Bell v. School Board of Powhatan County, Virginia

• Decision Date: 29 June 1963
• Docket Number: No. 8944.,8944.
• Parties: Edward Alvin BELL et al., infants, etc., Appellees and Cross-Appellants, v. SCHOOL BOARD OF POWHATAN COUNTY, VIRGINIA, and J. S. Caldwell, Division Superintendent of Schools of Powhatan County, Virginia, Appellants and Cross-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

321 F.2d 494 (1963)

Edward Alvin BELL et al., infants, etc., Appellees and Cross-Appellants, v. SCHOOL BOARD OF POWHATAN COUNTY, VIRGINIA, and J. S. Caldwell, Division Superintendent of Schools of Powhatan County, Virginia, Appellants and Cross-Appellees.

No. 8944.

United States Court of Appeals Fourth Circuit.

Argued June 10, 1963.

Decided June 29, 1963.

S. W. Tucker, Richmond, Va. (Henry L. Marsh, III, Richmond, Va., on the brief), for appellees and cross-appellants.

Collins Denny, Jr., Richmond, Va. (John F. Kay, Jr., and Denny, Valentine & Davenport, Richmond, Va., on the brief), for appellants and cross-appellees.

Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.

SOBELOFF, Chief Judge.

The School Board of Powhatan County, Virginia, maintains only two schools. One is called the Powhatan School, and is designated for white pupils and staffed exclusively by white personnel. The other, known as the Pocahontas School, is designated for Negro pupils and staffed exclusively by Negroes. Each school accommodates all of the County's high school and elementary pupils of the race which it serves. This segregation of the races has been traditional in the County and has not been altered to any degree since the decisions of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Id., 349 U.S. 294. 75 S.Ct. 753, 99 L.Ed. 1083 (1955).

On August 17, 1962, 65 Negro children and their parents filed their complaint as a class action against the School Board, J. S. Caldwell, Division Superintendent of Schools, and the members of the Pupil Placement Board of the Commonwealth of Virginia. They recited that, although applications had been timely made to the defendants for the admission of the infant plaintiffs to the white school, some as high school students and others as elementary school students, no action had been taken on any of these applications. The complaint alleged that the Board's requirement for the filing of applications for transfer operated only against Negroes seeking release from the racially segregated public school pattern, for by reason of the long established policy of racial segregation in initial assignments, only Negroes had need for transfers; that if the plaintiffs had been willing to continue to attend the segregated Negro school, they would have needed to make no applications; that, but for the fact that the defendants were determined to maintain the segregated pattern of public schools, the applications made on behalf of the infant plaintiffs would have been granted; that the defendants have taken no steps to eliminate racial discrimination in the public school system and have, on the contrary, interposed obstructions to defeat the rights of the infant plaintiffs and all other Negro school children of the County to the equal protection of the laws under the Fourteenth Amendment; that in light of these facts no remedy is available to them but through the injunctive power of the court.

A regulation of the Pupil Placement Board required that "applications for original placement in or transfer to a particular specified (sic) school * * * must be filed with the local division superintendents of schools prior to June 1 immediately preceding the next ensuing school session for which such placements or transfers are desired."

On May 21, 1962, applications on the official form, seeking the transfer or initial assignment of ten of the plaintiff Negro children to Powhatan School, were left in the office of the Division Superintendent. When several other Negro parents attempted to obtain application forms from the office of the principal of the Pocahontas School, they were told that the supply of such forms had been exhausted. On at least two occasions, some of the parents attempted to obtain forms from the office of the Division Superintendent, also without success. As late as May 29, official forms were still unavailable at either office.

On May 31, 19 additional applications on official forms seeking transfers to Powhatan School were left in the office of the Division Superintendent.¹ Some parents, unable to obtain official printed forms, addressed letter applications to the local School Board and the State Pupil Placement Board requesting transfer of eight of the plaintiff children to Powhatan School. These were delivered to the office of the Division Superintendent; copies were also delivered to the office of the Pupil Placement Board in Richmond on May 31.

On June 20, 1962, the members of the School Board, the Division Superintendent and their counsel met with the Pupil Placement Board and their counsel. Objection was voiced that the papers were not complete; that they should have been executed by the principal or the local elementary school Supervisor on behalf of the local School Board. The parents of the children were not communicated with, nor was any additional information requested of them.

The Pupil Placement Board later directed the School Board and the Division Superintendent to investigate whether the applications on the prescribed form were genuine and that the papers should otherwise be completed and forwarded to the Pupil Placement Board but the School Board publicly took the position that it lacked authority to investigate. A suit was arranged in the state court between these two bodies to determine this. It does not appear that any of the plaintiffs were made parties. The suit was filed July 3, 1962, and on May 16, 1963, that court held that the School Board had no obligation to investigate and that in any event the 35 applications that were filed by May 31 could be disregarded because not filed with the proper official.

Additional letter applications were filed on August 3, 1962, addressed to the School Board and the Pupil Placement Board, requesting transfer or assignment of 29 Negro children to Powhatan School. These were received by the Division Superintendent. Later, the parents of two of these plaintiffs supplemented their letter applications with official application forms which, however, they marked as signed "under protest," evidently intending to preserve whatever rights they had under their earlier unprinted applications. Of those who had applied by letter, three children were brought by their parents to the Powhatan School for enrollment on August 30. They were referred to the Superintendent, who in turn referred them to the Supervisor at Pocahontas School. A few days later, a motion was made on their behalf in the District Court proceeding for a temporary restraining order and/or interlocutory injunction against the defendants to restrain them from refusing to permit these three infant plaintiffs to be enrolled and to attend the Powhatan Elementary School.

By August 17, 1962, when the present action was instituted in the United States District Court, the local school authorities had not yet forwarded any applications to the Pupil Placement Board.

While attempts were made to file applications, culminating in the District Court action, discouraging rumors were spread in the Negro community, raising fears that by pressing for their altogether valid rights they would bring about a shut-down in the county schools. Repeatedly cited as a warning example was the experience of adjacent Prince Edward County where the School Board closed the public schools four years ago and kept them closed rather than abandon the segregated system. If the record fails to establish that the school officials themselves actively propagated such fears, it plainly shows that they said and did nothing to allay the apprehensions which pervaded their community.

After a hearing, the District Court on January 2, 1963, found the facts substantially as they had been alleged by the plaintiffs. An injunction against racial discrimination in the admission of students was granted. The court, taking note of the events in nearby Prince Edward County, further enjoined the defendants from closing the schools of Powhatan County.² The School Board was directed to submit a plan of desegregation within 90 days,³ but because of the pendency of the above-mentioned state court proceeding between the School Board and the Pupil Placement Board, the court decided to abstain from any action in respect to all of the plaintiffs except the three who had moved for an interlocutory injunction. These three, Pauline Estella Evans, Alcibia Olene Morris and Maria Concetta Morris, were ordered admitted to the Powhatan Elementary School. The plaintiffs' prayer for the allowance of counsel fees was denied.

However, pursuant to the motion of the defendants, the court, two days after entering the above order, suspended it pending appeal, in all respects except as to the injunction against the closing of the schools. The plaintiffs appealed and defendants, other than the Pupil Placement Board, entered a counter-appeal. The appeal of the plaintiffs is from the order suspending the earlier order granting relief: (a) admitting the three children, (b) enjoining discrimination and (c) requiring the submission of a plan. They also appeal from the court's refusal to grant relief to the remaining infant plaintiffs, and to award counsel fees. The defendants' appeal is from so much of the order of January 2, 1963, as granted relief to the plaintiffs.

The record discloses a persistent purpose and plan on the part of the defendants to deny the plaintiffs their constitutional rights and pretextuously to invoke against them rules which in practice had no application to white pupils. This the defendants did after making it difficult, if not impossible, for the rules to be complied with, by failing to make available before the deadline sufficient official application forms and later refusing to consider applications not on official forms. They furthered their obstructive purpose by refusing to act upon applications, regardless of when...