434 F.2d 408 (4th Cir. 1970), 14544, Brewer v. School Bd. of City of Norfolk, Virginia

Docket Nº:14544, 14545.
Citation:434 F.2d 408
Party Name:Carlotta Mozelle BREWER et al., Appellants, v. The SCHOOL BOARD OF the CITY OF NORFOLK, VIRGINIA et al., Appellees. UNITED STATES of America, Appellant, v. The SCHOOL BOARD OF the CITY OF NORFOLK, VIRGINIA et al., Appellees.
Case Date:June 22, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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434 F.2d 408 (4th Cir. 1970)

Carlotta Mozelle BREWER et al., Appellants,



UNITED STATES of America, Appellant,



Nos. 14544, 14545.

United States Court of Appeals, Fourth Circuit.

June 22, 1970

Argued June 5, 1970.

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Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, Richmond, Victor J. Ashe, J. Hugo Madison, Norfolk, Va., Louis R. Lucas, Memphis, Tenn., Jack Greenberg, James M. Nabrit, III, and Norman J. Chachkin, New York City, on the brief), for appellants in No. 14,544.

J. Harold Flannery, Atty., Department of Justice (Jerris Leonard, Asst. Atty. Gen. of the United States, David L. Norman, Deputy Asst. Atty. Gen., and Charles K. Howard, Jr., Atty., Department of Justice, on the brief), for appellant in No. 14,545.

Toy D. Savage, Jr., Norfolk, Va. (Allan G. Donn and Willcox, Savage, Lawrence, Dickson & Spindle, and Leonard

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H. Davis, Norfolk, Va., for City of Norfolk, on the brief), for appellees.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER, CRAVEN, and BUTZNER, Circuit Judges, sitting en banc.

BUTZNER, Circuit Judge:

The United States and parents of black pupils attending the Norfolk, Virginia, public schools appeal from an order of the district court approving the Norfolk School Board's long-range plan for the creation of a unitary school system. 1 Because this plan does not meet the constitutional requirements stated in Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Alexander v. Holmes County Bd. of Ed., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), we reverse and remand for further proceedings.

Approximately 56,600 pupils, of whom 32,600 are white and 24,000 are black, attend the Norfolk schools. During the 1969-70 school year the board operated five senior high schools. One of these was all black, and more than half of Norfolk's black high school pupils attended it. The other four had enrollments ranging from 9% To 53% Black.

Of the eleven junior high schools, five enrolled about 77% Of the district's black junior high pupils. Four of these schools were virtually all black and one was 91% Black. At the other extreme, three junior high schools were 92% To 97% White. The remaining three schools had black enrollments of 12%, 16%, and 54%.

The district had 55 elementary schools. Eighty-six per cent of the black pupils attended twenty-two schools which were more than 92% Black. In contrast, 81% Of the white pupils attended twenty-five that were more than 92% White. The remaining eight schools had student bodies from 10% To 75% Black.

During the 1969-70 school year, most of the schools could be racially identified by the composition of their faculties. At only two of the seventy-three schools did the assignment of faculty reflect the racial composition of the district's teachers, which is approximately 34% Black and 66% White. Throughout the district only 16% Of the teachers were assigned across racial lines.

The evidence clearly depicts a dual system of schools based on race. To remedy the situation the school board has devised a plan that will assign elementary pupils according to geographic zones. In turn, pupils from selected elementary schools will be assigned to junior high schools through a feeder system. For the immediate future, the board plans to retain the present high school assignments. At a later date, a new high school, projected for the 1972-73 school year, will be used to completely desegregate all high schools by the use of non-contiguous zones and transportation.

The school board drew its zones so that, with negligible exceptions, each school attended by white pupils will have a majority of whites. The board aimed for a 70% White majority, but accepted 60% As a minimum. 2 The board justifies

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this method of assignment by a series of principles which the district court found to be supported by the evidence. Briefly, these principles postulate: pupils tend to do better in schools with a predominantly middle class milieu; white pupils generally are middle class, and black pupils generally are in a lower socio-economic class; therefore, to maintain a predominantly middle class milieu, a school must have a clear majority of white children. Assignments according to these principles, the board's experts said, will enable black pupils to show substantially higher achievement than they would in all black or predominantly black schools. On the other hand, white pupils will achieve as well as they did in all white schools and better than they would in predominantly black schools. Retention of white majorities in each desegregated school, the board argues, will stabilize the system and prevent middle class flight from the city.

The board's...

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