Wright v. Council of City of Emporia

• Decision Date: 23 March 1971
• Docket Number: 14929,No. 14552,14930 and 14990.,14552
• Citation: 442 F.2d 588
• Parties: Pecola Annette WRIGHT et al., Appellees, v. COUNCIL OF the CITY OF EMPORIA, and the members thereof, and School Board of the City of Emporia and the members thereof, Appellants. UNITED STATES of America, and Pattie Black Cotton, Edward M. Francis, Public School Teachers of Halifax County, et al., Appellees, v. SCOTLAND NECK CITY BOARD OF EDUCATION, a body corporate, Appellant. UNITED STATES of America, and Pattie Black Cotton, Edward M. Francis, Public School Teachers of Halifax County, and others, Appellees, v. Robert MORGAN, Attorney General of North Carolina, the State Board of Education of North Carolina, and Dr. A. Craig Phillips, North Carolina State Superintendent of Public Instruction, Appellants. Alvin TURNER et al., and JoAnne Amelia Clayton et al., Appellees, v. The LITTLETON-LAKE GASTON SCHOOL DISTRICT, a public body corporate of Warren County and Halifax County, North Carolina, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

442 F.2d 588 (1971)

Pecola Annette WRIGHT et al., Appellees, v. COUNCIL OF the CITY OF EMPORIA, and the members thereof, and School Board of the City of Emporia and the members thereof, Appellants.

UNITED STATES of America, and Pattie Black Cotton, Edward M. Francis, Public School Teachers of Halifax County, et al., Appellees, v. SCOTLAND NECK CITY BOARD OF EDUCATION, a body corporate, Appellant.

UNITED STATES of America, and Pattie Black Cotton, Edward M. Francis, Public School Teachers of Halifax County, and others, Appellees, v. Robert MORGAN, Attorney General of North Carolina, the State Board of Education of North Carolina, and Dr. A. Craig Phillips, North Carolina State Superintendent of Public Instruction, Appellants.

Alvin TURNER et al., and JoAnne Amelia Clayton et al., Appellees, v. The LITTLETON-LAKE GASTON SCHOOL DISTRICT, a public body corporate of Warren County and Halifax County, North Carolina, Appellant.

Nos. 14552, 14929, 14930 and 14990.

United States Court of Appeals, Fourth Circuit.

March 23, 1971.

For majority opinions see 4 Cir., 442 F.2d 570, 575 and 584.

WINTER, Circuit Judge (dissenting and concurring specially):

I dissent from the majority's opinion and conclusion in No. 14,552, Wright v. Council of City of Emporia, 442 F.2d 570 (4 Cir. 1971), and in Nos. 14,929 and 14,930, United States v. Scotland Neck City Board of Education, 442 F.2d 575 (4 Cir. 1971). I concur in the judgment in No. 14,990, Turner v. Littleton-Lake Gaston School District, 442 F.2d 584 (4 Cir. 1971), and I can accept much of what is said in the majority's opinion. There is, however, a broader basis of decision than that employed by the majority on which I would prefer to rest.

Because the majority makes the decision in Emporia the basis of decision in Scotland Neck and distinguishes them from Littleton-Lake Gaston, I will discuss the cases in that order. I would conclude that the cases are indistinguishable, as does my Brother Bryan, although I would also conclude that each was decided correctly by the district court and that in each we should enjoin the carving out of a new school district because it is simply another device to blunt and to escape the ultimate reach of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and subsequent cases.

-I-

While the legal problem presented by these cases is a novel one in this circuit, I think the applicable legal standard is found in the opinion of the Supreme Court in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). In rejecting a "freedom of choice" plan under the circumstances presented there, the Court articulated the duties of both a school board and a district court in implementing the mandate of Brown:

The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.

* * * * * *

Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system "at the earliest practicable date," then the plan may be said to provide effective relief. Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. (emphasis added.)

391 U.S. at 439, 88 S.Ct. at 1694.

In each of the instant cases, following a protracted period of litigation, a plan designed finally to institute a unitary school system was jeopardized by the attempt of a portion of the existing school district to break away and establish its own schools. I think the advocates of such a subdivision bear the "heavy burden" of persuasion referred to in Green because, as in that case, the dominant feature of these cases is the last-minute proposal of an alternative to an existing and workable integration plan. Factually, these cases are not significantly dissimilar from Green. Each act of secession would necessarily require the submission and approval of new integration plans for the newly-created districts, and thus each is tantamount to the proposal of a new plan. And while the act giving rise to the alternative approach here is state legislation rather than a proposal of the local school board, the fact remains that the moving force in the passage of each piece of legislation¹ was of local origin. Few who have had legislative experience would deny that local legislation is enacted as a result of local desire and pressure. It is, therefore, to local activities that one must look to determine legislative intent.

Application of the "heavy burden" standard of Green to the instant cases is also supported by considerations of policy. In an area in which historically there was a dual system of schools and at best grudging compliance with Brown, we cannot be too careful to search out and to quash devices, artifices and techniques furthered to avoid and to postpone full compliance with Brown. We must be assiduous in detecting racial bias masking under the guise of quality education or any other benevolent purpose. Especially must we be alert to ferret out the establishment of a white haven, or a relatively white haven, in an area in which the transition from racially identifiable schools to a unitary system has proceeded slowly and largely unwillingly, where its purpose is at least in part to be a white haven. Once a unitary system has been established and accepted, greater latitude in redefinition of school districts may then be permitted.

Given the application of the Green rationale, the remaining task in each of these cases is to discern whether the proposed subdivision will have negative effects on the integration process in each area, and, if so, whether its advocates have borne the "heavy burden" of persuasion imposed by Green.

-II-

Emporia School District

The City of Emporia, located within the borders of Greensville County, Virginia, became a city of the second class on July 31, 1967, pursuant to a statutory procedure dating back to the 19th Century. While it had the state-created right at that time to establish its own school district, it chose instead to remain within the Greensville County system until June, 1969. It is significant that earlier in this same month, more than a year after it had invalidated a "freedom of choice" plan for the Greensville County system, the district court ordered into effect a "pairing" plan for the county as a further step toward full compliance with Brown and its progeny.

The record amply supports the conclusion that the creation of a new school district for the City of Emporia would, in terms of implementing the principles of Brown, be "less effective" than the existing "pairing" plan for the county system. In the first place, the delay involved in establishing new plans for the two new districts cannot be minimized in light of the Supreme Court's statement in Green that appropriate and effective steps must be taken at once. See also Carter v. West Feliciana School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L. Ed.2d 477 (1970); Alexander v. Holmes County Bd. of Ed., 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). Secondly, as the district court found, the separation of Emporia from Greensville County would have a substantial impact on the racial balance both within the county and within the city. Within the entire county, there are 3,759 students in a racial ratio of 34.1% white and 65.9% black. Within the city there are 1,123 students, 48.3% of whom are white and 51.7% are black. If the city is permitted to establish its own school system, the racial ratio in the remainder of the county will change to 27.8% white and 72.2% black.² To me, the crucial element in this shift is not that the 48.3%-51.7% white to black ratio in the town does not constitute the town a white island in an otherwise heavily black county and that a shift of 6% in the percentage of black students remaining in the county is not unacceptably large. Whenever a school area in which racial separation has been an historical fact is subdivided, one must compare the racial balance in the preexisting unit with that in the new unit sought to be created, and that remaining in the preexisting unit after the new unit's creation. A substantial shift in any comparable balances should be cause for deep concern. In this case the white racial percentage in the new unit will increase from 27.8% to 48.3%. To allow the creation of a substantially whiter haven in the midst of a small and heavily black area is a step backward in the integration process.

And finally, the subdivision of the Greensville County school district is "less effective" in terms of the principles of Brown because of the adverse psychological effects on the black students in the county which will be occasioned by the secession of a large portion of the more affluent white population from the county schools. If the establishment of an Emporia school district is not enjoined, the black students in the county will watch as nearly one-half the total number of white students in the county abandon the county schools for a substantially whiter system. It should not be forgotten that psychological factors, and their resultant effects on educational achievement, were a major consideration in the Supreme Court's opinion in Brown.

In my mind, the arguments advanced by the residents of Emporia in support of their secession from the county school system do not sustain the "heavy burden" imposed by Green. The essence of their position is that, by establishing their own schools over which they will exercise the controlling influence, they will be able to improve the quality of their children's education. They point to a town commitment to such a goal and, in particular, to a plan to increase educational revenues through increased local taxation. They...