Atkins v. Scott, 77-2304
| Decision Date | 03 May 1979 |
| Docket Number | No. 77-2304,77-2304 |
| Citation | 597 F.2d 872 |
| Parties | J. Alston ATKINS, Luther James Manning, b/n/f Linda P. Manning, Jr., Marguerite Miller, b/n/f for Carroll Miller, Appellants, v. Robert W. SCOTT, Governor of North Carolina, Ex Officio Director of the Budgetof North Carolina, and Ex Officio Chairman of the North Carolina Board ofHigher Education, and his Successor in Office, Advisory Budget Commission ofNorth Carolina,North Carolina Board of Higher Education, State Board of Education of NorthCarolina, University of North Carolina, Appalachian State University, EastCarolina University, Elizabeth City State University, Fayetteville StateUniversity, N. C.Agricultural & Technical State University, N. C. Central University, PembrokeState University, North Carolina School of the Arts, Western CarolinaUniversity, Winston-Salem State University, and the Board of Governors of theUniversity of NorthCarolina, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. David James, Greensboro, N. C. (Johnathan R. Harkavy, Smith, Patterson, Follin Curtis, James & Harkavy, Greensboro, N. C., J. Alston Atkins, Winston-Salem, N. C., on brief), for appellants.
Andrew A. Vanore, Jr., Senior Deputy Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of North Carolina, Raleigh N. C., on brief), for appellees.
Before BRYAN, Senior Circuit Judge, WINTER and WIDENER, Circuit Judges.
This is an appeal by J. Alston Atkins, pro se plaintiff-appellant, and Luther James Manning and North Carolina Alumni and Friends Coalition, et al, intervening plaintiffs-appellants (appellants), from a decision of the district court refusing to issue a preliminary injunction pursuant to FRCP 65(a). We have jurisdiction to entertain such appeal pursuant to 28 U.S.C. § 1292(a)(1), and affirm the district court's refusal to issue a preliminary injunction. Appellants also appeal the district court's determination that Chapter 922 of the 1975 Session Laws of North Carolina is not unconstitutional on its face. For reasons to be stated Infra, we are without jurisdiction to review that determination.
The underlying action in this case alleges that North Carolina operates and supports, financially and otherwise, a racially dual system of higher education. The proposed addition of a School of Veterinary Medicine (SVM) is only one aspect of the case, but is the one immediately at hand. 1
After it became known that a veterinary school was in the offing, appellants filed a motion for a preliminary injunction seeking to enjoin the Board of Governors of the University of North Carolina and any persons, agency, or other entity acting in concert with or on behalf of the Board of Governors from taking any action implementing or tending to implement the decision of the Board of Governors made on or about December 18, 1974 to establish a School of Veterinary Medicine on the campus of North Carolina State University at Raleigh (NCSU). In their motion for a preliminary injunction, appellants also requested the district court to enjoin the Board of Governors and any persons, agency, or other entity acting in concert with or on behalf of the Board of Governors from basing any decision as to where new schools or new programs are to be located upon comparative evaluations of physical and academic facilities of institutions within the University of North Carolina, except upon an affirmative showing that such a decision is in furtherance of the Board of Governors' duties and obligations under the United States Constitution. Both sides in the case seem to construe the last clause mentioned as meaning that any new program must be located so as to lessen any existing racial statistical imbalance.
The district court held a hearing on the motion for a preliminary injunction. On the basis of oral testimony adduced at the hearing, the contentions of the parties as disclosed by the pleadings and briefs filed with the court, the stipulations of fact entered into by the parties, and the answers of appellees to interrogatories, the district court made, among others, the following factual determinations which are not clearly erroneous. The University of North Carolina is composed of sixteen constituent institutions of higher education supported by the State of North Carolina. The Board of Governors exercises controlling supervision and direction over the sixteen constituent institutions that comprise the University of North Carolina. Prior to 1954, the public institutions of higher education maintained as of that date by the State of North Carolina were maintained on a racially exclusive basis, i. e., where members of only one race were admitted and enrolled. During the period from 1955 through 1965, maintenance of the constituent institutions of the University of North Carolina on a racially exclusive basis was gradually eliminated. The State of North Carolina has been gradually eliminating vestiges of the racially dual system of higher education that existed prior to 1954. 2 A consideration of statistical information concerning the system of higher education available for the years 1969-1976 reflects a slow but steady increase in student desegregation in the system. The general concern over the efforts of the State of North Carolina to disestablish a racially dual system of higher education is reflected in the history of the decision-making process followed in determining where to locate a School of Veterinary Medicine in North Carolina.
Following is a brief synopsis of the district court's extensive factual determinations with regard to the decision-making process followed by North Carolina in determining where to locate a School of Veterinary Medicine. In 1970, the Board of Higher Education, a predecessor to the Board of Governors, engaged the services of Calvin W. Schwabe of the School of Veterinary Medicine at the University of California at Davis as a consultant and study director to determine the feasibility of establishing a School of Veterinary Medicine in North Carolina. Dr. Schwabe filed a report recommending that a School of Veterinary Medicine be located in the Research Triangle area of North Carolina and be jointly sponsored by NCSU and the University of North Carolina at Chapel Hill. Prior to 1954, NCSU was a white institution, and currently its student body, faculty and administrators are still predominately white. In 1974, the General Assembly of North Carolina directed the Board of Governors to consider and report to the General Assembly of 1975 its findings and recommendations for administrative and legislative action with respect to the extent and need for and the most effective and economical means of training additional veterinary medical practitioners in North Carolina. Pursuant to the General Assembly's direction, the Board of Governors appointed a subcommittee to consider and make recommendations concerning the establishment of a School of Veterinary Medicine in North Carolina. On August 1, 1974, John L. Sanders, Vice President of the University of North Carolina and Chairman of the Sub-Committee, met with Dean Webb, Dean of the School of Agriculture at North Carolina Agricultural and Technical State University (NCA&T), to solicit his opinions about the establishment of a School of Veterinary Medicine in North Carolina. Prior to 1954, NCA&T was a black institution, and currently its student body is still predominately black. Dean Webb stated he felt that North Carolina needed a School of Veterinary Medicine and that if one were established NCA&T should be a major participant. On September 12, 1974, Dean Webb appeared before the Sub-Committee and advised it that a School of Veterinary Medicine was needed in North Carolina and that at least a teaching element of the School should be located at NCA&T. Prior to Dean Webb's appearance before the Sub-Committee, there had been no communication to the Board of Governors from any official at NCA&T expressing an interest in seeing all or part of a School of Veterinary Medicine located on the NCA&T campus. Since two of the constituent institutions of the University of North Carolina were interested in becoming the site for a single program, the University engaged the services of Dr. C. R. Cole, Regents Professor and former Dean of the School of Veterinary Medicine at the Ohio State University, to conduct a study to determine the optimum location of a School of Veterinary Medicine in North Carolina. Dr. Cole was not asked to express an opinion on the racial impact or consequences of locating the School on the campus of either NCSU or NCA&T. On October 29, 1974, Dr. Cole submitted his report to the Board of Governors. That report contained the following conclusions and recommendations regarding the location of a School of Veterinary Medicine (referred to in the report as an SVM) in North Carolina:
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