# Appendix — Bradley v. School Bd. of Richmond > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0281%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 416 U.S. 696 ## Text In THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1973 No. 72-1322 CAROLYN BRADLEY, et al., Petitioners, THE SCHOOL BOARD OF THE CITY OF RICHMOND, et al. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITION FOR CERTIORARI FILED MARCH 29, 1971 CERTIORARI GRANTED JUNE 11, 1973 IO CAS Pe PO ee OO ae re - {ee ME TE EERO LOE OE AEE Te TT aI OT, ee IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1973 No. 72-1322 CAROLYN BRADLEY, et al., Petitioners, —_—vV.—— THE SCHOOL BOARD OF THE CITY OF RICHMOND, et al. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT A INDEX PAGE Chronological List of Docket Entries ................--.--.------ la Amended Complaint, filed January 4, 1962 .................. 4a Answer of School Board, filed June 21, 1962 ................ l4a Excerpts from Transcript of Proceedings of March DO, TG ise bncsiccsecenscacsnsnucieinsyseesicarsnensnmnncaravapeoneencusdenctsense 17a Resolution of the School Board of the City of Rich- mond, filed March 30, 1966 ..................-.---seeeeeeeeeeeteeeees 19a Desegregation Plan for the Richmond Public School System, filed March 30, 1966 ................-------------- . 20a a PAGE Order, filed March 30, 1966 . 24a Motion for further Relief, filed March 10, 1970 .......... 25a Order, filed March 12, 1970 27a Statement of Defendant Richmond School Board, filed March 19, 1970 .. 28a Excerpts from Transcript of Proceedings of March 31, 1970 ..... 29a Transmittal letter for Desegregation Plan from HEW, dated May 4, 1970 36a Excerpts from Transcript of Proceedings of June 19, 1970 37a Excerpts from Transcript of Proceedings of June 20, 1970 oe. 54a Excerpts from Transcript of Proceedings of June 25, 1970 .... 55a Excerpts from Transcript of Proceedings of June 26, 1970 .............- d7a Motion for Attorney’s Fees, etc., filed July 2, 1970 .... 66a Disfrict Court’s Letter to Counsel, dated July 6, 1970 69a Submission of Interim Plan by Richmond School Board, filed July 23, 1970 2222... eeeeeeeeee eee 74a Excerpts from Transcript of Proceedings of August ( Pe | / (| eee 79a lil PAGE Letter of School Board to District Court, filed No- vember 16, 1970 .............. ee Serene er 86a Excerpts from Transcript of Proceedings of Novem- ber 15, 1970 2... ¢ 92a Letter of Counsel for Plaintiffs, dated January 6, 1971 94a Submission of Desegregation Plans for 1971-72, filed Janvary 19, F904 cece einen 96a Excerpts from Transcript of Proceedings of Febru- O¥y 16. 19Te a spstan posers ese ssosensnene 100a Excerpts from Transcript of Proceedings of March 4, 1971 eee Letter of Counsel for the School Board, dated March j Pea Ly & (ener anaes en sree es eer err anny ete ere 102a Excerpts from Transcript of Proceedings of April 16, BOT) epee 1908 coco Excerpts from Transcript of Proceedings of May 17, DT ieee acetates eee es 112a. = SS Memorandum Opinion of District Court, filed May 26, TOT eoigeeee ees iv PAGE Excerpts from Transcript of Proceedings of June 21, | Lf eee 149a Order and Memorandum, filed June 22, 1971 .............. 15la School Board Motion to Amend Pleadings, filed August 26, 1971 ........ po pects eee tbeenn cv eayee cone anspeaeeeees 154a Opinion of the United States Court of Appeals, filed November 29, 1972 160a Chronological List of Relevant Docket Entries - September 5, 1961 March 30, 1966 March 10, 1970 March 12, 1970 March 19, 1970 March 31, 1970 April 1, 1970 May 11, 1970 June 19-20, 1970 June 25-26, 1970 June 26, 1970 July 2, 1970 July 23, 1970 Complaint filed. School Board’s desegregation plan and Order approving plan filed. Motion for Further Relief filed by Plaintiffs. Order that School Board advise the Court within ten days if public schools being operated in accordance with con- stitutional requirements. Statement of School Board filed. Hearing. _ Order that Plaintiffs’ Motion for Fur- ther Relief be granted; order of 3-30- 66 is thereby vacated; School Board to file before 5-11-70 a plan for unitary system. Report and Motion of School Board filed by its attorneys. Hearing. Hearing. Order disapproving plan of School Board; Board to submit plan and hearing set for August 7, 1970. Motion of Plaintiffs for attorneys’ fees, etc. School Board Interim Plan filed. ° 2a Chronological List of Relevant Docket Entries July 23, 1970 August 7, 1970 August 7, 1970 August 17, 1970 November 18, 1970 December 5, 1970 December 9, 1970 January 15, 1971 January 29, 1971 February 5, 1971 Motion for leave to file third party complaint against School Board of Chesterfield County and School Board of Henrico County filed by City of Richmond. Motion by School Board to file third party complaint against School Boards of Chesterfield and Henrico Counties. Hearing. Memorandum of the Court filed; Or- der that School Board’s plan filed 7-23-70 be approved for term com- mencing 8-31-70; Counsel for Plain- tiffs and School Board to confer as to payment of counsel fees and costs and report to Court within 45 days. Hearing. Order directing joinder of parties needed for just adjudication. Plaintiffs’ motion for implementation of Plaintiffs’ plan for second semester filed. School Board plans for desegregation filed. Memorandum and Order denying Plaintiffs’ motion for implementation of Plaintiffs’ plan. Notice of Appeal from Order of Janu- ary 29, 1971 filed by Plaintiffs. 3a Chronological List of ‘Relevant Docket Entries March 4, 1971 April 5, 1971 April 16, 1971 April 23, 1971 May 17, 1971 May 26, 1971 June 17, 1971 June 18, 1971 June 21, 1971 June 22, 1971 Hearing. Memorandum and Order of Court ap- proving School Board Plan III. Hearing. Hearing. Hearing. Memorandum and Order filed direct- ing School Board to pay to Plain- tiffs’ counsel $56,419.65 from 3-10-70 through 1-29-71. Motion for contempt filed by Plain- tiffs. Notice of Appeal from May 26 Order filed by School Board. Hearing; Motion for contempt denied. Order and Memorandum filed direct- ing payment of counsel fees and deny- ing Board’s motion for stay. (Filed January 4, 1962) I 1. (a) Jurisdiction of this Court is invoked under Title 28, United States Code, Section 1331. This action arises under Article 1, Section 8, and the Fourteenth Amendment of the Constitution of the United States, Section 1, and under the Act of Congress, Revised Statutes, Section 1977, derived from the Act of May 31, 1870, Chapter 114, Section 16, 16 Stat. 144 (Title 42, United States Code, Section 1981), as hereafter more fully appears. The matter in controversy, exclusive of interest and cost, exceeds the sum of Ten-Thousand Dollars ($10,000.00). _ (b) Jurisdiction is further invoked under Title 28, United States Code, Section 1343. This action is author- ized by the Act of Congress, revised Statutes, Section 1979, derived from the Act of April 20, 1871, Chapter 22, Section 1, 17 Stat. 13 (Title 42, United States Code, Section 1983), to be commenced by any citizen of the United States or other person within the jurisdiction thereof to redress the deprivation under color of state law, statute, ordinance, regulation, custom or usage of rights, privileges and im- munities secured by the Fourteenth Amendment to the Constitution of the United States and by the Act of Con- gress, Revised Statutes, Section 1977, derived from the Act of May 31, 1870, Chapter 114, Section 16, 16 Stat. 144 (Title 42, United States Code, Section 1981), providing for the equal rights of citizens and of all persons within the jurisdiction of the United States as hereafter more fully appears. II 2. Infant plaintiffs are Negroes, are citizens of the United States and of the Commonwealth of Virginia, and are residents of and domiciled in the political subdivision of Virginia for which the defendant school board main- 5a Amended Complaint tains and operates public schools. Said infants are within the age limits of eligibility to attend, and possess all quali- fications and satisfy all requirements for admission to, said public schools. 3. Adult plaintiffs are Negroes, are citizens of the United States and of the Commonwealth of Virginia, and are residents of and domiciled in said political subdivision. They are parents or guardians or persons standing tm loco parentis of one or more of the infant plaintiffs. 4. Plaintiffs bring this action in their own behalf and, there being common questions of law and fact affecting the rights of all other Negro children attending public schools in the Commonwealth of Virginia and, particularly, in said political subdivision, and the parents and guardians of such children, similarly situated and affected with refer- ence to the matters here involved, who are so numerous as to make it impracticable to bring all before the court, and a common relief being sought, as will hereinafter more fully appear, the plaintiffs also bring this action, pursuant to Rule 23(a) of the Federal Rule of Civil Procedure, as a class action on behalf of all other Negro children attending public schools in the Commonwealth of Virginia and, particularly, in said political subdivision, and the parents and guardians of such children, similarly situated and affected with reference to the matters here involved. Til 5. The Commonwealth of Virginia has declared public education a state function. The Constitution of Virginia, Article IX, Section 129, provides: ‘‘Free schools to be maintained. The General As- sembly shall establish and maintain an efficient sys- tem of public free schools throughout the State.”’ Pursuant to this mandate, the General Assembly of Vir- ginia has established a system of public free schools in 6a Amended Complaint the Commonwealth of Virginia according to a plan set out in Title 22, Chapters 1 to 15, inclusive, of the Code of Vir- ginia, 1950. The establishment, maintenance and admin- istration of the public school system of Virginia is vested in a State Board of Education, a Superintendent of Public Instruction, Division Superintendents of Schools, and County, City and Town School Boards (Constitution of Virginia, Article IX, Sections 130-133; Code of Virginia, 1950, Title 22, Chapter 1, Section 22-2). IV 6. The defendant school board, the corporate name of which is stated in the caption, exists pursuant to the Con- stitution and laws of the Commonwealth of Virginia as an administrative department of the Commonwealth, dis- charging governmental functions, and is declared by law to be a body corporate. Said school board is empowered and required to establish, maintain, control and supervise an efficient system of public free schools in said political sub- division, to provide suitable and proper school buildings, furniture and equipment, and to maintain, manage and control the same, to determine the studies to be pursued and the methods of teaching, to make local regulations for the conduct of the schools and for the proper discipline of the students, to employ teachers, to provide for the trans- portation of pupils, to enforce the school laws, and to per- form numerous other duties, activities and functions es- sential to the establishment, maintenance and operation of the public free schools in said political subdivision. (Constitution of Virginia, Article IX, Section 133; Code of Virginia, 1950, as amended, Title 22.) 7. The defendant division superintendent of schools, whose name as such officer is stated in the caption, holds office pursuant to the Constitution and laws of the Common- wealth of Virginia as an administrative officer of the public free school system of Virginia. (Constitution of Virginia, Article IX, Section 133; Code of Virginia, 1950, as amended, 7a Amended Complaint Title 22.) He is under the authority, supervision and con- trol of, and acts pursuant to the orders, policies, practices, customs and usages of the defendant school board. He is made a defendant herein in his official capacity. 8. A Virginia statute, first enacted as Chapter 70 of the Acts of the 1956 Extra Session of the General Assembly, viz, Article 1.1 of Chapter 12 of Title 22 (Sections 22-231.1 through 22-232.17) of the Code of Virginia, 1950, as amended, confers or purports to confer upon the Pupil Placement Board all powers of enrollment or placement of pupils in the public schools in Virginia and to charge said Pupil Placement Board to perform numerous duties, activities and functions pertaining to the enrollment or placement of pupils in, and the determination of school attendance district for, such public schools, except in those counties, cities or towns which elect to be bound by the provisions of Article 1.2 of Chapter 12 of Title 22 (Sec- tions 22-232.18 through 22-232.31) of thé Code of Virginia, 1950, as amended. (Section 22-232.30 of the Code of Vir- ginia, 1950, as amended.) The names of the individual members of the Pupil Placement Board are stated in the caption. V 9. Notwithstanding the holding and admonitions in Brown v. Board of Education, 347 U.S. 483, and 349 U.S. 294, the pre-existing pattern of racial segregation in the public schools maintained and operated by the defendant school board continues unaffected except in the few in- stances, if any there are, in which individual Negroes have sought and obtained admission to schools other than those attended exclusively by Negroes. The defendants have not devoted efforts toward initiating nonsegregation and bringing about the elimination of racial discrimination in the public school system, neither have they made a reason- able start to effectuate a transition to a racially non-dis- criminatory school system, as under paramount law it is ee 8a Amended Complaint their duty to do. Deliberately and purposefully, and solely because of race, the defendants continue to require all or virtually all Negro public school children to attend school where none but Negroes are enrolled and to require all white public school children to attend school where no Negroes, or at best few Negroes, are enrolled. 10. As matters of routine, every white child entering school for the first time is initially assigned to and placed in a school which predominantly, if not exclusively, is at- tended by white children; or if otherwise assigned, then, upon request of the parents or guardians, such child is transferred to a school which, being attended exclusively or predominantly by white children, is considered as a school for white children. Upon graduation from ele- mentary school, every white child is routinely-assigned to a high school or junior high school which is predominantly, if not exclusively, attended by white children. Similarly, and with few if any exceptions, Negro children entering school for the first time are initially assigned to a school which none but Negroes attend upon their graduation from elementary school they are routinely assigned to a high school or to a junior high school which none but Negroes attend. 11. To avoid the racially discriminatory result of the practice described in the paragraph next preceding, the Negro child, or his parent or guardian for him, is required to make application fer transfer from the school which none but Negroes attend to a school specifically named. In acting upon such application for transfer from the all- Negro school, the defendants take into consideration cer- tain criteria which defendants do not consider when making initial enrollments or placements in any school other than the initial placement or enrollment of a Negro child in a school which white children attend. If such criteria are not met, the application for transfer is denied. For ex- ample, if the home of the applicant is closer to the school to which he has been assigned than to the school to which 9a Amended Complaint transfer is sought, the application is denied notwithstand- ing the fact that the latter school is attended by white children similarly situated with respect to residence. For further example, if intelligence, achievement or other standardized test scores or other academic records of the applicant do not compare favorably with the best or the better of similar scores or records of children attending or assigned to the school which the applicant seeks to at- tend, the application is denied notwithstanding the fact that many white children attending said school have lower scores or lower academic records than the applicant has. VI 12. Timely application was made to the defendants for the admission of each infant plaintiff to a public school in said political subdivision heretofore and now attended ex- clusively or predominantly by white persons. The refusal of such application was made known to the parent, guard- ian, of each infant plaintiff by letter from the Pupil Place- ment Board indicating the placement of the child in a cer- tain school, which school is one attended exclusively by Negroes. In the case of each infant plaintiff, a written protest of such placement was made to the Pupil Place- ment Board within the time prescribed by statute; where- upon the Pupil Placement Board scheduled a hearing upon said protest. In the case of each infant plaintiff, but only to the extent that such details can now be stated with cer- tainty, the attached ‘‘Schedule ‘A’ ’’ sets out: (1) the name of the infant plaintiff, (2) the school assignment to which is sought, (3) the date of the letter from the Pupil Place- ment Board and the name of the all-Negro school in which the infant plaintiff was placed, (4) the reason assigned for denial of the application, and (5) the date and place of the hearing on the protest of the placement. Notwithstanding the said protest and hearing thereon, the Pupil Placement Board confirmed its placement previously made in the case of each of the infant plaintiffs. 10a Amended Complaint 13. But for the deliberate purpose of the defendants to avoid performance of their duty as hereinabove mentioned in paragraph 9 hereof, plaintiffs would have had no need to apply for attendance at certain schools. But for the fact that the defendants intended to maintain the racially segregated pattern of public schools through the routine practices described in paragraph 10 hereof, the applications made on behalf of the infant plaintiffs would have been granted. Solely by reason of the practices, customs, usages and calculated result thereof as mentioned and complained of in paragraph 11 hereof, the placement of each infant plaintiff in an all-Negro school was confirmed, even after protest. Unless and until the defendants, as a result of injunction or otherwise, will cease and desist from the practice and usage mentioned in paragraph 11, appli- cations and protests will be vain and futile when made on behalf of any Negro child situated as the infant plaintiffs are with regard to residence or with regard to intelligence, achievement or other standardized test scores or other academic records. VII 14. The refusal of the defendants to grant the requested assignments, viewed in the light of the refusal of the de- fendants to bring about the elimination of racial discrimina- tion in the public school system and to make a reasonable start to effectuate a transition to a racially non-discrimina- tory system, constitutes a deprivation of the liberty of the infant plaintiffs as well as all other Negro public school children within said political subdivision and a denial of their right to the equal protection of the laws secured by the Fourteenth Amendment to the Constitution of the United States, and a denial of rights secured by Title 42, United States Code, Section 1981. 15. Plaintiffs and those similarly situated and affected are suffering irreparable injury and are threatened with irreparable injury in the future by reason of the policy, At tna hein oN lla Amended Complaint practice, custom and usage and the actions of the defend- ants herein complained of. They have no plain, adequate or complete remedy to redress the wrongs and illegal acts herein complained of other than this complaint for an in- junction. Any other remedy to which plaintiffs and those similarly situated could be remitted would be attended by such uncertainties and delays as would deny substantial relief, would involve a multiplicity of suits, and would cause further irreparable injury and occasion damage, vexation and inconvenience. vill WHEREFORE, plaintiffs respectfully pray: (A) That this Court enter an interlocutory and a perma- nent injunction restraining and enjoining defendants, and each of them, their successors in office, and their agents and employees, forthwith, from denying infant plaintiffs, or either of them, solely on account of race or color, the right to be enrolled in, to attend and to be educated in, the public schools to which they, respectively, have sought admission ; (B) That this Court enter a permanent injunction re- straining and enjoining defendants, and each of them, their successors in office, and their agents and employees from any and all action that regulates or affects, on the basis of race or color, the initial assignment, the placement, the transfer, the admission, the enrollment or the education of any child to and in any public school ; (C) That, specifically the defendants and each of them, their successors in office, and their agents and employees be permanently enjoined and restrained from denying the application of any Negro child for assignment in or trans- fer to any public school attended by white children when such denial is based solely upon requirements or criteria which do not operate to exclude white children from said school ; 12a Amended Complaint (D) That the defendants be required to submit to the Court a plan to achieve a system of determining initial as- signments, placements or enrollments of children to and in the public schools on a non-racial basis and be required to make periodical reports to the Court of their progress in effectuating a transition to a racially non-discriminatory school system; and that during the period of such transi- tion the Court retain jurisdiction of this case ; (E) That defendants pay to plaintiffs the costs of this action and attorney’s fees in such amount as to the Court may appear reasonable and proper; and (F) That plaintiffs have such other and further relief as is just. BulsitA ‘puowmyory su0lzBo seaBipy ulurefueg 13a Amended Complaint I9G6I ‘SI 3NBNyY -gI[VNb o1uepeoe JO You] 196 ‘st 4In¢ Q3IH ‘If seppusyD = “Af “YSIQuE MA [onWe’T BIUIZI1A ‘puowyory su01z8o soaBip urwelueg mf I96L ‘8 3nINny -PITeNb ormepwoe Jo Fou] t96r ‘4in¢ UStH “If se[pasyD ‘sefrend svqung wei BIUIZIIA ‘puomyoIy 8U01z¥d soavify UIWelueg LOGI ‘ST 3nINY -yi[enb opwsapBoe Jo Youy] T96L ‘8T Aimer YW3tH “2f Je[paeyD WO1SMIBD “VY BBC BIULSIIA ‘puowWYyoIy su0l}Bo seatipy urmelueg LOGI ‘ST WnBNY -gILeNb o1wepBse Jo You] t96r ‘Aine YS ‘1f Ja[pusyD siohoy “§ 10q0y BIUlSIIA ‘puoWYyoIy SU0lzBd seavip uiwelusg uosuyor LOGI ‘81 3snINy -gI[enb o1wapvss Jo Houy T96L ‘8T Aine q3tH “4f 4e[puBYyD eyeulozuy sI[[A4Yd Bud, ‘puowWyoy suolzBo seaBigy UWelueg if L96I ‘ST WNINY -grlenb owapsos JO Fou] T96I ‘gt 41n¢ Y3IH ‘If sejpusyQ ‘uosuyor pivapy uyor Bias, ‘puoMYyoIYy sU0IzBo saaBin ulwelueg I96I ‘ST 3nBny -gITeNb ormapvse Jo Yow] T96L ‘st 410¢ Y3tH ‘If Je[puBYyD wosuyor *M song BraIZat A ‘puoMYary YstH 109[eM eLssU TOGI ‘ST nsny =—« [OOYs WoIZ BoTBASTC, T96L ‘st 41"¢ y3rH [reysseyy uyor WosyIVe “N WeSI0}_ eluIsIA ‘puomyory SU0I}Bd saaBiny ulwelusg IOGT ‘ST 3nsNyY -grTeNb ormepeoe Jo your] T96L ‘gt 4[n¢ Y3tH ‘If Je[puByD wosqod pullEsoy su0I}zBo soaBin uiwelueg -pirenb ormapeoe jo Wow] T96I ‘8T 41m¢ y3tH “If JeTpuByD Aotpesg [oeyoy BIUIZIIA ‘puowmyoy su0!zBo seabin ulwelueg LOGI ‘ST WnBny -gifenb ormepeoe Jo Fou] 196T ‘LT Aime ys ‘If Je[puByD foipeig usjoreD 389,01g U0 butsva powueq hqosoyl apo quawudsesy passsoq Ssupnig suvfuy {O 201g puv a30q 40g paubsyssp uosvay quawe2001/g pun pivog quowoonid nang wos 493397 {0 910q ¢ 2 € id T SLNVGNAAAG “IV La “VA ‘ANOWHOIY JO ALIO HHL AO aquvod TOOHOS AHL LNIVIAMNOO OL « V», TINGHHOS I he ree Sah i a’ Sin. « 14a Answer of School Board (Filed June 21, 1962) Answer of the School Board of the City of Richmond and H. I. Willett, Division Superintendent of Schools of the City of Richmond For their joint and several answers in this case the defendants, The School Board of the City of Richmond and H. I. Willett, Division Superintendent of Schools of the City of Richmond, answer and say: 1. These defendants do not deny the jurisdiction stated in paragraph 1 of the amended bill of complaint, but they deny that any action of theirs, or either of them, has de- prived the plaintiffs, or any of them, under color of state law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or any amendment thereto, or any act of Congress, as alleged in paragraph 1 of the amended bill of complaint. 2. These defendants deny the allegations of paragraphs 2,3 and 4 of the amended bill of complaint. 3. These defendants admit the allegations of paragraph 5 of the amended bill of complaint. 4. These defendants admit the allegations of paragraph 6 of the amended bill of complaint, except that they say that while The School Board of the City of Richmond is em- powered to provide school buildings, title to such property in the City of Richmond is vested in the City of Richmond as provided for by § 22-94 of the Code of Virginia, and only such school buildings are provided, maintained and oper- ated in the City of Richmond as are authorized by the City Council to be provided, maintained and operated, and at such places as are designated and within the limitations of funds provided by the Council for the purpose in the exercise of its discretion; and except that the performance of the other function alleged in paragraph 6 are subject to appropriation of funds for such purposes by the City Coun- cil in the exercise of its discretion. OES NL LE LET SOME LOONIE TIN INN IN STSCI ASR 15a Answer of School Board 5. These defendants admit the allegations of paragraph 7 of the amended bill of complaint, except that they say that the defendant, H. I. Willett, as Division Superintendent of Schools is under the authority, supervision and control, and acts pursuant to, the orders, policies, practices, customs and usages of the defendant, The School Board of the City of Richmond, only to the extent that there is no conflict with the provisions of §4 22-36 and 22-97 and with §§ 22-232.1 through 22-232.17 of the Code of Virginia, as amended by chapter 500 of the Acts of Assembly of 1958, known as the Pupil Placement Act, or with any other statute of the Commonwealth of Virginia. 6. These defendants admit the allegations of paragraph 8 of the amended bill of complaint, except that they say: (a) that § 22-232.1 of the Code of Virginia, which is a part of the Pupil Placement Act, has divested these defendants of all power and authority ‘‘now or at any future time’’ to determine the school to which the plaintiffs and any other child shall be admitted; (2) that article 1.2 of Chapter 12 of Title 22 (§§ 22-232.18 through 22-232.31) of the Code of Virginia is not applicable or operative in the City of Rich- mond because the defendant, The School Board of the City of Richmond, has not recommended to the Council or gov- erning body of the City of Richmond that the provisions of article 1.2 of chapter 12 of Title 22 of the Code of Virginia be made applicable or operative in the City of Richmond, nor has the Council or governing body taken any action with respect thereto; (c) that it is within the uncontrolled discretion of the defendant, The School Board of the City of Richmond, and the Council or governing body of the City of Richmond whether the provisions of article 1.2 of chapter 12 of Title 22 of the Code of Virginia shall be applicable or operative in the City of Richmond; and (d) i that these defendants are wholly without power to admit i the plaintiffs and any other child to a public school in the ‘ City of Richmond, except in the sense that they may per- \ 16a Answer of School Board form purely ministerialiacts when clearly authorized by law so to do. 7. These defendants deny all of the allegations of para- graphs 9 through 15 of the amended bill of complaint; and say: (a) that these defendants have been divested of all power and authority ‘‘now or at any future time’’ to deter- mine the school to which the plaintiffs and any other child shall be admitted; (b) that these defendants are wholly without power to admit the plaintiffs and any other child to a public school in the City of Richmond, except in the sense that they may. perform purely ministerial acts when clearly authorized by law so to do; and (c) that these de- fendants have done no act that has deprived the plaintiffs, or any of them, or any other child under color of state law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or any amendment, thereto, or any act of Congress. FurrHer ANSWER Further answering, these defendants jointly and sever- ally say the purpose of the bill of complaint is to obtain the entry of an order which will enjoin and restrain the enforcement, operation and execution of the Pupil Place- ment Act, by restraining the action of officers of the State of Virginia in the enforcement and execution of the statute, and of an order or orders made by an administrative board or commission acting under such statute, upon the ground of the unconstitutionality of the statute. Under the pro- visions of Title 28 U.S.C.A., section 2281, such an injunc- tion cannot be granted by any district court or judge there- of unless the application therefor is heard and determined by a district court of three judges under Title 28, U.S.C.A., section 2284. 17a Excerpts from Transcript of Proceedings . of March 30, 1966 THe CierK: Civil Action 3353 Caroline Bradley and Michael Bradley, et al. v. The School Board of the City of Richmond, Virginia, et al. Henry L. Marsh, III represents the plaintiff and Mr. Henry T. Wickham represents the defendant. Counsel ready ? Mr. Marsu: Ready for the plaintiff. Mr. WICKHAM: Y¢s, sir. If Your Honor please, at this time I would like to file a resolution of the School Board, City of Richmond, that was adopted today, March 30th, attached to which is a desegre- gation plan for the Richmond Public School System. I might say that the plaintiffs and the defendants have agreed to this plan and accordingly would ask permission to file it now and present to the Court an order permitting that it be filed and approving the plan as filed. Tue Court: Is this the same as the draft that was furnished? Mr. WickHam: The same as I left with your secretary on Monday morning, I believe. Tue Court: Well, I have studied that. Mr. Marsh, do you wish to be heard on this? Mr. MarsH: May it please the Court, we participated in the negotiations with the school board and this plan repre- sents the agreement that was reached as a result of several weeks of negotiations and I think that the plaintiffs are satisfied with this plan and we would like for the Court to approve it. 18a Excerpts from Transcript of Proceedings of March 30, 1966 Tue Court: You join in the motion? Mr. Marsa: Yes, sir. Tue Court: Very well. Gentlemen, in Bradley v. The School Board 382 U.S. 103 (1965) this action was remanded to this court for hearings and proceedings consistent with the opinion of the Supreme Court. The Court set the case down for hearing. In the meanwhile the parties conferred and as a result of their conferences the school board has tendered to the Court a revised plan. The plaintiffs offered no objection to the plan and state that it meets with their approval. Accordingly, the parties being in agreement, the Court will approve the plan. * * . 19a Resolution of the School Board of the City of Richmond (Filed March 30, 1966) Be Ir Resotvep by The School Board of the City of Richmond : 1. That the Desecrecation Puan FoR THE RICHMOND Pusuic Scnoot System, dated March 30, 1966, a copy of which is attached hereto, is hereby approved and adopted. 2. That this Plan and a certified copy of this resolution be submitted to the United States District Court for the Eastern District of Virginia, Richmond Division. 3. That, subject to the approval of the Court, this Plan shall be in effect for the 1966-67 school year, and each school year thereafter until changed with the approval of the Court. Adopted: March 30, 1966 A True Copy, Teste: Clerk of The School Board of the City of Richmond, Virginia 20a Desegregation Plan for the Richmond Public School System (Filed March 30, 1966) PRoFESSIONAL PERSONNEL The School Board of the City of Richmond recognizes its responsibility to employ, assign, promote and discharge teachers and other professional personnel of the Richmond City Public School System without regard to race or color. It further recognizes its obligation to take all reasonable steps to eliminate existing racial segregation of faculty that has resulted from the past operation of a dual system based upon race or color. In the recruitment, selection and assignment of staff, the chief obligation is to provide the best possible education for ali children. The pattern of assignment of teachers and other professional staff among the various schools of the system will not be such that schools are identifiable as intended for students of a par- ticular race, color or national origin, or such that teachers or other professional staff of a particular race are con- centrated in those schools where all, or the majority, of the students are of that race. The program to be utilized in carrying out these responsi- bilities includes the following: 1. The best person will be sought for each position without regard to race, and Negroes will be sought for important positions in order to demonstrate that job oppor- tunities are available for those who meet the necessary requirements. 2. The School Board will seek to select personnel with- out regard to race, and will follow the policy of assigning hew personnel in a manner that will work toward the desegregation of faculties. This, of course, does not mean 2la Desegregation Plan for the Richmond Public School System intentionally selecting a person of less ability to accomplish desegregation, but rather it means working toward the goal of desegregation of faculties in all schools. 3. In the recruitment and employment of teachers and other professional personnel, all applicants and other pros- pective employees will be informed that the City of Rich- mond operates a racially integrated school system and that the teachers and other professional personnel are subject to assignment in the best interest of the school system and without regard to their race or color. 4. The School Board will take affirmative steps to solicit and encourage teachers presently employed to ac- cept transfers to schools in which the majority of the faculty members are of a race different from that of the teacher to be transferred. 5. In the process of faculty desegregation, consideration will be given to the assignment of “roving” and “special teachers”. 6. In filling faculty vacancies which occur prior to the opening of each school year, preferential consideration will be given to presently employed teachers of the race opposite the race that is in the majority in the faculty at the school where the vacancy exists. In making such trans- fers account will be taken of the criteria utilized in approv- ing transfers for other reasons. Pupits The Scheol Board of the city of Richmond recognizes its obligation to eliminate a dual school system in the assign- 22a Desegregation Plan for the Richmond Public School System ment of pupils. In the implementation of its present plan, the School Board recognizes that it has the responsibility to create and maintain an environment in which there is a freedom of choice based on positive information with- out restrictive pressures. The School Board further recog- nizes a responsibility to seek reasonable positive steps that are educationally sound to prevent and/or minimize the isolation of one ethnic group from contact with other groups. The program to be utilized in carrying out these responsi- bilities includes the following: 1. The School Board’s chief responsibility is to provide high quality education for all the children of Richmond. Sound educational goals include opportunities for white children and Negro children to associate on equal terms in the public schools as do children of various religions and national origins. 2. The pattern of assignment of teachers and other pro- fessional staff among the various schools will not be such that schools are identifiable as intended for students of a particular race, color, or national origin; or such that teachers or other professional staff of a particular race are concentrated in those schools where all or the majority of the students are of that race. 3. The School Board recognizes that any plan of deseg- regation must be evaluated in terms of results and the Board is taking positive steps to meet its responsibility. These steps include procedures such as the following: (a) Where schools in close proximity to each other have significant inequality in enrollment in relation- Pe Oe eS ee) Peet ae ee eh eT ie a te 23a Desegregation Plan for the Richmond Public School System ship to capacity, the School Board recognizes a respon- sibility to take positive steps to correct such inequities. (b) Pupils in all schools will be acquainted with oppor- tunities in other schools, particularly when pupils are finishing the last grade in one school and moving to another school. (c) City-wide centers are being planned that will serve pupils from all areas of the city, and student work- shops and city-wide institutes and seminars have been conducted and plans are being made for expansion on a city-wide or city area basis. 4. If the steps taken by the School Board do not produce significant results during the 1966-67 school year, it is recognized that the freedom of choice plan will have to be modified with consideration given to other procedures such as boundary lines in certain areas. ConsTRUCTION The program for construction of new schools or addi- tions to existing schools will not be designed to perpetuate, maintain, or support racial segregation. SpecraL ProGRAMS The same principles (where applicable) pertaining to pupils, professional staff, and construction for regular day schools shall also be applied to all special programs administered by the School Board such as programs of adult education, education of the handicapped children, and education of the economically and culturally disadvan- taged children. March 30, 1966 24a Order (Filed March 30, 1966) On motion of the defendants, and with the consent of the plaintiffs, by counsel, leave is granted the defendants to file their DEsEGREGATION PLAN FoR THE RICHMOND Pustic ScHoot System dated March 30, 1966 and a certified copy of the resolution approving and adopting the Plan, which resolution was adopted on March 30, 1966, and said Plan and copy of the résolution are filed. Upon consideration whereof, it is ADJUDGED, ORDERED and DECREED: 1. That the DESEGREGATION PLAN FOR THE RICHMOND Pustic ScHooLt System dated March 30, 1966, is ap- proved. 2. That the School Board shall put the Plan into effect for the 1966-67 school year. 3. That the Court retain jurisdiction of this action. /s/ Joun D. Burzner, Jr. United States District Judge March 30, 1966. 4 eae tke see eee iis iceliati adie Fie Bi cs icles bhin Bhalhcied ee 25a Motion for Further Relief (Filed March 10, 1970) Plaintiffs move that, in light of the opinions of the United States Supreme Court in Green v. County School Bd. of New Kent County, 391 U.S. 430 (1968), Alexander v. Holncs County Bd. of Educ., 396 U.S. 19 (1969) and Cartc. v. West Feliciana Parish School Bd., No. 944 (O.T. 1969, January 14, 1970), and also in the light of recent decisions of the United States Court of Appeals for the Fourth Circuit, the Court require the defendant school board forthwith to put into effect a method of assigning children to public schools and to take other appropriate steps which will promptly and realistically convert the public schools of the City of R: amond into a unitary non-racial system from which all vestiges of racial segregation will have been removed; and that the Court award a reasonable fee to their counsel to be assessed as costs. /s/ M. Ratru Pace | /s/ Roxatp D. EALEY (This page left blank intentionally) 27a Order (Filed March 12, 1970) It appearing to the Court that the plaintiffs have moved for further relief in this cause, and to the end that the Court may properly schedule its docket, and deeming it proper so to do, It is ORDERED that the defendants shall, within t: days from this date, advise the Court if it is their position that the public schools of the City of Richmond, Virginia are being operated in accordance with the constitutional require- ments to oy crate unitary schools as enunciated by the United States Supreme Court. It is further Ormi.keEp that in the event the defendants cannot properly assert that the operation of the public schools of the City of Richmond is in compliance as afore- said, then they shall advise the Court the amount of time they deem will be required to submit a plan for the oper::- tion of the public school system of the City of Richmond which they feel will bring them in compliance with the re- quirements of the Constitution. Let the Clerk send copies of this order to all counsel of record. /s/ Robert R. MERHIGE, JR. United States District Judge March 12, 1970. ~ 28a Statement of Defendant Richmond School Board (Filed March 19, 1970) The defendants aver and state as follows: 1. They have operated the school system and educational facilities of the City of Richmond to the best of their knowl- edge and belief in accordance with the decree of this Court entered on the 30th day of March, 1966. 2. The implementation of the said decree permits any child to attend any school located within the City so long as the said school provides instruction in the grade to which the child wishes to attend. 3. They have been advised that the public schools of the City of Richmond are not being operated as unitary schools in accofdance with the most recent enunciations of the Supreme Court of the United States. 4. They have requested the Department of Health, Educa- tion and Welfare to make a study and recommendation that will ensure the operation of the unitary school system in continuing compliance with the decisions of the United States Supreme Court. 5. The Department of Health, Education and Welfare has agreed to undertake the aforesaid study and recommen- dation involving the Richmond Public Schools and that its findings will be made available on or about May 1, 1970. 6. They will submit a plan for the operation of the public school system of the City of Richmond not later than May 11, 1970, which they feel will bring them in compliance with the requirements of the Constitution. THE SCHOOL BoarD oF THE City OF RICHMOND, VIRGINIA, et al. 29a Excerpts from Transcript of Proceedings of March 31, 1970 [3] The Clerk: Civil Action 3353, Carolyn Bradley, and Michael Bradley, et al., versus the School Board, City of Richmond. Mr. S. W. Tucker represents plaintiffs. Mr. Henry T. Wickham represents defendant. The Court: All right, gentlemen. Yes, Mr. Ely, how are you? Mr. Ely: May it please the Court, I would like to present to the Court Mr. Norman J. Chachkin, member of the Arkansas bar. He has not formally qualified to practice in this court, but he meets all of the qualifications for such, and at a later date those qualifications will be memoralized in writing. This is Mr. Chachkin. The Court: Delighted to have you with us, Mr. Chachkin. Mr. Chachkin: Delighted to make it, Your Honor. The Court: I asked you to appear here for a pre-trial conference for the very reasons stated, the order concern- ing the issue raised by plaintiffs’ motion and defendant’s statement filed March 19. And I want to set trial dates. I have got to get this docket straight. It is fairly obvious, [4] it seems to me without prejudging it now, and I want to treat this as a pre-trial conference, that any actions to be taken in reference to any further relief, if the plain- tiffs are entitled to any further relief, are by virtue of the Alexandria case and the cases and decisions of the Unite States Supreme Court and this Circuit in Halifax tha precludes any delay beyond the beginning of the next school term if any further relief is granted, which means that the School Board, if further relief is granted, ought to know as soon as possible where they are going. 30a Excerpts from Transcript of Proceedings of March 31, 1970 I would imagine it must be quite a task to make any rearrangements. Now, what I want to know, and I want to know it just as straight as a die, without any hesitation, and I direct myself to counsel for the School Board, is the City of Rich- mond today, the School Board, City of Richmond, today operating a unitary school system where there are neither black nor white schools, as required by law? And I don’t want any answer, please, that tells me they are advised one way or the other. I want to know whether there is any issue about it. If there is, they certainly have a right to make an issue of it, if they can honestly do so. I want to set it down for hearing. If there is no issue then I want to know why I can’t rule that the plaintiff is forthwith entitled to further [5] relief and enter a mandatory injunction against the defendants for operating a system contra to the law. Now, are they or aren’t they? Without “they are advised or they are not advised.” What is their position? That is all I want to know. I can’t be plainer than that. Mr. Wickham: It is the School Board’s position they are not operating a unitary system. The Court: Is it your position then that the plaintiffs under the law, without saying what relief, are entitled to further relief, Mr. Wickham? Mr. Wickham: That is correct. The Court: That saves the necessity of any hearing in reference to that, gentlemen. And there is no question. I would now like to diseuss the mechanics, and I think that is all it is, the mechanics as to whether or not the Court—well, the Court has now ruled that the plaintiffs are entitled to farther relief based upon the very frank representation of the defendants. Se RL OMe nL Fe Le ee et OT OMG T e ee Se ee Ee. Oe Freee ee eee Te I Ey ee ee ey PR CT ee 3la Excerpts from Transcript of Proceedings of March 31, 1970 Does that put us in a position where the Court ought to enter a mandatory injunction, as is usual in this case, directing that they forthwith file a plan? When I say forth- with, I mean such time as these gentlemen tell me they think they need on that. So we can go from there. Isn’t [6] that the appropriate step, the next step? Is there any objection to a mandatory injunction enjoining them to do what they are supposed to do? Doesn’t that really lay it on the line to them? Mr. Wickham: It is—we are already under an injunc- tion, Your Honor. The Court: Sir? Mr. Wickham: We are already under an injunction, Your Honor. The Court: By whom? Mr. Wickham: By this Court. The Court: In what regard? When was it entered? You mean to operate a freedom of choice? Mr. Wickham: No. The Court: You mean by the law? Mr. Wickham: That is correct, Your Honor. The Court: But you are not under any specific injunction so that the responsibility— Mr. Wickham: It was a general order entered enjoining the School Board from operating a dual system of schools or operating a segregated school system back in 1964. The Court: They have done that innocently, did it under the erroneous impression that freedom of choice was all right. [7] Well, it is all right if it works, but it doesn’t work. Well, that order is herewith vacated. Freedom of choice. Of course it is vacated. So there is no misunderstanding. I think for their protection I best enter a mandatory in- 32a Excerpts from Transcript of Proceedings of March 31, 1970 junction, as I do in the usual cases, enjoining them from operating schools in any method other than in a unitary school system wherein there are no black or white schools. You all have seen the usual order. Now, any objection to that order? Of course give them all the reasonable time, And then wait for you all to submit your plan. You tell me how long you think it will take, Mr. Wickham, So we can set a date down for a hearing on it should there be any exception. Hopefully there wouldn’t be. Let me just say this. I think we may get some help from court decisions in the next 30 days or so. But, you know, you can’t tell how long the Court of Appeals will take to decide some of these, Mr. Wickham: We would like a hearing, if necessary, some time during the week of May 18, if the Court could arrange it during that week. We would hope to file, as we said in our statement to the Court, our plan no later than May 11. [8] The Court: All right, sir. Well, that is fine. I have no trouble with that. The prob- ‘lem at that time, I realize it takes time, although you have had some time to be working. Mr. Chachkin: Your Honor, plaintiffs do have some difficulty in that regard. I think this is going to get to what the issues are likely to be when a plan is filed. Richmond School Board has announced, it has already | sought the help of HEW in drafting a plan. The Court: But this Court is not bound by whatever they draft. But I am delighted they are getting help from anybody. POI Ae ee ee ae is 33a Excerpts from Transcript of Proceedings of March 31, 1970 Mr. Wickham: I might say, we are not bound too, Your Honor. The Court: That’s right. Mr. Chachkin: No one is bound by HEW: We have particular difficulty in light of the President's statement in believing that the Department will undertake a thorough investigation of all possible remedies. If the Richmond plan is filed on May Ist I doubt that we could be ready in 18 days to— Mr. Wickham: 11. The Court: May 11. As a matter of fact it gets [9] worse. They don’t anticipate having it before May 11, Mr. Chachkin. Let me say this, We will have to set a time now, that is all. I want to make it as easy as I can on the defendants because I realize the fantastic job they have to do. On the other hand I realize it is a job they should have been at since the New Kent decision. I want to give the plaintiffs an opportunity to be heard. I don’t want to rush them with submitting their plan. What is done is done. What hasn’t been done hasn’t been done. Nothing is gained by rushing the defendants in the submission of their plan. Mr. Chachkin: I am suggesting a later plan, certainly not an earlier one, if that is possible in convenience to the Court. We anticipate that we will probably have to have some fairly detailed alternatives, perhaps we won't. I share the Court’s enthusiasm that if we don’t have to ob- ject in any way— The Court: How much time do you think, based on your experience with school systems of this size, how much time do you think you will need after the plan is submitted 34a Excerpts from Transcript of Proceedings of March 31, 1970 before you can file your exceptions? Never mind the hear- ing, now. _ Mr. Chachkin: Well, I would say three weeks to [10] a month. We are going to start working now. The Court: Let me say this. That is not unreasonable, but I am really going to expect that the plaintiffs chip in and work overtime, so to speak, in order to speed up the process, because the only one that gets hurt if we don’t do it right are the children. All right. I am going to order in this order, I will put it in the same order as the injunction, I am going to order that the plan be filed by, well, May 11 is a Monday, Mr. Wickham. Is that all right? Mr. Wickham: Yes, sir. The Court: Plan by May 11. That exceptions thereto be filed by June 8. And in the event there are exceptions, hearing will be had on June 19, subject to my getting the docket clear on that day. And if it is not on the 19th, it will be heard on Saturday the 20th. I would ask that the exceptions be reasonably detailed, Mr. Ely and Mr. Chachkin, for this reason. I think if you do, certainly those portions of the plan that you may not have any exceptions to, I think the defendants would be reasonable in going ahead and making their preparation on the theory it is going to be approved. This is still an ad- versary system, and while I recognize my responsibility, if you all agree on something it would shock me that I didn’t go along. {11} And if you are reasonably specific on your excep- tions it helps me as to the issues and it helps the defendants too because they may wish to file an amended plan. Some- times they can accept them. y+ re 35a Excerpts from Transcript of Proceedings of March 31, 1970 You may do that, incidentally, Mr. Wickham, after the exceptions are filed if you wish to file an amended one, quickly. Any other matters we ought to take up or discuss, gentle- men? Any other issues? Any complicated issues that may be besides the word everybody doesn’t want to talk. about? All right, let’s see what the plan is. Thank you very much. If the Court can be of any help I want to do it. (The hearing in the above-entitled matter was concluded at five o’clock.) I certify that the foregoing is a true and correct tran- script. /s/ Grupert Frank Hatasz Gilbert Frank Halasz Official Court Reporter 36a Transmittal Letter for Desegregation Plan from HEW to Superintendent L. D. Adams (Dated May 4, 1970) OFFICE OF EDUCATION May 4, 1970 Dr. Lucien D. Adams, Superintendent Richmond City Schools 312 North 9th Street Richmond, Virginia 23219 Dear Dr. Adams: The staff of the Division of Equal Educational Opportun- ities is pleased to submit to you a desegregation plan for the Richmond City Schools. The plan has been prepared in response to your expressed desire to achieve the goal of a unitary system of public schools and in accordance with our interpretation of action which will most soundly achieve this objective. We wish to express our appreciation for the excellent cooperation received from you and your staff. Sincerely yours, /s/ BE. H. Cooprr E. H. Cooper Program Officer Equal Educational Opportunities Title IV ; 4 : H 4 a 3 ; i Nir Str tan ih 37a Excerpts from Transcript of Proceedings of June 19, 1970 [36] e* 2 ¢e The Court: Dr. Little, do you recall any conversa- tion or any suggestion that perhaps the freedom of choice plan would have to be changed by virtue of the United States Supreme Court decision prior to the [37] acquisition of these sites? Did you hear anybody say anything about it or do you think that the assumption was you ought to go on under the plan that you had because you felt it was a valid plan? The Witness: Your Honor, we have discussed it. We had some serious problems with freedom of choice, freedom of choice plan. But in dealing with the Chesterfield County Schools, we did not feel that freedom of choice or attendance areas either would alter the basic place where youngsters would go to school. [39] ee? Q. (Mr. Lucas] All right. This is a black area. When was this school planned? A. [Dr. Little] When was— Q. Dove Street. When did you start planning this? A. We have been in one phase or the other of planning a school to take care of the overcrowded condition in this general area for about three years. [40] We have had site acquisition problems, changing and resegregation of the entire neighborhood. This project 38a Excerpts from Transcript of Proceedings of June 19, 1970 was—has been in concrete planning for about a year. Q. Dr. Little, in planning new construction, does the Board or did your staff, when you were in that part of it, affirmatively take into account the effect of locating a new school in terms of whether or not it would be segregated, would it actually integrate the school system, or did you just consider proximity and the concentration of pupils? A. I think I would have to say that we, that the School Board took into consideration both factors, but condition- ing it on, in the elementary level, on reasonable walking distances of boys and girls from the concentration of popu- lation. ; But what I am saying, I can recall the location of John Marshall High School, for example, on the extreme north- ern section of the city in anticipation of annexation that would tend in the long run to give us balances. Location of John F. Kennedy on the extreme, as a matter of fact, into Chesterfield, into Henrico [41] County in anticipation of annexation to give us a balance, knowing that the concentration of blacks were in the core of the city and the whites were in the suburban area. So, I think very definitely the School Board and the Administration has taken this into consideration, not just immediately but in many years past. The Court: But, Dr. Little, I don’t want to mis- interpret your statement. I want to be sure that I am correct. You say you felt the Board did consider the de- segregation problem conditioning it on reasonable walking distances of students. The Witness: Elementary students. 39a Excerpts from Transcript of Proceedings of June 19, 1970 The Court: Elementary students. The Witness: Elementary students. The Court: Are you saying that, so far as you know, that no consideration was given to clustering, clustering, pairing? The Witness: In the construction of new schools? The Court: In the planning for them in their location, and so forth? [42] The Witness: No, I don’t recall any instance where that has occurred. [50] e¢*?¢6¢ Redirect Examination by Mr. Wickham: Q. Dr. Little, in selection of the three sites for the ele- mentary schools in the annexed territory, was any consid- eration of race given in selection of those sites? A. No, sir. Q. How about the one on the North Side? A. No, sir. {78] ees Q. (Mr. Lucas] Mr. Sullins, have you testified for School Boards in support of their plans for desegregation in oppo- sition to the Plaintiff’s plan of desegregation? A. I have been called as an expert witness by School Boards too, I am certain, to support their plans. Q. Did you testify in support of the Norfolk percentage Negro plan in the proceedings last October? A. I did. Q. And you were called as a witness on behalf of the School Board in that case; is that correct? A. Yes. Q. Did you prepare plans of desegregation in Missis- sippit A. Yes. 40a Excerpts from Transcript of Proceedings of June 19, 1970 Q. What counties were they for? A. Hinds County, Madison County, and Canton Municipal Separate School District, I believe. Q. And did you prepare to testify in those cases as to whether or not those plans could be implemented? [79] A. Would you repeat that, please, sir? Would you repeat the question, please? -Q. Did you prepare to testify in those cases with respect to whether or not the plan of desegregation which you pre- pared or which your team prepared could be implemented in those districts?’ A. Yes. Q. Did you execute an affidavit as to whether or not certain plans of desegregation were educationally sound and whether or not they could be implemented in connec- tion with the Hinds County case which later became the Alexander case? A. Yes. Q. Did you execute an affidavit which indicated that that plan could be implemented and was educationally sound? A. Yes. Q. And did you subsequently execute a second affidavit indicating that you thought the plan should not be imple- mented and should be restudied after motions were filed by the United States in that case? A. I believe I executed only one affidavit and it was the latter situation. Q. You have already testified you executed one [80] that said the plans could be implemented before the policy deci- sion was made in H.E.W., and did you execute a second affidavit that indicated— The Court: Now, he did not testify to that, Mr. Lucas, in fairness. 4la Excerpts from Transcript of Proceedings of June 19, 1970 Now, he said that he had prepared an affidavit that the plan was sound. He did not say anything about before the policy. Mr. Lucas: I believe he also said, Your Honor, it could be implemented; is that correct? The Court: That is correct. Q. It was sound and it could be implemented, is that right? A. I prepared one affidavit for the Hinds County situation in which I stated that the plan was educationally sound, but that it should be—that the implementation of it should be delayed. Q. Did you previously make a recommendation that it could be implemented? A. Yes, over the two-year period that my plan called for. Q. Then you subsequently made one that it should be delayed, is that correct, or you testified [81] that it should be delayed and restudied? A. In the particular Hinds County situation I did not recommend that Hinds County plan be delayed over the two-year period—I beg your par- don—to correct the statement. The Court: All right, sir. A. The affidavit which I submitted in Hinds County called for a request, I believe, for a delay of the implementation of the Hinds County plan until the following school year. The plan itself was a two-year projection. And | think my affidavit called for a delay until September of the follow- ing year, or at least a delay. I don’t recall the exact month of delay. Q. Had you not previously recommended that the plan be implemented during that school year, that it not be de- 42a Excerpts from Transcript of Proceedings of June 19, 1970 layed? Had that not been part of your original recommen- dation in the case? A. The plan that was originally pre- pared, we were instructed to prepare plans for implemen- tation in September. Q. And you did so prepare plans to be implemented in September in a two-year stage; is that correct? [82] A. That is correct. Q. And then you subsequently executed an affidavit, after some proceedings, and/or testified, perhaps both, I am not sure, that the plan should not be implemented in Septem- ber; it should be delayed? A. That is correct, sir. Q. And you were appearing as a witness for the United States at that time? A. That is correct, sir. Q. And what position did you hold with the United States Office of Education at that time? A. The same position I now hold. Q. You did not receive a promotion sometime during that period, Doctor? A. I did not, sir, except the usual in-grade promotion that comes at the end of one year if your ser- vices have been satisfactory. Q. And what is your definition of a desegregated school, Dr. Sullins? A. A desegregated school in my opinion is one in which children are assigned to a specific school without regard to race, color or creed. Q. A school that is 100 percent black is a [83] desegre- gated school, Dr. Sullins? A. In my opinion, if the fac- ulty of that school is desegregated, there would be certain circumstances, I believe, where a school could be—the inter- pretation of desegregated or unitary could be placed upon that school system. ' Q. Is it your interpretation, Doctor, as an expert, that a school with 100 percent black enfollment in a system 43a Excerpts from Transcript of Proceedings of June 19, 1970 where there are whites in the system is a desegregated school? A. In my own opinion, yes. Mr. Lucas: I submit the witness is not qualified, Your Honor, as an expert in desegregation. The Court: According to what the witness has testified, according to the weight of the evidence, I am not satisfied that the qualifications are sufficient, I will be frank with you. But I am going to let him testify as an expert. Go ahead and examine this witness. Let me ask you one other question that just prompts it. The innuendoes, Dr. Sullins, in fairness, [84] are that you recommended one thing and then later changed your mind. Now, was that based on your own intellectual de- terminations, or was it based on a policy change by some Government office? The Witness: It was based on a policy change, sir. The Court: Now, did this plan—I presume that you had prepared this plan? The Witness: Yes, sir. The Court: Did you prepare it on a policy basis? The Witness: As much as we have to operate under, yes, sir. The Court: And what you are really doing, you are testifying to the policy of H.E.W.; is that cor- rect, as distinguished from your capabilities as an expert on desegregation? ; . The Witness: Yes, sir. Yes, sir. 44a Excerpts from Transcript of Proceedings of June 19, 1970 The Court: All right. I take you as an expert on H.E.W. policy and for no other purpose. [86] * * ¢# Q. [Mr. Wickham] Dr. Sullins, what was the purpose, or your purpose, or your team’s purpose in assisting in the preparation of a desegregation plan for the City of [87] Richmond? A. To develop a desegregation plan which would provide for a unitary school system with as much integration, desegregation as possible. [89] * 2 Q. [Mr. Wickham] All right. In what ways did the school authorities help or cooperate with you and your team, Dr. Sullins? A. [Mr. Sullins] They furnished all the informa- tion we requested, information that goes on the building . forms, special programs, the data that I have just men- tioned. Q. What guidelines are laid down by H.E.W. for you to follow in formulating a desegregation plan? A. There are no specific written guidelines [90] which we follow. The policies have changed, the unwritten policies have changed in the last year or two as far as the approach to desegregation plans are concerned. There is more emphasis now upon the neighborhood school concept as the basis for a development of a plan. [118] #28 Cross-Examination by Mr. Allen: Q. Dr. Sullins, I would at least like to get, straight on one thing I did not understand on cross-examination. ‘ ae ; 4 bu ; 3 t a] 3 4 $ bG.3 starved a Micon ae! wh alah hyo s. 45a Excerpts from Transcript of Proceedings of June 19, 1970 What specifically is the policy of H.E.W. toward trans- portation? A. Utilize the transportation that is currently in the system to desegregate as far as possible, but not to burden a school system with additional cost of busses and transportation that wherein the funds might be better utilized to be spent on an educational program rather than transporting children from one end of the city or county to the other. Q. So this would involve using the present public trans- portation facilities plus the school system’s existing busses, but not require them to buy any more busses or not to make unreasonable requirements upon them to buy any more busses, which is it? A. As far as my limited ex- perience is concerned, [119] and I can only speak for the new plans that I have taken to the ad hoc committee, there has been no requirement that the school system be forced to add additional busses to the school system to desegregate the system. 7 Q. Like none? A. Yes, none. £121] The Court: Or from anywhere else? From the School Board, did they tell you, “This is what we want to do”? | The Witness [Mr. Sullins]: No, sir. The Court: What did they tell you to do? The Witness: The School Board? Nothing. I did not meet with the School Board, sir, until the plan had been developed in almost final form. The Court: Well, I meant school authorities. What did they tell you? What did they tell you the Board wanted? The Witness: They did not tell me what the Board wanted. I did not inquire as to the in-put. 46a Excerpts from Transcript of Proceedings of June 19, 1970 The Court: What did they come in and ask you to do, that they wanted you to do at all? The Witness: Except to try our best to meet the directive of the Court Order and they gave me the Court. Order. [220] Q. [Mr. Wickham] The plan that has been pre- sented here this morning and filed as Defendants Exhibit 1, has this plan been approved and adopted by the School Board of the city of Richmond? A. [Dr. Adams] It has. -Q. Will you relate briefly the circumstances leading up to this approval? A. We received a motion from the Court on March the 11th, and on the 19th the School Board instructed me to request H.E.W. to assist us in preparing a plan that would be in compliance with the law; and I did so by letter to Mr. Cooper in Charlottesville. The team came in early in April and presented a plan to the School Board. on April the 30th. On May the 6th, the School Board meeting with the Clerk, attorneys, and myself, unanimously approved this plan as one to be submitted. It was submitted on May the 11th to the Court. Q. How many members do you have on your School Board in the city of Richmond? A. Five. (221] Q. Are any of these members of the Negra race? A. Two of the five are. Q.“You are familiar with the fact that the Defendants reported to the Court and stated that the geographic zon- ing plan for the assignment of pupils, as presented by H.E.W., had been approved. 47a Excerpts from Transcript of Proceedings of June 19, 1970 What exceptions to-the school plan, as presented by H.E.W., were made at that time? A. We asked in the plan two exceptions. One was that those seniors who were in our school as of June of this year, 1970, those juniors who would gradu- ate next year and be seniors next year and who were expected to graduate would be allowed to remain in their schools, since this is a most important function in their ’ lives and they attach great importance to graduating from the schools they attended, and we asked that written re- quest on the part of parents that seniors be allowed to remain in high schools during the 1970-71 school year as the first exception. Q. What was the second exception? A. The second ex- ception was that we asked that in the case of the integra- tion or desegregation ef the entire staff, the faculties of schools, that some [222] exception be made. The School Board approved the idea entirely in prin- ciple; but felt that this much change during the first year would work an undue hardship, not only in terms of time, and the School Board asked that a variance of 20 percent from the recommended percentage or recommended ratio be given for the ’70-’71 year only. Q. What is your ratio, the faculty ratio as to the white and black teachers? A. When we add the annexed area teachers to our staff, the faculty will be about 50 percent white and 50 percent black. Q. How much integration of the faculties do you have this current school year? A. We have a total of some— it is close to 250 counting the part-time people in the schools who are working in schools of the opposite race. This is an approximate number. I don’t have the exact Sees 48a Excerpts from Transcript of Proceedings of June 19, 1970 number. That includes full-time teachers and part-time teachers and principals, and so on. Q. Over the past two or three years, how many teachers have ben assigned to schools of the opposite race? [223] A. Approximately 500 since 1966. Q. Why specifically are you asking the Court for the coming school year to give you a 20 percent leeway in the assignment of your teachers? A. Well, I think we have a number of problems in the assignment of teachers. Number one is the time to make the necessary arrange- ments and study the situation. That is the primary con- sideration because we run into problems of certification of getting the right teacher in the right place certified for the right subject. We also recognize that the faculties of these schools, many of them have been built up over a long number of years and are very important to the ongoing and continuity of programs in schools, and to make a major change in a short period of time, we feel, would seriously impair the continuity of programs that exist. Q. Do you feel that you will actually obtain a fifty-fifty ratio by September of 1970% A. I think it would be highly problematical in being able to actually obtain that many, and that, of course, is one of the reasons we asked for some variance of these during the first year. [224] The Court: While we are on that, Mr. Adams, tell me why. The Witness: Why we asked for the 20— The Court: No, no. I know why you asked for the reduction. : j ; ; : ; 7 49a Excerpts from Transcript of Proceedings of June 19, 1970 Why would you be unable to obtain it? Don’t your teachers under contract teach where you tell them to teach? The Witness: The teachers are under contract; that is, many of our teachers are. Because of the, I think the uncertainty this year, we probably have a number of teachers that have not yet signed their contracts. I am not sure that those would come back if they were moved. I know that you are aware of the fact that when a teacher has been in a school a long time they establish a great deal of attachment to that school and resist moving from it, and this has nothing to do with race whatever. The Court: I am fully cognizant of that, Mr. Adams. This will be the first [225] Order that I have granted in which I have directed a specific proportion of teachers. The Witness: We have many teachers who have bought homes close to their schools so that they could be there, and I am just not at all sure that many of those teachers would move to other schools if we asked them to. We have used all the means that we know how during the past four years to get teachers to move from one school to the other short of making it a condition of employment. [243] see The Court: It is not H.E.W.’s responsibility. It is the School Board’s responsibility. Mr. Wickham: We understand that, Your Honor. 50a Excerpts from Transcript of Proceedings of June 19, 1970 The Court: Nobody else’s. Mr. Wickham: We have adopted this plan, Your Honor. The Court: All right, sir. * = + - * [253] * + Q. [Mr. Lucas] You say this plan was adopted by the School Board? A. [Dr. Adams] Yes. Q. Was that adopted at a public meeting or a secret meeting of the Board? A. It was adopted at the meeting with their attorneys. Q. Is there anything in the minutes, in the official minutes of the Board of Education of the city of Richmond that indicates this plan was ever adopted by the system? A. Not in the minutes. Mr. Wickham: Your Honor please, as Attorney for the School Board, I am authorized to state to this Court that the School Board and the school authorities have [254] adopted the plan that we here present. The Court: Your representation is sufficient. Q. Nothing that appears in the minutes; is that correct? A. Correct. Q. How many alternative plans were considered by the Board of Education before deciding upon this plan as the plan it would adopt for presentation to the Court? A. No alternative plan. Q. Were there any studies done by the Board or members of the staff indicating the possibilities of desegregation using transportation or any other technique? A. Not to my knowledge in terms of formulating a plan; that is, I am sure there were discussions of members of the staff of 5la Excerpts from Transcript of Proceedings of June 19, 1970 possibilities, and so on, but no plan was adopted or—and so forth. Q. Mr. Adams, you were in Court this morning when Dr. Sullins testified, were you not? A. Yes. Q. And he testified about a rough plan that he drew up that would provide for racial balance and [255] he came up with an estimate of the number of students to be bussed and the number of busses to be used. Was this developed in the material and information fur- nished by the Board of Education to the H.E.W. team? A. I don’t know. I don’t know anything about his develop- ment or what he developed it from. I have no knowledge of that whatever. Q. Does the Board have its own Research Department? A. Yes. Q. Does their Research Department have access to all of the statistical data in the system? A. Yes. Q. What type of technological aids does the Department have to use in school planning? A. (No answer.) Q. Does it have its own computers? A. The Research Department, no. 4 Q. Does the School Board have its own computer? A. Yes. Q. And how long have you had a computer? A. I don’t know. For a number of years. [256] Q. Didn’t you furnish answers to interrogatories with computer print-out of all the information on the faculty? A. Yes. Q. And haven’t you furnished information to the Rich- mond Redevelopment Housing Authority concerning pupil enrollment, pupil statistics and their locations within the system based upon computer print-outs? A. I don’t know. 52a Excerpts from Transcript of Proceedings of June 19, 1970 Q. Would that be possible with the existing facilities that you have? A. I presume it would. [262] * *# @# Q. [Mr. Lukas] You say in your contracts at the present time you do not make the acceptance of assignment to a school at the election of the School Board as a condition of employment? A. [Dr. Adams] That we do not sign contracts for a particular school. That was not quite what I was referring to. I said that in transferring teachers from one school to another one of the opposite race, we had not made that a condition of the contract. You understand— The Court: Let me get it straight. Your teacher contracts call for you to assign them wherever you decide to assign? The Witness: That is correct. What I [263] was referring to, the efforts that we have made to get teachers to transfer from schools of one race to one of predominantly the other race, and we have not forced them to do it under— The Court: You have not said, “If you don’t go, don’t sign our contract’? The Witness: If you don’t, you don’t have a con- tract. This is what I was referring to. [267] * 2 @ Q. Has the Board put any sort of similar effort into desegregating the schools as to be compared to your ef- fort to reduce the teacher-pupil ratio- A. The schools 53a Excerpts from Transcript of Proceedings of June 19, 1970 since ’66 have been operating under a freedom of choice plan in which we had to be quite careful in not insisting one way or the other in terms of children, and we were frequently accused anyway of trying to keep people in a school or not. We had to really be very objective in what we did. Q. Do you feel that you as an Administrator and the Board have an affirmative duty to eliminate [268] the racial identity of schools in the system? A. Yes. [304] eee The Court: In that connection, was any studies or how many studies were made as to how many of the students who have exercised their right of free- dom of choice actually use either public transporta- tion or private transportation, stationwagons, car pools? The Witness [Dr. Adams]: We have not made that determination, we have not made a study of it. I don’t know the answer to that. 54a Excerpts from Transcript of Proceedings of June 20, 1970 [320] [The Court] That is the point that I think is so very, very material. I am not at all sure that the defendants, and I would not want to put it on them if that is not their admitted position. I don’t know. But it seems to me that that has to be. If free choice didn’t work, it didn’t work, and if the defendants admit they have to do something else, and they admit it didn’t work because they were operating segregated schools which is constitution- ally impermissible. It is also apparent that the Plan that was tendered was done so in an effort to correct the results of their conceded segregation, and it is obvious under the law of this circuit that where a School Board oper- ates a system which is violative of constitutional requirements, the burden is on the School Board to explore every reasonable method of desegregation, including rezoning, pairing, grouping, clustering, school consolidation, transportation, including ma- jority-minority transfer plan. £321] I am not sure that the plan that is tendered does not contemplate a free transfer plan for pri- marily those of the Negro race only. I believe that is it. I am not sure that’s constitutionally permissible. In short, the Board is under a duty to utilize all reasonable means to dismantle the school system to eliminate racial characteristics. The evidence before the Court is that all facets were not considered. If the defendants concede that the failure of free choice, if they agree that the Court’s statements are accurate, were created by something more than just residential patterns, and it seems to me that it would have to be or they would not admit that the free choice did not work. 55a Excerpts from Transcript of Proceedings of June 25, 1970 [1122] * * * Q. [Mr. Lucas] Dr. Little, assuming transportation of pupils, is there any way to achieve what you consider to be, as an educator, an optimum of desegregation in the Richmond area? A. [Dr. Little] In the Richmond area, yes. Q. How would you do that? A. It would involve the involvement of a larger area than the present city bound- aries of the city of Richmond. Q. Are you talking about Henrico County, Chesterfield County or both? A. Henrico County, Chesterfield County, and the [1123] possibility of the general metropolitan area, maybe bordering on, in other counties other than Henrico and Chesterfield. Basically, the problem could be solved within the city of Richmond, Henrico and Chester- field Counties. * = * eo * [1126] °° ° Q. [Mr. Lucas] Dr. Little, I notice that the Research Department has prepared a lot of data, a lot of maps and exhibits, and so forth. Do you all have computer processing? A. [Dr. Little] Yes, sir. The Court: We have been through this, Mr. Lucas, I recall. Mr. Lucas: Your Honor, I have only one question that I really want to find out, if they have devoted comparable study to the possibilities of devising or feasibility of a plan involving transportation. Q. Has that ever been done? A. Mr. Lucas, I have given & great deal of consideration personally to the involvement 56a Excerpts from Transcript of Proceedings of June 25, 1970 of transportation and the logistics, the complications, the numbers and the cost, yes, sir. Q. Now, I don’t mean a formal plan, but have you ever performed written—is it in writing anywhere in the last couple of years, a study of the comparable skills and techniques, or the numbers, [1127] how many busses that will be needed in order to desegregate within Richmond itself? A. Yes. Sometime ago I asked my staff to give me an estimate on the number of children that would have to be moved from our high schools, from our schools as reflected by the enrollments of last September, how many would have to be moved out and how many would have to be moved in to gain a balance directly in proportion with the racial composition of that level of instruction, ele- mentary, junior and senior high school. Q. You said you used the enrollments of this past Sep- tember? A. The enrollments and school organization of last September. Q. Did you figure out how many busses you would need? A. I made an estimate of the number of busses, yes, sir. 2 € 3 ELVA LAL ABAD LS Bins a he 57a Excerpts from Transcript of Proceedings of June 26, 1970 £1190] The Court: Well, gentlemen, I think it has been perfectly obvious from the very beginning, as the case unfolded, that the School Board has not borne the burden placed upon it by the law. I hope we will not lose sight of the fact that the burden is the School Board’s burden, not the Plaintiffs’ burden. The Court had real fear, so to speak, from the very first witness, that the School Board’s Plan could not be approved. In the first place, it was formulated without re- gard to what the law of this Circuit requires. The witness testified, Dr. Sullins, that it was their policy to just disregard any transportation at all. He also said that it was, as I understood at one point, it was his policy, at least, to attempt to desegregate schools without considering race. How do you ever do that, I don’t know. To desegregate, you have got to give consideration to race. Utterly ridiculous. Now, it is the School Board’s burden in devising its plan and it is the Court’s [1191] responsibility in considering whether the plan is adequate, to ex- plore every reasonable method of desegregation, including rezoning, pairing, grouping, school con- solidation, transportation, majority-minority trans- fer plans, satellite zoning. In short, in this Circuit, it is necessary to consider any and all reasonable means to dismantle the dual system and eliminate the racial characteristics of the schools. The citations are so obvious, Swan v. Charlotte- Mecklenburg; Green v. School Board of the City of Roanoke; the Franklin case; the Southampton case; Brewer v. Norfolk. 58a Excerpts from Transcript of Proceedings of June 26, 1970 The Swan case, I think, is the, certainly the lead- ing case in this Circuit, the first one to come down in which it faced this busing business to some extent. This Court is bound in determining the use of transportation or zoning or clustering, or anything else, to use the rule of reason, which may not appear to be very definitive, and it is based, I think, upon the premise that everybody is going to act in good faith. [1192] Now, the only statement that I can find with reference to the Swan case considering the neighborhood school concept is the statements of Judges Sobeloff and Winter in their concurring opinion in the Brewer vs. Norfolk case wherein they say, that the Court should not tolerate any scheme or principle, however characterized, that is erected upon or having the effect of preserving the dual system. This applies to the neighborhood school concept, a shibboleth decisively rejected by this Court in Swan as an impediment to the performance of the duty to desegregate. Now, that is not a dissenting opinion. That is part of the majority opinion, talking about the Swan case. The School Board’s plan as contemplated fails for another reason. It fails to do what is required to ~do in reference to the faculty. Now, with respect to the faculty, teachers in this Circuit must be assigned so that the ratio of black teachers to white [1193] teachers in each school will be approximately the same as the ratio of black teachers to white teachers in the entire school sys- tem, which I think Mr. Adams destroys. As a 59a Excerpts from Transcript of Proceedings of June 26, 1970 practical matter, your hope of the twenty percent variance. I will say this, it is this Court’s opinion that, as binding as that statement appears, I think I can take it in context with the rule of reason that is contemplated in the Swan case, that there may be very, very special exceptional circumstances which the Court will consider when the plan comes in, but it cannot be any blanket ten percent or four percent or three percent, special, special circumstances. Gentlemen, the Court is going to require in its ulti- mate requirements, that the dual system here has been perpetuated by virtue of the fact that segrega- tion has been sponsored by the local, state and fed- eral authorities, not—Negroes live where they live because they have no other choice. The laws have been such. I don’t think it is a choice now, [1194] and I would ask you to keep that in mind in prepar- ing your new plan because it may have an effect as to how far the School Board has to go. The proposed plan by HEW, and adopted by the School Board, according to my calculations, subject to being corrected, because my mathematics are not the greatest, it would appear that East End, for example, out of sixteen schools, they were going to leave thirteen schools with 93 percent or more Negro. One school would have had 88 percent Negro; four schools would have 100 percent Negro, and it appears that only two, Fulton and Webster-Davis, appears to have been reasonably desegregated, and in that case they would have had 36 percent ——* of white as to 63, almost 64 percent Negro. 60a Excerpts from Transcript of Proceedings of June 26, 1970 In the annexed area, their plan contemplated out of ten schools that there would be ten with 89 percent or better with the white race, and two with 100 per- cent white race. The most, highest percentage of [1195] Negroes in the annexed area, as contem- plated by the plan submitted, Negro, 5.1 percent against 94.9 percent white. I think the best way to describe that, gentlemen, in the situation—let’s finish —in the West End on the north side there were, let’s see, one school would have had 2.8 percent white as against 97.2 percent Negro. There are 1, 2, 3, three schools would have had 100 percent Negro. Another school, Norrell and Norrell Annex, would have had 4.4 percent white; Graves Jr., would have had 7.5 percent white; Maggie Walker, 9.1 percent white. The South Side appears to have been one of the other schools more reasonable in getting closer to working it out, but even then the whites predom- inate. Now, I am not giving a definite ruling because I think the School Board ought to have its opportunity to attempt to come up with a plan. I don’t know of any instances, gentlemen—I wish everybody would keep this in mind—where the Court has drafted a plan. [1196] Now it may be. I am certainly reluc- tant to do it. I don’t want to. I don’t think you all ought to put it on me. What has happened, as a practical matter, is that Courts.in other areas, to my knowledge, where they cannot find a plan approved by the School Board, they have arbitrarily taken the Plaintiffs’ plan. i ee 6la Excerpts from Transcript of Proceedings of June 26, 1970 In reference to the Plaintiffs’ plan, the Plaintiffs’ witness very frankly admitted that there could be improvements made upon it. I don’t care how you add the figures, there are going to be at least 9,000 children who are going to go by transportation next year if we were not even in litigation, annexed or voluntary, or what. I suspect there is not as much walking as the record might indicate, and I am not saying that 18,000 people being bussed is a reason- able number, but it is not as extreme as it would sound at first blush when you take into consideration how many are already being transported. The School Board must realize, and I am [1197] sure counsel all realize it—oh, I have one other point—I don’t think without making a definitive rul- ing that .2 or .3 of one percent white children in a school with 99.7 Negro children, or .3 of one percent of the Negro children in a school with 99.7 percent is an integrated school. That is sprinkling. I-would think that if that had to come to pass, we would be better off to have it 100 percent one race. I have already expressed myself on what the HEW plan did to Mr. Allen’s clients. Gerrymandering, just to take 45 white children, that is not integrat- ing schools. That is sprinkling. I hope that the School Board now has a better idea of where they can go. I think they have got some benefit from all of this testimony here, but we must bear.in mind it is their responsibility, they are the ones under the law. HEW, I am afraid we cannot get any help from them, gentlemen, if their policies are such that it conflicts with the [1198] constitutional 62a Excerpts from Transcript of Proceedings of June 26, 1970 requirements, and Dr. Sullins said that it did. I am sure that the Courts, or, at least my view of the Courts are that we ought to attempt to cooperate and follow the Executive Branch as best we can, but when it conflicts with constitutional requirements, trial judges have no choice but to follow their appel- late courts and I intend to do it, as unpopular as it may be. The public may not understand it but I think the Bar understands and I do. I am going to do it. I think we can work it out. I have every hope. I am perfectly willing to look at alternative plans. It may be traumatic but we might just as well face it. It’s got to be done. We have had several years, and I will not dwell on it, but it has been several years since the New Kent case and nothing has been done. Nothing seems to be done until somebody comes in and creates litigation. So the problems and the hard work are really things of our own making. All right, gentlemen, I am going to [1199] reject the plan as submitted, and I am going to take the Plaintiffs’ plan under advisement and I am not go- ing to put that into effect at this stage, and hope- fully I won’t have to put it in effect at all. But I will ask the School Board to submit the plan to this Court on or before July 27, 1970. And you might look at the order entered by Judge Hoffman, Mr. Wickham and Mr. Wimbish, in the Norfolk case in . which he suggests that the plan may be based on suggestions made by the government’s expert wit- ness, in that case, Dr. Stoele. Had I been able to find an expert that I thought had not been on one side or the other, I don’t mind LP ger 3a ¢ script of Proceedings Excerpts from Trai 26, 1970 of Jun: would have gotten, and I still telling you the Court it is kind of hard to find an may, if I have to, bustified for either the School expert who hasn’t tACP plaintiffs. That doesn’t Board or for the N/ot perfectly honest, but it is mean that they are hd if we can, I think. something to be avoigt you have to do [1200] and Now, you know wh, exceptions to the plan by the I will ask you that amorg he filed by August 3rd. Plaintiffs or Interve exceptions will be conducted Hearings on any su on Friday, August Yay that I wanted findings of Now, I said yesteriings of fact. To some extent fact, the proposed fit, ult without a plan it looks geil “prove or without the School Board’s additional pe but I still think it can be done before the plat is concluded, though it may not be necessary to lo it in the eight days that I have suggeested. miybe that time can better be spent by Mr. Wickhe”™ and Mr. Wimbish in assist- ing the School Boaré in conforming to the require- ments of the law. §) I will ask you to have them within—what do you think is reasonable, Mr. Wick- ham? Mr. Wickham: Ycur Honor please, I suggest a week prior to submis3ion of the School Board’s next plan. The Court: All right, that will be fine. [1201] Mr. Wickham: July 20th or what date? The Court: Well, do it on Monday. That’s right, the 20th. Would you do that, gentlemen, for me? 64a Excerpts from Transcript of Proceedings of June 26, 1970 I want to thank—I won’t say it to you again, Mr. Lucas. The last time I told you how appreciative the Court was, you lost your case completely. I won’t put that on you this time. I am appreciative of the help that all counsel have given, including the inter- venors. I know it is a lot of work for the School Board, but I think you can do it. You have to do it. We have no choice. That’s all there is to it. All right, gentlemen. Mr. Gray: Judge, before you stop, would you in- dulge me a moment before you adjourn court? The Court: Sure. You are the real expert on desegregation. Mr. Gray: Thank you, Your Honor. The Court: All right. Now, one other matter, gentlemen. I have [1202] concluded, after hearing the testimony of Mr. Kiep- per yesterday, that it is imperative that the members of the City Council be joined as party defendants to this action here. Federal Rule 21 provides that parties may be dropped or added by order of the Court on motion of any party that should be initiated at any stage of the action on such terms as are just. Whatever members of the School Board have to do they are going to have to have the cooperation of the City Council, and that’s all there is to it. And if nothing else the case will attract their attention, I think, more vividly if they are party defendants. So in accordance with Rule 21, I am going to make them party defendants. See Halladay v. Ver- schoor, 381 F.2d 100, is my authority for it. 65a Excerpts from Transcript of Proceedings of June 26, 1970 All right, gentlemen, thank you very much. * The Court will take a brief recess [1203] before going on with my other docket. Mr. Lucas: Your Honor, there is one other matter —in view of some of the testimony about the time span for acquiring transportation facilities and the availability of possibly some busses from Chester- field County, we have not gone through, we would like to suggest to the Court some sort of order like Carter or like Medford requiring the Board to be prepared to perform in terms of providing trans- portation, whether that requires taking bids— The Court: Well, thank you, Mr. Lucas, for your suggestion, but I don’t think I am going to adopt it. T have already suggested that counsel for the School Board examine the order entered in the Brewer case, and in that order, I might add, the School Board was directed to contract with VTC for the transpor- tation of students. I will say this: I do not think the schools in the City of Richmond can open until a plan that is ac- ceptable by the Court has been adopted, and the plan must be in effect [1204] when schools open for the fall term. : Mr. Lucas: Thank you, Your Honor. The Court: Recess the court. (Recess) ( ADJOURNMENT) 66a Motion for Attorney’s Fees, etc. (Filed July 2, 1970) In tHe Unrrep States District Court For tHe Eastern District oF VIRGINIA Ricumonp Division Civ. Action No. 3353 Carotyn Braptey and Micuar, Brab.ey, infants, etc., et al., vs. Tue Scnoot Boarp or THE Crry oF Ricumonp, Vircrn1, et al. Morton Plaintiffs, by their undersigned counsel, respectfully pray that this Court enter an Order directing the defendants to take all necessary steps to implement a plan of deseg- regation which provides for the elimination of the racial identity of each school in the Richmond public school sys- tem, effective with the commencement of the 1970-71 school year, including but not limited to, the provision of adequate transportation facilities, by contract or purchase, securing the necessary capability and capacity for the transporta- tion of all pupils eligible, in accordance with such non- racial transportation standards as the Board shall adopt, for such transportation to the schools to which they may be assigned under such a plan, and the use of route plan- ~ ini sip tne cnt th 4 67a Motion for Attorney’s Fees, etc. ning assistance from the state Department of Education ; Plaintiffs further pray that this Court enter an Order directing the defendants to take no steps which are incon- sistent with or which will tend to prejudice or delay a schedule to implement, effective for the 1970-71 school year, the desegregation plan proposed by the plaintiffs, which this Court has taken under advisement; Plaintiffs further respectfully pray that this Court direct that all steps necessary to provide adequate funds for the constitutional operation of the Richmond public schools effective for the 1970-71 school year be taken, including but not limited to the transfer of funds from present capital budget categories for planned construction or other capital improvements, to operating budget categories, the securing of additional appropriations to operating budget categories, the application for assistance from the Virginia State Department of Education, application for all avail- able federal funds, including but not limited to transfer of Title I allotments from other programs to meet trans- portation requirements, as well as for such assistance as may be available or as may become available under the Civil Rights Act of 1964; Plaintiffs further pray that in light of the burden upon plaintiffs and the cost and disbursements required in this action, the Court make an interim award of all out-of- pocket costs incurred by the plaintiffs since the filing of the Motion for Further Relief, said costs to be certified to the Court, as well as attorneys’ fees in an amount to be determined by the payment made or to be made by the school board to special counsel retained by it in this cause. In support of this Motion, plaintiffs respectfully refer the Court to the decision of the United States Supreme Court in Carter v. West Feliciana Parish School Bd., 396 68a Motion for Attorney’s Fees, etc. U.S. 226 (1969); CF. Alexander v. Holmes County Bd. of Education, 396 U.S. 19 (1969); Nesbit v. Statesville City Bd. of Education, No. 13229 (4th Cir., Dec. 2, 1969); Stanley v. Darlington County School Dist., No. 13,904 (4th Cir., Jan. 16, 1970); Swann v. Charlotte-Mecklenburg Bd. of Education, —— U.S. —— (June 29, 1970), and to the Memorandum of Points and Authorities previously filed herein. Respectfully submitted, /s/ Norman J. CHACHKIN M. Rate Pace 420 North First Street Richmond, Virginia 23219 James R. OLPHIN 214 East Clay Street Richmond, Virginia 23219 Jack GREENBERG = James M. Nasart, IIT 2» Norman J. CHACHKIN 10 Columbus Circle New York, New York 10019 Louis R. Lucas 525 Commerce Title Building Memphis, Tennessee 38103 Attorneys for Plaintiffs 69a District Court’s Letter to Counsel ' (Dated July 6, 1970) UNITED STATES DISTRICT COURT Eastern District of Virginia Richmond, Virginia 23219 July 6, 1970 Chambers of ROBERT R. MERHIGE, Jr. District Judge M. Ralph Page, Esquire 420 North Ist Street Richmond, Virginia 23219 James R. Olphin, Esquire _4 214 East Clay Street ) Richmond, Virginia 23219 Re: Carolyn Bradley and Michael Bradley, etc., et al. v. The School Board of the City of Richmond, Virginia, et al. Civil Action No. 3353 Gentlemen: Your motion filed July 2, 1970, in re the above styled matter, has been brought to the attention of the Court, and unless I am requested to do otherwise by counsel for the defendants, no action will be taken on this motion until the defendants have been given an opportunity to be heard thereon. It may be appropriate, however, for the Court to suggest to all counsel that heretofore in cases of this nature it has been the Court’s practice to request counsel to attempt to come to a understanding in reference to fees prior to the 70a District Court’s letter to Counsel Court taking any action thereon. In any event, it would ap- pear that if the parties cannot agree in reference to that issue, a ruling on same ought not to be had until after a plan has been approved. It also occurs to the Court to suggest that it ought to be unnecessary for the Court to enter any order as suggested by Paragraph 2 of your motion, for I am satisfied that counsel have advised their clients of the law as enunciated by the Court of Appeals of this Circuit as well as by the United States Supreme Court in the Alexander case, to the effect that there can be no further delay in the establishment of a unitary school system. It would appear inappropriate, in any event, for the Court to direct the manner in which the defendants are to comply with the constitutional require- ments. I am sure that all counsel are aware of the fact that this Court has not to date prepared any plan of desegrega- tion, and does not intend to do so in this instance. That bur- den rests upon the school board. Obviously if the school board cannot file a plan which is constitutionally viable, and another plan has been filed by either the plaintiffs or inter- venors which is constitutionally viable, the Court has little choice but to approve that which is required under the law. Paragraph 3 of your pending motion suggests that the Court enter certain orders directing the defendants, in essence, in the manner in which they are to approach the immediate problem. I do not think this is necessary, although it is cer- tainly appropriate for the Court to make suggestions. It appears to me that the Court’s findings from the bench were sufficient to suggest to all counsel, and to the defendants in particular, that they explore all reasonable means to the end that their proposed plan conforms to the requirements of law. I know of no stronger language than that stated by 7la District Court’s letter to Counsel the United States Supreme Court in the New Kent case, wherein the Court stated that the burden is upon the school board to take “whatever steps are necessary.” I am sure all parties recognize that the burden upon the school board in the submission of any plan is such that any plan which cannot be shown to be one which furthers con- version to a unitary, non-racial, non-discriminatory system must be held inacceptable. The Court, of its own knowledge, recognizes that we are rapidly approaching a state-wide system of school districts which conform to the requirefhents of law. I am hopeful and confident that the defendants are ex- ploring every reasonable method to reach the ultimate goal. I am sure all recognize that the manner in which desegre- gation is to be achieved is subordinate to the effectiveness of any particular method or methods of achieving it. It is ob- vious that the United States Supreme Court tests the plans by their effectiveness. This Court is not so insulated as not to be cognizant of some of the problems the school board is facing, including perhaps community opposition. As the Court stated from the bench, as traumatic as it may be, it must be done. No oppo- sition can serve to prevent vindication of constitutional rights. I am sure that all counsel are appreciative of the fact that the Court stands ready to assist in any manner consistent with its obligations, to the end that a plan constitutionally acceptable is formulated. I feel confident that the defendants will utilize any assist- ance they may deem appropriate, including help from the Health, Education and Welfare and the State Board of Edu- cation. It may be that it would be appropriate for the defendant J / ‘A 72a District Court’s letter to Counsel school board to discuss with the appropriate officers of the contiguous counties as to the feasibility or possibility of con- . solidation of school districts, all of which may tend to assist them in their obligation. They may well determine to look at the prospects of a “feeder” system, consolidation, pairing, zoning, etc. In spite of the guidelines afforded by our Circuit Court of Appeals and the United States Supreme Court, there are still many practical problems left open, as heretofore stated, including to what extent school districts and zones may or must be altered as a constitutional matter. A study of the cases shows almost limitless facets of study engaged in by the various school authorities throughout the country in at- tempting to achieve the necessary results. I have the utmost confidence and hope that the instant defendants will study all reasonable methods prior to their submission of a plan. This letter is not to be construed as a formal ruling in any manner whatsoever on your pending motion. I realize there are cases in which the Courts have granted the interim re- lief requested by you in your motion; cases by which this Court may well be bound. You may be assured that every consideration will be given to your motion at such time as the Court deems it appropriate. I felt, however, that this might be an appropriate time for the Court, consistent with its obligations, to weigh the ultimate suggestions in light of any alternatives which may appear as feasible and more promising in effectiveness, to remind all parties that the Court did not intend its state- ments from the bench to be limiting in any manner what- soever as to the methods to be studied by the defendant school board. _ : It may be appropriate at this time to advise all counsel that there has been at least one informal motion for leave to 73a District Court’s letter to Counsel file a brief amicus curiae, and since the Court cannot at this time conceive of any reason why any additional intervenors would be permitted, I likewise can see no reason why the Court should not be most liberal in granting permission to file briefs amicus curiae and an order so stating will be this day ‘entered. Thanking you, I am Very truly yours, (s) Robert R. Merhige, Jr., Robert R. Merhige, Jr. United States District Judge cc: All counsel of record 74a 2 Submission of Interim Plan by Richmond School Board (Filed July 23, 1970) Pursuant to the Court’s order of June 26, 1970, the School Board of the City of Richmond, Virginia, has adopted and herewith submits its plan for the operation of unitary schools for the school year 1970-71. Such plan has been pre- pared so as to conform to the requirements of law as here- tofore enunciated by the United States Court of Appeals for the Fourth Circuit. 75a Submission of Interim Plan by Richmond School Board Wuenrerore, the defendants move the Court to ‘approve the attached plan. Tue ScnHoor Boarp OF THE City or RicHMOND * * * PLAN FOR THE OPERATION OF UNITARY ScHOOLs For THE ScHoot Year 1970-71 sy tHE ScHoot Boarp oF THE City or RicHMoND SUMMARY OF PLAN 1. All high schools are désegregated. 2. All middle schools are desegregated. 3. Wherever possible, all elementary schools are de- segregated. Since black residential areas are so large that not all elementary schools can be integrated, the School Board will make available to pupils in the black schools special classes, functions and programs on an integrated basis. 4. The majority of the school careers of all students will be at integrated schools. 5. The School Board will allow majority to minority transfers and will provide free thansportation by common carrier for those pupils requesting such transfers. 6. The racial ratio of the faculties in each school will be approximately the same as the ratio throughout the system. The Board will make exceptions only for specialized faculty positions. : 7. Upon written request/ the School Board will permit those students who will enter the twelfth grade in Sep- ‘ 76a Submission of Interim Plan by Richmond School Board tember, 1970, and who reasonably expect to graduate in June, 1971, to remain in the schools which such students attended in June, 1970. Basic DETAILS oF PLAN The basic organization pattern proposed by the School Board of the City of Richmond provides for the pre-annex- ation area of the city as follows: Primary-elementary schools to house K through grade 5 Middle schools to house grades 6 through 8 Senior high schools to house grades 9 through 12 and in the newly annexed areas of the city Primafy-elementary schools to house grades K through 6 Middle schools to house grades 7 through 9 Senior high schools to house grades 10 through 12 The basic organization structure of the senior high schools includes grades 9 through 12. Where consideration of space necessitated, exceptions are made: namely, in the newly annexed area Huguenot High School will house grades 10 through 12 and Elkhardt and Thompson Middle Schools will house grade 9. The boundaries of the senior high schools are drawn so as to be contiguous, with one exception, this being Kennedy High School. Here satellite zones are used. Every high school building is filled to or above capacity. Portable classrooms will be used in some instances. The senior high school plan will be implemented through the use of Virginia Transit Company regular busline trans- portation accompanied by a staggered opening and closing of school. On the advice of the Virginia Transit Company, 77a Submission of Interim I lan by Richmond School Board the Company will be able t load but it will be necessa:o accommodate the transportation schedule at approximately to open schools on a staggered to close school at two, y eight, nine and ten o'clock and respective pupils involved. three and four o'clock for the The middle school plan marily to accommodate s, of organization is designed pri- eight. Exceptions to this tudents in grades six, seven and middle schools in the nevpasic plan were required for the restrictions and the arranyly annexed area due to housing for the exchange of StUsements with Chesterfield County Elkhardt Middle Schools \aents. Here the Thompson and nine until the School B ill house grades seven, eight and acmume contre and reShrd of the City of Richmond can wnepaotence aie a bSonsibility for its pupils in the eee veg educated by Chesterfield County tendance areas with varia CXation decree. the middle school ing space dictates. In the ilar to the senior high school at- school buildings have beettions only where available build- tion of middle school atte ™4Jority of instances, clusters of attendance areas were de: used to house the pupil popula- senior high school attend£mdance areas. The middle school facilitate transporation. ‘Signed to be co-terminal with the regular busline Virginia 22Ce areas where possible so as to will be utilized. LikewiseAs with the senior high schools, hours are necessitated. T} Transit Company transportation advised the School Board®, staggered opening and closing date this additional voluhe Virginia Transit Company has conditions set forth above! that the Company can accommo- The attendance areas ime of transportation under the have been drawn to accom. through rezoning, pairing for primary-elementary schools iplish a maximum of desegregation g, grouping, school consolidation 78a Submission of Interim Plan by Richmond School Board and transportation, with the Virginia Transit Company maintaining its special elementary school buslines to ac- commodate elementary pupils who live beyond a reasonable walking distance from school. The assignment of small minority groups to certain schools is due to existing housing patterns of a limited racial mix. Where primary-elementary or middle schools could not be integrated because of large black residential areas, the School Board is establishing social studies learning centers. These learning centers will be used to supplement such existing learning centers as the Virginia Museum of Fine Arts, the Valentine Museum, Maymont Wildlife Center, the Richmond Area Math-Science Center, Richmond Tech- nical Center and the Richmond Trades Training Center so as to provide more desegregated learning experiences. For example, where the minority race is 10% or less in a par- ticular school, individual classrooms of pupils in such schools will be paired with individual classrooms of pupils of the opposite race for the school year in order to provide an integrated educational rience in one of the learning centers or by inter-school visitation. The upper elementary and middle school pupils will be scheduled on at least'a weekly basis and the pupils in grades K through three will be scheduled at least once every two weeks. Transportation -will be provided through School Board owned equipment during the middle of the day. In addition, excursions and field trips for the same pupils will be provided. 79a Excerpts from Transcript of Proceedings of August 7, 1970 [18] The Court: Well, the main difference is the School Board, who has known since May 27, 1968, that freedom of choice was not constitutionally viable unless it works, wait for two years to come into court. After they are brought into court they stand up and admit it did not work. Mr. Mattox: The School Board was operating a system under the direction of this Court. The Court: But they knew that that was no longer valid. Mr. Mattox: But it was still operating, Your Honor, as— The Court: You mean they were using the tech- nical aspect; is that it? Mr. Mattox: No, sir, they were following the di- rective of this Court. The Court: In spite of the fact that they knew that that was no longer the law, Mr. Mattox, really? Mr. Mattox: Your Honor, the law—any School Board apply this as the law under the order that was issued in this case. Whether [19] the law had changed or not is beside the point. It was not the law in this case at that time. The Court: What you are saying is that this Court had better not leave any loose ends because the School Board will grab it; is that it? Mr. .Mattox: No, sir. The Court: What are you saying? Mr. Mattox: I am saying this School Board will follow the order of this Court to.the nth degree and I am sure that it will. 80a Excerpts from Transcript of Proceedings of August 7, 1970 The Court: All right, sir. Thank you. [33] The Court: I cannot, I can tell you right now in good conscience, order the operation of a school system which the Defendants have openly— and I am not critical of it because I think you can look at the figures and see they were right—and I am going to make a finding of that in my ultimate findings. Just the figures themselves tell what the School Board did. It was a nice, honest thing to come in and say, “Let’s not waste any more time — on it. It simply has not worked, and let’s get to it.” {77] ss *# @ : Q. [Mr. Little] Coming to the basic plan, Mr. Adams, we are presenting today, what was the basic guideline, or let me go back just a moment, who prepared this plan, sir? A. [Mr. Adams] This plan was prepared by members of my staff, under my direction. Q. What was the basic guidelines used in preparing this plan, sir? A. We went to the statement from the Bench, that we should consider the Charlotte-Mecklenburg and the Norfolk case, and the Norfolk case, which the decision was made on [78] June 22nd, seemed to express the opin- ion that gave us more direction in terms of preparing the Plan that we have submitted, and we extracted an excerpt from that decision and we have used that, and I would like to read it, if I may, as the basis for the Plan we have submitted. Q. What you are reading are Exhibits from the Brewer case; is that correct? A. Right. 8la Excerpts from Transcript of Proceedings of August 7, 1970 “The Plan should immediately desegregate all high schools. With respect to elementary and junior high schools, the Board should explore reasonable methods of desegregation, including rezoning, pairing, grouping, school consolidation and transportation. If it appears that black residential areas are so large that not all schools can be integrated, the School Board must take further steps to make sure that no pupil is excluded because of his race from a desegregated school. “The Board should make available to pupils in the black schools special classes, functions and programs:on a inte- grated basis and it should assign these pupils to integrated schools for a substantial portion of their school careers. “The School Board must amend its transfer position to freely allow majority to minority transfers and provide [79] transportation by bus or common carrier so individual pupils can leave black schools. The plan must include pro- visions for the integration of facilities so that in each school the racial ratio shall be approximately the same as the ratio throughout the system.” [102] * * # Q. (Mr. Little] All right, Mr. Adams, if you will, pro- ceed to explain the basic plan for the elementary schools? A. [Mr. Adams] We have taken advantage of all of the suggestions of the Court in that we have rezoned, we have paired, we have clustered, and we have consolidated and made use of available transportation to desegregate the elementary schools as far as possible. Q. May I come back to the—excuse me. The Court: May I just ask one question? Mr. Little: Yes. 82a Excerpts from Transcript of Proceedings of August 7, 1970 The Court: You did not give any [103] con- sideration to additional transportation— The Witness: Yes, sir. - The Court: —is that correct? The Witness: No—we did. Mr. Little: The witness said he did. The Court: He did? Mr. Littl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0281%3A01. Public record. Not legal advice.