Griffin v. Board of Supervisors of Prince Edward County

• Decision Date: 02 December 1964
• Docket Number: 9646-9649.,No. 9597,9597
• Parties: Cocheyse J. GRIFFIN, Mignon D. Griffin, Naja D. Griffin and L. Francis Griffin, Jr., infants, by and through L. Francis Griffin, Sr., their father and next friend, et al., Appellants, v. BOARD OF SUPERVISORS OF PRINCE EDWARD COUNTY and J. W. Wilson, Jr., Treasurer of Prince Edward County, State Board of Education of the Commonwealth of Virginia and Woodrow W. Wilkerson, Superintendent of Public Instruction of the Commonwealth of Virginia and County School Board of Prince Edward County, Virginia, and T. J. McIlwaine, Division Superintendent of Schools of said County, Appellees. Avis M. PETTAWAY et al., etc., Appellees, v. COUNTY SCHOOL BOARD OF SURRY COUNTY, VIRGINIA, and M. B. Joyner, Division Superintendent of Schools of Surry County, Virginia, Appellants. Avis M. PETTAWAY et al., etc., Appellees, v. BOARD OF SUPERVISORS OF SURRY COUNTY, W. E. Seward, Jr., Clifton M. Ellis, Jr., and J. A. Savedge, and A. T. Sowder, Treasurer of Surry County, Appellants. Avis M. PETTAWAY et al., etc., Appellees, v. STATE BOARD OF EDUCATION OF THE COMMONWEALTH OF VIRGINIA and Woodrow W. Wilkerson, Superintendent of Public Instruction of the Commonwealth of Virginia, Appellants. Avis M. PETTAWAY et al., etc., Appellees, v. Harvey J. BABB, R. Merrill Seward, Sidney G. Judkins and Lewis M. Berryman, individually and as the parent and natural guardian of children as named in their Motion to Intervene, individually and on behalf of said children, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

339 F.2d 486 (1964)

Cocheyse J. GRIFFIN, Mignon D. Griffin, Naja D. Griffin and L. Francis Griffin, Jr., infants, by and through L. Francis Griffin, Sr., their father and next friend, et al., Appellants, v. BOARD OF SUPERVISORS OF PRINCE EDWARD COUNTY and J. W. Wilson, Jr., Treasurer of Prince Edward County, State Board of Education of the Commonwealth of Virginia and Woodrow W. Wilkerson, Superintendent of Public Instruction of the Commonwealth of Virginia and County School Board of Prince Edward County, Virginia, and T. J. McIlwaine, Division Superintendent of Schools of said County, Appellees.

Avis M. PETTAWAY et al., etc., Appellees, v. COUNTY SCHOOL BOARD OF SURRY COUNTY, VIRGINIA, and M. B. Joyner, Division Superintendent of Schools of Surry County, Virginia, Appellants.

Avis M. PETTAWAY et al., etc., Appellees, v. BOARD OF SUPERVISORS OF SURRY COUNTY, W. E. Seward, Jr., Clifton M. Ellis, Jr., and J. A. Savedge, and A. T. Sowder, Treasurer of Surry County, Appellants.

Avis M. PETTAWAY et al., etc., Appellees, v. STATE BOARD OF EDUCATION OF THE COMMONWEALTH OF VIRGINIA and Woodrow W. Wilkerson, Superintendent of Public Instruction of the Commonwealth of Virginia, Appellants.

Avis M. PETTAWAY et al., etc., Appellees, v. Harvey J. BABB, R. Merrill Seward, Sidney G. Judkins and Lewis M. Berryman, individually and as the parent and natural guardian of children as named in their Motion to Intervene, individually and on behalf of said children, Appellants.

Nos. 9597, 9646-9649.

United States Court of Appeals Fourth Circuit.

Argued November 4, 1964.

Decided December 2, 1964.

William L. Marbury, Sp. Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, R. D. McIlwaine, III, Asst. Atty. Gen. of Virginia, Frederick T. Gray, Sp. Asst. Atty. Gen., of Virginia, and Lewis A. Noonberg, Baltimore, Md., on the brief), for State Board of Education and Superintendent of Public Instruction of Commonwealth of Virginia, appellees in No. 9597 and appellants in No. 9648; S. W. Tucker and Henry L. Marsh, III, for appellants in No. 9597 and appellees in Nos. 9646, 9647, 9648 and 9649; and J. Segar Gravatt, Sp. Counsel (Wm. F. Watkins, Jr., Commonwealth's Atty. of Prince Edward County, on the brief), for appellee Board of Supervisors of Prince Edward County in No. 9597 and appellants Board of Supervisors of Surry County, its members, and A. T. Sowder, Treasurer of Surry County in No. 9647 (Ernest W. Goodrich, Commonwealth's Atty. of Surry County, on the brief), and counsel for appellants in No. 9649. John F. Kay, Jr., C. F. Hicks, Denny, Valentine & Davenport, and DeHardit, Martin & Hicks on brief for appellees County School Board of Prince Edward County, Virginia, and T. J. McIlwaine, Division Superintendent of Public Schools of Prince Edward County, Virginia, in No. 9597. John F. Kay, Jr., Counsel, and Denny, Valentine & Davenport, of counsel, on the brief, for County School Board of Surry County, its members, and M. B. Joyner, Division Superintendent of Schools, appellees in No. 9646.

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

SOBELOFF, Chief Judge:

Reaction to the decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), has taken a variety of forms throughout the country. In the present appeals we are called upon to examine certain procedures adopted in two counties in Virginia — Prince Edward and Surry. Since the cases have common issues, they were consolidated for argument and will be considered together in this opinion.

I.

The early history of the Prince Edward County litigation is set forth in the Supreme Court's opinion in Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). By the summer of 1959, much of Virginia's "massive resistance" legislation had been invalidated by the Supreme Court of Appeals of Virginia as violative of the Constitution of the Commonwealth,¹ and simultaneously declared by a three-judge district court to be contrary to the Constitution of the United States.² The officials of Prince Edward County were then faced with an order of the District Court made pursuant to this court's direction that the County School Board be required to make plans for the admission of pupils without regard to race.³ Rather than obey the order, the officials decided to close the county schools.

For five years the school doors did not reopen. The county made no provision whatever for the education of Negro children; white children attended segregated Foundation schools financed largely by state and county tuition grants to the parents.

The appellants in No. 9597 (Prince Edward County case) instituted their supplemental complaint on September 16, 1960, to enjoin the defendants from refusing to operate an efficient system of public free schools in Prince Edward County; from spending public funds for the direct or indirect support of private segregated schools; from spending public funds in aid of the attendance of any child at a private segregated school; from crediting any taxpayer for contributions to such schools; or from conveying public school facilities to any private party.

Pursuant to his opinion of August 23, 1961, District Judge Lewis issued an order on November 16, 1961, restraining the defendants "from approving and paying out any county funds purportedly authorized by the so-called `grant in aid' ordinance," and "from allowing any tax credits purportedly authorized by the so-called `tax credit' ordinance," during "such time as the public schools of Prince Edward County remain closed." The court further ordered that no application for state scholarships be processed "so long as the public schools" remain closed. Decision on the legality of the closing of the public schools was withheld to await the Virginia courts' determination of that question.

A year having passed without a resolution of this question, Judge Lewis on October 10, 1962, ordered that the county public schools be reopened. This order was affirmed on May 25, 1964, by the Supreme Court in Griffin v. School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).

Promptly thereafter, on June 5, the parties were advised by Judge Lewis of his intention to enter a decree on June 17, 1964. He directed county and state officials to advise him by June 15 of preparations being made for the reopening of the county's public schools. The Prince Edward Board of Supervisors answered on June 15 that "it has not appropriated any funds * * * and does not intend to make such appropriation prior to the meeting scheduled with the court on June 17, 1964." The Supervisors also asked "advice with respect to the amount of local funds which the Court would deem appropriate."

Included in the Supervisors' answer was an inquiry as to the possible penalties for noncompliance.

In their response the County School Board informed the court that plans were being made to reopen the public schools for approximately 1600 pupils. The school age population, however, was over twice that number, 1600 being the approximate number of Negro children alone.

The scheduled hearing was held on June 17, and the Board of Supervisors was ordered to appropriate, by June 25, 1964, such "County funds as are reasonably necessary for the opening and maintenance of the public schools * * * on a non-discriminatory basis." The court refused to enter an order restraining the defendants from employing school personnel in a discriminatory fashion, taking the view that "the subject matter is clearly beyond the scope of the pleadings in this case."

The Board of Supervisors' response to the court's order to appropriate such funds as are "reasonably necessary" came on June 23, 1964, when it appropriated $189,000 to reopen and maintain the public schools expected to accommodate approximately 1600 Negro children. At the same meeting, the Supervisors allotted $375,000 for 1964-65 tuition grants for an approximately equal number of white students expected to attend "private" schools.

The plaintiffs, on June 29, moved the court to alter or amend its judgment of June 17, 1964, by permanently enjoining the processing of tuition grants, and specifically forbidding discrimination in teacher employment or assignment. They further requested the court to order the Supervisors to appropriate funds sufficient to reopen the public schools to all the children of the county on a non-discriminatory basis.

Two days later, on July 1, the State Board of Education passed a resolution authorizing retroactive reimbursement to Prince Edward parents who had paid tuition for their children's attendance at private schools during the 1963-64 school year, when public schools were closed. This candid declaration by the State Board of its intentions in respect to 1963-64 tuitions naturally alarmed the plaintiffs. They requested an immediate hearing on their motion or a temporary restraining order to preserve the status quo. The court fixed July 9 as the hearing date but declined to issue a temporary restraining order.

Fearing that the Board might pay out the money before July 9, the plaintiffs sought and obtained from Circuit Judge J. Spencer Bell an order on July 2 restraining the payment of retroactive grants "until this matter shall have been heard in the District Court at the hearing set for July 9, 1964, * * * and further until an appeal * * * from such order shall be heard in this court." On the date set for the hearing in the District Court, the defendants consented to a permanent injunction against the payment of either county or state tuition grants in reimbursement for tuition costs incurred during the 1963-64 school year. The District Court entered no injunction against payment of tuition grants for future years, being of the opinion that the Supreme Court's mandate did not compel the issuance of such...