Riddick v The School Board of the City of Norfolk Writ of Certiorari

    No. 85-

I n the

i>uprrmr (tort of %  Imfrfu ^tatro
October T erm, 1985

P aul R. R iddick, Jr ., et al.,

v.
Petitioners,

T he School B oard of the City of Norfolk, et al.

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

FOR THE FOURTH CIRCUIT

Henry L. Marsh, III 
S.W. Tucker 
Randall G. Johnson 
H ill, Tucker & Marsh 

509 North 3rd Street 
P.O. Box 27363 
Richmond, Virginia 23261 
(804) 648-9073

George B. L ittle 
Elizabeth Turley 
Timothy M. K aine 
Little, Parsley & Cluverius, PC 

1300 Fed. Reserve Bank Bldg. 
P.O. Box 555 
Richmond, Virginia 23304 
(804) 644-4100

Gwendolyn Jones Jackson 
P.O. Box 622 
Norfolk, Virginia 23501 
(804) 622-9031

*Julius LeV onne Chambers 
James M. Nabrit, III 
Napoleon B. W illiams, Jr.

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

* Counsel of Record

Attorneys for Petitioners



QUESTIONS PRESENTED

I. Whether a public school system that 
has been declared "unitary" only after 
eliminating all one-race schools through a 
desegregation plan conforming to Swann v. 
Charlotte-Mecklenburg Board of Education, 
401 U.S. 1 (1971), will violate its 
constitutional duty to eradicate racial 
segregation as announced in Brown v. Board 
of Education, 347 U.S. 483 (1954), if it 
then dismantles the desegregation plan 
that made it "unitary" and assigns almost 
40% of black elementary pupils to ten 
all-black schools which existed prior to 
the unitary plan?

i



II. Does the proposed plan violate the 
Fourteenth Amendment on this record where: 

(a) It is undisputed that the plan 
will have a substantial segregative effect 
on thousands of pupils who now attend in­
tegrated schools, by placing two-thirds of 
white elementary pupils in 14 majority 
white schools and 39% of blacks in ten 97 
to 100% black schools; and

(b) The school board adopted the 
plan to serve the eiplictly articulated 
racial purpose of increasing the number of 
white pupils attending the Norfolk public 
schools, and this is to be achieved by 
minimizing the number of blacks attending 
schools with whites by creating 14 schools 
having over 50% white pupils in accord

ii



with the board's public opinion poll show­
ing that white parents (but not black par­
ents) opposed sending their children to 
schools where they were less than a major­
ity?

LIST OF PARTIES
1. The named plaintiffs in this cer­

tified class action are listed below:

Paul R. Riddick, Jr. and Phelicia 
Riddick, infants by Paul R. Riddick, 
their father and next friend;
Cynthia C. Ferebee, Johnny Ferebee, 
Gary Ferebee, and Wilbert Ferebee, 
infants, by Rev. Luther M. Ferebee, 
their father and next friend;
Anita Fleming, infant, by Blanche 
Fleming, her mother and next friend;
Darrell McDonald and Carolyn Mc­
Donald, infants, by Ramion McDonald, 
Sr., their father and next friend;
Eric E. Nixon and James L. Nixon, in­
fants, by Patricia Nixon, their 
mother and next friend;

- iii-



Johnny Owens, Trent Owens, Myron 
Owens, Shawn Owens, and Antonio 
Owens, infants by Annette Owens, 
their mother and next friend;
Paul R. Riddick, Rev. Luther M. 
Ferebee, Blanche Fleming, Ramion 
McDonald, Sr., Patricia Nixon, and 
Annette Owens.

The district court certified a plain­
tiff class consisting of "all present and 
future black schoolchildren in the public 
school system of the City of Norfolk, Vir­
ginia" pursuant to Rules 23(a)(1) and 23 
(a)(2) Fed. R. Civ. P.

2. The defendants are the School 
Board of the City of Norfolk, and the mem­
bers of the school board sued in their of­
ficial capacity. The individual defen­
dants are Thomas G. Johnson, Jr., Dr. John 
H. Foster, Dr. Lucy R. Wilson, Jean C. 
Bruce, Cynthia A. Heide, Robert L. Hicks, 
and Hortense R. Wells. Mr. G. Wesley 
Hardy replaced Dr. Foster on the Board.

iv -



QUESTIONS PRESENTED .............  i
LIST OF PARTIES ........... ...... iii
TABLE OF AUTHORITIES ............  vii
OPINIONS .........................  2
JURISDICTION ..................... 2
STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED ........  3
STATEMENT OF THE CASE ...........  4

Introduction ...............  4
The Beckett/Brewer Case,

1956-1975 .............  8
The system of segregation prior

to the 1971 P l a n . 13
The 1971 Desegregation Plan.. 15
The Proposed Plan ..........  17
The District Court Decision.. 26
The Court of Appeals

Decision ..............  30

TABLE OF CONTENTS
Page

- v -



Page

REASONS FOR GRANTING THE WRIT .... 33
I. THE CASE PRESENTS QUES­

TIONS OF OBVIOUS NATIONAL 
IMPORTANCE WHICH ARE 
BOUND TO ARISE IN EVERY 
PAST, PRESENT OR FUTURE 
SCHOOL DESEGREGATION 
CASE ...................... 33

II. THE DECISIONS BELOW ARE 
INCONSISTENT WITH THE 
PRINCIPLES OF SWANN V.
BOARD OF EDUCATION AND
OTHER DECISIONS BY THIS
COURT ..................... 41

III. THE DECISIONS BELOW CON­
FLICT WITH THE PRINCIPLES 
OF THIS COURT'S KEYES, DAYTON,
AND COLUMBUS DECISIONS DE­
FINING UNCONSTITUTIONAL SEG­
REGATIVE ACTIONS, AND WITH 
SCOTLAND NECK AND OTHER CASES 
REJECTING‘“WHITE FLIGHT" AND 
OPPOSITION TO DESEGREGATION 
AS A JUSTIFICATION FOR
SEGREGATION ..............  51

CONCLUSION ....................... 58

vi



TABLE OF AUTHORITIES
Cases Page
Arlington Heights v. Metro.

Housing Corp., 429 U.S. 252
(1977) ...................... 52

Beckett v. School Board of the 
City of Norfolk, 2 Race 
Relations Law Reporter 337 
(Feb. 12, 1957) ............  5

Beckett v. School Board of the 
City of Norfolk, 3 Race 
Relations Law Reporter 
942-964 (1958) .............  5

Beckett v. School Board of the 
City of Norfolk, 3 Race 
Relations Law Reporter 
1155 (E.D. Va. 1958); 
affirmed 260 F.2d 14 (4th
Cir. 1958) .................  5,9

Beckett v. School Board of the 
City of Norfolk, 5 Race 
Relations L. Rep. 407 
(Oct. 23, 1959) ............  6

Beckett v. School Board of the 
City of Norfolk, 9 Race 
Relations Law Reporter 
1315 (E.D. Va. 1964); 
vacated and remanded
sub, nonu ......... ......... 6,9

- vii -



Page
Beckett v. School Board of the 

City of Norfolk, 11 Race 
Relations Law Reporter 
218 (E.D. Va. 1965) ........  6

Beckett v. School Board of the 
City of Norfolk, 11 Race 
Relations Law Reporter 
1273 (E.D. va. 1966) .......... 6

Beckett v. School Board of City 
of Norfolk, 148 P.Supp. 430 
(E.D. Va.), affirmed 246 
F.2d 325 (4th Ci'r.)' c^rt. 
den. 355 U.S. 855 (1957) _____ 5,8

Beckett v. School Board of the 
City of Norfolk, 181 
F.Supp. 870 (E.D. Va.
1959) ....................... 6

Beckett v. School Board of the
City of Norfolk, 185 F.Supp.
459 ( 1959) ................  6

Beckett v. School Board of the
City of Norfolk, 269 F.Supp.
118 (E.D. Va. 1967); supple­
mental memorandum 12 Race 
Rel. L. Rep. 867 (June 2,
1967)   6

viii



Page

Beckett v. School Board of the
City of Norfolk, 302 F.Supp.
18 (E.D. Va. 1969) .........  6

Beckett v. School Board of the
City of Norfolk, 308 F.Supp.
1274 (E.D. Va. 1969) .......  6,10

Brewer v. School Board of the 
City of Norfolk, 349 F.2d 
414 (4th Cir. 1965) ........  6,10

Brewer v. School Board of the 
City of Norfolk, 397 F.2d 
37 (4th Cir. 1969) .........  6,10

Brewer v. School Board of the 
City of Norfolk, 434 F.2d 
408 (4th Cir. 1970) cert. 
den. 399 O.S. 929 (19757 ___  6,11,13

Brewer v. School Board of City 
of Norfolk, 456 F.2d 943 
(4th Cir.), cert, den. 406
O.S. 933 (1972)' .......  7,12

Brewer v. School Board of the 
City of Norfolk, 500 F.2d 
1129 (4th Cir. 1974) .......  7

ix



Page
Brewer, sub, nom. Adams v. School 

District No. 5, Orangeburg
Co. S. C., 444 F.2d 99 
(4th Cir.) en banc; cert. den.
404 O.S. 912 (1971) ........  7,11

Brown v. Board of Education, 347
O.S. 483 (1954) ........  8,34,37,57

Columbus Board of Education v.
Penick, 443 O.S. 449
(1979) ..................... 31,35,49

Cooper v. Aaron, 358 O.S. 1
(1958) ...................... 57

Davis v. Board of School Com­
missioners of Mobile County,
402 O.S. 33 ( 1971 ) .........  11,35

Dayton Board of Education v.
Brinkman, 433 O.S. 406
(1977) (Dayton I) ..........  49

Dayton Board of Education v.
Brinkman, 443 O.S. 526
(1979) (Dayton II) .....  31,35,49,50

Dowell v. Board of Education 
of Oklahoma City Public 
Schools, 606 F.Supp. 1548 
(W.D. Okla. 1985) ..........  38

x -



Duckworth v. James, 267 F.2d
224 (4th Cir. 1959) ........  5,9

Farley v. Turner, 281 F.2d 131
(4th Cir. 1960) ............  6,9

Gomillion v. Lightfoot, 364
U.S. 339 (1960) ............  52

Green v. County School Board,
391 U.S. 430 (1968) ......  27,32,35

Harrison v. Day, 200 Va. 439,
106 S.E.2d 636 (1959) ......  5

Hill v. School Board of the City 
of Norfolk, 282 F.2d 473 
(4th Cir. 1960) ............  6

James v. Almond, 170 F.Supp. 331
(E.D. Va. 1959) ............  5,9

James v. Duckworth, 170 F.Supp.
342 (E.D. Va. 1959); affirmed 
267 F.2d 224 (4th Cir.
1959) ....................... 5

Keyes v. School District No. 1,
413 U.S. 189 (1973) ___  27,32,44,56

Monroe v. Board of Commissioners,
391 U.S. 450 (1968) .. 32,35,40,53,57

Spangler v. Pasadena, 611 F.2d
1239 (9th Cir. 1979) .......  31

Page

- xi



Page
Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S.
1 (1971) .................... passim

United States v. Scotland Neck 
Board of Education, 407
U.S. 484 ( 1972) ............  28,32,

35,53,54,57
Yick Wo v. Hopkins, 118 U.S. 356

(1886) ...................... 52
Statutes and Constitutional 
Provision
Fourteenth Amendment to the 

Constitution of the
United States ..............  3

Statutes
28 U.S.C. Section 1254(1) .......  3
28 U.S.C. Section 1331 ..........  2
28 U.S.C. Section 1343(3) .......  2
28 U.S.C. Section 1343(4) .......  2
42 U.S.C. Section 1981 ...........  2
42 U.S.C. Section 1983 ..........  2
42 U.S.C. Section 1988 ..........  2

xii



Page
Other Authorities
Department of Justice Press

Release dated February 18,
1986 ........................ 38

- xiii



No. 85- ____
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1985

PAUL R. RIDDICK, JR. et al,
Petitioners,

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

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

The petitioners Paul R. Riddick, Jr. 
et al. respectfully pray that a writ of 
certiorari issue to review the judgment 
and opinion of the United States Court of



2

Appeals for the Fourth Circuit, entered in 
the above-entitled proceeding on February 
6, 1986.

OPINIONS BELOW
The opinion of the Court of Appeals 

for the Fourth Circuit is reported at 784 
F.2d 521, and is reprinted in the appendix 
hereto, p. 1A, infra.

The Memorandum Opinion of the United 
States District Court for the Eastern 
District of Virginia (MacKENZIE, C.J.), 
dated July 9, 1984 is reported at 627
F.Supp. 814 (E.D. Va. 1984). See appendix 
p. 99A, infra.

JURISDICTION
Petitioners brought suit in the 

Eastern District of Virginia invoking 
federal jurisdiction under 42 U.S.C. 
sections 1981, 1983 and 1988, and under 28 
U.S.C. sections 1331, 1343(3) and 1343(4).



3

On July 9, 1984, after a trial on the 
merits, the Court denied petitioners' 
prayer for injunctive relief.

On petitioners' appeal, the Fourth 
Circuit on February 6, 1986 entered a 
judgment and opinion affirming the 
District Court. A timely petition for 
rehearing and suggestion for rehearing en 
banc was denied March 19, 1986. App. 
158A, infra.

The jurisdiction of this Court to 
review the judgment of the Fourth Circuit 
is invoked under 28 U.S.C. section 
1254(1).

STATUTES AND CONSTITUTIONAL 
PROVISIONS INVOLVED

This case involves the equal protec­
tion clause of the Fourteenth Amendment to 
the Constitution of the United States.



4

STATEMENT OP THE CASE 
Introduction

This class action was filed in May 
1983 by a group of black parents seeking 
an injunction to prevent the Norfolk 
School Board from dismantling a desegre­
gation plan for elementary pupils and 
changing ten currently integrated schools 
into one-race schools which will range 
from 97 to 100% black and average 99% 
black. Both courts below have approved 
the proposed plan, which would assign 39
percent of Norfolk's black elementary

1
students to the ten all-black schools. 
The same ten schools were all-black in 
1969 prior to the final desegregation plan 
ordered by the courts in a prior case in

 ̂ About 59% of the pupils are black. It was 
estimated that 4738 black and 54 white 
children would attend the 10 black 
schools. The remaining 26 elementary 
schools would have 8403 white and 7416 
black pupils.



5

1971. Thus, after 15 years of desegrega­
tion, Norfolk's schools will again become 
substantially segregated unless this Court 
intervenes.

In a historic prior lawsuit which
lasted 19 years black parents successfully
overcame Virginia’s official policy of
"massive resistance" and desegregated the

2
public schools of Norfolk, Virginia. That

Opinions in the earlier case and 
related cases were:

1. Beckett v. School Board of City 
of Norfolk, 148 F.Supp. 430 (E.D. Va.), 
affirmed~246 F.2d 325 (4th Cir.) cert. 
den. 355 U.S. 855 (1957).

2. Beckett v. School Board of the 
City of Norfolk, 2"Race Relations Law 
Reporter 337 (Feb. 12, 1957).

3. Beckett v. School Board of the 
City of Norfolk, 3 Race Relations Law 
Reporter 942-964 (1958).

4. Beckett v. School Board of the 
City of Norfolk, 3 Race Relations Law 
Reporter 1155 (E.D. Va. 1958); affirmed 
260 F.2d 18 (4th Cir. 1958).

5. James v. Almond, 170 F.Supp. 
331 (E.D.Va. 1959); 3-Judge Court.

6. Harrison v. Day, 200 Va. 439, 
106 S.E.2d 636 (1959).

7. James v. Duckworth, 170 F.Supp.
342 (E.D. Va. 1959); affirmed 267 F.2d 
224 (4th Cir. 1959).



litigation required ten appeals to the

8. Beckett v. School Board of the 
City of Norfolk, 181 F.Supp. 870 (E.D. 
Va. 1959). Beckett v. School Board of 
the City of Norfolk, 5 Race Rel. L. Rep. 
407 (Oct.23, 1959).

9. Beckett v. School Board of the 
City of Norfolk, 185 F.Supp." 459 (1959); 
affirmed sub, nom. Farley v. Turner, 
281 F.2d 131 (4th Cir. 1960).

10. Hill v. School Board of City
of Norfolk;;; 282" F.2d 473 (4 th Cir.
T § 60" )  .

11 • Beckett v. School Board of the 
City of Norfolk, 9 Race Relations Law 
Reporter 1315 (E.D.Va. 1964); vacated 
and remanded sub. nom. Brewer v. 
School Board of the City of Norfolk, 349 
F.2d 414 (4th Cir. 1965).

12. Beckett v. School Board of the 
City of Norfolk, 11 Race Relations Law 
Reporter 218 (E.D. Va. 1965).

13. Beckett v. School Board of the 
City of Norfolk, 11 Race Relations Law 
Reporter 1273 (E.D. Va. 1966).

14. Beckett v. School Board of the 
City of Norfolk,'269 F.Supp. 118 (E.D. 
Va. 1967); supplemental memorandum 12 
Race Rel. L. Rep. 867 (June 2, 1967).

15. Brewer v. School Board of the 
City of Norfolk, 397 F.2d 37 (4th Cir.
1968) en bancT

16: Beckett v. School Board of the 
City of Norfolk, 302 F.Supp. 18 (E.D.Va.
1969) .

17. Beckett v. School Board of the 
City of Nor folic, 308 F.Supp. 1274 (E.D. 
Va. 1969); reversed and remanded sub. 
nan. Brewer v. School Board of the City 
of Norfolk, 434 F.2d 408 (4th tir.



7

Fourth Circuit before it finally produced
3

an acceptable desegregation plan. The 
case was concluded on February 14, 1975,
four years after implementation of a 
desegregation plan which used the tech­
niques of rezoning, pairing and busing 
approved in Swann v, Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1 (1971),
when counsel agreed to the following 
order:

It appearing to the Court that all 
issues in this action have been 
disposed of, that the School Board of 
the City of Norfolk has satisfied its 
affirmative duty to desegregate, that

1970) en banc; cert. den. 399 U.S. 929 
(1970).

18. Brewer, sub nom. Adams v. 
School Dist. No. 5, Orangeburg Co. S.C. , 
444 F.2d 99 (4th Cir.) en banc; cert. 
den. 404 U.S. 912 (197177

19. Brewer v. School Board of City 
of Norfolk, 456 F. 2d ~94 3 (4 th Cir.). 
cert, den. 406 U.S. 933 (1972).

20. Brewer v. School Board of City 
of Norfolk, 500 F.2d 1129 (4th CirT 
1974) (attorneys fees).

3 An eleventh appeal involved attorneys 
fees. See note 1 supra.



8

racial discrimination through offi­
cial action has been eliminated from 
the system, and that the Norfolk 
School System is now "unitary", the 
Court doth accordingly
ORDER AND DECREE that this action is 
hereby dismissed, with leave to any 
party to reinstate this action for 
good cause shown.

The Beckett/Brewer Case, 1956-1975.
The Norfolk school desegregation case 

began in 1956 amidst Virginia's official 
policy of "massive resistance" to Brown v. 
Board of Education, 347 U.S. 483 (1954). 
An injunction was issued and affirmed on 
appeal in 1957, but no desegregation 
occurred during the first four years after 
Brown I. Beckett, supra, 246 F.2d 325. In 
the fall of 1958, when the District Court 
finally ordered the admission of 17 black 
children to several Norfolk schools (while 
denying the similar requests of 134 
others), Virginia's Governor issued a
proclamation closing the schools Bee-



9

kett, supra, 260 F.2d 18; James v. Almond, 
supra, 170 F.Supp. 331. After state and 
federal courts simultaneously ruled the 
school closing unconstitutional (James, 
supra, Harrison v. Day, supra), Norfolk's 
City Council was enjoined to prevent the 
enforcement of resolutions cutting off 
funds to the integrated schools. Duck­
worth v, James, supra, 267 F.2d 224.

Even after the first handful of black 
children were admitted to white schools, 
the court found "the melody of massive 
resistance lingers on" (185 F.Supp. at 
462 ) , as black pupils ran a gauntlet set 
up by the state's "pupil placement board" 
laws and procedures. Farley v. Turner, 
supra, 281 F.2d 131. Progress was slow. 
By 1964, 1251 of 13,348 black children 
elected to transfer to white schools while 
the all-black schools remained intact. 
Beckett, supra, 9 Race Rel. Law Rep. 1315.



10

Plaintiffs' attempts to obtain system-wide 
desegregation and faculty desegregation 
were initially rejected. Brewer, supra, 
34 9 F.2d 414. In 1964 the board adopted 
neighborhood attendance areas, and in some 
districts allowed pupils an option to 
attend either a black or a white school. 
The neighborhood plan was amended re­
peatedly as litigation continued during 
1965-1968. See note 2 supra; Brewer, 
supra, 397 F.2d 37.

In 1 96 9 the board proposed, and the 
district court approved, implementation of 
a so-called "optimal plan of desegrega­
tion" which was an effort to create 
"middle class" schools. Beckett, supra 
308 F.Supp. 1274. The premise of the plan 
was that 30% Negro schools would be 
"optimal", and the board drew "neighbor­
hood" school zones to achieve this result 
in a few schools. The Fourth Circuit



rejected the plan in 1970 because the 
"optimal" neighborhood zones left 76% of 
the black elementary pupils attending 19 
all-black schools. Brewer, supra, 434 
F. 2d 408 . In 1970 the Fourth Circuit 
finally ordered system-wide faculty 
desegregation. Id.

In June 1971, following this Court's 
decisions in Swann v. Charlotte Meck­
lenburg Board of Education, 402 U.S. 1 
(1971), and Davis v. Board of School 
Commissioners of Mobile County, 402 U.S. 
33 (1971), the Fourth Circuit ordered the 
district court to require a plan based on 
the proposal of the Government's expert 
witness, the "Stolee C plan". See Adams, 
supra, 444 F.2d 99. The Fourth Circuit 
ordered "all techniques of desegregation, 
including pairing or grouping of schools, 
noncontiguous attendance zones, restruc­
turing of grade levels, and the trans­



12

portation of pupils." Id. at 101. The 
district court ordered such a plan 
implemented in 1971, but refused to 
require free transportation to pupils 
assigned to schools beyond walking 
distance. On a tenth appeal to the Fourth 
Circuit plaintiffs won an order requiring 
free bus transportation on the ground that 
the "Court cannot compel the student to 
attend a distant school and then fail to 
provide him with the means to reach that 
school." Brewer, supra, 456 F.2d at 947.

The school board filed annual reports 
about its implementation of the plan in 
1972, 1973, and 1974. After receiving the 
third such report, the district court 
entered the order of February 14, 1975 
quoted above. Counsel for plaintiffs and 
defendants had consented to this order. 
The case was thus concluded without any 
further evidence, or any notice to members



13

of the plaintiff class. The order did not 
dissolve or modify the court's previous 
inj unction.
The system of segregation prior to the 
1971 Plan.

Under Norfolk's 1969 desegregation
plan, one high school, five junior highs,
and 22 elementary schools were more than
90% black. Brewer, supra 434 F.2d at 410;
PX 144. Each of the 22 segregated black
elementary schools was established as part
of the system of de j ure segregation.
Sixteen of the 22 schools were 100% black.
PX 144. Eleven of these 22 schools are
still operated as elementary schools in
Norfolk, eleven others were closed between 

4
1972 and 1980.

The 93-100% black elementary schools in 
1969 which are still open are Bowling 
Park, Tidewater Park, Young Park, St. 
Helena, Chesterfield, Monroe, Roberts 
Park, Tucker, Diggs Park, Lindenwood 
and Oakwood. In addition a one-race 
black Junior High School in 1969 is now



14

Plaintiffs' attack on the board's 
present proposed plan, which is discussed 
below, focuses on ten schools which were 
all black in 1969. Nine of these schools
are located near all black public housing 
projects. All of the schools and most of 
the nearby housing projects were built 
during the period of de jure school and 
housing segregation. (PX. 163, 164, 165,
164F).

School Opened 
Chesterfield (1920) 
Tucker (1942)
Bowling Park (1953) 
Diggs Park (1953) 
Young Park (1954) 
Roberts Park (1964) 
Tidewater Park 

(1964)
Jacox (1949)

Project Opened 
Grandy Park (1953 ) 
Oakleaf Park (1942)
& Diggs Park (1952) 
Bowling Park (1952) 
Diggs Park (1952) 
Young Park (1953) 
Roberts Park (1942) 
Tidewater Park (1955)
Roberts Park (1942)
& Roberts East (1953) 
& Moton Park (1962).

operated as the Jacox Elementary school. 
The 98-100% black elementary schools 
closed between 1972 and 1980 were Carey, 
Gatewood, Goode, Liberty Park, Lincoln, 
Smallwood, Titus, Titustown, West, Lee, 
and Marshall.



15

Monroe (1903) subsidized sec.8
housing

St. Helena (1966) Bell Diamond Manor
(1970's) (Subsidized, 
§ 236)

The 1971 Desegregation Plan.
The 1971 plan eliminated all of 

Norfolk's one-race schools. From 1971 to 
the 1984 trial (and indeed to the present 
time), Norfolk has not operated any school 
which was all black or white. PX 152. The 
desegregation plan for elementary schools 
relied on the pairing and grouping 
technique. Pupils were transported both 
within single attendance areas, and 
between paired noncontiguous areas. The 
school authorities modified the plan to 
create single zone attendance areas when 
integrated residential areas developed. 
When the board made changes to the plan 
such as school closings it sought to place



16

a maximum of 70% of any race in a school, 
but the board did not make annual adjust­
ments to maintain racial balance.

5
In 1983 Norfolk's elementary schools 

were well desegregated with enrollments 
ranging from a high of 80.7% black at 
Bowling Park to 23.7% black at Sewell 
Point. All but seven elementary schools 
were reasonably close (within plus or 
minus 15 percentage points) to the 
elementary average of 57% black students.

At the time of the trial (1983-84 
school year) pupils in 12 elementary 
schools were assigned in single attendance 
areas surrounding the schools; the other 
28 elementary schools were grouped and 
paired in a pattern similar to the 1971

5 1983-84 figures are the most recent ones
in the record. The Fourth Circuit order 
denying rehearing also denied plain­
tiff's motion to supplement the record 
to add 1984-85 and 1985-86 enrollment 
statistics. App.162A.



17

plan. Agreed Ex.17(a). The plan remained 
in effect during the appeal of this case 
through the 1985-86 school year. After the 
Fourth Circuit decision the board resolved 
to implement its proposed new plan in the 
fall of 1986.
The Proposed Plan

The school board adopted the Proposed 
Plan February 2, 1983 by a 5-2 vote with 2 
of its 3 black members dissenting. The 
plan would create a contiguous single 
attendance area for each elementary school 
and break up the pairs and clusters which 
were the basis for the 1971 plan. The new 
zones did not reflect historic or func­
tional Norfolk neighborhoods and the trial 
court found that the term "neighborhood 
schools" was being used "somewhat inac­
curately". 627 F.Supp. at 817. The board 
estimated the expected racial percentages 
in each school based on initial assign-



18

merits. The trial judge credited estimates 
that 10-15% of black pupils, but very few 
whites, would elect majority-to-minority- 
race transfers by which students could 
transfer from schools enrolling over 70% 
of their race to schools where their race 
was under 50%.

The board estimated that ten schools 
will become all-black if the plan is 
implemented. The ten schools with their
racial percentages in 1969, in 1983, and 
under the proposed plan (PX. 144, 147 —
before transfers) are:

ELEMENTARY 1969 1983 PROPOSEDSCHOOLS BLACK% BLACK% BLACK%Bowling Park 100.0% 80.7% 100.0%Tidewater Park 100.0% 68.8% 100.0%Young Park 100.0% 57.1% 100.0%St.Helena 98.9% 57.7% 99.1%Chesterfield 92.9% 69.9% 99.1%Monroe 98.9% 63.3% 99.0%Roberts Park 100.0% 76.6% 98.0%Jacox (all black jr.hi) 65.0% 98.0%Tucker 100.0% 47.2% 98.0%Diggs Park 100.0% 66.7% 96.9%



19

It was estimated that 4738 black and 54
white children would attend these 10
schools. The other 26 elementary schools
would have 8403 white and 7416 black
pupils. The reciprocal effect of this
realignment would create 14 majority
white schools . (Id.):

ELEMENTARY 1969 1983 PROPOSEDSCHOOLS BLACK % BLACK % BLACK %
Fairlawn 1 .9% 64.2% 49.9%
Coleman Place 0.0% 57.2% 44.5%
Calcott 0.0% 61 .8% 40.1%
Meadowbrook 6.8% 47.8% 40.0%Taylor 0.0% 36.4% 39.9%
Willoughby 4.6% 24.3% 36.1%
Camp Allen (opened 1970) 61.1% 36.0%Sewell Pt 31 . 3% 23.7% 34.1%
Sherwood Forest 0.0% 49.1% 30.1%Oceanair 4.1% 45.8% 29.0%LittleCreek .2% 57.0% 28.0%
Tarrallton 2.2% 60.9% 22.0%Ocean View 7.5% 56.8% 17.2%
Bay View 0.0% 44.6% 15.1%

The 14 schools would enroll 5423 whites 
(64% of white elementary pupils) and 2587 
blacks and average 67.7% white.

6



20

Only about 13 of the 36 schools would 
remain reasonably close to the projected 
59% black district average. Thirty-nine 
percent of black elementary students would 
attend the 10 all-black schools and 
two-thirds of white pupils would attend 
the 14 majority white schools. Only two 
of the 22 black elementary schools which 
existed in 1969 would be integrated; the 
others are either closed or scheduled for 
resegregation. The chart at the end of 
this petition (page IB) contains the 
enrollments for each elementary school in 
1969, 1933 and under the proposed plan. 
White Flight

The District Judge found that "the 
primary objective of the Board in adopting 
the Proposed Plan" was "providing a 
response to the threat posed by white 
flight to the long term integration of the 
Norfolk school system...." 627 F.Supp. at



21

824 . In agreement with the Board's 
contention, the Court found that "as a 
result of busing, the Norfolk school 
system has lost between 6000 and 8000 
white students who otherwise would have 
enrolled there"; and that "as a result of 
white flight, the Norfolk schools are 
faced with imminent resegregation." 627 
F.Supp. at 822. The court said that "one 
of the purposes of the Proposed Plan is to 
stabilize elementary school population at 
its present ratio of black students and 
white students, roughly 60-40." Id. at 
821. The judge found "the possibility 
that the Proposed Plan would increase the 
number of white students would be a strong 
point in its favor." Id. at 822.

Before adopting the plan the board 
employed a consultant, a sociologist, Dr. 
David Armor who recommended that the board 
proceed with the plan in a report dated



22

December 1982. Dr. Armor's report 
concluded that white enrollment "declined 
at an alarming rate during the 1970's" 
because of mandatory busing policies (4th 
Cir. App. 2164); that "racial balance has 
little value if all schools are predomi­
nantly black" (JD3.); and that "there is no 
indication from Norfolk achievement test 
results that racial balance has aided the 
academic progress of its minority stu­
dents; on the contrary, it is quite 
possible that some damage was done during 
the mid-seventies." Id. at 2164-65. He 
predicted that if busing continued white 
enrollment would "drop to about 8,000 
students in 1987" (_id. at 2166) and then

7
The Armor report is Agreed Ex.43. The 
board approved the plan after it 
received Dr. Armor's report, and 
expressly relied on his predictions 
about the return of whites to the 
system, predicting an increase of 500 
white pupils the first year of the plan.
See Agreed Ex.lD, note *.

7



23

Norfolk would be "nearly 75 percent
minority and resegregated according to

8
most definitions of segregation." Id. 
The report predicted that "If a neighbor­
hood school plan is reinstated and white 
enrollment stabilizes and increases to 
1 7,000 or so over the next five years, 
then voluntary methods could meaningfully 
desegregate up to 10,000 black students 
—  including all of those black parents who 
would prefer to attend desegregated 
schools rather than their neighborhood 
schools." Id* at 2168.

Petitioners have continually contested Dr. 
Armor's white flight predictions and his 
predictions have not come true. More than 
14,000 whites and "other" races remained 
in the system each year from 1981 to 1985. 
The Fourth Circuit declined to consider 
enrollment figures for 1984 and 1985 
showing that the black-white ratio 
remained stable at about 1984 59-41
percent black/white from 1981 through the 
fall of 1985. The board opposed the 
motion to supplement the record in the 
district and appellate courts without 
challenging the accuracy of these facts.



24

Dr. Armor's predictions that the 
proposed plan would increase the number of 
white pupils in the school system rest on 
a public opinion poll he conducted for the 
board. Dr. Armor polled groups of black 
and white public school parents, white 
pre-school parents, and white private 
school parents on attitudes about the 
racial composition of schools and said:

We find that virtually none of 
the groups object to sending their 
child to a school that is half white 
and half black. Interestingly, while 
black parents do not object to being 
a minority, from 40 to 56 percent of 
white parents do object to a school 
where most of the students are black. 
Id. at 2147-2149.

He found "three-fourths of black
parents favor busing to achieve racial
balance, while two-thirds of white public
parents oppose it", and that white
opposition was even stronger among the



25

pre-school and private school parents. 
Parents were also polled about their 
intentions if busing was ended, leading 
Dr. Armor to state that "An end to busing 
alone would probably capture nearly all 
public school white parents, would nearly 
double the participation rate for pre­
school parents, and would capture about 
one-fourth of private school parents..." 
Id. at 2158. He concluded:

White parents oppose busing 
rather strongly, even those who 
participate in the current busing 
program. Only a small fraction of 
parents who are not now using Norfolk 
schools will do so if busing contin­
ues, but if it ends, it appears that 
significant fractions of non-users 
would enroll their children in 
Norfolk public schools. An end to 
busing could therefore lead to an

9

Although Dr. Armor's report does not 
mention it, his poll data actually showed 
that a majority of all Norfolk parents 
favored the present desegregation plan, 
when his results are weighted appro­
priately for the fact that the district is 
majority black. 4th Cir. App. 823.



26

increase in white enrollment, and to 
long-term stabilization of white 
enrollment, _Id. at 2163.

The District Court Decision

The district court opinion and order 
of July 9, 1984 upheld the Proposed Plan
and denied injunctive relief to plain­
tiffs. The Court reaffirmed the recitals 
in the order of February 14, 1975 dismis­
sing the Beckett/Brewer case and held 
that "the Norfolk school system displays 
today, as it did in 1975, all indicia of 
'unitariness.*" 627 F. Supp. at 819. 
Supporting its conclusion, the court said 
that the school administration was 
racially balanced, that the faculty and 
staff is mixed and that "the overwhelming 
majority of schoolchildren, of both races,
. . . attend schools whose student bodies



4

are mixed." _ld. The Court said that the 
system was " free of discrimination" in 
1975 and remains so today. Ij3. at 820 .

The court decided that the effect of 
the 1975 order was "to shift the burden of 
proof from the defendant School Board to 
the plaintiffs, who must now show that the 
1983 Proposed Plan results from an intent 
on the part of the School Board to 
discriminate on the basis of race." id. 
Citing Keyes v. School District No. 1, 413 
U.S. 189 (1973), the court defined a dual 
system as "one which is created by state 
authorities acting intentionally, with 
discriminatory purpose, to segregate the 
races." The court said cases such as 
Green v. County School Board, 391 U.S. 430 
(1968), and Swann, supra, which impose an 
affirmative duty on dual school systems to 
eliminate segregation, were inapplicable 
since Norfolk had "fully discharged its

- 27 -



28

affirmative obligation to create a unitary 
system" . <̂3. It held that plaintiffs
must prove an intent to discriminate and 
that such intent "will not be inferred 
solely from the disproportionate impact of 
a particular measure upon one race." id. 
It rejected plaintiffs' arguments that 
Swann required the board to justify 
one-race schools, saying "Swann is 
inapplicable here". Jd. at 821.

The court found that the board's 
purpose to use the new plan to attract 
white students to the system and prevent 
white flight was appropriate and indeed a 
"strong point in its favor". jDd. at 822. 
The court acknowledged that under United 
States v. Scotland Neck Board of Educa­
tion , 407 U.S. 484 (1972), white flight
will not excuse a failure to desegregate a 
dual system, but found that case also 
distinguishable because Norfolk "was



declared unitary in 1975 and the Board's 
continuing, affirmative duty to desegre­
gate was discharged at that time." Id. at 
824.

The court rejected plaintiffs' 
argument that another Board objective in 
adopting the * planV e.g. , to increase the 
level of parental involvement in the 
schools, was pretextual, and also rejected 
an argument based ©n the fact that an 
alternative board plan (Plan Tl) could 
have reduced busing while preserving 
integration. id. at 824-25. The court 
found Plan II "not viable" solely because 
of the lack of vocal support in community 
meetings; it made no finding that the plan 
was infeasible or unreasonable. Id. at 
: 2 5.

The court found that Norfolk's 15 
public housing projects and 7 subsidized 
housing projects are occupied almost

-  29 -



30

exclusively by blacks and house about 25% 
of Norfolk's black children. i£. at 826. 
Noting that the projects were built to 
eradicate slums and provide livable 
housing for low-income residents, the 
court said it "defies logic" to suggest 
that this makes the School Board respon­
sible "in some way for the fact that under 
the Proposed Plan, the racially identifi­
able black schools are located in close 
proximity to those projects." _id. at 826. 
The Court of Appeals Decision

The Fourth Circuit affirmed the 
finding that the district was now unitary 
as not clearly erroneous, and agreed with 
the district court that this shifted the 
burden of proof to plaintiffs. The Court 
acknowledged that, under Swann, school 
boards have the burden of showing that any 
one-race schools are "genuinely nondis- 
criminatory and not vestiges of past



31

segregation." 784 F.2d at 535. However,
the court declined to apply the rule of
Swann to Norfolk, holding instead that:

"Once a constitutional violation has 
been remedied, any further judicial 
action regarding student assignments 
without a new showing of discrimina­
tory intent would amount to the 
setting of racial quotas, which have 
been consistently condemned by the 
Court in the context of school 
integration absent a need to remedy 
an unlawful condition. 784 F.2d at 
538.

Judge Widener's opinion for the panel 
acknowledged that it could "find no case 
decided in the same situation as that 
before us", ( 789 F.2d at 537) and then 
rested on reasoning in a Ninth Circuit 
decision, Spangler v. Pasadena, 611 F.2d 
1239 (9th Cir. 1979). The Fourth Circuit 
expressly declined to apply the principles 
of five of this Court's major school 
decisions, Columbus Board of Education v.
Pen ick, 443 U.S. 449 ( 1979); Dayton Board



32

of Education v. Brinkman, 443 U.S. 526 
(19 7 9 ) ( Dayton II); Keyes, supra; Swann, 
supra; and Green, supra. The court said 
"all of those cases involved state 
sanctioned discriminating school districts 
that had not dismantled their dual 
systems." 784 F.2d at 539. "None had 
reached the goal of a unitary system as 
Norfolk has done." id.

The court approved the trial court's 
reasoning on the question of white flight, 
finding Scotland Neck, supra, and Monroe 
v. Board of Commissioners, 391 U.S. 450 
(1968), inapplicable because "Norfolk is 
not operating a dual school system with a 
present duty to desegregate." 784 F.2d at 
539. The court held the board's consider­
ation of white flight and its effort to 
"stabilize school integration in Norfolk" 
were "legitimate". id. at 540. The court 
also generally approved the district



33

court's findings and reasoning on the 
other issues. The court endorsed the 
proposed plan as "a reasonable attempt by 
the school board to keep as many white 
students in public education as possible 
and so achieve a stably integrated school 
system." _Id . at 543. It found the plan's 
"creating several black schools is 
disquieting" but said that "that fact 
alone is not sufficient to prove discrimi­
natory intent." Id. at 543.

REASONS FOR GRANTING THE WRIT
I.

THE CASE PRESENTS QUESTIONS OF 
OBVIOUS NATIONAL IMPORTANCE WHICH ARE 
BOUND TO ARISE IN EVERY PAST, PRESENT 
OR FUTURE SCHOOL DESEGREGATION CASE.

This is a case of enormous and 
sweeping impact. The rule of law announced 
by the courts below, would —  if followed



34

generally —  permit a very general 
resegregation of the public schools of the 
South.

During the 32 years since Brown v. 
Board of Education, supra, the federal 
courts have devoted countless hours to 
deciding hundreds of school desegregation 
cases. These decisions have eventually 
produced a measure of integration in the 
public schools of the South. Progress 
toward eradicating segregation —  typified 
in many respects by Norfolk's experience 
-- is directly traceable to this Court's 
repeated rulings implementing Brown —  
rulings which hold that school boards 
have an affirmative duty to desegregate, 
that the courts must demand desegregation 
plans that "work", that desegregation must 
not yield to public opposition, that the 
need for remedial criteria sufficiently 
specific to insure compliance justifies a



35

legal presumption against one-race 
schools, and that racially "neutral" 
assignment plans such as "neighborhood" 
attendance zones are inadequate if they 
fail to counteract the continuing effects 
of past school segregation. These are the 
principles of Green, Swann, and Davis, 
supra, which the Court reiterated and 
applied in such cases as Monroe, Scotland 
Neck, Dayton II, and Columbus, supra. It 
is these principles that the courts below 
have declined to apply to Norfolk's 
proposed plan. They have thus written a 
charter for the resegregation of the 
public schools of the South.

There can be no doubt that the 
proposed plan could not pass muster as a 
desegregation plan under Green, Swann and 
Davis. If those decisions apply, the 
invalidity of the proposed plan is obvious 
and not seriously debatable. It is only



36

by declaring that the entire series of 
precedents which are the bedrock of school 
desegregation throughout the nation are 
"inapplicable" that the courts below could 
approve Norfolk's proposed plan.

This treatment of Swann and cognate 
cases presents an issue of first impres­
sion which is bound to arise in every 
school case. At some point there must 
come a time in every desegregation suit 
when the school district is "unitary" in 
the sense that it will have carried out 
all of the judicial orders required by 
Swann and achieved at least the momentary 
termination of a dual system. Under the 
reasoning of the courts below, the arrival 
of that inevitable moment entitles each 
school district immediately to dismantle 
its desegregation plan, ignore the 
principles of Swann, and adopt a new

plan with substantial resegre—



37

gative impact, provided only that this is 
accomplished without revealing a purpose 
to "discriminate" against black pupils.

The significance of such a rule is 
manifest. It provides an easy and obvious 
way to nullify school desegregation 
decrees, threatening as a practical matter 
to undermine school desegregation plans 
everywhere. No principle of school 
desegregation law established since Brown 
is valid more than transitorily if the 
Riddick ruling stands. Every desegrega­
tion plan adopted since Brown may be 
uprooted, and we will face another 
generation of litigation over long-closed 
school cases.

Promptly after the Fourth Circuit 
decision, the U.S. Department of Justice, 
supporting the decision below, issued a 
press release listing 117 school districts 
that have been declared unitary and 47



38

districts whose orders have been "dis­
missed" . Department of Justice Press 
Release dated February 18, 1986. The
Department, which has continued to oppose 
the use of busing and other Swann reme­
dies, issued the release in an effort to 
encourage districts to emulate Norfolk. 
Oklahoma City did so even before the 
Fourth Circuit ruled, and actually
resegregated some of its schools in the 
fall of 1 985. That case is now pending 
after argument in the Tenth Circuit.
Dowell v. Board of Education of Oklahoma 
City Public Schools, 606 F.Supp. 1548 
(W.D. Okla. 1985), pending on appeal as 
10th Cir. No. 85-1886, argued March 20, 
1986.

The rule announced below also foments 
wasteful litigation in school districts
which have not yet been declared unitary. 
If the Fourth Circuit rule stands,



39

plaintiffs' lawyers have an overwhelming 
incentive to resist the closure of all 
school cases, and any acknowledgement that 
a district is "unitary", as long as 
possible, for they will know full well 
that all desegregation is potentially lost 
as soon as a district is declared "uni­
tary". The plaintiffs' lawyers who 
consented to the 1975 termination of the 
Norfolk school case could then act on the 
reasonable premise that achieving present 
compliance through a permanent injunction 
was a good enough reason to end a 19-year 
old case. They could reasonably leave 
future problems to be settled when and if 
they arose, rather than anticipating the 
prompt reversal of the plan that had 
produced compliance. The Fourth Circuit's 
Riddick doctrine would make such a 
decision irresponsible in any future case, 
because a lawyer would know that an



40

agreement that a system was unitary was 
tantamount to an agreement that it could 
be resegregated forthwith.

The importance of the case to the 
next generation of black students in 
Norfolk is also evident. The new plan is 
particularly destructive in the way it 
concentrates school segregation among 
low-income blacks who reside in all-black 
public housing projects. Almost forty 
percent of Norfolk's black elementary 
students will be segregated during the 
formative kindergarten through sixth grade 
years, if the plan is implemented, the 
board will have substantially reconsti­
tuted the situation which existed during 
the 1960's when integration was available 
only for the few blacks who took the 
initiative of transferring out of black 
schools. Monroe v. Board of Commission­
ers, 391 U.S. 450 (1968).



41

II.
THE DECISIONS BELOW ARE INCONSISTENT 
WITH THE PRINCIPLES OF SWANN V . BOARD 
OF EDUCATION AND OTHER DECISIONS BY 
THIS COURT.

We submit that the courts below erred 
in declining to apply the principles of 
Swann when judging the validity of 
Norfolk's Proposed Plan. The courts did 
not apply Swann's presumption against 
one-race schools which was announced in 
the unanimous opinion for the Court by the 

Chief Justice:
No per se rule can adequately embrace 
all the difficulties of reconciling 
the competing interests involved; but 
in a system with a history of segre­
gation the need for remedial criteria 
of sufficient specificity to assure a 
school authority's compliance with 
its constitutional duty warrants a 
presumption against schools that are 
substantially disproportionate in 
their racial composition. 402 U.S. 
at 26.



42

The courts below also declined to
require the school board to show that the
ten proposed one-race schools did not
result from past discrimination as
required in the next passage in Swann:

Where the school authority's proposed 
plan for conversion from a dual to a 
unitary school system contemplates the 
continued existence of some schools 
that are all or predominantly of one 
race, they have the burden of showing 
that such school assignments are 
genuinely nondiscriminatory. The
court should scrutinize such schools, 
and the burden upon the school 
authorities will be to satisfy the 
court that their racial composition is 
not the result of present or past 
discriminatory action on their part. 
402 U.S. at 26.

The courts below similarly failed to
judge the "adequacy" of the proposed
single-attendance-zone plan in accord with
Swann's admonition that:

"Racially neutral" assignment plans 
proposed by school authorities to a 
district court may be inadequate; 
such plans may fail to counteract the 
continuing effects of past school 
segregation resulting from discrimi­
natory location of school sites or



43

distortion of school size in order to 
achieve or maintain an artificial 
racial separation. 402 U.S at 28.

A proper application of these 
principles would surely condemn the plan 
because it is undisputed that the same ten 
schools which Norfolk now proposes to 
operate as one-race schools were previ­
ously operated as one-race all-black 
schools as part of the de jure system of 
segregation. The size and location of all 
ten schools were determined during the 
dual system. All ten schools were built 
and planned to serve the black children 
who lived nearby. Norfolk followed the 
"classic pattern of building schools 
specifically intended for Negro or white 
students." Swann, supra, 402 U.S. at 21. 
The schools are still located in the same 
all-black neighborhoods near the same 
all-black public housing projects that



44

existed under the dual system. The ghetto 
areas which existed in 1960 and 1970 
remain all-black today. The proposed 
racial composition of these schools is the 
obvious result of past discriminatory 
action on the part of the school authori­
ties, because the proposed plan substan­
tially reconstitutes the segregated 
neighborhood school plan of 1969 in those 
school areas. The plan reestablishes the 
pattern of de jure segregation in the same 
place and by the same method that existed 
previously. The school board could not 
possibly show "that its past segregative 
acts did not create or contribute to the 
current [proposed] segregated condition." 
Keyes, supra, 413 U.S. at 211.

The racial composition of these 
schools is plainly the "result of past 
discriminatory action" by school offi­
cials. The conditions which made a



45

neighborhood assignment plan inadequate 
and unacceptable in 1971 still exist: 
namely all-black ghettos adjacent to 
schools built expressly to serve those 
ghettos. Thus the reason for the Swann 
rule still exists. The fact that the 
board temporarily obeyed the prior 
injunction is not a sound basis for 
applying a different rule of law to the 
same facts which called for constitutional 
relief when the courts did apply Swann to 
Norfolk. Under Swann and Davis, none of 
the proposed plan's purposes —  preventing 
white flight, increasing parental involve­
ment, promoting neighborhood schools —  
would justify extensive segregation which 
could be readily avoided by available 
plans of integration.

The courts below held that the Swann 
inquiry whether pupil assignments are 
"genuinely nondiscriminatory" or are "the



46

result of present or past discriminatory 
action on [the State's] ... part" is 
inappropriate and inapplicable because the 
district has been "unitary" since 1975. 
But nothing in the 1 975 order did, or 
could appropriately, confer on the board 
permission to undo the very steps that 
made the system unitary. The Courts below 
held that the system is presently unitary 
because all the schools are now desegre­
gated. But there is no logic to the notion 
that a school system which becomes 
"unitary" by eliminating segregation 
remains "unitary" in perpetuity even if it 
deliberately destroys the conditions that 
made it unitary and reestablishes the 
pattern of segregation that preceded its 
"unitariness".

A school system that attains "uni­
tariness" by effectuating a court-ordered 
plan for integrating its schools is like a



47

heart patient who attains "health" by 
having a pacemaker implanted. Just as a 
patient who is healthy by virtue of a 
pacemaker becomes sick when it is removed, 
a school system that is "unitary" because 
of an affirmative desegregation plan 
employing special means of insuring 
integration will become "dual" again when 
it deliberately reconstitutes a substan­
tial number of its one-race schools by 
revoking the plan.

The opinions below assert that the 
school' board acquired a new legal status 
when it "discharged" its affirmative duty 
to desegregate. But there is no reason in 
a doctrine that a school board's temporary 
obedience to a permanent injunction gives 
it a legal right to reestablish the exact 
situation that the injunction was designed 
to bring to an end. If the facts sur­
rounding the Norfolk schools had origin­



48

ally permitted the board to dismantle its 
dual system simply by abandoning illegal 
action and acting without discriminatory 
intent in a "color blind" fashion, there 
might be logic to the lower courts' 
approach. But, the history of efforts to 
integrate Norfolk's schools plainly 
demonstrates that the affirmative consti­
tutional duty to eradicate segregation 
could not be "discharged" by "color blind" 
passivity. "Discharging" the affirmative 
duty required pairing and non-contiguous 
zones designed to produce actual integra­
tion in the context of the all-black 
schools built to serve segregated neigh­
borhoods and one-race public housing 
projects. The proposed plan to abolish 
the pairing and to reestablish segregation 
on the basis of the same neighborhood 
pattern violates the same constitutional 
duty that was temporarily fulfilled.



49

The reasoning of the Court below is 
at war with Swann1s stated objective which 
is "to dismantle the dual system". 402 
U.S. at 28. In Dayton Board of Education 
v. Brinkman, 433 U.S. 406, 414 ( 1977)
(Dayton I) , this Court directly held that 
the rescission of a desegregation plan 
which a board had a constitutional duty to 
adopt would violate the Constitution. 
See Dayton II, supra, 443 U.S. at 531,
n.5. And in Columbus Board of Education v. 
Penick, 443 U.S. 449, 459 ( 1979), the
Court announced a corollary rule that 
"Each instance of a failure or refusal to 
fulfill this affirmative duty continues 
the violation of the Fourteenth Amend­
ment." It is logical that a deliberate 
and intentional plan to destroy the 
essential features of a remedial scheme 
that made desegregation work and to 
recreate the preexisting conditions is



50

equally a violation of the Fourteenth 
Amendment. As stated in Dayton II, 
supra, the "Board has had an affirmative 
responsibility to see that pupil assign­
ment policies and school construction and 
abandonment practices 'are not used and do 
not serve to perpetuate or re-establish 
the dual school system.'" 443 U.S. at 538, 
quoting Swann, supra.

The rule announced below would, as a 
practical matter, repudiate Swann, Green, 
Davis, Columbus and Dayton. Such a rule 
deserves plenary review by this Court 
because the practical repudiation of a 
series of the Court's most important 
constitutional decisions is as important 
as the decisions themselves.



51

THE DECISIONS BELOW CONFLICT WITH THE 
PRINCIPLES OF THIS COURT'S KEYES, 
DAYTON, AND COLUMBUS DECISIONS DE­
FINING UNCONSTITUTIONAL SEGREGATIVE 
ACTIONS, AND WITH SCOTLAND NECK AND 
OTHER CASES REJECTING *WHITE FLIGHT" 
AND OPPOSITION TO DESEGREGATION AS A 
JUSTIFICATION FOR SEGREGATION.

Both courts below acknowledged the 
substantial segregative effect of the 
proposed plan but found that "the dis­
criminatory impact alone shown here is not 
sufficient to make out such a claim" of 
"intent to discriminate". 784 F.2d at 543. 
Both courts understood that the primary 
purpose of the plan was to attract white 
students to the Norfolk public schools and 
thereby counteract "white flight", but 
found this acceptable. We believe that 
both holdings are inconsistent with this

III.

Court's decisions.



52

Petitioners submit that the segrega­
tive impact of the proposed Norfolk plan 
is so stark as to put the case in the 
class of extreme cases like Yick Wo v. 
Hopkins, 118 U.S. 356 (1886), and Gomil- 
1 ion v. Lightfoot, 364 U.S. 339 (1960)
where impact alone reveals a purpose to 
segregate. See Arlington Heights v.
Metro. Housing Corp., 429 U.S. 252, 266
(1977). The historical background of de 
j ure segregation in the very same schools 
the proposed plan will segregate makes the 
inference of segregative purpose inescap­
able. Arlington Heights, supra, 429 U.S. 
at 267. But petitioners need not rely on 
impact and history alone because the 
racial purpose in this case was not at all 
covert.

The racial character of the board's 
primary goal in implementing the plan is 
quite openly acknowledged. The board



53

adopted the plan in reliance upon its 
consultant's advice that white parents 
opposed schools with black majorities, and 
that the way to stem white flight and 
increase the white school population was 
to end busing (which whites opposed) and 
create schools with the kind of racial 
composition favored by whites. Since 57 
percent of elementary pupils were black, 
the only way to get a group of majority- 
white schools was to create a group of 
all-black schools. The proposed plan 
groups two-thirds of the white pupils in 
majority-white schools by the expedient of 
creating ten all-black schools.

Both courts below acknowledged this 
Court's holdings rejecting "white flight" 
as a justification for continued segre­
gation in other contexts. United States 
v. Scotland Neck Board of Education, 407
U.S. 484, 491 (1972), and Monroe v. Board



54

of Commissioners, 391 U.S. 450 (1968). But 
they limited those precedents to school 
districts operating dual systems. Neither 
court mentioned the fact that the objec­
tive of stemming "white flight" was 
explicitly racial. This plan is based on 
the board's policy of trying to "stabi­
lize" the ratio of black and white pupil 
at about 60% black and 40% white. A 
purpose to manipulate the racial composi­
tion of the school system is not a 
racially neutral or color blind purpose. 
The concurring opinion in Scotland Neck, 
supra, 407 U.S. 484, 493, by the Chief 
Justice (joined by Justices Blackmun, 
Powell, and Rehnquist) makes exactly this 
point where "white flight" was urged to 
justify the creation of a separate school 
system, and the proposal was held uncon­
stitutional in part because:



55

"...the Scotland Neck severance was 
substantially motivated by the desire 
to create a predominantly white system 
more acceptable to the white parents 
of Scotland Neck. In other words, the 
new system was designed to minimize 
the number of Negro children attending 
school with the white children 
residing in Scotland Neck." id. at 
493.

So in Norfolk the board set out to 
stop the district from becoming 75% or 
greater black, as its consultant pre­
dicted, and to stabilize the racial ratio. 
The recommended means of accomplishing 
this was to control the racial composition 
of the schools attended by white pupils, 
so as to attract whites to attend the 
system. The cost of attracting whites was 
segregating blacks in all-black "neighbor­
hood" schools. This is as deliberate a 
segregation policy as any ever encounter­
ed, and is none the less unconstitutional 
because it is overt and not covert. And of 
course cases indicating that a benign



56

consideration of "white flight" might help 
promote integration do not assert that 
such a purpose is color blind or that it 
is permissible as a justification for 
creating ten all-black schools. Nor is the 
policy any less racial because blacks in 
the all-black schools can "volunteer" to 
transfer out, or because the board 
promises to make the "separate" schools 
"equal".

The combination of an explicitly 
racial purpose and a substantially 
segregative impact makes out a plain 
violation of the Fourteenth Amendment. See 
Keyes, supra. There is no requirement 
that the plaintiffs also prove that the 
board adopted the plan with malice toward 
black children. The fact that Norfolk's 
present school authorities sincerely do 
not believe that integration is worthwhile 
does not justify segregation in 1986 any



57

more than the similar views of their 
predecessors did. Brown v. Board of 
Education, supra, is premised on the harm 
segregation does to black children and not 
on the theory that the proponents of 
segregation necessarily had malice toward 
them.

It is enough to show a violation of 
the Equal Protection Clause that the 
purpose of the board in abandoning the 
desegregation plan was to appeal to the 
views of white people who opposed the 
desegregation plan. Black people are not 
accorded equal protection of the laws when 
a school board acts to segregate black 
children because white people prefer a 
different racial composition in the
schools. See Monroe, supra; Scotland
Neck, supra; cf. Cooper v. Aaron, 358 U.S.
1 (1958).



58

CONCLUSION
For the foregoing reasons it is 

respectfully submitted that this petition 
for certiorari should be granted and that 
the judgment below should be reversed.

Respectfully submitted,

HENRY L. MARSH, III 
S.W. TUCKER 
RANDALL G. JOHNSON 
Hill, Tucker & 
Marsh
509 North 3rd St. 
P.O. Box 27363 
Richmond, VA 23261 
(804) 648-9073

GEORGE B. LITTLE 
ELIZABETH TURLEY 
TIMOTHY M. KAINE 
Little, Parsley & 
Cluverius, p.C. 

1300 Fed. Reserve 
Bank Bldg.

P.O. Box 555 
Richmond, VA 23204 
(804) 644-4100

GWENDOLYN JONES JACKSON P.O. Box 622 
Norfolk, VA 23501 
(804) 622-9031

♦JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, JR. 
99 Hudson Street 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for
Petitioners

♦Counsel of Record



IB

]RACIAL I 
SOURCES:
ELEMENT APPOSED PROPOSED PROPOSED PROPOSED
SCHOOLS WHITE BLACK TOTAL BLACK %
Bowling !1 0 665 665 100.0%
Tidewate:] 0 291 291 100.0%
Young Pa:1 o 541 541 100.0%
S t .Helen i 3 343 346 99.1%
Chesterf 4 427 431 99.1%
Monroe 7 701 708 99.0%
Roberts i| 10 489 499 98.0%
Jacox 13 630 643 98.0%
Tucker 7 336 343 98.0%
Diggs Pa: 10 315 325 96.9%
Lindenwoi 139 464 603 76.9%
Willard 183 519 702 73.9%
Norview 224 475 699 68.0%
Larrymori 313 581 894 65.0%
Granby 252 447 699 63.9%
Inglesidi 288 433 721 60.1%
Crossroa' 336 446 782 57.0%
Ghent 267 353 620 56.9%
Oakwood 226 277 503 55.1%
Suburban 198 241 439 54.9%
Poplar H 220 258 478 54.0%
Larchmon 334 335 669 50.1%
Fairlawn 183 182 365 49.9%
Coleman 452 363 815 44.5%
Calcott 293 196 489 40.1%
Meadowbr 320 213 533 40.0%
Taylor 232 154 386 39.9%
Willough 212 120 332 36.1%
Camp All 332 187 519 36.0%
Sewell P 420 217 637 34.1%
Sherwood 437 188 625 30.1%
Oceana ir 491 201 692 29.0%
LittleCr 747 291 1038 28.0%
T arralIt 295 83 378 22.0%
Ocean Vi 434 90 524 17.2%
Bay View 575 102 677 15.1%



IB

r NORFOLK PUBLIC SCHOOLS, 1969, 1983 AND PROPOSED PLAN, 
proposed plan based on 1984 assignments before transfers).

1969 1969 1969 1969
WHITE BLACK TOTAL BLACK %

0 934 934 100.0%
0 513 513 100.0%
0 572 572 100.0%
4 357 361 98.9%

51 671 722 92.9%
13 1185 1198 98.9%
0 513 513 100.0%

I black Jr . High school in 1969)
0 477 477 100.0%
0 677 677 100.0%
0 713 713 100.0%

aned 1979)
406 273 679 40.2%

1067 115 1182 9.7%
642 20 662 3.0%
428 22 450 4.9%

1046 73 1119 6 • 5?£
aned 1978)

O 442 442 100.0%
542 36 578 6.2%
560 22 582 3.8%
630 100 730 13.7%
512 10 522 1.9%
865 0 865 0.0%
841 0 841 0.0%
561 41 602 6.8%
383 0 383 0.0%
750 36 786 4.6%

ened 1970)
603 275 878 31.3%
666 O 666 0.0%
678 29 707 4.1%
1254 2 1256 .2%
631 14 645 2.2%

1002 81 1083 7.5%
874 0 874 0.0%

1983 
BLACK % 

80.7% 
68.8% 
57.1% 
57.7% 
69.9% 
63.3%

65 213 278 76.6%
238 442 680 65.0%
143 128 271 47.2%
121 242 363 66.7%
142 376 518 72.6%
214 537 751 71.5%
209 481 690 69.7%
282 515 797 64.6%
223 270 493 54.8%
272 430 702 61.3%
324 314 638 49.2%
232 266 498 53.4%
164 199 363 54.8%
235 359 594 60.4%
106 235 341 68.9%
379 243 622 39.1%
128 230 358 64.2%
327 437 764 57.2%
177 286 463 61.8%
283 259 542 47.8%
245 140 385 36.4%
396 127 523 24.3%
316 496 812 61.1%
444 138 582 23.7%
323 311 634 49.1%
356 301 657 45.8%
423 560 983 57.0%
137 213 350 60.9%
310 407 717 5 6 . QsZ

261 210 471 44.6%

PROPOSED PROPOSED PROPOSED PROPOSED
WHITE BLACK TOTAL BLACK %

0 665 665 100.0%
0 291 291 100.0%
0 541 541 100.0%
3 343 346 99.1%
4 427 431 99.1%
7 701 708 99.0%

10 489 499 98.0%
13 630 643 98.0%
7 336 343 98.0%

10 315 325 96.9%
139 464 603 76.9%
183 519 702 73.9%
224 475 699 68.0%
313 581 894 65.0%
252 447 699 63.9%
288 433 721 60.1%
336 446 782 57.0%
267 353 620 56.9%
226 277 503 55.1%
198 241 439 54.9%
220 258 478 54.0%
334 335 669 50.1%
183 182 365 49.9%
452 363 815 44.5%
293 196 489 40.1%
320 213 533 40.0%
232 154 386 39.9%
212 120 332 36.1%
332 187 519 36.0%
420 217 637 34.1%
437 188 625 30.1%
491 201 692 29.0%
747 291 1038 28.0%
295 83 378 22.0%
434 90 524 17.2%
575 102 677 15.1%

1983 1983 1983
WHITE BLACK TOTAL

110 460 570
100 220 320
149 198 347
161 220 381
135 314 449
163 281 444



1969 1969 1969 1969 1983 1983
WHITE BLACK TOTAL BLACK X WHITE BLACK

0 366 366 100.0X(closed 1978)
0 453 453 100.O X (closed 1979)
0 392 392 100.OX(closed 1972)
0 553 553 100.O X (closed 1980)
O 378 378 100.OX(closed 1972)
0 474 474 100.OX(closed 1970)
0 519 519 100.OX(closed 1979)
0 277 277 100.OX(closed 1970)
0 472 472 100.OX(closed 1980)
7 449 456 98.5X(closed 1974)

10 525 535 98 .IX (closed 1978)
45 136 181 75.1X(closed 1976)

281 559 840 66.5X 143 224
410 45 455 9.9X 102 192
716 32 748 4.3X(closed 1981)
245 10 255 3.9X(closed 1978)
746 27 773 3.5X 38 53
271 6 277 2.2X (closed 1972)
252 1 253 .4X(closed 1980)
168 0 168 0.OX 195 84
124 O 124 0 .OX(closed 1980)

____________________ — —

18284 13877 32161 43.IX 8771 11611

1983 1983 PROPOSED PROPOSED PROPOSED PROPOSED 
TOTAL BLACK * WHITE BLACK TOTAL BLACK %

367 61.O X (proposed closing)
294 65.3%(proposed closing)

91 58.2*:

279 30.IX(proposed closing)

20382 57.OX 8457 12154 20611 59.OX



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