Bakke v. Regents Brief of the National Medical Association, The National Bar Association, and The National Association for Equal Opportunity in Higher Education Amici Curiae

    BRIEF FOR APPELLANTS

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 13,626

B R E N D A  LEE T R A Y N H A M , e t c ., et  a l .,
Appellees,

v.

C O U N TY  SCH OOL BO A R D  O F H A L IF A X  
CO U N TY, V IR G IN IA , et  a l .,

Appellants.

Appeal from the United States District Court for the 
Western District of Virginia, Danville Division

F red erick  T . G ra y

Williams, Mullen & Christian 
510 United Virginia Bank Building 
Richmond, Virginia 23219

D on  P. B ag w e ll  
Halifax Virginia

Counsel for Appellants



Page

Statem en t  Of T he Issues P resented F or R eview  ...................  1

Statem en t  Of T h e  Case

(A ) The Nature of the Case.............. ................. ........ -..... ........  2

(B ) The Course of the Proceedings ...........................................  2

(C ) Disposition in the Court Below ..................................... .... - 3

(D ) Statement of Facts.................................................................  3

A rgum ent

I. Is Not The Evidence Conclusive That Halifax Has No 
Alternative To Freedom Of Choice?  ........—------------------  4

II. Under The Facts And Circumstances Of This Case 
Should The School Board Have Been Permitted To 
Retain Its Freedom Of Choice Plan? ....................... ........ . 5

Conclusion  .....................................................................................................  9

TABLE OF CONTENTS

A ppendix  (Exhibits To Defendants’ Answer to Interrogatories)

TABLE OF CASES

Betts v. County School Board of Halifax County, 269 F.S. 593 
(W.D. Va. 1967) ............................. ......................... - ..............  2

Green v. County School Board of New Kent County, 391 U.S.
430 ............... ......................... -........................................ 2, 5, 6, 7, 8

Hawthorne v. County School Board of Lunenburg County, 4th 
Circuit, No. 13,284, July 11, 1969 ......................................-.....  5

Monroe v. Bd. of Commrs., City of Jackson, 391 U.S. 450 ...........  6

Raney v. Bd. of Ed. of the Gould School Dist., 391 U.S. 443 .....  6

Walker v. County School Board of Brunswick County, 4th Circuit,
No. 13,283, July 11, 1969 ............................................................. 5



United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 13,626

BR E N D A  LEE T R A Y N H A M , e t c ., e t  a l .,
Appellees„

v.

C O U N T Y  SCH O OL BO AR D  OF H A L IF A X  
CO U N TY, V IR G IN IA , et  a l .,

Appellants.

Appeal from the United States District Court for the 
Western District of Virginia, Danville Division

BRIEF FOR APPELLANTS

STATEMENT OF ISSUES PRESENTED FOR REVIEW

The issues presented for review will be discussed in the 
inverse order o f their appearance in the statement filed and 
will appear herein as follows:

I. Is not the evidence conclusive that Halifax has no 
workable alternative to freedom of choice?

II. Under the facts and circumstances of this case 
should the School Board have been permitted to retain its 
freedom of choice plan ?



2

STATEMENT OF THE CASE

(A)
The Nature Of The Case

This is a school desegregation case arising after the 
Green decision but arising in a county which had been the 
situs of earlier school litigation which had resulted in the 
implementation o f a court approved “ freedom of choice” 
plan. The decision o f the District Court approving the 
freedom of choice plan in the earlier case became final. 
See Betts et ah v. County School Board of Halifax County, 
269 F. S. 593 (W .D . Va. 1967).

There is no evidence that the freedom of choice plan has 
not been fairly administered but there remain schools in the 
district attended only by members o f the Negro race and 
others attended only by members of the white race, giving 
rise to a presumption that the district operates a dual school 
system.

The defendant school board maintains that it cannot 
successfully be charged with discrimination while it is 
fairly administering a court ordered plan; that abandon­
ment of freedom of choice will lead to the withdrawal o f 
large numbers o f white children from the system, and that 
at this time, it has no alternative which would not be detri­
mental to the educational system.

( B )

Course Of The Proceedings

The complaint herein was filed on November 20, 1968. 
The School Board of the City of South Boston, which was 
originally made a party defendant, was dismissed. On De­
cember 16, 1968, all remaining defendants filed Motions 
to Dismiss and Answers. On April 5, 1969, the matter



3

was heard before District Judge Robert R. Merhige, Jr. 
The court announced its findings o f facts and conclusions 
o f law at the close of the hearing, denied the motions to 
dismiss, enjoined the defendants to “ disestablish the exist­
ing dual school system” and to replace it with a “ unitary 
system” and to “ dissolve the historical pattern o f segre­
gated faculties.”  The court invited the parties to file plans 
within 21 days.

The defendants filed a plan o f operation which was ap­
proved on June 5, 1969.

(C)
Disposition In The Court Below

The District Court entered an order enjoining defend­
ants to disestablish the dual school system, including the 
faculty, and invited the filing of plans to accomplish that 
end. The defendants filed a plan which was approved and 
noted an appeal.

(D)

Statement Of F acts

The facts essential to the plaintiff’s case are all contained 
in the responses to interrogatories. (See Appendix to this 
brief.) They reveal that the county operates 14 elementary 
schools, o f those schools 3 were attended exclusively by 
white students, 5 were attended exclusively by Negro stu­
dents, the remaining 6 were attended respectively by 175 
white, 40 Negro; 369 white, 9 Negro; 485 white, 12 Negro; 
184 white, 1 Negro; 305 white, 14 Negro and 178 white, 
14 Negro. Out o f a faculty of 222 teachers, 120 white and 
102 Negro, each school faculty was integrated to some 
degree with 15 Negro teachers teaching in predominantly 
white schools and 28 white teachers teaching in Negro 
Schools.



4

The two high schools, which are operated by the defend­
ant, committee o f control, made up o f members from the 
Halifax School Board and the City of South Boston School 
Board, were attended— one by 1,741 Negro students, the 
other by 1,895 white students and 82 Negro students.

The faculties o f the two high schools are made up of 14 
white and 71 Negro teachers in the school attended only by 
Negro students, and 87 white and 8 Negro teachers in the 
other school. There is one faculty member of a third race 
in the latter school.

The defendants cannot deny the existence o f a dual 
system.

The defendant’s evidence, like that in the Lunenburg 
and Brunswick cases decided by this court on July 11, 
1969, is that large numbers o f the white children will flee 
the system if a system other than freedom of choice is re­
quired and that funds to build essential improvements will 
be difficult, if not impossible, to obtain if the schools are 
totally integrated.

ARGUMENT

I.

Is Not The Evidence Conclusive That Halifax Has 
No Alternative To Freedom Of Choice?

The Superintendent of Schools, Udy C. W ood, the man 
who has fairly administered the freedom of choice plan and 
who administered the “ efforts to desegregate their faculty 
consistent with the teachers’ qualifications”  (see Findings 
of Facts and Conclusions of Law ), testified as to the care 
which should be exercised in placing teachers in integrated 
positions and the fact that completing the process o f inte­
grating faculties will require time. ( App. 60) He also testi­
fied as to the growing private school movement in the area



5

which would operate to drain away from the public school 
large numbers of white students. (App. 67) He testified 
that since the New Kent case, he and his staff have given 
“ a considerable amount o f thought and study, prayerful 
consideration to how we could work this out.”  He did not 
know how it could be worked out “ so that it would be a work­
able program under the present handicap that we now 
have.”  (App. 80, 81)

It should be noted, however, that Mr. W ood ’s fears 
grew, not out o f fear of refusal o f the people to obey the 
law so much as from his understanding of the hard political 
reality. The School Board must look to the Board of Super­
visors for funds. One of the most difficult portions of the 
task of integrating the schools centers around the over­
crowded high schools and Mr. W ood said that the integra­
tion o f schools will make it doubly hard for him to obtain 
funds for the needed junior high schools. (App. 79, 80)

No witness contradicted this sincere man who is trying 
to preserve an educational system where “ it is like selling 
sand in the desert to get money, local money.’ ’ (App. 79)

II.

Under The Facts And Circumstances Of This Case Should The School 
Board Have Been Permitted To Retain Its “Freedom Of Choice” 
Plan?

Counsel here are not unmindful o f the Green case nor 
are they unaware of the similarity between this case and 
the Lunenburg and Brunswick cases (Nos. 13, 283 and 
13,284 decided on July 11, 1969). But as this brief is 
written, they are also not unmindful that the predictions o f 
large withdrawals of white students in a number of V ir­
ginia counties are no longer mere “ theoretical possibilities” 
but disturbing facts.



Counsel can advise school boards o f similar cases but 
school boards must, and do, respond with what they believe 
sincerely to be in the overall best interest of their educa­
tional system.

This school board has faithfully followed a freedom of 
choice plan ordered by the court, the procedures of which 
were tailored by the experts o f the Department of Health, 
Education and Welfare. Because that plan does not “ work” , 
they are charged with discrimination and required to take 
actions which in their best judgment will work to the 
detriment of their system. Naturally they appeal-—despite 
cases to the contrary— in the hope that somehow the court 
will recognize that in certain areas, in certain cases, the 
theoretically available alternatives will not work and that 
some weight will someday be given to the judgment of 
those who in the end must do the job.

W e deem it appropriate to repeat, as applicable to Hali­
fax, a short portion of what was said in the briefs for 
Brunswick and Lunenburg School Boards:

“ The plaintiffs have sought to meet their burden of proof 
by merely introducing the statistical information supplied 
by the defendants in response to interrogatories. Indeed, 
the plaintiffs offered no witnesses at all.

“ Defendants concede that in the light o f Green v. County 
School Board o f  New Kent County, 391 U.S. 430, 88 S. Ct. 
1689; Monroe v. Board of Commissioners of the City of 
Jackson, 391 U.S. 450, 88 S. Ct. 1700 and Raney v. Board 
of Education of the Gould School District, 391 U.S. 443, 
88 S. Ct. 1697, all of which were decided by the Supreme 
Court o f the United States in May of 1968, the existence of 
all colored schools casts upon them the burden o f establish­
ing that their freedom of choice plan is superior to any 
other plan in its prospects for the earliest possible end to 
the dual system. W e submit that the evidence in this case



7

is uncontradicted that freedom of choice is the only plan 
which promises to work in Lunenburg- County.

“ In the Green case, supra, the Supreme Court spelled 
out the duty o f local school boards. Time and again since 
that decision school boards have had cited a sentence from 
the opinion:

‘The burden on a school board today is to come for­
ward with a plan that promises realistically to work, 
and promises realistically to work nozv.”'~

“ But those who attribute to Green a condemnation o f 
freedom of choice per se err, as do those who conclude that 
the emphasized now meant total and complete desegrega­
tion of the school system immediately! After the oft 
quoted phrase the Supreme Court, in Green, went on to 
say:

‘The obligation o f the district courts, as it always has 
been, is to assess the effectiveness o f a proposed plan 
in achieving desegregation. There is no universal an­
swer to complex problems of desegregation; there is 
obviously no one plan that will do the job in every 
case. The matter must be assessed in light of the cir­
cumstances present and the options available in each 
instance. It is incumbent upon the school board to 
establish that its proposed plan promises meaningful 
and immediate progress toward dis-establishing state- 
imposed segregation. It is incumbent upon the district 
court to weigh that claim in light of the facts at hand 
and in light of any alternatives which may be shown 
as feasible and more promising in their effectiveness. 
Where the court finds the board to be acting in good 
faith and the proposed plan to have real prospects for 
dismantling the state-imposed dual system ‘at the earli­
est practicable date’, then the plan may be said to pro­
vide effective relief.”  (Emphasis added)



8

“ Thereafter, the Supreme Court went on to say:

‘W e do not hold that freedom of choice can have no 
place in such a plan. W e do not hold that a freedom 
of choice plan might of itself be unconstitutional, al­
though that argument has been urged upon us. Rather, 
all we decide today is that in desegregating a dual sys­
tem a plan utilizing freedom of choice is not an end 
in itself.’ (Emphasis added)

“ And further on:

r. . . There may well be instances in which it can serve 
as an effective device. Where it offers real promise of 
aiding a desegregation program to effectuate conver­
sion of a state-imposed dual system to a unitary non- 
racial system there might be no objection to allowing 
such a device to prove itself in operation. . . .’ (Em ­
phasis added)”

W e simply ask, in the light o f conditions existing in 
many school districts today, can the plaintiffs sustain a 
charge of discrimination with a mere numerical chart? 
Can the Court ignore the testimony of the Superintendent 
who has faithfully discharged the plan which the court 
directed and who has tried to integrate his faculty? Can 
the court take “ judicial notice”  that other plans will work 
when there is clear evidence that in many localities deep 
trouble is already evident under those “ other plans” ?

The court in this case invited the plaintiffs as well as the 
defendants to file a plan. The plaintiffs offered nothing. 
The defendants have filed one-—not because they think it 
will work, but because it is the best they can do and they 
pray it will work.

Believing, as they do, that freedom of choice, slow though 
it has been in advancing toward the goal of the elimination 
of the dual system, is the soundest approach, the defend­
ants respectfully request that they be permitted to return



9

to that system for the benefit o f the total educational pro­
gram in the county.

CONCLUSION

W e respectfully submit that the evidence in this case, 
while disclosing a dual system, also discloses that freedom 
of choice is the only workable plan available to the defend­
ants and its continued use should be approved.

Respectfully submitted,

C o u n t y  S chool  B oard of H a l if a x  
C o u n t y , U dy C. W ood, D iv is io n  
S u p e r in t e n d e n t  of S chools an d  
C o m m it t e e  for C on trol  of H a l i ­
f a x  C o u n t y  H ig h  S ch ool  an d  
M ar y  B e t h u n e  H ig h  S chool

Appellants
F red erick  T. G r a y , E sq u ire  

Williams, Mullen & Christian 
510 United Virginia Bank Building 
Richmond, Virginia 23219

D on P. B a g w e l l , E sq u ire  
Halifax, Virginia

Counsel for Appellants



EXHIBIT A

H A L IF A X  C O U N TY  SCH O OL BO ARD  

November, 1968

School

Enrollment Teachers

White Negro . Other. White Negro Other

Clays Mill 0 505 0 6 17 0
Clover 175 40 0 10 2 0
Cluster Springs 369 9 2 13 2 0
Halifax 485 12 0 16 2 0
Sydnor Jennings 0 437 0 5 14 0
Meadville 0 408 0 6 13 0
Rosa 184 1 0 7 2 0
Scottsburg 305 14 0 11 2 0
Sinai 0 623 0 6 20 0
South of Dan 0 635 0 5 23 0
Turbeville 178 14 0 8 2 0
Virgilina 161 0 2 8 1 0
Volens 310 0 0 11 1 0
Wilson Memorial 194 0 0 8 1 0
T otal Co. E le m . 2361 2698 4 120 102 0
Grand  T otal Is 5063

EXHIBIT B

H A L IF A X  CO U N TY -SO U TH  BO STO N  C ITY  
JO IN T BO ARD  OF CO N TRO L

Attendance Records for Month Ending November 27, 1968
Enrollment Teachers

School White Negro Other White Negro Other

Bethune H.S. (Co.) 0 1485 0
Bethune H.S. (City) 0 256 0

T otal 0 1741 0 14 71 0
Halifax Co. H.S. (Co.) 1498 70 12
Halifax Co. H.S. (City) 397 12 0

T otal 1895 82 12 87 8 i
G rand  T otal 1895 1823 12 101 79 i



EXHIBIT D
Name of School Grades Capacity

Clays Mill 1-7 610
Clover 1-7 255
Cluster Springs 1-7 395
Halifax Elem. 1-7 550
Meadville 1-7 470
Rosa 1-7 200
Scottsburg 1-7 310
Sinai 1-7 630
South of Dan 1-7 745
Sydnor Jennings 1-7 420
Turbeville 1-7 255
Virgilina 1-7 225
Volens 1-7 270
Wilson Memorial 1-7 195
Halifax County H. S. 8-12 1772
Mary M. Bethune H. S. 8-12 1353

EXHIBIT E

5. a. Near center o f county.
b. Approximately 60 classrooms with accompanying 

facilities to accommodate about 1700 pupils in the 
8th and 9th grades.

c. As soon as possible.
d. Based on present ratio o f white and Negro pupils 

residing in the county, approximately 50% white 
and 50% Negro; i.e., approximately 850 white and 
850 Negro pupils.