National Negro Business and Professional Commitee for the Legal Defense Fund

    APPELLANTS BRIEF

In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

NO. 9898

CA RLO TTA  M OZELLE BREW ER, et al,
Appellants,

v.

T H E  SCHOOL BOARD O F T H E  CITY O F 
NORFOLK, V IRG IN IA , et al,

Appellees.

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

NORFOLK DIVISION

S. W . T u c k e r  
H e n r y  L. M a r s h , III  

214 East Clay Street 
Richmond, Virginia 

V ic t o r  J. A s h e  
1134 Church Street 
Norfolk 10, Virginia 

J. H u g o  M a d is o n  
10 Church Street 
Norfolk 10, Virginia 

J a c k  G r e e n b e r g  
J a m e s  M . N a b r it , III

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

Counsel fo r Appellants

The Press of Lawyers Printing Company, incorporated, Richmond 7, Virginia



TABLE OF CONTENTS

Page

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

The Early Proceedings .................................. ............. .. 1

The Instant Appeal ..... .......................... ............. ..........  3

The Questions Involved.................................................. ........ 4

Statement of the Facts .................................. -..................- 4

The Segregated Pattern In The City of N o rfo lk .... - 4

The Assignment Picture In September 1963 .......... 8

The School Faculties ......... ............................................ . 9

The Present Plan ----------- -------- ---- ------- ------ ------- 9

The Present Assignment Picture ................................. 10

Argument .................... .......... .................................... .....—. 11

I. The Plan Merely Facilitates The Racially Dis­
criminatory School System ............ ........ ............. .....  11

II. The Rights Of Individuals Of The Plaintiff Class 
May Not Be Postponed On The Strength O f The
School Board’s Plan Even As Administered ..... . 13



Page

TTI. This Case Requires The Submission Of A Plan 
Under Which The School Board Will Promptly 
Accomplish A Racially Nondiscriminatory School
System .... ........ ...................... ......................................  16

IV. “Dominating Reasons Of Justice” Require An 
Award Of Counsel Fees To Plaintiffs’ Counsel .... 19

Conclusion .... ....................... ................................................ . 21

TABLE OF CASES

Bell v. County School Board of Powhatan County, 321 
F. 2d 494 (1963) ........ ..............................................  13, 19

Braxton v. The Board of Public Instruction of Duval
County, ........F. Supp.......... (DC SD Fla., C.A. No.
4598-J, affirmed, sub nom, Board of Public Instruc­
tion v. Braxton, 326 F.2d 616 (5th Cir., Jan. 10,
1964), cert. den. June 29, 1964 ..... .......... ................... 17

Brooks v. County School Board of Arlington County,
324 F. 2d 303 (4th Cir. 1963) ....... ............................ . 18

Brown v. Board of Education, 349 U.S. 294 
(1955) ...... ..........................................................  12. 15, 16

Calhoun v. Latimer, 377 U.S. 263 (No. 623, May 25 
1964) ............... ............. .............. ........... ................ ....... 16

Cooper v. Aaron, 358 U.S. 1 (1958) ____________ ___  18



Page

Dodson v. School Board of City of Charlottesville, 289 
F.2d 439 (4th Cir. 1961) ......................... .....................

Goss v. Board of Education, 373 U.S. 683 ..............  15,

Green v. School Board of the City of Roanoke, 304 
F.2d 118 (4th Cir. 1962) ..........................................  17,

Griffin v. County School Board of Prince Edward 
County, ........ U .S ..........  (May 25, 1964) ................

Griffin v. Board of Supervisors, — — F.2d ........ (4th
Cir., 1964) ................................................................... ........

Harrison v. Day, 200 Va. 439 ......................... .................

Hill v. School Board of City of Norfolk, 282 F.2d 118 
(1962) ............................. ............................................  2,

Jackson v. School Board of City of Lynchburg, 321 
F.2d 230 (4th Cir. 1963) ............................................

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

Jones v. School Board of City of Alexandria, 278 F.2d 
72 (4th Cir. 1960) ..................................................  18,

Marsh v. County School Board of Roanoke County, 305 
I'.2d 94 (4th Cir. 1962) ..................................................

Pettaway v. County School Board of Surry County, 
Virginia, ........F .2 d .........  (4th Cir., 1964) ................

Rolax v. Atlantic Coast Line R.R., 186 F. 2d 473 (4th 
Cir. 1951) ........................................................................

School Board of Norfolk, Virginia v. Beckett, 260 F. 2d 
18 (4th Cir. 1958) ................................. .......................

Vaughan v. Atkinson, 369 U.S. 527 (1962) ___ ____

Watson v. City of Memphis, 373 U.S. 526 (1963) .....

20
17

20

15

18

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20

18

2

21

20

19

21

2

21

15



In The
UNITED STATES COURT OF APPEALS 

For The Fourth Circuit

No. 9898

CARLOTTA M OZELLE BREW ER, et al,
Appellants,

v.

T H E  SCHOOL BOARD OF T H E  CITY OF 
NORFOLK, V IRG IN IA , et al,

Appellees.

BRIEF OF APPELLANTS

STATEMENT OF THE CASE 
The Early Proceedings

This action was instituted on May 10, 1956. Effective 
August 15, 1957, the defendants were enjoined “from 
refusing, solely on account of race or color, to admit to, or 
enroll or educate in, any school under their operation, con­
trol, direction or supervision, directly or indirectly, any 
child otherwise qualified for admission to, and enrollment 
and education in, such school.” (A. 29 and 50.) The court 
expressly retained jurisdiction of this cause for such future 
action as may be necessary “including the power to en­
large, reduce, or otherwise modify” the provisions of the 
above-quoted injunctive decree of February 26, 1957 which 
incorporated the court’s memorandum opinion filed Febru­
ary 12, 1957.



2

Appellate processes having forestalled the implementation 
of that injunction during the 1957-58 school session, 151 
Negro children through their parents or guardians sub­
mitted applications to attend white schools at the com­
mencement of the 1958-59 session. The school board ap­
proved 17 applications but denied the remaining 134. The 
school board’s request to defer these 17 assignments until 
the 1959-60 school year was denied by the District Court. 
Deciding cross-appeals by the school board and the 134 
unsuccessful applicants, this Court affirmed the lower court’s 
decision, explaining that the school board had failed to 
show what beneficial use might be made of the requested 
delay and that the District Court’s decision as to the 134 
unsuccessful applicants was not final. [School Board of 
N orfolk, Virginia v. Beckett, 260 F. 2d 18 (4th Cir. 1958).]

The six schools to which the 17 Negroes were assigned 
were closed pursuant to Virginia’s “school closing” laws 
which were subsequently struck down by a Three-Judge 
District Court [James v. Almond, 170 F. Supp. 331 (E.D. 
Va. 1959) ] and by the Supreme Court of Appeals of V ir­
ginia (Harrison v. Day, 200 Va. 439).

On May 8, 1959, the District Court approved the school 
board’s denial of the 134 applicants and on September 9, 
1960, this Court in the case of Hill v. School Board of 
Norfolk, Virginia, 282 F. 2d 473, affirmed that decision.

Meanwhile, on October 22, 1959, the District Court held 
that the Pupil Placement Act was unconstitutional as it was 
being administered in the City of Norfolk [185 F. Supp. 
459 (E.D. Va. 1959)]. In August of 1960, the court per­
mitted the intervention of Calvin E. Winston and 15 others; 
and on August 31, 1960, after a hearing, the Court ordered 
the admission of five of the intervenors.. (A. 13.)



3

In August of 1961, the motion to intervene of Steven E. 
Merriman and 49 others was filed and, after the conclu­
sion of a two-day trial, the school board permitted the 
transfer of some of the intervenors to white schools. (A. 
17.)

The Instant Appeal

In July of 1963, a motion to intervene and complaint 
in intervention were filed by Charlotte Mozelle Brewer and 
5 others (the appellants herein). Prior to the December 
7, 1963 trial of this motion, 28 additional intervenors 
(Greta Denise Miller, et al) sought to obtain a temporary 
restraining order enjoining the defendants from continu­
ing to deny their admission to predominantly white schools 
because of their failure to comply with the school board’s 
May 31 deadline.

On July 30, 1964, the District Court filed its Memoran­
dum opinion indicating a denial of the relief sought by all 
of the intervenors.

On September 4, 1964, the defendants moved the Court 
to approve its action by which 195 Negro children were 
permitted to rescind applications to attend white schools for 
1964-65. On October 22, 1964, the District Court entered 
its order (1) approving the “plan” wrhich the school board 
had submitted on August 8, 1963 and amended on Decem­
ber 7, 1963, (2) denying plaintiffs’ motion for further 
relief (including plaintiffs’ prayer for reasonable attorney’s 
fees), (3) refusing to enlarge the injunction entered on 
February 26, 1957, and (4) denying plaintiffs’ motion for 
temporary injunction as to certain intervenors.



4

Notice of appeal was filed on November 20, 1964.

QUESTIONS PRESENTED

I

Does the plan, as approved and administered, merely 
facilitate the continuation of a racially discriminatory 
school system ?

II

May the rights of the plaintiff class now be postponed 
on the strength of the school board’s plan as administered ?

III

Does this case require the submission of a plan under 
which the school board will promptly accomplish a racially 
non-discriminatory school system?

IV

Do “dominating reasons of justice” require an award of 
counsel fees to plaintiffs’ counsel?

STATEMENT OF FACTS 

The Segregated Pattern In The City of Norfolk

The attendance areas for the public schools of the City 
of Norfolk have not been materially revised since the 
Brown decision. The Superintendent testified on December 
7, 1963, that “except where we have built new schools Or 
have slightly moved some boundaries to take care of 
changes in population area” the school boundaries are



5

substantially the same as they have been over the years 
(Transcript of Proceedings, Page 93).

Certain of the elementary and junior high schools—-those 
whose attendance areas embrace neighborhoods or sections 
of the city in which reside. persons of only one race—serve 
only the persons living in their designated attendance zones. 
(A. 64-66.)

The Negro schools included in these groups are as fol­
lows :

(a) Elementary— Bowling Park, Carey, Clay, Douglas 
Park, Gatewood, Goode, Jackson, Lincoln, Oakwood, Titus, 
Tucker and West.

(b) Junior High— None

The white schools in this category are as follows:

(a) Elementary— Ballentine, Bay view, Campostella, 
Coleman Place, Crossroads, East Ocean View, Lafayette, 
Lakewood, Larchmont, Larrymore, Little Creek, Little 
Creek Primary, Oceanair, Oceanview, Pineridge, Poplar 
Halls, Pretty Lake, Sherwood Forest, Stuart, Tarrallton, 
and Taylor.

(b) Junior High—Azalea and Willard.

The other elementary and junior high schools—those 
whose attendance areas embrace sections of the city in­
habited by both Negro and white persons—have dual and 
overlapping zones, there being in each of such neighbor­
hoods an all-Negro school and an all-white or a predomi­
nantly white school. (A. 64-66, 77-80.)



fi

The elementary and junior high schools with dual and 
overlapping zones, the number of white and Negro pupils 
in the attendance area of each, (A. 34-36), and the schools 
serving such attendance area are as listed below:

School Attendance Number Of School Serving

Areas as shown on Students In Such Attendance

P-X 1-A-l Attendance Area Areas

Elementary White Negro

Campostella 120 2 Campostella, Tucker, 
Gatewood, Diggs Park, 
Lincoln—depending on 
residence

Chesterfield Chesterfield Heights,
Heights 545 784 Liberty Park

Coronado 20 300 Coronado, Nor view
Diggs Park 5 641 Diggs Park, Campostella
Gatewood 4 719 Gatewood, Campostella
Liberty Park 545 784 Liberty Park, Chester­

field
Lincoln 0 697 Lincoln, Campostella
Lindenwood 683 904 Lindenwood, Monroe
Madison 0 330 Madison, Monroe
Marshall 352 200 Marshall, Young Park, 

Titustown — depending 
on residence

Meadowbrook 637 35 Meadowbrook Titus-
town—depending on res­
idence



7

Monroe 683 904 Monroe, Lindenwood 
Titustown — depending 
on residence

Norview 615 39 Norview, Coronado
Smallwood 5 592 Smallwood, Stuart
Stuart 857 0 Stuart, Smallwood
Titustown 200 476 Titustown, Monroe, 

Marshall, Meadowbrook 
—depending on residence

Tucker 0 521 Tucker, Campostella
Young Park 350 837 Young Park, Marshall

Junior High Schools

Blair 1255 1807 Blair, Ruffner, Madison, 
Jacox, Campostella— 
depending on residence

Campostella 10 1000 Campostella, Blair
Jacox 150 1574 Jacox, Blair
Madison 100 480 Madison, Northside 

Blair—depending on res­
idence

Northside 1480 150 Northside, Madison
Norview 1589 480 Norview, Rosemont
Rosemont 1589 435 Rosemont, Norview
Ruffner 200 1473 Ruffner, Blair

The “all-Negro” Booker T. Washington High School
serves the entire City of Norfolk. For white children, the 
city is divided into three zones, one for Norview High 
School, one for Granby High School and one for Maury 
High School. (Transcript of Proceedings p. 16.)



8

The school attendance zones are shown on maps which 
were filed in response to plaintiffs interrogatories (See 
plaintiffs’ exhibits 1-A-l, l-A-2 and l-A -3), a ‘‘key” to 
which (plaintiffs’ exhibit l-A -4) is printed in the appendix 
(A. 64-66).

The number of white pupils and the number of Negro 
pupils living in the attendance areas for each school in the 
City of Norfolk is shown in the answer to interrogatory 
number three (A. 34-36).

Prior to the implementation of the “Principles”1 by the 
school board, a pupil in the City of Norfolk could escape 
the normal zone assignment described above only if his 
parent or guardian would execute an application for 
transfer and if that application was approved by the 
School Board. (See pages /<? to «2/ infra, for the results 
of these applications during the years 1960, through 
1964).

The Assignment Picture in September 1963

A t the time of the trial of this case (December 7, 1963), 
Norfolk’s school system, had a total enrollment of 55,657 
of whom 20,614 were Negroes. Twenty (20) elementary 
schools, five (5) junior high schools and one (1) high 
school could readily be identified as “Negro” schools, they 
being the only schools in which Negroes (and none but 
Negroes) were employed as principal, teacher, or in an 
administrative capacity, and, except for eleven white chil­

1 Principles To Be Applied in Determining The Schools And Grades Which 
Children Will Attend And Outline Of Method Of Putting Such Principles Into 
Effect. (See A .'43-44).



9

dren who attended Lee Elementary School,2 these schools 
were attended by none but Negro students. A total of 218 
Negro children attended 8 of the city’s 32 elementary 
schools which white children attended. A total of 32 Negro 
children attended 3 of the city’s 5 junior high schools which 
white children attended. A total of 81 Negro children at­
tended the three high schools which white children attended. 
(A. 37.) No Negro child atended school with white chil­
dren unless he (or his parents) had specially sought and 
obtained such assignment.

The School Faculties

The teachers and other administrative personnel of the 
Norfolk city schools are assigned strictly along racial lines. 
As stated by the District Court, “The procedure presently 
followed by the School Board is to assign principals and 
teaching personnel who are Negroes to those schools which 
are attended predominantly by Negro children, and where 
the school is attended predominantly by white children the 
principal and teaching personnel have been white.” (A. 52.)

The Present Plan

In its August 8, 1963 answer to the motion for further 
relief, the school board promulgated its new policy, which 
did not become effective until the beginning of the 1964-65 
school session. The policy as amended was filed with the 
court on December 7, 1963 as a statement of “Principles

2 Following a rapid change in the racial composition of the neighborhood, the 
school board in July of 1963 replaced the all-white faculty of Lee School 
with an all-Negro faculty. (A. 81.)



To Be Applied In Determining the Schools And Grades 
Which Children Will Attend And Outline Of The Method 
O f Putting Such Principles Into Effect” (A. 43-44). The 
key provisions of the plan a re :

“Principles

“1. If only one school serves an area, all children 
living in the area will attend such school; provided, 
that any child who at the end of the 1963-64 school 
year is/was attending a school which does not/did 
not serve the area in which he lives may, at the option 
of him and his parent or guardian, continue to attend 
such school as long as he is in a grade which such 
school has.

“2. If two schools serve an area, all children living- 
in the area may choose, subject to the approval of their 
parents or guardians and subject to the maximum 
capacities of the schools, the school which they wish 
to attend. . . . ”

The Present Assignment Picture

In his memorandum opinion the District judge has noted:

“While not in the record, but again with permission 
of counsel( see correspondence) in order to point out 
the results of operation, when the forms were dis­
tributed to the children living in a school attendance 
area which is served by two or more schools during the 
spring of 1964, 1251 Negro pupils selected predomi­
nantly white schools, whereas 12,097 Negro pupils 
elected to attend predominantly or all-Negro schools. 
It must be remembered that every one of the 13,348



11

Negro children had the election of attending either a 
predominantly Negro school or a predominantly white 
school.”

Further pertinent facts are these: There are 7,266 Negro 
children and 15,276 white children to whom “freedom of 
choice” does not apply. These children are locked into 
strictly racially segregated schools with no escape route 
save change of residence. In addition, there are 12,097 
Negro children living in freedom of choice areas whose 
parents are unaware of or are indifferent to the basic 
factual premises of Brown v. Board of Education.

ARGUMENT

I

The “Plan” Merely Facilitates The Racially 
Discriminatory School System

Can the school board perform its duty to eliminate racial 
segregation—which it has created and maintained—merely 
by offering to pupils who live in racially mixed neighbor­
hoods a choice between “Negro schools” and “white 
schools” ?

The plan of the school board continues in use the dual 
and overlapping zones inherited from the separate but 
equal era. The plan continues the policy and practice of 
assigning facilities and administrative personnel on a strictly 
racial basis. The school board will continue to operate 
“Negro schools” and “white schools” . The heart of the 
board’s plan is that pupils living in racially mixed neighbor­
hoods will be offered a choice between the “Negro School” 
and the “white school” assigned to serve their area.



12

In their motion for further relief, plaintiffs sought an 
order requiring the school board to file with the court a 
plan for the “immediate and complete elimination of racial 
discrimination in the public school system of the City of 
Norfolk” and requested that each child be assigned by the 
school board to the school nearest his home, notwithstand­
ing his race. (A. 24.)

The position of the school board before the district 
court was that they have no duty to integrate the Norfolk 
schools. In the answer to the motion for further relief, the 
school board stated stated that they “have not been ordered 
or directed by the Court and are not under any legal or 
constitutional duty to propose or follow any specific time 
table in respect to further desegregation of the schools 
of the city” (R. 14).

The underlying purpose and effect of the plan is to 
prevent the school board from assigning Negro and white 
children to the same school. (A. 75, 76, 89.) In all of the 
high schools, in eight of the ten junior high schools and at 
least 18 of the fifty-five elementary schools, the school 
board has avoided its duty to establish unitary nonracial 
attendance zones by attempting to place on the children 
living in the affected areas the job of desegregating Nor­
folk’s schools.

The school board’s attempt to “delegate” its duty cannot 
be squared with the controlling constitutional principle 
enunciated in Brown v. Board of Education, 349 U.S. 294. 
298 (1955) :

“All provisions of federal, state, or local law requir­
ing or permitting [racial discrimination in public



13

education] must yield to [the fundamental principle 
that racial discrimination in public education is un­
constitutional].”

The school board's assertion that it has no duty to 
desegregate the schools was fully answered by this Court in 
Bell v. County School Board of Powhatan County, 321 
F.2d 494 (4th Cir., June 29, 1963), viz:

“Further, their counsel declared in oral argument: 
‘If it is our duty to encourage integration, then we 
have violated our du ty!’ ”

To which remark the response of the Court was:

“The School Board has indeed violated its duty. It is 
upon the very shoulders of school boards that the 
major burden has been placed for implementing the 
principles enunciated in the Brown decisions. Quite 
explicitly the Court declared:

‘School authorities have the primary responsibility 
for elucidating, assessing, and solving these [varied 
local school] problems [attendance upon desegrega­
tion] ; courts will have to consider whether the action 
of school authorities constitutes good faith imple­
mentation of the governing constitutional principles.’ 
348U .S.294. 299(1955).”

II

The Rights of Individuals Of The Plaintiff Class 
May Not Be Postponed On The Strength Of The 

School Board’s Plan Even As Administered



14

"A t stake is the personal interest of the plaintiffs in 
admission to public schools as soon as practicable on a non- 
discriminatory basis. * * * Courts of equity may properly 
take into account the public interest in the elimination of 
. . . obstacles in a systematic and effective manner. * * * 
While giving weight to these public and private considera­
tions, the Courts will require that the defendants make a 
prompt and reasonable start toward full compliance. * * * 
The burden rests upon the defendants to establish that 
[additional] time is necessary in the public interest [in the 
systematic and effective elimination of obstacles] and is 
consistent with good faith compliance at the earliest practi­
cable date.” Brown v. Board of Education, 349 U.S. 294 
(1955).

"Given the extended time which has elapsed, it is far 
from clear that the mandate of the second Brown decision 
requiring that desegregation proceed with ‘all deliberate 
speed’ would today be fully satisfied by types of plans or 
programs for desegregation of public educational facilities 
which eight years ago might have been deemed sufficient. 
Brown never contemplated that the concept of ‘deliberate 
speed’ would countenance indefinite delay in elimination of 
racial barriers in schools * * * Most importantly, of 
course, it must be recognized that even the delay counte­
nanced by Brown was a necessary, albeit significant, adapta­
tion of the usual principle that any deprivation of constitu­
tional rights calls for prompt rectification. The rights here 
asserted are, like all such rights, present rights; they are 
not merely hopes to some future  enjoyment of some for­
malistic constitutional promise. The basic guarantees of our 
Constitution are warrants for the here and now and, unless 
there is an overwhelmingly compelling reason, they are to 
be promptly fulfilled. The second Brown decision is but a



15

narrowly drawn, and carefully limited, qualification upon 
usual precepts of constitutional adjudication and is not to be 
unnecessarily expanded in application.” Watson v. City o f 
Memphis, 373 U.S. 526, 530 (1963).

“The time for mere ‘deliberate speed’ has run out . . . .” 
Griffin v. County School Board of Prince Edward County, 
377 U.S. 218 (May 25, 1964).

“Although Atlanta’s commendable effort to effect deseg­
regation is recognized, the District Court on remand, must, 
of course, test the entire Atlanta plan by the considerations 
discussed in Watson v. City o f Memphis, 373 U.S. 526, 
529; Goss v. Board of Education, 373 U.S. 683, and Griffin 
v. County School Board of Prince Edward County, ante, at
____, decided subsequent to the District Court’s approval
of the plan. In Goss, supra, at 689, we said:

“ ‘[We] are not unmindful of the deep-rooted problems 
involved. Indeed, it was consideration for the multi­
farious local difficulties and ‘ “ variety of obstacles” ’ 
which might arise in this transition that led this Court 
eight years ago to frame its mandate in Brown in such 
language as ‘ “good faith compliance at the earliest 
practicable date” ’ and ‘ “all deliberate speed.” ’ Brown 
v. Board of Education, 349 U.S., at 300, 301. Now, 
however, eight years after this decree was rendered 
and over nine years after the first Brown decision, the 
context in which we must interpret and apply this 
language to plans for desegregation has been sig­
nificantly altered. Compare Watson v. City o f Mem­
phis, supra.’ ”



16

Calhoun v. Latimer, 377 U.S. 263 (No, 623, May 25; 
1964).

Ill

This Case Requires The Submission Of A Plan
Under Which The School Board Will Promptly
Accomplish A Racially Nondiscriminatory School

System

The School Desegregation Cases were decided by the 
Supreme Court on May 17, 1954 and the implementing 
judgment was pronounced one year later. This action was 
instituted on May 10, 1956. The statement of the case and 
the docket entries (A. 2-21) reflect a constant struggle b\ 
members of the plaintiff class to effect the implementation 
of the Brown decision.

Yet, despite this extended litigation and one year’s ex­
perience under the school board’s plan, we find less than 
1300 children out of a total of more than 55,000 who, 
during the 1964-65 school year, could experience any tangi­
ble reason reason to believe that our constitution is color 
blind or that it is the supreme law of the land.

The defendants in their answer promise that their dual 
system of attendance areas will not control in determining 
the assignment of pupils who apply for initial enrollments 
in, or tranfers to, schools attended wholly or predominantly 
by children of the opposite race. This must be read in the 
light of their disavowal of duty or purpose to effectuate a 
a transition to a racially nondiscriminatory school system. 
They thus have removed themselves from the umbrella of



the Hill opinion and stand in the same position as were 
the defendants in Green v. School Board of the City of 
Roanoke, 304 F. 2d 118 (4th Cir. 1962) and Marsh v. 
County School Board of Roanoke County, 305 F. 2d 94 
(4th Cir. 1962) concerning whom it was said: “Obviously 
the maintenance of a dual system of attendance areas 
based on race offends the constitutional rights of the 
plaintiffs and others similarly situated and cannot be 
tolerated. Jones v. School Board of the City o f Alexandria, 
278 F. 2d 72, 76 (4th Cir. I960 .)”

The defendants’ proposal should be recognized for what 
it is, merely a continued refusal to “make a . . . reasonable 
start toward full compliance with [the] May 17, 1954, 
ruling and a refusal to assess, solve or even consider 
“problems of the school plant, . . . transportation . . . , per­
sonnel, revision of school districts and attendance areas 
into compact units to achieve a system of determining ad­
mission to the public schools on a nonracial basis.”

The defendants have been and are preoccupied with 
avoiding their duties set forth in the second Brown decision 
as next above quoted. Freedom of choice within the bi- 
racial dual attendance zones does not even thinly veil the 
infirmities condemned in Goss v. Board of Education of the 
City o f Knoxville, 373 U.S. 683 (June 3, 1963). The 
termination of the biracial character of the school system 
involves more than individual assignments of school chil­
dren. Ahead of that the Court mentioned problems related 
to personnel.

In the case of Braxton  v. The Board of Public Instruc­
tion of Duval County, . . . F. Supp. . . . (D.C. S.D. 
Fla., C.A. No. 4598-J, Aug. 21, 1962), affirmed, sub nom,



18

Board of Public Instruction v. Braxton, 326 F. 2d 616 
(5th Cir., Jan. 10, 1964), cert. den. June 29, 1964, upon 
finding no change in the practice under which “Negro 
personnel are assigned to Negro schools and white person- 
ne are assigned to white school” , and concluding that no 
steps had been taken by the defendants to reorganize 
the biracial school system into a single non-racial school 
system as required by the Brown case as interpreted by 
Cooper v. Aaron, 358 U.S. 1, 7, the Court enjoined the 
school authorities against:

“B. Continuing to maintain a dual scheme or pattern 
of attendance areas baser upon race or color ;

“C. Assigning pupils to schools on the basis of race 
and color of the pupils;

“D. Approving budgets, making available funds, 
approving employment contracts and construction 
programs and approving policies, curricula and pro­
grams designed to perpetuate, maintain or support a 
schoo system operated on a racially segregated basis.

“E. Assigning teachers, principals, and other super­
vising or supporting personnel to schools on the basis 
of the race and color of the persons to be assigned 
and/or the race and color of the pupils atending the 
schools to which the personnel are assigned; . . . ”

The importance of non-racial assignment of personnel 
has been recognized by the Fourth Circuit in Jackson v. The 
School Board of the City o f Lynchburg, 321 F. 2d 230 
(June 29, 1963) ; Brooks v. County School Board of A rl­
ington County, 324 F. 2d 303 (October 31, 1963); Griffin 
v. Board of Supervisors, 339 F. 2d 486 (4th Cir., 1964) and



19

Pettaway v. County School Board of Surry County, — 
F. 2 d ------ (4th Cir, 1964).

In this case, the strictly segregated faculties and the use 
of the traditional dual attendance zones have the inevitable 
and obvious effect of limiting the number of Negroes who 
might otherwise choose to attend other than all-Negro 
schools and making it extremely difficult for any white child 
to choose to attend any school other than a white or pre­
dominantly white school.

IV

“•Dominating Reasons Of Justice” Require An Award 
Of Counsel Fees To Plaintiffs’ Counsel

Retrospectively viewing this case, we cannot fail to see 
the school board’s “unyielding refusal to take any initiative” 
and that such refusal has cast “a heavy burden on the chil­
dren and their parents.” Cf. Bell v. County School Board of 
Powhatan, 321 F. 2d 494 (1963). Neither can the school 
board escape conviction of “interposing a variety of ad­
ministrative obstacles to thwart the valid wishes of the 
plaintiffs for a desegrated education” (ibid).

The answer to plaintiffs’ Interrogatory # 6  and the re­
ports filed with the court by the school board indicate that 
for the 1960-61 school session, 6 Negro children were 
denied transfer to white schools because they “failed to take 
a scholastic test for transfer or to submit to an interview”, 
3 were denied because their “scholastic achievement” did 
not justify transfer, and one because he lived nearer to 
another school than to the school to which he had applied; 
that for the 1961-62 school session, 23 Negro children



20

were denied transfer to white schools because their scholas­
tic achievement did not justify transfer, and 12 because 
they “failed to take a scholastic test for transfer or to 
submit to an interview” ; that for the 1962-63 school 
session, 11 Negro children were denied transfers to white 
schools because they lived nearer to other schools than to 
the schools to which they had applied, 7 because they failed 
to apply for transfer prior to May 31, 6 because of “too 
frequent transfers involved” and 5 because they “failed to 
take scholastic tests for transfer or to submit to an inter­
view” ; that for the 1963-64 school session, 122 Negro 
children were denied transfers to white schools because 
they failed to submit their applications prior to the May 31 
deadline, 3 were denied because they lived nearer to other 
schools than to the schools to which they had applied and 
one because he lived in an area not served by his school.

Denials of transfer requests for reasons given above 
where coupled with discriminatory initial assignments had 
been condemned by this Court in this case! See Hill v. 
School Board of Norfolk, supra. These practices were 
also condemned by this Court in the cases of Jones v. City 
o f Alexandria, supra, Green v. School Board of the City 
of Roanoke, supra, Marsh v. County School Board of 
Roanoke Comity, supra, and Dodson v. School Board of the 
City o f Charlottesville, 289 F. 2d 439 (4th Cir. 1961).

This record demonstrates a “long continued pattern of 
evasion” and a purpose of maintaining segregation to the 
fullest extent possible. The docket entries which are printed 
in the appendix demonstrate the determination of the 
school board to hold the line in the courts. (A. 2-21.) 
The answers to interrogatories numbered 1-C, 1-D, 1-E 
and 3 demonstrate the phenomenal success the school board 
has had in holding the line in the schools.



For other examples, we mention the conversion of Lee 
School to a “Negro” facility in July of 1963, the siting 
of new school construction so as to preserve the biracial 
pattern of the school system, and the experiences of Mrs. 
Pruden as shown by this record. (A. 38, 39, 67-73.)

As was said in the Powhatan case: “The equitable rem­
edy would be far from complete, and justice would not be 
attained, if reasobnale counsel fees were not awarded in a 
case so extreme. See Rolax . v. Atlantic Coast Line R. R., 
186 F. 2d 473, 481 (4th Cir. 1951) (Parker, C. J .) ;  cf. 
Vaughan v. Atkinson, 369 U.S. 527, 530-31 (1962).”

CONCLUSION

Since May of 1956, the Norfolk School Board has been 
entreated to implement the Brown decision in its school 
system. Since early 1959, when the school closing laws 
were invalidated, the school board has been unhampered in 
its efforts to operate Norfolk’s schools. Since September of 
1960, the school board has been on notice of this Court’s 
warning in the Hill case that its school system did not 
“meet the requirements of the law” (282 F. 2d 473, 474). 
Yet this record reveals a determined persistence by the 
school board to maintain a racially segregated school system. 
The demonstrated intransigence of the school board in 
denying individual applications and in refusing to take 
the initiative to desegregate the schools, notwithstanding 
nearly a score of decisions from this Court, necessitates 
firm action by this Court to require from the school board 
performance of the law’s command.

It is respectfully submitted that the judgment of the 
District Court approving the plan of the school board and



22

denying plaintiffs’ motion for further relief be reversed and 
that this cause be remanded to the District Court with 
direction that the school board be required to submit a plan 
to end racial discrimination in the public school system and 
in all facets thereof promptly and with further direction to 
make a proper award of a fee to plaintiffs’ counsel to be 
taxed as costs.

Respectfully submitted,

S. W. T u c k e r  
H e n r y  L. M a r s h , III 
V ic t o r  J. A s h e  
J. H u g o  M a d is o n  
J a c k  G r e e n b e r g  
J a m e s  M . N a b r i t , III

Counsel for Appellants