Dillard v. School Board of the City of Charlottesville, Virginia

PER CURIAM. This appeal was first heard by a panel ■consisting of Senior Judge Soper, Chief Judge Sobeloff and Circuit Judge Bore-man. An opinion was prepared by Judge Soper, but before it was announced by the court a hearing en banc was ordered, in which the five active judges of the court sat, but Judge Soper did not participate. Judge Soper’s opinion, which Sobeloff, Boreman and Bell, JJ. adopt as the opinion of the court, is as follows: Cross-appeals again bring to this court 'questions arising in the administration <of the public schools of Charlottes-ville, Va., with respect to the assignment of white and Negro children in the elementary and high school grades.1 Our most recent decision in Dodson v. School Board of the City of Charlottesville, 289 F.2d 439 (4th Cir., 1961), outlines the steps that the School Board had then taken toward the integration of the races in the schools and the plan of operation for the school year 1960-1961. The plan involved the division of the City into six geographical districts, each of which was •served by one of the elementary schools, "to wit: Jefferson, Venable, Johnson, Burnley-Moran. Clark and McGuffey. It was provided that each child should attend the school located in the zone of Ms residence and since a large majority of the Negro residents live in the Jefferson District the result was that, with the exception of some 13 Negro pupils attending the predominantly white Venable School, all of the Negro elementary pupils were enrolled in the Jefferson School, which no white pupils attended. No Negro pupils were assigned to the four other elementary schools. The plan, however, provided that the parents of any child, white or colored, could request a transfer and the superintendent of the schools was empowered to grant such a request after consideration of various criteria applicable to white and Negro pupils alike, including factors affecting the immediate interests of the pupils and the efficient administration of the schools. Two high schools were operated in the City, Lane and Burley. There were no zones for admission to these schools but the superintendent was guided in making assignments of students by the pupil-teacher ratio, convenience of attendance, academic qualifications and, to some degree, by the preference of the pupil and his parents. The transfer provisions were the same as those applicable to the elementary schools. Prior to the plan for desegregation Lane was all-white and Burley all-colored. In 1960-61, at the time the Dodson case was brought, thirteen Negro elementary pupils had been assigned to Venable and seven Negro high school students had been assigned to Lane. That suit was instituted on behalf of four Negro pupils whose application for admission to white elementary schools had been denied because they resided in the Jefferson district and also on behalf of six Negro high school pupils whose application for admission to Lane had been denied, four because of academic deficiency and two because they resided nearer to Burley than to Lane. Having been denied relief in the District Court the plaintiffs appealed to this court. We upheld the Board’s plan but condemned the Board’s application of the plan as discriminatory and unconstitutional. We pointed out that all Negro elementary pupils were initially assigned to Jefferson whatever the zone of their residence but white pupils living in Jefferson were initially assigned to white schools in other districts. In respect to high schools we showed that all colored pupils were initially assigned to Burley and all white pupils to Lane and that Negro pupils desiring to transfer to Lane were subjected [922] to residence and academic tests which were not applied to white students seeking admission to Lane. We recognized that these practices were discriminatory but, upon the assurance of the Board that they were transitory, we remanded the case to the District Court to re-examine the situation with regard to the ensuing school year, 1961-62, “confident that steps [would] be taken promptly to end the present discriminatory practices in the administration of the desegregation plan,” 289 F.2d 444. Mindful of this admonition the School Board made certain changes in its plan of operation. The assignment of each elementary school pupil, white or colored, was made to the school in his residence zone. This step, of course, tended to perpetuate the earlier practice of segregation; but transfers were permitted in the following fashion. Elementary pupils, white or colored, assigned to schools where they were in the racial minority were permitted with the consent of their parents to transfer to a school in another district where they would be in the racial majority. Thus a white child living in the Jefferson colored district could transfer to a school in one of the fivé white districts and a colored child living in one of the white districts could transfer to Jefferson. To effectuate this plan a form letter was sent by the Superintendent of the schools to the parents of each child attending an elementary school outside the zone of his residence stating that the child had been tentatively reassigned to the same school, but that the child could remain in that school only if the parents specifically requested it. A form to be signed by parents was attached to the letter. Through this procedure all of the white pupils, 149 in number, who lived in the Jefferson area were granted “transfers” to schools in the other zones and approximately 50 Negro elementary school pupils residing In the white districts were “transferred” to Jefferson. Nine additional Negro pupils were admitted to the Venable elementary school, bringing the total number in attendance to twenty and nine additional Negro high school pupils were admitted to Lane, bringing the total to sixteen. The School Board reached the conclusion that by adopting this plan they had eliminated all racial discrimination and, accordingly, they rejected the applications for transfer to other districts of seventeen Negro elementary pupils residing in the Jefferson district. On their behalf the present suit was brought in the District Court to restrain the actions of the Board but the District Judge held that the plan was valid and this appeal followed. The question for decision is of special importance in the administration of the Charlottesville schools in view of the Board’s past operations and its present attitude in the administration of the school system. When it is noted that despite prolonged litigation all of the Negro elementary school pupils in the City, other than the twenty assigned to Venable, are still enrolled at the all-Negro Jefferson school, while all of the white students attend one of the five elementary schools in the other districts, and that all of the Negro high school students except sixteen attend the all-Negro Burley High School, it is clear that little change has been made in the administration of the elementary schools from that which prevailed when the schools were completely segregated. It seems equally clear that little progress in the integration of the schools may be expected if the Board is permitted to pursue the policy which, after mature consideration, it has deliberately adopted. The Board’s argument is that there is no racial discrimination in the enrollment of the pupils in the elementary schools for the following reasons. The Board has abandoned the plan contained in our decision in the Dodson case. Under that plan Negro pupils wherever they lived were initially assigned to Jefferson and white students were initially assigned to the school of the zone of their residence; and since transfers were only sparingly permitted the admission of colored pupils into white schools was effectually pro [923] hibited and segregation was prolonged. Under the new 1961-62 plan, says the Board, every child whether white or Negro is initially assigned to the school of his residence district and transfers are granted to white and colored children under the same rule or restriction. Any child may transfer from a school in which his race is in the minority to a school in which his race is in the majority and since this plan applies to both races alike there is no discrimination. In support of its position the Board relies on Kelley v. Board of Education of the City of Nashville, 270 F.2d 209 (6 Cir. 1959),2 where it was held that a transfer provision is not invalid which permits voluntary transfers of white and Negro students who would otherwise be required to attend schools previously serving only members of the other race, or where the majority of the students are of the other race. The court thought that this plan was not invalid since the Supreme Court in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), did not deprive persons of the right of choosing the school they desired to attend but merely held that a person may not be denied the right to the school of his choice because of his race. The Sixth ■Circuit, however, in its subsequent decision in Goss v. Board of Education of the City of Knoxville, Tenn., 301 F.2d 164 (6 Cir. 1962), observed that the application of this transfer provision may become a violation of constitutional rights and consequently admonished the Board not to use it as a means of perpetuating segregation. And see Maxwell v. County Board of Education of Davidson Co., Tenn., 301 F.2d 828 (6 Cir. 1962). Moreover, the Fifth Circuit in Boson v. Rippy, 285 F.2d 43 (5 Cir. 1960), differing from the views set out in the Kelley case, disapproved a desegregation plan which included a transfer provision like that practiced in Charlottes-ville. It held, 285 F.2d 48, that “classification according to race for purposes of transfer is hardly less unconstitutional than such classification for purposes of original assignment to a public school.” In Mapp v. School Board of Chattanooga, 203 F.Supp. 843, 853, D.C.E.D.Tenn.1962, the District Court, in accord with Boson v. Rippy, supra, said that “any transfer plan, the express or primary purpose of which is to prevent or delay the adoption or implementation of the plan of desegregation herein developed, should not be approved.” In our view the Charlottesville plan in respect to the pupils in the elementary schools is clearly invalid despite the defense that the rules for the assignment and transfer of pupils are literally applied to both races alike. It is of no significance that all children, regardless of race, are first assigned to the schools in their residential zone and all are permitted to transfer if the assignment requires the child to attend the school where his race is in the minority, if the purpose and effect of the arrangement is to retard integration and retain the segregation of the races. That this purpose and this effect are inherent in the plan can hardly be denied. The School Board is well aware that most of the Negro pupils in Charlottesville reside in the Jefferson zone and that under the operation of the plan white children resident therein will be transferred as a matter of course to the schools in the other zones while the colored children in the Jefferson zone will be denied this privilege. The seeming equality of the language is delusive, the actual effect of the rule is unequal and discriminatory. It may well be as the evidence in this case indicates that some Negroes as well as whites prefer the [924] schools in which their race predominates; but the wishes of both races can be given effect so far as is practicable not by restricting the right of transfer but by a system which eliminates restrictions on the right, such as has been conspicuously successful in Baltimore and in Louisville. It was suggested during the argument of the appeal that a reversal of the judgment of the District Court might lead the Board to deny all transfers in the Char-lottesville schools. We take this occasion to say, however, that such a step might well be as obnoxious as that employed by the Board in the case at bar. A similar plan was condemned in Taylor v. Board of Education of New Rochelle, 294 F.2d 36 (2 Cir. 1961). We do not mean to say that the School Board has no discretion in the assignment of pupils to the Charlottesville schools, but in respect to the elementary children in this case the Board has applied no criteria that would stand the constitutional test and, therefore, in the interest of these children further delay in the exercise of their constitutional rights cannot reasonably be granted.3 We, therefore, hold that as to the seventeen elementary children, who were plaintiffs in the court below, the judgment be reversed and the case remanded to the District Court so that appropriate steps, by injunction or otherwise, may be taken to secure their admission to the schools of their choice for the 1962-63 school year. The cross-appeal by the School Board in this case relates to the judgment of the District Court that nine Negro high school pupils who were excluded by the Board from the Lane High School be admitted to that institution. Subsequently, the Board admitted two of the nine and as to them the cross-appeal is expressly abandoned in the Board’s brief in this court. Four of the remaining seven were before this court in the Dodson case, where we noted that, they had been excluded from Lane for academic deficiency and said that residence and academic tests may be properly applied in passing on the applications for admission to a school provided that the-factors of race and color are not considered, 239 F.2d 439, 442. Since it was-shown that the tests were not applied to-white children in the same situation we-held that the four plaintiffs had been discriminated against. Nevertheless, we-affirmed the judgment below in the confident belief that discrimination between the races in the admission of high school, students would be eliminated by the Board itself. In this respect our hopes have been disappointed. The Board has abandoned the residence tests as to high school children but has made no change in the academic tests. The four Negro high school pupils who were before us in the Dodson case, and in addition three-other high school students, all of whom are cross-appellees in this case, have been denied admission to Lane because of alleged academic deficiency. The Board’s position is that their admission into a school for which they are not qualified will not only be detrimental to them but to the school itself and, therefore, they should be excluded. Obviously, these factors are worthy of consideration in the operation of any school system. The difficulty is, however, that the Board admits white children to Lane without tests, irrespective of their academic qualification, upon the theory that they should! not be denied any high school education whatsoever. The alternative of sending them to Burley is not deemed worthy of consideration. The discrimination involved is too clear to require discussion. Not only are academic tests applied to Negroes only but Negroes who are considered so deficient in academic achievement that their admission to Lane would be detrimental to the school, are sent to Burley without regard to the consequences. See Bush v. Orleans Parish [925] School Board, E.D.La., New Orleans Div., 204 F.Supp. 568. Accordingly, the judgment of the District Court regarding the admission of the nine high school students to the Lane High School will be affirmed and the case will be remanded to that court in order that appropriate steps may be taken to put the judgment into effect. Reversed in part and affirmed in part and remanded for further proceedings. Let the mandate issue immediately. Footnotes [1] The opinión of the District Court is reported at 203 F.Supp. 225. [2] Certiorari was denied in this case, 361 U.S. 924, 925, 80 S.Ct. 293, 4 L.Ed.2d 240, three justices indicating that they would grant the petition limited to the question whether certain provisions of the Nashville plan were invalid for the reason that they “explicitly recognized race as an absolute ground for the transfer of students between schools, thereby perpetuating rather than limiting racial discrimination.” [3] The operation of the Charlottesville schools was brought to our attention in 1956 in School Board of the City of Charlottesville v. Allen, 240 F.2d 59 (Cir. 1956).