Brewer v. School Board of City of Norfolk, Virginia, 14544

• Decision Date: 22 June 1970
• Docket Number: 14545.,No. 14544,14544
• Citation: 434 F.2d 408
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

434 F.2d 408 (1970)

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.

Nos. 14544, 14545.

United States Court of Appeals, Fourth Circuit.

Argued June 5, 1970.

Decided June 22, 1970.

Certiorari Denied June 29, 1970.

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

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.

Certiorari Denied June 29, 1970. See 90 S.Ct. 2247.

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 noncontiguous 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 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 plan will leave nineteen elementary schools all-black. Approximately 76% of the black elementary pupils will attend these all-black schools. In contrast, almost 40% of the white elementary pupils will be assigned to ten all-white elementary schools and to an eleventh that will be 98% white. Only twenty of the fifty-two³ elementary schools the district proposes to operate will have student bodies that are 10% to 40% black. In only two elementary schools attended by white pupils has the board deviated from its doctrine that white pupils must comprise at least 60% of the enrollment.

The board proposes to assign 57% of all black pupils to three junior high schools whose student bodies will be 98% to 100% black. One junior high school will remain all-white, and six will approximate the board's quota by having black enrollments of 10% to 45%.⁴

The appellants vigorously challenge the data which underlie the board's principles of assignment. But we need not discuss in detail the arguments for and against the validity of the doctrine the board espouses. Creation of predominantly middle class schools in a district where all pupils would be assigned to them may be unobjectionable. But here many of the schools will not be middle class, and, by the board's own standards, they will be inferior. The board's rigid adherence to its quota, without making available to all students the benefits it perceives, preserves the traditional racial characteristics of its schools. White schools remain predominantly white; black schools remain black. Application of the board's principles of assignment for elementary and junior high schools fails to create a unitary school system in Norfolk. Instead, it effectively excludes many black pupils from integrated schools on account of their race, a result which is the antithesis of a racially unitary system. Alexander v. Holmes County Bd. of Ed., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).

In Nesbit v. Statesville City Bd. of Ed., 418 F.2d 1040 (4th Cir. 1969), and Stanley v. Darlington County School Dist., 424 F.2d 195 (4th Cir.), cert. denied, 398 U.S. 909, 90 S.Ct. 1690, 26 L. Ed.2d 67 (1970), following the teaching of Alexander v. Holmes County Bd. of Ed., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969), and Carter v. West Feliciana Parish School Bd., 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 474 (1970), we held that school boards must terminate their dual school systems at once. Nevertheless, the board proposes to continue Booker T. Washington as a virtually all-black school for several years until a new school is built. Alternative plans for immediately desegregating it are suggested by the record. Similarly, in Statesville and Darlington, we directed that school boards provide for the immediate and complete integration of faculties. But not until the school year beginning September 1971 does the board plan to assign faculty to reflect the overall racial composition of the district's teaching staff. We find in this record no justification for postponing desegregation of Booker T. Washington high school, or for continuing for another year the racial identity of many other schools by faculty assignments.

We remand to the district court with these instructions:

The district court shall direct the school board to submit a plan for unitary schools on or before July 27, 1970. The plan may be based on suggestions made by the government's expert witness, Dr. Michael J. Stolee, or on any other method that may be expected to provide a unitary school system. The plan should immediately desegregate all high schools. With respect to elementary and junior high schools, the board should explore reasonable methods of desegregation, including rezoning, pairing, grouping, school consolidation, and transportation. Green v. School Bd. of City of Roanoke, 428 F.2d 811 (4th Cir. 1970).

If it appears that black residential areas are so large that not all schools can be integrated, the school board must take further steps to assure that no pupil is excluded because of his race from a desegregated school. The board should make available to pupils in the black schools special classes, functions, and programs on an integregated basis, and it should assign these pupils to integrated schools for a substantial portion of their school careers. Cf. Singleton v. Jackson Municipal Separate School System, 426 F.2d 1364 (5th Cir. 1970).

The school board must amend its transfer provision to freely allow majority to minority transfers and provide transportation by bus or common carrier so individual pupils can leave black schools. Without such provision as Judge Matthes pointed out in Clark v. Bd. of Ed. of the Little Rock School Dist., 426 F.2d 1035, 1044 (8th Cir. 1970), a majority to minority transfer plan is an illusory remedy. The limitation that would allow black pupils to transfer only to a school which has less than 30% of their race must be removed because it unduly restricts the schools to which these pupils can transfer. Swann v....