Opinion
No. 9898.
Argued May 31, 1965.
Decided July 30, 1965.
S.W. Tucker, Richmond, Va. (Henry L. Marsh, III, Richmond, Va., Victor J. Ashe, J. Hugo Madison, Norfolk, Va., Jack Greenberg and James M. Nabrit, III, New York City, on brief), for appellants.
Leonard H. Davis, City Atty., City of Norfolk (W.R.C. Cocke, Norfolk, Va., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and SOBELOFF, BRYAN and J. SPENCER BELL, Circuit Judges.
This appeal from an order approving a new plan for the operation of the Norfolk, Virginia school system, initially placed in effect for the school year 1963-1964, comes to us soon after our announcement of a succession of decisions which may affect the problem. Not only did the District Court have no opportunity to consider those decisions, but the briefs in this Court were prepared and filed before they were available to the attorneys. The consequence is that there are a number of factual situations in the Norfolk school case which are very hazy to us and, in light of our very recent further enunciation of those principles which seem to us controlling, the answer here is uncertain.
Bradley v. School Board of City of Richmond, Virginia, 4 Cir., 345 F.2d 310; Gilliam v. School Board of City of Hopewell, Virginia, 4 Cir., 345 F.2d 225; Bowditch v. Buncombe County Board of Education, 4 Cir., 345 F.2d 329; Nesbit v. Statesville City Board of Education, 4 Cir., 345 F.2d 333; Brown v. County School Board of Frederick County, 4 Cir., 346 F.2d 22; Wheeler v. Durham City Board of Education, etc., 4 Cir., 346 F.2d 768.
The appropriate course seems to be a remand of the case to the District Court for its further consideration in light of the more recent decisions in this and other courts. In that connection, if the issue is presented after further definition of the factual situation, the Court is directed to consider the appropriateness and the legal propriety of a mixture of freedom of choice in certain zones where the plaintiffs claim the population is residentially mixed as to races and the denial of that same freedom of choice in other zones which the plaintiffs allege contain racially homogeneous populations. The Court should also consider the propriety of superimposing the "at large" characteristics of the Booker T. Washington enrollment over the entire system while the other high schools serve separate geographical zones.
Vacated and remanded.