Griffin v. COUNTY SCHOOL BOARD OF PRINCE EDWARD CO., VA.

• Decision Date: 20 June 1966
• Docket Number: No. 10191.,10191.
• Citation: 363 F.2d 206
• Parties: Cocheyse J. GRIFFIN, Mignon D. Griffin, Naja D. Griffin and L. Francis Griffin, Jr., infants, by and through L. Francis Griffin, their father and next friend, and all other of the plaintiffs, Appellants, v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

363 F.2d 206 (1966)

Cocheyse J. GRIFFIN, Mignon D. Griffin, Naja D. Griffin and L. Francis Griffin, Jr., infants, by and through L. Francis Griffin, their father and next friend, and all other of the plaintiffs, Appellants, v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA, et al., Appellees.

No. 10191.

United States Court of Appeals Fourth Circuit.

Argued February 7, 1966.

Decided June 20, 1966.

Henry L. Marsh, III, Richmond, Va., (S. W. Tucker, Willard H. Douglas, Jr., Richmond, Va., and Otto L. Tucker, Alexandria, Va., on brief), for appellants.

J. Segar Gravatt, Blackstone, Va. (William F. Watkins, Jr., Farmville, Va., John F. Kay, Jr., Richmond, Va., C. F. Hicks, Gloucester, Va., Denny, Valentine & Davenport, Richmond, Va., and DeHardit, Martin & Hicks, Gloucester, Va., on the brief), for appellees.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN and BELL, sitting en banc.

ALBERT V. BRYAN, Circuit Judge:

A judgment of civil contempt upon the Board of Supervisors of Prince Edward County and its members is moved for by the appellants-plaintiffs. The ground of the motion is that the Board disbursed public funds to private segregated schools while the right to do so was under consideration by this court. A remedial order requiring the Board to restore these moneys to the County Treasurer is also asked. We grant the motion.

The episode developed in the enforcement of decrees of the District Court reopening the Prince Edward County public schools. The history of the litigation is laid out, ab ovo usque ad mala, in Griffin v. County School Board, 377 U.S. 218, 224, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). There the facts of the present controversy are related, commencing with the District Court's injunction dated November 16, 1961. This injunction was issued on the supplemental complaint of the Negro children and parents who were plaintiffs in the District Court and are the appellants here.

Specifically, the injunction commanded the Board and the State not to pay out further funds in tuition grants while the public schools of Prince Edward County remained closed. Allen v. County School Board, 198 F.Supp. 497, 503-504 (E.D. Va. August 25, 1961). The grants had been used for the support of Prince Edward County Educational Foundation, a privately organized corporation conducting a school for white children only. The Court refrained at the time from passing on the County's right to refuse to operate its public schools until the question could be ruled on by the State courts.

With no ruling in the State courts by the summer of 1962, the District Court resumed consideration of the issue, ordered the schools reopened and continued the injunction of tuition grants until the schools were reopened. Allen v. County School Board, 207 F.Supp. 349 (E.D.Va. July 25, 1962). On appeal this decree was stayed by the Court of Appeals awaiting decision in a case then pending in the Supreme Court of Appeals of Virginia. Griffin v. Board of Supervisors, 322 F.2d 332 (4 Cir. 1963). The abstention order was reversed in Griffin v. County School Board, supra, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256, and the injunction and reopening orders of the District Court approved. Upon receipt of the mandate, the District Court set a hearing for June 17, 1964 to formulate a decree thereon.

This hearing resulted in an order to Prince Edward's Board of Supervisors to appropriate, by June 25, 1964, such moneys as were reasonably necessary to open and maintain the public schools on a nondiscriminatory basis, beginning with the 1964 fall term. In obedience the Board arranged to open the public schools, voted appropriations for them and voted also a larger sum for 1964-65 session tuition grants. On June 29, 1964 the plaintiffs moved the District Court to enjoin permanently the processing of tuition grants and to require the Board to augment the sums available for public schools.

With the schools now open, on July 1, 1964 the State Board of Education authorized the reimbursement of parents, to the extent of the tuition grants enjoined for the 1963-64 session, for the amounts they had paid for their children's school attendance in private schools during that session. Thereupon, plaintiffs obtained a temporary injunction barring the payment retroactively of any tuition grants until the hearing on the motion for the permanent injunction, then set for July 9, 1964. The Board agreed to a permanent injunction of the proposed reimbursement of 1963-64 grants. However, the Court declined to enjoin future grants and an appeal was noted on July 17, 1964 to this refusal. On July 28, 1964 the appellants moved this court to accelerate the appeal.

As we were then not in session, the Chief Judge requested the Clerk to ask the Board of Supervisors to stipulate that no tuition grants would be paid pending the appeal. On August 4, 1964 the Clerk transmitted this message to the office of the Attorney General of Virginia. In reply the Clerk was told "during the late evening of August 4", that the Board would not make the stipulation. The next morning the Clerk explained that a satisfactory stipulation would be an agreement that the grants would not be paid before the normal time for processing and paying grants, that is not until after the private schools opened in September 1964.

Meanwhile, during the night of August 4 and early morning of August 5, 1964 the Board met and decided to enlarge substantially the tuition grants for the session 1964-65, and ordered that payment of one-half of the total grants be made before September 1, 1964. That night white parents were notified of the Board's action. Checks totalling about $180,000 were distributed before 9 o'clock A.M. and most of them cashed at that hour, August 5, 1964.

On August 13, 1964 in their appeal, the appellants moved to cite the Board for contempt of this court and for an order restoring the moneys distributed during the night and morning of August 4-5, 1964. After argument of the appeal in regular course, the District Court was directed to enjoin the Board from paying any tuition grants to send children to private schools so long as these schools remained segregated. Griffin v. Board of Supervisors, 339 F.2d 486, 493 (4 Cir. December 2, 1964).

Our decision did not pass upon the contempt motion, but remanded it to the District Court for "further inquiries into the facts surrounding the payments". The District Judge was authorized to consider also the charge of the appellants that the defendants had in effect paid 1963-64 grants retrospectively, by authorizing and paying increased amounts for 1964-65, and thus were in contempt of the District Judge's order of July 9, 1964.

Pursuant to the remittitur, the District Court on February 8, 1965 cited the individual members of the Board of Supervisors to show cause, if any, why they should not be held in contempt of the District Court for failure to comply with its injunction of July 9, 1964 against the retroactive payment of the 1963-64 grants. The rule came on for hearing April 23, 1965, at which time all of the parties in interest were present in person and represented by counsel. In addition to the facts heretofore recited, the District Judge made the following undisputed findings in regard to the questioned events of July and August 1964:

"The Board of Supervisors of Prince Edward County held a meeting on the morning of August 4, 1964 at which time Warren Scott and four of the Negro citizens appeared and filed an unsigned petition bearing ten hundred four typewritten names requesting that the Board of Supervisors allocate additional funds to be used for the purpose of public education. No action was then taken.

"Shortly after adjournment of the Board meeting, Supervisor Jenkins and Supervisor Steck met with a Mr. Taylor and other interested citizens for the purpose of finding a way to pay the \'64-\'65 tuition grants prior to the time the Court of Appeals could enter an order staying these payments. (It was then known to Mr. Jenkins and to the other members of the group that there had been discussions between Mr. Gray counsel for the State Superintendent of Public Instruction and Mr. Dean Clerk of the Court of Appeals in re the possibility of the County agreeing not to make any tuition grant payments during the pendency of the appeal.)

"The Commonwealth Attorney and two other members of the Board of Supervisors were then called. Those assembled agreed that if the Board of Supervisors would increase the tuition grants to $310.00 for high school and $290.00 for elementary school and authorize the immediate payment thereof, this could be done before the Court of Appeals could do anything about it.

"The four Board members and the Commonwealth Attorney then went to the home of the chairman of the Board of Supervisors to advise him of what they had in mind and to determine whether or not a special meeting of the Board of Supervisors could be called the next morning for the purpose of expediting the payment of the \'64-\'65 tuition grants. The chairman, after being advised by the Board\'s special counsel^* and the Commonwealth Attorney that such a resolution on the part of the Board of Supervisors would be legal, called a special meeting of the Board for 8:00 a. m. August 5th. At that meeting the Board passed the resolution which provided that the grants should be paid half on or before September 1, 1964 and half on or before January 1, 1965.

"In the interim, that is, between the meeting at Chairman Vaughan\'s house and eight o\'clock the next morning, Board Member Jenkins and other members of the citizens\' committee made arrangements to telephone the parents of the children then attending the Prince Edward School Foundation schools advising them if they came down that night and made application they could get half the tuition money that morning.

"Some twenty or thirty volunteers assisted the secretary of the Board in processing the

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