Riddick v The School Board of the City of Norfolk Brief Amici Curiae

    No. 85-1962

IN THE

Buptm? dmtrf of %  IMtvb Btatts
OCTOBER TERM, 1985

PAUL R. RIDDICK, JR., et al., 

v.
Petitioners,

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

MOTION FOR LEAVE TO FILE AND BRIEF AMICI CURIAE OF 
THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 
THE NAACP SPECIAL CONTRIBUTION FUND, THE AMERICAN 
CIVIL LIBERTIES UNION AND THE MEXICAN AMERICAN LEGAL 

DEFENSE AND EDUCATIONAL FUND IN SUPPORT OF THE 
PETITION FOR WRIT OF CERTIORARI

C o n r a d  K. H a r pe r  
Counsel of Record

E l e a n o r  M . F ox 
Sh e r i L . F r u m e r  
E l iz a b e t h  P ryor  Jo h n so n

S im p s o n  T h ach er  & B a r t l e t t  
(a partnership which includes 

professional corporations) 
One Battery Park Plaza 
New York, New York 10004 
(212) 483-9000

[Additional Counsel Listed on Inside Cover]



H arold  R . T y l e r , Jr .,
Ja m e s  R o b e r t so n  

Co-Chairmen

N o r m a n  R e d lic h  
Trustee

W il l ia m  L. R o b in so n  
Lawyers’ Committee For Civil 

Rights Under Law 
1400 “Eye” Street 
Suite 400
Washington, D. C. 20005 
(202) 371-1212

G ro ver  H a n k in s  
NAACP Special Contribution 

Fund
4805 Mt. Hope Drive,
Room 501 
Baltimore, Maryland 21215-3297 
(301) 358-8900

E . R ich ard  L arso n  
B u r t  N e u b o r n e

American Civil Liberties 
Union Foundation 

132 West 43rd Street 
New York, New York 10036
(212) 944-9800

A n t o n ia  H e r n a n d e z  
N o r m a  C a n t u

Mexican American Legal Defense 
and Educational Fund 

634 South Spring Street 
Los Angeles, California 90014
(213) 629-2512

Attorneys for Amici Curiae



IN THE

i>uprm? (Emtrt itf thr Ittttpfc States
October Term, 1985

No. 85-1962

--------------♦--------------
P a u l  R . R iddick , Jr ., et a l,

v.
Petitioners,

T h e  School  B oard  of  t h e  C ity  of N o r fo l k , et al.,

Respondents.
--------------- «----------------

MOTION FOR LEAVE TO FILE BRIEF AS 
AM ICI CURIAE

Introduction

The Lawyers’ Committee for Civil Rights Under Law 
(“Lawyers’ Committee”), NAACP Special Contribution 
Fund, American Civil Liberties Union (“ACLU”), and the 
Mexican-American Legal Defense and Educational Fund 
(“MALDEF”), hereby respectfully move this Court for 
leave to file the attached brief as amici curiae, in support 
of the Petition for Writ of Certiorari pursuant to Rule 36.1 
of this Court’s Rules. The brief amici curiae is being con­
ditionally filed with this motion, copies of which have been 
served upon all parties. The written consent of the peti­
tioners is on file with the Clerk. Respondents have refused 
their consent.

Reasons for Granting the Motion

All of the above-named movants have a long history of 
direct support for, and participation in, cases furthering



11

school desegregation in this Court and in the courts of 
appeals. The Lawyers’ Committee, organized in 1963 at 
the request of the President of the United States to assure 
civil rights to all Americans, has enlisted the services of 
thousands of members of the private bar in cases involving 
education (including school desegregation), voting, employ­
ment, housing, municipal services, the administration of 
justice and law enforcement. It has participated in such 
school desegregation cases as Board of Education v. Harris, 
444 U.S. 130 (1979); Pasadena City Board of Education 
v. Spangler, 427 U.S. 424 (1976); Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1969); and the 
instant case below, Riddick v. School Board of the City of 
Norfolk, 784 F.2d 521 (4th Cir.), petition for cert, fded, 
54 U.S.L.W. 3811 (U.S. May 30, 1986) (No. 85-1962).

The NAACP Special Contribution Fund, a non-profit 
membership corporation, was formed in order voluntarily to 
promote equality of rights and eradicate caste and race 
prejudice among the citizens of the United States. It has 
participated in this Court, both as a party and as amicus 
curiae, in cases presenting constitutional and statutory 
claims of racial discrimination. E.g., Washington v. Seattle 
School District No. 1, 458 U.S. 457 (1982); Regents of 
the University of California v. Bakke, 438 U.S. 265 (1978); 
Pasadena City Board of Education v. Spangler, supra; 
Washington v. Davis, 426 U.S. 229 (1976); Brown v. 
Board of Education, 347 U.S. 483 (1954).

The ACLU, a nationwide, non-partisan organization, is 
dedicated to protecting the fundamental rights of the people 
of the United States. Among those rights is the equal pro­
tection right to a nondiscriminatory, desegregated public 
education. It has participated in Crawford v. Los Angeles 
Board of Education, 458 U.S. 527 (1982); Dayton Board 
of Education v. Brinkman, 443 U.S. 526 (1979); Columbus



m

Board of Education v. Penick, 443 U.S. 449 (1979); and 
Pasadena City Board of Education v. Spangler, supra.

MALDEF is a national civil rights organization whose 
principal objective is to secure the civil rights of Hispanics 
living in the United States. MALDEF has presented sig­
nificant education issues to this Court in such cases as 
Plyler v. Doe, 457 U.S. 202 (1982) and Keyes v. School 
District No. 1, Denver, Colorado, 413 U.S. 189 (1973).

Movants have concluded, as this Court has long recog­
nized, that discrimination on the basis of race and the 
racial segregation of educational facilities are serious im­
pediments to equal educational opportunity. The return to 
all black schools under Norfolk’s Proposed Plan may well 
be understood throughout the country as a signal to aban­
don the principles of Brown.

Movants are uniquely placed to aid the Court in ad­
dressing the questions presented by petitioners. Movants 
speak on behalf of members of the bar deeply versed in the 
relevant law and on behalf of preeminent civil rights and 
civil liberties organizations. More than one hundred cases, 
including those in which movants are involved or expect to 
be involved, may be affected by the disposition of Riddick 
in this Court.



IV

Relief Sought

For the foregoing reasons, movants respectfully pray that 
they be permitted to file the attached brief amici curiae.

Dated: New York, New York 
June 27, 1986

Respectfully submitted,

C o n r a d  K H a r pe r  
Counsel of Record

E l e a n o r  M . F ox 
Sh e r i L. F r u m e r  
E l iz a b e t h  P ryor  Jo h n so n

Sim p s o n  T h a c h e r  & B a r t l e t t  
(a partnership which includes 

professional corporations) 
One Battery Park Plaza 
New York, New York 10004 
(212) 483-9000



TABLE OF CONTENTS

PAGE

Table of Authorities ................................................. vi

Interest of Amici C uriae ..........................................  1

The Lawyers’ Committee .................................... 1

NAACP Special Contribution F u n d ....................  2

American Civil Liberties U n io n ........................  3

Mexican American Legal Defense and Educa­
tional Fund .........................................................  3

Reasons for Granting the W rit .................................  4

P o in t  I— This Case Is One of Overwhelming Pub­
lic Importance..........................................................  4

P o in t  II— This Court Should Consider Whether 
the Courts Below Misapplied the Concept of 
“Unitariness.” .........................................................  6

A. The Concept of “Unitariness” Is Dynamic; 
the Adoption of a Static Definition Was Both 
Erroneous and Insufficient to Erase Decades
of Discrimination.............................................. 6

B. This Court Should Consider Whether the
Fourth Circuit Abdicated Its Responsibility to 
Eradicate the Effects of Past Discrimination. 9

C. This Court Should Consider Whether the
Fourth Circuit Improperly Required Proof of 
Intent in a Remedies and Effects Case..........  10



VI

D. This Court Should Consider Whether School 
Board Action to Prevent “White Flight” and 
to Allay Whites’ Distaste for Integration 
Demonstrates Intent to Discriminate............. 12

Conclusion........................................................................ 16

T a b l e  of A u t h o r it ie s  

Cases

Alexander v. Holmes County Board of Education,
396 U.S. 19 ( 1 9 6 9 ) ...............................................  2

Anderson v. Martin, 375 U.S. 399 ( 1 9 6 4 ) ...........  13
Arlington Heights v. Metropolitan Housing De­

velopment Corp., 429 U.S. 252 (1977) ..................  10

Beckett v. School Board of the City of Norfolk, 148 
F. Supp. 430 (E.D. V a.), aff’d, 246 F.2d 325 
(4th Cir.), cert, denied, 355 U.S. 855 (1957) . .  9

Board of Education v. Harris, 444 U.S. 130 (1979) 2
Brown v. Board of Education, 347 U.S. 483

(1954) .............................................................. 3 ,4 ,5 , 6,9
Brown v. Board of Education (Brown II) 349 U.S.

294 ( 1 9 5 5 ) ............................................................  11,14
Brunson v. Board of Trustees, 429 F.2d 820 (4th

Cir. 1970) ..............................................................  15

Columbus Board of Education v. Penick, 443 U.S.
449 (1979) ............................................................  3

Cooper v. Aaron, 358 U.S. 1 ( 1 9 5 8 ) ....................  14
Crawford v. Los Angeles Board of Education, 458 

U.S. 527 (1982) ...................................................  3

Davis v. School Commissioners of Mobile, 402 U.S.
33 (1971) ............................................................  11,15

PAGE



v ii

Dayton Board of Education v. Brinkman, 443 U.S.
526 (1979) ............................................................ 3

Fullilove v. Klutznick, 448 U.S. 448 (1980) . . . .  14

Green v. County School Board, 391 U.S. 430
(1968) ....................................................................  8

Hunter v. Erickson, 393 U.S. 385 (1969) ...........  13

Keyes v. School District No. 1, Denver, Colorado,
413 U.S. 189 (1973) ..........................................  4

Loving v. Virginia, 388 U.S. 1 (1967) ...............  13

Monroe v. Board of Commissioners of Jackson,
391 U.S. 450 (1968) ..........................................  14

Pasadena City Board of Education v. Spangler, 427
U.S. 424 (1976) ................................................... 2 ,3

Plyler v. Doe, 457 U.S. 202 (1982) ....................  3, 4

Regents of the University of California v. Bakke,
438 U.S. 265 (1978) ........................................3, 13, 14

Riddick v. School Board of the City of Norfolk,
627 F. Supp. 814 (E.D. Va. 1984), aff’d by,
784 F.2d 521 (4th Cir.), petition for cert, filed,
54 U.S.L.W. 3811 (U.S. May 30, 1986) (No. 
85-1962) ..................................................................passim

Standard Oil Co. of New Jersey v. United States,
1911, 221 U.S. 1 (1910) .................................  8

Strauderv. West Virginia, 100 U.S. 303 (1979) . . 13
Swann v. Charlotte-Mecklenburg Board of Educa­

tion, 402 U.S. 1 (1971) ................................... 9

United States v. Scotland Neck City Board of 
Education, 407 U.S. 484 (1972) ......................... 14

PAGE



vm

United States v. Swift & Co., 189 F. Supp. 885 
(N.D. 111. 1960), aff’d per curiam, 367 U.S. 909 
(1961), modified, 1980-1 Trade Cases (CCH) 
f  63,185 (N.D. 111. 1980) .................................  7, 8

Washington v. Davis, 426 U.S. 229 (1976) . . .  .3, 10, 11 
Washington v. Seattle School District No. 1, 458

U.S. 457 (1982) ...................................................  3
Wright v. Council of the City of Emporia, 407

U.S. 451 (1972) .................................................  10, 11
Wygant v. Jackson Board of Education, 54 U.S.L.W.

PAGE

4479 (U.S. May 19, 1986) (No. 84-1340) . .8,13, 14

Statutes and Constitutional Provisions

Internal Revenue Code, 26 U.S.C. § 501(c) (3) . .  2

Fourteenth Amendment to the Constitution of the
United S ta te s ................................................... 3, 4, 13,15

Secondary Authority

Petition for Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit, Riddick 
v. School Board of the City of N o r fo lk ...........  5, 6

Response Opposing Application for Injunction 
Pending Certiorari, Riddick v. School Board of 
the City of N o rfo lk .................................................  7



IN THE

(E m trl at %  U n ited  S ta te s
October Term, 1985

No. 85-1962

P a u l  R . R iddick , Jr ., et al.,

Petitioners,
v.

T h e  School  B oard  of T he  C ity  of  N o r fo l k , et al.,
Respondents.

--------------------------- -— «------------------------------------

BRIEF AMICI CURIAE OF THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW, THE NAACP 
SPECIAL CONTRIBUTION FUND, THE AMERICAN 
CIVIL LIBERTIES UNION AND THE MEXICAN AMER­
ICAN LEGAL DEFENSE AND EDUCATIONAL FUND 
IN SUPPORT OF THE PETITION FOR WRIT OF 
CERTIORARI

Interest of Amici Curiae 
The Lawyers’ Committee

The Lawyers’ Committee for Civil Rights Under Law 
( “Lawyers’ Committee” ) was organized in 1963 at the 
request of the President of the United States to assure civil 
rights to all Americans, in particular by affording legal 
services otherwise unavailable to minorities and the poor 
pursuing claims for equal treatment under law. The Com­
mittee is a non-profit, private corporation, which has en­
listed the services of thousands of members of the private 
bar in cases involving voting, education (including school 
desegregation), employment, housing, municipal services, 
the administration of justice and law enforcement.



2

The Lawyers’ Committee has a long history of direct 
support for, and participation in, cases furthering school 
desegregation in this Court and in the courts of appeals, 
including the instant case below. E.g., Board of Education 
V. Harris, 444 U.S. 130 (1979); Pasadena City Board of 
Education v. Spangler, 427 U.S. 424 (1976); Alexander v. 
Holmes County Board of Education, 396 U.S. 19 (1969); 
and Riddick v. School Board of the City of Norfolk, 784 
F.2d 521 (4th Cir.), petition for cert, filed, 54 U.S.L.W. 
3811 (U.S. May 30, 1986) (No. 85-1962).

NAACP Special Contribution Fund
The National Association for the Advancement of 

Colored People ( “NAACP”) is a New York non-profit 
membership corporation. The Special Contribution Fund 
(the “Fund” ) is an organization exempt from federal in­
come taxes under 26 U.S.C. § 501 (c) (3 ). The Fund sup­
ports legal and educational projects of the NAACP. The 
NAACP’s principal aims and objectives are set forth in 
its articles of incorporation:

. . . voluntarily to promote equality of rights and 
eradicate caste or race prejudice among the citizens 
of the United States; to secure for them impartial 
suffrage; and to increase their opportunities for 
securing justice in the Courts, education for their 
children, employment according to their ability, and 
complete equality before the law.

To ascertain and publish all facts bearing upon 
these subjects and to take any lawful action thereon, 
together with any and all things which may lawfully 
be done by a membership corporation . . .

The NAACP has a long history of participating in this 
Court, both as a party and as amicus curiae, in cases 
presenting constitutional and statutory claims of racial dis­



3

crimination. E.g., Washington v. Seattle School District 
No. 1, 458 U.S. 457 (1982); Regents of the University of 
California v. Bakke, 438 U.S. 265 (1978); Pasadena City 
Board of Education v. Spangler, supra; Washington v. 
Davis, 426 U.S. 229 (1976); Brown v. Board of Education, 
347 U.S. 483 (1954).

American Civil Liberties Union

The American Civil Liberties Union ( “ACLU”) is a 
nationwide, nonpartisan organization of more than 250,000 
members. The ACLU is dedicated to protecting the funda­
mental rights of the people of the United States. Among 
those rights is the equal protection right to a nondiscrimi- 
natory, desegregated public education.

The ACLU has a long history of direct representation 
and amicus participation in cases furthering school desegre­
gation before this Court. E.g., Crawford v. Los Angeles 
Board of Education, 458 U.S. 527 (1982); Dayton Board 
of Education v. Brinkman, 443 U.S. 526 (1979); Colum­
bus Board of Education v. Penick, 443 U.S. 449 (1979); 
Pasadena City Board of Education v. Spangler, supra.

Mexican American Legal Defense and Educational Fund
The Mexican American Legal Defense and Educational 

Fund (“MALDEF”) is a national civil rights organization 
established in 1967. Its principal objective, through litiga­
tion and education, is to secure the civil rights of Hispanics 
living in the United States. MALDEF has represented 
Hispanics in numerous education cases, including twenty 
desegregation cases brought under the Fourteenth Amend­
ment.

MALDEF has presented significant education issues to 
this Court in such cases as Plyler v. Doe, 457 U.S. 202



4

(1982) and Keyes v. School District No. 1, Denver, 
Colorado, 413 U.S. 189 (1973). MALDEF and its local 
counsel continue to represent Hispanic clients in these cases. 
The instant case has a direct impact on the interest of 
Hispanic students in the Houston and Austin, Texas, school 
districts which have been judicially declared unitary.

Reasons for Granting the Writ 

POINT I

This Case Is One of Overwhelming Public Importance.

Amici organizations, each with substantial experience 
in civil rights and school desegregation cases, have taken 
the unusual step of presenting their joint views to this Court 
at the certiorari stage because we are convinced that the 
Riddick decision has enormous significance for school de­
segregation in particular, and for Fourteenth Amendment 
jurisprudence in general.

The facts in this case are extraordinary, and the approach 
taken by the courts below could lead to widespread aban­
donment of pupil assignment measures which have been 
implemented in school systems around the country, largely 
at the prodding of federal courts, to eradicate the effects 
of generations of segregation and discrimination against 
racial minorities.

Amici urge that certiorari be granted in order that this 
Court may determine whether the Fourth Circuit was 
correct in holding that a school district, now integrated by 
busing and other affirmative support and thus unitary in 
that sense, has no further obligation under Brown v. Board 
of Education, even though cessation of such affirmative



5

relief will result in resegregation.* This question and the 
issues it presents are of the widest importance in American 
public education, with Riddick foreshadowing over one 
hundred similar cases. The lives and opportunities of too 
many of the nation’s children are at stake to permit the law 
slowly to evolve through the circuits.

American society has been transformed by this Court’s 
holding in Brown v. Board of Education, that “in the field 
of public education the doctrine of ‘separate but equal’ has 
noplace.” 347 U.S. at 495. Generations of school children 
know firsthand that racial segregation cannot be required 
nor can racial exclusion be openly condoned.

The opinion below heralds a new doctrinal era, one that 
casts Brown aside and writes an end to school desegregation. 
The decision does this, and moreover will likely be widely 
perceived as doing so, because of its explicit holding that 
the entire body of Brown desegregation law is irrelevant. 
784 F.2d at 539. Where a desegregation plan is working, 
that is, producing “unitariness”, the Fourth Circuit author­
izes the plan’s dismantlement. Indeed, the court frees the 
school board of any further obligation to desegregate. The 
circuit court thus provides what this Court has long denied, 
a formula for resegregating school systems throughout the 
country.**

* For the purposes of this brief, amici assume that the 1975 Order 
(see 784 F.2d at 525) at the time of its entry dispositively deter­
mined that the Norfolk school system was “unitary.” We believe, 
however, that the reasons set forth by the petitioners are decisive 
for rejecting the claim that the consent order is dispositive of the 
claims in Riddick.

* * As petitioners have pointed out, the Department of Justice has
already encouraged 164 school districts nationwide to follow the 
Fourth Circuit formula for disbanding desegregation plans. See 
Petition for Writ of Certiorari to the United States Court of Appeals 
for the Fourth Circuit at 37-38.



6

The Fourth Circuit’s error is evident when the decision 
is summarized starkly, but not unfairly: Busing is the 
buttress to Norfolk’s unitary school system but, because 
the system is unitary, the school board has no obligation 
to continue busing or to implement any other plan to create 
stable integration. Brown is discarded with its purpose yet 
unrealized and its promise to the ear, now broken to the 
heart. If Brown is dead, this Court should pronounce and 
explain the obituary.

POINT II

This Court Should Consider Whether the Courts 
Below Misapplied the Concept of “ Unitariness.”

A. The Concept of “Unitariness” Is Dynamic; the 
Adoption of a Static Definition Was Both Errone­
ous and Insufficient to Erase Decades of Discrimi­
nation.

Desegregation in Norfolk began with the 1957 finding 
of de jure discrimination, followed by years of litigation, 
a court-ordered desegregation plan in 1971 (requiring bus­
ing, pairing and clustering of schools), and a 1975 district 
court finding, after four years of operation under the plan, 
of “unitariness.” * The finding of “unitariness” was reaf­
firmed by the district court in 1984, relying specifically on the 
circumstance that no elementary school was “racially iden­
tifiable” (627 F. Supp. 814, 819 (E.D. Va. 1984)), a con­
dition brought about and maintained by the very busing that 
the school board now desires to eliminate.** In the continu-

* The history of the Norfolk school desegregation litigation is 
summarized in the Fourth Circuit’s decision (784 F.2d at 524-25) 
and at length in the Petition for Writ of Certiorari at 4-16.

** The desegregation plan of July 28, 1971, utilized a number of 
integrative techniques with respect to student assignment including

(footnote continued on following page)



7

ous process of eliminating racial discrimination and its 
vestiges, the school board now seeks shelter under the find­
ing of “unitariness,” with its liberating connotations, to 
proceed unburdened by any duty to avoid a relapse into 
segregation, short of explicit intentional discrimination.

Unitariness, however, is not a static concept.* The re­
quirement to achieve unitariness and the correlative duty

(footnote continued from preceding page)

the grouping and pairing of schools, majority-minority transfers, and 
crosstown busing to “overcome the remaining vestiges of Norfolk’s 
dual school system.” Riddick, 627 F. Supp. at 817. The plan was 
thereafter modified by school authorities to create single zone attend­
ance areas when integrated residential areas developed. The Pro­
posed Plan eliminates the grouping and pairing and creates a con­
tiguous single attendance area for each elementary school, thereby 
removing critical elements of the plan upon which the finding of 
unitariness was based.

The Norfolk School Board adopted the Proposed Plan by a vote 
of 5 to 2. Those board members voting in favor of the Plan included 
four whites and one black. The two individuals voting against the 
plan are black. More recently, in 1986, respondents pointed out that 
the school board, now consisting of three blacks and four whites, 
voted unanimously to implement the Proposed Plan. Response 
Opposing Application for Injunction Pending Certiorari at 8, 
Riddick, supra. The approval of certain black members of the school 
board should not be interpreted to imply general support in Norfolk’s 
black community for the Proposed Plan. Appointments to the board 
are in the gift of the City Council and not the electorate directly. 
Moreover, the black community has strongly voiced its opposition 
to the proposed changes and has maintained its support for a deseg­
regated school system. 4th Cir. App. 823, 2158. (Dr. Armor found 
that three-fourths of the black parents favor busing to achieve racial 
balance. His poll data showed that a majority of all Norfolk parents 
favored the present desegregation plan.)

* See United States v. Swift & Co., 189 F. Supp. 885 (N.D. 111. 
1960), aff’d per curiam, 367 U.S. 909 (1961), modified, 1980-1 
Trade Cases (CCH) fl 63,185 (N.D. 111. 1980):

Having completed this divestiture, the petitioners now seek 
leave to re-combine, in part upon the ground that divestiture

(footnote continued on following page)



8

to eliminate the continuing effects of past discrimination 
are obligations enduring as long as necessary to eradicate 
racial discrimination “root and branch”. Green v. County 
School Board, 391 U.S. 430, 437-38 (1968). See Wygant 
v. Jackson Board of Education, 54 U.S.L.W. 4479, 4482 
(U.S. May 19, 1986) (No. 84-1340). The metaphor has 
meaning only if the regrowth of racially identifiable schools 
is prevented.

A constitutionally inviolate unitariness cannot be as­
cribed to a system like Norfolk’s which is so unstable that 
reversion to segregation follows immediately upon the dis­
continuance of affirmative integration techniques. The 
elimination of the current desegregation plan, in favor of 
the school board’s Proposed Plan, reinstates the unconsti­
tutional status quo ante. In 1970, the unquestionable 
vestiges of de jure segregation throughout the Norfolk 
elementary school system were manifested, in part, by the 
presence of “black” elementary schools, representing 30% 
of the school system. PL Ex. 153. As soon as “neighbor­
hood school” assignment under the Proposed Plan is put 
into effect, concededly ten of the same formerly identifiable 
“black” schools will be resurrected, each having more than 
95% black enrollment. PL Ex. 144, 147. Racially isolated 
“black” schools will again comprise nearly 30% of the 
school system. Under the Proposed Plan, resegregation will 
be the result of an affirmative, willful change, rather than 
demographic patterns over which the school board has no

(footnote continued from preceding page)

itself has eliminated the need. As vividly pointed out by 
counsel for amici in oral argument, the principle thus pro­
posed would invite the Standard Oil trust, broken up by 
Standard Oil Co. of New Jersey v. United States, 1911 . . . 
now to re-assemble.

189 F. Supp. at 913.



9

power. This is as offensive to Brown, and the prior Norfolk 
desegregation decrees, as were the de jure conditions exist­
ing in 1970.

B. This Court Should Consider Whether the Fourth 
Circuit Abdicated Its Responsibility to Eradicate 
the Effects of Past Discrimination.

The Fourth Circuit assumed that it could invalidate the 
Proposed Plan only if there was a new violation. 784 F.2d 
at 538-39. The court recognized that where, after racial seg­
regation, the transition from a dual to a unitary school sys­
tem has not been completed, “the board must show that the 
proposed changes are consistent with its continuing affirma­
tive duty to eliminate discrimination.” But the court con­
cluded that once a “unitary finding” has been made, its 
“role ends,” foreclosing its intervention to counteract re­
segregation. Id. at 535.

By limiting its review, thereby halting its analysis, the 
Fourth Circuit failed to weigh the effects of the board’s 
proposed actions. The board’s Proposed Plan returns 39% 
of the black elementary school students to the conditions 
which prevailed for their predecessors at the time the 
original de jure finding was made in 1957. Beckett v. 
School Board of the City of Norfolk, 148 F. Supp. 430 (E.D. 
Va.), aff’d, 246 F.2d 325 (4th O r.) , cert, denied, 355 
U.S. 855 (1957). This result is contrary to the continuing 
obligation to eradicate the effects of past discrimination, 
specified in Brown and Swann* If school authorities who 
have administered a de jure segregated school system have 
an affirmative obligation to avoid practices which perpetu­
ate a dual school system while striving to create a unitary 
system, it is indisputable that those same authorities must

* Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 
1 (1971).



10

avoid actions which re-establish the dual school system by 
dismembering a unitary one.

C. This Court Should Consider Whether the Fourth 
Circuit Improperly Required Proof of Intent in 
a Remedies and Effects Case.

This case is about remedies, not violations. If integration 
falls apart on withdrawal of the remedies, the violation has 
not been cured. Under the plan now in force, the remedies 
effect desegregation. Under the Proposed Plan, the elimina­
tion of remedies assures resegregation. The Fourth Circuit 
failed to see that Riddick differs from the predecessor Nor­
folk school cases which supplied the predicate Fourteenth 
Amendment violation. School systems throughout the 
country which are operating under unitary plans need 
guidance as to remedies, a guidance omitted from the 
opinion below.

The Fourth Circuit inappropriately likened this case to 
Washington v. Davis* and Arlington Heights v. Metropoli­
tan Housing Development Corp.** and held that plaintiffs 
must prove a new discriminatory intent. In those cases, the 
question was whether previously unchallenged government 
action can be unconstitutional merely on the basis of dis­
parate impact and without a showing of discriminatory 
intent. As this Court pointed out in both cases, a general 
constitutional right to be free of disparate impact would 
chill valid and useful government acts to achieve important 
societal ends.

The relevant analogy for present purposes was, however, 
Wright v. Council of the City of Emporia, 407 U.S. 451

* 426 U.S. at 229.
** 429 U.S. 252 (1977).



11

(1972), where, after a finding of intentional segregation 
and a federal court order to dismantle a dual system, the 
City of Emporia sought to withdraw from the school dis­
trict. The withdrawal threatened to interfere with the plan 
for integration. This Court held the withdrawal impermis­
sible solely because of its effect. Distinguishing Emporia 
in Washington v. Davis, this Court pointed out: “There 
was thus no need [in Emporia] to find ‘an independent 
constitutional violation.’ ” “The constitutional predicate . . . 
was ‘the enforcement until 1969 of racial segregation in a 
public school system of which Emporia had always been a 
part.’ ” 426 U.S. at 243, citing Emporia, 407 U.S. at 459.

The distinction is of consequence. Proof of intent is 
important for purposes of initial violation, at least in cases 
such as Washington v. Davis, where the social costs of 
condemning government action on the basis of disparate 
impact alone are high. But where the question is the suf­
ficiency of relief to cure a proved violation, the requirement 
of demonstrating a new discriminatory intent is both irrele­
vant and redundant.*

This Court should grant the writ in order to clarify that 
a remedies case requires no further proof of intent but 
rather analysis of the fit between eradication of the viola­
tion and the means chosen therefor.

* As this Court said in Emporia, rejecting the claim that plaintiff 
must prove illegal intent: “the mandate of Brown II [Brown V. 
Board of Education, 349 U.S. 294 (1955)] was to desegregate 
schools, and we have said that ‘[t]he measure of any desegregation 
plan is its effectiveness.’ ” 407 U.S. at 462, citing Davis v. School 
Commissioners of Mobile County, 402 U.S. 33, 37 (1971).



12

D. This Court Should Consider Whether School Board 
Action to Prevent “White Flight” and to Allay 
Whites’ Distaste for Integration Demonstrates In­
tent to Discriminate.

If this Court concludes that intent to discriminate must 
first be established, then the record conclusively does so, 
or at a minimum creates an unrebutted presumption against 
the school board, because the Proposed Plan is racial in 
design, based upon race conscious criteria, for the purpose 
of reaching a discriminatory result.

The school board made two racially-based political judg­
ments in deciding to adopt the Proposed Plan: first, the 
Board accepted the presumption that white students are 
more likely to remain in Norfolk public elementary schools 
if whites constitute a sizeable portion of the student body; 
second, that the cost of creating additional racially identi­
fiable “black” elementary schools was outweighed by the 
benefit of inducing white students to remain in the public 
elementary school system. The result of the Proposed Plan 
would be a great increase in the racial identifiability of a 
substantial number of elementary schools. 784 F.2d at 527. 
All of these aspects of the genesis and adoption of the 
Proposed Plan fundamentally implicate race.

The courts below treated the Riddick case as one in which 
a race-neutral pupil assignment plan was challenged on the 
ground of discriminatory motivation. Id. at 540. This 
ignores the fact that the challenged plan is simply not race- 
neutral nor does it use race to cure discrimination. Its very 
conception arises from the dynamic that: (a) the Board 
wanted to keep white children in the schools; (b) so, it 
hired a consultant to conduct a survey of the attitudes of 
parents; (c) the consultant determined that white parents 
did not mind having their children in schools with blacks, 
so long as there are not too many blacks compared with



13

whites; (d) the Board then designed a plan whose essential 
purpose was to fix a racial balance in the schools which was 
acceptable to whites. Id. at 526-27. This kind of action 
to achieve a racially-defined result mocks the concept of 
Equal Protection, without regard to whether the motive for 
seeking that result is malign or benign.*

The purposive creation of majority white schools to avoid 
white flight is an inescapable slur on blacks—it “is practi­
cally a brand upon them, affixed by the law, an assertion of 
their inferiority, and a stimulant to . . . race prejudice”
(■Straudery. West Virginia, 100 U.S. 303, 308 (1879))__
whether or not ill-intended. If— as Brown fundamentally 
recognized— “separate” cannot be “equal,” neither can 
“proportion-controlled” be “equal” when the proportions 
are race-defined. The infidelity of the Fourth Circuit deci­
sion to Brown is indefensible.

The school board’s action, grounded in racial distinc­
tions, is inherently suspect and suspect distinctions must be 
subject to strict judicial scrutiny. Wygant, 54 U.S.L.W. at 
4481 (where a state agency’s action operates in favor of a 
certain racial group and against another, there arises a 
suspect classification based on race); Regents of the Uni­
versity of California v. Baklce, 438 U.S. at 290-91; Loving 
v. Virginia, 388 U.S. 1, 8-9 (1967). Strict scrutiny shifts 
the burden to the school board to establish a compelling

* See e.g. Anderson v. Martin, 375 U.S. 399 (1964) (invalidating 
a Louisiana statute which required that the race of candidates be 
designated on all ballots in state elections); Hunter v. Erickson, 
393 U.S. 385 (1969) (invalidating an amendment to the Akron, 
Ohio city charter which prevented the city council from implement­
ing any anti-discrimination housing ordinances without the approval 
of a majority of the voters).

As Justice Powell stated in Regents of the University of Cali­
fornia v. Bakke, “[pjreferring members of any one group for no 
reason other than race or ethnic origin is discrimination for its own 
sake. This the Constitution forbids.” 438 U.S. at 307.



14

state interest justifying its racially conscious actions. Bakke, 
438 U.S. at 290-91. If intent is to be an issue, the burden 
of proof should have fallen on the school board to establish 
a constitutionally permissible basis for its actions.

Under the strict scrutiny test the “means chosen by the 
State to effectuate its purpose must be ‘narrowly tailored to 
the achievement of that goal.’ ” Wygant, 54 U.S.L.W. 
at 4481, citing Fullilove v. Klutznick, 448 U.S. 448, 480 
(1980) (opinion of Burger, C.J.). As in Wygant, the 
Norfolk Board’s stated purpose is to effect and maintain 
the desegregation of the school system. Just as this Court 
held in Wygant that the role model theory espoused by the 
Jackson Board had “no logical stopping point,” “allowing] 
the Board to engage in discriminatory hiring and layoff 
practices long past the point required by any legitimate 
remedial purpose” (Powell, J., for the plurality, 54 
U.S.L.W. at 4482), the Norfolk Board’s reliance on the 
white flight rationale is likewise limitless. The judicially 
rejected idea that black students are better served by black 
teachers is analogous to the idea that white students are 
more likely to remain in the public system if they constitute 
a sizeable portion of the student body. Both notions may 
be used to escape the obligation to remedy discriminatory 
practices.

From Brown II, 349 U.S. at 300, and Cooper v. Aaron, 
358 U.S. 1, 16 (1958) through Monroe v. Board of Com­
missioners of Jackson, 391 U.S. 450, 459 (1968) and 
United States v. Scotland Neck City Board of Education, 
407 U.S. 484, 491 & n.5 (1972), however, this Court has 
repeatedly rejected fears, predictions, or reports of white 
withdrawal from desegregating school districts as a justifica­
tion for requiring anything less than the complete eradica­
tion of racially dual school systems through the implementa­
tion of plans designed to achieve “the greatest possible



15

degree of actual desegregation, taking into account the 
practicalities of the situation.” Davis v. School Commis­
sioners of Mobile, 402 U.S. at 37.* There is no way to 
square the Riddick decisions below with these principles.

The notion that the Fourteenth Amendment would permit 
public officials to reassign minority students mandatorily 
to all-minority schools, in an effort to lure additional white 
students to enroll in other public schools, clashes violently 
with the constitutional principle underlying the Brown de­
cision itself. As Judge Sobeloff eloquently put it, the 
constitutional requirement of desegregation “is not founded 
upon the concept that white children are a precious re­
source which should be fairly apportioned.” Brunson v. 
Board of Trustees, 429 F.2d 820, 826 (4th Cir. 1970) 
(concurring opinion).

* To distinguish, in the manner of the Fourth Circuit (784 
F.2d at 539), this Court’s decisions merely because they involved 
an earlier phase of desegregation, that of dismantling of dual school 
systems, is disingenuous where the Proposed Plan undermines 
“unitariness” and re-establishes a key aspect of the prior dual system.



16

Conclusion

For the foregoing reasons, the Lawyers’ Committee for 
Civil Rights Under Law, the NAACP Special Contribution 
Fund, the American Civil Liberties Union and the Mexican 
American Legal Defense and Educational Fund, as amici 
curiae, respectfully pray that the petition for writ of certio­
rari be granted and the judgment below be reversed.

Dated: June 27, 1986

Respectfully submitted,

C o n r a d  K. H a r pe r  
Counsel of Record

E l e a n o r  M. F ox 
Sh e r i L . F r u m e r  
E l iz a b e t h  P ryor  Jo h n so n

Sim p s o n  T h a c h er  & B a r t l e t t  
(a partnership which includes 

professional corporations) 
One Battery Park Plaza 
New York, New York 10004 
(212) 483-9000



17

H a r o ld  R . T y l e r , Jr .,
Ja m e s  R o b e r t so n  

Co-Chairmen

N o r m a n  R e d lic h  
Trustee

W il l ia m  L. R o b in so n  
Lawyers’ Committee For Civil 

Rights Under Law 
1400 “Eye” Street 
Suite 400
Washington, D. C. 20005 
(202) 371-1212

G r o v er  H a n k in s  
NAACP Special Contribution 

Fund
4805 Mt. Hope Drive,
Room 501 
Baltimore, Maryland 21215-3297 
(301) 358-8900

E. R ich ard  L arson  
B u r t  N e u b o r n e

American Civil Liberties 
Union Foundation 

132 West 43rd Street 
New York, New York 10036
(212) 944-9800

A n t o n ia  H e r n a n d e z  
N orm a  C a n t u

Mexican American Legal Defense 
and Educational Fund 

634 South Spring Street 
Los Angeles, California 90014
(213) 629-2512

Attorneys for Amici Curiae



.