Griffin v. State Board of Education, Civ. A. No. 4075.

• Decision Date: 11 February 1969
• Docket Number: Civ. A. No. 4075.
• Citation: 296 F. Supp. 1178
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Cochyese GRIFFIN et al., Plaintiffs, v. STATE BOARD OF EDUCATION et al., Defendants.

296 F. Supp. 1178

Cochyese GRIFFIN et al., Plaintiffs, v. STATE BOARD OF EDUCATION et al., Defendants.

Civ. A. No. 4075.

United States District Court E. D. Virginia, Richmond.

Argued January 23, 1969.

Decided February 11, 1969.

S. W. Tucker and Henry L. Marsh, III, Richmond, Va., for plaintiffs. (Jack Greenberg and James M. Nabritt, III, New York City, on the brief).

William L. Marbury, Sp. Asst. Atty. Gen., Virginia, Baltimore, Md., Robert Y. Button, Atty. Gen. of Virginia, R. D. McIllwaine, III, Asst. Atty. Gen. of Virginia, Richmond, Va., and Lewis A. Noonberg, Baltimore, Md., of counsel, for defendants, State Board of Education of the Commonwealth of Virginia and Woodrow W. Wilkerson, Superintendent of Public Instruction.

J. Segar Gravatt, Blackstone, Va., as Special Counsel and Thomas Stark, III, Commonwealth's Atty., for Amelia County, Amelia, Va., for defendant, Board of Supervisors of Amelia County.

J. Segar Gravatt, Blackstone, Va., as Special Counsel and L. J. Hammack, Jr., Commonwealth's Atty., for Brunswick County, Lawrenceville, Va., for defendant, Board of Supervisors of Brunswick County.

J. Segar Gravatt, Blackstone, Va., as Special Counsel and Douglas S. Mitchell, Commonwealth's Atty., for King and Queen County, West Point, Va., for defendant, Board of Supervisors of King and Queen County.

J. Segar Gravatt, Blackstone, Va., as Special Counsel and William R. Blandford, Commonwealth's Atty., for Powhatan County, Powhatan, Va., for defendant, Board of Supervisors of Powhatan County.

J. Segar Gravatt, Blackstone, Va., as Special Counsel and William F. Watkins, Jr., Commonwealth's Atty., for Prince Edward County, Farmville, Va., for defendant, Board of Supervisors of Prince Edward County.

J. Segar Gravatt, Blackstone, Va., as Special Counsel and Ernest W. Goodrich, Commonwealth's Atty., for Surry County, Surry, Va., for defendant, Board of Supervisors of Surry County.

J. Segar Gravatt, Blackstone, Va., as Special Counsel and John F. Ewell, Commonwealth's Atty., for Warren County, Front Royal, Va., for defendant, Board of Supervisors of Warren County.

W. Clyde Gouldman, II, City Atty., Charlottesville, Va., for defendant, Council of the City of Charlottesville.

Leonard H. Davis, City Atty., Thomas R. McNamara, and Marshall T. Bohannon, Jr., Norfolk, Va., for defendant Council of the City of Norfolk, Virginia.

D. B. Marshall, Charlottesville, Va., and Geo. Stephen Leonard, Washington, D. C., for intervenors, E. J. Martin, and another.

Before BRYAN and BUTZNER, Circuit Judges, and HOFFMAN, District Judge.

ALBERT V. BRYAN, Circuit Judge:

The present and past school tuition grant laws of Virginia¹ are again assailed as violative of the equal protection clause of the Fourteenth Amendment². In Griffin v. State Board of Education, 239 F.Supp. 560 (E.D.Va.1965) we quoted and enumerated the enabling authority and implementing statutes as well as the mechanics of distributing the moneys. No repetition is warranted, save a reminder of the then and current provision, viz.,

"Every child in this Commonwealth between the ages of six and twenty who has not finished or graduated from high school, and who desires to attend a nonsectarian private school located in or outside, or a public school located outside, the locality in which such child resides shall be eligible and entitled to receive a State scholarship in the amount of one hundred and twenty-five dollars per school year, if attending an elementary school and one hundred fifty dollars if attending a high school".³

A matching amount is payable by or imposable upon the local governments.⁴

I. In Griffin, supra, we upheld the Virginia laws. No racial discrimination was contained in their terms; children of every color were eligible to receive the benefits. There was no cunning denial, or diminution or discouragement of participation because of the fact that the applicant happened to be a non-white. Moreover, the touch of the State with the private school was negligible. Invidious purpose or intent was not demonstrable; we saw the plan as "an open, unmasked appropriation and disbursement of public moneys for a legitimate public function without reference to race".

Nevertheless, the court acknowledged that the plan could readily be converted into a contrivance for circumventing the established denouncement of public school racial segregation. This evil, we noted, would be effected if tuition moneys were fed into a private school or schools to such extent that they tended "in a determinative degree to perpetuate segregation". Without question by appellate review, we have since 1965 judged, and adjured the public authorities to judge, on this gauge when and where the tuitioners were in truth scoff-laws.

In 1968, however, a more exacting test was impliedly enunciated by the Supreme Court. As a precedent paramount for us, the Court holds in our reading that the validity of a tuition plan is to be tried on a severer issue: whether the arrangement in any measure, no matter how slight, contributes to or permits continuance of segregated public school education. This pronouncement is uncompromisingly dictated in the Court's approval of the decrees striking down the tuition grant laws of Louisiana and South Carolina. Those judgments were delivered in Poindexter v. Louisiana Financial System Commission, 275 F.Supp. 833 (E.D.La., 3-judge, 1967) and J. Arthur Brown v. South Carolina State Board of Education, 296 F.Supp. 199 (D.S.C., 3-judge, May 1968). Testifying to the immediacy, thoroughness and completeness of the concurrence, both decisions were confirmed on motion without oral argument. Vide, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968) and 393 U.S. 222, 89 S.Ct. 449, 21 L.Ed.2d 391. It is fair to say that the statutes of these two States are not so unlike Virginia's as to require a narration of their terms.

The test we now ascribe to the Supreme Court is derived through the instructive and comprehensive writing of the District Courts in South Carolina State Board, supra 296 F.Supp. 199, and Poindexter, supra, 275 F.Supp. 833. The historical background of the South Carolina Act was seen by the trial court to reveal a purpose, motive and effect to override the constitutional exclusion of segregation from public schools. In addition to its independent and squarely put legal conclusions, the Court largely relied on Poindexter.

Poindexter, in its reflective review of Lee v. Macon County, 267 F.Supp. 458 (M.D.Ala.1967) and other pertinent authorities —and now with the confirmation of the Supreme Court—found obnoxious and impermissible any "significant involvement" by the State in the subsistence of a segregated school. Altogether understandably, the Louisiana District Court disavowed any attempt "to devise a formula" for ascertaining the existence of "significant involvement". But it intimated no exceptions or forbearance in the test.

To repeat, our translation of the imprimatur placed upon Poindexter by the final authority is that any assist whatever by the State towards provision of a racially segregated education, exceeds the pale of tolerance demarked by the Constitution. In our judgment, it follows, that neither motive nor purpose is an indispensable element of the breach. The effect of the State's contribution is a sufficient determinant, with effect ascertained entirely objectively. There is no room for an inquiry of quo animo, cf. Griffin v. Illinois, 351 U.S. 12, 17, fn. 11, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

Against these criteria the Virginia statutes cannot stand. Indisputably, the State supplies the money; it comes from the public treasury; it goes to individual residents who may expend it for a segregated classroom. Thus, the Virginia payments are made available to help in giving life to an educational forum decried by the Federal Constitution. Possible misuse is a factor to be weighed. Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).

An absolute and unequivocal prohibition is the logical effectuation of the intendment flowing from the recent rulings of the Supreme Court. Unless they are so interpreted, endless tribulation and trial can ensue. What percentage, if any, of the recipient school's expense is immune from condemnation would involve a reckoning with many variables. Constant and uniform factors would have to be assigned, fractional calculations made, allowances conceded for diverse conditions and a host of other items appraised. The process is too complex to be practicable.

The latter consideration defeats the assertion, for the validity of the statute, that grants can in individual instances be employed without fostering segregation. This supposition accepted, still the canvassing and policing of the tuition law to confine its enjoyment to such instances would be a Herculean task. It could hardly give full assurance against the abuse of the law. A law may, of course, survive despite its unacceptable consequences, if the valid portions may be independently enforced. Here, as we see, there can be no such separation and the entire law must go.

We declare the statutes now to be of no vitality.

II. A liminal point made against the right of the plaintiffs to pursue this action rested on principles of res judicata or estoppel by judgment. The argument fails. Res judicata or estoppel cannot be pleaded successfully, for the decree of 1965 may...