Marsh v. County School Board of Roanoke County, Va.

• Decision Date: 12 June 1962
• Docket Number: No. 8535.,8535.
• Citation: 305 F.2d 94
• Parties: Gwendolyn Yvette MARSH, an infant, and Raymond M. Iseley and Helen Iseley, her grandfather and grandmother and next friends; et al., Appellants, v. The COUNTY SCHOOL BOARD OF ROANOKE COUNTY, VIRGINIA, a body corporate; Herman L. Horn, Division Superintendent, Roanoke County Public Schools, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

305 F.2d 94 (1962)

Gwendolyn Yvette MARSH, an infant, and Raymond M. Iseley and Helen Iseley, her grandfather and grandmother and next friends; et al., Appellants, v. The COUNTY SCHOOL BOARD OF ROANOKE COUNTY, VIRGINIA, a body corporate; Herman L. Horn, Division Superintendent, Roanoke County Public Schools, et al., Appellees.

No. 8535.

United States Court of Appeals Fourth Circuit.

Argued March 26, 1962.

Decided June 12, 1962.

James M. Nabrit, III, New York City (Jack Greenberg, New York City, and Reuben E. Lawson, Roanoke, Va., on the brief), for appellants.

A. B. Scott, Richmond, Va. (Peyton, Beverley, Scott & Randolph, Richmond, Va., on the brief), for Pupil Placement Board, appellee.

Benjamin E. Chapman, Salem, Va., for Roanoke County School Board and Division Superintendent, appellees.

Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.

SOBELOFF, Chief Judge.

Seven Negro public school pupils living in Roanoke County brought this action in the United States District Court for the Western District of Virginia. They sought a declaratory judgment that the Virginia Pupil Placement Act¹ is being administered by the defendants so as to deprive the plaintiffs of their constitutional rights to nonsegregated education, and that the administrative procedures are inadequate to secure these constitutional rights. They also prayed for an injunction against the defendants to prevent race or color from being considered in their admission, enrollment, or education in the public schools or, in the alternative, for the submission of a plan which will be a "prompt and reasonable start toward desegregation of the public schools." The District Court denied relief, and five of the plaintiffs prosecute this appeal.

In Roanoke County, public school pupils are routinely assigned to totally segregated schools. There are in the county somewhat less than 1000 school age Negroes out of a total of 14,000 pupils, and not one of them attends public school with white children. The county school officials use a dual zoning system to insure the separation of the races. To determine which elementary schools Negro children shall attend, the county is divided into three geographic districts, while one high school serves the entire Negro population of the county. For the purpose of determining the assignments of white pupils to the twenty-five all-white elementary schools and high schools, the county is separately zoned. The dual zoning system is consistently employed by the local school officials, and their recommended assignments are regularly adopted by the state Pupil Placement Board. This bi-racial system is maintained in flagrant disregard of the Supreme Court's decisions in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873 (1954), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and of this court's unmistakable declaration that "obviously the maintenance of a dual system of attendance areas based on race offends the constitutional rights of the plaintiffs and others similarly situated and cannot be tolerated." Jones v. School Board of City of Alexandria, Virginia, 278 F.2d 72, 76 (4th Cir. 1960).²

A Negro pupil who wishes to free himself from the segregated school to which he has been routinely assigned under the dual racial zoning system must apply for a transfer. Regardless of the applicant's place of residence, the county school officials habitually refer his application to the state board with the recommendation that he be assigned to the Negro school. By the established practice of the state board, a Negro, in order to be admitted to a white school, must not only live closer to that school than to the Negro school, but he must, in addition, meet a requirement that is not imposed upon white students seeking transfers, namely, in aptitude and scholastic achievement he is required to be substantially above the median of the class in the white school. Aptitude and achievement tests are not used in making the initial assignments to schools, for on admission, members of the two races are automatically segregated by separate but overlapping bi-racial school zones. The obvious function of these transfer criteria, which find application in respect to Negro children only, is to place next-to-impossible hurdles in their way so as to perpetuate segregation. Heretofore, we have several times condemned the use of criteria, otherwise lawful, in such a racially discriminatory manner. Thus, in Hill v. School Board of City of Norfolk, Virginia, 282 F.2d 473, 475 (4th Cir. 1960), we stated:

"* * * where assignments to the first grade in the primary schools are still on a racial basis, and a pupil thus assigned to the first grade still is being required to remain in the school to which he is assigned, unless, on an individual application, he is reassigned on the basis of the criteria which are not then applied to other pupils who do not seek transfers * * *, such an arrangement does not meet the requirements of the law."³

There is no doubt as to the unconstitutionality of the school assignment system as administered by the Roanoke County school officials and by the state Pupil Placement Board. Except for minor details, the system is identical to that which we recently condemned in Green v. School Board of City of Roanoke, Virginia, 304 F.2d 118 (4th Cir. 1962). And as in that case the plaintiffs and those similarly situated in Roanoke County are entitled to injunctive relief from a continuance of this unlawful discrimination.⁴

The District Court, however, denied relief on the ground that the plaintiffs had not exhausted available administrative remedies. The applications of the seven plaintiffs were filed on July 16, 1960, with the superintendent of the Roanoke County school system. They indicated their desire for admission to the all-white elementary Clearbrook School. Six of the plaintiffs previously attended the all-Negro Carver School; the seventh was seeking admission to the first grade. The Carver School is nine or ten miles from their homes, while the Clearbrook School is approximately two and one-half miles away. White elementary school children who live near the plaintiffs attend the Clearbrook School as do those who live farther away than the plaintiffs and in neighborhoods through which the plaintiffs pass on their way to the Carver School.

The school superintendent did not present the applications to the Roanoke County school board until August 4. The board in turn forwarded the applications for processing by the state Pupil Placement Board in Richmond as required by the Pupil Placement Act, with the superintendent's recommendation that each pupil should attend the Carver School. The covering letter made clear that the applications were from Negro pupils.

While no reasons for the adverse recommendations were communicated to the state board, the superintendent testified that "we had space for these children at Carver School and we did not have space for them at Clearbrook School." It is true that the pupil-teacher ratio was slightly higher at Clearbrook School than at Carver School, although the pupil-classroom ratio was approximately the same at both. However, in September, 1960, only shortly after the superintendent recommended rejection of the applications of the seven plaintiffs, twelve white pupils were newly admitted to Clearbrook School while in the same period forty-seven new Negro pupils were sent to Carver School. Overcrowding was not a bar to the admission of the white children to Clearbrook School while it was to the seven plaintiffs. Emphatically, the Constitution does not permit such criteria to be applied to one race and not to the other.⁵

Moreover, the fact that the children newly admitted to school in September were neatly divided into two groups according to race indicates that the superintendent's testimony about overcrowding as the reason for recommending that the seven plaintiffs not be admitted to the white school was a mere pretext to hide the real reason — the fact that the seven applicants were Negro. This conclusion is confirmed by the further testimony of the superintendent. Referring to the numerous other Negro school children living near the Clearbrook School but attending Carver School, he stated that "if I say yes to those seven, then I have no basis whatsoever of saying no to 100 more if they want to come — to be consistent." However, the fact that 100 additional pupils at Clearbrook School might place a severe strain on that school's facilities does not justify denial of the first seven pupils; the fear that applications which have not yet materialized might create a serious crowding problem is no reason for rejecting applicants before the problem has arisen.

Upon receiving the applications together with the county superintendent's recommendations and covering letter, the executive secretary of the state board on August 16 wrote the superintendent that the applications were filed less than sixty days before the beginning of the school year and so, by a regulation of the state board, were too late for action to be taken on them that year. This regulation had been adopted by the state board in July, 1959, the preceding year, and announced in memoranda circulated to the superintendents of the state's school systems. It was testified that copies were furnished to the wire services and to Richmond newspapers, but there was no evidence that the announcement of the rule ever appeared in the Roanoke newspapers. The Roanoke County school superintendent admitted that he made no attempt to inform those who might be interested in the rule: the memorandum was simply placed in his files. There was no announcement by the local school officials, and not even the application forms, where one would normally expect to find a notation of such a rule, gave any indication of it. Neither the plaintiffs nor their attorney knew about it.

On August 29, the state...