The Fourth Circuit Review, Foreword

Washington and Lee Law Review Volume 44 | Issue 2 Article 6 Spring 3-1-1987 The Fourth Circuit Review, Foreword H. Emory Widener, Jr. Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Courts Commons Recommended Citation H. Emory Widener, Jr., The Fourth Circuit Review, Foreword, 44 Wash. & Lee L. Rev. 507 (1987), https://scholarlycommons.law.wlu.edu/wlulr/vol44/iss2/6 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . THE FOURTH CIRCUIT REVIEW FOREWARD H. EMORY WIDENER, JR.* From the the Fourth Circuit Review, it would appear that this has been another court year that can be described as inconsequential but extremely busy. We disposed of 2949 cases during that period. This means that, on the average, each judge, including those on senior status, was responsible for the preparation of 226 decisions. The cases reviewed in this survey suggest a lack of momentous rulings by the court during this period. Nevertheless, I will ad- dress my remarks to three of our decisions that, although unreviewed by the survey, are noteworthy. Two are cases of first impression, and the third affects one of the most deeply held human emotions, the love of parent and child. If any opinion I have expressed here diverges too much from my colleagues, I beg editorial license. I hope I may be excused from including Riddick, but the theme of this writing requires otherwise. More than thirty years after the Supreme Court ordered public school desegregation in Brown v. Board of Education' and fifteen years after the Court reaffirmed Brown's teaching and approved mandatory busing as a means of achieving such desegregation in Swann v. Charlotte-MecklenburgBoard of Education,I the federal courts were and are faced with a difficult but inevitable question. How long must federal courts supervise the activities of our nation's public school systems in order to ensure their continued desegregation? In 1986 the Fourth Circuit was called upon to decide this issue in Riddick v. School Board of City of Norfolk. Riddick represented the first time a federal court of appeals ruled upon a challenge to a student assignment plan for a school district which had historically practiced de jure segregation but had ridded itself of all vestiges of that past racial discrimination. Based on the facts in Riddick, federal court supervision of that student assignment plan was ended absent a showing by the plaintiffs of an intent to discriminate on the part of the school board.' Later in 1986, the Tenth Circuit decided a similar case but rejected our reasoning in Riddick.5 The Supreme Court denied cer6 tiorari in both cases. * Circuit Judge, United States Court of Appeals for the Fourth Circuit. 1. 346 U.S. 483 (1954). 2. 402 U.S. 1 (1971). 3. 784 F.2d 521 (4th Cir. 1986), cert. denied, 107 S.Ct. 420 (1986). 4. Riddick, 784 F.2d at 534-539. 5. Dowell v. Board of Education of Oklahoma, 795 F.2d 1516 (10th Cir. 1986), cert. denied, 107 S.Ct. 420 (1986). 6. 55 U.S.L.W. 3316 (1986). WASHINGTON AND LEE LAW REVIEW [Vol. 44:505 The plaintiffs in Riddick challenged the constitutionality of a new student assignment plan for the elementary schools in the City of Norfolk, Virginia. The school board had proposed the elimination of busing of elementary school students and the return to a neighborhood school plan with a transfer provision for minority students assigned to schools where minorities constitute 70% or more of its students. 7 Plaintiffs argued that adoption of such a plan was violative of their constitutional rights under the Fourteenth Amendment to the United States Constitution. The City of Norfolk, Virginia is not new to litigation involving racial segregation in its public school system. Prior to Brown, segregation of public schools in Norfolk and elsewhere in Virginia was required by state law.8 Litigation seeking the integration of Norfolk's public schools began in 1956 and continued in the district court until 1975.1 During this time, the Supreme Court decided in Swann that busing was a permissible method of remedying racial segregation in public Schools."° Following the Swann decision, cross-town busing was implemented in Norfolk's public school system which required the busing of both elementary and secondary school students to achieve integration. This court affirmed implementation of Norfolk's busing plan in 1972."1 After reviewing three annual reports made by the school board pursuant to court order, the district court in 1975 entered an order dismissing the desegregation litigation because racial discrimination had been eliminated from the Norfolk school system and the system had become unitary. 2 No appeal was taken from that order. No further legal action was taken regarding desegregation of Norfolk's public schools until the school board proposed the neighborhood school plan for elementary school students in 1983.11 The issues raised in Riddick represent a decision as to what effect should a finding that a school system is unitary have upon a constitutional challenge to proposed changes in the student assignment plan, and what procedure governs such a challenge to a student assignment plan for a school district that historically practiced de jure segregation but had obtained a valid judicial order that it had ridded itself of all vestiges of that discrimination. These were 7. Riddick, 784 F.2d at 526-527. 8. Id. at 524. Because such segregation was sanctioned by state law when Brown was decided, it was characterized as de jure racial segregation. Id. at 524, 534-35. Such school systems were placed on an "affirmative duty to 'effectuate a transition to a racially non-discriminatory school system.' " Keyes v. School Dist. No. 1, Denver, Col., 413 U.S. 189, 200 (1973), quoting Brown v. Board of Education, 349 U.S. 294 (1955) (Brown I1). Such school systems are contrasted with those in which racial segregation is said to exist defacto. In the later case the plaintiffs challenging school board action must prove an intent to discriminate on the board's part. Keyes, 413 U.S. at 208-209. 9. Riddick, 784 F.2d at 524-525. 10. Swann, 402 U.S. at 28. 11. Brewer v. School Board of the City of Norfolk, 456 F.2d 943 (4th Cir. 1972), cert. denied, 406 U.S. 933 (1972). 12. Riddick, 784 F.2d at 525. 13. Id. 1987] THE FOURTH CIRCUIT REVIEW issues of first impression for the courts of appeals. We agreed with the district court that once a school system had ridded itself of the vestiges of racial discrimination and had obtained a judicial ruling that it had become unitary, 4 the plaintiff is required to prove discriminatory intent on the part of the school board in order to succ (...truncated)