Allen v. County School Board of Prince Edward County, Civ. A. No. 1333.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Citation: 207 F. Supp. 349
• Decision Date: 10 October 1962
• Parties: Eva ALLEN et al., Plaintiffs, v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, etc., et al., Defendants.
• Docket Number: Civ. A. No. 1333.

207 F. Supp. 349

Eva ALLEN et al., Plaintiffs,
v.
COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, etc., et al., Defendants.

Civ. A. No. 1333.

United States District Court E. D. Virginia, Richmond Division.

July 25, 1962.

As Amended October 10, 1962.

S. W. Tucker and Henry L. Marsh, III, Richmond, Va., and Robert L. Carter, New York City, for plaintiffs.

Collins Denny, Jr., and John F. Kay, Jr., Richmond, Va. and C. F. Hicks, Gloucester, Va., for County School Board of Prince Edward County and T. J. McIlwaine, Division Superintendent of Schools.

J. Segar Gravatt, Blackstone, Va., and F. N. Watkins, Farmville, Va., for Board of Supervisors of Prince Edward County.

R. D. McIlwaine, III, Asst. Atty. Gen. of Virginia, for State Board of Education and Superintendent of Public Instruction.

Frederick T. Gray, Sp. Asst. Atty. Gen., Richmond, Va., for Commonwealth of Virginia.

207 F. Supp. 350

LEWIS, District Judge.

The infant plaintiffs in the Prince Edward school case are again before this Court seeking admission to the public schools of Prince Edward County, Virginia, on a non-discriminatory basis — all in accord with the Brown¹ decisions.

Rather than comply with those decisions and the order of this Court, the defendant Board of Supervisors caused the closing of all public schools in the county.

Thereafter the petitioners filed an amended supplemental complaint raising the following issues:

(1) Whether the public schools heretofore maintained in Prince Edward County can be closed in order to avoid the racial discrimination prohibited by the Fourteenth Amendment of the United States Constitution.

(2) Whether the defendants, individually or in concert, have deliberately circumvented, or attempted to circumvent or frustrate, the order of this Court entered herein on the 22nd day of April, 1960.

Issue numbered (2) was partially determined August 23, 1961, and it is not necessary to repeat those rulings in this opinion (see memorandum opinion dated August 23, 1961, D.C., 198 F.Supp. 497, and order dated November 1, 1961).

This Court has repeatedly stated that the Prince Edward school case would not be terminated until this or some other court determined issue numbered (1), above recited.

Upon the assurance of counsel for petitioners that such a suit would be filed in the state courts, and upon the further assurance of counsel for the Board of Supervisors of Prince Edward County that he would file such a suit² if the petitioners failed to so do, this Court abstained from determining the issue, pending a final ruling by the Supreme Court of Appeals of Virginia.

But such was not to be — true the petitioners filed a petition for writ of mandamus in the Supreme Court of Appeals³ to compel the Board of Supervisors of Prince Edward to appropriate money for the maintenance and operation of free public schools in the county. However, they expressly informed that court in their printed reply brief that "There are no Federal questions (involved) in this proceeding," and Chief Justice Eggleston, speaking for the Supreme Court of Appeals, said "* * * and we perceive none."

The defendants now move this Court to dismiss or, in the alternative, to abstain from determining the issues presented in the amended supplemental bill of complaint upon the ground the petitioners deliberately failed and refused to comply with the order⁴ of this Court by deleting all federal questions from the suit filed in the Supreme Court of Appeals.

This motion would be meritorious had the defendants filed an appropriate answer and/or countersuit to the plaintiffs' petition for writ of mandamus so that the citizens of Virginia would have learned from their highest state court whether the public schools of Prince Edward County could be legally closed in accordance with the State and Federal Constitutions, under the circumstances and conditions there existing.

This "issue" must be determined — and dismissal of the pending suit will not accomplish that end. Therefore, the motion of the defendants to dismiss the amended supplemental complaint will be denied.

The doctrine of abstention is well embedded in the federal procedure, and

207 F. Supp. 351

rightfully so. It is aimed at the avoidance of unnecessary interference by the federal courts with properly administered state concern. See Harrison v. N.A.A. C.P., 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed. 2d 1152 (1959). However, the District Court cannot avoid its duty to adjudicate a controversy properly before it by postponing the exercise of its jurisdiction by invoking the doctrine of abstention. See County of Allegheny v. Frank Mashuda Company, 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959). And especially so when it is advised by counsel for all parties that none of them intends to file another suit in the state courts.⁵

The Prince Edward County public schools have been closed for three years and will remain closed unless they be legally required to reopen. During the interim practically all of the negro children in the county have been denied a formal education. The white children are being educated in the (private) Prince Edward Foundation schools, or away from home, at the expense of their parents and friends. All other children in the State of Virginia, both negro and white, are given the privilege of being educated in public schools at public expense.

This is a suit in equity instituted by the infant plaintiffs requesting this Court to declare and insure them, and all others similarly situated, their constitutional rights. To further abstain is to further delay — and further delay in the formal education of 1,700 children would create an irreparable loss. These children are entitled to know whether any of their federally protected rights are being abridged. The motion to further abstain will be denied.

That the Board of Supervisors of Prince Edward caused the closing of the public schools in the county in order to avoid the racial discrimination prohibited by the Supreme Court of the United States⁶ cannot be seriously questioned. This action was in accord with the Board's expressed policy (adopted in May, 1956) to abandon public schools and educate the children some other way if that be necessary to preserve segregation of the races in the schools of Prince Edward County.⁷

The defendants attempt to justify their action and/or inaction upon the theory that public schools of Prince Edward County are owned, operated, managed, and controlled by the local school board — that they are not now and never have been operated by the state or any state agency — that the Fourteenth Amendment is addressed solely to the state — that the Board of Supervisors cannot be compelled to levy taxes or appropriate money for the maintenance of free public schools — and that the reason or motive back of such action or inaction is beyond judicial review.

In determining whether these contentions are well-founded, it is necessary and proper to review and re-examine the Federal and State Constitutions, the implementing statutes, and the recent court decisions pertaining to public education. In so doing, we find the Supreme Court of Appeals of Virginia in the Griffin suit, supra, held that Section 136 of the Constitution of Virginia and Code Sections 22-126 and 22-127, as amended, which implement the constitutional provision, vest in the Board of Supervisors of Prince Edward County the discretionary power and authority to determine what additional sums, if any, should be raised by local taxation to supplement the funds provided by the state for the support of the schools in the county. That holding was in accord with previous decisions of that court.

207 F. Supp. 352

See School Board of Carroll County v. Shockley, 160 Va. 405, 168 S.E. 419...