Jones v. School Board of City of Alexandria, Virginia, 7897.

• Decision Date: 20 April 1960
• Docket Number: No. 7897.,7897.
• Citation: 278 F.2d 72
• Parties: Otis E. JONES and Betty Jo Jones, infants, by Leora Jones, their mother and next friend, et al., Appellants, v. SCHOOL BOARD OF CITY OF ALEXANDRIA, VIRGINIA, a body corporate, and T. C. Williams, Division Superintendent of Schools of the City of Alexandria, Virginia, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

278 F.2d 72 (1960)

Otis E. JONES and Betty Jo Jones, infants, by Leora Jones, their mother and next friend, et al., Appellants, v. SCHOOL BOARD OF CITY OF ALEXANDRIA, VIRGINIA, a body corporate, and T. C. Williams, Division Superintendent of Schools of the City of Alexandria, Virginia, Appellees.

No. 7897.

United States Court of Appeals Fourth Circuit.

Argued October 13, 1959.

Decided April 20, 1960.

Frank D. Reeves, Washington, D. C. (Oliver W. Hill, Richmond, Va., Otto L. Tucker, Alexandria, Va., Spottswood W. Robinson, III, Richmond, Va., and James M. Nabrit, III, Washington, D. C., on brief), for appellants.

John Barton Phillips, Alexandria, Va., A. S. Harrison, Jr., Atty. Gen., of Virginia, (Earl F. Wagner, Alexandria, Va., and R. D. McIlwaine, III, Asst. Atty. Gen., of Virginia, on brief), for appellees.

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

PER CURIAM.

The applications of fourteen Negro children, through their parents, to the School Board of the City of Alexandria, Virginia, to be transferred from colored to white schools in the city gave rise to this litigation. The School Board rejected all of the applications and the plaintiffs brought this suit, alleging that the actions of the Board had been taken pursuant to the policy of segregating the races in the public schools in the city and praying that the Board be enjoined from pursuing this policy and also for further relief. After a hearing the District Judge ordered that nine of the students should be admitted to the schools of their choice at the opening of the schools on February 10, 1959, and refused the suggestion of the defendants that the admissions be deferred until the commencement of the next session of the schools in September, 1959. The judge, however, denied the motion of five of the applicants for further relief on the ground that they were disqualified to enter the desired school because of residence or academic deficiency. The Board did not appeal from the order admitting the nine children and the case comes to this court only on the appeal of the remaining five children.

Common to all of the cases is the contention that the action of the School Board in rejecting the applications was based solely on racial grounds. They complain of the formulation and enforcement of a resolution adopted by the School Board on October 28, 1958, governing the assignment of pupils applying for transfer or initial enrollment in the public schools of the city, under which the School Board purported to act in passing upon the application for the transfers in suit.¹ The gist of the complaint is that the action of the School Board was designed and applied in such a way so as to continue the existing segregated school system, thus depriving the Negro children of their constitutional rights.

The resolution of the Board declared that the plan would be administered on a racially nondiscriminatory basis and that certain criteria would be considered in making the assignment of any pupil to any of the public schools of the city. These criteria were described as follows in the opinion of the District Judge:

"* * * Its factors were: (1) `Relation of residence location of the pupil with reference to schools, or school, applied for.\'; (2) `State of enrollment conditions in the schools concerned in any case, or cases, under discussion.\'; (3) `Academic achievement and mental capacity as these factors enter into conclusions on requests for entry or transfer.\'; (4) `Factors involving the health and/or well-being of the applicant which may have a bearing on the request from him.\'; (5) `Any factors which might affect the mental or emotional stability of the applicant so much as to become pertinent in placement determination.\'; and (6) `Is the applicant a bona fide resident of the city and actually entitled to attend school here.\'

"Factors 4 and 6, supra, were not used by the Board at all. Mental or emotional stability, factor 5, invoked by the Board in every case, has been discarded by the court throughout, for under the evidence No. 5 is not apposite to any of the applications. This leaves for consideration Nos. 1, 2 and 3 pertaining, respectively, to residence-school locations, school building capacities and academic-mental attainments."

The District Judge also found, as to the children who were refused admission to white schools on the basis of overcrowding, that the ratio of enrollment to capacity in the schools applied to was not so great as to justify any exclusion for the proposed slight increase. Of the five appellants, whom the judge found disqualified under the above criteria, two were denied transfer on the basis of their mental capacity and attainment and three because they resided closer to the Negro high school they had been attending than to the white school to which they sought enrollment. Therefore, it is only the scholarship and residence criteria with which we are concerned in this appeal.

It is not contended by the appellants that residence and intelligence or scholarship attainment tests may never be properly applied in determining the particular schools that children shall attend. Such criteria are in effect in many school systems throughout the country. In the absence of a showing that these factors are used in such a way as to deprive individuals of their consitutional rights, they are, of course, not objectionable on constitutional grounds. See Shuttlesworth v. Birmingham Board of Education, D.C., 162 F.Supp. 372, affirmed 358 U.S. 101, 79 S.Ct. 221, 3 L.Ed. 2d 145. The objection in the instant case is that the criteria were applied in such a way as to circumvent the constitutional requirement that a state shall not maintain its school system on a racially segregated basis. If this were true, it would be dispositive of the case and completely justify the appeal. However, the peculiar facts shown by this record do not sustain the charge. When the resolution was adopted the administrative officials of the public schools of Virginia were confronted with an extremely difficult situation and the School Board of Alexandria did not immediately place the resolution or the criteria into effect. To have done so would have occasioned the seizure and closure of each school to which biracial assignments were made. Virginia's "Massive Resistance Laws" had not then been declared unconstitutional. They required Virginia's Governor to seize and close any school to which biracial assignments were made, and this he had done in Norfolk.² It was only after those laws were declared unconstitutional by Virginia's Supreme Court of Appeals³ and by a federal three-judge district court⁴ that the school board had the power to operate schools administered on a racially nondiscriminatory basis. Those decisions did not come down until January 19, 1959.

A hearing was held in this case only four days later, on January 23, 1959, during which the District Judge ordered the School Board to consider and act upon the applications of the fourteen plaintiffs. On the same day,...