Norris v. State Council of Higher Education

• Decision Date: 12 May 1971
• Docket Number: Civ. A. No. 365-70-R.
• Citation: 327 F. Supp. 1368
• Parties: Ethel M. NORRIS, an infant who sues by Granville M. Norris, her father and next friend, et al., Plaintiffs, v. STATE COUNCIL OF HIGHER EDUCATION FOR VIRGINIA et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

327 F. Supp. 1368

Ethel M. NORRIS, an infant who sues by Granville M. Norris, her father and next friend, et al., Plaintiffs, v. STATE COUNCIL OF HIGHER EDUCATION FOR VIRGINIA et al., Defendants.

Civ. A. No. 365-70-R.

United States District Court, E. D. Virginia, Richmond Division.

May 12, 1971.

S. W. Tucker, Henry L. Marsh, III, Seymour Dubow, James W. Benton, Jr., Hill, Tucker & Marsh, Richmond, Va., Jack Greenberg, James M. Nabrit, III, Norman Chachkin, New York City, for plaintiffs.

Andrew P. Miller, Atty. Gen. of Virginia, William G. Broaddus, D. Patrick Lacy, Jr., Asst. Attys. Gen., Richmond, Va., for A. Linwood Holton, Governor of Virginia, and the State Council of Higher Education for Virginia.

R. D. McIlwaine, III, Petersburg, Va., for The Board of Visitors of the College of William and Mary in Virginia, and James M. Carson, President of Richard Bland College.

Edward S. Hirschler, Everette G. Allen, Jr., Hirschler & Fleischer, Richmond, Va., for The Board of Visitors of Virginia State College.

Philip J. Hirschkop, Alexandria, Va., Richard E. Crouch, Arlington, Va., for amicus curiae, American Civil Liberties Union of Virginia.

Before BUTZNER, Circuit Judge, and HOFFMAN and MERHIGE, District Judges.

BUTZNER, Circuit Judge:

The plaintiffs, black faculty members and students of Virginia State College and black high school students, complain that Virginia is still operating a racially identifiable dual system of higher education and that escalation of predominantly white Richard Bland College from a two-year institution to a four-year college will frustrate the efforts of its neighbor, predominantly black Virginia State College, to desegregate. They seek to enjoin the escalation of Bland, to require its ultimate merger with Virginia State and to require state officials to prepare a plan for the desegregation of every state supported college and university in Virginia. Named as defendants are the Governor of Virginia, the State Council of Higher Education, the Board of Visitors of the College of William and Mary, the President of Richard Bland College, and the Board of Visitors of Virginia State College.

Because the suit challenges the constitutionality of the Appropriations Act of 1970, ch. 461, Item 600, p. 754 (Acts of Assembly 1970), which provides for the escalation of Bland,¹ the Attorney General of Virginia representing the Governor and the Council, moved for a three-judge court pursuant to 28 U.S.C. § 2281. His motion was granted, and the plaintiffs' subsequent motion to dissolve the court is denied. Alabama State Teachers Ass'n v. Alabama Public School and College Auth., 289 F.Supp. 784 (M.D.Ala. 1968), aff'd mem., 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969).

We hold that the provisions of Item 600 for Bland's escalation violate the 14th amendment because they serve to perpetuate a state supported racially identifiable dual system of higher education. Consequently, the Board of Visitors of the College of William and Mary and the President of Richard Bland College will be enjoined from escalating Bland. We deny the other relief which the plaintiffs seek.

Prior to Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Virginia's constitution and statutes required all state supported institutions of higher learning to be racially segregated. The state operated two Negro undergraduate colleges, Norfolk State and Virginia State, and it appropriated funds for black graduate students to study in other states. White undergraduate and graduate students were eligible to attend the state's other colleges and universities.

Since Brown, the state has permitted all students to apply to the college of their choice. Nevertheless a racially identifiable dual system of higher education exists in Virginia today. Black students comprise approximately 12% of the enrollment in the state's 15 four-year colleges and graduate schools, yet 81% of them are concentrated in the two colleges which formerly were segregated by law. At the other end of the spectrum, only Virginia Commonwealth University has a black enrollment as high as 7%, and in ten of the fifteen colleges and universities black students constitute less than 2% of the enrollment. The state also operates three two-year branches of other institutions. Of these, only one has a black enrollment of more than 8%. On the other hand, many of the sixteen community colleges created under the Virginia Community College Act of 1966, Va. Code Ann. §§ 23-214 through 231 (Repl. Vol.1969, have substantial black enrollments.

The College of William and Mary is the state's oldest educational institution. Fifty-one of its 3,750 graduate and undergraduate students are black. With the exception of one black graduate student who has a part-time administrative position, all of its faculty and administrative staff are white. The members of its Board of Visitors are white.

Bland was established in 1960 as a two-year branch of the College of William and Mary. In the exercise of its stewardship over Bland, William and Mary controls the expenditure of appropriations, makes rules and regulations, and is responsible for the selection of faculty and administrative staff. Va. Code Ann. § 23-49.1 (Repl. Vol. 1969). In the current academic year, 14 of Bland's 841 students are black. It has never had a black faculty member. Not until last year did its catalogue mention that it was open to all students regardless of race, and only recently has it attempted to recruit applicants from predominantly black high schools and to employ black faculty.

Virginia State College, established in 1882, was segregated by law until Brown was decided in 1954. From 1954 to 1964, although segregation in education had been legally abolished, the college accepted no white undergraduates and employed no white faculty members. In 1964, control of Virginia State was transferred from the State Board of Education to an integrated board of visitors. Since then, Virginia State has actively pursued a policy of recruiting white students and faculty. Its admissions officers have found it difficult to attract white students to a college which until very recently was black, and its enrollment of 2,524 includes only 70 white students. But even so, the number of its minority students compares favorably with other four-year colleges in the state. The college has been more successful in obtaining white faculty, hiring 43 white teachers since 1964.

Virginia State and Bland are located near Petersburg, Virginia, only about seven miles apart. Both colleges compete for students from nearby communities, although all students at Bland commute and the majority at Virginia State do not. The President of Virginia State, who, with its Board of Visitors, opposes escalation of Bland, testified:

"If Richard Bland is escalated to four years * * * it would have a tremendously disastrous effect upon Virginia State's ability to attract and to hold white students from this particular area. Richard Bland represents, and I am afraid will continue to represent, the white institution to which whites go * * *. In addition it seems to me that the escalation of Richard Bland could do nothing more than duplicate what is already being offered at Virginia State College."

Despite some testimony from William and Mary witnesses 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 student 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 predominantly white Bland than at predominantly black Virginia State; and the part Bland now plays in sending some white students to Virginia State for their last two years would substantially decrease.

The President of Virginia State is not alone in his opposition to escalating Bland. The Virginia Commission on Higher Education Facilities, the Council, and the Governor, have all recommended that Bland be included in the state's two-year community college system.² In pressing for escalation, the representatives of William and Mary and Bland seek a goal almost without precedent. While other two-year colleges have been escalated, only in one other instance has Virginia established in the same community two full-fledged colleges offering similar curricula and degrees. The single exception is in Norfolk, where Old Dominion College, more than 98% white, and Norfolk State College, nearly 98% black, are located. Three two-year colleges recently have been escalated to four-year, degree-granting institutions. They are George Mason, in Fairfax County, Clinch Valley, in Wise County, and Christopher Newport, in Newport News. However, in none of these localities is there any other state supported four-year college. From the evidence, it is reasonable to infer, therefore, that the purpose and effect of Bland's escalation is to provide a four-year college for white students who reside nearby. There can be little doubt that this will contribute to the perpetuation of Virginia's dual system of higher education.

The Supreme Court has long held that the 14th amendment forbids racial discrimination in higher education. Sweatt v. Painter, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149 (1950); Sipuel v. University of Oklahoma, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208 (1938). And the doctrine of "separate but equal" college facilities for Negroes has been expressly repudiated. Florida ex rel. Hawkins v. Board of Control, 350 U.S. 413, 76 S.Ct. 464, 100 L.Ed. 486 (1956); Alabama State Teacher Ass'n v. Alabama Public School and...