Opposition Brief — School Board v. Brewer

—EOrrrrleererl OO ee e — — Ss ee

Supreme Court of the United States i

October Teri, 1971

No. 71-1317 |

THE SCHOOL BOARD OF THE CITY OF

NORFOLK, VIRGINIA, et aL,

. Petitioners,

V.

CARLOTTA MOZELLE: BREWER. #1 AL..

. and — Fi tt

UNITED. STATES OF. AMERICA.

and

DAVID E. ALLGOOD, Er aL, 3

+ Respondents

- MOTION TO VACATE STAY AND

' BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

rhe es

SAMUEL W. TucKER -

Henry L. Marsu, Ill.

james W. Benton, Ir.

Hirt, Tucker & MarsuH -

214 East Clay Stréet

"Richmond, Vngmia 23219 ** © +- * + 2 1%

Victor J, ASHE |

Suite 704—Plaza One : as “

St. Paul’s Boulevard & Plume Street ti . ne

Norfolk, Virginta 23510

Jack GREENBERG -

James M. Nasrit, ITI

NorMAN CHACHKIN

10 Columbus Circle, Suite 2030

’ New York, New York 10019

Counsel for Respondents

"

Supreme Court of the United States

October Term, 1971

No. 71-1317

THE SCHOOL BOARD OF THE CITY OF

NORFOLK, VIRGINIA, et AL |

| : ie _ Petitioners,

Vv. ees

CARLO TTA MOZELLE BREWE R, ET AL.

and

UNITED STATES OF: AMERICA,

and

DAVID E. ALLGOOD, et at.

Respondents.

MOTION TO VACATE STAY

Respondents Carlotta Mozelle Brewer and’ others move

the Court to vacate the stay of the mandate of ‘the United

States Court of Appeals for the Fourth Circuit dated March

7, 1972 by which the United States District Court for the

Eastérn District of Virginia at Norfolk is directed “to amend

the plan of desegregation for the defendant school district.

by requiring the school district to. provide, ‘either by a bus

system of its own or by an acceptable arrangement with the

" private bus system now operating in the school district, free’ -

transportation for all students of the school system assigned

to schools located beyond reasonable w alking distances of

&

. ee

their homes.” By order of the Court of Appeals filed April 3,

1972, the mandate was “stayed until April 18, 1972, m order

to permit the defendants to apply tothe Supreme Court for

a writ of certiorari, or to apply to that Court for a stay.”

The petition for a writ of certiorari was docketed on the

13th day of April, 1971.

In support of this motion, the resp« seamen show:

if

1. If the stay of the mandate will be vacated, the district

court, in compliance with the spirit of Alexandc$ v. Holmes.

“County Board of Education,.390 U.S. 19 (1969); may, join

the Council of the City of Norfolk as a pi ity: defendant and °

require the Council and the School Board to mi ike plans.

with increased appropriations’ as necessary, for providing

free transportation for the school children without which, as

the Court ‘of Appeals has noted; reassignment for purpo: es

of desegregation “becomes a futile ge sture and... a cruel

hoax.” Inasmuch as approximately ninety days are eae :

between order and delivery of school buses (Bradley v.

School Beard of the City of Richmond, 324 F.Supp. 456.

459 (E.D. Va.-1971) ), the courts should require’ the School

Board to promptly decide whether it will transport children

by school buses or, if not, by what practical means free

transportation will- be provided. In .cither: event, and &)

avoid diminution of the qui ity of the educational program

(Code of Virginia, 1950, § 22-126. 1), the cost should be

ascertained and included in the ray s budget for the fiscal

year which will begin July 1, 1972 (Code of Virginia, 1950,

_$ 15,1-160 et. seq. ).

° 2. Noi injury will be occasioned the School Board or the

Council.if the stay should be vacated. Even if the district

3

a

court should require the purchase of school buses and this _

_Court should later hold that Norfolk has no obligation to

- furnish free transportation to school children under the -cir-

cumstances of this case, there is a growing.national- demand

for school buses which insures that such properties can be

resold with minimal financial loss. “i,

3. In the words of the Coutt of: Appeals i in its March ‘,

1972 opinion in’ this case at footnote: 6, the respondents .

allege: “The District Court found: the cost of installing and

‘operating a transportation system by ‘the school district to

be $3,600,000. Of this sum, however, approximately $3:-

000,000 represented capital outlays: covering purchases of.

buses. and the acquisition and equipping of service yards.

These expenditures are normally funded and are not eon-

sidered an operating expense. The annual operating expense

‘of the bus system for the school district was fixed at about -

$600,000, of which 47 per cent would be reimbursable by the

State. It would seem reasonable to assume that an annual

operating budget of $600,000 by the district (supplemented

as it would be. with State aid) would cover the operating

costs of the system and provide adequately for normal

amortization of the capital expenditures required for the

purchase of buses and for the acquisition of service facilities.

Such an expenditure from a school budget ofsover 35 million

dollars would be in line with what was considered reasonable

in Swann, where an increased annual operating expense of

$1,000,000, imposed on a total school — of $66.000,000,

was held reasonable.”

' 4. Judicial requirement that the Council and School

Board make plans for providing free transportation -for-

school children will not even occasion-undue inconvenience ~~

_but will merely-‘insure good faith performance of the under-

taking which the School Board indicated-when, in its appli- -

4. ¢@

. cation to the Court of Appeals for the stay, it. represented:

“The appropriate officials of the School, Board and the City

of Norfolk are in the process of investigating feasible alterna-

tive methods’ ef providing public transportation for the

school children and the general public of the City of Nor-

folk, including the financing. thereof.”

IL

)

°

5. If the stay of the mandate i continue in force, the

defendant School Board and the Council of the City of

Nor folk (which by reason of the School Board’s objcetions

has not been madé a party hereto) will be free from judicial

~ compulsion to provide transportation for the school children

during’ the 1972-73 school session or to make reasonable:

_plans for such; and thousands of Norfolk school children and

their parents, including members of the plaintiff class, will”

“be financially’ disadvantaged without prespect’ of recovery

or, even worse, children’ will be required to forego ‘school.

attendance during the 1972-73 school session by reason of

their iriability t6 pay the cost of transportation to distant

schools to which they have been assigned pursuant to the

constitutional] command to desegregate schools. ©? |

6. Under the desegregation plan for Norfotk’s schools,

submitted and approved pursuant to this Court’s decisions in

Swann v. Charlottc-Mecklenbuig Board of Education, 402

U.S. 1 (1971) and companion cases, an estimated 24,000 —

school children are assigned to schools which are beyond

walking distance from their respective homes; some of the |

distances being as much as nine miles. Norfolk’s public.

.schools have an approximate enrollment of 50,000, more

_ than 16,000 of whom are from low i income familics as are,

most of the plaintiff class.

e

. @)

*

HON

2

7. During ee 2, student ~ bus -fares in Norfolk were

increased from 121% ¢ ‘ents to 171% cents or from $45 to $63

a year. A predict: able resuly of such fare increase was that

more children of low income families would ‘have to forego

school attendance bec cause of their inability to pay for trans-.”

a ny the stay should continue in eltees and ds Court

should filtimately affirm the judgment of the.Court of Ap-

peals, thousands of Norfotk school children from families,

with low income fncluditig many children of the plaintiff.

class, will have been irreparably injured by the wrongful

denial ‘of the means to get to. the distant schools to which

‘they were assigned pursuant to the desegregation plan. The -

reward for their quest for equal educational opportunity will .

have been, in a-very realistic sense, a gross denial of’ any

educational opportunity.

Samur. W. Tucker

Of Cotinsel for Carlotta Mozelle

Brow er, et al., Respondents

SaMuge W. Tucker , |

Henry L. Marsnu, II °

James W. Benton, Jr:

Hirt, Tucker & Marsi

214 East Clay Street .

Richmond, Virginia 23219:

Victor J. Ase

‘Suite 704—Plaza One ~ %

St. Paul’s Boulevard and Plume Street

Norfolk, Virginia 23510

Jack GREENBERG .

James M. Nasair, II

NorMAN CHAcHKIN ;

10 Columbus Circle, Suite 2030

.New York, New York 10019 ~

Counsel for Carlotta Mozelle Brewer, -

et al., Respondents

BRIEF IN OPPOSITION FO PETITION:

* - FOR A WRIT OF CERTIORARI

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TABLE OF CONTENTS

A. Free Transportation, As Mandated By The ‘Court

3 Py

Page

_* Eameek Asracts of tue Case _._................. Fete PN AO ie) HS cs

* . . ~ ~ is . .

QueEsTIONS PRESENTED ..........--..--- Seine Stole Fes ARTS 2

STATEMENT oF-AppiTionaL Facts ....... RE ES PAOD atone Nee raat opalitie

REASONS FOR DENYING a a eae =

I. Free Pupil Transportation heen el Sensual shemadurasacemhet 4

Below, Is Clearly Re apes By Prior Decisions Of This ~ -

NN Ske TN pat CIR FOE IE LIP ELIE rae DD APOE ERE TSE LOPE IO

B. The Apparent Conflict Between Circuits, If Real, Is

Insignificant deat eoetoibiaanastasaeesbaliian baitiashaenandceniadaannaanniti

Il. Allowance Of Counsel Fees To Plaintiffs -_..

TIL. The Pendency’ Of The Instant Petition, Coupled . With

The Stay.Granted Purseant ‘Fo F.R.A.P. 41(B), Shield’

The Scheel Board From Its te se |

di

-Schoolt Buses Now ............... eaenchelial scahisenetaghaiennaianeniielionat :

CONCLUSION ............ iteeas Pr RaSAns se PEED Nm WA ped OPH eh SN

TABLE OF CITATIONS

Cases:

Bell y. School Board of Powhatan County, Virginia, 321 F.2d 494

12

‘(2 S| rannoneenerannentnrersnivevsman nano aes ett lh eee a Po: -9

Bradley v. School Board of the City of Richmond, 324 F. Sune. . os

456 (ED. Va. 1971) . saietakhalcadicoaa caaaareghdanadeinsidasosancnanie tose 11

Brewer v. School Board of City of Norfolk, Virginia, 434 F.2d 408 1

~ Brown v. Board-of Education of Topeka..347 U.S. 483 (1954) ..6, 10

Brown v. County School Board of F rederick County, Virginia, 327

20 GS (60 Che. 1008) sckammeean 9

Clark v. Board.of Education of Little Rock Schoo] District, 369

PG Ohi We) 10

Clark v. Board: of Education of Little Rock School District, A49

. F.2d 493 (8th Cir. 1971) conpieose vanes ontietntingaesiseta amide Paede Pike 7, >

Griffin v. Board of Supervisors of Prince FE bib ard County, —_ rau...

486 (4th Cir. 1964) _...... Situaioend iene steal is SAREE ae “3

? Griffin v. School Board of Prince Edward Goma, 377 US . 218

fi; Seer enn en tteeRII De edaditaalen eels poF ee a hie ny Lael OR Ma 6

Nesbit v. “Statesville City Board of Education, “418 F. Od 1040 ie

Cir. Ba) Sep nt MEM REN Std EME RSE My ior ee DN, Wil 10

: School Board of Norfolk, Virginia v. Brewer, 399 U.S. 929 . =

Swann v. Charlotte -Mecklenburg, Board of Education, 42 “Te ae

J REISS 5 tarssnepenistintieinanattn pours natinceieienieiniatebnagcenesteimvediens ow Se

United States of America v. Greenwood Municipal Separate School

District, et al., -.... an (Sth Cir. No. 71-2773) 0.2.8, 9.

2 . Other Authority

Constitution. of Virginia (1971) Article VIII, §§ 1, 3 20000. 6

“ ’

‘Supreme Court of the United States.

oo Term, 1971

_ No. 71-1317

7

“THE SCHOOL BO. ARD OF THE CITY. OF

NORF OLK, VIRGINIA, er at.

. Peilbiiieie:

Vv.

CARLOTTA MOZELLE BREWER; et At.,

and

UNITED STATES OF AMERICA,

and

DAVID E. ALLGOOD, ET AL.,

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

EARLIER ASPECTS OF THE CASE

.On June 29, 1970 this Court denied the school board's

petition for writ of certiorari to the decision of the Court of

_ Appeals for the Fourth Circuit (Brewer v. School Board of.

City of Norfolk, Virginia, 434 F.2d 408) which, inter alia,

’ directed that “{wlith respect to elementary and junior high

schools, the board should explore reasonable methods of

_ desegregation, including rezoning, pairing, grouping, school

)

9

consolidation, and transportation” (Id at 412). School Board

of Norfolk, Virginia v. Brewer, 399 U.S. 929. — 3 ;

On or about September 3, 1971 the school board made

application to the Chief Justice for a stay of the mandate of -

the Court of Appeals for the Fourth Circuit which hi id va-

cated the district court’s August 25, 1971 stay of its July 28,

1971 order requiring transportation of pupils to effect school

desegregation; the application having been based ona claim

that Executive Order No. 11615, dated August 15, 1971

prohibited. the Virginia Transit Company’s anticipated fare.

increase without which the company would not continue to

transport children at reduced fares. The school beard then

asserted: “The only alternative method of obtaining the

necessary transportation is for the School Board to establish

a school bus system.” ‘The application for a stay was denied

on September 5, 1971. School Board of Norfolk, Virginia v.

Carlotta Mozelle Brewer, et al., and United States of Amer-

ica; Ma, ....... October Term, 1971.

On or about September 27,1974 certain “white -defend~

ant-intervenors” made application to the C hief Justice for a

stay of the District Court’s July 28) 1971 order requiring

transportation of pupils to effect school desegregation. ‘The

application was denied. David E. Allgood, etc., et al. v. Car-

_lotta Mozelle Brewer ct al. NO. 2.0... October Term, 1971.

The history of sixteen years of active litigation of this case |

-in the lower courts is set forth in the appendix to this brief.

‘QUESTIONS PRESENTED

The petitioners’ statement of questions presented makes

certain assumptions w hich tlic respondents are unwilling to

admit. Hence, we restate those questions, viz:

‘1. Whether this school board must defray costs of all

transportation which is necessary ‘to the disestablishment of

3°

' racial segregation in the public schools and to, the mainte-

nance.of equality of bene fits accorded students similarly situ-

ated. 3

2. Whether an appellate court may mandate an award of

counsel fees to successful plaintiffs in a school desegregation

case, hs Ae Ny | ee

3. Whether, by. virtue of the stay granted pursuant to

F.R.A.P; 41(b), the pendency of the instant petition will

absolve the school board of its responsibility to order school

buses in sufficient time to furnish transportation during the

1972-73 session.

ST ATE ME NT OF ADDITIONAL FACTS

The hoard estimates that 24,000 pupils will require trans-

portation. Norfolk’s public schools have an approximate en-

rollment of 50,000, more than 16,000 of whom are in low

income familics. :

Since 1942 Virginia, has oBcecd assistance to bncel school

district transportation programs covering maintenance,

operating expenditures, bus replacement costs, etc. (25 Tr.

60, 74). Up to 100% of operating expénditures qualify for

reimbursément upon the application of a school district.

For many-years, the Virginia Transit Company has oper~

ated special school busses in conjunctian with the school

board. These buses are routed to pick up students near their

homes each morning and transport them to the school of

their assignment. Over the years, the City of Norfolk has

subsidized the cost of transporting more than 8,000 students

daily, thus permitting them to ride at one-half of the normal

fare. — |

“The District Court found the cost of installing and oper-

ating a transportation system by the school district to be

4

- reasonable” (Slip Op. footnote 6)

~ $3,600,000, OF this sum, however, approximately $3,000,000

. represented capital outlays, covering purchases Of -buses and

the acquisition and equipping of service yards, These ex-

penditures are normally funded and are not considered an

operating expense. The annual operating expense of the bus

system for the school district was fixed at about $600,000,

of which 47 per cent would be reimbursable by the State. It

. would seem reasonable to assume that an annual operating

budget of $600,000 by the district (supplemented as it would

-be with State aid) would cover the operating costs of the

system and provide adequately for normal amortization of

the capital expenditures required for the purchase of buses

and for the acquisition of service facilities. Such an expendi-

ture from a school budget of over 35 miHion dollars would

be in line with what was considered reasonable in Swann,

where An increased annual, Operating expense of $1 ,000,000,

imposed on a total school budget of $66,000,000, was held .

.

/

REASONS FOR DENYING THE WRIT

L

Free Pupil Transportation

- A.

FREE TRANSPORTATION, AS MANDATED By T HE Court

Betow, Is Ciearty Reourrep By Prior Decisions

Or Tuts Court.

By necessary implication, this Court has shown that this

school board must furnish free transportation. In affirming

the district court’s order in Swann v. Charlottc-M ecklenburg

Board of Education, 402 U.S. 1, 26-27 (1971), and with

specific reference to an optional majority-to-minority trans-

fer provision, this Court indicated:

5

“In order to be effective, such a transfer arrangement

must grant the transferring student free transportation

{emphasis supplied] and space must be made available

in the school to which he desires to move. Cf. Ellis Vv.

Board of Public Instruction, 423 F.2d 203, 206 (C.A..

"3 1970). The court orders in this and the companion

Davis case now provide such an option..”

It should go without Saying that the school board has at

least an equal duty to transport students whom it assigns to

distant schools to accomplish desegregation as it has to

transport the student: who voluntarily seeks such assignment

to avoid being in a racial majority.

. After showing the peculiar appropriateness of the use of

transportation in the Charlotte-Mecklenburg (North Caro-

lina) system and in the Mobile. Alabama system as well, the

Court in Swann, said: :

“Desegregation plans cannot be limited to the walk-in-

school.” (402 U.S. at 30)

Then the Court mentioned one possible valid objection to

transportation of students to accomplish desegregation, i.c.,

“when the time and distance of travel is so great as to either

risk the health of the children or significantly impinge on

_the educational pracess” ‘bids.

In’ their- considerations of- plans for the use of trans-

portation to accomplish desegregation, district courts are

charged, by Swann, to consider the discussions under ( 1)

Racial Balances or Racial Quotas, (2) One-race Schools

and (3) Remedial Altering of Attendance Zones. They are

not enjoined to measure rélief by the extent to which the

subject school district may have previously transported stu-

dents. .

The lower courts are charged, by Swann, to reconcile

competing values, as courts have traditionally done, in fash-

Bost

ioning remedial measures. In so doing they must keep in

mind the goal of equal educations opportunities for all chil-

dren; those who live near and those who live far from school

and, dea: those whose parents are affluent and those whose

parents are indigent. “Such an opportunity, where the state

has undertaken to provide it, is a right which must be avail- °

able to,all on equal terms.” Brown v. Board of Education of

Topeka, 347 US. 483,493 (1954). That constitutional im-

perative transcends fiscal policies and budgetary preroga-

tives. Griffin \ v. School Board of Prince Edward County,

377 US. 218 (1964).

Here, the Court of Appeals considered the’ problem of

expense and concluded that. the cost of busing in this case ts

not unreasonably burdensome (Slip Op. p. 8, footnote 6).

Quite appropriately, the court, sitting en banc, unanimously

required this school board “to provide . . . free transporta- ;

tion for all students of the school system assigned to schools

located beyond reasonable walking distance of their homes”

(Judgment filed May 7, 1972).

Unquestionably, desegregation in Norfolk cannot be ac-

complished without transportation. It seems to be equally

clear, as a matter of paramount law in Virginia, that “public

elementary and secondary. schools for all children” shall be

free.and_ shall be compulsory for “every _cligible child of

appropriate age, such’ cligibility and age to be determined

_ by law” (Constitution of Virginia (1971), Article VIII,

Education §§ 1, 3). No child, regardless of the affluence or.

poverty of his parchts (who may or may not be hostile to the

desegregation process), can be crushed between the state

law which says he must attend school and the federal law |

‘which requires his assignment to a school remote beyond his

means of locomotion. The court below was imminently cor-

rect in holding that “the Court cannot compel the student

de

Ss

to attend a distant school and then fail to por him with

the’means to reach that school” (Slip Op. p. 9).

As was demonstrated in Swann (402: U.S. at 7),: resi-

‘dentjal patterns in metropolitan “areas have resulted from

federal, state and local government action; and school board

action, particularly, with reference to the sites and sizes of.

schools, based on these patterns have resulted in segregated

_ education. Now, in obedience to the constitutional mandate

to desegregate schools, the state assigns children to schools

distant from their homes. Consideration of these facts im-

_pelled the court below to hold “that the school district as a

part of its plan of desegregation must provide a practical

method of affording free busing for students assigned to

schools beyond normal walking distance of their homes; the

mechanics of the me thod to be ‘employed by the school dis-

trict in discharge of this duty [being | for the District Court” 3

(Slip Op. pp. 10-11).

B.

THE APPARENT ConrLict BETWEEN Circutts,

Ir Rear, Is INSIGNIFICANT

The school board argues that there. is a conflict between -

circuits concerning provisions of free transportation. and:

—points—to—the-one—short-paragraph-in-Gtark ~v.-Board-of

Education of Little Rock School District, 449 F.2d 493, 499.

(8th Cir., 1971) wherein the Eighth Circuit altered the’

_ district court’ s free transportation requirement by excluding.

“students who continue to attend the secondary school closest

to their-home’”’; it having been the feeling of the Court of

Appeals that the constitutional rights .6f such students have

nat been or will not be affected. It is quite apparent that

the Eighth Circuit overlooked the very likely protest of

some excluded student that he ma pay for transportation

Z /

;

8

to and from school while others similarly situated ride

‘shorter distances at public expense.

The reasoning adopted by the Fourth Circuit in the instant

case finds support in the April 11, 1972 decision of the Fifth

Circuit in United States of America v. Greenwood Munici-

pal Separate School- District, et al... .F.2d —.. (Sth Cir.

No. 71-2773) which reversed the district court's denial of

free transportation for black students residing in non-con-

tiguous or satellite zones. (The epinion is reproduced in the

appendix hereto.) Rejecting the government's suggestion of

remand for inquiry by the district court-as to the transporta-

tion needs of the students and the ability of the school

district to meet those needs, the Court of Appeals said :

_ “It is implicit in the decisions of the Supreme Court

—* and of this court that it is the responsybitity of School

officials to take whatever remedial steps a essary .

to disestablish thé dual school system, including the

provision of free bus transportation to students required

to attend schools outside their neighborhoods. ‘The black

clementary students who were refused free transporta-

tion by the district court's order are victims of the rem-

nants of the duat system of schools which existed for so_

long under the requirements of Mississippi constitu-

tional-and statutory provisions. No legitimate reason is

put forth for forcing thém and their —— shoulder

the burden of eliminating these vestiges of segregated

schools in the Circumstances present ltere.” (Slip Op.

pp. 4,5) . os —

The only uncertainty, if any, -" pre equal protection

is being accorded the student wfio is denied free transpor- _-

tation because his school, although beyond walking distance,

is the closest school to his home. After considering the cost

involved, the court below forestalled the uncertainty, and

avoided the further equal protection question, by requiring

9

free transportation of all students who live beyond normal

walking distance. In the Greenwood case, the Fifth Cirewit

did not have before it the facts respecting the needs of the

individual students and the ability of the school district to

mect those needs. It dealt only with the problem which was

most. urgent— the transportation of children whom the court

had required to be assigned to distant schools. In the Clark

case, the Eighth Circuit did not state the facts or articulate

its reasoning which caused it to “feel that the.constitutional

rights of the [excepted] students have not been or will not

‘be affected.”

The petitioners do not claim that the Fourth Circuit's

order requires them to transport a significant number. of

children from their-homes to the closest school. It appears

* that the difference in budgetary commitment will be slight.

Moreover, the appropriate case in which to test the equal

protection right of a student to-free* transportation to a

school which, although beyond normal walking distance, ts

closest to him would scem to be a case in which such-a

student is a party.

mle

* Allowance Of Counsel Fees To Plaintiffs

There is no general rule prohibiting. the/allowance of

counsel fees in the absence of statute. As was pointed out by

Judge Winter, especially coneurring with the court below,

the Fourth Circuit has directed the allowance of counsel fees

~ to plaintiffs in several school desegregation cases, ¢.g., Bell v.

School Board of Powhatan County, Virginia, 321 F.2d 494

(4th Cir. 1963) ; Brown v. County School Board of Freder-

ick County, Virginia, 327 F.2d 655 (4th Cir. 1964) ; Griffin

v. Board of Supervisors of Prince Edward County, 339 F.2d

486 (4th Cir. 1964), reversed on other grounds, 377 U.S.

10

218 (1964) ; Nesbit v. Statesville City Board of Education,

418 F.2d 1040 (4th Cir. 1969). |

Although it then denied the prayer of plaintiff-appellants

for an award of counsel fees, the Eighth Circuit in Clark v.

Board of Education of Little Rock School District, 369 F.2d |

661, 671 (8th Cir. 1966), warned: “The time is coming to

- an end when recalcitrant state officials can force unwilling

victims of illegal discrimination to bear the constant and

crushing expense of enforcing their constitutionally accorded

rights.” In the 1971 appeal of the same case, that court held:

“The plaintiff should no longer be required to bear the con- -

tinuing expense of attorneys’ fees to vindicate their constitu-

tional rights. They are entitled to attorneys’ fees for services —

performed by them in processing this appeal and cross-

appeal” (449 F.2d at 493). . |

_ The respondents are in accord with the views expressed

by Judge Winter, concurring specially in the judgment |

below :

“The time is now when those who vindicate these civil

rights should receive fair and equitable compensation

from. the sources which have denied them, even in the

absence of any showing of ‘unreasonable, obdurate

obstinacy.’ ~ (Slip Op. p. 30) —~

“It seems . . . to be appropriate now to hold . . .. that

reasonable and adequate counsel fees should be

awarded as of course unless special circumstances would

render an award unjust.” (/d., p. 29)

These views are particularly appropriate in the light of this

school board’s long continued pattern of evasion of its duty -

to desegregate and its persistent obstruction of the efforts of

the plaintiffs to realize the promise of the 1954 Brown deci-

sion, an outline of which is set forth in the appendix to this

brief as “The History of This Litigation In The Lower

Courts.” Poe

eae ee es

11

Although the respondents believe that a similar pro-

nouncement from this Court would greatly accelerate the

course of school desegregation across the land, they urge

denial of the instant petition for reasons above shown and

for a further reason next stated.

Ill.

The Pendency Of The Instant Petition, Coupled With The Stay

Granted Pursuant To F.R.A.P. 41(B), Shields The School Board

From Its Responsibility’ To Order School Buses Now ae

The petition points out that the Virginia Transit Com-

pany has served notice en the City of Norfolk that. it will

terminate service for all passengers on August 23, 1972. This

being so, the plan for desegregation of Norfolk's schools may

fail for the 1972-73 school session unless the school board

will acquire school buses ‘in sufficient number to provide

transportation for the students assigned to schools remote

from their homes.

In another school desegregation case pending in the |

_ Eastern District of Virginia, Richmond Division, the evi-

dence indicated that approximately ninety days are required .

between order and delivery of transportation equipment

(Bradley v. School Board of the City of Richmond, 324 F.

Supp. 456, 459 (E.D. Va. 1971) ). But for the stay granted ~

pursuant to Rule 41(b) of the Federal Rules of Appellate

‘Procedure and the timely filing of the instant petitton, the

school board might even now be ordeiing school buses and

secking appropriation of funds with which to defray the cost

of a school transportation system. .

Of course, considering the likelihood that the City of

Norfolk will assume the operation of the transit system,

transportation of school children might be accomplished

through that system. In such event, however, the right of

a

12

school children to free transportation to distant schools, as

recognized by the court below, should not be impaired: Dur-

ing 1971-72, and at the instance of the school board, student

fares were raised from 12'2¢ to. 17'2¢ (from $45 a year to

$63): If the city-operated transit systems can charge chil-

dren any amount to-get to and from the schools to which

they have been assigned, it can charge enough to place free

public education beyond the reach of the vast majority of

the plaintiff class: - ;

CONCLUSION”

Unless the instant petition will be promptly denied or

unless the stay will be promptly vacated, this school board

may again delay desegregation for yet another year or, even

worse, it may deny public education to a large number of -

the children whose predecessors sought relief at the hand of

the federal court in May of 1956.

‘Respectfully submitted,

Samuet W. Tucker

Of Counsel for Carlotta Mozelle

Brewer, et al., Respondents -

SAMUEL W. TUCKER

Henry L. Marsu, III

James W. Benton, Jr.

Him, Tucker & Marsu

214 East Clay Street

Richmond, Virginia 23219

Victor J. Asner

Suite 704—Plaza One —

St. Paul’s Boulevard & Plume Street

Norfolk, Virginia 23510

Jack GREENBERG.

James M. Nasarr, III

NorMAN CHACHKIN ih

10 Columbus Circle, Suite 2030

New York, New York 10019

Counsel for Carlotta Mozelle Brewer, |

et al., Respondents

APPENDIX

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APPENDIX I

The History Of This Litigation In The Lower Courts

In this sixteen-year-old litigation to desegregate the Nor-

folk, Virginia public schools, the reported opinions are

numerous. Nearly every conceivable tactic to delay, frus-

. trate and —_— ug mandate of Brown v. Board of E duca-

tion, 347 U.S. 483 (1954) has been raised.

After the icici was filed in 1956, all action was de-

ferred pending the holding of a planned special session of

the Virginia Legislature on the subject, of school integration,

and then again pending the effective ‘date of the “massive

resistance” legislation passed at the special session. On Janu-

ary 11, 1957, the district court denied the school board's

motion to dismiss, and on February 12, 1957, the district

court entered an injunction against the school authorities.

restraining them from:

refusing, solely on account of race or color, to admit to,

or enroll or educate in, any school under their oper-

ation, control, direction or supervision, directly or ‘in-

directly, any child otherwise qualified for admission to,

and enrollment and education in sich school.

Beckett v. School Bd. of City of Norfolk,'148 F. Supp. 430,

2 Race Rei. L. Rep. 337 (E.D. Va.), both aff'd sub nom.

School Bd. of City of Newport News v. Adkins, 246 F.2d 325

(4th Cir.), cert. denied, 355 U.S. 855 (1957). However, all

proceedings were again stayed pending disposition of ap-

peals and petitions for certiorari, It was not until July, 1958 ©

that the school board adopted pupil placement criteria and

procedures. The board thereupon. denied “all 151 applica-

tions filed by black students to attend previously all-white

facilities during the 1958-59 school year. 3 Race Rel. L.:

‘Rep. 945 (1958). The district court ordered the board to

App. 2

reconsider and on August 29, 1958, the board announced

_ that seventeen of the transfer requests, would be granted. 3 -

Race Rel. L. Rep. 955 (1958). The board sdught an addi-

tional delay in admitting the seventeen black students, but

the district court denied it and the court of appeals affirmed. -

Beckett v. School Bd. of City of Norfolk, 3 Race Rel. L. Rep.

1155 (E.D. Va.), aff'd 260 F.2d 18 (4th Cir. 1958). On

plaintiff's cross-appeal from the district court’s refusal to

’ order the admission of the remaining 134 students, the.

.~ matter was remanded since the district court had’ indicated

he would consider separately the validity and application

of the criteria under which the applications were denicd.

The schools to which the seventeen Negro students were

assigned, however, were closed, pursuant to Vi irginia’s |

“school closing” laws, from the fall of 1958 until February,

1959, when the laws and similar Norfolk City ordinances

were declared unconstitutional in James v. Almond, 170

F. Supp. 331 (E.D. Va. 1959; 3-judge court) ; Harrison v.

- Day, 200 Va. 439, 106 S.E. 2d 636 (1959) ; James v. Duck-—

' * worth, 170 F.Supp. 342 (E.D. Va.), aff’d 267 F.2d 224 (4th |

Cir.) , cert. denied, 361 U.S. 835 (1959). At that time plain-

tiffs’ supplemental 3- judge court complaint was dismissed as

moot, and late in the 1958-59 school year, the district court

refused to overturn the board's denial of the 134 transfer

applications, holding its placement principles facially con-

stitutional. Beckett y. School Bd. of City of Norfolk, 181 F.

Supp: 870, 870-81 (E.D. Va. 1959), aff'd sub nom. Hill v.

School Bd. of City of Norfolk, 282 F.2d 473 (4th Cir. 1960).

_ The district court subsequently permitted the board to as-

sign pupils by: these principles, although holding that the

board need not utilize the procedures of the Virginia Pupil

Placement Board in view of ‘that agency’s. policy of not

granting any transfer requests. Beckett v. School Bd. of Cit y

fe)

App. 3

of Norfolk, 185 F. Supp. 459 (E.D. Va. 1959), af’7 181

F.2d.131 (4th Cir. 1960). During 1961 and 1962, the dis-

__ trict court had occasion to review and overturn school board

denials of black students’ transfer requests (unreported

opinions) although there was no across-the-board attack on

assignment procedures. However, when in 1963 the plaintiffs

filed a motion for further relief, the board discarded pupil ©

placement and proposed what.has come to be known as the

“Norfolk choice” -.plan—transfer between black and white

schools located within the same attendance area. This plan

was approved by the district court and on plaintiffs’ appeal

the court of appeals reversed and remanded for reconsider-

ation in light of its then recent decisions in this field. The

district court. was specifically instructed to consider the

legality or propriety of superimposing. a city-wide zone for

all-black Booker T. Washington High School on all other

_city high school zones. Beckett v. School Bd. of City of ©

Norfolk, 9 Race Rel. L. Rep. 1315 (E.D. Va. 1964) , vacated

and remanded sub nom.-Brewer v. School Bd. of City of

“Norfolk, 349 F.2d 414 (4th Cir. 1965). Proceedings subse-

quent to that remand and negotiations between the parties

resulted in the entry of a consent order on March 17, 1966,

approving a new desegregation plan: Beckett v. School Bd:

of City of Norfolk, 11 Race Rel. L. Rep. 1278 (E.D. Va.

1966). Under that plan, reluctantly approved by the dis-

trict court, there were multiple-school zones but at the high

school level, transfers between the three white high schools

and Booker T. Washington High were permitted only to fa-

cilitate integration. The following year, completion of Lake

Taylor High School necessitated the filing of an amended

_ plan by the school board, proposing five high school zones,

and allowing only Booker T. Washington students to trans-

fer to schools outside their zone of residence. The district

App. 4

court required that transfer privileges be. extended to all

high school students but rejected plaintiffs’ attacks upon the

zone lines and upon the proposed replacement of Booker T.

Washington High School ‘on the same site. The court of

appeals reversed and remanded, directing the district court

to consider, with respect to both issues, whether segregated

neighborhood patterns in Norfolk resulted from: racial dis-

crimination, of which the board was sceking advantage in

its zone lines. Beckett v. School Bd. of City of- Norfolk, 269

F. Supp. 118 (E.D. Va. 1967), rev’d sub nom. Bréwer v.

School Bd. of City of Norfolk, 397 F.2d 37 (4th Cir. 1968).

The district court found the appellate court’s decision “vague —

and confusing.” 302 F. Supp. at 20. Negotiations between

‘the parties: following the remand failed to produce agree-

ment. As an interim plan for 1969-70 the school board pro- _

posed zone line changes between Lake Taylor and Booker T.

_Washington to inérease integration, and similar changes be-

tween Maury and Granby. After hearings in the Spring of

1969, the district court approved the interim plan for 1969-

- 70. Beckett v. School Bd. of City of Norfolk, 302 F. Supp. 18

: (E.D. Va.. 1969). After extensive hearings in the Fall of

1969 on the long-range plan of desegregation for 1970-71

and thereafter, the district court approved the school board’s

submission. Beckett v. School Bd. of City of Norfolk, 308:

F. Supp. 1274 (E.D. Va. 1969). The court of appeals: re-

versed and remanded stating that the plan, whereby 76%

of the black elementary pupils would be assigned to 19

all-black schools, 40% of the white elementary pupils would

be assigned to 11 white schools, 57% of the black junior

high pupils would be assigned to 3 black schools, one all-

white junior. high school would remain, and segregated high

‘schools would remain, was constitutionally impermissible. '

Brewer v. School Bd. of City of Norfolk, 434 F.2d 408 (4th

said Pa paa cannes, a =

App. 5 ©

Cir. 1970). On remand the school board submitted a plan

with results similar to those rejected by the court of appeals.

. The district court accepted the plan with certain modifica-

tions. Bedkett v: School Bd. of City of Norfolk, Civ. Action

_ No, 2214 (E.D. Va. August 14, 1970). All parties except the

United States appealed from the district court’s decision.

The court of appeals delayed its consideration of the case

pending this Court’s decision in Swann v. Charlotte-M eck-

lenburg Board of Education, 401 U.S. 1 (197.1) and com-

panion cases.

Bx June 10, 1971, sub nom. Adams v. School District No.

444 F.2d 99-/ (4th Cir. 1971), the court of appeals re-

asiniie to the district court with instructions to receive from

the school board a new plan which would give effect to this ©

Court’s decisions in Swann, supra, and Davis v. Board of

School. Commissioners of Mobile County, 401 U.S. 333

(1971).

On remand the school board’s proposed new plan. was

approved, as modified, by order of July 28, 1971. On Au-

gust 25, 1971, in an order indefinitely staying its order of

July 28, 1971, the district court ‘allowed the school system

to-commence the 1971-72 school year under the 1970-71

plan on the ground. that Executive Order No. 11615 (the

“price freeze” order) “impeded” ‘the undertaking of the

‘Virginia Trarisit Company to transport children to school.

On September 2, 1971, the court of appeals vacated the -

_ stay on the ground that “the School’ Board cannot avoid

its constitutional duty to desegregate the schools by plead-

ing that the bus company might lose money because of the

price freeze.”

* On March 7, 1972 the Court of Appeals decided the

appeals of the black plaintiffs and the white intervenors

and held that the district court had properly approved the

App. 6

‘plan. The Court also held that the Board was required to

provide free transportation to pupils who live beyond normal

walking distance of their assigned schools and that the board

must pay fees to the plaintiffs’ attorneys for their service in -

securing free transportation for the students. Brewer v., The

School Board of the City of Norfolk, ...... F.2d ...... (4th Cir.

No. 71-1900, March 7, 1972)...

he pa App. 7

In The

_ United States Court of Appeals

for the Fifth Circuit

"No. 71-2773

United States of America,

: Plaintiff,

Greenwood Municipal Separate School District, et al.,

Defendants.

Lilly Russell, et al., ;

versus )

Greenwood Municipal Separate School District, et al..

. Defendants-Appelices.

Appeal from the United States District Court for the

Northern District of Mississippi

‘(April 11, 1972)

. App. 8

Before Wisdom, Coleman and Simpson, Circuit Judges.

Per Curiam: Once more we are called upon-to deal with

the desegregation problems of the Greenwood Municipal

Separate School District.’ Pursuant to our remand of June

29. 1971, 445 F.2d 388, 389, for the entry of an order _re-

quiring the implementation of a plan complying with former

decisions of this Court and with the principles established in

Swann v. Charlotte-Mecklenburg Board of Education, 1971,

402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d_554, the district court

ordered the school district to provide free bus transportation

to students who clect, on an individual basis, to change |

schools under the maj: wity-to-minority transfer provision®

of the District's court ordered desegregation plan, With re-

spect to elementary students who, in accordance with the

desegregation plan. were placed in noncontiguous school

zones and required to attend school outside their neighbor-

hoods. the lower court declined to require the school district

to provide free transportation. The plaintiffs have appealed

from the district court's refusal to order free bus transporta-

tion for the latter class of students.”

* In chronological order we have dealt with this District's

in the following cases: United States v. Greenwood Municipal Sepa-

sate School District, > Cir, 1969, 406 F.2d 1086, cert. denied 1969,

395 US. 907, 89 S.Ct 1799, 23 L.Ed 2d 220; United States v.

: Greenwood Municipal Separate School District, 5 Cir. 1970, 422 F.2d

1250- Ruciell ¥. Greenwood Municipal Separate School District, 5 Cir...

June 29, 1971, 443 F.2d 388; United States v. Greenwood Municipal

Separate School District, 5 Cir., July 2, 1971, 444 F.2d 544, vacated

as moot by on banc Court, . F.2d . (January 12, 1972). The

desegregation suit was originally instituted by the United States in July,

1966. -*

2 This provision entitles a student to transfer from a school in which

his or her race is in the majority to a facility in which his or her race

is in the minority.

® The United States as a party to this case did not initiate the motion

invalvel in this appeal, but ed parskinens 9 Oe Oe

——

App. 9

On this appeal, the Negro plaintiffs contend that the fail-

ure of the district court to order free transportation for those

elementary students placed in noncontiguous znes will re-

quire black students transferred to the previgusly all-white

Bankston School to walk two miles each Avay, across the

main lines of the Illinois Central Railroad, through the cen-

tral business district, across the Yazoo River, and along a

main thoroughfare for one-half mile. The school district re-

sponds by arguing that the prov! ision of free transportation

is merely a matter of convenience for the black elementary

students involved, that these black-students have no con-

stitutional claim to free transportation, that the school dis-

trict has never furnished transportation to students who re-

side within the corporate limits of Greenwood, and.that the

school district is without funds to provide the requested

transportation. The lower court, in addition to giving rea-

sons for its decision essentially similar to those advanced by

the school district on this appeal, observed that this court

has previously required the provision of free transportation

to students who elected to change schools under a majority-

to-minority transfer plan but that we have never heretofore

directed a school district to provide free transportation for

children placed in noncontiguous zones who go to schools

outside their neighborhoods.

In Swann v. Charlotte-Mecklenburg Board of Education,

supra, the Supreme Court explicitly held that a school dis-

trict-which elects to utilize a majority-to-minority transfer

plan as a desegregation tool must provide free transportation .

to each student making a transfer under the plan. 402 U.S.

at 26, 27, 91 S.Ct. at 1281, 28 L.E.d.2d at 572, 573. In dis-

cussing the pairing and noncontiguous. zoning techniques

ordered by the trial court in Swann, the Supreme Court ap-

proved the trial court's direction to the educational authori-

i 10

ties that bus transportation be used to implement these

techniques:

“In these circumstances, we find no basis for holding

that. the local school authorities may not be required to

employ bus transportation as one tool of school desegre-

gation. Desegregation plans cannot be limited to the

walk-in school.” 402 U.S. at 30, 91 S.Ct. at 1283, 28

L.Ed.2d at 575.

The. plaintiffs and the Unitee States are not in agreement

as to the appropriate disposition of this case. The plaintiffs

urge us to direct the district court to order the school district

to provide free bus transportation to the elementary students:

placed in, noncontiguous attendance zones. The United

States asks us to remand the cause to the district court with

instructions “to permit the parties to present evidence as to

the transportation needs of students and the ability of the

school district to meet those needs, and to make full findings é

of fact or opinion and findings.”

We have again reviewed the extensive record in this pro-

ceeding and conclude that it is unnecessary to remand the

cause to the district court for the hearing and findings sug-

gested by the United States. It is implicit in the decisions of

the Supreme Court and of this court that it is the responsi-

bility of school officials to take whatever remedial steps are

necessary to disestablish the dual school system, including

the provision of free bus transportation to students required

to attend schools outside their neighborhoods. The black ¢le-

mentary students who were refused free transportation by

the district court’s order are victims of the remnants of the _

dual system of schools which existed for so long under the .

requirements of Mississippi constitutional and statutory pro-

visions. No legitimate reason is put forth for forcing them

App. il

and their parents to shoulder the burden of eliminating

these vestiges of segregated schools in the circumstances |

present here. ;

The judgment of the district court, insofar’as it refused

free transportation to elementary students zoned noncon-

tiguously to attend school outside their neighborhoods, is

reversed and the cause is remanded with directions that the

' district court without delay require the schoal district to

provide such transportation to the affected elementary

students. |

Let our mandate issue at once.

Reversed and Remanded with directions.

Coleman, Circuit Judge, dissents.

)