Kier v. County School Board of Augusta County, Virginia

• Decision Date: 05 January 1966
• Docket Number: No. 65-C-5-H.,65-C-5-H.
• Citation: 249 F. Supp. 239
• Parties: Terry KIER, etc., et al., Plaintiffs, v. COUNTY SCHOOL BOARD OF AUGUSTA COUNTY, VIRGINIA, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

249 F. Supp. 239

Terry KIER, etc., et al., Plaintiffs, v. COUNTY SCHOOL BOARD OF AUGUSTA COUNTY, VIRGINIA, et al., Defendants.

No. 65-C-5-H.

United States District Court W. D. Virginia, Harrisonburg Division.

January 5, 1966.

S. W. Tucker, Tucker & Marsh, Richmond, Va., Jack Greenberg, James M. Nabrit, III, New York City, for plaintiffs.

W. B. Timberlake, Jr., Timberlake, Smith & Thomas, Staunton, Va., Henry T. Wickham, Tucker, Mays, Moore & Reed, Richmond, Va., for defendants.

MICHIE, District Judge.

This is a school integration suit brought as a class action on behalf of the infant plaintiffs and others similarly situated, all Negro students in the public schools of Augusta County, Virginia, by their parents and next friends, residents and taxpayers of the county, against the County School Board and Superintendent of Schools. The cause came on for hearing before the Court on August 27, 1965.

Geographically Augusta County is located in the Shenandoah Valley of Virginia. Much of its area lies within the George Washington National Forest, and it is bordered on the west by Highland County, Virginia, and the West Virginia state line. As is the case in most of the Valley area, the Negro population of Augusta County is quite small. Of a total of over 10,000 school children in the county, only slightly over 500, or five per cent, are Negro.

The facts presented for the Court's consideration are not complicated. The defendant school authorities presently operate 19 elementary schools, one junior high or "intermediate" school (serving grades six through nine for students residing in the northwest section of the county), and five high schools. Of these schools, two elementary schools, the Cedar Green Elementary School and the Oak Grove Elementary School, and one high school, Central Augusta High, must be classified as "Negro schools" in that all students and teachers in these schools are Negroes.¹ Indeed, the Superintendent of Schools testified that Central Augusta was constructed in 1962 specifically for use as a "Negro school." It is this situation to which the plaintiffs object.

Prior to the current 1965-66 school session, a small number of Negro students, approximately eighteen, were in attendance in formerly all-white schools pursuant to their requests for transfer or initial enrollment. In preparation for the 1965-66 session the school authorities in Augusta took their first affirmative steps to bring about a legal desegregation of the county's schools. In an attempt to comply with the requirements of the Office of Education, United States Department of Health, Education and Welfare, for the distribution of federal funds for education, the County School Board submitted its "Statement of Policies and Plans for Compliance Under Title VI of the Civil Rights Act of 1964" on May 28, 1965. The plan, in essence, provided for a three-year period of desegregation, beginning in the current school year, on a "freedom of choice" basis. For 1965-66 each parent or guardian of a pupil who would be in the first, seventh, ninth or twelfth grades was informed that his child might be enrolled in any school in the county serving that grade. After notice and time to decide which school his child should attend, the parent or guardian was required to affirmatively select the school. The school authorities then assigned students to the chosen schools up to the maximum capacity of the facilities. In the event of overcrowding in any particular facility, proximity to the school's location was to be the determining factor. In those grades other than the four in which an affirmative choice was required, all students were to be routinely reassigned to the school which they attended in the prior school year. Parents or guardians might request a transfer for their children, but it would be up to these individuals to take the initiative in changing schools.

The plan provided that four additional grades would be placed on freedom of choice in 1966-67, and the last four grades would be similarly treated in 1967-68.

Prior to the promulgation of this plan the plaintiffs had instituted suit here. The plan was accordingly presented to the Court for approval at the hearing. However, on November 23, 1965, I was advised by letter from counsel for the defendants that the Augusta County School Board had amended its plan as originally submitted in order to comply with the requirements of the Department of Health, Education and Welfare. The entire student population of Augusta County has now been re-registered under the freedom of choice plan and the Department has approved the program. The issue now pending before me, therefore, is the constitutional merit of this plan which has allowed freedom of choice to every student in Augusta County.

I must, at the outset, reject the basic premise upon which the plaintiffs have chosen to press their cause. The plaintiffs contend that freedom of choice, per se, is not constitutionally acceptable as a final plan of desegregation where there are no administrative difficulties barring the way to complete integration on a unitary geographic basis. Freedom of choice, they argue, is defensible only where its practical result is the effectuation of a better "balance" between the races in a given school district, i. e., where freedom of choice can overcome the problem of de facto segregation in urban areas with clearly delineated Negro communities. Such was the situation to which the Court addressed itself in Taylor v. Board of Education, 294 F.2d 36 (2d Cir.), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961), where the principle of freedom of choice was approved. In Augusta County, the plaintiffs assert, there are no such problems of de facto segregation, and therefore there is no justification for freedom of choice in the instant case.

The plaintiffs' argument, however, whatever its merit, is addressed to the wrong forum. "A system of free transfers is an acceptable device for achieving a legal desegregation of schools. * * * Imposed discrimination is eliminated as readily by a plan under which each pupil initially assigns himself as he pleases as by a plan under which he is involuntarily assigned on a geographic basis." Bradley v. School Bd., 345 F.2d 310, 318-319 (4th Cir. 1965), vacated and remanded on other grounds, 86 S.Ct. 224 (1965). The decision of the Fourth Circuit is, of course, binding on me, and I have previously applied the rule of Bradley to approve freedom of choice as a plan of desegregation in Frederick County, Virginia. Brown v. County School Bd., 245 F.Supp. 549 (W.D.Va.1965). The percentage of Negroes to total population in Frederick County was smaller even than the percentage in Augusta County, and, as here, the Negro community was spread throughout the county. A geographic plan could therefore have been utilized in Frederick County with minimal difficulty to bring about complete integration. It is significant to note that the Court of Appeals, in remanding an earlier decision in the Frederick County case, had specifically stated that the schools might be operated under a system of free assignments and free transfers (freedom of choice). Brown v. County School Bd., 346 F.2d 22, 23 (4th Cir. 1965). It is true that the school authorities in Frederick County informed this Court that they would change over to a strictly geographic plan after an additional year of freedom of choice, but the interim nature of the freedom of choice plan was not essential to its approval. Such is the teaching, as I understand it, of the majority opinion in Bradley.

As I remarked in the Frederick County opinion, the acceptability of freedom of choice as a device for legal desegregation is but a corollary of the principle that the Fourteenth Amendment does not prohibit voluntary separation of the races, but only discrimination which forces separation. This principle was first enunciated by Circuit Judge Parker in Briggs v. Elliott, 132 F.Supp. 776, 777 (E.D.S.C.1955) (Three-Judge Court). Stated differently, the principle simply means that school authorities have the right to be "color blind" so far as Fourteenth Amendment requirements are concerned, i. e., they are under no constitutional duty to bring about a general intermixture of the races or any particular "racial balance" in the public schools. As such, the principle has been consistently reaffirmed in this circuit. See, e. g., Bradley v. School Bd., 317 F.2d 429, 438 (4th Cir. 1963); Jeffers v. Whitley, 309 F.2d 621, 629 (4th Cir. 1962). In a wide spectrum of factual contexts the same proposition has found support in other circuits. E. g., Rogers v. Paul, 345 F.2d 117, 124-25 (8th Cir. 1965), vacated and remanded on other grounds, 86 S.Ct. 358 (1965); Downs v. Board of Educ., 336 F.2d 988, 998 (10th Cir. 1964), cert. denied, 380 U.S. 914, 85 S.Ct. 898, 13 L.Ed.2d 800 (1965); Stell v. Savannah-Chatham County Bd., 333 F.2d 55, 59 n. 2 (5th Cir.), cert. denied, 379 U.S. 933, 85 S. Ct. 332, 13 L.Ed.2d 344 (1964); Evers v. Jackson Municipal Separate School Dist., 328 F.2d 408, 410 (5th Cir. 1964); Bell v. School City, 324 F.2d 209, 213 (7th Cir. 1963), cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964); Taylor v. Board of Educ., 294 F.2d 36, 47 (2d Cir.) (dissenting opinion), cert. denied, 368 U.S. 940, 82 S. Ct. 382, 7 L.Ed.2d 339 (1961); Kelley v. Board of Educ., 270 F.2d 209, 226 (6th Cir.), cert. denied, 361 U.S. 924, 80 S. Ct. 293, 4 L.Ed.2d 240 (1959).

There is substantial authority to the contrary.² The plaintiffs place reliance upon the statement by Judge Wisdom in Singleton v. Jackson Municipal Separate School Dist., 348 F.2d 729, 730 n. 5 (5th Cir. 1965), that Judge Parker's utterance in Briggs v. Elliott "should be laid to rest" as "inconsistent with Brown Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and the later development of decisional and statutory law in the area of civil rights." Judge...