Wrigth v. Council of the City of Emporia Petition for a Writ of Certiorari

    g’uprmp dmtrl of %  States
October Term, 1970'

No. 113.0

1st th e

P ecola A n n ette  W right , et al.,
Petitioners,

—v.—

C o u ncil  op T h e  Cit y  op E m poria , et al.

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

FOR THE FOURTH CIRCUIT

J ack  G reenberg 
J am es M . N abrit , III 
N orman  J . Ch a c h k in  

10 Columbus Circle 
New York, New York 10019

S. W. T u cker  
H en ry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Petitioners



I N D E X

PAGE

Opinions B elow .................................................................  1

Jurisdiction ....................................................................... 2

Questions Presented .......    2

Constitutional and Statutory Provisions Involved ..... 3

Statement .......   3

S easons for G ran tin g  th e  W rit

I. This Case Presents Federal Constitutional Is­
sues of Critical Significance in the Process of 
School Desegregation ....................................... 15

II. The Decision Below Is In Conflict With Rul­
ings Of This Court and The Ruling of Another 
Court of Appeals .......................................   22

C onclusion  .......................................................................    25

A ppendix—

Opinions of Court of Appeals.................................  la
Memorandum Opinion of District Court dated 

March 2, 1970 ...................................................... 63a
Findings of Fact and Conclusions of Law of Dis­

trict Court dated August 8, 1969 ...................... 80a
Order of District Court dated August 8, 1969 ..... 85a

Excerpts from the Code of Virginia ...................... 86a
Judgment of Court of Appeals ...............................  99a



11

T able oe A uthorities

Cases:  page

Alexander v. Holmes County Bd. of Educ., 396 U.S.
19 (1969) ................... ......... .................... ..... .............. 16

Aytch v. Mitchell, Civ. No. PB-70-C-127 (E.D. Ark.,
Jan. 15, 1971) ................................. .............................  17

Brown v. Board of Educ., 349 U.S. 294 (1955) ..............  15
Burleson v. County Bd. of Election Comm’rs of Jeffer­

son County, 308 F. Supp. 352 (E.D. Ark.), aff’d per 
curiam, 432 F.2d 1356 (8th Cir. 1970) .............. 17,23,25

Cato v. Parham, 302 F. Supp. 129 (E.D. Ark. 1969) .... 23 
Cooper v. Aaron, 358 U.S. 1 (1958) ......... ..... ........ .....  16

Davis v. Board of School Comm’rs of Mobile County,
No. 436, O.T. 1970 ...................... ............................... . 18

Gomillion v. Lightfoot, 364 U.S. 339 (1960) .................. 21
Goss v. Board of Educ. of Knoxville, 373 U.S. 683

(1963) .....      16
Green v. County School Bd. of New Kent County, 391

U.S. 430 (1968) .........................................   ...3,16,22,23
Griffin v. County School Bd. of Prince Edward County,

377 U.S. 218 (1964) .................... ................. .................  16

Hall v. St. Helena Parish School Bd., 417 F.2d 801
(5th Cir.), cert, denied, 396 U.S. 904 (1969) ..............  19

Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 
1971) .............   18

Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1969) ..........  18
Jenkins v. Township of Morris School Disk, N.J. Su­

preme Court No. 7777 .....................................................  17

Kennedy Park Homes Ass’n v. City of Lackawanna,
436 F.2d 108 (2d Cir. 1970), cert, denied, No. 1319,
O.T. 1970 (April 5, 1971) ............................................  18



PAGE

iii

Keyes v. School Dist. No. 1, Denver, 396 U.S. 1215
(1969) (Mr. Justice Brennan, in Chambers) ..........  19

Lee and United States v. Calhoun County Bd. of Educ.,
5th Cir. No. 30154 .......................................................  17

Loving v. Virginia, 388 U.S. 1 (1967) .............................  18
Northcross v. Board of Educ. of Memphis, 397 U.S. 232

(1970) ............. ........ ................................................ ....16,19
Perkins v. Mathews, 400 U.S. 379 (1971) ......................  21

Rogers v. Paul, 382 U.S. 198 (1965) .............................  16
Stout v. Jefferson County Bd. of Educ., 5th Cir. No.

30387 ............ ................................................... .............  17
Swann v. Charlotte-Mecklenburg Bd. of Educ., No. 281,

O.T. 1970 ________________ __ ____ _______ 3,16, 21, 22, 23
Wright v. County School Bd. of Greensville County,

252 F. Supp. 378 (E.D. Va. 1966) ......... ............... . 2, 4
Wright v. County School Bd. of Greensville County,

309 F. Supp. 671 (E.D. Va. 1970) .............................  1

Statutes:

42 U.S.C. §§2000d et seq..................................................  4
Va. Code Ann.—

§22-7 .................. ..... .................. ...... ................ ..........5, 21
§22-30 ........... ................................. ....... ........ ........... 6
§22-34 ..........................................         21
§22-89 ......................      6
§22-99 ...............................................   21
§§22-100.1 et seq.......................................................    21



If THE

(Knurt ut %  luttrtu Bint?b
October Term, 1970 

No. ...........

P ecola A n n ette  W eight , et al.,

—v.—
Petitioners,

C o uncil  of T h e  Cit y  oe E mpobia , et al.

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

FOR THE FOURTH CIRCUIT

Opinions Below

The majority opinions of the Court of Appeals and the 
dissenting opinions (Judges Sobeloff and Winter) are re­
printed infra, pp. la-62a and are not yet reported. The 
judgment of the Court of Appeals is reprinted infra, p. 
99a.1

The order of the district court granting a temporary in­
junction, as well as the court’s Findings of Fact and Con­
clusions of Law thereon, are not reported and are reprinted 
infra, pp. 80a-85a. The opinion on permanent injunction is 
reported at 309 F. Supp. 671 and is reprinted infra, pp. 
63a-79a. 1

1 On April 21, 1971, the Court of Appeals stayed its mandate 
pending application for certiorari, on the condition that this Peti­
tion be filed by May 21, 1971.



2

A previous district court opinion in this litigation is 
reported as Wright v. County School Bel. of Greensville 
County, 252 F. Supp. 378 (ED. Va. 1966).

Jurisdiction

The judgment and opinion of the Court of Appeals were 
entered March 23, 1971. The jurisdiction of this Court is 
invoked pursuant to 28 U.S.C. §1254(1).

Questions Presented

This litigation was commenced in 1965 to desegregate 
the public schools of Greensville County, Virginia. The 
district court in June, 1969 ordered a pairing plan into 
effect. Thereafter, the City of Emporia—located within 
Greensville County—sought to operate separate schools for 
City residents. The City schools would have a substantially 
greater proportion of white students than either the remain­
ing county schools or the schools of the original combined 
system. The district court enjoined the operation of sep­
arate school systems because it would create a “substantial 
shift in the racial balance.” The Court of Appeals reversed, 
holding that the “primary” or “predominant purpose” of 
separation had not been shown to be “to retain as much 
separation of the races as possible.”

1. Did the Court of Appeals err in permitting divi­
sion of a school district, required by law to desegregate, 
into separate school systems of substantially differing 
racial composition?

2. Did the Court of Appeals err in dissolving the 
district court’s injunction against creation of a new 
school system which the district court found would 
interfere with its desegregation decree?



3

3. Did the Court of Appeals err in applying a sub­
jective test of motive to the proposed secession, rather 
than an objective test of result as required by the de­
cisions in Green v. County School Bd. of New Kent 
County, 391 U.S. 430 (1968) and Swann v. Charlotte- 
MecUenburg Bd. of E d u c No. 281, O.T. 1970?

Constitutional and Statutory Provisions Involved

This matter involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States, which pro­
vides 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. 
No State shall make or enforce any law which shall 
abridge the privileges and 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.

The following sections of the Virginia Code (statutes re­
lated to the operation of school districts and divisions with­
in the Commonwealth of Virginia) are set out in the Ap­
pendix, infra pp. 86a-98a: §§22-7, -30, -34, -42, -61, -68, -72, 
-89, -97, -99, -100.1, -100.2, and -100.3.

Statement

This is one of three cases decided together by the Court 
of Appeals involving the relationship between desegrega­
tion and the creation of new school districts. In each in­
stance, a portion of a larger district desegregating under



4

federal court order or in accordance with, the requirements 
of the Civil Rights Act of 1964, 42 U.S.C. §§2000d et seq., 
was sought to be detached and operated as a separate school 
system. In each instance, federal district courts found a 
significant difference in racial composition between the pro­
posed new districts and the old, found that race was one of 
the motivating factors for establishing the new district, and 
enjoined creation of separate school systems. In one case 
(56a-62a)2 the Court of Appeals affirmed; in this case and 
in the third (United States v. Scotland Neck City Bd. of 
Educ., No. 1614, O.T. 1970),3 the Court of Appeals reversed, 
on the grounds that the predominant motive for carving 
out the new districts was not “to retain as much of separa­
tion of the races as possible.”

The background of this litigation is set out in the margin.4

2 Citations given are to the Appendix to this Petition, infra.
3 That case is already pending before this Court for review upon 

the petition of the United States. Simultaneously with the filing of 
this Petition, attorneys for the plaintiffs-intervenors Pattie Black 
Cotton, et al. are also filing a Petition for Writ of Certiorari in the 
Scotland Neck matter.

4 This case was commenced March 15, 1965 by parents and Negro 
students within Greensville County, Virginia. At that time, Em­
poria had the status, under Virginia law, of a “ Town.” Its students 
were educated by the County School Board of Greensville County 
in buildings owned by that Board. Historically, white students 
[from the Town and the remaining area of the County] attended 
only two schools in the system, both of which were physically located 
within the Town; Negro students [from the Town and the County] 
attended the various other schools, all but one of which were located 
outside the Town of Emporia (64a).

In 1966, the district court approved and ordered into effect a 
“ free choice” plan of desegregation. Wright v. County School Bd. 
of Greensville County, 252 F. Supp. 378 (E.D. Va. 1966). The 
district court subsequently found, however, that under this plan 
some Negro students entered the formerly white schools within 
Emporia but no white students chose to attend any Negro school. 
The district court therefore disapproved the continued use of free 
choice (64a-65a).



5

On June 17, 1969, following an evidentiary hearing on 
the County School Board’s desegregation plan, the district 
court announced its intention of approving a pairing plan 
submitted by plaintiffs, and a written order to that effect 
was entered June 25, 1969 (65a).5 On July 7, 1969, the City 
Council of Emporia addressed a letter to the Greensville 
County Board of Supervisors and the County School Board, 
requesting that ownership of the schools within the Emporia 
corporate limits be transferred to the City, by lease or sale, 
in order that the City might operate its own school system 
(Plaintiffs’ Trial Exhibit No. 6). The letter stated:

The pending Federal Court action, at the time of 
Emporia’s transition from a town to a city, was finally 
decided by the court on June 23, 1969. The resulting 
order R e q u ir e s  massive relocation of school classes, 
excessive bussing of students and mixing of students 
within grade levels with complete disregard of indi­
vidual scholastic accomplishment or ability.

An in-depth study and analysis of the directed school 
arrangement reflects a totally unacceptable situation 
to the Citizens and City Council of the City of 
Emporia. . . .

IY. [If the City operates a separate school system,] 
The City will accept on a first come, first serve, no

In the meantime, the population of the Town of Emporia had 
increased sufficiently to permit it to become a city of the second 
class, which it elected to do on July 31, 1967 (80a). As of that 
time, the City— now an independent political entity—was free to 
seek to operate its own school system, separate from the County, 
but Emporia chose not to do so. Instead, it attempted to negotiate 
an agreement with the Greensville County School Board to operate 
joint schools (Va. Code Ann. §22-7) and ultimately signed a con­
tract with the County School Board pursuant to which the County 
agreed to educate city children in the schools it owuied in exchange 
for payment by the City of 34.26% of the cost of operation (80a).

5 That plan was modified on July 30, 1969 as suggested by the 
County School Board (65a).



6

transportation basis, any and all students residing in 
Greensville County who wish to complete or continue 
their education in City schools. Out-of-City students 
will be required to pay a tuition fee, based on present 
pupil operating cost, less financial aids collectible from 
the Commonwealth.

July 14, 1969, the City Council met “to take action on the 
establishment of a City School System, to try and save a 
school system for the City of Emporia and Greensville 
County”  (official minutes of meeting, Plaintiffs’ Trial Ex­
hibit No. 12) (emphasis supplied). At that time, the min­
utes reflect that the Mayor of Emporia stated, “ ‘it’s ridicu­
lous to move children from one end of the County to the 
other end, and one school to another, to satisfy the whims 
of a chosen few.’ He said, ‘The City of Emporia and Greens­
ville County are as one, we could work together to save our 
school system.'’ ”  (emphasis supplied) (ibid.).

The City Council was informed of the percentage of 
students at each school who would be Negroes under the 
plan ordered by the district court, and also that the Board 
of Supervisors had declined to transfer school properties 
as requested in the July 7 letter, because of the outstanding 
district court order governing their use. The meeting- 
concluded with the adoption of a resolution instructing 
the City School Board to take the necessary steps to estab­
lish a School Division of the City of Emporia separate 
and apart from Greensville County (ibid.).6

6 The basic Virginia administrative school unit is the “school 
division,” and Va. Code Ann. §22-30 requires the State Board of 
Education to divide the entire Commonwealth into an “ appro­
priate” number of school divisions of not less than one county or 
city each. When Emporia achieved city status, it became entitled 
to have a City School Board elected by its City Council (Va. Code 
Ann. §22-89) and to purchase the school buildings located within 
the City, either for an agreed price or at a value established in



7

Accordingly, the Emporia City School .Board met July 
17, 1969 and determined to request that the State Board 
of Education create a new, separate school division for 
the City alone (Plaintiffs’ Trial Exhibit No. 23). A  similar 
request to the State Board was adopted by the City Council 
on July 23, 1969 (Plaintiffs’ Trial Exhibit No. 12). On 
July 30, 1969, the City School Board authorized registra­
tion of pupils even though the State Board had not yet 
ruled (Plaintiffs’ Trial Exhibit No. 23) and on July 31, 
1969, registration notices (with the provision for tuition­
paying out-of-city students) were mailed (Plaintiffs’ Trial 
Exhibit No. 25).

August 1, 1969, plaintiffs filed a Supplemental Complaint 
alleging that the Emporia City Council and School Board 
were taking* steps to operate a separate Emporia school 
system, and would not contribute anticipated funds toward 
the operation of the Greensville County schools during 
the 1969-70 school year in the manner directed by the 
district court’s July 30 order. The Supplemental Complaint 
sought joinder of the additional parties and an order 
restraining interference with the execution of the court’s 
July 30 decree.

A hearing on temporary injunction was held August 8, 
1969. The Mayor of Emporia and the Chairman of the 
City School Board testified that the immediate motivation 
behind the move to establish a separate school system was 
the district court’s order desegregating the entire Greens­
ville County school system according to a plan whereby 
students must attend six schools during their twelve years

court proceedings. However, it could not operate a separate school 
system unless it was named a separate school division by the State 
Board. Initially, Greensville County and the City of Emporia to­
gether were designated a single school division by the State Board 
of Education. See Defendants’ Trial Exhibit E-l.



8

of public education (Transcript of hearing, August 8, 1969, 
pp, 116, 154, 176). The Mayor also noted that Greensville 
County white students already were attending a private 
school in an adjacent county, that the June 25 order had 
led to increased interest in private schools, and that he 
believed a separate school system would prevent a mass 
exodus of Emporia whites to private schools (Id. at 116-17, 
182).

The district court granted the temporary injunction, 
ruling from the Bench that racial considerations lay behind 
the sudden decision to establish a separate school system:

The Court finds that after this Court’s order of June 
25, 1969, a meeting of the Council was held, according 
to the minutes contained in Plaintiffs’ Exhibit 12, and 
the Mayor of the City of Emporia stated to the Council 
his opinion concerning the plan that had been approved 
by this Court. Without quoting him it certainly evi­
denced a disagreement.

The Court finds at that time a member of the School 
Board reported to Council the percentage of Negroes 
in each school for the first seven grades. It is apparent 
that therein was borne [sic] the idea that this [City] 
School Board [which] had never functioned as a 
School Board except for purposes of discussing with 
the School Board of Greensville County the salary 
of the superintendent and selection, who had never 
functioned, had been created only because the law 
required that there be a School Board in the city, they 
then decided that they would operate a school. . . .
The mere fact that there is a Board that, for all 
practical purposes, is a moot Board for the city, and 
there is a county conti [g]uous thereto, the process 
of desegregation ought not and cannot be thwarted



9

by drawing a line between Emporia and Greensville 
County. . . .
In short, gentlemen, I might as well say what I think 
it is. It is a plan to thwart the integration of schools. 
This Court is not going to sit idly by and permit it. 
I am going to look at any further action very, very 
carefully. I don’t mind telling you that I would be 
much more impressed with the motives of these de­
fendants had I found out they had been attempting 
to meet with the School Board of Greensville County 
to discuss the formation of a plan for the past year. 
I am not impressed when it doesn’t happen until they 
have reported to them the percentage of Negroes that 
will be in each school.

(Transcript of hearing, August 8, 1969, pp. 204-207. See 
also the Findings of Fact and Conclusions of Law, infra 
pp. 81a-83a).

Pursuant to the district court’s temporary injunction, 
schools in Emporia and Greensville County opened for 
1969-70 in accordance with the court’s June 30, 1969 order. 
On August 19-20,1969, the State Board of Education tabled 
Emporia’s request for separate school division status “in 
light of matters pending in the federal court.” (Defendants’ 
Trial Exhibit E-I). The City Board hired Dr. H. I. Willett, 
former school superintendent of Richmond, Virginia, to 
prepare a proposed budget for the school year 1970-71 
(Defendants’ Trial Exhibit E-G).

At the hearing on permanent relief held December 18, 
1969, the Mayor and the Chairman of the City School Board 
testified that the City of Emporia desired to offer a 
“ superior” educational program through the device of 
operating a separate school system; that in their opinion,



10

the County officials would not allocate the increased ex­
penditures required by desegregation; that City residents 
would be willing to pay the increased taxes which would 
be necessitated if the City operated an educational program 
of the magnitude suggested by Dr, Willett’s draft budget. 
The City also called Dr. Neal Tracey, a professor of school 
administration, who supported the view that a separate 
Emporia school system with the programs and expenditure 
levels proposed by Dr. Willett would be superior in some 
ways to the educational program then being offered in 
the County schools. Dr. Tracey agreed with Emporia 
officials that the Greensville County School budget for 
1969-70 ought to have been higher. However, he also 
recognized educational disadvantages flowing- from the 
operation of separate systems (76a-77a).

Dr. Tracey did not evaluate the proposal from the stand­
point of desegregation; he considered the different racial 
compositions of the two separate systems irrelevant to 
his analysis:

No, my basic contention is, and has been, that elimina­
tion of the effects of segregation must be an educational 
solution to the problem and that no particular pattern 
of mixing has in and of itself, has any desirable effect.

(Transcript of hearing, December 18, 1969, p. 68).

It was undisputed that the racial compositions of the 
two separate school systems would differ significantly from 
each other, and as well from the original combined unit. 
The following table, drawn from the district court’s find­
ings, illustrates the change:



11

TABLE 1— COMPARISON OP STUDENT ENROLLMENTS
Combined System City of Emporia Greensville County

Black Students 
No. %

No.
White
Stu­
dents

Black Students 
No. %

No.
White
Stu­

dents
Black Students 
No. %

No.
White
Stu­

dents

1968- 69
1969- 70
Proposed
1970- 71

2510
2477

2404

62.7%
65.9%

65.6%

1491
1282

1260 566 51.1% 541 1838 71.8% 719
[Source : pp. 68a, 74a, 75a]

The district court made its injunction permanent (63a- 
79a). The court concluded that the City’s budget did pro­
pose a superior educational system, and that defendants 
were pursuing mixed motives—including racial motives— 
hut that the “establishment of separate systems would 
plainly cause a substantial shift in the racial balance” 
(emphasis supplied) (74a):

. . . The two schools in the city, formerly all-white 
schools, would have about a 50-50 racial makeup, while 
the formerly all-Negro schools located in the county 
which, under the city’s plan, would constitute the 
county system, would overall have about three Negro 
students to each white. As mentioned before, the city 
anticipates as well that a number of students would 
return to a city system from private schools. These 
may be assumed to be white, and such returnees would 
accentuate the shift in proportions.

The district court concluded that the operation of sepa­
rate school systems would have serious adverse impact on 
the provision of plaintiffs’ constitutional rights, and there­
fore enjoined creation of the new unit (78a):

. . . The inevitable consequence of the withdrawal 
of the city from the existing system would be a sub­



12

stantial increase in the proportion of whites in the 
schools attended by city residents, and a concomitant 
decrease in the county schools. The county officials, 
according to testimony which they have permitted to 
stand unrebutted, do not embrace the court-ordered 
unitary plan with enthusiasm. If secession occurs 
now, some 1,888 Negro county residents must look 
to this system alone for their education, while it may 
be anticipated that the proportion of whites in county 
schools may drop as those who can register in private 
academies. This Court is most concerned about the 
possible adverse impact of secession on the effort, 
under Court direction, to provide a unitary system to 
the entire class of plaintiffs. This is not to say that 
the division of existing school administration areas, 
while under desegregation decree, is impermissible. 
But this Court must withhold approval “if it cannot 
be shown that such a plan will further rather than 
delay conversion to a unitary, nonracial, nondiscrim- 
inatory school system,” Monroe v. Board of Commis­
sioners, supra, 459. As a court of equity charged with 
the duty of continuing jurisdiction to the end that 
there is achieved a successful dismantling of a legally 
imposed dual system, this Court cannot approve the 
proposed change.

The majority of the Court of Appeals, apparently con­
cerned that the district court had not sufficiently recognized 
“the legitimate state interest of providing quality educa­
tion for the state’s children” (3a), articulated a different 
test:

If the creation 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



13

should not interfere. If, however, the primary pur­
pose for creating a new school district is to retain as 
much of separation of the races as possible, the state 
has violated its affirmative duty to end state supported 
school segregation. The test is much easier to state 
than it is to apply.

The majority concluded that the proposed “Emporia city 
unit would not be an [all-]white island in an otherwise 
heavily black county” because “ [rjegardless of whether the 
city students attend a separate school system, there will 
be a substantial majority of black students in the county 
system” (emphasis supplied); thus, “ the effect of sepa­
ration [does] not demonstrate that the primary purpose 
of the separation was to perpetuate segregation” (5a-6a). 
Since the district court had made no explicit “finding of 
discriminatory purpose,” and because the school district 
officials advanced non-raeial motives for the creation of a 
separate district, therefore, the majority of the Court of 
Appeals held that “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 improvement” 
(8a).

The dissenting judges (Sobeloff and Winter, JJ) dis­
agreed with both the formulation and application of the 
majority’s rule:

[The majority] directs District Courts to weigh and 
assess the various purposes that may have moved 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 of the new school units. I find no prece­



14

dent for this test and it is neither broad enough nor 
rigorous enough to fulfill the Constitution’s mandate. 
[lla-12a]

If challenged state action has a racially discrimina­
tory effect, it violates the equal protection clause unless 
a compelling and overriding legitimate state interest 
is demonstrated. [12a]

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 of an existing district, 
they will be trapped in a quagmire of litigation. . . . 
Whites in counties heavily populated 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. [24a]

. . .  I think the advocates of such a subdivision 
[of an existing district] bear the “heavy burden” of 
persuasion referred to in Green because, as in that 
case, the dominant feature of these cases is the last- 
minute proposal of an alternative to an existing and 
workable integration plan. [27a]

The record amply supports the conclusion that the 
creation of a new school district for the City of Em­
poria would, in terms of implementing the principles of 
Brown, be “less effective” than the existing “pairing” 
plan for the county system. [29a]

. . .  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. . . . By this test the injunction 
would stand in the Littleton-Lake Gaston case, as well



15

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 of the component 
parts, and an absence of compelling justification for 
what is sought to be accomplished. [36a]

REASONS FOR GRANTING THE WRIT

I
This Case Presents Federal Constitutional Issues of 

Critical Significance in the Process of School Desegrega­
tion.

This case arises out of the repeated failure of the County 
School Board of Greensville County to propose an accept­
able desegregation plan (64a-65a). Acting pursuant to the 
mandates of Brown v. Board of Educ., 349 U.S. 294 (1955) 
and subsequent decisions of this Court, the federal district 
court ordered that all of the County’s schools be paired in 
order to provide a unitary, nonraeial education for all stu­
dents. Immediately thereafter, and without first seeking 
the permission of the district court, the City of Emporia 
undertook to establish a separate school system for its resi­
dents, which would have had the effect of creating an inde­
pendent school division of substantially different racial 
composition from the County unit.

On plaintiffs’ motion for injunctive relief, the district 
court considered Emporia’s claims that a separate system 
would enable it to provide a “quality education” for its 
students, but concluded that maintenance of the County 
district structure and implementation of the pairing order 
would best accomplish the required desegregation. Ac­
cordingly, the district court enjoined the secession.



16

The Court of Appeals severely limited the district court’s 
power to protect its desegregation decree, by confining the 
authority to prevent carving out of new districts to situa­
tions in which “the primary purpose for creating a new 
school district is to retain as much of separation of the 
races as possible.” The potential impact of the decision 
upon “implementation of the basic constitutional require­
ment that the State not discriminate between public school 
children on the basis of their race,” Swann, supra, slip op. 
at pp. 8-9—an impact perceived by the majority below, ex­
emplified by the three cases before the Court of Appeals, 
and reflected in the increasing number of lawsuits involving 
similar issues—makes review by this Court particularly 
appropriate.

Both the majority and dissenting opinions below recog­
nize the “ serious danger that the creation of new school dis­
tricts may prove to be yet another method to 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” (3a). This Court has con­
sistently accepted for review cases involving various de­
vices or techniques which had the effect of avoiding full 
implementation of the Broivn mandate.7 This is clearly such 
a case.8 *

7 .E.gr., Cooper v. Aaron, 358 U.S. 1 (1958) (direct State inter­
ference) ; Goss v. Board of Educ. of Knoxville, 373 U.S. 683 (1963) 
(minority-to-majority transfers) ; Griffin v. County School Bd. of 
Prince Edward County, 377 U.S. 218 (1964) (school closings) ; 
Rogers v. Paul, 382 U.S. 198 (1965) (faculty segregation hindering 
free choice); Green v. County School Bd, of New Kent County, 391 
U.S. 430 (1968) (free choice plans) ; Alexander v. Holmes County 
Bd. of Educ., 396 U.S. 19 (1969) (delay) ; Northcross v. Board of 
Educ. of Memphis, 397 U.S. 232 (1970) (exception for large cities) ; 
Swann v. Charlotte-Mecklenburg Bd. of Educ., supra ( “neighbor­
hood schools” ).

8 The Solicitor General of the United States also views the issue
as important. See Petition for Writ of Certiorari, United States v. 
Scotland Neck City Bd. of Educ., No. 1614, O.T. 1970.



17

The circumstances surrounding the movement for sep­
arate school districts in the three cases decided - by the 
Court of Appeals suggest an inclination to utilize new school 
systems to avoid desegregation requirements. The cases 
are all from contiguous counties,9 each of which is majority 
black. Efforts to create separate city school districts wTere 
initiated within a very short period of time: March, 1969 
(Halifax County), April, 1969 (Warren County), and July, 
1969 (Greensville County). Although the Court of Appeals 
found in only one of the cases that “the primary purpose . . .  
was to carve out a refuge for white students and preserve 
to the extent possible segregated schools” (62a), the co­
incidence of dates and similarity of strategy suggests that 
this motive was not limited in occurrence, influence or effect 
to Warren County, North Carolina, alone.

Equally indicative of the gravity of the issue here 
presented are the numerous similar suits pending in or 
decided by lower courts.10 *

The rule adopted by the majority below provides, in the 
context of the federal courts’ responsibility for the 
effective enforcement of the Fourteenth Amendment, that 
the constitutionality of changes in school district organiza­
tion and attendance patterns shall depend upon examination 
of the motives of those supporting the changes. If a district 
court concludes the primary motive was to preserve as 
much segregation as possible, it may enjoin formation of

9 Warren Comity, North Carolina abuts Halifax County, North 
Carolina on the east; a portion of Halifax County is contiguous on 
the north with Greensville County, Virginia.

10 E.g., Burleson v. County Bd. of Election Comm’rs of Jefferson
County, 308 F. Supp. 352 (E.D. Ark.), aff’d per curiam, 432 F.2d 
1356 (8th Cir. 1970) ■ Aytch v. Mitchell, Civ. No. PB-70-C-127 (E.D. 
Ark., Jan. 15, 1971) ; Stout v. Jefferson County Bd. of Educ., 5th 
Cir. No. 30387; Lee and United States v. Calhoun County Bd. of 
Educ., 5th Cir. No. 30154; Jenkins v. Township of Morris School 
Dist., N.J. Supreme Court No. 7777.



18

a new unit; if, as in this case, the lower court finds both 
racial and non-racial motivations, it must permit the 
secession in spite of any disadvantageous effects upon 
desegregation of the schools.

The majority opinion itself recognizes the difficulty 
attendant to the application of this standard (3a); the 
dissenters trenchantly predict it will trap the district 
courts in a “quagmire of litigation” “ to speculate about 
the interplay and the relative influence of divers mo­
tives . . (24a). We need not here belabor the point, well
made by the Solicitor General to this Court,11 that so 
subjective a standard ill serves the goal of attaining equal 
educational opportunity. It is worth repeating, though, 
what this Court recently said about the matter: “The 
measure of any desegregation plan is its effectiveness.” 
Davis v. Board of School Comm’rs of Mobile County, No. 
436, O.T. 1970, slip op. at p. 4.

By focusing upon intent, rather than effect, the standard 
enunciated below not only departs from this Court’s hold­
ings in school desegregation cases (see II below), but 
also from the general notion that the government must 
show compelling justification for actions which are based 
upon or result in racial differences.12 The Court of Appeals’ 
concern with intent is reminiscent of the time when “good 
faith,” rather than results, was considered sufficient com­
pliance with the State’s obligation to desegregate. But

The good faith of a school board in acting* to desegre­
gate its schools is a necessary concomitant to the

11 See Petition for Writ of Certiorari, United States v. Scotland 
Neck City Bd. of Educ., No. 1614, O.T. 1970.

12 B.g., Loving v. Virginia, 388 U.S. 1 (1967); Kennedy Park 
Homes Ass’n, Inc. v. City of Lackawanna, 436 F.2d 108 (2d Cir. 
1970) (per Mr. Justice Clark), cert, denied, No. 1319, O.T. 1970 
(April 5, 1971); Hawkins v. Town of Shaw, 437 F.2d 1286 (5tli 
Cir. 1971); Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1969).



19

achievement of a unitary school system, but it is 
not itself the yardstick of effectiveness.

Hall v. St. Helena Parish School Bd., 417 F.2d 801, 807 (5th 
Cir.), cert, denied, 396 U.S. 904 (1969).

These problems are accentuated by the Fourth Circuit’s 
application of the test it proposes,33 as the dissenting judges 
cogently argue. For example, the majority minimizes the 
shift in racial composition effected by the new districting, 
by comparing only the black student percentages in the 
county system before and after creation of a new district 
(6a), but fails to observe that the city unit, operating in 
the schools formerly attended by all the white children in

13 Even if the standard were correct, the Court of Appeals should 
have left its application to the district courts (which are more 
familiar with the facts and circumstances, and can weigh the credi­
bility and demeanor of witnesses) rather than making its own 
judgment based on the record of proceedings. Cf. Keyes v. School 
Dist. No. 1, Denver, 396 U.S. 1215 (1969) (Mr. Justice Brennan, 
in Chambers); Northcross v. Board of Educ. of Memphis, 397 U.S. 
232 (1970).

This is particularly relevant in this case. For example, one of 
the factors relied upon by the majority below was that

Emporia’s position, referred to by the district court as “un­
contradicted,”  was that effective integration of the schools in 
the whole County would require increased expenditures in order 
to preserve educational quality, that the county officials were 
unwilling to provide the necessary funds, and'that therefore 
the city would accept the burden of educating city children.

(7a). Compare the finding of the district court (76a) :
. . . The city’s evidence, uncontradicted, was to the effect that 
the board of supervisors, in their opinion, would not be willing 
to provide the necessary funds.
While it is unfortunate that the County chose to take no posi­
tion on the instant issue, the Court recognizes the City’s evi­
dence in this regard to be conclusions; and without in any way 
impugning the sincerity of the respective witnesses’ conclu­
sions, this Court is not willing to accept these conclusions as 
factual simply because they stand uncontradicted. . . . [em­
phasis supplied]



20

the consolidated district, would have a substantially lower 
percentage of black students (compare the district court’s 
opinion, 74a).14 Furthermore, in this case and in Scotland 
Neck, the majority excluded from consideration the num­
ber of white students who could have attended city schools 
pursuant to the transfer provisions which initially accom­
panied the plans for separate districts, but it took account 
of such proposed transfers in concluding that an injunction 
was proper in the Warren County case. Again, in Warren 
County the majority probed deeply into the legislative his­
tory of the North Carolina special act creating the Littleton- 
Lake Gaston district, but in this case relies upon “the un­
usual nature of the organization of city and county gov­
ernments in Virginia” (7a) as a justification for Emporia’s 
desire to operate a separate school system without examin­
ing the relevant Virginia statutes governing the relation­
ship between Emporia and the County school system (see

14 The following table shows the racial composition of the tradi­
tionally white schools in the City of Emporia:

TABLE 2— COMPARISON OF STUDENT ENROLLMENTS
Greensville County High Emporia Elementary

No.
Black

Students

%
Black

Students

No. No. 
W hite Black 

Students Students

%
Black

Students

No.
W hite

Students

19 6 7 -6 8 50 6 .5% 7 19 46 5 .1% 857

19 6 8 -6 9 45 5 .9 % 7 20 53 6 .4 % 283

19 6 9 -7 0 4 2 4 5 5 .1% 346 665 6 9 .9 % 283

Proposed
19 7 0 -7 1* 252 4 8 .2 % 2 7 1 3 1 4 5 3 .8 % 270

* The remaining County schools were projected to enroll the fol­
lowing percentages of black students: 73.7%, 68.9%, 76.5%, 
72.5%, and 69.4%.

[Sources: 64a, 67a-68a, 74a-75a]



21

86a-98a).15 Three judges of the Court of Appeals could find 
no distinction between the cases to justify the different 
results reached by the majority.

In sum, the district court measured the new district pro­
posal in the same straightforward fashion as any desegre­
gation plan which might be presented to it,16 selecting that 
plan which (adopting this Court’s phrasing) achieved “the 
greatest possible degree of actual desegregation,” Swann, 
supra, slip op. at 22. The Court of Appeals reversed the 
priorities, holding that district courts should not interfere 
with the carving up of desegregating school systems, even 
if desegregation is thereby impeded, unless the motive is 
to maintain the greatest possible degree of segregation. 
That new test seriously jeopardizes continued progress 
toward school desegregation in every jurisdiction and so 
compels the granting of review by this Court.

16 Where a school division is comprised of a county and a city, 
the two school boards must meet jointly to select the superin­
tendent. Ya. Code Ann. §22-34(87a). When a City contracts with 
a County for the education of city students, Va,. Code Ann. §22-99 
(96a) requires that the County School Board shall include city 
representatives. By agreement, the City and County Boards may 
operate joint schools, Va. Code Ann. §22-7 (86a) or, with the 
consent of the two jurisdictions’ governing bodies, may establish a 
single division school board. Va. Code Ann. § §22-100.1 et seq. 
(97a-98a). Thus, Virginia law affords cities several alternatives to 
operating their own schools.

At the time of the preliminary hearing in this case, two of the 
four members of the County School Board were residents of the 
City of Emporia (Transcript of Hearing, August 8, 1969, pp. 
182-83).

16 Cf. Perkins v. Mathews, 400 U.S. 379 (1971); Gomillion v. 
Lightfoot, 364 U.S. 339 (1960).



22

II

The Decision Below Is In Conflict With Rulings Of 
This Court and The Ruling of Another Court of Appeals.

In Green v. County School Bd. of New Kent County, 391. 
U.S. 430 (1968), this Court mandated federal district courts 
to judge proposed school desegregation plans by their ef­
ficacy, and to select that plan which offers to bring about 
the greatest amount of desegregation unless a school board 
demonstrates very compelling reasons for preferring an­
other plan:

Of course, where other, more promising courses of ac­
tion are open to the board, that may indicate a lack of 
good faith; and at the least it places a heavy burden 
upon the board to explain its preference for an appar­
ently less effective method.

391 U.S. at 439 (emphasis supplied). Recently, in Swann v. 
Charlotte-Meeklenburg Bd. of Educ., No. 281, O.T. 1970, 
this Court reemphasized the proposition that the adequacy 
of a desegregation plan is to be tested by its results.

In this case, the district court correctly performed its 
Green obligation. It rejected Emporia’s effort to establish 
a separate school system because it found such separation 
would detract from, rather than enhance, desegregation. 
However, the Court of Appeals held Green inapplicable 
because the new lines proposed were school district lines, 
rather than school attendance area lines. Instead, the Court 
of Appeals established a test which places the burden upon 
the plaintiffs—not the school board, as in Green—to dem­
onstrate that the primary motivation of those who seek to 
operate a separate system is to maintain segregation. Al­
though the district court found that separation would estab­



23

lish two school systems with substantially differing racial 
compositions, and would operate only to hinder, not fur­
ther, the process of desegregation, still the Court of Ap­
peals reversed because there was no finding of primary 
motivation.

Such a rule is clearly at odds with that stated in Green 
and applied by the district court whose decision was affirmed 
in Swann. See the dissenting opinion of Judge Winter, 
below, 26a-32a.

The decision below also conflicts directly with that of 
the Eighth Circuit Court of Appeals, which considered the 
same issue but reached a contrary result.

In Burleson v. County Bd. of Election Comm’rs of Jef­
ferson County, 308 F. Supp. 352 (E.D. Ark.), aff’d per 
curiam, 432 F.2d 1356 (8th Cir. 1970), the small, white 
Hardin area, formerly a separate school district noncon­
tiguous to the Dollarway school district, joined Dollarway 
in 1949 when its school facilities were destroyed by fire. 
In 1969 (following the issuance of decrees requiring effec­
tive desegregation of the Dollarway district, see Cato v. 
Parham, 302 F. Supp. 129 (E.D. Ark. 1969)), petitions were 
circulated among Hardin residents which sought the re­
separation of the area from Dollarway. The Arkansas 
court enjoined the secession because it concluded that loss 
of the Hardin area would frustrate, and render increasingly 
difficult, execution of its own desegregation decrees. Find­
ings with regard to motivation were not made nor were 
they considered necessary:

Much of the evidence at the trial was directed at 
the motive of the proponents of secession. Plaintiffs 
undertook to prove that the basic motivation was a 
desire to avoid an integrated school situation; the in- 
tervenors undertook to show that integration was not 
a factor in the equation.



24

While the Court is satisfied that a desire to escape 
the impact of the Court’s decree was not the sole mo­
tive for the circulation of the election petitions and 
was not the sole factor taken into consideration by 
Hardin residents who voted for secession, the Court is 
also convinced and finds that the belief or hope of the 
Area residents that by seceding from Dollarway they 
could keep their children out of integrated schools or 
at least would be able to send them to districts having 
a smaller Negro population than Dollarway was a pow­
erful selling point for the measure in the Area. . . .

The Court finds from uncontradicted evidence that 
the secession of the Area would inflict severe damage 
upon the District financially. . . . The Court further 
finds that the secession, if permitted, will substantially 
increase the racial imbalance in the District’s student 
bodies. . . .

The Area residents do not want to move out of the 
District; they want to move the District and its prob­
lems away from themselves. The Court does not think 
that they can be permitted to avoid the supposed bene­
fits or escape the supposed burdens of the Dollarway 
litigation so easily, or that in the existing circumstances 
a majority of the residents of the Area can deprive 
other residents of their present right to attend fully 
integrated schools at Dollarway.

No resident of the Area is required to remain there. 
No resident of the Area is required to send his chil­
dren to the District’s schools. But at this time the 
residents of the Area as a class cannot be permitted 
while remaining where they are to use the State’s laws 
and procedures to take the Area out of the District.

308 F. Supp. at 356-57.



25

Thus, in Burleson, the district court recognized, as did 
the district court in this case, that motives were mixed; 
that some residents might favor dissolution for different 
reasons, including some for racial reasons. The court’s 
majo r  concern was the impact upon its own decrees, which 
it found would be considerable. The Court of Appeals for 
the Eighth Circuit affirmed summarily upon the district 
court’s opinion. 432 F.2d 1356.

The Burleson decision depends upon and encourages the 
responsible exercise of a district court’s powers. Contrari­
wise, the opinion below strips the lower courts of their 
ability to protect their decrees and to effectuate desegrega­
tion. On the choice between these conflicting rules may rest 
the future course of much school desegregation.

CONCLUSION

W herefore, for the foregoing reasons, petitioners re­
spectfully pray that a Writ of Certiorari be granted.

Respectfully submitted,

J ack  G reenberg 
J am es M . N aerit , III 
N orman J . C h a c h k in  

10 Columbus Circle 
New York, New York 10019

S. W. T u cker  
H en ry  L. M arsh , III

214 East Clay Street 
Richmond, Virginia 23219

Attorneys for Petitioners



APPENDIX



Opinions o f Court o f Appeals

United States Court of Appeals for the Fourth Circuit

No. 14552

P ecola  A n n e t t e  W r ig h t , et a l ., appellees

v ,
C o u n c il  op t h e  C it y  op E m p o r ia  an d  t h e  M em bers  

T h e r e o f , a n d  S c h o o l  B oard op t h e  C it y  op E m po ria  
a n d  t h e  M em bers  T h e r e o f , a p p e lla n ts

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

R obert R. M e r h ig e , Jr., District Judge

Argued October 8,1970—Decided March 23,1971

Before H a y n s w o r t h , Chief Judge, B o r e m a n , B r y a n , 
W in t e r , and C r a v e n , Circuit Judges sitting en 
bane*
John F. Kay, Jr., and D. Dortch Warriner ( War- 

riner, Outten, Slagle & Barrett;  and Mays, Valentine, 
Davenport & Moore on brief) for Appellants, and S. 
W . Tucker (Henry L. Marsh, I II , and Hill, Tucker 
& Marsh;  and Jack Greenberg, James M. Nabrit, III , 
and Norman Ghachkin 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 of state government to

* Judge Sobeloff did not participate. Judge Butzner disqualified 
himself because he participated as a district judge in an earlier 
stage of this case.

la



2a

redesign the geographic boundaries of 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 o f 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 (1960). 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.) aff’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 o f 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).



3a

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 II ) .  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 of 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 Ya. Code 
§ 15.1-978 to -998 (1950); Acts of the Assembly 1891- 
92, eh. 595. Prior to that time it was an incorporated



4a

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 New 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 F. 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 appeal’s 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 of operating its own school 
system or to work out one of a number of 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 of 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.



5a

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 New 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- 
teetual 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 o f the court below is reported as Wright v. 
County School Board of GreensviUe County, 309 F. Supp. 671 
(E.D. Va. 1970).



6a

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.

Not 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 of 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



7a

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



8a

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- Law—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 ease, 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, if  per­
mitted, operate its own system on a unitary basis. .

We 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. We reverse the judgment of 
the district court and remand with instructions to dis­
solve the injunction.



9a

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.
SOBELOPP, Senior Circuit Judge, with whom 

W IN TER, Circuit Judge, joins, dissenting and con­
curring specially: In respect to Nos. 14929 and 14930, 
United States v. Scotland Neck City Board of Educa­
tion, — P. 2d — (4th Cir. 1971), and No. 14990, 
Turner v. Littleton-Lake Gaston School District, — 
P. 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 Winter’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 
Empm'ia, — P. 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 o f August 31, 1969, invited applications from the 
county. Subsequently, the city assured the district court, it 
would not entertain such applications without court permission.



10a

I
The history of the evasive tactics pursued by white 

communities to avoid the mandate of 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,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), aff'd per curiam, 365 U.S. 569 (1961); Bush v. 
Orleans Parish School Bd.. 187 F. Supp. 42 (E.D. La. 1960), 
aff'd 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. Ya. 1959), app. dis., 359 U.S, 1006 (1959); Harrison 
v. Day, 200 Ya. 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 o f Education o f City o f Birmingham, Ala., 323 F. 2d 
333 (5th Cir. 1963), cert, denied sub nom., Gibson v. Harris, 376 
U.S. 908 (1964): Brewer v. Hoxie School District No. ^6, 238 
F. 2d 91 (8th Cir. 1956); Holmes v. Danner, 191 F. Supp. 394 
(M.D. Ga. 1961), stay denied, 364 U.S. 939 (1961).

3 See North cross v. Board o f Education o f City o f 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, o f 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).



11a

of-ehoice.” 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 ease 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 local 
communities have the right to put roadblocks in the 
way of effective integration. The Court has declared 
that “ the obligation of 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

5See Green v. County School Board, 391 U.S. 430 (1968); 
Raney v. Board o f Education. 391 U.S. 443 (1968); Monroe v. 
Board o f Commissioners, 391 U.S. 450 (1968).



12a

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 of the new school units.6 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.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 of 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 1984, 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 fo l­
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 N eck: “ 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 o f the above reasons 
played in the minds o f  the proponents o f 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).”



13a

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, Hirabayashi 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 of 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 o f justification, 
as we have said, and will be upheld only if  it is



14a

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

There were no dissents in the McLaughlin case. The 
two concurring opinions serve to underline and but­
tress the test applied by the majority. Justiee 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 
U.S. 558, 562; Martin v. Struthers, 319 U.S. 
141, 147; Thornhill v. Alabama, 310 U.S. 88, 96; 
Schneider v. State, 308 U.S. 147, 161, 162, 164; 
see McGowan v. Maryland, 366 U.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 of a valid legislative 
purpose under our Constitution for a state law 
which makes the color of a person’s skin the 
test of whether his conduct is a criminal of­
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.



15a

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

statute prohibiting interracial marriages. The statute 
was determined to be 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 of 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 of 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 ease 
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



16a

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 toe 
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. Town 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



17a

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 of equal pro­
tection, so too does the creation of the new Scotland 
Neck 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 
No 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 Neck 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 o f that case.

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



18a

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 o f 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 
Heck it would not withstand challenge under 
the equal protection clause, but we have con­
cluded that it does not have that effect.

The situation here is that the Act sets up in Halifax 
County two school systems, one with a 50: 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

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 o f the 
new Scotland Neck School District, he quite correctly notes that 
“ [a] more flagrant example o f the creation o f a white haven, 
or a more nearly white haven, would be difficult to imagine.”



19a

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.

II

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 P. Supp. 65, 72 (E.D.N.C. 1970). The defendants 
do not contest this finding.11 11

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



20a

What starkly exposes the true purpose impelling the 
redistrieting adventure and belies 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 of 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 o f these constitutional principles cannot be 
allowed to yield simply because o f disagreement with them.”  
Brown II, at 300.
See also Brunson v. Board of Trustees of School District No. 1 
of Clarendon Gownty, 429 F. 2d 820 (4tli 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).



21a

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 Ms 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 Nexos and Observer 
commented editorially that the bill provided for an “ educa­
tional island”  dominated by whites and on February 22, 1969, 
suggested that i f  the bill passed, it would encourage other 
school districts to resort to similar legislation.



22a

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, if  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 of 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



23a

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 Comity '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

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.16 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 o f years, this apparently 
became intolerable only when the Department of Justice 
exerted pressure for immediate action to effectuate integration.

16 Six percent o f the pupils in Warren County are Indian.



24a

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.

IY

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 of an existing district, 
they will be trapped in a quagmire of 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



25a

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 of the elder Mr. Jus­
tice Harlan, dissenting in Plessy v. Ferguson, 163 U.S. 
537, 560 (1896) :

The destinies of the two races, in this country, 
are indissolubly linked together, and the in­
terests of both require that the common gov­
ernment of all shall not permit the seeds o f 
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 No. 14990, Turner v. Littleton-Lake Gas­
ton School District, — P. 2d — (4th Cir. 1971).

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



26a

ruinations. This conclusion derives from the majority’s 
exposition of the fact parallel of these cases with the 
circumstances of Littleton-Lake Gaston. The identi­
calness irresistibly argues a like disposition—reversal 
of the judgment on appeal.

W IN TER, Circuit Judge, dissenting and concurring 
specially: I  dissent from the majority’s opinion and 
conclusion in No. 14,552, Wright v. Council of City 
of Emporia, — F. 2d — (4 Cir. 1971), and in Nos. 
14929 and 14930, United States v. Scotland Neck City 
Board of Education, — F, 2d — (4 Cir. 1971). I con­
cur in the judgment in No. 14990, Turner v. Littleton- 
Lake Gaston School District, — F. 2d •—• (4 Cir. 1971), 
and I  can accept much of what is said in the major­
ity’s opinion. There is, however, a broader basis of 
decision than that employed by the majority on which 
I  would prefer to rest.

Because the majority makes the decision in Emporia 
the basis of decision in Scotland Neck and distin­
guishes them from Littleton-Lake Gaston, I  will dis­
cuss the cases in that order. I  would conclude that the 
cases are indistinguishable, as does my Brother Bryan, 
although I  would also conclude that each was decided 
correctly by the district court and that in each we 
should enjoin the carving out of a new school district 
because it is simply another device to blunt and to 
escape the ultimate reach of Brown v. Board of Edu­
cation, 347 U.S. 483 (1954), and subsequent cases.

I

While the legal problem presented by these cases is 
a novel one in this circuit, I  think the applicable legal 
standard is found in the opinion of the Supreme Court 
in Green v. County School Board of New Kent



27a

County, 391 U.S. 430 (1968). In rejecting a “ freedom 
of choice”  plan under the circumstances presented 
there, the Court articulated the duties of both a school 
board and a district court in implementing the man­
date of Brown:

The burden on a school board today is to come 
forward with a plan that promises realistically 
to work, and promises realistically to work now. 

* * * * *
Where the court finds the board to be acting in 
good faith and the proposed plan to have real 
prospects for dismantling the state-imposed 
dual system “ at the earliest possible date/’ then 
the plan may be said to provide effective relief. 
Of course, the availability to the board of other 
more promising courses of action may indicate 
a lack of good faith; and, at the least it places 
a heavy burden upon the board to explain its 
preference for an apparently less effective 
method, [emphasis added.]

391 U.S. at 439.
In each of the instant cases, following a protracted 

period o f litigation, a plan designed finally to institute 
a unitary school system was jeopardized by the at­
tempt of a portion of the existing school district to 
break away and establish its own schools. I  think 
the advocates of such a subdivision bear the “heavy 
burden” of persuasion referred to in Green because, 
as in that case, the dominant feature of these cases is 
the last-minute proposal o f an alternative to an exist­
ing and workable integration plan. Factually, these 
cases are not significantly dissimilar from Green. 
Each act of secession would necessarily require the 
submission and approval of new integration plans for 
the newly-created districts, and thus each is tanta­
mount to the proposal of a new plan. And while the 
act giving rise to the alternative approach here is



28a

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 of 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 of 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 Brown. W e must be assiduous in detect­
ing racial bias masking under the guise of 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 he a white haven. Once a unitary system has 
been established and accepted, greater latitude in re­
definition of school districts may then be permitted.

Given the application of 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.



29a

II

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 of a new school district for the City of Em­
poria would, in terms of implementing the principles 
of 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. West Feliciana School Board, 396 TJ.S. 290 
(1970); Alexander v. Holmes County Bd. o f E d 396 
TJ.S. 19 (1969). Secondly, as the district court found, 
the separation o f 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. Within 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



30a

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 Brotvn because of 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 o f tuition. The record 
does not contain any projection o f the number of county stu­
dents who would avail themselves o f 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 o f the district court.



31a

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 of Emporia in support of their secession from 
the county 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. Al­
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 of 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



32a

As found by the district court, the high school in the 
city will be of less than optimum size. County 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 of the at­
tempts on the part of the residents of Scotland Neck 
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 Neck, to the Scotland Neck School, 
previously all-white. Chapter 31 followed thereafter 
as soon as the North 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



33a

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 8,196 (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 
basic 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 of 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 of Halifax County became 
7,934 (82%) black, 1,608 (17%) white, and 102



34a

(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 ISTeck has serious adverse effects. Because 
Scotland Feck, 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 o f the corporate bound­
aries of Scotland Feck. The sale deprives the students 
of Halifax County, outside of Scotland Feck of a 
school facility. The record contains abundant, per­
suasive evidence that the best educational policy and 
the nearly unanimous opinion of professional eduea-

3 There is apparent error in the computations made by the 
district court in this regard. The district court found that the 
net effect o f 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 o f 
the district court. The district court’s figure o f  262 black 
students in the city under the transfer plan (a net loss o f 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.



35a

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,OCX) 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 i f  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 Gaston 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 of 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



36a

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 of motivation, 
the record show7s 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 in 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 of the component 
parts, and an absence of compelling justification for 
what is sought to be accomplished.



37a

BUTZNER, Circuit Judge: This appeal involves 
the same case in which I decided questions concern­
ing the school hoard’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 TJ.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 
Swarm 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 tins appeal.

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



38a

U n it e d  S t a t e s  C o u r t  of  A p p e a l s  f o b  t h e  F o u r t h

C ir c u it

No. 14929
U n it e d  S t a t e s  of  A m e r ic a ,  a n d  P a t t ie  B l a c k  C o t ­

t o n , E d w a r d  M. F r a n c is ,  P u b l ic  S c h o o l  T e a c h e r s  
o f  H a l if a x  C o u n t y , e t  a l ., a p p e l l e e s

versus
S c o t l a n d  N e c k  C it y  B oard  o f  E d u c a t io n , a  B o dy  

C o r po r ate , a p p e l l a n t

No. 14930

U n it e d  S t a t e s  of A m e r ic a , a n d  P a t t ie  B l a c k  C o t ­
t o n , E d w a r d  M . F r a n c is , P u b l ic  S c h o o l  T e a c h e r s  
o f  H a l if a x  C o u n t y ,  a n d  O t h e r s , a p p e l l e e s

versus
R o b er t  M o r g a n , A t t o r n e y  G e n e r a l  of N o r t h  C a r o ­

l i n a , t h e  S t a t e  B oard  o f  E d u c a t io n  o r  N o r t h  
N o r t h  C a r o l in a , a n d  D r . A .  C r a ig  P h il l ips , 
N o r t h  C a r o l in a  S t a t e  S u p e r in t e n d e n t  of  P u b l ic  
I n s t r u c t io n , a p p e l l a n t s

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

A l g e r n o n  L. B u t l e r ,  District Judge, and J o h n  D.
L a r k in s , Jr., District Judge

422 - 400— 71----------2



39a

Argued (September 16, 1970

Before B o k e m a n , B r y a n -and C r a v e n , Circuit Judges 
Reargued December 7, 1970—Decided March 23, 1971
Before H a y n s w o r t h , Chief Judge, S o b e l o f f , B ore-  

m a n , B r y a n , W in t e r , C r a v e n  and B u t z n e r , Circuit 
Judges sitting en banc, on resubmission
William T. Joyner and G. K it chin Josey (Joyner & 

Howison and Robert Morgan, Attorney General of 
North Carolina, on brief) for Appellants; and Brian 
K. Landsberg, Attorney, Department of Justice (Jer- 
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 Janies R. Walker, Jr., (Samuel S. 
Mitchell on brief) for Appellees Pattie Black Cotton, 
et al.
C r a v e n , 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 
We reverse.

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



40a

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 of the public schools 
in said administrative unit, to levy a special tax for the 
public schools of said administrative unit, all of which shall 
be subject to the approval of the voters in a referendum or 
special election
S ectio n  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 of said Scotland Neck City Ad­
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 of the powers, duties, privileges and authority 
granted and applicable to city administrative units and city 
boards of 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 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 Com­
missioners of 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 persons elected 
who receive the next highest number of votes shall hold office



41a

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 of the Board so 
elected, as successors, shall hold office for four years. All mem­
bers-of the Board shall hold their offices until their successois 
(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 of Commissioners of the Town of Scotland 
Neck and in accordance with the expiration of terms of 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 liis 
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. If 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 of the Board by death, resignation, removal, change



42a

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 of a per­
son to serve for the unexpired term and until the next regular 
election for members of 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 of 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 of the voters residing 
within the boundaries set forth in Section 1 of 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 
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 of 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 of the tax so collected to supplement any object 
or item in the school budget as fixed by law or to supplement



43a

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.

“ S e c t io n  7. Within ten days from the date of the ratification 
of this Act it shall be the duty of 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 of 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 of supplementing any lawful public school budgetary item. 
A new registration of 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 of 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.

“ S e c t io n  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-



44a

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 of 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 of school budget.

“If 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 of 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 of 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 o f  laws in conflict with 
this Act are hereby repealed.

“ S e c t io n  10. This Act shall be in full force and effect accord­
ing to its provisions from and after its ratification.”



45a

It is clear that Chapter 31 is not uneonsitutional 
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. Tick W o  v. Hopkins, 118 TT.S. 356 
(1886). We 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 OP 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 of Scotland 
Neck 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 Neck 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-choice 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 
U.S. 430, in May of 1968, the Halifax County Board 
of Education requested the North Carolina Depart­
ment of Public Instruction to survey their schools 
and to make recommendations regarding desegre­
gation of the school system.



46a

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 Neck, to the Scotland Neck 
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 Neck 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 
Neck. 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 Neck to ob-



47a

tain a separate school district. The proponents of 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 of 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 of 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 of creating 
a separate unit for the City of 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.



48a

II
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 of education in their 
schools. Previous efforts to upgrade Scotland Neck 
Schools had been frustrated. Always it seemed the 
needs of 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,OCX) 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 of 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 of the latest statewide bond issue. None o f this 
money was spent or committed to any o f the schools 
within the city limits of 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 of Scotland Neck had to approve not



49a

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 Neck 
Board at the full 50 cent rate.

I l l

WHITE FLEEING---- THE QUESTIONABLE THIRD PURPOSE

But it is not the permissahle 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 of 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



50a

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 
of 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 of 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 Keck schools. We 
disagree.

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



51a

The District Court held that the creation o f 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 County 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 of 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 he 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 of in­
creasing the percentage of white students.

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



52a

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 
P. 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 of residential 
segregation resulting in part from state action. See 
Brewer v. School Board of the City of Norfolk, 397 
P. 2d 37 (4th Cir. 1968).

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



53a

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
ance was not part o f 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 
Neck 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 Neck 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 Neck from the 
ratio in the Halifax County system as a whole is so 
substantial that if  Scotland Neck 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, —U.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 of Topeka, 349 IT.S. 294 
(1955) (Brown I I ) , the Supreme Court spoke in 
terms of “ practical flexibility”  and “ reconciling pub-



54a

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 of 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 of 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 of these 
transfers would have been to have 74 percent white 
students and 26 percent black students in the Scot­
land Heck system. We conclude that these transfers 
would have tended toward establishment of a resegre­
gated system and that the transfer plan violates the 
equal protection clause of the Fourteenth Amend-

422- 400— 71----------------8



55a

ment.‘ See Monroe v. Board of Commissioners of the 
City of Jackson, 391 TT.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 o f Education and by Scotland 
Neck Board o f  Education.

‘ 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.”



56a

UNITED STATES COURT OE APPEALS FOR 
THE FOURTH CIRCUIT

No. 14990

A l v in  T u r n e r , e t  a l ., a n d  Jo A n n e  A m e l i a  C l a y t o n ,
ET AL., APPELLEES 

versus
T h e  L it t l e t o n - L a k e  G a s t o n  S c h o o l  D is t r ic t , a  P u b ­

l ic  B o d y  C o r p o r a t e  op W a r r e n  C o u n t y  a n d  H a l i ­
f a x  C o u n t y , N o r t h  C a r o l in a , a p p e l l a n t

Appeal from the United States District Court for 
the Eastern District of 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 a y n s w o r t h , Chief Judge, S o b e l o f f , B ore-  
m a n , B r y a n , W in t e r , C r a v e n  and B u t z n e r , Cir­
cuit Judges sitting en banc

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



57a

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 of black students. In the 
other two cases, we reversed the district court. United 
States v. Scotland Neck Board of Education, — F.
2d —, Nos. 14929 and 14930 (4th Cir. ------ , 1971);
Wright 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 Comity had assigned all of the white students 
to six all-white schools, all of 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 of 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



58a

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 of separate school dis­
tricts for the town of Warren ton 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 Comity school district. The governing bodies 
of the two new school districts were denominated 
the Warrenton City Board of Education and the 
Littleton-Lake Gaston School District. The Warren 
County Board of 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 of 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 of 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 of North Carolina. The injunc­
tion was made permanent on May 26,1970. The Little­
ton-Lake Gaston School District appealed. The 
Warrenton City Board of 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



59a

is possible, the dismantling of the former dual school 
system. Wright v. 'Council of City of 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 of legislation is to be determined 
by its natural and reasonable effect. . , People 
ex rel. Parke, Davis -& Go. v. Roberts, 171 U.S. 658 
(1898).

Looking at effect only, and ignoring the abortive 
creation of the Warrefiton City School district, this 
case is similar to Scotland Neck and 'Emporia, supt'a. 
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 of­
ficials argued in the district court that the creation 
of the special school district was designed to remedy 
long standing financial difficulties and to prevent the 
imminent elimination of 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 of the removal of 
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 of this case does 
not require us to resolve this dispute.



60a

Historically, students from both. Warren County and 
Halifax County attended school in Littleton, although 
the school was officially part of the Warren County 
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 of 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 Warren County 
and part of a third township in Halifax County. Why 
U.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-



61a

ions purposes. Although the financial difficulties o f the 
Littleton school are of long standing and the report 
recommending the abandonment of 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 o f the 
Littleton area have not been deprived of 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 of Scotland Neck and Emporia. In 
determining the purpose of legislation, it is appropri­
ate to consider not only the effect ,of the legislation 
itself, but also the history and setting out of which 
the legislation arose. See Poindexter v. Louisiana 
Financial Assistance Commission, 275 E. 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 o f 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 of white 
students in the Warrenton County school system from 
1,415 (27 percent) to 260 (7 percent)—-allowing more

422— 400— 71— -— 8



62a

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 of 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 of 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 of 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 of students 
transferring from the county. In addition, there was direct testi­
mony by State Senator Julian Allsbrock, one of the sponsors 
of the Littleton-Lake Gaston bill, that there was some discus­
sion of students transferring into the Littleton-Lake Gaston 
School District while the bill was pending. Volume III, Record 
on Appeal, Transcript of Hearing at Raleigh, North Carolina, 
December 17, 1969, at 23, 59.



63a

Memorandum Opinion of District Court

[Filed March 2, 1970]

M eehige , District Judge.

The plaintiffs in this action filed a supplemental complaint 
on August 1, 1969, alleging that the added defendants, the 
City Council and the School Board of the City of Emporia, 
had taken steps to establish a city school system indepen­
dent of the Greensville County system, then under a de­
segregation. order in this suit. Emporia, a city of the second 
class since 1967, is surrounded by Greensville County. 
Through the school year 1968-69 public school pupils resi­
dent in Emporia had attended schools operated by Greens­
ville County; the city had been reimbursing the county for 
this service under a contract of April 10, 1968.

On August 8, 1969, the added defendants were tempo­
rarily enjoined by this Court from any steps which would 
impede the implementation of the outstanding desegrega­
tion order. Subsequently the Emporia officials answered, 
denying the allegation that the plan for separation would 
frustrate the efforts of the Greensville County School 
Board to implement the plan embraced by the Court’s order. 
The matter was then continued until December 18, 1969, for 
a hearing on whether the injunction should be made perma­
nent.

The original action seeking relief from alleged racial 
discrimination in the operation of the Greensville County 
School System, was filed in March of 1965. Emporia was 
not a city under Virginia law until July 31, 1967; until that 
time the county was alone responsible for the public educa­
tion of those within its borders. Under the contract of 
April 10,1968, the county continued this service in exchange 
for the payment of 34.26% of the cost of the system.



On June 21, 1968, the plaintiffs moved for additional re­
lief. Up to that point the county-administered system had 
operated under a free-choice plan which, plaintiffs asserted, 
had not achieved constitutional compliance under Green v. 
County School Board of New Kent County, 391 U.S. 480, 
88 S.Ct. 1969, 20 L.Ed.2d 716 (1968). The 1967-68 enroll­
ment figures show the racial distribution then prevailing:

Students Faculty

School W N W N
Greensville County High 719 50 39% 1
Emporia Elementary 857 46 34% 2
Wyatt High 0 809 41/2 32%
Moton Elementary 0 552 0 22%
Zion Elementary 0 255 1 12%
Belfield Elementary 0 419 3 14
Greensville County Training 0 439 0 16

The two schools then attended by all the white students 
were and still are in the city of Emporia, as is the training 
school; others are in the county.

The county proposed the extension of the free choice 
plan for another year while a zoning or pairing plan was 
developed. The plaintiffs took exception. The Court or­
dered the county to file a pupil desegregation plan bringing 
the system into compliance with Green by January 20,1969. 
The county again proposed that the free choice plan be re­
tained with certain changes, principally involving transfers 
out of a pupil’s regular school for special classes and faculty 
reassignment. As an alternative, if the first proposal were 
rejected, the county suggested a plan under which the high 
school population would be divided between the two facili­
ties on the basis of curriculum pursued, academic or voca­
tional. Faculties would be reassigned to achieve at least a



65a

75%-25% ratio in each school. Elementary school desegre­
gation would be achieved by the transfer of individual 
Negroes to white schools “on the basis of standardized test­
ing of all students.”

The plaintiffs suggested the assignment of all students on 
the basis of grades attained to specific schools; pairing, in 
other words, the entire system. Elementary teachers were 
to follow their classes as reassigned, and high school teach­
ers were to be shifted so that the racial balance in the Wyatt 
School and Greensville County High would be approxi­
mately the same.

A hearing was held on June 17,1969, and this Court stated 
its findings and indicated its intention to order that the 
plaintiffs’ plan be adopted.

By order of June 25, 1969, this Court rejected the defen­
dants’ proposals and ordered the plaintiffs’ plan put into 
effect. Subsequently the plan was modified slightly on de­
fendants’ motion; the pupil assignments ordered on July
30, 1969, were as follows:

School Grades

Greensville County High 10, 11, 12
Junior High (Wyatt) 8, 9
Zion Elementary 7
Belfield Elementary 5, 6
Moton Elementary 4, 5
Emporia Elementary 1, 2, 3
Greensville County Training Special Education

On July 9, 1969, the city council met especially to formu­
late plans for a city school system. On July 10th the mayor 
sought the cooperation of county officials in selling or 
leasing school facilities located in Emporia. On July 14th 
the council instructed the city school board to take steps 
to create a city school division. On July 23rd the council



66a

requested the state board of education to authorize the 
establishment of such a division, which request has been 
tabled by the State Board “in light of matters pending- 
in the federal court,” defendants’ Ex. E-l. The Emporia 
school board in the meantime advised the county officials 
that the contract would no longer be honored and that city 
pupils would not attend the county system in the forth­
coming school year. A notice of July 31, 1969, published 
by the city school board, required that school age children 
resident in Emporia be registered and invited applications 
from non-residents on a tuition basis. The injunction of 
August 8, 1969, however, resulted in a continuation of city 
pupils attending the county system for the present school 
year.

At a hearing on December 18, 1969, the city took the 
position that the contract was void under state law (see 
defendants’ Ex. E -J ); this question is the subject of pend­
ing litigation brought by the city on October 1, 1969, in the 
state courts. The evidence shows that the city on Septem­
ber 30, 1969, notified the county of its view that the con­
tract is invalid and its intention to terminate the contract 
under its terms, in any case, effective in July, 1971. Pay­
ments, however, were continued through the date of the 
December hearing. Emporia officials also have assured 
the Court that they have no intention of entertaining 
applications from nonresidents until so permitted by this 
Court.

At the hearing the county, unfortunately, took no 
position.

A  resolution of the city school board of December 10, 
1969, defendants’ Ex. E-F, outlines the city’s plan. Ele­
mentary levels through grade six would be conducted in 
the Emporia Elementary School building; grades seven 
through twelve would be housed in the Greensville County 
High School. Defendants’ Ex. E-G includes budgetary



67a

projections for the new system. The city projects enroll­
ment figures for the system at about ten percent above 
the number of city residents now in the public system “on 
the expectation that some pupils now attending’ other 
schools would return to a city-operated school system,” 
defendants’ Ex. E-F, at 1.

The city clearly contemplates a superior quality educa­
tional program. It is anticipated that the cost will be such 
as to require higher tax payments by city residents. A 
kindergarten program, ungraded primary levels, health 
services, adult education, and a low pupil-teacher ratio 
are included in the plan, defendants’ Ex. E-G-, at 7, 8.

The county has filed, at the Court’s request, a statistical 
breakdown of the students and faculty in the county- 
administered schools, now in operation under this Court’s 
order of July 30, 1969. The table below shows the current
racial makeup of the seven schools:

School Students Faculty

W N W N

Emporia Elementary 
Grades 1-3

283 655 
30.1% 69.9%

17 18

Hicksford (Moton) 
Grades 4-5

238
37%

405
63%

11 13

Belfield 
Grade 6

107
30.6%

243
69.4%

7 11

Zion 
Grade 7

127
34.8%

238
65.2%

7 7

Junior High 
Grades 8-9

215
32.6%

443
67.4%

19 21

Senior High 
Grades 10-12

346
44.9%

424
55.1%

31 14

Training School 10 63 1 8
13.7% 86.3%



68a

By comparison, the county reported the following racial 
characteristics for the 1968-69 school year:

School Students Faculty

W N W N
Greensville County High 720 45 39 1
Wyatt H.S. (present Jr. High) 0 829 5 34
Emporia Elementary 771 53 33 3
Moton (present Hicksford) 0 521 5 18
Zion 0 248' 1 13
Greensville County Training 0 387 0 17
Belfield 0 427 2 16

The procedural status of the case at present needs
clarification. The plaintiffs contend that no one has made 
application to this Court that its order of June 25, as 
modified on July 30, be amended. This is the outstanding 
desegregation order addressed to “ the defendants herein, 
their successors, agents, and employees.” They contend 
that this Court is therefore limited to the inquiry whether 
the city officials threaten to interfere with the implementa­
tion of the order and therefore should be permanently 
enjoined.

Some passages in the city officials’ briefs support this 
contention. In their rebuttal brief they state that the 
city is not seeking any sort of judicial relief excepting that 
the injunction of August 8, 1969, be lifted. They contend 
that any change in the existing desegregation order would 
be “a matter to be resolved by the Court, the plaintiffs and 
Greensville County, and would not involve the city.” 
[Rebuttal brief of January 23, at 3.] Such a position, 
however, is inconsistent with that taken by counsel at 
the December 18th hearing. Issues explored went beyond 
the question whether the city’s initiation of its own system 
would necessarily clash with the administration of the



69a

existing- pairing plan; indeed there seems to be no real 
dispute that this is so. The parties went on to litigate 
the merits of the city’s plan, developing the facts in detail 
with the help of an expert educator. Counsel for the 
city stated that “at the conclusion of the evidence today, 
we will ask Your Honor to approve the assignment plan 
for the 1970-71 school year and to dissolve the injunction 
now, against the city, effective at the end of this school 
year,” Tr., Dec. 18, at 11.

It seems clear that the supplemental complaint sought 
to join the city officials not so much as successors, in full 
or in part, to the official powers and interests of the original 
defendants, but rather as persons who intended to use 
state powers to interfere with the plaintiffs’ enjoyment of 
their constitutional right to unsegregated public education. 
Ample precedent exists for authority to grant relief in such 
a case. Faubus v. United States, 254 F.2d 797 (8th Cir., 
1958); Lee v. Macon County .Board of Education, 231 
F.Supp. 743 (M.D.Ala. 1964). Indeed such orders have 
issued against private parties, on occasion, even at the 
instance of state officials, Kasper v. Brittain, 245 F.2d 
92 (6th Cir. 1957); Brewer v. Hoxie School District No. 46, 
238 F.2d 91 (8th Cir. 1956). Plaintiffs did not specifically 
request then or since that the city officials be joined or 
substituted as parties defendant pursuant to Fed.Rules 
Civ.Proc., Rule 25(c), or Rule 25(d), 28 U.S.C.

Nevertheless, this Court has concluded that the plaintiffs’ 
failure to so move was, under the circumstances, excusable 
and indeed unnecessary. The city defendants, by their 
actions, have made it clear that, according to state law, 
they have succeeded to the powers of the county board 
members over public school students resident in the city. 
They now desire to exercise these latent powers and have 
asked this Court to amend its orders to enable them to 
so do. A w-ord about the Virginia education law aids in 
understanding this aspect of the case.



70a

When Emporia became a city the duty fell upon it to 
establish a school board to supervise public education in 
the city. §§ 22-2, 22-93, 22-97, Va.Code Ann., 1950. State 
law permits, however, the consolidation of a city with a 
county to form a single school division, with the approval 
of the State Board of Education, § 22-30, Va.'Code Ann., 
1950. In such a case a single school board may be estab­
lished with the approval of both governmental units. 
§ 22-100.2, Ya.Code Ann., 1950; the individual boards 
would then cease to exist, § 22-100.11, Va.Code Ann., 1950. 
Alternatively, the two boards might remain in existence and 
meet jointly to choose a division superintendent, § 22-34, 
Va.Code Ann., 1950. There is provision as well for the 
establishment of jointly owned schools, §22-7, Va.Code 
Ann., 1950. When a city contracts with a county for the 
provision of school services, moreover, there is specific 
provision that the county board shall include representa­
tives of the city, § 22-99, Va.Code Ann., 1950. Therefore, 
once it became a city, there is no doubt that Emporia 
succeeded to the state-law powers and duties of actively 
administering public schools for its residents under one 
of these statutory schemes. It has not, however, until 
recently sought to exercise that power. Only after the June 
order did the city move to assume the powers that it had, 
by contract, delegated to the county, plaintiffs’ exhibit 12.

Under .federal practice, an injunction may not issue 
against and bind all the world. The persons wdiose con­
duct is governable by court order are defined by rule:

Every order granting an injunction * * * is binding 
only upon the parties to the action, their officers, 
agents, servants, employees, and attorneys, and upon 
those persons in active concert or participation with 
them who receive actual notice of the order by per­



71a

sonal service or otherwise. Fed. Buies Civ.Proc., Rule 
65(d), 28 U.S.C.

This rule fixes the scope of valid orders, and terms in a 
decree exceeding the rule are of no effect, Swetland v. 
Curry, 188 F.2d 841 (6th Cir. 1951); Alemite Mfg. Co. v. 
Staff, 42 F.2d 832 (2d Cir. 1930); Baltz v. The Fair, 178 
F.Supp. 691 (N.D. 111. 1959); Chisolm v. Caines, 147 F.Supp. 
188 (E.D.S.C. 1954). In general, only those acting in con­
cert with, or aiding or abetting, a party can be held in con­
tempt for violating a court order. One whose interest is 
independent of that of a party and who is not availed of 
as a mere device for circumventing a decree is not subject 
to such sanctions, United Pharmacal Corp. v. United States, 
306 F.2d 515, 97 A.L.R.2d 485 (1st Cir. 1962). The law 
exposes to summary punishment only those who have 
already had their rights adjudicated in court. Consistent 
with these limitations, a court will only order a public 
official to perform or refrain from certain acts which are 
within the powers conferred upon him by law, Bell v. School 
Board of Powhatan County, 321 F.2d 494 (4th Cir. 1963), 
and will deny relief when those parties before it are not 
fully empowered, under state law, to take the action re­
quested, Thaxton v. Vaughan, 321 F.2d 474 (4th Cir. 1963).

Under these precedents one might conclude that, be­
cause the city officials were not parties to any of the pro­
ceedings in this case prior to the filing of the supple­
mental complaint, they are therefore not bound by decrees 
in that litigation. But a line of cases involving public 
officers has also evolved holding that a decree may bind one 
who succeeds to the powers exercised by the officer who was 
a party to the original suit. In Regal Knitwear Co. v. N. L. 
R. B., 324 U.S. 9, 65 S.Ct. 478, 89 L.Ed. 661 (1945), the 
Supreme Court recognized that a decree might bind “suc­
cessors” to a private litigant, at least if they came within



72a

the usual “privity” doctrines. Lucy v. Adams, 224 F.Supp. 
79 (N.D.Ala.1963), held that the successor to a state uni­
versity dean of admissions was bound by a decree against 
his predecessor so long as he had notice of the injunction. 
In Lankford v. Gelston, 364 F.2d 197, 205 n. 9 (4th Cir. 
1966), an injunction against a police official or his successor 
was expressly endorsed. The injunction of June 25, 1969, 
as mentioned above, issued against the county officials or 
their successors. No one contests that the city officers had 
notice of the decree. The Emporia officials in a very real 
sense appear now to have succeeded, under state law, to 
the part of the county officers’ powers and thus are amen­
able to the decree.

It is irrelevant that the city officials hold positions that 
differ in name from those of the original parties. Substi­
tution in analogous situations has been effectuated under 
Fed. Rules Civ. Proc. Rule 25(d) 28 U.S.C., when the rele­
vant functions have been moved from one office to another, 
Fleming v. Mohawk Wrecking &, Lumber Co., 331 U.S. I ll , 
67 S.Ct. 1129, 91 L.Ed. 1375 (1947); Toshio Joji v. Clark, 
11 F.R.D. 253 (N.D.Cal.1951); Porter v. American Dis­
tilling Co., 71 F.Supp. 483 (S.D.N.Y. 1947), cf. Skolnick v. 
Parsons, 397 F.2d 523 (7th Cir. 1968).

The city might have moved for substitution under Fed. 
Rules Civ. Proc., Rule 25(d), but its failure to do so is quite 
excusable. The county officials were under contract to 
operate the schools, and the question of the validity of that 
instrument was not raised. Greensville County officials 
were in possession of the schools whereas the city board 
was by all indications asserting no control. The county 
board, when ordered to take certain steps in the exercise of 
its power over the public school pupils of the city and the 
county, did not protest its lack of power. It may yet possess 
power over both city and county residents, at least for the 
term of the contract. But the city’s actions subsequent to



73a

the pairing decree, and in particular the pending suit to 
declare the contract void, cast great doubt on the county’s 
authority under state law. To all appearances the city 
board, but for and subject to the decree of this Court 
ordering non-interference, now has the powTe:r under state 
law to administer schools for the city residents. Certainly 
it must have such power, even if the contract is valid, com­
mencing July 1, 1971.

As a successor in interest to a party to the original 
decree, it would seem that the city school board now has 
sufficient standing under Fed.Rules Civ.Proc., Rule 60(b), 
28 U.S.C., to move to amend the outstanding decree. Those 
cases holding such relief to be unavailable to nonparties 
concern chiefly the applications of persons who did not 
have an interest in the judgment identical to that of the 
original party, Mobay Chemical Co. v. Hudson Foam 
Plastics Corp., 277 F.Supp. 413 (S.D.N.Y. 1967); United 
States v. 140.80 Acres of Land, 32 F.R.D. 11 (E.D.La. 
1963); United States v. International Boxing Club, 178 
F.Supp. 469 (S.D.N.Y.1959). The present standing of the 
city board members is still problematical because the valid­
ity of the contract has not been finally adjudicated. But 
it is clear that they will enjoy the relevant powers at least 
in the 1971-1972 school year, and sooner if they succeed in 
their litigation; this puts them in a position to move to 
modify the decree.

The Court therefore must proceed to the merits of the 
city’s plan, treating the school board’s application, as dis­
cussed above, as a motion under Fed.Rules Civ.Proc., Rule 
60(b), 28 U.S.C.

The county board has provided data on the composition 
of the student body of each school as currently operated, 
broken down by race and by place of residence. The tables 
below are based upon that information:



74a

Overall System, September 1, 1969 
Students by race and residence :
White Negro Total % White % Negro

County: 728 1888 2616 27.8% 72.2%
City: 543 580 1123 48.3% 51.7%
Total 1282 2477 3759 34.1% 65.9 %x

The establishment of separate systems would plainly cause 
a substantial shift in the racial balance The two schools 
in the city, formerly all-white schools, would have about a 
50-50 racial makeup, while the formerly all-Negro schools 
located in the county which, under the city’s plan, would 
constitute the county system, would overall have about 
three Negro students to each white As mentioned before, 
the city anticipates as well that a number of students would 
return to city system from private schools. These may be 
assumed to be white, and such returnees would accentuate 
the shift in proportions.

The city contemplates placing grades one through six 
in the Emporia Elementary School building. Such a school 
would have 314 Negro students and 270 white; 46.2% white 
and 53.8% Negro. A city high school incorporating grades 
seven through twelve would have 252 Negro students and 
271 white; this would make for a ratio of 51.8% white to 
48.2% Negro pupils.

1 Figures secured from G-reensville County school system total 
students include 11 white and 9 Negro, who apparently reside out­
side both county and city.



75a

The impact of separation in the county would likewise 
be substantial. The distribution of county residents, by 
grade and race, is as follows:

Grades 1-3 
Grades 4-5 
Grade 6 
Grades 7-9 
Grades 10-12

White
167—26.3%
142—31.1%
57—23.5%

192—27.5%
161—30.6%

Negro

468—73.7%
314—68.9%
185—76.5%
506—72.5%
365—69.4%

These figures should be compared with the current per­
centages reported by the county, given in a table above. 
At each level the proportion of wThite pupils falls by about 
four to seven percent; at the high school level the drop is 
much sharper still.

The motives of the city officials are, of course, mixed. 
Ever since Emporia became a city consideration has been 
given to the establishment of a separate city system. A 
second choice was some form of joint operating arrange­
ment with the county, but this the county would not assent 
to. Only when served with an “ultimatum” in March of 
1968, to the effect that city students would be denied access 
to county schools unless the city and county came to some 
agreement, was the contract of April 10, 1968, entered into. 
Not until June of 1969 was the city advised by counsel that 
the contract was, in all probability, void under state law. 
The city then took steps to have the contract declared void 
and in any event to terminate it as soon as possible.

Emporia’s position, reduced to its utmost simplicity, was 
to the effect that the city leaders had come to the conclusion 
that the county officials, and in particular the board of su­
pervisors, lacked the inclination to make the court-ordered 
unitary plan work. The city’s evidence was to the effect that 
increased transportation expenditures wmuld have to be



76a

made under the existing plan, and other additional costs 
would have to be incurred in order to preserve quality in 
the unitary system. The city’s evidence, uncontradicted, 
was to the effect that the board of supervisors, in their 
opinion, would not be willing to provide the necessary funds.

While it is unfortunate that the county chose to take no 
position on the instant issue, the Court recognizes the city’s 
evidence in this regard to be conclusions; and without in 
any way impugning the sincerity of the respective witnesses’ 
conclusions, this Court is not willing to accept these conclu­
sions as factual simply because they stand uncontradicted. 
Assuming arguendo, however, that the conclusions afore­
mentioned are indeed valid, then it would appear that the 
Court ought to be extremely cautious before permitting any 
steps to be taken which would make the successful opera­
tion of the unitary plan even more unlikely.

The Court does find as a fact that the desire of the city 
leaders, coupled with their obvious leadership ability, is and 
will be an important facet in the successful operation of any 
court-ordered plan.

Dr. Tracey, a professor of education at Columbia Uni­
versity, felt that the county budget had not even been in­
creased sufficiently to keep up with inflation in the 1969-1970 
year, and that it seemed that certain cutbacks had been 
made in educational programs, mainly to pay for increased 
transportation costs. In Dr. Tracey’s opinion the city’s 
projected budget, including higher salaries for teachers, a 
lower pupil-teacher ratio, kindergarten, ungraded primary 
schooling, added health services, and vocational education, 
will provide a substantially superior school system. He 
stated that the smaller city system would not allow a high 
school of optimum size, however. Moreover, the division of 
the existing system would cut off county pupils from ex­
posure to a somewhat more urban society. In his opinion as 
an educator, given community support for the programs he



77a

envisioned, it would be more desirable to apply them 
throughout the existing system than in the city alone.

While the city has represented to the Court that in the 
operation of any separate school system they would not 
seek to hire members of the teaching staff now teaching 
in the county schools, the Court does find as a fact that 
many of the system’s school teachers live within the geo­
graphical boundaries of the city of Emporia. Any separate 
school system would undoubtedly have some effect on the 
teaching staffs of the present system.

Dr. Tracey testified that his studies concerning a possible 
separate system were conducted on the understanding that 
it was not the intent of the city people to “resegregate” 
or avoid integration. The Court finds that, in a sense, race 
was a factor in the city’s decision to secede. This Court 
is satisfied that the city, if permitted, will operate its own 
system on a unitary basis. But this does not exclude the 
possibility that the act of division itself might have fore­
seeable consequences that this Court ought not to permit. 
Mr. Lankford, chairman of the city school board, stated :

Bane, of course, affected the operation of the schools 
by the county, and I again say, I do not think, or we 
felt that the county was not capable of putting the 
monies in and the effort and the leadership into a 
system that would effectively make a unitary system 
work * # #, Tr.Dec. 18, at 28.

Mr. Lankford stated as well that city officials wanted a 
system which would attract residents of Emporia and “hold 
the people in public school education, rather than drive 
them into a private school * * Tr.Dec. 18, at 28.

Under Monroe v. Board of Commissioners, 391 U.S. 450, 
88 S.Ct. 1700, 20 L.Ed.2d 733 (1968), and under prin­
ciples derived from Brown v. Board of Education, 347 U.S.



78a

483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), federal courts cannot 
permit delay or modification in plans for the dismantling 
of dual school systems for the purpose of making the public 
system more palatable to some residents, in the hopes that 
their flight to private schools might be abated. The inevi­
table consequence of the withdrawal of the city from the 
existing system would be a substantial increase in the pro­
portion of whites in the schools attended by city residents, 
and a concomitant decrease in the county schools. The 
county officials, according to testimony which they have 
permitted to stand unrebutted, do not embrace the court- 
ordered unitary plan with enthusiasm. If secession occurs 
now, some 1,888 Negro county residents must look to this 
system alone for their education, while it may be antici­
pated that the proportion of whites in county schools may 
drop as those who can register in private academies. This 
Court is most concerned about the possible adverse impact 
of secession on the effort, under Court direction, to provide 
a unitary system to the entire class of plaintiffs. This is 
not to say that the division of existing school administra­
tion areas, while under desegregation decree, is impermis­
sible. But this Court must withhold approval “if it cannot 
be shown that such a plan will further rather than delay 
conversion to a unitary, nonracial, nondiscriminatory 
school system,” Monroe v. Board of Commissioners, supra, 
391 U.S. 459, 88 S.Ct. 1705. As a court of equity charged 
with the duty of continuing jurisdiction to the end that 
there is achieved a successful dismantling of a legally im­
posed dual system, this Court cannot approve the proposed 
change.

This Court’s conclusion is buttressed by that of the dis­
trict court in Burleson v. County Board of Election Com­
missioners, 308 F.Supp. 352 (E.D.Ark., Jan. 22, 1970). 
There, a section of a school district geographically separate 
from the main portion of the district and populated princi­



79a

pally by whites was enjoined from seceding while desegre­
gation was in progress. The Court so ruled not principally 
because the section’s withdrawal was unconstitutionally 
motivated, although the Court did find that the possibility 
of a lower Negro population in the schools was “a powerful 
selling point,” Burleson v. County Board of Election Com­
missioners, supra, 308 F.Supp. 357. Rather, it held that 
separation was barred where the impact on the remaining 
students’ right to attend fully integrated schools would be 
substantial, both due to the loss of financial support and 
the loss of a substantial proportion of white students. This 
is such a case.

If Emporia desires to operate a quality school system 
for city students, it may still be able to do so if it presents 
a plan not having such an impact upon the rest of the area 
now under order. The contractual arrangement is ended, 
or soon will be. Emporia may be able to arrive at a system 
of joint schools, within Virginia law, giving the city more 
control over the education its pupils receive. Perhaps, too, 
a separate system might be devised which does not so 
prejudice the prospects for unitary schools for county as 
well as city residents. This Court is not without the power 
to modify the outstanding decree, for good cause shown, 
if its prospective application seems inequitable.



80a

District Court’s
Findings of Fact and Conclusions of Law

[Filed on August 8, 1969]
This cause came on to be heard on the verified supple­

mental complaint and the plaintiffs’ motion for an inter­
locutory injunction as prayed in the supplemental com­
plaint; and having heard oral evidence and received ex­
hibits in open court, the Court makes the following

F in d in g s  o f  F a c t

This action, seeking the racial desegregation of the pub­
lic school system of Greensville County, was commenced 
March 15, 1965.

On July 31, 1967, the Town of Emporia became a city 
of the second class known as the City of Emporia.

In recognition of its obligation to provide certain services 
and facilities including public schools for children within 
its boundaries, the said City by the Council thereof on 
April 10, 1968 entered into and signed an agreement with 
the surrounding County of Greensville acting through the 
Board of Supervisors thereof, whereby the County would 
continue to provide public schools to the citizens of the 
City of Emporia in the same manner as when the City was 
a town and to the same extent as provided to the citizens of 
the County, and the City would pay as billed its contractual 
share, ascertained at 34.26 percentum, of the local cost to 
the County. Said agreement provides for its continuing 
effectiveness for a period of four years and thereafter until 
notice will be given by either party to the other by Decem­
ber 1 of any year that said agreement would be terminated 
on July 1 of the second year following such notice. The 
contract provides for other contingencies in reference to 
termination.



81a

On June 17, 1969, this Court stated from the bench its 
findings of fact and conclnsions of law regarding the plain­
tiffs’ motion for further relief and indicated that an order 
would be entered requiring the County School Board of 
Greensville County to implement the plan for desegregation 
filed by the plaintiffs which proposed the use of two school 
buildings located near but outside the City limits for all 
children in primary and lower elementary grades living 
south of the Meherrin River, the use of a school building 
located within the City and one located near but outside the 
City limits for all children in primary and lower elementary 
grades living north of the Meherrin River, the assignment 
of all pupils in intermediate grades to Emporia Elementary 
School located within the City of Emporia, the assignment 
of all pupils in the junior high school grades to Wyatt High 
School located near but outside the City limits, and the 
assignment of all pupils in the senior high school grades to 
Greensville County High School located within the City 
limits. The only two schools in the system which white 
children have ever attended are within the City.

On June 24, 1969, Bruce Lee Townsend, an infant, etc., 
et al, residents of the City of Emporia, filed in the Circuit 
Court of the County of Greensville a petition (which on the 
same day was served on the respondents thereof, viz: City 
Council of City of Emporia, School Board of City of Em­
poria, Greensville County Board of Supervisors, and 
Greensville County School Board) seeking, inter alia, judi­
cial dissolution of the above mentioned agreement of April 
10, 1968, and an injunction preventing any pupils residing 
within the City from being assigned to schools not located 
within the City. Each of the respondents demurred to said 
petition on July 15, 1969.

On July 9, 1969, William H. Ligon, L. R, Brothers, Jr., 
T. Cato Tillar, Fred A. Morgan, Julian C. Watkins, S. G. 
Keedwell, M. L. Nicholson, Jr., and Robert F. Hutcheson,



82a

constituting the Council of the City of Emporia; George F. 
Lee, Mayor of the City; D. Dortch Warriner, City At­
torney; and Robert K. McCord, City Manager, convened 
in a special meeting, the purpose of which was for “ estab­
lishing a City School system.”

Under date of July 10, the Mayor sought cooperation 
from the County Board of Supervisors, specifically the sale 
or lease of the school buildings located within the City.

At the July 14 meeting of the same City officials, the 
Mayor evidenced his dissatisfaction with the plan which this 
Court had ordered to be executed to accomplish school 
desegregation. The Council heard purported percentages of 
Negroes who would be in each school for the first seven 
grades under the plan approved by this Court, and there 
was evidenced a view that the plan was educationally un­
sound. The chairman of the City School Board advised the 
Council that approximately 500 County children could at­
tend City schools if the City obtained the buildings wanted,
i.e., the Emporia Elementary School and the Greensville 
County High School which white children of the County 
and City have traditionally attended. The Council unani­
mously decided to instruct the School Board of the City 
of Emporia to immediately take all steps to establish a 
school division for the City of Emporia,

At a special meeting held July 23, 1969, the Council 
adopted a resolution requesting the State Board of Educa­
tion to authorize the creation of a school division for the 
City of Emporia.

The City School Board notified the County School Board 
that a separate school system for the City will be operated, 
that no City school children will attend the County system 
during the year 1969-70 and thereafter, and that the City 
would no longer pay a share of the cost of operating the 
County schools. The notification solicited the cooperation of 
the County School Board in making this transition which



83a

was characterized as being “for the benefit of the entire 
community.”

The City School Board has caused to be circulated and 
posted a notice dated July 31,1969, requiring all parents of 
school age children residing in the City to register such 
chidren during the week of August 4-8 and inviting appli­
cations from out-of-city students who desire to attend Em­
poria City schools on a tuition, no transportation basis.

The City School Board’s proposed operation of the 
schools would afford those students residing in the County 
the opportunity to attend a City school upon payment of 
certain tuition fees.

Certain members of the County School Board and mem­
bers of the Board of Supervisors had knowledge of the 
foregoing events as and when they occurred and have met 
with members or representatives of the City Council and of 
the City School Board and discussed the plans of the City 
to withdraw from the County school system.

The Court further finds that a failure of this Court to 
enjoin the defendants would result in incalculable harm to 
those students residing in the County and would be disrup­
tive to the effectiveness of the Court’s previous order.

The Court further finds that the members of the School 
Board of Emporia have not functioned as such except for 
the purpose of consulting with the County Board in the 
selection of a superintendent of schools. They never acted 
in any manner for purposes of offering their assistance to 
the County Board in reference to a school plan to be sub­
mitted to this Court.

On the basis of the foregoing, the Court makes the fol­
lowing

C o n c l u s io n s  o f  L a w

1. As a successor to the County School Board with re­
spect to the duty to educate children of school age residing



84a

in the City of Emporia, the City School Board would be 
and is bound by this Court’s order requiring the County 
School Board to disestablish racial segregation in the pub­
lic school system which it controlled and operated both 
when this suit was commenced and when said order was 
entered and to do so in accordance with the plan approved 
by this Court.

2. As persons in participation with the County School 
Board with respect to the cost of the school system, and 
they having received notice of this Court’s said order, the 
Council of the City of Emporia, the members thereof, the 
Mayor of the City, the School Board of the City of Em­
poria, the members thereof, the County Board of Super­
visors of Greensville County and the members thereof were 
and are bound by this Court’s said order.

3. The establishment and operation of a separate public 
school system by the City of Emporia and the consequent 
withdrawal of children residing in that City from the public 
school system of Greensville County would be an imper­
missible interference with and frustration of this Court’s 
said order.

4. The Council of the City of Emporia may not with­
hold its appropriate share of financial support for the 
operation of public schools by the County School Board of 
Greensville County when such would defeat or impair, the 
effectuation of the constitutional rights of the plaintiffs 
in the manner which this Court has directed.

Dated: 8-8-69

/s /  R o b e r t  R .  M e r h ig e , Jb. 
United States District Judge



85a

Order of District Court

[Entered and Filed on August 8, 1969]
For the reasons assigned in the Court’s Findings of Fact 

and the Conclusions of Law, and deeming it proper so to 
do, it is A d j u d g e d , O r d e r e d  and D e c r e e d  that the School 
Board of the City of Emporia and the members thereof, 
viz: E. Y. Lankford, Julian P. Mitchell, P. S. Taylor and 
G. B. Ligon, and their successors, and the officers, agents, 
servants, employees and attorneys of said Board, as well 
as George F. Lee, as Mayor of the City of Emporia, and 
his successors, and the Council of the City of Emporia 
and the members thereof, viz: William H. Ligon, L. R. 
Brothers, Jr., T. Cato Tillar, Fred A. Morgan, Julian C. 
Watkins, S. G. Keedwell, M. L. Nicholson, Jr., and Robert 
F. Hutcheson, and their successors, and the officers, agents, 
servants, employees and attorneys of said Council, be, and 
they hereby are, enjoined and restrained from any action 
which would interfere in any manner whatsoever with the 
implementation of the Court’s order heretofore entered in 
reference to the operation of public schools for the student 
population of Greensville County and the City of Emporia.

This order shall be effective upon the plaintiffs’ giving 
security in the sum of $100.00 for the payment of such 
costs and damages as may be incurred or suffered by any 
party who is found to have been wrongfully enjoined; and 
shall remain in full force and effect for a period of 140 days 
unless sooner modified, enlarged or dissolved.

Let the United States Marshal serve copies of this order 
upon each of the named defendants.

Dated: August 8, 1969
3 :45 P.M.

/ s /  R obert R . M erhige , J r .
United States District Judge



86a

Va. Code Ann.

§22-7. Joint schools for counties or for counties and 
cities or towns.—The school boards of counties or of coun­
ties and cities, or of counties and towns operating as sepa­
rate special school districts, may, with the consent of the 
State Board, establish joint schools for the use of such 
counties or of such counties and cities or of counties and 
towns operating as separate special school districts, and 
may purchase, take, hold, lease, convey and condemn, 
jointly, property, both real and personal, for such joint 
schools. Such school boards, acting jointly, shall have the 
same power of condemnation as county school boards ex­
cept that such land so condemned shall not be in excess 
of thirty acres in a county or city for the use of any one 
joint school. The title of all such property acquired for 
such purposes shall vest jointly in such school boards of 
the counties or counties and cities or counties and towns 
operating as separate special school districts in such re­
spective proportions as such school boards may determine, 
and such schools shall be managed and controlled by the 
boards jointly, in accordance with such rules and regula­
tions as are promulgated by the State Board. However, 
such rules and regulations in force at the time of the adop­
tion of a plan for the operation of a joint school shall not 
be changed for such joint school by the State Board without 
the approval of the local school boards.

§22-30. How division made.—The State Board shall 
divide the State into appropriate school divisions, in the 
discretion of the Board, comprising not less than one 
county or city each, but no county or city shall be divided 
in the formation of such division.



87a

§ 22-34. When school boards to meet jointly to appoint 
superintendent.—When a school division is composed of a 
city and one or more counties, or two or more counties, 
the school boards composing the division must meet jointly 
and a majority vote of the members present shall be 
required to elect a superintendent.

§ 22-42. Counties and magisterial districts as school dis­
tricts.—Each magisterial district shall, except where other­
wise provided by law, constitute a separate school district 
for the purpose of representation. For all other school 
purposes, including taxation, management, control and 
operation, unless otherwise provided by law, the county 
shall be the unit; and the school affairs of each county 
shall be managed as if the county constituted but one school 
district; provided, however, that nothing in this section 
shall be construed to prohibit the levying of a district tax 
in any district or districts sufficient to pay any indebted­
ness, of whatsoever kind, including the interest thereon, 
heretofore or hereafter incurred by or on behalf of any 
district or districts for school purposes.

C o u n t y  S c h o o l  B oards  G e n e r a l l y

§ 22-61. How school board appointed; assignment of 
duties.—-The county school board shall consist of one mem­
ber from each school district in the county, and in any 
county having a population not less than eighteen thousand 
and not more than twenty thousand and in any county 
having a population not less than thirty-three thousand and 
not more than thirty-five thousand, if the governing body 
thereof so adopts by resolution, not more than two mem­
bers at large, and in any county having a population of 
more than forty thousand but less than forty thousand 
four hundred, one member at large, and in any county



88a

having- a population of more than thirteen thousand but 
less than thirteen thousand five hundred, one member at 
large, all appointed by the school trustee electoral board, 
provided that in towns constituting separate school dis­
tricts and operated by a school board of three members, 
one of the members shall be designated annually by the 
town board as a member of the county school board. The 
members of the county school board from the several dis­
tricts shall have no organization and duties except such 
as may be assigned to them by the school board as a whole.

§ 22-68. Members must be residents.-—Each member of 
the county board at the time of his election shall be a bona 
fide resident of the magisterial district or town from which 
he is elected, and if he shall cease to be a resident of such 
district or town, his position on the county school board 
shall be deemed vacant, except in counties where magis­
terial districts have been abolished, in which case he 
may be appointed at large, but any member at large must 
be a bona fide resident of that county and upon his ceasing 
to be a resident of that county his position on the county 
school board shall be deemed vacant.

§22-72. Powers and duties.—The [county] school board 
shall have the following powers and duties:

(1) Enforcement of school laws.—To see that the school 
laws are properly explained, enforced and observed.

(2) Rules for conduct and discipline.—To make local 
regulations for the conduct of the schools and for the 
proper discipline of the students, which shall include their 
conduct going to and returning from school, but such local 
rules and regulations shall be in harmony with the general 
rules of the State Board and the statutes of this State.



89a

(3) Information as to conduct.—To secure, by visita­
tion or otherwise, as full information as possible about the 
conduct of the schools.

(4) Conducting according to law.—-To take care that 
they are conducted according to law and with the utmost 
efficiency.

(5) Payment of teachers and officers—Ho provide for 
the payment of teachers arid other officers on the first of 
each month, or as soon thereafter as possible.

(6) School buildings and equipment.—To provide for the 
erecting, furnishing, and equipping of necessary school 
buildings and appurtenances and the maintenance thereof.

(6a). Insurance.—To provide for the necessary insur­
ance on school properties against loss by fire or against 
such other losses as deemed necessary.

(7) Drinking ivater.—To provide for all public schools 
an adequate and safe supply of drinking water and see 
that the same is periodically tested and approved by or 
under the direction of the State Board of Health, either 
on the premises or from specimens sent to such Board.

(8) Textbooks for indigent children.—School boards shall 
provide, free of charge, such textbooks as may be neces­
sary for indigent children attending public schools; in 
systems providing free textbooks, the cost of furnishing 
such textbooks may be paid from school operating funds 
or the textbook fund or such other funds as are available; 
in systems operating rental textbook systems, school boards 
shall waive rental fees, or in their discretion, may reim­
burse the rental textbook fund from school operating funds.

(9) Costs and expenses.—In general, to incur costs and 
expenses, but only the costs and expenses of such items 
as are provided for in its estimates submitted to the tax 
levying body without the consent of the tax levying body.



90a

(10) Consolidation of schools.—To provide for the con­
solidation of schools whenever such procedure will con­
tribute to the efficiency of the school system.

(11) Other duties.—To perform such other duties as shall 
be prescribed by the State Board or as are imposed by 
law.

B oards  o f  C it ie s  a n d  T o w n s

§ 22-89. Appointment and term.—The council of each 
city except as otherwise provided by the city charter shall, 
on or before July first, nineteen hundred and thirty, appoint 
three trustees for each school district in such city, whose 
term of office shall be three years, respectively, and one 
of whom shall be appointed annually The first appoint­
ment hereunder shall be one for one year, one for two 
years, and one for three years, beginning July first, nine­
teen hundred and thirty, and thereafter all appointments 
shall be for three years. If a vacancy occurs in the office 
of trustee at any time during the term, the council shall 
fill it by appointing another for such part of the term as 
has not expired. Within thirty days preceding the day on 
which the term of such trustees shall expire by limitation, 
and within the like number of days preceding the day on 
which the term of any trustee shall expire by limitation in 
any subsequent year, such council shall appoint a successor 
to each such trustee in office, whose term shall commence 
when the term of predecessor shall have expired; provided, 
the office of any such trustee has not been abolished in 
redistricting the city; and, provided, that in the city of 
Norfolk the trustees shall be appointed in accordance with 
the provisions of § 22-89.1 rather than in accordance with 
the provisions of the city charter, and provided, further, 
that the common council of the city of Winchester shall 
select and appoint the school trustees for said city, and



91a

that in all other respects the provisions of this section shall 
apply to the city of Winchester. All acts heretofore clone 
by the school board of the city of Winchester are hereby 
validated.

§ 22-97. Enumeration of powers and duties.—The city 
school board shall have the following powers and duties:

(1) Buies and regulations.—To explain, enforce, and ob­
serve the school laws, and to make rules for the govern­
ment of the schools, and for regulating the conduct of pupils 
going to and returning therefrom.

(2) Method of teaching and government employed.—To 
determine the studies to be pursued, the methods of teach­
ing, the government to be employed in the schools, and 
the length of the school term.

(3) Employment and control of teachers.—To employ 
teachers on recommendation of the division superintendent 
and to dismiss them when delinquent, inefficient or in 
anywise unworthy of the position; provided, that no school 
board shall employ or pay any teacher from the public 
funds unless the teacher shall hold a certificate in full 
force, according to the provisions of §§ 22-203 to 22-206. 
It shall also be unlawful for the school board of any city, 
or any town constituting a separate school district, to 
employ or pay any teacher or other school employee re­
lated by consanguinity or affinity as provided in § 22-206. 
The exceptions and other provisions of that section shall 
apply to this section.

(4) Suspension or expulsion of pupils.-—To suspend or 
expel pupils when the prosperity and efficiency of the 
school make it necessary.

(5) Free textbooks.—To decide what children, wishing 
to enter the schools of the city, are entitled by reason of



92a

poverty of their parents or guardians to receive textbooks 
free of charge and to provide for supplying them accord­
ingly.

(6) Establishment of high and normal schools.—To 
establish high and normal schools and such other schools 
as may, in its judgment, be necessary to the completeness 
and efficiency of the school system.

(7) Census.—To see that the census of children required 
in § 22-223 is taken within the proper time and in the 
proper manner.

(8) Meetings of board.—To hold regular meetings and 
to prescribe when and how special meetings may be called.

(9) Meetings of people.—To call meetings of the people 
of the city for consultation in regard to the school interests 
thereof, at which meetings the chairman or some other 
member of the board shall preside if present.

(10) Schoolhouses and property.—To provide suitable 
schoolhouses, with proper furniture and appliances, and 
to care for, manage, and control the school property of 
the city. For these purposes it may lease, purchase, or 
build such houses according to the exigencies of the city 
and the means at its disposal. No schoolhouse shall be 
contracted for or erected until the plans therefor shall 
have been submitted to and aproved in writing by the 
division superintendent of schools, and no public school 
shall be allowed in any building which is not in such condi­
tion and provided with such conveniences as are required 
by a due regard for decency and health; and when a school- 
house appears to the division superintendent of schools 
to be unfit for occupancy, it shall be his duty to condemn 
the same, and immediately to give notice thereof, in writ­
ing, to the chairman of the school board, and thenceforth



93a

no public school shall be held therein, nor shall any part, 
of the State or city fund be applied to support any school 
in such house until the division superintendent shall certify, 
in writing, to the city school board that he is satisfied 
with the condition of such building, and with the appliances 
pertaining thereto.

(11) Visiting schools.—To visit the public free schools 
within the city, from time to time, and to take care that 
they are conducted according to law, and with the utmost 
efficiency.

(12) Management and control of funds.—To manage 
and control the funds of the city made available to the 
school board for public schools, to provide for the pay of 
teachers and of the clerk of the board, for the cost of 
providing school-houses and the appurtenances thereto and 
the repairs thereof, for school furniture and appliances, 
for necessary textbooks for indigent children attending the 
public free schools, and for any other expenses attending 
the administration of the public free school system, so 
far as the same is under the control or at the charge of the 
school officers.

(13) Approval and payment of claims.—To examine all 
claims against the school board, and when approved, to 
order or authorize the payment thereof. A record of such 
approval, order or authorization shall be made in the pro­
ceedings of the board. Payment of each claim shall be 
ordered or authorized by a warrant drawn on the treasurer 
or other officer of the city charged by law with the respon­
sibility for the receipt, custody and disbursement of the 
funds made available to the school board of such city. 
The warrant shall be signed by the chairman or vice- 
chairman of the board and countersigned by the clerk 
or deputy clerk thereof, payable to the person or persons,



94a

firm or corporation entitled to receive such payment. There 
shall be stated on the face of the warrant the purpose or 
service for which such payment is drawn and also that such 
warrant is drawn pursuant to an order entered or authority
granted by the board on the........ ......... day o f ................ .
The warrant may be converted into a negotiable check when 
the name of the bank upon which the funds stated in the 
warrant are drawn or by which the check is to be paid 
is designated upon its face and is signed by the treasurer, 
deputy treasurer or other officer of the city charged by 
law with the responsibility for the receipt, custody and 
disbursement of the funds of the city.

The board may, in its discretion, appoint an agent and 
a deputy ag’ent to act for the agent in his absence or in­
ability to perform this duty by resolution spread upon the 
record of its proceedings to examine and approve such 
claims and, when approved by him or his deputy to order 
or authorize the payment thereof. A record of such ap­
proval, order or authorization shall be made and kept with 
the records of the board. Payment of each such claim so 
examined and approved by such agent or his deputy shall 
be ordered or authorized by a warrant drawn on the 
treasurer or other officer of the city charged by law with 
the responsibility for the receipt, custody, and disburse­
ment of the funds made available to the school board of 
the city. The warrant shall be signed by such agent or his 
deputy and countersigned by the clerk or deputy clerk 
of the board, payable to the person or persons, firm or 
corporation entitled to receive such payments; provided, 
however, that when the agent appointed by the board is 
the division superintendent of schools and the division 
superintendent and clerk is one and the same person, all 
such warrants shall be countersigned by the chairman or 
vice-chairman of the board; provided further that when



95a

the deputy agent and deputy clerk is one and the same 
person the warrant shall be countersigned by either the 
clerk or the agent of the board. There shall be stated 
on the face of the warrant the purpose or service for which 
such payment is made and also that such warrant is drawm 
pursuant to authority delegated to such agent or his deputy
by the board on the ..................  day ______ ______ The
warrant may be converted into a negotiable check in the 
same manner as is prescribed herein for warrants ordered 
or authorized to be drawn by the school board. The board 
shall require such agent and his deputy to furnish the 
city a corporate surety bond conditioned upon the faithful 
performance and discharge of the duties herein assigned 
to each such official. The board shall fix the amount of 
such bond or bonds and the premium therefor shall be paid 
out of the funds made available to the school board of such 
city.

(14) Report of expenditures and estimate of necessary 
funds.—It shall be the duty of the school board of every 
city, once in each year, and oftener if deemed necessary, to 
submit to the council, in writing, a classified report of all 
expenditures and a classified estimate of funds deemed to be 
needed for the proper maintenance and growth of the public 
schools of the city, and to request the council to make pro­
visions by appropriation or levy pursuant to § 22-126, for 
the same.

(15) Other duties prescribed by State Board.—To per­
form such other duties as shall be prescribed by the State 
Board or are imposed by other parts of this title.

(16) Acquisition of land.—City school boards shall, in 
general, have the same power in relation to the condemna­
tion or purchase of land and to the vesting of title thereof, 
and also in relation to the title to and management of



96a

property of any kind applicable to school purposes, whether 
heretofore or hereafter set apart therefor, and however set 
apart, whether by gift, grant, devise, or any other convey­
ance and from whatever source, as county school boards 
have in the counties, and in addition thereto, they shall have 
the further right and power to condemn not in excess of 
fifteen acres of land for any one school when necessary for 
school purposes, except that when dwellings or yards are 
invaded not more than five acres may be condemned for any 
one school; provided, however, that the school board of any 
city having a population of more than eighty-six thousand 
and not more than ninety thousand and any city having a 
population of more than seventy-five thousand but less 
than eighty-seven thousand, may have the right and power 
to condemn not in excess of forty-five acres when necessary 
for school purposes.

(17) Consolidation of schools.—To provide for the con­
solidation of schools whenever such procedure will con­
tribute to the efficiency of the school system.

§ 22-99. When city contracts with county to furnish facil­
ities. In the event that a city through authority granted in 
its charter enters into contract with the county school board 
of the adjacent county for furnishing public school facilities 
for the city where the county and city are constituted as one 
school system for the establishment, operation, mainte­
nance and management of the public schools within the 
county and city, the school board of the county shall consist 
of one representative from each magisterial district of the 
county and each magisterial district (or ward) of the city, 
such incumbent to be appointed by the county school trustee 
electoral board, as provided by § 22-61; provided further 
that the members of the county school board representing 
the city shall be selected from a list of three citizens from 
each district (or ward) to be submitted by the city council 
of the city; any other law to the contrary notwithstanding.



97a

B o a r d s  o f  D iv is io n s  C o m p r is in g  T w o  o r  M ore  
P o l it ic a l  S u b d iv is io n s

§ 22-100.1. Single school hoard authorised.-—When the 
State Board of Education has created a school division, 
composed of two or more counties or one or more counties 
with one or more cities, the supervision of schools in any 
such school division may be vested in a single school board 
under the conditions and provisions as hereinafter set 
forth.

§ 22-100.2. How hoard established.—The school boards 
of such counties, county and city or counties and cities, 
comprising such school division, by a majority vote, may, 
with the approval of the governing bodies of such counties, 
or counties and cities, and the State Board of Education, 
establish such division school board in lieu of the school 
boards as at present constituted for the counties, county 
and city or counties and cities of such school division. 
Provided, however, that no such division shall be created 
which includes a county in which there is located a town 
operating as a separate school district.

§ 22-100.3. How composed; appointment and terms of 
members; vacancies.—Such division school board shall be 
composed of not less than six nor more than nine trustees, 
with an equal number of members from each county or city 
of the division and with a minimum board of six members, 
who shall be appointed by the county board of supervisors 
for a county and the city council for a city. Upon the 
creation of such school division there shall be appointed 
by the appropriate appointing bodies the required number 
of members to the division school board who shall serve 
until the first day of July next following the creation of



98a

such division. Within sixty days prior to that day each 
appointing body shall appoint the required number of 
members of the division school board as follows: If there 
be three members, one shall be appointed for a term of 
two years, one for a term of three years, and one for a 
term of four years; if there be four members, one shall be 
appointed for a term of one year, one for a term of two 
years, one or a term of three years, and one for a term of 
four years. Within sixty days prior to the first day of 
July in each and every year thereafter there shall be ap­
pointed by the appropriate appointing body for a term of 
four years beginning the first day of July next following 
their appointment, successors to the members of the divi­
sion school board for their respective counties or cities, 
whose terms expire on the thirtieth day of June in each 
such year. The exact number of trustees for a county or 
city shall be determined by the governing bodies concerned 
within the limits above provided. Any vacancy occurring 
in the membership of the division school board from any 
county or city shall be filled for the unexpired term by the 
appointing body of such county or city. The governing 
bodies concerned shall jointly select for a term of four 
years one person who shall be a member of the division 
school board only for the purpose of voting in case of an 
equal division of the regular members of the board on any 
question requiring the action of such board. Such person 
shall be known as the tie breaker.

If the governing bodies are not able to agree as to the 
person who shall be the tie breaker, then upon application 
by any of the governing bodies involved to a circuit court 
having jurisdiction over a county or city embraced in such 
school division, the judge thereof shall name the tie breaker 
and his decision shall be final.



99a

Judgment

UNITED STATES COURT OF APPEALS 
F o e  t h e  F o u r t h  C ir c u it  

No. 14,552

P e c o l a  A n n e t t e  W r i g h t , et al.,

v.
Appellees,

C o u n c il  of  t h e  C i t y  o f  E m p o r ia  a n d  t h e  m e m b e r s  t h e r e o f , 
a n d  S c h o o l  B o ard  o f  t h e  C i t y  o f  E m p o r ia  a n d  t h e  

m e m b e r s  t h e r e o f ,
Appellants.

Appeal from the United States District Court for the 
Eastern District of Virginia.

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

On consideration whereof, It is now here ordered and ad­
judged by this Court the 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 District of Virginia, 
at Richmond, with instructions to dissolve the injunction; 
and because of the possibility that Emporia might institute 
a plan for transferring students into the city system from 
the county system resulting in resegregation, 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.

/ s /  S a m u e l  W. P h i l l i p s

Clerk



M E ILE N  PR ESS  INC . — N. Y. C. 219