Riddick v The School Board of the City of Norfolk Appellants Brief

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

NO. 84-1815

PAUL R. RIDDICK, et al.,
Appellants,

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

Appellees.

On Appeal From The United 
States District Court For the 
Eastern District of Virginia 

Norfolk Division

APPELLANTS' BRIEF

GWENDOLYN JONES JACKSON 
DELK, JAMES & JACKSON 
305 Greater Norfolk Plaza 
555 Fenchurch Street 
Norfolk, VA 23510-2883 
(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) 219-1900

Date: October 29, 1984

HENRY L. MARSH, III 
S. W. TUCKER 
RANDALL G. JOHNSON 
HILL, TUCKER & MARSH 
509 North Third Street 
P.O. Box 17363 
Richmond, VA 23261 
(804) 648-9073
ELIZABETH TURLEY 
LITTLE, PARSLEY & 
CLUVERIUS, P.C.
1300 Federal Reserve 
Bank Building 
P.O. Box 555 
Richmond, VA 23204 
(804) 644-4100

Attorneys for Appellants



TABLE OF CONTENTS

Table of Authorities ..................................
QUESTIONS PRESENTED ...................................
STATEMENT OF THE CASE .................................

A. Procedural History of the Riddick
Action ......................................

B. Background of the Riddick Action ...........

C. The Beckett Action ..........................
STATEMENT OF THE FACTS ................................

A. The Board's New Neighborhood School Plan ....
B. History of Desegregation in Norfolk ........

Educational Deficiencies ..............
C. School and Housing Segregation .............
D. The Desegregation Period ....................

SUMMARY OF ARGUMENT ...................................
ARGUMENT ..............................................

POINT I
IN DISMANTLING THE CURRENT BUSING DESEGRE­
GATION PLAN AND IMPLEMENTING A NEIGHBORHOOD 
SCHOOL ATTENDANCE PLAN, THE SCHOOL BOARD HAS 
DEFAULTED ON ITS AFFIRMATIVE CONSTITUTIONAL 
OBLIGATIONS AND HAS PERPETUATED THE EFFECTS 
OF THE PRIOR DE JURE DUAL SYSTEM OF PUBLIC 
EDUCATION IN NORFOLK ............................
A. Applicable Legal Principles ...............

1. The Nature of the Affirmative Con­
stitutional Obligation ...............

£221
iii
vii

1

1

1

2

5
5

10

10

12

17
20
22

22

22

22

- i -



Page

2. Psychological Effects .................
3. Remedying Educational Deficiencies ...»
4. Reciprocal Effects of Housing and

School Segregation ....................

POINT II
THE DISTRICT COURT ERRED IN HOLDING THAT ITS 
1975 ORDER DECLARING THE SCHOOL SYSTEM UNITARY 
MADE IRRELEVANT PLAINTIFFS' PROOF THAT THE PRO­
POSED NEIGHBORHOOD SCHOOL SYSTEM PERPETUATED 
CONTINUING EFFECTS OF THE PRIOR DUAL SYSTEM, AND 
REQUIRED PLAINTIFFS INSTEAD TO PROVE THAT THE 
BOARD'S PLAN RESULTED FROM AN INTENTION TO 
DISCRIMINATE ON THE BASIS OF RACE ............. '

25
26

28

35

POINT III
THE DISTRICT COURT ERRED IN HOLDING THAT THE 
SCHOOL DISTRICT OPERATES A UNITARY SCHOOL 
SYSTEM ..................................... 47

POINT IV
THE SCHOOL AUTHORITIES HAVE THE BURDEN OF 
PROVING THAT THE SCHOOL SYSTEM IS FREE OF THE 
DISCRIMINATORY EFFECTS OF THE DE JURE SYSTEM 
AND THAT THEIR NEIGHBORHOOD PLAN WILL NOT PER­
PETUATE THE VESTIGES OF THAT SYSTEM ...........

POINT V
THE SCHOOL BOARD'S PROPOSED PLAN IS BASED 
UPON AND MOTIVATED BY RACIAL CRITERIA, AND IS 
RACIALLY DISCRIMINATORY TOWARDS PLAINTIFFS IN 
VIOLATION OF THE RIGHTS OF BLACK CHILDREN UNDER 
THE FOURTEENTH AMENDMENT TO THE CONSTITUTION 
OF THE UNITED STATES ...........................

52

CONCLUSION

56
65

ii



TABLE OF AUTHORITIES

Allen v. McCurry, 449 O.S. 90 ( 980) .................. 38,43
Azalea Drive-in Theater, Inc. v. Hanft,

540 F.2d 713 (4th Cir. 1976) .....................
Berry v. School District of City of Benton Harbor,

515 F. Supp. 344 ( W.D. Mich. 1981) ............  31
Blonder-Tongue Labs v. University of Illinois,

Foundation, 402 O.S. 313 (1971) .................. 40,42,44

Page

Bradley v . Milliken, 620 F.2d 1143 (6th Cir.), 50cert . denied, 449 U.s. o/u ( ............

Brose av. Sears, Roebuck & Co., 455 F.2d 763 . ' 39(5th CXIT • \ *3 ! £ ) •••■•*********

Brown v . Board of Education (Brown I), 347 U.S. . 22,25,59483 
Brown v . Board of Education (Brown II), 349 U.S. 22294
Carson v. American Brands, Inc., 654 F.2d 300 43( 4th
Chambers

364
v. Hendersonville City Board of Education, 53F . 2d 1 by ( 4tn Cir . * • • • ............

Columbus Board of Education v. Penick, 443 U.S. 22,24449
Cromwell 41V. Sac, 94 U.o. 331 { lo/o/ ............

Davis v. 
721

East Baton Rouge Parish School Board, 60F.2d 1425 (3tn Cir. 1500/ ............
Dayton Board of Education v. Brinkman (Dayton II), 23,24,304 4 3 34,55,57

Deposit Guaranty National Bank v. Roper, 445 U.S. 463 26
Eisen v. 

( 1 9
Carlisle & Jacquelin, 417 U.S. 156 43

- iii -



Evans v. Buchanan, 583 F.2d 750 (3rd Cir. 1978), 
Cert, denied sub nom. Delaware State Board 
of Education v. Evans, 446 D.S. 923 (1980), 
rehearing denied, 447 U.S. 916 (1980) ......

Flinn v. FMC Corp., 582 F.2d 1169 (4th Cir. 1975), 
cert, denied 424 U.S. 967 (1976) ...........

Goss v. Board of Education of City of Knoxville, 
Tenn., 444 F.2d 632 (6th Cir. 1971), cert, 
denied, 414 U.S. 1171 (1974) ................

51

44,45

50

Green v. County School Board of New Kent County, 
391 U.S. 430 (1968) .......................

Hansberry v. Lee, 311 U.S. 32 (1940) ..........
Kaspar Wire Works, Inc. v. Leco Engineering &

Mach., Inc., 575 F.2ds 530 (5th Cir. 1978)
Keyes v. School District No. 1, Denver, Colo.,

413 U.S. 189 (1973) .......................

. 22,23,49

. 44,46,47

37,38,39,40

22,23,48,55

Lee v. Macon County Board of Education, 465 F.2d
369 (5th Cir. 1972) ...........................

Lee v. Macon County Board of Education, 616 F.2d 805 
(5th Cir. 1980) ...............................

Lemon v. Bossier Parish School Board, 444 F.2d
1400 (5th Cir. 1971) ..........................

Mapp of Chattanooga, 
1971), aff'd 477v. Board of Education of City 

329 F. Supp. 1374 (E.D. Tenn. ■ => /
F.2d 851 (6th Cir.) (per curiam), cert, denied 
414 U.S. 1022 (1973) .........................

Marshall v. Holiday Magic, Inc., 550 F.2d 173 (9th 
Cir. 1977) ...................................

Miller Brewing Co. v. Jos. Schlitz Brewing Co., 605 
F.2d 990, 996 (7th Cir. 1978) ................

50

43

38,39,40

Milliken v. Bradley (Milliken II, 443 U.S. 267 
(1977) ..................................

Mullaney Central Hanover Bank & Trust Co., 339 
U.S. 306 (1950) .........................

24,25,26,27

47

iv



Page

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

Ross v. Houston Independent School District, 699 
F.2d 218 (5th Cir. 1983) ...................

Swann v. Charlotte-Mecklenburg Board of Education 
402 U.S. 1 (1977) ..........................

59

50

3,23,24
28,49,52,55

United Airlines, Inc. v. McDonald, 432 U.S.
385 (1977) .....................................

United States v. Davis, 460 F.2d 792 (4th Cir.
1972) ..........................................

United States v. International Building Co., 345
U.S. 502 ( 1 953) ............................ ....

United States v. Jefferson County Board of Education, 
380 F.2d 385 (5th Cir.), cert, denied, 389 
U.S. 840 (1967) ................................

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

United States v. Texas Education Agency, 647 F.2d 
504 (5th Cir. 1981), cert, denied sub nom.
South Park Independent School District v.
United States, 102 S. Ct. 1002 (1982) .........

Valerio v. 
(N.D.

Vaughns v.
County

Boise Cascade Corp., 80 F.R.D. 626 
Cal. 1978) .........................
Board of Education of Prince George’ 
, 574 F. Supp. 1280 (D. Md. 1983) ..

s

Villaae of Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252 (1972) .......

Washington v. Davis, 426 U.S. 229 (1976) ..........
Wright v. Council of City of Emporia, 407 U.S.

451 (1972) ....................................
Zablocki v. Redhail, 434 U.S. 374 (1978)

46,47

41

36,40-

27

59

49

43

50

57,60
57,60,64

24
46,47

- v -



Page
References to Beckett v. School Board of the City 

of Norfolk and to Brewer v. School Board of 
Norfolk are made continually throughout the 
Brief .......................................

- vi -



QUESTIONS PRESENTED

I.

Does a consent decree which specifies that a formerly de 
jure racially segregated school system is unitary and which was 
entered without the consent of all parties and without notifica­
tion to absent class members, operate to dissolve an injunction 
against the school board or otherwise serve to eliminate the 
board's burden to justify subsequent creations of single race

schools?
Did the district court err in permitting a school board with 

a history of opposition to Brown to reestablish a system of 
racially segregated schools for more than 47% of its black 

elementary children?

III.

Whether a formerly de j ure segregated public school system 
can abandon a plan which desegregates the school system in favor 
of a neighborhood school assignment plan that resegregates the 
school system through intentional discriminatory official acts 
and through official acts perpetuating adverse effects of the 
School Board's previous operation of segregated system?

vii -



IV.

Can a school board which actively participated in interlock­
ing relationships with various governmental agencies to create 
racial segregated housing and segregated schools resegregate 
those particular schools on the basis of the segregated housing 

it created.

V.

Do community opposition to desegregation and white flight 
constitute valid justifications for establishing racially 

segregated elementary schools?

VI.

Whether the district court made the requisite findings of 
fact required by Rule 52(a) of the Federal Rules of Civil

Procedure?

- viii



STATEMENT OF THE CASE

A. Procedural History of the Riddick Action 
This action was commenced on May 5, 1983 by black pupils

enrolled in the public school system of Norfolk, Virginia. 
Plaintiffs sought to enjoin implementation of a pupil assignment 
plan adopted by the School Board on February 2, 1983, which
terminated busing of elementary pupils for desegregation and 
assigned students in elementary grades to neighborhood schools. 
Plaintiffs assailed the plan on the grounds that it violated the 
Fourteenth Amendment to the Constitution of the United States, 
and prevented the School Board from carrying out its affirmative 
duty to eradicate the effects of past discriminatory action from 

the Norfolk school system.
The District Court entered a final order on July 9, 1984. 

holding that the pupil assignment plan was not unconstitutional. 
The court denied the request of plaintiffs that injunctive relief 
be granted and that the order of the court, dated February 14,
1 9 7 5 , in Beckett v. School Board of the City of Norfolk, be set 
aside. (A. 1997) An appeal from the order was taken on August 8,

1984. (A. 1998)
B. Background of the Riddick Action
Plaintiffs' complaint (A. 8) was filed following a motion

filed by the School Board in Beckett seeking declaratory relief 
that the plan was constitutional, and following a complaint

1 See ___
F. Supp. 
rec-ited

Beckett, et al School Board 
the

of the 
history120 (E.D. Va. 1967) and 

therein at 269 F. Supp at 120, n,

Citv of Norfolk, 269 
of'the Beckett case 
1 .

1



School Board of the City of Norfolk v.filed by the Board in
Bell et al. , Civil Action No. 83-225-N, (E.D. Va.), seeking the

2same relief.
The Bell action was voluntarily dismissed. The School 

Board's motion in Beckett was withdrawn pursuant to an under­
standing that the issues raised therein would be raised in

Riddick.
C. The Beckett Action
Beckett was a class action commenced by black school 

children on May 10, 1956, see, Beckett v. School Board of the
City of Norfolk, Va., 148 F. Supp. 430 (E.D. Va.), aff'd, 246
F.2d 325 (4th Cir. 1957), cert, denied, 355 D.S. 855 (1957) 
(following intervention by additional black plaintiffs, the case 
was captioned Brewer v. School Board of the City of Norfolk)) , 
see Brewer, supra, 349 F .2d 414 (4th Cir. 1969), to enjoin the 
School Board from maintaining a dual school system and to provide 
students with a desegregated education. The United States 
intervened as a plaintiff. This Court held in Brewer, 343 F.2d
408, 41 0 ( 4th Cir. 1970), cert, denied, ____ U.S. ----, 90 S.Ct.
2247, that the evidence "clearly depicts a dual system of schools

based on race." 2

2 The School Board's motion in Beckett, supra 
Bell, supra, were filed intheDistrict
T51TT.

and its complaint in 
Court on March 23rd,

2



The district court's initial plan to redress the constitu­
tional violation was rejected by this Court on the ground that 
the plan excluded blacks from integrated schools on account of 
their race , assigned blacks to schools which were not middle 
class schools (and which by the Board's own standards were deemed 
to be inferior schools), 3 preserved the traditional racial 
characteristics of Norfolk's schools, and failed to create a 

unitary school system in Norfolk. 434 F.2d at 411.
The district Court was ordered to "enter an order approving 

a plan for a unitary school system" and to have the plan "remain
in full force and effect, regardless of appeal, unless it is

4
modified by an order of this Court." 434 F.2d at 412.

On a subsequent appeal, the judgment of the district court
was again vacated and the district court was ordered to have the
School Board draw up a plan of desegregation conforming to
guidelines laid down in Swann v. Charlotte-Mecklenburg Board_of

5
Education, 402 D.S. 1 (1971).

The plan of the School Board rejected by the Court of Appeals was 
based upon the principle, which the District Court found sup­
ported by the evidence, that "pupils do better m  school with a 
predominantly middle class milieu" and that white pupils 
Generally are middle class, and black pupils general are a 
lower socio-economic class." Brewer, supra, 434 F.2d at 411.

See Beckett, 302 F. Supp. 18, and 308 F. Supp 
opinions of the district court precipitating the 
by the Court of Appeals.

This Court, in Brewer, supra, directed the 
and the School Board to ^wnsider the use of all

, 1274, for the 
above decision

district court 
techniques for

3



On remand, the district court adopted a desegregation plan 
which paired and clustered various schools in the Norfolk school 
district, and assigned some students to schools beyond walking 
distance from their homes. The order was modified on appeal to 
provide for free transportation. Brewer,456 F.2d 943.

On February 14, 1975, the district judge, John A. 
MacKenzie, entered an order dismissing the Beckett action with 
leave to reinstate upon good cause. The order was entered 
pursuant to the consent of plaintiffs and defendants. The United 
States, the third party to the action, did not sign the consent 
order, and was not notified that the parties had submitted a 
proposed order of dismissal. The joint request for an order of 
dismissal, submitted without supporting documentation and entered 
without hearing, argument, or notification to class members, 

recited the following:

It appearing to the Court that all issues in 
this action have been disposed of, that the 
School Board of the City of Norfolk has 
satisfied its affirmative duty to desegregate, 
that racial discrimination through official 
action has been eliminated from the system, 
and that the Norfolk School System is now 
"unitary," the court doth accordingly
ORDER AND DECREE that this action is hereby 
dismissed, with leave to any party to rein­
state this action for good cause shown.

desegreaation." 444 F . 2d at 101. The_ only techniques of 
desegregation used, however, by the district court were those 
identified by the Court of Appeals in the Brewer opinion, 
namely, the "pairing or grouping of schools, noncontiguous 
attendance zones, restructuring of grade levels, and the trans­
portation of pupils." Brewer, 444 F.2d 99, 101 (1971). See, 
also Brewer, 456 F.2d 943, 945 (4th Cir. 1972).

4



Counsel for plaintiffs and defendants signed the decree with a
statement "We ask for this." The consent decree did not indicate

6
that the outstanding injunction would be dissolved or modified. 
Thereafter, Beckett remained dormant until the School Board filed 
a motion for a declaratory judgment that its neighborhood school 

attendance plan was constitutional.

STATEMENT OF THE FACTS

A. The Board's New Neighborhood School Plan
The pupil assignment plan adopted by the Board on February

2 , 1983 is similar the freedom of choice plan rejected by the
Court of Appeals in Brewer, 397 F.2d 37 (4th Cir. 1965). It has
two principal features. First, it terminates the School Board's
program requiring the busing of elementary students for degrega-

7
tion. Secondly, with few exceptions it assigns, elementary

8
students, grades K-6, to neighborhood schools. (A. 2000). The 6 7 8

6 The effect of the consent decree was to clear the court's docket, 
an administrative convenience. Nothing in the order suggested 
that the oustanding injunction would be dissolved or modified.

7 There are 36 public elementary schools in Norfolk. The elemen— 
tary grades are defined as the Kindergarten grades through the 
sixth grade. At the time of trial, there were fourteen (14) 
single attendance zone schools. Students attending these schools 
are not bused for desegregation. The remaining twenty-two (22) 
schools participate in the busing program for desegregation.

8 Additional features of the plan include a majority-minority 
transfer provision pursuant to which students in schools in which 
persons of their race constitute 70% or more of the enrollment 
can transfer to a school, and obtain free transportation thereto, 
where the percentage of students of his or her race is less than

5



resolution of the School Board adopting the plan recited that the
action was taken on the basis of an "extensive review of current
practices of student assignments ... to determine if it is
desirable and prudent to reduce the cross-town busing of younger 

9children."
The Board's plan creates ten (10) elementary schools in 

which the enrollment will be 95% or more black. (A. 2010) The 
busing plan now in effect has no elementary school with an 
enrollment in which 95% or more of the students are black. (A. 
2288-92) The school system in 1 983 had 20,681 (58%) black
elementary students and 13,327 (42%) white students. (A. 2296) 
The Board's plan distributes the students into ten schools with 
an enrollment of 97% or more black. These schools with their 
actual enrollment for 1 970 and 1 973 and their proposed 1984 
enrollment under the board's plan are as follows: 9

or equal to 50%. (A. 2005). The Board estimates that if a
maximum of 18% of the black students in schools over 70% black 
transfer to schools enrolling over 50% white students, then ten 
schools in the system will be 97% or more black. (A. 2010a)

The plan also include a multicultural program under which 
children in racially isolated black schools will, through video 
and other means, obtain inter-racial exposure to white children. 
(Ap. 2010g)

9 The resolution recited that the new assignment plan was "in the 
best interests of all Norfolk Children and holds the greatest 
promise of affording those children a quality education in a 
unitary and truly desegregated school system." (A. 2000)

6



School Percent Black Percent BlackSchool

Prop. Prop.
1970 1983 1984 1970 1983 1984

Bowling Park 57 81 100% Roberts Park 100% 77 98%
Chesterfield 93 70 99% St. Helena 100% 58 99%
Diggs Park 100 67 97% Tidewater Park 100% 69 100%
.Tarfix 65 98% Tucker 100% 47 98%
Monroe 99 63 99% Young Park 100% 57 100%

(A. 2261-4, A. 2290-•92, A. 2298-2302) .

These schools have an enrollment of 97% or more black students

with or without the majority -minority transfer program (A.

2298-2301)
The Board's plan creates, out of a white elementary pupil

population of 42*, ten schools having a 64% or greater white 
enrollment.10 The schools, are listed in the chart below:

Percent Percent
School White School White

Bay View 85% Sewells Pts 66%
Camp Allen 64% Sherwood For. 70%
Little Creek 72% Tarrallton 78%
Oceanair 71% Willoughby 64%
Ocean View 83%

(A. 2298-2302).

10 The Board claims that if 18% of the black students in schools 
enrolling over 70% black pupils take advantage of the majority 
minority transfer provision, then only five schools will have a 
white enrollment exceeding 64%. The schools are Bay View (74%), 
Little Creek (65%), Oceanair (69%), Sewells Pts (66%, and 
Sherwood For. (65%). (A. 2010a)

7



The ten schools with a black enrollment exceeding 97% have
11

40% of Norfolk's black elementary students. (A. 2010) No
significant number of white students are expected to seek 
transfers pursuant to the majority-minority transfer program. 

(A. 289-90).
The Board's plan creates twelve schools with an enrollment 

of 70% or more black students.12 (A. 2313). The twelve schools 
constitute 33% of Norfolk's elementary schools and contain 5,721 
black students, or 47.1% of the black elementary pupils in the

school district. Id.
Under the current plan, four schools, in 1983 and 1984, had 

black enrollment-of more than 70%. The four schools represent 
10% of the elementary schools and contain 1.586 students, or

13.7% of the black elementary students.
In 1 970, one year before adoption of the current plan, 32% 

of all elementary schools had a black enrollment of 70% or more. 
(A. 2313). The Board's plan would make, 33% of the elementary 
schools have 70% or more black enrollment in 1984.

11 The Board says that under its plan students assigned to all black 
schools obtain the advantages of a desegregation education 
through a multicultural program which will provide occasional 
opportunities, involving the use of video programs and other 
means, for students of different races to come into contact with 
one another. (A. 2010g)

12 These schools include schools previously identified herein as 
having more than 97% black enrollment and also include Lindenwood 
(79% minority) and Willard (74%) elementary schools, (A. 2010)

Exhibit 151 has prepared u n d e , the _5SS Board's plan would be in effect in 1984. Thus, the statistics 
Drovided in its summary for the year 1984 are statistics appl 
able to the Board's proposed plan and not the current plan.

8



The Board's plan creates approximately the same percentage 
of schools with an enrollment of 95%, or more, black students as 
existed in 1 970, the year prior to the start of desegregation. 
(A.2317). The ten schools which, under the Board's plan, have 
95% or more black enrollment are the same school that had a black
enrollment of 95% or more in 1970. (Ex. 149, A. 2310).

The ten (10) racially isolated schools which, under the 
board's plan, are 95% or more black constitute 28% of all 
elementary schools, enroll 4,738 black students, and contain 40% 
of all black elementary students. Similar statisties existed 
prior to the implementation of the current plan, when there were, 
in 1970, 16 racially isolated schools which constituted 30% of 
the elementary schools and enrolled 8,889 black students. Thus, 
under the Board's plan, schools which were segregated in 1970

will mostly be segregated in 1984-85.
When the Board adopted its neighborhood school plan, overall 

black enrollment had leveled off at 58%,13 14 15 black enrollment had 
declined continuously over a twelve-year period with 24,000 
black pupils in 1969 and 20,191 black students in 1983 (Ex. 145,
A. 2296), white enrollment had increased, from 14,427 in 1981 to 
14,611 in 1983 (Ex. 145, A. 2296), and overall enrollment of

13 There were no racially isolated black 
desegregation process from 1971 to 1984.

schools throughout the 
(Ex. 153, A. 2317)

14 (A. 2296).
15 id.

9



1 6
elementary students was projected to increase with 11,814 k-3 
students in 1982 to 13,825 k-3 students in 1988. See Ex. 146, A.

2297.
Following the institution of this action, the School Board 

delayed implementation of its neighborhood school plan from the 
1983-84 school year to 1984-85. (A map of the single-attendance 
zones proposed for 1983-84 is in Agreed Exhibit 1-3 and a map of

the zones for 1984-85 is in Agreed Exhibit 1-C.)
When the neighborhood school plan was adopted, the Board 

simultaneously rejected an alternative plan, designated^ as Plan 
II,16 17 which reduced the length of bus rides for all children who 
were bused, assigned children to schools near their homes, and 
eliminated racially isolated schools. Insufficient support at 
public hearings was the reason given by the Board for rejecting 
Plan II. (Transcript Johnson - A. 331, McLaulin - A. 451).

B. History of Desegregation in Norfolk 
Educational Deficiencies

The effects of the dual school system existing prior to 1971 
continued to exist before and after the school system was 
declared unitary. When the Norfolk school system was declared 
unitary in 1975, SRA achievement test scores for black students 
in the 2nd, 4th, and 6th grades were 19, 17 and 17 percentile 
points respectively, or several points below the 20-24 percentile

16 Id. See, Ex. 146, A. 2297.
17 Plan II is described in Appendix pp. 2376-8, 2392-3

10



points achievement test scores for black students in the period 
of segregation preceding the adoption in 1971 of the current 
desegregation plan. (Ex. 43, A. 2141-2). Even two years after 
the school system was declared unitary, achievement test scores 
for black 4th and 6th grades were 1-2 percentile points below 
their pre-desegregation level. (Ex. 43, A. 2141-2). Throughout 
this two year period, black achievement scores fluctuated between 
17 and 19 percentile points. _Id. (Ex. 43, A. 2141-2).

Similarly, before 1971, the gap between black and white 
achievement test scores for the 2nd, 4th, and 6th grades, was 21 
percentile points. (Ex. 43, A. 2141-42, p. 25.) When the 
district court, in 1975, however, found the school system 
unitary, the gap had actually increased to 22, 20, and 26 
percentile points respectively for the 2nd, 4th and 6th grades. 
As late as 1978-79, the gap in achievement test scores between 
black and white students remained at the pre-desegregation levels 
of 1968-70. Id. Achievement test scores for black elementary 
pupils reached their lowest level since 1965 in 1973-74, the year 
before the school system was declared unitary, (A. 2142) and

1 8 Black achievenment test scores only began to rise above their 
pre-desegregation level years after the 1975 order when, in 
1978-79 or 1979-80, they ranged from 24 percentile points to 32 
percentile points. This rise in test scores coincided with the 
first use bV the Board, in 1979, of a special education program, 
namely the Competency Challenge program, to raise achievement
test scores. (Ex. 43, A. 2141-2).

11



during 1974-75, when the school system was declared unitary, 
black achievement test scores reached their second or third 

lowest level since 1965. (A. 2139).
C. School and Housing Segregation
During the period of de jure racial segregation, the School 

Board took a number of steps affecting the location of housing 
sites for black and white parents of school-age children in 
Norfolk. Included among these steps were numerous letters by the 
School Board to the Norfolk Redevelopment and Housing Authority 
in which the School Board "confirm(ed) conversations concerning 
the interlocking of our school program with your double program 
of redevelopment of slum areas and construction of housing on 
vacant land sites." 19 (Ex. 218(c), p. 8; Ex. 218(d), p. 8; Ex.

19 m  a letter dated August 7, 1952, for example the School
Board notified the Norfolk Redevelopment and Housing Authority, 
with respect to the area bounded by Fenchurch St., Wood St., 
Tidewater Dr., and City Hall Avenue, that it "confirms conversa 
tions concerning the relationship between your three contemplated 
slum site housing projects and our school program. (Ex. 
last page) . The letter noted that the Authority propose to 
erect approximately 630 dwelling units for Negro occupancy ... 
(and) to displace 75 white and 479 Negro families. Id.

The Board's letter suggested that since "(t)he Henry Clay 
School at the intersection of Fenchurch and Holt Streets is 
attended by white children," and that "since your housing program 
will substantially eliminate all white families in the area, it 
will be logical to convert the Henry Clay School for the use of 
negro children", and that it should be done "coincidentally with 
the completion of your projects." Id.

After noting that the Henry Clay School had an exclusive 
white enrollment of 250 pupils, the School Board assured the 
Housing Authority that although the Authorities was placing 151 
more negro families on the site of the two projects than will be 
displaced, the net addition of 250 Negro school seatings will 
considerably alleviate present overcrowding in existing Negro 
schools in the areas." Id.

12



218(e), p. 8; A. 2432; Ex. 218(i), last page; Ex. 218(k), last

paqe; A. 2454—5; Ex 218(v), p. 1)*
The School Board's committment to the projects was made at a

time when the Housing Authority was noting, with respect to the
projects, that "(s)ince Negro projects ... have already absorbed
all vacant land suitable for low-rent Negro housing, any future

20
projects will have to be built on slum land." (Ex. 218(h), p. * 20

A similar pattern of involvement between the School Board 
and the Housing Authority occurred on other housing prefects. 
Concerning redevelopment and construction work by the Housing 
Authority in a number of areas in Norfolk, the School Board, by 
letter dated February 15, 1950, notified the Authority that its 
"program ... entails a considerable redistribution of families 
and school population" but that the School Board appreciated 
that new facilities are necessary in slum areas to make them 
suitable for re-use." (Ex. 218(c), p. 8).

The assurances were given concerning housing construction 
and work in the areas of Roberts Park, Marshall Manor, Princess 
Anne Road and Broad Creek Road west of the City Line, 
Chesterfield Heights, Campastella, and the area around 
Monticellow Ave. and Church St., Elmwood Cemetery, and Brambelton 
Avenue. (Ex. 218(c), Ex. 218(d), p. 8).

20 The Housing Authority frequently performed its responsibilities 
in accordance with racial criteria. For example, on April 3, 
1951, the Authority made the following comment:

The 12 white families eligible for public 
low-rent housing will be rehoused in this 
Authority's 400-unit project VA-6-8 ... The 
269 eligible Negro-families will be relocated 
largely on proposed project site. This will 
be accomplished ... in stages.

(Ex. 218(h), p. 11). In the same April 3, 1951 report, a
revision of one of the Authority's Development Program, the 
Authority wrote that "there are presently under construction two 
white projects." (Ex. 218(h), P. 12).

In
project
measures

a previous development program concerning the same 
the Authority noted that the School Board had taken 

to reduce enrollment in the nearly "Negro" Titus school

13



4, Ex. 21 8(i), P. 4).
A proposed school building program for Norfolk in January

1949, provided that "(a) new school for Negro children should be 
built in an area where new housing is constructed for those moved 
from the slum clearance area" and that "(t)his should be a part 
of the slum clearance program." (A. 2452-3). On December 28,
1950, the School Board, in a letter from its superintendent, 
notified the Housing Authority that as a result of the 
Authority’s redevelopment work near Tidewater Drive, the school 
system was "confronted with the need for additional facilities 
for Negro children in this neighborhood or the transfer of the 
building now used by the white children for use by Negro". (A.

2456).
During the 1950’s, 5,014 black families were displaced

through the work of the Norfolk Redevelopment and Housing 
Authority.21 * * (Transcript 1590). This represented almost 29% of 
all black households in Norfolk. (A. 759, A. 2402)

During the 1960's before Norfolk was desegregated, 1,764 
black families, or 8.5% of black families in Norfolk, were 
displaced from their homes. (A. 760, A. 2402). From 1950 to

but that the Authority's "contemplated relocation of some 1200 
families from the center of the city to the outskirts will 
further contribute to the decongestion of the Negro school system 
in the area." (Ex. 218(i) , p. 6).

21 Approximately, 2,800 housing units were ^ilSlace-their construction occurred subsequent to the initial displace
ment. (Transcript 1590-1592).

14



1982, approximately 9,416 black households were displaced in 

Norfolk (A. 2402).
Twenty-five percent (25%) of Norfolk's black school children 

reside in public housing and have had the location of their homes 
determined by site selection decisions of public bodies of 
Norfolk.22 The black population of Norfolk from 1960 to 1980 
ranged from 25.8% to 35%. (A. 46). Sixty-three percent (63%) of
the households displaced from 1 950 to 1 980, however, were black 
households.23 (A. 758, 2402) Most of the schools built from 1974 
to 1984 were built either in the redevelopment areas or on the

property of the U.S. Navy. (A. 1339)
The displacement of residences through urban redevelopment

and the concomitant location of schools in the vicinity of public
housing projects occurred, in many instances, when both state law
and Norfolk local law required streets, blocks, and districts to

24be racially segregated. (Ex. 343, 344) A. 2508).

22 Housing projects are located in areas that are predominantly
black (A. 748-750). Norfolk's housing projects house
25.3% of black familes in Norfolk. Id. Ninety-two percent of 
public and subsidized family units in Norfolk are occupied by 
blacks, (A. 747), and 40% of black renter households
live in public housing. (A. 751).

23 From 1960 to 1980 when blacks and other familes were displaced 
from their homes, the number of owner-occupied units in Norfolk 
increased by 432 units but the number of owner-occupied units in 
nearby Virginia Beach increased by 39,813 units and in Chesapeake 
the number of owner-occupied increased by 13,000 units. (Tran­
script 1541-42, Ex. 169C). 24

24 chapter 157 of Pillard’s Code Biennial 1912, adopted on March 12, 
1912, required residential districts to be designated as white 
or "colored" and further provided that "it shall be unlawful for 
any colored person, not then residing m  a <Hs£rict so define-d 
and designated as a white district ... to move into and occupy as

15



Approximately thirty (30) of Norfolk's public elementary
schools were constructed during the period when chapter 157 and
§3046 were effective. (Ex. 164F, 214).25 26 Two of the elementary
schools which have an enrollment equal to or greater than 95%
black under the Boards neighborhood school plan were built during

2 6
the time when state and local law required housing segregation. 

(Ex. 164F).
Nine of the elementary schools with a black enrollment of 

95% or more are located near public housing projects. (A. 782-4) 
Eight of the nine schools were constructed when Norfolk's school 
system was segregated.27 (Ex. 164F). Eight o£ the schools were

a residence any building or portion thereof in such white 
district (Ex. 343 ). This provision was extended by the 
Virgin ia*leg islature in the Virginia Code of 1942 Cities and 
Tbwns-General Provisions § 3046, and maintained until the Code of 
1959. (Ex. 343).

white not then residing
a district so 
move into and occupy 
thereof, in such colored 
of March 12, 1912.

m
toThe statute similarly prohibited "anydefined and designated as a colored district

as a residence any building, or portion 
district." Ex. 343, paragraph 4 of Act 

Norfolk adopted, on June 19, 1911, a ordi- 
nance implementing the discriminatory provisions of Chapter 157 
of Pollard's Code of 1912. See Code of 1920, Chapter 7.

25 Exhibit 214 is a list of schools and the dates of their original 
construction.

26 Chesterfield and Tucker were opened respectively in 1920 and
1940.I VJ •

27 The eight schools are Chesterfield ( 1920), Tucker <1942), Bo 
Park (1953), Diggs Park (1953), Young Park ( 1954), Roberts 
(1964), Tidewater Park (1964), and St. Helena (1966).

Bowline 
Par)

16



built near or adjacent to housing projects built in or prior to 
1955.28 (A. 782-4, Ex. 164F). They were built during a time when 
the United States Department of Housing and Urban Development 
found that "rigid patterns of segregated public housing exist m  
Norfolk," (A. 2519-20) and that the Norfolk Housing Authority was 
not in compliance with the Civil Rights Act of 1964. Id.

Between 1971 and 1980 when the present desegregation plan 
was in effect, the neighborhood of Norfolk became somewhat more 
integrated. The black population of Norfolk was dispersed 
throughout the city to an extent greater than it had been during 
preceding decades although not dispersed enough to bring about 

fully integrated neighborhoods. (A. 775-6).
D. The Desegregation Period
During the implementation of the court-ordered dessegrega- 

tion plan of 1971, defendants submitted several reports contain­
ing data on school enrollment figures and employment of faculty 
and administrative personnel. (Def. Ex. 38, A. 2574). The 
reports were submitted only from 1971 to 1974. These reports

28 chesterfield elementary lies adjacent to Grandy Park 
(1953); Tucker school lies adjacent to Oakleaf Park ( 
Diggs Park (1952); Bowling Park school is adjacent to 
project (1952); Diggs park school is near Diggs Park 
?1952); Young Park is adjacent to Young Park project 
Roberts Park school is near Roberts Park project 
Tidewater Park school is adjacent to Tidewater Par 
(1955); and Jacox school lies adjacent to Roberts Par 
Roberts East (1953), and Moton Park projects (1962).

proj ects 
942) and 
Bowling 
project 
(1953);
(1942); 
proj ect 
(1942), 
(Ex. 164F)

29 There were approximately nine such "reports." (Def. Ex. 38, A. 
2574). The first report, dated October 2 , 1972, contained 
statistics on pupil enrollment and professional employment. Id. 
TheSecond report contained data relating to a school lor 
students who were drop-outs. The third was a 1 972 report which,

17



were the basis for the district court's decree in 1975 that the
Norfolk school system was unitary and that the action in Beckett^
supra, should be dismissed. No information on the progress of
efforts to deal with school drop-outs or disciplinary problems

30
was presented by the Board to the court.

like the above-described 1971 report, contained enrollment and 
employment data for Norfolk's public schools. The fourth report 
was a supplement to the 1972 report and contained a summary of 
the racial distribution in the school system of principals an 
assistant principals by race.

The fifth report was a letter, dated February 23, 1973, fro™ 
defendants' counsel to the District Judge, informing the court 
that the School Board proposed to conduct renovation and con­
struction at five sites and that judicial approval of their 
actions was not required. The sixth report was a letter dated 
June 29, 1973 advising the district court of the Board s plan to 
institute a kindergarten program for the 1973-74 school year and 
that court approval was not required.

The seventh report was a letter which notified the district 
court, on January 1 1 , 1 973 that improvements and alterations
would be made to one high school and two elementary schools, and 
that court approval of the projects was not required. The eighth 
and ninth reports were 1973 and 1974 school reports providing 
statistics on enrollment and employment m  the school system.

The reports described herein were contained in Exhibit 38 
which defendants presented in evidence on June 11, 1984, three
months after trial. They were presented during the course of 
oral argument. Plaintiffs were not presented with an opportunity 
to rebut the impact of these reports through additional evidence

3 0 The only information received by the district court, prior to the 
court's order declaring the school system unitary, concerning e 
school's system's efforts in dealing with drop-outs and discipli­
nary problems was contained in a report outlining admission 
guidelines, student rights, and student responsibilities in 
"transition" school established by the Board, after August 4,
1 972, for school drop-outs. (Ex. 38). The district court 
entered an order on August 4, 1972 authorizing the School Board
to establish a transition school. Id. Plaintiffs in Bec|e|^ had 
objected to the creation of the transition school on the ground 
that it would further segregation. The district court overrule 
the objections. (Ex. 38).

18



During the 1971-1975 period, no reports were presented to 
the district court on residential segregation, remedial educa­
tional programs, counseling programs, parental involvement, 
educational background of parents (see, Ex. 194), magnet schools, 
achievement test scores, educational gains, educational programs, 
or the promotion of desegregation of neighborhoods. (A. 286)

When the district court ordered the defendants to desegre­
gate the school system in 1971, white enrollment had fallen from 
59.7% in 1966 to 51.9% while black enrollment increased, during 
the period, from 40.3% to 48.1. (Ex. 38, A. 2580). For 1971-72, 
the enrollment in elementary schools was 50% white and 50% black. 
(Ex. 38, A. 2577). By September 30, 1974, four and a half months 
before the district court's February 14, 1975 unitary decree,
white enrollment in the elementary schools had fallen to 49% and 
black enrollment had risen to 51%. (Ex. 38, A. 2618). For the 
total ten-year period, from 1966 to 1975, white enrollment in the 
Norfolk school system decreased from 59.7% to 49%, a total of 
10.7 percentage points. From 1975 to 1983, white enrollment 
decreased from 49% to 42%, a total of seven percentage points.

( E x . 1 4 5 ) .

From 1971 to 1975, the period in which the school system was 
under supervision by the district court, the number of black 
segregated elementary schools having a black enrollment 15% 
higher than the district mean only decreased from seven (7) 
schools to five (5) schools, or less than 29%. (A. 2305-11).

19



SUMMARY OF ARGUMENT

The district court below misapprended the applicable legal 
principles and criteria for determining the constitutional 
vaidity of the actions of the Norfolk School Board in implement­
ing a geographical attendance plan and terminating a cross town 
busing plan for desegregating the elementary schools.

During the past 29 years this School Board has established a 
history of resistance to the implementation of the decision in 
Brown v. Board of Educatin. More than 30 years after Brown, the 
district court approved a plan which permits the school board, 
after a short period of desegregation during which the vestiges 
of the former dual system were not eliminated, to reestablish a 
sytem which perpetuates the effects of the board's past discrimi­
nation by assigning more than 47% of its black elementary 
children to racially segregated schools and 40% to racially

isolated schools.
The district court erred in holding that a former de jure 

segregated public school system can abandon a plan which desegre­
gates the school system in favor of a geographical assignment 
plan that resegregates the school system through intentional 
discriminatory official actions and through official actions 
perpetuating the adverse effects of the School Board's previous

20



operation of its segregated system. The court erred in holding 
that a School Board which actively participated in an interlock­
ing relationship with other governmental agencies to create 
racially segregated housing and segregated schools will be 
allowed to resegregate those particular schools when the segre­

gated housing remains intact.
The district court erred in deciding that a consent decree 

which specifies that a former de ;jure racially segregated school 
system is unitary when said decree was entered without consent of 
all parties and without notification to absent class members, 
operated to dissolve an injunction against the school board and 
otherwise to eliminate the board's burden to justify the creation 
of single race schools. Because of this error, the court 
improperly shifted the burden from the perpetrators of the 
unconstitutional conduct to the victims of the conduct.

Finally, the district court erred in deciding that white 
community opposition to desegregation and white flight constitute 
a valid justification for establishing racially segregated 
schools and in refusing to make findings of fact required by Rule 

52(a) of the Federal Rules of Civil Procedure.

21



ARGUMENT

POINT I
IN DISMANTLING THE CURRENT BUSING DESEGREGA­
TION PLAN AND IMPLEMENTING A NEIGHBORHOOD 
SCHOOL ATTENDANCE PLAN, THE SCHOOL BOARD HAS 
DEFAULTED ON ITS AFFIRMATIVE CONSTITUTIONAL 
OBLIGATIONS AND HAS PERPETUATED THE EFFECTS OF 
THE PRIOR DE JURE DUAL SYSTEM OF PUBLIC 
EDUCATION IN-NOFFOLK.

A. Applicable Legal Principles
■j # The Nature of the Affirmative Constitutional 

Obligation

This Court, in Brewer v. School Board of the City— of 
Norfolk, supra, 434 F . 2d at 410, found that the Norfolk School 
Board operated a statutory dual system of public education for 
black and white school children at the time Brown v. Board_of 
Education (Brown I), 347 U.S. 483 ( 1 954 ), was decided. The
School Board therefore had an "affirmative duty 'to effectuate a 
transition to a racially nondiscriminatory school system.'" Keyes 
v. School District No. 1, Denver, Colo., 413 U.S. 189, 200 (1973) 
quoting Brown v. Board of Education (Brown II), 349 U.S. 294, 301 
(1955). Since Brown I, Norfolk's Board of Education "has been 
under a continuous constitutional obligation to disestablish its 
dual system." Columbus Board of Education v. Penick, 443 U.S. 

449, 458 (1979).
The scope of the Board's affirmative duty to disestablish 

the dual system has been set forth in general terms in numerous 
Supreme Court opinions. In spelling out the extent of this 
constitutional obligation, the Supreme Court, in Green v. County

22



School Board of New Kent County, 391 U.S. 430 (1 968), said that 
"(s)chool boards ... operating state-compelled dual systems were

clearly charged with the affirmative duty to take whatever 
steps might be necessary to convert to a unitary system in which 
racial discrimination would be eliminated root and branch. Ic3. 

391 U.S. at 437-38.
To insure that school boards have enforced their affirmative 

obligation to root out racial discrimination, the Supreme Court 
has required offending school boards to satisfy three essential 
conditions. First, the school board must eliminate from the 
public schools within its jurisdiction "all vestiges of state- 
imposed segregation." Swann, supra, 402 U.S. at 15.

Second, as part of its affirmative obligation, the Supreme 
Court has stated that a school board must not "take any action 
that would impede the process of disestablishing the dual system 
and its effects." Dayton Board of Education v. Brinkman (Dayton 
II), 443 U.S. 526, 538 ( 1 979). Third, the Court has emphasized 
the "affirmative responsibility" of a school board "to see that 
pupil assignment policies ... 'are not used and do not serve to

31 under Green, supra, and the later cases, a unitary school system 
was defined as one in which racial discrimination had been 
"eliminated root and branch." See, also, Columbus Board ,P_1 
Education v. Penick, 443 U.S 449, 458-59 (1979); ^  v- School 
pi strict" No. 1, Denver, Colo_._, supra, 413 U.S. at n. 11 (19 ),
Swann v.' Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15
(1971 )~.

23



perpetuate or re-establish the dual system.'" Dayt?j? XI' suP^a' 
443 O.S. at 538, quoting Columbus Board of Education v._Penick_,

443 U.S. at 460.
Where a school board's actions continues, or increases, the 

effects of the dual system, the Court has said that the board has 
a "heavy burden" in justifying its actions. Dayton II, 443 U.S. 
at 538. Also, see Wright v. Council of City of Emporia, 407 D.S. 
451, 467 (1972). In determining whether a school board has
carried out its constitutional obligations, the Supreme Court has 
pointedly emphasized that "the measure of the post-Brown I 
conduct of a school board under an unsatisfied duty to liquidate 
a dual system is the effectiveness, not the purpose, of the 
actions in decreasing or increasing the segregation caused by the

dual system." Dayton II, 443 U.S. at 538.
Cases such as Dayton II, Green, and Swann demonstrate that a 

school board's affirmative duty in effectuating a transition to a 
unitary school system and in "disestablishing the dual system and 
its effects," Dayton II, 443 D.S. at 538, requires it "to do more 
than abandon its prior discriminatory purpose." Id. Ultimately, 
the Court has held, the school board must take action which will 
"restore the victims of discriminatory conduct to the position 
they would have enjoyed in terms of education had ... (their 
education) been provided in a nondiscriminatory manner in a 
school system free from pervasive de j ure racial segregation." 
Milliken v. Bradley (Milliken II), 443 U.S. 267, 282 (1977).

24



To restore black schoolchildren to the condition in which 
they would have been absent racially segregated schools, the 
following three conditions, arising as a result of a <3e jure 
racially segregated schools, must, at a minimum, be redressed: 
(1 ) psychological injury to black and white schoolchildren; (2 ) 
inferior education for black children; and (3) residential 

segregation in the school district.
2. Psychological Effects
In Brown v. Board of Education (Brown I), 347 O.S. 483 

(1954), the Court made an explicit finding that racial segrega­
tion inflicts upon black children "a feeling of inferiority as to 
their status in the community that may affect their hearts and 
minds in a way unlikely ever to be undone." Brown I, supra, 347 
U.S. at 494. In the Court's subsequent decision in Milliken II, 
the Supreme Court found that "children who have been thus 
educationally and culturally set apart from the larger community 
will inevitably acquire habits of speech, conduct, and attitudes

32 In the trial below, Dr. Robert Green, an eminent educational 
psychologist who testified in Milliken v. Braaley, 433 U.S. 267 
(1977) and in numerous other school desegregation cases, testi­
fied that a de jure racial education results in inferior educa 
tion for blacks and creates adverse mental attitudes that 
detract from the ability of the child in later life as a parent 
to help his or her children in providing educational _ support such 
as assisting in homework or in transmitting educational values.
(A. 557-61).

Dr. Green also testified that implementation ̂ of the Board s 
plan would have a "negative impact" upon black children in their 
education, self-image, and in their aspirations m  later life. 
(A. 552-56, 565-66).

25



Milliken II, 433 U.S. atn 33
reflecting their cultural isolation."
287. These holdings, or findings, of the Supreme Court are 
binding upon this Court and cannot be successfully assailed by a 
School Board seeking to default upon its constitutional obliga­
tion. The Court also found in Milliken II, supra, that "pupil 
assignment alone does not automatically remedy the impact of 

previous, unlawful educational isolation." Id.
3. Remedying Educational Deficiencies
Norfolk's dual school system caused both psychological 

injury to black children and educational deficiencies. In 
Milliken II, the Supreme Court held that there are "built-m * 33
inadequacies of a segregated educational system." Id., 433 U.S. 
at 284. As a result of these inadequacies, racially segregated 
school systems often cause black pupils to have "significant 
deficiencies in communications skills-reading and speaking." Id., 
at 290. AS a result of these deficiencies, black schoolchildren

33 ThP Court in Milliken II also found that black schoolchildren^ who 
attended a de jure segregated school system were^ 
acquire speecTThablti, for example, which vary from the environ­
ment in which they must ultimately function and compete, if t ey 
are to enter and be a part of that community. _ Id. 433 U.S. at 
287 Moreover, the Court noted,"speech habits acquired in a 
segregated system do not vanish simply by moving the child to 
desegregated school." Id. 433 U.S. at 288.

26



"experience the effects of segregation until such future time as 
... remedial programs can help dissipate the continuing effects 

of past misconduct." Milliken II, 433 U.S. at 290.
The inclusion of educational components in a school desegre­

gation decree* 35 forms an integral part of a program for compens­
atory education to be provided Negro students who have long been 
disadvantaged by the inequities and discrimination inherent in 
the dual school system . " 36 Milliken II, 433 U.S. at 284. The 
remedial and counseling educational components upheld in Milliken 
II are generally "deemed necessary to restore the victims of 
discriminatory conduct" to the positions they would have had in 
the absence of discrimination. Id_. 433 U.S. at 282.

34 The existence of the above stated pernicious effects from a dual 
school system simply show that "past discriminatory student 
assignment policies can themselves manifest and breed other 
inequities built into a dual system founded on racial discrimi­
nation." Milliken II, 433 U.S. at 283.

35 The lower federal courts have been warned by the Supreme Court 
that they "need not, and cannot, close their eyes to inequali­
ties, shown by the record, which flow from a longstanding 
segregated system." Id. 433 U.S. at 283. To protect the victims 
of” racial discrimination and to insure that they are restored to 
their "rightful place," federal courts must fashion judicial 
decrees in school desegregation cases which are aptly tailored 
to remedy the consequences of the constitutional violation. 
Milliken II, 433 U.S. at 287.

36 -rhe use of educational components such as compensatory programs 
as desegregation tools was first approved by the Supreme Court in 
Milliken II, supra, and had been in existence at^least 5°UI;_years 
prior to the time when the district, m  1971, failed to include 
the educational components in its desegregation plan. See United 
states v. Jefferson County Board of Educatio^, 380 ~ T T 2 d  3«b, 
394-395 ( 5th Cir.) , cert, denied 389 U.S. 84(5 0  967) .

27



4. Reciprocal Effects of Housing and School Segregation
The third condition to be remedied in the transition from a 

dual system to a unitary system is the impact of residential 
segregation upon schools and vice versa. One basic finding in 
Swann is that school policies in building schools and filling 
them "may well promote segregated residential patterns which, 
when combined with 'neighborhood zoning,' further lock the school 
system into the mold of separation of races." Swann, 402 U.S. at

2 1.
The Supreme Court said in Swann that the location of schools

during a period of de jure racial discrimination will "influence
the patterns of residential development of a metropolitan area
and have important impact on composition of inner-city neighbor- 

37hood." Swann, 402 D.S. at 20-21.
Because of the ripple effect of school segregation upon 

housing segregation and housing segregation upon school segrega­
tion, freedom of choice plans and neighborhood school plans, as 
we]_l as other forms of racially neutral pupil assignment plans, 
are disallowed as desegregation plans, and are deemed inadequate, 
when they "fail to counteract the continuing effects of past 
school segregation resulting from discriminatory location of 

school sites." Swann, supra, 402 U.S. at 28. 37

37 The Court stated in Swann that "(p)eople gravitate towards school 
facilities, just as schools are located in response to the needs 
of people." 402 U.S. at 20.

28



Applying these principles to the instant action the black 
plaintiff school children proved at trial that the School Board 
failed to carry out its affirmative obligations, and that both 
the School Board and the District Court below failed to comply 
with the order of this Court requiring the District Court to 
"enter an order approving a plan for a unitary school system and 
to have the order "remain in full force and effect ... unless it 
is modified by an order of this Court." Brewer v. School Board 

of the City of Norfolk, supra, 434 F.2d at 410, 412.
The undisputed evidence adduced at trial shows the follow­

ing: (1 ) that appellees' neighborhood pupil assignment plan
creates ten (1 0 ) racially isolated black elementary schools 
containing approximately 40% of all black elementary public 
schoolchildren in Norfolk; (2) that the schools containing 95% or 
greater black enrollment under the Board's plan are, with few 
exceptions, the same schools which had 95% or greater black 
enrollment prior to 1971; (3 ) that nine of the elementary schools
having a black enrollment greater than or equal to 95% are 
located near public housing projects whch were (a) built and 
located in accordance with de_ jure racial criteria or (b) placed 
near elementary schools that were located and occupied in 
accordance with de jure racial criteria; (4) the percentage of 
elementary schools under the Board's plan having a black enroll­
ment of 9 5 % or more is approximately the same percentage of 
elementary schools in 1971 having a black enrollment of 95% or

29



more; and (5) that there were no racially isolated black elemen­
tary schools in Norfolk throughout the thirteen year period from

1971 to 1984. (Ex. 153, A. 2317).
These discriminatory results of the Board's action in 

terminating the busing desegregation program and adopting a 
neighborhood school attendance plan, show that the Board's 
actions violate its obligation "to see that pupil assignment 
policies ... 'are not used and do not serve to perpetuate or 
re-establish the dual system," Dayton II, supra, 443 U.S. at 538, 
and violate its obligation to avoid "any action that would impede 
the process of disestablishing the dual system and its effects."

Id.
Moreover, the Board's action impedes the dismantling of 

Norfolk's dual school system, and its effect, by inflicting 
adverse psychological and educational harm upon the 40% of black 
elementary students assigned to schools where black enrollment

exceeds 95%.
Dr. Green testified that the Board's plan will cause 

psychological harm to black children at a time when they are most 
susceptible to learning, that the plan will adversely affect 
racial attitudes, and that it will create psychological distance 
between black and white schoolchildren. (Ex. 167, A. 2389-90; A. 
551-56, A. 577-78). Dr. Robert Crain further testified that the 
board's desegregation plan will deprive 40% of Norfolk's black

30



elementary schoolchildren of the advantages of desegregation at 
the time when school desegregation has the maximum positive 
impact upon learning, namely, in grades K-3. (Rec. 1058, A. 617).

Both Dr. Green and Dr. Crain testified that the Board's plan
will perpetuate the effects of the prior dual school system by
placing in racially black isolated schools those black pupils
whose parents obtained an inferior education under the de jure
system and who, as a consequence, are less able to provide needed
parental support to help their children in educational matters
such as homework, home study, or other methods to help them
slough off the adverse psychological and educational effects
resulting from the Board’s plan. (A. 558-561, A. 624-25). Even
the Board and its educational experts concede that homework, home
intervention, and the home environment are among the most vital
factors having a positive contribution upon the child's ability 

3 8to learn. (A. 2527-28).
Plaintiffs Exhibit 194, showing the years of education 

completed for whites and blacks in Norfolk in 1960, further 
demonstrates that blacks in Norfolk have completed less years of

38 Appellees' expert Herbert Walberg introduced an exhibit which 
purports to determine, in numerical terms, the influence of 
various factors which have an impact on learning. {A. 2 5 2 1 28).
Without conceding the accuracy of Walberg s ranking/  thatPfIctSrS of the various educational factors, appellants note that factors 
relating ̂ o  individualized parental support are listed as being 
among the most important whereas being in a homogenous g r < J f  
listed as having a minor effect and the use of television, which 
would presumably include the video programs described in 
appellees' multicultural program, is described as having 
negative effect. (A. 2527-28)

31



education than whites in Norfolk at every level, or grade, of
education. Appellees' plan perpetuates this result. Evidence
presented at trial showed, on the basis of studies of the
long-range effects of desegregation upon black schoolchildren,
that black children attending desegregated schools and classes
are less likely to drop out of high school or college, and that

39
they do better upon graduation from college. (A. 626-29).

Moreover, the failure of the Board to incorporate remedial, 
or compensatory, educational and counseling components into the 
1971 desegregation plan and to hold off instituting^ special 
educational programs, such as the 1979 Competency Challenge 
program which could reduce the black-white achievement gap or 
otherwise raise black achievement test scores, will further 
aggravate the effects of the prior dual system upon black pupils 
whose parents obtained a racially de jure segregated education in 
Norfolk in the fifties and sixties, if the Board's plan is

implemented
Dr. Albert L. Ayars, past superintendent of the Norfolk 

school system for 11 years and the only recipient of both the 
Leadership for Learning Award and the Distinguished Service Award

39 Studies of the effects of desegregated schools upon black 
schoolchildren also show that such children, as adults, get 
better jobs, have less trouble with the police, have higher 
incomes, obtain more desegregated jobs, complain less about 
working with white superivisors, and are more likely to live in 
integrated housing. (A. 627-628). See Crain, R.; Hawes, J.; 
c ^ 4-+- p • PA-irhprt. J. : The Lonq Term Effects of an Educationalinitial Remits Prom A btudv ot Desegregation 
(April," 1$63), published by Center for social organization or 
Schools, John Hopkins University.

32



from the American Association of School Administrators, testified 
that Norfolk's black-white achievement gap is a legacy of past 
racial discrimination but that continued implemention of the 
current busing plan would substantially decrease the extent of 
the gap. (A. 1 66-67 ). By terminating the busing plan and
adopting a pupil assignment plan which resegregates the school 
system at 1970 levels, the Board violates its constitutional duty 
not to perpetuate the effects of Norfolk's prior dual system of 

public instruction.
Professor Yale Rabin, associate professor of urban and 

environmental planning and associate dean of school of architec­
ture at the University of Virginia, offered evidence showing that 
the Board's neighborhood school plan perpetuates the effects of 
past residential segregation caused by school and other public 
authorities.40 * He testified that the current busing plan "assured 
the maintenance of a stable racial balance in the schools and 
made the schools no threat to whites living in desegregated 
neighborhoods whereas the proposed neighborhood school plan "will 
provide an impetus to the accelerated transition of those 
neighborhoods from part white" and will cause whites living there 
to flee to all-white neighborhoods. (A. 788-89). Similar

40 professor Rabin testified that "patterns of racial segregation 
which exist in the City of Norfolk have been substantially 
influenced and reinforced by the actions of government agencies
here in the city over a long period of time." (A. 786). See also 
pp A 773-74 where professor Rabin demonstrates how school and 
housing authorities in Norfolk followed a general plan to develop 
a neighborhood-based city plan in which racial criteria were 
used, in the 60's, to designate neighborhoods.

33



testimony was given by Dr. Crain. (A. 658 61). The Board s
plan reverses the desegregation which has occurred in residential
areas, (A. 647) and tends to destabilize neighborhoods which,
under the current plan, have been stable, (A. 1950), thereby

42
perpetuating the effects of past unlawful discrimination.

Overall, the Board's neighborhood school plan would serve to 
perpetuate the effects of past discriminatory conduct by (1 ) 
resegregating schools previously segregated before 1971; (2)
forcing 40% of the black elementary students in the school system 
to suffer the same psychological and educational problems and 
deficiencies their parents suffered under Norfolk's dual system; 
(3) widening the black-white achievement gap; and (4) resegre­
gating neighborhoods and otherwise impeding the further desegre­
gation of neighborhoods in Norfolk. These actions of the Board 
add up to a violation of its "affirmative responsibility to see 
that pupil assignment policies ... are not used and do not serve 
to perpetuate or re-establish the dual school system." Dayton 

II, supra, 443 U.S. at 538.

41 Appellees offered no evidence showing that the current busing 
plan has segregated neighborhoods or would, if continued, 
segregate neighborhoods. Appellees limited their contentions in 
this lawsuit to the claim that the current busing plan would, if 
continued, resegregate schools, not neighborhoods. 42

42 Evidence presented at trial showed that "cities which have a 
school desegregation plan in place are desegregating their 
housing at three times the rate that school districts are doing 
that do not have a school busing plan in effect." (A. 658 659)

34



POINT II

THE DISTRICT COURT ERRED IN HOLDING THAT ITS 
1975 ORDER DECLARING THE SCHOOL SYSTEM UNITARY 
MADE IRRELEVANT PLAINTIFFS' PROOF THAT THE 
PROPOSED NEIGHBORHOOD SCHOOL SYSTEM PERPE­
TUATED CONTINUING EFFECTS OF THE PRIOR DUAL 
SYSTEM, AND REQUIRED PLAINTIFFS INSTEAD TO 
PROVE THAT THE BOARD' S PLAN RESULTED FROM AN 
INTENTION TO DISCRIMINATE ON THE BASIS OF 
RACE.

The District Court held that proof of continuing effects of 
past discrimination and the perpetuation of these effects by the 
Board's proposed neighborhood school plan, were irrelevant to the 
proceedings below because the effect of the 1975 court order 
declaring the school system unitary and dismissing the Beckett, 
or Brewer, action was "to shift the burden of proof from the 
defendant School Board to the plaintiffs, who must now show that 
the 1983 Proposed Plan results from an intent on the part of the 
School Board to discriminate on the basis of race." In adopting 
this standard as the measure of constitutionality validity of the 
Board's action in terminating crosstown busing and adopting a 
neighborhood school assignment plan, the Court misapprehended 
applicable legal principles determining when preclusive effect is 
to given to prior judgments and, thereby, erred as a matter of

law.
The opinion of the district court holding that Black 

children were precluded by the 1975 decree from contesting 
recitals in that decree that the school system was unitary, that

35



the effects of prior discrimination had been eliminated, and that 
the school system had satisfied its affirmative obligations, 
violates every known, established legal principle.

First, the record demonstrates that the February 1 4, 1975, 
Beckett order by the District Court was based upon the consent of 
the parties and was not a judgment rendered by that court 
pursuant to an evidentiary hearing conducted by it and was not 
based upon any evidentiary materials presented to the Court for 
its consideration by the parties. See Beckett Docket. (A. 
2574). In the federal courts, a judgment based upon consent has

no collateral estoppel effect. S e e , United--stateg— ^
International Building Co., 345 D.S. 502 (1953). The Supreme 
Court held in United States v. International Building Co., supra_,_

that:

A judgment entered with the consent of the 
parties may involve a determination of 
questions of fact and law by the court. But 
unless a showing is made that that was the

43 The District Judae stated, in an ambiguous section of the 
opinion, that he could not "agree with the present efforts of 
plaintiffs to label the February 14, 1 975 Order as a Consent 
Decree," but then went on to state that the "(t)he language of 
the Order of February 14, 1975 was fully agreed to by counsel for 
plaintiffs and defendants." T h e short of the matter, however, is 
that, as is indicated in the District Court's opinion itself, 
plaintiffs' and defendants' counsel in Beckett submitted the 
proposed order to the district court, without any supporting 
affidavits or papers or even a notice of motion or a motion, and 
then said, at the end of the proposed order "we ask for this and 
affixed their names, namely Henry L. Marsh, III and Allan G. 
Donn. Such actions clearly evidence that the 1975 order was a 
consent order, that is, a judgment entered upon the consent of 
the parties affixing their signatures to it. As a consent order, 
however, the order has no collateral estoppel effect. United 
States v. International Building Co., supra.

36



case, the judgment has no greater dignity, so 
far as collateral estoppel is concerned, than 
any judgment entered only as a compromise of 
the parties. 44 _Id. 345 U.S. at 506.

Second, as a consent judgment, the 1975 order was defective 
because it required the consent of all parties. Only two, 
however, of the three parties signed the proposed consent 
judgment. The United States did not sign and was not notified 
that the parties were submitting, or had submitted, a proposed 
judgment of compromise and dismissal. A consent judgment which 
is not based upon the consent of all parties to a suit who are 
affected by the judgment, is void or voidable since the consent 
which would give the judgment life and efficacy was not forth­
coming. A fortiori, a purported consent decree which does not 
have the consent of all affected parties is not entitled to get 

preclusive effect through collateral estoppel.
Third, the 1975 decree neither dissolved nor purported to 

dissolve the previous injunction which the District Court issued 
in 1971 in obedience to the order of this Court. Although the 
effect of the 1 975 dismissal was, as an administrative matter, 
to clear the district court's docket, it left the injunction 
outstanding. Language far more explicit than that contained in 
the 1 975 decree is necessary to dissolve an outstanding in-

j unction.

44 See also, Kaspar Wire Works, Inc, v 
Mach ine, Inc., 575 F .2d 5 3 0, 539 (5 th 
Federal Practice, fl 0.443(3), p. 3909.

Leco Engineering and 
Cir. 1 978')"; IB Moore's

37



Moreover/ nothing in the four corners of the consent decree 
suggests or implies that the injunction outstanding was, or 
should be, dissolved. If the consent decree shows anything, it 
shows that the extent of the consent did not extend to dismissal, 
or dissolution, of the injunction. And since a consent decree 
has no collateral estoppel effect, the purported findings , or 
recitals, cannot be used as the predicate for findings in a 

subsequent action.
Fourth, collateral estoppel is applicable only to final 

judgments . 45 The general rule is that "(t)o be 'final' for 
purposes of collateral estoppel the decision need only be immune, 
as a practical matter, to reversal or amendment." Miller Brewing 
Co. v. Jos. Schlitz Brewing, Co., supra, 605 F.2d at 990, 996 
(7th Cir. 1978). The 1975 judgment was subject to amendment. It 
specifically stated that the "action is hereby dismissed, with 
leave to any party to reinstate this action for good cause

45 see, Allen v. McCurry, 449 U.S. 90 , 94 ( 1 980). Also see
MHler~Brewina Co. v. Jos. Schlitz Brewing Co., 605 F.2d 990, 996 
(7th Cir. 1979); Kaspar Wire Works, Inc, v. Leco Engineering & 
Mach., Inc., supra, 575 F.2d at 537-538.

38



shown.
it was 
Miller

" Being explicitly made subject to reversal or amendment
46

not final for purposes of collateral estoppel. See 

Brewing, supra.

t

9

4 6 Federal courts have refused to accord collateral estoppel effect 
to consent decrees because such a judgment:

does not reflect the considered judgment of a 
judicial officer: it has been forged by them'
alone as an adjustment of conflicting claims 
and is not a tempered determination of fact 
and law after the annealment of an adversary 
trial. Depending on the temperament and the 
calender of the trial judge, the decree may be 
subject to serious scrutiny, superficial 
examination, or perfunctory inspection 
accompanied by a hosanna because another case 
is off the calender. Indeed, it appears to be 
the view of some members of the bar that 
judicial examination of the terms of a private 
settlement is intrusive. Kaspar Wire Works,
Inc, v. Leco Engineering &~Mach., supra, 575 
F.2d at 55b.

Moreover, collateral estoppel effect should be denied to a 
consent decree if evidence is lacking that the parties intended 
that the recitals contained in the consent decree were to be 
given final effect. See, Kaspar Wire Works, Inc., supra, 575 
F.2d at 537-543. The lack of such intent is evidenced by the 
recital in the decree that it grants "leave to any party to 
reinstate this action for good cause shown,"

In Brose v. Sears, Roebuck & Co., 455 F.2d 763 (5th Cir. 
1972), the Court of Appeals refused to give collateral estoppel 
effect to a consent decree in a patent validity case where the 
parties agreed to dismissal of the suit without prejudice and the 
trial judqe had struck out the words "without prejudice and 
substituted* instead the words "with prejudice." Id., 455 F.2d at 
767-768. See also, Kaspar Wire Works, Inc., supra, 575 F.2d at 
541-542.

39



Sixth, from a perusal of the terms of the 1975 order, it 
does not appear that the order even purported to make any 
determinations of fact, let alone any determinations of fact to 
be given preclusive effect. The 1975 order does not recite 
explicitly that findings or determinations were made but rather 
it uses prefatory language such as "It appearing to the Court 
..." and "the Court doth accordingly Order and Decree ...."

The prefatory nature of the recitals in the 1975 Order is
further reflected in the part of the order which gives each party
"leave ... to reinstate this action for good cause shown." Id_̂
Such language does not evidence findings but compromise. See^
Miller Brewing Co; v. Jos. Schlitz Brewing, Co., 605 F.2d at 996.

Seventh, to invoke collateral estoppel, it was incumbent
upon the School Board to offer evidence identifying the facts, if
any, on which the parties intended to be bound by their consent.
To prove the intent of the parties, defendants were free to call
as witnesses any person who participated in the negotiations, if
any, of the 1 975 decree. Defendants failed to follow this
procedure even though they knew that "(r)es judicata and col-

47
lateral estoppel are affirmative defenses." Blonder-Tongue 
Labs, v. University of Illinois Foundation, 402 D.S. 313, 350

(1971). 47 *

47 see, United States v. International Bldg. Co., supra, 345U.S. at
305-505T Also, see Kasper Wire Works, Inc, v. Leco Engineering 
& Mach., supra 575 F.2d 537-543.

40



Eighth, collateral estoppel can be invoked only with respect
to issues "actually litigated and determined" in the earlier
action. Cromwell v. Sac, 94 U.S. 351 , 353 ( 1 876). The unitary
status of the Norfolk school system was litigated and determined
in 1970,48 but it has not, however, been litigated and determined
since 1971 and before 1 983 whether the Norfolk school system is 

49unitary.
This Circuit has followed Supreme Court precedents holding 

that collateral estoppel is applicable only to issues of ultimate 
facts which were "actually litigated and necessarily determined 
in a prior action." Azalea Drive-In Theatre, Inc, v. Hanft, 540 
p. 2d 713, 715 (4th Cir. 1976). See also, United States v. Davis,_ 
460 F. 2d 792, 795-796 ( 4th Cir. 1972). Litigation and determi­
nation of the unitary nature of the Norfolk school system in 
1975, however, were not necessary for the Court’s 1975 dismissal 
of the Beckett action. What was necessary was the consent of the

48 This Court held then that "[t]he evidence clearly depicts a dual 
system of schools based on race," Brewer v. School Board of t^e 
citv of Norfolk, Va., 434 F.2d 408, 410 (4tn cir. J  9 7 0), and^ that.
14 (al pplication o T  the board’s principles of assignment for 
elementary ... schools fails to create a unitary school system in 
Norfolk," id., where the geographical assignment plan assigned 
40% of the students of one race to schools in 9° % ° r
of the students belonged to the same race. Id. 4.4 F.2d at 411 49

49 Defendants certainly concede that no evidence of any kind
relating to residential segregation, educational deficiencies, 
narrowing of the black-white achievement gap, or psychological 
damage to black children was presented to the D^trict Court in 
1975 in conjunction with the Court's February 14, 1975, order.

41



Determining the unitary status ofparties and that was given, 
the school system was not necessary to the 1975 order. Therefore,
collateral estoppel cannot be applied to it.

Ninth, the District Court failed, in applying collateral 
estoppel against plaintiffs, to insist upon a showing that "the 
party against whom an estoppel is asserted had a full and fair 
opportunity to litigate." Blonder-Tongue Labs., supra, 402 D.S. 
at 329. Neither the individual plaintiffs herein who were not 
parties to Beckett, nor the plaintiffs in Beckett had a full and 
fair opportunity in 1975 to litigate the unitary status of the 

Norfolk school system.
No evidence was presented in Beckett on whether the Norfolk 

school system was unitary. NO notice was provided in Becket_t of 
a hearing on the issue. No findings, other than those adverse to 
the School Board, were made in the case. No witnesses were 
summoned or examined in 1975. No supporting papers were sub­
mitted by the parties and the documents previously in the court s 
custody related to enrollment and employment. No facts on the 
issues of unitary status were examined or ascertained by the 
District Court. No legal standards for ascertaining whether the 
school system had ever become unitary, were ever developed, 
articulated, or applied by the District Court. No hearing was 
held and one party, the United States, was not notified that a 
proposed consent order of compromise and dismissal had been 
submitted. In short, the party in this action against whom an 
estoppel is being asserted did not have a "full and fair oppor­

42



tunity to litigate" in 1975 whether the school system was 
unitary, whether the effects of prior racial segregation had been 
eradicated, and what legal criteria should have been applied in 
resolving these issues. Hence, collateral estoppel cannot be 
applied against plaintiffs on these or on other issues arising 
out of the 1975 decree. See Allen v. McCurry, supra, 449 U.S. at

95.
Irrespective, however, of whether the individual or named

plaintiffs in Beckett ever had a full and fair opportunity to
litigate in Beckett the unitary status of the Norfolk school
system, the individual plaintiffs and class members in the
Riddick action did not have a full and fair opportunity to
litigate the issues. Rule 23(e) of the Federal Rule of Civil
Procedure stipulates that a "class action shall not be dismissed
or compromised without the approval of the court, and notice of
the proposed dismissal or compromise shall be given to all

50members of the class."

50 in Carson v. American Brands, Inc., 654 F.2d 300, 301 (4th Cir. 
1961), this Court held that "federal district courts must give 
notice to class members when considering a proposed consent 
decree, or a dismissal pursuant to a consent decree, in a class 
action. Several courts have held that "[d]ue process requires 
that notice in a class action 'present a fair recital of the 
subject matter and proposed terms and ... an opportunity to be 
heard to all class members.'" Valerio v. Boise Cascade Corp., 80 
F.R. 626, 636 (N.D. Cal. 197871 See also, Marshall v. Holiaay 
Maqic, Inc., 550 F.2d 1173, 1177 (9th Cir. 1977); Eisen v. 
Carlisle ITHcquelin, 417 U.S. 156 (1974). Lack o f not ice to_ the 
class deprives the'"1975 judgment of any preclusive effect under 
the principles of collateral estoppel.

43



Concededly, no such notice, or indeed notice of any kind was 
g^er given to plaintiffs herein or to absent class members.

The fiction of class representation cannot be used to 
(jggtroy the due proces right of persons not represented in an 
earlier proceeding, see Hansberry v . Lee, 311 tJ.S. 32, 40 (1 94), 
Blonder-Tongue Labs., Inc, v. University of Illinois Foundation, 
supra, 402 D.S. at 329, or persons whose interests are distinct 
from those represented in an earlier action. Hansberry v. Lee, 

supra.
Tenth, collateral estoppel effect cannot be given to the 

1 975 judgment because of the failure of the parties to request 
the District Court to evaluate the proposed dismissal in accor­
dance with standards set forth by the Fourth Circuit in Flinn v. 
FMC Corp. , 582 F.2d 1169 (4th Cir. 1975), cert, denied, 424 O.S. 
967 (1976), for approving proposed compromises and settlements of 
class action cases. These standards are fully applicable to the 

1975 decree.
This court, in FI inn, articulated these criteria in the 

following manner:

In reviewing the record and evaluating 
the strength of the case, the trial court 
should consider the extent of discovery that 
has taken place, the stage of the proceedings, 
the want of collusion in the settlement, and 
the experience of counsel who may have 
represented the plaintiffs in the negotiation. 
The fact that all discovery has been completed 
and the cause is ready for trial is important, 
since it ordinarily assures sufficient 
development of the facts to permit_ a reason­
able judgment on the possible merits of the 
case. Collusion and bad faith on the part of

44



those purporting to represent the class in the 
negotiations will* of course, impugn the 
settlement. While the opinion and recommenda­
tion of experienced counsel is not to be 
blindly followed by the trial court, such 
opinion should be given weight in evaluating 
the proposed settlement. The attitude of the 
members of the class, as expressed directly or 
by failure to object, after notice, to the 
settlement, is a proper consideration for the 
trial court, though "a settlement is not 
unfair or unreasonable simply because a large 
number of class members oppose it."

Id., 528 F.2d at 1173 (footnotes omitted).
When the Court rendered the February 14, 1975 decree, no

discovery had been taken and no evidence had been presented on 
the issue of whether the school system was unitary or on the 
issue of the "fairness" of a determination by the Court that the 
Norfolk school system was unitary. This Court also said in FI inn 
that the consent judgment must be one based upon a

record before ... [the court] adequate to 
reach "an intelligent and objective opinion of 
the probabilities of ultimate success should 
the claim be litigated" and form an educated 
estimate of the complexity, expense and likely 
duration of such litigation, ... and all other 
factors relevant to a full and fair assessment 
of the wisdom of the proposed compromise. 
FI inn v. FMC Corp., 528 F.2d at 1173.

Since, no record was compiled for the 1975 judgment 
District Court could not evaluate the "fairness of the 
tlement." FI inn supra, 528 F.2d at 1173.

the
set-

45



In a series of decisions, the Supreme Court has recognized 
the right of absent class members to appeal from judgments 
rendered in favor of named plaintiffs. See, Deposit Guaranty 
National Bank v. Roper, 445 U.S. 326, 330, 332, n.5 ( 1980); 
Zablocki v. Redhail, 434 D.S. 374 , 380, n. 6 ( 1 978); United 
Airlines. Inc, v. McDonald, 432 U.S. 385, 394-395, n.15 (1977).

In the instant action, neither the parties nor the District 
Court in Beckett took any steps to notify absent class members, 
as required by Rule 23(e), of the dismissal of the action. The 
failure to notify the members of the class in the_ Beckett 
litigation of the disposition of their lawsuit made it impossible 
for those class members either to intervene in the action or to

appeal the 1975 judgment in Beckett.
The substantive rights of absent class members cannot be 

abridged merely because the trial court or the parties fail to 
provide sufficient notice to the class to enable them to exercise 
their right to intervene. Members of the class can preserve 
their right by challenging collaterally the judgment in a 
subsequent action.

In Zablocki v. Redhail, supra, the Supreme Court said that 
"absent class members ... (can) assert their due process rights 
for themselves, through collateral attack or otherwise. See 
Hansberrv v. Lee, 311 D.S. 32 ...." Zablocki v. Redhail, 434

46



U.S. at 380 n.6. Thus, in the present case, neither res judicata 
nor collateral estoppel can be applied against the plaintiffs 
herein as a result of the 1975 judgment rendered in BeckfafU.

POINT III
THE DISTRICT CODRT ERRED IN HOLDING THAT THE 
SCHOOL DISTRICT OPERATES A UNITARY SCHOOL 
SYSTEM

The District Court gave the following three reason for not 
requiring the School Board to enforce its affirmative consti­
tutional obligation to remedy the effects of past racial dis­
crimination in the school system: (1) "(n)o attempt to revive or
reinstate the Beckett litigation was made during the nine years 

from the time the Order was entered in 1975 until the present 
contest;" (2 ) "the plan in effect had been unaltered in any 
appreciable respect since July, 1971; and (3) "the Norfolk school 
system is unitary: the Norfolk School Board is an integrated
body, the ... administration is racially balanced, the racial

51 If, as defendants claim, plaintiffs were members of the class 
represented in Beckett, then they cannot be bound by the 1975 
judgment entered therein since they were given no notice of the 
contemplated dismissal. See, Zablocki v. Redhai^, supra; United 
Airlines, Inc. v. McDonald, supraI Also, see Muiianey v. Central 
Hanover Bank Trust c " 3 3 306 ( 1950). If, on tne other 
hand, plaintiffs we'r“ not represented by the class in Beckett,
then, as a ^ ^ ^ b S c k f v ^ R e l h l i l , 434
l ' "asf^'.iTr  ?eOdariti=app«fee3 cannot have ih both ways.

47



composition of the faculty and staff is mixed, and the over­
whelming majority of the schoolchildren ... attend schools whose

student bodies are racially mixed.
The first stated reason is inapplicable since the Supreme

Court said in Keyes v. School District No. 1, Denver, Colo., 

supra, that:

"(w)e reject any suggestion that remoteness in 
time has any relevance to the issue of intent.
If the actions of school authorities were to 
any degree motivated by segregative intent and 
the segregation resulting from those actions 
continues to exist, the fact of remoteness in 
time certainly does not make those actions any 
less 'intentional.'" 413 D.S. at 210-11.

The second and third justifications given by the district 
court are equally unavailing. First, the District Court over­

looked the principle in Keyes, supra, that:

(T ) o say that a system has a "history of 
segregation" is merely to say that a pattern 
of intentional segregation has been esta­
blished in the past. Thus, be it a statutory 
dual system or an allegedly unitary system 
where a portion of the system is found to be 
intentionally segregated, the existence o f  
subsequent or other segregated schooling 
within the same system justifies a rule 
imposing on the school authorities the burden 
of provina that this segregated schooling is 
not also the result of intentionally segrega­
tive acts." 413 U.S. at 210.

Throughout the struggle for school desegregation, the 
Supreme Court has consistently made clear that "the burden on a 
school board today is to come forward with a plan that promises

48



realistically to work ... now ... until it is clear that state- 
imposed segregation has been completely removed." Swann, sup̂ a.*. 
402 D.S. at 13, quoting Green v. County School Board, supra, 391 
U.S. 430, 439 (1968). The District Court, however, ignored its 
obligation to insure that "state-imposed segregation has been 
completely removed" and held instead that the School Board s 
implementation of the court ordered pupil assignment desegrega­
tion plan of 1971 converted the school system from a dual system 
to one that was unitary and therefore free of lingering vestiges 
from the past de jure system. This manner of applying the Swann 
mandate allows a school district to bypass its obligation, stated 
in Green, supra, to eliminate discrimination "root and branch."

Federal courts have held, as a matter of law, that a school
system is not automatically desegregated when a constitutionally

52 . 3accepted plan is adopted and implemented." United States v. 
Texas Education Agency, 647 F.2d 504, 508 ( 5th Cir. 1981), cert_. 
denied sub nom. South Park Independent School District v. United 
States, 102 S.Ct. 1 002 ( 1 982). See, e.g., Lemon v. Bossier
Parish School Board, 444 F.2d 1400 (5th Cir. 1971).

52 Nor is the mere passage of years since a court-ordered desegre­
gation plan was instituted a bar to subsequent challenges that a 
school system is not unitary. In United States v. Texas 
Education Agency, supra, supplemental relief was sought six 
years after the court-ordered desegregation plan was ̂ implemented. 
The Fifth Circuit nonetheless granted relief to plaintiffs since 
the school authorities had "failed to eliminate the continuing 
systemwide effects of the prior discriminatory school system." 
647 F.2d at 509.

49



Similarly, in Ross v. Houston Independent School District, 
699 F . 2d 218 (5th Cir. 1 983), the Fifth Circuit held that a 
school system is unitary when the remnants of discrimination are 
eradicated, and not when a desegregation plan has been adopted 
and tried. 699 F.2d at 225. Moreover, in Goss v. Board of 
Education of City of Knoxville, Tenn., 444 F.2d 632 (6th Cir. 
1971), cert, denied, 414 D.S. 1171 (1974), the Court of Appeals 
allowed black plaintiff schoolchildren to seek additional relief 
to eliminate vestiges of prior discrimination in the school 
system despite implementation of a prior desegregation plan and 
despite an earlier holding by the Court of Appeals itself that 
the school district was a unitary system." Goss, supra, 444 F.2d 
at 634. See, also Mapp v. Board of Education of City of 
Chattanooga, 329 F. Supp. 1374 (E.D. Tenn. 1971), aff’d, 477 F.2d 
851 (6th Cir.) (per curiam), cert, denied, 414 O.S. 1022 (1973); 
Vaughns v. Board of Education of Prince George's County, 574 F. 
Supp. 1 280, 1 339 (D. Md. 1 983 ). Furthermore, the courts of
appeals have gone on to hold that "(n)ot until all vestiges of 
the dual system are eliminated can demographic changes constitute 
legal cause for racial imbalance." Lee v . Macon County Board of 
Education, 616 F.2d 805, 810 (5th Cir. 1980). See, also Bradley 
v. Milliken, 620 F.2d 1143, 1149-50 (6th Cir.), cert, denied, 449

U.S. 870) 1980).
The only evidence offered by appellees, or cited by the 

court below, to satisfy the Board's burden of proving that the 
school district was unitary, was the 1975 decree and the racial

50



statistics of pupil enrollment and employment statistics 
enrollment. For the reasons previously stated, the 1975 decree 
is not conclusive of whether the school system is unitary, and 
the fact that pupils, or employees, are racially mixed signifies 
only that the Board implemented a pupil assignment-faculty 
employment desegregation plan and not that vestiges of prior

discrimination have been eliminated.
Although the burden is not upon plaint iffs-appellants to 

show that the school system is not unitary, plaintiffs nonethe­
less did show, on the basis of the undisputed evidence, that the
effects of past segregation are still present in the school 

54system.
Since no additional facts were presented to the District 

Court to show that the school district was unitary and since the 
district court concedes that no hearings were conducted on the

53

53 Apellees offered no evidence to show lack of bias in their 
disciplinary program even though a number of courts have held 
that an unbiased disciplinary program is "absolutely critical to
the success of __ any desegregation plan" and have ordered
further relief without proving intent. See, e.g., Berry v. 
School District of Citv of Benton Harbor, 515 F. Supp. 344, 379 
fW.D. Mich. 1^81); Evans v. Buchanan, 5fc?2 F.2d 750, 772-73 (3rd 
Cir 1 978), certl denied sub nom. Delaware State Board of 
Education v. Evans, 446 o7s.” 523 (1980), rehearing denied, 447 

T iTu.s.
Evans, 

(1980).
54 Plaintiffs also showed that (1) the Board’s neighborhood plan 

would resegregate the elementary schools at 1970 levels, (2) 
reverse the process of desegregation of residential areas, (3) 
impede the closing of the black-white achievement gap, (4) 
perpetuate the effects of past segregation upon black pupils 
whose parents are the products of an inferior education obtained 
as a result of Norfolk's dual system, and (5) cause psycho­
logical damage to black schoolchildren.

51



issue of the school district's status as a unitary school system, 
the finding, or conclusion, of the District Court on this point 
should be rejected. Since appellees failed to carry their burden 
to show that the school system was unitary, the judgment below 

should be reversed and set aside.

POINT IV
THE SCHOOL AUTHORITIES HAVE THE BURDEN OP 
PROVING THAT THE SCHOOL SYSTEM IS FREE OP THE 
DISCRIMINATORY EFFECTS OF THE DE JURE SYSTEM 
AND THAT THEIR NEIGHBORHOOD PLAN WILL NOT 
PERPETUATE THE VESTIGES OF THAT SYSTEM

The burden placed upon a school board with a history of a 
dual school system was set forth by the Supreme Court in Swann, 

supra, in the following terms:

"Where the school authority's proposed plan 
for conversion from a dual to a unitary system 
contemplates the continued existence of some 
schools that are all or predominately of one 
race, they have the burden of showing that 
such school assignments are genuinely non- 
discriminatory." Swann, supra, 402 U.S. at 
26.

In applying this burden to the facts of the Norfolk school 
desegregation suit, this Court held, in Brewer, supra, sub nom. , 
Adams v. School District No. 5, supra, that "Wherever schools are 
'all or predominantly of one race in a district of mixed popula­
tion (there will be required) close scrutiny to determine that 
school assignments are not part of state-enforced segregation. 
Id., 444 F.2d at 101. Because appellees' proposed assignment



plan creates ten racially isolated black schools for the first 
time since 1971, they have the burden of proving that their plan 

is constitutional.
In addition, this Court said in Brewer v. School Board of 

the City of Norfolk, supra, 397 F.2d 37 ( 1968), that a "board's 
rejection of the alternatives ... that would lead to less 
segregation ... raised an inference of discrimination that 
required the board to justify its conduct by clear and convincing 
evidence." Id. 397 F.2d at 41, citing Chambers v. Hendersonville 
City Board of Education, 364 F.2d 189, 192 (4th Cir. 1966).

Here, the evidence presented at trial shows that defendants 
rejected two alternative desegregation plans, both of which 
produced less segregation than the Board's neighborhood school 
plan. One of the alternative plans is the busing plan currently 
in force. The second alternative plan is the plan described as 
Pupil Assignment plan Model II in Dr. Robert Green's Report. 
(Exhibit 167, A.2367). The Board rejected the latter plan 
because not enough people spoke in support of it at public 
hearings. (A. 331, 451). The Board's rejection of two alter­
native plans producing less segregation than the plan adopted by 
the Board, shifts the burden of proof to the Board by "rais(mg) 
an inference of discrimination that require(s) the board to

53



55 Id. 397justify its conduct by clear and convincing evidence.
F. 2d at 41.

Defendants-appellees also bear the burden of proof in this 
action because the Board's plan's resegregated the school system 
as a result of residential, or neighborhood, segregation fostered 
by actions of the Board during the period of Norfolk's racial 
dual system of public instruction. This Court spoke to that 
issue in Brewer, supra, where it said that:

The school board cannot build its exclusionary 
attendance areas upon private racial discrimi­
nation. Assignment of pupils to neighborhood 
schools is a sound concept, but it cannot be 
approved if residence in a neighborhood is 
denied to Negro pupils solely on the ground of 
race. Brewer, supra, 397 F.2d at 41-42.

Here, the undisputed evidence shows that the elementary schools 
which will be segregated black schools under the Board's neigh­
borhood school plan are schools whose exclusionary attendance 
areas will be built upon public racial discrimination comitted by 
the Board during the history of its operation of the dual system
and by public housing authorities of Norfolk before and after the

56 ^  „existence of the de j ure school system. Moreover, this Court

55 This Court stated in Brewer, supra, 397 F.2d 37, 41, that the 
burden to come forward with suggestions ... was not upon the 
plaintiffs" since n[i]t was apparent that the inevitabjLresult
o f the school board's plan would be the segregation of
pupils___ " Id. 397 F.2d at 41.

56 see Ex. 345, a letter dated August 26, 1976, one year after the 
,97 5 order in^ / sY s£?“ thfe/ioTa\taarL!Si;?ra?^t!5r rSi?
tousiil and- Opportunity^ fhe O.S. Department of Bourn
and Urban Development,

nty or tine u.o. uepai uucuv- .written to the executive director o

54



has already directed the District Court to "determine whether the 
racial pattern of the districts results from racial discrimina­
tion with regard to housing." Brewer, 397 F.2d 37, 41 (4th Cir.

1968) .
To satisfy fully its affirmative obligation, the School 

Board must show that educational deficiencies arising from the 
dual system, including those inflicted upon black school children 
in the fifties, sixties and seventies who are parents today of 
black schoolchildren being placed in racially isolated schools, 
have been eliminated and that the proposed neighborhood school

Norfolk Redevelopment and Housing Authority in which HUD found 
that the Norfolk Housing Authority was in non-compliance with 
Title VT (of the Civil Rights Act of 1964) and ... implementing 
Regulation" and that "rigid patterns of segregated public housing
exist in Norfolk." (Ex. 345, p. 1, App. ____). See, also
270, 275B, 312, 330.

Moreover, on August 20, 1981, HUD, in a letter to the City 
Manager of Norfolk, said that the "City of Norfolk is administer 
inq the following activities in apparent non-compliance with the 
aforementioned civil rights laws and regulations: Citizens
Participation; Minority Business Participation; Rehabilitation 
Assistance, Relocation Program and, Employment Practices. (Ex. 
330, App. 2476). Among the specifics findings of non-compliance 
was a finding that "non-white relocatees were s h e e t e d  to 
disparate treatment in the administration of relocation activi 
ties, contrary to the provisions of ... the Civil Rights Act 
Section 109(a) of the Housing and Community Development Act. _ld. 
p. 5 of Ex. 330.

57 Placing this burden upon the School Board simply reflects the 
Supreme Court's holding in Swann that school boards with a 
history of a dual system have an affirmative burden to insure 
that their pupil assignment plans do not "serve to perpetuate or 
re-establish the dual system." Swann, supra, 402 U.S. at 21. s 
the Court said in Swann "the burden upon the school authorities 
will be to satisfy the court that their racial composition is not 
the result of present or past discriminatory action on their 
part." Swann, 402 U.S. at 26.

55



plan will not perpetuate the effects of past discrimination. In 
short, defendants-appellees have the burden of proving that sins 
they committed upon black parents are not being visited upon 
their children and that they will not miseducate another genera­

tion of blacks. This, they have not done.

POINT V
THE SCHOOL BOARD'S PROPOSED PLAN IS BASED UPON 
AND MOTIVATED BY RACIAL CRITERIA, AND IS 
RACIALLY DISCRIMINATORY TOWARDS PLAINTIFFS IN 
VIOLATION OF THE RIGHTS OF BLACK CHILDREN 
UNDER THE FOURTEENTH AMENDMENT TO THE CONSTI- _
TUTION OF THE UNITED STATES

The district court rejected plaintiffs' proof that the 
Board's proposed neighborhood school plan is intentionally 
discriminatory on the grounds that it "represents a reasonable, 
voluntary attempt on the part of the School Board to ensure that 
the school system retains the greatest degree of integration over 
the long term" in the face of "white flight" and that it is a 
"reasonable solution developed by the School Board to the 
difficult problem of declining parental involvement. In
reaching this conclusion, however, the District Court failed to 
apply applicable legal criteria and made findings of facts that 
were clearly erroneous. Therefore, its judgment should be set 
aside. More precisely, the District Court failed to apply the 
Keyes and Dayton II presumption that the existence of inten­
tionally caused segregated schools in 1954 "furnishe(s) prima 
facie proof" that the Eoard's adoption and use of a plan which

56



causes further segregation, is evidence of intentional dis­
crimination. See Dayton II, supra, 443 U.S. at 537; Keyes, supra^ 

413 U.S. at 211.
The District Court further erred in not holding that The 

Board's plan was intentionally discriminatory because it applied 
racial criteria designed to favor the purported interests of 
white persons at the expense of Norfolk's black and school- 
children. Also the District Court was clearly erroneous m  not 
finding that plaintiffs satisfied the criteria set forth for 
proving purposeful discrimination in Washington v. Davis, 426 
U.S. 229 (1976) and Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1972).
Moreover, the District Court erred in not concluding that 

white flight was not a proper basis for instituting a school plan 
which segregates almost half of Norfolk's black elementary school 
children, and was clearly erroneous in not finding that the 
Board's defenses of white flight and lack of parental involvement 
were pretexts for discrimination. Finally, the lower court erred 
in not concluding that the Board could have avoided the 
discriminatory impact of its geographical plan by adopting the 
Board's proposed Plan II or Model II, as an adequate alternative 
to the neighborhood plan ultimately adopted by the Board. (See

Ex. 167, A. 2367).

o f

A. Use of Racial Criteria
Defendants justified their plan primarily upon 
a public opinion survey, taken by David Armor,

the results 
in which 75%

57



of the persons polled were white parents who were asked their 
reactions as parents to "three possible racial compositions: a 
fifty-fifty school, a school where students were of the opposite 
race, and a school where all of the students were of the parents’ 
same race." (Ex. 43, Armor Dec. 1982 report, A. 2147). The 

survey concluded that:

We find that virtually none of the groups 
object to sending their child to a school that 
is half white and half black. Interestingly, 
while black parents do not object to being a 
minority, from 40 to 56 percent of white 
parents do object to a school where most of 
the students are black. Ex. 43, A. 2149.

The survey found that white parents do not object to sending 
their children to a public school in Norfolk "provided that the 
proportion of black does not exceed 50 percent." Id. A. 2149.

The survey asked white parents about their attitudes towards 
sending their children to schools of various racial compositions. 
The questions asked, however, were not about white parent's 
attitude towards sending their child to a neighborhood school, 
(See Ex. 43, Table 4, A. 2151), but rather, the questions asked 
were about the parents' attitudes towards sending their children 
to particular kinds of neighborhood schools such as a 
"(n)eighborhood school, where most students of own race or a 
neighborhood school under busing. (Ex. 43, Table 4, A. 2151).

The survey also asked parents if they would return to the 
Norfolk public school system if busing were ended. On the basis 
of the survey questions and answers, defendants concluded that if

58



they created a pupil assignment plan which had a substantial
number of predominantly white schools, then they would draw white

58
parents, not black parents, to the Norfolk public school system.

The Board's neighborhood plan was the result of (1) answers 
to survey questions, from a population 75% white, concerned with 
racial attitudes towards schools of varying racial composition, 
(2) choices which would be made by white parents concerning the 
circumstances in which they would return to Norfolk's public 
schools, and (3) "white flight," as measured primarily by the 
alleged number of white persons leaving Norfolk between 1970-74 
because of hostility to the adoption of the court-ordered school 
desegregation plan in 1971.59 (See, e.g., pages 2, 3, 14, 16, 
31-38, 40-42 of Sx. 43 at A. 2110). The use, in this manner, of 
racial criteria which adversely affects blacks violates the 
Fourteenth Amendment. See, Brown v. Board of Education, 347 D.S. 
483 (1954); Regents of the University of California v. Bakke, 438
D.S. 265 (1978). The use of white flight cannot be employed as 
a cover to oppose desegregation merely because white citizens 
oppose recognizing the rights of blacks. See, United States v^

58 The resolution of the Board adopting the neighborhood plan 
recites that the Board "received advice and assistance from 
several consultants with regard to the assignment of elementary 
children." (Ex. 1, A. 2000). Reaction of whites, as decribed in 
Armor's report, was the principal basis for the plan. A. 905, 
2089.

59 Although the Armor report notes that "Norfolk white public school 
parents still oppose (busing)," it fails to include in the text 
of the report the finding in table 4 that 105 members of the 
sample of public school parents (white and black) support busing 
whereas only 81 opposed it. Ex. 43 at App. 2110).

59



Scotland Neck City School Board, 407 U.S. 484, 491 (1 972); Lee v ._
Macon County Board of Education, 465 F .2d 369 (5th Cir. 1972); 
Davis v. East Baton Rouge Parish School Board, 721 F.2d 1425,

1438 (5th Cir. 1983).
B. Plaintiffs Satisfied Arlington Heights Criteria 
Appellants also satisfied in other ways the Arlington 

Heights criteria for proving purposeful discrimination. Appel­
lants showed on the basis of the evidence at trial a pattern that

60is "unexplainable on grounds other than race," Arlington
Heights supra, 429 D.S. at 266.

These criteria were satisfied as follows. First, the 
evidence showed that the mayor of Norfolk, who was the former 
school board chairman and who at that time retained the law firm 
of the present chairman of the School Board, stated, in 1971, 
that the 1971 desegregation plan was totally unacceptable to the
School Board. (A. 229).

Second, the School Board departed from normal procedures by 
calling the first Board meeting to discuss termination of the 
busing plan in apparent violation of the Virginia Freedom of

60 More particularly, appellants proved discriminatory motivation by 
showing (1) "(t)he specific sequence of events leading up to the 
challenged action;" (2) " (d )epartures from normal procedural
sequence" and substantive departures from " ^ t o r s  unusually 
considered important by the decision-maker; (3) pretextual 
reasons, or tenuous purposes, for the Board s action; (4) 
available alternatives, see Arlington Heights, supra 429 U.S. at 
267; and (5) "the fact .TTthat the law Dears more heavily on one 
race than another." Washington v. Davis, supra, 426 U.S. at 242.

60



Information Act and for stated reasons other than to terminate 
busing, (A. 910), and while the principal proponent of the busing

plan was away on vacation. (A. 256—257).
Third, the School Board failed to consider factors it 

normally considered relevant by refusing to investigate the 
psychological impact of the neighborhood plan upon black children 
despite its earlier recommendation that the neighborhood school 
program should not be implemented, without a study of the impact 
of the action upon the "socio-psychological processes" of black 
students. (Ex. 42, at p. 16, A. 2089, 2106). See Ex. 43 And A.

1106.
The Board departed from normal procedure by refusing to 

request or permit its distinguished superintendent, Dr. Ayars, to 
comment on or evaluate its plan terminating the busing program 
and adopting a neighborhood school assignment plan instead. Ex. 
23, A. 2036). (Chairman Johnson's testimony, App. 322-323, 
3 26).^^ Dr. Ayars, in a memorandum dated June 1 , 1982 made the

following statement:

61 The only evidence before the Board when the proposed plan was 
adopted was that the plan would have a negative effect on the 
socio-psychologocal processes of black children. (Ex. 167 at A. 
2367, 2385-92, 2394. See also testimony of Green at A. 
574/577-76, 581, 589-98).

62 Instead, the Board requested an evaluation of Armor's white
flight methodology from a person who concedly lacked the train- 
ing, background and knowledge to provide it, (Armor, App. 924, 
1108-1110), and who had not, in any case, been provided with the 
necessary papers or 
App. 1109).

had not, in any case, &een proviaea tArmor data for evaluating Armor s report. (Armor,

61



I have decided that I should, as chief execu­
tive officer of the school system, make clear 
my opinions in regard to the issues studied by 
the ad hoc committee, relating to student 
transportation and elementary school attendance 
areas in Norfolk. I recognize that the Board, 
in this instance, has chosen to depart from our 
usual practice, in policy matters, of asking 
the administration to conduct the necessary 
investigation and provide the Board with facts 
and recommendations on which to base decisions. 
Thus, I realize also that the recommendations 
to the Board are expected to come from the ad 
hoc committee and not from me. However, having 
devoted the past ten years of my 42-year career 
to the cause of building the most productive 
school system possible in Norfolk, I hold an 
encompassing interest in implementing policies 
and practices that will contribute toward that 
end. (Ex.2 3 , A . 2036).

Thus, the Board denied itself the means for evaluating the basis
of its neighborhood school plan. (Johnson, A. 951). Moreover,
the Board specifically rejected the offer of a group of 40
professors at Old Dominion University, and other universities, to
evaluate the Armor report and its methodology at a cost of $1.00,

6 3
(A. 481, 483-485), and said it was unnecessary. (A. 531).

64
These actions showed disregard of black interests.

Several factors showed that appellees' use of white flight 
to create neighborhood schools, served as a pretext in order to 
create all black schools and schools that are predominantly

63 school Board chairman Johnson offered instead 
daughter of one of the white professors to attend a 
than an all black school in her neighborhood.

to help the 
school other 

(A. 531-32).

64 Board chairman Johnson also testified that the Board never made 
any study of what could be done to promote desegregation of
neighborhoods. (A. 286).

62



white. First, the Board's justification for neighborhood schools 
is that they will draw, as allegedly shown by Armor's ideas on 
white flight, white parents back into the school system. Board 
chairman Johnson, however, testified that the Board had "not 
considered what we will do" if the neighborhood school plan fails 
to achieve its objectives. (A. 340). Second, Johnson testified 
that if the plan fails, "[t]he test (for keeping the plan) will 
be . . . whether black youngsters are achieving an excellent
education in schools in this city, regardless of the composition 
of the schools. That will be the test." (A. 340). Also, see A. 
341. Johnson also said that the only means that the Board will 
use to measure whether its neighborhood school program works is 
whether black children are receiving minimum "passing" scores. 
(A. 341-342). These comments show that the Board's plan has
nothing to do with drawing whites back into the school system.

Appellees' claim that the neighborhood school plan was 
adopted to further parental involvement was also shown at trial 
to be a pretext. In support of this claim, appellees placed 
their primary reliance upon a decline in the membership in the 
Parent Teachers Association, a decline which occurred in the 
seventies and eighties while women were entering the workforce in

massive numbers. (See Ex. 6 in record).
Loss of membership in the PTA, however, cannot be equated 

with lack of parental involvement. Former superintendent Ayars 
testified as follows on parental involvement in the schools under 

the busing program.

63



Another thing which we did was attempt 
to get parents involved. One of the first 
things that I did here in the fall of 1972 
was to go on television and put out a plea 
to parents that we wanted parents involved 
in planning, implementing and evaluating 
school programs. We immediately enlisted 
1600 volunteers, and that number grew to as 
high as 11,000 volunteers working in our 
schools assisting teachers and adminis­
trators in various ways.

I think we have the highest percentage 
volunteers that I know of any school system 
in the country per capita.

pretextual nature of the Board's use of parental involvement as a
6 5

justification for its neighborhood school proposal.

(1976), the -totality of the relevant facts" shows that appellees 
adopted their neighborhood school plan for discriminatory

See Record, Vol. II B, p. 283-85. This evidence shows the

In the language of Washington v. Davis, 426 D.S. 229, 242

reasons.

Dr Shirley Wilson, school board member and chairman of
r i - . ■__ i__i. c; t- K y o^ninmo n —

busing program was maintained. (A. 1555) .(A. 1555).

64



CONCLUSION

For the reasons indicated above, appellants request that the 
judgment below be reversed, that the 1975 consent decree be set 
aside, that judgment be given to appellants, and that appellants 

recover their costs and attorney s fees.

Respectfully submitted,

HENRY L. MARSH, III
S. W. TUCKER 
RANDALL G. JOHNSON 
HILL, TUCKER & MARSH 
509 North Third Street' 
P.O. Box 17363 
Richmond, VA 23261 
(804) 648-9073
GWENDOLYN JONES JACKSON 
DELK, JAMES & JACKSON 
305 Greater Norfolk Plaza 
555 Fenchurch Street 
Norfolk, VA 23510-2883 
(804) 622-9031
ELIZABETH TURLEY 
LITTLE, PARSLEY & 
CLUVERIUS, P.C.
1300 Federal Reserve 
Bank Building 
P.O. Box 555 
Richmond, VA 23204 
(804) 644-4100
JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, JR. 
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Date: October 29, 1984 Attorneys for Apppellants

65



CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing 
Brief and two copies of the Appendix were served on 
October 29, 1984, on counsel for Defendants-Appellees 
by United States mail, postage prepaid, as follows:

Jack E. Greer, Esq.
Williams, Worrell, Kelly & Greer, P.C. 
600 United Virginia Bank Building 
Five Main Plaza East 
Post Office Box 3416 
Norfolk, Virginia 23514

/l
Counsel for Plaintiffs-Appellants /