Hill v. City of Norfolk, VA School Board Brief for Appellants

    I s r  t h e

Imtpft States four! nf Apppalu
F oe t h e  F ou rth  C ir c u it

No. 8053

J u l ia  E l iz a b e t h  H il l , etc., et al.,

-v.—
Appellants,

S chool B oard of t h e  C it y  of N o rfo lk , V ir g in ia , et al.,
Appellees.

a ppe a l  from  t h e  u n it ed  states district court for t h e

EASTERN DISTRICT OF VIRGINIA, NORFOLK DIVISION

BR IEF FO R APPELLANTS

V ictor  J. A sh e

1134 Church Street 
Norfolk, Virginia

J. H u gh  M adison

1045 Church Street 
Norfolk, Virginia

J oseph  A. J ordan, J r .
721 East Brambleton Avenue 
Norfolk, Virginia

O liver  W . H il l

118 East Leigh Street 
Richmond 19, Virginia

S pottswood W. R obin son , III 
623 North Third Street 
Richmond 19, Virginia

T hurgood M ar sh all  
10 Columbus Circle 
New York 19, New York

Counsel for Appellants



I N D E X

PAGE

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

Questions Presented on Appeal ...................... ............. 3

Statement of Facts ................................-......................  5

A rg u m en t

I. As applied to appellants denied transfers to desig­
nated “all-white” or “predominantly all-white” 
schools for failure to qualify therefor under the 
academic achievement criterion, appellees’ plan 
off ends the equal protection and due process guar­
antees of the Fourteenth Amendment in that ap­
pellants were subjected to terms and conditions not 
similarly applied to white pupils admitted to and 
enrolled in such schools............................ .......-...... 10
A. Uncontroverted evidence with respect to appel­

lees’ application of the “academic achievement” 
criterion conclusively demonstrates that it was 
impermissibly discriminatory ..........................  10

B. The difference between the treatment accorded
appellants and others similarly situated is 
based upon considerations which invoke the 
condemnation of the due process and equal pro­
tection guarantees of the Fourteenth Amend­
ment ...................................................-................ 13

II. As applied to appellants denied transfers to desig­
nated “all-white” schools for failure to qualify 
therefor under the geographical criterion, appel­
lees’ plan contravenes the due process and equal



11

protection clauses of the Fourteenth Amendment in 
that appellants were subjected to factors and con­
siderations not similarly applied to white pupils 
resident in the area districted to such schools or 
already attending them ......................................... 16

The uncontroverted evidence with respect to 
appellees’ application of the “geographic boun­
daries” or “residence” criterion conclusively 
demonstrates a pattern of different treatment

PAGE

was accorded appellants .................................. 16

C o n clu sio n  ............................................................................. .......  19

T a b l e  o p  C a s e s :

Bolling v. Sharpe, 347 U. S. 497 (1954) ..................... 14
Brown v. Board of Education, 347 U. S. 483 (1954),

349 U. S. 294 (1955) ..................................................13,14
Buchanan v. Warley, 245 U. S. 60 (1917).....................14,16

Cassell v. Texas, 339 U. S. 282 (1950) ....................... 16
Cooper v. Aaron, 358 U. S. 1 (1958) ............................  14

Ex parte Endo, 323 U. S. 283 (1944) ......................... 13

Hill v. Texas, 316 II. S. 400 (1942) ..............................  16

Lane v. Wilson, 307 U. S. 268 (1939) ........................ 13,15

McLaurin v. Oklahoma State Regents, 339 U. S. 637 
(1950) .........................................................................  13

Nixon v. Herndon, 273 U. S. 536 (1927) ..................... 13



Ill

PAGE

Shelley v. Kraemer, 334 U. S. 1 (1948) ........................  15
Sipuel v. Board of Regents, 332 U. S. 631 (1948) ......  13
Skinner v. Oklahoma, 316 U. S. 535 (1942) .................  13
Smith v. Cahoon, 283 U. S. 553 (1931) ................ ........ 13
Smith v. Texas, 311 U. S. 128 (1940) ............................ 16
Sweatt v. Painter, 339 IT. S. 629 (1950) ..................... 13

Thompson v. County School Board of Arlington 
County, Virginia, 159 F. Supp. 567 (E. D. Va. 1957), 
affirmed 252 F. 2d 929 (4th Cir. 1958) ..................... 15

Yick Wo v. Hopkins, 118 IT. S. 356 (1886) 13,14



In t h e

TiUmtvb Court of A^pralo
F ob t h e  F ourth  C ir c u it  

No. 8053

J u lia  E liza bet h  H il l , etc., et al.,

Appellants,

S chool B oard of th e  C it y  of N orfo lk , V irg in ia , et al.,

Appellees.

BRIEF FOR APPELLANTS

Statem ent o f  the Case

This case is here on appeal for the third time. In the 
first phase of the litigation the District Court passed an 
order on February 23, 1957, enjoining appellee school au­
thorities of the City of Norfolk, Virginia, from refusing 
solely on account of race or color to admit, enroll or edu­
cate in any school operated by them any child otherwise 
qualified. That order was affirmed by this Court, 246 F. 2d 
325, and certiorari was denied by the Supreme Court of 
the United States, 355 U. S. 855 (1957). In the next phase 
of this litigation the District Court entered an order on 
September 18, 1958, approving appellees’ action granting 
the applications of certain Negro pupils for transfers to 
“white” schools and also upholding appellees’ denial of 
enrollment to other applicants. The order as the former 
was affirmed by this Court, but the cross-appeal presented



2

on behalf of the latter was dismissed as premature since 
the District Court’s order indicated that it had reserved 
for further consideration questions as to the validity of 
the standards, criteria and procedures promulgated and 
applied by appellees. 260 F. 2d 18.

Thereafter, the District Court reconsidered the previ­
ously rejected applications which this Court remanded to 
it and on May 8, 1959, it entered a memorandum opinion 
and an order which sustained appellees’ action in denying 
these requests for transfers and held that the standards, 
criteria and procedures adopted by appellees’ amended 
resolution passed on September 5, 1958, were not uncon­
stitutional on their face (App. 17-27; R. 157).

The latest phase of the litigation began on August 13, 
1959, when appellees, not in response to any order, but 
apparently by reason of a conflict not material on this ap­
peal, filed two reports relating to action taken by them on 
the applications of certain Negro children for admission 
into designated “white” public schools for the 1959-60 school 
year (R. 160-161, 164-166). The District Court convened 
a pre-trial conference on August 14, 1959, and, following 
the same, entered an order which, inter alia, allowed ap­
propriate pleadings to be filed by August 19, 1959, on 
behalf of the children referred to in the above reports of 
appellees (R. 167-168). Within the time prescribed by said 
order appellants filed a motion to intervene together with 
a complaint in intervention and motions for further relief, 
claiming that they satisfied all reasonable requirements for 
admission in the schools to which they sought transfers 
and that the refusal of their applications by appellees were 
based upon considerations of race or color in violation of 
law and in contravention of appellants’ rights (R. 169, 174, 
178, 190). Appellees filed responsive pleadings which con­
troverted the claims of appellants (R. 184, 187, 194, 197);



3

and, after extensive hearings held on August 27-28, 1959, 
the District Court entered a memorandum opinion (App. 
2-13) and an order (App. 14-16) on September 8, 1959, 
which ordered the above pleadings filed as of August 27, 
1959, and approved appellees’ rejection of appellants’ ap­
plications as based upon a valid application of appellees’ 
standards, criteria and procedures untainted by considera­
tions of race or color.1

The instant appeal in this case is from so much of the 
said order as approved appellees’ action as to these appel­
lants.

Q uestions Presented

The questions presented on this appeal are as follows:
1. May appellee school authorities’ rejection of a Negro 

pupil’s application for transfer to a designated “white” 
school on the ground that he failed to qualify under their 
criterion

4. The assignment shall be made after consideration 
of the applicant’s academic achievement and the 
academic achievement of pupils already in the 
school to which he is applying

be upheld without offending the due process and equal 
protection guarantees of the Fourteenth Amendment where 
white children whose academic achievement is less or no 
better than his are admitted to, enrolled in or assigned to 
such school?

2. May appellee school authorities’ rejection of a Negro 
pupil’s application for transfer to a designated “white”

1 The order also granted transfers to seven infant plaintiffs not appel­
lants here.



4

school on the ground that his performance on certain 
achievement tests disqualified him under the foregoing cri­
terion be sustained without violating the applicant’s rights 
to due process and equal protection of the laws under the 
Fourteenth Amendment where the school authorities estab­
lish and apply to him a standard of performance or norm 
not similarly used with white children who are admitted 
to, enrolled in or assigned to such school!

3. May appellee school authorities’ rejection of a Negro 
pupil’s application for transfer to a designated “white” 
school on the ground that he failed to qualify under their 
criterion

5. The assignment shall be made with consideration 
for the residence of the applicant

be approved without contravening the due process and 
equal protection clauses of the Fourteenth Amendment 
where the school authorities specifically designated schools 
as “Negro” and “white”, maintain overlapping boundaries 
for contiguous “Negro” and “white” schools, maintain, de­
lineate attendance areas for “Negro” schools located within 
the attendance area of a white school, and enroll or assign 
white children living in the attendance area served by such 
“Negro” school to the “white” school regardless of their 
residential proximity to the former?



5

Statem ent o f  Facts

Appellee school authorities on March 6, 1959, in compli­
ance with an order entered by the court below on February 
17, 1959 (R. 140), filed a resolution passed on September 5,
1958, amending the “procedures” prescribed and re-adopt­
ing the “standards and criteria” formulated by a prior 
resolution passed on July 17, 1958, in relation to the as­
signment of pupils to public schools (App. 143 et seq.). 
This “plan” (App. 23), in sum, requires all children whose 
applications for transfers or initial enrollments involve 
“unusual circumstances” to submit to achievement tests 
and personal interviews and, in addition, provide that they 
must qualify under or satisfy ten standards or criteria.

Appellants, some of whom sought transfers to or initial 
enrollment in schools theretofore designated as “all-white” 
while the others applied for transfers to schools designated 
as “predominantly all white” (R. 158-166, at 164), properly 
completed the prescribed procedures. On August 13, 1959, 
appellee school authorities voluntarily reported to the 
court below on the action taken by them on the applica­
tions of certain Negro children, including appellants’, for 
transfers or initial enrollment in schools designated “all- 
white” or “predominantly all-white” (R. 158 et seq. ) ; ap­
pellants’ applications were denied (R. 161, 165).

Following a pre-trial conference convened on August 14,
1959, various pleadings were filed by appellants (R. 169, 
174, 178, 190) plus appellees’ responses thereto (R. 184, 
187, 194, 197); and on August 27-28, 1959, the case was 
heard. The pertinent evidence adduced from the stipula­
tions of counsel, the exhibits and the testimony of the 
Superintendent of Schools (Mr. Brewbaker), the Assistant 
Superintendent of Schools for General Administration (Mr.



6

Lamberth) and appellants’ educational expert (Dr. Hender­
son) is not in dispute: Each Negro applicant for admission 
to a school designated as “all-white” or “predominantly all- 
white” creates an unusual circumstance (App. 42, 48-49, 64). 
Of the 18 Negro appellants, all of whom were found other­
wise qualified, nine were denied the transfers sought be­
cause of low academic achievement and the rest because 
of geographical boundaries (App. 40; Court Exs. 3-11, 13- 
14,16-23).

1. The data employed by appellee school authorities in 
connection with the low academic achievement reason for 
rejection were the scores made by appellants on a special 
test, the California Achievement Test or, at least, some 
form of that test different from the form previously ad­
ministered to all pupils in the normal system-wide testing 
program (App. 46-48). Appellants’ individual scores 
thereon were compared with the national norms published 
by the authors of the test used and not with the achieve­
ment test scores of pupils already in the schools to which 
appellants were applying (App. 50, 101).

Appellants otherwise qualified were rejected because 
their individual overall or “total” scores fell below the 
national norm (Court Exs. 3-11, 13; App. 52, 56, 59); and 
some white pupils already in schools to which appellants 
sought transfers either scored below the national norm or 
the school norm (App. 101, 102, 104-105, 108). The scores 
of appellants ranged from 0.4 to 3.8 years below the na­
tional norm for the grade level for which application had 
been made: James Alfred Tatem, 0.4 years below the 
second grade norm (Court Ex. 5); Gladys Lynell Tatem, 
0.7 years below the third grade norm (Court Ex. 4); 
Marian Scott, 1.1 years below the ninth grade norm (Court 
Ex. 8); Eosa Lee Tatem and Calvin Edward Winston, 1.5 
years below the sixth grade norm (Court Ex. 3, 6); William



7

Henry Neville, 1.9 years below the ninth grade norm (Court 
Ex. 11); Wilhelmina Scott, 2.5 years below the eleventh 
grade norm (Court Ex. 10); Julia Elizabeth Hill, 2.6 years 
below the ninth grade norm (Court Ex. 7); Dorothy Elaine 
Tally, 3.8 years below the twelfth grade norm (Court Ex. 
13).

An expert witness called by appellants at a previous 
hearing in this case in August 1958, whose testimony in­
corporated by reference into this record by stipulation of 
counsel with leave to do so granted by the court below 
(App. 40-41), testified that the California Achievement 
Tests are extremely limited as a means of determining the 
proper grade placement of pupils and as a means of pre­
dicting the quality of a pupil’s performance at a particular 
grade level (App. 125 et seq.); that the national norms pub­
lished by the authors of these tests do not represent mini­
mum standards of achievement for pupils in particular 
grades because fifty percent of all pupils will score above 
and fifty percent below the national averages or norms 
(App. 125, 126); that appellants’ scores were compared to 
norms of the children at the schools which they were seek­
ing to enter; that students who score below the national 
norm for a particular grade may get along reasonably well 
in their grades (App. 126-127); that within any typical 
class at any given grade level there would normally be a 
variation of scores among the middle sixty percent equiva­
lent to two or three years above or belowT the grade norm 
(App. 139); that applicants whose scores fall in the middle 
and upper thirds of the range could transfer to “all-white” 
or “predominantly all-white” schools without academic fail­
ures (App. 129); that a fairer standard than the national 
norm would be the 30th percentile, i.e., the score of the 
pupil who excels or outscores only thirty percent of the 
pupils at a particular grade (App. 131, 132-134); and that 
the disparity, i.e., that gap between the national norm



8

and test scores, widens with the passage of time and is 
larger in the higher grades (App. 142).

2. Eight of the nine appellants rejected on the basis of 
geographic boundaries were seeking transfers from Oak- 
wood to Norview Elementary School (an “all-white” 
school), but they were placed in the all-Negro, new Rose- 
mont School (Court Ex. 16-23); the other appellant re­
jected for this reason sought initial enrollment in Norview 
Elementary, but was placed in Coronado—another recently 
completed, all-Negro school (Court Ex. 14). All were other­
wise qualified to be educated at Norview Elementary (Court 
Ex. 14, 16-23). All save the appellant placed in Coronado 
had unsuccessfully challenged appellees’ denial of their re­
quests for transfers to Norview prior to the completion of 
Rosemont upon the theory of “too frequent transfers”, i.e., 
to grant the requests at that time would make necessary 
an “administrative transfer” to Rosemont upon its com­
pletion (App. 18-19, 32-33).

The evidence available and pertinent to the instant re­
jections on the basis of geographic boundaries is as fol­
lows : Up to this time, appellee school authorities maintain 
and establish school districts by race (App. 62, 63, 91, 97); 
that once children enter this school system and are initially 
placed or enrolled by appellees in the area school maintained 
exclusively for persons of their race or color, they follow 
this “natural stream” until they graduate from high school 
unless application is made for an “unusual circumstances” 
transfer and until the procedures, criteria and standards 
applied to them by appellees are successfully run (App. 88, 
89, 91-94, 97-98); that children racially or ethnically in 
one “natural stream” but physically or geographically in 
another are placed in the former by appellees, notwith­
standing geographic boundaries or any other considera­
tion for the residence of the child (App. 92, 93, 94, 95, 97,



9

100-101); that children of white families living in the Rose- 
mont and Coronado districts are already attending Nor- 
view (App. 96, 98) ;2 that these nine appellants live within 
the geographic boundaries of Norview, and that school 
districts are not perfectedly situated so as to accommodate 
people in strictly geographical considerations so that every 
child will have the same distance to walk to the school 
nearest his residence (App. 98-99).

The variations in mileage between appellants’ residences 
and Norview as against their residences and Rosemont, 
Coronado and Oakwood were “not deemed pertinent” by 
the court below (App. 32) : Phyllis Delores Russell, seven 
blocks to Norview and six blocks to Coronado;3 Glenda 
Gale Brothers, 1.8 miles to Oakwood and 1.1 miles to 
both Norview and Rosemont; Charlene Butts, 0.7 miles 
to both Oakwood and Norview and 0.4 miles to Rosemont; 
Melvin G. Green, Jr., and Minnie Alice Greene, 1.4 miles 
to Oakwood and 0.3 miles to both Norview and Oakwood; 
Cloraten Harris and Rosa Mae Harris, 1.3 miles to Oak- 
wood and 0.5 miles to Norwood and one block to Rose­
mont; Sharon Venita Smith and Edward H. Smith, III, 
1.3 miles to Oakwood and 0.7 miles to Norview and 0.6 
miles to Rosemont (App. 33).

Whereupon, the court below on September 8, 1959, en­
tered the order from which the 18 Negro applicants de­
nied the right to attend schools designated “all-white” 
or “predominantly all-white” have prosecuted this appeal.

2 See also Tr. Proceedings of August 27-28, 1959, at pp. 263-264, 266- 
270, 272-275, 277-278.

3 Id., at 278.



1 0

A R G U M E N T

I.

As applied  to appellants den ied  transfers to designated  
“ all-w hite” or “predom inantly  all-w hite” schools for  
fa ilu re  to qualify  th erefor  under the academ ic ach ieve­
m ent criterion , ap p ellees’ p lan  offends the equal p ro­
tection  and due process guarantees o f  the Fourteenth  
A m endm ent in  that appellants w ere subjected  to term s 
and cond itions not sim ilarly applied  to w hite pup ils  
adm itted to and en ro lled  in  such schools.

The applications of nine of the 18 applicants here were 
denied by appellees on the ground that their academic 
achievement did not justify the transfers sought; and the 
court below approved appellees’ action. These nine ap­
pellants respectfully submit that this action was erroneous 
and violative of their rights to due process and the equal 
protection of the laws.

A. U n co n tro v e rted  ev idence w ith  re sp e c t to  ap p e llees’ 
ap p lica tio n  o f th e  “ academ ic  ach iev em en t”  c r ite r io n  
conclusively  d em o n stra te s  th a t  it  was im p erm issib ly  
d isc rim in a to ry .

On September 5, 1958, appellee school authorities passed 
a resolution amending and adopting a prior resolution 
in relation to “all applications for transfers and initial 
assignments which involve “unusual circumstances” and 
prescribing assignment standards, criteria and procedures” 
for processing and considering such applications (App. 
143 et seq.). For the present it suffices to point out that 
this “plan” requires every Negro child applying for trans­
fers to or enrollment in designated “all-white” or “pre­
dominantly all-white” schools to submit to special tests, 
the score on which is supposed to furnish appellees one



11

factor in the equation necessary for their determination 
and “consideration of the applicant’s academic achieve­
ment and the academic achievement of pupils already in 
the school to which he is applying” (App. 150).

The pattern of “different” treatment meted appellants 
by appellees under this aspect of the plan is glaring. For 
the record contains unqualified admissions that each ap­
pellant’s individual score was “considered” in relation to 
the national norms published by the authors of the given 
tests rather than in relation to “the academic achievement 
of pupils already in the school to which he [was] apply­
ing” (App. 50, 101).

The record is replete with additional evidence that ap­
pellees applied the “academic achievement” criterion to 
appellants under conditions not similarly applied to other 
pupils admitted to or enrolled in the schools appellants 
sought to enter. First, transfers were refused appellants 
because their overall or “total” scores fell below the na­
tional norm on “special” tests given only to them (Court 
Ex. 3-11; App. 52, 56, 59) whereas there is uneontradicted 
evidence that not all children in “all-white” or “predom­
inantly all-white” schools achieve test scores above the 
national norm. Indeed, it was readily conceded that in 
Norfolk, as elsewhere, some white pupils already in such 
schools scored below the national norm and others even 
scored below the school norm (App. 101, 102, 104-105, 108). 
It also appears without contradiction that many of the 
rejected Negro children achieved scores on the “special 
test” either higher or, at least, no lower than those achieved 
on “normal tests” by white children in the grades the 
Negro children sought to enter (Ibid.).

It also appears from the evidence that where a white 
child is already enrolled in a particular school, or is 
seeking admission to that school, he is normally enrolled



12

in or assigned to the grade in that school for which he is 
determined to be qualified to enter notwithstanding his 
academic achievement score (App. 54, 57-59). On the other 
hand, Negro children in the category under consideration, 
although considered qualified to enter Negro schools at 
the grade level to which he was last promoted, would be 
denied admission to any grade in the designated “all- 
white” or “predominantly all-white” school to which trans­
fers were sought.

Finally, in view of the unchallenged testimony of ap­
pellants’ expert witness as to the limited value of the 
special achievement tests taken by appellants and that 
many pupils who score below the national norm for a 
particular grade level often get along reasonably well at 
such grade level (App. 125 et seq.), a disqualifying stand­
ard not applied to pupils already admitted to or enrolled 
in “all-white” or “predominantly all-white” schools has 
been imposed on appellants. This appears when one con­
siders that most of the rejected applicants scored less 
than two years below* grade level and only one scored 
over three years wdiereas, almost as documentation for 
the expert testimony, some children already attending 
schools to which these appellants sought admission were 
at least two years below grade level (App. 54, 58, 101, 
104).



13

B. T h e  d ifference  betw een  th e  tre a tm e n t acco rded  
a p p e lla n ts  an d  o th e rs  sim ila rly  s itu a ted  is b ased  
u p o n  c o n sid e ra tio n s  w hich  in v o k e  th e  co n d em ­
n a tio n  o f th e  d u e  p rocess an d  eq u a l p ro te c tio n  
g u a ran tee s  of th e  F o u r te e n th  A m endm en t.

These appellants do not assert a constitutional right to 
enter a grade for which they are scholastically unqualified. 
Rather, they desire to be admitted to the schools to which 
they applied and assigned to the grades in those schools to 
which their academic qualifications, if they were white, 
would normally justify their admission. In short, their 
claim is that, in the way of school assignment and grade 
placement, they should have been treated just as similarly 
situated white children are normally treated.

The equal protection of the laws is “a pledge of the pro­
tection of equal laws.” Yick Wo v. Hopkins, 118 U. S. 356, 
369 (1886). It does not leave the state free to unjustifiably 
impose upon the exercise of rights by one group require­
ments not applicable to other groups. Smith v. Cahoon, 
283 U. S. 553 (1931). See Lane v. Wilson, 307 U. S. 268 
(1939). Classifications violate the Constitution when they 
unjustifiably increase the group burdens, or depreciate the 
group benefits, of public education. Sweatt v. Painter, 339 
U. S. 629 (1950); McLaurin v. Oklahoma State Regents, 
339 U. S. 637 (1950); Sipuel v. Board of Regents, 332 U. S. 
631 (1948). And it is hardly necessary to state that the 
difference in treatment cannot be justified upon grounds of 
race. Brown v. Board of Education, 347 U. S. 483 (1954); 
Sweatt v. Painter, supra; Ex parte Endo, 323 U. S. 283 
(1944); Skinner v. Oklahoma, 316 IT. S. 535 (1942), at 541; 
Nixon v. Herndon, 273 U. S. 536, 541 (1927). Where, as 
here, such requirements are enforced at all, they must be 
enforced without unequal results among groups identically 
situated despite difference as to race. Here the “special”



14

requirements contained in the “plan” under consideration 
had been imposed only upon Negro children seeking to 
enter “all-white” or ‘predominantly all-white” schools and 
might be imposed upon white children seeking entry to 
“Negro” schools. The single factor determinative of its 
operation in particular cases is the difference in race be­
tween the appellants and those already in the school. Sub­
jection to the “plan” thus depends solely on race—“simply 
that and nothing more.” Buchanan v. Warley, 245 U. S. 
60, 73 (1917).

Neither the making of classifications based upon race 
nor different treatment (by imposition of burdens or grant 
of benefits) to groups defined by racial considerations have 
any reasonable relation to any legitimate purpose of the 
appellee School Board. Such discriminations by the school 
board constitute deprivations of liberty without the due 
process of law and denials of the equal protection of the 
laws in violation of the Fourteenth Amendment. Brown 
v. Board of Education, 347 U. S. 483 (1954); Bolling v. 
Sharpe, 347 U. S. 497 (1954); Cooper v. Aaron, 358 U. S. 
1 (1958).

An unjust discrimination not expressly made by the “cri­
teria” adopted by appellees, but made possible by them, 
is nevertheless a denial of equal protection. Tick Wo v. 
Hopkins, 118 U. S. 356 (1886) is the classic statement of 
the rights of persons aggrieved by discriminatory adminis­
tration of schemes appearing innocent on the surface, 
where, at pp. 373-374, the Court said:

. . . Though the law itself be fair on its face and im­
partial in appearance, yet, if it is applied and admin­
istered by public authority with an evil eye and an 
unequal hand, so as practically to make unjust and 
illegal discriminations between persons in similar cir­



15

cumstances, material to their rights, the denial of equal 
justice is still within the prohibition of the Constitu­
tion.

The fact that this different treatment may apply to white 
children who seek enrollment in “Negro” schools, as well 
as to Negro applicants to “white” schools, is entirely beside 
the point. Shelley v. Kraemer, 334 U. S. 1, 21-22 (1948). 
In any event, in all of its ramifications the “plan” here in­
volved had been applied only to Negroes.

The fact that the “plan” may not absolutely preclude all 
Negro children, and that exceptionally gifted children may 
survive its operation, does not save it from constitutional 
condemnation. Indisputably, it discriminates against the 
class that included the Negro appellants here by imposing 
greater demands upon them than upon others. This vice 
in its operation alone suffices to render it invalid. As the 
Court in Lane v. Wilson, supra, at 275, stated in treating 
another constitutional right:

The [Fifteenth Amendment] nullifies sophisticated 
as well as simple-minded modes of discrimination. It 
hits onerous procedural requirements which effectively 
handicap exercise of the franchise by the colored race 
although the abstract right to vote may remain un­
restricted as to race.

Nor is its approval to be affected by the consideration 
that the discrimination resulting from the .operation of the 
plan may not have been intended by the appellees. “It is 
immaterial that the defendants may not have intended to 
deny admission on account of race or color. The inquiry is 
purely objective. The result, not the intendment, of their 
acts is determinative.” Thompson v. County School Board 
of Arlington County, 159 F. Supp. 567, 569 (E. D. Va. 1957),



16

aff’d 252 F. 2d 929 (4th Cir. 1958). Non-intentional dis­
crimination is nonetheless unconstitutional. Cassell v. 
Texas, 339 U. S. 282 (1950); Hill v. Texas, 316 U. S. 400 
(1942); Smith v. Texas, 311 U. S. 128 (1940). The fact that 
appellee School Board sought to achieve, by the means em­
ployed, compliance with the previous orders of the court 
below is equally impotent. However well intended their 
efforts may be, this objective cannot be attained by a de­
vice that denies rights created or protected by the Federal 
Constitution. Buchanan v. Warley, supra, at 81.

II.
As applied  to appellants denied  transfers to  designated  

“ all-w hite”  schools fo r  fa ilu re  to  qualify  th erefor  under  
the geographical criterion , ap p ellees’ p lan contravenes  
the due process and equal protection  clauses o f  the  
F ourteenth  A m endm ent in  that appellants w ere sub­
jected  to  factors and considerations not sim ilarly ap­
p lied  to  w hite pup ils resident in  the area districted to  
such  schools or already attending them .

The applications of the remaining nine appellants were 
for transfer to a designated “all-white” school. Appellees 
denied them on the ground that their places of residence 
were not only located within the areas zoned for the all- 
Negro schools in which they were placed but were physically 
nearer; and the court below again approved appellees’ ac­
tion. These appellants also respectfully submit that that 
action was erroneous and an infringement of the due 
process and equal protection provision of the Fourteenth 
Amendment.

The uncontroverted evidence with respect to appellees’ 
application of the “geographic boundaries” or “resi-



17

dence” criterion conclusively demonstrates a pattern 
o f different treatment was accorded appellants.

The nine appellants in this category reside in what is 
known as the Norview Annex, or section, of Norfolk. Prior 
to September, 1959, two elementary schools served this 
area, the Norview and Oakwood Elementary Schools. The 
former was attended only by white children and the latter 
by Negro children. Since the above mentioned date, two 
more all-Negro schools have been opened. Appellants first 
made application for transfer to or enrollment in Norview 
in 1958 while the construction of the new all-Negro elemen­
tary schools, Rosemont and Coronado, was pending. All 
save one of the present appellants previously prosecuted an 
unsuccessful challenge to appellees’ denial of their requests 
upon the theory of “too frequent transfers”, i.e., allowance 
of such requests at that time would only create a neces­
sity for an additional transfer upon the completion of the 
new schools (App. 18-19, 32-33).

Those appellants, joined by another Negro child seek­
ing initial enrollment in Norview, but now placed in Coro­
nado, again sought transfers to Norview. And on this oc­
casion they were rejected on the ground that their resi­
dences were in the school area served by Rosemont or Coro­
nado and these schools were physically closer or more 
accessible to their homes (see App. 12-13, 33).

In addition to the evidence previously set forth as avail­
able on the record herein and pertinent to these rejections, 
see Statement of Facts, supra, at pp. 8-9, the vice under­
girding the application of the geographic factor in appel­
lees’ plan to these appellants is the fact that appellees 
have accentuated and enforced their continuing policy of 
maintaining and establishing school districts separated and 
denominated in terms of race by playing fast and loose with



18

appellants’ constitutional rights to nonsegregated educa­
tion during the period when the Eosemont and Coronado 
schools were under construction.

Another salient fact which illustrates and emphasizes 
the distinction made by appellees in the application of the 
geographic factor to appellants and others is that a white 
pupil residing in the same block as appellants would be 
assigned notwithstanding the applicable geographic fac­
tors and school areas to schools to which appellants sought 
and were denied transfers. Finally, indisputable eviden­
tiary facts are bared when one recalls that each of the 
boundaries or areas served by the three all-Negro schools 
is located within the Norview boundaries or zone.

From the foregoing facts, it is submitted that appellees’ 
application of the “geographic” or “residence” criterion to 
appellants has subjected them to restrictions or burdens 
not imposed upon all other persons of like age and academic 
achievement who reside in the Norview Annex.



19

CONCLUSION

For the reasons h ere in b efore  stated, appellants re­
sp ectfu lly  subm it that the action  o f  the D istrict Court 
should  be affirm ed as to the m atters involved  in the orig i­
nal appeal, and reversed as to the m atters involved  in  
th e  cross-appeal.

Respectfully submitted,

V ictob  J . A sh e

1134 Church Street 
Norfolk, Virginia

J . H u gh  M adison

1045 Church Street 
Norfolk, Virginia

J oseph  A. J ordan, J r .
721 East Brambleton Avenue 
Norfolk, Virginia

Oliver  W . H il l

118 East Leigh Street 
Richmond 19, Virginia

S pottswood W. R obin son , III 
623 North Third Street 
Richmond 19, Virginia

T hurgood M arsh all  
10 Columbus Circle 
New York 19, New York

Counsel for Appellants



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