Riddick v The School Board of the City of Norfolk Petition for Certiorari

    DOCKET NO. 85-1962

IN THE
Supreme Court of the United States

October Term, 1985

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

v.

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

BRIEF IN OPPOSITION TO PETITION FOR CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

JACK E. GREER, COUNSEL OF RECORD 
J. A. STALNAKER 
M. WAYNE RINGER
WILLIAMS, WORRELL, KELLY & GREER, P.C. 
600 United Virginia Bank Building 
Norfolk, Virginia 23510 
(804) 624-2600

PHILIP R. TRAPANI 
DANIEL R. HAGEMEISTER 
908 City Hall 
Norfolk, Virginia 23510  
(804) 441-2871

j£P  1 0
/

Counsel for Respondents



TABLE OF CONTENTS
Page

TABLE OF CITATIONS ill

STATEMENT OF THE CASE 1

SUMMARY OF ARGUMENT 12

ARGUMENT 15
I. THIS CASE, DECIDED 

ON FACTS EXPRESSLY 
APPLICABLE TO THE 
NORFOLK SCHOOL SYS­
TEM, DOES NOT HAVE 
THE SWEEPING NATION­
AL IMPACT PETITION­
ERS WOULD GIVE IT ........  16

II. BY BECOMING UNITARY 
THE NORFOLK SCHOOL 
SYSTEM DISCHARGED 
THE DUTY TO ELIMI­
NATE THE PREVIOUS 
DUAL SYSTEM, AND ITS 
ADOPTION OF THE 
NEIGHBORHOOD ELEMEN­
TARY SCHOOLS PLAN AS 
APPROVED BY THE 
COURTS BELOW IS NOT 
INCONSISTENT WITH 
THIS COURT'S DECI­
SIONS ....................  31

III. THE COURTS BELOW AP­
PLIED THE PROPER 
STANDARDS OF PROOF 
OF DISCRIMINATORY 
INTENT ...................  44

-1-



CONCLUSION .......................... 53
CERTIFICATE ......................... 56

Page

-ii-



TABLE OF CITATIONS

Cases: Page
Arlington Heights v. Metro 
Housing Corp., 429 U.S.
252 ( 1977 )........................... 52
Brown v. Board of Education,
347 U.S. 483 (1954) (Brown I).... passim
Brown v. Board of Education,
349 U.S. 294 ( 1955) (Brown II)......  17
Columbus Board of Education v.
Penick, 443 U.S. 449 (1979)..... passim
Crawford v. Los Angeles Board
of Education, 458 U.S. 527
( 1982).......................  34, 49-51
Payton Board of Education v,
Br inkman, 433 U.S. 406 (1977)
(Dayton I)........................... 52
Dayton Board of Education v.
Br inkman, 443 U.S. 526 ( 1979)
(Dayton II)..............  21 , 37-39, 41
Green v. School Board of New
Kent County, 391 U.S. 430
( 1968)...................  17-18, 22, 29
Griffin v. School Bd. of 
Prince Edward County, 377 U.S.
218 (1964)........................... 17
Keyes v. School District No.
1, 413 U.S. 189 (1973)___ 19-20, 31, 49

-iii-



Cases; Page
McDaniel v. Barresi, 402 U.S.
39 (1971)............................ 46
Monroe v. Board of
Commissioners, 391 U.S. 450
(1968)............................... 30
Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1 
(1971)........................... passim
Washington v. Davis, 426 U.S.
229 (1976 )........................... 53
Washington v. Seattle School
Dist. No. 1, 458 U.S. 457
( 1982) .......................... 33, 34
Wright v. Council of City of
Emporia, 407 U.S. 451 (1972)........  33
Rules: Page
Rule 17 of Rules of the United
States Supreme Court ...............  31

-iv-



No. 35-1962
IN THE

SUPREME COURT OP THE UNITED STATES

October Term, 1985

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

v .

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

Respondents.
BRIEF IN OPPOSITION TO PETITION 
________ FOR CERTIORRARI

STATEMENT OF THE CASE 
The District Court and the Court of 

Appeals determined that the Norfolk Pub­
lic School System is unitary and had 
been so for a number of years. The Dis­
trict Court found as a matter of fact
that there was no intent to discriminate



in the School Board's adoption of a 
Neighborhood Elementary Schools Plan, 
and the Court of Appeals affirmed this 
finding. Both courts below found the 
plan constitutional.

Petitioners brought this action in 
the United States District Court for the 
Eastern District of Virginia in 1983 
contending that the School Board's Pro­
posal for a Voluntary Stably Desegre­
gated School System denied them equal 
protection of laws. This proposal, 
sometimes called the Neighborhood Ele­
mentary Schools Plan, was referred to in 
the District Court as the Proposed Plan. 
Petitioners sought an injunction against 
implementation of the Proposed Plan and 
a declaration that the Proposed Plan is 
unconstitutional. They also moved the

-2-



District Court to set aside the Order 
entered February 14, 1975, by which the 
Norfolk Public School System was de­
clared unitary after 19 years of deseg­
regation litigation (the Beckett case).

After fifteen days of trial and 
full briefing of the issues, the Dis­
trict Court found the Proposed Plan con­
stitutional, denied petitioners' prayer 
for injunctive relief, and denied their 
motion to set aside the February 14,
1975 Order, all by opinion and order 
dated July 9, 1984. The District 
Court's ruling was affirmed in all 
respects, without dissent, by a panel of 
the Court of Appeals for the Fourth Cir­
cuit on February 6, 1986. A petition 
for rehearing banc and motion to sup­
plement the record^/ were denied on

1/ Respondents have opposed petition­
ers' motions to supplement the

Footnote Continued on Next Page

-3-



March 19, 1986.
Three of the seven School Board 

members herein are black. The schools 
are administered by a black superinten­
dent. Two of three regional assistant 
superintendents were black at the time 
of trial. Between 40 and 50 percent of 
principals and teachers are black.

The District Court found that the 
Norfolk School System is unitary and 
that it had, pursuant to earlier order, 
been unitary since at least February 14, 
1975. The Court found that the School 
Board's stated reasons for adopting the 
Proposed Plan were legitimate and were

Footnote Cont'd.
record with more recent enrollment 
figures not because the figures are 
inaccurate but because the figures 
by themselves do not prove any­thing .

-4-



not pretexts for discrimination and that 
the petitioners had failed to prove that 
the School Board acted with discrimina­
tory intent.

The petitioners' description of the 
Beckett/Brewer case between 1956 and 
1975 is substantially accurate. Howev­
er, petitioners' suggestion that the 
February 14, 1975 Order by which the 
system was declared unitary was a mere 
consent Order was rejected as a matter 
of fact by the District Court, which 
said

This Court finds that its 
Order of February 14, 1975 was 
carefully considered for every 
phrase it contained. The 
Order manifested this Court's 
determination that, as a fac­
tual matter, the Norfolk sys­
tem was free of discrimination 
and was unitary in 1975.

627 F.Supp. at 819-20, Appendix at
115A-16A. The District Judge below, the

-5-



Honorable John A. MacKenzie, was the 
same judge who, in the Beckett case, 
entered the order of February 14, 1975, 
and to whose docket the Beckett case had 
been assigned since July 7, 1971. 527
F.Supp. at 815, Appendix at 101A.

Petitioners suggest that Dr.
Armor's predictions that the Proposed 
Plan would increase white enrollment 
rested solely on a finding in a public 
opinion poll that white parents were not 
opposed to schools that were fifty per­
cent or more white. This suggestion ig­
nores the multiple factors in Armor's 
report by narrowing attention to a sin­
gle question out of the more than one 
hundred questions asked and does so com­
pletely out of context. The primary 
focus of the opinion survey, which was 
but one part of underlying data and

-6-



analysis used in Dr. Armor's 
projections, was mandatory busing. The 
survey was a detailed and professional 
public opinion poll, composed of over 
one hundred questions, of which only one 
is related in the petitioners' brief.
The predictions in the Armor report (Ex. 
43, R. 755) are clearly based not upon 
the response to a single question but 
upon a multitude of considerations 
including these: an analysis of past
and present enrollment; a review of his­
toric and present demographics; an anal­
ysis of individual school enrollment and 
demographics; an analysis of enrollment 
in the only other system which initiated 
and then stopped mandatory busing; en­
rollment projections based upon the co­
hort retention method, a statistical 
sociological method for projecting

-7-



enrollment; consideration of where those 
students who left the system and who 
elected not to enter the system may have 
gone; and community reaction to the sys­
tem and to the quality of education in 
the system and to proposed changes in 
mandatory busing.

Petitioners' description of the 
Proposed Plan omits consideration of the 
Majority-Minority transfer program and 
the impact of that program on the en­
rollment figures in the elementary 
schools. That realistic and workable 
program allows any student enrolled in a 
school over 70% of his or her race, at 
the parents' option, to transfer to a 
school in which his or her race is in 
the minority. After taking into consid­
eration the expected number of Majority- 
Minority transfers, the School

-8-



Administration projected that in the 
Fall of 1984 the enrollment at Bay View 
Elementary School would be 25% black, 
rather than 15.1% black as indicated at 
page 19 of the Petition. Bay View was 
projected to have the proportionally 
largest white enrollment. No other 
school was projected to have enrollment 
over 70% white after the Majority- 
Minority transfers were accommodated.
Of the 14 majority white schools con­
demned by petitioners, only five were 
projected to have enrollments over 60% 
white.2/

2/ For reasons unexplained, petition­
ers rely on the proposed enrollment 
figures for Fall of 1983. By the 
time this case was tried, in 
February 1984, projections for Fall 
1984 were available and were intro­
duced in evidence before the Dis­
trict Court. Ex. ID, R. 707-08.

-9-



Petitioners' discussion of the Plan
also omits reference to several impor­
tant aspects of the Plan which do not 
relate directly to busing. First, the 
Plan includes a multicultural program 
"designed to provide contacts between 
students of different races, thus off­
setting any possible racial isolation of 
students in a predominately one race 
school." Ex. 1, R. 301. See also Ex.
4. The Plan includes a parental in­
volvement program designed to increase 
the participation of parents in the edu­
cational system. Parental participation 
in the system was found below to have 
been substantially harmed by the busing 
plans. For example, the Parent Teachers 
Association (PTA) had been "virtually 
destroyed" by crosstown busing. 627 
F.Supp. at 824.

-10-



The Plan also includes the filing 
of an annual accounting with the United 
States Magistrate for the United States 
District Court for the Eastern District 
of Virginia to report upon the alloca­
tion of resources within the School Sys­
tem and to provide an opportunity for 
those who are dissatisfied to present 
their complaints to the Magistrate.
This step was taken in order to assuage 
the fears of those who might believe 
that, despite the major participation by 
blacks in the administration of the 
School System, predominately black 
schools could be short-changed in re­
sources. The District Court and the 
Court of Appeals looked with favor on 
this feature of the Plan.

Finally, the School Board resolved 
in 1983 that the Plan would not be

-11-



implemented without the approval of the 
United States District Court for the 
Eastern District of Virginia. The City 
Attorney was directed to takes steps to 
bring the Proposed Plan before the 
Court, and such steps were initiated.
The legal proceedings instituted on be­
half of the School Board were withdrawn 
after the filing of petitioners' Com­
plaint in this case.

SUMMARY OF ARGUMENT 
The decisions below do not permit 

"immediate resegregation" of Southern 
schools as contended by petitioners.
The School Board of the City of Norfolk 
acted not "immediately" but only after 
the Norfolk system had been unitary for 
years, enough time for nearly two gener­
ations of students to pass through the 
elementary schools. The Proposed Plan

-12-



does not "resegregate" anything. It 
eliminates crosstown busing for elemen­
tary school students, but it retains 
voluntarily many other desegregation 
remedies, including crosstown busing of 
middle school and high school students, 
multicultural programs, and drawing of 
elementary attendance zones in a way to 
maximize integration. In the face of 
this and of the District Court's find­
ings of fact that the Board acted for 
good reasons and without discriminatory 
intent, petitioners cannot seriously 
contend that school boards everywhere 
can, in reliance on the decisions below, 
immediately on achieving unitary status 
"resegregate" the schools.

The focus of this Court's attention 
in school cases has been the dual school 
system, how it manifested itself and how

-13-



it was to be eradicated. In Norfolk the 
dual system was eradicated, and the sys­
tem became unitary. The District Court 
so found in 1975 and reiterated that 
finding in 1984. Swann v.
Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1 (1971), is this 
Court's leading decision on the use of 
crosstown busing as a desegregation rem­
edy. This Court made clear in Swann 
that busing was a remedy to be used in 
the interim transitional period while 
the dual system was being converted to a 
unitary system. The principle that 
busing, pairing and zoning are temporary 
remedies permeates the Swann opinion, 
and Swann clearly foretold that the day 
would come when the remedies would be 
laid aside because they had worked their 
cure. So it was in Norfolk, and the

-14-



decisions below are consistent with 
Swann and the other decisions of this 
Court.

The courts below properly found no 
discriminatory intent on the part of the 
School Board. Petitioners say that the 
impact— ten predominately black 
schools— taken together with the Board's 
consideration of white flight, demon­
strates a constitutional violation.

This Court has always said that 
neighborhood schools, even where they 
involve dja facto segregation, are con­
stitutional absent intentional discrimi­
nation. The consideration of white 
flight and its potential, in fact, to 
resegregate the system is not discrimi­
natory. The District Court found, under 
the facts in this case, that the School 
Board considered white flight in the

-15-



proper context as part of its effort to 
maintain integration in the system. Pe­
titioners wish to promote integration, 
but they fail to demonstrate how inte­
gration can be pursued without consid­
ering the racial proportions of the sys­
tem and without implementing measures 
designed to preserve systemwide racial 
balance.

Because the Norfolk system is 
unitary, the decisions below are consis­
tent with Swann. The District Court ap­
plied the proper standards in evaluating 
the proofs and found as a fact no 
discriminatory intent in the Board's ac­
tions. Thus, the courts below properly 
held the Proposed Plan constitutional.

ARGUMENT
I. THIS CASE, DECIDED ON

FACTS -EXPRESSLY APPLICABLE 
TO THE NORFOLK SCHOOL SYS­
TEM, DOES NOT HAVE THE 
SWEEPING NATIONAL IMPACT 
PETITIONERS WOULD GIVE IT.

-16-



Petitioners say that the holdings 
of the courts below will have a sweeping 
impact since in every past, present and 
future school desegregation case the 
system will eventually become unitary as 
defined in the holdings of this Court. 
There is no novelty to the idea that a 
system should and will become unitary.
It is fervently to be hoped that school 
desegregation cases, like all other lit­
igation, will eventually come to an end. 
This Court has often and consistently 
said that the goal in school desegrega­
tion cases is a unitary school system. 
Green v. School Board of New Kent 
County, 391 U.S. 430, 436 (1968);
Griffin v. School Bd. of Prince Edward 
County, 377 U.S. 218 (1964); Brown v. 
Board of Education, 349 U.S. 294 (1955)
(Brown II). "Our objective in dealing

-17-



with the issues presented by these cases 
is to see that school authorities ex­
clude no pupil of a racial minority from 
any school, directly or indirectly, on 
account of race." Swann, 402 U.S. at 
23. This Court has always said that the 
job of the federal courts ended when the 
system became unitary. Green, supra; 
Swann, supra.

Neither is there novelty in the 
idea that busing, zoning and pairing, 
remedial tools to be used in the interim 
transition period between the unconsti­
tutional dual system and the constitu­
tional unitary system may be laid aside 
when the unitary system is attained. 
Swann, supra. The Swann Court itself 
said nothing less. It called these mea­
sures remedies, it expressed the hope 
that court intervention would cease upon

-18-



achievement of a unitary system, and it 
reminded us that school desegregation 
remedies cannot be made to carry too 
much baggage and cannot be used to cure 
all society's ills. Swann plainly con­
templates exactly the result reached 
below.

The distinction between liability 
and remedy stages of lawsuits is very 
common in the law. Yet petitioners in­
sist that the courts below erred in 
refusing to apply remedy standards to 
proof of liability issues. The trial 
court applied the proper constitutional 
tests, as will be discussed in Part III, 
below, and found the petitioners' proofs 
wanting.

Petitioners contend that the Court 
of Appeals has written a charter for the 
resegregation of schools in the South.

-19-



This is plainly untrue, but before 
showing why, the School Board must state 
its exception to the terminology used by 
petitioners here and throughout.

Petitioners since the beginning of 
this case have referred to "segregated" 
schools and "resegregation" and have 
sought to load those terms with every 
bit of evil connotation that they 
possibly could carry. Also, they have 
sought to obscure the distinction be­
tween jle jure and dê  facto segregation. 
Quoting from cases reciting the evils of 
de jure segregation, they apparently 
contend that the School Board must erad­
icate _de facto residential segregation 
in Norfolk.

Racial imbalance, without explana­
tion, has no constitutional signifi­
cance. This Court has uniformly

-20-



condemned _de jure segregation, whether 
imposed by state law, Brown v. Board of 
Education, 347 U.S. 483 (1954) (Brown 
I), or by state or local government au­
thorities without sanction of law,
Dayton Board of Education v. Brinkman, 
443 U.S. 526 (1979) (Dayton II);
Columbus Board of Education v. Penick, 
443 U.S. 449 (1979). This Court, like 
the School Board, regrets the existence 
of cle facto segregation not caused by 
school authorities, but it has never 
held it unconstitutional or forced its 
eradication by school authorities.
Keyes v. School District No._1, 413 U.S.
189 (1973). The "basic constitutional 
requirement [is] that the State not dis­
criminate between public school children 
on the basis of their race." Swann, 402 
U.S. at 13. "[T]he differentiating

-21-



factor between de jure segregation and 
so-called de facto segregation to which 
we referred in Swann is purpose or 
intent to segregate." Keyes, 413 U.S. 
at 208.

This Court has condemned "dual" 
school systems and has said they must be 
dismantled and supplanted by "unitary" 
systems. Dual systems are those in 
which, with intent to discriminate on 
the basis of race, the school authori­
ties operate one set of schools for 
whites and another for blacks. Brown I, 
supra. Unitary systems are those in 
which, without racial discrimination, 
there are operated not white schools, 
not black schools, but "just schools". 
Green, 391 U.S. at 442.

Focusing on "segregation" as a term 
which looks to racial proportions—

-22-



numbers alone— obscures the 
constitutional inquiry, which is whether 
racial discrimination plays a part in 
the operation of the school system.

The Court of Appeals' decision does 
not provide a charter for "resegregation 
of schools in the South." Systems which 
have not become unitary will have no 
benefit from the Court of Appeals' deci­
sion, and systems which have become 
unitary will be subject to the same 
scrutiny employed below— the courts will 
prevent their acting with intent to dis­
criminate. A system which satisfies the 
court that it has eliminated discrimina­
tion and remained unitary for a substan­
tial period of time should, without dis­
criminatory intent, be entitled to shed 
remedies which are no longer needed.
This is not "resegregation."

-23-



This Court's cases do not teach
that unitariness is a physical construct 
of court-ordered remedies that must fall 
if one of the remedies is removed. A 
unitary system is a system of schools, 
administered without discrimination, 
that are just schools with none set 
aside for children of one race or anoth­
er and with no child either compelled or 
forbidden on account of his race to at­
tend a particular school. When this is 
achieved, as in Norfolk, no child has 
less than a full opportunity to receive 
the education to which he is entitled 
without being stigmatized by a label of 
inferiority. Busing is not needed to 
preserve the unitary system. Racial 
balance has not been the goal of this 
Court's school desegregation decisions. 
The objective has been schools from

-24-



which no child is excluded on the basis
of race. Swann, supra. That objective 
has long since been accomplished in 
Norfolk.

Petitioners also say that this case 
will allow school systems which become 
unitary "immediately" to abandon 
desegregation and contend that Norfolk 
did so "promptly" after being declared 
unitary. This is simply not so. Nine 
years had elapsed between the unitary 
order and the trial. The District Court 
noted that the busing and pairing plan 
in effect in 1975 "had been unaltered in 
any appreciable respect since July,
1971, and . . . has remained essentially 
unaltered into 1984." 627 F.Supp. at
819. As petitioners note, busing con­
tinued pending appeal through the 1985- 
1986 school year. At the time the Board

-25-



adopted the Proposed Plan, busing had 
been in effect for twelve years, and the 
system had been declared unitary eight 
years before. Nearly two full genera­
tions of elementary school students had 
passed through the system in those 
years. No child presently in the 
Norfolk school system has ever attended 
segregated schools in Norfolk. The 
Board's action was neither "immediate" 
nor "prompt". The Court of Appeals' de­
cision does not authorize or encourage 
"immediate" action of any kind.

Respondents have not, in any event, 
"abandoned" desegregation. They have 
curtailed busing, and that only for ele­
mentary school students (grades K-6 at 
trial, now grades K-5). Busing and ra­
cial balancing continues for middle 
schools and high schools. Multicultural

-26-



programs and annual accountability to 
the United States Magistrate ensure that 
students in the ten predominantly black 
schools will not be deprived of equal 
educational opportunity. And, as the 
District Court and Court of Appeals 
noted, the neighborhood school attend­
ance zones are drawn in order to maxi­
mize integration. The petitioners con­
tend that all this is sham and pretext, 
contrary to factual findings of the Dis­
trict Court. Petitioners even refuse to 
give the School Board credit for the way 
in which it has drawn the attendance 
zones, criticizing the Board because the 
zones do not follow the lines of histor­
ical or cultural neighborhoods.

Petitioners say that the decision 
below will result in a flood of litiga­
tion. First, they say that school

27-



authorities everywhere will attempt to 
"emulate" Norfolk and that they will be 
sued for it. The decision below makes 
clear that the fact by itself that some 
schools in the unitary system will en­
roll mostly black students will not re­
sult in loss of unitary status. Peti­
tioners made no serious effort below to 
prove any actual discrimination. Their 
case rests on enrollment statistics, and 
the Court of Appeals, following the 
precedents in this Court, has said that 
is not enough viewed in light of 
Norfolk's continued operation of a 
unitary system and the School Board's 
dedication to maintaining a stably de­
segregated system and its ability to do 
so. Thus, lawsuits against other 
unitary school systems should arise only 
where there is evidence of 
discrimination.

-28-



Second, petitioners say that the 
holdings below will cause lawyers who 
represent plaintiffs "to resist the clo­
sure of all school cases, and any ac­
knowledgement that a district is 
'unitary', as long as possible". Peti­
tion, page 39. Of course, lawyers are 
obliged to contest a finding of 
unitariness if they have reason to doubt 
its accuracy, and the district courts 
are charged with retaining jurisdiction 
until they are sure the systems are 
unitary. Green, supra. But to resist 
where discrimination has been eliminated 
would be grossly irresponsible. That 
some may do so cannot justify invasion 
of the rights of the school authorities, 
in whose hands, absent discrimination, 
this Court has said administration of 
the schools should be.

-29-



Petitioners say that Norfolk has 
returned to the conditions condemned in 
Monroe v. Board of Commissioners, 391 
U.S. 450 (1968). This is not 1968, and 
much has passed since then, including a 
finding in Norfolk that the school sys­
tem is unitary and that discrimination 
had been eliminated from it. That was 
over ten years ago, when none of the 
present respondents sat on the School 
Board. Three of the respondents here 
charged with racial discrimination are 
black. The superintendent and two of 
three regional assistant superintendents 
are black. Faculties are integrated.
To accept petitioners' argument is to 
say that busing must go on virtually 
forever. This Court has never said 
that. The result reached below was 
clearly foretold in Swann. There is no

-30-



reason for this Court to disturb the 
Court of Appeals' decision or the Dis­
trict Court's findings of fact.

Petitioners have failed to demon­
strate how this case comes within this 
Court's Rule 17.

II. BY BECOMING UNITARY, THE 
NORFOLK SCHOOL SYSTEM 
DISCHARGED THE DUTY TO 
ELIMINATE THE PREVIOUS 
DUAL SYSTEM, AND ITS 
ADOPTION OF THE NEIGHBOR­
HOOD ELEMENTARY SCHOOLS 
PLAN AS APPROVED BY THE 
COURTS BELOW IS NOT IN­
CONSISTENT WITH THIS 
COURT'S DECISIONS.

Petitioners contend that the deci­
sions below are inconsistent with this 
Court's holding in Swann. Swann dealt 
with what remedies could be imposed by 
the courts to hasten the eradication of 
dual school systems. On practically 
every page of this Court's opinion in 
Swann appears the word "remedy", and the

-31-



Court made clear that these remedies
were to be imposed during the interim 
transitional period during which the 
dual system was converted to a unitary 
system. Any reference to Swann which 
implies that it sets standards of proof 
of discrimination overlooks the funda­
mental remedial nature of Swann♦ The 
decisions below conflict not at all with 
Swann.

Dual school systems must be disman­
tled by affirmative steps and replaced 
with unitary systems. Brown I, supra; 
Green, supra. School authorities who 
cannot show that they have disestab­
lished their dual system are subject to 
court-mandated disestablishment.
Columbus, supra. "In seeking to 
define . . . how far this remedial power 
extends it is important to remember that

-32-



judicial powers may be exercised only on 
the basis of a constitutional viola­
tion." Swann, 402 U.S. at 16. The 
Norfolk dual system was disestablished, 
the system became unitary, and the Dis­
trict Court found it so. Having 
satisfied its duty to dismantle the dual 
system, the School Board is no longer 
liable to claims that it has failed to 
do so and is no longer obliged to take 
artificial action to preserve racial 
balance in the schools. "Dismantling" 
the dual school system was contemplated 
by this Court to be a "process" which is 
at some time "completed." Wright v. 
Council of City of Emporia, 407 U.S.
451, 452, 470 (1972). "And even where 
there have been segregated schools, once 
desegregation has been accomplished no 
further constitutional duty exists upon

-33-



school boards or States to maintain
integration." Washington v._Seattle
School Dist. No. 1, 458 U.S. 457, 492 
(1982) (Powell, J., dissenting).

A neighborhood school system which 
results in racial imbalance is not un­
constitutional unless it results from 
intentional discrimination. Crawford v. 
Los Angeles Board of Education, 458 U.S. 
527, 537 n.15 (1982); Columbus, supra; 
Keyes, supra.

The District Court found, as a 
fact, (as was found by the Beckett court 
in 1969, see 784 F.2d at 543 and n.20, 
Appendix at 94A) that the School Board 
was not responsible for residential 
patterns, and this finding was affirmed 
by the Court of Appeals. The public 
housing projects, which petitioners 
wrongly label "ghettos", are open to all

-34-



eligible tenants regardless of race. No 
one is forced to live in them because of 
his race. The evidence at trial, even 
that of petitioners' experts, showed 
that Norfolk is basically a residen- 
tially well-integrated city, as is 
reflected in the Board's ability to draw 
attendance zones for 25 substantially 
integrated elementary schools. Official 
barriers to blacks wishing to live in 
formerly all white neighborhoods have 
fallen. But busing did not cause these 
barriers to fall, and busing will not 
eliminate the remaining predominantly 
black residential areas.

Petitioners argue that Swann places 
the burden on the School Board to show 
that it has not discriminated in 
adopting a neighborhood schools plan. 
Swann holds that, where a dual system

-35-



exists, the burden is on the school 
authorities to show why one-race schools 
remain in a remedial plan. The instant 
case does not involve a remedial plan 
but involves the question whether the 
School Board has discriminated. Swann 
does not shift the burden of proving li­
ability and is, therefore, inapposite on 
that issue.

The inapplicability of Swann to 
unitary systems is clear from its own 
language. "Absent a constitutional vio­
lation there would be no basis for judi­
cially ordering assignment of students 
on a racial basis. . . . The remedy 
for such [deliberate] segregation may be 
administratively awkward, inconvenient, 
and even bizarre in some situations and 
may impose burdens on some; but all awk­
wardness and inconvenience cannot be

-36-



avoided _in the interim period when 
remedial adjustments are being made to 
eliminate the dual school systems." 402

. f
U.S. at 28 [emphasis added].

Petitioners contend that Columbus, 
supra, and Dayton II, supra, impose a 
continuing duty on respondents to dises­
tablish the dual school system. Neither 
case imposes any obligation after the 
dual system is disestablished, and nei­
ther involved a system which had become 
unitary. "The Board has never seriously 
contended that it fulfilled its affirma­
tive duty or the heavy burden of ex­
plaining its failure to do so." Dayton 
II, 443 U.S. at 538-39. "The Board's 
continuing 'affirmative duty to dises­
tablish the dual school system' is 
therefore beyond question, . . . and it
has pointed to nothing in the record

-37-



persuading us that at the time of trial 
the dual school system and its effects 
had been disestablished." Columbus, 443 
U.S. at 460-61 [citation omitted],

"[T]he measure of the post-Brown I 
conduct of a school board under an 
unsatisfied duty to liquidate a dual 
system is the effectiveness, not the 
purpose, of the actions in decreasing or 
increasing the segregation caused by the 
dual system." Dayton II, 443 U.S. at 
539 [emphasis added]. When the system 
becomes unitary, its future actions 
should be judged by their purpose, not 
by their impact.

"[I]n the absence of a constitu­
tional violation, the desirability and 
efficacy of school desegregation are 
matters to be resolved through the po­
litical process." Washington v. Seattle

-38-



School Dist. No. 1, 458 U.S. 457, 474
(1982).

Petitioners say that the School 
Board seeks the "legal right to reestab­
lish the exact situation that the in­
junction was designed to bring to an 
end." Petition, page 47. This is un­
true. The injunctive relief in the 
Beckett case was designed to dismantle 
the dual system, not permanently to sus­
tain artificial racial balance in the 
schools.

Petitioners argue that the neigh­
borhood school plan is an effort to 
"re-establish" the dual system in viola­
tion of Swann, Dayton II and Columbus. 
Those cases suggest that the district 
court use care to prevent such re­
establishment in the course of the 
court's supervision of the dismantling

-39-



of the dual system. This case is not at 
such a remedial stage. However, if the 
Norfolk School Board did seek actually 
to re-establish the dual school system, 
such would be a constitutional viola­
tion. To ask whether the neighborhood 
school plan is a vehicle for the re-es­
tablishment of the dual system is simply 
to restate the primary issue in this 
case, that is, whether the neighborhood 
school plan was adopted for the purpose 
of discriminating against black chil­
dren. That the Proposed Plan includes 
schools with predominantly black enroll­
ments is not "re-establishment" of the 
dual system unless it is done with in­
vidious discrimination. It was up to 
the petitioners to prove such discrimi­
nation, and they could not do so.

-40-



The schools in Norfolk under the 
Proposed Plan will not be "highly segre­
gated by race," unlike the schools in 
Dayton II and Columbus. See Dayton II, 
443 U.S. at 529; Columbus, 443 U.S. at 
452. In Columbus, "70% of all students 
attended schools that were at least 80% 
black or 80% white." Id_. In Dayton, 51 
of 69 schools in the system were virtu­
ally all white or all black. 443 U.S. 
at 529. In Norfolk, all middle and high 
school students will attend schools en­
rolling substantial numbers of students 
of all races. In Norfolk, all white el­
ementary students and approximately 65% 
of black elementary students will attend 
schools enrolling substantial numbers of 
students of all races, given the effect 
of Majority-Minority transfers.

-41-



Even if statistics were the sole 
touchstone of discrimination in schools, 
Norfolk is not a "dual sytem". There is 
no system of schools for white students. 
All white students will attend integrat­
ed schools. And there is no system of 
schools for black students. The vast 
majority of black students will attend 
integrated schools. Approximately 35% 
of black elementary students will attend 
ten predominantly black schools. No 
black child will be forced to attend 
such a school against his parents' will. 
No child is assigned to such a school 
because of his race.

Busing is a remedial measure that 
is not an end in itself. The 1971 
Court-ordered busing plan in Norfolk 
resulted from this Court's decision in 
Swann, wherein the Court recognized that

-42-



if there were no discrimination, "it 
might well be desirable to assign pupils 
to schools nearest their homes" and that 
busing might be administratively awkward 
or inconvenient, "but all awkwardness 
and inconvenience cannot be avoided in 
the interim period when remedial adjust­
ments are being made to eliminate the 
dual school systems", id. at 28 [empha­
sis added]; that "at some point, these 
school authorities and others like them 
should have achieved full compliance 
with this Court's decision in Brown I. 
The systems would then be 'unitary' in 
the sense required by our decisions,"
Id. at 31.

N The courts below correctly held 
that Swann's presumption against one- 
race schools did not apply to the 
unitary school system in Norfolk.

-43-



III. THE COURTS BELOW APPLIED 
THE PROPER STANDARDS OF 
PROOF OF DISCRIMINATORY 
INTENT.

Petitioners suggest that the impact 
of the Board's action, taken together 
with the purpose to create schools ac­
ceptable to white parents, proves dis­
crimination. Petitioners argue that 
the Proposed Plan is based on "racial 
criteria" and is "as deliberate a segre­
gation policy as any ever encountered." 
Petition, page 55. This contention 
rests solely on two facts: that the
proposed Plan creates a number of pre- 
dominantly-black schools and that the 
School Board considered "white flight" 
in making its decision.

Petitioners' contentions that the 
School Board does not believe inte­
gration is worthwhile and that it adopt­
ed the Plan in order to create a refuge

-44-



for white students constitute a blatant
distortion of the facts and of the find­
ings of the courts below. It was pre­
cisely because it wished to preserve in­
tegration that the Board concerned 
itself with white flight.

Based on Dr. Armor's 1983 and 1984 
projections, the Board was justified in 
believing that continuation of busing 
would eventually lead to the schools' 
becoming 75% or more black systemwide. 
Eventually the system would become so 
heavily black that no meaningful degree 
of integration could be maintained, as 
has happened in other cities.
Perceiving integration to be a social 
good, the Board acted to stem white 
flight. Petitioners in their own right 
also insist that the system should be 
integrated, but they suggest no way in

-45-



which that can be achieved without 
consideration of the races of the chil­
dren. Cf. McDaniel v. Barresi, 402 U.S. 
39 (1971).

The petitioners argue that the 
premise of the Plan was to create major­
ity white schools which were favored by 
white parents. This is totally unfound­
ed. As already noted the Armor public 
opinion questionnaire dealt with manda­
tory busing and not racial proportion. 
Only one question related to racial pro­
portion, and it reflected only the fact 
that whites in the system and outside of 
it would prefer schools which were not 
made up primarily of blacks, had no ob­
jection to schools that were fifty per­
cent of one race and the other, and op­
pose schools that were solely of one 
race. Indeed, an analysis of the

-46-



enrollment in 1983-84 at the time of the
trial, compared with the enrollment 
projected in the plan, including the 
Majority-Minority transfers, indicates 
there were nine schools at the time of 
the trial which were over fifty percent 
white. Under the Plan only five addi­
tional schools become over fifty percent 
white, five other schools decrease in 
the white enrollment. The nine re­
maining schools, other than the ten pe­
titioners complain of, only change by 
one to five percentage points. Percent­
ages reflected in the plan are a func­
tion of demographics of the neighbor­
hoods from which schools draw, are in no 
way an effort to create any majority 
schools, but are quite the opposite. 
Evidence at the trial was that the 
School Board drew the attendance zones

-47-



to maximize the racial balance in the 
schools. Nowhere in the evidence was 
there a suggestion that the School Board 
was seeking to create schools which were 
majority white. Rather, the evidence 
showed that the Board was seeking to 
create neighborhood schools, maximize 
parental involvement and hopefully and 
most importantly maintain the existing 
racial enrollments in the face of ever- 
dwindling white enrollment and predic­
tions of its continuance.

Assignment to the schools in pre­
dominantly black neighborhoods is based 
on residence, not race. No black child 
is required on the basis of his race to 
attend such a school, and no black child 
is excluded on the basis of his race 
from attending a school that happens to 
be majority white in its enrollment.

-48-



"[D]isparate impact and foreseeable 
consequences, without more, do not es­
tablish a constitutional violation." 
Columbus, 443 U.S. at 464.

To argue that a neighborhood at­
tendance plan which includes schools 
predominantly black in their enrollment 
thereby creates a racial classification 
is nothing more than an argument that a 
one-race school is proof per se of in­
vidious discrimination. If this were 
the law, de facto segregation would al­
ways require a court-ordered dese­
gregation remedy. It does not.
Crawford; Columbus; Keyes. Petitioners' 
contention that the predominantly black 
schools are, of themselves, a racial 
classification is an effort to circum­
vent these holdings.

-49-



Neither is there merit in petition­
ers' suggestion that consideration of 
white flight in adopting the Proposed 
Plan creates a racial classification. 
Admittedly, a dual system cannot consid­
er white flight as an excuse not to 
formulate a desegregation remedy, but 
absent a constitutional violation the 
effects of white flight may be consid­
ered in formulating a voluntary plan. 
Crawford, infra. The Board's hope that 
the Plan will stabilize white enrollment 
in Norfolk's unitary system is not a ra­
cial classification.

In Crawford v. Los Angeles Board of 
Education, 458 U.S. 527 (1982), 
California amended its constitution to 
prohibit its courts from ordering busing 
in cases where the Fourteenth Amendment 
did not require it, abolishing

-50-



court-ordered busing as a state law 
remedy for dje facto school segregation. 
Analyzing whether the amendment was 
adopted for discriminatory purposes, 
this Court included among possible 
non-discriminatory motives that the 
"voters also may have considered that 
the extent of mandatory busing, 
authorized by state law, actually was 
aggravating rather than ameliorating the 
desegregation problem," id. at 543, re­
ferring to statistics showing the change 
in racial composition of the Los Angeles 
school enrollment, including a drop from 
53.6% white in 1968 to 23.7% white in 
1980. Id. at 530 n.l.

The Crawford Court explicitly 
rejected the contention that the amend­
ment created a racial classification, 
stating "[i]t neither says nor implies

-51-



that persons are to be treated 
differently on account of their race.
. . . The benefit it seeks to 
confer— neighborhood schools— is made 
available regardless of race." Ij3. at 
537.

The duty of the courts "in a case 
such as this, where mandatory segrega­
tion by law of the races in the schools 
has long since ceased, is to first de­
termine whether there was any action in 
the conduct of the business of the 
school board which was intended to and 
did in fact discriminate against minori 
ty pupils, teachers, or staff." Dayton 
Board of Education v, Brinkman, 433 U.S 
406, 520 (1977) (Dayton I).

The trial court properly applied 
the tests for proof of discrimination 
set out in Arlington Heights v. Metro.

-52-



Housing Corp., 429 U.S. 252 (1977) and 
Washington v. Davis, 426 U.S. 229 
(1976). Petitioners relied below on the 
description of relevant evidence set 
forth in Arlington Heights, 429 U.S. at 
666-68, these being impact, historical 
background, sequence of events leading 
to the decision, and "legislative" his­
tory. The District Court found, re­
viewing that evidence, that discrimina­
tion was not proved. The Court of Ap­
peals reviewed and affirmed the District 
Court's findings, holding that the evi­
dence supported them. This Court should 
do no more. Petitioners have failed to 
show why this case should be reviewed 
her e.

CONCLUSION
The Norfolk public schools have 

been unitary for over eleven years. The

-53-



School Board has not abandoned
desegregation but has simply curtailed 
crosstown busing of elementary students, 
partly in the hope that such action will 
preserve long-term integration of the 
system. This result follows clearly 
from Swann, it does not eviscerate 
Swann, and it does not authorize "reseg­
regation" of schools anywhere. The Dis­
trict Court having applied the proper 
standards and found no discriminatory 
intent as a matter of fact, the Court of 
Appeals acted correctly in affirming its 
decision. For the reasons set forth 
herein, the School Board of the City of

-54-



Norfolk prays that the Court will deny
the petition for certiorari.

Respectfully submitted,
THE SCHOOL BOARD OF THE 
CITY OF NORFOLK, et al.

J. A. Stalnaker 
M. Wayne Ringer
Williams, Worrell, Kelly & Greer, 
600 United Virginia Bank Building 
Norfolk, Virginia 23510 
(804) 624-2600

P.C.

Philip R. Trapani 
Daniel R. Hagemeister 
908 City Hall 
Norfolk, Virginia 23510 
(804) 441-2871

-55-



CERTIFICATE
I certify that on this 27th day of 

June, 1986, three copies of the forego­
ing were mailed, postage prepaid, to:

Julius LeVonne Chambers, Esq.
99 Hudson Street 
16th Floor
New York, New York 10013

All parties required to be served

-56-