Plaintiffs' Reply Brief

    PLAINTIFFS’ REPLY BRIEF 
In Cases No. 10,792 and 10,793 
  

  

United States Court of Appeals 
FOR THE FOURTH CIRCUIT 

  

No. 10,792 
  

CHARLES C. GREEN, ET AL,, 

V. 

COUNTY SCHOOL BOARD OF 
NEW KENT COUNTY, VIRGINIA, ET AL, 

Appellees. 

Appellants, 

  

No. 10,793 
  

SHIRLETTE L. BOWMAN, ET AL,, 
Appellants, 

V. 

COUNTY SCHOOL. BOARD OF 
CHARLES CITY COUNTY, VIRGINIA, FT AL, 

Appellees. 

  

Appeals From The United States District Court For The 
Eastern District of Virginia, at Richmond 
  

S. W. Tucker 
Henry L. MarsH, III 
WiLLarp H. DoucLas, Jr. 

214 East Clay Street 
Richmond, Virginia 23219 

Jack GREENBERG 
James M. Nasri, III 

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

Counsel for Appellants 

  

   





  

TABLE OF CONTENTS 

ARGUMENT 

The Supreme Court, In 1955, Rejected Freedom Of Choice .... 1 

There Is No Sound Basis For Freedom Of Choice In The 

Instant Cases o.oo. Lind il ls 6 

The Basic Factual And Legal Assumptions Of Briggs v. 
Elliott Were Unsound o.oo. ini. ni il 7 

Racial Segregation IS Discrimination ......ooc..ii anil 9 

The Court’s Viable Judgments Do Not Permit Freedom Of 
Choice In The Subject Coufies c..siceiorenitosiorratosioerroetenss 10 

Public Officials Should Be Reminded That The Time For 

#¥Deliberate Speed’ Has Expired ....o.....in-doodioiieecnniens 13 

CONCLUSION orien otsiasitsiirinsinssesststinsssisions inns sisi seeiacsorindssts 15 

TABLE OF CITATIONS 

Cases 

Bell v. School Board of the City of Staunton, (W.D. Va. No. 
65-C-6-H; September 14, 1866) ....cccoiiviiiiiiiiiiiiiiovemiiivnii 14 

Bolling v. Sharpe, 347 U.S. 497 (1934) ..........ci.. ii 2,6 10; 13 

Bradley v. School Board of City of Richmond (Bradley I) 317 

F.24 429 (Ath Cir. 196%) vooioiiiinisl dviing ittninisinioniinesss 8 

Bradley v. School Board of City of Richmond (Bradley IT) 345 
F-24310 (1968) con.onsrnctiinie eo 0 ice boon 792 12,13 

Bradley v. School Board of City of Richmond, ........ Bs: ; 
26 S.Ct 224 151. ed 24 187 (1965) .......s..socoovo encase. 13, 15 

Briggs v. Ello, 132 FV. 2d 776 (ED. S.C. 1955) ...... 7: 8.9: 11 

Brown v. Board of Education (Brown I), 347 U.S. 483 
(1954) vidi dn lille an 2:01 13  



    

Page 

Brown v. Board of Education (Brown II), 349 U.S. 294 
E00 VERT ae ER Cr AS 34.9 

Brown v. Board of Education, 139 F. Supp. 470 (D.C. Kan. 1955) 

Buckner v. County School Board of Greene County, 332 F. 2d 
A52 {Ah Clr, 1968) ci ddd hd tienh 11, 

Cameron v. Board of Education of the City of Bonner Springs, 
182 Kan. 39, 318 P, 24 983 (December 7, 1957) ....-tciviicsocsens 

Carson v. Warlick, 238 VF. 24 724 (4th Cir. 1956) «.....ccooinncciconne 

Cooper v.. Aaron, 353. US. F (1988), outshine iotiids 

Dillard v. School Board of the City of Charlottesville, 308 F. 2d 

920: (4th Cina 1962) tities i Bini iris perimin osininba le 

Dillard v. School Board of the City of Charlottesville, 374 U.S. 

7S EAGER Oe mL ST RE el et 

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

Griffin v. County School Board of Prince Edward County, 377 
US. 218 (1954) 1.0 i iii 

Hill v. School Board of the City of Norfolk, 282 F. 2d 473 (1960) 

Jones v. School Board of the City of Alexandria, 278 F. 2d 72 
00,01 EEL ONO a Tae VE Nee lo 11; 

Kier v. County School Board of Augusta County (W.D. Va. No. 
65-C-5-H, August 6, 1960)..............ccoiinconiruisentiesoisissstsincsiminess 

Kilby v. County School Board of Warren County (W.D. Va. No. 
530, OCtODBL 7, YI00). .oi.icccvsiisuscissmmmssnsivbntuosiiossmnansinntissonssrssnsste 

Rogers v. Paul, ........ 1S... + 86 S.Ct. 258 (1965Y; 15 1. 2d 
203 (106%)... at) Rit rR eit vires 

Singleton v. Jackson Municipal Separate School District, 348 F. 
2d 729 (5th Cir. 1965) 

Swann v. The Charlotte-Mecklenburg Board of Education 

Fi2d..... , 4th Cir. No. 10,207, October 24, 1966 

7) 

11 

6 

13 

14 

14 

 



  

Page 

Taylor v. Board of Education of New Rochelle, 191 F. Supp. 
131: (SD: NY. 1961) ve 14 

Watson v. City of Memphis, 3731.8. 526 (1963) ...;.co.onenesivicen 15 

Other Authorities 
Acts of Assembly 

Extra Session 1956, Chrapler 70 coon icine Brteniittse ie 8 

Extra Session 1959, Clapter 71 ........inide ie ccnecisasioiss 8 

Richmond News Leader 

November 3, 1066 i.e ie ba 14, 15 

Richmond Times Dispatch 

November 3, 1066... ieee 14, 15 

NOVEMBRE 4, YO0B. ... cocci ovmiceriindiiicenvmnss tis horns stor siiuntosamasass 14 

 





United States Court of Appeals 
FOR THE FOURTH CIRCUIT 

  

No. 10,792 
  

CHARLES C. GREEN wraL, 
Appellants, 

V. 

COUNTY SCHOOL, BOARD OF 
NEW KENT COUNTY, VIRGINIA, ET AL, 

Appellees. 

  

No. 10,793 
  

SHIRLETTE I. BOWMAN, gr AL, 
Appellants, 

V. 

COUNTY SCHOOL, BOARD OF 
CHARLES CITY COUNTY, VIRGINIA, ET AL, 

Appellees. 

  

Appeals From The United States District Court For The 
Eastern District of Virginia, at Richmond 

  

PLAINTIFFS REPLY BRIEF 

  

ARGUMENT 

The Supreme Court, In 1953, Rejected Freedom Of Choice 

Counsel for the school boards suggests, and the appel- 

lants agree, that if we hope ever to find refuge from the 

  

 



  

2 

stormy seas of litigation in the area of racial segregation 

in public schools, we must at least remember what the light- 

house looked like. We submit that the broad outlines were 

pictured on May 17,1954, viz: 

“In each of these cases, minors of the Negro race, 
through their legal representatives, seek the aid of the 
courts in obtaining admission to the public schools of 
their community on a nonsegregated basis. In each 
instance, they have been denied admission to schools 
attended by white children under laws requiring or 
permitting segregation according to race. 

kt fi 

“We conclude that in the field of public education the 
doctrine of ‘separate but equal’ has no place. Separate 
educational facilities are inherently unequal. There- 
fore, we hold that the plaintiffs and others similarly 
situated for whom the actions have been brought are, 
by reason of the segregation complained of, deprived 
of the equal protection of the laws guaranteed by the 
Fourteenth Amendment.” [Emphasis added.] Brown 
v. Board of Education, (Brown 1), 347 U.S. 483, 487, 
495 (1954). 

“We have this day held that the Equal Protection 
Clause of the Fourteenth Amendment prohibits the 
states from maintaining racially segregated public 
schools. The legal problem in the District of Columbia 
is somewhat different, however. * * * The ‘equal pro- 
tection of the laws’ is a more explicit safeguard of pro- 
hibited unfairness than ‘due process of law,” and, 
therefore we do not imply that the two are always 
interchangeable phrases.” [Emphasis added.] Bolling 
v. Sharpe, 347 U.S. 497, 498 (1954) 

Those unyielding principles having been settled, the Court 

again faced, requested re-argument upon, and thereafter 

   



3 

made its subsequent decision with respect to, two possible 

courses, viz: 

“(a) Would a decree necessarily follow providing that, 
within the limits set by normal geographic school dis- 
tricting, Negro children should forthwith be admitted 
to schools of their choice, or 

“(b) May this Court, in the exercise of its equity 
powers, permit an effective gradual adjustment to be 
brought about from existing segregated systems to a 
system not based on color distinctions.” Brown Vv. 
Board of Education (Brown 11), 349 U.S. 294 (1955) 
footnote 2. 

Question (a), first posed to counsel on June 8, 1953 

(345 U.S. 972), troubled the Supreme Court because it was 

considering something of much more disturbing potential 

than an annual choice of a Negro parent to enroll his child 

in a racially segregated school or in a school attended by 

white children. The Court was considering the non-waivable 

constitutionally protected civil right of every Negro child to 

be enrolled forthwith in the public school attended by simi- 

larly situated white children. [“At stake is the personal 

interest of the plaintiffs in admission to public schools as 

soon as practicable on a nondiscriminatory basis’ Brown v. 

Board of Education (Brown II), 349 U.S. 294, 300 

(1955).] State maintenance of racially segregated schools 

being forbidden by the Fourteenth Amendment, how might 

a court decline to enjoin forthwith the operation of any 

such school? Would not every Negro child be entitled at 

any hour of any day to leave a racially segregated school 

and demand enrollment in the school attended by similarly 

situated white children? Could the state be permitted to 

plead its unconstitutional maintenance of the segregated 

  

 



  

a 
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school in which it had suffered the Negro child to be 

enrolled in violation of the state’s duty not to deny that child 

the equal protection of the laws and thus frustrate the 

child’s immediate assertion of his or her constitutional 

right? Would a decree necessarily follow which would in- 

evitably invite daily chaos and confusion in all segregated 

school systems; or might the Court, in the exercise of its 

equity powers, permit school boards to effect gradual ad- 

justments from segregated systems to systems not based 

on color distinctions? 

In further fashioning the lighthouse, the Court considered 

briefs and arguments of counsel for the Negro school chil- 

dren and briefs and arguments of counsel for the United 

States, for the States of Virginia, Kansas, Delaware, South 

Carolina, Florida, North Carolina, Arkansas, Oklahoma and 

Texas, and for the District of Columbia. The Court was 

well informed of the “substantial steps to eliminate racial 
discrimination in public schools” which had been taken in 

several states and it noted the “substantial progress” which 

had been made in the District of Columbia and in the com- 

munities in Kansas and Delaware involved in this litigation. 

(Brown 11, 349 U.S. at 299) Even then, the City of Balti- 

more had removed the racial limitations from its pre-exist- 

ing policy under which transfer because of changes of resi- 

dence had been routinely approved and transfers for other 

reasons might be approved by the two principals involved 

or by the appropriate Assistant Superintendent. In the light 

of all of this, the Court considered the two alternatives: 

one which would permit Negro children and their parents 

to haphazardly bring about racial desegregation in a school 

system and the other which would require the school au- 

thorities to systematically “effectuate a transition to a 

racially nondiscriminatory school system.” (Brown II, 349 

a
 

   



  

5 

U.S. at 301) The Court deliberately rejected the notion of 

Freedom of Choice which it had posed in its question (a). 

In so doing, it postponed the vindication of the immediate 

rights of the children who had prevailed, in order to permit 

the school authorities then before the Court to desegre- 

gate their respective school systems with the kind of efh-- 

ciency and dispatch which would effect the nondiscrimina- 

tory school assignments of the children then before the 

Court (‘the parties to these cases”) with all deliberate 
speed. That the lighthouse, as completed in 1955, was un- 

mistakably recognizable to those who would but look is 

illustrated by this 1957 holding and judgment of the Su- 
preme Court of Kansas: ; 

“We therefore hold that the maintenance of a segre- 
gated grade school for colored children by the Board of 

- Education of the City of Bonner Springs is racial 
discrimination in public education and must yield to 
the principle that such discrimination is unconstitu- 
tional in that it deprives the children of the minority 
group of equal educational opportunities. It amounts 
to a deprivation of the equal protection of the laws 
guaranteed by the Fourteenth Amendment to the Fed- 
eral Constitution. 

“It is therefore by the court ordered and adjuged that 
a peremptory writ of mandamus issue to each and all 
of the named defendants, directing them to proceed 
with reasonable diligence to integrate the public grade 
schools in the school district of Bonne Springs, Wyan- 
dotte County, Kansas, and to comply with the order of 
this court in no event later than the commencement of 
the fall term of school in 1958.” Cameron v. Board of 
Education of the City of Bonner Springs, 182 Kan. 
39,318 P. 24,938 (Dec. 7, 1957). 

  

 



    

6 

There Is No Sound Basis For Freedom Of Choice In The 
Instant Cases 

Many divergent courses have been deliberately set in 

order to avoid the plain and obvious holding of the Supreme 

Court that the Equal Protection Clause prohibits the states 

from maintaining racially segregated schools. In this case 

the school authorities suggest that the “more explicit safe- 

guard of prohibited unfairness” which the Fourteenth 

Amendment holds out to Negro children living in the several 

states should be withheld in the case at bar because Dr. 

James M. Nabrit, Jr. (whom appellees misidentify as James 

M. Nabrit, III, of counsel for the instant appellants) did 

not urge the Supreme Court to grant “Equal Protection” 

relief for the Negro children residing in the District of 

Columbia whom he represented in Bolling v. Sharpe, supra. 

Then after quoting at length from Brown I, (stopping 

just short of what the Court stated to be its holding in that 

case) they jump to two sentences in the subsequent opinion 

of the District Court in that case (the Topeka, Kansas case) 

which suggest that court’s view of the meaning of the term 

“desegregation”; entirely overlooking the fact that the 

three judge district court wrote those two sentences when 

reviewing “a good faith beginning to bring about complete 

desegregation’ under a plan the “central principle” of which 

was that “except in exceptional circumstances, school chil- 

dren irrespective of race or color shall be required to attend 

the school in the district in which they reside and that color 

or race is no element of exceptional circumstances warrant- 

ing a deviation from this basic principle.” Brown v. Board 

of Education, 139 F. Supp. 470 (D. C. Kan. 1955). 

The siren song “Freedom of Choice” has lured us from 

the equal protection principle that the states are forbidden to 

 



  

7 

maintain racially segregated schools. The doctrine “sprang 

forth fully armed” from Briggs v. Elliott, 132 F. 2d 776 

(E. D. S. C. 1955)—one of the very cases in which it had 

been rejected by the Supreme Court just forty-five days 

earlier. It serves as the basis for the decision of this Court 

in Bradley 11 (Bradley v. School Board of the City of Rich- 

mond, 345 F. 2d 310 (1965)) on which the appellees rely. 
We do not argue that freedom of choice is constitutionally 

impermissible in a situation where “a system of free trans- 

fers is the only means by which many Negroes can attend 

integrated schools.” (Swann v. The Charlotte-Mecklenburg 

Board of Education, ...... FE. 2 uu 4th Cir. No.. 10,207 
October 24, 1966, citing, at footnote 5, Bradley 11.) We 

merely argue that where, as here, racially segregated schools 

could not exist but for “{reedom of choice” beiween the 

school attended by white children and the (constitutionally 

impermissible) segregated school, freedom of choice must 

be condemned for what it clearly is—the means by which 

the state continues to maintain a racially segregated school 

and without which such racially segregated school would 

cease to be. 

The Basic Factual And Legal Assumptions Of Briggs v. 
Elliott Were Unsound 

Where the Briggs opinion says: “Nothing in the Consti- 

tution 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 choose 

—certainly not with respect to the racial composition of the 

schools and, as a general rule, not with respect to the loca- 

tion of the schools. In Carson v. Warlick, 238 F. 2d 724 

—
—
—
—
 

\  



  

8 

(4th Cir. 1956), Judge Parker (Judges Sobeloff and Bryan 

concurring) wrote: 

“Somebody must enroll the pupils in the public schools, 
they cannot enroll themselves; but we can think of no 
one better qualified to undertake the task than the offi- 
cials of the schools and the school boards having the 
schools in charge.” 

Seven years later, in Bradley v. School Board of the City of 

Richmond (Bradley 1), 317 F. 2d. 429 (4th Cir. 1964), 

Judge Boreman (Judges Bryan and Bell concurring) again 

recognized the traditional function of school authorities in 

promulgating rules governing the assignment of students to 

schools, saying: 

“That there must be a responsibility devolving upon 
some agency for proper administration is unques- 
tioned.” 

The General Assembly of Virginia, by a Pupil Placement 

Act (Acts 1956 Extra Session, chapter 70), purported to 

“divest” local school boards and superintendents of all au- 

thority to determine the school to which any child may be 

admitted. By chapter 71 of the Acts of Assembly, Extra 

Session 1959, it permitted localities to exempt themselves 

from the Pupil Placement Act, authorizing local school 

- officials in such localities “to fix attendance areas and adopt 

such other additional rules and regulations . . . relating to 

the placement of pupils as may be to the best interest of 

their respective school districts and the pupils therein.” The 

1966) repeal of these statutes does not erase the historical 

fact that when Briggs v. Elliott was written the “freedom 

[to choose among public schools], which the court said was 

   



9 

not taken away by the Brown decisions, had never existed, 

at least not in Virginia. 

Where the Briggs opinion says that the Constitution 

“merely forbids the use of governmental power to enforce 

segregation” it simply ignored the equal protection basis of 

Brown 1 (as distinguished from the due process basis of 

Bolling v. Sharpe) and the plain directive of Brown II that 
the school board, under the supervision of the District 

Court, “effectuate a transition to a racilaly nondiscrimina- 

tory school system.” As Judge Wisdom observed in Single- 

ton v. 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.” 

Racial Segregation IS Discrimination 

Much has been written to undergird an unrealistic dis- 

tinction between the word “discriminate” (which school 

boards now concede they may not do) and the generically 

included word “segregate” (which school boards contend 

they may continue to do with regard to Negro children 

whose parents are timid or indifferent). The opinion of this 

Court in Bradley II, judgment in which was vacated, ...... 

US. ...... 8S. Ct. 224, 15 1. ed. 137 (19653), notes 

that the Court in Brown II used the term “discrimination.” 

On that basis this Court reasoned that by avoiding present 

or future discrimination a school board may comply with 

the Fourteenth Amendment. In the instant case, the school 

authorities seek to reach the same conclusion by urging 

selected definitions of “segregate” and “desegregate.” 

The subject of the 1954 School Segregation Cases was 
racial segregation in the public schools. The word “segrega- 

tion” or a word of the same derivation appears in the text  



  

10 

of Brown 1 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 accompanying 

footnote 5) where the Court pointed out that its first cases 
construing the Fourteenth Amendment interpreted it “as 

proscribing all state-imposed discriminations against the 

Negro race.” 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 

that particular form of discrimination to be violative of the 

Equal Protection Clause. 

In the companion case of Bolling v. Sharpe, 347 U, S. 

497 (1954), the Court used a derivative of “segregate” six 

times and the word “discrimination” but twice; the thrust 

of the opinion being that racial segregation in the public 

schools of the District of Columbia is a discrimination 

which is “so unjustifiable as to be violative of due process.” 

No semantic analysis of the 1954 opinions can suggest the 

Court’s unawareness of the obvious fact that racial segre- 

gation in the public schools is an invidious discrimination. 

Similarly, there is no basis for a suppositon that the Court 

was excluding the concept “racial segregation” when, in 

Brown 11, it alluded to its previous declaration of “the 

fundamental principle that racial discrimination in public 

education is unconstitutional” and stated its conclusion that 

“la] 11 provisions of federal, state, or local law requiring 

or permitting such discrimination must yield to this prin- 

ciple.” 

This Court’s Viable Judgments Do Not Permit 
Freedom Of Choice In The Subject Counties 

In Dillard v. School Board of the City of Charlottesville, 

308 F. 2d 920 (4th Cir. 1962), this Court adopted an opin- 

   



11 

ion prepared by Senior Judge Soper which adhered to the 

Cooper v. Aaron, 358 U.S. 1 (1958), rather than to the 

earlier Briggs v. Elliott, supra, interpretation of Brown 

and to the Jones v. School Board of the City of Alexandria, 

278 F. 2d 72 (1960), approach to its implementation. Char- 

lottesville’s “racial minority” transfer exception to its geo- 

graphic assignment plan was condemned because the 

wmherent “purpose and effect of the arrangement” was to 

retard integration and retain the segregation of the races. 

The denial of certiorari in that case (374 U.S. 827) follow- 

ing the decision in Goss v. Board of Education of Knoxville, 

373 U.S. 683 (1963), vindicated this Court’s underlying 

premise (as to which there had been vigorous dissent) that 

the Fourteenth Amendment guarantees integrated schools. 

In Buckner v. County School Board of Greene County, 

332 F. 2d 452 (4th Cir. 1964), the District Court had re- 

fused an injunction and entered order of dismissal “beliey- 

ing the case to be moot because all of the individual infant 

plaintiffs were in schools chosen by their parents or legal 

guardians.” This Court’s opinion reviewed the many earlier 

decision pointing to ‘“‘the obligation of local school author- 

ities to take affirmative action.” Following its observation 

that Cooper v. Aaron, supra interpreted the Brown decisions 

as requiring state authorities “to devote every effort toward 

initiating desegregation and bringing about the elimination 

of racial discrimination in the public school system’ this 

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 prob- 
lems which may constitute the only legitimate ground 
for withholding the immediate realization of consti- 
tutionally guaranteed rights.”  



  

  

12 

If this Court’s holding in Bradley 11 (“A system of free 

transfers is an acceptable device for achieving a legal deseg- 

regation of schools.”) should be limited to the factual situa- 

tion in the City of Richmond, then it would not apply here. 

New Kent County, having but two schools, offers but one 

choice which white parents are likely to take; it offers and 

since 1962 has offered to Negro parents a choice between 

the (all-Negro) George W. Watkins School and the New 

Kent County School which white children attend. Theo- 

retically (and according to the plan of the New Kent 

County School Board and the plan of the Charles City 

County School Board, both submitted to and approved by 

the Department of Health, Education and Welfare and the 

District Court), the choice for Indian parents in New Kent 

County is limited to these two schools. However, according 

to an affidavit of Richard M. Bowman dated September 

16, 1966 (printed as an appendix hereto), Indian children 

are yet being transported by school bus from New Kent 

County to Samaria Indian School in Charles City County. 

In New Kent, where white and non-white citizens live 

in all sections of the county, the maintenance of the George 

W. Watkins School as a racially segregated school would 

instantly cease if the school authorities would but effect a 

geographical division of the county into two areas, each to 

be served by one school. 

The adoption of “Freedom of Choice” in Charles City 

County does not overcome the historical and present fact 

that the county has three sets of overlapping, racially ori- 

ented, school attendance zones. Depending upon their re- 

spective areas of residence, Negro children attend Ruthville 

School or Barnetts School. White children, regardless of 

their residence, attend Charles City School. Indian children 

   



13 

attend Samaria Indian School. Since the provision for free 

transfers means nothing to white children or Indian chil- 

dren, we have for all practical purposes the dual attendance 

zones which were condemned in Jones v. School Board of 

the City of Alexandria, supra. 

If, on the other hand this Court’s holding in Bradley 11 

is not limited to the factual situation in the City of Rich- 

mond, then we urge that this Court’s judgment in that case 

was vacated and that the Supreme Court expressly held 

the subject open for further judicial review (Bradley v. 

School Board of the City of Richmond, ...... 1.5....:86 5, 

Ct. 224,15 L. ed 2d 187 (1965) ). The purpose and effect of 
the arrangements in these counties being to retain racial 

segregation, decision here is controlled by Brown I, Bolling 

v. Sharpe, Brown 11, Dillard v. School Boar dof the City of 

Charlottesville, and Buckner v. County School Board of 

Greene County (all hereinabove cited). The instant county 

school boards should be enjoined forthwith from maintain- 

ing racially segregated schools, there being no adminis- 

trative problems to constitute “the only legitimate ground 

for withholding the immediate realization of constitutionally 
guaranteed rights” (Buckner, supra). 

Public Officials Should Be Reminded That 
The Time For “Deliberate Speed” Has Expired 

When we look at the many areas in community life in 

which Americans have accepted the end of the “separate but 

equal” farce, we view the confusion which persists with 

respect to public schools as tragic. District judges face this 

quandary: If, as Bradley II would indicate, school boards 

satisfied constitutional requirements by adopting “Freedom 

of Choice” conformably with guidelines promulgated by the  



    

  

14 

Department of Health, Education and Welfare then should 

the court go further and enjoin the maintenance of racially 

segregated schools, or should action seeking such relief be 

summarily dismissed? The compromise solution of retaining 

the case on the docket without requiring a time table as indi- 

cated in Hill v. School Board of the City of Norfolk, 282 F. 

2d 473 (1960), promises unending frustration and con- 

gested court dockets. Where school boards have discon- 

tinued the maintenance of segregated schools, litigation has 

ended; e.g., Kilby v. County School Board of Warren 

County (W.D. Va. No. 530), final order entered October 7, 

1966; Bell v. School Board of the City of Staunton (W. D. 

Va. No. 65-C-6-H), final order entered September 14, 1966; 
and Kier v. County School Board of Augusta County (W. 

D. Va. No. 65-C-5-H), final order entered August 6, 1966. 

On November 2, 1966, by a secret ballot, the delegates to 

the convention of the Virginia Education Association (pri- 

marily composed of white public school teachers) voted 
1,229 to 250 to merge with the Virginia Teachers Associa- 

tion (composed of Negro school teachers) ; and on the next 

day the delegates to the convention of the latter organization 

voted 217 to 7 to merge with the former." Thus have Vir- 

ginia’s public school teachers demonstrated their under- 

standing of the “lesson in democracy” the Brown decision 

was intended to be. (Taylor v. Board of Education of New 

Roclielle, 191 F. Supp. 181 (S. D. N.Y. 1961)) 
Simultaneously, and in deplorable contrast, the Virginia 

Association of School Administrators (which includes the 

121 Division Superintendents of Schools), by an over- 

whelming voice vote, condemned and deplored, inter alia, 

! Richmond News-Leader, November 3, 1966, page 1; Richmond 
Times-Dispatch, November 3, 1966, page 1; Richmond Times-Dis- 
patch, November 4, 1966, page 1. 

 



15 

the guidelines and regulations of the Department of Health, 

Education and Welfare requiring evidence of faculty de- 

segregation.” The invasion of their administrative preroga- 

tives as perceived by these officials is a difficulty which they 

have elected to endure rather than forthrightly end the 

maintenance of segregated schools. 

“Basic to the remand was the concept that desegregation 

must proceed with ‘all deliberate speed,” and the problems 

which might be considered and which might justify a decree 

requiring something less than wmmediate and total desegre- 

gation were severely delimited.” | Emphasis added] Watson 

v. City of Memphis, 373 U.S, 526, 331 (1963). “THE 
TIME FOR MERE ‘DELIBERATE SPEED HAS 

RUN OUT.” Griffin v. County School Board of Prince 

Edward County, 377 U.S. 218, 234 (1964). “Delays in 

desegregation of school systems are no longer tolerable.” 

Bradley v. School Board of the City of Richmond, ...... U.S. 

Wa 36 85.Ct. 224, 226, 15 1. ed 2d 187, 189 (1965); Rogers 

v. Paul, ..... 1S. ....., 36 S.Ct. 358 360, 15 1. ed 24 245, 

267 (1965). : 

CONCLUSION 

It being all too clear that the inherent purpose and effect 

of the arrangements adopted by the school boards are to 

retain segregation of nonwhite children from others simi- 

larly situated, and there being no conceivable legitimate 

ground for withholding the immediate realization of rights 

which the Constitution guarantees to infants and which in- 

fants are incapable of waiving, these cases should be re- 

manded with direction that decrees be entered enjoining the 

respective school boards from continuing the operation and 

2 Richmond Times-Dispatch, November 3, 1966, page B-3; Rich- 
mond News Leader, November 3, 1966, page 13.  



  

  

16 

maintenance of any racially segregated public school and 

to do so not later than the commencement of the 1967-68 

school session. 

Respectfully submitted, 

S. W. Tucker 

Of Counsel for Appellants 

S. W. Tucker 
Henry L. MarsH, 111 
WiLLarp H. DoucLas, Jr. 

214 East Clay Street 
Richmond, Virginia 23219 

Jack GREENBERG 
James M. Nasrrr, 111 

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

Counsel for Appellants 

   



17 

APPENDIX 

Affidavit 

The affiant is a resident of Charles City County, Virginia 

and is one of the parties plaintiff in the action styled Shir- 

lette L.. Bowman, et al vs. County School Board of Charles 

City County, Virginia, et al., pending in the United States 

District Court for the Eastern District of Virginia, Rich- 

mond, Division, as Civil Action No. 4265. 

During the current (1966-67) school session, particularly 

on September 12, 1966, athant observed New Kent County 

School Bus No. 33 driven by Kermit Bradley transporting 

twelve or more Indian school children from New Kent 

County, where they reside, to Samaria School in Charles 

City County where they presently attend school with other 

children of the Indian Race who live in Charles City County. 

Given under my hand this 16th day of September, 1966. 

/s/ Ricaarp M. BowMAN 

STATE OF VIRGINIA 
' CITY OF RICHMOND, to-wit: 

Subscribed and sworn to before me, a Notary Public in 

and for the City of Richmond, in the State of Virginia, this 

16th day of September, 1966. 

My commission expires on the 18th day of September, 

1969. 

NOTARIAL 

SEAL 

/s/ EvALyN W. SHAED 

Notary Public