Beckett v. School Board of the City of Norfolk

• Decision Date: 19 May 1969
• Docket Number: Civ. No. 2214.
• Citation: 302 F. Supp. 18
• Parties: Leola Pearl BECKETT et al., Plaintiffs, and Carlotta Mozelle Brewer et al. and United States of America, Plaintiff-Intervenors, v. The SCHOOL BOARD OF THE CITY OF NORFOLK et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

302 F. Supp. 18

Leola Pearl BECKETT et al., Plaintiffs, and Carlotta Mozelle Brewer et al. and United States of America, Plaintiff-Intervenors, v. The SCHOOL BOARD OF THE CITY OF NORFOLK et al., Defendants.

Civ. No. 2214.

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

May 19, 1969.

Hill, Tucker & Marsh (Henry L. Marsh, III), Richmond, Va., Victor J. Ashe and J. Hugo Madison, Norfolk, Va., for plaintiffs and certain individual intervenors.

J. Harold Flannery and Charles K. Howard, Civil Rights Division, U. S. Department of Justice, Washington, D. C., for United States of America, plaintiff-intervenor.

Leonard H. Davis, City Atty., Norfolk, Va., and Willcox, Savage, Lawrence, Dickson & Spindle, Toy D. Savage, Jr., Norfolk, Va., for School Board of City of Norfolk and other defendants.

WALTER E. HOFFMAN, Chief Judge.

MEMORANDUM

In a matter involving the better part of seven days of testimony, to say nothing of the multitude of exhibits and pretrial proceedings, prudence dictates that a considered opinion is in order. Nevertheless, compelling reasons are presented which require a decision at this particular time in order to alleviate, subject to appellate review, the unrest existing among school children and their parents in the City of Norfolk and, in addition, to expedite an appeal which has been clearly indicated. Reserving the right to amplify or modify the views expressed herein following the completion of the transcript, the Court, assured of the soundness of its conclusion, has orally directed an order approving the interim plan for the 1969-70 school year as submitted by the School Board, calling for a continuation of the modified freedom-of-choice plan in the elementary and junior high schools and the adoption of the proposed geographic zone plan for the senior high schools. The submission of the final plan will remain as heretofore ordered at the hearing on April 2, 1969, to-wit, on or before June 23, 1969. The time scheduled for filing objections to the final plan is July 7, 1969, at which time a pretrial conference will be conducted. A hearing on objections, if any, is fixed for September 3, 1969.

Since the Norfolk schools reopened on February 2, 1959, following the school-closing days in September 1958, the citizens of Norfolk have accepted integration with minimal complaint. Progressively, as court decisions have broadened the scope of the terms "desegregation" and "integration," the School Board has in good faith endeavored to keep up with the sweeping changes. Indeed, the School Board and its administrative staff now recognize that research has developed the conclusion that desegregated schools, where the majority in attendance are white, are beneficial to white and black alike. However, this same research leads to the conclusion that where the majority in attendance at a particular school are black, the Negro does not better himself and the white child suffers appreciably.¹ With this in mind, the School Board approached the difficult problems confronting it following the remand in Brewer v. School Board of City of Norfolk, Virginia, 397 F.2d 37 (4 Cir., 1968), rehearing en banc denied on or about October 7, 1968. The majority opinion in that case has been described by the undersigned as vague and confusing in that it sets forth excerpts from many decisions but establishes no guidelines for accomplishing the objectives stated and, additionally, imposes an impossible burden upon the Court and the School Board.

Brewer was decided four days after the Supreme Court handed down its opinions in Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L. Ed.2d 727 (1968), and Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). Confronted with a new twist in the law, the School Board applied for a rehearing en banc which was denied on or about October 7, 1968. The mandate was received by the district court on October 9, 1968.

Counsel did not request any action. Personal problems involving illness delayed immediate action by the judge. On November 29, 1968, an order was entered sua sponte convening a pretrial conference on December 27, 1968, and calling for specific information relative to (1) the minimal objective timetable for faculty desegregation, (2) the location, relocation, construction or reconstruction of Booker T. Washington High School, (3) counsel's interpretation of Brewer, (4) the production of the report relative to the site location of the new Booker T. Washington High School as prepared by the expert employed by the Civil Rights Division following the district court opinion in Brewer, (5) a required statement by the NAACP and the Civil Rights Division to be made at the pretrial conference as to objections, if any, to the existing plan with respect to the elementary and junior high schools; this due to the fact that Brewer dealt only with the senior high school plan, and (6) the required disclosure at the pretrial conference of the School Board's plans or contemplated plans relating to construction of future schools, subject to one limitation.

On December 19, 1968, the School Board filed its response in compliance with the order of November 27, 1968, and furnished the details as to (1) and (6) above.

At the pretrial conference on December 27, 1968, (a transcript of which is available), the Civil Rights Division requested,² with the concurrence of the NAACP and the School Board, a continuance of the hearing to permit "good faith" negotiations looking forward to the entry of a consent order. While expressing grave doubts as to the ability to reach an agreement and warning counsel that any delay would place this case in a posture of delaying any controversial changes for the 1969-70 school session,³ the Court granted the continuance until February 15, 1969. On February 6, 1969, an agreed order was entered extending the time for further conferences until March 14, 1969. On or about the latter date, the Court received letters from all counsel requesting a further pretrial conference. By order dated March 17, 1969, the pretrial conference was scheduled for April 2, 1969.

Following the pretrial conference on December 27, 1968, the NAACP and Civil Rights Division filed substantially identical objections to the seven school construction projects contemplated for future new schools. As to seven contemplated modifications and renovations to existing school buildings, objections were interposed to "Classrooms to Accommodate Kindergarten Pupils Citywide," but this is not of consequence at this time as this proposal has not been sufficiently formulated. With respect to the seven projects involving new construction, on the last day of the hearings (May 9, 1969) counsel for all parties agreed that the Camp Allen Elementary School could go forward and objections to this project were withdrawn. The remaining items have not been resolved, but will be included in the School Board's final plan to be submitted on or before June 23, 1969. It is conceded by all that the resolution of site locations, capacity, etc., of these new schools is an integral part of any plan respecting school desegregation.

On or about January 6, 1969, objections were filed to the assignment procedures as to all schools, and to the School Board's action of December 17, 1968, fixing an objective timetable for faculty desegregation beginning with the 1970-71 school year. Subsequently, on April 10-11, 1969, further objections were filed to the interim plan proposed by the School Board, and which is now before the court.

On April 2, 1969, counsel for the School Board verbally presented plans for a long-range attempted solution to the desegregation problem which all witnesses concede is complex. As an interim measure, in an effort to comply with one plausible interpretation of Brewer, the senior high school eastern line dividing the Washington and Lake Taylor zones was adjusted to bring approximately 250 more Negro children into Lake Taylor Senior High School. Moreover, such a change would greatly relieve the overcrowded condition at Washington Senior High School. Other line changes were made to place more Negroes in Granby High School, thus relieving the rapidly resegregated Maury High School, and to compensate for the changes heretofore mentioned. However, with the majority in Brewer demanding hearings and court approval of school construction projects, absent approval of the NAACP and the Civil Rights Division, the problem presented with respect to the essentially all black Washington High School was insoluble at this time.

As the testimony developed throughout the extensive hearings, one dominant factor of disagreement appeared. The Civil Rights Division and the NAACP do not appear to basically disagree with the principles and proposed optimal plans submitted by the School Board except to say that there should be more integration. They counter by saying that the only solution is "bussing" (sometimes referred to as "busing"). If this is a solution and if it is required by constitutional mandate, this Court agrees that mandatory bussing is the only way in which all schools in the Norfolk system may become racially balanced or totally desegregated, and, with respect to a few schools, racially integrated. Not even the pairing of schools can accomplish desegregation of all schools. If we may disregard the cost, the matter of convenience, the time and expense of transportation, the neighborhood school, the soundness of an educational system, the disruption of extracurricular activities involving after-school hours, public opinion in general, and many other factors, it is possible to adopt the plan advanced by the Civil Rights Division, although even then it could not possibly be put into operation by September 1969 because of transportation problems hereinafter mentioned.

During all the...