United States v. Timmons Jr. Brief for Defendants-Appellants

    NO. 85-

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1985

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

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

APPLICATION FOR AN INJUNCTION PENDING DISPOSITION OF A 
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FOURTH CIRCUIT

HENRY L. MARSH, III 
S.W. TUCKER 
RANDALL G. JOHNSON 
HILL, TUCKER & MARSH 
509 North 3rd St. 
P.O, Box 27363 
Richmond, VA 23261 
(804) 648-9073

GEORGE B. LITTLE 
ELIZABETH TURLEY 
TIMOTHY M. KAINE 
1300 Federal Reserve 
Bank Bldg.

P.O. Box 555 
Richmond, VA 23204 
(804) 644-4100

GWENDOLEN JONES JACKSON 
P.O. Box 622 
Norfolk, VA 23501 
(804) 622-9031

*JULIUS LEVONNE CHAMBERS 
JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, JR. 
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 213-1300

Attorneys for Petitioners
*Counsel of Record



No. 85-

IN THE
SUPREME COURT OP THE UNITED STATES 

OCTOBER TERM, 1985

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

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

APPLICATION FOR AN INJUNCTION PENDING DISPOSITION OF A 
PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FOURTH CIRCUIT

To The Honorable Warren E. Burger, Chief Justice 
of the United States and Circuit Justice for the 
Fourth Circuit:

Petitioners Riddick et al., respectfully move for 
an injunction to preserve the status quo pending disposition 
of a petition for certiorari filed at the same time as this 
application. Specifically, petitioners apply for an order 
enjoining the defendant school authorities from implementing 
a proposed pupil assignment plan that would convert ten 
presently integrated schools into all-black schools when the 
next school year begins in the fall of 1986.



The Petition for Certiorari filed in this case 
seeks plenary review of a decision of the United States 
Court of Appeals for the Fourth Circuit in Riddick v. School 
Board of the City of Norfolk, 784 F.2d 521 (4th Cir. 1986), 
affirming a judgment of the District Court for the Eastern 
District of Virginia which denied petitioners injunctive 
relief against the proposed new pupil assignment plan.
Riddick v. School Board of the City of Norfolk, 627 F.Supp.
814 (E.D. Va. 1984). Copies of both opinions below are 
printed in the separately bound Appendix to the Petition for 
Certiorari filed with this Court today. The Court of 
Appeals entered an order denying an injunction pending 
certiorari on May 7, 1986. A copy of that order is appended 
hereto.

STATEMENT OF THE CASE

The petition for certiorari contains a detailed 
Statement of the Case. We present a more abbreviated summary ! 
in this application.

Petitioners represent a class of black children 
who attend the public schools of Norfolk, Virginia and their 
parents. They sued the school board in May 1983 to prevent 
the board from introducing a new pupil assignment plan which 
would abrogate the basic desegregation scheme that had been 
in effect for Norfolk's elementary schools since ordered by 
the federal courts in 1971. The board's proposed plan would 
return to all-black status ten schools which had been

2



all-black prior to 1971 but integrated since that time. The 
board did not implement this new plan pending decisions by 
the courts below, even though both declined to enjoin it. 
However, after the Fourth Circuit denied rehearing, the 
board decided to proceed with the plan when school opens for 
the 1986 fall term.

If implemented, the plan would terminate the 
desegregation system now in effect in Norfolk. That system 
was the product of 19 years of litigation from 1956 to 1975, 
including eleven appeals to the Fourth Circuit. It uses the 
techniques of rezoning, pairing and busing approved in Swann 
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971). It has kept all of the schools in the district 
reasonably well desegregated since 1971. In 1975, after its 
successful implementation through a permanent injunction the 
original Norfolk school desegregation litigation was 
dismissed by agreement of the parties with an order reciting 
that the district was "unitary".

In 1983-84 (the last year for which the record 
contains data), Norfolk's elementary schools were 57% black. 
Twelve schools had single attendance zones and the other 28 
schools were grouped and paired in a pattern similar to that 
ordered in 1971. Although the board had not made year-by­
year adjustments for racial balance, most of Norfolk's 
elementary schools remained well integrated and fairly close 
to the 57% black district-wide average. Elementary popula­
tions ranged from 80% to 23% black.

3



The proposed plan would break up the present pairs 
and clusters, and assign pupils to single contiguous 
attendance zones. According to the board's own estimates ten 
schools will become all-black under the plan. The same ten 
schools were all-black until desegregated in 1971 by the 
procedures which the board now proposes to abandon. These 
schools with their opening dates and racial percentages in 
1969, in 1983, and under the proposed plan (PX. 144,
147— before transfers) are listed in the following table:

ELEMENTARY 1969 1983 PROPOSED
SCHOOLS BLACK % BLACK % BLACK %
Bowling Park (1953) 100.0% 80.7% 100.0%
Tidewater Park (1964) 100.0% 68.8% 100.0%
Young Park (1954) 100.0% 57.1% 100.0%
St.Helena (1966) 98.9% 57.7% 99.1%
Chesterfield (1920) 92.9% 69.9% 99.1%
Monroe (1903) 98.9% 63.3% 99.0%
Roberts Park (1964) 100.0% 76.6% 98.0%
Jacox (1949) (all-black jr.hi 1969) 65.0% 98.0%
Tucker (1942) 100.0% 47.2% 98.0%
Diggs Park (1953) 100.0% 66.7% 96.9%

It was estimated that under the plan, 4738 black and 54
white children would attend these ten schools. The other
twenty-six elementary schools would have 8403 white and 7416 
black pupils. Sixty-four percent of the white pupils would 
attend 14 majority-white schools that would average 67.7% 
white.

Norfolk had 22 black elementary schools in 1969. 
Twelve have since been closed. The board's proposed plan 
would resegregate all but two of those that remain open plus 
a formerly all-black junior high school. These were and are



located in black neighborhoods that have existed since 
before 1969. Nearly all are near de jure segregated all­
black low-income public housing projects built before Brown 
v. Board of Education, 347 U.S. 483 (1954). The schools 
themselves were constructed to serve the same local black 
populations which continue to occupy the nieghborhoods 
around them.

The district court below found that the board's 
"primary objective" in adopting the proposed plan was 
"providing a response to the threat posed by white flight to 
the long term integration of the Norfolk school system." 627 
F.Supp. at 824. Before adopting the plan the board employed 
a consultant, a sociologist, Dr. David Armor, who recom­
mended that the board proceed with the plan. He predicted 
that if busing continued, white enrollment would "drop to 
about 8,000 students in 1987." (This prediction has not 
been borne out, according to the latest available data. 
Rather, Norfolk's schools have retained over 14,000 white 
and "other" race pupils since 1981, and the black/ white 
ratio has remained at about 59-41%.) Dr. Armor took opinion 
polls and reported that "none of the groups object to 
sending their child to a school that is half white and half 
black" but that "40 to 56 percent of white parents do object 
to a school where most of the students are black." He 
predicted that by ending busing —  which white parents 
opposed and black parents supported -- the district could 
increase and stabilize its white enrollment.

5



Both courts below approved the proposed plan in 
opinions which said that such cases as Swann, supra, Green 
v. County School Board, 391 U.S. 430 (1968); United States 
v. Scotland Neck Board of Education, 407 U.S. 484 (1972); 
Columbus Board of Education v. Penick, 443 U.S. 449 (1979); 
and Dayton Board of Education v. Brinkman, 443 U.S. 526 
(1979), are "inapplicable" because Norfolk is a "unitary" 
system which no longer has an affirmative duty to desegre­
gate. Acknowledging that this is an issue of first impres­
sion and that it could "find no case decided in the same 
situation as that before us," 784 F.2d 537, the Fourth 
Circuit held that plaintiffs challenging the abrogation of 
desegregation procedures which had produced a "unitary" 
system have the burden of showing that the proposed new plan 
is the product of discriminatory intent, and that here they 
had not done so. It found the board's consideration of 
"white flight" to be "legitimate", and endorsed the plan as 
"a reasonable attempt by the school board to keep as many 
white students in public education as possible and so 
achieve a stably integrated school system." Id. at 540.

REASONS FOR GRANTING THE INJUNCTION
I.

A Circuit Justice Has Jurisdiction and Power 
to Grant an Injunction.

The authority of the Court or a single Justice to 
grant an injunction pending disposition of a petition for 
certiorari is conferred by 28 U.S.C. sections 1651, 2101(f)

6



and Supreme Court Rule 44. This power is well settled and 
amply supported by the rules, statutes and precedents. Rule 
44 provides that a "writ of injunction may be granted by any 
Justice in a case where it might be granted by the Court." 
The inherent equitable power to issue injunctions to 
preserve the status quo pending appellate review is long 
settled. 28 U.S.C. sec. 1651. See Newton v. Consolidated 
Gas Co., 258 U.S. 165 (1922); Merrimack River Savings Bank 
v. Clay Center, 219 U.S. 527 (1911). Indeed, the power to 
grant affirmative .elief pendente lite has been repeatedly 
exercised in a variety of school desegregation cases. Lucy 
v. Adams, 350 U.S. 1 (1955); Carter v. West Feliciana Parish
School Board, 396 U.S. 226 (1969); Keyes v. School District 
No. 1, Denver Co., 396 U.S. 1215 (1969); Dowell v. Board of 
Education, 396 U.S. 269, 270, n.1 (1969); Swann v. Char- 
lotte-Mecklenburg 3oard of Education, 399 U.S. 926 (1970).

II.
The Balance of Equities Favors the Granting 

of an Injunction.
A. An injunction is necessary to prevent 

irreparable harm to petitioners

This application presents the unique circumstance 
of a fully desegregated school system which is on the verge 
of deliberately reestablishing major components of the 
unconstitutional dual system that was eliminated only after 
19 years of litigation. The proposed resegregation would 
place several thousand black children, who have always 
attended integrated schools, in segregated schools for the 
first time in their lives.

7



The harm inflicted on children by racial segrega­
tion has been consistently recognized since Brown v. Board 
of Education, 347 U.S. 483 (1954). In 1969 this Court 
unanimously decided that it was no longer equitable to 
permit delay of desegregation under the rubric of "all 
deliberate speed," and that desegregation was required "at 
once". Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969); Carter v. West Feliciana Parish School 
Board, 396 U.S. 226 (1969). Mr. Justice Marshall has 
written of the "devastating, often irreparable injury to 
those children who experience segregation and isolation", 
Jefferson Parish School Board v. Dandridge, 404 U.S. 1219, 
1220 (1971) (Justice Marshall in chambers). Chief Justice 
Burger's opinion for the Court in Milliken v. Bradley, 433 
U.S. 267, 283 (1977) (Milliken II) approved a court-ordered 
plan of remedial programs "to overcome the inequalities 
inherent in dual school systems," and described an aspect of 
the harm resulting from these inequalities as follows:

"Children who have been thus 
educationally and culturally set apart 
from the larger community will 
inevitably acquire habits of speech, 
conduct, and attitudes reflecting 
their cultural isolation. They are 
likely to acquire speech habits for 
example, which vary from the environ­
ment in which they must ultimately 
function and compete, if they are to 
enter and be a part of that com­
munity." 433 U.S. at 287.

8



The opinion added that "the consequences linger". Id. In a 
concurring opinion Mr. Justice Marshall wrote that the fact 
that "the academic development of black children has been 
impaired by this wrongdoing is to be expected." Id. at 291.

At the trial of this case, the evidence showed 
that there has been substantial educational improvement by 
black pupils in Norfolk since desegregation, with the gap 
between white and black students on achievement tests 
reduced from 41 percentage points in 1962-63 to 19 points in 
1980-81. Although opposing expert witnesses differed about 
the extent to which this academic improvement could be 
attributed to desegregation, the trial judge wrote that he 
would "assume that integration produces some positive impact 
upon achievement." 627 F.Supp. at 821.

B. The injunction will not harm the school
system or the public.

The respondents voluntarily refrained from 
implementing the plan at issue between its adoption in 
February 1983 and the present time, seeking judicial 
approval before proceeding with it. This was appropriate 
considering the unprecedented nature of the case, the 
efficacy of the present pupil-assignment system to produce 
desegregation, and the substantial resegregative effects of 
the proposed new plan. It demonstrates that the board did 
not regard its reasons for proposing the plan to be suf-

9



ficiently urgent to warrant pressing for implementation of 
the plan during the 1983-84, 1984-85, or 1985-86 school 
terms.

Although the primary reason for the plan was the 
prospect of white flight from the Norfolk schools, there has 
been little change in the proportions of black and white 
pupils in the system since 1981. Thus, the board's fear in 
1983 that the school system would soon become 75% black 
provides no urgency for implementation of the plan. The 
seventh-day enrollment figures for the 1981-85 period were 
submitted to the Fourth Circuit in an application for an 
injunction pending certiorari as well as a motion to 
supplement the record, and the board did not contest their 
accuracy:

Year Black
Pupils

White &
Other
Pupils

Black %

1981 20,892 14,427 59.2%
1982 20,735 14,521 58.8%
1983 21,191 14,611 58.0%
1984 20,690 14,707 58.5%
1985 20,717 14,658 58.6%

no basis appears for fearing harm to the school
system during the consideration of the petition, even if one 
accepts the legitimacy of the board's concern for potential 
white flight.

10



C. preservation of the status quo pending review 
is appropriate.

Equity courts have traditionally favored preserv­
ing the status quo pending appellate review, and this 
principle has been applied by members of the Court in a 
school desegregation context. In separate opinions in 
chambers, Mr. Justice Stewart and Mr. Justice Rehnquist 
agreed on its applicability where a school desegregation 
plan had been in effect for three years, notwithstanding the 
likelihood that review would be granted. Dayton Board of 
Education v. Brinkman, 439 U.S. 1357 (1978) (Justice Stewart 
in chambers); Dayton Board of Education v. Brinkman, 439 
U.S. 1358 (1978) (Justice Rehnquist in chambers). The 
principle is even more compelling as applied to the 15 year 
old desegregated status quo in Norfolk.

D. There is a likelihood that the Court will 
grant review

The petition for certiorari is on file with the 
Court, and we submit that its "cert.-worthiness" is evident. 
The Court has repeatedly reviewed important issues in school 
desegregation cases since Brown, supra. We urge in the 
petition that this particular case is of transcendent 
importance, because the rule announced by the courts below 
would permit resegregation of every school district which 
has implemented a plan of desegregation in accord with Swann 
v. Charlotte-Mecklenburg Board of Education, supra.

- 11 -



The Fourth Circuit acknowledges that this case is
one of first impression. It holds "inapplicable" to a 
situation that is bound to arise in every school case not 
only this Court's Swann decision, but the very concept of an 
affirmative duty to eradicate racial discrimination which 
has been the main thrust of this Court's recent school 
desegregation decisions. Although Swann has remained 
controversial, a majority of this Court has continued to 
adhere to that decision. Columbus Board of Education v. 
Penick, 443 U.S. 449 (1979); Dayton 3oard of Education v. 
Brinkman, 443 U.S. 526 (1979). We submit that it is 
unlikely that the Court will permit the practical eviscera­
tion of Swann without affording plenary review. The 
probability is therefore strong that the petition will 
command the necessary four votes for certiorari.

1 2



CONCLUSION

For the foregoing reasons it is respectfully 
submitted that the Court should grant the application for an 
injunction pending certiorari to preserve the desegregated 
status quo in the Norfolk public school system.

Respectfully submitted

HENRY L. MARSH, III 
S.W. TUCKER 
RANDALL G. JOHNSON 
HILL, TUCKER & MARSH 
509 North 3rd St. 
P.O. Box 27363 
Richmond, VA 23261 
(804) 648-9073

GEORGE B. LITTLE 
ELIZABETH TURLEY 
TIMOTHY M. KAINE 
1300 Federal Reserve 
Bank Bldg.

P.O. Box 555 
Richmond, VA 23204 
(804) 644-4100

GWENDOLYN JONES JACKSON 
P.O. Box 622 
Norfolk, VA 23501 
(804) 622-9031

jjLlUS LEVONNE CHAMBERS 
7AMES M. NABRIT, III 
i^POLEON B. WILLIAMS, JR. 
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Attorneys for Petitioners
♦Counsel of Record

13



UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 84-1815

Paul R. Riddick, et al
Appellant

versus

The School Board of the City of Norfolk, et al
Appellee

O R D E R

We have considered the motion of appellants for an 
injunction pending application for a writ of certiorari and 
are of the opinion it is without merit.

It is accordingly ADJUDGED and ORDERED that the motion 
shall be, and the same hereby is, denied.

With the concurrences of Judge Sprouse and Judge Ervin.

For the Court

*1 KB PM *8G
Hi rf M

’PEALS
- 

■ 
• s:»•'!I! T



CERTIFICATE OF SERVICE

I hereby certify that I have caused three (3) copies 
of the foregoing to be served on counsel for the parties 
depositing them in the United States Mail, first class 
postage prepaid addressed to:

Jack E. Greer, Esq.
J. Anderson Stainaker, Esq.
M. Wayne Ringer, Esq.
WILLIAMS, WORRELL, KELLY & GREER 
1700 Virginia National Bank Building 
One Commercial Place 
Norfolk, VA 23514

Michael Carvin, Esq.
William Bradford Reynolds, Esq. 
U.S. Department of Justice 
10th & Pennsylvania Avenue, N.W. 
Room 5643
Washington, D.C. 20530

Hon. Charles Fried
Solicitor General of the United States 
Department of Justice 
Washington, D.C. 20530

Lydia C. Taylor, Esq.
Philip R. Trapani, Esq. 
Daniel R. Hagemeister, Esq. 
908 City Hall Building 
Norfolk, VA 23510

All parties required to be served have been served.

This 29th day of May, 1986