Brewer v. School Board of Norfolk

BUTZNER, Circuit Judge:

Negro plaintiffs have appealed from an order approving the Norfolk, Virginia, School Board’s most recent plan for the desegregation of the city’s schools. Most of the plan is looked upon with favor by the plaintiffs and the United States, which was permitted to intervene. Upon consideration of the narrow areas of disagreement, the order is affirmed in part and vacated in part, and the case is remanded for further proceedings.

I.

Nine days after the Supreme Court held in Bradley v. School Bd. of City of Richmond, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965), that it was improper to approve school desegregation plans without considering the impact of faculty allocation on a racial basis, the district judge, sua sponte, ordered the parties to present evidence on this subject in the action pending before him.¹ In response, the school board amended its plan by providing for elimination of faculty segregation.² The plaintiffs complain that the district judge did not require a definition of goals and a timetable for faculty desegregation. In denying the plaintiffs’ request, the district court acted upon evidence that Norfolk employs approximately 2,200 classroom teachers, of whom 133 were assigned to faculties on which persons of their race were in the minority. All senior high schools, junior high schools and half the elementary schools had some integration. The district judge recognized that the board was making determined efforts to eliminate segregation among the faculty and staff.³

After the district judge approved the plan, this court decided Bowman v. County School Bd. of Charles City County, 382 F.2d 326 (4th Cir. 1967), vacated and remanded on other grounds sub nom. Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (May 27, 1968). There we required a minimal, objective timetable for faculty desegregation. A similar requirement is appropriate for Norfolk because the geographical attendance areas for elementary and junior high schools into which the city is divided contain more than one school, leaving to the pupils and their parents a choice within the zone. This system tends to perpetuate a dual system of schools when the identity of Negro and white schools located in the same zone, can be determined by the racial composition of the faculties.⁴ Lake Taylor Junior High School has 65 white teachers and 2 Negro teachers; its enrollment is 1,486 white pupils and 33 Negro pupils. Located in the same attendance area is Ruffner Junior High School, which has a faculty of 5 white teachers and 58 Negro teachers and a student body of 1,033 Negro but no white pupils. The problem is not confined to the elementary and junior high schools. Lake Taylor High School opened in 1967 with a faculty of 76 white teachers and 8 Negro teachers. In the adjacent high school attendance area Booker T. Washington High School had 95 Negro teachers and 17 white teachers. The racial composition of the student bodies corresponds to that of the faculties. Lake Taylor had 1,724 white pupils and 25 Negro pupils; Washington had 6 white pupils and 2,402 Negro pupils.⁵

The goal of faculty integration is not the allocation of teachers on either a token or a quota basis. The pattern of faculty assignment should be designed to avoid identification of any particular school as predominantly Negro or white.⁶ The evidence discloses the difficulty of reaching this goal, but it does not establish that attainment is impossible. Elimination of this remnant of the city’s dual system of schools should proceed on a realistic timetable set by the board, subject to the approval of the district judge.

II.

The plaintiffs also assign error to refusal of the district court to require the board to assign pupils from Northside Junior High School to Rosemont Junior High. Northside, Rosemont and Azalea Gardens Schools serve junior high school attendance area I. North-side and Azalea Gardens are predominantly white. Rosemont is entirely Negro. Northside is overcrowded, while Rosemont has vacant classrooms. The board explained that the imbalance resulted from the destruction near Rosemont of homes for redevelopment and highways. Construction of new homes in the area is expected to fill Rosemont, and the board deemed it unwise to transfer pupils from Northside for only a year. The overcrowding at North-side has not been great enough to cause the board to reject any applicants. The faculty at Rosemont is integrated to the extent of having 8 Negro and 5 white teachers. Under the circumstances the board was not required to rectify this temporary discrepancy in the use of classroom space.

III.

The plaintiffs allege that high school attendance area IV was gerrymandered to continue racial segregation. This area is served by Booker T. Washington High School, which at the time of the district court’s decision had more than 2,000 Negro but no white pupils. The background of this controversy can be briefly drawn.

In March 1966 the district court approved with reservations a pupil assignment plan negotiated by the school board, the plaintiffs, and the United States. To incorporate a new high school into the system, the board found it necessary to amend the plan for the 1967-1968 school year by creating five high school attendance areas, each encompassing approximately 2,000 pupils. Area boundary lines conformed in part with the boundaries of the city’s planning districts and natural boundaries. The plan provided that pupils living in area I (Granby), II (Norview), III (Lake Taylor) and V (Maury) would attend the high school serving their area. Granby and Norview were predominantly white. It was anticipated that Lake Taylor would also be white. Maury was predominantly white but was in danger of becoming resegregated. In contrast, area IV (Washington) contained about two-thirds of the city’s Negro high school pupils and only a few white pupils. The proposed plan allowed pupils living in area IV (Washington) to choose any one of the city’s high schools other than Maury.

Parents of pupils living in area II (Norview) and area V (Maury) were permitted to intervene upon complaint that they were denied the same right of transfer as pupils living in area IV (Washington). The district judge, finding merit in--their position, disapproved the plan.⁷ He suggested three alternatives. First, freedom of choice to all high school pupjls with reassignment if a school became overcrowded. Second, consolidation of area III (Lake Taylor) and area IV (Washington). Third, a strict geographical plan of assignment with each pupil being required to attend the high school in the area where he lived. The court observed that consolidation of areas III and IV, the second alternative, would eliminate a highly controversial boundary line which separated white and Negro residential neighborhoods in these areas. He also called to the attention of the school board that adoption of strict geographical zoning would risk an attack upon the validity of the plan because of segregation in area IV (Washington).

Despite the precautionary remarks of the district judge, the school board adopted a geographical plan of assignment without modifying the boundaries of the existing high school attendance areas, and required all high school pupils to attend school in the area in which they resided.⁸ The plan assigned to the Washington School all but 1,230 of the city’s 3,632 Negro high school pupils and excluded from Washington School all but 90 of the 7,235 white high school pupils.5 ***⁹ For all practical purposes it put an end to the progress that Norfolk had been making in integrating its high schools.

The district court approved the plan, pointing out that neither the plaintiffs nor the United States had accepted the court’s invitation to redraw the controversial boundary separating areas III and IV. However, the burden to come forward with suggestions for a new boundary was not upon the plaintiffs and the United States. Generally, a meaningful change in one line requires compensating changes in a substantia] part of the plan. It was apparent that the inevitable result of the school board’s plan would be the segregation of pupils in area IV (Washington). In fact the district judge specifically called this problem to the board’s attention. With this background, the board’s rejection of the alternatives suggested by the court that would lead to less segregation and its decision to adopt a geographical zoning plan without adjusting boundary lines that had been drawn for a modified freedom of choice plan, raised an inference of discrimination that required the board to justify its conduct by clear and convincing evidence. Cf. Chambers v. Hendersonville City Bd. of Educ., 364 F.2d 189, 192 (4th Cir. 1966). This it has not done.

In Gilliam v. School Bd. of City of Hopewell, 345 F.2d 325 (4th Cir.), vacated and remanded on other grounds, sub nom. Bradley v. School Bd. of City of Richmond, 382 U.S. 103, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965), we approved geographical zoning for the assignment of pupils. We also have said that such a system may not serve as a guise for gerrymandering zones to foster racial segregation. Wheeler v. Durham City Bd. of Educ., 346 F.2d 768, 774 (4th Cir. 1965).¹⁰ The boundaries' of area IV are drawn so Negro students who live nearer a predominantly white school are assigned to the more distant Washington School, while white pupils who live nearer Washington are assigned to a more distant predominantly white school. Sometimes similar results are. caused by natural boundaries that separate the zones, e. g., Gilliam v. School Bd. of City of Hopewell, 345 F.2d 325 (4th. Cir.), vacated and remanded on other' grounds, sub nom. Bradley v. School Bd.. of City of Richmond, 382 U.S. 103, 86; S.Ct. 224, 15 L.Ed.2d 187 (1965), but-here the boundaries selected by the board offer no natural impediment. They are-no obstacle to elementary and junior high school pupils whose attendance areas, are not so rigorously segregated and bounded. Moreover, the board departed in places from natural boundaries and in other places from the planning district lines. The board should be afforded the opportunity to submit a plan with more rational lines and to consider alternative plans for pupil assignment.

City planning districts used to fashion school attendance areas show wide variation in white and Negro residential distribution. Five residential planning districts have no Negro residents; 51 have less than 15% Negroes; 7 districts are mixed; and 17 have more than 80% .Negroes. Upon remand the district court should determine whether the racial pattern of the districts results from racial discrimination with regard to housing. If residential racial discrimination exists, it is immaterial that it results from private action. The school board cannot build its exclusionary attendance areas upon private racial discrimination.¹¹ Assignment of pupils to neighborhood schools is a sound concept, but it cannot be approved if residence in a neighborhood is denied to Negro pupils solely on the ground of color.¹²

IY.

The district court approved a site near the present Washington School for erection of a new high school. The plaintiffs assert that this will continue indefinitely the segregation of Negro high school pupils. The district judge’s approval was based largely on the school board’s expertise in site location and the fact that a committee of Negro citizens urged construction near the old school. These factors should be given weight, but they are not controlling. In Wheeler v. Durham City Bd. of Educ., 346 F.2d 768 (4th Cir. 1965), we held that a school construction program is an appropriate matter for court consideration and directed that this be developed upon remand. We will follow the same course here. We do not hold that the new school cannot be built near the old, but many other factors in addition to the site must be considered to determine whether the new school is located to perpetuate segregation. Among these are the new school’s attendance area, whether the school will be designed to accommodate only Negroes or whether it will include white pupils who live nearer to it than to the predominantly white high schools they now attend, whether the racial composition of the faculty will mark it as a Negro school and what practical alternative sites and assignment plans, if any, are available. This catalog is not complete. Doubtless other pertinent factors will be suggested to court and counsel. From all of them the court objectively can determine whether the new school will take its place in a non-discriminatory system or continue de facto the city’s former de jure dual system of white and Negro schools.

Affirmed in part, vacated in part, and remanded.

1 . See Brewer v. School Bd. of City of Norfolk, 349 F.2d 414 (4th Cir. 1965), which vacated an order approving the school board’s plan and remanded the case for consideration in the light of this court’s decisions announced pending appeal. For citation of earlier cases involving the Norfolk schools see Hill v. School Bd. of City of Norfolk, 282 F.2d 473, 474 n. 1 (4th Cir. 1960).

2 . The provision states:

“The School Board of the City of Norfolk recognizes its responsibility to employ, assign, promote and discharge teachers and other professional personnel of the Norfolk City Public School System without regard to race or color. It further recognizes its obligation to take all reasonable steps to eliminate existing racial segregation of faculty that has resulted from the past operation of a dual school system based upon race or color.

“In order to carry out these responsibilities, the School Board has adopted the following program:

“Teachers and other professional personnel will be employed solely on the basis of qualifications and without regard to race or color.

“In the recruitment and employment of teachers and other professional personnel, all applicants and other prospective employees will be informed that the City of Norfolk operates a racially integrated school system and that the teachers and other professional personnel in the System are subject to assignment in the best interest of the System and without regard to their race or color.

“The Superintendent of Schools and his staff will take affirmative steps to solicit and encourage teachers presently employed in the System to accept transfers to schools in which the majority of the faculty members are of a race different from that of the teacher to be transferred. Such transfers will be made by the Superintendent and his staff in all cases in which the teachers are qualified and suitable, apart from race or color, for the positions to which they are to be transferred.

“In filling faculty vacancies which occur prior to the opening of each school year, presently employed teachers of the race opposite the race that is in the majority in the faculty at the school where the vacancy exists at the time of the vacancy will be preferred in filling such vacancy. Any such vacancy will be filled by a teacher whose race is the same as the race of the majority on the faculty only if no qualified and suitable teacher of the opposite race is available for transfer from within the System.

“Newly employed teachers will be assigned to schools without regard to their race or color, provided, that if there is more than one newly employed teacher who is qualified and suitable for a particular position and the race of one of these teachers is different from the race of the majority of the teachers on the faculty where the vacancy exists, such teacher will be assigned to the vacancy in preference to one whose race is the same.”

3 . More recent statistics, not available to the district judge, show further progress. Forty-nine of the city’s 59 elementary schools had some faculty integration.

4 . Kier v. County School Bd. of Augusta County, 249 F.Supp. 239, 245 (W.D.Va. 1966).

5 . These statistics were not compiled until after school opened in September 1967.

6 . United States v. Jefferson County Bd. of Educ., 380 F.2d 385, 394 (5th Cir.), cert, denied, 389 U.S. 840, 88 S.Ct. 77, 19 L. Ed.2d 104 (1967).

7 . The action of the district court in declining to approve this plan is not before us, and we do not pass upon its merits. None of the parties has assigned error on this issue and the intervenors are not parties to this appeal.

8 . Prospective seniors who were presently attending schools outside their residential areas were permitted to finish their schooling without change. Other pupils, who under the city’s previous freedom of choice plan had elected to attend schools outside of their areas, were required to return to the schools in their residential areas.

9 Although these statistics were not compiled until after school opened in September 1967, they do not differ materially from the estimates that were made in the spring of 1967 when the case was heard.

10 . Accord Brooks v. County School Bd. of Arlington County, 324 F.2d 303, 308 (4th Cir. 1963), Taylor v. Board of Educ. of City School Dist. of City of New Rochelle, 294 F.2d 36, 39 (2d Cir.), cert, denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961). Cf. Gomillion v. Lightfoot, 364 U.S. 339, 347, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).

11 . Of. Commonwealth of Pennsylvania v. Board of Directors of City Trusts of City of Philadelphia, 353 U.S. 230, 77 S.Ct. 806, 1 L.Ed .2d 792 (1957); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Reitman v. Mulkey, 387 U.S. 369, 378, 87 S.Ct. 1627, 18 L. Ed.2d 830 (1967) (dictum); Griffin v. State of Maryland, 378 U.S. 130, 136, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964) (dictum); Watson v. City of Memphis, 373 U.S. 526, 538, 83 S.Ct. 1314, 10 L.Ed. 2d 529 (1963) (dictum).

Fiss, Racial Imbalance in the Public Schools: The Constitutional Concepts, 78 Harv.L.Rev. 564 (1964-65).

12 . Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958).

* While the opinions in this case were not announced until May 31, 1968, they were written prior to the opinions of the Supreme Court in Green et al. v. County School Board of New Kent County, Virginia et al. 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (decided May 27, 1968) and related cases.