Wanner v. County School Board of Arlington County, Va.

• Decision Date: 07 February 1966
• Docket Number: No. 10208.,10208.
• Citation: 357 F.2d 452
• Parties: Walter Raymond WANNER, an infant, by Raymond Wanner, father, and Frances S. Wanner, mother, and next friend, et al., Appellees, v. COUNTY SCHOOL BOARD OF ARLINGTON COUNTY, VIRGINIA, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

357 F.2d 452 (1966)

Walter Raymond WANNER, an infant, by Raymond Wanner, father, and Frances S. Wanner, mother, and next friend, et al., Appellees, v. COUNTY SCHOOL BOARD OF ARLINGTON COUNTY, VIRGINIA, Appellant.

No. 10208.

United States Court of Appeals Fourth Circuit.

Argued December 6, 1965.

Decided February 7, 1966.

Edmund D. Campbell and Peter J. Kostik, Arlington, Va., for appellant.

LeRoy E. Batchelor, Arlington, Va. (Michael E. McKenzie, Arlington, Va., on brief), for appellees.

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

SOBELOFF, Circuit Judge:

For the fifth time the public school problems of Arlington County, Virginia, are before this court. In the earlier chapters of this protracted litigation, Negro children were seeking decrees ordering the School Board to admit them to formerly white schools or other relief to advance the desegregation of the races in the county's school system. The novel feature of the present appeal is that when the Board acted, as it thought, to comply with earlier orders of this court as well as to improve the educational system of the county, it was, at the instance of white parents, enjoined by the District Court from putting its plans into effect.¹ From this injunction the Board now appeals.

The plan for the desegregation of the county's all-Negro Hoffman-Boston Junior High School, the District Court held, deprives the white plaintiffs of their rights under the Fourteenth Amendment and under the provisions of the Civil Rights Act of 1964. The District Court reasoned that the plan was the product of an "erroneous" belief on the part of the School Board that it was under a court order to close the all-Negro Hoffman-Boston Junior High School; that racial balance was the prime criterion used in redrawing the boundaries and that considerations based on race are constitutionally impermissible; and that there was no evidence to support the School Board's contention that the plan was educationally more desirable than the previous arrangement.

Before proceeding to the merits, it is important to recall that the School Board of Arlington County has since 1956 been under injunctive orders approved by this court, prohibiting racial segregation in the Arlington public schools.² In Brooks v. County School Board of Arlington County, 324 F.2d 303 (4th Cir. 1963), this court reversed an order of the District Court dissolving the injunction and ordered its reinstatement. Our opinion specifically noted the claims of the Negro plaintiffs that "the Hoffman-Boston district was originally created for Negroes when the maintenance of the segregated system was the avowed policy and practice" and that "Hoffman-Boston remains as it was contrived, a Negro enclave entirely surrounded by white school zones." This court further had occasion to declare that "the District Court's finding that there is no evidence to sustain the charge that geographical boundaries were established to maintain segregation is clearly erroneous." 324 F.2d at 308.

While it is true, as the District Court has stated, that the Brooks decision did not place the School Board under a specific order to close Hoffman-Boston, the opinion made it perfectly clear that this court considered intolerable the continued maintenance of Hoffman-Boston as an all-Negro junior high school. Our opinion admonished the School Board that it had "the primary authority and responsibility to bring the school system into complete conformity with the law." 324 F.2d at 308.

Before proposing a new school districting plan, the School Board appointed a Criteria Committee, a panel of nineteen citizens, to render advice respecting school attendance areas. On February 11, 1965, it unanimously reported that

"The present boundaries of the Hoffman-Boston district served by this all-Negro junior high school are completely artificial. The district is divided into two entirely separate subdivisions by the Army-Navy Country Club. The Gunston Junior High School district surrounds Hoffman-Boston on three sides."

With the findings of the Criteria Committee and the rulings of this court in mind, the School Board adopted a plan whereby three former junior high school districts (Hoffman-Boston, Thomas Jefferson, and Gunston) have been combined into two new districts (Jefferson and Gunston). The racial composition of each of the two new districts is approximately 75% white pupils and 25% Negro. When the School Board adopted its plan, it had knowledge of the racial imbalance in the student population of the districts involved and was aware that the new plan would result in reducing the imbalance.

The new Jefferson District operates its junior high school classes in two school buildings — the former Hoffman-Boston Junior High building, which houses seventh graders, and the former Thomas Jefferson Junior High building, which houses eighth and ninth graders.

The appellees do not contend, nor did the District Judge find, that the newly-created districts represent artificial boundary lines.³ Rather, the plan is attacked on the grounds that the School Board "took race into consideration" in redrawing the boundary lines, and that the plaintiffs are denied equal educational opportunities because the newly-created Jefferson District will be maintained not as a single- but as a dual-building district, separating the seventh grade pupils from the eighth and ninth grade pupils.

I

In ruling that the School Board in the existing circumstances is prohibited from considering race when redrawing school attendance districts, the District Court was clearly in error.

If a school board is constitutionally forbidden to institute a system of racial segregation by the use of artificial boundary lines, it is likewise forbidden to perpetuate a system that has been so instituted. It would be stultifying to hold that a board may not move to undo arrangements artificially contrived to effect or maintain segregation, on the ground that this interference with the status quo would involve "consideration of race." When school authorities, recognizing the historic fact that existing conditions are based on a design to segregate the races, act to undo these illegal conditions — especially conditions that have been judicially condemned — their effort is not to be frustrated on the ground that race is not a permissible consideration. This is not the "consideration of race" which the Constitution discountenances.

Here the Board, abandoning the racially gerrymandered lines of the past, adopted legally permissible geographic lines. This action was within the Board's lawful discretion. It is no ground of objection that other geographic lines might also have been drawn that would be less disruptive of the segregated pattern. An otherwise permissible redistricting plan does not become vulnerable because it attains a measure of racial balance.

There is no legally protected vested interest in segregation. If there were, then Brown v. Board of Education⁴ and the numerous decisions based on that case would be pointless. Courts will not say in one breath that public school systems may not practice segregation, and in the next that they may do nothing to eliminate it.

The District Court and the plaintiffs place undue reliance on Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964). That case held that a federal court could not compel a school board to realign, in order to effectuate racial balance, school districts whose boundaries were innocently arrived at with no intent to maintain or perpetuate segregation.⁵ Some courts have disagreed.⁶ However this may be, in the case before us the record establishes beyond dispute that the Hoffman-Boston school district was the product of invidious racial discrimination.

No case was cited to this court, nor has one been found, which has prohibited a school board, when drawing or redrawing school attendance lines, from reducing or eliminating segregation, even where segregation was de facto, much less when brought about by a deliberate policy of separation of the races.⁷ The Arlington County School Board has a more compelling case, for it was dealing not with de facto segregation but with the constitutionally forbidden practice of maintaining school attendance areas fixed with an eye to the separation of the races.⁸

Moreover, there is no basis whatsoever for the District Court's assertion that the School Board closed "an existing neighborhood school" in order to create racial balance. Neither Hoffman-Boston, nor Thomas Jefferson, nor Gunston was a truly "neighborhood" junior high school district. Because Thomas Jefferson and Gunston were contiguous to the Hoffman-Boston Negro enclave, the boundary lines of the former two were a creation of the racial gerrymandering of the Hoffman-Boston district and assumed the same artificial character as the Hoffman-Boston boundary lines. Certain white children in the old Gunston and Thomas Jefferson districts passed through sections of the Hoffman-Boston district in going to their respective schools. In drawing new and more natural boundary lines, the Board mitigated the effects of the persistent policy of segregation. In so doing, it has not exceeded its powers or violated its duty or the rights of the complainants.

II

The District Court found that there is no evidence to support the School Board's determination that the plan affords the affected pupils educational opportunities greater than those available to them under the old system. It would be a dispositive answer to say that, where a school board is attempting in good faith to eliminate or reduce segregation, courts are not commissioned to enter into a debate with school authorities as to which redistricting plan among several is preferable from an educational standpoint.

Moreover, we are of the view that the District Court's factual finding is...