Brewer v. SCHOOL BD. OF CITY OF NORFOLK, VIRGINIA

• Decision Date: 07 March 1972
• Docket Number: No. 71-1900 and 71-1901.,71-1900 and 71-1901.
• Parties: Carlotta Mozelle BREWER and Demetria Yvonne Brewer, infants by Oner Brewer, their father and next friend, et al., Appellants and Cross-Appellees, v. The SCHOOL BOARD OF the CITY OF NORFOLK, VIRGINIA, et al., Appellees, and David E. Allgood, Infant, etc., et al., Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

456 F.2d 943 (1972)

Carlotta Mozelle BREWER and Demetria Yvonne Brewer, infants by Oner Brewer, their father and next friend, et al., Appellants and Cross-Appellees, v. The SCHOOL BOARD OF the CITY OF NORFOLK, VIRGINIA, et al., Appellees, and David E. Allgood, Infant, etc., et al., Appellees and Cross-Appellants.

Nos. 71-1900 and 71-1901.

United States Court of Appeals, Fourth Circuit.

Argued January 5, 1972.

Decided March 7, 1972.

Certiorari Denied May 15, 1972.

Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, James W. Benton, Jr., Richmond, Va., Victor J. Ashe, Norfolk, Va., Jack Greenberg, James M. Nabrit, III, and Norman J. Chachkin, New York City, on brief), for Carlotta Mozelle Brewer and others.

Marshall T. Bohannon, Jr., Norfolk, Va. (Herbert & Bohannon, Norfolk, Va., on brief), for David E. Allgood and others.

Allan G. Donn, Norfolk, Va. (Toy D. Savage, Jr., Willcox, Savage, Lawrence, Dickson, & Spindle, Norfolk, Va., and Leonard H. Davis, City Atty., on brief), for School Board of City of Norfolk and others.

Certiorari Denied May 15, 1972. See 92 S.Ct. 1778.

DONALD RUSSELL, Circuit Judge:

As a result of the decision of the Supreme Court in Swann¹ and Davis,² this Court vacated the judgments of the District Court in this and four other school desegregation cases and remanded the proceedings to the District Courts having jurisdiction over such cases, with instructions "to receive from the respective school boards new plans (of desegregation) which will (would) give effect to Swann and Davis", employing in the development of such plans "the use of all techniques for desegregation, including pairing or grouping of schools, noncontiguous attendance zones, restructuring of grade levels, and the transportation of pupils." Adams v. School District Number 5, Orangeburg Co., S. C. (4th Cir. 1971) 444 F.2d 99, 100, 101.

Upon remand, the school board in this case filed a revised plan of desegregation. Under the restructuring of the schools within the district proposed in such plan, including the pairing and clustering of a number of its schools, large numbers of students were to be assigned to schools beyond normal walking distance from their homes. Objections were entered to this plan by the plaintiffs-appellants, as well as by certain intervenors-cross-appellants; and several hearings were had. After certain changes and modifications had been made, the District Court approved the plan of desegregation and from this approval the plaintiffs and intervenors have appealed.

The intervenors object that the plan seeks, contrary, as they assert, to the mandate of Swann, to balance racially the schools of the defendant district. It is permissible under Swann to use racial percentages as a "starting point" for a plan of desegregation. Of course, as Swann makes clear (402 U.S. 23-25, 91 S.Ct. 1267, 28 L.Ed.2d 554), these percentages, at best, will be regarded as mere approximations, for, as the Court in Norwalk Core v. Norwalk Board of Education (2d Cir. 1970) 423 F.2d 121, at p. 122, said:

"The racial ingredients of schools cannot be prescribed with such certainty of a correct optimum result as might be found in a gourmet cook book specifying the proper portions for a de luxe casserole."

And this is all we construe the plan in this case to do. The intervenors, also, assert that the plan is unacceptable to a large segment of the patrons of the school system and is therefore unworkable. Such objection has been repeatedly disallowed.³ The last claim raised by the intervenors is that, as a result of the plan, pupils are being subjected to unreasonable risks to their health and safety by the assignments without their neighborhood. This contention, too, is without merit. Even in the illustrations set forth by the intervenors in their brief, bus trips required of pupils under the plan generally fall within a range of thirty minutes each way. This is much less than the three-hour round trip condemned in Winston-Salem/Forsyth Bd. of Ed. v. Scott, 404 U.S. 1221, 1227, n. 1, 92 S.Ct. ___ (Chief Justice Burger) and found unreasonable in Mims v. Duval County School Board (D.C.Fla.1971) 329 F.Supp. 123, 133. Nor is it substantially different from the extent of busing required in Swann, 402 U.S. at p. 30, 91 S.Ct. 1267, 28 L.Ed.2d 554.

A number of the plaintiffs' objections to the plan, as raised in this appeal, are similarly inconsequential and may be dismissed. The allowance of the "rising seniors option", which the plaintiffs argue increased the black proportion in Booker T. Washington High School, and which permits rising seniors, if they so desire, to complete their final year at the school they attended the previous years, will only be effective during the current school year. Its effect on the racial composition of Booker T. Washington High School during 1971-72 has not been substantial. Taking into consideration the considerable changes already made in the assignment of pupils in this school system, we would not be disposed to interfere with this "senior option" plan in the midst of the current school year. Cf., The Supreme Court, 1970, Term, 85 Har.L.Rev. 3, 79, note 30. The school system is, also, moving expeditiously towards a proper racial balance in its teaching and administrative staffs. The plaintiffs do not seriously contend otherwise. Under these circumstances, we are inclined to agree with the conclusion of the District Court that judicial action in this connection does not appear presently required. Finally, the school district customarily files regularly with the Court reports of its progress in desegregation. The District Court found the reports as filed adequate and the plaintiffs have pointed to no specific areas in which these reports do not provide sufficient information to the Court. We shall not disturb the finding of the District Court in this regard.

The primary attack of the plaintiffs on the plan is directed at the failure to provide free bus transportation for those pupils of the District who live beyond normal walking distance from the school to which they are assigned. As previously observed, the plan contemplates the assignment of a substantial number of pupils to schools located beyond walking distance of their homes but provides no means of transportation for pupils so assigned. The plaintiffs assert that, under these circumstances, the maintenance by the School District of a busing program for pupils who are not within walking distance of their assigned school is a necessary corollary to the assignment itself. They echo the comment of another Court, faced with a similar problem, that, it is "ridiculous to assign students to schools which they cannot reach". Davis v. Board of Education of North Little Rock, Ark. (D.C. Ark.1971) 328 F.Supp. 1197, 1203. While conceding that the School District has not heretofore operated a bus system or provided free busing,⁴ they would find no more merit in the argument that this justifies failure to provide transportation than in the argument in the earlier stages of this proceeding against a duty to assign pupils outside their neighborhood for purposes of eliminating the vestiges of segregation. They say the two requirements—to assign and to provide transportation—go hand-in-hand—and one without the other is useless. They dismiss as unacceptable the suggestion that the pupils should avail themselves at their own expense of the facilities of the local private bus transportation system to reach their assigned school. They point out that, under the present rates, these pupils would be required to pay $45 per school year for transportation and, under a set of proposed rates which will soon become effective, $63 per year. A substantial number of the students reassigned come from families for whom these expenditures could be an unreasonable, if not an intolerable, burden. It was largely to safeguard the constitutional rights of this group of students that the plan of desegregation was promulgated. The plaintiffs urge that if the Court, after providing for their reassignment, takes no steps to make available to them, without cost, busing to the school to which they are assigned, the whole plan of desegregation becomes a futile gesture and will represent for the disadvantaged child, intended to be protected thereby in his constitutional rights, a cruel hoax. This argument persuades; it also accords with our understanding of Swann and Davis, both of which recognized and enforced "the district court's equity power to require transportation whenever and wherever necessary to disestablish a dual school system."⁵

It is regrettable that the requirement that the School District furnish busing for these students assigned beyond walking distance from their homes imposes substantial expense⁶ upon the District which may force it to curtail some other worthwhile services, but, if reassignment is mandated constitutionally, it must be effective and meaningful and "more than a matter of words".⁷ To repeat, the Court cannot compel the student to attend a distant school and then fail to provide him with the means to reach that school.

The school district has indicated that if the District is required to operate a bus system for the transportation of its pupils, the loss of revenue thereby occasioned to the local private transportation system will render such system unprofitable and lead to its discontinuance, with resulting inconvenience to the entire community. The local transportation system, on the other hand, cannot be, as it were, subsidized at the inconvenience of, and in denial of the constitutional rights of, the students. It is possible, however, as we have already indicated, that the school district may find it both practical and economical to utilize the services of the local bus system in discharging its obligation to provide adequate transportation for pupils assigned to schools beyond walking distance from their homes.⁸ Whether this is a practical...