Allen v. COUNTY SCHOOL BD. OF PRINCE EDWARD CTY., VA., 7829.
| Decision Date | 05 May 1959 |
| Docket Number | No. 7829.,7829. |
| Citation | 266 F.2d 507 |
| Parties | Ulysses ALLEN, an infant, by Hal Edward Allen, his father and next friend, Roy Hicks, an infant, by C. W. Hicks, his father and next friend, and McDarnold Bagley, an infant, by P. H. Shepperson, his guardian and next friend, and Hal Edward Allen, C. W. Hicks and P. H. Shepperson, Appellants, v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VA., et al., Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Oliver W. Hill, Richmond, Va. (Spottswood W. Robinson, III, Richmond, Va., on brief), for appellants.
Archibald G. Robertson, Richmond, Va. and A. S. Harrison, Jr., Atty. Gen. of Virginia (Henry T. Wickham, Special Asst. to the Atty. Gen. of Virginia, W. C. Fitzpatrick, Farmville, Va., John W. Riely, T. Justin Moore, Jr., and Hunton, Williams, Gay, Moore & Powell, Richmond, Va., on brief), for appellees.
Before SOPER and HAYNSWORTH, Circuit Judges, and THOMPSON, District Judge.
This litigation, which looks to the desegregation of the races in the public schools of Prince Edward County, Virginia, began nearly eight years ago on May 23, 1951, when a class suit on behalf of a number of colored pupils of high school age was entered against the County School Board in the District Court below. Since that time the case has been continuously before the courts and the principle of desegregation has been firmly established, but no steps to bring it about in the County have been taken by the school authorities. The last order of the District Court, from which this appeal was taken, was issued November 26, 1958, and therein the School Board was directed to proceed promptly with the formulation of a plan of desegregation and to report the progress made in the formulation of the plan to the court on or before January 1, 1959.1 But by the same order the school authorities were given seven additional years, until the beginning of the 1965 school year, to put the plan into operation unless the order should be modified in the meantime. This date was fixed because the judge was of the opinion that the School Board should have ten years from the second decision of the Supreme Court in Brown v. Board of Education on May 31, 1955 (349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083) in which to give effect to its mandate that the plaintiffs be admitted to the public schools of the County on a racially nondiscriminatory basis with all deliberate speed.
The question on this appeal, in view of the proceedings which have already taken place, is whether this order of the District Court conforms to the requirements which the Supreme Court has laid down. The original complaint was based on the proposition that the segregation of the races in the public schools of a state is a violation of the Federal Constitution and upon the further ground that if segregation accompanied by equality of treatment is valid the facilities afforded the colored pupils in the public schools of Prince Edward County were grossly inferior to those furnished to the white pupils. In reply the School Board contended that segregation if properly administered is valid, but admitted that the facilities furnished Negro pupils were inferior and stated that prompt steps to bring about equality at an early date were being taken. After hearing the case the three-judge court rendered an opinion on March 7, 1952, in which it upheld the first defense in principle but ordered that the School Board pursue with diligence and dispatch their program to replace the old facilities furnished Negro pupils and remove the inequality. Davis v. County School Board of Prince Edward County, 103 F.Supp. 337.2
An appeal from this decision was taken to the Supreme Court of the United States and the case was one of the group which was decided by that Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, on May 17, 1954, and Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, on May 31, 1955. Thereby the decision of the three-judge court was reversed and the case was remanded for further proceedings as indicated above. Upon the remand the three-judge court, on July 18, 1955, ordered compliance with the mandate of the Supreme Court but found that it was impracticable to effect the change in the schools of the County for the school year beginning in September 1955, and retained jurisdiction for further consideration and action.3
Thereafter, on April 23, 1956, the plaintiffs moved the court to comply with the mandate of the Supreme Court as to the secondary schools of the County not later than the school term beginning September 1956. Accordingly, the three-judge court was reconvened but, since the constitutional questions involved in the case had been conclusively determined, it was ordered that the court be dissolved and that further proceedings in the case be directed by United States District Judge Hutcheson. 142 F.Supp. 616. In subsequent proceedings before the single District Judge, consideration was given to the plaintiffs' prayer for further relief and also to an answer of the defendants resisting such relief, and a motion of the defendants that the plaintiffs' case be dismissed on the ground that an adequate remedy had been furnished them by certain acts of the Legislature of Virginia, passed at its session of 1956, and praying that the three-judge court be reconvened to consider this new phase of the case.4
The District Judge disposed of these motions in an opinion filed on January 23, 1957, 149 F.Supp. 431, which was followed by an order of March 26, 1957, in which the decision on the motion of the plaintiffs for further relief was withheld with reservation to the plaintiffs of the right to renew the motion at a later date after the defendants had been afforded a reasonable time to effect a solution. By the same order the judge denied the motion of the defendants that a three-judge court be convened but declined to pass on the matters raised in the defendants' motion to dismiss.
An appeal was taken from this decision and it was reversed by this Court on November 11, 1957, 4 Cir., 249 F.2d 462, wherein the case was remanded to the District Court with direction to enter an order directing the defendants to make a prompt and reasonable start toward complying with the court's order enjoining discrimination on the ground of race or color in admitting children to the schools under the supervision of the County School Board. The attention of the District Court was called to the order passed by this court on December 31, 1956, in County School Board of Arlington County, Va. v. Thompson, 4 Cir., 240 F.2d 59, wherein an order enjoining the County School Board of Arlington County to begin the desegregation of the elementary schools of the County in the 1956-57 term and the high school in the 1957-58 term was approved. It was there pointed out that it had been two years since the first decision of the Supreme Court in Brown v. Board of Education and that the County School Board, despite repeated demands, had taken no steps to remove the requirement of segregation in the schools. In that case (at page 64) we said:
"* * * This was not `deliberate speed\' in complying with the law as laid down by the Supreme Court but was clear manifestation of an attitude of intransigence, which justified the issuance of the injunctions to dispel the misapprehension of school authorities as to their obligations under the law and to bring about their prompt compliance with constitutional requirements as interpreted by the Supreme Court."
After this quotation from the Arlington County case we used the following language with respect to the delay of the school authorities of Prince Edward County (249 F.2d 462, at page 465) in the case now under consideration:
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