Riddick by Riddick v. School Bd. of City of Norfolk, 84-1815

• Citation: 784 F.2d 521
• Decision Date: 19 March 1986
• Docket Number: No. 84-1815,84-1815
• Parties: , 30 Ed. Law Rep. 1075 Paul R. RIDDICK, Jr., and Phelicia Riddick, infants, by Paul R. RIDDICK, their father and next friend, Cynthia C. Ferebee, Johnny Ferebee, Gary Ferebee, and Wilbert Ferebee, infants, by Rev. Luther M. Ferebee, their father and next friend, Anita Fleming, infant, by Blanche Fleming, her mother and next friend, Darrell McDonald and Carolyn McDonald, infants, by Ramion McDonald, Sr., their father and next friend, Eric E. Nixon and James L. Nixon, infants, by Patricia Nixon, their mother and next friend, Johnny Owens; Trent Owens; Myron Owens, Shawn Owens, and Antonio Owens, infants, by Annette Owens, their mother and next friend; Paul R. Riddick, Rev. Luther M. Ferebee, Blanche Fleming, Ramion McDonald, Sr., Patricia Nixon, and Annette Owens, Appellants, v. The SCHOOL BOARD OF the CITY OF NORFOLK, Thomas G. Johnson, Jr., Dr. John H. Foster, Dr. Lucy R. Wilson, Jean C. Bruce, Cynthia A. Heide, Robert L. Hicks, Hortense R. Wells, Appellees. The Lawyers' Committee for Civil Rights Under Law, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 521

784 F.2d 521

54 USLW 2428, 30 Ed. Law Rep. 1075

Paul R. RIDDICK, Jr., and Phelicia Riddick, infants, by Paul

R. RIDDICK, their father and next friend, Cynthia C.

Ferebee, Johnny Ferebee, Gary Ferebee, and Wilbert Ferebee,

infants, by Rev. Luther M. Ferebee, their father and next

friend, Anita Fleming, infant, by Blanche Fleming, her

mother and next friend, Darrell McDonald and Carolyn

McDonald, infants, by Ramion McDonald, Sr., their father and

next friend, Eric E. Nixon and James L. Nixon, infants, by

Patricia Nixon, their mother and next friend, Johnny Owens;

Trent Owens; Myron Owens, Shawn Owens, and Antonio Owens,

infants, by Annette Owens, their mother and next friend;

Paul R. Riddick, Rev. Luther M. Ferebee, Blanche Fleming, Ramion McDonald, Sr., Patricia Nixon, and Annette Owens, Appellants, v. The SCHOOL BOARD OF the CITY OF NORFOLK, Thomas G. Johnson,

Jr., Dr. John H. Foster, Dr. Lucy R. Wilson, Jean

C. Bruce, Cynthia A. Heide, Robert L.

Hicks, Hortense R. Wells, Appellees.

The Lawyers' Committee for Civil Rights Under Law, Amicus Curiae.

No. 84-1815.

United States Court of Appeals,

Fourth Circuit.

Argued Jan. 8, 1985.

Decided Feb. 6, 1986.

Rehearing and Rehearing En Banc Denied March 19, 1986.

Henry L. Marsh, III (S.W. Tucker, Randall G. Johnson, Hill, Tucker & Marsh, Richmond, Va., on brief), and Julius Levonne Chambers (James M. Nabrit, III, Napoleon B. Williams, Jr., New York City, Gwendolyn Jones Jackson, Delk, James & Jackson, Norfolk, Va., Elizabeth Turley, Little, Parsley & Cluverius, Richmond, Va., on brief), for appellants.

Jack E. Greer (J. Anderson Stalnaker, M. Wayne Ringer, Williams, Worrell, Kelly & Greer, Philip R. Trapani, Norfolk, Va., on brief), for appellees.

William Bradford Reynolds, Asst. Atty. Gen. (Charles J. Cooper, Deputy Asst. Atty. Gen., Michael Carvin, Dept. of Justice, Washington, D.C., on brief), for amicus curiae U.S.

(Fred N. Fishman, New York City, Robert H. Kapp, Washington, D.C., Norman Redlich, William L. Robinson, Conrad K. Harper, Eleanor M. Fox, Richard E. Meade, Simpson Thacher & Bartlett, New York City, on brief), for amicus curiae The Lawyers' Committee for Civil Rights Under Law.

Before WIDENER, SPROUSE and ERVIN, Circuit Judges.

WIDENER, Circuit Judge:

The plaintiffs, Paul R. Riddick and others, appeal the district court's refusal to invalidate a new pupil assignment plan for the elementary schools (grades K-6) of the City of Norfolk. 627 F.Supp. 814. Under the new assignment plan, mandatory cross-town busing, required at first by court order in 1971, is abolished. In its place, students are assigned in most instances to neighborhood schools, with a transfer provision with free transportation for minority students who desire it. ¹ Plaintiffs contend that adoption of the new assignment plan was racially motivated and that its implementation violates their constitutional rights under the Fourteenth Amendment to the United States Constitution. We affirm.

I. Background

To better understand the issues involved in the instant appeal, the history of litigation arising out of racial segregation in Norfolk's public schools should be examined. Prior to the Supreme Court's opinion in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), segregation of public schools in Norfolk and elsewhere in Virginia was sanctioned by state law.

In 1956, litigation began which sought the integration of Norfolk's public schools. Beckett v. School Board of the City of Norfolk, 148 F.Supp. 430 (E.D.Va.), aff'd 246 F.2d 325 (4th Cir.), cert. den. 355 U.S. 855, 78 S.Ct. 83, 2 L.Ed.2d 63 (1957). Following intervention of additional plaintiffs, the case became styled Brewer v. School Board of the City of Norfolk, see 349 F.2d 414 (4th Cir.1965) (referred to herein as Brewer or Beckett).

In 1970, this court upheld a finding that the Norfolk school board operated a dual school system based on race. Brewer, 434 F.2d 408, 410 (4th Cir.), cert. den. 399 U.S. 929, 90 S.Ct. 2247, 26 L.Ed.2d 796 (1970). The district court was ordered to implement a plan in order to achieve a unitary school system in Norfolk. Brewer, supra, at 412. Following the Supreme Court's decision in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), the court again remanded Brewer to the district court for implementation of a desegregation plan conforming with Swann 's expanded scope of remedies. Brewer, sub nom. Adams v. School District No. 5, Orangeburg Co., S.C., 444 F.2d 99 (4th Cir) Following remand, the district court adopted a desegregation plan which utilized pairing and clustering of schools in Norfolk, as well as cross-town busing in the assignment of students to accomplish desegregation. This court affirmed implementation of the busing plan with a modification of the plan to provide for free transportation for those students bused. Brewer v. School Board of the City of Norfolk, 456 F.2d 943 (4th Cir.), cert. den. 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972).

cert. den. 404 U.S. 912, 92 S.Ct. 230, 30 L.Ed.2d 186 (1971).

Three annual reports by the school board were reviewed by the district court following its 1971 order. In 1975, the district court determined that racial discrimination had been eliminated from the Norfolk school system and that the school system had become unitary. Therefore, the district court dismissed the Beckett action. The full text of that order is:

ORDER

It appearing to the Court that all issues in this action have been disposed of, that the School Board of the City of Norfolk has satisfied its affirmative duty to desegregate, that racial discrimination through official action has been eliminated from the system, and that the Norfolk School System is now "unitary," the Court doth accordingly

ORDER AND DECREE that this action is hereby dismissed, with leave to any party to reinstate this action for good cause shown.

/s/ JOHN A. MacKENZIE

United States

District Judge

Dated: February 14, 1975

We ask for this:

/s/ Henry L. Marsh, III

Counsel for Plaintiffs

/s/ Allan G. Donn

Counsel for Defendants

No appeal was taken from the order dismissing the case. No legal action was taken with respect to the desegregation of Norfolk's public schools from 1975 until the present action was filed in 1983.

Although no longer under court order, the Norfolk school board continued cross-town busing until 1983. At that time, the board concluded that declining white enrollment figures required that the busing plan be modified to abolish mandatory busing of elementary school students. In its stead, the board adopted a pupil assignment plan based on geographic zones for its elementary schools. The board sought district court approval of its proposed plan by filing a motion to reinstate the Beckett case and by filing a civil action, School Board of the City of Norfolk v. Bell, et al, No. 83-225-N (E.D.Va.1983). The Riddick plaintiffs (those presently before the court) thereafter filed this class action suit challenging the proposed pupil assignment plan. The board voluntarily dismissed the Bell case and withdrew its motion in the Beckett case. The issues raised in those proceedings are raised here.

II. Facts

In 1970, the population of Norfolk was 307,951, 70% (215,069) white and 28% (87,261) black. The Norfolk public schools enrolled 56,830 pupils during the 1969-70 school year, 57% (32,586) of those students being white and 43% (24,244) being black.

In 1980, the population of Norfolk had declined more than 11% to 266,979, 61% (162,300) white and 35% (93,987) black. The public school enrollment, racially and otherwise, had even more drastically changed. By the 1980-81 school year, enrollment had shrunk to 36,643, a 37% drop in overall enrollment. Even more startling, the white enrollment that year was 15,629 or 42.6% of the total school enrollment. Black enrollment (21,014) now comprised 57.4% of the total school enrollment. While the overall percentage of white enrollment had dropped 14.4%, white school enrollment had dropped 52%, although the white population decreased only 24%. By 1983, school enrollment was down to 34,803, 58% (20,191) black and 42% (14,611) white.

Largely because of the drop in overall student enrollment during those years, 17 elementary schools were closed. Most of those schools closed were located in predominantly black neighborhoods.

Since 1971, the school board had used a 70%-30% ratio in assigning students under the busing plan. A school was considered as a racially identifiable black school if its enrollment consisted of more than 70% black students. In 1977, one elementary school was over 70% black. By 1981, seven elementary schools were over 70% black. During this same period, parental involvement, as shown by PTA membership, dropped dramatically, from 15,000-20,000 down to 3,500.

Alarmed about the continued loss of white students from the public school system and the drastic drop in parental involvement, the school board appointed an ad hoc committee in 1981 to examine the feasibility of reducing cross-town busing. The committee members initially were Mrs. Jean Bruce, Mrs. Hortense Wells, Tommy Johnson, Robert Hicks, and John Foster. It was later expanded to a committee of the whole. The Committee members visited other school systems to study their desegregation programs, including the Shreveport, La. and Richmond, Va. school systems. A task force was appointed to produce data for the committee. ² The committee communicated with experts in the field for consultation, including Dr. Ron Edwards, Dr. Robert Green, Dr. Sarah Lightfoot, and Dr. David Armor. Three members of the ad hoc committee favored a proposal ending busing of elementary school students. Dr. Foster opposed the change.

The board engaged Dr. Armor to prepare a report on the problems of continued integration of Norfolk's schools. Armor concluded that mandatory busing had led to significant white flight...