Green v. School Board of City of Roanoke, Virginia

• Decision Date: 22 May 1962
• Docket Number: No. 8534.,8534.
• Citation: 304 F.2d 118
• Parties: Cynthia D. GREEN, an infant, and Rev. Emmett L. Green, her father and next friend, et al., Appellants, v. SCHOOL BOARD OF the CITY OF ROANOKE, VIRGINIA, a body corporate, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

304 F.2d 118 (1962)

Cynthia D. GREEN, an infant, and Rev. Emmett L. Green, her father and next friend, et al., Appellants, v. SCHOOL BOARD OF the CITY OF ROANOKE, VIRGINIA, a body corporate, et al., Appellees.

No. 8534.

United States Court of Appeals Fourth Circuit.

Argued March 26, 1962.

Decided May 22, 1962.

James M. Nabrit, III, New York City (Jack Greenberg, New York City, and Reuben E. Lawson, Roanoke, Va., on brief), for appellants.

A. B. Scott, Richmond, Va. (Peyton, Beverley, Scott & Randolph, Richmond, Va., on brief), for Pupil Placement Board, appellee.

Sidney F. Parham, Jr., Roanoke, Va. (Woods, Rogers, Muse & Walker and Ran G. Whittle, City Atty., Roanoke, Va., on brief), for Roanoke City School Board and Division Superintendent, appellees.

Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.

SOBELOFF, Chief Judge.

This action was begun in the District Court for the Western District of Virginia by twenty-eight Negro public school pupils and their representatives in the City of Roanoke to require the defendants to grant them transfers from Negro to white schools. The plaintiffs also prayed for an injunction against the continued operation of racially segregated schools in the city or for an order requiring city and state school officials to submit and effectuate a plan for desegregation.

Before turning to the facts pertaining to these plaintiffs, it is in order to describe the operation of the Roanoke public school system, as revealed by the record. The Virginia Legislature has by statute entrusted authority for the enrollment and placement of pupils in the state to the Pupil Placement Board located in Richmond, Va.Code Ann. § 22-232.1 — 232.17 (Supp. 1960), unless a particular locality elects to assume sole responsibility for the assignment of its pupils. Va.Code Ann. § 22-232.18-232.31 (Supp. 1960). However, the Roanoke City school board has not elected to assume this responsibility, and insists that legal responsibility for assignments is in the state board.

In practice, the state Pupil Placement Board's role in the assignment of pupils is largely a formality. The Roanoke City school officials make recommendations to the Pupil Placement Board as to the assignment of every pupil in the city. If the parents or guardians do not object to the recommended assignments, the recommendations are routinely approved by the state board. In fact, such recommendations are not even presented to the three members of the state board, but are automatically approved by the state board's staff. Nor do the state board members concern themselves with the criteria applied by the local school authorities in making recommendations. In this way, as many as 10,000 pupils have been assigned to schools by the state board in a single morning. Only when recommendations of the local officials are protested by parents, or, as is the case with some applications for transfer from one school to another, when the local officials fail to make any recommendations at all, do the members of the state Pupil Placement Board personally consider individual assignments.

The scheme employed by the school officials in Roanoke City in making their recommendations is aptly called the "feeder" system. The city schools are divided into six sections, numbered I to VI. A pupil, when he first enters the city's school system, is assigned to an elementary school in one of the sections. When he graduates from the elementary school, he is automatically assigned to the junior high school which serves that same section. Similarly, upon graduation from junior high school, he goes to his section's senior high school. Under this arrangement, the initial assignment of a pupil to an elementary school effectually determines what schools he will attend during his entire school career, unless he succeeds in obtaining a transfer to a school in another section. These sections, however, serve no specifically defined areas. The city school superintendent stated that initial assignments to elementary schools are in accordance with what he called a "neighborhood" system: pupils simply go to the school in their vicinity. While the superintendent admitted that he could produce no map describing the sections on the basis of definite geographical boundaries, he asserted that the principal of each school knows the neighborhood his school serves. However, when it comes to Negro pupils, there is no relationship between these sections and the vague geographical neighborhoods. Rather, all Negroes are initially assigned to schools in section II, and graduate to section II junior and senior high schools. And no whites attend schools of that section. In other words, the "neighborhood" served by section II schools consists of the entire Negro community in the city.

As previously pointed out, recommendations by the city officials for assignment in accordance with this system are routinely approved by the state Pupil Placement Board. When recommendations by the local officials for assignments are protested by parents, or when the local officials make no recommendations, as noted before, the members of the state Pupil Placement Board personally consider the assignments. This, it was estimated, happens in only 1/100 of 1% of the total number of assignments. Before making any decisions, the state board requests the local officials to furnish additional information about each pupil. Included in the information requested are the occupations of the parents, the schools attended by the pupil's brothers and sisters, the distances between the pupil's home and both the school he presently attends and the school he wishes to attend, his scholastic aptitude and achievement as revealed by standard, state-wide tests and by his grades, and the comments of the pupil's former teachers. An informal meeting is then held by the state board with the local school officials, and, on the basis of this information, the state board passes on the application. The manner in which the state board applies this information in reaching a decision can best be illustrated by the cases of the twenty-eight plaintiffs and eleven others who, in 1960, applied for transfers.

Prior to 1960, the Roanoke City schools were completely segregated, with all Negro pupils attending section II schools and all whites attending schools in the other five sections. In that year, the thirty-nine Negro pupils, including the twenty-eight plaintiffs, filed applications for transfers to all-white schools. These were forwarded to the state board without recommendations. The state board then requested from the local authorities the information concerning residence, aptitude, and so forth. When the Roanoke City school superintendent asked to be advised more specifically what information was desired, a member of the state board replied with revealing candor that the board wanted information to help them answer three questions, described in the following testimony of the school superintendent:

"Are there Negro pupils who cannot be excluded from attending white schools except for race? That is number one. Number two: Would the Superintendent and School Board so certify to the Pupil Placement Board? Number three: And in our judgment, what would happen in the local communities if some Negro pupils were assigned to white schools? Those were the three questions."

The requested data was transmitted, and subsequently, on August 15, 1960, at a meeting of the state board with the city superintendent, the latter expressed his judgment as to which applications could not be denied but for race and which could. In every case, these judgments were effectuated as the actions of the state board. Of the thirty-nine applications, the state board granted nine and denied thirty. These nine were the first Negroes to be admitted to white schools in Roanoke City since the Supreme Court's decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). Most of the parents of the thirty-nine pupils were notified of the board's decision on August 17, 1960, and the remainder on August 22. Thereupon, the parents of twenty-eight of the thirty pupils whose applications had been denied filed the present action in the District Court.

With respect to the nine Negro children who were granted transfers, the minutes of the state Pupil Placement Board recite that the local school authorities, applying "criteria and standards * * * which are regarded by this Board as valid and reasonable, * * * are not in a position to oppose legally the * * * assignments and transfers * * *." As to the twenty-eight plaintiffs, their applications were denied for a variety of reasons.¹ Eleven were rejected on the ground that they lived closer to the Negro school to which they were assigned than to the white schools they wished to attend, although actually one of the eleven lived a block closer to the white school and another lived equidistant between the two schools. Twelve of the plaintiffs were denied transfers because the results of their aptitude and achievement tests placed them below, or in a few cases only slightly above, the median of the classes in the white schools they wished to attend. Five were refused on the ground that, although the applicants had otherwise met the board's standards, each had a brother or sister attending the same school with him, whose aptitude and achievement tests were below the median of the comparable white classes. The board professed to rely upon these "standards," other than the residence requirement, to avoid placing any Negroes in white schools "who would be failures."

In the District Court, the defendants first contended that the suit should be dismissed because the plaintiffs, after their applications were denied, did not further protest against the assignments by the state board and seek a hearing in accordance with the provisions of ...