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APPENDIX B

PORTION OF PX-144-I

EFFECT OF STATE LAWS AND STEPS TO BE TAKEN

SHOULD A SCHOOL BE INTEGRATED

This memorandum is primarily concerned with chapter 9.1 of title 22 of the Code of Virginia, "Operation of Schools by State." This chapter has two articles, each of which is independent of the other. Section 22-188.5 provides that the making of an assignment and enrolling of a child in a school, either voluntarily or under court order, which would result in integration shall (1) automatically divest the local school authorities of all authority, power, and control over such school. (2) The school is closed and is removed from the public school system. (3) All authority, power, and control over the school, its principal, teachers, other employees, and all pupils enrolled or ordered to be enrolled is vested in the Commonwealth to be exercised by the Governor.

Section 22-188.6 provides that when the school is automatically closed it shall not be reopened as a public school until in the opinion of the Governor, and after investigation by him, he finds and issues an Executive order that (1) the reopening of the school will not disturb the peace and tranquility of the community, and (2) the assignment of pupils to the school could be accomplished without enforced or compulsory integration of the races, contrary to the wishes of any child enrolled therein or of his or her parents.

Section 22-188.7 provides that if after investigation the Governor concludes that the school cannot be reopened under the two conditions listed above, he has the authority. . such other changes as in his discretion may be necessary and desirable and needed to effect a reopening of the school. He may reassign the pupils to any other public schools in the locality, including the school in which a pupil was formerly enrolled if he deems it necessary to preserve order. The Governor shall give due consideration to the laws of the Commonwealth and the safety and welfare of the child in assigning and enrolling pupils.

Section 22-188.8 provides that if the school still cannot be reorganized and reopened, he can assign the pupils to other schools in the locality, and the Governor is authorized to make other facilities for the instruction of the children available, and to reassign teachers from the closed school.

Section 22-188.9 provides that if a school is closed and any of the pupils cannot be reassigned to another public school, then the Governor and the local authorities are authorized to make tuition grants available for the child to attend a private school.

Section 22-188.10 authorizes the Governor to supplement the appropriation made available to a political subdivision if necessary to carry out the provisions of this article with respect to assigning pupils to other schools.

Section 22-188.11 provides that whenever it is made to appear to the Governor that any school which has been closed can be reopened and operated with the public peace being maintained and not compulsory

or enforced integration, he is authorized to return the operation and control of the school to the local authorities.

Section 22-138.12 provides that notwithstanding any other provision to the contrary, any time the Governor concludes, or the school board, or board of supervisors, or city council certifies by resolution, that the school cannot be reopened, or reorganized and reopened in conformity with the provisions of the law, the Governor shall so proclaim and the school shall be returned to the locality, become a part of the public school system, and become subject to the laws of the State, including the provisions of the Appropriation Act.

The Governor, by section 22-188.13, is granted all necessary powers to carry out the provisions of the article. The State assumes the contractual obligations of the local school board with the principal, teachers, and employees of the school closed and, upon authorization of the Governor, they are to be paid by the State.

I am of the opinion that when the school is closed and taken out of the school system, this leaves the rest of the system of a particular locality free to continue to operate and to receive State funds. It is only when the Governor concludes, or the local school board or council certifies, that the school cannot be reopened in conformity with the provisions of law and the school is returned to the locality and to the public school system that the fund cutoff provision is applicable, and it is only applicable if the school is integrated.

Whenever article I, of chapter 9.1, comes into operation, it is obvious that the Governor cannot always personally take charge of the school property.

It is my suggestion that, whenever it is probable that the Governor will be required to assume control of any school due to it having become integrated, he explore the possibility of having the division superintendent of schools, or some other school official, represent him. If this is not deemed wise and feasible, the Governor can consider the advisability of alerting the superintendent of State police to the possibility of the school's being closed and have available at the school a sufficient number of State police. Immediately upon enrollment of a Negro child, the representative of the Governor (either the division superintendent or some other school official, or the superintendent of State police) shall assemble the student body and the faculty and read to them a statement prepared by the Governor. This statement would apprise the faculty and the student body that-by virtue of the powers vested in him by the general assembly-the Governor is assuming control of the school in question and directs the student body and the faculty to leave the school property, subject to further orders of the Governor. The Governor will then be in a position to determine whether or not it is necessary, in order to protect the property and to prevent any incidents, to maintain a contingent of police at the premises during the time the school is closed and he is attempting to have it reorganized and restored to the school system.

JOHNSON v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT

C-70 1331 SAW (N.D. Cal. 1971)

ORDER SETTING ASIDE SUBMISSION

On June 24, 1970, plaintiffs filed suit against the San Francisco Unified School District to enjoin racial discrimination claimed to exist in the public elementary schools. The complaint charges, among other things, discrimination against blacks in the following respects: Allocating resources, services, and facilities to various schools; hiring teachers; assigning teachers and administrators; drawing lines for attendance zones with an intent to foster segregation; building new schools, classrooms, and additions to old schools so as to perpetuate segregation; and knowingly and intentionally instituting programs which are unnecessarily discriminatory in effect.

Plaintiffs ask for injunctive relief ordering immediate and complete desegregation of student bodies, faculties and administrative personnel in the public elementary schools of San Francisco and ordering defendants to provide equal educational opportunities for all schoolchildren in those schools.

Defendants have denied these charges.1

On August 25, 1970, the parties in open court agreed that this case was ready for submission for final judgment. In permitting submission, the court announced that it would not hestitate thereafter to set aside the submission or to take any different action which would serve the ends of justice.

From what has been presented by the parties, it is clear that they agree that the Constitution of the United States guarantees children the right to equal educational opportunity. They agree, too, that providing equal educational opportunity demands solution of complex problems which vitally affect students, parents, teachers, school administrators and the community as a whole. While the parties disagree as to what means the law requires for provision of equal educational opportunity, it is clear that the following are some of the relevant questions which, sooner or later, must be answered.

1. Is approximate racial balance required in all schools?

2. Is busing required when it is the only practical means of correcting racial imbalance?

3. Can neighborhood attendance zones be preserved?

'While defendants do not deny that the San Francisco elementary schools are racially imbalanced, they do deny that the imbalance results from any fault or neglect on their part.

'Defendants have commendably undertaken a significant experiment-the Richmond complex-in the interest of finding ways to solve these problems.

4. Must new school construction be geared to promote racial balance?

5. Must teachers be hired on a basis of creating or promoting racial balance in their ranks?

6. Must teachers be assigned so that the teaching staff of each school is racially balanced?

7. Must school facilities be so equalized that innovations are required to be simultaneously introduced in all schools?

8. Do "tracking" systems deny equal educational opportunity! 9. Can the constitutional requirements for equal educational opportunity be met notwithstanding "de facto" segregation? While many courts throughout the country have dealt with these questions in decisions which reflect a wide variety of legal interpretation, none has been finally resolved by decision of the Supreme Court of the United States. However, it now appears that that will change relatively soon. The Supreme Court ordered argument to be heard on October 12, 1970, in six cases which present the following questions for decision.

May a State constitutionally ban the busing of students? 3 Does judicial prescription of racial balance in schools violate the 1964 Civil Rights Act? +

Does a county attendance plan for elementary schools unconstitutionally discriminate by permitting some students to attend schools near their residences while requiring others to attend more distant schools? 5

Are black students denied equal protection by continued assignment to segregated black schools despite the existence of a feasible alternative plan of assignment which would result in complete desegregation?"

May a State court prohibit school authorities from requiring any student to attend a particular school because of his race? 7

Since the Supreme Court has provided for such early hearing of the cases presenting the foregoing questions and since this augurs decisions well before the start of the next school year in the San Francisco elementary schools, it would be less than wise or just for this court now to act on the basis of its assumptions as to what the Supreme Court will shortly decide. Such action at this time might result in issuance

Moore v. Charlotte-Mecklenburg Bd. of Educ., appeal docketed, 39 U.S.L.W. 3079 (July 23, 1970) (No. 444): North Carolina State Bd. of Educ. v. Swann. appeal docketed, 39 U.S.L.W. 3067 (August 4, 1970) (No. 498). The disposition of these cases is especially relevant to the instant case in light of the recent California statute Assembly Bill No. 551, as amended in Assembly. April 30, 1970 (adding § 1009.5 to the Calif. Educ. Code), providing that: "No governing board of a school district shall require any student or pupil to be transported for any reason without written permission of the parent or guardian."

Charlotte-Mecklenburg Bd. of Educ. v. Swann, petition for cert. filed, 29 U.S.L.W. 3052 (July 2, 1970) (No. 349); McDaniel v. Barresi, petition for cert. filed, 39 U.S.L.W. 3079 (July 20, 1970) (No. 420).

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McDaniel v. Barresi, petition for cert. filed, 39 U.S.L.W. 3079 (July 20, 1970) (No. 420).

Davis v. Mobile Co. Bd. of School Commissioners, petition for cert. filed, 39 U.S.L.W. 3079 (July 23, 1970) (No. 436).

Moore v. Charlotte-Mecklenburg Bd. of Educ., appeal docketed, 39 U.S.L.W. 3079 (July 23, 1970) (No. 444).

of injunctive orders calling for costly and complicated dislocation, in midterm, of the current operation of the San Francisco elementary schools. Moreover, what this court might now order could turn out to be at variance with requirements which may be laid down by the U.S. Supreme Court. In other words, what this court might presently order could be less than the Supreme Court may shortly decide to be required or, for that matter, more.

Under these circumstances, commonsense and good law unite in impelling this court to await the determinations of the Supreme Court which will be binding upon it. And that time, this court should be able to act with greater certitude and, therefore, with greater fairness to all concerned.

This decision to postpone judgment should not be misinterpreted. Defendants should prepare themselves to be ready promptly to meet whatever requirements may be delineated by the Supreme Court of the United States. Once the Sureme Court has laid down the law, no person or agency bound by that law, nor any court, can be permitted delay in conforming to the legal requirements.

It would appear, therefore, that defendants would do well promptly to develop plans calculated to meet the different contingencies which can reasonably be forecast. If, for example, the board of education works out details for maximum changes based upon the assumption that the Supreme Court will require them, the board will then be able to act effectively, in case of need, without causing confusion and with a minimum of unnecessary dislocation. Should the decisions of the Supreme Court not require such substantial changes, the board and those connected with it will at least have made what ought to be productive studies of various means for promoting equality of educational opportunity.

For all of the foregoing reasons, the order of submission heretofore made is hereby set aside. The court retains jurisdiction to take such further action at any time as it may deem necessary to provide for compliance with the Constitution and laws of the United States. STANLEY A. WEIGEL,

Judge.

DATED: SEPTEMBER 22, 1970.

MEMORANDUM AND ORDER

REQUIRING THE PARTIES TO FILE PLANS FOR SCHOOL DESEGREGATON

Seven months ago, on September 22, 1970, this court decided that justice in this case would best be served by postponing definitive action until after the Supreme Court of the United States decided six cases then pending before it. Last week, the six decisions were handed down. Each decision was unanimous.

1 Swann v. Charlotte-Mecklenburg Bd. of Educ., 39 U.S.L.W. 4437 (U.S. April 20, 1971) Charlotte-Mecklenburg Bd. of Educ. v. Swann, 39 U.S.L.W. 4437 (U.S. April 20, 1971); Davis v. Board of School Commissioners, 39 U.S.L.W. 4447 (U.S. April 20. 1971); North Carolina State Bd. of Educ. v. Swann, 39 U.S.L.W. 4449 (U.S. April 20, 1971); McDaniel v. Barresi, 39 U.S.L.W. 4450 (U.S. April 20, 1971): Moore v. Charlotte-Mecklenburg Bd. of Educ., 39 U.S.L.W. 4451 (U.S. April 20, 1971).

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