Brief for Plaintiffs (Draft)

    ” 
8 

BRIEF FOR PLAINTIFFS 

  

  

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

Danville Division 

  

CIVIL ACTION NO. 65-C-7-D 

  

IRVIN T. BETTS, et al 

Plaintiffs 

VS 

COUNTY SCHOOL BOARD OF HALIFAX 
COUNTY, VIRGINIA, et al, 

Defendants 

  

S. W. TUCKER 
HENRY L. MARSH, III 
WILLARD H. DOUGLAS, JR. 

214 East Clay Street 
Richmond, Virginia 

RUTH L. HARVEY 

453 South Main Street 
Danville, Virginia 

Jo. L. WILLIAMS 

216 North Ridge Street 
Danville, Virginia 

JACK GREENBERG 
JAMES M, NABRIT, III 

10 Columbus Circle 
New York, New York 

Counsel for Plaintiffs 
  

 



  

TABLE OF CONTENTS 

STATEMENT OF THE PACTS. cee sore ior wom ouite arse sess arin or ow io vio i es os ps ae veri 

THE ISSUES crow ieio ori rms orm me omnes mo me eo sei ero ee oh om so 

I. The Defendants Should Be Required To Desegregate 
The Faculty And Staff At Each School Prior To The 
Beginning Of The 1966-67 School Term —-ee-ecececeeeccee= 

ITI. The Halifax County School Board Has A Clear 
Constitutional Duty To Establish Unitary Non- 
racial School Attendance Areas eewecceccaccccccccame= 

A. The Doctrine Of Briggs v. Elliott Must Be 
JRO TO RBEL om mommies soineice wi irons so uond io om mo v's ov sn ie aeien 
  

1. The Briggs Doctrine Is Inconsistent 

LET BOIL caer sons wooo so eas do sv i mr es avr mo mr eke 

2. The Basic Factual and Legal of Briggs 
WETS DNSONNA" wore ori wm ime mom so bionims sais ii oi ose aio aioe 

3. The Briggs Doctrine Stands Repudiated 
By The Fourth Ciroult weecevwmoemwammmmmmmmaes 

B. Neither The Doctrine Of Carson Nor The 

Dictum In Jeffers Permits Avoidance Of 

Decision With Respect To The Defendants' Duty a-- 

C. The True Meaning Of "All Deliberate Speed" 
LB TOW 100 av cement ours ce ra cm i so rw i 

  

Page 

10 

12 

22



  

TABLE OF CASES 

Bell v. School Board of City of Staunton, + . Fo SUuppe coe 
( 1966) E50 0) 0 CD CC CC C0 Gh AD GR) A) DD ED CD GR Gh C0 (LC 1 SG Ca VO CS a 0 CD a CB GD 3 G0 LS 

Bolling v. Sharpe, M7 U,8, 407 (1954) ewcwecvemsnnosssnonnwcc 

Bradley v. School Beard of the City of Righrend, 
317 Fold 429 {i001}  cnnrdnmrnssn scenic aewmnm esac 

Bradley v. School Board of the City of Richmond, 
U5. F228 30 {I088) | wcnmwuunsumncaswsmmmmnmmiscos ese eames 

Bradley v. School Board; see UsSe soo (Noo, 415, 
November is, 1965) 0 GR DE ee GR OR GED eG GO EE DO LE EB EE A Ch) da 

Brewer v. The School Board of the City of Norfolk, 
349 F.2d 414 (4th Cir, 1965) FI BE ES OF 0 0 CAD 0 150 GN SN OED GR ID GI ONS BND ORO GE CD SE AE In am ce BS EE) 

Briggs v. Elliott, 132 F. Supp. 776 (EeDe 8.Co 1955) ecacce=a= 

Brown v. Board of Education of Topeka, 347 U.S. 
UBS (101) | ee amencoscrecevinrmeunessesiorcs vrs armen cance 

Brown v. Board of Education of Topeka, 349 U.S. 
29M. (1088) | cuumawmsmnascsuncerimrmmse vrs sTe een —— 

Buckner v. County School Board of Greene County, 
332 Fo2d 452 (1964) cenvnmmmamm EOE) SR Ga a EE LAD SR UE mE Ha 1) I) OR TE OD £30 BE GE = ee ES a 

Carson v., Board of Education of McDowell County, 
227 Fall 789 {kh Cire 19558)  cewmswsmwmenwoasess OS E00 50 ol 6 Gl 

Carson ve. Warlick, 238 F, 2d 724 (1956) 

Cooper v, Aaron, 388 US: 1 (i958)  acuusmmsnwmwessssscccsenmns 

Dillard v. School Board of the City of Charlottesville, 
308 F.2d 920. (1962) PED ED 0 20 ca CD TD GD i BED BR 0 Gl 30 69) GHD £30 OD GR RD) GD G0 GHD GD CN CD RRR GRD ER GD nn ND Cut Ga La 

Dodson v. School Board of City of Charlottesville, 
289 P20 439 {Ith Cire 1981)  sumwwmmimevonmmammsmmimsmes 

“il = 

11,18,19 
22,23 

5,10,22, 
24 

19 

6,7,8,10, 
12,13,17, 
18,22 

7:8,9,12 

508,10, 
12,23 

18,21 

 



  

Farley v. Turner, 281 F.2d 131 (1960) «cucacceo== cam a woe nn 

Goss v. Board of Education, 373 U.S. 683 (1963) scacccccme= 

Green v., School Board of the City of Roanoke, 
30H FolBi 118 (108)  wuecrxdmmwmsvmmsmancseensmmmamavess 

Gilliam v, School Board of the City of Hopewell, 
000 U.S, ec 0Qy i5 FI ed 187 (1965) ERR EEE EE Er Sy) EE EE 

Griffin v. County School Board of Prince Edward 
County, 377 U. S. 218 (1964) wD RGD OD SRD CD oR 0 ED ORO OR SOR eR 

Henderson v. United States, 339 U.S. 816 cecucrusmuwnammmccns 

Hill v. School Board of the CLty of Jorfelen 282 

Hoed v. Board of Trustees, 232 F.2d i (4th Cir. 
1956) ED GER OR OD ODE GOR GR OO OO GD OSS Be OR GR OF OD GOD OGD aS Ga OR ED OR OD 6B Go OD a G0 GR ae an 

Hood v. Beard of Trustees, 286 F.2d 236 (1961) ccaum=ssms=zse= 

Jeffers Vo Whitley, 309 F.2d 621 (1962) CREE CRAnER ES CHW EN EN REN EE ES SS SR ER 

Jones ve. The School Board of the City of Alexandria, 
278 Te VA 72 (1960) £5 ED ED FDO) GN 60 60 CN) 63 0 £0 60 03 50 6) GR 6) A 0 63 65 0 0 6 65 650 G0) 60 6 60 £0 1 CR SR 6 6) 

Kier v. County School Beard of Augusta County, 
0660 Fo, Supp. e006 (W, PD. Va. 1966) £5 53 OF 6 GN E068 0 ES SH EH ER GH ERS ER SRR ES EER ER SR ER 

Louisiana v. United States, 380 U.S. 145 (1965) cescczccmses 

McCoy v. Greensboro City Board of Education, 
283 Fe. 2d 667 (1960) E20 om 00 SR G3 6 ET OF ON BD a 0 SSO SN 00 60 a 0 EE GD a0 SR SR ED SD 50 me E10 G0 6 60 6D ER 

Marsh v, County School Board of Roanoke County, 
305 Fr, 2d 94 (1962) SE ERED ER ED) 6 ED ER ER 05 A GR 60 S006 50 6 0 FD 6) 0 a 6) a0 (0 1 Ga AD OR OR ON S06 69) 6 Oe A) 

Price v. Denison Independent School District Board 
of Education, 348 F.2d 1010 (5th Cir, 1965) cexccccesc=e 

Yogezs Vo Paul, 259 9.8, eee li 53% 1 December 

School Board of City of Sharlotiesvilie Ve Alen, 

- iii ~ 

20,21 

13,16 

5,622 

19 

15 

16,20 

19 

5,6,10, 
23,24 

i3 

 



    

Charlottesv:      

  

   
   

  

   
ERT g 

Oo 1 Viam hi cs 
LCE 1p 11D g 7      

  

   

n
l
 

C
S
 

DN
) 

DD
 

=
 

 



  

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

Danville Division 

IRVIN T. BETTS, et al., 

C
c
 

0
0
 

o
e
 

Plaintiffs, 

0
 CIVIL ACTION 

VSe 8
0
 

NOe 652Ca?-D e
o
 

COUNTY SCHOOL BOARD OF HALIFAX 
COUNTY, VIRGINIA, et al., 

9
0
 

o
C
 

e
o
 

Defendants, [ 1
] 

BRIEF FOR PLAINTIFF 
  

STATEMENT OF THE FACTS 

Two infant plaintiffs (James Barksdale and Walter D. Carter) and 

two infant plaintiff-intervenors (Annie Green and Cynthia Green), all 

being Negroes, seek an order to compel the prompt and efficient elimination 

of racial segregation from the public school system of Halifax County, "ina 

cluding the elimination of any and all forms of racial discrimination with 

respect to administrative personnel, teachers, clerical, custodial and 

other employees, transportation and other facilities, and the assignment 

of pupils to schools and classrooms", 

The defendants aver that the infant plaintiffs and all others 

eligible to enroll in the public schools "are permitted, under existing 

policy, to attend the school of their choice without regard to race sub- 

ject only to limitations of space" (Answer, Paragraph 11), that there is 

no racial segregation in the schools (Answer, Paragraph 12), that long  



  

before the institution of this suit it had been the policy of the defend- 

ants to operate the school system under a "freedom of choice" principle, 

and that the school system is being operated in compliance with the re- 

quirements of Title VI of the Civil Rights Act of 1964. 

The evidence shows that of more than 2,000 Negro children of 

elementary school classification, only five attend or have ever attended 

schools with white children, although elementary school children of both 

races are about equal in number and are evenly distributed throughout the 

county. 

Halifax County has no high schools or junior high athoole its 

entire system consists of but nine elementary schools which white children 

attend and seventeen elementary schools which none but Negro children attend. 

Fourteen of these Negro schools are of primitive, rudimentary construction 

(the nineteenth century type of two to five room rural schools) and are to 

be abandoned as of September 1966, giving way to modern consolidated schools, 

The school authorities anticipate that the children from these schools will 

be housed in a 22 room school (Clay's Mill) or in a 17 room school (Mead- 

ville) or in a four room addition to Sinai Elementary School, all of which 

are scheduled for completion in time for the 1966.67 session, 

Prior to May 19, 1965, the school board formally defined the ate 

tendance areas for each school, The minutes of the December 7, 1964 

meeting spell out meticulously the 1965-66 attendance areas for the newly 

constructed South.of-Dan Elementary School and the 1966-67 revisions of the 

attendance areas for Sydnor-Jennings Elementary School, for Clay's Mill 

  

1/ A joint board of control operates two high schools which serve separately 
the white and Negro students of Halifax County and the Town of South Boston. 

 



  

Elementary School and for Meadville Elementary School. It was then clearly 

the intent of the school board that these schools, together with Sinai ele- 

mentary School, would accommodate the Negro children of the county. 

Every Negro school child, except five, presently attends the school 

serving his area of residence as previously established by the school board 

for Negro children. Every white school child presently attends the school 

serving his area of residence as previously established by the school board 

for white children. All 1965-66 transfer privileges were expressly withheld 

from children in the second and higher grades residing in the attendance 

areas of twelve of the Negro schools which are scheduled for abandonment. 

Some 95 white teachers are employed at schools which white 

children attend. Approximately 103 Negro teachers are employed at schools 

which Negro children attend, Negro bus drivers canvass the county trans- 

porting Negre children to Negro schools, White bus drivers cover the same 

territory transporting white children (and presumptively five Negro children) 

to white schools. 

Several months prior to the commencement of this action on May 

18, 1965, the school board received, but took no action upon, a petition of 

Negro citizens of the county that it adopt and publish a plan by which all 

aspects of racial discrimination would be promptly terminated. On and after 

May 19, 1965, the school board has attempted to satisfy the requirements of 

Title VI of the Civil Rights Act of 1964 as implemented by the regulations 

of the Department of Health, Education and Welfare. The board has formally 

adopted and publicly announced what it here refers to as a freedom of choice 

policy. However, the school authorities do not contemplate or expect that 

any white parent will voluntarily enrcll his child in any of the schools 

which have been set apart for Negroes; neither do they plan to assign Negro 

 



  

teachers to the schools attended by white children or white teachers to 

schools presently characterized as Negro schools. 

THE ISSUES 

The issues are squarely posed by those of the infant plaintiffs 

whose parents failed to make application for the infant®s enrollment in a 

school attended by white children, viz 

I. Does the Constitution require an immediate distribution of 

all teachers among the various schools for the effectuation of nonracial 

assignment of personnel? 

II. Does the Constitution require a revision of school districts 

and attendance areas into compact units to achieve a system of determining 

admission to the public schools on a nonracial basis? 

 



  

ARGUMENT 

The Defendants Should Be Required To Desegregate The 
Faculty And Staff At Each School Prior To The 
Beginning Of The 1966-67 School Term 

  

    
  

The requirement of total faculty desegregation in public schools, 

whatever may be the plan of pupil assignment, has recently been underscored 

by the Supreme Court in Bradley v. School Board of the City of Richmond, 
  

  

Virginia and in Gilliam v. School Board of the City of Hopewell, Virginia, 

soe UeSe seoy 15 L ed 2d 187 (November 15, 1965) and also in Rogers v. Paul, 
  

ooo Us Ss soey 15 L ed 2d 265 (December 6, 1965). 

The guidelines for faculty desegregation stated in this Court's 

  

January 5, 1966 opinion in Kier vs. County School Board of Augusta County, 

veo Fo Suppe eee (WeD., Va, 1966) are applicable here, The parity in num- 

bers of white and Negro teachers in the Halifax County school system makes 

imperative the simultaneous desegregation of the faculty and staff at each 

school; otherwise there will be an exodus of pupils from the schools with 

desegregated faculties to the schools with segregated faculties. Nothing 

has been suggested, indeed no valid reason can be suggested, as justifying 

any delay in accomplishing total faculty desegregation. 

il 

The Halifax County School Board Has A Clear 
Constitutional Duty To Bstablish Unitary 
Nonracial School Attendance Areas 

    

  

  

This branch of the argument stems from the directive of Brown II 

(Brown v. Board of Education of Topeka, 349 U.S. 29% (1955)) that when enter 
  

taining a school board®s request for postponement of the personal right of 

 



  

the Negro child, the courts may consider "problems related to « « « re- 

vision of school districts and attendance areas into compact units to achieve 

a system of determining admission to the public schools on a nonraciai 

basis". It does not clash with the statement in Rogers v. Paul, supra, 
  

that "racial allocation of faculty .  » renders inadequate an otherwise 

constitutional [freedom of choice/ pupil desegregation plan", inasmuch as 

the Court expressly stated in the footnote that the constitutional adequacy 

of the assignment method chosen for the lower grades was not before the Court 

and the method contemplated for the high schools was not a part of the record. 

Neither does this argument conflict with the dictum in Goss v. Board of 

Education, 373 U.S. 603, 687 (1963) which suggest that transfers from 
  

established zones or attendance areas might be validly permitted, if they 
    

are entirely free from any imposed racial restrictions. This argument does 

attack the doctrine of Briggs v. Elliott, 132 F, Supp. 776 (E.DeS.C., 1955) 

upon which this Court’s recent approval of "freedom of choice" in Kier v. 

County School Board of Augusta County, supra, admittedly rests. 
  

We here argue the case of the infant plaintiffs whose parents 

failed and refuse to exercise the initiative of enroliing the child in a 

school attended by white children, Such infants seek the aid of this Court 

that they be not denied the equal protection of the laws which is their con- 

stitutional legacy. If by virtue of the Equal Protection Clause those in- 

fants are entitled to racially non-discriminatory school assignments, then 

the remedial order of this Court must run to the defendant state officials, 

there being no power in this Court to compel the parents to make the appli- 

cation upon which the defendants condition the effectuation of the infant 

plaintiffs? rights, 

 



  

A. The Doctrine of Briggs v. Ellicott Must Be Laid To Rest 
  

1. The Briggs Doctrine Is Inconsistent With Brown 
  

The several arguments for the constitutional validity of "free- 

dom of choice" are based upon an unrealistic distinction between the word 

"discriminate" (which school boards now concede they may not do) and the 

generically included word "segregate" (which school boards yet contend they 

may do). Briggs v. Elliott, supra, to the contrary notwithstanding, the sub- 
  

ject of Brown I (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) 
  

was racial segregation in public schools. 

"In each of the cases, minors of the Negro race * * * 
have been denied admission to schools attended by 
white children under laws requiring or permitting 
segregation according to race," 

The word "segregation" or a word of the same derivation appears in the text 

of the opinion at least fifteen times and in the footnotes at least ten 

times. The broader term "discrimination" appears but once in the text and 

three times in the footnotes (footnote 5), and in this context: 

"In the first cases in this Court construing the Fourteenth 
Amendment, decided shortly after its adoption, the Court 
interpreted it as proseribing all state-imposed discrimi- 
nations against the Negro race, * * * "The words of the 
amendment, it is true, are prohibitory, but they contain a 
necessary implication of a positive immunity, or right, 
most valuable to the colored race, - the right to exemption 
from unfriendly legislation against them distinctively as 
colored, - exemption from legal discriminations, implying 
inferiority in civil society, lessening the security of 
their enjoyment of the rights which others enjoy, and dis- 
criminations which are steps towards reducing them to the 
condition of a subject race, * * xw 

In Brown I, the Court was considering one form of discrimination, i.e., 

separation of children by race in the public schools "under laws requiring 

or permitting segregation according to race" (347 U.S. at 488) and held 

 



  

articular form of discrimination to be violative of the Equal Pro- 

  

\ avd 3 yrs £71 aye 
BCT10Nn LidusSe, 

In the companion case of Bolling v. Sharpe, 347 U.S. 497 (1954), 

wherein racial segregation in the public school system of the District of 
£ 

\ 2 . + Ol 2 YO i ~ ml 2 { 1 rl Spe ruvvamsd 2 con ’ - Rie 2 Columbia was unde: attack, the Court viewed ion as an unjusti- 

  

02 ot Le OEY ART BS. HE, Wy FS rey gall arom mt Phe Hem labile discrimination and, hence, violative of the Due Process Clause of the 

Fifth Amendment. No semantic analysis of the 1954 school segregation opine 

  

uggest the Court's unawareness of the obvious fact that racial 0 

segregation in the public schools is an invidious discrimination. 

In Brown II, the Court was dealing with the cases which came from 

the states and the case which came from the District of Columbia and hence 

it employed the broader term in its reference to its earlier declarations 

of "the fundamental principle that racial discrimination in public education 

is unconstitutional" and in its conclusion that "/a/11 provisions of federal, 

state, or local law requiring or permitting such discrimination must yield 

to this prineiple.", The Court's use of the word "discrimination" was not 

at "segregation" (viola- intended to, and could not, alter the simple fact th 

ting the Equal Protection Clauss) was the sul The term    

employed was studledly selected in order that the implementing opinion would 

also redress the deprivation of liberty which vitiated racial segregation 

in the public schools of the District of Columbia. 

Forty-five days later, when "convened to hear any concrete sug- 

gestions" of counsel for its decree on the mandate of the Supreme Court, the 

three-judge district court in the Eastern District of South Carolina deliver. 

Ye | #4 ES PO YY PY AY ATV TIS AY ss kr t k = 8 PO #3 be We ee agg de €d a per curiam opinion (Bri Z8S Ve LLLIOTL, supra) & 111 of which was but 
  

er A I TU or : vow Ym ” = 3 un IRD. apm EAT a I od Bs & 2 re dicta, entirely overlooking the all too significant circumstance that the 

 



  

Supreme Court had purposefully based its decision in that case (and in the 

cases from the other states) on its finding that racial segregation in 

public education deprived Negro children of the equal protection of the laws 

guaranteed by the Fourteenth Amendment. In Bolling v. Sharpe, supra, the 

Court had unmistakably stated the reason for its choice of the Equal Pro- 

tection Clause in deciding Brown I, viz: 

"The ‘equal protection of the laws’ is a more explicit 
safeguard of prohibited unfairness than due process of 
law' and, therefore, we do not imply that the two are 
always interchangeable phrases." (347 U.S. at 499.) 

Nevertheless, the three-judge district court read the Brown cases as if 

Brown I had struck down racial segregation merely as a deprivation of liberty 

without due process of law; and thus that Court reached the conclusion that 

if the schools which the state maintains are "open to children of all races, 

no violation of the Constitution is involved even though the children of 

different races voluntarily attend different schools; as they attend differ- 

ent churches." Continuing in that vein, that district court laid the ground- 

work for the concept of Freedom of Choice and its subsequent acceptance by 

legislators and some judges. 

The Supreme Court might well have disposed of all of the school 

segregation cases under the due process concept it found necessary to employ 

in Bolling v. Sharpe. Later; in Cooper v. Aaron, 358 U.S, 1 (1958), it 

expressly characterized racial segregation of Negro children as a depriva= 

tion of their liberty, But in Brown I, it deliberately selected the "more 

explicit safeguard of prohibited unfairness" in order to underscore the duty 

of state officials to refrain from denying any child the equal protection 

of the laws. The Amendment®’s prohibition against such denial clearly casts 

upon state officials the burden of full implementation "at the earliest 

 



  

» 

10 

practicable date" (Brown II). Denial of the equal protection which the 

Constitution guarantees Negro children (the Court avoided the use of the 

word "parents" in all opinions) would be tolerated only so long as the 

school authorities could prove it to be necessary in the public interest 

in the systematic elimination of administrative obstacles, (Brown II) 

No opinion of the Supreme Court supports the view that the duty 

of state authorities is merely to avoid future discrimination in consider- 

ing applications for the attendance of individual children at schools of 

their parent®s choice. Bradley v. School Board, coo UsSe oo. (November 15, 
  

1965) vacated the judgment of the Court of Appeals for the Fourth Circuit 

and expressed the Court's impatience with delays in desegregation of school 
  

systems, citing three cases containing similar expressions. Again, on 

December 6, 1965, that impatience was expressed in Rogers v. Paul, supra. 
  

In Bradley, the Supreme Court reminds us that "more than a decade 

has passed since we directed desegregation of public school facilities" P 
  

(emphasis supplied), If the Court had perceived that the Constitution re- 

quires no more than that public authority make available to the parents of 

Negro children a choice between racially segregated schools and schools 

attended by children of both races, it would not have so clearly left the 

door open for further judicial review of Richmond's freedom of choice reso- 

lution in the light of the present urgency. 

2. The Basic Factual And Legal Assumptions Of Briggs 
Were Unsound 
  

  

Where the Briggs opinion says: "Nothing in the Constitution or in 

the decision of the Supreme Court takes away from the people freedom to 

choose the [public] school they attend," it ignores the fact that prior to 

1954, and even when it was being penned, people had no such freedom to 

 



  

11 

choose -- certainly not with respect to the racial composition of the 

schools and, as a general rule, not with respect to the location of the 

schools, 

Prior to the 1954 Brown decision, school authorities promulgated 

rules by which parents knew where their children would attend public schools. 

In Carson v. Warlick, 238 F. 2d 724 (1956) Judge Parker (Judges Sobeloff and 

Bryan concurring) wrote: 

"Somebody must enroll the pupils in the public schools. 
They cannot enroll themselves; and we can think of no one 
better qualified to undertake the task than the officials 
of the schools and the school boards having the schools in 
charge," 

Seven years later; in Bradley I (Bradley v. School Board of the City of 
  

Richmond, 317 F. 2d 429 (1964)), Judge Boreman (Judges Bryan and Bell con- 

curring) again recognized the traditional function of school authorities in 

promulgating the rules governing the assignment of students to schools, 

sayings 

"That there must be a responsibility devolving upon some 
agency for proper administration is unquestioned." 

The General Assembly of Virginia yet requires that public authority 

tell the individual what public school, if any, his child will attend. The 

Pupil Placement Act divests certain local schocl boards of authority "to 

determine the school /to/ which any child shall be admitted" (Code of 

Virginia, 1950, as amended, §22-232.1) and directs the Pupil Placement 

Board to "enroll each pupil in a school district so as to provide for the 

orderly administration of such public schools, the competent instruction 

of the pupils enrolled and the health, safety and general welfare of such 

pupils” (Id., 822-232.5)., Where the Pupil Placement Act is not effective, 

local school boards make "placements of individual pupils in particular 

 



  

12 

schools so as to provide for the orderly administration of such schools, the 

competent instruction of the pupils enrolled and the health, safety, best 

interest and general welfare of such pupils" (Id., 822-232.18). "The place- 

ment of pupils . » . shall be made by school boards which are hereby author- 

ized to fix attendance areas and adopt such other additional rules and regu- 

lations . « relating to the placement of pupils as may be to the best 

interest of their respective school districts and the pupils therein" (Id., 

§22-232,19) 

Where the Briggs opinion says that the Constitution "merely for- 

bids the use of governmental power to enforce segregation," it ignores the 

equal protection basis of Brown I and the plain directive of Brown II that 

the school board, under the supervision of the District Court, "effectuate 

a transition to a racially non-discriminatory school system." As Judge 

Wisdom has recently observed (Singleton vo Jackson: Municipal Separate School 
  

District, 348 F. 2d 729 (5th Cir. 1965)), Briggs "is inconsistent with Brown 

and the later development of decisional and statutory law in the area of 

civil rights." 

In retrospect, it can now be clearly seen that the doctrine (based 

on a misstatement of historical fact and a misconstruction of constitutional 

law) has thrived only on official disagreement with and hostility to the 

Brown decisions. 

3, The Briggs Doctrine Stands Repudiated By The 

Fourth Circuit 
  

  

In the Fourth Circuit, and particularly in Virginia, North Carolina 

and South Carolina, much deliberation and little speed attended the first 

four years! efforts to implement the constitutional principles enunciated 

 



  

13 

in the Brown decisions. The doctrine of Briggs v. Elliott, supra, justified 
  

school boards? inaction; and the doctrine of Carson v. Warlick, supra, en- 

couraged the states to contrive and interpose cumbersome administrative pro. 

cedures insulating school boards from effective judicial prodding. The 

following and similar procedural guidelines dictated the pace of judicial 

supervision of the implementing process: 

"All that [federal courts] have the power to do in the 
premises is to enjoin violation of constitutional rights 
in the operation of schools by state suthorities.” 
Carson v. rd of yo, 227 F. 2d 
789 (4th Cir, 1955). 

  

"There 1s no question as to the right of these school 
children to be admitted to the schools of North Carolina 
without discrimination on the ground of race. They are 
admitted, however, as individuals, not as a ¢lass or group; 
and 1t 1s as individuals that their rights under the Con- 
stitution are asserted. Henderson v., United States, 339 
U.S, 816, 824," Carson v. Warlick, supra. 

"/IJt is for the state to prescribe the administrative 
procedure to be followed." Ibid, See, also, H Vo 
Board of Trustees, 232 F, 247626 (4th Cir. 195 

"/K/dministrative remedies for admission to schools must 
be exhausted before application is made to the court for 
relief on the ground that its injunction is being vielated," 
School Board of City of Charlottesville v. Allen, 240 F, 2d 

(4th Cir. 1956). 

Not until September 29, 1958, did the Supreme Court have occasion 

io ) 

    

   

  

    

   

to elucidate the meaning of the Brown decisions. (Cooper v. Aaron, si    

The portended change in the Fourth Circuit’s opinions came through (after 

the January 1959 fall of Virginia®s school closing statutes) in the April 

20, 1960 opinion of the Court (Judges Sobeloff, Soper and Haynsworth) in 

Jones v. The School Board of the City of Alexandria, 278 F. 2d 72, viz: 
  

"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 toler 
ated. It is not mentioned in the plan of the Alexandria 

 



  

14 

School Board, and we may assume, in the absence of more evidence 
than the activation of the plan in the present record affords 
us, that the continuance of the dual system is not contemplated. 
In order that there may be no doubt about the matter, the 
enforced maintenance of such a dual system is here specifically 
condemned, However, it does not follow that there must be an 
immediate and complete reassignment of all the pupils in the 
unite schools of Alexandria. On the other hand, the admonition 
in Cooper v. Aaron, 358 U.S, 1, must be borne in mind in deline- 
ating the affirmative duty resting upon the school authorities. 
The Court said, at page 7: 

Under such circumstances, the District Courts were 
directed to require "'a prompt and reasonable start 
toward full compliance,'" and to take such action as 
was necessary to bring about the end of racial segre- 
gation in the public schools "'with all deliberate 
speed.'" Ibid. Of course, in many locations, obedience 
to the duty of desegregation would require the immedi. 
ate general admission of Negro children, otherwise 
qualified as students for their appropriate classes, 
at particular schools. On the other hand, a District 
Court, after analysis of the relevant factors (which 
of course, excludes hostility to racial segregation), 
might conclude that justification existed for not re. 
quiring the present non-segregated admission of all 
qualified Negro children. In such circumstances, 
however, the courts should scrutinize the program of 
the school authorities to make sure that they had 
developed arrangements pointed toward the earliest 
practicable completion of desegregation, and had 
taken appropriate steps to put their program into 
effective operation. It was made plain that only a 
prompt start, diligently and earnestly pursued, to 
eliminate racial segregation from the public schools 
could constitute good faith compliance. State 
authorities were thus duty bound to devote every effort 
toward initiating desegregation and bringing about 
the elimination of racial discrimination in the public 
school system, ?® 

"The two criteria of residence and academic preparedness, 
applied to pupils seeking enrollment and transfers, could be 
properly used as a plan to bring about racial desegregation 
in accordance with the Supreme Court'’s directive, The record 
in this case is insufficient in demonstrating that the criteria 
were so applied. On the other hand, these criteria could be 
used in such a way as to be a vehicle for frustrating the con- 
stitutional requirement laid down by the Supreme Court. If 
this is later shown to be the case, then the action of the 
School Board would not escape the condemnation of the courts. 
If the criteria should be applied only to Negroes seeking 

 



  

15 

transfer or enrollment in particular schools and not to white 
children, then the use of the criteria could not be sustained. 
Or, if the criteria are, in the future, applied only to appli- 
cations for transfer and not to applications for initial en- 
rollment by children not previously attending the city's 
school system, then such action would also be subject to attack 
on constitutional grounds, fo by reason of the existing 
segregation Pattern it will be Negro children, primarily, who 
seek transfers." 

The opinion in Jones ushered in a new era. School authorities 

were on notice that inaction on their part would not suffice. The school 

board was told clearly and distinctly that it had an "affirmative duty . . » 

to bring about the end of racial segregation in the public schools"; al- 

though the immediate accomplishment of a "complete reassignment of all the 

pupils in the public schools" was not then required, inasmuch as the Court 

perceived that nondiscriminatory execution of the school board's plan would 

accomplish desegregation of the pupils within a time which the Court then 

deemed reasonable, The September 9, 1960 opinion in Hill v. School Board 
    

of the City of Norfolk, 282 F. 2d 473, added the suggestion that the 
  

"District Judge should from time to time be informed more specifically about 

the time table contemplated by the Board, and such a time table would aid 

he the the Judge in determining whether to give approval tc the Board's subsequent 

plans and conduct." 

The Court began to take a realistic view of the "administrative oo 

remedies" which loctrine had spawned. 

  

ettled that administrative remedies need not 
be sought if they are inherently inadequate or are applied 

    
in such a way as in effect to deny the petitioners their 
rights." Ney v. Greensboro City Board of Education, 283 
F, 2d 667 (1960), See, also, Farley vs Turner, 281 F, 2d 
131 (1960), Dodson v. School Board of the City of Charlottes- 

  

  

ville, 289 F. 2d 439 (1961), Hood v. Board of Trustees, 286 
D 

Jal 2d 236 (1 961), 

  

 



  

16 

"As the defendants have disavowed any purpose of using their 
assignment system as a wehicle to desegregate the schools 
and have stated that there was no plan aimed at ending the 
present practices which we have found to be discriminatory, 
this case is quite unlike Hill v. School Board of the City 
of Norfolk, Virginia, 282 F, 2d 473 (4th Cir. 1960), and 
Dodson v, School Board of City of Charlottesville, Virginia, 

289 F. 2d 439 (4th Cir. 1961). In those cases, the assign- 
ment practices were defended as interim measures only and 
the district courts, recognizing the infirmities in the 
existing practices, made it clear that progress toward a 
completely non-discriminatory school system would be in- 
sisted upon." Green v. School Board of the City of Roanoke, 
304 F, 2d 118 (1962), See also Marsh v. County School 
Board of Roanoke County, 305 F. 2d 94 (1982). 

    

  

    

  

  

  

The new departure represented by Jones and Hill met its test in 

Dillard v. School Board of the City of Charlottesville, 308 F. 2d 920 (1962). 
    

The majority (Judges Sobeloff, Boreman and Bell), adopting an opinion pre- 

pared by Senior Judge Soper, adhered to the Cooper v, Aaron interpretation 

of Brown and the Jones v. School Board of Alexandria approach to its imple- 
  

mentation. In striking down Charlottesville's "racial minority" transfer 

exception to its geographical assignment plan, the Court stated its position, 

viz 

"In our view the Charlottesville plan in respect to the 
pupils in the elementary schools is clearly invalid despite 
the defense that the rules for the assignment and transfer 
of pupils are literally applied to both races alike, It is 
of no significance that all children, regardless of race, 
are first assigned to the schools in their residential zone 
and all are permitted to transfer if the assignment requires 
the child to attend the school where his race is in the 
minority, if the purpose and effect of the arrangement is to 
retard integration and retain the segregation of the races 
(emphasis supplied). That this purpose and this effect are 
inherent in the plan can hardly be denied. The School Board 
is well aware that most of the Negro pupils in Charlottes- 
ville reside in the Jefferson zone and that under the operation 
of the plan white children resident therein will be trans- 
ferred as a matter of course to the schools in the other zones 
while the colored children in the Jefferson zone will be denied 
this privilege. The seeming equality of the language is 
delusive, the actual effect of the rule is unequal and dis- 
criminatory., It may well be as the evidence in this case 

  

  

 



  

17 

indicates that some Negroes as well as whites prefer the 
schools in which their race predominates; but the wishes 
of both races can be given effect so far as is practicable 
not by restricting the right of transfer but by a system 
which eliminates restrictions on the right, such as has 
been conspicuously successful in Baltimore and in Louis- 
ville." 

Judge Bryan (Judge Haynsworth concurring in his dissent) took issue with 

two premises (material here) on which the Court's holding was necessarily 

based, viz: that the Fourteenth Amendment guarantees integrated schools 

and that the segregation in Charlottesville resulted from the racial 

minority transfer provision. Citing Briggs v., Elliott, supra, and other 
  

opinions which antedated Cooper ve. Aaron, supra, he harks back to Judge 
  

Parker's assertion that the Supreme Court was explicit in not requiring 

integration but in merely striking down denial of rights through segrega- 

tion (308 F. 2d 920). Furthermore, Judge Haynsworth (Judge Bryan concurring 

in his dissent) thought that the District Court was justified in permitting 

racial minority transfers out of consideration for the problems likely to 

be incurred by children "compelled to attend a school or classes in which 

all others are of the opposite race." 

However, the decision of the Supreme Court in Goss v. Board of 
  

Education; 373 U.S. 683 (1963), and the denial of certiorari in School Board 
  

of Charlottesville, Virginia vs. Dillard, 374 U.S. 827 (1963) clearly vindi- 
  

cated the position of the Fourth Circuit that the Fourteenth Amendment does 

require racial integration of public school systems and that any plan or 

arrangements "the purpose and effect of which is to retain the segregation 

of the races" should meet judicial condemnation. 

The law of the Fourth Circuit as firmly established by the judgment 

in Dillard v. School Board of the City of Charlottesville, supra, clearly 
  

 



  

18 

repudiates the Briggs dictum that the Constitution does not require integra- 

tion, In Buckner v. County School Board of Greene County, 332 F, 2d 452 
  

(1964), the District Court had refused an injunction and entered order of 

dismissal, "believing the case to be moot because all of the individual 

infant plaintiffs were in schools chosen by their parents or legal guardians 

The opinion reviews the many earlier decisions pointing to "the obligation 

of local school authorities to take affirmative action." Following its ob- 

servation that Cooper v. Aaron, supra, interpreted the Brown decisions as 
  

requiring state authorities "to devote every effort toward initiating deseg- 

regation and bringing about the elimination of racial discrimination in 

the public school system," the Court made this significant and compelling 

observation: 

"It is these school officials, not the infant plaintiffs 
or their parents, who are familiar with the operation of 
the school system and know the administrative problems 
which may constitute the only legitimate ground for with- 
holding the immediate realization of constitutionally 
guaranteed rights." 

Today, the judgment of Fourth Circuit in Bradley II (Bradley v. 
  

School Board of the City of Richmond, 345 F. 2d 310 (1965)) having been 
  

vacated, we think it unquestionable that the repudiation of the Briggs 

doctrine stands as the law of the Circuit. In footnote 5 of the opinion in 

Singleton v. Jackson Municipal Separate School District, supra, a panel con- 
  

sisting of Judges Hutcheson, Brown and Wisdom, speaking through the latter, 

made this long overdue statement: 

"In retrospect, the second Brown opinion clearly imposes 
on public school authorities the duty to provide an inte- 
grated school system. Judge Parker's well-known dictum 
(‘The Constitution, in other words, does not require 
integration. It merely forbids discrimination.') in re 

Briggs v. Elliott, E.D%8.C. 1955, 132 F, Supp. 776, 777, 
should be laid to rest. It is inconsistent with Brown 

 



  

19 

and the later development of decisional and statutory 
law in the area of civil rights." 

(The footnote accents the Courts! observation that the concept of "all de- 

liberate speed" was not based onthe degree of community hostility but "on 

the administrative problems im making a transition from a segregated to an 

integrated system",) 

When, on July 30, 1965, the Fourth Circuit remanded Brewer v. 

The School Board of the City of Norfolk, 349 F. 2d 414, it admonished recon- 

sideration "in light of the more recent decisions in this and other courts." 

Singleton v. Jackson, supra, and Price v. Dennison, 348 F, 2d 1010 (5th Cir. 

1965) were the latest opinions. It is clearly apparent that the foregoing 

quotation from Singleton is consistent (and that the Briggs dootrine is in- 

consistent) with the view of the Supreme Court expressed in Louigiana v. 

United States, 380 U.8. 145, 154 (1965) (quoted by Judges Sobeloff and Bell 

conditionally concurring in Bradley II) that "the court has not merely the 

power but the duty to render a decree which will so far as possible elimi 

nate the disoriminatory effects of the past as well as bar like disorimiy | 

nation in the future" and that district courts are completely justified in 

taking steps "to eradicate past evil effects and to prevent the eentinuatien 

or repetition in the future of the diseriminatory practices," shewn to be 

80 deeply engrained in the laws, policies and traditions of the state. 

Be 

  

If, as stated in Briggs, the Constitution merely gives the indie 

vidual Negro school child the right (but only upon application) to attend 

public school with white children similarly situated, then the Carson cases 

 



  

20 

properly require that state administrative procedures realistically enforc- 

ing such right to exhausted. But if the basic position of the plaintiffs, 

particularly those for whom no individual applications have been made, be 

sound -- that is, if the Equal Protection Clause requires the school authori- 

ties to provide a school system from which racial segregation and all other 

state imposed forms of racial discrimination have been extirpated -- then 

there is no state administrative procedure through which the resulting right 

of each and all of the infant plaintiffs to be educated in such a system can 

be enforced, In this case, assuming the duty and the correlative right, 

there has been a demand and a refusal and an action seeking enforcement of 

the right by an injunction commanding performance of the duty. 

We are confronted with a dictum in Jeffers v. Whitley, 309 F, 2d 

621 (1962), that "the plaintiffs are not entitled to an order requiring the 

general intermixture of the races in the schools." In that case, as well, 

as in the other cases where variations on the same theme are stated, there 

was no one before the court representative of the class of Negro children 

by whom or on whose behalf no application had been made to attend a particu- 

lar school. Either voluntarily or under pressure from the Distriet Court, 

each infant litigant had accepted the Briggs doctrine and assumed the posture 

of one whose application had been wrongly refused, The decision of the 

Court of Appeals in Jeffers, supra, (comparable to its earlier decisions in 
  

Green v. School Beard of City of Roancke, supra, and Marsh v. County School 
  

  

Board of Roanoke County, supra, and its decisions in other cases) was that 
  

Negro pupils could not be required to exhaust their administrative remedies 

under the North Carolina Pupil Placement Act, because as administered by the 

defendants, this remedy had been employed as a means of perpetuating 

 



  

21 

segregation and denying constitutionally protected rights, and was there- 

fore inadequate and discriminatory; that each of the Negro pupils who had 

applied for admission to a white school should be admitted to such school; 

that the seven appellants, including the two who had been admitted to the 

white school by the District Court were, on behalf of others similarly 

ituated, entitled to an order enjoining the school board from refusing ad- 

mission to any school of any pupil because of the pupil?s race, such in- 

Junction to remain in effect until the school board might adopt and the 

istrict Court might approve some other plan for the elimination of racial 

segregation. The Court did not there hold that adoption of the suggested 

freedom of choice would constitute full compliance with the Constitution. 

The only case which has been before the Fourth Circuit in which 

there were litigants who had not made application to attend a particular 

school is Buckner v. County School Board of Greene County, supra. There 
  

the Court unequivocally stated and restated the duty of the school board 

to "formulate plans for desegregation.” The case was remanded for early 

proceedings upon the prayer for an injunction against the operation of a 

bi-racial school system, with strong indication that there seemed to be no 

obstacle to the abandonment of racial segregation with the beginning of the 

next school term, 

The notion that "the Constitution does not require integration" 

or, as expressed in Jeffers, that "the plaintiffs are not entitled to an 

order requiring the general intermixture of the races in the schools," may 

have been related to the reluctance of federal courts to enter mandatory 

injunctions to protect constitutional rights. The propriety of and the 

necessity for the entry of such injunction to compel compliance with the 

 



» 

: ® 

  

22 

Equal Protection Clause are now manifest in Griffin v. County School Board 
  

of Prince Edward, 377 U.S. 218 (1964). 
  

Coe The True Meaning Of "All Deliberate Speed" 
Is NOW 
  

In its several opinions in this area of litigation, this Court has 

labered to reconcile the varying and inconsistent decisions and judicial ex- 

pressions which the Briggs doctrine has spawned. Although the Augusta County 

opinion properly requires the schocl board to "overcome the discrimination 

of the past" with respect to the assignment of school teachers (manuscript 

p. 16), it recognizes that "freedom of choice" with respect to students 

imposes upon Negro parents "the burden of desegregating" (p. 15) a burden 

which the federal judiciary is powerless to compel any parent to shoulder. 

The impotent stance necessarily follows if following Briggs v. Elliott, we 
  

permit the school authorities now to become "color blind" (p. 6) when 

dealing with children whom they have heretofore racially segregated. If 

Briggs v. Elliott is competent to overcome the factual basis for Brown I 

(the damage which racial separation inflicts upon minority children), then 

(and only then) we may rightly reach for Pilate’s bowl, 

If; on the other hand, the Equal Protection Clause as elucidated 

in the Brown decisions requires the "more explicit safeguard of prohibited 

unfairness" (Bolling v. Sharpe, supra), then the duty of the school board 
  

"to overcome the discrimination of the past" (Kier v. County School Board 
  

of Augusta County, supra) applies with primary emphasis to the assignment 
  

of children to schools. In Bradley v. School Board of the City of Richmond, 
  

supra, the Supreme Court did vacate the Fourth Circuit's (majority) accept- 

ance of freedom choice as a legal desegregation of the public schools and 

 



  

23 

thils made possible future appellate review of freedom of choice unfettered 

by segregated faculties. In Rogers v., Paul, supra, the Supreme Court ex- 
  

pressly refrained from passing on the constitutional adequacy of freedom 

of choice. Today, the District Court writes on a clean slate with respect 

to the constitutional adequacy or inadequacy of freedom of choice as a 

means of desegregating the children in the public schools of a particular 

locality. 

The test of the constitutional adequacy of any plan, whether free- 

dom of choice or zoning, with or without restricted or unrestricted trans- 

fer privileges; is the speed and efficiency with which students will be re- 

lieved of racial separation in the public schools. Brown II directs a 

balancing between (1) the immediate right of each child and (2) the system- 

atic and effective removal of obstacles to the effectuation of the immediate 

rights of all children. No other consideration is valid. 

In the Augusta County case and in Bell v. School Board of the City 
  

of Staunton (W.D, Va, January 5, 1966), this Court has recognized that in v 
  

rural areas and in other communities where people of both races are generally 

scattered, integration can be brought about immediately and with a minimum 

of administrative difficulties though geographic assignment. This Court 

recognizes, as did Judges Sobeloff and Bell concurring separately in Bradley 

II, that the adoption of freedom of choice is, at best, hardly a step toward 

school desegregation, There is testimony in this case (the truth of which 

all will concede) that it is considered unlikely that any white parent will 

voluntarily enroll his child in the schools which have been set apart for 

Negro children, The showing is that only five Negrec children are now en- 

rolled in schools which have been set aside for white children. Since the 

 



» 

: pM 

  

2k 

commencement of this action, the defendants have selected and retained free- 

dom of choice because they appraise it as being the means least likely to 

accomplish desegregation, A similar appraisal by the Court would require 

judicial condemnation of the plan for Halifax County. 

Again and again the Supreme Court has warned that the true meaning 

of "all deliberate speed" is NOW. (Watson wv. City of Memphis, 373 U.S. 526 
    

(1963), Griffin v. County School Beard of Prince Edward, supra., Bradley V. 
  

School Board, ees UeSs ose, supra., and Rogers v, Paul, supra.) 
  

  

"Given the extended time which has elapsed, it is far 
from clear that the mandate of the second Brown de- 
cision 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. * * * Basic to the remand was 
the concept that desegregation must proceed with all 
deliberate speed’, and the problems which might be con- 
sidered and which might justify a decree requiring eome- 
thing less than immediate and total desegregation were 
severely delimited." Watson v., City of Memphis, supra. 

  

Respectfully submitted, 

Se, \ Eat i 

or r Plaintiffs Of Counsel fo 

  

  

S, W, TUCKER 
HENRY L, MARSH, III 
WILLARD H. DOUGLAS, JR, 

214 East Clay Street 
Richmond, Virginia 23219 

RUTH L. HARVEY 

453 South Main Street 
Danville, Virginia 

Jo. Lo WILLIAMS 
216 North Ridge Street 
Danville, Virginia 

 



  

JACK GREENBERG 

JAMES M, NABRIT, III 
10 Columbus Circle, Suite 2030 
New York, New York: . 10019 

Counsel for Plaintiffs 
  

CERTIFICATE 
  

I certify that on the day of January, 1966, 
b) 

rs 

I mailed a copy 

of the foregoing Brief for Plaintiffs to counsel for defendants, viz 

Frederick T. Gray, Esquire, Williams, Mullen and Christian, 1309 State- 

Planters Bank Building, Richmond, Virginia, and Don P. Bagwell, Esquire, 

Halifax, Virginia.