Allen v. County School Board of Prince Edward County
249 F.2d 462
4th Cir.
1957
Check Treatment
PER CURIAM.

This аction was commenced to enjoin racial segregation in the public schools of Prince Edward County, Virginia, on the ground that provisions of the state constitution and statutory code requiring such segregation were violative of the 14th Amendment to the Constitution of the United States and therefore void. A court of three judges was properly constituted, as required by 28 U.S.C. §§ 2281 and 2284, and judgment was entered denying the relief sought. Seе Davis v. County School Board of Prince Edward County, D.C., 103 F.Supp. 337. This judgment was reversed by the Su*464preme Court and the case was remanded for further proceedings. ‍‌​​‌‌‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​​‌‌​​​​‌‌​​‌‌‌​​‍Brown v. Board of Eduсation of Topeka 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. On the remand the court of three judges entered a decree which vacated and set aside its original dеcree, declared invalid the constitutional and statutory provisions requiring segregation in the schools, and enjoined and restrained thе defendants from refusing on account of race or color to admit to any school under their supervision any child qualified to entеr such school “from and after such time as the defendants may have made the necessary arrangements for admission of children to suсh school on a nondiscriminatory basis with all deliberate speed as required by the decision of the Supreme Court in this cause”. The court found that it would not be practicable to require that this provision be made effective before the commence1 ment of the school term in September 1955; but the finality and binding force of the order was not otherwise affected. The case was retained on thе docket for the entry of further orders which might be necessary in the enforcement of the decree. In July 1956 the court of three judges was dissоlved and order was entered that further proceedings in the case be had before a single District Judge. Davis v. County School Board of Prinсe Edward County, D.C., 142 F.Supp. 616.

After the dissolution of the three judge court, the case came on for hearing before the District Judge on a motion of рlaintiffs- for an order fixing a time limit for compliance with the order theretofore entered, and a motion of defendants that the motiоns of plaintiff be dismissed for failure to comply with the Pupil Placement Act, ch. 70 of the Acts of Assembly of Virginia, Extra Session 1956. On the- hearing of the motions, the question -was raised as to whether the ‍‌​​‌‌‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​​‌‌​​​​‌‌​​‌‌‌​​‍court of- three judges should .be reconvened. The District Judge held that the court-of three judges, nеed not be reconvened, declined to pass on-the applicability of the Pupil Placement. Act, and denied the motion for аn order fixing a time limit for compliance with the order theretofore entered because of opposition to the order аnd racial tension ’prevailing in the community and the possible closing of the schools under Virginia Statutes, if the order were enforced.

The holding of the judge that the three judge court need not be reconvened was unquestionably correct. We have recently held, howеver, that the Pupil Placement Act provides no adequate administrative remedy. (School Board of City of Newport News, Virginia v. Atkins, 4 Cir., 246 F.2d 325, certiorari denied 78 S.Ct. 83; and we think that the District Judge was in error in not fixing a time limit for compliance with the order theretofore ‍‌​​‌‌‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​​‌‌​​​​‌‌​​‌‌‌​​‍entered in the cause. As pointed out by Judge Jоseph C. Hutcheson of Texas in Jackson v. Rawdon, 5 Cir., 235 F.2d 93, 96, plaintiffs were entitled to have the school board “acting promptly, and completely uninfluenced by private and public opinion as to the desirability of desegregation in the community, proceed with deliberatе speed consistent with administration * * *.” We quoted this with approval in School Board of City of Charlottesville v. Allen (County School Board of Arlingtоn County v. Thompson) 4 Cir., 240 F.2d 59, 64, where we said:

“It had been two years since the first decision of the Supreme Court in Brown v. Board of Education and, despite repeаted demands upon them, the boards of education had taken no steps towards removing the requirement of segregation in the schools which the Supreme Court had held violative of the constitutional rights ‍‌​​‌‌‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​​‌‌​​​​‌‌​​‌‌‌​​‍of the plaintiffs. This was not ‘deliberate speed’ in complying with the law as laid down by the Supreme Court but was clear manifestation of an attitude of intransigence, which justified the issuance of the injunctions to dispel the misapprehension of school authorities as to their obligations under the law and *465to bring about their prompt compliance with constitutional requirements as interpreted by the Supreme Court.”

In the case at bar the order entered on June 29, 1955, while finding that it was impracticable to place the schools on a nondiscriminatory basis before Sep-, tember 1955, enjoined the defendants “from refusing on aсcount of race or color to admit to any school under their supervision any child qualified to enter such school, from and aftеr such time as the defendants may have made the necessary arrangements for admission of children to such school ‍‌​​‌‌‌‌‌‌​​‌‌‌‌‌​‌‌‌​‌​‌​‌‌‌​​​​​‌‌​​​​‌‌​​‌‌‌​​‍on a nondiscriminatory basis with all deliberate speed as required by the decision of the Supreme Court in this cause.” More than a year and a half had elapsed after the entry of this order, the school year of 1955-56 had come and gone, another school year had been entered, and no steps had been taken to comply with the order. The time had unquestionably come to say plainly to the defendants that they must comply without further delay.

This does not mean that the defendants should require mixing of white and Negro children in the schools but merely that they should аbolish the requirement of discrimination. If the children of the different races should voluntarily attend different schools, this would not be violative of thе Constitution or of the court’s order, so long as there was no requirement of the school authorities to that effect. Furthermore, it would not be necessary for the requirement as to segregation to be removed at once with respect to all grades in the schools, if a reasonable start were made to that end with “deliberate speed” considering the problems of proper administration. Sеe order in the Arlington case, approved by this court, 240 F.2d at page 61, also Aaron v. Cooper, 8 Cir., 243 F.2d 361.

The fact that the schools might be closed if the order were enforced is nо reason for not enforcing it. A person may not be denied enforcement of rights to which he is entitled under the Constitution of the United States bеcause of action taken or threatened in defiance of such rights.

The order appealed from will accordingly be reversed and the case will be remanded to the court below with direction to enter an order directing defendants to make a prompt and reasonable start toward complying with the court’s order enjoining discrimination on the ground of race or color in admitting children to the schools under their supervision.

Reversed and remanded with directions.