United States Court of Appeals Fourth Circuit

332 F.
2d 457
Avis M. PETTAWAY, Bettie L. Pettaway, Florence L.

Pettaway
and Leon S. Pettaway, infants, by Charles L.
Pettaway and Bessie W. Pettaway, their
father and mother and next
friends, et al., Appellants,
v.
COUNTY SCHOOL BOARD OF SURRY COUNTY,
VIRGINIA, et al., M. B.
Joyner, individually and as Division Superintendent of
Schools of Surry County, Virginia, Board of Supervisors of
Surry County, Virginia, et al., A. T. Sowder, County
Treasurer of Surry County, Virginia, State Board of
Education, and Woodrow W. Wilkerson, Superintendent of
Public Instruction, Appellees.
No. 9286.
United States Court of Appeals Fourth Circuit.

Argued April 27, 1964.
Decided May 25, 1964.
S. W. Tucker, Richmond, Va. (henry L. Marsh, III, Richmond, Va., on

brief), for appellants.
John F. Kay, Jr., Richmond, Va. (Willis W. Bohannan and Bohannan &
Marable, Petersburg, Va., and Denny, Valentine & Davenport, Richmond,
Va., on brief), for appellees County School Board and Division
Superintendent of Schools.
J. Segar Gravatt, Blackstone, Va. (Ernest W. Goodrich, Surry, Va., on
brief), for appellee Board of Supervisors.
Robert Y. Button, Atty. Gen. of Virginia, and R. D. McIlwaine, III, Asst.
Atty. Gen., on brief for appellees State Board of Education and
Superintendent of Public Instruction.
Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN,

BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.
HAYNSWORTH, Circuit Judge.
This appeal has been taken from an interlocutory order refusing a preliminary
injunction, with resulting delay in a hearing upon the merits. We affirm the
interlocutory order and remand the case forthwith in the interest of a hearing
and disposition of the case on the merits without further unnecessary delay.
Heretofore the School Board of Surry County, Virginia, operated three schools.
One of them, Surry School, caring for both elementary and high school grades,
was attended solely by white pupils. New Lebanon, an elementary school, and
the L. P. Jackson, an elementary and high school, were attended solely by
Negroes.
On June 24, 1963, however, the Virginia Pupil Placement Board ordered the
admission of the seven infant plaintiffs to Surry School, the one school in the
county theretofore attended by white pupils and by white pupils only.
Thereafter, mass meetings of parents of white pupils were held, as a result of

which an eleemosynary corporation known as the Surry County Educational
Foundation was organized for the purpose of operating a school on a tuition
basis. All of the white pupils, who otherwise would have attended Surry
School, applied to attend the new school of the Foundation and were accepted
for enrollment there. This left the Surry School with no prospective student
body, except the seven infant plaintiffs involved in this action.
The School Board then accepted the resignation of the teachers under contract
with it to teach at Surry School, and the teachers were employed by the
Foundation.
Thereafter the seven infant plaintiffs applied for enrollment in the school to be
operated by the Foundation. They were not accepted.
During the school year 1963-1964, therefore, the School Board operated the
New Lebanon and L. P. Jackson schools, attended solely by Negroes. Its Surry
School has been closed throughout the year. The Foundation has operated a
school attended solely by white pupils. So far as now appears, it has not used
any facilities of the School Board, except that it purchased from a dealer three
used school buses which the School Board had traded in for new ones. The
Foundation school charged tuition of $375 for an elementary pupil and $380
for a high school pupil. Such pupils were eligible for tuition grants in the
amounts, respectively, of $250 and $275.
8
The plaintiffs sought an interlocutory injunction, restraining the payment of

tuition grants to any resident of Surry County, to require the School Board to
open and operate the Surry School and to require the Board of Supervisors to
appropriate funds for the operation of public schools in an amount not less than
those appropriated for the previous school year.1
When this motion was heard by the District Court, it concluded, in light of our
decision in Griffin v. Board of Supervisors of Prince Edward County, 4 Cir.,
322 F.2d 332, that it should abstain until the Virginia Supreme Court of
Appeals should decide the case of County School Board of Prince Edward
County v. Griffin, then pending before that Court. The District Court entered an
order to that effect on September 30, 1963, but it tentatively set a date for a
hearing on the merits on December 3, 1963. The Virginia Supreme Court of
Appeals announced its decision in the Prince Edward County case on
December 2, 1963,2 at which time the stated purpose of the abstention order
was fully accomplished.
10
Though the plaintiffs could have proceeded to a hearing on the merits as early
as December 3, 1963, they made no effort to have the case disposed of on that
basis. In the meanwhile, they had filed a notice of appeal from the denial of
their motion for an interlocutory injunction, and they have since been absorbed
with that interlocutory appeal. They have made no effort to obtain a hearing on
the merits earlier than July next.
11
It is apparent that this was not a case for final disposition on the basis of a
motion for a preliminary injunction. The plaintiffs suggest that some officials
of the County had some hand in the formation of the Foundation, but ultimate
findings of the extent, if any, to which county officials controlled, or
influenced, formation of the Foundation and its subsequent operation of its
school ought to await a full hearing on the merits in which all of the facts may
be developed.
12
By the time this interlocutory appeal reached us, the end of the 1963-1964
school year was approaching. Months had gone by since December 2, 1963,
during which there was no further reason for the District Court to stay its hand
and postpone disposition of the case on the merits. If the case had been heard
on the merits on December 3, 1963, as scheduled, or at any reasonable time

thereafter, it could have been decided on the merits by the District Court and an
appeal, if necessary, could have been heard in the ordinary course of events by
this Court and disposed of well in advance of the opening of the 1964-1965
session. The plaintiffs' preoccupation with the prosecution of this appeal from
the interlocutory order and their indifference to a reasonably prompt hearing on
the merits put them in danger of having another school year go by while the
issues are still being debated in the courts. The danger will become assurance
unless someone makes some effort to expedite a hearing and disposition of the
case upon the merits.
13
In order to avoid any further unnecessary delay, the case will be remanded
forthwith to the District Court, so that, upon application of the plaintiffs, it may
promptly schedule a hearing on the merits at an early practicable date, and,
bearing in mind the swift passage of time, enter an order disposing of all issues
on the merits as soon thereafter as may be practicable.
14
In this connection, it is readily apparent that what the Supreme Court does and
says in the Prince Edward County case, now pending before it, may have
substantial effect upon similar issues in this case. We think, however, the
disposition of the case on the merits in the District Court need not await the
Supreme Court's decision in the Prince Edward County case. This case may be
substantially different. The plaintiffs' right to relief is dependent upon their
establishing as a fact that the operation of the Foundation school is state action
in the constitutional sense, or that they were otherwise denied the equal
protection of the laws when the withdrawal of all the white pupils from Surry
School was facilitated by the availability of tuition grants. While what the
Supreme Court does and says in the Prince Edward County case may be of help
to any court in considering this case, the pendency of the Prince Edward case,
now held under submission by the Supreme Court, furnishes no reason for
postponement of final resolution of the factual questions which underlie the
ultimate conclusions in this case.
15
We, therefore, perceive no reason why the District Court should not proceed,
upon a prompt application to it, to a reasonably prompt and expeditious hearing
and disposition on the merits of the issues presented in this case.
16
Affirmed and remanded for further proceedings.
The Board of Supervisors had reduced the appropriation of funds because of
the closure of Surry School. There is no suggestion that the appropriated funds
were insufficient for the efficient operation of New Lebanon and L. P. Jackson
schools
2
County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133
S.E.2d 565

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332 F.

Avis M. PETTAWAY, Bettie L. Pettaway, Florence L.

United States Court of Appeals Fourth Circuit.

S. W. Tucker, Richmond, Va. (henry L. Marsh, III, Richmond, Va., on

Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN,

Thereafter, mass meetings of parents of white pupils were held, as a result of

The plaintiffs sought an interlocutory injunction, restraining the payment of

on the merits on December 3, 1963, as scheduled, or at any reasonable time

Affirmed and remanded for further proceedings.

The Board of Supervisors had reduced the appropriation of funds because of

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