City of Norfolk, VA School Board v. Brewer Motion to Vacate Stay and Brief in Opposition to Petition for a Writ of Certiorari

    Supreme Court of the United States
October Term, 1971

No. 71-1317

THE SCHOOL BOARD OF THE CITY OF 
NORFOLK, VIRGINIA, e t  a l .,

Petitioners,

CARLO TTA MOZELLE BREWER, et  a l ., 
and

UNITED STATES OF AMERICA, 
and

DAVID E. ALLGOOD, et  a l .,
Respondents.

M O TIO N  TO  VACATE STAY AND 
BRIEF IN OPPOSITION TO  PETITION 

FOR A W RIT OF CERTIORARI

Sa m u el  W. T u ck er  
H e n r y  L. M a r s h , III 
Ja m e s  W. Be n t o n , Jr.
H ill , T u ck er  & M arsh  

214 East Clay Street 
Richmond, Virginia 23219 

V ictor J. A sh e  
Suite 704—Plaza One 
St. Paul’s Boulevard & Plume Street 
Norfolk, Virginia 23510 

Ja ck  G reenberg 
Jam es  M. N abrit, III 
N orm an  C h a c h k in

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

Counsel for Respondents



Supreme Court of the United States
October Term, 1971

No. 71-1317

THE SCHOOL BOARD OF THE CITY OF 
NORFOLK, VIRGINIA, et  a l .,

Petitioners,
v.

CARLOTTA MOZELLE BREWER, et  a l ., 
and

UNITED STATES OF AMERICA, 
and

DAVID E. ALLGOOD, et  a l .,
Respondents.

M O TIO N  TO  VACATE STAY

Respondents Carlotta Mozelle Brewer and others move 
the Court to vacate the stay of the mandate of the United 
States Court of Appeals for the Fourth Circuit dated March 
7, 1972 by which the United States District Court for the 
Eastern District of Virginia at Norfolk is directed “ to amend 
the plan of desegregation for the defendant school district 
by requiring the school district to provide, either by a bus 
system of its own or by an acceptable arrangement with the 
private bus system now operating in the school district, free 
transportation for all students of the school system assigned 
to schools located beyond reasonable walking distances of



2

their homes.” By order of the Court of Appeals filed x\pril 3, 
1972, the mandate was “ stayed until April 18, 1972, in order 
to permit the defendants to apply to the Supreme Court for 
a writ of certiorari, or to apply to that Court for a stay.” 
The petition for a writ of certiorari was docketed on the 
13th day of April, 1971.

In support of this motion, the respondents show:

I
1. If the stay of the mandate will be vacated, the district 

court, in compliance with the spirit of Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1969), may join 
the Council of the City of Norfolk as a party defendant and 
require the Council and the School Board to make plans, 
with increased appropriations as necessary, for providing 
free transportation for the school children without which, as 
the Court of Appeals has noted, reassignment for purposes 
of desegregation “ becomes a futile gesture and . . .  a cruel 
hoax.” Inasmuch as approximately ninety days are required 
between order and delivery of school buses (Bradley v. 
School Board of the City of Richmond, 324 F.Supp. 456, 
459 (E.D. Va. 1971)), the courts should require the School 
Board to promptly decide whether it will transport children 
by school buses or, if not, by what practical means free 
transportation will be provided. In either event, and to 
avoid diminution of the quality of the educational program 
(Code of Virginia, 1950, § 22-126.1), the cost should be 
ascertained and included in the city’s budget for the fiscal 
year which will begin July 1, 1972 (Code of Virginia, 1950, 
§ 15.1-160 et seq.).

2. No injury will be occasioned the School Board or the 
Council if the stay should be vacated. Even if the district



3

court should require the purchase of school buses and this 
Court should later hold that Norfolk has no obligation to 
furnish free transportation to school children under the cir­
cumstances of this case, there is a growing national demand 
for school buses which insures that such properties can be 
resold with minimal financial loss.

3. In the words of the Court of Appeals in its March 7, 
1972 opinion in this case at footnote 6, the respondents 
allege: “ The District Court found the cost of installing and 
operating a transportation system by the school district to 
be $3,600,000. O f this sum, however, approximately $3,- 
000,000 represented capital outlays, covering purchases of 
buses and the acquisition and equipping of service yards. 
These expenditures are normally funded and are not con­
sidered an operating expense. The annual operating expense 
of the bus system for the school district was fixed at about 
$600,000, of which 47 per cent would be reimbursable by the 
State. It would seem reasonable to assume that an annual 
operating budget of $600,000 by the district (supplemented 
as it would be with State aid) would cover the operating 
costs of the system and provide adequately for normal 
amortization of the capital expenditures required for the 
purchase of buses and for the acquisition of service facilities. 
Such an expenditure from a school budget of over 35 million 
dollars would be in line with what was considered reasonable 
in Swann, where an increased annual operating expense of 
$1,000,000, imposed on a total school budget of $66,000,000, 
was held reasonable.”

4. Judicial requirement that the Council and School 
Board make plans for providing free transportation for 
school children will not even occasion undue inconvenience 
but will merely insure good faith performance of the under­
taking which the School Board indicated when, in its appli­



4

cation to the Court of Appeals for the stay, it represented: 
“ The appropriate officials of the School Board and the City 
of Norfolk are in the process of investigating feasible alterna­
tive methods of providing public transportation for the 
school children and the general public of the City of Nor­
folk, including the financing thereof.”

II

5. If the stay of the mandate will continue in force, the 
defendant School Board and the Council of the City of 
Norfolk (which by reason of the School Board’s objections 
has not been made a party hereto) will be free from judicial 
compulsion to provide transportation for the school children 
during the 1972-73 school session or to make reasonable 
plans for such; and thousands of Norfolk school children and 
their parents, including members of the plaintiff class, will 
be financially disadvantaged without prospect of recovery 
or, even worse, children will be required to forego school 
attendance during the 1972-73 school session by reason of 
their inability to pay the cost of transportation to distant 
schools to which they have been assigned pursuant to the 
constitutional command to desegregate schools.

6. Under the desegregation plan for Norfolk’s schools, 
submitted and approved pursuant to this Court’s decisions in 
Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971) and companion cases, an estimated 24,000 
school children are assigned to schools which are beyond 
walking distance from their respective homes; some of the 
distances being as much as nine miles. Norfolk’s public 
schools have an approximate enrollment of 50,000, more 
than 16,000 of whom are from low income families as are 
most of the plaintiff class.



5

7. During 1971-72, student bus fares in Norfolk were 
increased from 12j/i> cents to 17 /2 cents or from $45 to $63 
a year. A predictable result of such fare increase was that 
more children of low income families would have to forego 
school attendance because of their inability to pay for trans­
portation.

8. If the stay should continue in effect and this Court 
should ultimately affirm the judgment of the Court of Ap­
peals, thousands of Norfolk school children from families 
with low income including many children of the plaintiff 
class, will have been irreparably injured by the wrongful 
denial of the means to get to the distant schools to which 
they were assigned pursuant to the desegregation plan. The 
reward for their quest for equal educational opportunity will 
have been, in a very realistic sense, a gross denial of any 
educational opportunity.

Sam u el  W. T ucker
Of Counsel for Carlotta Mozelle 
Brewer, et al., Respondents

Sam u el  W. T ucker  
H enry  L. M a r s h , III 
Jam es  W. Be n t o n , Jr .
H ill , T u ck er  & M arsh  

214 East Clay Street 
Richmond, Virginia 23219

V ictor J. A sh e
Suite 704^Plaza One
St. Paul’s Boulevard and Plume Street
Norfolk, Virginia 23510

Ja ck  G reenberg 
Jam es M. N abrit, III 
N orman  C h a c h k in

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

Counsel for Carlotta Mozelle Brewer, 
et al., Respondents



BRIEF IN OPPOSITION TO  PETITION 

FOR A W RIT OF CERTIORARI



TABLE OF CONTENTS
Page

Earlier A spects of the Case .................................. ........................  1

Q uestions Presented ........................................................................ 2

Statement of Additional Facts ...... ...............................................  3

R easons for Denying the Writ ......................................... ...........  4

I. Free Pupil Transportation ...................... ........................ 4
A. Free Transportation, As Mandated By The Court

Below, Is Clearly Required By Prior Decisions O f This 
Court .................................................................................  4

B. The Apparent Conflict Between Circuits, If Real, Is
Insignificant .................................................................   7

II. Allowance Of Counsel Fees To Plaintiffs...........................  9

III. The Pendency Of The Instant Petition, Coupled With 
The Stay Granted Pursuant To F.R.A.P. 41(B), Shield 
The School Board From Its Responsibility To Order 
School Buses Now ................................................................. 11

Conclusion ...................................................  12

TABLE OF CITATIONS

Cases

Bell v. School Board of Powhatan County, Virginia, 321 F.2d 494 
(4th Cir. 1963) ...........   9

Bradley v. School Board of the City of Richmond, 324 F. Supp.
456 (E.D. Va. 1971) .........................................................................  11

Brewer v. School Board of City of Norfolk, Virginia, 434 F.2d 408 1

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) ....6, 10

Brown v. County School Board of Frederick County, Virginia, 327 
F.2d 655 (4th Cir. 1964) 9



Page

Clark v. Board of Education of Little Rock School District, 369 
F,2d 661 (8th Cir. 1966) ............ ........................ ...........................  10

Clark v. Board of Education of Little Rock School District, 449 
F.2d 493 (8th Cir. 1971) ................................................ ............7, 9

Griffin v. Board of Supervisors of Prince Edward County, 339 F.2d 
486 (4th Cir. 1964) .........................................................................  9

Griffin v. School Board of Prince Edward County, 377 U.S. 218 
(1964) .......................................... ..................................................... 6

Nesbit v. Statesville City Board of Education, 418 F.2d 1040 ( 4th 
Cir. 1969) ........................................................................................ - 10

School Board of Norfolk, Virginia v. Brewer, 399 U.S. 929 ....... .. 2

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 
(1971) .......................................................................................... 4, 5, 7

United States of America v. Greenwood Municipal Separate School 
District, et a l , ..... F.2d ...... (5th Cir. No. 71-2773) ................. 8, 9

Other Authority-

Constitution of Virginia (1971) Article VIII, §§ 1, 3 .................... 6



Supreme Court of the United States
October Term, 1971

No. 71-1317

THE SCHOOL BOARD OF THE CITY OF 
NORFOLK, VIRGINIA, et  a l .,

Petitioners,
v.

CARLOTTA MOZELLE BREWER, et  a l ., 
and

UNITED STATES OF AMERICA, 
and

DAVID E. ALLGOOD, et  a l .,
Respondents.

BRIEF IN OPPOSITION TO  PETITION 
FOR A W RIT OF CERTIORARI

EARLIER ASPECTS OF THE CASE

On June 29, 1970 this Court denied the school board’s 
petition for writ of certiorari to the decision of the Court of 
Appeals for the Fourth Circuit (Brewer v. School Board of 
City of Norfolk, Virginia, 434 F.2d 408) which, inter alia, 
directed that “ [w]ith respect to elementary and junior high 
schools, the board should explore reasonable methods of 
desegregation, including rezoning, pairing, grouping, school



2

consolidation, and transportation” (Id  at 412). School Board 
of Norfolk, Virginia v. Brewer, 399 U.S. 929.

On or about September 3, 1971 the school board made 
application to the Chief Justice for a stay of the mandate of 
the Court of Appeals for the Fourth Circuit which had va­
cated the district court’s August 25, 1971 stay of its July 28, 
1971 order requiring transportation of pupils to effect school 
desegregation; the application having been based on a claim 
that Executive Order No. 11615, dated August 15, 1971 
prohibited the Virginia Transit Company’s anticipated fare 
increase without which the company would not continue to 
transport children at reduced fares. The school board then 
asserted: “ The only alternative method of obtaining the 
necessary transportation is for the School Board to establish 
a school bus system.” The application for a stay was denied 
on September 5, 1971. School Board of Norfolk, Virginia v. 
Carlotta Mozelle Brewer, et al., and United States of Amer­
ica, No............ October Term, 1971.

On or about September 27, 1971 certain “ white defend- 
ant-intervenors”  made application to the Chief Justice for a 
stay of the District Court’s July 28, 1971 order requiring 
transportation of pupils to effect school desegregation. The 
application was denied. David E. Allgood, etc., et al. v. Car­
lotta Mozelle Brewer et al., No..............October Term, 1971.

The history of sixteen years of active litigation of this case 
in the lower courts is set forth in the appendix to this brief.

QUESTIONS PRESENTED

The petitioners’ statement of questions presented makes 
certain assumptions which the respondents are unwilling to 
admit. Hence, we restate those questions, viz:

1. Whether this school board must defray costs of all 
transportation which is necessary to the disestablishment of



3

racial segregation in the public schools and to the mainte­
nance of equality of benefits accorded students similarly situ­
ated.

2. Whether an appellate court may mandate an award of 
counsel fees to successful plaintiffs in a school desegregation 
case.

3. Whether, by virtue of the stay granted pursuant to 
F.R.A.P. 41 (b ), the pendency of the instant petition will 
absolve the school board of its responsibility to order school 
buses in sufficient time to furnish transportation during the 
1972-73 session.

STATEMENT OF ADDITIONAL FACTS

The board estimates that 24,000 pupils will require trans­
portation. Norfolk’s public schools have an approximate en­
rollment of 50,000, more than 16,000 of whom are in low 
income families.

Since 1942 Virginia has offered assistance to local school 
district transportation programs covering maintenance, 
operating expenditures, bus replacement costs, etc. (25 Tr. 
60, 74). Up to 100% of operating expenditures qualify for 
reimbursement upon the application of a school district.

For many years, the Virginia Transit Company has oper­
ated special school busses in conjunction with the school 
board. These buses are routed to pick up students near their 
homes each morning and transport them to the school of 
their assignment. Over the years, the City of Norfolk has 
subsidized the cost of transporting more than 8,000 students 
daily, thus permitting them to ride at one-half of the normal 
fare.

“ The District Court found the cost of installing and oper­
ating a transportation system by the school district to be



4

$3,600,000. O f this sum, however, approximately $3,000,000 
represented capital outlays, covering purchases of buses and 
the acquisition and equipping of service yards. These ex­
penditures are normally funded and are not considered an 
operating expense. The annual operating expense of the bus 
system for the school district was fixed at about $600,000, 
of which 47 per cent would be reimbursable by the State. It 
would seem reasonable to assume that an annual operating 
budget of $600,000 by the district (supplemented as it would 
be with State aid) would cover the operating costs of the 
system and provide adequately for normal amortization of 
the capital expenditures required for the purchase of buses 
and for the acquisition of service facilities. Such an expendi­
ture from a school budget of over 35 million dollars would 
be in line with what was considered reasonable in Swann, 
where an increased annual operating expense of $1,000,000, 
imposed on a total school budget of $66,000,000, was held 
reasonable”  (Slip Op. footnote 6).

REASONS FOR DENYING THE W RIT

I.
Free Pupil Transportation

A.

F ree  T r a n s p o r t a t io n , A s M a n d a te d  B y  T h e  C o u r t  
B e l o w , I s C l e a r l y  R eq u ired  By  P rior D ecisio n s  

O f T h is  C o u r t .

By necessary implication, this Court has shown that this 
school board must furnish free transportation. In affirming 
the district court’s order in Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S. 1, 26-27 (1971), and with 
specific reference to an optional majority-to-minority trans­
fer provision, this Court indicated:



5

“ In order to be effective, such a transfer arrangement 
must grant the transferring student free transportation 
[emphasis supplied] and space must be made available 
in the school to which he desires to move. Cf. Ellis v. 
Board of Public Instruction, 423 F.2d 203, 206 (C.A. 
5 1970). The court orders in this and the companion 
Davis case now provide such an option.”

It should go without saying that the school board has at 
least an equal duty to transport students whom it assigns to 
distant schools to accomplish desegregation as it has to 
transport the student who voluntarily seeks such assignment 
to avoid being in a racial majority.

After showing the peculiar appropriateness of the use of 
transportation in the Charlotte-Mecklenburg (North Caro­
lina) system and in the Mobile, Alabama system as well, the 
Court in ,Swann, said:

“ Desegregation plans cannot be limited to the walk-in- 
school.” (402 U.S. at 30)

Then the Court mentioned one possible valid objection to 
transportation of students to accomplish desegregation, i.e., 
“ when the time and distance of travel is so great as to either 
risk the health of the children or significantly impinge on 
the educational process” {Ibid).

In their considerations of plans for the use of trans­
portation to accomplish desegregation, district courts are 
charged, by Swann, to consider the discussions under (1) 
Racial Balances or Racial Quotas, (2) One-race Schools 
and (3) Remedial Altering of Attendance Zones. They are 
not enjoined to measure relief by the extent to which the 
subject school district may have previously transported stu­
dents.

The lower courts are charged, by Swann, to reconcile 
competing values, as courts have traditionally done, in fash­



6

ioning remedial measures. In so doing they must keep in 
mind the goal of equal educations opportunities for all chil­
dren; those who live near and those who live far from school 
and, also, those whose parents are affluent and those whose 
parents are indigent. “ Such an opportunity, where the state 
has undertaken to provide it, is a right which must be avail­
able to all on equal terms.” Brown v. Board of Education of 
Topeka, 347 U.S. 483, 493 (1954). That constitutional im­
perative transcends fiscal policies and budgetary preroga­
tives. Griffin v. School Board of Prince Edward County, 
377 U.S. 218 (1964).

Here, the Court of Appeals considered the problem of 
expense and concluded that the cost of busing in this case is 
not unreasonably burdensome (Slip Op. p. 8, footnote 6). 
Quite appropriately, the court, sitting en banc, unanimously 
required this school board “ to provide . . . free transporta­
tion for all students of the school system assigned to schools 
located beyond reasonable walking distance of their homes” 
(Judgment filed May 7, 1972).

Unquestionably, desegregation in Norfolk cannot be ac­
complished without transportation. It seems to be equally 
clear, as a matter of paramount law in Virginia, that “ public 
elementary and secondary schools for all children” shall be 
free, and shall be compulsory for “ every eligible child of 
appropriate age, such eligibility and age to be determined 
by law” (Constitution of Virginia (1971), Article VIII, 
Education §§ 1, 3). No child, regardless of the affluence or 
poverty of his parents (who may or may not be hostile to the 
desegregation process), can be crushed between the state 
law which says he must attend school and the federal law 
which requires his assignment to a school remote beyond his 
means of locomotion. The court below was imminently cor­
rect in holding that “ the Court cannot compel the student



7

to attend a distant school and then fail to provide him with 
the means to reach that school” (Slip Op. p. 9).

As was demonstrated in Swann (402 U.S. at 7), resi­
dential patterns in metropolitan areas have resulted from 
federal, state and local government action; and school board 
action, particularly, with reference to the sites and sizes of 
schools, based on these patterns have resulted in segregated 
education. Now, in obedience to the constitutional mandate 
to desegregate schools, the state assigns children to schools 
distant from their homes. Consideration of these facts im­
pelled the court below to hold “ that the school district as a 
part of its plan of desegregation must provide a practical 
method of affording free busing for students assigned to 
schools beyond normal walking distance of their homes; the 
mechanics of the method to be employed by the school dis­
trict in discharge of this duty [being] for the District Court” 
(Slip Op. pp. 10-11).

B.

T h e  A p p a r e n t  C o n f l ic t  B e t w e e n  C ir c u it s ,
I f  R e a l , I s I n s ig n if ic a n t

The school board argues that there is a conflict between 
circuits concerning provisions of free transportation and 
points to the one short paragraph in Clark v. Board of 
Education of Little Rock School District, 449 F.2d 493, 499 
(8th Cir., 1971) wherein the Eighth Circuit altered the 
district court’s free transportation requirement by excluding 
“ students who continue to attend the secondary school closest 
to their home” ; it having been the feeling of the Court of 
Appeals that the constitutional rights of such students have 
not been or will not be affected. It is quite apparent that 
the Eighth Circuit overlooked the very likely protest of 
some excluded student that he must pay for transportation



8

to and from school while others similarly situated ride 
shorter distances at public expense.

The reasoning adopted by the Fourth Circuit in the instant 
case finds support in the April 11, 1972 decision of the Fifth 
Circuit in United States of America v. Greenwood Munici­
pal Separate School District, et a l.,___F .2 d ____ (5th Cir.
No. 71-2773) which reversed the district court’s denial of 
free transportation for black students residing in non-con- 
tiguous or satellite zones. (The opinion is reproduced in the 
appendix hereto.) Rejecting the government’s suggestion of 
remand for inquiry by the district court as to the transporta­
tion needs of the students and the ability of the school 
district to meet those needs, the Court of Appeals said:

“ It is implicit in the decisions of the Supreme Court 
and of this court that it is the responsibility of school 
officials to take whatever remedial steps are necessary 
to disestablish the dual school system, including the 
provision of free bus transportation to students required 
to attend schools outside their neighborhoods. The black 
elementary students who were refused free transporta­
tion by the district court’s order are victims of the rem­
nants of the dual system of schools which existed for so 
long under the requirements of Mississippi constitu­
tional and statutory provisions. No legitimate reason is 
put forth for forcing them and their parents to shoulder 
the burden of eliminating these vestiges of segregated 
schools in the circumstances present here.” (Slip Op. 
pp. 4, 5)

The only uncertainty, if any, is whether equal protection 
is being accorded the student who is denied free transpor­
tation because his school, although beyond walking distance, 
is the closest school to his home. After considering the cost 
involved, the court below forestalled the uncertainty, and 
avoided the further equal protection question, by requiring



9

free transportation of all students who live beyond normal 
walking distance. In the Greenwood case, the Fifth Circuit 
did not have before it the facts respecting the needs of the 
individual students and the ability of the school district to 
meet those needs. It dealt only with the problem which was 
most urgent— the transportation of children whom the court 
had required to be assigned to distant schools. In the Clark 
case, the Eighth Circuit did not state the facts or articulate 
its reasoning which caused it to “ feel that the constitutional 
rights of the [excepted] students have not been or will not 
be affected.”

The petitioners do not claim that the Fourth Circuit’s 
order requires them to transport a significant number of 
children from their homes to the closest school. It appears 
that the difference in budgetary commitment will be slight. 
Moreover, the appropriate case in which to test the equal 
protection right of a student to free transportation to a 
school which, although beyond normal walking distance, is 
closest to him would seem to be a case in which such a 
student is a party.

II.

Allowance Of Counsel Fees To Plaintiffs

There is no general rule prohibiting the allowance of 
counsel fees in the absence of statute. As was pointed out by 
Judge Winter, especially concurring with the court below, 
the Fourth Circuit has directed the allowance of counsel fees 
to plaintiffs in several school desegregation cases, e.g., Bell v. 
School Board of Powhatan County, Virginia, 321 F.2d 494 
(4th Cir. 1963) ; Brown v. County School Board of Freder­
ick County, Virginia, 327 F.2d 655 (4th Cir. 1964) ; Griffin 
v. Board of Supervisors of Prince Edward County, 339 F.2d 
486 (4th Cir. 1964), reversed on other grounds, 377 U.S.



10

218 (1964); Nesbit v. Statesville City Board of Education, 
418 F.2d 1040 (4th Cir. 1969).

Although it then denied the prayer of plaintiff-appellants 
for an award of counsel fees, the Eighth Circuit in Clark v. 
Board of Education of Little Rock School District, 369 F.2d 
661, 671 (8th Cir. 1966), warned: “ The time is coming to 
an end when recalcitrant state officials can force unwilling 
victims of illegal discrimination to bear the constant and 
crushing expense of enforcing their constitutionally accorded 
rights.” In the 1971 appeal of the same case, that court held: 
“ The plaintiff should no longer be required to bear the con­
tinuing expense of attorneys’ fees to vindicate their constitu­
tional rights. They are entitled to attorneys’ fees for services 
performed by them in processing this appeal and cross- 
appeal” (449 F.2d at 493).

The respondents are in accord with the views expressed 
by Judge Winter, concurring specially in the judgment 
below:

“ The time is now when those who vindicate these civil 
rights should receive fair and equitable compensation 
from the sources which have denied them, even in the 
absence of any showing of ‘unreasonable, obdurate 
obstinacy.’ ”  (Slip Op. p. 30)
“ It seems . . .  to be appropriate now to hold . . . that 
reasonable and adequate counsel fees should be 
awarded as of course unless special circumstances would 
render an award unjust.” {Id., p. 29)

These views are particularly appropriate in the light of this 
school board’s long continued pattern of evasion of its duty 
to desegregate and its persistent obstruction of the efforts of 
the plaintiffs to realize the promise of the 1954 Brown deci­
sion, an outline of which is set forth in the appendix to this 
brief as “ The History of This Litigation In The Lower 
Courts.”



11

Although the respondents believe that a similar pro­
nouncement from this Court would greatly accelerate the 
course of school desegregation across the land, they urge 
denial of the instant petition for reasons above shown and 
for a further reason next stated.

III.

The Pendency O f The Instant Petition, Coupled With The Stay 
Granted Pursuant To F.R.A.P. 41(B), Shields The School Board 
From Its Responsibility To Order School Buses Now

The petition points out that the Virginia Transit Com­
pany has served notice on the City of Norfolk that it will 
terminate service for all passengers on August 23, 1972. This 
being so, the plan for desegregation of Norfolk’s schools may 
fail for the 1972-73 school session unless the school board 
will acquire school buses in sufficient number to provide 
transportation for the students assigned to schools remote 
from their homes.

In another school desegregation case pending in the 
Eastern District of Virginia, Richmond Division, the evi­
dence indicated that approximately ninety days are required 
between order and delivery of transportation equipment 
(.Bradley v. School Board of the City of Richmond, 324 F. 
Supp. 456, 459 (E.D. Va. 1971)). But for the stay granted 
pursuant to Rule 41(b) of the Federal Rules of Appellate 
Procedure and the timely filing of the instant petition, the 
school board might even now be ordering school buses and 
seeking appropriation of funds with which to defray the cost 
of a school transportation system.

Of course, considering the likelihood that the City of 
Norfolk will assume the operation of the transit system, 
transportation of school children might be accomplished 
through that system. In such event, however, the right of



12

school children to free transportation to distant schools, as 
recognized by the court below, should not be impaired. Dur­
ing 1971-72, and at the instance of the school board, student 
fares were raised from 12j/2  ̂ to 17/2^ (from $45 a year to 
$63). If the city-operated transit systems can charge chil­
dren any amount to get to and from the schools to which 
they have been assigned, it can charge enough to place free 
public education beyond the reach of the vast majority of 
the plaintiff class.

CONCLUSION

Unless the instant petition will be promptly denied or 
unless the stay will be promptly vacated, this school board 
may again delay desegregation for yet another year or, even 
worse, it may deny public education to a large number of 
the children whose predecessors sought relief at the hand of 
the federal court in May of 1956.

Respectfully submitted,
Sa m u el  W. T ucker

Of Counsel for Carlotta Mozelle 
Brewer, et al., Respondents

Sa m u el  W. T ucker  
H e n ry  L. M a r s h , III 
Jam es  W. Be n t o n , Jr .
H ill , T u ck er  & M arsh  

214 East Clay Street 
Richmond, Virginia 23219

V ictor J. A sh e
Suite 704^Plaza One
St. Paul’s Boulevard & Plume Street
Norfolk, Virginia 23510

Jack  G reenberg 
Jam es  M . N abrit, III 
N orm an  C h a c h k in

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

Counsel for Carlotta Mozelle Brewer, 
et al., Respondents



A P P E N D I X



The History Of This Litigation In The Lower Courts

In this sixteen-year-old litigation to desegregate the Nor­
folk, Virginia public schools, the reported opinions are 
numerous. Nearly every conceivable tactic to delay, frus­
trate and avoid the mandate of Brown v. Board of Educa­
tion, 347 U.S. 483 (1954) has been raised.

After the complaint was filed in 1956, all action was de­
ferred pending the holding of a planned special session of 
the Virginia Legislature on the subject of school integration, 
and then again pending the effective date of the “ massive 
resistance”  legislation passed at the special session. On Janu­
ary 11, 1957, the district court denied the school board’s 
motion to dismiss, and on February 12, 1957, the district 
court entered an injunction against the school authorities 
restraining them from :

refusing, solely on account of race or color, to admit to, 
or enroll or educate in, any school under their oper­
ation, control, direction or supervision, directly or in­
directly, any child otherwise qualified for admission to, 
and enrollment and education in such school.

Beckett v. School Bd. of City of Norfolk, 148 F. Supp. 430, 
2 Race Rel. L. Rep. 337 (E.D. V a.), both aff’d sub nom. 
School Bd. of City of Newport News v. Adkins, 246 F.2d 325 
(4th Cir.), cert, denied, 355 U.S. 855 (1957). However, all 
proceedings were again stayed pending disposition of ap­
peals and petitions for certiorari. It was not until July, 1958 
that the school board adopted pupil placement criteria and 
procedures. The board thereupon denied all 151 applica­
tions filed by black students to attend previously all-white 
facilities during the 1958-59 school year. 3 Race Rel. L. 
Rep. 945 (1958). The district court ordered the board to

APPENDIX I



App. 2

reconsider and on August 29, 1958, the board announced 
that seventeen of the transfer requests would be granted. 3 
Race Rel. L. Rep. 955 (1958). The board sought an addi­
tional delay in admitting the seventeen black students, but 
the district court denied it and the court of appeals affirmed. 
Beckett v. School Bd. of City of Norfolk, 3 Race Rel. L. Rep. 
1155 (E.D. V a .), aff’ d 260 F.2d 18 (4th Cir. 1958). On 
plaintiff’s cross-appeal from the district court’s refusal to 
order the admission of the remaining 134 students, the 
matter was remanded since the district court had indicated 
he would consider separately the validity and application 
of the criteria under which the applications were denied. 
The schools to which the seventeen Negro students were 
assigned, however, were closed, pursuant to Virginia’s 
“ school closing” laws, from the fall of 1958 until February, 
1959, when the laws and similar Norfolk City ordinances 
were declared unconstitutional in James v. Almond, 170 
F. Supp. 331 (E.D. Va. 1959; 3-judge court) ; Harrison v. 
Day, 200 Va. 439, 106 S.E. 2d 636 (1959); James v. Duck­
worth, 170 F. Supp. 342 (E.D. Va.) ,  aff’d 267 F.2d 224 (4th 
Cir.), cert, denied, 361 U.S. 835 (1959). At that time plain­
tiffs’ supplemental 3-judge court complaint was dismissed as 
moot, and late in the 1958-59 school year, the district court 
refused to overturn the board’s denial of the 134 transfer 
applications, holding its placement principles facially con­
stitutional. Beckett v. School Bd. of City of Norfolk, 181 F. 
Supp. 870, 870-81 (E.D. Va. 1959), aff’d sub nom. Hill v. 
School Bd. of City of Norfolk, 282 F.2d 473 (4th Cir. 1960). 
The district court subsequently permitted the board to as­
sign pupils by these principles, although holding that the 
board need not utilize the procedures of the Virginia Pupil 
Placement Board in view of that agency’s policy of not 
granting any transfer requests. Beckett v. School Bd. of City



App. 3

of Norfolk, 185 F. Supp. 459 (E.D. Va. 1959), aff’d 181 
F.2d 131 (4th Cir. 1960). During 1961 and 1962, the dis­
trict court had occasion to review and overturn school board 
denials of black students’ transfer requests (unreported 
opinions) although there was no across-the-board attack on 
assignment procedures. However, when in 1963 the plaintiffs 
filed a motion for further relief, the board discarded pupil 
placement and proposed what has come to be known as the 
“ Norfolk choice”  plan— transfer between black and white 
schools located within the same attendance area. This plan 
was approved by the district court and on plaintiffs’ appeal 
the court of appeals reversed and remanded for reconsider­
ation in light of its then recent decisions in this field. The 
district court was specifically instructed to consider the 
legality or propriety of superimposing a city-wide zone for 
all-black Booker T. Washington High School on all other 
city high school zones. Beckett v. School Bd. of City of 
Norfolk, 9 Race Rel. L. Rep. 1315 (E.D. Va. 1964), vacated 
and remanded sub nom. Brewer v. School Bd. of City of 
Norfolk, 349 F.2d 414 (4th Cir. 1965). Proceedings subse­
quent to that remand and negotiations between the parties 
resulted in the entry of a consent order on March 17, 1966, 
approving a new desegregation plan. Beckett v. School Bd. 
of City of Norfolk, 11 Race Rel. L. Rep. 1278 (E.D. Va. 
1966). Under that plan, reluctantly approved by the dis­
trict court, there were multiple-school zones but at the high 
school level, transfers between the three white high schools 
and Booker T. Washington High were permitted only to fa­
cilitate integration. The following year, completion of Lake 
Taylor High School necessitated the filing of an amended 
plan by the school board, proposing five high school zones, 
and allowing only Booker T. Washington students to trans­
fer to schools outside their zone of residence. The district



App. 4

court required that transfer privileges be extended to all 
high school students but rejected plaintiffs’ attacks upon the 
zone lines and upon the proposed replacement of Booker T. 
Washington High School on the same site. The court of 
appeals reversed and remanded, directing the district court 
to consider, with respect to both issues, whether segregated 
neighborhood patterns in Norfolk resulted from racial dis­
crimination, of which the board was seeking advantage in 
its zone lines. Beckett v. School Bd. of City of Norfolk, 269 
F. Supp. 118 (E.D. Va. 1967), rev’d sub nom. Brewer v. 
School Bd. of City of Norfolk, 397 F.2d 37 (4th Cir. 1968). 
The district court found the appellate court’s decision “ vague 
and confusing.” 302 F. Supp. at 20. Negotiations between 
the parties following the remand failed to produce agree­
ment. As an interim plan for 1969-70 the school board pro­
posed zone line changes between Lake Taylor and Booker T. 
Washington to increase integration, and similar changes be­
tween Maury and Granby. After hearings in the Spring of 
1969, the district court approved the interim plan for 1969- 
70. Beckett v. School Bd. of City of Norfolk, 302 F. Supp. 18 
(E.D. Va. 1969). After extensive hearings in the Fall of 
1969 on the long-range plan of desegregation for 1970-71 
and thereafter, the district court approved the school board’s 
submission. Beckett v. School Bd. of City of Norfolk, 308 
F. Supp. 1274 (E.D. Va. 1969). The court of appeals re­
versed and remanded stating that the plan, whereby 76% 
of the black elementary pupils would be assigned to 19 
all-black schools, 40% of the white elementary pupils would 
be assigned to 11 white schools, 57% of the black junior 
high pupils would be assigned to 3 black schools, one all- 
white junior high school would remain, and segregated high 
schools would remain, was constitutionally impermissible. 
Brewer v. School Bd. of City of Norfolk, 434 F.2d 408 (4th



App. 5

Cir. 1970). On remand the school board submitted a plan 
with results similar to those rejected by the court of appeals. 
The district court accepted the plan with certain modifica­
tions. Beckett v. School Bd. of City of Norfolk, Civ. Action 
No. 2214 (E.D. Va. August 14, 1970). All parties except the 
United States appealed from the district court’s decision. 
The court of appeals delayed its consideration of the case 
pending this Court’s decision in Swann v. Charlotte-M eck- 
lenburg Board of Education, 401 U.S. 1 (1971) and com­
panion cases.

On June 10, 1971, sub nom. Adams v. School District No. 
5, 444 F.2d 99 (4th Cir. 1971), the court of appeals re­
manded to the district court with instructions to receive from 
the school board a new plan which would give effect to this 
Court’s decisions in Swann, supra, and Davis v. Board of 
School Commissioners of Mobile County, 401 U.S. 333 
(1971).

On remand the school board’s proposed new plan was 
approved, as modified, by order of July 28, 1971. On Au­
gust 25, 1971, in an order indefinitely staying its order of 
July 28, 1971, the district court allowed the school system 
to commence the 1971-72 school year under the 1970-71 
plan on the ground that Executive Order No. 11615 (the 
‘“ price freeze”  order) “ impeded”  the undertaking of the 
Virginia Transit Company to transport children to school. 
On September 2, 1971, the court of appeals vacated the 
stay on the ground that “ the School Board cannot avoid 
its constitutional duty to desegregate the schools by plead­
ing that the bus company might lose money because of the 
price freeze.”

On March 7, 1972 the Court of Appeals decided the 
appeals of the black plaintiffs and the white intervenors 
and held that the district court had properly approved the



App. 6

plan. The Court also held that the Board was required to 
provide free transportation to pupils who live beyond normal 
walking distance of their assigned schools and that the board 
must pay fees to the plaintiffs’ attorneys for their service in 
securing free transportation for the students. Brewer v. The
School Board of the City of N orfolk,___F .2d .......  (4th Cir.
No. 71-1900, March 7, 1972).



App-7

APPENDIX II

In The
United States Court of Appeals 

for the Fifth Circuit

No. 71-2773

United States of America,
Plaintiff,

versus

Greenwood Municipal Separate School District, et al.,
Defendants,

Lilly Russell, et al.,
Plaintiffs-Appellants,

versus

Greenwood Municipal Separate School District, et al.,
Defendants-Appellees.

Appeal from the United States District Court for the 
Northern District of Mississippi

(April 11, 1972)



Before Wisdom, Coleman and Simpson, Circuit Judges.

Per Curiam: Once more we are called upon to deal with 
the desegregation problems of the Greenwood Municipal 
Separate School District.1 Pursuant to our remand of June 
29, 1971, 445 F.2d 388, 389, for the entry of an order re­
quiring the implementation of a plan complying with former 
decisions of this Court and with the principles established in 
Swann v. Charlotte-Mecklenburg Board of Education, 1971, 
402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, the district court 
ordered the school district to provide free bus transportation 
to students who elect, on an individual basis, to change 
schools under the majority-to-minority transfer provision2 
of the District’s court ordered desegregation plan. With re­
spect to elementary students who, in accordance with the 
desegregation plan, were placed in noncontiguous school 
zones and required to attend school outside their neighbor­
hoods, the lower court declined to require the school district 
to provide free transportation. The plaintiffs have appealed 
from the district court’s refusal to order free bus transporta­
tion for the latter class of students.3

App. 8

1 In chronological order we have dealt with this District’s problems 
in the following cases: United States v. Greenwood Municipal Sepa­
rate School District, 5 Cir. 1969, 406 F.2d 1086, cert, denied 1969, 
395 U.S. 907, 89 S.Ct. 1749, 23 L.Ed.2d 220; United States v. 
Greenwood Municipal Separate School District, 5 Cir. 1970, 422 F.2d 
1250; Russell v. Greenwood Municipal Separate School District, 5 Cir., 
June 29, 1971, 445 F.2d 388; United States v. Greenwood Municipal 
Separate School District, 5 Cir., July 2, 1971, 444 F.2d 544, vacated
as moot by en banc Court, .... . F.2d ----  (January 12, 1972). The
desegregation suit was originally instituted by the United States in July, 
1966.

2 This provision entitles a student to transfer from a school in which 
his or her race is in the majority to a facility in which his or her race 
is in the minority.

3 The United States as a party to this case did not initiate the motion 
involved in this appeal, but did participate in the lower court’s pro­
ceedings and has failed an amicus curiae brief with this Court.



App. 9

On this appeal, the Negro plaintiffs contend that the fail­
ure of the district court to order free transportation for those 
elementary students placed in noncontiguous zones will re­
quire black students transferred to the previously all-white 
Bankston School to walk two miles each way, across the 
main lines of the Illinois Central Railroad, through the cen­
tral business district, across the Yazoo River, and along a 
main thoroughfare for one-half mile. The school district re­
sponds by arguing that the provision of free transportation 
is merely a matter of convenience for the black elementary 
students involved, that these black students have no con­
stitutional claim to free transportation, that the school dis­
trict has never furnished transportation to students who re­
side within the corporate limits of Greenwood, and that the 
school district is without funds to provide the requested 
transportation. The lower court, in addition to giving rea­
sons for its decision essentially similar to those advanced by 
the school district on this appeal, observed that this court 
has previously required the provision of free transportation 
to students who elected to change schools under a majority- 
to-minority transfer plan but that we have never heretofore 
directed a school district to provide free transportation for 
children placed in noncontiguous zones who go to schools 
outside their neighborhoods.

In Swann v. Charlotte-Mecklenburg Board of Education, 
supra, the Supreme Court explicitly held that a school dis­
trict which elects to utilize a majority-to-minority transfer 
plan as a desegregation tool must provide free transportation 
to each student making a transfer under the plan. 402 U.S. 
at 26, 27, 91 S.Ct. at 1281, 28 L.Ed.2d at 572, 573. In dis­
cussing the pairing and noncontiguous zoning techniques 
ordered by the trial court in Swann, the Supreme Court ap­
proved the trial court’s direction to the educational authori­



App. 10

ties that bus transportation be used to implement these 
techniques:

“ In these circumstances, we find no basis for holding 
that the local school authorities may not be required to 
employ bus transportation as one tool of school desegre­
gation. Desegregation plans cannot be limited to the 
walk-in school.” 402 U.S. at 30, 91 S.Ct. at 1283, 28 
L.Ed.2d at 575.

The plaintiffs and the United States are not in agreement 
as to the appropriate disposition of this case. The plaintiffs 
urge us to direct the district court to order the school district 
to provide free bus transportation to the elementary students 
placed in noncontiguous attendance zones. The United 
States asks us to remand the cause to the district court with 
instructions “ to permit the parties to present evidence as to 
the transportation needs of students and the ability of the 
school district to meet those needs, and to make full findings 
of fact or opinion and findings.”

We have again reviewed the extensive record in this pro­
ceeding and conclude that it is unnecessary to remand the 
cause to the district court for the hearing and findings sug­
gested by the United States. It is implicit in the decisions of 
the Supreme Court and of this court that it is the responsi­
bility of school officials to take whatever remedial steps are 
necessary to disestablish the dual school system, including 
the provision of free bus transportation to students required 
to attend schools outside their neighborhoods. The black ele­
mentary students who were refused free transportation by 
the district court’s order are victims of the remnants of the 
dual system of schools which existed for so long under the 
requirements of Mississippi constitutional and statutory pro­
visions. No legitimate reason is put forth for forcing them



App. 11

and their parents to shoulder the burden of eliminating 
these vestiges of segregated schools in the circumstances 
present here.

The judgment of the district court, insofar as it refused 
free transportation to elementary students zoned noncon- 
tiguously to attend school outside their neighborhoods, is 
reversed and the cause is remanded with directions that the 
district court without delay require the school district to 
provide such transportation to the affected elementary 
students.

Let our mandate issue at once.
Reversed and Remanded with directions. 

Coleman, Circuit Judge, dissents.