages 19 and 20 of their Brief 
were reasons which had received court approval at the time 
they were used.

The District Court denied the plaintiffs’ claim with the 
following language:

“Nor does the Court believe that this is a proper 
case for the allowance of counsel fees. We do not un­
derstand that such fees must be allowed in all school 
cases. Following Hill v. The School Board of Norfolk, 
4 Cir., 282 F. (2d) 473, certain modifications of the 
existing plan were made, perhaps not as rapidly as 
either the Court or counsel for plaintiffs may have 
deemed appropriate, but nevertheless with a steady 
approach to a desegregated school system. From a re­
view of the more recent authorities it would appear 
that counsel fees are directed against the school boards 
practicing discrimination in a pernicious form. We do 
not believe that even counsel for the plaintiffs will con­
tend that this situation has existed since August, 1958.” 
(Plaintiffs’ App. 50-51.)

In Bell v. School Board o f Powhatan County, Virginia, 
4 Cir., 321 F. 2d 494, this Court held that the plaintiffs 
were entitled to an award of reasonable counsel fees, and 
in reaching its decision said:

“The record discloses a persistent purpose and

32



plan on the part of the defendants to deny the plain­
tiffs their constitutional rights and pretextuously to in­
voke against them rules which in practice had no ap­
plication to white pupils. This the defendants did after 
making it difficult, if not impossible, for the rules to 
be complied with, by failing to make available before 
the deadline sufficient official applcation forms and 
later refusing to consider applications not on official 
forms. They furthered their obstructive purpose by re­
fusing to act upon applications, regardless of when 
made, and by interposing captious objections that ap­
plications had been presented to the Division Super­
intendent instead of to the school principal, when in 
fact the defendants knew that the plaintiffs would 
quite naturally rely on the regulation of the Pupil 
Placement Board which specified filing with the Di­
vision Superintendent.

“The speciousness of the defendants’ objections 
is further illustrated by their claim that applications 
were incomplete in neglecting to specify the school 
to which placement or transfer was desired. The plain 
answer is that, in the first place, no space was provid­
ed on the official application for this information; and 
secondly, in a county maintaining only two schools, a 
request for transfer from one must as a matter of com­
mon sense mean transfer to the other.” 321 F. 2d 497- 
498.

a a a

“The record discloses an undeviating adherence 
to the system of segregation, sustained by acts of 
omission and commission. . . .” 321 F. 2d 499.

a a a

“[7, 8] Finally, we consider the District Court’s 
denial of counsel fees to the plaintiffs. The general 
rule is that the award of counsel fees lies within the 
sound discretion of the trial court but, like other ex-

33



ercises of judicial discretion, it is subject to review. 
The matter must be judged in the perspective of all 
the surrounding circumstances. Local 149, U. A. W. 
v. American Brake Shoe Co., 298 F. 2d 212 (4th Cir.), 
cert, denied, 369 U.S. 873, 82 S.Ct. 1142, 8 L.Ed.2d 
276 (1962). Here we must take into account the long 
continued pattern of evasion and obstruction which 
included not only the defendants’ unyielding refusal 
to take any initiative, thus casting a heavy burden on 
the children and their parents, but their interposing a 
variety of administrative obstacles to thwart the valid 
wishes of the plaintiffs for a desegregated education. 
To put it plaintly, such tactics would in any other con­
text be instantly recognized as discreditable. The 
equitable remedy would be far from complete, and 
justice would not be attained, if reasonable counsel 
fees were not awarded in a case so extreme. See Relax 
v. Atlantic Coast Line RR Co., 186 F. 2d 473, 481 (4th 
Cir. 1951) Parker, C. J .) ; cf. Vaughan v. Atkinson, 
369 U.S. 527, 530-531,' 82 S.Ct. 997, 8 L.Ed.2d 88 
(1962).” 321 F. 2d 500.

The instant case bears no resemblance to the case de­
scribed in these excerpts, and the disallowance of counsel 
fees certainly was within the bounds of the District Court’s 
discretion.

CONCLUSION

In its “Statement of the Case” herein the School Board 
set forth the eleven things which the plaintiffs sought in 
the proceedings out of which this appeal arose.

The School Board believes that it has demonstrated 
that the plaintiffs now have all that they sought to which 
they are entitled, and that the School Board’s plan is a com­
plete and constitutional one which is being constitutionally 
applied. To summarize, in the same sequence in which the

34



eleven things which the plaintiffs sought are stated:

1. The School Board’s plan for the attendance of chil­
dren establishes a completely non-racial method of initial 
enrollment and promotion;

2. The plan eliminates dual and overlapping attend­
ance areas for purposes of initial enrollment and promo­
tion;

3. The plan eliminates the standards, criteria and pro­
cedures which the School Board had used in processing 
applications for transfers and initial enrollments;

4. The plan eliminates the May 31st deadline for filing 
such applications, and, in fact, eliminates the applications 
themselves;

5. There was no occasion for the plaintiffs to seek the 
elimination of establishment or alteration of attendance 
areas on the basis of race so as to perpetuate segregation, 
because attendance areas have never been established or al­
tered on such a basis;

6. The School Board has filed and is filing periodic 
reports with the District Court (School Board’s App. 159a, 
60a-63a);

7. There is no need for a timetable, because the School 
Board’s plan is and has been in effect;

8a. The plan provides for the immediate and complete 
elimination of racial discrimination, and affords all children 
the opportunity of a non-racial and non-segregated educa­
tion;

8b. The law does not require the School Board to

35



assign each child to the school nearest his home;

9. The law does not require the School Board to inte­
grate its principals, teachers or other professional or ad­
ministrative personnel;

10. The plaintiffs are not entitled to the allowance of 
attorneys fees to their counsel.

The School Board further believes that in discussing 
the questions which it thinks are presented by this appeal 
it has answered the questions as stated by the plaintiffs on 
page 4 of their Brief, and that it has answered the pertinent 
statements and arguments made by the plaintiffs in their 
Brief.

Therefore, the School Board respectfully submits that 
the Order of the District Court from which this appeal was 
taken should be affirmed.

L eonard H. Davis 
W . R. C. Cocke

Counsel for Appellees

36