Thompson v. School Board of the Newport News

465 F.2d 83, 1972 U.S. App. LEXIS 8085
CourtCourt of Appeals for the Fourth Circuit
DecidedAugust 2, 1972
DocketNos. 71-2032, 71-2033
StatusPublished
Cited by1 cases

This text of 465 F.2d 83 (Thompson v. School Board of the Newport News) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. School Board of the Newport News, 465 F.2d 83, 1972 U.S. App. LEXIS 8085 (4th Cir. 1972).

Opinion

DONALD RUSSELL, Circuit Judge:

From an order of the District Court in these school desegregation cases, both plaintiffs and defendants have appealed. The appeal of the plaintiffs will be first considered.

I.

Plaintiffs assail the manner in which the plan approved by the District Court would assign elementary pupils in the school system. Under the plan, pupils in grades 1 and 2 are to attend neighborhood elementary schools; pupils in grades 3, 4 and 5, as well as pupils in grades 6 and 7 are to be assigned to paired schools. For the first paired group (i. e., pupils in grades 3, 4 and 5), the mother schools to which all living in the paired neighborhoods are assigned, are schools formerly identifiable as white in a white neighborhood and, in turn, all pupils in grades 6 and 7 would be assigned to formerly identifiable black schools. The plaintiffs took exception in the District Court and on oral argument in this Court to both the assignments of grades 1 and 2 to neighborhood schools and grades 3, 4 and 5 to formerly identifiable white schools. In their statements of issues on appeal, as set forth in their written brief filed with this Court, however, the plaintiffs did not object to the assignments of grades 3, 4 and 5 and confined the issues, as set forth in their brief, to the assignments of grades 1 and 2 to neighborhood schools. Since there was some reference to the issue relating to the assignments of 3, 4 and 5 grades in oral argument it would seem appropriate to touch briefly on this issue before passing on to the primary issue in the case.

It should be observed at the outset that, as a result of the pairings of grades 3 through 7, the proportion of black students in these grades in the various schools, while varying from approximately 15 to 50 per cent, will approximate, it is estimated, 65 per cent white and 35 per cent black in most instances. To achieve this result will require extensive busing. It was argued before us that the assignments made to paired schools for the 3rd, 4th and 5th grades, and the substantial amount of busing that followed from such assign[85]*85ments placed an undue and discriminatory burden on black students. The basis of this argument is that the white school child would attend for his first five school years a school formerly identified as a white school and located in a white neighborhood, whereas the black child would be in a school located in a black neighborhood only in his first two grades and in his 6th and 7th grades.

The situation in the respective pairings in this ease is not appreciably different, however, from that involved in Clark v. Board of Education of Little Rock School Dist. (8th Cir. 1971) 449 F.2d 493, where the pairings under the plan of desegregation required all 8th and 9th grade pupils to attend school in four junior high school centers, three of which had been previously identifiably black schools and all 6th and 7th grade pupils were required to attend schools in facilities previously identifiably white. In sustaining the plan, the Court said (p. 496):

“While we agree that the burden of integration must be shared by blacks and whites, we do not agree that the sharing of the burden at the secondary level, when considered as a whole, is so unequal as to require upsetting the District Court’s plan.”

To the same effect is our own case of Allen v. Asheville City Board of Education (4th Cir. 1970) 434 F.2d 902, where it was stated, in sustaining a plan against a similar claim of unfair burden (p. 907):

“If achieving integration by free bus transportation for reasonable distances must now be characterized as a ‘burden’ and if we also assume, without deciding, that this burden must be equally shared between the races, the school board’s plan is nevertheless valid. The worst that can be said of the plan is that in grades 1 through 5 the burden falls disproportionately on black children, whereas in grades 6 through 12 it falls disproportionately upon white children.”

See, also, Hart v. County School Board of Arlington Co., Virginia (D.C.Va.1971) 329 F.Supp. 953, aff. 459 F.2d 981 (4th Cir.), where a like claim that, as a result of the assignment of elementary pupils among schools under the proposed plan “all the burdens and inconveniences of desegregation are imposed entirely on the black children”, was disallowed.1 (p. 955)

It must be conceded that, unlike the situation in Clark and Allen, there is here an unequal division between the school years spent by elementary students in identifiably black and indentifiably white schools. Such inequality, however, is unavoidable, since there is an unequal number of elementary grades (i. e., seven). Of the two groupings, one had of necessity to include three grades and the other two grades. There was some obligation on the school board to offer satisfactory reasons for the grouping it made, since the white elementary students had one more year in elementary identifiably white schools, than black elementary students had in identifiably black schools. Since the cause is to be remanded, the District Court should inquire into and make findings of fact on whether the grade groupings were based on non-discriminatory grounds. See Haney v. County Board of Education of Sevier County (8th Cir. 1970) 429 F.2d 364, 372.

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Bluebook (online)
465 F.2d 83, 1972 U.S. App. LEXIS 8085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-school-board-of-the-newport-news-ca4-1972.