Bradley v. School Board of City of Richmond, Virginia

Decision Date07 April 1965
Docket NumberNo. 9471.,9471.
Citation345 F.2d 310
PartiesCarolyn BRADLEY and Michael Bradley, infants, by Minerva Bradley, their mother and next friend, et al., Appellants, v. The SCHOOL BOARD OF the CITY OF RICHMOND, VIRGINIA, H. I. Willett, Division Superintendent of Schools of the City of Richmond, Virginia, and E. J. Oglesby, Alfred L. Wingo and E. T. Justis, individually and constituting the Pupil Placement Board of the Commonwealth of Virginia, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit


Henry L. Marsh, III, and S. W. Tucker, Richmond, Va., for appellants.

Henry T. Wickham, Sp. Counsel, City of Richmond (J. Elliott Drinard, City Atty. of Richmond, and Tucker, Mays, Moore & Reed, Richmond, Va., on brief), for appellees School Board of City of Richmond, Va., and H. I. Willett, Division Superintendent of Schools of Richmond, Va.

Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN, and J. SPENCER BELL, Circuit Judges, sitting en banc.

HAYNSWORTH, Circuit Judge.

This is the second time the second of two Richmond school cases has been before us. This time the principal question is whether the School Board adequately discharges its duty under the law when it gives to every pupil an unrestricted right to attend the school of his choice, or that of his parents. The District Court held that it does, and we agree. There are other subsidiary questions.


This case was begun by eleven Negro pupils and their parents or guardians. The eleven pupils had been denied admission to schools attended entirely, or predominantly, by white pupils. Before trial, one was admitted to the school of his choice, and the Court ordered the admission of the remaining ten. In doing so, the Court found that, in general, assignments were being made on the basis of dual attendance zones, that promotions from primary to junior high schools and from junior high schools to senior high schools were controlled by a feeder system, and that transfer requests by Negroes attending Negro schools were denied on the basis of criteria which were not employed in processing the applications of white pupils living in the same residence area and wishing to attend the same school to which the Negro pupils sought to be transferred. These discriminatory practices, of course, were condemned, and it was because they had been employed that the District Judge ordered the admission of the remaining ten plaintiffs.

While the District Judge thus clearly pointed up the faults in the practices which had governed school assignments for the 1961-1962 school year, the requested general injunctive order was denied. Denial of injunctive relief beyond the requirement of enrollment of the individual plaintiffs in the schools of their choice was predicated upon the Court's finding that the School Board had taken affirmative steps to eliminate discriminatory practices in handling enrollments in the first grade of all primary schools and in those of one of the high schools.

On the first appeal the question in this Court was whether the District Court should have granted general injunctive relief in addition to requiring the admission of the individual plaintiffs. We concluded1 that he should have issued the requested injunction because of the evident fact that discriminatory practices had been followed in handling admissions and transfer applications. One member of this Court dissented upon the ground that he thought an injunction unnecessary since the District Court had clearly pointed out to the Board what was necessary to be done, and there was no reason to suppose that the Board would not do it. The case was to be retained upon the docket, which was adequate, in the opinion of the dissenter, to assure that if further relief became requisite, it could be had readily.

The first appeal in this case was brought to this Court by the plaintiffs, not by the School Board, and in this Court the Board did not take issue with the conclusions of the District Court about the deficiencies in its earlier handling of admissions and transfer applications. It suggested a willingness to comply with the requirements outlined in the District Judge's memorandum opinion, contending only that it should have a reasonable opportunity to do so without the need of a formal injunctive order.

It was thus not surprising that while the first appeal was still in the bosom of this Court, the Richmond School Board adopted resolutions designed to eliminate the objectionable features in the practices theretofore followed by it and the Virginia Pupil Placement Board.

These resolutions, adopted in March, 1963, as subsequently construed and limited by the District Court, provide that every pupil initially entering the Richmond School system, or his parent for him, is required to state his choice as to the school he wishes to attend. He is assigned to the school of his choice. Every pupil promoted from any elementary school in Richmond, or his parent for him, is required to make a similar choice, and he is assigned to the school of his choice, as are those promoted from junior high school to senior high school. Every other pupil is assigned to the school he previously attended, but he may apply for a transfer to any other school, and, since transfer requests are routinely granted without hearings or consideration of any limiting criteria,2 he is assigned to the school of his choice. When this case was orally argued in this Court on October 5, 1964, we were assured that no timely transfer application had been denied since adoption of the resolutions of March, 1963.

Since pupils have been assigned in the Richmond schools pursuant to the 1963 scheme for the 1963-4 and 1964-5 school years, it appears that every pupil in the first two grades of primary school, junior high school and senior high school are attending the school affirmatively selected by him or his parents as the one he and they wished him to attend. Every other pupil in the school system has and has had an unrestricted right of transfer, which the District Court found had been adequately publicized and made known to pupils and parents.

Under the School Board's resolutions, as construed by the District Court, all attendance areas have been abandoned; there is no longer a feeder system for handling promotions from one level to another, and transfer requests are allowed without discriminatory conditions.

There are some limiting factors. Transfer applications by one previously assigned to a school must be submitted before June 1 to be granted effectively as of the opening of the next school year. This requirement the District Court found reasonable in light of the planning needs of the Board. There is also a provision that a transfer application by a pupil previously assigned to a school may be denied, if the school to which entry is sought does not have the capacity to receive him. The plan does not spell out what would happen in the event of a denial of an application upon the ground of want of capacity, but the District Judge thought that the reservation was not of practical importance because, so far, there has been no want of capacity to allow all transfer applications, and no transfer request has been denied on that ground, or, indeed, for any other reason except lack of timeliness.3

Upon remand of the case after the first appeal, the District Court entered an appropriate general injunction in conformity with the opinion of this Court. Thereafter the School Board filed with the Court the resolutions it had adopted in March 1963, and counsel for the plaintiffs filed objections to them as a plan for the subsequent operation of the schools.

The original plaintiffs having all been admitted to schools of their choice, two other pupils and their parents entered the case. They had applied on September 6, 1963 for admission to a high school attended predominantly by white pupils, and their applications had been denied as being too late. The District Judge promptly ordered their admission, since he had not approved the plan and its requirement that transfer applications be filed before June 1 to be granted effectively for the ensuing school year. Thereafter, there was a further hearing as to the reasonableness and propriety of the resolutions adopted by the School Board, after which the Court filed a memorandum opinion on March 16, 1964 approving the Board's plan as construed and limited by the Court.4

In the posture in which the case comes to us, therefore, it appears that the School Board's resolutions, as construed by the District Court, provide for a freedom of choice by every individual in the Richmond school system as to the school he attends. There also is a requirement that the choice be affirmatively exercised by every pupil entering the system for the first time and by every other pupil as he moves from one level to another.

In finding that the plan, as operated, does provide for unrestricted freedom of choice, the District Judge largely disregarded the potential limitation of the school capacity provision. For the present, we think he was justified in doing so. It had not been invoked at the time of the hearing for the purpose of denying any transfer application, and we are assured that it has not since then been invoked. Until some occasion arises for its invocation, it is irrelevant. Thereafter, what the School Board does may affect the validity of its operation,5 but we are entitled to assume that the unrestricted freedom of choice which has been available to all pupils and parents in the school system for the past two school years will continue to be available, or that the School Board will make other adjustments which are approvable by the Courts.6 The mere fact, however, of a possibility that capacity problems may affect the operation of the plan in future years has no immediate bearing upon the validity of what the School Board has done for the...

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