City of Danville, VA School Board v. Medley Brief in Opposition to Certiorari

    I n  th e

©curt nf % llniUb States
O ctober T erm , 1973 

No. 73-707

T h e  S chool B oard of th e  C it y  of D an ville , V irgin ia , et al.,
Petitioners,

vs.

Charles L. M edley, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

J. L. W illiam s
216 North Ridge Street 
Danville, Virginia 24541

Charles M. L. M angum  
522 Jackson Street 
Lynchburg, Virginia 24504

S am uel  W. T ucker 
H en ry  L. M arsh , III 
H il l , T u cker  and M arsh  

214 East Clay Street 
Richmond, Virginia 23219

J ack  G reenberg 
J ames M. N abrit , III 
N orman  J. Ch a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



I n  th e

kapron? (tort nt tty States
O ctober T erm , 1973 

No. 73-707

T h e  S chool B oard oe th e  Cit y  of D an ville , V irgin ia , et al.,
Petitioners,

vs.

Charles L. M edley, et at.

petition  for a w rit  of certiorari to th e
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The August 3, 1973 opinion of the Court of Appeals for 
the Fourth Circuit, and the concurring and dissenting 
opinion of Judge Winter, are now reported at 482 F.2d 
1061.

Question Presented

Did the Court of Appeals or the district court err in 
requiring Danville to devise and implement an effective 
pupil desegregation plan including reassignment of ele­
mentary school students across the Dan River, with trans­
portation as necessary, since the geographic zoning plan 
adopted by the school district in 1970 had left many schools 
in this small system with racial compositions which were 
substantially disproportionate to that of the entire district ?



2

Reasons Why the Writ Should Be Denied

This is a startlingly simple case. It involves a small 
school district divided by the Dan River and a federal 
district court, both of which (despite this Court’s decisions 
in Swann1 and Davis2) sought to characterize demands for 
effective school desegregation as efforts to achieve “racial 
balance,” and to make the river an impassable barrier to 
constitutional elementary school integration. The United 
States Court of Appeals for the Fourth Circuit, which in 
the past has been sharply divided on many school desegre­
gation issues,3 was unanimous in this case4 in requiring that 
Danville at long last complete the process of desegregating 
its schools.

The Danville School Board’s attempt to create serious 
constitutional issues where there are none must fail. This 
case involves a historically dual system, like Charlotte, and 
the issue presented to both the district court and the Court 
of Appeals w as: has Danville taken effective measures to 
eliminate its former mandated segregation and the effects 
thereof? Cf. Green v. County School Bd. of New Kent 
County, 391 U.S. 430 (1968). The district court agreed 
that, when the case first came before it in 1971, schools of 
substantially disproportionate racial composition (when 
compared to the system-wide distribution of black and

1 Swann v. Charlotte-Mecklenburg Bd. of E duc , 402 U S 1 
(1971).

2 Davis v. Board of School Comm’rs of Mobile, 402 U S  33 
(1971).

3 See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 
F.2d 138 (1970), rev’d in part, 402 U.S. 1 (1971); Council of the 
City of Emporia v. Wright, 442 F.2d 570, 588 (1971), rev’d 407 
U.S. 451 (1972).

4 The partial dissenting opinion of Judge Winter did not concern 
the issue of student assignment.



3

white students) remained despite the availability of reme­
dial measures to eliminate them. The district court ac­
cordingly required creation of 5-6 grade centers on either 
side of the Dan River.

However, the district court stopped short of completely 
eliminating disproportionate schools by assigning ele­
mentary students across the Dan River (despite the fact 
that some schools of differing racial composition on either 
side of the river were closer to each other than to other 
facilities on the same shore [Ptn. App. 59a]). That court 
noted the crowded bridges, some without sidewalks, and de­
termined it could not subject elementary children to these 
“hazards.” In reversing, the Court of Appeals considered 
the distances involved [Ptn. App. 59a] and concluded that 
highway hazards could be minimized by providing pupil 
transportation [id. at 60a]; in any event, the Court held, 
there were not “ specific findings which demonstrate that 
no other plan affording greater integration is practicable” 
[id. at 59a, citing Thompson v. School Bd. of Newport News, 
465 F.2d 83 (4th Cir. 1972), cert, denied, 413 U.S. 920 
(1973)], and the case was remanded for further proceed­
ings.

The Court of Appeals’ decision is eminently sound. The 
Board’s claim that review here is merited can be made only 
by totally ignoring this Court’s language in Swann:

The district judge or school authorities should make 
every effort to achieve the greatest possible degree of 
actual desegregation and will thus necessarily be con­
cerned with the elimination of one-race schools. No 
per se rule can adequately embrace all the difficulties 
of reconciling the competing interests involved; but in 
a system with a history of segregation the need for 
remedial criteria of sufficient specificity to assure a



4

school authority’s compliance with its, constitutional 
duty warrants a presumption against schools that are 
substantially disproportionate in their racial composi­
tion.

402 U.S., at 26. That is precisely the gravamen of the 
Court of Appeals’ decision.

It is true that the decision below conflicts with the ap­
proach of the Sixth Circuit in Goss v. Board of Educ. of 
Knoxville, 482 F.2d 1044 (1973). The conflict was noted by 
petitioners Goss, et al. (represented by some of the same 
counsel who represent the respondents in Danville) in 
their Petition for Writ of Certiorari (No. 73-661), presently 
pending before this Court. As noted therein, the Sixth 
Circuit (like the district court in Danville) seems to place 
little weight upon the language of this Court in Swann, 
quoted above. Its approval of continuing substantial seg­
regation in Knoxville because the district court thought 
the plaintiffs wanted racial balance, or because of presumed 
impracticalities, cannot be squared with this Court’s con­
trolling decisions. While the disparate approaches of the 
two Circuits constitutes a situation ripe for correction by 
this Court’s certiorari jurisdiction, we submit that the facts 
and dispositions of the two cases compel the conclusion 
that the Sixth Circuit’s decision is the erroneous one. 
Full and appropriate relief as well as clarification of the 
law can be satisfactorily achieved by reviewing Goss and 
denying the writ in this Danville case.



5

CONCLUSION

W herefore, for the foregoing reasons, respondents re­
spectfully pray that the Writ be denied.

Respectfully submitted,

J. L. W illiam s
216 North Ridge Street 
Danville, Virginia 24541

C harles M. L. M angum  
522 Jackson Street 
Lynchburg, Virginia 24504

S am uel  W. T ucker
H enry  L. M arsh , III
H il l , T ucker  and M arsh  

214 East Clay Street 
Richmond, Virginia 23219

J ack  Greenberg
J ames M . N abrit, III
N orman  J . Ch a c h k in  

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



MEILEN PRESS INC. —  N. Y. C. 219