Thompson v. School Board of City of Newport News, Va., 71-2032

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation465 F.2d 83
Docket NumberNo. 71-2032,71-2033.,71-2032
PartiesFrank V. THOMPSON et al., Appellants, v. The SCHOOL BOARD OF the CITY OF NEWPORT NEWS, VIRGINIA, et al., Appellees. Frank V. THOMPSON et al., Appellees, v. The SCHOOL BOARD OF the CITY OF NEWPORT NEWS, VIRGINIA, et al., Appellants.
Decision Date02 August 1972

Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, James W. Benton, Jr., and Hill, Tucker & Marsh, Richmond, Va., and Philip S. Walker, Newport News, Va., Jack Greenberg, James M. Nabrit, III, and Norman Chachkin, New York City, on the brief) for Frank V. Thompson.

Robert V. Beale, Newport News, Va. (Bateman, West & Beale, Newport News, Va., and Panos A. Yeapanis, City Atty., for the City of Newport News, Virginia, on the brief), for School Board of the City of Newport News.

Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL and FIELD, Circuit Judges, sitting en banc.

DONALD RUSSELL, Circuit Judge:

From an order of the District Court in these school desegregation cases, both plaintiffs and defendants have appealed.

The appeal of the plaintiffs will be first considered.

I.

Plaintiffs assail the manner in which the plan approved by the District Court would assign elementary pupils in the school system. Under the plan, pupils in grades 1 and 2 are to attend neighborhood elementary schools; pupils in grades 3, 4 and 5, as well as pupils in grades 6 and 7 are to be assigned to paired schools. For the first paired group (i. e., pupils in grades 3, 4 and 5), the mother schools to which all living in the paired neighborhoods are assigned, are schools formerly identifiable as white in a white neighborhood and, in turn, all pupils in grades 6 and 7 would be assigned to formerly identifiable black schools. The plaintiffs took exception in the District Court and on oral argument in this Court to both the assignments of grades 1 and 2 to neighborhood schools and grades 3, 4 and 5 to formerly identifiable white schools. In their statements of issues on appeal, as set forth in their written brief filed with this Court, however, the plaintiffs did not object to the assignments of grades 3, 4 and 5 and confined the issues, as set forth in their brief, to the assignments of grades 1 and 2 to neighborhood schools. Since there was some reference to the issue relating to the assignments of 3, 4 and 5 grades in oral argument it would seem appropriate to touch briefly on this issue before passing on to the primary issue in the case.

It should be observed at the outset that, as a result of the pairings of grades 3 through 7, the proportion of black students in these grades in the various schools, while varying from approximately 15 to 50 per cent, will approximate, it is estimated, 65 per cent white and 35 per cent black in most instances. To achieve this result will require extensive busing. It was argued before us that the assignments made to paired schools for the 3rd, 4th and 5th grades, and the substantial amount of busing that followed from such assignments placed an undue and discriminatory burden on black students. The basis of this argument is that the white school child would attend for his first five school years a school formerly identified as a white school and located in a white neighborhood, whereas the black child would be in a school located in a black neighborhood only in his first two grades and in his 6th and 7th grades.

The situation in the respective pairings in this case is not appreciably different, however, from that involved in Clark v. Board of Education of Little Rock School Dist. (8th Cir. 1971) 449 F.2d 493, where the pairings under the plan of desegregation required all 8th and 9th grade pupils to attend school in four junior high school centers, three of which had been previously identifiably black schools and all 6th and 7th grade pupils were required to attend schools in facilities previously identifiably white. In sustaining the plan, the Court said (p. 496):

"While we agree that the burden of integration must be shared by blacks and whites, we do not agree that the sharing of the burden at the secondary level, when considered as a whole, is so unequal as to require upsetting the District Court\'s plan."

To the same effect is our own case of Allen v. Asheville City Board of Education (4th Cir. 1970) 434 F.2d 902, where it was stated, in sustaining a plan against a similar claim of unfair burden (p. 907):

"If achieving integration by free bus transportation for reasonable distances must now be characterized as a `burden\' and if we also assume, without deciding, that this burden must be equally shared between the races, the school board\'s plan is nevertheless valid. The worst that can be said of the plan is that in grades 1 through 5 the burden falls disproportionately on black children, whereas in grades 6 through 12 it falls disproportionately upon white children."

See, also, Hart v. County School Board of Arlington Co., Virginia (D.C.Va. 1971) 329 F.Supp. 953, aff. 459 F.2d 981 (4th Cir.), where a like claim that, as a result of the assignment of elementary pupils among schools under the proposed plan "all the burdens and inconveniences of desegregation are imposed entirely on the black children", was disallowed.1 (p. 955)

It must be conceded that, unlike the situation in Clark and Allen, there is here an unequal division between the school years spent by elementary students in identifiably black and indentifiably white schools. Such inequality, however, is unavoidable, since there is an unequal number of elementary grades (i. e., seven). Of the two groupings, one had of necessity to include three grades and the other two grades. There was some obligation on the school board to offer satisfactory reasons for the grouping it made, since the white elementary students had one more year in elementary identifiably white schools, than black elementary students had in identifiably black schools. Since the cause is to be remanded, the District Court should inquire into and make findings of fact on whether the grade groupings were based on non-discriminatory grounds. See Haney v. County Board of Education of Sevier County (8th Cir. 1970) 429 F.2d 364, 372.1a

The most difficult issue posed by the plaintiffs relates to the assignment of pupils in grades 1 and 2. The District Court gave as its primary reason for approving neighborhood schools for the 1st and 2nd grades

"* * * that the bussing facilities, assuming the adoption of the elementary plan as submitted on August 6, 1971, will be taxed to the limit. If we are to likewise move the first and second grades, that would require additional bussing facilities or a staggering of the opening of the schools, which is most undesirable but which has been ordered in other areas, especially where the school does not own and operate its bus system; but, lastly, the reason that I think it is important to keep children in the first and second grades in the neighborhood area is that while it is not supported by any testimony in this case, I am old-fashioned enough to think that it is vitally important that a child, starting his or her public education, should commence the same with some degree of happiness and satisfaction, including some degree of comfort on the part of the parent who, indirectly or directly, controls that child, and children of that age are of sufficient intelligence to hear the griping of the father and mother about the transportation of that child for the first couple of years. They will hear it again later, but the child may have matured somewhat. If you send a child to public school with a chip on the child\'s shoulder, in my judgment, it would adversely affect the child."

It is of course, axiomatic that every plan must take into consideration the unique characteristics of the school district to be served. What may be practical in one district may not be applicable in another. This was made plain in the opinion of the Court in Green v. County School Board (1968) 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716:

"There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance."2

Manifestly, Newport News School District presents unique problems for the development of a practical plan of desegregation. These problems arise out of its physical pattern as well as out of the geographic concentration of its racial groups. The Newport News School District is a consolidation of the old City of Newport News with the former City of Warwick (Warwick County prior to 1952), made effective in 1958. The old City of Newport News is located at the extreme southerly tip of the Virginia Peninsula. It comprises a small, concentrated area of four square miles. The City of Warwick, on the other hand, is to the northeast of the City of Newport News and contains more than sixty square miles. The consolidation created an odd-looking district, described in the record as "cigar-shaped", somewhat more than twenty-two miles in length and varying in width from seven-tenths of a mile to six miles. Not only was it unique in its geographic limits; its racial distribution was so distributed as to create to a degree two separate racial communities. Eighty per cent of the black population lives in the old City of Newport News. This concentration has developed over the years. In 1930, for instance, the population of the old City of Newport News was approximately sixty per cent white and forty per cent black. Thirty years later the proportions were exactly reversed. By 1970 the black proportions had risen to over ninety per cent. Outside of the old City of Newport News and its immediate environs, there is no substantial grouping of blacks except for a small, narrow strip running across the northwest...

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