Appendix — Irby v. Virginia State Board of Elections

NO.

IN THE

Supreme Court of the United States

October Term, 1989

DARIUS IRBY, et al.,

Petitioners,

VS.

VIRGINIA STATE BOARD OF ELECTIONS,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

APPENDIX TO THE PETITION

GERALD T. ZERKIN NEIL BRADLEY

LINDEN TOWER PROF. CENTRE COUNSEL OF RECORD

2ND & FRANKLIN STREETS KATHLEEN L. WILDE

RICHMOND, VA 23219 LAUGHLIN McDONALD

44 ForsyTH STREET, N.W.

ATLANTA, GA 30303

(404) 523-2721

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, INC.

COUNSEL FOR PETITIONERS

TABLE OF CONTENTS

Opinions & Orders:

Opinion of the Court of Appeals,

November 24, CO a ee ee ee.

Order & Opinion of the District Court

on Summary Judgment, May 16, 1988..36a

Order & Opinion of the District Court

on Plaintiffs’ Motion In Limine,

June 20, [it con ehddehwekeee6ee ee eeee

Final Order of the District Court,

August 18, Pee eS eee

Findings Of Fact & Conclusions of

Law, August 18, 1988.......22..2--l104a

Order of the Court of Appeals Denying

Petition for Rehearing & Suggestion

For Rehearing In Banc,

Jan. 9, 1990. e*eeeeee#er#eene#e#see#e#e#s#e#?#e#*# -154a

Constitutional & Statutory Provisions:

Amendment l e*eeeeesee#8eeenereeseeneeesenee#ensteee#e#?#s# 1 56a

Amendment 13, § Re e*eeeteenrenseedesees#see7#s7e#e#ee#8s#8e# -156a

Amendment 14, § i e*eeeeeneentenreeeeeeeeee -156a

Amendment 15, §l. e*eeoeeee#ese3#e#7#enstseee#ee#2eee?e#?*# -157a

Section 2 of the Voting Rights Act

of 1965, 42 U.S.C. § 1973........-157a

Acts of Virginia, 1956, Chapter 591...159a

# # #

No. 88-2919.

United States Court of Appeals,

Fourth Circuit.

Darius IRBY; John S. Neal;

Charles W. White;

James Samuel Williams, Jr.

Cora Lee Tucker;

Willie Powell;

Milton Richardson;

the Virginia Unit of

The Southern Christian Leadership

Conference; Citizens for a

Better America, Plaintiffs-Appellants.

Vv.

VIRGINIA STATE BOARD OF ELECTIONS

et ol., Defendants-Appellees,

and

Robert P. Lawler, in his official

capacity as a member of the Board

of Supervisors of Halifax County,

Defendant.

Argued June 8, 1989.

Decided Nov. 24, 1989.

Rehearing and Rehearing In Banc

Denied Jan. 9, 1990

Before PHILLIPS, |MURNAGHAN, and

WILKINSON, Circuit Judges.

MURNAGHAN, Circuit Judge:

A number of black residents and two

civil rights organizations brought an

action challenging Virginia’s method of

local school board selection as violating

the First, Thirteenth, Fourteenth and

Fifteenth Amendments to the United States

Constitution and Section 2 et seq. of the

Voting Rights. Act of 1965, 42 U.S.C.

Section 1973 et seq. Virginia law re-

quires appointment, rather than elec-

tion, of local school board members.

The plaintiffs allege that Virginia

adopted and maintained the appointment

system with the intent to discriminate

against blacks, and that the system

currently has a discriminatory effect.

The district court refused plaintiffs”

request for class certification.

2a

The district court granted summary

judgment for the defendants on the First

and Thirteenth Amendment claims, as well

as that portion of the Fourteenth Amend-

ment claim that relied on the Due Pro-

cess Clause. 692 F.Supp. 610. A trial

proceeded on the equal protection, Fif-

teenth Amendment and Voting Rights Act

Claims.

After trial, the district judge

found for the defendants on all remaining

Claims. The plaintiffs appealed.

I.

The case was brought by seven.

individual black citizens who reside in

the City of Petersburg or in the counties

of Nottoway, Buckingham, Prince Edward or

Halifax, and by two organizations Citi-

zens for a Better America and the Vir-

ginia Unit of the Southern Christian

Leadership Conference. The suit named

3a

three sets of defendants: (1) members of

the appointing bodies for local school

boards in Petersburg and the four Vir-

ginia counties named above; (2) members

of the Electoral Boards of each of those

five jurisdictions; and (3) Susan H.

Fitz-Hugh, Secretary of the State Board

of Elections.

The method of appointing school

board members varies widely among

Virginia's counties and cities. In

Nottoway and Buckingham counties, a

three-person selection commission, whose

members are chosen by a local circuit

court judge, appoint the school board

members. The county Board of Supervisors

appoints school board members in Prince

Edword and Halifax counties. The City,

Council selects Petersburg Ss school

board members .1/

The appointive system for selection

of school board members in Virginia dates

to 1870, when the state legislature pas-

sed a law providing for appointment of

local school trustees by the state Board

of Education. The trustees performed

functions similar to those of present-day

school boards. The district court found

no evidence “that the original decision

to make school boards appointive rather

than elective was motivated by racial

discrimination.” Irby vy. Fitz-Hugh, 693

F.Supp. 424, 427 (E.D.Va. 1988). The

court also found conflicting evidence as

to whether discriminatory intent motiva-

ted various modifications in _ the ap-

1 In some Virginia Jurisdictions,

none of which are defendants here, the

county board of supervisors and the city

council jointly appoint the school board

where the school district overlaps the

city and county boundaries. Va.Code

section 22.1-53.

5a

pointive scheme between 1870 and the

turn of the century. Id.

However, discriminatory intent did

figure prominently in Virginia’s decision

to retain the appointive system during

the Virginia constitutional Convention of

1901-02. That convention drafted a new

constitution that the state concedes was

designed, in part, to disenfranchise

blacks. During the convention, the state

education commission proposed adopting a

system of electing school board members.

The convention rejected the proposal,

however, after several delegates warned

that such a change could lead to selec-

tion of blacks for school boards. The

district court found that:

[rlace was a ‘substantial’ or

‘motivating’ factor ... behind

the 1901-02 Constitutional

Convention's decision to

retain an appointive system.

Several members of the Conven-

tion cast the decision in

racial tones, and the plain

6a

Purpose of the Convention was

to disenfranchise as many im-

poverished People, including

most blacks, as the delegates

could .... The appointive sys-

tem was maintained, there-

fore[,] for constitutionally

impermissible reasons in 1902.

Irby, 693 F.Supp. at 432 (citations

omitted).

The state legislature made some

modifications to the appointive system in

1903. In the 1920s and 1930s, it re-

jected various recommendations to adopt

an elective system for local school

boards. The district court found no

racial motivation in those decisions.

Id. at 433.

In 1947, the General Assembly

departed from the purely appointive

scheme by passing a law permitting “any

county operating under the county manager

Plan ... and in which county magisterial]

districts have been abolished” to hold

7a

popular elections to fill school board

positions. Id. at 428. At the time,

only Arlington County had a form of

government allowing it to qualify for the

election option. Arlington County voters

approved the changes and elected a school

board.

The elective system continued in

Arlington County until 1956, when the

County school board agreed to desegregate

its school system in compliance with

Brown v. Board of Fducation, 347 U.S.

483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

The state legislature, in an effort “to

impede Arlington’s ability to comply with

court-ordered desegregation,” Irby, 693

F.Supp. at 433, repealed the 1947 law

that had allowed elected school boards.

The new law proclaimed that “no school

board shall be elected by popular vote in

and for any county or city.” Id. at 428.

80

Between 1968 and 1971, Virginio

considered changes in its constitution.

The plaintiffs concede that one of the

Purposes for the constitutional revision

“wos to close the door on the era of

massive resistance to school integra-

tion.” Virginia established a Consti-

tutional Revision Commission in 1968 to

recommend changes to the 1902 Constitu-

tion. The commission made no recommen-

dation for changing the school board

selection method. The district court

found that debates leading to adoption of

the new constitution showed “no evidence

that the means of selecting school boards

was tainted by racial considerations.”

Irby, 693 F.Supp. at 429. The court

further found that legislators “simply

could not agree on which method was the

best and put the debate off to another

day by agreeing to preserve the flexibi-

9a

lity that currently existed.” Id. The

district court never pointed to specific

details of those debates to show what

arguments legislators made in support of

the appointive system.

The state legislature considered the

school board selection process again in

1984 by commissioning a study to decide

whether school board members should be

popularly elected. The 1984 subcommittee

report took no stance on the issue but

reported the various arguments for and

against electing school boards. Many of

the arguments arose at public hearings

that the subcommittee held throughout the

state. The arguments in favor of ap-

pointed school boards included:

(1) insulating school governance

matters from direct political pressures;

(2) promoting stable school board

membership; ae

(3) encouraging the service of

individuals who would not seek elective

office;

(4) Promoting diversity in view-

points which otherwise may not achieve

representation on an elected school

board;

(5) avoiding the division of fiscal

authority among multiple elected bodies;

(6) avoiding the fragmentation of

local political authority; and

(7) avoiding the problem of single

issue campaigns which freguently occur

With elected school boards.

Since issuance of the study in 1984,

the Virginia legislature has considered

various bills to allow popular election

of school board members. Irby, 693

F.Supp. at 429, n.1. It is unclear, how-

ever, to what extent legislators discus-

sed or considered the findings of the

11 a

1984 study in rejecting those bills.

Turning to the issue of black

participation on school boards, the

district court found that the percentage

of school board seats in Virginia held by

blacks increased from 12% in 1974 and

1981 to 15.9% in 1985 and to 18% in 1986

and 1987. Irby, 693 F.Supp. at 430. The

court also found that blacks comprised

18% of the voting age population in Vir-

ginia. Id.

However, all five Jurisdictions at

issue in the present case reported a

smaller black representation on their

school boards than in their population as

a whole. The district court found the

following disparities in 1987:

General

Population School Board

Buckingham 42% black 14.2% black

Holifax 40% He 22.2% ss

Nottoway 37% " 20%

Prince Edword 37% 4 25% "

City of

Petersburg 61% r G4 4Z

12 a

Irby, 693 F.Supp. at 430.

i

To establish an equal protection

violation, a plaintiff must show dis-

Ccriminatory intent as well as disparate

effect. Crawford vy. Board of Education,

458 U.S. 527, 544, 102 S.Ct. 3211, 3221,

73 L.Ed.2d 948 (1982): Arlington Heights

vy. Metropolitan Housing Dev. Corp., 429

U.S. 252, 265, 97 S.Ct. 555, 563, 50

L.Ed.2d 450 (1977); Washington vy. Davis,

426 U.S. 229, 239, 96 S.Ct. 2040, 2047,

48 L.Ed.2d 597 (1976). The plaintiffs

argue that once they prove the state

adopted or maintained the appointive

System in the past for discriminatory

reasons, the burden then shifts to the

defendants to prove that the system is

not currently being maintained for dis-

criminatory purposes. We need not de-

cide whether the Equal Protection Clause

13 a

mandates the burden-shifting scheme pro-

posed by the plaintiffs because, even

assuming that the burden shifted to the

defendants, they have proved that racial

discrimination no longer motivates Vir-

Qinia’s decision to retain an appointive

System for selecting school board mem-

bers.

The plaintiffs satisfied their in-

itial burden of proving that Virginia

maintained the appointive system for

purposes of minimizing or precluding

black participation on school boards.

The district court expressly found that

the Constitutional Convention of 1901-02

retained the appointive system for ra-

Cially discriminatory reasons. Irby,

693 F.Supp. at 432. Moreover, the Vir-

ginia legislature clearly acted witha

discriminatory purpose in passing the

1956 law forbidding popularly elected

14 a

school boards anywhere in the state. As

the district court found, the state le-

gislature passed the law to impede one

school district’s willingness to comply

with the desegregation mandate of Brown

vy. Board of Education. Irby, 693 F.Supp.

at 428.

The defendants, however, have proved

that the state does not currently main-

tain the system of appointed school

boards for discriminatory reasons. The

district court held that the defendants

had carried that burden by “demonstrating

that at least since 1971 the system has

not been maintained for racially dis-

criminatory reasons.” Id. at 433. Spe-

cifically, the district court found such

proof in the 1971 revision of the state

constitution. In the atmosphere of the

United States, which has had to suffer

the complexities of a massive Civil War,

15 a

reconstruction, Plessy v. Ferguson, mas-

sive resistance, and Brown vy. Board of

Education, it is understandable that

there is abroad a_ skepticism that the

1971 constitutional revision represented

sufficient proof that Virginia had purged

the discriminatory intent originally un-

derlying the appointive system for

school boards. Although all parties

agree that a major purpose of the re-

vision was to break with the massive

resistance policies of the past, the 1971

redrafting of the constitution did not

involve any alterations of the school

board selection process and apparently no

debate over the relative merits of ap-

pointed and elected school boards.

Although the 1971 constitution wrought

dramatic (and racially’ progressive)

changes in other areas pertaining to

education, one cannot readily assume that

16 a

such breaks with the past carried over to

the school board selection provision

which was retained without change and

with virtually no debate.

Nonetheless, the district court

also relied on a much more persuasive

piece of evidence in finding that the

defendants had met their burden of

rebutting the inference of discriminatory

intent. The court pointed to the 1984

Study commissioned by the state legis-

lature to evaluate the pros and cons of

elected and appointed school boards.

That study clearly set forth solely

legitimate reasons for choosing an

appointed school board over oa popularly

elected body. The evidence also showed

that the state legislature subsequently

considered bills that would have changed

the law to allow elected school boards.

The district court did not clearly err in

17 a

finding such evidence sufficient to

demonstrate a lack of discriminatory

intent in the current maintenance of the

appointive system. 2/ Accordingly, the

plaintiffs’ equal protection claim must

foil.

III.

The Supreme Court has emphasized

that “racially discriminatory motivation

is a necessary ingredient of a Fifteenth

Amendment violation.” Mobile v. Bolden,

44ug6 U.S. 55, 62, 100 S.Ct. 1490, 1497, 64

L.Ed.2d 47 (1980) (plurality opinion).

Accord, Washington y. Finlay, 664 F.2d

913, 919 (4th Cir. 1981). Since the

2 The district court’s findings

would be more convincing had it

investigated the legislative debate over

the various bills to determine whether

supporters of appointed school boards

articulated the arguments found in the

1984 study. Nonetheless, the district

court’s failure to discuss the content of

the legislative debates after 1984 does

not necessitate reversing its factual

findings as clearly erroneous.

18 a

defendants proved the absence of discri-

minatory intent in the current main-

tenance of the appointive system for

school boards, the plaintiffs cannot

establish a Fifteenth Amendment viola-

tion.

IV,

Plaintiffs purport to assert a due

Process claim under’ the Fourteenth

Amendment. However, they raise no argu-

ments in support of the claim other than

those asserted under their equal protec-

tion claim. In reality, their claim is

one alleging a violation of equal pro-

tection rather than of due process. The

district court properly dismissed the

Plaintiffs’ Fourteenth Amendment Due

Process claim.

V,

Plaintiffs’ voting rights claim

presents fe Closer question, if the

19 a

question is properly before us at all.

Whereas a plaintiff must prove discri-

minatory intent to succeed on a claim

under the Equal Protection Clause or the

Fifteenth Amendment, a showing of dis-

criminatory effect may suffice to esta-

blish a violation of Section 2 of the

Voting Rights Act of 1965. See Thornburg

vy. Gingles, 478 U.S. 30, 35, 106 S.Ct.

2752, 2758, 92 L.Ed.2d 25 (1986), citing

S.Rep. No. 97-417, p. 28 (1982).

At the outset, we have considerable

doubt as to whether Virginia’s choice of

an appointive system over an elective

scheme for selecting school board members

even implicates Section 2 of the Voting

Rights Act. The defendants argue that

Section 2 applies only where the state

decides to choose officials through an

election. The language of Section 2

offers some support for the defendants’

| 20 a

Le oe

position:

A violation of subsection (a)

is established if, based on the

totality of circumstances, it

is shown that the political

Processes leading to nomination

Or election in the State or

Political subdivision are not

equally open to participation

by members of a class of citi-

zens protected by subsection

(a) in that its members have

less opportunity than other

members of the electorate to

Porticipate in the political

Process and to elect repre-

sentatives of their choice.

% .§.t. Section 1973(b) (emphasis

added). The defendants argue that where

no one, black or white, has the right to

participate in a popular election of

school board members, Section 2 is in-

applicable. The few courts that have

addressed the issue have found Section 2

inapplicable to appointive offices.

searcy v, Williams, 656 F.2d 1003, 1010

(Sth Cir. Unit B 1981) (school board),

off’d without op, sub nom. Hightower y.

Searcy, 455 U.S. 984, 102 S.Ct. 1605, 71

21a

L.Ed.2d 844 (1982); Williagms vy. State

Board of Flections, 696 F.Supp. 1563,

1568-69 (N.D. Ill. 1988) (state circuit

judges). See also Dillard vy. Crenshaw

County, 631. f.26° 296... 258 f. 22 ALLA

Car: jawed

Nonetheless, we will refrain from

holding Section 2 inapplicable here be-

cause of the ambiguity of congressional

intent In such a circumstance as the

present one, concluding, as we do, that,

even if applicable, Section 2 has not

been violated, we are reluctant to rush

to decision that it does not apply when

decision is not requirea anda situation

Similar to but not identical with what is

here presented may arise ina subsequent

case. The situation is one calling for

us to eschew dictum although, seen in the

light of the instant case, it appears

more probable than not that Section 2 is

22 a

not applicable to appointive offices.

Congress clearly believed that the choice

between an elective and an appointive

scheme implicated Section 5 of the voting

Rights Act, 42 U.S.C. Section 1973c,

which requires certain jurisdictions in

the United States to obtain “preclear-

ance” of proposed changes in procedures

or requirements that could affect voting

rights. See $.Rep. 97-417 at 6-7, re-

Printed in 1982 U.S. Code Cong. & Admin.

News 183; Perkins v. Matthews, 400 U.S.

379, 389-90 n. 8, 91 S.Ct. 431, 437 n, 8,

27 L.Ed.2d 476 (1971); Robinson v. Ala-

boama State Dep't of Education, 652

F.Supp. 484, 485 (M.D.Ala. 1987); County

Council vy. United States, 596 F.Supp. 35,

38 (D.D.C. 1984). In addition, Congress

recently expressed concern about shifts

from appointive to elective systems in

discussing the 1982 amendments to the

23 a

Voting Rights Act, but failed = make

clear whether such shifts implicated only

Section 5 of the Act or Section 2 as

well. See H.Rep. 97-227, 97 Cong. 2d

Sess. 18 (1982) (discussing “discrimina-

tory elements of the elections process

such as at-large elections, high fees and

bonding requirements, shifts from elec-

tive to appointive office....” (emphasis

added)).

Congress did not necessarily intend

that acts covered by Section 5 would also

implicate section 2. Section 5 covers

only certain jurisdictions in the coun-

try, those which congress has found to

have the worst record of voting discri-

mination. See S.Rep. 97-417 at 15, re-

printed in 1982 U.S. Code Cong. & Admin.

News 192. Congress might have wished to

keep a closer eye on those states than on

jurisdictions with a more benign history

24 a

in voting matters. We have some doubts

as to whether Congress intended the scope

of Section 2 to extend so broadly as to

encompass a_ state's choice between an

elective and an appointive system for

filling a given office, even when that

choice was made years before enactment of

the Voting Rights Act. Extending Section

2 that far could have dramatic and far-

reaching effects.

We leave open the question whether

Section 2°s reach extends so broadly.

Even if Section 2 applied here, the

Plaintiffs have failed to prove that the

appointive system for school boards has

Produced discriminatory results. The

Plaintiffs argue that they have shown two

types of discriminatory effects: (1)

blacks are underrepresented on_ school

boards in relation to their numbers in

the general population, and (2) blacks

2> a

are underrepresented in the offices or

governing bodies that ultimately appoint

school board. members. However, we con-

clude that the district court did not

clearly err in finding that the ap-

pointive system did not create discri-

minatory effects insofar as the repre-

sentation of blacks on school boards is

concerned. Moreover, insofar as the

plaintiffs challenge the racial compo-

sition of the officials who appoint

school board members, they seek relief

that far exceeds the scope of this law-

suit, which focuses on the selection of

school boards rather than on the manner

of choosing the selecting officials.

First, we examine the alleged

underrepresentation of blacks on school

boards. Clearly, no disparity exists on

a statewide basis. The district court

found that in Virginia as a whole,

“placks comprised approximately 18% of

the voting population and approximately

18% of all school board members state-

Wide.” Irby, 693 F.Supp. at 433-34.

However, we believe the proper com-

Parison must focus not on the statewide

averages, but rather on the figures for

the five local jurisdictions at issue in

this appeal: Buckingham, Halifax, Not-

toway, and Prince Edward counties and

the City of Petersburg.

Although the district court found a

“significant disparity” in Buckingham and

Holifax counties between the percentage

of blacks in the population and the ra-

cial composition of the school boards,

the court found no_ proof that the ap-

pointive process caused the disparity.

Irby, 693 F.Supp. at 434. The court’s

findings on this point are not clearly

erroneous. The evidence showed that

27 a

“although blacks comprise a large

portion of the population, they are not

seeking school board seats in numbers

consistent with their percentage of the

population. ” Id. For example, since

late 1971 every black individual who

formally requested appointment to the

Buckingham County School Board was placed

on the board. In Halifax County, the

evidence showed at least one instance

where a black individual was nominated

for the school board but voluntarily

withdrew before appointment.

In the other three jurisdictions,

the district court discounted the signi-

ficance of the disparities between the

percentage of the population that was

black and the percentage of school board

seats held by black individuals. In

Nottoway and Prince Edward counties, the

addition of one extra black on each

28a

school board would cure the disparity.

Most, though not all, of the statistical

disparity would vanish in Petersburg if

one more black were appointed to the

school board. The wide statistical swing

produced by the addition of a single

black school board member in each of the

three jurisdictions raises serious doubts

as to whether the disparities are sta-

tistically significant. The defendants

produced expert testimony discounting the

Statistical significance of the figures

in the defendant jurisdictions. More-

over, the Supreme court has recognized

the dangers of drawing conclusions from

Statistics involving boards with rela-

tively few members. See Mayor of Phila-

delphia vy. Educational Fauglity League,

ois, @.s. Geo, Sil, 99 $.C8. 1325, 15ZUr

29, 39 L.Ed.2d 630 (1974) (upholding

district court finding that there was no

290

Significance in the differences between

the percentage of blacks ona _ board and

the percentage of blacks in the city’s

population; “the number of positions on

the Panel was too small to provide a

reliable sample; the addition or sub-

traction of a single Negro meant an 8%

change in racial composition.”). The

panel at issue in Educational Fauality

League had 13 members. Id. None of the

school boards at issue in the present

case has more than nine members; one has

only five members.

In sum, the district court did not

Clearly err in finding that the ap-

pointive system did not produce discri-

minatory effects insofar as black repre-

sentation on school boards was concerned.

The evidence cast considerable doubt on

the existence of a causal link between

the appointive System and black

30a

underrepresentation in Buckingham and

Halifax counties. In addition, the

Plaintiffs failed to establish that the

disparities in other three jurisdictions

were statistically significant.

Alternatively, the plaintiffs at-

tempt to prove discriminatory effects by

focusing on the racial makeup of the of-

ficials who appoint school board members

in the defendant jurisdictions. The

plaintiffs argue that blacks are denied

the opportunity to participate equally in

the appointment process because most of

the officials who select school board

members are themselves white. Plaintiffs

assert that blacks are underrepresented

on the governing bodies that appoint

school board members in Petersburg and in

Halifax and Prince Edward counties. In

Buckingham and Nottoway counties, white

circuit judges appoint the selection

31a

————————

commission which in turn chooses’ the

school board members

We reject the plaintiffs’ attempt to

prove a discriminatory impact by focusing

on the racial makeup of the officials who

appoint, either directly or indirectly,

the school board members First, to the

degree that blacks are underrepresented

on the elected governing bodies in Hali-

fax and Prince Edward counties and the

City of Petersburg, the plaintiffs’ re-

medy is to bring a suit under the Voting

Rights Act challenging directly the

electoral schemes for choosing members

of those bodies. Plaintiffs have not

mounted such a direct challenge in the

present case. As for the fact that

white judges are ultimately, though

indirectly. responsible for selection of

school board members in Buckingham and

Nottoway counties, the plaintiffs have

320

produced no evidence of racial discrimi-

nation in the selection of those judges.

Circuit judges in Virginia are generally

chosen by the state legislature. Va.Code

Section 17-121. Yet the plaintiffs have

produced no evidence as to _ the circum-

stances surrounding the legislature’s

selection of the circuit judges for

Buckingham and Nottoway counties. Many

questions are unanswered. For example,

did black legislators support the white

circuit judges who were ultimately se-

lected? Were the judges endorsed by

white legislators who had received

Widespread black support in the most

recent election? The plaintiffs never

attempt to answer these questions, but

instead focus merely on the race of the

Circuit judges. The mere fact that the

judges were white does not prove that

discrimination existed.

33a

In short, the district court did not

clearly err in concluding that the ap-

pointive system did not have a discrimi-

natory impact on blacks in the five de-

fendant jurisdictions. Having proved no

discriminatory effect, the plaintiffs

cannot establish a violation of Section 2

of the Voting Rights Act of 1965, even if

it applies (a matter of some doubt).

VI.

Having found no violations of the

Equal Protection Clause and the Fifteenth

Amendment, we likewise conclude that

plaintiffs’ First and Thirteenth Amend-

ment claims must fail In voting rights

cases, the protections of the First and

Thirteenth Amendments “do not in-= any

event extend beyond those more directly,

and perhaps only, provided by the

fourteenth and fifteenth amendments

Woshington v. Finlay, 664 F.2d 913, 927

34a

(4th Cir.1981), cert, denied, 457 U.S.

stay, 202 $.Ct. @659, 73 1. €G.2d 1333

(1982).

VII.

In conclusion, the plaintiffs have

failed to establish a violation of Sec-

tion 2 of the Voting Rights Act of 1965

or of the First, Thirteenth, Fourteenth

or Fifteenth Amendments. The judgment of

the district court is

AFFIRMED.

35a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

DARIUS IRBY, et al. )

)

Plaintiffs, )

)

Vv. ) Civil Action No.

) 87-0633-R

SUSAN H. FITZ-HUGH, )

et al. )

)

Defendants. ) Filed May 16, 1988

ORDER

This matter is before tne Court on

the parties’ cross motions for summary

judgment pursuant to Fed. R. Civ. P. 56.

For the reasons stated in the

accompanying memorandum opinion:

The plaintiffs’ motion for summary

judgment is DENIED.

The defendants’ motion for summary

judgment is GRANTED as to those causes of

action alleging violations of the First

and Thirteenth Amendments and the due

36a

Process Clause of the Fourteenth

Amendment. The defendants’ motion is

DENIED as to the plaintiffs’ claims of

Violations of the Fifteenth Amendment,

the Voting Rights Act and the Equal

Protection Clause of the Fourteenth

Amendment.

Let the Clerk send a copy of this

order to all counsel of record.

5/16/88 a wpa

Date U.S. District Judge

370

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

DARIUS IRBY, et al. )

)

Plaintiffs, )

)

Vv. ) Civil Action No.

) §87-0633-R

SUSAN H. FITZ-HUGH, )

et al. )

é )

Defendants. )

Filed May 16, 1988

MEMORANDUM OPINION

This matter is before the Court on

the parties’ cross motions for summary

judgment pursuant to Fed. R. Civ. P. 56.

The plaintiffs are black representative

voters from Nottoway, Buckingham, Prince

Edward, Halifax Counties and the City of

Petersburg, the Southern Christian

Leadership Conference and Citizens for a

Better America. They challenge

Virginia's appointive process for

selecting school board representatives on

38a

the grounds that an appointive process

was chosen and is maintained with the

intent to deprive blacks of the equal

opportunity to participate in the selec-

tion of school board members. The de-

fendants are the Secretary of the State

Board of Elections, the State Board of

Elections, Nottoway and Buckingham

Counties’ School Board Selection Com-

missions and Electoral Boards, Prince

Edward and Halifax Counties’ Boards of

Supervisors and Electoral Boards, and

Petersburg’s City Council and Electoral

Board. These are the bodies responsible

for the appointment of school boards and

the administration of elections.

The plaintiffs allege violations of

the First, Thirteenth, Fourteenth and

Fifteenth Amendments and Section 2 of the

Voting Rights Act of 1965 (as amended in

1982), 42 U.S.C. Section 1973. For the

39a

reasons set forth below, the plaintiffs’

claims under the First Amendment, Thir-

teenth Amendment’, and the due Process

clause of the Fourteenth Amendment are

dismissed for failure to state a cause of

action upon which relief can be granted.

Resolution of the remaining claims on

summary judgment is inappropriate on the

incomplete record before the Court. The

Plaintiffs must substantiate the contin-

uing discriminatory effects suggested by

the current record. For example, it

appears from the limited information

before the Court that the manner in which

aq county chooses a_ school board has a

dramatic effect on black representation.

Blacks are underrepresented, in counties

with a significant black population, in

most instances where school board selec-

tion commissions choose school board

members. Conversely, the State and

40a

localities, to prevail, must demonstrate

that the actions they took to bring about

aq new age of racial equality in Virginia

are causally related to’ the proportional

representation of blacks on school

boards.

The plaintiffs challenge each of the

four ways school boards are appointed in

Virginia. Under Va. Code Section 22.1-34

et seq., the school board is appointed by

aq three person school board selection

commission which is in turn appointed by

the local circuit court judge. Nottoway

and Buckingham Counties use this system

of appointment. Counties which do not

have either a County Executive, County

Manager, County Board or Urban County

Manager form of government are included

in Section 22.1-34. Under a 1970 amend-

ent, Va. Code Section 22.1-41, et seq.,

Nottoway, Buckingham and similarly sit-

4ila

uated counties can hold a referendum to

transfer the appointment power from the

non-elected school board selection com-

mission to the governing body.

Under the second means, Va. Code

Sections i5.41-603 County Executive),

15.1-644 (County Manager), 15.1-708

(County Board), or 15.1-770 (Urban County

Manager), the county board of supervisors

appoints members of the school board.

Prince Edward and Halifax counties employ

this system. In cities and towns, such

as Petersburg, the governing body ap-

points the school board, Va. Code Sec-

tion 22.1-50. In three school districts

in Virginia, none of which are a party to

this litigation, the county board of

Supervisors and the city’s city council

appoint the school board where the school

district overlaps the city and county

boundaries, Va. Code Section 22.1-53.

420

Although the record is incomplete,

there are some facts that are not in

dispute .1/ Virginia's General Assembly

1 The Plaintiffs submitted the

declaration of Peyton McCrary, a

historian who has conducted extensive

research in the field of Virginia and

Southern voting practices. The

declaration is in the form of an

affidavit, and Professor McCrary has

gathered a wide range of information to

support his conclusions and opinion that

the appointive system of selecting school

boards has been maintained to deprive

blacks of participation in the process.

Although the defendants have not

submitted an affidavit contradicting

Professor McCrary’s conclusions,

McCrory’s statement is insufficient to

support a motion for summary judgment.

An affiant usually has first hand

knowledge of the facts he attests to.

McCrory’s declaration, on the other hand,

rests largely on secondary sources--

hearsay. Therefore, although his

declaration is insufficient for the

purposes of a summary judgment motion,

his testimony oat triaql as an expert

witness would be probative. See Hunter

Vv, Underwood 471 US 222, 228-29

(1985).

The plaintiffs have asked that the

Court take judicial notice of the facts

contained in Prof. McCrary’s statement.

To the extent appropriate under Rule 201,

Fed R. Evid., the Court has acceded to

that request.

43q

in 1870 made the decision to appoint

rather than to elect school board

members. The Public Free School Law,

passed July 11, 1870, provided for the

appointment of “school trustees” by the

State Board of Education. Acts of the

General Assembly of Virginia, 1869-70,

Chapter 259, (July 11, 1870), 408-09.

(Hereinafter “Acts”) The three school

trustees appointed in each district had

duties similar to modern school boards.

In 1877, the General Assembly transferred

the appointment decision from the state

school board to local school trustee

electoral boards comprised of the county

superintendent of schools, the county

judge and the attorney for the Common-

wealth. Acts, 1876-77, Ch. 12, (Jan. 11,

1877), 9-10. Although the selection

SWitched back to a central board at

times, the local appointive bodies were

44a

responsible for selecting school board

members at the turn of the century.

At the Virginia Constitutional

Convention of 1901-02, the Convention

considered the possibility of electing

local school boards. The Committee on

Education recommended that the new con-

stitution provide:

In each school district there

shall be elected by the people

three school trustees, whose

terms of office shall be four

years: Provided, that in cities

and towns constituting separate

school districts school

trustees shall be elected or

appointed, as may be provided

by law.

Report of the Proceedings and Debates of

the Constitutional Convention, State of

Virginia, 1901-02, 1828 (1928). Mr.

McIllwain, a proponent of the provision,

reported that the rationale for the

change was that the current system re-

sulted in nepotism, inefficient school

systems and a lack of responsiveness to

4Sq

the people. Id. Immediately, an amend-

ment was offered which replaced the

words “elected by the people” and sub-

Stituted the words “selected in a manner

provided by law,” and deleted the last

phrase beginning “Provided.”

The amendment prompted a debate led

by Mr. J.B.T. Thornton, a member of the

Committee on Education, who announced:

[I) shall vote against the

report made by the committee

for this reason... . Although

it is claimed that the white

peopie control absolutely their

local affairs throughout’ the

State, it is a mistake, and if

this report is adopted, as

presented here, there are a

number of counties in the

State in which we will have

negro [sic] trustees. That is

a condition of affairs that is

abhorrent I believe we

would be doing injustice to the

white people of the State to

undertake to place election of

trustees in the hands of the

people.

Proceedings at 1829. His comments were

echoed by another, Mr. Eggleston:

46a

I endorse everything that has

been said by the gentleman from

Rockingham on this subject, and

Will add thot, as _ the matter

now stands, we would not only

be liable, but likely to have

negro [sic] school trustees in

a good many districts in the

State, if the trustees are

going to be elected by the

people.

Id. After changing the period of

appointment from 4 years to that to “be

prescribed by law,” the Convention passed

the amended provision. The provision in

effect left it up to the General Assembdly

to decide the method of selection

In 1904, the General Assembly en-

acted a law that provided for the esta-

blishment of local school trustee elec-

toral boards comprised of the superin-

tendent, the Commonwealth's attorney and

ag private citizen appointed by the cir-

cuit court judge. Acts, Extra Session

1902-04, Sections 1450, et seq., 806-812.

In 1926, the composition of the elec-

47q

toraql board was changed to three citi-

zens all appointed by the local circuit

judge, Acts, 1926, Chap. 106, 104, and

changed again in the 1930’s to allow for

counties with county manager or county

executive forms of government to have the

school board appointed by the Board of

Supervisors.

In 1947, the General Assembly

amended the statutes governing school

board selection to provide certain coun-

ties the option to elect school board

members. Acts, 1947, Chap. 61 (Jan. 30,

1947), 113-16. Arlington county there-

after elected a five-member school board

in an at-large election In 1956. the

General Assembly repealed the _ local

election provision and adopted Va. Code

Section 22-83.2 which stated that “no

school board shall be elected by popular

vote in and for any county or city.”

48a

Acts, 1956, Chap. 591, (March 31, 1956),

949-50. The repeal of the elective op-

tion followed in the wake of the Supreme

Court’s ruling in Brown v. Board of Edu-

cation, 347 U.S. 483 (1954).

The appointive process has also been

modified slightly in recent years. In

1970, counties that use school board

election commissions (Va. Code Section

22.1-34) were granted authority to change

to a system, if the populace voting by

referendum agreed, where the elected go-

verning body appoints the school board

members Va. Code Section 22.1-42. The

General Assembly also added in 1980 a

Provision that allows a county to return

to the use of using school board election

commissions. Va. Code Section 22.1-45.

A 1985 amendment requires that a public

hearing be held “to receive the views of

citizens within the school division” on

49q

ae

]

school board members who may be appointed

by the county Board of Supervisors. Va.

Code Section 22.1-29.1 (1985).

In this case, the Court is asked to

consider these state statutes and the

interplay of several constitutional

amendments In seeking to draw the

boundaries of the scope of each of these

constitutional provisions, the Court must

be careful not to read one amendment so

expansively as to render another amend-

ment superfluous. Prior precedent and

reason suggest that the Equal Protection

Clause of the Fourteenth Amendment and

the Fifteenth Amendment reach further in

these circumstances and afford greater

protection than the First and Thirteenth

Amendments . Consequently, only the

Fourteenth Amendment’s Equal Protection

clause, the Fifteenth Amendment’ and

Voting Rights Act possibly provide the

50a

plaintiffs protection from the alleged

evils of Virginia's statutory scheme.

Therefore, the plaintiffs First Amend-

ment, Due Process and Thirteenth

Amendment claims must be dismissed.

The First Amendment protects’ the

right to associate for political purposes

and to participate in the political pro-

gress at the local level. This protec-

tion does not create any entitlement for

blacks to have greater participation in

the appointment of school board members

than afforded by Virginia's facially

neutral statutes. See Sailors v. Kent

Board of Education, 387 U.S 105, 108

(1967) (The Court found no constitutional

prohibi-tion to appointive school

boards.) The plaintiffs argue that the

statutes violate the First Amendment as

applied because the 1904 and 1956

General Assemblies enacted and

Sla

maintained the statutory schene for the

purpose of denying blacks access to the

political process. Because the statutes

were enacted for an illegal motive, they

violate the First Amendment, assert the

Plaintiffs. The Supreme Court’ has

repeatedly rejected such an argument:

It is a familior principle of

constitutional law that this

Court will not strike down an

otherwise constitutional

statute on the basis of an

alleged illicit legislative

motive, As the Court long ago

Stated: “The decisions of this

Court from the beginning lend

no support whatever to the

assumption that the judiciary

may restrain the exercise of

lawful power on the assumption

that a wrongful purpose or

motive has caused the power to

be exercised ” McCrary V

United States, 1395 6 6 §8.$. #7

(1904).

United States v. O’Brien, 391 U.S. 367,

383 (1968) See also, Arizona vy.

California, 283 U.S. 423 (1931).

To prevail the plaintiffs must

demonstrate “that the inevitable effect

520

of a statute on its face may render it

unconstitutional.” O’Brien, 391 U.S. at

384 (emphasis added). “Inevitable

effect” has been narrowly defined. In

Grosjean vy. American Press Co., 297 U.S

233 (1936), the Court invalidated a tax

on publications because the _ statute on

its face imposed a tax only on publica-

tions--infringing the publications’

freedom of press rights. Similarly in

Gomillion v. Lightfoot, 364 U.S. 339

(1960), the Court overturned the re-

drawing of municipal boundaries because

the “inevitable effect,” 364 U.S. at 341,

was “to deprive the petitioners of their

right to vote for no reason other than

they were Negro.” Q'’Brien, 391 U.S. at

385. “In these cases, the purpose of the

legislation was irrelevant, because the

inevitable effect--the ‘necessary scope

and operation,’ McCrary v. United States,

53a

195 U.S. 27, 59 (1904)--abridged consti-

tutional rights.” Id. The statutes at-

tacked in the instant case have no such

inevitable unconstitutional effect. Al-

though several original supporters of an

appointive school board scheme hoped the

effect of the statutes would exclude

blacks from school boards. the effect was

by no means “inevitable.” Indeed, one of

the central disputes in this litigation

is the effect of these statutes on

blacks’ role in the selection of and

participation on school boards. Vir-

Qinia’s appointive scheme does not

facially place a unique burden on blacks

such aS a newspaper tax, nor does it

exclude black participation with the

precision of a municipal boundary.

For similar reasons the plaintiffs’

claim under the due Process clause of the

Fourteenth Amendment cannot withstand the

S4a

defendants’ summary judgment challenge.

The Fourteenth Amendment provides in part

that no “state shall deprive any person

of life, liberty, or property. without

due process of law...” A party seeking

relief under the Due Process clause must

establish first, that he has been depri-

ved by the state of “life, liberty, or

property,” and second, that the depriva-

tion occurred without “due process.” No

liberty interest or property right is

implicated here. No constitutional pro-

vision prohibits the appointment of

school boards, Sailors vy, Kent County,

387 U.S. 105, 108 (1967). nor is there

any First Amendment right at stake.

The plaintiffs rely upon Duncan v.

Poythess, 657 F 2d 691 (11th Cir. 1981),

reh. denied 664 F.2d 291, cert. dismissed

459 U.S. 1012 (1982), but this case is

inapposite. In Duncan, the governor of

5Sa

Georgia appointed a state Supreme Court

justice instead of holding a_ special

election to fill a vacancy created by a

resigning justice. The appointment con-

travened state law, as the court noted:

“It is fundamentally unfair and consti-

tutionally impermissible for public of-

ficials to disenfranchise voters in vio-

lation of state law. ° Id at 704

Here, the act of appointing school boards

does not violate any law. It does not

contravene a pre-existing right to vote.

The plaintiffs also suggest that the

discriminatory intent of the legislature

in enacting these statutes make them a

violation of due process. This argument

foils for the same reasons as their First

Amendment argument. Legislative intent

standing alone is not enough. Palmer vy.

Thompson, 403 U.S. 217, 224 (497i)

(Speaking about the Equal Protection

56a

Clause, the Court stated: [Nlo case in

this Court had held that a legislative

act may violate equal protection solely

because of the motivations of the man who

voted for it.”) To trigger close judi-

Cial scrutiny of a legislative enact-

ment, the plaintiffs must first identify

the fundamental right the statute in-

fringes upon. They have not done so

here. Therefore the plaintiffs’ Due

Process claim is dismissed.

The plaintiffs have also asserted a

Thirteenth Amendment claim. That amend-

ment reads: “Neither slavery nor invo-

luntary servitude... shall exist within

the United States...” The core of liti-

gation under this statute has been chal-

lenges to practices that amount to invo-

luntary servitude See, e.g., Hurtado v.

United States, 410 U.S. 578 (1973) (in-

carceration of witness for want of secu-

570

rity of his appearance and payment of $1

aq day asa witness fee is not invoiun-

tary servitude); Marcus Brown Holding Co.

vy. Feldman, 256 U.S. 170 (1921) (state

Statute penalizing lessor’s intentional

failure to furnish tenant water or heat

did not amount to involuntary servitude);

United States y Wright, 474 F.2d 853

(9th Cir.), cert. denied 414 US 870

(1973) (requiring work of national import

in lieu of military service is constitu-

tional); Bertelsen v. Cooney, 213 F 2d

47a AStM. Cir.)... @LE gl oes 8:35... Fe

(1954) (special draft registration of

doctors); NLRB vy. Wine, Liquor &

Distillery Workers Union, et al., 178

F.2d 584 (2nd Cir. 1949) (statute pre-

scribing secondary boycott as an unfair

labor practice is constitutional) ;

Freeman v. Freeman, 397 A.2d 554 (D.C

1979) (ordering the parent to pay child

58a

Support and to seek gainful employment

does not violate the Constitution)

The Thirteenth Amendment has also

been used as a tool to eradicate all

“incidents and badges of slavery.”

Washington v. Finlay, 664 F 2d 913, (4th

Cir. 1981), cert, denied 457 U.S. 1120

(1982); Jones v. Alfred H. Maver Co,, 392

U.S. 409 (1968). Although the debates of

the 1902 Constitutional Convention cer-

tainly sugggest that an appointive sys-

tem for the selection of school boards

was chosen to limit black participation,

the protection afforded by the Thirteenth

Amendment, however. cannot be interpreted

fo reach all acts of racial discrimina-

tion. The Fourth Circuit's decision in

Washington v. Finlay, 664 F 2d 913, 927

(4th Cir. 1981), gives guidance: “In the

realm of voting. we think the thirteenth

amendment offers no protections not gl-

59a

ready provided under the fourteenth or

fifteenth amendments. ~ Congress has

enacted legislation that not only gives

practical effect to the Thirteenth

Amendment, but also sets the parameters

of the amendment’s reach See Memphis v.

Greene, 451 US 100, 131-35 (1981)

(Justice White concurring): 42 US C

Sections 1981, 1982 With no precedent

to guide it and no _ need to break new

ground in this area. the Court holds that

the Thirteenth Amendment does not reach

the actions complained of here The

Fifteenth Amendment. the voting Rights

Act and the Equal Protection Clause of

the Fourteenth Amendment address the

issues directly and can provide adequate

protection and relief to the plaintiffs.

To state a cause of action under the

Fifteenth Amendment, the plaintiffs must

show an outright denial of the ballot by

60a

the state with a racially discriminatory

motive. The State suggests that since

the school board is an appointive system,

no right to vote is implicated.

After 1947, however, the school

board could have been an elected body.

An act of the General Assembly permitted

counties that operated under a county

manager system and which had abolished

magisterial districts to elect its

school board. Acts, 1947, Chap. 61 (Jan.

30, 1947), 113-16 (adding new sections

Va Code Sections 22-84 -22-88 1) Al-

though only Arlington County qualified

at the time, the low was enacted asa

general law.2/ Over the course of time

and demographic changes, every county in

the state may have qualified under the

law. In 1956, the General Assembly re-

2 See, Acts, 1947, Chap. 41, (Jan.

30, 1947) 91-93,

6la

pealed this grant of the ballot The

Court judicially notes that the repeal

followed closely after the Supreme Court

handed down Brown v. Board of Education,

347 U.S. 483 (1954), and the plaintiffs

have submitted evidence that the repeal

wos motivated in part to ensure that

blacks would not become influential on

school boards. In 1956, then, the Fif-

teenth Amendment was an appropriate

means for attacking the new legislation.

Thirty years loter, the burden rests with

the plaintiffs to demonstrate that they

are currently harmed by the decision in

1956 to return to an appointive system

and that the harm warrants the remedy

they seek.

Notwithstanding the 1947 act and its

repeal in 1956, the Fifteenth Amendment

is also the appropriate means by which to

challenge the appointive system given the

62a

peculiar character of school. boards.

They are not purely administrative

bodies. Whether appointive or elected,

they are politically suffused. The

actions of the school board are the

subject of constant debate among citi-

zens. It is the body charged with

maintaining the type of schools people

want at a price people are willing to

pay. Thus, it is nearly impossible for

the school board to escape from the its

[sic] political aura. As further evi-

dence of its political nature, every

other state in the country permits some

form of elective school boards.

The Voting Rights Act of 1965, 42

U S.C. Section 1973 (1986) also provides

Plaintiffs a cause of action. Under

Section 2 of the Voting Rights Act, a

Plaintiff must demonstrate that the

proscription of a “voting qualification

63a

Or prerequisite to voting or standard,

practice or procedure... which results in

a denial or abridgment of the right of

any citizen... to vote” was motivated by

race Furthermore, “aq violation... is

established if, based on the totality of

the circumstances, it is shown that the

political processes leading to nomination

or election in the State or political

Subdivisions are not equally open to

participation by members of a class of

citizens... in that its members have less

opportunity than other members of the

electorate to participate in the politi-

al process and to elect representatives

of their choice.” 42 U.S.C. Section 1973.

The plaintiffs claim that the sta-

tutory scheme of selection, a “practice

or procedure,” replaced in 1956 their

right to vote for school board members

for racially discriminatory reasons. The

640

effect of this practice, assert the

Plaintiffs, is to deny them the oppor-

tunity to equally participate in the

political process. Therefore, the

Plaintiffs have stated a prima facie

case However, even if the 1956 General

Assembly's act of repealing the possibi-

lity of electing school board members is

interpreted to be a denial of the right

to vote. there is still a problem of

retroactivity.

The Voting Rights Act was enacted in

1965. The General Assembly repealed the

right to vote for school boards in 1956.

There is nothing in the statute’s plain

language, legislative history, or judi-

cial construction to suggest that the

Act is retroactive. Since there has not

been any similar denial since 1956, the

States’ argument that the Voting Rights

Act cannot apply because there has been

650

no denial of the right to vote seems

persuasive at first blush The Voting

Rights Act’s remedial purpose requires

that the Court inquire further into the

State’s practice The Act is designed to

ensure minority voters, who have histo-

rically been victims of purposeful dis-

crimination, an effective right to po-

litical participation. Ss. Rep. No. 9/-

417, 937th Cong., 20 Sess. (1982), re-

printed in 1982 U.S. Code Cong. and Ad.

News 177. The plaintiffs allege that

Virginia enacted and has maintained an

appointive system in order to diminish

black participation in the school board

process. If the selection process was

elective, federal statutes and consti-

tutional provisions regulating state

behavior would surely govern. Since the

process is appointive, argues the State,

the federal statutes do not govern. The

660

Voting Rights Act, however, seeks to

purge the political process of all means

employed to diminish minority voting

power, specifically including “shifts

from elective to appointive office.” H.

Rep. 97-227, 97th Cong., 2d Sess. 18

(1982). Although the shift from poten-

tially electing school board members to

appointing them occurred before the

passage of the Act, the effects, if any,

of that decision are felt each time a

school board is selected. |

To hold. as the State requests, that

the Voting Rights Act applies only to

instances where a state chooses to hold

elections but does not apply where the

State purportedly rejects elections in

favor of ag discriminatory appointive

System would unnecessarily narrow the

limits of the Voting Rights Act. To be

fully effective, the Voting Rights Act

67a

must reach all state behavior designed to

limit participation in the political

process because of a person’s skin color.

Arguably such an expansive reading

of the Voting Rights Act threatens to

encroach on areas reserved to the states

by the Constitution. The Supreme Court,

in considering the constitutionality of

the Act, wrote:

As against the reserved powers

of the States, Congress may use

any rational means to effec-

tuate the constitutional pro-

hibition of racial discrimina-

tion in voting.

The gist of the matter is that

the Fifteenth Amendment

supercedes contrary exertions

of state power. “When a State

exercises power wholly within

the domain of state interest.

it is insulated from federal

judicial review. But such

insulation is not carried over

when state power is used as an

instrument for circumventing a

federally protected right

“Gomillion v. Lightfoot, 364

mF ot 347. 5 t. €6. Ze ot

68a

South Caroling v. Katzenbach, 383 U.S.

301, 324-25 (1966). Therefore, the

Voting Rights Act does not necessarily

reach a_state’s decision to make an

office appointive or elective, but does

reach such action where an appointive

System is selected over an elective

System for the purpose of excluding

blacks from the political process.

Although Virginia made this alleged

decision prior to the enactment of the

Voting Rights Act, the plaintiffs can

Still state oa claim under the Act to the

extent that the effects of that decision

are currently felt by the black

population.

Similarly, the plaintiffs have

stated a claim under the Equal Protection

Clause of the Fourteenth Amendment and

have presented evidence sufficient to

withstand the defendants’ motion for

69a

summary judgment. The Equal Protection

Clause mandates that “No state shall...

deny to any person within its jurisdic-

tion the equal protection of the laws.”

Although the plaintiffs do not have a

constitutional right to be appointed to

local school boards, they do have a right

to be considered for public service on an

equal basis with whites. They claim that

the appointive system cannot give them an

equal opportunity for appointment because

of its original discriminatory purpose.

The plaintiffs assert that they need

only demonstrate that the appointive

system was originally enacted in 1904 and

reinstated in 1956 to deprive blacks of

equal participation in the school board

selection process in order to prevail on

their Fifteenth Amendment, Voting Rights

Act, and Equal Protection clause claims.

This argument foils for several reasons.

70a

First, as noted earlier, conclusive

evidence of the original drafters’ intent

and the 1956 legislators’ motivation is

not properly before the Court for pur-

poses of summary judgment. The testi-

mony of experts on their interpretation

of events and sources for their opinions

can be heard at trial. To accept the

facts as set forth in the expert's affi-

davit would exceed the Court’s power of

judicial notice and force the Court to

decide issues of material fact which the

defendants contest, a task forbidden by

Rule 56, Fed. R. Civ. P., on summary

judgment motions.

Second, even if the Court accepted

the facts as set forth by the plaintiffs’

expert as true, tne events complained of

happened long ago. The plaintiffs com-

Plain of current harm, and therefore

must demonstrate current acts that work

71a

to deprive them of equal participation in

the scheel hoord selection nrocece The

Fifteenth Amendment's and the Voting

Rights Act’s prohibitions on racielly

motivated denials of the ballot speak of

current discrimination, not past acts of

discrimination. Hence it is incumbent

upon the plaintiffs to demonstrate that

the appointive system, allegedly con-

ceived and maintained for the purpose of

limiting black participation. currently

succeeds in its original gocl

In Hunter v. Underwood, 471 US 222

(1985), the Supreme Court implicitly

ruled that even where there is clear

legislative history that a statute was

passed with discriminatory intent,

plaintiffs must demonstrate disparate

impact as well In Hunter the plaintiffs

challenged an Alagbama law which disen-

franchised citizens convicted of “any

720

ee ae

crime... involving moral turpitude.” At

trial, the plaintiffs demonstrated that

when enacted in 1901, the law was in-

tended to have ag disproportionate impact

upon blacks. The plaintiffs also proved

that the statute continued to currently

have that effect. In striking down the

law, the Supreme Court noted that the

Statute’s “original enactment was moti-

vated by a desire to discriminate a-

gainst blacks on account of race and the

section continues to this day to have

that effect. As such it violates the

[(Constitution]...” Id. at 233. See also,

Arlington Heights vy. Metropolitan

Housing Development Corp., 429 U.S. 252,

264-65 (1977) upon which the decision in

Hunter rests.

Similarly, in Searcy yv. Williams,

656 F.2d 1003 (Sth Cir. 1981) aff'd sub

nom. Hightower vy. Searcy, 455 U.S. 984

730

(1982), where the plaintiffs also

challenged an appointive school board

selection process on Fourteenth and

Fifteenth Amendment grounds, the Court

struck down a statute conceived with

discriminatory intent because of its

present discriminatory effect against

blacks:

[T]he tainted origin of the

school board has been carried

forward to the present day by

the self-perpetuating method of

selection to the Board.

Regardless of whether the

school board selection scheme

was purposefully conceived to

further discrimination,

however, the system has clearly

operated purposefully to

further discrimination. We

hold, therefore, that this

unique system for selection of

the school board that was

operated in discriminatory

manner, together with the self-

perpetuation of the Board of

Fducation... is violative of

the appellants’ rights under

the Fourteenth Amendment.

Id. at 1010. (footnote omitted).

The role of original intent and

74a

Current effects is slightly more

complicated under the Fourteenth

Amendment's analysis. If the plaintiffs

demonstrate that the appointive system

wos originally created and maintained

with the intent of depriving blacks of

meaningful input into the school board

selection process, the burden of proof

Switches to the State and counties to

demonstrate that the current system has

not been perpetuated to intentionally

discriminate against blacks. See, Hunter

vy, Underwood, 471 U.S. 222, 228 (1985)

(“Once racial discrimination is shown to

have been a ‘substantial’ or ‘motivating’

factor behind enactment of the law, the

burden shifts to all the law’s defenders

to demonstrate that the law would have

been enacted without this factor.”);

Keyes v, School District No. 1, 413 U.S.

189 (1973). The issue before this Court

75a

is not so much the original intent of the

Statutory scheme but its continuing

effects today. Consequently, the

analysis presented in Keyes is more

applicable. In Keyes, the plaintiffs

challenged a Denver school desegregation

plan. The Court stated, “There are no

hard-and-fast standards governing the

GQllocation of the burden of proof in

every situation. The issue, rather, ‘is

merely ag question of policy and fairness

based on experience in the different

Situations. ° 9 Jj. Wigmore, Evidence

Section 2486 at 275 (3rd Ed. 1940).” 413

U.S. at 209. The plaintiffs in Keyes, as

in the instant case, alleged that there

was an uncontested pattern of past

intentional discrimination. 3/ The Court

3 In Keyes, the Supreme Court had

previously made a finding that the school

district’s prior plan was intentionally

discriminatory. The plaintiffs note that

in the instant case, the Supreme Court

760

in Keyes held “that a [prior] finding of

intentional segregative school board

actions in a meaningful portion of a

school system... establishes... a prima

facie case of unlawful segregative design

on the part of school authorities, and

shifts to those authorities the burden of

proving that other segregated schools

within the system era not also the result

of intentionally segregative actions.”

Id. at 208. A similar shift of the

burden of persuasion seems appropriate

here. If the plaintiffs succeed in

demonstrating that the appointive scheme

was conceived and maintained in the past

With the intent of discriminating against

blacks, the state should bear the burden

has previously determined that the

Purpose of the Virginia constitutional

Convention of 1902 was “the desire to

disenfranchise the Negro.”

s, 380 U.S. 528, 543 (1965).

770

of demonstrating that the scheme is not

currently being perpetuated for this

purpose.

Virginia has offered evidence to

meet this burden of persuasion. It

argues that the State Constitution of

1971 repudiated the Constitution of 1902

and its constitutional debates and

Signaled the dawn of a new era in

Virginia, an era which, among other

things, renounced the policies of massive

resistance. Also as part of the

ratification process, the Code of

Virginia was re-enacted and re-numbered.

This process, argues the State, created a

new organic law purged of the racist

taint of the 1902 #£Constitutional

Convention. The State has failed to

demonstrate, however, that these acts in

and of themselves are causally related to

the appointment scheme. In passing the

78Q

new state constitution, the state did not

address directly the issue of appointive

school boards or the policies of massive

resistance. Nor did the re-enactment of

the Code, little more than a paper act,

confront the issue. of school board

selection. Similarly, the enactment of

a plethora of civil rights legislation in

the last eighteen years, such as the Fair

Housing Act of 1972, is but

circumstantial evidence of the difference

in attitudes of the Virginia of 1988 and

that of 1956 and 1902. More probative of

the issues involved are the bills that

have been introduced since 1971 and the

legislative reports they have genera-

ted. 4/ But this evidence alone is

4 The General Assembly has

considered bills to change the selection

process in 1973 (H.B. 1385 and H.B. 1082,

dealing only with Arlington County), 1974

(H.B. 481, H.B. 615 and H.B. 1028); 1976

(H.B. 29, H.B. 38, H.B. 495, S.B. 37, and

S$.B. 38); 1977 (H.B. 2059), 1978 (H.B.

79a

insufficient to carry the State’s burden

of proof.

The most important indicia of the

lack of discriminatory intent in the

appointive scheme, according to _ the

State, is the fact that black represen-

tation on Virginia’s school boards is

directly proportional to [the] number of

blacks that comprise Virginia's voting

population. Eighteen percent (18%) of

Virginia's voting population is black

and blacks comprise eighteen percent of

112, 40.8. 300, #.B. 7469, 0.8. 1085, 8.8.

1583, H.B. 1709, and S. B. 263), 1979

(H.B. 640, H.B. 1583, H.B. 1709, and H.B.

1805), 1980 (H.B. 147, H.B. 269, H.B.

366, and H.B. 841), 1982 (H.B. 534 and

H.B. 633), 1983 (H.B. 112), 1984 (H.B.

105, H.B. 480, and H.B. 593), 1985 (H.B.

1015, H.B. 1342, H.B. 1344, and H.B.

1716), ond in 1986 (H.B. 123 and H.B.

191). The General Assembly has also

commissioned two legislative studies to

review whether some or all school board

members should be popularly elected. H.

Res. No. 12, 1984 Va. Acts 2270; S.J.

Res. No. 135, 1979 Va. Acts 1380.

80a

the school board membership statewide.5/

Moreover, Virginia has the highest

percentage of blacks on_ school boards

than any other state. (Statistics of the

National School Boards Association, 1986-

87). The State contends that this survey

is undisputed proof that there is no

Statewide pattern of discrimination

agdinst blacks on Virginia school boards.

This proportionality, however, in and of

itself, is not enough. It may well be

the product of the natural progression of

time. To carry its burden of persuasion,

the State must demonstrate present

evidence of its affirmative acts to purge

itself of the statutes’ discriminatory

5 The composition of school boards

is derived from information by the

Virginia School Board Association and

figures representing the racial composi-

tion of the voting populace were taken

from United States Census Bureau, County

and City Data Book, Tables B and C (1983)

and Black Elected Officials: A National

Roster 409 (16th ed. 1987).

8la

taint. Washington v. Davis, 426 U.S.

229, 241 (1976)

Moreover, the eighteen percent

figure is somewhat misleading when voting

populations and school board compositions

are compared on a county by county and

city by city comparison. The parties’

Surveys reveal that the correlation

between voting population and_ school

board composition turns upon the means by

which school board members are selected.

The Virginia statutory scheme basically

permits two means of selecting school

boards. Either the elected governing

body such as the Board of Supervisors or

City Council selects school board members

(Va. Code Sections 15.1-609, 15.1-644,

15.1-708, 15.1-770, and 22.1-50) or the

chief circuit judge of the county ap-

points a selection commission which in

82a

turns appoints the school board members.

(Va. Code Section 22.1-35).

The parties have examined each

school board district in the State, and

have compared the racial composition of

each school board with the composition of

the county's or city’s voting population.

The parties agree that in 27 to 30

counties blacks are “underrepresented” --

the percentage of blacks in the divi-

lon’s population as a whole is greater

than the percentage of blacks on the

division's school board.6 At the time

the survey was taken, forty-seven (47)

local school boards were appointed by

selection commissions. (Ninety (90)

6 The defendants count as

underrepresented counties and cities

where the disparity between voting

population and school board composition

is ten percentage points or greater. The

Plaintiffs apparently take the view that

where the addition of one black to the

school board would narrow the disparity,

the county or city is underrepresented.

83a

were appointed by the local governing

body. ) (Aff. of Vicki Crews Behr,

Assist. Executive Director of Virginia

School Boards Association, at 2). In

these forty-seven counties, blacks are

under represented on the _ school boards

in eighteen instances, and in seventeen

of these eighteen counties, blacks com-

prised fifteen percent or more of the

voting population. In only two--Pulaski

and Spotsylvania counties-- are blacks

“overrepresented, © according to the

State’s survey, on the school board.

That a selection process used in only a

third of the school board divisions

Should produce over half the instances

where blacks are “underrepresented” is

unusugl. The correlation suggests that

the selection commission process may work

a disparate impact upon blacks.

“Statistical analyses have served and

84a

Will continue to serve an important role

as one indirect indicator of racial dis-

crimination in access to service on

governmental bodies...” Mayor of Phi-

ladelphiag v, Education Equality League,

415 U.S. 605, 620 (1974). Moreover, if

upon further analysis the plaintiffs can

present more evidence of the correlation

between the method of selection employed

and underrepresentation of blacks on the

school board, the Court may infer “fatal

discriminatory purpose... from the over-

whelming convincing statistical evidence

of unexplained disparity.” Searcy vy,

Williams, 656 F.2d 1003 (Sth Cir. 1981),

aff'd sub nom, Hightower vy. Searcy, 455

U.S. 984 (1982). See also, Castaneda vy.

Partidag, 430 U.S. 482, 494-498 (1977);

Turner vy. Fouche, 396 U.S. 346, 359-361

(1970).

85a

Although Surry County is not a named

Plaintiff in this action, its experience

is illustrative of the possible effect on

blacks of the school board selection

commission process. In November of 1971,

blacks won three of the five seats on the

county Board of Supervisors of Surry

County. The school board remained

appointed by a selection commission, and

whites retained a three to two majority,

despite a black voting majority, a black

majority on the Board of Supervisors, and

an almost entirely black student popula-

tion. An attempt to shift the selection

process from an electoral commission to

the Board of Supervisors was defeated in

May of 1972. (Aff. of Thomas Hardy,

resident of Surry County) But Surry’s

experience also lends credence’ to

Virginia's claim that’ the State has

entered fe new era free of racial

860

ee ee

discrimination in the political process.

For in 1987, Surry held another

referendum on the school board selection

issue, and the referendum passed. (Aff.

of Thomas’ Hardy) The next vacancy will

be filled by the Board of Supervisors.

The State argues that the effect of

aq statute in several counties is of no

Significance, even if the plaintiffs can

prove disparate impact. The plaintiffs’

challenge is statewide, and, according to

the State, the nondiscriminatory

administration of the statutes statewide,

as reflected in the eighteen percent

proportionality between voting population

and school board membership, is_ an

absolute defense to constitutional

challenges of the statutes. Virginia

suggests that according to Lousisiagna vy.

United States, 380 U.S. 145 (1965), the

challenged statutes should be invalidated

870

only if they are applied in a discrimi-

natory manner in every place and have a

discriminatory effect in every place they

are applied.

However, in Louisiana vy. United

States, the Supreme Court struck down the

challenged statutes “as written and as

applied.” 380 U.S. at 151. Here the

Statutes are neutral on their face.

Proof of the State’s past intentions to

discriminate will be insufficient for the

Plaintiffs to prevail. Hence, the

Plaintiffs must demonstrate that the

Statutes as applied disproportionately

effect blacks on a magnitude sufficient

to create an inference of intentional

discrimination. This does not mean that

the plaintiffs must show statewide impact

or that they must demonstrate a pattern

of discriminatory effects under each

System of appointment. The plaintiffs

880

may only be able to demonstrate that only

one method of school board appointment

results in a pattern of discrimination in

a few counties. A constitutional viola-

tion would exist even if such violations

are not ona statewide scale. Hence, the

State confuses the plaintiffs’ ability to

prove a constitutional violation and the

Court's role in fashioning an appropriate

remedy. If the plaintiffs succeed in

demonstrating constitutional violations

in selected counties, then the Court in

its equitable powers will fashion the

appropriate remedy, which may or may not

entail invalidating Virginia’s statutes.

The central issue in this matter is

does Virginia's use of an appointive

scheme continue to deny blacks equal ac-

cess to participation in the selection

of school board members as the scheme was

apparently intended. The State has of-

89a

fered evidence that the appointive

scheme is maintained for non-racial

reasons; that the State has aggressively

sought of rid itself and society of past

vestiges of racial discrimination; and

that the appointive scheme has in fact

secured blacks the highest rate of par-

ticipation on school boards of any state

in the country.

The plaintiffs, on the other hand,

contend that the system was created and

maintained, at least through the period

of massive resistance, to purposely ex-

Clude blacks from the school board

selection process, and the statutes

succeed in fulfilling that goal to this

day.

The Court cannot reconcile on cross

motions for summary judgment these two

diametrically different characterizations

of the statutes. The record is incom-

90q

Se BS A

plete. The plaintiffs cannot rest their

case on acts that occurred eighty-five

and thirty years ago. They must offer

proof of current intentional acts to

impede blacks’ opportunity to partici-

pate equally in the schocl board selec-

tion process. This evidence may include

Statistical data demonstrating the cur-

rent schemes disproportionate impact

upon blacks, an impact sufficient from

which to draw an inference of intent.

Similarly, the State cannot rest on its

argument that time has removed the taint

of racial prejudice attached to the ap-

pointment scheme. It must show that the

affirmative acts it has taken are

causdlly related to the apparently ra-

cially neutral school board selection

process as suggested by the eighteen

percent participation figure. Moreover,

it cannot rely on a “statewide approach’

S9la

to defeat inferences of intentional dis-

crimination in those instances where

Plaintiffs demonstrate that the statutes

have a disproportionate impact upon

blacks.

The plaintiffs’ Fifteenth Amendment,

Voting Rights Act, and Fourteenth Amend-

ment’s Equal Protection Clause claims

Survive the motions for summary judg-

ment. The plaintiffs have the burden of

proving by ag preponderance of the evi-

dence the State’s discriminatory intent

in denying blacks the right to equal

participation in the school board selec-

tion process in violation of the Fif-

teenth Amendment. Under their voting

Rights Act claim, the plaintiffs also

have the ultimate burden of proof and can

carry this burden by either demonstrating

“intent” or “effects” as defined in the

amended Act. 42 U.$§ ¢. 1973(b) Under

920

OO EO

the Fourteenth Amendment’s Equal Pro-

tection analysis, the plaintiffs’ in-

itiaily have the burden of proof. But

if they can establish a past pattern of

intentional discrimination, the State

Will bear the burden of proving that the

Statutes and procedures required by them

are racially neutral. To rebut this

Showing, the plaintiffs will have to

present the same evidence needed to carry

their claims under the Fifteenth Amend-

ment and Voting Rights Act.

Let the Clerk send a copy of this

memorandum opinion to all counsel of

record.

5/16/88 s/Richard L, Williams

Date U.S. District Judge

| 93a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF VIRGINIA

Richmond Division

DARIUS IRBY, )

et al. )

)

Plaintiffs, )

)

Vv. ) Civ. Action No.

) §87-0633-R

SUSAN H. FITZ-HUGH, )

et al. )

)

Defendants. )

Filed June 20, 1988

ORDER

This matter is before the Court on

the plaintiffs’ motion in limine. The

Plaintiffs’ seek to exclude the testimony

of legislators and members of Virginia’s

Constitutional Committee as to the

legislative intent surrounding Virginia's

Constitutional Committee as to the

legislative intent surrounding Virginia's

maintenance of a system of appointed

94 a

ineeeinieniieeeintninmetinnneanaitetieteeeasteenie eile

A tetra nS eae

school boards.

For the reason’s stated in the

accompanying memorandum opinion, the

relief sought by the plaintiffs’ in their

motion in limine is GRANTED.

Let the Clerk send a copy of this

order to all counsel of record.

June 20, 1988 s/Richard L. Williams

DATE U.S. DISTRICT JUDGE

IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF VIRGINIA

Richmond Division

DARIUS IRBY, et al. )

Plaintiffs,

V. Civil Action No.

SUSAN H. FITZ-HUGH, 87-0633-R

et al. )

Defendants.

Filed June 20, 1988

MEMORANDUM OPINION

This matter is before the court on

the plaintiffs’ motion in limine. The

Plaintiffs’ seek to exclude the testimony

of legislators and members of Virginia's

Constitutional Committee as to the

legislative intent surrounding Virginia's

maintenance of a system of appointed

school boards. For the reason’s set

forth below, the plaintiffs’ motion is

granted.

Three causes of action survived the

96 a

a

/

t

parties’ cross motions for summary

judgment: a Fifteenth Amendment claim, a

Voting Rights Act claim, and an alleged

violation of the Equal Protection Clause

of the Fourteenth Amendment. In its

earlier Memorandum Opinion addressing the

issues raised on summary judgment, the

Court ruled that, under the Equal

Protection Clause Claim, if the

Plaintiffs demonstrate that the statutory

appointive scheme was enacted to limit

blacks’ participation in selecting and

serving on school boards, then the burden

of proof will switch to the defendannats

to demonstrate that the current system

has not been perpetuated to intentionally

discriminate against blacks. Hence the

legislative history of recent General

Assembly bills and the intent of the 1971

Constitution are relevant to _ the extent

that they address issues concerning the

97 a

appointment of school boards.

Committee reports, the text of

proposed bills, amendments, and other

related documents compose the competent

legislative history of school board

legislation. From these documents,

legislative intent can be _ discerned.

“The legislative or administrative

history may be highly relevant,

especially where there are contemporary

statements by members of the decision

making body, minutes or its meetings, or

reports.” Arlington Heights v. Metropol-

itan Housing Development Corporation, 429

U.S. 252, 2608 (tidr7). The defendants

apparently wish to enrich the legislative

history with the statements of various

legislators as to their perceptions of

the legislative intent of various bills.

Only “{iln some extraordinary instances

[should] the members [of the legislative

98 aq

ee ee

:

:

i

;

}

:

body]... be called to the stand oat trial

to testify concerning the purpose of the

official action...” Id. See also

Citizens to Preserve Overton Park vy,

Volpe, 401 U.S. 402, 420 (The court noted

that testimony of public officials as to

the intent of their administrative

decision is “usually to be avoided.”

Where there is an- official record

documenting the decision, “there must be

a strong showing of bad faith or improper

behavior before such an inquiry may be

made.” ) No extraordinary circumstances

exist in this instannace to merit such an

intrusion into the legislative process.

Moreover, choosing several

legislators from among many to testify as

to the intent of the entire legislature

is aq poor - means of ascertaining

legislative intent. Each legislator is

likely to unintentionally incorporate her

99 a

own subjective perceptions of the

purposes and intentions of the bills and

amendments to which she is to testify.

Such testimony is as likely to misinform

as it is to inform the Court. Committee

reports and the text of proposed bills

and amendments are a more reliable [sic]

sources of legislative intent.

Testimony concerning the intention

of various constitutional provisions is

also inappropriate for the same reasons.

The constitution and its commentary speak

of the document’s intentions.

The defendants, however, are free to

present other testimonial evidence of

Virginia’s efforts to repudiate purported

discriminatory policies of past

generations and to purge the appointive

System of its allegedly racially

discriminatory purpose.

Let the Clerk send a copy of this

1000

— oatmeal

memorandum

record.

DATE

opinion

to all counsel

U.S. DISTRICT JUDGE

101la

or

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

DARIUS IRBY, et al.

Plaintiffs,

)

)

)

) Civil Action No.

Vv, )

) 87-0633-R

)

)

)

)

SUSAN H. FITZ-HUGH,

et al.

Defendants.

Filed August 18, 1988

FINAL ORDER

This matter came before the Court

for a trial to the bench. Pending before

the Court are the plaintiffs’ requests

for certification of plaintiff and

defendant classes and their claims under

the Fourteenth and Fifteenth Amendments

and the Voting Rights Act.

For the reasons stated in tne

accompanying Findings of Fact’ and

Conclusions of Law, the plaintiffs’

102 a

|

Hacelire

requests for class certification are

DENIED. The plaintiffs’ requests for

injunctive and declaratory relief are

Glso DENIED. Judgment is entered for the

defendants and against the plaintiffs on

all of the plaintiffs’ claims, and this

action is dismissed with prejudice.

Let the Clerk send a copy of this

final order to all counsel of record.

Aug, 18, 1988

DATE U.S. DISTRICT JUDGE

103 a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

DARIUS IRBY, et al.

Plaintiffs,

Civil Action No.

)

)

)

)

V. )

) 87-0633-R

)

)

)

)

SUSAN H. FITZ-HUGH,

et al.

Defendants.

Filed Aug. 18, 1988

FINDINGS OF FACT AND CONCLUSIONS —

OF LAW

This matter came before the Court

for ag trial to the bench. After hearing

the evidence presented at trial,

reviewing the stipulations, considering

the exhibits and depositions submitted,

and having benefited from the closing

arguments of counsel, the Court makes the

following Findings of Fact and

Conclusions of Law pursuant to Fed. R.

cae. Fs oe.

104 a

FINDINGS OF FACT

1. Plaintiffs Darius Irby and John

S. Neal are black citizens and registered

voters of the Commonwealth of Virginia

and residents of Nottoway County.

- Plaintiff Charles W. White is a

black citizen and registered voter of the

Commonwealth of Virginia and a resident

of Buckingham County.

2 Plaintiff the Reverend James

Samuel Williams, Jr. is a black citizen

and registered voter of the Commonwealth

of Virginia and a resident of Prince

Edward County.

4. Plaintiff Cora Tucker is a black

citizen and registered voter of the

Commonwealth of Virginia and a resident

of Halifax County.

>. Plaintiffs Willie Powell and

Milton Richardson are black citizens and

registered voters of the Commonwealth of

Virginia and residents of the City of

105 a

Petersburg.

6. Plaintiff Virginia Unit of the

Southern Christian Leadership Conference

(eee! is ag non-profit grassroots

organization of more than one thousand

persons dedicated to protecting and

advancing civil rights. The Virginia

Unit of the SCLC claims its membership is

harmed by Virginia’s appointive proce-

dure.

r, Plaintiff Citizens for ao Better

America is ag non-profit grassroots civil

rights association, organized in Halifax

County. It has worked for the past

twelve years to promote civil rights in

Virginia and claims its members are

harmed by Virginia’s system of appointing

school board members.

8 . The concentration of black

citizens in Virginia's various counties

varies from county to county as does the

106 a

alleged amount of “underrepresentation™

on school boards. “Underrepresentation”

of blacks on local school boards is

blacks, by virtue of their percentage of

the local population, would be expected

to have one or more additional black

school board members. Consequently, the

harm, if any, suffered by the plaintiffs

and the class they seek to represent

varies from district to district. There

is no typical plaintiff.

9. Defendants include the members

of the School Board Selection Commissions

(“SBSC”) of Nottoway and Buckingham

Counties, the two defendant Jurisdictions

which select school board members by this

method.

10. Also named as_ defendants are

the members of the Board of Supervisors

of Prince Edward and Halifax Counties who

ore responsible for appointing school

107 a

board members in their respective

jurisdictions and members of the City

Council of Petersburg who are charged

wi Ai alata = Pe

With appointing school board members for

that jurisdiction.

ba. The third category” of

defendants consists of the members of the

Electoral Boards of each of the named

jurisdictions and Susan H. Fitz-Hugh,

Secretary of State Board of Elections,

who were named as_ necessary parties for

purposes of fashioning possible relief.

12. In each of the named defendant

jurisdictions, the level of black

participation differs. Hence, the

racially discriminatory effects, if any,

of the appointive scheme are unique to

each jurisdiction. Also, the details of

the appointment process--who participates

and to what extent, how nominations are

received or solicited, and any develop-

108 a |

mest of formalized procedure--are all

determined autonomously at the local

level. For example, in Petersburg, the

city maintains a “Talent Bank” of

interested citizens. The appointing

board generally limits its consideration

of potential board appointees to those

persons who have submitted their names to

the Talent Bank. The City of

Charlottesville, not a defendant, mails

copies of its announcement for openings

to the ministers of the seven

predominantly black churches in the city,

the oresident of all the neighborhood

associations in Charlottesville, and to

the president of the N.A.A.C.P. Conse-

quently, there is no typical defendant

jurisdiction.

a. There are one hundred thirty-

Six school districts in Virginia, and

school boards in these districts are

appointed in one of four ways. Under Va.

Code Section 22.1-34 et seq., the school

board is appointed by a_ three person

school board selection commission which

is in turn appointed by the local circuit

court judge. Nottoway and Buckingham

Counties use this system of appointment.

Counties which do not have either a

County Executive, County Manager, County

Board or Urban County Manager’ form of

government are included in Section 22.1-

34. Under a 1970 amendment, Va. Code

Section 22.1-41, et seq,, Nottoway,

Buckingham and Similarly situated

counties can hold aé referendum to

transfer the appointment power from the

non-elected school board - selection

commission to the governing body.

14. Under the second means, Va.

Code Sections 15.1-609 (County

Executive), 15.1-644 (County Manager),

110 a

REE Sy i oe

15.1-708 (County Board), or 15.1-770

(Urban County Manager), the county board

of supervisors appoints members of the

school board. Prince Edward and Halifax

counties employ this system. In cities

Gnd towns, such-~ as Petersburg, the

governing body appoints the school board.

Va. Code Section 22.1-50. In three

school districts in Virginia, none of

which are a party to this litigation, the

county board of supervisors and the

city’s city council appoint the school

board where the school district overlaps

the city and county boundries, [sic] Va.

Code Section 22.1-53.

A. The Public Free School Law,

passed July 11, 1870, provided for the

appointment of “school trustees” by the

State Board of Education. Acts of the

General Assembly of Virginia, 1869-70,

Chapter 259, (July 11, 1870), 408-09.

111 a

(Hereinafter “Acts”). The three school

trustees appointed in each district had

duties similar to modern school boards.

There is no evidence, direct or

circumstantial, that the original

decision to make school boards appointive

rather than elective was motivated by

racial discrimination. The decision was

made in the era of Reconstruction.

Concerted efforts to exclude blacks from

the political process in Virginia did not

begin until 1874-1875. (Testimony and

Affidavit of Peyton McCrary.)

16. Even modifications made to the

appointive scheme at q time when

Democrats were enacting other laws

designec to limit black participation in

Virginia politics send a mixed message.

When conservatives came to power in 1877,

they transferred the appointment power

from the state school board to local

112 a

school trustee electoral boards comprised

of the county superintendent of schools,

the county judge and the attorney for the

Commonwealth. Acts, 1876-77, Ch. 12,

(Jan. 11, 1877), 9-10. The effect of

this action was racially neutral. In

counties with Readjuster or Republican

judges, commonwealth attorneys, or school

superintendents, the local trustee

electoral boards named board members

Sympathetic to black education, and in

black majority counties, they named

blacks as school trustees. (Testimony of

Peyton McCrary).

17. In 1884, the appointive scheme

wos again modified to provide for the

appointment of members to school trustees

electoral commissions by the General

Assembly. Acts (1883-84), Ch. 138, (Feb.

20, 1884), 177-78. Again the discrimina-

tory intent of this change is unclear.

113 a

Historians disagree as to whether this

change was racially motivated. (See

testimony of Peyton McCrary and Peter

Stewart). Moreover, although the legis-

lation was enacted by a conservative

minded General Assembly, Readjuster

Governor William E. Cameron, a member of

aq party committed to blacks’ rights,

approved the legislation. Finally, even

if racially motivated, the modification

was. short-lived. The power to appoint

was restored to local county officials in

1887. Acts, (Extra Sess., 1887), Ch.

233, (May 14, 1887), 305-06. Between

1887 and 1901, however, no blacks were

appointed as school board members.

(Testimony of Peyton McCrary).

18. By the time of the Virginia

Constitutional Convention of 1901-02, the

scheme for appointing the selection

commission for the subsequent selection

114 a

DE AIRDRIE ASR

ead ts RON ING PRP ta PD ee Hk

. OT atte Rls RO Pe. oor dl

of school trustees was well established.

During the course of the convention, the

education commission proposed changing

the means of selection to make school

trustees elective offices. Report of the

Proceedings and Debates of the

Constitutional Convention, State of

Virginia, 1901-02, 1828 (1928). The

proposed change to the existing scheme

was defeated in part for racial reasons.

Mr. J.B.T. Thornton, a member of the

Committee on Education, opposed the

change on the grounds that blacks’ may be

elected, “a condition of affairs” that he

found “abhorrent.” Debates, oat 1829.

His comments were echoed by another, Mr.

‘Eggleston. Jd. The convention chose to

leave the appointive scheme intact, aside

from G few minor changes. The

predominate intent of the 1901-02

convention, however, was not the

115 a

disenfranchisement of blacks, but the

disenfranchisement of the impoverished.

This intention surfaced in the discussion

of the school board amendment. Mr.

Summer commented:

Now gentlemen, come forward

like men and vote your

sentiments and say that. the

poor white man and the negro

[sic] shall have no rights in

Virginia, so that they may

emigrate to a richer and more

fertile and liberty-loving

soil,

Debates at 1830. The intent, therefore,

wos to reduce poor whites and blacks to

the status of women--disenfranchised.

19. The amendment to change the

method of selection was defeated, and in

1903 the General Assembly preserved the

appointive scheme but replaced the

circuit court judge's position on the

School trustee electoral commission with

qg private citizen appointed by the

circuit court judge. Acts, (Extra

116 a

————————

sealed ny Da Ll in RE nt BR ee

Session 1902-04), Ch. 509, (Dec. 28,

1903), 806-812, Sections 1450, et seq.,

City and towns continued to appoint their

Own school trustees. Acts, (1902-04),Ch.

Siz, (Dec. $i. i903), G£5-28. Section

1528.

20. Significantiy, the General

Assembly did not adopt an elective school

board scheme after purifying the elector-

ate of those the Convention felt to be

undesirable. Such a well timed switch

would have extinguished some legislators’

fears that a few school trustee electoral

commissioners may be sensitive to black

educational needs. The evidence sug-

gests, however, that the political

machine, spawned by the purified elec-

torate, successfully controlled the

county school trustee board so as to make

an elective system unnecessary in order

to exclude blacks from the process.

117 a

21. Although three separate studies

recommended that Virginia elect its

school board members, the General

Assembly resisted such advice and

modified the existing structure. In

1926, the composition of the electoral

commission was changed to three citizens

Qll appointed by the local circuit judge,

Acts (1926), Ch. 106, (March 6, 1926),

104, and changed again in the 1930's to

GQllow for counties with county manager or

county executive forms of government to

have the school board appointed by the

Board of Supervisors.

fa. In 1947, the General Assembly

departed from the appointive scheme and

passed a general law which permitted “any

county operating under the county manager

Plan... and in which county magisterial

districts have been abolished...” to elect

its school board members if a majority

118 a

———eeeESEEE—eE——EE

approved this change by referendum. Acts

(1947), Chap. 61 (Jan. 30, 1947), 113-16.

Only Arlington County qualified under

this provision. After voters approved

the change, a _ five-person school board

was thereafter elected at large in non-

partisan elections until 1956. Arlington

never elected a black to serve on the

school board during this period.

23. In 1956, following a lawsuit by

the N.A.A.C.P., Arlington agreed to de-

segregate its school system in com-

Pliagnce with Brown vy. Board of EFduca-

tion, 347 U.S. 483 (1954). Shortly

thereafter, the General Assembly abol-

ished Arlington's elective system as

Part of a program of “massive resistance”

to court-ordered school desegregation.

Acts (1956), Chap. 591, (March 31, 1956),

949-50 ("“{N]lo school board shall be

elected by popular vote in and for any

119 a

county or city.”). Arlington’s Board of

Supervisors appointed members to the

school board thereafter.

24. In 1968-69, Virginia created a

Constitutional Revision Commission dedi-

cated to restoring order to the mayhem

wreaked upon the state’s educational

System by its policy of massive resis-

tance. The Commission drafted a new

constitution which was approved of by two

successive General Assemblies. The 1971

Constitution provides in Article VIII,

Section 1: “The General Assembly shall

provide for a system of free public ele-

mentary and secondary schools fer all

children of school age throughout the

Commonwealth, and shall seek to ensure

that an educational program of high

quality is established and continually

maintained.” Furthermore, in Section 2,

Article VIII mandates that “The General

120 a

{

3

‘

Assembly shall determine the manner in

which funds are _ to be provided for the

cost of maintaining an educational pro-

gram meeting the prescribed standards of

quality, and = shall provide for the

apportionment of the cost of such program

between the Commonwealth and_ the local

units of government comprising such

school divisions.” The language in

section 2 places a legal responsibility

on both the locality and State to provide

funds for schools. In effect then, the

1971 Constitution eliminates the discre-

tion previously enjoyed by localities to

Close schools, to cut off funding, and to

take other retributive measures against

blacks through the educational system.

25. The members of the Commis-

Slon--Albertis S$. Harrison, Jr., Albert

V. Bryan, Jr., George Cochran, Ted Dal-

ton, Lewis F. Powell, Colgate Darden,

121 a

Hardy Cross Dillard, Alexander Harman,

Jr., Oliver W. Hill, J. Sloan Kuykendall,

and Davis Paschall--rid the State's edu-

ational system of the racial overtones

and prejudices that previously consumed

at. The decision to preserve to the

legislature the authority to determine

how school board members should be se-

lected was not a racial issue. The

members of the Commission were familiar

With the 1901-02 Constitutional Con-

ention debates on school board selec-

tion. (Testimony of A.E. Dick Howard).

A reformation of the selection process

was not a piece of the puzzle necessary

for putting together a [sic] educational

system dedicated to guaranteeing all

children a quality education, and the

Commission did not make changes it felt

were unnecessary because it wished to

avoid creating centers of opposition to

122 a

ratification of the constitution.

26. Moreover, in debates among

members of the General Assembly consi-

dering ratification of the constitution,

there is no evidence that the means of

selecting school boards was tainted by

racial considerations. Members simply

could not agree on which method was the

best and put the debate off to another

day by agreeing to preserve the flexi-

bility that currently existed.

a. There was no discriminatory

Purpose in the consideration and adoption

of the 1971 Constitution of Virginia. To

the contrary, the Constitutional Revision

Commission and the Constitution it pro-

duced worked to destroy the tools with

Which localities were able to racially

discriminate through the public schools.

28. The selection system has also

been modified since 1970. In 1970,

123 a

counties that use school board election

commissions (Va. Code Section 221.1-34)

were granted authority to change toa

system, if the populace voting by refer-

endum agreed, where the elected governing

body appoints the school board members.

Va. Code Section 22.1-41, et seq., Acts

(1970), Ch. 126, 1976. In 1971, the

General Assembly authorized all counties

to create at-large school board seats.

The evidence at trial suggested that

these seats are often occupied by black

members of school boards. The General

Assembly also added in 1980 a provision

that allows a county to return to the use

of using school board’ election

commissions. Va. Code Section 22.1-45.

A 1985 amendment requires that a public

hearing be held “to receive the views of

citizens within the school division” on

School board members who may be appointed

124 a

ee Ae ee ee eI ne eee ee es

by the county Board of Supervisors, Va.

Code Section 22.1-29.1 (1985), and a 1987

amendment prohibits the appointment of

anyone to the school board whose name had

not been considered at a public hearing

Acts (1987), Ch. 430, 558

29. Since 1973 there have been

several bills to change schoo® board

membership to an elective office 1 =

1 The General Assembly has consi-

dered bills to change the selection

process in 1973 (H.B. 1585 and H.B. 1802,

dealing only with Arlington County), 1974

(S.B. 249, H.B. 481, H. B. 615 and H. B.

1028); 1975 (H.B. 1028 and 1135); 1976

'S.8. 22, 0.5. 26..8.8. Seo. SB. 37, oe

S.B. 38); 1977 (H.B. 2059), 1978 (H.

112, #.B. 300, 4.B. 517, H.B. 789,

1085, and S.B. 263), 1979 (S.B. 640,

752, W.B. 1585, 8. BS. 1709. ond

1805), 1980 (H.B. 147, H.B. 269,

366, and H.B. 841), 1982 (H.B. 534,

633, H.B. 866), 1983 (H.B. 112 and

722), 1984 (H. B. 5, H.B. 105, H.B.480,

and H.B. 593), 1985 (H.B. 1015 H.B. 1342,

H.B. 1344, H. B. 1649, and H.B. 1716),

1986 (H.B. 123 and H.B. 191), and in 1987

(H.B. 991 ond H.B. 1135). (Pl. Exh. 34).

The General Assembly has also

commissioned two legislative studies to

review whether some or all school board

members should be popularly elected. H.

125 a

p.m <P

\o-Re-Be-Le-Re-Re=i «=|

discussion of these bills has been free

from any racial considerations.

30. In 1984, the Subcommittee

Studying School Board Selection (H.R. 12)

released a report discussing’ the

arguments for and against the appointment

of members of the school board. The

report presents legitimate, non-racial

reasons for appointing school board

members: highly qualified citizens

serve on boards who would not’ be willing

to serve if forced to run for public

office, an appointive system engenders

experience and continuity, and single

issue campaigns are more likely avoided

With appointive school boards.

2s Black participation on Virgin-

ia’s school boards has increased over

the last 28 years. There were few

Res. No. 12, 1984 Va. Acts 2270; S.J.

Res. No. 135, 1979 Va. Acts 1380.

126 a

————————————

blacks on Virginia’s school boards in

1970. In 1975 and 1981, blacks composed

12% of all school board members state-

Wide. In 1985, the percentage had risen

to 15.9%, and in 1986 and 1987, the

percentage of blacks on Virginia’s school

boards was 182%.

32. The percentage of blacks of

voting age in Virginia as compared to all

Virginians of voting age is 18%.

33. A comparison of the _ racial

composition of school board membership

and the population at large for jurisdic-

tions using the SBSC and appointments by

local governing bodies yields the same

degree of proportionality. Blacks com-

prise 17.28% of the population in juris-

dictions which appoint school board

members through the SBSC, and _ school

boards in these jurisdictions are 17.08%

black. Blacks comprise 17.23% of the

127 a

population in jurisdictions in which the

school board is appointed by the local

governing body. School boards which

employ this method ore 18.17% black.

34. In 30 of 137 districts, blacks

are “underrepresented.” (Pl. Exhs. 3 and

6): Blacks are also “overrepresented” in

21 school districts. (PL. Exh. 1).

“Overrepresentation” is defined to mean

that the percentage of blacks on a local

school board exceeds the percentage of

blacks in the locality’s population by

more than 10 percentage points. In 8 of

these 21 localities, however, the black

population is so small that a single

black on the school board results in

overrepresentaton. (Pl. Exh. 1).

35. Even in jurisdictions where

blacks constitute 30% or greater of the

population, the number of jurisdictions

which have school boards that are either

128 a

a

demographically reflective of § their

population or have greater’ black

Participation is equal to the number of

jurisdictions that are underrepresented.

(Compare Pl. Exh. 1 and Pl. Exh. 8).

36. The degree of Similarity

between the racial composition of the

population at large and the composition

of the school board is present toa

lesser degree in named defendant

localities. Buckingham County's

Population is 42% black, but its school

board is only 14.2% black. The

Population of Halifax County is 40% black

but the only [sic] 22.2% of its school

Doard members are black. In Nottoway

County, blacks compose 37% of the

population, and the school board is 202%

black. The City of Petersburg’s

Population is 61% black, and the school

board is 44.4% black. In Prince Edward

129 a

county 37% of the population is black,

and blacks constitute 25% of the school

board.

37. The plaintiffs also claim that

there are other limits to their

participation in the selection of and

participation on local school boards that

gre not reflected in the statistical

evidence. Black citizens and black

community organizations have actively

campaigned for the selection of

representatives of their choice, but

black candidates without support in the

black community have been appointed to

fill school board vacancies. (Testimony

of Hermanze Fauntleroy, Charles White (by

deposition), Chris Smith).

38. The plaintiffs note in support

of this contention that 71.92% of all

blacks appointed to school boards are

appointed in “Limited access

130 a

Jurisdictions,” Jurisdictions where the

school board members are appointed by

selection commissions, a local governing

} body with no black members, or a local

governing body where blacks are _ not

| represented in numbers’ proportionate to

the demographic composition of the local

community.

CONCLUSIONS OF LAW

¥ The Court has jurisdiction of

this matter pursuant to 28 U.S.C. Sec-

tions 1331, 1343, 1344, 2201 and 2202.

This suit is authorized by 42 U.S.C.

Section 1973j(f) and 1983.

2. Pending before this Court are

the plaintiff's motion for certification

of plaintiff and defendant classes and

the plaintiffs’ claims under the Equal

Protection Clause of the Fourteenth

Amendment, the Fifteenth Amendment, and

Section 2 of the voting Rights Act, 42

131 a

aaaeamaliaaiamaaimalll

U.S.C. Section 1973.

3. Rule 23(a) of the Federal Rules

of Civil Procedure requires that:

(1) the class is so numerous

the joinder of all members is

impracticable, (2) there are

questions of law or fact common

to the class, (3) the claims or

defenses of the representative

parties are typical of the

claims or defenses of the

class, and (4) the represen-

tative parties will fairly and

adequately protect the inter-

ests of the class.

4, The plaintiffs claim to

represent “all black citizens of the

Commonwealth of Virginia.” Since at the

time of the 1980 Census, there were

1,008,665 blacks residing in Virginia,

1980 Census of Population, General Social

g& Economic Characteristics of Virginia,

p. 48-21, the numerosity requirement is

met.

¥ Questions of law and fact

pertinent to the named plaintiffs and the

class they wish to represent are common

132 a

only to a limited extent, however. The

Plaintiffs claim that the statutory

scheme requiring the appointment of local

school board members was enacted and hos

been maintained for the purpose and with

the effect of denying the plaintiffs the

right to vote and to participate fully in

the political process on account of their

race. The analysis of the intent of the

General Assembly in choosing an appoin-

tive scheme rather than an elective one

is common to all plaintiffs, but the

effects of that decision are not. In

some counties or municipalities where

there is a small black population, blacks

do not suffer from any meaningful under-

representation. Similarly, there are a

few localities with significant black

populations that enjoy equal or greater

representation on school boards than the

population figures suggest. See, e.g,,

133 a

Charles City County, Greenville, Emporia,

and the City of Richmond. Additionally,

various means are used on the local level

to identify prespective school board

members. These local idiosyncrasies may

cure the deficiencies, if any, in the

statutory scheme as it is applied. The

Supreme Court emphasized that plaintiffs

seeking class certification must not only

show that they have been discriminated

against, but must demonstrate “the exis-

tence of a class of persons who have

suffered the same injury as those

individuals. ” Grand Telephone Co. of

Southwest v. Falcon, 457 U.S. 147, 157

(1982). The plaintiffs’ allegations here

are imprecise. They cannot prove that

every black resident has been denied an

equal opportunity to participate on

school boards becouse of the way in which

the appointive scheme has been applied in

134 a

every school district in Virginia. They

do not allege as much, and cannot prove

as much.

6. The plaintiffs can show they

share common issues of law and fact with

other blacks living in the same county,

but they cannot demonstrate this common-

Qlity with blacks living in an unnamed

jurisdiction. Consequently, the plain-

tiffs have failed to demonstrate .the

requisite commonality of issues and

typicality of claims necessary for the

certification of a class of plaintiffs.

The plaintiffs’ request for class

certification is therefore denied.

:: The request to certify the

defendants as a class suffers from

Similar deficiencies. There are many

Virginia counties where blacks do not

comprise a significant percentage of the

population--e.g,. Carroll County, Buchanan

135 a

County, Fredrick County and Highland

County. There are other school districts

where the plaintiffs cannot claim they

are underrepresented. Hence, accounting

for all districts where the plaintiffs

may claim that the effect of the appoin-

tive process results in underrepresenta-

tion of blacks, the requested defendant

class may suffer from lack of numerosity.

Moreover, the details of the appointive

process, such as how nominations are

received or solicited, are determined

autonomously at the local level. The

factual questions concerning the level of

participation of biacks in the appointive

process and the circumstances of black

participation, or lack of it, varies from

locality to locality. See Stastny v.

Southern Bell Telephone & Telegraph. Co.,

628 F.2d 267, 277-78 (4th Cir. 1980).

Therefore, the plaintiffs’ motion for

136 a

itis ie a wT NS al Pi ied 8

oe ela alee Rie es sali Le

SAGE ote

ROR LS Di Sa le

certification of a class of defendants is

denied.

8. The United States Constitution

does not require that members of local

school boards be elected. See Sailors y.

Kent Board of Education, 387 U.S. 105,

108 (1967). An appointive system of

selecting political officials does not

impose inherent barriers to the service

of minority citizens in such offices or

the participation of minority citizens in

the appointment process. See Riverg-

Rodriquez vy. Popular Democratic Party,

457 U.S. 1, 12 (1982).

9. The Fourteenth Amendment pro-

hibits intentional invidious racial dis-

crimination. Washington v. Davis, 426

U.S. 229 (1976). Although the plaintiffs

do not have a constitutional right to be

appointed to local school boards, they do

have aq right to be considered for public

137 a

rc le

service on an equal basis with whites.

They claim that the appointive system

cannot give them an equal opportunity for

appointment because of its original

discriminatory purpose. The Court stated

aha ies ee ah

in its earlier opinion resolving the

Parties’ cross-motions for summary judg-

ment that if the plaintiffs demonstrated

that the appointive system was originally

created and maintained with the intent of

depriving blacks of a meaningful input

into the school board selection process,

the burden of proof would switch to the

State and counties to prove that the

current system has not been perpetuated

to intentionally discriminate against

blacks. Once proven, it would be

incumbent upon the plaintiffs to show

that the statutory scheme continues to

have a present day discriminatory impact.

Memorandum Opinion at 20-28.

10. The plaintiffs’ burden under

the Fifteenth Amendment is similar. They

must demonstrate that the defendants have

denied them an opportunity to vote based

upon intentional racial discrimination,

and, if done so in 1870 or 1902, that the

current effects of the school board

selection process work to deny them equal

access to the political process. See

City of Mobile v. Bolden, 446 U.S. 55, 65

(1980); Lane v. Wilson, 307 U.S. 268

(1939).

aa. The plaintiffs have failed to

demonstrate that racial considerations

played a role in the 1870 General Assem-

bly’s decision to make school trustees

appointive rather than elective offices.

Similarly, the evidence does not demon-

strate that the appointive scheme was

maintained through the last decades of

the nineteenth century for racially

139 a

discriminatory reasons. Although the

appointive process switched back and

forth between centralization in the

General Assembly and appointment by

local bodies, these changes in the ap-

pointive process are not readily identi-

fiable with a racially discriminatory

policy. If centralizing the appointment

powers in the General Assembly was to

enhance that body’s power to discrimin-

ate, as the plaintiffs contend, one would

have expected Readjuster Governor Cameron

to veto such a bill. He did not.

be Race was a “substantial” or

“motivating” factor, Hunter v. Underwood,

471 U.S. 222, 228 (1985), however, behind

the 1901-02 Constitutional Convention's

decision to retain an appointive system.

Several members of the Convention cast

the decision in racial tones, and the

Plain purpose of the convention was to

140 a

RA att at EBL tei le tail

NAAR Ai Bor dirs on.

BTR

disenfranchise as many impoverished

people, including most blacks, as the

delegates could. See Harman v. Forssen-

ius, 380 U.S. 528, 543 (1968). The

appointive system was maintained, there-

fore for constitutionally impermissible

reasons in 1902.

13. The plaintiffs have not proven,

however, that the 1903 General Assembly

modification and retention of the

appointive scheme was done _ for racially

discriminatory reasons. Although the act

wos passed at a time when a white

supremacy movement was sweeping the post-

Reconstruction south, there is nothing in

the record to suggest that the decision

to continue to appoint school trustees

wos tainted by this racial animus. In

fact, if the 1903 General Assembly had

changed the selection process to an

elective system, it would have completely

141 a

excluded blacks from school board

participation. 2/ Blacks had _ been

disenfranchised in 1903. The decision to

preserve the appointive system worked no

greater evil than changing the system.

14. Similarly, the General

Assembly's failure to heed the advice of

Study groups in the 1920’s and 1930's

that recommended a change to elected

school board members does not rise toa

constitutional injury.

15. In 1947, the General Assembly

2 Some delegates to [the] 1902

Constitutional Convention, such as J.L.

Thornton, apparently endorsed the idea of

elective school boards for precisely this

reason. Thornton withdrew his support

for elected school boards when the

convention considered the issue of school

boards before deciding the issue of

franchise. He stated: “I wish to state

that ... I voted in committee to elect

the school trustees, but I did so with

the understanding at the time that the

matter would not be passed upon in

Convention until the question of

franchise had been settled and disposed

of.” Debates, at 1828.

142 a

GQllowed Arlington County to elect its

school board. The adoption of a scheme

whereby some localities elected and

others appointed their school board

members is constitutionally permissible.

Revocation of that scheme for racially

discriminatory reasons is impermissible,

however. In 1956, when the General

Assembly revoked Arlington County's

ability to elect its school board

members, the Assembly did so to impede

Arlington’s ability to comply with court

ordered desegregation. This action

created a cause of action unique to

Arlington. No other county, including

the named defendants, was affected by

that decision, nor were the named

plaintiffs affected by this intentional

racially discriminatory act.

16. No evidence in the record

suggests that the consideration given

143 a

ee

various bills which proposed changing to

elective school boards has’ turned upon

racial grounds. The 1984 report of the

subcommittee studying School Board

Selection (H.R. 12) presents legitimate

non-discriminatory reasons for the

maintenance of appointed school boards.

a The most the plaintiffs have

proven by a preponderance of the evidence

is that the 1901-02 Constitutional Con-

vention maintained the appointive system

for racially discriminatory reasons.

With the exception of Arlington County in

1956, no other acts by the state, county

or city defendants suggest that the

System has been maintained to limit black

participation. Therefore, the plaintiffs

have not demonstrated that the appointive

system is presently maintained for ra-

Cially discriminatory reasons.

18. Even if this Court were to find

144 a

that the appointive system was conceived

and maintained until 1971 for the purpose

of limiting black participation in the

selection of and participation on school

boards, the plaintiffs’ Equal Protection

and Fifteenth Amendment claims would

Still fail. The state has carried its

burden of proof in demonstrating that at

least since 1971 the system has not been

maintained for racially discriminatory

reasons. The Constitutional Revision

Commission addressed directly the

Policies of massive resistance and purged

them from the educational system.

Article VII of the Constitution affirms

this commitment. The 1984 legislative

Study also presents legitimate non-

discriminatory reasons for preserving

appointive boards.

19. The plaintiffs have failed to

prove tnat the appointive system has

145 a

adversely affected black participation on

either a statewide or local basis in the

named defendant localities. Since

efforts to purge Virginia’s public

educational system of racial discrimin-

ation began in 1970, black participation

on school boards has steadily risen. On

aq statewide basis, blacks comprised

approximately 18% of the voting popula-

tion and approximately 18% of all school

board members statewide. This congruency

is preserved where school boards are

selected by selection commissions and

where they are appointed by local

governing bodies. Conversely, in Hunter

vy. Underwood, 471 U.S. 222 (1985) and

Searcy v. Williams, 656 F.2d 1003 (Sth

Cir. 1981), aff'd sub nom, Hightower yv.

Searcy, 455 U.S. 984 (1982), where the

courts struck down laws conceived with

discriminatory intent, those laws

146 a

a pune eit eee ee ii

continued to have go present day disparate

impact upon blacks. That is not the case

here.

20. Because) the plaintiffs have

failed to demonstrate by a preponderance

of the evidence that the system for ap-

pointing school board members was con-

ceived or is presently maintained for

the purpose of limiting blacks’ partici-

pation in the selection of school board

members and participation on _— such

boards, and have not demonstrated that

the law results in a present discrimina-

tory impact, the plaintiffs’ Fourteenth

Amendment claim fails.

21. Similarly, since the defendants

did not act to deny blacks the right to

vote for school board members’ for

racially discriminatory reasons, the

plaintiffs’ Fifteenth Amendment claim is

unsuccessful.

147 a

ad. The effect of the appointive

System may be more detrimental on the

local level in counties such as

Buckingham and Halifax where there is a

Significant disparity between the

percentage of blacks in the population

and the racial composition of the school

board. From this statistical evidence,

the court may infer intent to racially

discriminate in the application of the

appointive process in these counties.

See Mayor of Philadelphia v. Education

Equality Leqgue, 415 U.S. 605, 620

(1974). The plaintiffs, however, have

not demonstrated that the appointive

system is responsible for this disparity.

The testimony adduced at trial and in the

depositions submitted into evidence

suggests that although blacks comprise a

large portion of the population, they are

not seeking school board seats in numbers

148 a

consistent with their percentage of

population. The parties stipulated that

since December 27, 1971, every black who

has formally requested appointment by the

Buckingham County School Trustee

Electoral Board has been appointed to the

school board. (Stipulations with

Buckingham County, Stipulation 6). In

Halifax County, blacks have not been

appointed for reasons unrelated to the

appointive system. For example, William

Coleman nominated a _ black for a school

board seat. The candidate withdrew and a

white was nominated and appointed in his

Stead. In the other named jurisdictions

--Nottoway County, Prince Edward County,

and the City of Petersburg, the plain-

tiffs have similarly failed to demon-

Strate that the disparity between black

representation on school boards and

their percentage of the population

149 a

results from the appointive process. In

these localities, the disparity would be

cured by a change in one seat on the

school board. The plaintiffs have failed

to demonstrate that the appointive

process hinders them in gaining one more

seat on these school boards.

23. Under section 2 of the Voting

Rights Act of 1965, 42 U.S.C. Section

1973 (1986) the plaintiffs must

demonstrate that the proscription of a

“voting qualification or prerequisite to

voting or standard, practice or

procedure...which results in a denial or

abridgment of the right of any citizen...

to vote” was motivated by race. To

establish their -claim under section 2,

the plaintiffs need only prove that the

statute relating to voting has a

discriminatory effect; discriminatory

purpose need not be proved. tJhornburg y.

150 a

|

{

"

;

:

kc

’

4

Gingles, 478 U.S. 30 (1986).

24. The Voting Rights Act seeks to

purge the political process of all means

employed to diminish minority voting

power, specifically including “shifts

from elective to appointive office.” H.

Rept. 97-227, 97th Cong., 2d Sess. 18

(1982).

aa. Section 2 of the Voting Rights

Act is applicable to statutes predating

the enactment of the Act. Each instance

of the continuing operation of the ap-

pointive process is a new or continuing

violation of Section 2 if the effects of

the decision are currently felt by the

black population. See Summary Judgment

Memorandum Opinion at 16-17.

26. Only Arlington County could

have a claim under the Voting Rights Act

Since it is the only jurisdiction which

couid have chosen to elect its school

151 a

board members. Since no resident of

Arlington is a plaintiff in this suit,

that cause of action is not before the

court. Moreover, any injustice resulting

from the General Assembly's act has

probably passed. As noted earlier, the

plaintiffs have failed to prove that the

appointive system has a discriminatory

impact on blacks ona statewide or local

level. Consequently, even if section 2

of the Voting Rights Act was construed

broadly to encompass the claims of the

Plaintiffs in this action, that cause of

action would fail. The appointive scheme

does not have a present discriminatory

effect upon blacks.

se The plaintiffs’ requests for

injunctive and declaratory relief are

denied. Judgment is entered for the

defendants and against the plaintiffs,

and this action is dismissed with

152 a

prejudice.

Let the Clerk send ga copy of these

Findings of Fact and Conclusions of Law

to all counsel of record.

Aug. 18. 1988 S/Richard L. Williams

DATE U.S. DISTRICT JUDGE

153 a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-2919

DARIUS IRBY; et al.,

Plaintiffs-Appellants

V,

a ae STATE BOARD OF ELECTIONS; etc.,

et Gl.

Defendants-Appellees

and

ROBERT P. LAWLER, in his official

capacity as a member of the Board of

Supervisors of Halifax County

Defendant

On Petition for Rehearing

With Suggestion for Rehearing In Banc

January 9, 1990

The appellants’ petition for re-

hearing and suggestion for rehearing in

banc were submitted to this Court. The

1544

petition is deemed timely filed as of

12/11/89; however, as no member of this

Court or the panel requested a poll on

the suggestion for rehearing in banc, and

As the panel considered the petition

for rehearing and is of the opinion that

it should be denied,

IT IS ORDERED that the petition for

rehearing and suggestion for rehearing in

banc are denied.

Entered at the direction of Judge

Murnaghan with the concurrence of Judge

Phillips and Judge Wilkinson.

For the Court,

CLERK

155a

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Amendment 1. Congress shall make no

law respecting an establishment of reli-

gion, or prohibiting the free exercise

thereof; or abridging the freedom of

speech, or of the press; or the right of

the people peaceably to assemble; and to

petition the Government for a redress of

grievances.

Amendment 13, Section 1. Neither

slavery nor involuntary servitude, except

as a punishment for crime whereof the

party shall have been duly convicted,

shall exist within the United States, or

any place subject to their jurisdiction.

Amendment 14, Section 1. All per-

sons born or naturalized in the United

States, and subject to the jurisdiction

thereof, are citizens of the United

States and of the State wherein they

reside. No State shall make or enforce

1560

any law which shall abridge the privi-

leges or immunities of citizens of the

United States; nor shall any State

deprive any person of life, liberty, or

Property, without due process of law; nor

deny to any person within its jurisdic-

tion the equal protection of the laws.

Amendment 15, Section 1. The right

of citizens of the United States to vote

shall not be denied or abridged by the

United States or by any State on account

of race, color, or previous condition of

servitude.

Section 2 of the Voting Rights Act

of 1965, 42 U.S.C. Sec. 1973, Pub. L. 97-

205, Sec. 3, June 29, 1982, 96 Stat. 134.

(a) No voting qualification or

prerequisite to voting or. standard,

Practice, or procedure shall be imposed

or applied by any State or political

Subdivision in a manner’ which results in

157a

a denial or abridgement of the right of

any citizen of the United States to vote

on account or race or color, or in

contravention of the guarantees set forth

in section 1973b(f)(2) of this title, as

provided in subsection (b) of this

section.

(b) A violation of subsection (a)

of this section is established if, based

on the totality of circumstances, it is

shown that the political processes

leading to nomination or election in the

State or political subdivision are not

equally open to participation by members

of a class of citizens protected by

subsection (a) of this section in that

its members have less opportunity than

other members of the electorate to

participate in the politial process and

to elect representatives of their choice.

The extent to which members of a

1580

bieirsia .

Ai ne LS ches i Miah Ain, te then nin seal oemets

protected class have been elected to

office in the State or political

subdivision is one circumstance which may

be considered: Provided, That nothing in

this section establishes a right to have

members of a protected class elected in

numbers equal to their proportion in the

population.

Acts of Virginia, 1956, Chapter 591.

An Act to repeal Sections 22-84 through

22.88.1 of the Code of Virginia, relating

to election of members of school boards

in certain counties; and to amend the

Code of Virginia by adding sections

numbered 22.83.1 and 22.83.2, relating to

method of selection of school boards in

such counties and cities.

Approved March 31. 1956

Be it enacted by the General

Assembly of Virginia:

> That Sections 22-84 through

159a

22.88.1 of the Code of Virginia are

repealed.

2. That the Code of Virginia be

amended by adding sections numbered

22.83.1 and 22.83.2 as follows:

Section 22.83.1. Notwithstanding

any other provision of law the

school board of any county

operating under Chapter 12 of Title

15 of the Code shall be chosen as

hereinafter set out. As the terms

of the members of such school board

in office on the day this section

becomes effective successively

expire, their successors shall be

chosen by the governing body of any

such county for terms of four

years; provided that such county

governing body shall have the

power to fill vacancies occurring

other than by expiration of term

160a

for the unexpired term.

Section 22. 83.2. Notwithstand-

ing any other provision of law,

general or special, no school board

shall be elected by popular vote in

and for any county or city.

HHH

l61a