Board of Visitors of the College of William and Mary v. Norris Motion to Affirm or Dismiss

    I n  th e

&upratt£ (£1mtt at tlf£ luttei* States
October T erm, 1971

No. 71-170

B oard of V isitors of the College of 
W illiam and Mary, et al.,

Appellants,

v.

E thel M. Norris, etc., et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOB THE EASTERN DISTRICT OF VIRGINIA

MOTION TO AFFIRM OR DISMISS

S. W. Tucker 
H enry L. Marsh, III 
J ames L. B enton, J r.

214 East Clay Street 
Richmond, Virginia 23219

Jack Greenberg 
J ames M. Nabrit, III  
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Counsel for Appellees Ethel M. 
Norris, et al.



In th e

G k w r t  ni %  U t r i t e b  S t a t e s
October T erm, 1971 

No. 71-170

B oard of V isitors of the College of 
W illiam and Mary, et al.,

Appellants,
v .

E thel M. Norris, etc., et al.

o n  a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t

FOR THE EASTERN DISTRICT OF VIRGINIA

MOTION TO AFFIRM OR DISMISS

Appellees, Ethel M. Norris, et al., pursuant to Rule 16 
of the Rules of the Supreme Court of the United States, 
move that either the final judgment of the district court be 
affirmed on the ground that it is manifest that the questions 
are not sufficiently substantial to warrant further argument 
or, in the alternative, that the appeal herein be dismissed 
on the ground that it is not within the jurisdiction of the 
Court.

Opinion Below

The opinion of the three-judge district court is reported 
as Norris v. State Council of Higher Education For Vir­
ginia, 327 F. Supp. 1368 (E.D. Va. 1971).



2

ARGUMENT

1. This case was decided by the district court in a man­
ner which turns primarily on fact findings which do not im­
plicate difficult or unsettled questions of law. The court 
below held simply that the escalation of Richard Bland 
College from a two-year to a four-year institution would, 
in the practical context of the Petersburg area, hamper the 
integration of Virginia State College and constitute an 
encouragement of continuing racial segregation at Bland 
and Virginia State, the two state schools in the area. As 
the court below acknowledged, this fact was contested by 
some witnesses for the appellants. However, we think it 
unchallengeable that there was substantial evidence to 
support the court’s finding and that it was not “clearly 
erroneous.” Rule 52(a), Federal Rules of Civil Procedure. 
The court’s finding that the proposed escalation would ham­
per desegregation and encourage segregation was in these 
words:

Despite some testimony from William and Mary wit­
nesses that white students would continue to enroll at 
Virginia State, we find that escalation of Bland would 
hamper Virginia State’s efforts to desegregate its stu­
dent body. The realities of the situation support this 
finding: the colleges are located close to each other; as 
four-year colleges they would offer substantially the 
same curricula; if Bland were escalated, white students 
would be more likely to seek their degrees at predom­
inantly white Bland than at predominantly black Vir­
ginia State; and the part Bland now plays in sending 
some white students to Virginia State for their last 
two years would substantially decrease. (327 F. Supp. 
1368, at 1371)



3

2. As the court below pointed out, this Court has long 
held that “ the 14th amendment forbids racial discrimination 
in higher education,” citing Sweatt v. Painter, 339 U.S. 629 ; 
McLaurin v. Oklahoma State Regents, 339 U.S. 637; Sipuel 
v. Board of Regents, 332 U.S. 631; Missouri ex rel. Gaines 
v. Canada, 305 U.S. 337; Hawkins v. Board of Control of 
Florida, 350 U.S. 413.1 And, of course, the prohibition 
against racial discrimination in higher education, includes 
not only a prohibition against explicit segregation laws, but 
also a prohibition against acts of the state in whatever form 
that work to accomplish the same end. The states may not 
act to encourage segregation or discourage desegregation 
by any means. In Anderson v. Martin, 375 U.S. 399, the 
Court struck down a statutory scheme placing a candidate’s 
race on the ballot, holding that a state could not thus “ en­
courage its voters to discriminate upon the grounds of 
race.” Similarly, in Reitman v. Mulkey, 387 U.S. 369, the 
Court struck down a law which was held to “ significantly 
encourage” housing discrimination.2 The judgment of the 
court below was that in the total context of Virginia’s sys­
tem of higher education, particularly in the Petersburg, 
Virginia area, where both Virginia State and Bland are 
located, the proposed escalation of Bland would hamper 
desegregation. If that finding is accepted, we think it fol­
lows plainly from this Court’s decisions that such an en­
couragement of segregation cannot stand consistent with 
the Fourteenth Amendment. The challenge to that finding is 
primarily a factual challenge which raises no significant 
question of law.

3. This case does not involve broader questions sought to 
be raised below, but not decided, involving the scope of a

1 See also Lucy v. Adams, 350 U.S. 1; Meredith v. Fair, 305 
F.2d 343 (5th Cir. 1962), cert, denied, 371 U.S. 828.

2 See also Peterson v. City of Greenville, 373 U.S. 244; Robinson 
v. Florida, 378 U.S. 153; Lombard v. Louisiana, 373 U.S. 267.



4

state’s affirmative duty to dismantle a dual system of higher 
education. The court below expressly declined to decide 
such questions on a procedural ground. The court held:

We need not trace the perimeter of a state’s obliga­
tion to dismantle all racial characteristics of a system 
of higher education that was initially segregated by 
law. It is sufficient for the purposes of this case to 
hold, as we do, that one agency of the state, Bland, 
cannot impede another agency of the state, Virginia 
State, in its efforts to fully integrate its student body. 
(327 F. Supp. at 1373)

The request for an injunction to desegregate all the state 
colleges and universities was denied without prejudice be­
cause the necessary parties had not been joined as defen­
dants :

We also deny the plaintiffs’ request for an order 
directing the Governor and the Council to prepare a 
plan for the desegregation of all state colleges and 
universities. Again we recognize that there is prece­
dent for relief of this kind. E.g., Sanders v. Elling­
ton, 288 F. Supp. 937 (M.D. Tenn. 1968). But the 
persons necessary for adjudicating this phase of the 
case have not been sued. The legislature vested con­
trol over each institution in its board of visitors, not 
the Governor or the Council. See generally Va. Code 
Ann. §§23-5 through -16 (Bep. Vol. 1969). Any plan 
drawn by the Council would be advisory only. Conse­
quently, we deny relief on procedural grounds without 
comment on its merits. (327 F. Supp. at 1373)

A number of interesting and important questions involving 
the scope of a state’s affirmative duty to integrate its sys­
tem of higher education remain to be decided. See gen­
erally, Note, “The Affirmative Duty to Integrate in Higher



5

Education,” 79 Yale L.J. 666 (March 1970). However, as 
we have stated, the decision below does not attempt to probe 
the full scope of the duty but merely holds that the state 
may not act affirmatively to impede desegregation efforts 
at an all-black school established as a segregated institution 
under state segregation laws.

4. The decision below satisfactorily explains the factual 
difference between this case and the facts in a similar 
Alabama case where relief was denied. Alabama State 
Teachers Assn. v. Alabama Public School and College Auth., 
289 F. Supp. 784 (M.D. Ala. 1968), aff’d, 393 U.S. 400.3 Un­
like the Alabama case, the court found that in Virginia the 
effect of the proposed state action would be to preserve 
segregation and hamper desegregation. In the Alabama 
case the court found no reason to think that the proposed 
new institution would not serve all races. In the Virginia 
case the court found that the proposed expansion of an 
existing institution, which had a ten-year record as a 
virtually all-white school, was designed to and would ham­
per integration. The decision below is not in conflict with 
the Alabama case because as the court below held, the facts 
“differ significantly from the case before us” (327 F. Supp. 
at 1372).

5. The appellees have contended from the beginning that 
the case was not one required to be heard by a district court 
of three judges because the case did not involve a request 
for an injunction against a statute of statewide applicability. 
This Court has jurisdiction of an appeal under 28 U.S.C. 
§ 1253 only if a three-judge court was required. The only 
statute involved in the case is Item 600 of the Appropria­
tions Act of 1970 which provided funds for Bichard Bland 
College “ for operating expenses of educational and general 
activities, including escalation to third and fourth year 
status.” This is on its face a law applicable only to a single

3 Cf. Sanders v. Ellington, 288 F. Supp. 937 (M.D. Tenn. 1968).



6

college. The only officials enjoined were the college govern­
ing body and the college president who are local officials 
administering an appropriation law applicable only to 
Richard Bland College. This Court has repeatedly held 
that a three-judge court is not required to judge the validity 
of local ordinances or even state laws which are applicable 
to only one city, county or locality. Moody v. Flowers, 387 
U.S. 97, 101 and cases cited.4 We believe that it follows 
a fortiori that an appropriation law applicable to a single 
college in the state is a. local and not “a general or statewide” 
law.

The court below thought its jurisdiction was supported 
by this Court’s per curiam affirmance in Alabama State 
Teachers Assn. v. Alabama Public School and College Auth., 
393 U.S. 400. But just as the court below found that case 
factually distinguishable on the merits, we think it also dis­
tinguishable on the jurisdiction question. The Alabama 
case involved a request for an injunction against a state­
wide agency administering the entire statewide system of 
higher education and an overall plan for the state. In con­
trast, in this Virginia case the only statewide defendants, 
the Governor and Council, were found uninvolved and dis­
missed from the case. The decision on the merits enjoined 
only local officials as their acts related to Richard Bland 
College. We think the case a local one within the doctrine 
of Moody v. Flowers, supra,5 6

4 Deutsch v. Davis, 387 U.S. 112; Perez v. Ledesma, 401 U S
82, 86.

6 It ought to be noted that there was no request for an injunction 
against the appropriation law in the complaint. The order of the 
district court (Jurisdictional Statement Appendix, pp. 28-29) de­
clare Item 600 of the Appropriations Act unconstitutional but the 
injunction itself made no mention of the statute even though it does 
enjoin the appellants from escalating the Richard Bland College to 
a four-year degree granting institution, something which the statute 
permits. Cf. Mitchell v. Donovan, 398 U.S. 427; and see Gunn v. 
University Committee, 399 U.S. 383.



7

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the case does not involve issues which are sufficiently 
substantial to merit plenary consideration by the Court 
and that the judgment below should be affirmed or, in the 
alternative, that the appeal should be dismissed.

Respectfully submitted,

S. W. Tucker 
H enry L. Marsh, III 
J ames L. B enton, Jr.

214 East Clay Street 
Richmond, Virginia 23219

Jack Greenberg 
J ames M. Nabrit, III 
Norman J. Chachkin 

10 Columbus Circle 
New York, New York 10019

Counsel for Appellees Ethel M. 
Norris, et al.



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