Beckett v. School Board of City of Norfolk, Civ. A. No. 2214.

• Decision Date: 30 December 1969
• Docket Number: Civ. A. No. 2214.
• Citation: 308 F. Supp. 1274
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Leola Pearl BECKETT et al., Plaintiffs, and Carlotta Mozelle Brewer et al., and United States of America, Plaintiffs-Intervenors, v. The SCHOOL BOARD OF the CITY OF NORFOLK et al., Defendants.

308 F. Supp. 1274

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

Civ. A. No. 2214.

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

December 30, 1969.

Hill, Tucker & Marsh, Henry L. Marsh, III, Richmond, Va., Louis R. Lucas, Memphis, Tenn., Victor J. Ashe, J. Hugo Madison, Norfolk, Va., Jack Greenberg and James M. Nabrit, III, New York City, Jerris Leonard, Asst. Atty. Gen., Civil Rights Division, J. Harold Flannery and Charles K. Howard, Attys., Civil Rights Div., Justice Dept., Brian P. Gettings, U. S. Atty., Norfolk, Va., for plaintiffs and plaintiff-intervenors.

Leonard H. Davis, City Atty., Willcox, Savage, Lawrence, Dickson & Spindle, Toy D. Savage, Jr., and Allan G. Donn, Norfolk, Va., for defendants.

MEMORANDUM

WALTER E. HOFFMAN, Chief Judge.

Fourteen years following the implementing decision in Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), the courts, litigants, school children and parents remain confused with respect to the constitutional requirements touching the desegregation or integration of public schools. That Brown and the later cases have established the clear duty to operate a unitary school system cannot be doubted. Many problems arise in connection with the interpretation of the mandates emanating from judicial decisions as applied to the local situation. They may vary according to the particular locality; a factor acknowledged by the Supreme Court in the second Brown opinion. "Good faith implementation of the governing constitutional principles" would still appear to be the test.

As we approach the ultimate and ancillary issues to be resolved in the pending case, reference should be made to the preliminary hearings pertaining to the School Board's interim plan,¹ and the District Court's memorandum opinion approving same,² Beckett v. School Board of City of Norfolk, 302 F.Supp. 18 (May 19, 1969). In fact, all prior proceedings in this prolonged litigation which commenced on May 10, 1956, have been incorporated into the record. While perhaps it cannot be said that counsel for the plaintiffs and plaintiff-intervenors are willing to concede that the School Board of the City of Norfolk has, at any time since the school-closing days of 1958, exhibited any lack of "good faith," it is significant to note that the courts, both on the trial and appellate level, have praised the School Board of the City of Norfolk as it has approached the problems arising in desegregating the public school system. Even counsel for the NAACP, representing the individual plaintiffs and plaintiff-intervenors, and counsel for the Civil Rights Division of the Department of Justice, representing the United States of America as a plaintiff-intervenor, will freely concede that the School Board, together with its administrative personnel and legal staff, has readily supplied all information desired, and has conferred at length with opposing counsel whenever requested to do so.

In the final analysis there is one primary question to resolve. Succinctly stated it is —

Does good faith implementation of governing constitutional principles require racial balancing in each individual school throughout a school system comprised of many different schools where it is freely conceded that massive compulsory bussing will be required to accomplish such racial balancing?

The NAACP and Civil Rights Division argue that the logical answer to the foreing inquiry is in the affirmative.³ The School Board, with whom this Court agrees as to this point, contends that the answer is in the negative.

The decisions of the Supreme Court and several of the appellate courts, while not expressed with emphasis, suggest two mandates imposed upon school boards, to-wit:

(1) A negative mandate which prohibits "effective exclusion" of children by reason of race, creed or color. The key word in this mandate is "exclusion." Such a negative mandate applies with equal force throughout our nation and must be enforced now.

(2) An affirmative mandate, apparently applicable thus far only where de jure segregation⁴ has existed prior to the first Brown decision, imposed upon school boards to correct, so far as it may be reasonable and feasible, largely segregated schools by providing maximum desegregation under the circumstances confronting the local school board in each area.

There can be no doubts with respect to the negative mandate. Many opinions fail to point out with any degree of significance that a particular case falls within the "exclusion" category. The recent cases of Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (October 29, 1969), and Nesbit v. Statesville City Board of Education, 418 F.2d 1040 (4 Cir., Dec. 2, 1969), speak of children and/or faculty members being "effectively excluded" or "no person is to be excluded."

In Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), and Raney v. Board of Education, 391 U.S. 443, 88 S.Ct. 1697, 20 L. Ed.2d 727 (1968), it is abundantly clear that there existed no valid distinction between the negative and affirmative mandates. In Green, a case from Virginia, there were only two school buildings in the entire county, both housing grades one through twelve, located in the eastern and western portions of the county, respectively. Buses used overlapping routes to take pupils to and from school. One school was all-Negro; the other was approximately 85% white and, at best, only minimal desegregation existed. Despite the fact that "freedom of choice" was available to all, only a handful of blacks, and no whites, exercised a choice with respect to entering a school all or predominantly occupied by children of a different race. Thus, "freedom of choice" as a plan adopted by the school board "effectively excluded" children desiring to cross racial lines and the dual school system continued. Green and Raney are illustrative of school boards contending that they had desegregated completely and not that desegregation was proceeding at an adequate pace. Indeed, in Raney, the predominantly white school was filled to capacity and the applications of 28 Negroes were denied for this reason. In an interesting review of Green, described as an "easy" case, in an article in Harvard Law Review, Vol. 82:63, p. 111, at p. 114, it is said:

"In more difficult cases, where not all the factors point the same way, the Court will have to refine its analysis of the concepts `dual system,' `unitary system,' `segregated,' `integrated,' and `racially unidentifiable.' And it will have to begin facing some of the hard questions involved in implementing Brown: in formulating desegregation plans, what weight is to be given to sound policies of education and school administration; what weight to wishes of southern black nationalists for separation, even where by the lights of the larger community the result will be `inferior' education; what weight to such evidence exists that once the ratio of Negro pupils to whites passes beyond a critical point the educational benefits from integration are reduced or lost altogether? Since Brown, the lower courts have been grappling with these issues largely without guidance from the Supreme Court. In Green the Court missed an important opportunity to provide guidance by re-articulating the reasons for and the very meaning of `desegregation.'"

The City of Norfolk, with its hardcore central city area of a black community, now poses some of the foregoing problems, together with many others. The "hard questions" must now be resolved in this case.

A third case decided along with Green and Raney was Monroe v. Board of Commissioners, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). Factually, Monroe would appear distinguishable from Green and Raney, but a careful reading of the opinion demonstrates that the Supreme Court declared the "system" to be discriminatory and made reference to "a" Negro school. In discussing the "free transfer" available in Monroe, the Supreme Court pointed out that white children were at liberty to transfer out of an all or predominantly Negro school, even though they resided in the geographical area. This is not the transfer provision available in the instant case.

Opinions from other appellate courts point to the conclusion that the operation and maintenance of a particular school building, attended only by black children, is not per se constitutionally defective. United States v. Greenwood Municipal Separate School District, 406 F.2d 1086, 1093 (5 Cir., 1969); Goss v. Board of Education, City of Knoxville, Tennessee, 406 F.2d 1183, 1186 (6 Cir., 1969); contra: Adams v. Mathews, 403 F.2d 181 (5 Cir., 1968). The language of Mr. Justice Brennan in Green emphatically states that the duty is to eliminate racial discrimination by "root and branch" but, as heretofore indicated, such an expression is definitely allied with the concept of the negative mandate and, even if not so limited, has been construed as not requiring the abolition of all-Negro and all-white schools under all circumstances. See: Goss, supra.

The School Board freely concedes that the burden rests upon it to demonstrate that the school buildings attended only by black children on the one hand, or by white children on the other, are not the result of continued discrimination.

We turn then to the affirmative mandate. If such a mandate requires the mixing of racial bodies in each and every school building, irrespective of any local problems confronting the School Board, the answer is obvious. Under such circumstances racial balancing, or some system approximating same, must be ordered, and it would be a waste of time and effort to file plans which may be educationally beneficial to the children. The Civil Rights Division conceded, in argument, that any...