United States v. Scotland Neck City Board of Education Petition for Writ of Certiorari

    Jit t o  j&tpvetne dj-ourt of t o  United States
October Term, 1970

U nited States or A merica, petitioner

v.
Scotland Neck City B oard op E ducation, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

ERWIN N. GRISWOLD,
Solicitor General,

JERRIS LEONARD,
Assistant Attorney General,

LAWRENCE G. WALLACE,
Deputy Solicitor General,

A. RAYMOND RANDOLPH, Jr.,
Assistant to the Solicitor General,

BRIAN K. LANDSBERG,
THOMAS M. KEELING,

Attorneys,
Department of Justice,

Washington, D.O. 20530. .



IN D E X

Opinions below_________________________________
Jurisdiction____________________________________
Question presented_____________________________
Constitutional and statutory provisions involved-.
Statement_____________________________________
Reasons for granting the writ___________________
Conclusion_____________________________________
Appendix A ____________________________________
Appendix B ________________ ___________________
Appendix C____________________________________
Appendix D ____________________________________
Appendix E ____________________________________
Appendix F ____________________________________
Appendix G____________________________________
Appendix H____________________________________

Page
1
1
2
2
2
7

13
la

19a
56a
62a
91a
92a
99a

101a

CITATIONS
Cases:

Alexander v. County Board of Education, 396
U.S. 19__________________________________ 10

Aytch and United States v. Mitchell, C.A. No.
PB 70-C-127, E.D. Ark., decided January
15,1971_________    11

Brown v. Board of Education, 347 U.S. 483___ 9,10 
Brown v. Board of Education, 349 U.S. 294,__ 10
Buchanan v. War ley, 245 U.S. 60_____________ 10
Burleson v. County Board of Election Com­

missioners of Jefferson County, 308 F. Supp.
352, affirmed 432 F. 2d 1356_____________  10, 11

Cooper v. Aaron, 358 U.S. 1________________  8, 9
Green v. School Board of New Kent County, 391

U.S. 430_______________________________ 3, 9, 10
Hawkins v. Town of Shaw, No. 29013, C.A. 5,

decided January 28, 1971__________________ 12
Heart of Atlanta Motel v. United States, 379

U.S. 241________   10
(i)

422- 400— 71-----------1



n

Cases—Continued
Hunter v. Erickson, 393 U.S. 385-------------—
Jackson v. Godwin, 400 F. 2d 529-----------------
Kennedy Park Homes Association, Inc. and 

United States v. City of Lackawanna, 436 F. 
2d 108, certiorari denied April 5, 1971, No.
1319, Oct. Term, 1970------------------------------

Loving v. Virginia, 388 U.S. 1----------------------
McLaughlin v. Florida, 579 U.S. 184----------
Smith v. Texas, 311 U.S. 128------------------------
Swann v. Board of Education, No. 281, Oct.

Term, 1970, decided April 20,1971---------- -
Turner v. Warren County Board of Education, 

C.A. No. 1482, E.D. N.C., affirmed sub nom. 
Turner v. Littleton-Lake Gaston School Dis­
trict, No. 14,990 C.A. 4, decided March 23, 
1971____________________________________

Page
10
12

12
9
9
9

8,10

United States v. State of Texas, 321 F. Supp.
1043, appeal pending, C.A. 5, No. 71-1061 _ _ 11

Wright v. Council of the City of Emporia, N o.
14,552, C.A. 4, decided March 23, 1971-J- 7,8

Wright v. City of Brighton, Alabama, No.
29,262, C.A. 5, decided March 16, 1971___ 12

Constitution and statutes:
United States Constitution, Fourteenth

Amendment_____________________________ 2, 8
Civil Rights Act of 1964, Section 407, 42

U.S.C. 2000c-6_______________________ 2, 3, 5, 99
28 U.S.C. 1345_____________________________ 5
1969 Session Laws of North Carolina, Chapter 

31_____________________________ 2, 3, 4, 5, 6, 101



Jtt the Supreme (fiourt of the Suited States
October Term, 1970

M o .------
U nited States of A merica, petitioner 

v.
Scotland K eck City B oard of Education, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

The Solicitor General, on behalf o f the United 
States, petitions for a writ of certiorari to review the 
judgment of the United States Court o f Appeals for 
the Fourth Circuit in this ease.

OPINIONS BELOW

The opinion of the court of appeals sitting en banc 
(App. A, infra, pp. la-18a) and the dissenting opin­
ions (App. B, infra, pp. 27a-43a and pp. 44a-55a) are 
not yet reported.

The opinion and order of the district court entered 
on motion for preliminary injunction (App. C, infra, 
pp. 56a-61a) are not reported; the opinion and order 
on permanent injunction (App. D, infra, pp. 62a-90a) 
are reported at 314 F. Supp. 65.

JURISDICTION

The judgment of the court of appeals (App. E, 
infra, p. 91a) was entered on March 23, 1971. The

■CD



9

jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1).

QUESTION PRESENTED

Whether the court of appeals erred in holding that 
a State may split desegregating school districts into 
multiple districts, even if  the establishment of a 
unitary system is thereby impaired, unless the “ pri­
mary purpose”  of the split is to retain as much sepa­
ration of the races as possible.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the Con­
stitution of the United States provides as follows:

All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the 
State wherein they reside. Uo State shall make 
or enforce any law which shall abridge the 
privileges or immunities of citizens of the 
United States; nor shall any State deprive any 
person of life, liberty, or property, without due 
process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws.

Section 407 of the Civil Rights Act of 1964, 42 
U.S.C. 2000c-6, is set out in Appendix G-, infra, p. 
99 a.

Chapter 31 of the 1969 Session Laws of North 
Carolina, is set out in Appendix H, infra, p. 101a.

STATEMENT

Scotland Neck, North Carolina, is a town with a 
population of approximately 3000 located in the 
southeastern portion of Halifax County. The schools



3

in Scotland Neck have been operated as part of the 
Halifax County Administrative Unit since 1936. 
Halifax County ran a completely segregated dual 
school system until 1965, when it adopted a freedom- 
of-choice desegregation plan (App. A  8a). Little in­
tegration followed (ibid.). After this Court’s decision 
in 1968 in Green v. School Board of New Kent 
County, 391 U.S. 430, the Department of Justice, pur­
suant to 42 U.S.C. 2000c-6, informed the Halifax 
County Board that the operation of its schools did 
not comply with constitutional requirements. Negotia­
tions with the Board resulted in a plan to disestablish 
the county’s dual school system by the beginning of 
the 1969-70 school year. Interim steps were to be 
taken in 1968-69.1 (App. A  9a.) The plan and interim 
steps were given wide local publicity (App. D 67a).

As a result of renewed efforts by citizens o f Scot­
land Neck a number of months after the Green 
decision, a local law, Chapter 31, 1969 Session Laws 
of North Carolina (App. H  101a) was enacted by 
the North Carolina General Assembly on March 3, 
1969.1 2 Chapter 31 provided for a new school district 
bounded by the city limits of Scotland Neck, and for 
a supplemental tax assessment upon approval by a 
majority of the city’s voters. The voters registered

1 One such step was the combining of the 7th and 8th grades 
of the previously all-black Brawley school, located near the 
city limits of Scotland Neck, with the all-white junior high school 
in the city (App. D 67a-68a).

2 Earlier unsuccessful attempts had been made by the citizens 
of Scotland Neck to have a law similar to Chapter 31 passed. 
(See App. D 69a).



4

their approval in a special election on April 8, 1969, 
and some preliminary steps were taken so that the 
newly-created school district— Scotland Neck City 
Administrative Unit—could start operation at the 
beginning of the 1969-70 school year (App. D 72a, 73a). 
Shortly thereafter, the Halifax County Board de­
cided not to carry out the previously adopted desegre­
gation plan (App. A  9a).

Chapter 31 ’s implementation would have resulted in 
carving out of the Halifax County system, which had a 
student population of 10,655, a smaller school district 
of 695 students. The predominantly black county 
system consisted of 22 percent white students, 77 per­
cent black, and 1 percent Indian; by comparison, the 
new, smaller district would have consisted of 57.4 
percent white students and 42.6 percent black. (App. 
I) 14a-15a). By the removal of Scotland Neck from the 
larger rural area its schools had traditionally served, 
the number of white children in schools in that area 
would have been reduced by almost one half (from 
804 to 405) and the number of black children would 
have changed from 3,095 to 2,799. The County system 
as a whole would then have had 9,960 students, 19 
percent of whom would have been white, 80 percent 
black and 1 percent Indian. (App A  14a).

Since the planned Scotland Neck schools could 
accommodate 1,000 students/' but would have had 695 3

3 The schools in Scotland Neck were inadequate to accom­
modate even the original 605 students; the City therefore 
purchased from the County a junior high school located outside 
the City’s boundaries (App. B52a).



5

pupils when Chapter 31 was implemented, the City 
and the County agreed to a plan allowing County 
students to transfer into the Scotland Neck system 
for a fee (App. D 74a). By August 25,1969, 350 white 
and 10 black students had applied to transfer into 
Scotland Neck, and 44 black students had applied to 
transfer out. The combined effect o f Chapter 31 and 
the transfer plan would have been a Scotland Neck 
system of 1,011 students, 74 percent white and 26 
percent black, a Halifax County system of 9,644 
students, 17 percent white, 82 percent black and 1 
percent Indian, and virtually all-black enrollment 
in the rural area immediately surrounding Scotland 
Neck.4

1. The decisions o f the district court. The govern­
ment’s complaint in this action, filed on .June 16, 1969, 
under Section 407 of the Civil Rights Act o f 1964, 
42 U.S.C. 2000e-6, and 28 U.S.C. 1345, sought an 
order to desegregate the Halifax County school sys­
tem and an injunction against the implementation of 
Chapter 31. After a hearing on the government’s 
motion for a preliminary injunction, the district court, 
on August 25, 1969, enjoined the Scotland Neck City 
Board of Education from carrying out Chapter 31 
pending a hearing on the merits (App. C 56a).

4 In its amended answer to the government’s complaint, the 
School Board withdrew the transfer plan and informed the 
district court that it intended to allow only such transfers as 
“ may be in conformity to the law and/or Court order or 
orders applicable to Defendant, and in conformity to a plan 
of limitation of transfers to be prepared by Defendant and 
submitted to this Court.” (App. A  n. 4, p. 18a.) See, also, App. 
B52a (Winter, J.,dissenting).



6

On December 17 and 18, 1969, there was a con­
solidated trial on the merits of the instant case and 
Turner v. Warren County Board of Education (C.A. 
No. 1482, E.D. N.C.),5 which presented similar ques­
tions.6 The district court entered its judgment on 
May 26, 1970, finding that a significant factor in the 
enactment of Chapter 31 was a desire to preserve a 
ratio of black to white students that would be accept­
able to white parents and thereby encourage them 
not to take their children out of the public school 
system.7 (App. D 62a.) Further, the district court 
found that the effect of Chapter 31 was to create a 
refuge for white students in Halifax County that 
interfered with the desegregation of Halifax County 
schools and prevented the County Board of Education 
from complying with court orders (App. D 89a). The 
court also found that Chapter 31 served no state inter­
est and, therefore, concluded that the Act was un­
constitutional and its operation should be enjoined 
(id. at 90a).

2. The decision of the court of appeals. On appeal 
by the Scotland Neck City Board of Education and

5 The Turner case involved the carving out of two separate 
city administrative units from a county system; the order and 
opinion enjoining such action was affirmed sub nom. Turner v. 
Littleton-Lake Gaston School District, C.A. 4, decided March 23, 
1971 (App. F92a).

6 The district court permitted intervention by the Attorney 
General of North Carolina, certain Haliwa Indians, and certain 
black teachers in the Halifax County system (App. D 63a n. 1).

7 Two other significant factors found by the court were a 
desire for more local control and a desire to increase the 
expenditures for the Scotland Neck schools.



7

the Attorney General of North Carolina, the court 
of appeals sitting en bancs reversed (App. A  la ), 
with Judges Sobeloff and Winter dissenting (App. 
B 27a, 44a). The court held that Chapter 31 did not 
interfere with the desegregation of the Halifax County 
schools, that it did not create a white refuge, and, 
following the rule formulated in Wright v. Council 
of the City of Emporia (No. 14,552), decided by the 
court on the same day,8 9 that two non-racial justifica­
tions adequately explain the splitting-off o f Scotland 
Neck, even assuming that a more even racial balance 
would be more effective in creating a unitary system 
in Halifax County (App. A  17a). The proposed trans­
fer plan was enjoined, however, on the ground that 
it would tend to resegregate the school systems 
(ihid.).10

REASONS EOR GRANTING THE WRIT

As the court of appeals observed in Emporia, supra, 
“ There is serious danger that the creation of new 
school districts may prove to be yet another method to

8 After argument on September 16, 1970, before a panel of 
three judges, the case was reargued before the court en banc 
on December 7, 1970, along with the appeal in Littleton-Lake 
Gaston, supra.

9 Three cases, Scotland Neck, Emporia, and Littleton-Lake 
Gaston, involving basically the same issues, were decided by 
the court of appeals on the same date. The rale of law formu­
lated by the majority is most fully set out in Emporia, and 
the dissents in the present case are appended to that opinion. 
The decisions in Emporia and in Littleton-Lake Gaston are 
contained, respectively, in Appendices B and F, infra.

10 A  motion by the United States for a stay of the court of 
appeals’ mandate in the present case pending application for 
certiorari is pending in the court of appeals.



8

obstruct the transition from racially separated school 
systems to school systems in which no child is denied 
the right to attend a school on the basis of race”  (App. 
B 21a. Of. Swann v. Board of Education, No. 281, 
this Term, decided April 20, 1971, slip op. at 9. This 
case raises significant questions with respect to seced­
ing school districts and the requirements of the Four­
teenth Amendment.

The court of appeals here applied the test it formu­
lated in the Emporia case (App. B 21a ):

I f  the creation of a new school district is de­
signed to further the aim of providing qua!it}7 
education and is attended secondarily by a modi­
fication of the racial balance, short of resegre­
gation, the federal courts should not interfere. 
If, however, the primary purpose for creating 
a new school district is to retain as much of 
separation of the races as possible, the state has 
violated its affirmative constitutional duty to 
end state supported segregation.

This ‘ ‘ primary purpose”  test is, we submit, seri­
ously inadequate for fulfillment of the mandate of the 
Fourteenth Amendment and at variance with the de­
cisions of this Court. It encourages whites in school 
districts having a substantial black student popula­
tion to carve out as independent districts areas that 
are predominantly white and, in so doing, to mask the 
true purpose by devising other justifications. Compare 
Cooper v. Aaron, 358 U.S. 1,17. The dissenting judges 
in the court of appeals correctly observed that under 
the majority’s test the constitutional mandate will be 
easily avoided (App. B 30a, 45a-46a).



9

In holding that “ [s] eparate educational facilities are 
inherently unequal,”  Brown v. Board of Education, 
347 U.S. .483, 495, this Court did not distinguish be­
tween racial segregation with a 40 percent racial pur­
pose and racial segregation with a 60 percent racial 
purpose. Indeed, however innocent its motives, a state 
may not simply ignore the racial consequences of its 
actions, for it has long been settled that “ [w]hat 
the Fourteenth Amendment prohibits is racial dis­
crimination * * * whether accomplished ingeniously 
or ingenuously * * Smith v. Texas, 311 U.S. 128, 
132. See Cooper v. Aaron, 358 U.S. 1,17.

Accordingly, when the state’s action produces racial 
segregation in the public schools, the courts must 
consider its constitutionality in light of the set­
ting of the Act (for example, whether it took place in 
the historical setting of state-imposed segregation), 
the available alternatives (whether the Act’s legiti­
mate objectives could be accomplished by means hav­
ing a less adverse racial impact), and the magnitude 
of the state’s interest in pursuing the particular 
course of action. See, e.g., Green v. School Board of New 
Kent County, 391 U.S. 430; compare McLaughlin v. 
Florida, 379 U.S. 184; Loving v. Virginia, 388 U.S. 1.

When, as here, a dual school system is created by 
the “ simple expedient of labeling the two sets of 
schools as separate districts” 11— one with a 57:43 
white to Mack ratio, the other with a 19: 80 ratio— that 
is, when the state’s action impedes full realization of 11

11 Judge Sobeloff, dissenting (App. B 36a).



10

the promise of Brown, that action can be upheld only 
if  the state can show a compelling justification for it. 
In so analyzing the secession of Scotland Neck from 
the Halifax County school system, the dissenting 
judges in the court of appeals and the district court 
found no such justification (App. B 37a; 50a-53a; 
App. D 90a). W e agree.

In addition, the standard applied by the court of 
appeals will significantly weaken the ability of dis­
trict courts to use their equitable powers as contem­
plated by this Court in Brown v. Board of Education, 
349 U.S. 294, 300-391, to effectuate their decrees im­
plementing the requirements of Green and Alexander 
v. County Board of Education, 396 U.S. 19. Cf. Swann 
v. Board of Education, supra. While the district 
courts may sometimes determine the various motives 12 
that played a part in a decision, a requirement that 
they weigh the relative influence of each motive to 
determine which predominated will not only trap the 
federal courts “ in a quagmire of litigation”  as they 
seek to delve into the inner workings of the minds of 
legislators or other public officials, but will also sanc­
tion an easy method of evading the mandate of Brown 
(App. B 42a; App. D 77a). See Burleson v. County 
Board of Election Commissioners of Jefferson County, 
308 F. Supp. 352, 357 (E.D. Ark.), affirmed, 432 F. 
2d 1356 (C .A .8).

12 The possible variety of mixed motives is well illustrated 
by such cases as Bueha'iian v. Warley, 245 U.S. 60 (maintenance 
of public peace and property values); Hunter v. Erickson, 393 
U.S. 385, 392 (need to move slowly in a delicate area of race 
relations); Heart of Atlanta Motel v. United States, 379 U.S. 
241, 260 (fear of economic loss).



11

Indeed, the court below has adopted a method of 
analysis of secessions from desegregating school sys­
tems which is at variance with the decision of the 
Eighth Circuit in the Burleson case, supra. In that 
case, the district court had enjoined the secession of 
the Hardin area (predominantly white) from the 
Dollarway School District in Arkansas (55 percent 
white and 45 percent black) because it would inter­
fere with implementation o f the approved desegre­
gation plan for Dollarway. The Eighth Circuit af­
firmed per curiam based on the opinion of the district 
court.13

The standard adopted by the court below also de­
parts from the test applied by both the Second and * 12

13 Several cases pending in other courts o f appeals also pre­
sent quite similar issues. In United States v. Jefferson County 
Board of Education (No. 30,387, C.A. 5, docketed August 21, 
1970), the issue is whether the city of Pleasant Grove, Ala­
bama, can separate itself from the Jefferson County school sys­
tem where the separation would adversely affect implementa­
tion o f a previously approved desegregation plan for Jefferson 
County. In Aytch and United States v. Mitchell, et al. {C.A. 
No. PB 70-C-127, E.D. Ark., decided January 15, 1971), the 
district court enjoined the holding of an election to divide the 
Watson Chapel School District. The defendants filed a notice 
of appeal on February 19, 1971. Likewise, in United States v. 
State o f Texas, 321 F. Supp. 1043 (E.D. Tex. 1970),
appeal pending (No. 71-1061, C.A. 5, docketed January
12, 1971), the district court found racial discrimination in 
the transfer of white residential areas from a predominantly 
black to a predominantly white school system. In Lee and 
United States, et al. v. Calhoun County Board of Education, 
et al.. (No. 30,154, C.A. 5, docketed July 1970), the district 
court treated the Calhoun County school system and the newly 
formed Oxford City school system as one for purposes of rul­
ing on the sufficiency of a desegregation plan for Calhoun 
County (including Oxford).



12

the Fifth Circuits in eases involving racially discrim­
inatory state action in other areas. In those cases 
the courts properly held that where action by a state 
agency has a racially discriminatory effect the action 
can be justified only by a “ compelling state interest.” 
Kennedy Park Homes Association, Inc. and United 
States v. City of Lackawanna, 436 F. 2d. 108 (C.A. 2), 
certiorari denied April 5, 1971, Ho. 1319, this Term; 
Jackson v. Godwin, 400 F. 2d 529 (C.A. 5) ; Hawkins v. 
Town of Shaw, Ho. 29,013, C.A. 5, decided January 28, 
1971); Wright v. The City of Brighton, Alabama, Ho. 
29,262, C.A. 5, decided March 16,1971.

Here both courts below agreed that at least one 
purpose for the realignment of the school districts was 
racial and the undeniable effect would be to create a 
“ more white”  school or schools from which the vast 
majority of black students in the Halifax County sys­
tem would be effectively excluded. In these circum­
stances, the State’s showing of additional, non-racial 
purposes fell far short of the requisite compelling 
justification for such a result, and the judgment o f the 
district court enjoining the realignment should have 
been affirmed.



CONCLUSION

For- the foregoing reasons, the petition for a writ 
o f certiorari should be granted.

Respectfully submitted.
E rwin  1ST. Griswold,

Solicitor General. 
Jerris Leonard,

Assistant Attorney General. 
L awrence G. W allace,

Deputy Solicitor General.
A. R aymond R andolph, Jr., 

Assistant to the Solicitor General. 
B rian K . L andsberg,
Thomas M. K eeling,

A pril 1971
Attorneys.



A P P E N D IX  A

U nited States Court of A ppeals for the F ourth
Circuit

No. 14929
U nited States of A merica, and P attie B lack Cot­

ton, E dward M. F rancis, P ublic School Teachers 
of H alifax County, et al., appellees

versus
Scotland N eck City B oard of E ducation, a B ody 

Corporate, appellant

No. 14930

U nited States of A merica, and P attie B lack Cot­
ton, E dward M. F rancis, P ublic School Teachers 
of H alifax County, and Others, appellees

versus
R obert M organ, A ttorney General of N orth Caro­

lina, the State B oard of E ducation of N orth 
N orth Carolina, and Dr. A. Craig P hillips, 
N orth Carolina State Superintendent of P ublic 
I nstruction, appellants

Appeal from the United States District Court for the 
Eastern District of North Carolina, at Wilson

A lgernon L. B utler, District Judge, and John D.
L arkins, Jr., District Judge

(la)

422- 400— 71----------2



2a

Argued September 16, 1970

Before B oreman, B ryan and Craven, Circuit Judges 
Reargued December 7, 1970—Decided March 23, 1971
Before H aynsworth, Chief Judge, Sobeloff, B ore- 

m an , B ryan, W inter, Craven and B utzner, Circuit 
Judges sitting en banc, on resubmission
William, T. Joyner and G. Kitchin Josey (Joyner & 

Howison and Robert Morgan, Attorney General of 
North Carolina, on brief) for Appellants; and Brian 
K. Landsberg, Attorney, Department o f Justice { Jor­
ris Leonard, Assistant Attorney General, David L. 
Norman, Deputy Assistant Attorney General, and 
Francis H. Kennedy, Jr., Attorney, Department of 
Justice, and Warren H. Coolidge, United States At­
torney, on brief) for Appellee United States of 
America; and James R. Walker, Jr., (Samuel S. 
Mitchell on brief) for Appellees Pattie Black Cotton, 
et al.
Craven, Circuit Judge:

The Scotland Neck City Board of Education and 
the State of North Carolina have appealed from an 
order of the United States District Court for the 
Eastern District of North Carolina entered May 23, 
1970, declaring Chapter 31 of the 1969 Session Laws 
of North Carolina unconstitutional and permanently 
enjoining any further implementation of the statute.1 
W e reverse. 1

1 This is one of three cases now before the Court involving 
the “ carving out” of part o f a larger school district. The others 
are Alvin Turner v. Littleton-Lake Gaston School District, — 
F. 2d — (No. 14,990) and Wright v. Council o f City o f Em­
poria, — F. 2d — (No. 14,552).



3a

Chapter 31 o f the 1969 Session Laws of North Caro­
lina,2 enacted by the North Carolina General Assembly 
on March 3, 1969, provided for a new school district 
bounded by the city limits of Scotland Neck upon the

2 Chapter 31 is entitled and reads as follows:
“AN ACT to improve and provide public schools of a higher 

standard for the residents of Scotland Neck in Halifax 
County, to establish the Scotland Neck City Administrative 
Unit, to provide for the administration o f the public schools 
in said administrative unit, to levy a special tax for the 
public schools o f said administrative unit, all of which shall 
be subject to the approval o f the voters in a referendum or 
special election
Section 1. There is hereby classified and established a pub­

lic school administrative unit to be known and designated as 
the Scotland Neck City Administrative Unit which shall consist 
of the territory or area lying and being within the boundaries 
or corporate limits of the Town of Scotland Neck in Halifax 
County, and the boundaries o f said Scotland Neck City A d­
ministrative Unit shall be coterminous with the present cor­
porate limits or boundaries of the Town of Scotland Neck. The 
governing board of said Scotland Neck City Administrative 
Unit shall be known and designated as the Scotland Neck 
City Board of Education, and said Scotland Neck City Board 
of Education (hereinafter referred to as: Board) shall have 
and exercise all o f the powers, duties, privileges and authority 
granted and applicable to city administrative units and city 
boards o f education as set forth in Chapter 115 of the General 
Statutes, as amended.

“Section 2. The Board shall consist of five members ap­
pointed by the governing authority o f the Town of Scotland 
Neck, and said five members shall hold office until the next regular 
municipal election of the Town of Scotland Neck to be held 
in May, 1971. At the regular election for Mayor and Com­
missioners of the Town of Scotland Neck to be held in May, 
1971, there shall be elected five members o f the Board, and 
three persons so elected who receive the highest number o f votes 
shall hold office for four years and the two persons elected 
who receive the next highest number o f votes shall hold office



4a

approval of a majority of the voters of Scotland Neck 
in a referendum. The new school district was approved 
by the voters of Scotland Neck on April 8, 1969, by 
a vote of 813 to 332 out of a total of 1,305 registered

for two years, and thereafter all members o f the Board so 
elected, as successors, shall hold office for four years. All mem­
bers of the Board shall hold their offices until their successors 
(sic) are elected and qualified. All members of the Board shall 
be eligible to hold public office as required by the Consti­
tution and laws of the State.

“Section 3. All members of the Board shall be elected by 
the qualified voters of the Town of Scotland Neck and said 
election shall be held and conducted by the governing author­
ity of the Town of Scotland Neck and by its election officials 
and pursuant to the same laws, rules and regulations as are 
applicable to the election of the municipal officials of the Town 
of Scotland Neck, and the results shall be certified in the same 
manner. The election of members of the Board shall be held 
at the same time and place as applicable to the election of the 
Mayor and Board o f Commissioners o f the Town of Scotland 
Neck and in accordance with the expiration of terms o f office 
of members of the Board. The members of the Board so elected 
shall be inducted into office on the first Monday following the 
date of election, and the expense of the election of the mem­
bers of the Board shall be paid by the Board.

“Section 4. At the first meeting of the Board appointed 
as above set forth and of a new Board elected as herein 
provided, the Board shall organize by electing one of its 
members as chairman for a period of one year, or until his 
successor is elected and qualified. The chairman shall pre­
side at the meetings of the Board, and in the event of his 
absence or sickness, the Board may appoint one of its members 
as temporary chairman. The Scotland Neck City Superin­
tendent of Schools shall be ex officio secretary to his Board 
and shall keep the minutes of the Board but shall have no 
vote. I f  there exists a vacancy in the office of Superintendent, 
then the Board may appoint one of its members to serve tem­
porarily as secretary to the Board. All vacancies in the mem­
bership o f the Board by death, resignation, removal, change



5a

voters. Prior to this date, Scotland Neck was part 
of the Halifax County school district. In July 1969, 
the United States Justice Department filed the com­
plaint in this action against the Halifax County Board

of residence or otherwise shall be filled by appointment by the 
governing authority of the Town of Scotland Neck o f a per­
son to serve for the unexpired term and until the next regular 
election for members o f the Board when a successor shall be 
elected.

“Section- 5. All public school property, both real and per­
sonal, and all buildings, facilities, and equipment used for 
public school purposes, located within the corporate limits of 
Scotland Neck and within the boundaries set forth in Section 
1 of this Act, and all records, books, moneys budgeted for said 
facilities, accounts, papers, documents and property of any 
description shall become the property of Scotland Neck City 
Administrative Unit or the Board; all real estate belonging to 
the public schools located within the above-described bound­
aries is hereby granted, made over to, and automatically by 
force of this Act conveyed to the Board from the County 
public school authorities. The Board of Education o f Halifax 
County is authorized and directed to execute any and all deeds, 
bills of sale, assignments or other documents that may be 
necessary to completely vest title to all such property to the 
Board.

“Section 6. Subject to the approval o f the voters residing 
within the boundaries set forth in Section 1 o f this Act, or 
within the corporate limits of the Town of Scotland Neck, as 
hereinafter provided, the governing authority o f the Town of 
Scotland Neck, in addition to all other taxes, is authorized 
and directed to levy annually a supplemental tax not to exceed 
Fifty Cents (50c) on each One Hundred ($100.00) Dollars of 
the assessed value of the real and personal property taxable 
in said Town of Scotland Neck. The amount or rate pf said 
tax shall be determined by the Board and said tax shall be 
collected by the Tax Collector of the Town of Scotland Neck 
and paid to the Treasurer of the Board. The Board may use 
the proceeds o f the tax so collected to supplement any object 
or item in the school budget as fixed by law or to supplement



6a

of Education seeking the disestablishment of a dual 
school system operated by the Board and seeking a 
declaration of invalidity and an injunction against 
the implementation of Chapter 31. Scotland Neck

any object or item in the Current Expense Fund or Capital 
Outlay Fund as fixed by law.

“Section 7. Within ten days from the date of the ratification 
of this Act it shall be the duty o f the governing authority of 
the Town of Scotland Neck to call a referendum or special 
election upon the question of whether or not said Scotland 
Neck City Administrative Unit and its administrative board 
shall be established and whether or not the special tax herein 
provided shall be levied and collected for the purposes herein 
provided. The notice of the special election shall be published 
once a week for two successive weeks in some newspaper pub­
lished in the Town of Scotland Neck. The notice shall contain 
a brief statement of the purpose of the special election, the 
area in which it shall be held, and that a vote by a majority 
of those voting in favor of this Act will establish the Scotland 
Neck City Administrative Unit and its Administrative Board 
as herein set forth, and that an annual tax not to exceed Fifty 
Cents (50c) on the assessed valuation o f real and personal 
property, according to each One Hundred Dollars ($100.00) 
valuation, the rate to be fixed by the Board, will be levied as a 
supplemental tax in the Town of Scotland Neck, for the pur­
pose o f supplementing any lawful public school budgetary item. 
A  new registration o f voters shall not be required and in all 
respects the laws and regulations under which the municipal 
elections of the Town of Scotland Neck are held shall apply 
to said special election. The governing authority o f  the Town 
of Scotland Neck shall have the authority to enact reasonable 
rules and regulations for the necessary election books, records 
and other documents for such special election and to fix the 
necessary details of said special election.

“ Section 8. In said referendum or special election a ballot 
in form substantially as follows shall be used: VOTE FOR 
ONE:

“ ( ) FOR creating and establishing Scotland Neck City
Administrative Unit with administrative Board to operate pub-



7a

City Board of Education was added as a defendant 
in August 1969, and the Attorney General of North 
Carolina was added as a defendant in November 1969. 
On August 25, 1969, the District Court issued a tem­
porary injunction restraining the implementation of 
Chapter 31, and thereafter on May 23, 1970, made 
the injunction permanent. The District Court rea­
soned that Chapter 31 was unconstitutional because 
it would create a refuge for white students and would 
interfere with the desegregation of the Halifax 
County school system.

lie schools of said Unit and for supplemental tax not to exceed 
Fifty Cents (50c) on the assessed valuation of real and per­
sonal property according to each One Hundred Dollars 
($100.00) valuation for objects o f  school budget.

“ ( ) AGAINST creating and establishing Scotland Neck
City Administrative Unit with administrative Board to oper­
ate public schools of said Unit and against supplemental tax 
not to exceed Fifty Cents (50c) on the assessed valuation of 
real and personal property according to each One Hundred 
Dollars ($100.00) valuation for objects o f school budget.

“ I f  a majority of the qualified voters voting at such refer­
endum or special election vote in favor of establishing Scotland 
Neck City Administrative Unit, for creation of administrative 
Board to operate public schools o f said Unit and for special 
supplemental tax as herein set forth, then this Act shall be­
come effective and operative as to all its provisions upon the 
date said special election results are canvassed and the result 
judicially determined, otherwise to be null and void. The ex­
pense o f said referendum or special election shall be paid by 
the governing authority of the Town of Scotland Neck but if 
said Unit and Board are established, then said Town of Scot­
land Neck shall be reimbursed by the Board for said expense 
as soon as . possible.

“ Section 9. All laws and clauses of laws in conflict with 
this Act are hereby repealed.

“ Section 10. This Act shall be in full force and effect accord­
ing to its provisions from and after its ratification.”



It is clear that Chapter 31 is not unconsitutional 
on its face. But a facially constitutional statute may 
in the context of a given fact situation be applied 
unfairly or for a discriminatory purpose in violation 
of the equal protection clause of the Fourteenth 
Amendment. Yick W o  v. Hopkins, 118 U.S. 356 
(1886). W e cannot .judge the validity of the statute 
in vacuo but must examine it in relation to the prob­
lem it was meant to solve. Poindexter v. Louisiana 
Financial Assistance Commission, 275 F. Supp. 833 
(E.D. La. 1967).

I

THE HISTORY OF SCHOOL DESEGREGATION' IN HALIFAX 
COUNTY AND THE ATTEMPTS TO SECURE A SEPARATE 
SCHOOL DISTRICT FOR THE CITY OF SCOTLAND NECK

For many years until 1936, the City o f Scotland 
Heck was a wholly separate school district operating 
independently of the Halifax County school system 
into which it was then merged. Both the elementary 
and the high school buildings presently in use in Scot­
land Heck were constructed prior to 1936 and were 
financed by city funds.

Halifax County operated a completely segregated 
dual school system from 1936 to 1965. In 1965, Hali­
fax County adopted a freedom-of-choiee plan. Little 
integration resulted during the next three years. 
Shortly after the Supreme Court decision in Green 
v. County School Board of New Kent County, 391 
IT.S. 430, in May of 1968, the Halifax County Board 
of Education requested the Horth Carolina Depart­
ment of Public Instruction to survey their schools 
and to make recommendations regarding desegre­
gation of the school system.



9a

In July 1968, the Justice Department sent a “ notice 
letter”  to the Halifax County Board notifying them 
that they had not disestablished a dual school sys­
tem and that further steps would be necessary to 
comply with Green. After negotiations with the Jus­
tice Department, the Halifax County Board agreed 
informally to disestablish their dual school system 
by the beginning of the 1969-70 school year, with a 
number of interim steps to be taken in the 1968-69 
school year. As part of the interim steps, the seventh 
and eighth grades were transferred from the Brawley 
School, an all-black school located just outside the 
city limits of Scotland Heck, to the Scotland Heck 
School, previously all white.

The results of the North Carolina Department of 
Public Instruction survey were published in Decem­
ber of 1968. It recommended an interim plan and a 
long range plan. The interim plan proposed the crea­
tion of a unitary school system through a combination 
of geographic attendance zones and pairing of previ­
ously all-white schools with previously all-black 
schools. Scotland Heck School was to be paired with 
Brawley School, grades 1-4 and 8-9 to attend Braw­
ley and grades 5-6 and 10-12 to attend Scotland 
Heck. The long range plan called for the building of 
two new consolidated high schools, each to serve half 
of the geographic area composing the Halifax County 
school district. The Halifax County Board of Educa­
tion declined to implement the plan proposed by the 
Department of Public Instruction and the Justice 
Department filed suit in July 1969.

Paralleling this history of school segregation in the 
Halifax County school system is a history of attempts 
on the part of the residents of Scotland Heck to ob­



10a

tain a separate school district. The proponents o f a 
separate school district began to formulate their plans 
in 1963, five years prior to the Green decision and 
two years prior to the institution of freedom-of-choice 
by the Halifax County Board. They were unable to 
present their plan in the form of a bill prior to the 
expiration of the 1963 session o f the North Carolina 
Legislature, but a bill was introduced in the 1965 
session which would have created a separate school 
district composed of Scotland Neck and the four sur­
rounding townships, funded partially through local 
supplemental property taxes. The bill did not pass and 
it was the opinion of many of the Scotland Neck 
residents that its defeat was the result o f opposition 
of individuals living outside the city limits o f  Scot­
land Neck.

At the instigation of the only Halifax County 
Board of Education member who was a resident of 
Scotland Neck, a delegation from the Halifax County 
schools attempted in 1966 to get approval for the 
construction of a new high school facility in Scotland 
Neck to be operated on a completely integrated basis. 
The proposal was not approved by the State Division 
of School Planning.

After visiting the smallest school district in the 
state to determine the economic feasibility o f  creating 
a separate unit for the City o f Scotland Neck alone, 
the proponents of a separate school district again 
sponsored a bill in the Legislature. It was this bill 
which was eventually passed on March 31, 1969, as 
Chapter 31 of the Session Laws of 1969.



11a

I I

THE THREE PURPOSES OF CHAPTER 31

The District Court found that the proponents of a 
special school district had three purposes in mind in 
sponsoring Chapter 31 and the record supports these 
findings. First, they wanted more local control over 
their schools. Second, they wanted to increase the 
expenditures for their schools through local supple­
mentary property taxes. Third, they wanted to pre­
vent anticipated white fleeing of the public schools.

Local control and increased taxation were thought 
necessary to increase the quality o f education in their 
schools. Previous efforts to upgrade Scotland Neck 
Schools had been frustrated. Always it seemed the 
needs o f the County came before Scotland Neck. The 
only county-wide bond issue passed in Halifax County 
since 1936 was passed in 1957. Two local school dis­
tricts operating in Halifax County received a total 
of $1,020,000 from the bond issue and the Halifax 
County system received $1,980,000. None of the money 
received by Halifax County was spent on schools 
within the city limits o f Scotland Neck. I f  Scotland 
Neck had been a separate school district at the time, 
it would have received $190,000 as its proportionate 
share of the bond issue. The Halifax County system 
also received $950,000 in 1963 as its proportionate 
share o f the latest statewide bond issue. None o f  this 
money was spent or committed to any of the schools 
within the city limits o f Scotland Neck. Halifax 
County has reduced its annual capital outlay tax from 
63 cents per $100 valuation in 1957 to 27.5 cents per 
$100 valuation in the latest fiscal year. In order for 
the referendum to pass under the terms of Chapter 
31, the voters o f Scotland Neck had to approve not



12a

only the creation of a separate school district but in 
addition had to authorize a local supplementary 
property tax not to exceed 50 cents per $100 valua­
tion per year. Despite such a political albatross the 
referendum was favorable, and moreover, the sup­
plementary tax was levied by the Scotland Xeek 
Board at the full 50 cent rate.

I l l

W HITE FLEEING— THE QUESTIONABLE THIRD PURPOSE

But it is not the permissable first purpose or the 
clearly commendable second purpose which caused the 
District Court to question the constitutionality of 
Chapter 31. It is rather the third purpose, a desire 
on the part of the proponents o f Chapter 31 to pre­
vent, or at least diminish, the flight of white students 
from the public schools, that concerned the District 
Court. The population of Halifax County is pre­
dominantly black. The population of Scotland Neck 
is approximately 50 percent black and 50 percent 
white, and the District Court found that the pupil 
ratio by race in the schools would have been 57.3 
percent white to 42.7 percent black.

A  number of decisions have mentioned the problem 
of white flight following the integration of school 
systems which have a heavy majority of black stu­
dents. Monroe v. Board of Commissioners of the City 
of Jackson, 391 U.S. 450, 459 (1968); Brunson v. 
Board of Trustees of School District No. 1 of Claren­
don County, — F. 2d — (4th Cir. 1970); Walker v. 
County School Board of Brunswick County, 413 F. 
2d 53 (4th Cir. 1969); Anthony v. Marshall County 
Board of Education, 409 F. 2d 1287 (5th Cir. 1969). 
All of these cases hold that the threat of white flight 
will not justify the continuing operation of a dual



13a

school system. But it has never been held by any court 
that a school board (or a state) may not constitu­
tionally consider and adopt measures for the purpose 
o f curbing or diminishing white flight from a unitary 
school system. Indeed it seems obvious that such a 
purpose is entirely consistent with and may help 
implement the Brown principle. It is not the purpose 
of preventing white flight which is the subject of 
judicial concern but rather the price of achievement. 
I f  the effect of Chapter 31 is to continue a dual school 
system in Halifax County, or establish one in Scot­
land Heck, the laudable desire to stem an impending 
flow of white students from the public schools will 
not save it from constitutional infirmity. But if 
Chapter 31 does not have that effect, the desire of its 
proponents to halt white flight will not make an other­
wise constitutional statute unconstitutional.

In considering the effect of Chapter 31 on school 
desegregation in Halifax County and Scotland Heck, 
it is important to distinguish the effect of Chapter 31 
from the effect of a transfer plan adopted by the 
Scotland Heck Board of Education. The effect o f the 
transfer plan was to substantially increase the per­
centage of white students in the Scotland Heck 
schools. But the transfer plan is solely the product of 
the Scotland Heck Board of Education and not 
Chapter 31. Therefore the effect of the transfer plan 
has no relevance to the question of the constitutional­
ity of Chapter 31.3

3 Appellees argue that, the creation of the transfer plan is 
evidence that the intended effect of Chapter 31 was to preserve 
the previous racial makeup of the Scotland Heck schools. We 
disagree.

We are concerned here with the intent of the Horth Carolina 
Legislature and not the intent of the Scotland Neck Board. In 
determining legislative intent of an act such as Chapter 31,



14a

The District Court held that the creation of a sep­
arate Scotland Neck School district would unconstitu­
tionally interfere with the implementation of a plan 
to desegregate the Halifax County schools adopted by 
the Halifax County Board of Education. W e hold 
that the effect of the separation of the Scotland Neck 
schools and students on the desegregation of the re­
mainder of the Halifax Comity system is minimal and 
insufficient to invalidate Chapter 31. During the 1968- 
69 school year, there were 10,655 students in the Hali­
fax County Schools, 8,196 (77% ) were black, 2,357 
(22% ) were white, and 102 (1% ) were Indian. Of 
this total, 605 children of school age, 399 white and 
296 black, lived within the city limits o f Scotland 
Neck. Removing the Scotland Neck students from the 
Halifax County system would have left 7,900 (80% ) 
black students, 1,958 (19% ) white students, and 102 
(1% ) Indian students. This is a shift in the ratio of 
black to white students of only 3 percent, hardly a 
substantial change. Whether the Scotland Neck stu­
dents remain within the Halifax County system or 
attend separate schools of their own, the Halifax 
County schools will have a substantial majority of 
black students. Nor would there be a per pupil de-

it is appropriate to consider the reason that the proponents of 
the act desired its passage if it can be inferred that those rea­
sons were made known to the Legislature. There is evidence 
in the record to show that the three purposes that the District 
Court found were intended by the proponents of Chapter 31 
were presented to the Legislature. However, there is nothing 
in the record to suggest that the Legislature had any idea that 
the Scotland Neck Board would adopt a transfer plan after the 
enactment of Chapter 31 which would have the effect o f in­
creasing the percentage of white students.

We will discuss the transfer plan later in a separate part of 
the opinion.



15a

crease in the proceeds from the countywide property 
taxes available in the remaining Halifax County sys­
tem. The county tax is levied on all property in the 
county and distributed among the various school 
districts in the county on a per pupil basis. In addi­
tion, the Superintendent o f Schools for the Halifax 
County system testified that there would be no de­
crease in teacher-pupil ratio in the remaining Halifax 
County system and in fact that in a few special areas, 
such as speech therapy, the teacher-pupil ratio may 
actually increase.

Nor can we agree with the District Court that 
Chapter 31 creates a refuge for the white students of 
the Halifax County system. Although there are more 
white students than black students in Scotland Neck, 
the white majority is not large, 57.3 percent white and 
42.6 percent black. Since all students in the same 
grade would attend the same school, the system would 
be integrated throughout. There is no indication that 
the geographic boundaries were drawn to include 
white students and exclude black students as there 
has been in other cases where the courts have ordered 
integration across school district boundaries. Haney 
v. County Board of Education of Sevier County, 410 
F. 2d 920 (8th Cir. 1969). The city limits provide a 
natural geographic boundary. There is nothing in the 
record to suggest that the greater percentage of white 
students in Scotland Neck is a product o f residential 
segregation resulting in part from state action. See 
Brewer v. School Board of the City of Norfolk, 397 
F. 2d 37 (4th Cir. 1968).

From the history surrounding the enactment of 
Chapter 31 and from the effect o f Chapter 31 on 
school desegregation in Halifax County, we conclude 
that the purpose of Chapter 31 was not to invidiously



16a

discriminate against black students in Halifax County 
and that Chapter 31 does not violate the equal protec­
tion clause of the Fourteenth Amendment.

Appellees urge in their brief that conceptually the 
way to analyze this case is to “ view the results of 
severance as if  it were part of a desegregation plan 
for the original system.”  W e do not agree. The sever- 

e ance was not part of a desegregation plan proposed 
by the school board but was instead an action by the 
Legislature redefining the boundaries of local govern­
mental units. I f  the effect of this act was the con­

tinuance of a dual school system in Halifax County 
or the establishment of a dual system in Scotland 
Feck it would not withstand challenge under the equal 
protection clause, but we have concluded that it does 

\not have that effect.
But assuming for the sake of argument that the 

appellees’ method of analysis is correct, we conclude 
that the severance of Scotland Feck students would 
still withstand constitutional challenge. Although it is 
not entirely clear from their brief, appellants’ 
apparent contention is that the variance in the ratio 
of black to white students in Scotland Feck from the 
ratio in the Halifax County system as a whole is so 
substantial that if  Scotland Feck was proposed as a 
geographic zone in a desegregation plan, the plan 
would have to be disapproved. The question of 
“ whether, as a constitutional matter, any particular 
racial balance must be achieved in the schools”  has 
yet to be decided by the courts. Northcross v. Board 
of Education of Memphis, —TJ.S.—, 90, S. Ct. 891, 
893 (1970) (Burger, C. J., concurring). In its first 
discussion of remedies for school segregation, Brown 
v. Board of Education o f Topeka, 349 TJ.S. 294 
(1955) (Brown I I ) ,  the Supreme Court spoke in 
terms of “ practical flexibility”  and “ reconciling pub-



17a

lie and private needs.”  349 U.S. at 300. In Green v. 
County School Board of New Kent County, 391 U.S. 
430 (1968), the court made it clear that the school 
board has the burden of explaining its preference 
for a method of desegregation which is less effective 
in disestablishing a dual school system than another 
more promising method. Even if we assume that a 
more even racial balance throughout the schools of 
Halifax County would be more effective in creating 
a unitary school system, we conclude that the devia­
tion is adequately explained by the inability of peo­
ple of Scotland Heck to be able to increase the level 
of funding o f the schools attended by their children 
when the geographic area served by those schools 
extended beyond the city limits of Scotland Heck.

Our conclusion that Chapter 31 is not unconsti­
tutional leaves for consideration the transfer plan 
adopted by the Scotland Heck School Board. The 
transfer plan adopted by the Board provided for 
the transfer of students from the remaining Halifax 
County system into the Scotland Heck system and 
from the Scotland Heck system into the Halifax 
County system. Transfers into the Scotland Heck 
system were to pay $100 for the first child in a fam­
ily, $25 for the next two children in a family, and 
no fee for the rest of the children in a family. As 
a result o f this transfer plan, 350 white students and 
10 black students applied for transfer into the Scot­
land Heck system, and 44 black students applied for 
transfer out of the system. The net result o f these 
transfers would have been to have 74 percent white 
students and 26 percent black students in the Scot­
land Heck system. W e conclude that these transfers 
would have tended toward establishment o f a resegre­
gated system and that the transfer plan violates the 
equal protection clause of the Fourteenth Amend-

422-400—'71'-------S



18a

ment.4 See Monroe v. Board of Commissioners of the 
City of Jackson, 391 U.S. 450 (1968).

W e reverse the judgment of the District Court 
holding Chapter 31 unconstitutional, and remand to 
the District Court with instructions to dissolve its 
injunction. The District Court will retain jurisdic­
tion to consider plans of integration proposed by 
Halifax County Board of Education and by Scotland 
Heck Board of Education.

4 Perhaps it should be noted that in the school board’s 
amended answer filed on September 3, 1969, it withdrew 
the original transfer plan and represented to the District 
Court that it intended to allow only such transfers as “may 
be in conformity to the law and/or Court order or orders 
applicable to Defendant, and in conformity to a plan of 
limitation of transfers to be prepared by Defendant and 
submitted to this Court.”



A P P E N D IX  B

United States Court of Appeals for the Fourth Circuit

No. 14552

P ecola A nnette W right, et al., appellees

v.
Council of the City of E mporia and the M embers 

Thereof, and School B oard of the City of E mporia 
and the M embers Thereof, appellants

Appeal from the United States District Court for the 
Eastern District of Virginia, at Richmond

R obert R. M erhige, Jr., District Judge

Argued October 8,1970—Decided March 23,1971

Before H aynsworth, Chief Judge, B oreman, B ryan, 
W inter, and Craven, Circuit Judges sitting en 
banc*
John F. Kay, Jr., and D. Dortch Warriner ( W ar- 

riner, Outten, Slagle & Barrett; and Mays, Valentine, 
Davenport & Moore on brief) for Appellants, and S. 
W . Tucker (Henry L. Marsh, I I I ,  and Hill, Tucker 
& Marsh; and Jack Greenberg, James M. Nabrit, I I I ,  
and Norman Chachkin on brief) for Appellees.

CRAVEN, Circuit Judge: In this case and two 
others now under submission en banc we must deter­
mine the extent of the power o f state government to

* Judge Sobeloff did not participate. Judge Butzner disqualified 
himself because he participated as a district judge in an eai'lier 
stage o f this case.

(19a)



20a

redesign the geographic boundaries o f school dis­
tricts.1 Ordinarily, it would seem to be plenary but 
in school districts with a history of racial segregation 
enforced through state action, close scrutiny is required 
to assure there has not been gerrymandering for the 
purpose of perpetuating invidious discrimination.

Each of these cases involve a county school district 
in which there is a substantial majority of black students 
out of which was carved a new school district comprised 
of a city or a city plus an area surrounding the city. In 
each case, the resident students of the new city unit are 
approximately 50 percent black and 50 percent white. 
In each case, the district court enjoined the establish­
ment of the new school district. In this case, we reverse.

I

I f  legislation creating a new school district produces 
a shift in the racial balance which is great enough to 
support an inference that the purpose of the legisla­
tion is to perpetuate segregation, and the district 
judge draws the inference, the enactment falls under 
the Fourteenth Amendment and the establishment of 
such a new school district must be enjoined. See 
Gomillion v. Lightfoot, 364 U.S. 399 (I960). Cf. 
Haney v. County Board of Education of Sevier 
County, 410 E. 2d 920 (8th Cir. 1969); Burleson v. 
County Board of Election Commissioners o f Jefferson 
County, 308 E. Supp. 352 (E.D. Ark.) a ff’d — F. 2d — , 
No. 20228 (8th Oir. Nov. 18, 1970). But where the 
shift is merely a modification of the racial ratio rather 
than effective resegregation the problem becomes more 
difficult.

1 The other two cases are United States v. Scotland. Neck City 
Board of Education, — F. 2d —, Nos. 14929 and 14930 (4th 
Cir. —, 1971) and Turner v. Littleton-Lake Gaston School Dis­
trict, — F. 2d —, No. 14990 (4th Cir. —, 1971).



21a

The creation of new school districts may be desir­
able and/or necessary to promote the legitimate state 
interest of providing quality education for the state’s 
children. The refusal to allow the creation of any new 
school districts where there is any change in the racial 
makeup of the school districts could seriously impair 
the state’s ability to achieve this goal. At the same 
time, the history of school integration is replete with 
numerous examples of actions by state officials to im­
pede the mandate of Brown v. Board of Education, 
349 U.S. 294 (1955) (Brown I I ) .  There is serious 
danger that the creation of new school districts may 
prove to be yet another method to obstruct the transi­
tion from racially separated school systems to school 
systems in which no child is denied the right to attend 
a school on the basis of race. Determining into which 
of these two categories a particular case fits requires a 
careful analysis of the facts of each case to discern the 
dominant purpose of boundary realignment. I f  the cre­
ation of a new school district is designed to further 
the aim of providing quality education and is attended 
secondarily by a modification of the racial balance, 
short of resegregation, the federal courts should not 
interfere. If, however, the primary purpose for creat­
ing a new school district is to retain as much of sepa­
ration o f the races as possible, the state has violated 
its affirmative constitutional duty to end state sup­
ported school segregation. The test is much easier to 
state than it is to apply.

I I

Emporia became a city of the so-called second class 
on July 31, 1967, pursuant to a statutory procedure 
established at least as early as 1892. See 3 Va. Code 
§ 15.1-978 to -998 (1950); Acts of the Assembly 1891- 
92, eh. 595. Prior to that time it was an incorporated



22a

town and as such was part of Greensville County. At 
the time city status was attained Greensville County 
was operating public schools under a freedom of 
choice plan approved by the district court, and Green 
v. County School Board of Neiv Kent County, 391 
U.S. 430 (1968), invalidating freedom of choice unless 
it “ worked,”  could not have been anticipated by Em­
poria, and indeed, was not envisioned by this court. 
Bowman v. County School Board of Charles City 
County, 382 E. 2d 326 (4th Cir. 1967). The record does 
not suggest that Emporia chose to become a city in 
order to prevent or diminish integration. Instead, the 
motivation appears to have been an unfair allocation 
of tax revenues by county officials.

One of the duties imposed on Emporia by the V ir­
ginia statutes as a city of the second class was to 
establish a school board to supervise the public educa­
tion of the city’s children. Under the Virginia statutes, 
Emporia had the option o f operating its own school 
system or to work out one of a number o f alternatives 
under which its children would continue to attend 
school jointly with the county children. Emporia con­
sidered operating a separate school system but decided 
it would not be practical to do so immediately at the 
time o f  its independence. There was an effort to work 
out some form of joint operation with the Greensville 
County schools in which decision making power would 
be shared. The county refused. Emporia finally signed 
a contract with the county on April 10, 1968, under 
which the city school children would attend schools 
operated by the Greensville County School Board in 
exchange for a percentage of the school system’s oper­
ating cost. Emporia agreed to this form of operation 
only when given an ultimatum by the county in March 
1968 that it would stop educating the city children 
mid-term unless some agreement was reached.



23a

At the same time that the county was engaged in its 
controversy with Emporia about the means of educat­
ing the city children, the county was also engaged in 
a controversy over the elimination of racial segrega­
tion in the county schools. Until sometime in 1968, 
Greensville County operated under a freedom of 
choice plan. At that time the plaintiffs in this action 
successfully urged upon the district court that the 
freedom of choice plan did not operate to disestablish 
the previously existing dual school system and thus 
was inadequate under Green v. County School Board 
of Neiv Kent County, supra. After considering various 
alternatives, the district court, in an order dated June 
25, 1969, paired all the schools in Greensville County.

Also in June 1969, Emporia was notified for the 
first time by counsel that in all probability its contract 
with the county for the education of the city children 
was void under state law. The city then filed an action 
in the state courts to have the contract declared void 
and notified the county that it was ending its con­
tractual relationship forthwith. Parents of city school 
children were notified that their children would at­
tend a city school system. On August 1, 1969, the 
plaintiffs filed a supplemental complaint seeking an 
injunction against the City Council and the City 
School Board to prevent the establishment of a sepa­
rate school district. A  preliminary injunction against 
the operation of a separate system was issued on Au­
gust 8, 1969. The temporary injunction was made 
permanent on March 3 ,1969.2

The Emporia city unit would not be a white island 
in an otherwise heavily black county. In fact, even in

2 The decision of the court below is reported as Wright v. 
County School Board of Greensville County, 309 F. Supp. 671 
(E.D. Ya. 1970).



24a

Emporia there will be a majority of black students 
in the public schools, 52 percent black to 48 percent 
white. Under the plan presented by Emporia to the 
district court, all of the students living within, the city 
boundaries would attend a single high school and a 
single grade school. At the high school there would 
be a slight white majority, 48 percent black and 52 
percent white, while in the grade school there would 
be a slight black majority, 54 percent black and 46 
percent white. The city limits of Emporia provide a 
natural geographic boundary for a school district.

The student population of the Greensville County 
School District without the separation of the city unit 
is 66 percent black and 34 percent white. The stu­
dents remaining in the geographic jurisdiction of the 
county unit after the separation would be 72 percent 
black and 28 percent white. Thus, the separation of 
the Emporia students would create a shift of the 
racial balance in the remaining county unit of 6 per­
cent. Regardless of whether the city students attend 
a separate school system, there will be a substantial 
majority of black students in the county system.

Rot only does the effect of the separation not de­
monstrate that the primary purpose of the separation 
was to perpetuate segregation, but there is strong evi­
dence to the contrary. Indeed, the district court found 
that Emporia officials had other purposes in mind. 
Emporia hired Dr. Neil H. Tracey, a professor of 
education at the University o f North Carolina, to 
evaluate the plan adopted by the district court for 
Greensville County and compare it with Emporia’s 
proposal for its own school system. Dr. Tracey said 
his studies were made with the understanding that it 
was not the intent of the city to resegregate. He testi­
fied that the plan adopted for Greensville County 
would require additional expenditures for transpor­



25a

tation and that an examination of the proposed budget 
for the Greensville County Schools indicated that not 
only would the additional expenditures not be forth­
coming but that the budget increase over the previous 
year would not even keep up with increased costs due 
to inflation, Emporia on the other hand proposed in­
creased revenues to increase the quality of education 
for its students and in Dr. Tracey’s opinion the pro­
posed Emporia system would be educationally su­
perior to the Greensville system. Emporia proposed 
lower student teacher ratios, increased per pupil ex­
penditures, health services, adult education, and the 
addition of a kindergarten program.

In sum, Emporia’s position, referred to by the dis­
trict court as “ uncontradicted,”  was that effective 
integration of the schools in the whole county would 
require increased expenditures in order to preserve 
education quality, that the county officials were un­
willing to provide the necessary funds, and that 
therefore the city would accept the burden of educat­
ing the city children. In this context, it is important 
to note the unusual nature of the organization of city 
and county governments in Virginia. Cities and coun­
ties are completely independent, both politically and 
geographically. See City of Richmond v. County 
Board, 199 Va. 679, 684 (1958); Murray v. Roanoke, 
192 Va. 321, 324 (1951). When Emporia was a town, 
it was politically part of the county and the people of 
Emporia were able to elect representatives to the 
county board of supervisors. When Emporia became a 
city, it was completely separated from the county and 
no longer has any representation on the county board. 
In order for Emporia to achieve an increase in school 
expenditures for city schools it would have to obtain 
the approval of the Greensville County Board of



26a

Supervisors whose constituents do not include city 
residents.

Determining what is desirable or necessary in terms 
of funding for quality education is the responsibility 
of state and school district officers and is not for our 
determination. The question that the federal courts 
must decide is, rather, what is the primary purpose 
of the proposed action of the state officials. See Devel­
opments in the Lcnv—Equal Protection, 82 Harv. L. 
Rev. 1065 (1969). Is the primary purpose a benign 
one or is the claimed benign purpose merely a cover- 
up for racial discrimination? The district court must, 
of course, consider evidence about the need for and 
efficacy of the proposed action to determine the good 
faith of the state officials ’ claim of benign purpose. In 
this case, the court did so and found explicitly that 
“ [t]he city clearly contemplates a superior quality 
education program. It is anticipated that the cost will 
be such as to require higher tax payments by city resi­
dents.”  309 F. Supp. at 674. Notably, there was no 
finding of discriminatory purpose, and instead the 
court noted its satisfaction that the city would, i f  per­
mitted, operate its own system on a unitary basis.

W e think the district court’s injunction against the 
operation of a separate school district for the City of 
Emporia was improvidently entered and unnecessarily 
sacrifices legitimate and benign educational improve­
ment. In his commendable concern to prevent resegre­
gation—under whatever guise—the district judge 
momentarily overlooked, we think, his broad discretion 
in approving equitable remedies and the practical flex­
ibility recommended by Brown I I  in reconciling 
public and private needs. W e reverse the judgment of 
the district court and remand with instructions to dis­
solve the injunction.



Because of the possibility that Emporia might insti­
tute a plan for transferring students into the city sys­
tem from the county system resulting in resegregation,3 
or that the hiring of teachers to serve the Emporia 
school system might result in segregated faculties, the 
district court is directed to retain jurisdiction.

Reversed and remanded.

SOBELOFF, Senior Circuit Judge, with whom 
W IN TER, Circuit Judge, joins, dissenting and con­
curring specially: In respect to Nos. 1.4929 and 14930, 
United States v. Scotland Neck City Board of Educa­
tion, — F. 2d — (4th Cir. 1971), and No. 14990, 
Turner v. Littleton-Lake Gaston School District, — 
F. 2d — (4th Cir. 1971), the two cases in which I  par­
ticipated, I  dissent from the court’s reversal in Scot­
land Neck and concur in its affirmance in Littleton- 
Lake Gaston. I  would affirm the District Court in each 
of those cases. I  join in Judge W inter’s opinion, and 
since he has treated the facts analytically and in 
detail, I  find it unnecessary to repeat them except as 
required in the course of discussion. Not having partic­
ipated in No. 14552, Wright v. Council of City of 
Emporia, —  F. 2d — (4th Cir. 1971), I  do not vote 
on that appeal, although the views set forth below 
necessarily reflect on that decision as well, since the 
principles enunciated by the majority in that case are 
held to govern the legal issue common to all three of 
these school cases.

3 A  notice of August 31, 1969, invited applications from the 
county. Subsequently, the city assured the district court- it 
would not entertain such applications without court permission.



28a

I

The history of the evasive tactics pursued by white 
communities to avoid the mandate o f Brown v. Board 
of Education, 349 U.S. 294 (1955), is well documented. 
These have ranged from outright nullification by 
means of massive resistance laws1 and open and oc­
casionally violent defiance,1 2 through discretionary 
pupil assignment laws3 and public tuition grants in 
support of private segregated schools,4 to token in­
tegration plans parading under the banner “ freedom-

1 See Duckworth v. James, 267 F. 2d 224 (4th Cir. 1959) ; 
Bush v. Orleans Parish School Bd., 188 F. Supp. 916 (E.D. La. 
1960), ajj'd per curiam, 365 U.S. 569 (1961) ; Bush v. 
Orleans Parish School Bd.. 187 F. Supp. 42 (E.D. La. 1960), 
affd Per curiam, 365 U.S. 569 (1961); Aaron v. McKinley, 173 
F. Supp. 944 (E.D. Ark. 1959); aff’d sub nom., Faubus v. 
Aaron. 361 U.S. 197 (1959); James v. Almond, 170 F. Supp. 
331 (E.D. Va. 1959), app. dis., 359 U.S. 1006 (1959) ; Harrison 
v. Day. 200 Va. 439, 106 S.E. 2d 636 (1959) (decided the same 
day as James v. Almond, supra).

2 See Cooper v. Aaron, 358 U.S. 1 (1958); Armstrong v. 
Board of Education of City of Birmingham, Ala., 323 F. 2d 
333 (5th Cir. 1963), cert, denied sub nom., Gibson v. Hams., 376 
U.S. 908 (1964); Brewer v. Iloxie School Distinct No. 16, 238 
F. 2d 91 (8th Cir. 1956) ; Holmes v. Danner, 191 F. Supp. 394 
(M.D. Cla. 1961), stay denied, 364 U.S. 939 (1961).

3 See Northcross v. Board of Education o f City of Memphis, 
302 F. 2d 818 (6th Cir. 1962); Manning v. Board o f Public 
Instruction. 277 F. 2d 370 (5th Cir. 1960); Gibson v. Board 
of Public Instruction, Dade County, Fla., 272 F. 2d 763 (5th 
Cir. 1959) ; Orleans Parish School Board v. Bush, 242 F. 2d 
156 (5th Cir. 1957); United States Commission on Civil 
Rights, Civil Rights USA—Public Schools, Southern States. 
2-17 (1962).

4 See Griffin v. County School Board of Prince Edward 
County, 377 U.S. 218 (1964) ; Hall v. St. Helena Parish School 
Board, 197 F. Supp. 649 (E.D. La. 1961, aff’d, 368 U.S. 515 
(1962).



29a

of-choice.” 5 One by one these devices have been con­
demned by the Supreme Court:

[T]he constitutional rights of children not to be 
discriminated against in school admission on 
grounds of race or color declared by this Court 
in the Brown case can neither be nullified 
openly and directly by state legislators or state 
executive or judicial officers, nor nullified in­
directly by them through evasive schemes for 
segregation whether attempted “  ingeniously 
or ingenuously.”  Cooper v. Aaron. 358 U.S. 1, 
17 (1958).

Neither these agencies, nor school boards, nor locax 
communities have the right to put roadblocks in the 
way o f effective integration. The Court has declared 
that “ the obligation o f every school district is to ter­
minate dual school systems at once and to operate now 
and hereafter only unitary schools.” Alexander v. 
Holmes County Board of Education, 396 U.S. 19, 20 
(1969).

Today, I  fear, we behold the emergence of a further 
stratagem—the carving out o f new school districts in 
order to achieve racial compositions more acceptable 
to the white community. The majority frankly ac­
knowledges the “ serious danger that the creation of 
new school districts may prove to be yet another 
method to obstruct the transition from racially sepa­
rate school systems to school systems in which no 
child is denied the right to attend a school on the basis 
of race,” Emporia, supra at 4. However, the court 
fashions a new and entirely inappropriate doctrine to 
avert that danger. It directs District Courts to weigh 
and assess the various purposes that may have moved

5 See Green v. County School Board, 391 U.S. 130 (1968); 
Raney v. Board of Education, 391 U.S. 443 (1968); Monroe v. 
Board o f Commissioners, 891 U.S. 450 (1968).



30a

the proponents of the new school district, with the ob­
jective of determining which purpose is dominant. 
District Courts are told to intercede only if  they find 
that racial considerations were the primary purpose in 
the creation o f the new school units.0 I  find no pre­
cedent for this test and it is neither broad enough nor 
rigorous enough to fulfill the Constitution’s mandate. 
Moreover, it cannot succeed in attaining even its in­
tended reach, since resistant white enclaves will 
quickly learn how to structure a proper record—shrill 
with protestations of good intent, all consideration of 
racial factors muted beyond the range of the court’s 
ears.6 7

I f  challenged state action has a racially discrimina­
tory effect, it violates the equal protection clause un­
less a compelling and overriding legitimate state in­
terest is demonstrated. This test is more easily ap­
plied, more fully implements the prohibition o f the 
Fourteenth Amendment and has already gained firm 
root in the law. The Supreme Court has explicitly ap­
plied this test to state criminal statutes which on their 
face establish racial classifications. In 1964, striking 
down a Florida criminal statute which forbade a man 
and woman of different races to “ habitually live in 
and occupy in the nighttime the same room,”  the 
Court stated in an opinion written by Justice W hite:

6 The majority’s test as stated in Emporia, supra, is as .fol­
lows: “ Is the primary purpose a benign one or is the claimed 
benign purpose merely a cover-up for racial discrimination?”

7 The impracticability o f the majority’s test is highlighted by 
the dilemma in Which the District Judges found themselves 
in Scotland Neck: “ In ascertaining such a subjective factor as 
motivation and intent, it is o f course impossible for this Court 
to accurately state what proportion each of the above reasons 
played in the minds o f the proponents of -the bill, the legisla­
tors or the voters o f Scotland Neck * * *. United States v. 
Halifax County Board of Education, 314 F. Supp. 65, 72 
(E.D.N.C. 1970).”



31a

Normally, the widest discretion is allowed the 
legislative judgment * * *; and normally that 
judgment is given the benefit of every conceiv­
able circumstance which might suffice to char­
acterize the classification as reasonable rather 
than arbitrary and invidious. [Citations] But 
we deal here with a classification based upon 
the race of the participants, which must be 
viewed in light of the historical fact that the 
central purpose of the Fourteenth Amendment 
was to eliminate racial discrimination emanat­
ing from official sources in the States. This 
strong policy renders racial classifications “ con­
stitutionally suspect,” Bolling v. Sharpe, 347 
U.S. 497, 499; and subject to the most “ rigid 
scrutiny,” Korematsu v. United States, 323 
U.S. 214, 216; and “ in most circumstances irrel­
evant”  to any constitutionally acceptable legis­
lative purpose, Hirabaijashi v. United States, 
320 U.S. 810,100.

McLaughlin v. Florida, 379 U.S. 184, 191-92 (1964). 
Thus, the Court held that the proper test to apply in 
that case was “whether there clearly appears in the 
relevant materials some overriding statutory purpose 
requiring the proscription of the specified conduct 
when engaged in by a white and a Negro, but not 
otherwise.” Id. at 192 [emphasis added]. To the fur­
ther argument that the Florida statute should be up­
held because ancillary to and serving the same pur­
pose as an anti-miscegenation statute presumed valid 
for the purpose o f the case, the Court replied:

There is involved here an exercise of the state 
police power which trenches upon the constitu­
tionally protected freedom from invidious offi­
cial discrimination based on race. Such a law, 
even though enacted pursuant to a valid state 
interest, bears a heavy burden of justification, 
as we have said, and will be upheld only if  it is



32a

necessary, and not merely rationally related, to 
the accomplishment of a permissible state pol­
icy. Id. at 196 [emphasis added].

There were no dissents hi the McLaughlin case. The 
two concurring opinions serve to underline and but­
tress the test applied by the majority. Justice Harlan, 
joining the Court’s opinion, added:

I  agree with the Court * * * that necessity, 
not mere reasonable relationship, is the proper 
test, see ante, pp. 195-196. NAACP  v. Alabama, 
377 U.S. 288, 307-308; Saia v. New York, 334 
TJ.S. 558, 562; Martin v. Struthers, 319 TJ.S. 
141, 147; Thornhill v. Alabama, 310 TJ.S. 88, 96; 
Schneider v. State, 308 TJ.S. 147, 161, 162, 164; 
see McGowan v. Maryland, 366 TJ.S. 420, 466- 
467 (Frankfurter, J., concurring).

The fact that these cases arose under the 
principles of the First Amendment does not 
make them inapplicable here. Principles of free 
speech are carried to the States only through 
the Fourteenth Amendment. The necessity test 
which developed to protect free speech against 
state infringement should be equally applicable 
in a case involving state racial discrimination— 
prohibition of which lies at the very heart of the 
Fourteenth Amendment.

Id. at 197. Justice Stewart, speaking for himself and 
Justice Douglas, expressed the view that the major­
ity’s test did not go far enough as applied to a crimi­
nal statute because no overriding state purpose could 
exist.

* * * I  cannot conceive o f a valid legislative 
purpose under our Constitution for a state law 
which makes the color of a person’s skin the 
test o f whether his conduct is a criminal o f­
fense. * * * I  think it is simply not possible 
for a state law to be valid under our Constitu­
tion which makes the criminality of an act de­
pend upon the race of the actor.



33a

Id. at 198.
Three years later the Court dealt with a Virginia 

statute prohibiting interracial marriages. The statute 
was determined to he unconstitutional under the Mc­
Laughlin test, expressed here in these terms:

At the very least, the Equal Protection Clause 
demands that racial classifications, especially 
suspect in criminal statutes, be subjected to the 
“ most rigid scrutiny,”  Korematsu v. United 
States, 323 U.S. 214, 216 (1944), and, if  they 
are ever to be upheld, they must be shown to be 
necessary to the accomplishment o f some per­
missible state objective, independent of the ra­
cial discrimination which it was the object of 
the Fourteenth Amendment to eliminate. * * * 

There is patently no legitimate overriding 
purpose independent o f invidious racial dis­
crimination which justifies this classification.

Loving v. Virginia, 388 U.S. 1, 11 (1967) [emphasis 
added]. Justice Stewart filed a separate concurring 
opinion—reiterating his belief that there could never 
be a sufficiently compelling state purpose to justify a 
criminal statute based on racial classification. Id. 
at 13.

Although McLaughlin and Loving dealt with crim­
inal statutes and express racial classifications, numer­
ous lower court decisions apply the strict “ compelling”  
or “ overriding”  purpose standard in the civil area as 
well as the criminal, and extend its application to 
facially neutral state action which, in reality, is 
racially discriminatory in its effect. The definitive case 
is Jackson v. Godwin, 400 F. 2d 529 (5th Cir. 1968), in 
which Judge Tuttle meticulously and exhaustively 
examines the lower court cases, including those “ which 
have struck down rules and regulations which on their 
face appear to be non-discriminatory but which in 
practice and effect, i f  not purposeful design, impose a

422- 400— 71— 4



34a

heavy burden on Negroes and not on whites, and oper­
ate in a racially discriminatory manner.”  Id. at 538- 
39 [emphasis added]. He concludes his analysis with 
this formulation of the constitutional standard:

In both the areas of racial classification and 
discrimination and First Amendment freedoms, 
we have pointed out that stringent standards 
are to be applied to governmental restrictions 
in these areas, and rigid scrutiny must be 
brought to bear on the justifications for en­
croachments on such rights. The State must 
strongly show some substantial and controlling 
interest which requires the subordination or 
limitation of these important constitutional 
rights, and which justifies their infringement, 
[citations]; and in the absence of such compel­
ling justification the state restrictions are 
impermissible infringements of these funda­
mental and preferred rights. Id. at 541.

The most recent application of the “ compelling and 
overriding state interest”  test is to be found in the 
Fifth Circuit’s decision in Hawkins v. Tcnvn of Shaw, 
F. 2d (5th Cir. 1971). The plaintiffs, Negro resi­
dents of Shaw, Mississippi, alleged racial discrim­
ination by town officials in the provision of various 
municipal services. The District Court dismissed the 
complaint, applying a test akin to that used by the 
majority in this case: “ I f  actions of public officials 
are shown to have rested upon rational considerations, 
irrespective of race or poverty, they are not within the 
condemnation of the Fourteenth Amendment, and 
may not be properly condemned upon judicial review.”  
Hawkins v. Town of Shaw, 303 F. Supp. 1162, 1168 
(N.D. Miss. 1969). The Fifth Circuit reversed, point­
ing to the standard set forth in Jackson v. Godwin, 
supra, and stating, “ In applying this test, defendants’ 
actions may be justified only if  they show a compel­



35a

ling state interest.”  Hawkins v. Town of Shaw, F. 2d 
(5th Cir. 1971) (slip opinion at 3).

In Hawkins the Fifth Circuit specifically considered 
the relevance of the defendant’s “ intent,”  or “ pur­
pose”  as the majority in our case would label it. Con­
ceding that “ the record contains no direct evidence 
aimed at establishing bad faith, ill will or an evil 
motive on the part of the Town of Shaw and its public 
officials,”  Id. at (slip opinion at 12), the court held: 
“ Having determined that no compelling state interests 
can possibly justify the discriminatory results of 
Shaw’s administration of municipal services, we 
conclude that a violation of equal protection has 
occurred.”  Id. at (slip opinion at 13) [emphasis in 
original text].

Just as Shaw’s administration of municipal serv­
ices violates the constitutional guarantee o f equal pro­
tection, so too does the creation of the new Scotland 
Heck School District.8 The challenged legislation 
carves an enclave, 57% white and 43% black, from a 
previously 22% white and 77% black school system.9 
Ho compelling or overriding state interest justifies the 
new district, and its formation has a racially dis­
criminatory effect by allowing the white residents of 
Scotland Heck to shift their children from a school 
district where they are part of a 22% minority to one 
where they constitute a 57% majority.

The prevailing opinion draws comfort from the fact 
that the new school district, because all children in 
the same grade will attend the same school, will be 
“ integrated throughout.”  I  dare say a 100% white

8 Since even the majority concedes that the Littleton-Lake 
Gaston School District must be enjoined as a racially discrimi­
natory scheme in violation o f the Fourteenth Amendment, I  do 
not discus the facts of that case.

9 One percent of the pupils in Halifax County are Indians.



36a

school district would also be “ integrated throughout,” 
The relevant question is what change in degree of in­
tegration has been effected by the creation of the new 
district. Here the change is an increase in the per­
centage of white pupils from 22% to 57%. The Con­
stitution will no more tolerate measures establishing a 
ratio of whites to blacks which the whites find more 
acceptable than it will measures totally segregating 
whites from blacks. The 35% shift here is no less dis­
criminatory because it is a shift from 22% to 57% 
than if it were one from 65% to 100%.10

The majority opinion makes the puzzling conces­
sion that:

I f  the effect of this act was the continuance 
of a dual school system in Halifax County or 
the establishment of a dual system in Scotland 
Neck it would not withstand challenge under 
the equal protection clause, but we have con­
cluded that it does not have that effect.

I The situation here is that the Act sets up in Halifax 
/ County two school systems, one with a 5J7: 43 white 

to black ratio and the other with a 19:80 white to 
black ratio, in place of one school system with a 
22:77 White to black ratio. Thus, the Act constructs 
a dual school system in Halifax Coimty by the simple 
expedient of labeling the two sets of schools as 
separate districts. The majority does not explain * I,

10 Judge Winter properly emphasizes in his separate opinion 
that the effect o f the new school districts must be measured by 
comparing “the racial balance in the preexisting unit with that 
in the new unit sought to be created, and that remaining in the 
preexisting unit after the new unit’s creation.” Focusing, as do
I, on the 35% increase in the white student population of the 
new Scotland Neck School District, he quite correctly notes that 
“ [a] more flagrant example o f the creation of a white haven, 
or a more nearly white haven, would be difficult to imagine.”



37a

why the Act can create a dual school system in Hali­
fax County if  it could not continue a dual system 
there. Nor do they explain why the Act can establish 
a dual school system in Halifax County if it could not 
establish one in Scotland Neck. Obviously no explana­
tion is possible and the legislation severing the Scot­
land Neck School District fails to meet the test of the 
equal protection clause.

I I

Even if I  accepted the majority’s formulation as 
the proper doctrine to control these cases, which I 
certainly do not, I  think their test is misapplied in 
Scotland Neck. The court accepts at face value the 
defendants’ assertions that local control and increased 
taxation were the dominant objectives to be fulfilled 
by the new district, with the ultimate goal of provid­
ing quality education to the students of Scotland 
Neck. The facts plainly are to the contrary and 
demonstrate that, in projecting the new district, 
race was the primary consideration. The District 
Court specifically found that a significant factor in 
the creation of the new school district was

a desire on the part of the leaders of Scotland 
Neck to preserve a ratio of black to white 
students in the schools of Scotland Neck that 
would be acceptable to white parents and 
thereby prevent the flight of white students 
to the increasingly popular all-white private 
schools in the area.

United States v. Halifax County Board of Education, 
314 E. Supp. 65, 72 (E.D.N.C. 1970). The defendants 
do not contest this finding.11

11 The defendants assert instead that the prevention of white 
flight is a legitimate goal. However, the Supreme Court in



3Sa

What starkly exposes the true purpose impelling the 
redistricting adventure and helies the professions of 
lofty objectives is the transfer plan initially adopted 
by the Scotland .Neck City Board of Education.* 12 
Under that plan, parents residing within Halifax 
County but outside the newly fashioned district could 
place their children in the Scotland Neck Schools by 
paying a fee ranging from $100 to $125. The use of 
transfer plans o f this nature as devices to thwart the 
mandate of Brown v. Board of Education, supra, has not 
been uncommon,13 and the majority here has no diffi­
culty in recognizing that the Scotland Neck transfer 
plan was a contrivance to perpetuate segregation. 
Initial applications for transfer under the plan were 
received from 350 white and only 10 black children 
in Halifax County. The net result would have been a 
racial mix of 74% white, 26% black in the Scotland 
Neck School District, contrasting with 82% black, 
17% white, 1% Indian, in the rest of Halifax County.

Monroe v. Board of Commissioners, 391 U.S. 450, 459 (1968), 
has directly addressed itself to this argument, and rejected it 
out o f hand: “We are frankly told in the Brief that without 
the transfer option it is apprehended that white students will 
flee the school system altogether. But it should go without say­
ing that the vitality of these constitutional principles cannot be 
allowed to yield simply because of disagreement with them.” 
Brown II, at 300.
See also Brunson v. Board of Trustees of School District No. 1 
of Clarendon Cownty, 429 F. 2d 820 (4th Cir. 1970); Anthony v. 
Marshal County Board of Education, 409 F. 2d 1287 (5th Cir. 
1969). The defendants’ candid admission serves only to empha­
size the dominant racial considerations behind the whole scheme.

12 Although the School Board later abandoned the transfer 
plan, its initial adoption nevertheless reflects the Board’s in­
tentions.

13 See Monroe v. Board of Commissioners, 391 U.S. 450 
(1968); Gross v. Board of Education, 373 U.S. 683 (1963).



39a

Thus the transfer plan would have operated directly 
contrary to the obligation to desegregate the schools 
of Halifax County and distinctly evidences the design 
of the Scotland Neck School Board to bring into 
existence a white haven.

Curiously enough, despite its condemnation of the 
transfer plan, the court declares the plan not relevant 
in assessing the intent of the North Carolina legisla­
ture in enacting Chapter 31, since there is no evidence 
in the record to show that the legislative body knew 
a transfer plan would be effected. This reasoning is 
fallacious for legislators are not so naive and, in any 
event, are chargeable with the same motivations as the 
local communities concerned. The relevant inquiry 
under the majority’s test is into the purposes for 
which state action was taken and, as Judge Winter 
observes in his separate opinion, when dealing with 
statutes designed to affect local communities, one must 
look to the localities to determine the purposes 
prompting the legislation.14

The size of the new school district in Scotland Neck 
is also a crucial factor to be taken into account in 
judging the genuineness of the alleged goal of quality 
education. The Report of the Governor’s Study Com­
mission on the Public School System of North Caro­
lina favors the consolidation of school districts to 
increase efficiency in the operations of the public schools,

14 Moreover, as the District Court noted, local newspapers, 
including the Raleigh News and Observer, suggested that racial 
considerations, and not a concern for better educational, motivated 
the legislation. For example, on February 14, 1969, a month 
before Chapter 31 was enacted, the Raleigh Netos and Observer 
commented editorially that the bill provided for an “ educa­
tional island” dominated by whites and on February 22, 1969, 
suggested that if the bill passed, it would encourage other 
school districts to resort to similar legislation.



40a

and suggests 9,000-10,000 as a desirable pupil popu­
lation, with 3,500 to 4,000 as a minimum. Scotland 
Neck’s minuscule new school district for 695 pupils— 
one fifth of the suggested minimum—is an anomaly 
that runs directly counter to the recommendation of 
the Study Commission that schools be merged into 
larger administrative units. Moreover, i f  quality edu­
cation were the true objective and Scotland Neck 
residents were deeply concerned with increasing rev­
enue to improve their schools, one might have expected 
that in-depth consideration would have been given to 
the financial and educational implications o f the new 
district. However, the District Court found that:

[tjhere were no studies made prior to the intro­
duction of the bill with respect to the educa­
tional advantages of the new district, and 
there was no actual planning as to how the 
supplement would be spent although some 
people assumed it would be spent on teachers’ 
supplements.

United States v. Halifax County Board of Education, 
314 F. Supp. at 74.

Also highly relevant in assessing the dominant pur­
pose is the timing of the legislation splintering the 
Halifax County school system. During the 1967-68 
school year the Halifax County School District main­
tained racially identifiable schools, and only 46 of 
the 875 students attending the Scotland Neck school 
were black. The next school year, under prodding by 
the Department of Justice, the Halifax County Board 
of Education assigned to the Scotland Neck school 
the entire seventh and eighth grades from an adjacent 
all-black county school, and promised to desegregate 
completely by 1969-70. A  survey by the North Caro­
lina State Department of Education in December 1968 
recommended an integration plan which provided that



41a

690 black and 325 white students should attend the 
Scotland Neck school. It was only then that the bill 
which later became Chapter 31 was introduced in the 
General Assembly of North Carolina in 1969. The 
fact that the Scotland Neck School District was not 
formed until the prospects for a unitary school system 
in Halifax County became imminent leads unmistak­
ably to the conclusion that race was the dominant 
consideration and that the goal was to achieve a de­
gree of racial apartheid more congenial to the white 
community.15 16

I l l

The court’s incongruous holdings in these two 
cases, reversing the District Court in Scotland Neck, 
while affirming in the twin case, Littleton-Lake Gaston, 
cannot be reconciled. The uncontested statistics pre­
sented in Scotland Neck speak even louder in terms 
of race than the comparable figures for Littleton-Lake 
Gaston. The white community in Scotland Neck has 
sliced out a predominantly white school system from 
an overwhelmingly black school district. By contrast, 
the white community in Littleton-Lake Gaston was 
more restrained, gerrymandering a 46% white, 54% 
black, school unit from a county school system that 
was 27% white, 67% black.18 The majority attempts 
to escape the inevitable implications of these statistics 
by attributing to the North Carolina legislature, which 
severed the Scotland Neck School District on March 3, 
1969, benevolent motivation and obliviousness to the

15 It is also noteworthy that while the Scotland Neck commu­
nity claims that it had not been accorded a fair allocation of 
county school funds over a period of years, this apparently 
became intolerable only when the Department of Justice 
exerted pressure for immediate action to effectuate integration.

16 Six percent of the pupils in Warren County are Indian.



42a,

racial objectives of the local white community. Yet 
the majority unhesitatingly finds a discriminatory 
purpose in the similar excision of the new Littleton- 
Lake Gaston School District by the same legislators 
only one month later, on April 11, 1969. The earlier 
statute no less than the later provided a refuge for 
white students and maximized preservation of segre­
gated schools. The record and the District Court’s 
opinion in Scotland Neck, no less than the record 
and the opinion in Littleton-Lake Gaston, are replete 
with evidence of discriminatory motivations. On their 
facts the two cases are as alike as two peas in a pod.

Judge Bryan soundly recognizes the discordance in 
the two holdings of the majority. The resolution he 
proposes is to reverse in both cases. This would in­
deed cure the inconformity, but at the cost o f com­
pounding the error. The correction called for lies in 
the opposite direction—affirmance in both cases.

IV

If, as the majority directs, federal courts in this 
circuit are to speculate about the interplay and the 
relative influence of divers motives in the molding of 
separate school districts out o f an existing district, 
they will be trapped in a quagmire o f litigation. The 
doctrine formulated by the court is ill-conceived, and 
surely will impede and frustrate prospects for success­
ful desegregation. Whites in counties heavily popu­
lated by blacks will be encouraged to set up, under 
one guise or another, independent school districts in 
areas that are or can be made predominantly white.

It is simply no answer to a charge of racial discrim­
ination to say that it is designed to achieve “ quality 
education.”  Where the effect of a new school district 
is to create a sanctuary for white students, for which



43a

no compelling and overriding justification can be 
offered, the courts should perform their constitutional 
duty and enjoin the plan, notwithstanding professed 
benign objectives.

Racial peace and the good order and stability of 
our society may depend more than some realize on a 
convincing demonstration by our courts that true 
equality and nothing less is precisely what we mean 
by our proclaimed ideal of “ the equal protection of 
the laws.” The palpable evasions portrayed in this 
series of cases should be firmly condemned and en­
joined. Such examples of racial inequities do not go 
unheeded by the adversely affected group. They are 
noted and resented. The humiliations inflicted by such 
cynical maneuvers feed the fires o f hostility and ag­
gravate the problem of maintaining peaceful race 
relations in the land. In this connection it is timely 
to bear in mind the admonition o f the elder Mr. Jus­
tice Harlan, dissenting in Plessy v. Ferguson, 163 U.S. 
537, 560 (1896):

The destinies o f the two races, in this comitry, 
are indissolubly linked together, and the in­
terests o f both require that the common gov­
ernment of all shall not permit the seeds of 
race hate to be planted under the sanction of 
law.

I  dissent from the reversal in Nos. 14929 and 14930, 
United States v. Scotland Neck City Board of Educa­
tion, — F. 2d — (4th Cir. 1971), and concur in the 
affirmance in NTo. 14990, Turner v. Littleton-Lake Gas­
ton School District, — F. 2d — (4th Cir. 1971).

ALBERT Y. BRYANT, Circuit Judge, dissenting: 
For me there is here no warrant for a decision dif­
ferent from the Scotland Neck and Emporia deter-







46a

state legislation rather than a proposal o f the local 
school board, the fact remains that the moving force 
in the passage of each piece o f legislation1 was of 
local origin. Few who have had legislative experience 
would deny that local legislation is enacted as a result 
of local desire and pressure. It  is, therefore, to local 
activities that one must look to determine legislative 
intent.

Application o f the “heavy burden” standard of 
Green to the instant cases is also supported by con­
siderations of policy. In  an area in which historically 
there was a dual system of schools and at best grudg­
ing compliance with Brown, we cannot be too careful 
to search out and to quash devices, artifices and tech­
niques furthered to avoid and to postpone full com­
pliance with Broivn. W e must be assiduous in detect­
ing racial bias masking under the guise o f quality 
education or any other benevolent purpose. Especially 
must we be alert to ferret out the establishment of a 
white haven, or a relatively white haven, in an area 
in which the transition from racially identifiable 
schools to a unitary system has proceeded slowly and 
largely unwillingly, where its purpose is at least in 
part to be a white haven. Once a unitary system has 
been established and accepted, greater latitude in re­
definition o f school districts may then be permitted.

Given the application o f the Green rationale, the 
remaining task in each of these cases is to discern 
whether the proposed subdivision will have negative 
effects on the integration process in each area, and, 
if  so, whether its advocates have borne the “  heavy 
burden”  of persuasion imposed by Green.

1 In Emporia, the implementing legislation for the separation 
already existed; however, the local people alone made the 
choice to exercise the option which the statute provided.



47a

I I

EMPORIA SCHOOL DISTRICT

The City of Emporia, located within the borders 
of Greensville County, Virginia, became a city of 
the second class on July 31, 1967, pursuant to a sta­
tutory procedure dating back to the 19th Century. 
While it had the state-created right at that time to 
establish its own school district, it chose instead to 
remain within the Greensville County system until 
June, 1969. It is significant that earlier in this same 
month, more than a year after it had invalidated a 
“ freedom of choice”  plan for the Greensville County 
system, the district court ordered into effect a “pair­
ing” plan for the county as a further step toward 
full compliance with Brown and its progeny.

The record amply supports the conclusion that the 
creation o f a new school district for the City o f Em­
poria would, in terms of implementing the principles 
o f Brown, be “ less effective” than the existing “pair­
ing” plan for the county system. In the first place, 
the delay involved in establishing new plans for the 
two new districts cannot be minimized in light o f  the 
Supreme Court’s statement in Green that appropriate 
and effective steps must be taken at once. See also 
Carter v. W est Feliciana School Board, 396 U.S. 290 
(1970); Alexander v. Holmes County Bd. o f Ed., 396 
U.S. 19 (1969). Secondly, as the district court found, 
the separation of Emporia from Greensville County 
would have a substantial impact on the racial balance 
both within the county and within the city. Within the 
entire county, there are 3,759 students in a racial ratio 
of 34.1% white and 65.9% black. W ithin the city 
there are 1,123 students, 48.3% of whom are white and 
51.7% are black. I f  the city is permitted to establish



48a

its own school system, the racial ratio in the remainder 
of the county will change to 27.8% white and 72.2% 
black.2 To me the crucial element in this shift is not 
that the 48.3%-51.7% white to black ratio in the town 
does not constitute the town a white island in an 
otherwise heavily black county and that a shift of 6% 
in the percentage of black students remaining in the 
county is not unacceptably large. Whenever a school 
area in which racial separation has been a historical 
fact is subdivided, one must compare the racial bal­
ance in the preexisting unit with that in the new unit 
sought to be created, and that remaining in the pre­
existing unit after the new unit’s creation. A  substan­
tial shift in any comparable balances should be cause 
for deep concern. In this case the white racial per­
centage in the new unit will increase from 27.8% to 
48.3%. To allow the creation of a substantially whiter 
haven in the midst of a small and heavily black area is 
a step backward in the integration process.

And finally, the subdivision of the Greensville 
County school district is “ less effective”  in terms of 
the principles of Brown because o f the adverse psy­
chological effects on the black students in the county 
which will be occasioned by the secession of a large 
portion of the more affluent white population from 
the county schools. I f  the establishment of an Emporia 
school district is not enjoined, the black students in

2 As part of the establishment of the new system, the Emporia 
school board proposed a transfer plan whereby Emporia will 
accept county students upon payment of tuition. The record 
does not contain any projection of the number of county stu­
dents who would avail themselves of the plan although in argu­
ment counsel was candid in stating that only white parents 
would be financially able to exercise the option. The transfer 
plan was quickly abandoned when it became apparent that it 
might not earn the approval of the district court.



49a

the county will watch as nearly one-half the total 
number of white students in the county abandon the 
county schools for a substantially whiter system. It 
should not be forgotten that psychological factors, and 
their resultant effects on educational achievement, 
were a major consideration in the Supreme Court’s 
opinion in Brown.

In my mind, the arguments advanced by the resi­
dents o f Emporia in support of their secession from 
the coimty school system do not sustain the “ heavy 
burden”  imposed by Green. The essence of their posi­
tion is that, by establishing their own schools over 
which they will exercise the controlling influence, they 
will be able to improve the quality of their children’s 
education. They point to a town commitment to such 
a goal and, in particular, to a plan to increase educa­
tional revenues through increased local taxation. They 
also indicate that they presently have very little voice 
in the management of the county school system. A l­
though, as the district court found, the existence of 
these motives is not to be doubted, I  find them insuffi­
cient in considering the totality of the circumstances.

While the district court found that educational con­
siderations were a motive for the decision to separate, 
it also found that “ race was a factor in the city’s deci­
sion to secede.”  Considering the timing of the decision 
in relation to the ordering into effect o f the “ pairing”  
plan, as well as the initial proposal of a transfer plan, 
this finding is unassailable. Green indicates that the 
absence of good faith is an important consideration in 
determining whether to accept a less effective alterna­
tive to an existing plan of integration. The lack of 
good faith is obvious here.

When the educational values which the residents of 
Emporia hope to achieve are studied, it appears that 
the secession will have many deleterious consequences.

422- 400— 71------------5



50a

As found by the district court, the high school in the 
city will be of less than optimum size. Comity pupils 
will be cut off from exposure to a more urban society. 
The remaining county system will be deprived of 
leadership ability formerly derived from the city. It 
will suffer from loss of the city’s financial support, 
and it may lose teachers who reside in the city. To me, 
these consequences, coupled with the existence of the 
racial motive, more than offset the arguments ad­
vanced by the residents of Emporia. The separation, 
with its negative effects on the implementation of the 
principles of Brown, should be enjoined.

I l l

SCOTLAND NECK SCHOOL DISTRICT

As the majority’s opinion recites, the history of 
resistance to school desegregation in the Halifax 
County school system parallels the history o f the at­
tempts on the part of the residents of Scotland Heck 
to obtain a separate school district. The significant 
fact is that in spite of otherwise apparently cogent 
arguments to justify a separate system, the separate 
system goal was not realized until, as the result of 
pressure from the United States Department of Jus­
tice, the Halifax County Board agreed to transfer the 
seventh and eighth grade black students from the pre­
viously all-black Brawley School, outside the city 
limits of Scotland Heck, to the Scotland Heck School, 
previously all-white. Chapter 31 followed thereafter 
as soon as the Horth Carolina legislature met. It is 
significant also that the Halifax County Board re­
neged on its agreement with the Department of Jus­
tice shortly before the enactment of Chapter 31.

The same negative effects on achieving integration 
which are present in the Emporia secession are present



51a

here. Although the City of Scotland Neck has already 
submitted a plan for its school district, delay will 
result in devising such a plan for the remaining por­
tion of Halifax County. The racial balance figures 
show that the existing county system has 8,190 (77%) 
black students, 2,357 (22% ) white students, and 102 
(1% ) Indian students. Within the city system, there 
would be 399 (57.4%) white and 296 (42.6%) black, 
while the remaining county system would be comprised 
of 7,900 (80% ) black, 1,958 (19% ) white and 102 
(1% ) Indian. The difference between the percentage 
of white students within the existing system and the 
newly-created one for Scotland Neck is thus 35%. A 
more flagrant example of the creation of a white 
haven, or a more nearly white haven, would be diffi­
cult to imagine. The psychological effects on the black 
students cannot be overestimated.

The arguments advanced on behalf of Scotland 
Neck are likewise insufficient to sustain the burden 
imposed by Green. Even if it is conceded that one 
purpose for the separation was the local desire to 
improve the educational quality of the Scotland Neck 
schools, the record supports the conclusion of the 
district court that race was a major factor. I f  the 
basie purpose of Chapter 31 could not be inferred 
from the correlation of events concerning integration 
litigation and the attempt to secede, other facts make 
it transparent. As part o f its initial plan to establish 
a separate system, Scotland Neck proposed to accept 
transfer students from outside the corporate limits 
of the city on a tuition basis. Under this transfer 
system, the racial balance in the Scotland Neck area 
was 749 (74% ) white to 262 (26% ) black, and the 
racial balance in the rest o f Halifax County became 
7,934 (82% ) black, 1,608 (17% ) white, and 102



52a

(1% ) Indian.3 This proposal has not yet been finally 
abandoned. In oral argument before us, counsel would 
not tell us forthrightly that this would not be done, 
but rather, equivocally indicated that the proposal 
would be revived if  we, or the district court, could 
be persuaded to approve it. I  cannot so neatly com­
partmentalize Chapter 31 and the transfer plan as 
does the majority, and conclude that one has no rele­
vance to the other. To me, what was proposed, and 
still may be attempted, by those who provided the 
motivation for the enactment of Chapter 31 is persua­
sive evidence of what Chapter 31 was intended to 
accomplish.

In terms of educational values, the separation of 
Scotland Heck has serious adverse effects. Because 
Scotland Heck, within its corporate boundaries, lacked 
sufficient facilities even to operate a system to ac­
commodate the only 695 pupils to be educated, it 
purchased a junior high school from Halifax County. 
This school is located outside of the corporate bound­
aries of Scotland Heck. The sale deprives the students 
of Halifax County, outside of Scotland Heck of a 
school facility. The record contains abundant, per­
suasive evidence that the best educational policy and 
the nearly unanimous opinion o f professional educa­

3 There is apparent error in the computations made by the 
district court in this regard. The district court found that the 
net effect of the transfer plan would be to add 350 white stu­
dents to the city system. Added to the resident white students 
(399), the total is 749, not 759 as indicated in the opinion of 
the district court. The district court’s figure o f 262 black 
students in the city under the transfer plan (a net loss of 34) 
appears correct. But when these two totals are subtracted from 
the figures given for the existing county system in 1968-1969 
(2,357 white, 8,196 black and 102 Indian), the effects on the 
county are as shown above.



53a

tors runs contrary to the creation of a small, separate 
school district for Scotland Neck. A  study by the 
State of North Carolina indicates that a minimally 
acceptable district has 3,500-4,000 pupils.

On the facts I  cannot find the citizens of Scotland 
Neck motivated by the benign purpose of providing 
additional funds for their schools; patently they seek 
to blunt the mandate of Brown. Even if  additional 
financial support for schools was a substantial motive, 
the short answer is that a community should not 
be permitted to buy its way out of Brown. Here 
again, the “heavy burden” imposed by Green has not 
been sustained.

IV

LITTLETON-LAKE GASTON SCHOOL DISTRICT

The majority’s opinion correctly and adequately 
discloses the legislative response to court-ordered 
compliance with Brown and its progeny. That re­
sponse was the creation of the Warrenton City School 
District and the Littleon-Lake G-aston School District. 
The overall effect of the creation of the Littleton- 
Lake Gaston district, the proposed tuition transfer 
plan, and the creation of the Warrenton City district 
(an act enjoined by the district court and not before 
us) would be to permit more than 4 out o f 5 white 
students to escape the heavily black schools of Warren 
County. Even without the transfer plan, the racial 
balance in the Littleton-Lake Gaston district would 
show nearly 20% more white students than in the 
existing Warren County unit. To permit the subdi­
vision would be to condone a devastating blow to the 
progress of school integration in this area.

Despite the assertion of the benign motives of 
remedying long-standing financial inequities and the



54a

preservation of local schools, I  agree with the ma­
jority that the “ primary” purpose and effect of the 
legislation creating the Littleton-Lake Gaston school 
district was to carve out a refuge for white students 
and to preserve to the fullest possible extent segre­
gated schools. Aside from questions o f motivation, 
the record shows that the new district was established 
to accommodate a total of only 659 students, despite 
state policy to the contrary and expert opinion that 
its small size rendered it educationally not feasible. 
And, as the majority indicates, there is no .evidence 
that the residents of the Littleton area have been 
deprived of their proportionate voice in the operation 
of the schools of Warren County. In short, there is a 
complete absence of persuasive argument in favor 
of the creation of the new district.

While I  agree that the injunction should stand, 
I  disagree that injunctive relief should be granted 
only when racial motivation was the “primary” motive 
for the creation of the new district. Consistent with 
Green, we should adopt the test urged by the govern­
ment in Scotland Neck, i.e., to view the results of the 
severance as if  it were a part of a desegregation plan 
for the original system—that is, to determine whether 
the establishment of a new district would, in some 
way, have an adverse impact on the desegregation of 
the overall system. By this test the injunction would 
stand m the Littleton-Lake Gaston case, as well as 
in each of the two other cases, because in each of the 
three there is at least some racial motivation for the 
separation and some not insubstantial alteration of 
racial ratios, some inherent delay in achieving an 
immediate unitary system in all o f the component 
parts, and an absence of compelling justification for 
what is sought to be accomplished.



55a

BTJTZNER, Circuit Judge: This appeal involves 
the same case in which I  decided questions concern­
ing the school board’s compliance with the Fourteenth 
Amendment when I  served on the district court.* 
While the details differ, the same basic issues re­
main—the validity of measures taken to disestablish a 
dual school system, to create a unitary system, and to 
assign pupils and faculty to achieve these ends.

Title 28 U.S.C. §47 provides: “ No judge shall 
hear or determine an appeal from the decision 
of a case or issue tried by him.”

Recently, Judge Craven carefully examined this 
statute and the cases and authorities which cast light 
on it. He concluded that he should not sit on an appeal 
of a case in which he had participated as a district 
judge when the ultimate questions were the same: 
“ what may a school board be compelled to do to dis­
mantle a dual system and implement a unitary one, 
or how much school board action is enough?”  See 
Swann v. Charlotte-Mecklenburg Bd. of Ed., 431 F. 
2d 135, (4th Cir. 1970). Following the sound precedent 
established by Judge Craven, I  believe that I  must 
disqualify myself from participating in this appeal.

* See Wright v. County School Bd. of Greensville County, 
Fa., 252 F. Supp. 378 (E.I). Ya. 1966). Two other opinions 
were not published.



A P P E N D IX  C

[Piled August 25, 1969, Samuel A. Howard, Clerk, 
U.S. District Court, E. Dist. No. Car.]

In the United States District Court for the Eastern 
District of North Carolina, Wilson Division

No. 1128— Civil

U nited States of A merica, plaintiff

v.
H alifax County B oard of E ducation, a body cor­

porate; Peed L. H arrison, as M ayor of the Town 
of Scotland Neck ; J. A. A ndrews, F. G. Shearin, 
and J. I. W alston, D. E. Josey, Jr., as members of 
the B oard of Commissioners of the Town of 
Scotland Neck ; the T own of Scotland Neck, a
BODY CORPORATE; AND THE SCOTLAND NECK C lT Y
B oard of E ducation, a body corporate, defendants

ORDER

LARKINS, District Judge: This cause coming on 
to be heard before the Court on a motion for a pre­
liminary injunction filed by the plaintiff pursuant to 
the provisions of Sections 407 (a) and (b) of the 
Civil Rights Act of 1964, as codified, 42 U.S.C.A. 
§§ 2000c-6 (a) and (b) seeking to restrain the defend­
ants from giving any force or effect to the provisions 
of Chapter 31 of the North Carolina Session Laws of 
1969, an Act to establish a separate administrative 
unit for the operation of the public schools of the 
Town of Scotland Neck, North Carolina; and due

(56a)



notice having been given to the defendants: and the 
Court having considered the evidence and the argu­
ment of counsel and being fully advised in the prem­
ises and it appearing to the Court that effectuation of 
the terms of the Act will result in the operation of the 
schools of Scotland Neck, North Carolina, and Halifax 
County, North Carolina, a racially discriminatory 
basis to the irreparable damage o f the United States 
and the Negro pupils of Halifax County; and it fur­
ther appearing to the Court that no injunctive relief 
as to effectuation of the provisions of Chapter 31 is 
being sought against the defendant Halifax County 
Board of Education; and that the defendants Ferd L. 
Harrison, as Mayor of the Town of Scotland Neck, 
J. A. Andrews, F. G-. Shearin, J. I. Walston, D. E. 
Josey, Jr., as members of the Board of Commissioners 
of the Town o f Scotland Neck, and the Town of Scot­
land Neck, a body corporate, are not proper parties 
to this action;

It is, therfore, Ordered, A djudged and Decreed:
That the motion to dismiss hied on behalf of the 

defendants Ferd L. Harrison, as Mayor of the Town 
of Scotland Neck, J. A. Andrews, F. Gr. Shearin, J. I. 
Walston, D. E. Josey, Jr., as members of the Board 
of Commissioners of the Town of Scotland Neck, and 
the Town of Scotland Neck, a body corporate, be, and 
the same hereby is allowed; and

That the defendant Scotland Neck City Board of 
Education and its officers, agents, employees and suc­
cessors are hereby enjoined from giving any force or 
effect to the provisions of Chapter 31 and from taking 
any action pursuant to the provisions of Chapter 31 
pending a final determination on the merits of the 
issues raised in the present action; and

That pursuant to the provisions of Rule 65(c) of 
the Federal Rules of Civil Procedure, no security shall



58a

be required, of the plaintiff, United States of America; 
and

That this Order shall become effective as o f 12:00 
Noon on Monday, August 25, 1969; and

T hat a Memorandum Opinion subsequently will be 
filed in this action; and

T hat the Clerk shall serve copies o f this Order 
upon all counsel o f record, and the defendants.

Let this Order be entered forthwith.
John D. L arkins, Jr.,

United States District Judge.
A lgernon L. B utler,

United States District Judge.
R aleigh, N orth Carolina, August 25, 1969.

[Filed, August 25, 1969, Samuel A. Howard, Clerk, 
U.S. District Court, E. Dist. NTo. Car.]

In the United States District Court for the Eastern 
District o f North Carolina, Wilson Division

No. 1128— Civil

U nited States of A merica, plaintiff

v.

H alifax County B oard of E ducation, a B ody Cor­
porate, and the Scotland N eck City B oard of 
E ducation, a B ody Corporate, defendants

MEMORANDUM OPINION

LA RK IN S, District Judge: This Court entered its 
Order on August 25, 1969, effective at 12 :00 noon. The 
Clerk served copies o f said Order upon all defendants 
and counsel o f record.



59a

Pursuant to said Order this M emorandum Opinion 
is filed in support of said Order and is included 
therein by reference.

This cause coming on to be heard before the United 
States District Judges for the Eastern District of 
North Carolina, and being heard upon the motions 
of plaintiffs and additional plaintiffs for a prelimi­
nary injunction and for a declaratory judgment; and 
due notice having been given to all defendants; and the 
Court having considered the evidence, the stipulations, 
the briefs and arguments of counsel, and being fully 
advised in the premises, makes the following:

FINDINGS OF FACT

1. On March 3, 1969, the General Assembly of 
North Carolina ratified a measure designated Chapter 
31, Session Laws of North Carolina 1969, creating 
the Scotland Neck City Administrative Unit in Hali­
fax County to operate the public schools in said unit; 
providing that all public school property located 
within the unit should become the property o f the 
unit; providing for a supplemental tax levy, and di­
recting a special election to authorize the establish­
ment of said unit and the levying of said tax. The 
voters approved said proposals.

2. The Board of Education o f the Scotland Neck 
City unit permits transfers o f students in and out 
of said units. Scotland Neck City has established a 
tuition charge of $100.00 a year for the first child 
in a family, $25.00 for the second child, $25.00 for 
the third child, and each subsequent child per family 
free, for all students transferring into said unit.

3. During the school year 1968-69, all the public 
schools o f Halifax County were operated by the 
Halifax County Board of Education. There was a



60a

total o f 10,655 students. The racial composition of 
the county school system was approximately as fol­
lows: White 2,357 (2 2 % ); Negro, 8,196 (78% ), and 
Indian, 102.

4. The Scotland Neck City unit has approximately 
695 resident students: White, 399 (57.4%) ; Negro, 296 
(42.6%). The school facilities within the unit will 
accommodate approximately 1,000 students. Since the 
creation of the City unit under the 1969 Act, 350 
Whites, and 10 Negroes have transferred from 
the county schools into the City unit; 44 Negroes in 
the eleventh and twelfth grades have transferred from 
the city to the Brawley High School in the county 
system. The net effect on the City unit for the school 
year 1969-70 is as follows: White, 759 (74% ) ; Negro, 
262 (26% ).

5. The racial composition, of the county school sys­
tem as a result o f the creation of the administrative 
unit, and taking into consideration the net effect o f 
the transfers in and out o f the systems, is as follows: 
White, 1,598 (17% ) ; Negroes, 8,186 (83% ) ; Indian, 
102.

CONCLUSIONS OF LAW  1

1. This Court has jurisdiction of the parties and of 
the subject matter of this proceeding.

2. Without determining the constitutionality of 
Chapter 31 of the 1969 Session Laws of North Caro­
lina, the Act in its application creates a refuge for 
white students, and promotes segregated schools in 
Halifax County.

3. The Act impedes and defeats the Halifax County 
Board of Education from  implementing its plan to 
completely desegregate all o f the public schools in 
Halifax County by the opening of the school year 
1969-70.



61a

4. Unless the defendants are enjoined, the plaintiffs 
will suffer immediate and irreparable injury by the 
deprivation o f their constitutional rights.

John I). Larkins, Jr.,
John D. L arkins, Jr., 

United States District Judge. 
R aleigh, N orth Carolina, August 25,1969.



A P P E N D IX  D

In the United. States District Court for the Eastern 
District of North Carolina, Wilson Division No. 
1128— Civil

[Piled, May 26,1970, Samuel A. Howard, Clerk, 
U.S. District Court, E. Dist. No. Car.]

U nited States of A merica, (original) plaintiff

v.
H alifax County B oard of E ducation, a body corpo­

rate ; F erd L. H arrison, as M ayor of the Town  of 
Scotland Ne c k ; J. A. A ndrews, F. G. Shearin, 
F rank B. Shields and J. I. W alston, M embers of 
the B oard of Commissioners of the Town  of Scot­
land Ne c k ; and the Town of Scotland Neck, a

PUBLIC BODY CORPORATE (ORIGINAL) DEFENDANTS

and
T he Scotland N eck City B oard of E ducation, a body

CORPORATE (ADDITIONAL) DEFENDANT

and
M aryetta R ichardson and her infant children 

M ontenia, T im m ie , Charlotte and Jim m y  R ich­
ardson (ITalula I ndians) , on behalf of several
OTHER HUNDRED CITIZENS AND RESIDENTS OF H ALIFAX

County and W arren County, N orth Carolina 
(additional) defendants

and
(62a)



63a

R obert M organ, A ttorney General op N orth Caro­
lina IN BEHALF OF THE STATE OF NORTH CAROLINA 
( ADDITIONAL ) DEFEND ANT

and
P attie B lack Cotton, E dward M. F rancis, and

OTHERS (ADDITIONAL) PLAINTIFFS

and
M r. H enry Overman, Superintendent of H alifax 

County Schools; the B oard of Commissioners of 
H alifax County ; Scotland N eck City B oard of 
E ducation, F ranklin B . B ailey, Superintendent 
of Scotland Neck City Schools; L ittleton-L aice 
Gaston School D istrict and R ussell N. M anning, 
Superintendent of L ittleton-Lake Gaston School 
D istrict; and the N orth Carolina State B oard of 
E ducation; and D r. Craig P hillips, N orth Caro­
lina State Superintendent of P ublic I nstruction 
(additional) defendants

OPINION AND ORDER

LARK IN S, District Judge: The subject o f this 
opinion and one of the primary issues in this case 
is the constitutionality of Chapter 31 o f the North 
Carolina Session Laws of 1969/ a local act which 1

1 Plaintiff, in its complaint, also challenged the constitution­
ality of defendant Halifax County Board o f Education’s pupil 
assignment plan on the grounds that the plan failed to establish 
a unitary non-racial school system as required by the mandate 
of the United States Supreme Court. Furthermore, the status 
of the Ilaliwa Indians in the new arrangement o f school 
systems was raised by a complaint in intervention permitted 
to be filed by this Court on October 30, 1969, on behalf o f the 
several hundred Haliwa Indians residing in Halifax and War­
ren Counties. Another third-party complaint in intervention,



64a

carved out of the Halifax Comity, North Carolina, 
school system a separate administrative unit for the 
operation o f the public schools in Scotland Neck, a 
town with a population o f approximately 3000 located 
in the southeastern section of Halifax County. The 
plaintiff contends that the act is unconstitutional and 
that its implementation should be permanently en­
joined because the act is inconsistent with the State’s 
duty under the Equal Protection Clause of the Four­
teenth Amendment to dismantle its dual school system. 
Defendants Scotland Neck City Board o f Education 
and the State of North Carolina contend that the 
act is not violative of the Fourteenth Amendment to 
the United States Constitution as interpreted by the 
Supreme Court of the United States.

This controversy came before the court upon the filing of 
plaintiff’s complaint on June 16, 1969, attacking the constitu­
tionality o f Chapter 31 o f the Session Laws o f 1969 and seek­
ing to require the Halifax County Board of Education to 
desegregate its school system. Following a three-day hearing on 
plaintiff’s motion for a preliminary injunction in Raleigh, 
North Carolina, this court, on August 25, 1969, entered a 
Memorandum Opinion and Order enjoining the Scotland Neck 
City Board o f Education additional defendants and its officers 
and agents, etc., from taking any further action pursuant to 
the provisions o f Chapter 31 pending a final determination on

filed as of January 9, 1970, by order of this Court by two black 
public school teachers in Halifax County and a number of 
minor school children residing in the Scotland Neck City School 
System and the Littleton-Lake Gaston School System, made 
certain allegations about the treatment o f black students and 
faculty members by the Halifax County Board o f Education. 
None o f the questions raised by these additional allegations 
have yet been ruled on by the Court.



65a

the merits o f the constitutional questions raised by plaintiff’s 
challenge o f the Act.

On October 30, 1969, this Court allowed certain named 
Haliwa Indians to intervene and on November 3, 1969, this 
court entered an Order allowing Robert B. Morgan, Attorney 
General o f North Carolina, to intervene as a defendant on 
behalf of the State o f North Carolina.

On January 9, 1970 the court allowed the motion for leave 
to intervene on behalf o f Pattie Black Cotton, Edward M. 
Francis and others, and ordered additional defendants named 
therein to plead within 20 days.

This court scheduled a hearing on the merits of 
the constitutionality o f Chapter 31 and similar ques­
tions in the case of Turner et al. v. Warren County 
Board of Education et al., No. 1482, Raleigh Division, 
for Wednesday, December 17, 1969. A  trial on the 
merits in this case and the Turner et al. v. Warren 
County Board of Education et al. case was conducted 
by this court on December 17 and 18, 1969. Following 
the trial, this court carefully considered the tran­
scripts, exhibits, briefs, depositions and arguments 
o f counsel; and, now being fully advised in the 
premises, the court makes the following Findings of 
Fact and Conclusions of Law.

FINDINGS OF FACT

Scotland Neck, a small town with a present popula­
tion o f approximately 3,000, is located in the south­
eastern corner of Halifax County, a rural and 
agricultural region of North Carolina which has a 
predominantly black population. The population o f  the 
town itself is approximately 50% white and 50% 
black.

The schools within the corporate limits o f Scotland 
Neck were operated as a city administrative unit

422- 400— 71- 6



66a

until 1936 at which time they became part of the 
Halifax County unit pursuant to a procedure au­
thorized by the General Statutes o f North Carolina.2 
The construction of the elementary school in 1903 and 
the high school in 1923 was financed entirely by local 
funds.

Following the consolidation with Halifax County 
in 1936, the schools of Scotland Neck were operated 
as part of a dual school system, completely segregated, 
until 1965, at which time the Halifax County Board 
of Education adopted a freedom-of-choice plan for 
the assignment of pupils. The county maintained the 
freedom-of-choice assignment plan for the next three 
years during which a few black students attended 
formerly all-white schools and no white students 
attended formerly all-black schools. For example, dur­
ing the 1967-68 school year, all of the white students 
and 97% of the black students attended schools pre­
viously maintained for their own races. In that year, 
10 of the 450 teachers in 18 schools were assigned 
across racial lines. About 35 black students attended 
the Scotland Neck schools during the 1967-68 school 
year.

On July 27, 1968, the United States Department of 
Justice, pursuant to its authority under Title IV  of 
the Civil Rights Act of 1964, sent the Halifax County 
Board o f Education a “notice letter” which advised 
that Halifax County had failed to disestablish its 
dual school system and that additional steps should 
be taken for the Board to be in compliance with the 
United States Supreme Court’s decision in Green v. 
School Board of New Kent County, 391 U.S. 430, 88 
S. Ct. 1689,20 L. Ed. 2d 716 (1968). Negotiations ensued 
between the attorneys for the Justice Department and

2 Formerly Article 18, Chapter 136, Public Laws 1923, now 
North Carolina General Statutes §§ 115-74 through 115-78-



67a

the Halifax County School Board, and a tentative 
agreement was reached whereby the Board would 
disestablish the dual school system by the commence­
ment of the 1969-70 school year and would implement 
certain intermediate steps at the beginning of the 
1968-69 school year. The Justice Department agreed 
to withhold suit in consideration of the promises made 
by the Board.

The negotiations and the Board’s promise to deseg­
regate its schools were well-publicized in the local 
press. The newspaper in Scotland Heck reported on 
August 9, 1968, that the county had been ordered to 
end its dual school system and that there were several 
forms of grade organization, such as zoning or pairing 
o f schools, which would be more effective than the 
freedom-of-choice plan as a means o f converting to a 
unitary non-racial school system. The portion of the 
agreement which affected the Scotland Neck schools, 
that is, the proposed combining o f the seventh and 
eighth grades o f the previously all-black Brawley 
school, just outside the corporate limits o f Scotland 
Neck, with the all-white junior high, was also publi­
cized in the Scotland Neck newspaper on August 16, 
1968.

On or about July 1, 1968, in anticipation o f their 
obligation to comply with the Green decision, the 
Halifax County Board of Education asked the North 
Carolina Department of Public Instruction to con­
duct a school survey to determine the steps necessary 
for the Board to meet its desegregation obligations 
and to recommend “ the most effective organizational 
patterns for the county schools in order to insure the 
best education possible for the children.”  The survey, 
prepared in response to the request, was completed 
in December 1968. It recommended as an Interim Plan 
a combination of geographic zoning with grade reorga­



68a

nizations at some schools, including the pairing of the 
predominantly white Scotland Week school and the 
all-black Brawley school with respect to certain grades. 
The Long Range plan suggested the construction of 
two new consolidated high schools to be financed by 
a proposed four million dollar bond issue. The survey 
also recommended that the county schools be con­
solidated with the schools in the city units o f Roanoke 
Rapids and Weldon (two city administrative units 
also located within Halifax County). The Halifax 
County Board of Education subsequently declined to 
implement the plan which would have resulted in a 
majority of black students in 17 o f the 18 schools in 
the Halifax County system.*

The legislative bill proposing the creation of a sepa­
rate administrative unit for the schools o f Scotland 
Week, according to its proponents, was designed in 
response to Scotland Week residents’ dissatisfaction 
with the way in which the Halifax County Board of 
Education had allowed the schools in Scotland Week 
to deteriorate. Only one county-wide school bond issue 
had passed since 1936, and that was in 1957. At that 
time, the separate units in Roanoke Rapids and W el­
don, on a per-pupil basis, received a total o f $1,020,- 
000, and Halifax County received $1,980,000 for 
capital outlay. Wone o f the proceeds o f the bond issue 
was spent on any schools within the corporate limits 
of Scotland Week. I f  the Scotland Week schools had 
been operated as a separate unit at that time, the unit

3 Mr. Franklin P. Shields, a resident o f Scotland Neck and 
chairman o f  the Scotland Neck City Board o f Education, testi­
fied on deposition that he felt public opinion was against the 
Interim Plan because the people did not generally understand 
it, because they were generally opposed to change o f any kind 
and because there were administrative difficulties in implement­
ing the plan. (Shields’ Deposition, pp. 18-23.)



69a

would have received approximately $190,000 as its 
proportionate share of the bond proceeds.

In 1963, as a result of the latest state-wide bond 
issue, the Halifax County Board of Education re­
ceived a total o f $950,000 as its proportionate share of 
the proceeds. Mr. W . Henry Overman, Superintendent 
o f the Halifax County schools, testified on deposition 
that none o f this money had been spent or committed 
for any school within the corporate limits o f Scotland 
Neck. (Overman’s Deposition, pp. 184, 187.) He also 
testified that Halifax County has gradually reduced 
the annual capital outlay tax for the schools from 63 
cents per $100 valuation in 1957 to 27.5 cents per $100 
valuation in the latest fiscal year. (Overman’s Deposi­
tion, pp. 204-205.)

In 1963, some of the leaders of Scotland Neck began 
to formulate plans for the creation of a separate ad­
ministrative unit for the schools o f Scotland Neck but 
were not able to crystallize these plans into a legisla­
tive bill prior to the expiration of the 1963 session of 
the North Carolina legislature. In 1965, the propo­
nents of a separate administrative unit did formulate 
a bill which would have provided for a separate unit 
for the administration of the schools in Scotland Neck 
and the four surrounding townships and would have 
provided for a supplemental tax of 25 cents on each 
$100 valuation throughout the new school district. The 
bill passed the House of Representatives but was de­
feated by the Senate, and it was the opinion o f many 
in the Scotland Neck area that the defeat had been 
caused by the pressure o f individuals residing in the 
townships outside the corporate limits o f Scotland 
Neck.

In 1966, prompted by Mr. Henry Harrison, the only 
resident of Scotland Neck who was a member o f the 
Halifax County Board of Education, a delegation con­



70a

sisting of Mr. Harrison, Mr. C. M. Moore, chairman 
of the Halifax County Board of Education, and Mr. 
Overman, Superintendent of the Halifax County 
schools, met with Dr. Pearce and some other staff 
members in the office of the North Carolina Superin­
tendent of Public Instruction, the Division of School 
Planning, to get approval for the construction of a 
new high school and gymnasium in Scotland Neck to re­
place the old high school and the building being used as 
a combination auditorium and gymnasium. The new 
facilities would have been completely integrated. The 
Halifax County Board of Education supported the re­
quested construction for Scotland Neck, but it was not 
approved by the Division o f School Planning. (Over­
man’s Deposition, pp. 178-180).

In  1968, the leaders of Scotland Neck again began 
to make plans for the creation o f a separate adminis­
trative unit for the operation of the Scotland Neck 
schools. This time they planned to limit the boundaries 
o f the new district to the town limits o f Scotland Neck 
because of the feeling that it was the residents of the 
area outside Scotland Neck who had contributed to 
the defeat of the bill in 1965. In November 1968, a 
group consisting of Frank Shields, the future chair­
man o f the Scotland Neck City Board o f Education, 
C. Kitchen Josey, Henry Harrison, and Thorne 
Gregory, the State representative from the area, 
visited the Tryon City unit, at that time the smallest 
school unit in the State with 823 students enrolled 
during the 1968-69 school year. At that time, 974 
pupils were attending the schools within the corpo­
rate limits o f Scotland Neck, and it was expected that, 
with transfers, any new administrative unit would 
have approximately the same number of pupils. It was 
felt that the Tryon City school was superior to any 
school in Halifax County, ranking 4th out o f 160 units



71a

in the State in percentage of high school graduates 
attending college, 31st in pupil-teacher ratio and 12th 
in library books per pupil. The tax base o f Tryon was 
approximately the same as the tax base o f Scotland 
Neck, and the Tryon unit also had a supplementary 
tax o f 50 cents per $100 valuation. The group received 
a copy of the Tryon budget and the curriculum and 
discussed with the Tryon officials the amount of money 
needed to operate the system. The trip was primarily 
to study the financial feasibility of creating the sep­
arate unit in Scotland Neck (Shields’ Deposition, 
pp. 11-12, 59-60). The Scotland Neck leaders talked to 
no other professional educators (with the exception of 
State Superintendent Craig Phillips, who opposed the 
creation o f a new unit) and conducted no other studies 
before proposing the introduction of a bill in the State 
legislature. (Henry Harrison’s Deposition, pp. 57-9).

The actual bill creating the separate unit in Scot­
land Neck was drafted by the North Carolina Attor­
ney General’s office and was introduced as House 
Bill No. 22. A fter receiving the approval o f the 
House Education Committee, the House Finance 
Committee and the Senate Finance Committee, the 
bill passed both houses by a substantial majority and 
was ratified as Chapter 31 of the North Carolina Ses­
sion Laws on March 3 ,1969.4

Chapter 31 was a local act which authorized the 
creation o f a separate public school administrative

4 The actual title o f Chapter 31 was: “An act to improve 
and provide public schools of a higher standard for the resi­
dents o f Scotland Neck in Halifax County. To establish the 
Scotland Neck City admininstrative unit, to provide for the 
administration o f the public schools in said administrative 
unit, to levy a special tax for the public schools o f said admin­
istrative unit, all o f which shall be subject to the approval of 
the voters in a referendum or special election.”



72a

unit to be known as the Scotland Neck City Adminis­
trative Unit pending approval by a majority o f the 
voters of Scotland Neck in a special election to be 
held on April 8, 1969. The act also provided that, upon 
such approval, a special tax of 50 cents per $100 
valuation be levied on property within the corporate 
limits of Scotland Neck, the school properties within 
the new system and all funds allocated for the opera­
tion of such schools be transferred from the Halifax 
County Board of Education to the new system and 
that the Mayor and Board o f Commissioners of Scot­
land Neck be required to appoint a Board o f Educa­
tion to administer the new system.

Chapter 31 became operative on April 8, 1969, upon 
the approval o f a majority of the voters of Scotland 
Neck. Of the 1305 registered voters, in a large turn­
out, 813 voted for approval, and 332 voted against the 
act. (Ferd Harrison’s Deposition, pp. 16-21).

There was a mixed reaction to the bill by educators 
and the people of Halifax County. Most o f  the white 
leaders o f Scotland Neck supported the bill. Mr. W . 
Henry Overman, Superintendent of the Halifax 
County Schools, was opposed to the bill. (Henry Har­
rison’s Deposition, p. 12). Negro groups, specifically, 
one led by a Reverend Deloatche, generally opposed 
the bill, (Deposition o f Aubrey Powell, black member 
of the Scotland Neck school board, p. 18). Craig 
Phillips, State Superintendent of Public Instruction 
and the only professional educator to testify against 
the bill in the legislature, opposed it on the grounds 
that it was contrary to the trend o f consolidating 
school districts (Phillips’ Deposition, p. 23), and 
because the number of students in the unit would be 
less than the number which he thought should be a 
minimum for the efficient operation o f a school unit. 
(Phillips’ Deposition, pp. 58, 59, 87-88).



73a

Following approval of the act by the voters of Scot­
land Neck, the Mayor and Board of Commissioners of 
the Town appointed a five-member Board of Educa­
tion. The Board then hired Franklin B. Bailey as 
superintendent, approximated the student enrollment 
for the 1969-70 school year and hired teachers. The 
Board also had a preregistration for students, estab­
lished a curriculum, set up an athletic program and 
assigned teachers. At a two-day instruction session 
for teachers which began on August 18, 1969, the 
Board announced that new teachers should report 
on August 26th and that the students should report 
for the commencement o f the school year on August 
28th. The supplementary tax of 50 cents per $100 valu­
ation was levied by the Board of Commissioners and 
the Town Tax Collector was instructed to collect it. 
(Ferd Harrison’s Deposition, p. 22).5

At a joint meeting o f the Halifax County and Scot­
land Neck school boards in June, the Halifax Board 
agreed to lease the Junior High School building which 
was just outside the boundaries of the new district 
to the Scotland Neck Board for one dollar per year. 
The Halifax Board has a similar arrangement with 
the Roanoke Rapids school unit with respect to the 
Chaloner school. The lease from Halifax County to 
Scotland Neck was first discussed at a joint meeting 
of the two boards in April or May. (C. M. Moore’s 
Deposition, pp. 25-26). The lease arrangement 
amounted to extending the boundaries of the Scotland

° The collection of the tax of course ceased when this Court’s 
preliminary injunction was entered against further implemen­
tation of Chapter 31. Much to the credit o f the citizens of 
Scotland Neck, the supporters of the bill have financed this 
litigation by voluntary donations contributed in response to a 
solicitation in the Scotland Neck Commonwealth, the local 
newspaper, on October 10, 1969.



74a

Neck unit to include approximately 10 additional 
acres, and the extension was approved by the State 
Board of Education on June 5, 1969. (Deposition of 
Franklin B. Bailey, Superintendent of the Scotland 
Neck System, pp. 19-20, Overman’s Deposition, pp. 
63-64).

One controversial aspect of this case is a transfer 
plan devised by the Scotland Neck Board o f Educa­
tion whereby students would be allowed to transfer 
into or out of the Scotland Neck unit to and from the 
Halifax County unit.8 Under the plan a student could 
transfer into the system if he paid a fee which would 
compensate for the supplemental tax being paid by the 
parents of those students residing within the corpo­
rate limits o f Scotland Neck. One hundred dollars 
would be charged for the first child in a family; $25 
for the next two children; and the rest of the chil­
dren in a family would be allowed to transfer in free 
of charge. As of August 25, 1969, 350 whites and 10 
blacks had applied for transfer into the Scotland Neck 
system, and 44 black 11th and 12th graders had 
applied to transfer out of the Scotland Neck unit to 
attend the all-black Brawlev High School.6 7 Because 
o f the controversial nature of the transfer plan and 
the charge that the plan permitted the Scotland Neck 
system to become a refuge for white students or

6 Both the Roanoke Rapids and the Weldon city units have 
similar transfer plans, but, recently, restrictions have been 
placed on the number of students permitted to transfer from 
Halifax County into the two systems. (Overman’s Deposition, 
pp. 166-169).

7 Counsel for the Scotland Neck City Board of Education 
explained that the transfer o f these black students in the lltli 
and 12th grades would be permitted only for the next two years 
in order to allow the students who had bought class rings, par­
ticipated in athletics or had been chosen to leadership positions 
to remain in the all-black Brawley High School.



75a

“ white island,” counsel for the Scotland Neck Board 
of Education in its First Further Answer attached 
to an Amended Answer filed on September 3, 1969, 
said the Scotland Neck unit, if  permitted to. operate, 
would limit its student enrollment to those students 
residing wdthin the corporate limits of Scotland Neck 
plus or minus any transfers that may be permitted by 
law’ and that would be in accordance with a plan to 
be approved by this Court.8

The result of the creation of a separate adminis­
trative unit for Scotland Neck was to carve out o f 
the Halifax County unit a smaller school district. 
Without the transfer system, there are 399 whites and 
296 blacks of school age wdthin the corporate limits 
of Scotland Neck. This does not include the children 
who would have entered the first grade in the fall of 
1969. The Scotland Neck system would have, been an 
integrated system throughout with black students 
comprising 42.6% of the student enrollment. There 
is one black member on the five-member school board, 
and the faculty would also be integrated. The effectua­
tion of the proposed transfer plan would have created 
approximately the same ratio of white to black stu­
dents that prevailed during the 1968-69 school year. 
In 1968-69, 786 whites attended Scotland Neck 
schools. O f those, 399 resided within the corporate 
limits and 387 resided outside Scotland Neck. W ith 
the transfer system as originally adopted, the net

8 I f  the school district itself were, found to be constitutional, 
it would not be difficult to fashion an acceptable transfer plan 
by either limiting transfers in and out such that the black- 
white ratio would be the same after accepting transfers or by 
accepting an equal number of blacks and whites. The problem 
of finding enough black students who could afford the transfer 
fees might be met by charging the paying transferees a higher 
fee.



76a

effect would have been to have 759 white students 
(74% ) in the schools of Scotland Neck and 262 black 
students (26% ). The school facilities under the juris­
diction of the new unit will accommodate about 1,000 
students.

The effect of the new unit on the other students in 
the county would be to leave the Halifax County 
unit with fewer whites in its school system. During 
the 1968-69 school year, the Halifax unit had a total 
o f 10,655 students, of which 2,357 (22% ) were white, 
8,196 ( 77%) were black and 102 (1% ) were Indian. 
The racial composition of the Halifax unit, with the 
originally proposed transfer system, would be as fol­
lows: white, 1,598 (16% ) ; black, 8,186 (83% ) ; Indian, 
102 (1 % ). I f  the transfer system were not allowed 
or i f  a transfer system were devised which assured a 
larger number of black students in the Scotland Neck 
unit, the figures and percentages o f course would 
change accordingly. Mr. Overman, Superintendent o f 
the Halifax schools, testified on deposition that the 
Interim Plan proposed in the 1968 survey prepared 
for the Halifax County system could still be imple­
mented even if  the constitutionality of the Scotland 
Neck district were upheld. (Overman’s Deposition, 
pp. 144-151). He also testified that Halifax County 
would still get the same amount o f money per pupil 
from State, Federal and local sources and that the 
County would have an even better pupil-teacher ratio 
in certain areas of instruction.

One of the principal questions in passing on the 
constitutionality of Chapter 31 relates to the motiva­
tion of the proponents and supporters of the Scotland 
Neck legislation. The plaintiffs contend that the 
motivation behind the passage o f the act was simply 
a desire to decrease the proportion o f black students 
in the Scotland Neck schools. The defendants submit



77a

that the primary reason for the legislation was a 
desire on the part of the people and leaders of Scot­
land Neck to increase the quality of education in the 
Scotland Neck schools. A fter closely scrutinizing the 
record and after carefully considering the arguments 
of counsel, this Court is of the opinion that the fol­
lowing motivating forces were responsible for the 
design of the legislation creating the separate Scot­
land Neck school district: (1) the desire to improve 
the educational level in the Scotland Neck schools, 
the present conditions in those schools having been 
brought about by a lengthy history of neglect and 
discrimination with respect to financial allocations 
to the Scotland Neck schools by the Halifax County 
Board o f Education; (2) a desire on the part of the 
leaders of Scotland Neck to preserve a ratio o f black 
to white students in the schools of Scotland Neck that 
would be acceptable to white parents and thereby pre­
vent the flight of white students to the increasingly 
popular all-white private schools in the area; (3) a 
desire on the paid of the people o f Scotland Neck to 
control their own schools and be in a position to 
determine their direction with more finality than if 
the schools were a part o f the Halifax County system^ 
In ascertaining such a subjective factor as motivation 
and intent, it is of course impossible for this Court to 
accurately state what proportion each of the above 
reasons played in the minds of the proponents of the 
bill, the legislators or the voters of Scotland Neck, 
but it is sufficient to say that the record amply sup­
ports the proposition that each of the three played a 
significant role in the final passage and implementa­
tion of Chapter 31.

There is lengthy testimony supported by the his­
torical treatment o f the Scotland Neck schools by 
the Halifax County Board of Education to the effect



78a

that the primary reason for the new district was that 
the people of Scotland Neck felt they could have a 
better education system if  they could have a separate 
school district, levy a supplemental tax upon them­
selves and exert more local control over the operation 
o f the schools within the corporate limits of the town. 
Mr. Aubrey Powell, the black member of the new 
Scotland Neck school board, testified on deposition 
that he thought the bill originated because the people 
of Scotland Neck thought it would provide a better 
education for their children. (Powell’s Deposition, pp. 
5-6). Mr. Powell said that the question o f the private 
schools was never discussed among the school board 
of Scotland Neck and that the issue had never been 
mentioned to him. Dr. Craig Phillips said in his depo­
sition that after discussing the bill with Josey, Harri­
son and Shields he was convinced that the major point 
o f discussion and the reason for the proposed bill was 
“ simply, concern about the quality of education for 
the youngsters involved in Scotland Neck.” (Phillips’ 
Deposition, p. 15). Mr. Henry Harrison, a strong 
proponent o f the improvement o f the Scotland Neck 
schools, testified that the people of Scotland Neck 
merely tried to improve the education of all the chil­
dren, both black and white, and that it was his under­
standing that under the administration in the new 
school district, the dual school system would be abol- 
shed. (Henry Harrison’s Deposition, pp. 40-41). Mr. 
Overman, Superintendent in Halifax County, in 
discussing the reasons behind the bill proposed in 1965, 
said that its purpose was to give the people of Scot­
land Neck more control over their schools and enable 
them to have a supplementary local tax. (Overman’s 
Deposition, pp. 172-176). He also cited the decrease in 
the annual capital expenditure outlay tax from



79a

63 cents to 27.5 cents per $100 valuation. (Overman’s 
Deposition, pp. 204-205).

The testimony and the candid admissions of counsel 
also indicate that the desire to preserve an acceptable 
white ratio in the school system was a factor behind 
the passage o f the act, Mr. Harrison stated that he 
told the legislature that white children were going to 
private schools and that something needed to be done 
to retain the support o f the white people for the pub­
lic schools. (Henry Harrison’s Deposition, p. 18). 
Mr. Shields and Mr. Overman both testified that they 
felt that integration would encourage the growth of 
the all-white private schools. (Overman’s Deposition, 
pp. 217-218, Shields’ Deposition, pp. 70-71). Mr. C. 
M. Moore said that it was his opinion that the inde­
pendent school system would be a better alternative 
than the private schools. (Moore’s Deposition, pp. 18- 
19). Mr. Shields testified to the same thing and said 
that most of the adults in Scotland Heck held the 
same opinion. (Shields’ Deposition, pp. 23-26).

One factor which the plaintiff has attempted to use 
as proof that the bill will produce an inferior school 
system and that, therefore, it could not have been put 
forth for educational reasons is that there is substan­
tial opinion among educators that there are consid­
erable educational advantages to be derived from the 
greater efficiency and better allocation of resources 
frequently associated with the operation of school 
units with larger numbers o f pupils. However, the 
Court feels impelled to consider the points raised by 
the arguments of counsel for both sides because of 
the great amount of effort put forth by both sides to 
show why the proposed school district in Scotland 
Heck might or might not be better than the Halifax 
County system out of which it was carved.



80a

Many educators agree in general principle with the 
suggestion made in the report of the Governor’s Study 
Commission9 that the merger of administrative units 
is a desirable thing because it frequently leads to the 
increased efficiency in the operation of the public 
schools. Mr. Overman testified that the North Caro­
lina Teacher’s Association approves the suggested 
number of 9,000-10,000 as a desirable pupil population 
and the suggested minimum of 3,500M,000 in the size 
of school units as recommended on page 164 of the 
study commission’s report. (Overman’s Deposition, p. 
72). Dr. Craig Phillip is also firmly committed to the 
policy of consolidation and the advisability of reach­
ing a 5,000 student population unit if  possible and 
testified that the number o f units in North Carolina 
has declined from a peak of 177 to the present num­
ber of 155. (Phillips’ Deposition, pp. 35-36).

Further argument against the educational advan­
tages of the new district is that the Scotland Neck 
school board did not actually make any plans to use 
the additional tax money for teachers’ supplements. 
The only proposed change in salaries was to give the 
superintendent an $1,800.00 per year supplement. 
There were plans to set up a curriculum study pro­
gram in the fall of 1969 to determine which courses 
would be of most benefit to the students in the Scot­
land Neck system, but the only planned changes in 
the school curriculum for the 1969-70 school year was

9 The Report o f the Governor’s Study Commission on the 
Public School System of North Carolina is a 302-page report 
prepared by a 17-member commission appointed by Governor 
Dan K. Moore. The report was submitted December 3, 1968, and 
was prepared in response to the question “ How best can the 
people of North Carolina meet their obligation to provide full 
educational opportunities for their children?” In conducting the 
study, the commission consulted experts, conducted research and 
visited a number of schools.



81a

the elimination o f the music course and some trade 
courses. (Pow ell’s Deposition, pp. 23-24). There were 
no studies made prior to the introduction of the bill 
with respect to the educational advantages of the 
new district, and there was no actual planning as to 
how the supplement would be spent although some 
people assumed it would be spent on teachers’ 
supplements.

The thing which makes it difficult for this Court to 
base its conclusions on the quality o f education in the 
new unit is that there is so much conflict in the testi­
mony. For example, Craig Phillips, although en­
dorsing the trend toward mergers of school units, 
testified that he would ascribe very strongly to the state­
ment on page 29 of the school survey o f 1968 10 11 that 
‘ ‘ the one best single determinant in the quality pro­
gram of education is the financial factor. * * * ”  He 
testified that many of the smaller units do turn out a 
better product than the larger units and that he was 
aware that units in the 823-2,000 pupil category rank 
higher in many significant categories than some of the 
larger units. (Phillips’ Deposition, pp. 93-95). This 
Court also, in examining the rankings of the various 
schools with respect to many categories, notes that 
the smaller schools do rank higher in some rather 
significant categories and that the Halifax County 
unit ranks near the bottom in a number o f the 
categories.11

10 A  survey o f the Halifax County Schools prepared in 
September, 1968, by a seven-member committee under die 
supervision o f the Division o f School Planning in the North 
Carolina Department o f Public Instruction and the direction 
of Dr. J. L. Pierce, Director.

11 The Profile o f Significant Factors in Education in North 
Carolina, a ranking o f school administrative units prepared 
in July, 1968, by the Statistical Services Division o f the North 
Carolina Department of Public Instruction, shows that the

422 - 400— 71------------ 7



82a

Another factor worthy of mention is the plain­
tiff’s introduction into evidence o f several newspaper 
articles which discuss a supposed motivation for the 
bill. The articles taken from the Raleigh News and 
Observer, suggest that racial considerations, and not 
a concern for better education, motivated the legisla­
tion. For example, on February 2, 1969, the news­
paper wrote that Halifax County Negroes outnum­
bered whites, that the reverse existed in Scotland 
Neck and that Halifax County Negroes had opposed 
the bill. On February 14, 1969, the paper commented 
editorially that the bill provided for an “ educational 
island” dominated by whites and on February 22, 
1969, suggested that if  the bill passed, it would en­
courage other school districts to provide similar legis­
lation. This Court has chosen to admit the newspaper

Halifax system, the Try on City system (smallest unit in the 
state), and the Tyrrell County system (small rural agricultural 
county) rank, in relation to the 166 units in the state and in the 
following categories, as follows:

Tryon Tyrrell Halifax

1. Percent of classroom teachers with 
graduate certificates, table 1, p. 1___ 59 98 120

2. Percent of professional staff paid en­
tirely from local funds, table 4, p. 13_ 54 87 135

3. Percent of classroom teachers with 
maximum experience for pay pur­
poses, table 5, p. 17 _____ _________ 14 5 84

4. Percent of classroom teachers with no 
prior experience, table 6, p. 21______ 160 38 12'

5. Percent of high school graduates en­
tering college, table 7, p. 25________ 4 134 162

6. Percent of high school graduates en­
tering trade, business, Or other 
schools, table 8, p. 29 _____________ 86 63 123:

7. Pupil to staff ratio, table 14, p. 49____ 31 69 135
8. Per pupil expenditures of local funds, 

table 24, p. 89__________________ _ 48 109 125



83a

articles for the purpose o f showing that they did 
appear and not for the purpose of showing the truth 
o f the information contained in them.12

CONCLUSIONS OF LAW

Three legal principles are applicable to an analysis 
o f the constitutional issues now before this court. The 
first is that any federal court should be hesitant to 
declare a state statute unconstitutional. As stated in 
Phillips Petroleum Co. v. Jones, 147 F. Supp. 122, 
125 (D. Okla., 1955) (three-judge court) :

Federal jurisdiction, though existent, will not 
be exercised to strike down a state statute un­
less it is clearly and palpably unconstitutional 
upon its face, the enforcement o f which will 
cause immediate and irreparable harm to the 
complainant, as to which there is no legal or 
administrative remedy. * * * [cites omitted.]

There is similar language in numerous other cases, but, 
for reasons which need not be considered at this time, 
the principle has not been applied extensively in cases 
involving race, civil rights or school desegregation; 
and the principle is therefore of limited relevancy in 
resolving the questions now under consideration.

The second applicable principle relates to what the 
Supreme Court and the lower courts have said about 
what school boards and state and local school officials 
must do to guarantee black students their constitu­
tional rights in the area of school desegregation. The 
relevant cases here would appear to be Brown v.

12 Although there is authority for admitting the newspaper 
articles to show legislative intent where there are no other 
reports made contemporaneously with the passage o f the act, 
e.g., United States v. Louisiana, 225 F. Supp. 353, 375n. 59 
(E.D. La., 1963) (three-judge court), this Court has chosen to 
limit the admissability o f the articles as stated.



84a

Hoard of Education (Brown I ) ,  347 U.S. 483, 98 L. 
Ed. 873, 74 S. Ct. 686 (1954), Brown v. Board of 
Education (Brown I I ) ,  349 U.S. 294, 99 L. Ed. 1083 
75 S. Ct. 753 (1955), Green v. New Kent County 
School Board, 391 U.S. 430, 20 L. Ed. 2d 716, 88 S. 
Ct. 1689 (1968), Alexander v. Holmes County Board, 
o f Education, 396 U.S. 19, 24 L. Ed. 2d 19, 90 S. Ct. 
29 (October 29,1969).

As this Court reads and interprets these relevant 
opinions, it would seem that the Supreme Court is 
concerned about establishing school systems which op- 
urate and assign their students to a particular school 
without regard to the student’s race or color. Justice 
Brennan, speaking for the Court in the Green decision 
said the following:

It  was * * * dual systems that 14 years ago 
Brown I  held unconstitutional and a year later 
Brown I I  held must be abolished; * * * 391 
U.S. at 435, 20 L. Ed. 2d at 722.

and
The transition to a unitary, non-racial system 
of public education was and is the ultimate end 
to be brought about; * * * 391 U.S. at 436, 20 
L. Ed. 2d at 722.

Brown I I  used the phrase “ racially nondiscriminatory 
school system”  and Green used the phrase “ unitary 
nonracial school system”  as the description of that 
which the Constitution requires.

The requirement that school systems must be non­
racial was injected with an air o f immediacy by the 
Green decision in May, 1968. An even stronger demand 
for desegregation now was made in October, 1969, 
when the Court, in a per curium opinion, Alexander v. 
Holmes County Board of Education, stated that the 
“ all deliberate speed”  standard was no longer appli­
cable and that “  * * * the obligation of every school 
district is to terminate dual school systems at once



8'5a

and to operate now and hereafter only unitary 
schools.”  24 L. Ed. 2d at 21.

As o f the entry of this Opinion and Order the Su­
preme Court has failed to give an exact definition of 
a unitary nonracial school system. Although the 
Supreme Court has condemned gerrymandering, 
freedom-of-choice plans, free-transfer plans, and 
racially identifiable schools, student bodies or faculties 
which to retain the vestiges o f the segregated dual 
system, no case has been brought to the attention of 
this Court (with the possible exception of a recent 
Georgia case) which requires any specific ratios of 
blacks to whites in a classroom, school or school dis­
trict. Despite newspaper articles and perhaps some 
district court opinions to the contrary, the Supreme 
Court has not yet required bussing or population 
changes to effect particular black-white ratios in the 
schools. The emphasis of the Court has been on the 
nature of the school system and how it treats and 
assigns its students and faculty members. The Su­
preme Court has not yet concerned itself with the 
actual numbers o f blacks and whites attending school 
together except where the numbers or percentages 
reflect that the school system is assigning its students 
or faculty or making some decisions on the basis of 
the race of the individuals involved.

The third legal principle relevant to the analysis 
o f this case is that stated in Gomillion v. Lightfoot, 
364 IT.S. 339, 5 L. Ed. 2d 110, 81 S. Ct. 125 (1960) 
that “ acts generally lawful may become unlawful 
when done to accomplish an unlawful end.” In that 
case, the Supreme Court invalidated an Alabama stat­
ute which had redefined the boundaries of the City 
o f Tuskegee to reduce the black vote. Legislative 
manipulation to affect the constitutional rights o f 
blacks has been a familiar practice in several southern



86a

states in recent years, two examples being foimd in 
Hall v. St. Helena Parish School Board, 197 F. Supp. 
649 (E.D. La., 1961), and Poindexter v. Louisiana 
Financial Assistance Commission, 275 F. Supp. 833 
(E.D. La., 1967), aff’d, 389 U.S. 571, 19 L. Ed. 2d 
780, 88 S. Ct. 693 (1968), two cases by three-judge 
courts which struck down attempts by the Louisiana 
legislature to continue a segregated public school sys­
tem under the guise of assistance payments to private 
school students.

Applying this principle to the assignment of pupils, 
the case of Haney v. County School Board of Educa­
tion Sevier County, 410 F. 2d 920 (8th Cir. 1969), 
becomes relevant. In that case, plaintiffs challenged 
the existence o f an all-black school in one district o f 
the county and an all-white school in a different dis­
trict o f the same county. The district court dismissed 
the complaint on the grounds that the districts had 
not been created for the purposes of denying plain­
tiffs their constitutional rights and were therefore 
valid. The court o f appeals reversed the district court 
on the grounds that the creation o f the districts, in 
accordance with a statutory reorganization o f A r­
kansas schools in 1948 in accordance with the then- 
existing Arkansas law, was unconstitutional because 
the 1948 law required Arkansas schools to be segre­
gated and the boundaries o f the school districts were 
obviously drawn to continue the segregated schools. 
In  this Court’s opinion, the holding in the Haney 
case was simply that the maintenance o f segregated 
schools cannot be justified “ simply because of the pre- 
Brown geographic structuring of school districts.”

Also demonstrative of the dominion principle is 
the Supreme Court decision in Monroe v. Board of 
Commissioners o f the City o f Jackson, Tennessee, 
391 U.S. 450, 20 L. Ed. 2d 733, 88 S. Ct. 1700 (1968),



87a

in which the Supreme Court struck down a free- 
transfer plan which enabled a child, after first regis­
tering at the assigned school in his attendance zone, 
to transfer to the school o f his choice i f  space were 
available. The Court objected to the plan on the 
grounds that it delayed the conversion to a unitary 
nonracial system where, after three years o f opera­
tion under the plan, all o f the whites remained in 
the white school and 80% o f the blacks remained in 
the black school.

Perhaps the two most relevant, but still distinguish­
able cases are two district court decisions rendered 
within the last few months in Virginia and Arkansas. 
In  Burleson v. County Board of Election Commis­
sioners o f Jefferson County, No. PB -69-C -65 (E.D. 
Ark., September 22, 1969), an opinion by District 
Judge J. Smith Henley, the plaintiffs, residents of the 
Dollarway School District, challenged the implemen­
tation o f the results o f a local election which would 
have permited the Hardin area o f the district, a non­
contiguous area with a 99%-white student population, 
to be severed from the district. The court enjoined 
the implementation o f the election on the grounds that 
severance would impede the Dollarway School Board’s 
efforts to comply with that court’s order to integrate 
the schools and because the Board would have had 
difficulty in finding white teachers who would teach 
in the district i f  blacks greatly outnumbered whites. 
Also, the district would have lost some operating 
funds and there were no schools or other facilities 
in the Hardin area available for  the school children 
in that area.

The second case is TTrright v. County School Board 
of Greensville County, No. 4263 (E.D. Va., August 8, 
1969), a decision by District Judge Robert R. Merhige. 
In  that case, the Greensville County School Board was



88a

in the process of carrying out a court-ordered plan of 
desegregation, and the City Council and other officers 
o f the City of Emporia, on July 9, 1969, convened a 
special meeting to establish a separate city school sys­
tem. On July 10th, the mayor sought to buy or lease 
from the county the school buildings located within 
the city. A t a July 14th meeting, after hearing the 
mayor express his dissatisfaction with the proposed 
plan o f desegregation for the county, the City Council 
unanimously decided to instruct the City School Board 
to take steps to establish a separate school division 
for the city. On July 23rd, the City Council adopted 
a resolution requesting the State Board o f Education 
to authorize the creation o f a separate school division. 
The City School Board notified the county board that 
no city children would attend the county system there­
after and that the city would no longer share the costs 
of the county system. The plan of operation proposed 
by the City o f Emporia would have afforded those stu­
dents residing outside of the city the opportunity to 
attend the city schools on a “ tuition-no transporta­
tion” basis. The members of the City School Board 
offered no assistance to the county board in the sub­
mission o f a plan of desegregation to the district 
court.

The district court found as a matter of law that the 
City School Board, as successor to the Greensville 
County Board, was required to disestablish racial seg­
regation in the school system in accordance with the 
plan approved by the court. The establishment and 
operation o f a separate school system would have been 
an impermissible interference and frustration of the 
court’s order.

Application o f the constitutional case law to the 
issue before this Court, the separation o f the Scotland 
Neck school unit from the larger Halifax County unit,



89a

creates a more difficult question than this Court has 
been able to find in any of the questions presented in 
the earlier cases. W ith the transfer system as it was 
originally proposed, this Court would probably have 
less difficulty in finding the scheme unconstitutional, 
because the Scotland Neck school district in view of 
the economics o f the situation, that is, the inability of 
blacks to afford the transfer fees, would become a 
refuge or haven for those white students in the coimty 
who wished to escape the real or imagined disaster of 
a substantial black majority in the Halifax County 
System. Now that the defendant Scotland Neck City 
Board o f Education, in its First Further Answer of 
September 3, 1969, has agreed to either eliminate the 
transfer system or adopt a system which would comply 
with the Board’s constitutional obligations, the ques­
tion has become even more difficult. What this Court 
is now faced with is assessing the results of the 
creation of the new unit strictly in terms of the effect 
it has on the relationship o f those students residing 
within the corporate limits o f Scotland Neck and those 
residing in Halifax Coimty. The creation o f the new 
unit does take some of the white students out o f the 
Halifax County unit and thereby does reduce the pro­
portion o f whites in a school system already top-heavy 
with black students.

It is apparent that Chapter 31, o f the Session Laws 
of 1969 was enacted with the effect o f creating a 
refuge for white students o f the Halifax County 
School system, and interferes with the desegregation 
of the Halifax County School system, in accord with 
the plan adopted by said Board to be implemented on 
or before June 1,1970.

T herefore, this Court’s findings of fact that the 
legislative bill creating the district was at least par­
tially motivated by a desire to stem the flight o f white



90a

students from the public schools, the Court must find 
that the act is unconstitutional and in violation o f  the 
Equal Protection Clause o f the 14th amendment 
and must enter permanent injunctive relief for the 
plaintiff.

Since the record in this case conclusively shows that 
the Act of the General Assembly creating the Scotland 
Neck unit in Halifax County serves no State interest 
and prevents the Halifax County Board of Education 
from complying with the orders o f this court issued 
in protection o f constitutional rights, it is the court’s 
opinion that Chapter 31 of the North Carolina Session 
Laws of 1969 is unconstitutional. A  judgment in ac­
cordance with this opinion will be entered by the court.

ORDER

Now, T herefore, in accordance with the foregoing, 
it is :

Ordered that the further implementation o f Chapter 
31 of the 1969 Session Laws o f North Carolina be, 
and the same hereby is, permanently enjoined; and,

Ordered that the Clerk shall serve copies o f  this 
Opinion and Order upon all counsel o f record.

Let this Order be entered forthwith.
Algernon L. Butler, 
A lgernon L. B utler,

Chief Judge,
United States District Court. 

John D. Larkins, Jr.,
John D. L arkins, Jr., 

United States District Judge.
May 23,1970.
A  True Copy, Teste: Samuel A. Howard, Clerk, by 

C. R. Sanger, Deputy Clerk.



A P P E N D IX  E

JUDGMENT

U N ITE D  STATES COURT OF A P P E A L S FOR 
TH E FO U RTH  CIRCU IT

No. 14,929
U nited States of A merica, and P attie B lack Cotton, 

E dward M. F rancis, P ublic School Teachers op 
H alifax County, et al., appellees

v.
Scotland N eck City B oard of E ducation, a B ody 

Corporate, appellant

Appeal from the United States District Court for the 
Eastern District o f North Carolina

This cause came on to be heard on the record from the 
United States District Court for the Eastern District of 
North Carolina, and was argued by counsel.

On consideration whereof, It  is now here ordered and 
adjudged by this Court that the judgment of the said 
District Court appealed from, in this cause, be, and the 
same is hereby, reversed; and the case is remanded to 
the United States District Court for the Eastern Dis­
trict o f North Carolina, at Wilson, with instructions 
to dissolve its injmiction and retain jurisdiction to con­
sider plans of integration proposed by Halifax County 
Board o f Education and by Scotland Neck Board of 
Education.

Samuel W . P hillips,
Clerk.

A  True Copy, Teste:
Samuel W . P hillips,

Clerk.
B y D iane H udson,

Deputy Clerk.
(91a)



A P P E N D IX  P

U N ITED  STATES COURT OE A P P E A L S FOR 
TH E FO U RTH  CIRCU IT

No. 14990

A lvin T urner, et al., and JoA nne A melia Clayton,
ET AL., APPELLEES 

versus
T he L ittleton-L ake Gaston School D istrict, a P ub­

lic B ody Corporate oe W arren County and H ali­
fax County, N orth Carolina, appellant

Appeal from the United States District Court for 
the Eastern District o f North Carolina, at Raleigh

Algernon L. Butler and John D. Larkins, Jr., Dis­
trict Judges.

Argued December 7, 1970—Decided March 23, 1971

Before H aynsworth, Chief Judge, Sobeloff, B ore- 
m an , B ryan, W inter, Craven and B utzner, Cir­
cuit Judges sitting en banc

William S. McLean (McLean, Stacy, Henry & Mc­
Lean; James H. Lim er; Robert Morgan, Attorney 
General o f  North Carolina, and Ralph Moody, Deputy 
Attorney General o f North Carolina, on brief) for 
Appellant, and Adam Stein (J. LeVonne Chambers, 
and Chambers, Stein, Ferguson & Canning; T. T. 
Clayton and Frank Ballance, and Clayton and Bal- 
lance; Conrad 0 . Pearson; Jack Greenberg, James M. 
Nabrit, I I I ,  and Norman Chachkin on brief) for 
Appellees.

(92a)



93a

CRAVEN, Circuit Judge: This is one of three cases 
on appeal in which the court below enjoined the 
carving out of a new school district containing ap­
proximately 50 percent white students and 50 percent 
black students from a county school district contain­
ing a substantial majority o f black students. In the 
other two cases, we reversed the district court. United 
States v. Scotland NecU Board of Education, —  E.
2d — , Nos. 14929 and 14930 (4th Cir. ------ , 1971) ;
W right v. Council o f City of Emporia, — F. 2d — ,
No. 14552 (4th Cir. ------ , 1971). In this one, we
affirm.

This suit to compel the desegregation o f the Warren 
County school system was begun in 1963. Back then 
Warren County had assigned all o f the white students 
to six all-white schools, all o f the black students to 
thirteen all-black schools and all of the Indian stu­
dents to one all-Indian school. During the school years 
beginning in the fall o f 1964, 1965 and 1966, Warren 
County assigned its students to the various schools 
through a freedom of choice plan. On May 16, 1967, 
the district court determined that the freedom of 
choice plan had failed to materially alter the previ­
ously existing racially segregated school system and 
ordered the Warren County School Board to take 
affirmative action to eliminate the dual school system. 
The affirmative action taken by the school board was 
to assign a handful of black and Indian students to 
predominantly white schools and assign four teachers 
across racial lines. On July 31, 1968, the district court 
found that Warren County was still operating a dual 
school system and ordered the school board to file a 
plan for the elimination of racial segregation. The 
first two plans were rejected as inadequate. Finally, 
on December 1, 1968, the school board submitted a 
third plan providing for  geographic attendance zones



94a

to take effect with the beginning of the 1969-70 school 
year. This plan was approved by the district court in 
July 1969.

Opposition to the school board’s third plan arose 
soon after it was submitted. The opposition resulted 
in proposals for the creation o f separate school dis­
tricts for the town of Warrenton and the area sur­
rounding the town of Littleton. Bills were introduced 
to the North Carolina legislature to carve new school 
districts for these two areas out of the existing 
Warren County school district. The governing bodies 
o f the two new school districts were denominated 
the Warrenton City Board of Education and the 
Littleton-Lake Gaston School District. The Warren 
County Board o f Education approved petitions urging 
the passage of these bills. The two bills were passed 
by the North Carolina legislature and ratified as 
Chapters 578 and 628 o f the 1969 North Carolina 
Session Laws. The residents of both affected areas 
approved the creation of the new school districts by 
referendum.

On July 17, 1969, the plaintiffs filed a supplemental 
complaint seeking a declaratory judgment that Chap­
ters 578 and 628 of the 1969 North Carolina Session 
Laws were unconstitutional and seeking an injunction 
against the operation o f the two newly created school 
systems. On August 25, 1969, a temporary injunction 
against the operation of the two new school districts 
was issued by the United States District Court for 
the Eastern District o f North Carolina. The injunc­
tion was made permanent on May 26,1970. The Little­
ton-Lake Gaston School District appealed. The 
Warrenton City Board o f Education has not appealed.

The constitutionality of the legislation creating the 
Littleton-Lake Gaston School District depends on 
whether its primary purpose is to prevent, insofar as



95a

is possible, the dismantling o f the former dual school 
system. Wright v. Council o f City o f Emporia, — F.
2d. — , No. 14552 (4th C ir .----------, 1971). Legislatures
are assumed to intend the natural and reasonable ef­
fect o f the legislation they enact. “ In  a legal sense the 
object or purpose o f legislation is to be determined 
by its natural and reasonable effect. . . . ”  People 
ex rel. Parke, Davis & Co. v. Roberts, 171 U.S. 658 
(1898).

Looking at effect only, and ignoring the abortive 
creation o f the Warrenton City School district, this 
case is similar to Scotland Neck and Emporia, supra. 
Removing the students who were to attend the Little- 
ton-Lake Gaston School District would alter the racial 
balance in the remaining Warren County school dis­
trict by, at most, 5.5 percent, from 28 percent white, 
67 percent black and 6 percent Indian, to 21.5 percent 
white, 72.5 percent black and 6 percent Indian.1 There 
would be a substantial majority of black students in 
the Warren County system whether or not these stu­
dents were removed. Also, paralleling Scotland Neck 
and Emporia, the Littleton-Lake Gaston school o f­
ficials argued in the district court that the creation 
o f the special school district was designed to remedy 
long standing financial difficulties and to prevent the 
imminent elimination o f school facilities from the 
town of Littleton. The town of Littleton lies partly 
in Warren County and partly in Halifax County.

1 The appellants and the appellees disagree on the method that 
should be employed to measure the effect o f the removal o f 
the students who were to attend the Littleton-Lake Gaston 
School District on the racial balance in Warren County. Accord­
ing to the appellants, the effect would have been a change in 
the racial balance in the remaining Warren County system of 
no more than 2.6 percent. Our disposition o f this case does 
not require us to resolve this dispute.



96a

Historically, students from both Warren County and 
Halifax County attended school in Littleton, although 
the school was officially part of the W arren Comity 
school system. The Warren County Board refused 
to fund the Littleton school at a level commensurate 
with other schools in the system arguing that Halifax 
County should provide support for the students from 
Halifax County. The Halifax County Board refused 
to provide funds for a school run by Warren County. 
Apparently as a result of this financial dilemma, the 
physical condition o f the school building in Littleton 
was deteriorating. A  report by the North Carolina 
Division of School Planning in 1965 recommended the 
eventual abandonment of school facilities presently in 
use in Littleton. Although the report did not specify 
where replacement facilities would be erected, the 
Littleton officials apparently assume that they would 
not be located in Littleton.

Despite these similarities, we think there are im­
portant differences that distinguish this case from 
Scotland Neck and Emporia. In  both Scotland Neck 
and Emporia, the district courts specifically found 
that there were non-invidious purposes for the crea­
tion of the new school districts. The opinion below 
in this case, signed by the same two district judges 
who sat in Scotland Neck, contains no such findings. 
In both Scotland Neck and Emporia, the geographic 
boundaries of the new school districts are the pre­
viously existing boundaries of the two cities. The Lit- 
tleton-Lake Gaston School District is composed of the 
town of Littleton, two townships in W arren County 
and part o f a third township in Halifax County. W hy 
H.S. 158 was selected as the southern boundary for the 
new school district is not satisfactorily explained. New 
boundary lines are suspect and require close scrutiny 
to assure that they are not gerrymandered for invid-



97a

ions purposes. Although the financial difficulties of the 
Littleton school are o f long standing and the report 
recommending the abandonment o f the Littleton school 
facilities predates the creation of the Littleton-Lake 
Gaston School District by four years, there were no 
attempts by the residents o f the Littleton area to ob­
tain a separate school district prior to the time that 
effective integration was imminent as there were in 
Scotland Neck. Unlike Emporia, the residents of the 
Littleton area have not been deprived o f their propor­
tionate voice in the governmental affairs o f Warrent 
County.

But we need not decide whether these differences 
alone are sufficient to compel a result different from 
the disposition o f Scotland Neck and Emporia. In 
determining the purpose o f legislation, it is appropri­
ate to consider not only the effect o f the legislation 
itself, but also the history and setting out of which 
the legislation arose. See Poindexter v. Louisiana 
Financial Assistance Commission, 275 F. Supp. 833 
(E.D. La. 1967), aff’d per curiam, 389 U.S. 571 
(1968). The adverse reaction and strong opposition 
to the third desegregation plan submitted by the W ar­
ren County Board of Education plainly fueled the 
creation o f the two new school districts, Littleton- 
Lake Gaston and the Warrenton City Administrative 
Unit. The two bills creating these school districts were 
introduced on April 10 and 11, 1969, a day apart, and 
were ratified three days apart. Both were “ local bills” 
sponsored by representatives to the North Carolina 
legislature from districts including Warren County. 
The court below focused, quite properly, on the com­
bined effect of these two bills. The net effect o f  both 
bills would have been to reduce the number o f white 
students in the Warrenton County school system from 
1,415 (27 percent) to 260 (7 percent)—allowing more

422^400— 71-------8



98a

than four out of five white students to escape the 
heavily black schools of Warren County.2 The finding 
of the district court that the primary purpose of the 
legislation was to carve out a refuge for white students 
and preserve to the extent possible segregated schools 
in Warren County is supported by substantial evi­
dence, and indeed, is inescapable. Accordingly, we 
affirm the judgment o f the district court enjoining the 
establishment of the Littleton-Lake Gaston School 
District.

"Affirmed.

2 These figures include the net effect of transfer plans adopted 
by both the Littleton-Lake Gaston School District and the 
Warrenton City Board o f Education. In Scotland Neck we 
concluded that the effect of a transfer plan adopted by the 
Scotland Neck Board of Education had no relevance to the 
question of the constitutionality of the legislation creating the 
Scotland Neck school district because there was nothing in the 
record to suggest that the legislature was aware that Scotland 
Neck would adopt a transfer plan. In this case, however, such 
evidence does appear in the record. The school facilities in 
Warrenton had a capacity o f 1,000 to 1,200 students but the 
Warrenton City Unit contained only 206 resident students. The 
district court found that Warren County could not accommo­
date its present students without utilizing the surplus space in 
Warrenton and that Warrenton could not maintain acceptable 
educational standards in a 12-grade school system containing 
only 200 students. Thus, Warrenton could not operate a sepa­
rate school system without a substantial number o f students 
transferring from the county. In addition, there was direct testi­
mony by State Senator Julian Allsbrock, one of the sponsors 
o f the Littleton-Lake Gaston bill, that there was some discus­
sion o f students transferring into the Littleton-Lake Gaston 
School District while the bill was pending. Volume III, Record 
on Appeal, Transcript o f Hearing at Raleigh, North Carolina, 
December 17, 1969, at 23, 59.



A P P E N D IX  G

Section 407 of the Civil Rights Act of 1964, 42 
U.S.C. 2000c-6, provides:

“ (a) Whenever the Attorney General receives a 
complaint in writing—

(1) signed by a parent or group of parents to 
the effect that his or their minor children, as 
members o f a class of persons similarly situ­
ated, are being deprived by a school board o f 
the equal protection of the laws, or

(2) signed by an individual, or his parent, to 
the effect that he has been denied admission to 
or not permitted to continue in attendance at a 
public college by reason o f race, color, religion, 
or national origin,

and the Attorney General believes the complaint is 
meritorious and certifies that the signer or signers of 
such complaint are unable, in his judgment, to initiate 
and maintain appropriate legal proceedings for relief 
and that the institution o f an action will materially 
further the orderly achievement of desegregation in 
public education, the Attorney General is authorized, 
after giving notice of such complaint to the appropri­
ate school board or college authority and after certi­
fying that he is satisfied that such board or authority 
has had a reasonable time to adjust the conditions 
alleged in such complaint, to institute for or in the 
name of the United States a civil action in any ap­
propriate district court o f the United States against 
such parties and for such relief as may be appropri­
ate, and such court shall have and shall exercise juris­
diction of procedings instituted pursuant to this

(99a)



100a

section, provided that nothing herein shall empower 
any official or court of the United States to issue any 
order seeking to achieve a racial balance in any 
school by requiring the transportation of pupils or 
students from one school to another or one school 
district to- another in order to achieve such racial 
balance, or otherwise enlarge the existing power of 
the court to insure compliance with constitutional 
standards. The Attorney General may implead as 
defendants such additional parties as are or become 
necessary to the grant o f effective relief hereunder.

“ (b) The Attorney General may deem a person or 
persons unable to initiate and maintain appropriate 
legal proceedings within the meaning of subsection 
(a) of this section when such person or persons are 
unable, either directly or through other interested 
persons or organizations, to bear the expense o f the 
litigation or to obtain effective legal representation; 
or whenever he is satisfied that the institution of such 
litigation would jeopardize the personal safety, em­
ployment, or economic standing of such person or 
persons, their families, or their property.

“ (c) The term ‘parent’ as used in this section 
includes any person standing in loco parentis. A  
‘complaint’ as used in this section is a writing or 
document within the meaning of section 1001, Title 18, 
United States Code.”



A P P E N D IX  H

Chapter 31 of the 1969 Session Laws of North 
Carolina, is entitled and provides:

“A n  A ct to I mpkove and P rovide P ublic Schools of 
a H igher Standard for the R esidents of Scotland 
N eck in  H alifax County, to E stablish the Scot­
land N eck City A dministrative U nit, to P rovide 
for the A dministration of the P ublic Schools in  
Said A dministrative U nit, to L evy a Special T ax 
for the P ublic Schools of Said A dministrative 
U nit, A ll of W hich  Shall B e Subject to the A p­
proval of the V oters in  a R eferendum or Special 
E lection

“ Section 1. There is hereby classified and estab­
lished a public school administrative unit to be 
known and designated as the Scotland Neck City 
Administrative Unit which shall consist of the terri­
tory or area lying and being within the boundaries 
or corporate limits of the Town of Scotland Neck in 
Halifax County, and the boundaries o f said Scotland 
Neck City Administrative Unit shall be coterminous 
with the present corporate limits or boundaries of the 
Town of Scotland Neck. The governing board of said 
Scotland Neck City Administrative Unit shall be 
known and designated as the Scotland Neck City 
Board of Education, and said Scotland Neck City 
Board of Education (hereinafter referred to as: 
Board) shall have and exercise all of the powers, 
duties, privileges and authority granted and applicable 
to city administrative units and city boards of educa­
tion as set forth in Chapter 115 of the General Stat­
utes, as amended.

( 1 0 1 a )



1 0 2 a

“ Sec. 2. The Board shall consist o f five members 
appointed by the governing authority of the Town of 
Scotland Neck, and said five members shall hold office 
until the next regular municipal election of the Town 
of Scotland Neck to be held in May, 1971. At the 
regular election for Mayor and Commissioners o f the 
Town of Scotland Neck to be held in May 1971, there 
shall be elected five members of the Board, and three 
persons so elected who receive the highest number of 
votes shall hold office for four years and the two per­
sons elected who receive the next highest number of 
votes shall hold office for two years, and thereafter 
all members of the Board so elected, as successors, 
shall hold office for four years. All members o f the 
Board shall hold their offices until their successors 
are elected and qualified. All members of the Board 
shall be eligible to hold public office as required by 
the Constitution and laws of the State.

“ S e c . 3. All members o f the Board shall be elected 
by the qualified voters o f  the Town o f Scotland Neck 
and said election shall be held and conducted by the 
governing authority o f the Town o f Scotland Neck 
and by its election officials and pursuant to the same 
laws, rules and regulations as are applicable to the 
election o f the municipal officials o f the Town of Scot­
land Neck, and the results shall be certified in the 
same manner. The election o f members o f the Board 
shall be held at the same time and place as applicable 
to the election o f the Mayor and Board o f Commis­
sioners o f the Town o f Scotland Neck and in accord­
ance with the expiration of terms of office o f members 
of the Board. The members of the Board so elected 
shall be inducted into office on the first Monday fol­
lowing the date o f election, and the expense o f the 
election of the members o f the Board shall be paid by 
the Board.



103a

“ Sec. 4. At the first meeting o f the Board appointed 
as above set forth and of a new Board elected as here­
in provided, the Board shall organize by electing one 
of its members as chairman for a period o f one year, 
or until his successor is elected and qualified. The 
chairman shall preside at the meetings o f the Board, 
and in the event of his absence or sickness, the Board 
may appoint one of its members as temporary chair­
man. The Scotland Neck City Superintendent of 
Schools shall be ex officio secretary to his Board and 
shall keep the minutes o f the Board but shall have no 
vote. I f  there exists a vacancy in the office o f Super­
intendent, then the Board may appoint one o f its 
members to serve temporarily as secretary to the 
Board. A ll vacancies in the membership of the Board 
by death, resignation, removal, change o f residence or 
otherwise shall be filled by appointment by the gov­
erning authority of the Town o f Scotland Neck of a 
person to serve for the unexpired term and until the 
next regular election for members o f the Board when 
a successor shall be elected.

“ Sec. 5. All public school property, both real and 
personal, and all buildings, facilities, and equipment 
used for public school purposes, located within the 
corporate limits o f Scotland Neck and within the 
boundaries set forth in Section 1 o f  this Act, and all 
records, books, moneys budgeted for said facilities, 
accounts, papers, documents and property of any de­
scription, shall become the property o f Scotland Neck 
City Administrative Unit or the Board; all real estate 
belonging to the public schools located within the 
above-described boundaries is hereby granted, made 
over to, and automatically by force of this Act con­
veyed to the Board from the County public school 
authorities. The Board of Education of Halifax 
County is authorized and directed to execute any and



104a

all deeds, bills of sale, assignments or other documents 
that may be necessary to completely vest title to all 
such property in the Board.

“ Sec. 6. Subject to the approval of the voters resid­
ing within the boundaries set forth in Section 1 o f this 
Act, or within the corporate limits of the Town of 
Scotland Neck, as hereinafter provided, the governing 
authority of the Town of Scotland Neck, in addition 
to all other taxes, is authorized and directed to levy 
annually a supplemental tax not to exceed F ifty Cents 
(50^) on each One Hundred ($100.00) Dollars of the 
assessed value o f the real and personal property tax­
able in said Town of Scotland Neck. The amount or 
rate o f said tax shall be determined by the Board and 
said tax shall be collected by the Tax Collector o f the 
Town of Scotland Neck and paid to the Treasurer of 
the Board. The Board may use the proceeds of the 
tax so collected to supplement any object or item in 
the school budget as fixed by laAv or to supplement any 
object or item in the Current Expense Fund or Capi­
tal Outlay Fund as fixed by law.

“ Sec. 7. Within ten days from the date of the ratifi­
cation o f this Act it shall be the duty of the govern­
ing authority of the Town of Scotland Neck to call 
a referendum or special election upon the question of 
whether or not said Scotland Neck City Administra­
tive Unit and its administrative board shall be estab­
lished and whether or not the special tax herein 
provided shall be levied and collected for the purposes 
herein provided. The notice of the special election shall 
be published once a week for two successive weeks in 
some newspaper published in the Town of Scotland 
Neck or having a general circulation in the Town of 
Scotland Neck. The notice shall contain a brief state­
ment of the purpose o f the special election, the area 
in which it shall be held, and that a vote by a majority



105a

of those voting in favor of this Act will establish the 
Scotland Neck City Administrative Unit and its Ad­
ministrative Board as herein set forth, and that an 
annual tax not to exceed F ifty Cents (50^) on the 
assessed valuation of real and personal property, ac­
cording to each One Hundred Dollars ($100.00) valua­
tion, the rate to be fixed by the Board, will be levied as 
a supplemental tax in the Town of Scotland Neck, for 
the purpose of supplementing any lawful public school 
budgetary item. A  new registration of voters shall not 
be required and in all respects the laws and regula­
tions under which the municipal elections of the Town 
o f Scotland Neck are held shall apply to said special 
election. The governing authority o f the Town of 
Scotland Neck shall have the authority to enact rea­
sonable rules and regulations for the necessary elec­
tion books, records and other documents for such 
special election and to fix the necessary details o f said 
special election.

“ Sec. 8. In said referendum or special election a 
ballot in form substantially as follows shall be used: 
V ote foe one :

( □ )  FOR creating and establishing Scotland 
Neck City Administrative Unit with adminis­
trative Board to operate public schools of said 
Unit and for supplemental tax not to exceed 
F ifty  Cents (50^) on the assessed valuation 
of real and personal property according to each 
One Hundred Dollars ($100.00) valuation for 
objects of school budget.
( □ )  AG AIN ST creating and establishing Scot­
land Neck City Administrative Unit with ad­
ministrative Board to operate public schools of 
said Unit and against supplemental tax not to 
exceed F ifty  Cents (500) on the assessed valua­



106a

tion o f real and personal property according to 
each One Hundred Dollars ($100.00) valuation 
for objects o f school budget.

“ I f  a majority of the qualified voters voting at such 
referendum or special election vote in favor o f estab­
lishing Scotland Heck City Administrative Unit, for 
creation o f administrative Board to operate public 
schools o f said Unit and for special supplemental tax 
as herein set forth, then this Act shall become effec­
tive and operative as to all its provisions upon the 
date said special election results are canvassed and the 
result judicially determined, otherwise to be null and 
void. The expense o f said referendum or special elec­
tion shall be paid by the governing authority o f the 
Town of Scotland Heck but i f  said Unit and Board 
are established, then said Town of Scotland Heck shall 
be reimbursed by the Board for said expense as soon 
as possible.

“ Sec. 9. All laws and clauses of laws in conflict with 
this Act are hereby repealed.

“ Sec. 10. This Act shall be in full force and effect 
according to its provisions from and after its 
ratification.”

U.I. GOVERNMENT PRINTING OFFICE: 1971