# Appendix — Irby v. Virginia State Board of Elections > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1377%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1990 - **Citation:** 496 U.S. 906 ## Text 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1377%3A2. Public record. Not legal advice.