Green v. City of Roanoke School Board Opinion

    UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 8534.

Cynthia D. Green, an infant, and Rev. Emmett L. Green, 
her father and next friend; et al., 

Appellants,
versus

School Board of the City of Roanoke, a body corporate ;
et al.,

Appellees.

A p p e a l  f r o m  t h e  U n it e d  S t a t e s  D i s t r ic t  C o u r t  f o r  
t h e  W e s t e r n  D is t r ic t  o f  V i r g i n i a , a t  R o a n o k e . 

O r e n  R . L e w i s , D is t r ic t  J u d g e .

(Argued March 26, 1962. Decided May 22, 1962.)

Before S o b e l o f f , Chief Judge, and B o r e m a n  and J. 
S p e n c e r  B e l l , Circuit Judges.

James M. Nabrit, III, (Jack Greenberg and Reuben E. Law- 
son on brief) for Appellants; A. B. Scott (Peyton, Bever­
ley, Scott & Randolph on brief) for Pupil Placement 
Board, Appellee, and Sidney F. Parham, Jr., (Woods, 
Rogers, Muse & Walker, and Ran G. Whittle, City At­
torney of Roanoke, Virginia, on brief) for Roanoke City 
School Board and Division Superintendent, Appellees.



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S o b e l o f f , Chief Judge:

This action was begun in the District Court for the 
Western District of Virginia by twenty-eight Negro public 
school pupils and their representatives in the City of 
Roanoke to require the defendants to grant them transfers 
from Negro to white schools. The plaintiffs also prayed for 
an injunction against the continued operation of racially 
segregated schools in the city or for an order requiring 
city and state school officials to submit and effectuate a 
plan for desegregation.

Before turning to the facts pertaining to these plain­
tiffs, it is in order to describe the operation of the Roanoke 
public school system, as revealed by the record. The Vir­
ginia Legislature has by statute entrusted authority for 
the enrollment and placement of pupils in the state to the 
Pupil Placement Board located in Richmond, Va. Code 
Ann. §22-232.1—232.17 (Supp. 1960), unless a particular 
locality elects to assume sole responsibility for the assign­
ment of its pupils, Va. Code Ann. §22-232.18—232.31 
(Supp. 1960). However, the Roanoke City school board 
has not elected to assume this responsibility, and insists 
that legal responsibility for assignments is in the state 
board.

In practice, the state Pupil Placement Board’s role in 
the assignment of pupils is largely a formality. The Roa­
noke City school officials make recommendations to the 
Pupil Placement Board as to the assignment of every pupil 
in the city. If the parents or guardians do not object to the 
recommended assignments, the recommendations are 
routinely approved by the state board. In fact, such recom­
mendations are not even presented to the three members 
of the state board, but are automatically approved by the



3

state board's staff. Nor do the state board members con­
cern themselves with the criteria applied by the local school 
authorities in making recommendations. In this way, as 
many as 10,000 pupils have been assigned to schools by 
the state board in a single morning. Only when recom­
mendations of the local officials are protested by parents,, 
or, as is the case with some applications for transfer from 
one school to another, when the local officials fail to make 
any recommendations at all, do the members of the state 
Pupil Placement Board personally consider individual as­
signments.

The scheme employed by the school officials in Roanoke 
City in making their recommendations is aptly called the 
“feeder” system. The city schools are divided into six 
sections, numbered I to VI. A pupil, when he first enters 
the city’s school system, is assigned to an elementary school 
in one of the sections. When he graduates from the ele­
mentary school, he is automatically assigned to the junior 
high school which serves that same section. Similarly, upon 
graduation from junior high school, he goes to his sec­
tion’s senior high school. Under this arrangement, the 
initial assignment of a pupil to an elementary school ef­
fectually determines what schools he will attend during 
his entire school career, unless he succeeds in obtaining a 
transfer to a school in another section. These sections,, 
however, serve no specifically defined areas. The city 
school superintendent stated that initial assignments to 
elementary schools are in accordance with what he called 
a “neighborhood” system: pupils simply go to the school 
in their vicinity. While the superintendent admitted that 
he could produce no map describing the sections on the 
basis of definite geographical boundaries, he asserted that 
the principal of each school knows the neighborhood his



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school serves. However, when it comes to Negro pupils, 
there is no relationship between these sections and the 
vague geographical neighborhoods. Rather, all Negroes 
are initially assigned to schools in section II, and graduate 
to section II junior and senior high schools. And no 
whites attend schools of that section. In other words, the 
“neighborhood” served by section II school consists of 
the entire Negro community in the city.

As previously pointed out, recommendations by the 
city officials for assignment in accordance with this 
system are routinely approved by the State Pupil Place­
ment Board. When recommendations by the local of­
ficials for assignments are protested by parents, or when 
the local officials make no recommendations, as noted 
before, the members of the state Pupil Placement Board 
personally consider the assignments. This, it was estimated, 
happens in only 1/100 of 1% of the total number of 
assignments. Before making any decisions, the state board 
requests the local officials to furnish additional informa­
tion about each pupil. Included in the information requested 
are the occupations of the parents, the schools attended 
by the pupil’s brothers and sisters, the distances between 
the pupil’s home and both the school he presently attends 
and the school he wishes to attend, his scholastic aptitude 
and achievement as revealed by standard, state-wide tests 
and by his grades, and the comments of the pupil’s former 
teachers. An informal meeting is then held by the state 
board with the local school officials, and, on the basis of this 
information, the state board passes on the application. The 
manner in which the state board applies this information in 
reaching a decision can best be illustrated by the cases of the 
twenty-eight plaintiffs and eleven others who, in 1960, ap­
plied for transfers.



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Prior to 1960, the Roanoke City schools were completely 
segregated, with all Negro pupils attending section II 
schools and all whites attending schools in the other five 
sections. In that year, the thirty-nine Negro pupils, in­
cluding the twenty-eight plaintiffs, filed applications for 
transfers to all-white schools. These were forwarded to 
the state board without recommendations. The state board 
then requested from the local authorities the information 
concerning residence, aptitude, and so forth. When the 
Roanoke City school superintendent asked to be advised 
more specifically what information was desired, a member 
of the state board replied with revealing candor that the 
board wanted information to help them answer three ques­
tions, described in the following testimony of the school 
superintendent:

“Are there Negro pupils who cannot be excluded from 
attending white schools except for race? That is num­
ber one. Number two: Would the Superintendent and 
School Board so certify to the Pupil Placement Board ? 
Number three: And in our judgment, what would 
happen in the local communities if some Negro pupils 
were assigned to white schools ? Those were the three 
questions.”

The requested data was transmitted, and subsequently, on 
August 15, 1960, at a meeting of the state board with the 
city superintendent, the latter expressed his judgment as 
to which applications could not be denied but for race and 
which could. In every case, these judgments were effec­
tuated as the actions of the state board. Of the thirty-nine 
applications, the state board granted nine and denied thirty. 
These nine were the first Negroes to be admitted to white 
schools in Roanoke City since the Supreme Court’s deci­



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sions in Brown v. Board of Education, 347 U.S. 483 
(1954), 349 U.S. 294 (1955). Most of the parents of the 
thirty-nine pupils were notified of the board’s decision on 
August 17, 1960, and the remainder on August 22. There­
upon, the parents of twenty-eight of the thirty pupils whose 
applications had been denied filed the present action in 
the District Court.

With respect to the nine Negro children who were 
granted transfers, the minutes of the state Pupil Place­
ment Board recite that the local school authorities, applying 
“criteria and standards * * * which are regarded by this 
Board as valid and reasonable, * * * are not in a position 
to oppose legally the * * * assignments and transfers * * 

As to the twenty-eight plaintiffs, their applications 
were denied for a variety of reasons.1 Eleven were re­
jected on the ground that they lived closer to the Negro 
school to which they were assigned than to the white 
schools they wished to attend, although actually one of 
the eleven lived a block closer to the white school and 
another lived equidistant between the two schools. Twelve 
of the plaintiffs were denied transfers because the results 
of their aptitude and achievement tests placed them below, 
or in a few cases only slightly above, the median of the 
classes in the white schools they wished to attend. Five 
were refused on the ground that, although the applicants 
had otherwise met the board’s standards, each had a brother 
or sister attending the same school with him, whose aptitude 
and achievement tests were below the median of the com­
parable white classes. The board professed to rely upon 
these “standards,” other than the residence requirement,

1 The record does not reveal the reason for the board’s denial of the ap­
plications of the two pupils who did not join as plaintiffs in this action.



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to avoid placing any Negroes in white schools “who would 
be failures.”

In the District Court, the defendants first contended that 
the suit should be dismissed because the plaintiffs, after 
their applications were denied, did not further protest 
against the assignments by the state board and seek a hear­
ing in accordance with the provisions of section 22-232.8 
of the Pupil Placement Act. Yra. Code Ann. §22-232.8 
(Supp. 1960). The court, however, rejected this argument, 
stating: “In this case, the transfer requests were denied 
five or six days prior to the commencement of the school 
term. Obviously there was insufficient time to have heard 
a protest if one had been filed.” While the defendants have 
not renewed this particular argument, both parties in their 
briefs before this court have raised and argued more gen­
eral questions concerning the procedural adequacy of the 
administrative remedies and the necessity for exhausting 
them. However, we think that the above-quoted answer of 
the District Court fully meets the particular question with 
respect to these plaintiffs, and thus it is unnecessary to 
deal with or decide broader issues concerning administra­
tive remedies. The District Court also denied the plain­
tiffs’ prayers for an injunction against the continued opera­
tion of a racially segregated school system or for an order 
requiring a plan for desegregation.

The court ruled on the denials of the plaintiffs’ applica­
tions as follows: As to the eleven who were denied transfers 
on the ground of residence, the District Court sustained the 
defendants’ actions. In regard to the twelve plaintiffs whose 
applications were denied on the basis of academic qualifica­
tions, the court upheld the denial as to one who had per­
formed very poorly in the aptitude test, ordered the admis­
sion of one who was academically well above the median of



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those pupils in the white shcool to which she was applying, 
and ordered the state board to re-examine the applications of 
the other ten. With respect to the five plaintiffs whose 
applications were denied because they had brothers or 
sisters attending the Negro school to which they had been 
assigned, the District Court also ordered the state board to 
re-examine the applications. Of the fifteen applications 
thereafter re-examined by the state board, five were allowed 
by the board and ten denied, leaving a total of twenty-two 
plaintiffs whose applications were denied. Of these, two were 
permitted to transfer to white schools for the 1961-62 
school year, leaving twenty of the plaintiffs who- have 
failed thus far to secure relief. These twenty are the ap­
pellants in the present appeal.

This court has on several occasions recognized that 
residence and aptitude or scholastic achievement criteria 
may be used by school authorities in determining what 
schools pupils shall attend, so long as racial or other 
arbitrary or discriminatory factors are not considered. See, 
e.g., Dodson v. School Board of City of Charlottesville, 
Virginia, 289 F.2d 439, 442 (4th Cir. 1961) ; Jones v. School 
Board of City of Alexandria, Virginia, 278 F.2d 72, 75 
(4th Cir. 1960). But if these criteria, otherwise lawful, 
are used in a racially discriminatory manner, the resulting 
assignment is not saved from illegality. As we have more 
than once made clear, school assignments, to be constitu­
tional, must not be based in whole or in part on considera­
tions of race. Dodson v. School Board of City of Charlottes­
ville, Virginia, supra; Hill v. School Board of City of Nor­
folk, Virginia, 282 F.2d 473 (4th Cir. 1960); Jones v. 
School Board of City of Alexandria, Virginia, supra. 
The pupil assignment system in effect in the City of Roa­
noke, as administered by the joint efforts of the local



9

school authorities and the state Pupil Placement Board, is, 
as demonstrated by the facts, infected throughout with 
racially discriminatory applications of assignment criteria.

All initial assignments of children enrolling in the 
city’s school system are on a completely racial basis. 
Every white child is initially assigned to a school in a 
section other than section II, regardless of how near 
he might reside to a section II school. Every Negro child, 
on the other hand, is initially assigned to a section II school, 
regardless of his place of residence or any other criteria. 
The Negro child, if he desires a desegregated education, 
must thereafter run the gauntlet of numerous transfer 
criteria in order to extricate himself, if he can, from the 
section II schools. These are hurdles to which a white 
child, living in the same area as the Negro and having the 
same scholastic aptitude, would not be subjected, for he 
would have been initially assigned to the school to which 
the Negro seeks admission. In Jones v. School Board of 
City of Alexandria, Virginia, 278 F.2d 72, 77 (4th Cir. 
1960), this practice was expressly condemned:

“* * * if the criteria are, in the future, applied only 
to applications for transfer and not to applications 
for initial enrollment by children not previously at­
tending the city’s school system, then such action 
would also be subject to attack on constitutional 
grounds, for by reason of the existing segregation 
pattern it will be Negro children, primarily, who seek 
transfers.”

Or, as we stated in Hill v. School Board of City of Nor­
folk, Virginia, 282 F.2d 473, 475 (4th Cir. 1960), where



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“* * * assignments to the first grade in the primary 
schools are still on a racial basis, and a pupil thus 
assigned to the first grade still is being required to 
remain in the school to which he is assigned, unless, 
on an individual application, he is reassigned on the 
basis of the criteria which are not then applied to 
other pupils who do not seek transfers * * *, such an 
arrangement does not meet the requirements of the 
law.”

Steps must be taken to end this unlawful initial assign­
ment arrangement which the record discloses to exist in 
the City of Roanoke. It is a racially discriminatory ap­
plication of assignment criteria to which all of the appel­
lants were subjected.

Beyond the discrimination inherent in the initial as­
signment system, there appear to be constitutional infirmi­
ties with respect to the application of the criteria for 
transfers from one Roanoke school to another. The re­
quirement that a Negro seeking transfer must be well 
above the median of the white class he seeks to enter is 
plainly discriminatory. The board’s explanation that this 
special requirement is imposed on Negroes to assure 
against any “who would be failures” is no answer. The 
record discloses that no similar solicitude is bestowed upon 
white pupils. Similarly, the requirement that a pupil’s 
brothers and sisters be above the median of corresponding 
classes in the school to which transfer is sought is invoked 
discriminatorily against only Negro children who seek to 
escape from segregated schooling. Moreover, the very 
manner of the state board, which seeks information con­
cerning Negro applications for transfers, points up the 
extent that such applications are viewed differently from



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white applications. Specifically, the board wanted to know 
if there were any “Negro pupils who cannot be excluded 
from attending white schools except for race?” The 
board’s preoccupation was with race, and its approach was 
to find some excuse for denying the Negroes’ applications 
for transfers. A candid view of the record compels the 
observation that, as to white children, there is no com­
parable straining to ferret out some pretext for denying 
transfers.

The federal courts have uniformly held that such unequal 
application of transfer criteria is a violation of the Negro 
pupils’ rights under the Fourteenth Amendment. As we 
stated in Jones v. School Board of City of Alexandria, Vir­
ginia, 278 F.2d 72, 77 (4th Cir. 1960) : “If the criteria 
should be applied only to Negroes seeking transfer or enroll­
ment in particular schools and not to white children, then 
the use of the criteria could not be sustained.” See North- 
cross v. School Board of City of Memphis, F.2d 

, (6th Cir. 1962) ; Dodson v. School Board of 
City of Charlottesville, Virginia, 289 F.2d 439, 443 (4th 
Cir. 1961); Norwood v. Tucker, 287 F.2d 798, 803, 806- 
09 (8th Cir. 1961); Hill v. School Board of City of Nor­
folk, Virginia, 282 F.2d 473 (4th Cir. 1960) : Mannings 
v. Board of Public Instruction, 277 F.2d 370, 374-75 (5th 
Cir. 1960) ; Hamm v. County School Board of Arlington 
County, Virginia, 264 F.2d 945, 946 (4th Cir. 1959); 
School Board of the City of Charlottesville, Virginia v. 
Allen, 240 F.2d 59, 64 (4th Cir. 1956).

In sum, the Roanoke City school officials, together with 
the state Pupil Placement Board, have administered a 
school system where pupils of the Negro race are classified 
in a separate category, are in the first instance completely



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segregated in their own attendance area, and are kept in 
that area, except for the few who can meet transfer 
standards which, for the most part, have no application to 
white pupils. “Obviously the maintenance of a dual system 
of attendance areas based on race offends the constitu­
tional rights of the plaintiffs and others similarly situated 
and cannot be tolerated.” Jones v. School Board of the 
City of Alexandria, Virginia, 278 F.2d 72, 76 (4th Cir. 
1960). As administered, the Pupil Placement Law offends 
the constitutional rights of the plaintiffs and of others 
similarly situated. Thus, the individual appellants are 
entitled to relief, and also they have the right to an in­
junction on behalf of the others similarly situated. See 
School Board of the City of Charlottesville, Virginia v. 
Allen, 240 F.2d 59 (4th Cir. 1956), sustaining the right 
of the plaintiffs to obtain a general injunction against the 
school officials prohibiting racial discrimination in the 
administration of the schools, and Frasier v. Board of 
Trustees of University of North Carolina, 134 F. Supp. 
589, 593 (M.D.N.C. 1955) (three-judge court), aff’d, 
per curium, 350 U.S. 979 (1956), ordering an injunction 
against discriminatory admissions to the University of 
North Carolina.2

As the defendants have disavowed any purpose of using 
their assignment system as a vehicle to desegregate the 
schools and have stated that there was no plan aimed at 
ending the present practices which we have found to be 
discriminatory, this case is quite unlike Hill v. School

2 Accord, Northcross v. Board of Education of City of Memphis,
F.2d (6th Cir. 1962) ; Mannings v. Board of Public Instruction, 277 F.2d 
370, 372-75 ( 5th Cir. 1960) ; Orleans Parish School Board v. Bush, 242 F.2d 
156, 165 (5th Cir. 1957).



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Board of City of Norfolk, Virginia, 282 F.2d 473 (4th 
Cir. 1960), and Dodson v. School Board of City of Char­
lottesville, Virginia, 289 F.2d 439 (4th Cir. 1961). In 
those cases, the assignment practices were defended as 
interim measures only and the district courts, recognizing 
the infirmities in the existing practices, made it clear that 
progress toward a completely nan-discriminatory school 
system would be insisted upon. These factors are totally 
absent from the instant case.

However, if, upon remand, the defendants desire to 
submit to the District Court a plan for ending the existing 
discriminatory practices, then, rather than the appellants 
and others similarly situated all being entitled to immediate 
admission to non-segregated schools, their admissions may 
be in accordance with the plan. Any such plan, before being 
approved by the District Court, should provide for im­
mediate steps looking to the termination of the discrimina­
tory practices “with all deliberate speed” in accordance with a 
specified time table. Hill v. School Board of City of Nor­
folk, Virginia, 282 F.2d 473, 475 (4th Cir. 1960).

Reversed and remanded for 
proceedings consistent with 
this opinion.



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