School Board of City of Newport News, Va. v. Atkins, 7430
| Decision Date | 13 July 1957 |
| Docket Number | 7438.,No. 7430,7430 |
| Citation | 246 F.2d 325 |
| Parties | The SCHOOL BOARD OF the CITY OF NEWPORT NEWS, VIRGINIA, and R. O. Nelson, Division Superintendent of Schools of the City of Newport News, Virginia, Appellants, v. Jerome A. ATKINS et al., Appellees. The SCHOOL BOARD OF the CITY OF NORFOLK, VIRGINIA, and J. J. Brewbaker, Division Superintendent of Schools of the City of Norfolk, Virginia, Appellants, v. Leola Pearl BECKETT et al., Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
T. Justin Moore, Richmond, Va. (Harry L. Nachman, City Atty., Newport News, Va., Archibald G. Robertson, John W. Riely, T. Justin Moore, Jr., Richmond, Va., on the brief), for appellants in No. 7430. W. R. C. Cocke, Norfolk, Va. (Leonard H. Davis, City Atty., Leigh D. Williams, Norfolk, Va., on the brief), for appellants in No. 7438. J. Lindsay Almond, Jr., Atty. Gen. of Virginia (Henry T. Wickham, Sp. Asst. to Atty. Gen. of Virginia, on the brief), for appellants in both cases.
Spottswood W. Robinson, III, Oliver W. Hill, Richmond, Va., for appellees in both cases (W. Hale Thompson, Philip S. Walker, Newport News, Va., on the brief for appellees in No. 7430; Victor J. Ashe, J. Hugo Madison, Norfolk, Va., Thurgood Marshall, New York City, on the brief, for appellees in No. 7438).
Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.
These are appeals from injunctive decrees forbidding racial discrimination in the public schools of Norfolk and Newport News, Virginia, and are controlled in all material respects by our decision in the City of Charlottesville and Arlington County cases. School Board of City of Charlottesville, Virginia v. Allen, 4 Cir., 240 F.2d 59, certiorari denied 353 U.S. 910, 77 S.Ct. 667, 1 L.Ed. 2d 664. It is argued that, on the authority of Carson v. Warlick, 4 Cir., 238 F.2d 724, the cases here should be dismissed or proceedings therein be stayed until administrative remedies have been exhausted under the recent Pupil Placement Act, ch. 70, Acts of Assembly of Virginia, Extra Session 1956. As pointed out by the judge below, however, this statute furnishes no adequate remedy to plaintiffs because of the fixed and definite policy of the school authorities with respect to segregation and because of the provisions of chapter 68 of the Acts of the Extra Session, which provide for the closing of schools and withdrawal therefrom of state funds upon any departure from this policy in any school. Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156, 162, certiorari denied 77 S.Ct. 1380.
It is argued that the court was without jurisdiction of the cases and that only a three-judge court would have had jurisdiction because the constitutional validity of the Pupil Placement Act was involved. This question was not raised, however, in the applications for injunction, which were filed before the passage of that act and which merely sought the protection of constitutional rights in a suit for the hearing of which a court of three judges was not required. Davis v. County School Board of Prince Edward County, D.C., 142 F.Supp. 616. After the passage of the act motion was made to dismiss the cases on the ground that the act provided an administrative remedy which had not been exhausted. The trial judge held, as to this, that the act did not provide an adequate administrative remedy and that it was unconstitutional when considered in connection with other statutes passed at the same time and its manifest purpose. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220. As no injunction was asked or granted against the enforcement of the act or the officials charged with its enforcement, a case for the constitution of a three-judge court was not presented, even though the constitutionality of an act relied on in the motion to dismiss was involved. 28 U.S.C. § 2281; Bush v. Orleans Parish School Board, D.C., 138 F.Supp. 336; Id., D.C., 138 F.Supp. 337, 341, affirmed 5 Cir., 242 F.2d 156, 164-165, certiorari denied 77 S.Ct. 1380. For like reason, there is no occasion to stay proceedings pending action by the Supreme Court of Appeals of Virginia on a case involving the validity of the act.
It should be noted that the decrees...
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