Norris v. State Council of Higher Education for Virginia Brief of Plaintiffs

    BRIEF OF PLAINTIFFS

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ETHEL M. NORRIS, etc., et al

v. CIVIL ACTION

STATE COUNCIL OF HIGHER EDUCATION 
FOR VIRGINIA, et al

NO.. 365-70-R

S. W. TUCKER 
HENRY Lc MARSH, III 
SEYMOUR DUBOW 
JAMES Wo BENTON, JR.
HILL, TUCKER & MARSH 

214 East Clay Street 
Richmond, Virginia 23219

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN CHACHKIN

10 Columbus Circle, Suite 2030 
New York, New York 10019

Counsel for Plaintiffs



TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ----------------------------  1

STATEMENT OF FACTS --------------------------------  2

A. Virginia's Commitment to Racial
Segregation in Higher Education ------ 2

1. Separate Undergraduate Facilities
for Negroes----------------------  2

2, The Out-Of-State Graduate Aid
Programs ------------------------  3

Bo Virginia State College ---------------------  5

Co Richard Bland ------------------------------ 6

D. State and Federal Study Agencies
and Their Recommendations ----------  7

E. Other Circumstances Material to a
Consideration of the Proposed
Escalation of Richard Bland College 12

Fo The Racial Pattern in Virginia's
Higher Education System ------------  16

Go The Parties to this Action--------------  19

ARGUMENT-------------------------------------------  20

Io The Special Three-Judge Court Is
Without Jurisdiction ---------------  20

II. The Fourteenth Amendment Forbids The 
Maintenance Of A Racially Dual 
System Of Higher Education ---------  24

III. The Racially Dual Character Of The 
System Of Higher Education Has 
Not Been Disestablished -1-----------  27 l

l



IV. Richard Bland Was Created To Serve
White Students Who Reside Within
Commuting Distance Of Virginia
State College------------------------  29

V. The Proposed Escalation Of Bland Is
Without Sound Educational Purpose --  31

VI. The Proposed Escalation Of Bland Is
Without Constitutionally Acceptable 
Justification ------------------------  33

VII. The Escalation of Bland Should Be
Enjoined-----------------------------  35

VIII. Richard Bland Should Be Merged With 
Virginia State Or Put In The
Community College System ------------ 36

IX. The State Council Should Be Required To 
Devise And Submit A Plan Whereby 
The Racial Identifiability Of State 
Supported Colleges And Universities
Will Be Eliminated-------------------  38

X, The Defendants Should Be Required To
Pay Costs And Reasonable Attorneys'
Fees To Plaintiffs' Counsel---------  38

CONCLUSION------------------------------------------  39

CERTIFICATE OF SERVICE ------------------------------  40

APPENDIX I

APPENDIX II

APPENDIX III

V 11



TABLE OF CITATIONS

Cases

Page

Alabama State Teachers Association v. Alabama 
Public School and College Authority, 393
U.S. 400 (1969) -------------------------------- 24,25,33,34

Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549
(1962) -----------------------------------------  22

Bradley v. Board of Public Instruction (U.S.D.C.
M.D. Fla., C . A . No. 64-98 (1965)) ------------  34,37,38

Brown v. Board of Education, 347 U.S. 483 ------ 25,27,29,39

Ex parte Collins, 277 U.S. 565, 48 S.Ct. 585
(1927) -----------------------------------------  23

Florida ex r e L  Hawkins v, Board of Control,
350 U.S. 413 (1956) ----------------------------  25

Green v. County School Board, 391 U.S. 430
(1968) -----------------------------------------  25,26,35,36,37,

38

Green v. New Kent County, 391 U.S. 430 (1968) -- 28

Griffin Vo School Board of Prince Edward,
377 U.S, 218, 84 S.Ct. 1226 (1964) -----------  22,23

Hatfield v. Bailleaux (1961 C.A. 9 Or.), 290 
F ,2d 632, cert, den,, 368 U.S 862, 82 S.Ct.
105 — ----------- ------— ------------------- - 23

Kennedy v„ Mendoza-Martinez, 372 U.S. 144,
82 S.Ct. 554 (1963) ------------------   21

Kier v, County School Board of Augusta County,
249 F. Supp, 239 (1966) -----------------------  30

Lee v, Macon County Board of Education,
267 F. Supp 458 (M.D. Ala.) ------------------- 25

McLaurm v. Oklahoma State Regents, 399 U.S.
637 (1950)--------:---     25

Missouri, ex rel Gaines v. Canada, 305 U.S. 337
(1938) ----    4,25

Moody V, Flowers, 387 U.S. 97, 87 S.Ct. 1544 
(1967) ------------ ------------------------

iii

22,23,24



TABLE OF CITATIONS 
(Continued)

Page

Pearson v„ Murray, 169 Md- 478, 182 A 590,
103 ALR 706 ------------------------------------- 3

Petition of Public National Bank of New York,
278 U.S. 101, 49 S.Ct. 43 (1928) -------------  23,24

Rorick v, Board of Commissioners, 307 U.S. 208,
50 S.Ct. 808 (1938) ---------------------------  23

Sanders v. Ellington, 288 F. Supp. 937
(M.Do Tenn. 1968) -----------------------------  25,28,36,37,38

Sipuel v. Board of Regents, 332 U.S. 631 (1948)- 25

Sweatt v. Painter, 339 U.S. 629 (1950) --------- 25

Wallace v„ United States, 389 U.S. 215 (1967) —  25

OTHER AUTHORITIES

Acts of Assembly, 1960 -------- -------    6

Acts of Assembly, 1964 ---------------   3

Acts of Assembly, 1970 --------------------------  20

Code of Virginia, 1970, as amended:

Section ,23-9-3 --------- 1------------------------ 7
Section 23-9,11----------------------- ---------  7
Section 23-9,15-------- -----------------------  9
Section 23-10 — --- -----------------    3
Section 23-12 — --- -----------   4
Section 23-49.1 — ----------- --------- --------- - 21
Section 23-165 --------------------------------  3,21
Section 23-165,1 --   3
Section 23-168 ----- ---- ---- ------------- ------  3,21
Section 23-173 --------*----------------------- - 4
Section 23-174.1 ------     21
Section 23-174,9 ------           21

iv



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ETHEL M. NORRIS, etc., et al :

V. : CIVIL ACTION

STATE COUNCIL OF HIGHER EDUCATION : NO. 365-70-R
FOR VIRGINIA, et al :

BRIEF OF PLAINTIFFS 

PRELIMINARY STATEMENTS

This litigation was instituted to prevent"'the develop­

ment of Richard Bland College, a two-year branch of the College 

of William and Mary, located near Petersburg, into a four-year 

degree granting institution for the accommodation of students 

residing within commuting distance who otherwise would attend 

the traditionally and yet predominantly black Virginia State 

College at Petersburg. Moreover, the plaintiffs seek an order 

requiring the racial desegregation of the several colleges and 

universities maintained by the State of Virginia.

The plaintiffs are black students attending Virginia 

State College, black high school students from the City of 

Petersburg who expect to attend college, and black and white 

faculty members of Virginia State College. The defendants are 

the State Council of Higher Education, the Governor*of‘ Virginia, 

the Board of Visitors of the College of William and Mary (parent 

institution of Richard Bland College), the president*of Richard



The exhibits entered by the parties in this case will 

be designated as follows:

PX - Plaintiffs'. Exhibits

VSC-X - Virginia State College's Exhibits

Paschall X and McNeer X - James Carson, President of
Richard Bland, and William 
and Mary College's Exhibits

The transcripts of the depositions will be referred to 

in the following manner:
Tr. I - January 15, 1971 depositions of Elgin M. Lowe, 

et al ;
Tr. II - January 15, 1971 depositions of Roy E. 

McTarnaghan;

Tr. Ill - January 18, 1971 depositions of Davis Y. 
Paschall and James B. McNeer;

Tr. IV - January 18, 1971 depositions of Roy E.
McTarnaghan (continuation of January 15,
1971).

The Appendices will be designated as App. I, App. II, or App. III.

VIRGINIA'S COMMITMENT TO 
RACIAL SEGREGATION IN HIGHER EDUCATION

Separate Undergraduate 
Facilities For Negroes

Virginia system of higher education has been 

characterized by a historical pattern of racial segregation 

which was created and maintained pursuant to state law 

(PX #4, p. 1).
Virginia State College and Norfolk State College 

were the schools of higher learning for Negroes. Section

Bland College,and the Visitors of Virginia State Cdllege.

2



"Name of School; Curriculum. - The school for 
Negro students near Petersburg, formerly known 
as the Virginia Normal and Industrial Institute, 
shall hereafter be known as the Virginia State 
College. The curriculum of the College shall 
embrace such branches of learning as relate to 
teacher training, agriculture and the mechanic 
arts without excluding other scientific and 
classical studies."

Section 23-168 had created a Norfolk division of 

Virginia State College which was not to extend beyond the 

sophomore year. A 1956 amendment to this section permitted 

the expansion of the college to a four-year degree granting 

institution.
These statutes remained in force until repealed 

by Chapter 70 of the Acts of Assembly, 1964 (Code §§ 23-165.1 

et seq). The new legislation transferred control of the 

college from the State Board of Education to a Board of 

Visitors to be appointed by the Governor.

23-165 of the Code of Virginia as adopted in 1946 provided:

The Out-Of-State Graduate Aid Program

On January 15, 1936, the Maryland Court of Appeals

affirmed an order for the issue of the writ of mandamus

commanding the officers of the University of Maryland to

admit a young Negro as a student in the law school of the

university. (Pearson v. Murray, 169 Mdo 478, 182 A 590,

103 ALR 706). At its 1936 session the General Assembly of

Virginia enacted its Out-Of-State-Graduate-Aid statute

which, now codified as §23-10, provides:

"[W]henever any Negro, who is a bona fide 
resident and citizen of this State and 
possesses the qualifications. . . customarily 
required for admission to any such State

3



institution of higher learning and education 
. . . applies to the Virginia State College
for admission and enrollment in any graduate 
or professional course or course of study 
not offered in such College but offered at 
one or more of the other State institutions 
of higher learning and education, if it appear 
to the satisfaction of the State Board of 
Education that . . . such Negro, is unable to
obtain from some other State institution of 
higher learning and education, other than the 
one in which he seeks or sought admission, 
educational facilities equal to those applied 
for, and that such equal educational facilities 
can be provided and furnished to the applicant 
by a college, university or institution, not 
operated as an agency or institution of the 
State, whether such other facilities are located 
in Virginia or elsewhere in the United States, 
the State Board of Education is authorized, out 
of the funds appropriated for such purposes to 
pay to such person, or the institution attended 
by him and approved by the Board, as and 
when needed, an amount equal to the amount, 
if any, by which the cost to such person to 
attend such college, university or institu­
tion, not operated as an agency or institu­
tion of the State exceeds the amount it 
would have cost such person to attend the State 
institution of higher learning and education to 
which admission was denied or in which the 
graduate or professional course or course of 
study desired is offered. In determining the 
comparative costs of attending the respective 
institutions the Board shall take into considera­
tion tuition charges, living expenses and costs of 
transportation."

Notwithstanding the precepts of Missouri, ex rel 

Gaines, v. Canada, 305 U.S. 337 (1938) , the General Assembly 

of Virginia at its 1946 session enacted what is now Code 

Section 23-173 which authorizes the State Board of Education 

to contribute specified sums of money to the cost of educat­

ing "properly qualified Negroes of Virginia" pursuing 

medical and dental studies at Meharry Medical College, 

Nashville, Tennessee.
Section 23-12 of the Code of Virginia requires the

4



.president of Virginia State College or someone designated by 

him to administer these grant-in-aid programs and to report

annually to the State Board of Education. During the past

ten years the following amounts had been paid to black students

pursuant to the statute:

Year Amount Year Amount

1960-61 $185,000 1955-66 $233,525

1961-62 185,000 1966-67 190,362

1962-63 195,000 1967-68 190,746

1963-64 195,000 1968-69 70,510

1964-65 205,000 (PX #1, A through I)

The Annual Reports ■also reveal payment to the

Southern Regional Educational Board for contracts with

Meharry Medical College and Tuskegee Institute (In Tuskegee, 

Alabama) (PX #1, A through I).

VIRGINIA STATE COLLEGE
Virginia State College, at Petersburg, first named 

Virginia Normal and Collegiate Institute, was founded m  

1882 pursuant to an Act of Incorporation approved by the 

General Assembly of Virginia on March 6, 1882. From 1930 to 

1946 it bore the name Virginia State College for Negroes

(Proposed Stipulation Number II, p- 1; #2 ' P* ^  ‘
During the period of 1954-1964, applications of

white students to attend Virginia State College simply were 

not processed by the admission officials but were passed on 

to the president of the college «.Tr. I, pp. 10 14) . 

procedure was not discontinued until 1964 when the legisla­

ture transferred the supervision of the college from the State
5



Board of Education to a Board of Visitors appointed by the 

Governor (Tr. I, p. 4-5).

The first white faculty member was employed in 

1964 (Tr. I, p. 49) and the first white students were enrolled 

in 1965 (Tr. I, p. 12, 84-5). The number of white students 

and white faculty members gradually increased until the 1970-71 

year. The white faculty members now total 43 out of 255 (VSC-X 

#6) and the white undergraduate student enrollment is 70 out of 

1,926 (VSC-X #4).

RICHARD BLAND

Richard Bland College was established pursuant to 

Chapter 56, Acts of the General Assembly, 1960, wherein it 

is identified as the Division at Petersburg of the College 

of William and Mary in Virginia. The two-year institution 

which was established under the close supervision and direction 

of William and Mary offered its first classes during the 

1961-62 school year (Tr. Ill, p. 13).

Only 3 black students were enrolled in Bland in

1967 and 5 additional blacks were enrolled for the 1968-69 

school year. The composition of its faculty and student 

body by race for the past two years is as follows:

White

1969

Black % Black White

1970

Black % Black

Students 699 6 1.1 827 14 1.8

Faculty 50-60 0 0.0 50-60 0 0.0

(Carson's Answer to Interrogatory # !L; Tr. Ill, p. 47) .

According to its latest catalogue, Richard Bland

6



"serves the young people of Southside Virginia by offering 

close to their homes the basic first two years of college in 

the arts and sciences, as well as some approved advanced 
courses"(PX #3, p. 7) c

Over 97.5% of the students attending Bland are 

recruited from counties, cities and towns located within a 

radius of 45 miles of the College. All of the students 

commute from their homes to the college. (Paschall X #4; VSC 
X #3) .

STATE AND .FEDERAL STUDY 
AGENCIES AND THEIR RECOMMENDATIONS

State Council of Higher Education 

In 1956, the General Assembly of Virginia created 

the State Council of Higher Education for Virginia (herein­

after referred to as the Council). The Council was charged 
to:

"promote the development and operation of a 
sound, vigorous, progressive, and coordinated 
system of higher education in the State of 
Virginia" (Code of Virginia, Section 23-9.3).

The Council was specificially charged to assemble

data and plans for coordinating the colleges into a system, to
limit the offerings of an instutition to conform to the

Council's plans, to review and coordinate budget requests of the

several institutions and to perform other related functions

indicated in Chapter 1.1 of Title 23 (§23-9.3 et seq) of the
Code of Virginia.

In addition Section 23-9.11 of the Code provides:

" (a) No State institution of higher learning 
shall establish any additional branch or

7



division or extension without first referring 
the matter to the Council for its information, 
consideration and recommendation and without 
specific approval by the General Assembly of 
the location and type of such branch or 
division;* * *.

" (b) No additional state-controlled institution
with the exception of new community colleges, 
shall be established, nor shall any existing 
institution presently limited by law to two- 
year programs, nor any existing institution 
presently limited to four-year programs, be 
changed to a higher-degree level until a 
study has been conducted by the State Council 
of Higher Education concerning the need for 
such an institution or development and the 
presentation by the State Council of a report 
and recommendations to the Governor and the 
General Assembly."

The Council- consists of eleven able citizens selected 

from the state at large who are enjoined by statute against 

acting as representatives of their respective regions or of 

any particular institution of higher education. This agency 

operates through an Executive Director and his 25-member pro­

fessional staff, the combined expertise of which embraces 

practically every area of concern to college administrators. 

(See Tr. II, p . 7 j .

In addition to its own staff, the Council utilizes 

professlohal consultants to assist it in complying with its 

statutory responsibilities (Tr. IV; pp.7-10). The staff 

and also the Council make extensive use of advisory committees 

consisting of professional educators and other individuals 

to assist them in formulating recommendations and compiling 

reports (Id.) Some of the committees consulted are committees 

of the presidents of the institutions of higher learning, the 

academic deans or vice-deans, the business officers, the

8



admissions personnel and the librarians of each institution 

in the state (Tr. IV, pp. 9 and 23) .

The Council is constantly gathering and accumulat­

ing data concerning the educational problems in Virginia, the 

southern region and the nation and is the only agency in the 

State with a broad and comprehensive view of the higher 

educational resources and needs of the State (Tr. IV; pages 

24,25) .

By Chapter 91 of the Acts of Assembly of 1964, the 

legislature authorized the Governor to appoint a commission 

"which shall be broadly representative of the public and of 

higher education (including junior colleges and technical 

institutions)" known as the Virginia Commission on Higher 

Education Facilities,, (Code of Virginia §23.9.15). In 

December of 1965, this Commission released its report (Tr. Ill, 

p, 12) and eleven staff reports which had been prepared by its 

professional staff, headed by John Dale Russell (Tr. Ill, p.

13; PX #10-pp = 55-56).

Although in its said reports this Commission 

supported the expansion of Christopher Newport College (of 

William and Mary) and George Mason College (of the University 

of Virginia) to four year status, it refused to support the 

escalation of Bland) Instead, it recommended that Richard 

Bland and all of the other two-year colleges in the state be 

made a part of the community college system (PX #10-p. 40;

Tr. Ill, pp. 18-19).

In December of 1967, the State Council of Higher

9



Education released "The Virginia Plan for Higher Education" 

as a guide for the development of higher education in the 

Commonwealth during the decade 1967-77. This plan was 

designed to "promote maximum utilization of present and 

future resources" (PX #10, p. 5).

The Virginia Plan discussed the problems existing 

in higher education in Virginia, set forth five broad goals 

charting the future of higher education in Virginia and 

identified eleven components considered basic to a statewide 

plan of higher education (PX #10).

In component IV, after giving careful study to 

the present role of each institution and to the future 

developments proposed by each institution, the council 

spelled out "the role and function it considered appropriate 

for each of the several state institutions for the next ten 

years"(PX #10, p. 25).

With respect to Richard. Bland and three other

existing two-year colleges, the plan stated:

"The Higher Education Study Commission in its 
1965 report to the Governor and General Assembly 
recommended■that these branch colleges of senior 
institutions be incorporated into the state 
system of community colleges,, The State Council 
of Higher Education concurs in this role for 
these institutions," (PX #10, p. 40).

The proposals in the Virginia Plan were reaffirmed

in late 1967 or early in 1968 when the State Council made its

1966-68 Biennial Report to the Governor and the General Assembly.

"[T]he State Council considers [the Virginia Plan 
and its eleven components] of critical importance 
to the future of higher education in the Common­
wealth. The Council believes its Plan will pro­
mote the flexibility which has characterized

10



Virginia higher education, preserve the indivi­
duality of the several colleges and universities 
in the state system, and provide a sound and 
progressive program of higher education for the 
future." (PX #14 (e), p. 42).

These proposals were again reaffirmed in the 1968-70

Biennial Report which was transmitted to the Governor and

General Assembly in December of 1969. Listed first among

the Council recommendations for 1970-72 is the following:

"It is recommended that full support be given 
to the implementation of higher educational 
developments proposed in The Virginia Plan for 
Higher Education. The State Council is convinced 
that the . . . Plan . . .  is a sound and realistic 
guide by which the Commonwealth may achieve its 
higher educational goals" (PX #14 (f), p. 4),

Pursuant to Title VI of the Civil Rights Act of

1964, the Department of Health, Education and Welfare (HEW)

requested the State of Virginia to submit a (state-wide) plan

to desegregate the higher education facilities of Virginia.
1/

Virginia's response consisted of an outline of its plan 

(submitted m  April, 1970) and "VIRGINIA'S STATE PLAN" (sub­

mitted in December, 1970; for desegregating its institutions 

of higher education (Tr. IV, p t 12, line 15; PX #4).

Although the plan was submitted by Governor Holton, 

it was prepared in large part by the State Council of Higher 

Education (Tr. II, p. 9, [lines 6-161). There is nothing in 

the plan that was not approved by the State Council (Tr. II, 

p. 9, [lines 18-20]).

The HEW officials were aware of the proposed

PX #9.
!

1/

11



escalation of Richard Bland. They discussed with Virginia 

officials the problem of Virginia State College being an 

overwhelmingly black institution and Richard Bland, a nearby 

college, being all-white. The major concern was in the area 

of the overlapping similar levels of degrees in the same pro­

grams, the overlapping curriculum or the potential for duplica­

tion, particularly if Richard Bland was escalated to a four- 

year college (Tr, IV, pp, 31—32). 2/
The recommendations in the Governor's report 

dealing with the Virginia State-Richard Bland situation were 

designed to correct the problem of the' dual system of higher 

education which exists in the Petersburg area (Tr. IV, p. 32-33). 

Among the recommendations for 1971-72 academic year (Phase II) 

is the introduction of legislation to place Richard Bland College 

in the Community College System (PX #4, p,6).

OTHER CIRCUMSTANCES MATERIAL.
TO A CONSIDERATION OF THE PROPOSED 
ESCALATION OF RICHARD BLAND COLLEGE

Both Virginia State College and Richard Bland 

attract large numbers of students from the nearby counties 

and cities. Of the 1,926 undergraduates enrolled at Virginia 

State College, 1,099 reside within a 45 miles radius of the 

campus (VSC X #1, #2, #4), Another 266 are residents of 

the "Tidewater Cities", i.e., Norfolk, Portsmouth, Virginia 

Beach, Hampton, Chesapeake and Newport News. Thus, over 70% 

of the enrollment of Virginia State College comes from nearby 

southside and from the seaport cities. Similarly, 97.5% of

2/
" PX #4.

- 12 -



Richard Bland's 1969 enrollment and 90.5% of its 1970 enroll­

ment live within the 45 mile radius of Virginia State College 

(Paschall X #4).
The following chart shows the extent to vhich Richard 

predominantly
Bland College draws its / -white student enrollment from 

specified localities within the forty-five mile radius. The 

numbers of students from the several localities are shown on 

a map filed as a part of PX #11 and captioned "Richard Bland - 

Distribution of Virginia Students by county". The percentages 

of blacks in the total populations of these localities are

calculated from figures reported in the 1960 Census.

Bland Black Percentage
Localities Students of Total Populatior

Dinwiddle and Peters-
burg

Prince George and
259 52.7

Hopewell
Chesterfield and

175 19.9

Colonial Heights 134 11.7
Greensville 22 54.8
Sussex 21 66.3
Henrico and Richmond 26 29.1
Mecklenburg 5 46.8
All other localities 63 “ “ “ “

Total enrollment 705

The entrance requirements at Virginia State College

and Richard Bland are similar. All of the courses offered at

Bland are duplicated at Virginia State (Tr. I, p. 99).

Virginia State offers many courses not offered at Bland (Id, p.99).

As was earlier indicated, only 70 of Virginia 

State's undergraduate enrollment of 1,926 are white. At least 

12 of these 70 students are transferrees from Richard Bland 

(Tr. I, p. 32). Sixty of the 70 are commuting students who

13



live within the 50 mile area (Tr. I, p 5 28),

Both Bland and State recruit extensively from the 

southside Virginia area (Tr. I, p. 70). During the past few 

years Bland has done no active recruiting outside the south- 

side Virginia area or the area contiguous to the college 

(Tr. Ill, p. 133). Since 1965, Virginia State College has had 

"an active and vigorous policy in the recruitment of white 

students" to attend the college (Tr. I, p. 69). Many of the 

prospective white students and their parents inquired concern­

ing the number of white students and faculty members at Virginia 

State (Tr. I, p = 62).

Richard Bland, which since its inception has had 

an all-white faculty and staff, has historically sought the 

attendance of white students. Its first expression of interest 

in black students appears in a letter dated April 28, 1970, 

(McNeer X #3) from its Director of Admissions, addressed to 

certain principals of high schools in the area.

In February of 1966, the Beard of Visitors of 

William and Mary adopted a resolution regarding the status 

of Bland and Newport. The statement acknowledged the recommen­

dation of the Higher Education Commission and suggested that 

any legislation purporting to escalate either or both of these 

colleges to four-year status "should avoid specifying time 

for same", but that this determination should be left to the 

Board of Visitors. The Resolution indicated that "available 

resources and academic considerations" are not sufficiently 

known with certainty to project wisely such a time period

14



within the next two years (Paschall X #1). The proposal, thus 

rejected, to escalate Bland and Christopher Newport had been 

triggered in part by resolutions of the governing bodies of the 

jurisdictions near the respective colleges and the expressions 
of white citizens from the respective areas (Tr. in, p . 59) #

The next action taken by the Board of Visitors of 

William and Mary with respect to Richard Bland was in December 

of 1969 and early in 1970 when the Board made an assessment of 

Richard Bland (Tr. in,  p. 24). The assessment was made by 

officials of William and Mary and Bland exclusively and con­

sisted of visitations to check on library resources, to check 

on faculty potential and population enrollment to be served, a 

check on the report of the Southern Association and a considera­

tion of the academic program (Tr. Ill, pp. 55-56). No written 
report of the assessment was made.

No inquiry was made to determine the availability 
of space and other resources at Virginia State College and 

other four-year colleges in the area although the officials 

were aware of the fact that such institutions existed 

(Tr. Ill, p. 5/). The officials did not even consider any 

other four-year institutions. They felt that their "role was 

to exercise stewardship for Richard Bland and its future and 
what was best for it." (Tr. Ill, p. 57).

In the assessment of Bland, the Board "gave con­

sideration to several pertinent factors that led the Board 

to adopt a resolution in February, 1970, declaring that 

Richard Bland was to be escalated . . . and directing that

15



the House Appropriations Committee be notified of the additional

resources needed, the General Assembly then being in session." 
(Tr. Ill, p. 24).

The justification offered in the resolution for the 
decision to escalate Bland was :

"* ‘ • the Board is of the opinion that Richard 
Bland College can best serve the present and 
future educational needs of its rapidly 
growing geographic area if it is developed 
to the level of a four-year degree—granting 
institution." (Paschall X #2).

The presidents of William and Mary and Richard 

Bland testified before the Appropriations Committee of the 

House of Delegates in favor of the escalation of Bland 

(Tr. Ill, p. 25). However, the chairman of the State Council 

of Higher Education and its Director testified against the 
proposed escalation (Tr. IV, p. 34).

The General Assembly of Virginia enacted the 

appropriations bill for the biennium beginning July 1, 1970,

(Acts of Assembly 1970, Chapter 461), Item 600 of which pro­

vides $420,625 during the first year and $558,304 during the 

second year for "Operating expenses of educational and general 

activities of Richard Bland College, at Petersburg, "includ­

ing escalation to third and fourth year status."

THE RACIAL PATTERN IN 
VIRGINIA'S HIGHER EDUCATION SYSTEM

Virginia currently operates 15 four-year colleges

and universities and 16 two-year community colleges. In

16



there ere three two-year branches of the four — 

year institutions (P-X #7). These 34 institutions have a 

total student enrollment of 108,033 of which 11,810 or 10.9% 

are black. Two of the four-year institutions, Virginia State 

College and Norfolk State College, were established for the 

education of black students, During the 1969-70 school year 

(when this suit was instituted), 4,569 (98.4%) of the 4,644 

students enrolled at Norfolk State were black and 2,589 (98.8%) 

of the 2,675 students at Virginia State were black. Of the 

total of 72,819 students enrolled in four-year colleges and 

universities, 8,197 (11.3%) were black. The two "black" 

colleges had 87.3% of the black students and Virginia Commonwealth 

University had 6,3%. The remaining 523 (6.4%) were scattered 

among the other 12 four-years colleges only one of which had 

blacks accounting for as much as 1.5% of the school's enrollment. 

In 8 of those schools, the black enrollment was less than 1%.

The picture is practically the same for the 1970-71 

school year. Of the 5,202 students enrolled at Norfolk State, 

5,082 (97.7%) are black; and 2,728 (92.5%) of Virginia State's 

2,948 students are black. Of the total of 79,879 students 

enrolled in four-year colleges and universities, 9,597 (12.2%) 

are black. The two virtually all-black schools have 81.4% of 

the black students and Virginia Commonwealth University has 

10.8%. The remaining 7,8% (748) are scattered among the other

1/The Eastern Shore Branch of the School of General 
Studies and Patrick Henry College (at Martinsville) are branches 
of the University of Virginia and Richard Bland College (at 
Petersburg) is a branch of the College of William and Mary.

17



12 four-year colleges, only two of which have blacks account­

ing for as much as 1.5% of the school's total enrollment. In 

6 of these schools, the black enrollment does not exceed 1%

(PX #7 and App. 1).

The total 1969-70 community college enrollment was 

22,036. Of these 1,478 (6.2%) were black. For the 1970-71 

school year, 2,162 (7.8%) of the total enrollment of 27,840 

are black (PX #7 and App, 1).

At the three two-year branches, blacks numbered 24 

(2.0%) of the 1,178 students enrolled during the 1969-70 school 

year and 51 (3,9%) of the 1,314 students enrolled during the 
1970-71 school year.

The complete breakdown of the enrollment by level 

of institution and by race and a comparison of the 1969 

enrollment with that of 1970 as shown in PX #7 is submitted 

on Appendix I.

During the discussion between officials of the 

State Council and HEW, the latter took the position that 

the State has an affirmative duty to overcome the de jure 

existing pattern in all of the institutions of higher 

learning, particularly the pattern of student enrollment 
(Tr. IV, pp. 33-34).

The Virginia report to HEW acknowledged that 

"the historical patterns of racial segregation" in Virginia's 

higher education system were "until recent years" maintained 

under state law (PX #4, p. 1). The report contained several 

statistical charts describing Virginia's higher education

18



system (Tables I through IV of PX #4). The report concludes 

with a 3 year time table beginning with the 1970-71 year.

The report contains no numerical goals or any type 

of goals which would change the racial makeup in the student 

bodies or the faculties at the various institutions of higher 

learning (Tr. IV, p. 12). Nor has the State Council formu­

lated such goals. In fact, the State Council has taken no 

steps to further desegregation beyond what is contemplated 

by the report (Tr. IV, p. 12).

THE PARTIES TO THIS ACTION

On June 30, 1970, this litigation was instituted 

by three different categories of plaintiffs:

(a) Three black high school students vAio expect to 

attend college, each of whom resides in the City of Petersburg, 

Virginia, and is a citizen of the Commonwealth of Virginia

and the United States;

(b) Three black students of Virginia State College 

who are citizens of the Commowealth of Virginia and of the 

United States; and

(c) Six instructors at and members of the faculty 

of Virginia State College, two of whom (Florence Saunders 

Farley and George W. Henderson) are black and the remaining

4/

4/
For an an accurate statement of the desegregation 

status of Virginia's higher education system, see the dis­
cussion on pages 1 and 2 of this brief and Appendix I, infra.

19



four are white. Each is a citizen of the United States and 

of the Commonwealth of Virginia.

The suit named as defendants the State Council of 

Higher Education for Virginia, A. Linwood Holton, Governor 

of Virginia, The Board of Visitors of the College of William 

and Mary in Virginia, James M., Carson, President, Richard 

Bland College, and the Visitors of Virginia State College.

A R G U M E N T

I

The Special Three-Judge 
Court Is Without Jurisdiction

No statute requires the maintenance of the racially

dual system of higher education. Primarily, the plaintiffs

seek an order restraining the enforcement, operation or

execution of Item 600 of the Appropriation Act (Acts of

Assembly 1970, Chapter 461) purporting to authorize "escalation

[of Richard Bland College] to third- and fourth-year status."»•
The subject biennial appropriation reads as follows:

II

" * * * First year Second year
II

"Richard Bland College, 
at Petersburg

"Item 600

"Operating expenses of 
educational and 
general activities 
including escalation 
to third- and fourth-
year status ---------  $420,625 $558,305
Item 600

*  *  *  »

Clearly, Item 600 of the Appropriations Action is not of state­

wide application,
20



In their motion to reconsider the question of convening 

a three-judge court, the defendants suggested that the plaintiffs' 

prayer for merger of Richard Bland College into Virginia State 

College calls into question the constitutionality of Chapters 

5 and 13 of Title 23 of the Code of Virginia. Section 23-49.1 

(of Chapter 5) vests in the board of visitors of the College of 

William and Mary the supervision, management and control of 

the Richard Bland College in Petersburg. Chapter 5 (sections 

23-165, et seq) which prescribes the powers and duties of The 

Visitors of Virginia State College, does not purport to deal 

with the supervision, management and control of the Richard 

Bland College.
But these statutes (Chapters 5 and 13) also fall 

short of state-wide application; and the facets of the statute 

which would be affected by the plaintiffs' prayer for merger 

fall even shorter. Chapter 5 deals with but 3 of the 34 state 

colleges and universities and those 3 are located in the south­

eastern corner of the state. Section 23-168 having been 

effectively repealed by Chapter 13.1 (§§23-174.1 and 23-174.9), 

Chapter 13 deals with but one institution which is also located 

in the southeastern corner of the state,

The purpose of 28 UoS.C. §2281 is to prevent a 

single federal judge from being able to paralyze totally the

operation of an entire regulatory scheme, either state or
5/

federal, by issuance of a broad injunctive order. In keeping

Kennedy v. Mendoza-MartInez, 372 U.S. 144, 82 S.Ct.
554 (1963).

5/

21



with that purpose "[t]he Court has consistently construed the 

section as authorizing a three-judge court not merely because 

a state statute is involved but oniy when a state statute of 

general and statewide application is sought to be enjoined".

Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544 (1967).
6/

Moreover, §2281 is to be narrowly construed because of the 

burden three-judge courts place on the normal operations of 

the federal courts. Those statutes that affect a particular 

municipality or district, as is the case here, are not within 

the limited class of cases for which §2281 was prescribed.

In Griffin v. School Board of Prince Edward, 377 

U.S. 218, 228, 84 S.Ct. 1226 (1964), the Court held that it 

was for a single district judge to adjudicate a controversy, 

that "may have repercussions over the state", as to whether 

county officials acting in Prince Edward County could be 

enjoined from closing public schools and from giving public 

funds including state funds to white children to attend pri­

vate schools that excluded black children. The Court stated:

"Even though actions of the State are involved, 
the case, as it comes to us, concerns not a 
state-wide system, but rather a situation unique 
to Prince Edward County".

In Moody v. F1owers, supra, Mr. Justice Douglas, 

delivering the Court's unanimous opinion on the issue of a 

three-judge court, held that a state statute dealing with 

apportionment and districting of one county's governing board 

pertained to matters of local concern and a county charter

Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549
6/

(1962) .
22



enacted into state law providing that supervisors of a 

particular county governing board each representing various 

sized towns should each have one vote was similar to a local 

ordinance, The Court held that neither situation required a 

three-judge court since the statutes involved were not of 

"general and state-wide application". (38 U.S. at 101).

In cases involving state statutes regarding city 
7/

improvements, taxes assessed and collected for the sole use
8/ 9/

of a city, and the administration of a large drainage district,

the Court has consistently found a three-judge court inapplicable 

since the nature of the controversy was legislation affecting 

a locality as against a policy of state-wide concern, "Nor 

does the section come into operation where an action is brought 

against state officers performing matters of purely local con­

cern," Moody Vo Flowers, supra at 102. See also Rorick v.

Board of Commissioners, cited in footnote 9. It should be noted 

here that administrative orders trigger §2281 only when they are 

of state-wide application representing considered state policy. 

Hatfield v. Bailleaux (1961 C,A. 9 Or.), 290 F.2d 632, cert, den., 

368 U.S. 862 , 82 S.Ct. 105.

In this case, as in Griffin, state funds and a state

7/
Ex parte Collins, 277 U.S, 565, 48 S.Ct. 585 (1927).

8 /
~  Petition of Public National Bank of New York, 278 

U.S. 101, 49 S.Ct. 43 (1928).

9/
Rorick v. Board of Commissioners, 307 U.S, 208, 50 

S.Ct. 808 (1938).

23



statute are being directed toward a specific situation in one

locality, namely the expansion of Richard Bland College at

Petersburg. When the Supreme Court has been confronted with

the issue of whether a three-judge court is warranted it has

in the cases cited above conclusively and clearly stated that

a three-judge court need not be invoked whenever "a state

statute is involved but only when a state statute of general

and state-wide application is sought to be enjoined". Moody

v. Flowers, supra. The defendants base their motion for a

three-judge court on Alabama State Teachers Ass'n. v. Alabama

Public School and College Authority, 393 U.S. 400 (1969) , a

memorandum case that did not consider the propriety of the

hearing before three judges. The Supreme Court in Petition

of Public National Bank of New York, supra, provided the best

answer to the defendants’ reliance on Alabama when it stated:

"It is enough to say, as was said in the Collins 
Case, that the propriety of the hearing before 
three judges was not considered in the cases to 
which we are referred, and they cannot be regarded 
as having decided the question." (278 U.S. at 105).

II

The Fourteenth Amendment 
Forbids The Maintenance Of A 10/

Racially Dual System Of Higher Education

The principle that racial discrimination by the state 
in higher education violates the Fourteenth Amendment was well

10/
Except for the change of one word in this headnote, 

this argument (II) is lifted verbatim from the Brief of the 
United States recently filed in the United States Court of 
Appeals for the Fifth Circuit in Anthony Lee, et al vs. Macon 
County Board of Education, et al, wherein the Government seeks 
affirmance of orders of the District Court entered on August 14, 
1970, October 13, 1970 and October 26, 1970.

24



I

established prior to the decision in Brown v. Board of 

Education, 347 U.S. 4 83. Missouri ex rel. Gaines v. Canada,

305 U.S. 337 (1938) ; Sipuel v. Beard of Regents, 332 U,S. 631 

(1948); Sweatt v = Painter, 339 U.So 629 (1950); McLaurin v. 

Oklahoma State Regents, 339 U S. 637 (1950), The decision in 

Brown itself was promptly extended to higher education. Florida 

ex rel. Hawkins v. Board of Control, 350 U.S. 413 (1956) .

Racial discrimination in public education may take 

the form of discriminatory denial of admission to a public 

school, as m  Brown and Hawkins, or it may take other forms, 

such as the maintenance of the dual system in New Kent County, 

Virginia. Green v. County School Board, 391 U.S. 430 (1968).

In either event it is forbidden by the Fourteenth Amendment. 

Although most higher education cases have involved discrimina­

tory admissions policies, all cases dealing with the question 

hold that the state may not operate a racially dual system 

of higher education. Alabama State Teachers Association, et 

al, Vo Alabama Public School and College Authority, et al.,

289 Fo Supp 784 M 0 Ala * (tnree-judge panel, Gewin, Circuit 

Judge, Johnson and Pittman, District Judges) aff'd without 

argument, 393 U.S 400 (1969}; Sanders v.. El lington, 288 F.

Supp. 937 (m D Term-, 19681; Lee v„ Macon County Board of 

Education, 267 F. Supp. 458 , 4 74 (M.D Ala.) (^liree-judge

panel, Rives, Circuit Judge, Johnson and Grooms, District 

Judges) aff* 1d sub nom. Wallace v. United States, 389 U.S. 215 

(1967). Stated another way, the state may not maintain one 

set of schools intended to serve white students and another
l

to serve black students.M As with elementary and secondary

25 -



education, the system of higher education must be one "without

a 'white' school and a 'Negro 

Green v, County School Board,

school, but just schools." 

supra at 442.

26



Ill

The Racially Dual Character Of The System Of 
Higher Education Has Not Been Disestablished

Notwithstanding Virginia's affirmative obligation to 

eliminate the racially dual pattern of student enrollment in 

its institutions of higher learning, this record shows that 

Virginia has operated its institutions of higher education as if 

the requirements of Brown v. Board of Education, supra, were 

satisfied by the admission of a few black students to white 

institutions.

During the 1969-70 school year, all 15 of the four-
11/

year institutions had racial minorities of less than 4%.

Twelve of the 15 institutions had racial minorities of less than 

3% and 8 had minorities of less than 1%.

For the 1970-71 school year, all but 3 of the four- 

year institutions still had racial minorities of less than 4%.

Ten of the remaining 12, had minorities of less than 1.5%. The 

overall percentage of black students was 12.2 percent (App. I).

Equally as important is the continuation of the 

historical pattern of racially segregated assignment of faculty 

members. The State Council has not requested records from the 

various institutions showing the racial make-up of the faculties, 

although such information can be secured from these institutions 

(Tr. 11, p. 16). Notwithstanding inquiry from HEW officials

11/ The three two-year branches had black percentages of 
1.1, 1.5 and 4.1. See App. I.

27



concerning faculty desegregation, the State Council has made no 

effort to effect any change in the dual racial patterns of 

faculty assignment (Tr. IV, p. 12). Even now, neither William 

and Mary nor Bland has a single non-white person on its staff.

The perpetuation of the racially segregated character 

of Norfolk State College (97.7% black) within a few miles of 

Old Dominion College (98.6% white) is living proof of the 

state's failure to disestablish the dual pattern of its higher 

education system (See App. I). Virginia State College is 92.5% 

black. At least 81.4% of all black college students at 

Virginia's four-year institutions are attending Virginia State 

and Norfolk State.

The fact that black students are no longer denied 

admission to Old Dominion and white students are no longer 

denied admission to Norfolk State does not end the inquiry.

"The law is clear that there is an affirmative duty . . .  to 

formulate and put into effect a desegregation plan which 

'promises realistically to work now,' Green v. New Kent County, 

391 U.S. 430 (1968)." See also Sanders v. Ellington, 288 F. 

Supp. 937 (M.D. Tenn. 1968), where the (single Judge) district 

court found that the State of Tennessee was maintaining a dual 
system of higher education throughout the state and that there 

is an affirmative duty upon the state to dismantle this dual 

system (citing Green). More specifically, the court held that 

an open door policy "does not discharge the affirmative duty 

imposed upon the state by the Constitution, where, under the 

policy, there is no genuine progress toward desegregation, and 

no genuine prospect of desegregation". 288 F. Supp. at 942.

28



IV

Richard Bland Was Created To Serve White 
Students Who Reside Within Commuting Distance 

Of Virginia State College

The primary responsibility for the establishment of 

Richard Bland has been exercised by Dr. David Y. Paschall, 

President of William and Mary, with the guidance of the Board of 

Visitors of that institution. During the past 10 years since 

Dr. Paschall has been its president (as during the entire 17 

years since Brown), William, and Mary has maintained an incredi­

ble degree of racial segregation; viz:
In a total student enrollment of 5,319 only 
45 are black. In a total undergraduate en­
rollment of 3,300 only 5 or 6 are black. In 
a total faculty and administration of 375, 
none are black (Tr. Ill, pp. 44-46). Such 
is the present box score at the College of 
William and Mary.
The selection and the continuing replenishment of the 

all-white faculty and administration of Bland has been under the 

guidance and supervision of William and Mary. The active re­

cruiting of white students from areas with large black populations 

for the past ten years has been under the direction of William 

and Mary. The virtually all-white enrollment of Bland 10 years 

after its commencement is a direct result of the practices of 

the William and Mary and Bland officials. Bland currently has a 

student enrollment of 827 white and 14 black and an all-white 

faculty totalling from 50-60 persons (Tr. Ill, p. 47).
Although the catalogue states that Bland's purpose is 

to serve the "young people of southside" the total effect of the

29



Bland appeal is to the "white" students of the area. As stated 

in Kier v. County School Board of Augusta County, 249 F. Supp.

239 (1966) at 245:
"[T]he presence of all Negro teachers in a 
school attended solely by Negro pupils in 
the past denotes that school a 'colored 
school' just as certainly as if the words 
were printed across its entrance in six-inch 
letters."
Bland's statements of non-discrimmatory policy are 

suspect. Although the admissions officer testified that the 

application for admission to Richard Bland College (McNeer X #2) 

contains a statement of non-discrimination (Tr. Ill, pp» 105-106), 

he admitted on cross-examination that the application had only 

been printed within the past month and that none of the prior 

application forms had any statements which would indicate a 

non-discriminatory admissions policy at Richard Bland (Tr, III, 

pp„ 118-119), The admissions officer also disclosed that the 

current Richard Bland College catalogue (McNeer X #1) is the 

first to have a statement expressing a non-discriminatory ad­

missions policy (Tr, III, p. 117), Moreover, he admitted that 

he had never discussed Richard Bland with a olack parent (id °, 

p. 143).
The organizational structure and the appeal of Bland 

was designed to capitalize on the mores of the community in 

which Bland was located. In the words of Dr. Wendell P. Russell

(president of Virginia State College):
" * * * [W]e have a fairly well-established 
pattern of behavior that says whites go 
to white schools and blacks go to black schools,

30



and with the exception of particular situations 
and changes which have been brought about, from 
generally outside the community, these patterns 
remain»

"To translate this to Richard Bland, what I have 
been trying to say is that Richard Bland has been 
established as a predominantly white institution 
and Virginia State as a predominantly black 
institution.

"Now, the escalation of Richard Bland is going 
to mean that you have again established a com­
pletely four-year predominantly white institution. 
Virginia State then remains a predominantly black 
•institution. There is little chance within this 
geographic area for there to be any possibility 
of breaking through this pattern of behavior."
(Tr, I, pp. 101-102.)
It is fairly obvious that there are intense social 

pressures on white parents against sending their children to 

predominantly black Virginia State College, especially where 

there is a predominantly white Richard Bland right in the area 

(Tr. I, p. 10 2).
In response to gentle pressure from HEW and to this 

litigation, Richard Bland has made a few token moves to alter

its image.
V

The Proposed Escalation Of Bland Is Without 
Sound Educational Purpose

The asserted justification for the escalation of 

Richard Bland is William and Mary's opinion that "Richard Bland 

College can best serve the present and future educational needs 

of its geographic area if it is developed to the level of a 

four-year degree granting institution".

31



The assessment— to determine if Bland should be

escalated— was made only by William and Mary and Bland officials.
12/

Inasmuch as it has stewartship over Bland, William and Mary

was in effect passing judgment on its own efforts.

All of the educational expertise marshalled by the

various independent state councils, their professional staffs,

their consultants and their advisory committees gave careful

attention to the higher education problems of the Petersburg

area and they all opposed the escalation of Richard Bland. In

addition, the expertise of the HEW officials was also arrayed

in opposition to the escalation. Their main reason as set out

by Dr. McTarhaghan is that it would be educationally unsound to

overlap similar levels of degrees in the same area.

"[Tjhe reasons were . . . because of the size 
of the current institutions in the state and 
the ability of existing institutions [Virginia 
State (four-year) and John Tyler (two-year)] to 
expand to accommodate and the anticipated
enrollment growth„" (Tr. II, p , 37 .)

Moreover, the assessment made by William and Mary was 

incomplete and inadequate, Only the resources of Richard Bland 

were examined, No attempt was made to examine the resources and 

strengths of the existing four-year institutions serving the 

area. Virginia State, the institution considered by the state 

and federal agencies as the four-year institution best capable 

of meeting the needs of the area, was not even considered (Tr.

Ill, pp. 55-57).

12/ Dr. Paschall also testified that William and Mary felt that 
it had responsibility for meeting the higher education needs 
of southside Virginia (Tr. Ill, pp„ 85-86).

32



It is obvious that two competing four-year institutions 

with overlapping programs in the same area would require con­

siderably more financial outlay than would one and that neither 

of them would receive as much as it would if it were there 

alone, (Tr. I, p. 104.) Hence, it is imperative thac, in order 

to meet the higher educational needs of all students in the 

region, the existing four-year institution which is capable of 

meeting those needs should be strengthened.

VI

The Proposed Escalation Of Bland Is Without
Constitutionally Acceptable Justification

The question posed here is whether, in view of its 

affirmative duty to disestablish its dual higher education 

system, Virginia can establish two schools, one black and one 

white, serving the same geographic area and offering the same 

program. In its motion to dismiss, the state argues that free 

choice would satisfy the state's constitutional obligation.

That argument is grounded on the decision m  Alabama 

State Teachers Association v. Alabama Public School and College 

Authority, supra. The Court in Alabama noted that the two 

colleges involved had two distinct and separate educational 

programs. One of the institutions placed emphasis on the 

education of teachers, whereas the other one stressed liberal 

arts. In the instant case, however, the escalation of Richard 

Bland to a four-year school alongside the existing four-year 

college at Virginia State would be duplicating at Richard Bland

33



a part of the curriculum which is presently available at Virginia 

State, No justification can be perceived for the proposed 

escalation except making available for white students a 

"separate" educational facility.

Significantly in Alabama, the school to be expanded—  

Auburn— had the wider breadth of courses and higher admission 

standards and would therefore be more suitable for expansion. 

Here, the situation is quite dissimilar. In Alabama there was 

some evidence that the preference for Auburn's offerings over 

those of Alabama State was based on educational rather than on 

racial grounds inasmuch as the College Authority had rejected 

an offer to operate the new program from Troy State University, 

a white institution which like Alabama State had an inferior 

status. Here the evidence excludes every justification but 

race .

In Bradley v. Board of Public Instruction, (U.S.D.C.

M.D. Fla. C.A. No . 64-98, 1965) the Court ordered Gibbs Junior 

College (a black institution in St. Petersburg, Florida) and 

predominantly white St. Petersburg Junior College placed under 

the same administration; it was held that Gibbs should be grad­

ually phased out of existence because a new branch of 

St, Petersburg Junior College was being constructed in 

Clearwater, ten miles away. The court found that both junior 

colleges had racially non-discriminatory admissions policies, 

but that Gibbs' facilities were inferior. The consolidation was 

ordered because if three junior colleges existed in the same

34



commuter area, blacks would probably continue to attend Gibbs, 

and the two branches of St, Petersburg Junior College would 

probably be predominantly white.

VII

The Escalation Of Bland Should Be Enjoined

In the years ahead, a large number of commuting 

students (of both races) in the geographic area served by 

Virginia State and Richard Bland will be entering college. Many 

of the graduates of the four new two-year community colleges 

located in the area will be seeking a four-year institution to 

complete their requirements for a bachelor's degree.

These students should not have to choose between a 

virtually all-white institution and an overwhelmingly predomi­

nantly black institution. Such would be the choice if Bland is 
permitted to escalate.

The state may not maintain one set of schools intended 

to serve white students and another to serve black students. As 

with elementary and secondary education, the system of higher 

education must be one "without a 'white' school and a 'Negro' 

school, but just schools". Green v. County School Board, supra, 
at 442.

The testimony of the persons familiar with the 

geographic area indicated that it would be extremely difficult 

to secure the attendance of many white students to Virginia State 
College if Bland is escalated to four-year status.

3 5



The defendants contend that their obligation is met if 

students in the area can choose between Bland and Virginia State. 

In Sanders v. Ellington, supra, the district court found that 

the State of Tennessee was maintaining a dual system of higher 

education throughout the state and that there is an affirmative 

duty upon the state to dismantle this dual system (citing 

Green). More specifically, the court held that an open door 

policy "does not discharge the affirmative duty imposed upon the

state by the Constitution, where, under the policy, there is no
»

Igenuine progress toward desegregation, and no genuine prospect 

of desegregation". 288 F. Supp. at 942. In defining the duty 

of the defendants in regard to the one traditionally clack 

college operated by the state, the court said:

c . the one thing that is absolutely 
essential is a substantial desegregation 
of that institute by whatever means can be 
devised by the best minds that the State of 
Tennessee can bring to it." 288 F. Supp, 
at 943,

VIII

Richard Bland Should Be Merged With Virginia 
State Or Put In The Community College System

In Prayer C of the.r complaint, plaintiffs urge this 

court to require the defendants to provide for the merger of 

Richard Bland into Virginia State College, The evidence ad­

duced herein supports that relief. Many witnesses testified 

that even as a two-year institution Bland is competing with 

Virginia State for students for the first two years of their 

higher education and that the Bland program is a duplication

36



of that offered at Virginia State. See Bradley v. Board of 

Public Instruction, supra, where merger of two junior colleges 

were ordered. See also Sanders v„ Ellington, supra; and Green 

v„ County School Board, supra.

The plaintiffs recognize the impressive educational 

evidence recommending the transfer of Bland to the State 

Community College System. The state's ten-year "Master Plan" 

for Higher Education and "The Higher Education Study Commission" 

report both made such a recommendation, and the State Council of 

Higher Education still adheres to that view. j

Plaintiffs believe that this record clearly indicates 

that although the State Council of Higher Education and the 

other official bodies have done an excellent job in weighing all 

of the other educational factors, they have completely failed to 

take into account the state's affirmative obligation to take 

steps which realistically promise to work to dismantle the dual 

system.

In any event, this court should not permit Richard 

Bland to be escalated into a four-year institution "separate" 

from the traditionally black Virginia State College,

37



IX

The State Council ShouLd Be Required To 
~Devise And Submit A Plan, Whereby The 

Racial Identiflability Of State Supported 
Colleges And Universities Will Be Eliminated

Prayer C of the Complaint requests this Court to

require the defendants "to provide for and effectuate the

racial desegregation of the several colleges and universities

maintained by the Commonwealth of Virginia . . . "  That such
relief is proper has been shown by the cases cited herein. See

Sanders v. Ellington, supra; Green v, County School Board,

supra; Bradley v. Beard of Public Inst ruction, supr a,

The statutes of Virginia have designated the defendant

State Council of Higher Education for Virginia as the agency to

coordinate its system of higher education. Moreover, the

evidence has demonstrated that the State Council is the one

agency with the facilities, resources and expertise to prepare

a state-wide plan of desegregation. This Court should now order 
that
/the State Count:' prepare and file a plan whereby each of 

the institutions of higher learning will be desegregated; that 

the plaintiffs be afforded an opportunity to take exceptions to 

the plan, if they be so advised; and that any necessary parties 

for the effectuation of such plan be brought before the Court

X

The Defendants Should Be 
Required To Pay Costs AncT Reasonable 

Attorneys" Fees To Plaintiffs' CounseJ

Here, the plaintiffs are seeking to vindicate federal

constitutional rights in the important area ot public higher

education, Once again, the State of Virginia and the officials

_ 38 _



C E R T I F I C A T E

I certify that copies of the foregoing brief were 

mailed to R. D. Mcllwaine, III, Esquire, P. 0. Box 705, Peters­

burg, Virginia 23803, counsel for Board of Visitors of William 

and Mary in Virginia, et al; Edward S. Hirschler, Esquire, and 

Everette G. Allen, Jr., Esquire, 2nd Floor, Massey Building, 

Fourth and Main Streets, Richmond, Virginia 23219, counsel for 

The Visitors of Virginia State College; William G. Broaddus, 

Esquire, Assistant Attorney General, Supreme Court Building, 

Richmond, Virginia 23219; and to the Honorable John D. Butzner, 

Jr., Richmond, Virginia; the Honorable Walter E. Hoffman, 

Norfolk, Virginia; and the Honorable Robert R. Merhige, Jr., 

Richmond, Virginia, members of Three-Judge Court, this 25th 

day of January, 1971.

40



APPENDIX I

COMPARISON OF FALL 1969 HEADCOUNT WITH FALL 1970 HEADCOUNT 

IN VIRGINIA STATE-CONTROLLED COLLEGES: GROWTH IN BLACK ENROLLMENT

1969 1969 % 1970 1970 °Z

Four-Year Colleges and
A l l  Races

Universities:
Black Black All Races Black Black

C . Newport- 1,410 49 3 s 1,828 75 4.1
C l. Valle/ 746 3 0-4- 812 8 1.0
George Mason 1,925 5 0.3 2,456 16 0.7
Longwood 1,951 13 0 7 2,239 17 0.8
Madison 3,803 21 C 6 4,033 31 0.&
MWC 2,166 16 0  7 2,165 25 l .z
Norfolk State 4,644 4,569 98.4 5,202 5,082 97.7
Old Dominion 9,047 120 / . i 9,668 140 l . i
Radford 3,954 45 M 4,159 53 1.3
U. Va. 9,642 134 I A 10,695 240 2.2
VCU 13,853 516 3,7 14,211 1,039 7.3
VMI 1,142 7 o.e 1,130 13 l . l
VPISU 10,990 75 0-7 12,014 85 0.7
Va. St. 2,675 2,589 96.8 2,948 2,728 92.5
W&M 4,871 35 0.7 5,319 45 0.8

Total Four-Year 

Two-Year Branches:

72,819 8,197 II. 3 78,879
*

9,597 l 2.2

Eastern Shore 132 2 1.5 118 5 A  2.
Patrick Henry 340 14 i . l 360 31 6 .6
Richard Bland 706 8 l . l 836 15 / .8

Total Branches 1,178 24 2.0 1,314 51 3.9

1969 1970
Black and Black and

1969 Other °7o 1970 O ther Vo
Community C o lleg es : All Races Minorities B lackA II Races M inorities Black

Blue Ridge 1,254 38 3 0 1,315 48 3.7
C entral V a . 1,456 150 10.3 1 ,664 131 7 .9
Dabney S . Lancaster 551 28 S . l 564 38 6 .7
D an v ille 1,301 141 10.8 1,664 239 >4.4-
Germ anna — — 383 49 1 2 .8
John Tyler 1 ,898 323 n o 1,852 385 2 0 .8
Lord Fairfax — — 566 40 7. 1
N ew  River 394 9 2  3 637 26 4 .1
Northern V a . 7 ,6 2 9 311 4 .1 9 ,7 7 9 655 6 . 7
Southside V a . — —

1A
217 58 2 6 .7

Southwest V a . 838 12 899 20 2 . 2
Thomas Nelson 1,832 199 10. 9 2 ,2 0 4 362 I 6 A
Tidew ater 1 ,450 122 8 .4 1 ,849 252 13 - 6
V a . Highlands 232 4 1.7 561 32 5 .7
V a . Western 2 ,1 4 2 107 5.0 2 ,7 5 4 197 7 . 2
W ythev ille 1 ,059 34 3 .2 932 22 2 . 4  <

Total Community Co lleges 2 2 ,0 3 6 1,478 6.7 2 7 ,8 4 0 2 ,5 5 4 9 . 2

Less M inorities O ther than Black 111 0,5 392 I A
Black M inority Enrollment 1 ,367 6 1 % 2 ,1 6 2 7 . S

Total -  A ll Institutions 96,033 9,588 10.0 108,033 11,810 / 0.9

N o te : A n alysis  of data co llected  from Virginia institutions, 1970.
>



A P P E N D I X I I

A. LIST OF INTERROGATORIES AND ANSWERS

1. Plaintiffs' Interrogatories to Defendants Visitors 
of Virginia State College, Board of Visitors of 
the College of William and Mary and James Carson, 
President of Richard Bland College, served on 
October 28, 1970.

2. Answers to Interrogatories served on William and Mary 
College and James Carson received by plaintiffs in 
November, 1970.

3. Answers to Interrogatories served on Virginia State 
College mailed to plaintiffs on December 4, 1970.

B. TRANSCRIPTS

1. Transcript I (Tr. I) - Depositions of Elgin M. Lowe,
Mabel C. Mortcastle, Robert M. 
Hendrick, Jr., James F.
Nicholas, Edwin L. Smith and 
Wendell P. Russell (January 15, 
1971)

2. Transcript II (Tr. II) - Depositions of Roy E.
McTarnaghan (January 15, 1971)

3. Transcript III (Tr. Ill) - Depositions of Davis Y.
Paschall and James B. McNeer 
(January 18, 1971)

4. Transcript IV (Tr. IV) - Depositions of Roy E.
McTarnaghan (continuation of 
Tr. II) (January 18, 1971)

C. LIST OF EXHIBITS

Plaintiffs
#1 - (A to I) Graduate Aid Fund - Annual Reports 

#2 - Virginia State College Gazette 

#3 - Richard Bland College Catalog
#4 - Virginia's State Plan Submitted by Governor to 

HEW in December, 1970.

#5 - Table II (Expanded) of Plan Submitted by Governor



#6 - Report of Projected Number of Transfer Students 
from Community Colleges to State Controlled 
Four Year Colleges for 1971, 1972 and 1973

#7 - Comparison of Fall 1969 Head Count with Fall 1970 
Head Count: Growth in Black Enrollment

#8 - Virginia Colleges and Universities - Fall 1970

#9 - Virginia's Outline of State Plan (for desegregation)

#10 - The Virginia Plan for Higher Education

#11 - Records of State Council of Higher Education Dealing 
with Escalation of Richard Bland College

#12 - State Council of Higher Education - Degrees 
Conferred

A. 1965-66
B. 1966-67
C. 1967-68
D. 1968-69

#13 - Virginia's State System of Higher Education Selected 
Characteristics Degree Programs and Student Fees

A. 1966-67
B. 1967-68
C. 1968-69
D. 1970-71

#14 - Biennial Report of State Council of Higher Education 
to the Governor and General Assembly

A. January 1960
B. September 1961
C. 1962-64
D. 1964-65
E. 1966-68
F. 1968-70

#15 - institutions of Higher Education in Virginia

A. For 1969-70
B. For 1968-69

Defendant Virginia State College 

#1 - Document of City Print-Out 

#2 - Document of County Print-Out



#3 - Map of Virginia (Showing 50 miles radius of 
Petersburg)

#4 - Summary of Exhibits #1 and #2

#5 - January 11, 1971: Students who have transferred
from Richard Bland Community College for the 
years 1965-1971

#6 - Virginia State College 1970-71 Breakdown Report 
of Faculty (by race)

#7 - state Council of Higher Education for Virginia 
Degrees conferred

#8 - State Council of Higher Education for Virginia - 
System of Higher Education

Defendants William and Mary College and
James Carson, President of Richard Bland College

#1 - Paschall - Statement of Policy Regarding status 
of Bland and Newport (February 11, 1966)

#2 - Paschall - Resolution: Escalation of Richard
Bland (February 9, 1970)

#3 - Paschall - Project Higher Education Enrollment in 
Virginia: Fall 1972 and Fall 1977

#4 - Paschall - Geographical origins of Bland Students

#5 - Paschall - Geographical origins of C. Newport 
Students

#6 - Paschall - Geographical origins of Clinch Valley 
Students

#7 - Paschall - Geographical origins of George Mason 
Students

#1 - McNeer - Richard Bland College Catalog, 1970-71

#2 - McNeer - Bland's Application for Admission

#3 - McNeer - Letter of April 28, 1970, to Principal of 
Matoaca High School

- McNeer - Undated letter from Bland relative to 
financial aid

#4



A P P E N D I X  I I I

STIPULATIONS

PROPOSED BY PLAINTIFFS

1. Stipulation Number I

2. Stipulation Number II



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ETHEL M. NORRIS, etc., et al :

v. : CIVIL ACTION

STATE COUNCIL OF HIGHER EDUCATION : NO. 365-70-R
FOR VIRGINIA, et al :

STIPULATION NUMBER I

It is hereby stipulated and agreed by and between the 

undersigned attorneys for the respective parties hereto as 

follows:

A

That the infant plaintiffs Ethel M. Norris, Deborah 

Farley and Brenda A. Cole are black and are citizens of the 

United States and of the Commonwealth of Virginia and reside 

in the City of Petersburg and that each of them is a high 

school student and expects to attend college;

B

That the plaintiffs Portia N. Turner, Beverly R. 

Mason, Claude Stevens and Laura Ann White are black and are 

citizens of the United States and of the Commonwealth of 

Virginia and are students at Virginia State College;

C

That the plaintiffs James D. Beck, Florence Saunders 

Farley, George W. Henderson, Sam M. Moffett, Peter B. Nemenyi 

and Carey E. Stronach are citizens of the United States and of



the Commonwealth of Virginia and that each of them is an 

instructor at and a member of the faculty of Virginia State 

College. Florence Saunders Farley and George W. Henderson are 

black and the other named faculty members are white.

Of Counsel for Ethel M. Norris, et 
al, Plaintiffs

C Counsel for the Board of Visitors 
of the College of William and Mary 
in Virginia

Of Counsel for The Visitors of 
Virginia State College

Of Counsel for State Councel of 
Higher Education for Virginia, et
al

Approved, , 1971

2



IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

ETHEL M. NORRIS, etc., et al :
V. : CIVIL ACTION

STATE COUNCIL OF HIGHER EDUCATION : NO. 365-70-R
FOR VIRGINIA, et al :

STIPULATION NUMBER II

It is hereby stipulated and agreed by and between the 

undersigned attorneys for the respective parties hereto as
follows:

A

That Virginia State College, at Petersburg, first

named Virginia Normal and Collegiate Institute, was founded in 

1882 pursuant to an Act of Incorporation approved by the General 

Assembly of Virginia on March 6, 1882 and that it bore the name
Virginia State College for Negroes from 1930 to 1946;

B

That the Commonwealth of Virginia maintains fifteen

(15) four year colleges or universities or divisions thereof,
viz :

The College of William and Mary in Virginia at 
Williamsburg

Old Dominion University at Norfolk 

Virginia State College at Petersburg 

Norfolk State College at Norfolk 

Longwood College at Farmville



Madison College at Harrisonburg

The University of Virginia at Charlottesville

Mary Washington College of the University of Virginia 
at Fredericksburg

Clinch Valley College of the University of Virginia at 
Wise

George Mason College of the University of Virginia at 
Fairfax

The Virginia Polytechnic Institute and State University 
at Blacksburg

j
The Radford College at Radford

The Virginia Military Institute at Lexington

Virginia Commonwealth University at Richmond;

C

That formerly the Radford College, at Radford, was 

Radford College, Women's Division of the Virginia Polytechnic 
Institute;

D

That Norfolk State College at Norfolk was founded in 

1944 as a division of the then Virginia State College for 

Negroes;

E

That Richard Bland College of the College of William 

and Mary, at Petersburg, was established pursuant to Chapter 56,
I

Acts of the General Assembly, 1960, wherein it is identified as 

the Division of Petersburg of the College of William and Mary in 

Virginia;

F

That Richard Bland College of the College of William
2



and Mary, at Petersburg, presently offers certain courses con­

sidered appropriate for first year college students and for 

second year college students and a smaller number of courses 

considered appropriate for third year college students;

G

That Virginia State College offers a far wider range 

of courses than does Richard Bland College;

H
That the several courses of instruction, with a few 

exceptions, which have been developed and made available at the 

Richard Bland College of the College of William and Mary, at 
Petersburg, had been and are available at Virginia State College, 

at Petersburg;
I

That the faculty and student body of Richard Bland 

College are now predominantly white and have been predominantly 

white since its inception;

J

That the faculty and student body of Virginia State 

College are now predominantly black and-have been predominantly 

black since its inception;

K

That as early as 1967 and without deviation thereafter 

the State Council of Higher Education for Virginia has 

recommended that Richard Bland College be incorporated into the 

community college system;

3



The answers of either of the defendant to the interrog­

atories served by the plaintiffs are accepted as true by each of 

the defendants.

Of Counsel for .Ethel MT Norris, et 
al, Plaintiffs

Counsel for the Board of Visitors 
of the College of William and Mary 
in Virginia

Of Counsel for the Visitors of 
Virginia State College

Of Counsel for State Council of 
Higher Education for Virginia, et 
al

Approved, , 1971



I