Thompson v. School Board of City of Newport News, Va., 74-1005.

• Decision Date: 31 May 1974
• Docket Number: No. 74-1005.,74-1005.
• Citation: 498 F.2d 195
• Parties: Frank V. THOMPSON et al., Appellants, v. The SCHOOL BOARD OF the CITY OF NEWPORT NEWS, VIRGINIA and George J. McIntosh, Division Superintendent of Schools for the City of New-port News, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

498 F.2d 195 (1974)

Frank V. THOMPSON et al., Appellants, v. The SCHOOL BOARD OF the CITY OF NEWPORT NEWS, VIRGINIA and George J. McIntosh, Division Superintendent of Schools for the City of New-port News, Appellees.

No. 74-1005.

United States Court of Appeals, Fourth Circuit.

Argued April 2, 1974.

Decided May 31, 1974.

James W. Benton, Jr., Richmond, Va. (Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, New York City, Henry L. Marsh, III, S. W. Tucker, Philip S. Walker and Hill, Tucker & Marsh, Richmond, Va., on brief), for appellants.

Robert V. Beale, Newport News, Va. (Bateman & Beale, Newport News, Va., and Panos A. Yeapanis, City Atty., for Newport News, Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting en banc.

PER CURIAM:

In Thompson v. School Board of City of Newport News, Va. (4th Cir. 1972) 465 F.2d 83, we remanded this proceeding, instituted to achieve the desegregation of the public schools of the City of Newport News, to the District Court with direction that the Court should consider and make findings on these two issues:

(1) Whether, after considering any alternate plan submitted by the plaintiffs, and taking into consideration the ages of the pupils involved, the problems of transportation and the educational program itself, any plan other than neighborhood zoning was practical for grades 1 and 2 in such school system?

(2) Whether groupings of grades 3, 4 and 5 in formerly identifiable white schools and grades 6 and 7 in formerly black identifiable schools under the plan of desegregation "were based on non-discriminatory grounds"?

I.

The District Court, on remand, held a hearing, allowed the plaintiffs to submit their alternative plan for the assignment of pupils in the first and second grades, and, after considering the evidence submitted in support of that alternative plan, found that it, prepared concededly without consideration of the difficulties of transportation "as a factor" and without any substantial familiarity with the school district's physical facilities or even special education programs, was neither "practical" nor "feasible".¹ It proceeded to review in some detail the facts developed in connection with the Board's plan for neighborhood assignment of pupils in these two grades both at previous hearings and at the hearing held after remand, and, on that record, it reaffirmed the neighborhood plan previously developed, basing such finding on "three factors—(1) the transportation problems within the city, (2) the educational process, and (3) the health and ages of the very young children who would be transported * * *." Such findings are not clearly erroneous and must be affirmed.

II.

The District Court was instructed, also, that on remand, it should make findings on whether the assignments of grades 3 to 7 "were based on non-discriminatory grounds." At the hearing held after remand, the School Board stated the reasons that led to its grouping of these grades. As explained by the school officials directly concerned in the drafting of the Board's plan, these reasons were:

"* * * Well, the original testimony pointed out the uniqueness of Newport News with regard to shape and the housing patterns that had developed in the city, the almost complete separation of the races.

With a ratio of thirty-six and a fraction to sixty-three and a fraction, or roughly 60-40 or three to two, it becomes obvious that if you are going to take two widely separated areas and mix them in any manner that would approach that, it is necessary to vacate 60 percent of the classrooms in the black area and 40 percent of the classrooms in the white area and transport to that enough blacks and whites to fill those classrooms and replace them.

So it became a three to two ratio.

Now, with five grades involved, that falls into a three to two pattern very readily. Anything else caused us— causes us very quickly to arrive at a point where we exchange white children for white children. So we tried to—this was why we originally selected two grades instead of three and had a two-five split to give us the three-two pattern.

The question of who should go first was a matter of choice." (Tr. pp. 141-2.)

The District Court concluded that the grouping of these grades was satisfactorily explained" in the testimony of the school officials, and it accordingly found "that the distribution of the white and black children for grades three through seven was nondiscriminatory." We find no error in this conclusion. We might observe as we did in the earlier opinion herein² that the grade distribution as approved is similar to that approved in Allen v. Asheville City Board of Education (4th Cir. 1970) 434 F.2d 902; Clark v. Board of Education of Little Rock School Dist. (8th Cir. 1971) 449 F.2d 493, and Hart v. County School Board of Arlington Co., Virginia (D.C. Va.1971) 329 F.Supp. 953, aff., 459 F.2d 981 (4th Cir.), cited in the earlier opinion in this case.

The orders of the District Court, from which this appeal is taken, are accordingly affirmed.

Affirmed.

WINTER, Circuit Judge (dissenting):

For the reasons set forth by Judge Butzner, in whose opinion I join, I, too, dissent. I add only a few comments of my own.

With respect to the apparently uneven burden on black pupils in grades 3 to 5, I think that the decision of the district court is presently indefensible. The inquiry and findings that we directed to be made in the last appeal were not made. Certainly if the choice to transport only black students in grades 3 to 5, made by a school board which historically has demonstrated its unwillingness to bring itself into compliance with Brown, was non-discriminatory, the basis for the choice is undisclosed. And, as Judge Butzner convincingly demonstrates, the present record does not demonstrate that the choice must be made on an all or none basis. Reversal and remand of this portion of the district court's order should inescapably follow.

I would reverse and remand as to the treatment of grades 1 and 2 also. This may well be a school district in which total dismantling of a dual system of schools is not required under Swann, but the present record does not lead me to that conclusion. The record shows that, prior to 1971, over 22,000 of the total school population of 31,500 pupils were transported to segregated schools by bus. At the present time, over 25,000 of the approximately 28,000 students are bused; and over 50 percent of the students in grades 1 and 2 are transported to segregated classes. If grades 1 and 2 are to be totally desegregated, the total number of students to be bused will be increased. But just as neighborhood schools are not per se valid, so is busing not per se invalid. The length and time of transportation, with consequent burden and perhaps detriment to the students, are pertinent factors to determine the feasibility and necessity of busing. While we may speculate in a school district of this size, shape and demographic composition as to the distance and time of busing necessary to achieve a totally unitary system at grades 1 and 2, the fact is that the district court has made no findings in this regard. Logic and a sound basis of decision require a survey and findings of the burden of present busing, past busing and future busing under various plans of integration before any conclusion could be drawn that achievement of a totally unitary system at grades 1 and 2 would or would not be deleterious to the health of the students involved. And, again, even if it is concluded that achievement of a totally unitary system should not be ordered, the achievement of some desegregation in grades 1 and 2 should not go unexplored.

Finally, I record my suspicion of the basis on which the district court approved retention of a dual system for grades 1 and 2. It relied heavily on the testimony of Dr. Hogge, a pediatrician, to the effect that the health of students in kindergarten and the first and second grades would be adversely affected if they were not permitted to attend neighborhood schools. But as I read the testimony of Dr. Hogge, it was—beside the obvious that there are limits to the physical endurance to children in grades 1 to 7, and if transportation, coupled with the usual school day, exceeded those limits, the effect would be deleterious to the child—that the effect of transportation on the physical and mental health of a child depends upon whether he is happy which, in turn, depends upon whether he is transported to a school "of his choice or his parents' choice." If the child is unhappy, i. e., not transported to a school of his choice or his parents' choice, "then it follows from there, as the night does the day, that you're just going to have a poor situation." Acceptance of Dr. Hogge's thesis, it seems to me, would be to require application of the equal protection clause to depend upon a plebecite by parents. This is a novel doctrine which I do not think finds support in the authorities.

BUTZNER, J., joins in this dissent.

BUTZNER, Circuit Judge (dissenting):

Under familiar principles, the burden is placed on a school board which formerly operated statutorily segregated schools to establish that it has eliminated its dual system. Green v. County School Board, 391 U.S. 430, 437, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Eighteen months ago we found that the record in this case was insufficient to show compliance with this well established rule, and we remanded the case for reexamination of the school board's plan and for consideration of alternative feasible plans for the assignment of pupils to elementary schools. Thompson v. School Board of the City of Newport News, Virginia, 365 F.2d 83 (4th...