Fourth Circuit Court Opinion from The United States Law Week

    36 LW 4476 5-28-68 
  

conscript manpower for military service is ‘beyond 

guestion.’” This is undoubtedly true in times when, 

by declaration of Congress, the Nation is in a state of 

war. The underlying and basic problem in this case, 

“however, is whether conscription is permissible in the 

absence of a declaration of war.* That question has not 

been briefed nor was it presented in oral argument; but 

© it is, I submit, a question upon which the litigants and 

the country are entitled to a ruling. I have discussed 

in Holmes v. United States, post, p. —, the nature of 

the legal issue and it will be seen from my dissenting 

opinion in that case that this Court has never ruled on 

the question. It is time that we made a ruling. This 

case should be put down for reargument and heard with 

Holmes v. United States and with Hart v. United States, 

post, p. — in which the Court today denies certiorari. 

The rule that this Court will not consider issues not 

raised by the parties is not inflexible and yields in “excep- 

tional cases” (Duignan v. United States, 274 TU. S. 195, 

200). to the need correctly to decide the case before 

the court. E. g., Erie R. Co. v. Tompkins, 304 U. S. 64; 

Terminiello v. Chicago, 337 U. S. 1. 

In such a case it is not unusual to ask for reargument. 

(Sherman v. United States, 356 U. S. 369, 379, n. 2, Frank- 

furter, J., concurring) even on a constitutional question 

not raised by the parties. In Abel v. United States, 

362 U. S. 217, the petitioner had conceded that an admin- 

istrative deportation arrest warrant would be valid for 

"its limited purpose even though not supported by 

a sworn affidavit stating probable cause; but the Court 

ordered reargument on the question whether the war- 

rant had been ‘validly issued in petitioner's case. 362 

U.S, at 219, n. 1; U. S. Sup. Ct. Journal, October Term, 

1958, p. 193. In Lustig v. United States, 338 U. S. 74, 

the petitioner argued that an exclusionary rule should 

apply to the fruit of an unreasonable search by state 

officials solely because they acted in concert with federal 

officers (see Weeks v. United States, 232 U. S. 383; Byars 

v. United States, 273 U. S. 28). The Court ordered 

reargument on the question raised in a then pending 

case, Wolf v. Colorado, 338 U. S. 25: applicability of 

the Fourth Amendment to the States. Journal, October 

Term, 1947, p. 298. In Donaldson v. Read Magazine, 

333 U. S. 178, the only issue presented, according to 
both parties, was whether the record contained sufficient 

*Neither of the decisions cited by the majority for the propo- 

sition that Congress’ power to conscript men into the armed services 

is “ ‘beyond question’ ” concerns peacetime conscription. As I have 

shown in my dissenting opinion in Holmes v. United States, post, 

p. —, the Selective Drajt Law Cases, 245 U. 8. 366, decided in 

1918, upheld the constitutionality of a conseription act passed by 

Congress more than a month after war had been declared on the 

German Empire and which was then being enforced in time of 

war. Lichter v. United States, 334 U. S. 742, concerned the con- 

stitutionality of the Renegotiation Act, another wartime measure, 
enacted by Congress over the period of 1942-1945 (id. at 745, 

n. 1) and applied in that case to excessive war profits made in 

1942-1943 (id. at 753). War had been declared, of course, in 1941 

(55 Stat. 795). The Court referred to Congress’ power to raise 

“armies in discussing the “hackground” (ibid.) of the Renegotiation 

Act, which ir upheld as a valid exercise of the War Power. 

The United States LAW WEEK 

evidence of fraud to uphold an order of the Postmaster 

General. Reargument was ordered on the constitutional 

issue of abridgment of First Amendment freedoms. 333 

U. S., at 181-182; Journal, October Term, 1947, p. 70. 

Finally, in Musser v. Utah, 333 U. S. 95, 96, reargument 

was ordered on the question of unconstitutional vague- 

ness of a criminal statute, an issue not raised by the 

parties but suggested at oral argument by Justice Jack- 

son. Journal October Term, 1947, p. 87. 

These precedents demonstrate the appropriateness of 

restoring the instant case to the calendar for reargument 

on the question of the constitutionality of a peacetime 

draft and having it heard with Holmes v. United States: 

and Hart v. United States. 

ERWIN N. GRISWOLD, Solicitor General (FRED M. VINSON, JR., 
Assistant Attomey General, FRANCIS X. BEYTAGH, JR., Assistant 

to the Solicitor General, BEATRICE ROSENBERG and JEROME M. 
FEIT, Justice Dept. attormeys, with him on the brief) for petitioner 

in No. 232 and respondent in No. 233; MARVIN K. KARPATKIN, 

New York, N.Y. (HOWARD S. WHITESIDE, MELVIN L. WULF, 

WILLIAME. CRAIN, RHODA H. KARPATKIN, HENRY P. MONAGHAN, 

ELEANOR HOLMES NORTON, HENRY M. DI SUVERO, and ROBERT 

S. ROBBIN, with him on the brief) for respondent in No. 232 and 

petitioner in No. 233; JAMES D. ST. CLAIR, ABRAHAM GOLD- 

STEIN, WILLIAM P. HOMANS, JR., EDWARD BARSHAK, TELFORD 

TAYLOR, and LEONARD B. BOUDIN filed brief for William Solane 

Coffin, Jr., Michael Ferber, Mitchell Goodman, Marcus Raskin, an 

Benjamin Spock, as amici curiae. ! 

No. 695.—OcroBer TERM, 1967. 

  

Charles C. Green et al) 
v. On Writ of Certiorari to the 

County School Board off United States Court of Ap- 

New Kent County, peals for the Fourth Circuit. 

Virginia, et al.   
[May 27, 1968.] 

Mk. Justice Brennan delivered the opinion of the 

Court. 

The question for decision is whether, under all the cir- 

cumstances here, respondent School Board's adoption of 

a “freedom-of-choice” plan which allows a pupil to choose 

his own public school eonstitutes adequate compliance 

with the Board's responsibility “to achieve a system of 

determining admission to the public schools on a non- 

racial basis . . . .” Brawn v. Board of Education, 349 

U. S. 294, 300-301 (Brown II). 

Petitioners brought this action in March 1965 seeking 

injunctive relief against respondent’s continued main- 

tenance of an alleged raeially segregated school systema. 

New Kent County is a rural county in Eastern Virginia. 

About one-half of its population of some 4,500 are 

Negroes. There is no residential segregation in the 

county; persons of both races reside throughout. The 

school system has only two schools, the New Kent school 

on the east side of the county and the George W. Watkins 

school on the west side. In a memorandum filed May 17, 

1966, the District Court found that the “school system 

serves approximately 1,300 pupils, of which 740 are Negro 

and 550 are white. The School Board operates one white 

combined elementary am high school [New Kent], and 

one Negro combined elermentary and high school [George 

W. Watkins]. There are no attendance zones. Each 

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5-28-68 The United States LAW WEEK 36 LW 4477 
  

school serves the entire county.” The record indicates 
that 21 school buses—11 serving the Watkins school and 
10 serving the New Kent school—travel overlapping 
routes throughout the county to transport pupils to and 
from the two schools. 

- The segregated system was initially established and 
maintained under the compulsion of Virginia constitu- 
tional and statutory provisions mandating racial segre- 
gation in public education, Va. Const., Art. IX, § 140 
(1902); Va. Code § 22-221 (1950). These provisions were 
held to violate the Federal Constitution in Davis v. 
County School Board of Prince Edward County, decided 
with Brown v. Board of Education, 347 U. S. 483, 487 
(Brown I). The respondent School Board continued 
the segregated operation of the system after the Brown 
decisions, presumably on the authority of several statutes 
enacted by Virginia in resistance to those decisions. 
Some of these statutes were held to be unconstitutional 
on their face or as applied.* One statute, the Pupil Place- 
ment Act, Va. Code §22-232.1 et seq. (1964), not re- 
pealed until 1966, divested local boards of authority to 
assign children to particular schools and placed that 
authority in a State Pupil Placement Board. Under that 
Act children were each year automatically reassigned to 
the school previously attended unless upon their applica- 
tion the State Board assigned them to another school; 
students seeking enrollment for the first time were also 
assigned at the discretion of the State Board. To Sep- 
tember 1964, no Negro pupil had applied for admission 
to the New Kent school under this statute and no white 
pupil had applied for admission to the Watkins school. 

The School Board initially sought dismissal of this 
suit on the ground that petitioners had failed to apply 
to the State Board for assignment to New Kent school. 

. However on August 2, 1965, five months after the. suit 
was brought, respondent School Board, in order to remain 
eligible for federal financial aid, adopted a “freedom-af- 
choice” plan for desegregating the schools.? Under that 

  

1E. g., Griffin v. County School Board of Prince Edward County, 
377 U. 8. 218; Green v. School Board of City of Roanoke, 304 F. 2d 
118 (C. A. 4th Cir. 1962); Adkins v. School Board of City of New- 

“port News, 148 F. Supp. 430 (D.C. E. D. Va.), aff’d, 246 F. 2d 325 
(C. A. 4th Cir. 1957); James v. Almond, 170 F. Supp. 331 (D. C. 

-E. D. Va. 1959); Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636 
1959). 

! 2 oo concerned with the lack of progress in school desegre- 
gation, included provisions in the Civil Rights Act of 1964 to deal 
with the problem through various agencies of the Federal Govern- 
ment. 42 U. S. C. §§2000c et seq., 2000d et seq. 2000h-2. In 
Title VI Congress declared that 

“No person in the United States shall, on the ground of race, 
color, or national origin, be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any program 
or activity receiving Federal financial assistance” 42 U. 8S. C. 
§ 2000d. 

The Department of Health, Education, and Welfare issued regula- 
tions covering racial discrimination in federally aided school systems, 
as directed by 42 U. 8. C. §2000d-1, and in a statement of policies, 
or “guidelines,” the Department's Office of Education established 
standards according to which school systems in the process of deseg- 
regation can remain qualified for federal funds. 45 CFR $8 80.1- ’ = 

plan, each pupil may annually choose between the New 
Kent and Watkins schools and, except for the first and 
eighth grades, pupils not making a choice are assigned 

to the school previously attended; first and eighth grade 
pupils must affirmatively choose a school. ~ After the plan 
was filed the District Court denied petitioner’s prayer 
for an injunction and granted respondent leave to submit 
an amendment to the plan with respect to employment 
and assignment of teachers and staff on a racially nondis- 
criminatory basis. The amendment was duly filed and 
on June 28, 1966, the District Court approved the “free- 
dom-of-choice” plan as so amended. The Court of Ap- 
peals for the Fourth Circuit, en banc, 382 F. 2d 326, 338.2 
affirmed the District Court’s approval of the “freedom-of- 
choice” provisions of the plan but remanded the case to 
the District Court for entry of an order regarding faculty 
“which is much more specific and more comprehensive” 
and which would incorporate in addition to a “minimal, 
objective time table” some of the faculty provisions of the 
decree entered by the Court of Appeals for the Fifth Cir- 
cuit in United States v. Jefferson County Board of Educa- 
tion, 372 F. 2d 836, aff'd en banc, 380 F. 2d 385 (1967). 
Judges Sobeloff and Wimters concurred with the remand 
on the teacher issue but otherwise disagreed, expressing 
the view “that the District Court should be directed . . . 
also to set up procedures for periodically evaluating the 
effectiveness of the [Board's] ‘freedom of choice’ [plan] 
in the elimination of other features of a segregated school 
system.” 382 F. 2d, at 330. We granted certiorari, 
389 U. S. 1003. 

The pattern of separate “white” and “Negro” schools 
in the New Kent County school system established under 
compulsion of state laws is precisely the pattern of segre- 
gation to which Brown I and Brown II were particularly 
addressed, and which Brown I declared unconstitution- 
ally denied Negro school children equal protection of the 
laws. Racial identification of the system’s schools was 
complete, extending net just to the composition of stu- 
dent bodies at the twa schools but to every facet of school 
operations—faculty, staff, transportation, extracurricular 
activities and facilities. In short, the State, acting 
through the local school board and school officials, orga- 
nized and operated a dual system, part “white” and part 
“Negro.” 

It was such dual systems that 14 years ago Brown I 
held unconstitutional and a year later Brown II held 
  
  

80.13, 181.1-181.76 (1967). “Freedom-of-choice” plans are among 
those considered acceptable, so long as in operation such a plan proves 
effective. 45 CFR § 181.54. The regulations provide that a school 
system “subject to a final order of a court of the United States for 
the desegregation of such sehool . . . system” with which the system 
agrees to comply is deemed to be in compliance with the statute 
and regulations. 45 CFR $80.4 (¢). See also 45 CFR § 181.6. 
See generally Dunn, Title VI, the Guidelines and School Desegrega- 
tion in the South, 53 Va. L. Rev. 42 (1967); Note, 55 Geo ' L. J 
325 (1966); Comment, 77 Yale L. J. 321 (1967). 

8 This case was decided per curiam on the basis of the opinion in 
Bowman v. County School Board of Charles City County, 382 F. 
2d 326, decided the same day. Certiorari has not been sought for 
the Bowman case itself. 

 



  

36 LW 4478 The United States LAW WEEK 5-28-68 

  

must be abolished: school boards operating such school 

systems were required by Brown II “to effectuate a 

transition to a racially nondiscriminatory school system.” 

349 U. S., at 301. It is of course true that for the time 

immediately after Brown II the concern was with making 

an initial break in a long-established pattern of excluding 

"Negro children from schools attended by white children. 

The principal focus was on obtaining for those Negro 

children courageous enough to break with tradition a 

place in the “white” schools. See, e. g., Cooper v. Aaron, 

358 U. S. 1. Under Brown II that immediate goal was 

only the first step, however. The transition to a unitary, 

nonracial system of public education was and is the 

ultimate end to be brought about; it was because of the 

“complexities arising from the transition to a system of 

public education freed of racial discrimination” that we 

provided for “all deliberate speed” in the implementation 

of the principles of Brown I. 349 U. S., at 299-301. 

Thus we recognized the task would necessarily involve 

solution of “varied local school problems.” Id., at 299. 

In referring to the “personal interest of the plaintiffs in 

admission to public schools as soon as practicable on a 

- nondiscriminatory basis,” we also noted that “[t]o effec- 

tuate this interest may call for elimination of a variety 

of obstacles in making the transition ....” Id., at 300. 

Yet we emphasized that the constitutional rights of 

Negro children required school officials to bear the burden 

of establishing that additional time to carry out the 

ruling in an effective manner “is necessary in the public 

interest and is consistent with good faith compliance at 

the earliest practicable date.” Ibid. We charged the 

district courts in their review of particular situations to 

“consider problems related to administration, arising 

from the physical condition of the school plant, the 

school transportation system, personnel, revision of 

school districts and attendance areas into compact 

units to achieve a system of determining admission 

to the public schools on a nonracial basis, and revi- 

sion of local laws and regulations which may be 

necessary in solving the foregoing problems. They 

will also consider the adequacy of any plans the 

defendants may propose to meet these problems and 

to effectuate a transition to a racially nondiscrim- 

inatory school system.” Id., at 300-301. 

It is against this background that 13 years after 

Brown II commanded the abolition of dual systems we 

must measure the effectiveness of respondent School 

Board's “freedom-of-choice” plan to achieve that end. 

The School Board contends that it has fully discharged 

 jts obligation by adopting a plan by which every student, 

regardless of race, may “freely” choose the school he will 

attend. The Board attempts to cast the issue in its 

broadest form by arguing that its “freedom-of-choice” 

plan may be faulted only by reading the Fourteenth 

Amendment as universally requiring “compulsory inte- 

gration,” a reading it insists the wording of the Amend- 

ment will not support. But that argument ignores the 

thrust of Brown II. In the light of the command of 

that case, what is involved here is the question whether 

the Board has achieved the “racially nondiseriminatory 

school system” Brown II held must be effectuated in order 

to remedy the established unconstitutional deficiencies of 

its segregated system. In the context of the state- 

imposed segregated pattern of long standing, the fact 

that in 1965 the Board opened the doors of the former 

“white” school to Negro children and of the “Negro” 

school to white children merely begins, not ends, our 

inquiry whether the Board has taken steps adequate to 

abolish its dual, segregated system. Brown II was a 

call for the dismantling of well-entrenched dual systems | 

“tempered by an awareness that complex and multifaceted 

problems would arise which would require time and flex- 

ibility for a successful resolution. School boards such as 

the respondent then operating state-compelled dual sys- 

tems were nevertheless clearly charged with the affirma- 

tive duty to take whatever steps might be necessary to 

“convert to a unitary system in which racial discrimina: 

“tion would be eliminated root and branch. See Cooper 

  

Vv. Aaron, supra, at 7; Bradley v. School Board, 382 U. S.: 

103; cf. Watson v. City of Memphis, 373 U.S. 523. The 

constitutional rights of Negro school children articulated 

in Brown I permit no less than this; and it was to this 

end that Brown II commanded school boards to bend 

their efforts. : : 

In determining whether respondent School Board met 

that command by adopting its “freedom-of-choice” plan, 

it is relevant that this first step did not come until some 

11 years after Brown I was decided and 10 years after 

Brown II directed the making of a “prompt and reason- 

able start.” This deliberate perpetuation of the uncon- 

stitutional dual system can ‘only have compounded 

the harm of such a system. Such delays are no longer 

tolerable, for “the governing constitutional principles no 

longer bear the imprint of newly enunciated doctrine.” 

Watson v. City of Memphis, supra, at 529; see Bradley v. 

School Board, supra; Rogers v. Paul, 382 U. S. 198. 

Moreover, a plan that at this late date fails to provide 

meaningful assurance of prompt and effective disestab- 

lishment of a dual system is also intolerable. “The time 

“For mere ‘deliberate speed’ has run out,” Griffin v. County 

School Board, 377 U. S. 218, 234; “the context in which 

we must interpret and apply this language [of Brown II] 

to plans for desegregation has been significantly altered.” 

Goss v. Board of Education, 373 U. S. 683, 639. See 

Calhoun v. Latimer, 377 U. 8. 263. The burden on a 

school board today is to come forward with a plan that 

+ “We bear in mind that the court has not merely the power but 

the duty to render a decree which will so far as possible eliminate 

the discriminatory effects of the past as well as bar like discrimina- 

tions in the future.” . Louisiana v. United States. 380 U. S. 145, 

154. Compare the remedies discussed in, e. g., NLRB v. Newport 

News Shipbuilding & Dry Dock Co., 308 U. S. 241; United States v. 

Crescent Ameusement Co., 323 U. S. 173; United States v. Standard 

Oil Co., 221 U. 8. 1. See also Griffin v. County School Board, 377 

TU. S. 218, 232-234. 

  

 



  

» Ll 

5.28-68 The United States LAW WEEK 36 LW 4479 

  

Eau promises realistically to work, and promises realistically 

Sr oy 

i % 
i 

to work now. 

The obligation of the district courts, as it always has 

been, is to assess the effectiveness of a proposed plan in 

achieving desegregation. There is no universal answer 

to complex problems of desegregation; there is obviously 

no ore plan that will do the job in every case. The 

matter must be assessed in light of the circumstances 

present and the options available in each instance. 

is incumbent upon the school board to establish that its 

proposed ‘plan promises meaningful and immediate 

“progress toward disestablishing state-imposed segregation. 

“It is incumbent upon the district court to weigh that 

claim in light of the facts at hand and in light of any 

alternatives which may be shown as feasible and more 

promising in their effectiveness. Where the court finds 

the board to be acting in good faith and the proposed 

plan to have real prospects for dismantling the state- 

imposed dual system “gt the earliest practicable date,” 

“then the plan may be said to provide effective relief. Of 

“eourse, where other, more promising courses of action are 

“open to the board, that may indicate a lack of good faith; 

“and at the least it places a heavy burden upon the board 

. to explain its preference for an apparently less effective 

method. Moreover, whatever plan is adopted will re- 

"quire evaluation in practice, and the court should retain 

jurisdiction until it is clear that state-imposed segregation 

has been completely removed. See No. 805, Raney v. 

Board of Education, post, at p. 5. 

~~ We do not hold that “freedom of choice” can have no 

place in such a plan. We do not hold that a “freedom- 

of-choice” plan might of itself be unconstitutional, al- 

though that argument has been urged upon us. Rather, 

all we decide today is that in desegregating a dual system 

"a plan utilizing “freedom of choice” is not an end in itself. 

"As Judge Sobeloff has put it, 

« Freedom of choice’ is not a sacred talisman; 

it is only a means to a constitutionally required 

end—the abolition of the system of segregation and 

its effects. If the means prove effective, it is ac- 

ceptable, but if it fails to undo segregation, other 

means must be used to achieve this end. The school 

officials have the continuing duty to take whatever 

action may be necessary to create a ‘unitary, non- 

racial system.”” Bowman v. County School Board, 

382 F. 2d 326, 333 (C. A. 4th Cir. 1967) (concurring 

opinion). Accord, Kemp v. Beasley, 389 F. 2d 178 

(C. A. 8th Cir. 1968); United States v. Jefferson 

County Board of Education, supra. 

Although the general experience under “freedom of 

choice” to date has been such as to indicate its ineffective- 

ness as a tool of desegregation,’ there may well be in- 

  

5The views of the United States Commission on Civil Rights, 

which we neither adopt nor refuse to adopt, are as follows: 

“Freedom of choice plans, which have tended to perpetuate racially 

identifiable schools in the Southern and border States, require 

affirmative action by both Negro and white parents and pupils 

before such disestablishment ean be achieved. There are a number 

stances in which it ean serve as an effective device. 

~—¥here it offers real promise of aiding a desegregation 

program to effectuate conversion of a state-imposed dual 

system to a unitary, monracial system there might be no 

objection to allowing such a device to prove itself in 

operation. On the atther hand, if there are reasonably 

available other ways. such for illustration as zoning, 

promising speedier amd more effective conversion to a 

“unitary, nonracial sehool system, “freedom of choice” 

"must be held unacceptable. 

The New Kent School Board's “freedom-of-choice” 

plan cannot be accepted as a sufficient step to “effectuate 

a transition” to a unitary system. In three years of oper- 

ation not a single white child has chosen to attend Wat- 

kins school and although 115 Negro children enrolled 

in New Kent school #n 1967 (up from 35 in 1965 and 111 

in 1066) 85% of the Negro children in the system still 

attend the all-Negre Watkins school. In other words, 

the school system resnains a dual system. Rather than 

further the dismantBing of the dual system, the plan has 

operated simply to burden children and their parents 

with a responsibility which Brown II placed squarely on 

the School Board. The Board must be required to for- 

mulate a new plan and, in light of other courses which 

appear open to the Board. such as zoning,’ fashion steps 

  
  

of factors which have pmeevented such affirmative action by substan- 

tial numbers of parents mnd pupils of both races: 

“(a) Fear of retaliation and hostility from the white community 

continue To deter many Negro families from choosing formerly all- 

white schools; : 

“(b) During the past school year [1966-1967], as in the previous 

year, in some areas of the South, Negro families with children attend- 

ing previously all-white: schools under free choice plans were targets 

of violence, threats of 'wiolence and economic reprisals by white 

persons and Negro children were subjected to harassment by white 

classmates notwithstandimg conscientious efforts by many teachers 

and principals to prevent such misconduct; 

“(¢) During the pasit school year, in some areas of the South 

public officials improperly influenced Negro families to keep their 

children in Negro sehaols and excluded Negro children attending 

formerly all-white schesls from official functions; ; 

“(d) Poverty deters many Negro families in the South from 

choosing formerly all-white schools. Some Negro parents are em- 

barrassed to permit tfwir children to attend such schools without 

suitable clothing. Im some districts special fees are assessed for 

courses which are availible only in the white schools; 

“(e) Improvements: in facilities and equipment . . . have been 

instituted in all-Negre schools in some school districts in a manner 

that tends to discourazze Negroes from selecting white schools.” 

Southern School Deseggregation, 1966-1967, at 88 (1967). See id. 

at 45-69; Survey of ‘School Desegregation in the Southern and 

Border States 1065-1956, at 30-44, 51-52 (U. S. Comm'n on Civil 

Rights 1966). 

6 “In view of the situation found in New Kent County, where 

there is no residential segregation, the elimination of the dual school 

system and the establishment of a ‘unitary, non-racial system’ could 

be readily achieved wsith a minimum of adminixtrative difficulty by 

means of geographie zoning—simply by assigning students living 

in the eastern half of #he county to the New Kent School and those 

living in the westerm ‘half of the county to the Watkins School. 

Although a geograplaieal formula is not universally appropriate, it 

is evident that here the Board, by separately busing Negro children 

E
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36 LW 4480 5-28-68 
  

which promise realistically to convert promptly to a 

system without a “white” school and a “Negro” school, 

but just schools. ; 

The judgment of the Court of Appeals is vacated inso- 

far as it affirmed the District Court and the case is 

remanded to the District Court for further proceedings 

consistent with this opinion. 
It 1s so ordered. 

S. W. TUCKER, Richmond, Va. (JACK GREENBERG, JAMES M. 
NABRIT, III, FRANKLIN E. WHITE, MICHAEL MELTSNER, and 
MICHAEL J. HENRY, with him on the brief) for petitioners; FRED- 
ERICK T. GRAY, Richmond, Va. (WALTER E. ROGERS, ROBERT 
E. EICHER, WILLIAMS, MULLEN & CHRISTIAN, ROBERT Y. 
BUTTON, Attorney General of the State of Virginia, and ROBERT 
D. McILWAINE, III, First Assistant Attorney General, with him on 
the brief) for respondents; HOWARD M. SQUADRON, JOSEPH B. 
ROBISON, LESTER GREENBERG, and ALEXANDER KOL BEN 

filed brief for American Jewish Congress, as amicus curiae, seek- 
ing reversal; ERWIN N. GRISWOLD, Solicitor General, STEPHEN 

J. POLLAK, Assistant Attorney General, LOUIS F. CLAIBORNE 
and LAWRENCE G. WALLACE, Assistants to the Solicitor Gener- 

al, and BRIAN K. LANDSBERG, Justice Dept. attomey, filed brief 
for the United States, as amicus curiae, seeking reversal. 

No. 740.—OctoBer TERM, 1967. 

  

Brenda K. Monroe et al, ) 

Petitioners, 
v. 

Board of Commissioners of the 

City of Jackson, Tenn., et al. 

On Writ of Certiorari 

to the United States 
Court of Appeals for 

the Sixth Circuit.   
[May 27, 1968.] 

+ Mg. Justice BRENNAN delivered the opinion of the 

Court. 

This case was argued with No. 695, Green v. County 
School Board of New Kent County, ante, p. —, and 
No. 805, Raney v. Board of Education of the Gould 
School District, ante, p. —. The question for decision 
is similar to the question decided in those cases. Here, 

however, the principal feature of a desegregation plan— 
which calls in question its adequacy to effectuate a 
transition to a racially nondiscriminatory system in com- 
pliance with Brown v. Board of Education, 349 U. S. 294 
  

  

across the entire county to the ‘Negro’ school, and the white children 

to the ‘white’ school, is deliberately maintaining a segregated system 

which would vanish with non-racial geographic zoning. The con- 

ditions in this county present a classical case for this expedient.” 

Bowman v. County School Board, supra, n. 3, at 332 (concurring 

- opinion). 

Petitioners. have also suggested that the Board could consolidate 

the two schools, one site (e. g., Watkins) serving grades 1-7 and 

the other (e. g., New Kent) serving grades 8-12, this being the 

grade division respondent makes between elementary and secondary 

levels. Petitioners contend this would result in a more efficient 

system by eliminating costly duplication in this relatively small dis- 

trict while at the same time achieving immediate dismantling of the 

dual system. 
These are two suggestions the District Court should take into 

‘account upon remand, along with any other proposed alternatives 

and in light of considerations respecting other aspects of the school 

system such as the matter of faculty and staff desegregation 

remanded to the court by the Court of Appeals. 

The United States LAW WEEK 

(Brown II)—is not “freedom of choice” but a variant 

commonly referred to as “free transfer.” 

The respondent Board of Commissioners is the School 

Board for the City of Jackson, located in midwestern 

Tennessee. The school district coincides with the city 
limits. Some one-third of the city’s population of 40,000 

are Negroes, the great majority of whom live in the city’s 

central area. The school system has eight elementary 

schools, three junior high schools, and two senior high 

schools. There are 7,650 children enrolled in the system’s 

schools, about 40% of whom, over 3,200, are Negroes. 
In 1954 Tennessee by law required racial segrega- 

tion in its public schools. Accordingly, five elementary 

schools, two junior high schools, and one senior high 

school were operated as “white” schools, and three ele- 
mentary schools, one junior high school, and one senior 
high school were operated as “Negro” schools. Racial 
segregation extended to all aspects of school life including 

faculties and staffs. 
After Brown v. Board of Education, 347 U. S. 483 

(Brown I), declared such state-imposed dual systems 
unconstitutional, Tennessee enacted a pupil placement 
law, Tenn. Code § 49-1741 et seq. (1966). That law 
continued previously enrolled pupils in their assigned 
schools and vested local school boards with the exclusive 

- authority to approve assignment and transfer requests. 
No white children enrolled in any “Negro” school under 
the statute and the respondent Board granted only seven 
applications of Negro children to enroll in “white” 
schools, three in 1961 and four in 1962. In March 1962 
the Court of Appeals for the Sixth Circuit held that the 
pupil placement law was inadequate “as a plan to con- 
vert a biracial system into a nonracial one.” - Northcross 
v. Board of Education of City of Memphis, 302 F. 2d 

818, 821. 
In January 1963 petitioners brought this action in the 

District Court for the Western District of Tennessee. 
The complaint sought a declaratory judgment that re- 

spondent was operating a compulsory racially segregated 

school system, injunctive relief against the continued 
maintenance of that system, an order directing the ad- 
mission to named “white” schools of the plaintiff Negro 

school children, and an order requiring respondent Board 
to formulate a desegregation plan. The District Court 

ordered the Board to enroll the children in the schools 
in question and directed the Board to formulate and file 
a desegregation plan. A plan was duly filed and, after 
modifications directed by the court were incorporated, 

the plan was approved in August 1963 to be effective 
immediately in the elementary schools and to be grad- 

ually extended over a four-year period to the junior high 

schools and senior high schools. 221 F. Supp. 968. 

The modified plan provides for the automatic assign- 

ment of pupils living within attendance zones drawn by 
the Board or school officials along geographic or “natural” 

boundaries and “according to the capacity and facilities 

of the [school] buildings . . .” within the zones. Id, 
at 974. However, the plan also has the “free-transfer’” 

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provision which was ultimately to bring this case to this 

Court: Any child, after he has complied with the require- 

ment that he register annually in his assigned school in 

his attendance zone, may freely transfer to another school 

of his choice if space is available, zone residents having 

priority in cases of overcrowding. Students must pro- 

vide their own transportation; the school system does not 

operate school buses. : 

By its terms the “free-transfer” plan was first applied 

in the elementary schools. After one year of operation 

petitioners, joined by 27 other Negro school children, 

moved in September 1964 for further relief in the District 

Court, alleging respondent had administered the plan in 

a racially discriminatory manner. At that time, the 

three Negro elementary schools remained all Negro; and 

118 Negro pupils were scattered among four of the five 

formerly all-white elementary schools. After hearing 

evidence, the District Court found that in two respects 

the Board had indeed administered the plan in a dis- 

criminatory fashion. First, it had systematically denied 

Negro children—specifically the 27 intervenors—the right 

to transfer from their all-Negro zone schools to schools 

where white students were in the majority, although 

white students seeking transfers from Negro schools to 

white schools had been allowed to transfer. The court 

held this to be a constitutional violation, see Goss Vv. 

Board of Education, 373 U. S. 683, as well as a violation 

of the terms of the plan itself. 244 F. Supp. 353, 359. 

Second, the court found that the Board, in drawing the 

lines of the geographic attendance zones, had gerry- 

mandered three elementary school zones to exclude Negro 

residential areas from white school zones and to include 

those areas in zones-of Negro schools located farther 

away. Id. at 361-362. 

In the same 1964 proceeding the Board filed with the 

court its proposed zones for the three junior high schools, 

Jackson and Tigrett, the “white” junior high schools, 

and Merry, the “Negro” junior high school. As of the 

1964 school year the three schools retained their racial 

identities, although Jackson did have one Negro child 

among its otherwise all-white student body. The facul- 

ties and staffs of the respective schools were also segre- 

gated. Petitioners objected to the proposed zones on 

two grounds, arguing first that they were racially gerry- 

mandered because so drawn as to assign Negro children 

to the “Negro” Merry school and white children to the 

“white” Jackson and Tigrett schools, and alternatively 

that the plan was in any event inadequate to reorganize 

the system on a nonracial basis. Petitioners, through 

expert witnesses, urged that the Board be required to 

—gdopt a “feeder system,” a commonly used method of 

“assigning students whereby each junior high school would 

draw its students from specified elementary schools. 

The groupings could be made so as to assure racially inte- 

grated student bodies in ‘all three junior high schools, 

with due regard for educational and administrative con- 

siderations such as building capacity and proximity of 

students to the schools. 

The District Court held that petitioners had not sus- 

tained their allegatioms that the proposed high school 

attendance zones were gerrymandered, saying 

“Tigrett [white] is located in the western section, , 

Merry [Negro] is located in the central section and 

Jackson [white] is located in the eastern section. 

The zones proposed by the defendants would, gen- 

erally, allocate the western section to Tigrett, the 

central section te Merry, and the eastern section to 

Jackson. The boundaries follow ‘major streets or 

highways and railroads. According to the school 

population maps. there are a considerable number of 

Negro pupils im the southern part of the Tigrett 

zone, a considerable number of white pupils in the 

middle and northern parts of the Merry zone, and - 

a considerable mumber of Negro pupils in the south- 

ern part of the: Jackson zone. The location of the 

three schools in: @n approximate east-west line makes: 

it inevitable thait the three zones divide the city in 

three parts fromm north to south. While it appears 

that proximity eff pupils and natural boundaries are: 

not as importanit in zoning for junior highs as in 

zoning for elementary schools, it does not appear 

that Negro pupiils will be discriminated against.” 

244 F. Supp. at 362. 

As for the recommended “feeder system,” the District 

Court concluded sitmply that “there is no constitutional 

requirement that this particular system be adopted.” 

Ibid. The Court ©f Appeals for the Sixth Circuit 

affirmed except om @n issue of faculty desegregation, as 

to which the case was remanded for further proceedings. 

380 F. 2d 955. We granted certiorari, 389 U. S. 1033, 

and set the case for oral argument immediately following 

Green v. County Swhool Board, supra. Although the case 

presented by the petition for certiorari concerns only the 

junior high schools, the plan in its application to ele- 

mentary and senieir high schools is also necessarily im- 

plicated since the: right of “free transfer” extends to 

pupils at all levels. 

The principles governing determination of the ade- 

quacy of the plam as compliance with the Board's re- 

sponsibility to effizctuate a transition to-a racially non- 

discriminatory system are those announced today in 

Green v. County School Board, supra. Tested by those 

principles the plam is clearly inadequate. Three school 

years have followed the District Court's approval of the 

attendance zones for the junior high schools. Yet Merry 

Junior High Schoml was still completely a “Negro” school 

in the 1967-196% school year, enrolling some 640 Negro 

pupils, or over 83% of the system's Negro junior high 

school students. ‘Not one of the “considerable number 

of white pupils Iu the middle and northern parts of the 

Merry zone” assigned there under the attendance zone 

aspect of the plan chose to stay at Merry. Every one 

exercised his option to transfer out of the “Negro” school. 

The “white” Tigrett school seemingly had the same ex- 

perience in reverse. Of the “considerable number of 

Negro pupils im the southern part of the Tigrett zone” 

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mentioned by the District Court, only seven are enrolled 
- in the student body of 819; apparently all other Negro 
children assigned to Tigrett chose to go elsewhere. Only 
the “white” Jackson school presents a different picture; 
there, 349 white children and 135 Negro children com- 
prise the student body. How many of the Negro chil- 
dren transferred in from the “white” Tigrett school does 
not appear. The experience in the junior high schools 
mirrors that of the elementary schools. Thus the three 

elementary schools that were operated as Negro schools 
in 1954 and continued as such until 1963 are still at- 

tended only by Negroes. The five “white” schools all 
have some Negro children enrolled, from as few as three 
(in a student body of 781) to as many as 160 (in a stu- 
dent body of 682). 

This experience with “free transfer” was accurately 
predicted by the District Court as early as 1963: 

“In terms of numbers . . . the ratio of Negro to 

white pupils is approximately 40-60. This figure 
is, however, somewhat misleading as a measure of 

the extent to which integration will actually occur 
under the proposed plan. Because the homes of 
Negro children are concentrated in certain areas of 
the city, a plan of unitary zoning, even if prepared 
without consideration of race, will result in a con- 

centration of Negro children in the zones of here- 

tofore ‘Negro’ schools and white children in the 
zones of heretofore ‘white’ schools. Moreover, this 

tendency of concentration in schools will be further 

accentuated by the exercise of choice of schools. ...” 
221 F. Supp., at 971. (Emphasis supplied.) 

Plainly, the plan does not meet respondent’s “affirma- 

tive duty to take whatever steps might be necessary to 
convert to a unitary system in which racial discrimnination 

would be eliminated root and branch.” Green v. County 

School Board, supra, at p. 7. Only by dismantling the 
state-imposed dual system can that end be achieved. 
And manifestly, that end has not been achieved here 
nor does the plan approved by the lower courts for the 
junior high schools promise meaningful progress toward 
doing so. “Rather than further the dismantling of the 
dual system, the [“free transfer’] plan has operated 
simply to burden children and their parents with a 
responsibility which Brown II placed squarely on the 
School Board.” Green v. County School Board, supra, 
at p. 11. That the Board has chosen to adopt a method 
achieving minimal disruption of the old pattern is evident 
from its long delay in making any effort whatsoever to 
desegregate, and the deliberately discriminatory manner 
in which the Board administered the plan until checked 
by the District Court. ; 

The District Court approved the junior high school 
attendance-zone lines in the view that as drawn they 
assigned students. to the three schools in a way that 
was capable of producing meaningful desegregation of 
all three schools. But the “free-transfer” option has 

permitted the “considerable number” of white or Negro 
students in at least two of the zones to return, at the 

implicit invitation of the Board, to the comfortable 
security of the old, established discriminatory pattern. 
Like the transfer provisions held invalid in Goss v. Board 
of Education, 373 U. S. 683, 686, “[i]t is readily apparent 
that the transfer [provision] lends itself to perpetuation 
of segregation.” While we there indicated that “free- 

transfer” plans under some circumstances might be valid, 
we explicitly stated that “no official transfer plan or pro- 
vision of which racial segregation is the inevitable conse- 
quence may stand under the Fourteenth Amendment.” 
Id., at 689. So it is here; no attempt has been made 

to justify the transfer provision as a device designed 
to meet “legitimate local problems,” ibid.; rather it pat- 
ently operates as a deviee to allow resegregation of the 
races to the extent desegregation would be achieved by 
geographically drawn zones. Respondent’s argument in 
this Court reveals its purpose. We are frankly told in 
the Brief that without the transfer option its is appre- 

hended that white students will flee the school system 
altogether. “But it should go without saying that the 
vitality of these constitutional principles cannot be al- 
lowed to yield simply because of disagreement with 
them.” Brown II, at 300. 

We do not hold that “free transfer” can have no place 
in a desegregation plan. But like “freedom of choice,” 
if it cannot be shown that such a plan will further rather 
than delay conversion to a unitary, nonracial, nondis- 
criminatory school system, it must be held unacceptable. 
See Green v. County School Board, supra, at pp. 9-11. 

We conclude, therefore, that the Board “must be re- 
quired to formulate a mew plan and, in light of other 
courses which appear open to the Board, . . . fashion 
steps which promise realistically to convert promptly to a 

system without a ‘white’ school and a ‘Negro’ school, but 
just schools.” Id., at pp. 11-12.* 

The judgment of the Court of Appeals is vacated inso- 
far as it affirmed the District Court’s approval of the 
plan in its application #o the junior high schools, and 
the case is remanded for further proceedings consistent 
with this opinion and with our opinion in Green v. County 
School Board, supra. 

It 1s so ordered. 

JAMES M. NABRIT, III, New York, N.Y. (JACK GREENBERG, 
MICHAEL MELTSNER, MICHAEL J. HENRY, AVON N. WILLIAMS, 
JR., Z. ALEXANDER LCOBY¥, J. EMMETT BALLARD, GERALD 
A. SMITH, and FRANKLIN XE. WHITE, with him on the brief) for 
petitioners; RUSSELL RICE, #R., Jackson, Tenn., for respondents; 
ERWIN N. GRISWOLD, Solicitor General, STEPHEN J. POLL AK, 
Assistant Attorney General, L£JUIS F. CLAIBORNE and LAWRENCE 

G. WALLACE, Assistants te the Solicitor General, and BRIAN K. 
LANDSBERG, Justice Dept. attomey, filed brief for the United 
States, as amicus curiae, seeking reversal. 

*We imply no agreement with the District Court’s conclusion 

that under the proposed attemdance zones for junior high schools 

~ “it does not appear that Negro pupils will be discriminated against.” 
We note also that on the reewrd as it now stands, it appears that 

petitioners’ recommended “feesfer system,” the feasibility of which 

respondent did not challenge in the District Court, is an effective 

alternative reasonably availak#e to respondent to abolish the dual 
system in the junior high schools. 

  

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No. 805.—O0OctoBeER TERM, 1967. 

Arthur Lee Raney et al, 
Petitioners, 

v. 

The Board of Education 

of The Gould School 
District et al. 

On Writ of Certiorari to the 
United States Court of Ap- 

  
[May 27, 1968.] 

MR. Justice Brennan delivered the opinion of the 
Court. 

This case presents the question of the adequacy of a 
“freedom-of-choice” plan as compliance with Brown v. 
Board of Education, 349 U. S. 294 (Brown II), a question 
also considered today in No. 695, Green v. County School 
Board of New Kent County, ante, p. —. The factual 

setting is very similar to that in Green. 
This action was brought in September 1965 in the 

District Court for the Eastern District of Arkansas. 
Injunctive relief was sought against the continued main- 
tenance by respondent Board of Education of an alleged 
racially segregated school system. The school district 
has an area of 80 square miles and a population of some 
3,000, of whom 1,800 are Negroes and 1,200 are whites. 
Persons of both races reside throughout the county; there 
is no residential segregation. The school system consists 

of two combination elementary and high schools located 
about 10 blocks apart in Gould, the district’s only major 
town. One combination, the Gould Schools, is almost all 

white and the other, the Field Schools, is all Negro. In 
the 1964-1965 school year the schools were totally segre- 
gated; 580 Negro children attended the Field Schools 
and 300 white children attended the Gould Schools. 
Faculties and staff were and are segregated. There are 

no attendance zones, each school complex providing any 
necessary bus transportation for its respective pupils. 

The state-imposed segregated system existed at the 
time of the decisions in Brown v. Board of Education, 
347 U. S. 483, 349 U. S. 294. Thereafter racial separa- 
tion was required by School Board policy. As in Green, 
respondent first took steps in 1965 to abandon that policy 

to remain eligible for federal financial aid. The Board 
adopted a “freedom-of-choice” plan embodying the essen- 
tials of the plan considered in Green. It was made im- 
mediately applicable to all grades. Pupils are required 

to choose annually between the Gould Schools and the 
Field Schools and those not exercising a choice are 

assigned to the school previously attended. 
The experience after three years of operation with 

“freedom of choice” has mirrored that in Green. Not a 

single white child has sought to enroll in the all-Negro 
Field Schools, and although some 80 to 85 Negro children 

were enrolled in the Gould Schools in 1967, over 859 of 

the Negro children in the system still attend the all- 

Negro Field Schools. 

This litigation resulted from a problem that arose in 

the operation of the plan in its first year. The number of 

peals for the Eighth Circuit. 

children applying for enrollment in the fifth, tenth, and 
eleventh grades at Gould exceeded the number of places 
available and applications of 28 Negroes for those grades 
were refused. This aetion was thereupon filed on behalf 

of 16 of these children and others similarly situated. 
Their complaint sought injunctive relief, among other 
things, against their being required to attend the Field 

Schools, against the provision by respondent of public 
school facilities for Negro pupils inferior to those pro- 

vided for white pupils, and against respondent’s “other- 
wise operating a racially segregated school system. While 
the case was pending in the District Court, respondent 
made plans to replace the high school building at Field 

Schools. Petitioners sought unsuccessfully to enjoin con- 

struction at that site, eontending that the new high school 
should be built at the Gould site to avoid perpetuation of 

- the segregated systems. Thereafter the District Court, in 
an unreported opiniom, denied all relief and dismissed the 
complaint. In the District Court’s view the fact that 
respondent had adopted “freedom of choice” without the 
compulsion of a court order, that the plan was approved 
by the Department of Health, Education, and Welfare, 
and that some Negre pupils had enrolled in the Gould 
Schools “seems to imslicate that this plan is more than 

"a pretense or sham to meet the minimum requirements 
of the law.” In light of this conclusion the District 
Court held that petitioners were not entitled to the 
other relief requested, including an injunction against 
building the new high school at the Field site. The 
Court of Appeals far the Eighth Circuit affirmed the 
dismissal. 381 F. 2d 252. We granted certiorari, 389 
U. S. 1034, and set the case for argument following 
No. 740, Monroe v. Board of Commissioners of the City 
of Jackson, post, p. —. : 

The Court of Appeals suggested that “no issue on the 
adequacy of the plamr adopted by the Board or its imple- 
mentation was raisesi in the District Court. Issues not 
fairly raised in the District Court cannot ordinarily be 
considered upon appeal.” 381 F. 2d, at 257. Insofar as 
this refers to the “freedom-of-choice” plan the suggestion 
is refuted by the reeord. Not only was the issue em- 
braced by the prayer in petitioners’ complaint for an 
injunction against mwespondent “otherwise operating a 
racially segregated school system” but the adequacy of 
the plan was tried ard argued by the parties and decided 
by the District Cour#. Moreover, the Court of Appeals 
went on to consider the merits, holding, in agreement 

with the District Cart, that ©. . . we find no substantial 
evidence to support a finding that the Board was not 

proceeding to carry ut the plan in good faith.” Ibid? 
In the circumstances the question of the adequacy of 
“freedom of choice’ is properly before us. On the merits, 
our decision in Green v. County School Board, supra, 

1 Compare the developing views of the feasibility of “freedom-of- 

choice” plans expressed Fsv various panels of the Court of Appeals 

for the Eighth Circuit x Kemp v. Beasley, 352 F. 2d 14; Clark v. 

Board of Education, 374 F. 2d 569; Kelly v. Altheimer, 378 F. 2d 

483: Kemp v. Beasley, 359 F. 2d 178; and Jackson v. Marvell School 

District No. 22, 339 F. 2d 740. 

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establishes that the plan is inadequate to convert to a 

unitary, nonracial school system. As in Green, “the 

school system remains a dual system. Rather than fur- 

ther the dismantling of the dual system, the plan has 

operated simply to burden children and their parents with 

a responsibility which Brown IT placed squarely on the 

School Board, The Board must be required to formu- 

late a new plan and, in light of other courses which 

appear open to the Board, such as zoning, fashion steps 

which promise realistically to convert promptly to a sys- 

tem without a ‘white’ school and a ‘Negro’ school, but 

just schools.” Id. at pp. 11-12. 

The petitioners did not press in the Court of Appeals 

their appeal from the denial of their prayer to have the 

new high school facilities constructed at the Gould 

Schools site rather than at the Field Schools site. Due 

to the illness of the court reporter there was delay in the 

filing of the transcript of the proceedings in the District 

Court and meanwhile the construction at the Field 

Schools site was substantially completed. Petitioners 

therefore modified their position and urged in the Court 

of Appeals that respondent be required to convert 

the Could Schools to a completely desegregated high 

school and the Field site to a completely desegregated pri- 

mary school. The Court of Appeals rejected the propo- 

sition on the ground that it “was not presented to the 

trial court and no opportunity was afforded the parties 

to offer evidence on the feasibility of such a plan, nor 

was the trial court given any opportunity to pass there- 

on.” 381 F.2d, at 254. Since there must be a remand, 

petitioners are not foreclosed from making their proposal 

an issue in the further proceedings.’ 

Finally, we hold that in the circumstances of this 

case, the District Court’s dismissal of the complaint was 

an improper exercise of discretion. Dismissal will ordi- 

narily be inconsistent with the responsibility imposed on 

the district courts by Brown II. 349 U. S., at 299-301. 

In light of the complexities inhering in the disestablish- 

ment of state-established segregated school systems, 

Brown II contemplated that the better course would be 

to retain jurisdiction until it is clear that disestablishment 

has been achieved. We agree with the observation of 

another panel of judges of the Court of Appeals for the 

Eighth Circuit in another case that the district courts 

“should retain jurisdiction in school segregation cases to - 

insure (1) that a constitutionally acceptable plan is 

adopted, and (2) that it is operated in a constitutionally 

permissible fashion so that the goal of a desegregated, 

non-racially operated school system is rapidly and finally 

2 The Court of Appeals, while denying petitioners’ request for 

relief on appeal, did observe that 

“there is no showing that the Field facilities with the new construc-- 

tion added could not be converted at a reasonable cost into a com- 

pletely integrated grade school or into a completely integrated high 

school when the appropriate time for such course arrives. We note 

that the building now occupied by the predominantly white Gould 

grade school had originally been built to house the Gould High 

School.” 381 F. 2d, at 255. 

achieved.” Kelley v. Altheimer, 378 F. 2d 483, 489. 

See also Kemp v. Beasley, 389 F. 2d 178. 

The judgment of the Court of Appeals is reversed 

and the case is remanded to the District Court for further 

proceedings consistent with this opinion and with our 

opinion in Green v. County School Board, supra. 

It is so ordered. 

JACK GREENBERG, New York, N.Y. (JAMES M. NABRIT, III, 

MICHAEL MELTSNER, MICHAEL J. HENRY, JOHN W. WALKER, 

and NORMAN CHACHKIN, with him on the brief) for petitioners; 

ROBERT V. LIGHT, Little Rock, Ark. (HERSCHEL H. FRIDAY 

and G. ROSS SMITH, with him on the brief) for respondents; ERWIN 

N. GRISWOLD, Solicitor General, STEPHEN J. POLL AK, Assist- 

ant Attomey General, LOUIS F. CLAIBORNE and LAWRENCE G. 

WALLACE, Assistants to the Solicitor General, and BRIAN K. 

LANDSBERG, Justice Dept. attorney, filed brief for the United 

States, as amicus curiae, seeking reversal. 

Nos. 247 axp 319.—Octoser TERM, 1967. 

  

The Puyallup Tribe, ete., Petitioner, 

247 v. 

~ Department of Game of On Writs of Cer- 

~ Washington et ak tiorari to the 

Supreme Court 
Nug Cautz 1., Petitioners, aa Nugent Kautz et al, Petitioners of Wadiihton, 

319 : . 

Department of Game of 

Washington et al. 

[May 27, 1968.] 

  
Mg. Justice Douvcras delivered the opinion of the 

Court. 

These cases present a. question of public importance 

which involves in the first place a construction of the 

Treaty of Medicine Creek made with the Puyallup and 

Nisqually Indians in 1854 (10 Stat. 1132) and secondly 

the constitutionality of certain conservation measures 

adopted by the State of Washington allegedly impinging 

on those treaty rights. : 

These suits were brought by respondents in the state 

court against the Indians for declaratory relief and for an 

injunction. The trial comrt held for respondents and 

with exceptions not relevani to our problem the Supreme 

Court affirmed in part and remanded for further findings 

on the conservation aspect of the problem. The Depart- 

ment of Game et al. v. The Puyallup Tribe, 70 W. D. 

od 241, 422 P. 2d 754; The Department of Game et al. v. 

Kautz et al, 70 W. D. 2d 270,422 P. 2d 771. We granted 

the petitions for certiorari and consolidated the cases for 

oral argument. 389 U. S. 1013. : 

While the Treaty of Medicine Creek created a reserva- 

tion for these Indians, ne question as to the extent of 

those reservation rights, if any, is involved here. Our 

question concerns the fishing rights protected by Article 

III, which so far as relevamt reads as follows: 

1 Tt should be noted that white a reservation was created by Arti- 

cle II of the Treaty, Article ¥I provided that the President might 

remove the Indians from the reservation “on remunerating them 

for their improvements and thze expenses of their removal, or may 

  

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