Hill v. School Board of City of Norfolk, Virginia

• Decision Date: 09 September 1960
• Docket Number: No. 8053.,8053.
• Citation: 282 F.2d 473
• Parties: Julia Elizabeth HILL, an infant, by Geneva B. Hill, her mother and next friend, et al., Appellants, v. SCHOOL BOARD OF CITY OF NORFOLK, VIRGINIA, and J. J. Brewbaker, Division Superintendent of Schools of the City of Norfolk, Virginia, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

282 F.2d 473 (1960)

Julia Elizabeth HILL, an infant, by Geneva B. Hill, her mother and next friend, et al., Appellants, v. SCHOOL BOARD OF CITY OF NORFOLK, VIRGINIA, and J. J. Brewbaker, Division Superintendent of Schools of the City of Norfolk, Virginia, Appellees.

No. 8053.

United States Court of Appeals Fourth Circuit.

Argued April 22, 1960.

Decided September 9, 1960.

Spottswood W. Robinson, III, Richmond, Va. (Victor J. Ashe, J. Hugo Madison, Joseph A. Jordan, Jr., Norfolk, Va., Oliver W. Hill, Richmond, Va., and Thurgood Marshall, New York City, on brief), for appellants.

Leonard H. Davis, Norfolk, Va. (Leigh D. Williams and W. R. C. Cocke, Norfolk, Va., on brief), for appellees.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

PER CURIAM.

The Norfolk Virginia school case is again before us. In other aspects, it has been frequently before the District Court and three times in this court.¹

In its opinion of May 8, 1959, the District Court, 181 F.Supp. 870, in accordance with the decision in Shuttlesworth v. Birmingham Board of Education, 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed.2d 145, held certain pupil placement criteria and procedures adopted by the Norfolk School Board to be facially constitutional. Thereafter, the School Board, applying its criteria and procedures, granted the applications of some Negro pupils seeking admission into schools previously attended solely or predominantly by white pupils and denied the applications of other pupils seeking similar transfers. The School Board filed a report with the District Court to inform the District Judge of what it had done and of a conflict which had arisen between it and the State Pupil Placement Board.²

Thereafter the Court allowed additional pleadings in which the rejected applicants sought review of the action of the School Board insofar as it affected them.

The District Court found that two of the rejected applications had been denied on the basis of tests from which the School Board, "incorrectly, but not deliberately," had exempted white applicants similarly situated. On that account, it ordered their admission into the schools of their choice. A third child, whose application had been rejected by the School Board, was also ordered admitted temporarily upon a finding that the child was not responsible for the facts which seemed to the School Board to justify her exclusion. With these three exceptions, the District Court approved the action of the Norfolk School Board.

The unsuccessful applicants have brought this appeal to this court.

In its opinion of May 8, 1959, the District Court had found that the Norfolk School Board had been cooperative and was proceeding in a sincere effort to comply with the law. In approving the School Board's rejection of the applications of these appellants, the District Court found that the School Board had undertaken to apply its criteria and procedures honestly and fairly, and he concluded that the result, as an interim step "in an orderly transition period," was in compliance with the mandate of the Supreme Court in the original school cases.³ He retained jurisdiction of the case, as he has from the outset, for the entry of such further orders and the receipt of such further reports and pleadings as may be appropriate.

Under the order of the District Court, the testing program must be indiscriminately applied to pupils of all races at the time of promotion from the primary schools, and from the junior high schools to the senior high schools. This means that the concept of moving within a so-called "normal stream" based upon race can no longer be availed of in these situations; and that since the intelligence and geographical criteria are not being applied to white pupils on promotion from elementary to junior high schools or from junior to senior high schools, Negroes so promoted are entitled to enter such schools upon equal terms without the application to them of such criteria and tests. In other words, Negroes upon promotion to a mixed school or a formerly all white school may not be subjected to tests if white pupils being promoted to those same schools are not subjected to the same tests. Such movement out of a segregated to a non-segregated school is not to be deemed an "unusual circumstance" warranting treatment different from that accorded white pupils entering such schools.

However, assignments to the first grade in the primary schools are still on a racial basis, and a pupil thus assigned to the first grade still is being required to remain in the school to which he is assigned, unless, on an individual application, he is reassigned on the basis of the criteria which are not then applied to...