Green v. County School Board of New Kent County, Virginia Briefs and Appendices

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O ctober T eem , 1967

No. 695

Charles C. G reen, et al., 

—v.—
Petitioners,

County  S chool B oard of N ew  K en t  C ounty , 
V irginia, et al.

ON W R IT  OF CERTIORARI TO T H E  U N ITED  STATES 

COURT OF APPEALS FOR T H E  FO U R TH  CIRCU IT

BRIEF FOR THE PETITIONERS

J ack  Greenberg 
J ames M. Nabrit, III 
F ran k lin  E. W h ite  

10 Columbus Circle 
New York, New York 10019

S. W. T ucker 
H enry  L. M arsh , III 

214 East Clay Street 
Richmond, Virginia

Attorneys for Petitioners

Of Counsel:

M ichael M eltsner 
M ichael  J. H enry





I N D E X

Citations to Opinions Below .......................................... 1

Jurisdiction ..................................   1

Question Presented ..................................................  2

Constitutional Provision Involved ...........   2

Statement ..................................................  2

I. The Pleadings ..................................  2

II. The Plan Adopted by the B oard ...................... 4

III. The Evidence .......................................................  5

IV. The District Court’s Decision............................  8

V. The Court of Appeals’ Opinion.......................  8

Summary of Argument...................................................  11

A rgument :

I. Introduction ........................................................  13

II. A Freedom of Choice Plan Is Constitutionally 
Unacceptable Where There Are Other Meth­
ods, No More Difficult to Administer, Which 
Would More Speedily Disestablish the Dual 
System.........................................................   27

PAGE



11

A. The Obligation of a School Board Under 
Brown v. Board of Education Is to Dises­
tablish the Dual School System and to 
Achieve a Unitary, Non-racial System ..... 28

1. The Fourth Circuit’s Adherence to
Briggs ..............................   28

2. Brown Contemplated Complete Reor­
ganization .................................................. 30

3. Case and Statutory Law ......................  32

4. Equitable Analogies  .........................  38

5. Summary ..........................   39

III. The Record Clearly Shows That a Freedom 
of Choice Plan Was Not Likely to Disestab­
lish, and Has Not Disestablished, the Dual 
School System and That a Geographic Zone 
Plan or Consolidation Would Immediately 
Have Produced Substantial Desegregation .... 41

Co n c l u sio n ......................................................................... 50

TABLE OF CASES

American Enka Corp. v. N. L. R. B., 119 F. 2d 60 (4th
Cir. 1941) .....................   39

Anderson v. Martin, 375 U. S. 399 ................................  42n

Board of Education of Oklahoma City Public Schools
v. Dowell, 372 F. 2d 158 (10th Cir. 1967) .............  37

Bolling v. Sharpe, 347 U. S. 497 ......    30

PAGE



I ll

Borders v. Flippy, 247 F. 2d 268, 271 (5th Cir., 1957) .. 28n
Boson v. Bippy, 285 F. 2d 43, 48 (5th Cir., 1960) .......  28n
Bowman v. County School Board of Charles City

County, Va., 382 F. 2d 326 (4th Cir. 1967) ............... 9n
Bradley v. School Board of the City of Richmond, 382

U. S. 103 ......................... ................................... 18n, 27n, 30
Braxton v. Board of Public Instruction of Duval 

County, Florida, No. 4598 (M. D. Fla.), January 24,
1967 ................................................................................  49n

Briggs v. Elliot, 132 F. Supp. 776 (E. D. S. C. 1955) ..28, 33 
Brown v. Board of Education, 347 U. S. 483, 349 U. S.

294 ................................................... 4n, 13,15n, 21, 30, 31,47
Burton v. Wilmington Parking Authority, 365 U. S.

715 .......................... ................................... ...................  42n

Calhoun v. Latimer, 377 U. S. 263 ..............................  30n
Carpenter v. Steel Co., 76 NLRB 670 (1948) ............... 39
Clark v. Board of Education, Little Rock School Dis­

trict, 369 F. 2d 661 (8th Cir. 1966) ..........................  48n
Cooper v. Aaron, 358 U. S. 1 ......................................30, 31n
Coppedge v. Franklin County Board of Education,

273 F. Supp. 289 (E. D. N. C. 1967) ...................... 23n, 49n
Corbin v. County School Board of Loudon County, 

Virginia, C. A. No. 2737, August 27, 1967 ............... 49n

Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) ........... 15n

Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) ........... 37

Farley v. Turner, 281 F. 2d 131 (4th Cir.) ..................  16
Franklin v. County School Board of Giles County,

Va., 242 F. Supp. 371 (W. D. Va. 1965) reversed 
360 F. 2d 325 (4th Cir. 1966) ...................................... 17n

PAGE



IV

Gibson v. Board of Public Instruction of Dade County,
272 F. 2d 763 (5th Cir. 1959) .................................... 15n

Gilliam v. School Board of the City of Hopewell, Va.,
345 F. 2d 325 (4th Cir. 1965) remanded 382 U. S.
103 (1965) ..................................................................... 17n

Goss v. Board of Education, 373 U. S. 683 .......30n, 42n, 43n
Green v. County School Board of the City of Roanoke,

304 F. 2d 118 (4th Cir. 1962) ...................................... 17
Griffin v. County School Board of Prince Edward 

County, 377 U. S. 218 (1964) ..................................27n, 30n

Hamm v. County School Board of Arlington County,
264 F. 2d 945 (4th Cir. 1960) .................................... 16n

Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636 ........... 16n

James v. Almond, 170 F. Supp. 331 (E. D. Va. 1959) .. 16n 
Jeffers v. Whitley, 309 F. 2d 621 (4th Cir., 1962) ....... 28n

Kelley v. Altheimer Arkansas Public School District,
378 F. 2d 483 (8th Cir., 1967) ..................................36, 46n

Kelley v. Board of Education of the City of Nashville,
270 F. 2d 209 (6th Cir., 1959) ................................28n, 33n

Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965) ........... 36
Kemp v. Beasley, —  F. 2d ------ , No. 19017 (8th

Cir. Jan. 9, 1968) ............................................... 37n, 43n, 44

Lane v. Wilson, 307 U. S. 268 ........................................ 46n
Louisiana v. United States, 380 U. S. 145 .................. 38,47

Manning v. Board of Public Instruction of Hillsboro 
County, 277 F. 2d 370 (5th Cir., 1960)

PAGE

15n



V

Marsh v. County School Board of Roanoke County,
Va., 305 F. 2d 94 (4th Cir., 1962) ..............................  17

Mason v. Jessamine County Board of Education, 8
Race Rel. L. Rep. 530 (E. D. Ky. 1963) ................... 49n

Monroe v. Board of Commissioners of the City of 
Jackson, Tenn., 380 F. 2d 955 (6th Cir. 1967) cert.
granted, No. 740 ( 0. T. 1967) ..._............................. 13, 33n

Moses v. Washington Parish School Board, ------  F.
Supp.------ (E. D. La. Oct. 19, 1967) ..................14n, 19,49n

N. A. A. C. P. v. Patty, 159 F. Supp. 503 ......................  16n
N. L. R. B. v. Newport News Shipbuilding and Dry

Dock Co., 308 U. S. 241 ....... .................................. . 39
Northcross v. Board of Education of the City of Mem­

phis, 302 F. 2d 818 (6th Cir., 1962) ..........................  15n
Norwegian Nitrogen Products Co. v. United States,

288 U. S. 294 ................................................................ 32n

Pettaway v. County School Board of Surry County,
Va., 230 F. Supp. 480 (E. D. Va. 1964), modified
and remanded, 339 F. 2d 486 (4th Cir.) ...................

Porter v. Warner Holding Co., 328 U. S. 395 ...........

Raney v. The Board of Education of the Gould School 
District, 381 F. 2d 252 (8th Cir. 1967), cert, granted,

PAGE

No. 805 ................... .....................................................13, 36n
Reitman v. Midkey, 18 L. ed. 831 ..................................  42n
Robinson v. Florida, 378 U. S. 153 ..................... ........  42n
Rogers v. Paul, 382 U. S. 198 ....................................30n, 48n

17n
38

Schine Chain Theatres v. United States, 334 U. S. 110 38
School Board of City of Charlottesville v. Allen, 263 

F. 2d 295 (4th Cir. 1959) .............................................  16n



vi

Singleton v. Jackson Municipal Separate School Dis­
trict, 348 F. 2d 729 (5th Cir. 1965) ..........................  35n

Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F. 2d 865 (5th Cir. 1966) ...................... 18n, 35n

Skidmore v. Swift & Co., 323 U. S. 134 ......................  32n
Sperry Gyroscope Co. Inc. v. NLRB, 129 F. 2d 922,

931-932 (2d Cir. 1942) ................................................. 39
Swann v. Charlotte Mecklenburg Board of Education,

369 F. 2d 29 (4th Cir. 1966) ...................................... 30n

United States v. American Trucking Associations,
Inc., 310 U. S. 534 ..................... ..................................  32n

United States v. Crescent Amusement Co., 323 U. S.
173 ............    38

United States v. County School Board of Prince 
George County, Va., 221 F. Supp. 93, 105 (E. D.
Va. 1963) ...........    17n

United States v. Jefferson County Board of Educa­
tion, 372 F. 2d 836, aff’d with modifications on re­
hearing en banc, 380 F. 2d 385, cert, denied sub nom. 
Caddo Parish School Board v. United States, 389
U. S. 840, 19 L. ed. 103 (1967) ...............4n, 9 ,18n, 33, 46n

United States v. Standard Oil Co., 221 TJ. S. 1 ........... 38

Vick v. Board of Education of Obion County, 205 F.
Snpp. 436 (W. D. Tenn. 1962) ..................................  28n

PAGE

Watson v. Memphis, 373 U. S. 526 27n



STATUTES

Code of Va., 1950 (1964 Replacement Vol.)

v ii

PAGE

§22.232.1 .... ................. ,.............................................6 ,16n

§22.232.6 .................................................................... 6

§22.232.20 ................................................................... 6

45 C. F. R. Part 181 .....................................................22, 32n

Civil Rights Act of 1964, 78 Stat. 241 .......................... 3, 32n

28 U. S. C. §1331 ............................................................. 3n

28 U. S. C. §1343 ......................      3n

42 U. S. C. §1981 .............. ................................................  3n

42 U. S. C. §1983 ............................................................. 3n

42 U. S. C. §2000-c .......... ..... .........................................  32n

42 U. S. C. §2000-d ....... ..................................................  32n

OTHER AUTHORITIES

Black, The Supreme Court, 1966 Term—Foreword: 
“ State Action,” Equal Protection and California’s 
Proposition 14, 81 Harv. L. Rev. 69 (1967) ............... 42n

Campbell, Cunningham and McPhee, The Organiza­
tion and Control of American Schools, 1965 ........13n, 14n

Conant, The American High School Today (1959) .... 44

Dunn, Title VI, The Guidelines and School Desegre­
gation in the South, 53 Va. L. Rev. 42 (1967) .......30n, 32n

Equality of Educational Opportunity: A  Report of 
the Office of Education of the United States Depart­
ment of Health, Education and W elfare..................  21n



Vlll

Meador, The Constitution and the Assignment of 
Pupils to Public Schools, 45 Va. L. Rev. 517 (1959) 14

Mizell, The South Has Genuflected and Held on to 
Tokenism, Southern Education Report, Vol. 3, No.
6 ......................................................................................  23n

Note, The Courts, HEW and Southern School Deseg­
regation, 77 Yale L. J. 321 (1967) ......................... . 32n

Racial Isolation in the Public Schools, Volume I :
A Report of the United States Commission on Civil 
Rights 1967 .................................................   27n

Revised Statement of Policies for School Desegrega­
tion Plans Under Title VI of the Civil Rights Act 
of 1964 ...............................................       22

Southern School Desegregation, 1966-67, a Report 
of the U. S. Commission on Civil Rights, July,
1967 ...............................................................15n, 24n, 26,48n

Survey of School Desegregation in the Southern and 
Border States, 1965-1966, U. S. Commission on Civil 
Rights, February, 1966 ..................................16n, 18n, 24n

U. S. Bureau of the Census. U. S. Census of Popula­
tion: I960 General Population Characteristics, Vir­
ginia. Final Report PC (1)-48B

PAGE

5n



I n the

(tort of tlj£ United States
O ctober T erm , 1967 

No. 695

Charles C. Green , et al.,
Petitioners,

County  S chool B oard of N ew  K ent  Cou nty , 
V irginia, et al.

ON W R IT  OF CERTIORARI TO T H E  U N ITED STATES 

COURT OF APPEALS FOR T H E  FO U R TH  CIRCUIT

BRIEF FOR THE PETITIONERS

Citations to Opinions Below

The District Court filed memorandum opinions on May 
17,1966 and June 28, 1966. Both, unreported, are reprinted 
appendix at pp. 47-48a and 53-61a. The June 12, 1967 Court 
of Appeals opinions, reprinted appendix pp. 63-89a, are 
reported at 382 F. 2d 326 and 338.

Jurisdiction

The judgment of the Court of Appeals was entered 
June 12, 1967, appendix p. 90a. Mr. Justice Black, on 
September 8, 1967, extended time for filing the petition for



2

writ of certiorari until October 10, 1967 (91a). The petition 
for certiorari was filed October 9, 1967 and was granted 
December 11, 1967 (92a). The jurisdiction of this Court 
is invoked under 28 U. S. C. Section 1254(1).

Question Presented

Whether—13 years after Brown v. Board of Education— 
a school board discharges its obligation to conduct a unitary 
non-racial school system, by adopting a freedom of choice 
desegregation plan, where the evidence shows that such plan 
is not likely to disestablish the dual system and where 
there are other methods, no more difficult to administer, 
which would immediately produce substantial desegrega­
tion.

Constitutional Provision Involved

This case involves Section I of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement

Petitioners seek review of the constitutional adequacy 
of a freedom of choice desegregation plan adopted by 
defendant School Board and approved by the Court below 
en banc. Judges Sobeloff and Winter disagreeing with the 
majority opinion.

I. The Pleadings

Petitioners, Negro parents and children of New Kent 
County, Virginia, filed on March 15, 1965, in the United 
States District Court for the Eastern District of Virginia,



3

a class action seeking injunctive relief against the main­
tenance of separate schools for the races. The complaint 
named as defendants the County School Board, its indi­
vidual members, and the Superintendent of Schools.1

The defendants filed, on April 5, 1965, a Motion to Dis­
miss the complaint on the sole ground that it failed to state 
a claim upon which relief could he granted (13a). In an 
order entered on May 5, 1965, the district court deferred 
ruling on the motion and directed the defendants to file 
an answer by June 1, 1965 (14a). Defendants answered as­
serting that plaintiffs were permitted under existing policy 
(the pupil placement law) to attend the school of their 
choice without regard to race, subject only to limitations 
of space and denied that the court had jurisdiction to grant 
any of the relief prayed (21-22a).

Thereafter, to comply with Title VI of the Civil Rights 
Act of 1964, 78 Stat. 241, and regulations of the United 
States Department of Health, Education and Welfare, the 
New Kent County School Board, on August 2,1965, adopted 
a freedom of choice desegregation plan (to be placed into 
effect in the 1966-67 school year) and on May 10, 1966 filed 
copies thereof with the District Court.

1 The action was filed pursuant to 28 U. S. C. §1331 and §1343, 
and 42 U. S. C. §1981 and §1983. The complaint alleged that 
(7-8a):

Notwithstanding the holding and admonitions in Brown v. 
Board of Education, 347 U. S. 483 (1954) and 349 U. S. 294 
(1955), the defendant school board maintains and operates a 
biracial school system. . . .
[that the defendants] ha[d] not devoted efforts toward initiat­
ing non-segregation in the public school system, [and had failed 
to make] a reasonable start to effectuate a transition to a 
racially non-discriminatory school system as under paramount 
law it [was] their duty to do.



4

II. The Plan Adopted by the Board

The plan provides essentially for “permissive transfers” 
for 10 of the 12 grades. Only students eligible to enter 
grades one and eight are required to exercise a choice of 
schools. It provides further that “ any student in grades 
other than grades one and eight for whom a choice is not ob­
tained will be assigned to the school he is now attending.” 2 
It states that no choice will be denied other than for over­
crowding in which case students living nearest the school 
chosen will be given preference (34-40a).

2 By failing to require, at least in its initial year, that every stu­
dent make a choice, the plan permits some students to be assigned 
under the former dual assignment system until approximately 1973. 
Under the plan students entering other than grades one or eight 
who do not exercise a choice are assigned to the school they are 
then attending. Thus, a student, who began school in fall, 1965, 
one year before the plan went into effect and wras therefore assigned 
to a school previously maintained for his race would, unless he 
affirmatively exercised a choice to go elsevffiere, be reassigned there 
for the remainder of his elementary school years. Similarly, stu­
dents who entered high school prior to 1966-67 under the old dual 
assignment system, would, unless they took affirmative action to 
transfer elsewhere, be reassigned to that school until graduation. 
The plan, then, permits some students (those who began at a school 
before it went into effect) to be reassigned for as long as up to 
seven years (in the case of a first grader) to schools to which they 
originally had been assigned on the basis of race. It need hardly 
be said that such a plan— one which fails immediately to abolish 
continued racial assignments or reassignments— may not stand 
under Brown v. Board of Education, 347 U. S. 483 and 349 U. S. 
294. The Fifth Circuit has rejected plans having that effect. See 
United States v. Jefferson County Board of Education, 372 F. 2d 
836, 890-891, aff’d with modifications on rehearing en banc, 380 F. 
2d 385, cert, denied sub nom. Caddo Parish School Board v. United 
States, 389 U. S. 840, 19 L. Ed. 2d 103. We point this out only to 
fully describe the workings of the plan. For overturning the deci­
sion below on this ground would be insufficient to protect petitioners’ 
rights. As we more fully develop later what is objectionable about 
this plan is its employment of free choice assignment provisions to 
perpetuate segregation in an area, where, because of the lack of 
residential segregation, it could not otherwise result.



5

III. The Evidence

New Kent is a rural county in Eastern Virginia, east 
of the City of Richmond. There is no residential segrega­
tion; both races are diffused generally throughout the 
county3 (cf. PX “ A ” and “B ” ; see also the opinion of 
Judge Sobeloff at pp. 72a, 23a).4 There are only two public 
schools in the county: New Kent, the formerly all-white 
combined elementary and high school, and George W. 
Watkins, an all-Negro combined elementary and high school.

Students'.5 During the 1964-1965 school year some 1291 
students (approximately 739 Negroes, 552 whites) were 
enrolled in the school system. There tvere no attendance 
zones. Each school served the entire county. Eleven Negro 
buses canvassed the entire county to deliver 710 of the 
740 Negro pupils to Watkins, located in the western half 
of the county. Ten buses transported almost all of the 
550 white pupils to New Kent in the eastern half (see PX 
“A ” and “B ” and 24a, no. 4).

As the following table6 indicates, the Negro school was 
more overcrowded and had a substantially higher pupil- 
teacher ratio, and larger class sizes than the white school:

3 The Census reports show that the Negro population was sub­
stantially the same in each of the four magisterial districts in New 
Kent County: Black Creek— 479, Cumberland— 637, St. Peters— 
633, and Weir Creek— 565. See U. S. Bureau of the Census. XJ. S. 
Census of Population: 1960 General Population Characteristics, 
Virginia. Pinal Report PC(1)-48B.

4 The prefix “ P X ”  refers to plaintiffs’ exhibits. Exhibits “ A ” and 
“B” show the bus routes for each of the two county schools. Because 
of the difficulty in doing so, they have not been reproduced in the 
appendix. Each exhibit shows the routes travelled by the various 
buses bringing children to that particular school. Each school is 
served by buses that traverse all areas of the county.

5 The information that follows was obtained from defendants’ an­
swers to plaintiffs’ interrogatories (23-33a).

6 The data was compiled from 23-33a, in particular nos. 1-c, 1-f, 
1-g, and 4.



6

N am e o f  School

P up il-
T eacher

R a tio

A v era g e
Class
Size

O vercrow d in g
V arian ce

P rom
C ap acity

(E lem .
Grades

N um ber
B uses

A vera ge  
Pupils 

Per Bus

New Kent
(white) 1-12 ....... 22 21 +  3 7  ( 9 % ) 10 54.8

George W. Watkins 
(Negro) 1-12 28 26 +  118 (28% ) u 64.5

From 1956 through the 1965-66 school year, school assign­
ments of New Kent pupils were governed by the Virginia 
Pupil Placement Act, §22-232.1 et seq. Code of Virginia, 
1950 (1964 Replacement Volume), repealed by Acts of 
Assembly, 1966, c. 590, under which any pupil could request 
assignment to any school in the county; children making no 
request were assigned to the school previously maintained 
for their race.7 The free choice plan the Board adopted 
in August, 1965 was not placed into effect until the 1966- 
1967 school year by which time it had been approved by the 
district court.

Despite their rights under the pupil placement procedure, 
up to and including the 1964-1965 school year no Negro 
pupil ever sought admission to New Kent and no white

7 Section 22-232.20 provided in part:
“ . . . any child who wishes to attend a school other than the 
school which he attended the previous year shall not be eligible 
for placement in a particular school unless application is made 
therefor . . . ”

Section 22-232.6 provided:
“After December 29, 1956, each school child who has heretofore 

attended a public school and who has not moved from the 
county, city or town in which he resided while attending such 
school shall attend the same school which he last attended until 
graduation therefrom unless enrolled for good cause shown, in 
a different school by the Pupil Placement Board.”



7

pupil ever sought admission to Watkins (25a, no. 7). Al­
though, as the following table shows, some Negro students 
have since chosen to attend New Kent, no white pupil has 
ever attended Watkins:

S t u d e n t  B o d y  b y  R a c e 8
Y ear

White
N ew  K ent 

Negro Other White
W a tk in s

Negro Other

1964-65 ..... ..... 552 0 0 0 739 0
1965-66 ...... ... 555 35 0 0 691 0
1966-67 ...... .... 517 111 0 0 628 0
1967-68 .......... 519 115 10 0 621 0

Thus, as late as 13 years after the decision in Brown, 
85% of the Negro students in the county attend school only 
with other Negroes.

Faculty. Teachers’ contracts are for one year only. Until 
the 1966-67 school year, the Board adhered to a policy of 
assigning only white teachers to New Kent and only Negro 
teachers to Watkins. Despite the declarations of the Board, 
its policy has remained essentially unchanged as the fol­
lowing table shows:

F a c u l t y  C o m p o s it io n  b y  R a c e 8 9
N ew  K ent W a tk in s

White Negro White Negro

1964- 65 ____ ___  26 0 0 26
1965- 66 _______  26 0 0 27
1966- 67  ____  28.4 .4 0 27
1967- 68 _______  28 .2 1 29.8

8 The record in this case, like the records in all school desegrega­
tion cases, is necessarily stale by the time it reaches this Court. In 
this case the 1964-65 school year was the last year for which the 
record supplied desegregation statistics. Information regarding stu­
dent and faculty desegregation during the 1965-66, 1966-67 and 
1967-68 school years was obtained from official documents, available 
for public inspection, maintained by the United States Department 
of Health, Education and Welfare. Certified copies thereof and an 
accompanying affidavit have been filed with this Court and served 
upon opposing counsel.

9 This information is taken from the H EW  documents referred 
to in Note 8, supra, and from number 1-f on 24a. Principals, li­
brarians and other non-teaching personnel are not included.



8

In sum, during the current year, 1967-68, faculty in­
tegration consists of the assignment of one full-time white 
(of a total of 30.8 teachers) to Watkins and one part-time 
(the equivalent of one day each week) Negro teacher to 
New Kent. All the full-time teachers at that school are 
stili white.

IV. The District Court’s Decision

On May 4, 1966, the case was tried before the District 
Judge, Hon. John D. Butzner, Jr., who, on May 17, 1966, 
entered a memorandum opinion and order: (a) denying 
defendants’ motion to dismiss, and (b) deferring approval 
of the plan pending the filing by the defendants of “ an 
amendment to the plan [which would provide] for em­
ployment and assignment of staff on a non-racial basis” 
(47-49a).

The Board filed on June 6, 1966, a supplement to its 
plan dealing with school faculties (50a). On June 10, 1966, 
plaintiffs filed exceptions to the supplement contending 
(a) that the supplement failed to provide sufficiently for 
faculty and staff desegregation, and (b) that plaintiffs 
would continue to be denied constitutional rights under 
the freedom of choice plan and that the defendants should 
be required to assign students pursuant to geographic 
attendance areas (52a).

On June 28, 1966, the district court entered a memo­
randum opinion and an order approving the freedom of 
choice plan as amended (53-62a).

V. The Court of Appeals’ Opinion

On appeal to the Court of Appeals for the Fourth Cir­
cuit petitioners contended that in view of the circum­



9

stances in the county, the freedom of choice plan adopted 
by the defendants was the method least likely to accomplish 
desegregation and that the district court erred in ap­
proving it.

On June 12, 1967, the Court, en banc, affirmed the dis­
trict court’s approval of the freedom of choice assign­
ment provisions of the plan, but remanded the case for 
entry of an order regarding faculty “which is much more 
specific and more comprehensive” and which would in­
corporate in addition to a “minimal objective time table,” 
some of the faculty provisions of the decree entered by 
the Fifth Circuit in United States v. Jefferson County 
Board of Education, supra (70-71a).

Judges Sobeloff and Winter concurred specially with 
respect to the remand on the teacher issue but disagreed 
on other aspects. Said Judge Sobeloff (71-72a) :10

I think that the District Court should be directed not 
only to incorporate an objective time table in the 
School Board’s plans for faculty desegregation, but 
also to set up procedures for periodically evaluating 
the effectiveness of the Boards’ “freedom-of-choice” 
plans in the elimination of other features of a segre­
gated school system.

# *  # *  #

. . . Since the Board’s “ Freedom-of-choice” plan has 
now been in effect for two years as to grades 1, 2, 
8, 9, 10, 11 and 12 and one year as to all other grades,

10 This case was decided together with a companion case Bowman 
v. County School Board of Charles City County, Virginia, No. 
10793, for which no review is sought. While the opinion discussed 
herein was rendered in the Charles City ease, it was expressly made 
applicable to New Kent (64 a ); similarly Judge Sobeloff stated that 
his opinion in Charles City applied to New Kent (p. 71a). The 
opinion in the Charles City case is at 65-89a.



10

clearly this court’s remand should embrace an order 
requiring an evaluation of the success of the plan’s 
operation over that time span, not only as to faculty 
but as to pupil integration as well (73a).

While they did not hold, as petitioners had ui’ged, that the 
peculiar conditions in the county made freedom of choice 
constitutionally unacceptable as a tool for desegregation 
they recognized that it was utilized to maintain segregation 
(76-77a) :

As it is, the plans manifestly perpetuate discrimina­
tion. In view of the situation found in New Kent 
County, where there is no residential segregation, the 
elimination of the dual school system and the establish­
ment of a “unitary, non-racial system” could be readily 
achieved with a minimum of administrative difficulty 
by means of geographic zoning-—simply by assigning 
students living in the eastern half of the county to 
the New Kent School and those living in the western 
half of the county to the Watkins School. Although a 
geographical formula is not universally appropriate, 
it is evident that here the Board, by separately busing 
Negro children across the entire county to the “ Negro” 
school, and the white children to the “ white” school, is 
deliberately maintaining a segregated system which 
would vanish with non-racial geographic zoning. The 
conditions in this county represent a classical case for 
this expedient. (Emphasis added.)

While the majority implied that freedom of choice was 
acceptable regardless of result, Judges Sobeloff and Winter 
stated the test thus (79a):



11

“ Freedom of choice” is not a sacred talisman; it is only 
a means to a constitutionally required end—the aboli­
tion of the system of segregation and its effects. If 
the means prove effective, it is acceptable, but if it 
fails to undo segregation, other means must be used 
to achieve this end.

SUMMARY OF ARGUMENT

Brown condemned not only compulsory racial assign­
ments of public school children, but required “ a transition 
to a racially non-discriminatory system.” That goal is not 
achieved if some schools are still maintained or identifiable 
as being for Negroes and others for whites. It cannot be 
achieved until the racial identification of schools, con­
sciously imposed by the state during the era of enforced 
segregation, has been erased. The specific direction in 
Brown II  and general equitable principles require that 
school districts formerly segregated by law, employ af­
firmative action to achieve this end.

If the time for deliberate speed has indeed ended, as this 
Court has said (Note 38, infra), lower courts must now 
fashion decrees which, consistent with educational and 
equitable principles, will speedily and effectively disestab­
lish the dual system thereby achieving the unitary non- 
racial system mandated by the Constitution. That was not 
done here.

Freedom of choice desegregation plans typically leave the 
dual system undisturbed. The overwhelming majority of 
school districts in Brown-affected states have adopted 
such plans (Note 18, infra) and available statistics demon­



1 2

strate that they have not disestablished the dual system 
(infra, pp. 26-27). At best, such plans leave one segment, 
the Negro segment, intact (Ibid.). Yet, most, but not all, 
lower courts have not responded to the obvious: such plans 
are not only wasteful and inefficient, but by nature are in­
capable of effectuating that transition.

Lengthy related experience under the Virginia Pupil 
Placement Law demonstrated that plans under which stu­
dents assign themselves were not likely to disestablish the 
dual system in New Kent County. Petitioners, moreover, 
furnished uncontradicted evidence that another method, 
more feasible to administer would immediately disestab­
lish the dual system. Nonetheless, the Board failed to offer 
any reasons justifying delay in achieving a unitary non- 
racial system. There was no suggestion that administra­
tive difficulties would preclude the division of the county 
into two school attendance areas or the assignment of 
elementary school pupils to one school and high school 
students to the other.

Where alternative means of immediate accomplish­
ment of a unitary non-racial school system are so readily 
available, judicial approval of free choice is constitution­
ally impermissible.



13

A R G U M E N T

I.

Introduction

The question here is whether in the late sixties, a full 
generation of public school children after Brown v. Board 
of E d u c a t io n school boards may employ so-called free­
dom of choice desegregation plans which perpetuate ra­
cially identifiable schools, where other methods, equally or 
more feasible to administer, will more speedily disestab­
lish the dual systems.

Other plans or programs, similarly ineffective where 
adopted, are under review in Monroe v. Board of Com­
missioners of the City of Jackson, Term., No. 740, and 
Raney v. The Board of Education of the Gould School 
District, No. 805.11 12 The controversies in all three cases 
concern the precise point at which a school board has ful­
filled its obligations under Brown; and all three present 
for determination the question whether school districts for­
merly segregated by law must employ affirmative action 
to erase state-imposed racial identification of their schools.

The most marked and widespread innovation in school 
administration in southern and border states in the last 
fifty years has been the change in pupil assignment method 
in the years since Brown,13 from geographic attendance

11 347 U. S. 483 (Brown I )  ■ 349 U. S. 294 (Brown II) .

12 All three cases will be argued together. See 36 U. S. L. W. 3286 
(U. S. Jan. 15,1968).

13 See generally, Campbell, Cunningham and McPhee, The Or­
ganization and Control of American Schools, 1965. ( “As  a conse­
quence of [Brown v. Board of Education, supra], the question of at­
tendance areas has become one of the most significant issues in 
American education of this Century” (at 136).)



14

zones to so-called “ free choice.” Prior to Brown, systems 
in the north and south, with rare exception, assigned pupils 
by zone lines around each school.14

Under an attendance zone system, unless a transfer is 
granted for some special reason, students living in the zone 
of the school serving their grade would attend that school.

Prior to the relatively recent controversy concerning seg­
regation in large urban systems, assignment by geographic 
attendance zones was viewed as the soundest method of 
pupil assignment. This was not without good reason; for 
placing children in the school nearest their home would 
often eliminate the need for transportation, encourage the 
use of schools as community centers and generally facili­
tate planning for expanding school populations.15

In states where separate systems were required by law, 
this method was implemented by drawing around each 
white school attendance zones for whites in the area, and 
around each Negro school zones for Negroes. In many

14 “ In the days before the impact of the Brown decision began to 
be felt, pupils were assigned to the school (corresponding, of course 
to the color of the pupils’ skin) nearest their homes; once the school 
zones and maps had been drawn up, nothing remained but to in­
form the community of the structure of the zone boundaries.”  Ven-
trees Moses v. Washington Parish School Board,------ P. Supp._____
(slip op. 15-16) (E. D. La. 1967), discussed infra, p. 19. See also 
Meador, The Constitution and the Assignment of Pwpils to Public 
School, 4o Va. L. Rev. 517 (1959), “until now the matter has been 
handled rather routinely almost everywhere by marking off geo­
graphical attendance areas for the various buildings. In the South, 
however, coupled with this method has been the factor of race.”

15 Campbell, Cunningham and McPhee, supra, Note 13 at 133- 
144.

By showing that zone assignment was the norm prior to Brown, 
we intend merely to indicate the background against which free 
choice was developed. We do not suggest that the use of zones is 
always the most desirable method of pupil assignment.



15

areas, as in the ease before the Court where the entire 
county was a zone, lines overlapped because there was no 
residential segregation. Thus, in most southern school dis­
tricts, school assignment was largely a function of three 
factors: race, proximity and convenience.

After Brown, southern school boards were faced with 
the problem of “ effectuating a transition to a racially non- 
discriminatory system” (Brown II at 301). The easiest 
method, administratively, was to convert the dual attend­
ance zones into single attendance zones, without regard 
to race, so that assignment of all students would depend 
only on proximity and convenience.16 With rare exception, 
however, southern school boards, when finally forced to 
begin desegregation, rejected this relatively simple method 
in favor of the complex and discriminatory procedures of 
pupil placement laws and, when those were invalidated,17 
switched to what has in practice worked the same way— 
so-called free choice.18

16 Indeed, it was to this method that this Court alluded in Brown 
II  when it stated “  ft] o that end, the courts may consider problems 
related to administration, arising from . . . revision of school dis­
tricts and attendance areas into compact units to achieve a system 
of determining admission to the public schools on a non-racial basis” 
(349 U. S. at 300-301).

17 For cases invalidating or disapproving such laws, see North- 
cross v. Board of Education of the City of Memphis, 302 F. 2d 818 
(6th Cir., 1962); Gibson v. Board of Public Instruction of Dade 
County, 272 F. 2d 763 (5th Cir., 1959) ; Manning v. Board of 
Public Instruction of Hillsboro County, 277 F. 2d 370 (5th Cir., 
1960); Dove v. Parham, 282 F. 2d 256 (8th Cir., 1960).

18 According to the Civil Rights Commission, the vast majority of 
school districts in the south use freedom of choice plans. See 
Southern School Desegregation, 1966-67, A  Report of the U. S. 
Commission on Civil Rights, July, 1967. The report states, at pp. 
45-46:

Free choice plans are favored overwhelmingly by the 1,787 
sehool districts desegregating under voluntary plans. A ll such



16

In Virginia, the freedom of choice concept was resorted 
to after the state’s “ massive resistance” 19 measures had 
failed.20 The Pupil Placement Board, first created by legis­
lation approved September 29, 195621 placed no Negro child 
in any white school until after the June 28, 1960 decision in 
Farley v. Turner, 281 F. 2d 131 (4th Cir.). During the 
next two years, 1960-61 and 1961-62, that board conducted 
individual hearings in the cases of those Negro children 
and their families who, having protested against assign­
ments to Negro schools and having had the fact of such

districts in Alabama, Mississippi, and South Carolina, without 
exception, and 83% of such districts in Georgia have adopted 
free choice plans. . . .
The great majority of districts under court order also are 
employing “ freedom of choice.”

See also Survey of School Desegregation in the Southern and 
Border States, 1965-1966, United States Commission on Civil 
Rights, February, 1966, at p. 47.

19 In National Association for the Advancement of Colored Peo­
ple v. Patty, 159 F. Supp. 503, 511, Judge Soper discusses the 
legislative history of the massive resistance program.

20 The State statute requiring the closing of any public school 
wherein both white and Negro children might otherwise be enrolled 
was invalidated on January 19, 1959 in Harrison v. Day, 200 Va. 
439,106 S. E. 2d 636. See also, Janies v. Almond, 170 F. Supp. 331 
(E. D. Va. 1959) (three-judge cou rt); but not until after one or 
more schools had been closed in Norfolk (see James v. Almond, 170 
F. Supp. 331) (E. D. Va. 1959), in Charlottesville (see School 
Board of City of Charlottesville v, Allen, 263 F. 2d 295 (4th Cir. 
1959)) and in Warren County (see Governor’s proclamation re­
ported in 3 Race Rel. L. Rep. 972); and the threat of closed schools 
had effectively deterred desegregation in Arlington County (see 
Hamm v. County School Board of Arlington County, 264 F. 2d 945, 
946 (4th Cir. I960)).

21 Chapter 70, Acts of Assembly, 1956, Extra Session, codified as 
§22-232.1 et seq. of the Code of Virginia 1950, 1964 Repl. Vol. 
(repealed by Acts 1966, c. 590).



17

protest publicized in the local newspaper, were subjected 
to tests and other criteria not required of white children. 
The unconstitutionality of such discriminatory practices 
was declared in Green v. School Board of the City of 
Roanoke, 304 F. 2d 118 (4th Cir. 1962) and Marsh v. County 
School Board of Roanoke County, 305 F. 2d 94 (4th Cir. 
1962). Thereafter,22 the timely applications for the assign­
ment of Negro children to named schools attended by their 
white neighbors were routinely granted23 except in a few 
communities where boundaries for school attendance zones 
have been drawn around racially segregated residential 
areas.24

Under so-called free choice students are allowed to at­
tend the school of their choice. Most often they are per­
mitted to choose any school in the system. In some areas, 
they are permitted to choose only either the previously 
all-Negro or previously all-white school in a limited geo­
graphic area. Not only are such plans more difficult to 
administer (choice forms have to be processed and stand­
ards developed for passing on them, with provision for

22 See United States v. County School Board of Prince George 
County, Va., 221 F. Supp. 93, i05 (E. D. Ya. 1963), viz.: “ The 
Pupil Placement Board suggested in oral argument that this suit 
is premature because recently the Board has adopted a policy of 
assigning Negro applicants to schools attended by white children 
without regard to academic achievement or residence requirements 
different from those required of white children.”  (Emphasis 
added.)

23 See, e.g., Pettaway v. County School Board of Surry County, 
Virginia, 230 F. Supp. 480 (E. D. Va. 1964), modified and re­
manded, 339 F. 2d 486 (4th C ir .) ; Franklin v. County School 
Board of Giles County, Virginia, 242 F. Supp. 371 (W. D. Va. 
1965) reversed 360 F. 2d 325 (4th Cir. 1966).

24 See, e.g., Gilliam v. School Board of the City of Hopewell, 
Virginia, 345 F. 2d 325 (4th Cir. 1965), remanded 382 U. S. 103 
(1965).



18

notice of the right to choose and for dealing with students 
who fail to exercise a choice),25 they are, in addition,—as 
experience demonstrates ( in fra  pp. 25-27)— far less likely 
to disestablish the dual system.

25 Section II of the decree appended by the United States Court 
of Appeals for the Fifth Circuit, to its recent decision in United 
States v. Jefferson County Board of Education, 372 F. 2d 836, aff’d 
with modification on rehearing en banc, 380 F. 2d 385, cert, denied 
sub norn. Caddo Parish School Board v. United States, 389 U. S. 
840, 19 L. Ed. 2d 103, shows the complexity of such plans. That 
Court had previously described such plans as a “ haphazard basis” 
for the administration of schools. Singleton v. Jackson Municipal 
Separate School District, 355 F. 2d 865, 871 (5th Cir. 1966).

Under such plans generally, and under the plan in this case, 
school officials are required to mail (or deliver by way of the 
students) letters to the parents informing them of their rights to 
choose within a designated period, compile and analyze the forms 
returned, grant and deny choices, notify students of the action 
taken and assign students failing to choose to the schools nearest 
their homes. Virtually each step of the procedure, from the initial 
letter to the assignment of students failing to choose, provides an 
opportunity for individuals hostile to desegregation to forestall its 
progress, either by deliberate mis-performance or non-performance. 
The Civil Rights Commission has reported on non-compliance by 
school authorities with their desegregation plans:

In Webster County, Mississippi, school officials assigned on a 
racial basis about 200 white and Negro students vfhose freedom 
of choice forms had not been returned to the school office, even 
though the desegregation plan stated that it was mandatory 
for parents to exercise a choice and that assignments would be 
based on that choice [footnote omitted]. In McCarty, Missouri 
after the school board had distributed freedom of choice forms 
and students had filled out and returned the forms, the board 
ignored them.

Survey of School Desegregation in the Southern and Border States, 
1965-1966, at p. 47. Given the other shortcomings of free choice 
plans, there is serious doubt whether the constitutional duty to effect 
a non-racial system is satisfied by the promulgation of rules so sus­
ceptible of manipulation by hostile school officials. As Judge So- 
beloff has observed:

A procedure which might well succeed under sympathetic ad­
ministration could prove woefully inadequate in an antagonis­
tic environment.

Bradley v. School Board of the City of Richmond, 345 F. 2d 310 
(4th Cir. 1965) (concurring in part and dissenting in part).



19

Only recently a district court, in what has proved to be 
the most important judicial scrutiny of free choice plans,
observed (Moses v. Washington Parish School Board, -------
F. Supp. —-— (E. D. La., October 19, 1967):

Free choice systems, as every southern school official 
knows, greatly complicate the task of pupil assign­
ment in the system and add a tremendous workload
to the already overburdened school officials (------  F.
Supp. ------ ; Slip Op. 15).

* * * * *

If this Court must pick a method of assigning stu­
dents to schools within a particular school district, 
barring very unusual circumstances, we could imagine 
no method more inappropriate, more unreasonable, 
more needlessly wasteful in every respect, than the 
so-called “ free-choice” system. (Emphasis added.) 
(Id. at 21)

* * * * *

Under a “ free-choice” system, the school board can­
not know or estimate the number of students who will 
want to attend any school, or the identity of those 
who will eventually get their choice. Consequently, 
the board cannot make plans for the transportation of 
students to schools, plan curricula, or even plan such 
things as lunch allotments and schedules; moreover, 
since in no case except by purest coincidence will an 
appropriate distribution of students result, and each 
school will have either more or less than the number 
it is designed to efficiently handle, many students at 
the end of the free-choice period have to be reassigned 
to schools other than those of their choice—this time 
on a strict geographical-proximity basis, see the Jeffer­



20

son County decree, thus burdening the board, in the 
middle of what should be a period of firming up the 
system and making final adjustments, with the awe­
some task of determining which students will have to 
be transferred and which schools will receive them. 
Until that final task is completed, neither the board 
nor any of the students can be sure of which school 
they will be attending; and many students will in the 
end be denied the very “ free choice” the system is 
supposed to provide them. (Id. at 21-22)

Although the court never explicitly answers its own ques­
tion—why was the Washington Parish Board willing to 
undergo the uncertainty and unreasonable burdens imposed 
by such a system (slip. op. at 21-22)—it ordered the aban­
donment of free choice and, in its place the institution of 
a geographical zoning plan.26

Under free choice plans, the extent of actual desegre­
gation varies directly with the number of students seek-

26 As we more fully develop infra pp. 23-25, we think the answer 
obvious: that the Washington Parish Board, and indeed most- 
boards, adopted free choice knowing and intending that it would 
result in fewer Negro students in white schools and, conversely, 
fewer (if any at all) white students in Negro schools, than would 
otherwise result under a rational non-racial system o f pupil assign­
ment.

To be sure, a free choice plan might make some sense, as Judge 
Heebe recognized, in the context of grade by grade desegregation 
and where all grades in a given building had not yet been reached 
(Id. at 18-19). In such circumstances, it might indeed have been 
easier to assign by “choices” rather than have to draw new zones for 
each building each time a new grade level was reached under the 
plan. But, as Judge Heebe pointed out, “ the usefulness of such 
plans logically ended with the end of the desegregation process 
[when the plan reached all grades]” (Ibid.). Thus, even conceding 
some interim usefulness for free choice, in some other situation, it 
was entirely out of place in New Kent County which desegregated 
all grades at the time the plan was approved and which had but two 
schools.



21

mg, and actually being permitted to transfer to schools 
previously maintained for the other race. It should have 
been obvious, however, that white students—in view of 
general notions of Negro inferiority and that far too often 
Negro schools are vastly inferior to those furnished whites27 
—would not transfer to formerly Negro schools; and, in­
deed, very few have.28 Thus, from the beginning the burden 
of disestablishing the dual system under free choice was 
thrust upon the Negro children and their parents, despite 
this Court’s admonition in Brown II (349 U. S. 294, 299) 
that “ school authorities had the primary responsibility.” 
That is what happened in this case. Although the majority 
stated that (66a):

The burden of extracting individual pupils from dis­
criminatory, racial assignments may not be cast upon 
the pupils or their parents [and that] it is the duty

27 Watkins, the Negro school in New Kent County was more over­
crowded and had substantially larger class sizes and teacher-pupil 
ratios than did the white school. (See p. 6, supra.)
The Negro schools in the South compare unfavorably to white 
schools in other important respects. In Equality of Educational 
Opportunity, a report prepared by the Office of Education of the 
United States Department of Health Education and Welfare pur­
suant to the Civil Rights Act of 1964, the Commissioner states, con­
cerning Negro schools in the Metropolitan South (at p. 206) :

The average white attends a secondary school that, compared 
to the average Negro is more likely to have a gymnasium, a 
foreign language laboratory with sound equipment, a cafeteria, 
a physics laboratory, a room used only for typing instruction, 
an athletic field, a chemistry laboratory, a biology laboratory, 
at least three movie projectors.

Essentially the same was said of Negro schools in the non-metropoli­
tan South (Id. at 210-211). It is not, surprising, therefore, quite 
apart from race, that white students have unanimously refrained 
from choosing Negro schools.

28 “During the past school year, as in previous years, white stu­
dents rarely chose to attend Negro schools.”  Southern School De­
segregation, 1966-67 at p. 142, United States v. Jefferson County 
Board of Education, supra, 372 F. 2d at 889.



22

of the school boards to eliminate the discrimination 
which inheres in such a system [,]

the very plan the court approved did just that. To be sure 
each pupil was given the unrestricted right to attend any 
school in the system. But, as previously noticed, desegre­
gation never occurs except by transfers by Negroes to 
the white schools. Thus, the freedom of choice plan ap­
proved below, like all other such plans, placed the burden 
of achieving a single system upon Negro citizens.

The fundamental premise of Brown I was that segrega­
tion in public education had very deep and long term 
effects. It was not surprising, therefore, that individuals 
reared in that system and schooled in the ways of sub­
servience (by segregation, not only in schools, but in every 
other conceivable aspect of human existence) when asked 
to “make a choice,” chose, by inaction, that their children 
remain in the Negro schools. In its Revised Statement of 
Policies for School Desegregation Plans Under Title VI 
o f  the Civil Rights Act of 1964 (hereinafter referred to as 
Revised Guidelines), the Department of Health, Education 
and Welfare states (45 C.F.R. Part 181.54):

A free choice plan tends to place the burden of 
desegregation on Negro or other minority group stu­
dents and their parents. Even when school authorities 
undertake good faith efforts to assure its fair opera­
tion, the very nature of a free choice plan and the 
effect of longstanding community attitudes often tend 
to preclude or inhibit the exercise of a truly free choice 
by or for minority group students. (Emphasis added.)

Beyond that, by making the Negro’s exercise of choice the 
critical factor upon which the conversion depended, school



23

authorities virtually insured its failure. Every community 
pressure militates against the affirmative choice by Negro 
parents of white schools.29 Moreover, intimidation of Ne­
groes, a weapon well-known throughout the south, could 
equally be employed to deter them from seeking transfers 
to white schools. At best, school officials must have rea­
soned, only a few hardy souls would venture from the 
more comfortable atmosphere of the Negro school, with 
their all-Negro faculties and staff.30 Those that “dared,” 
would soon be taught their place.31

29 Compare the following (M. Hayes Mizell, The South Has Gen­
uflected and Held on to Tokenism, Southern Education Report, Vol. 
3, No. 6 (January/February, 1968), at p. 19) :

Freedom of choice . . . has not brought significant school deseg­
regation . . . simply because it is a policy which has proved too 
fragile to withstand the political and social forces of Southern 
life. The advocates of freedom of choice assumed that school 
desegregation would somehow be insulated from these forces 
while, in reality, it was central to them.

In embracing the freedom of choice plan Southern school 
systems understood, even if H EW  did not, that man’s choices 
are not made within a vacuum, but rather they are influenced 
by the sum of his history and culture.

Negro students who choose white schools are, as we know from 
many eases, only Negroes of exceptional initiative and fortitude.” 
United States v. Jefferson County Board of Education, supra 372 
F. 2d at 889.

31A good example is Coppedge v. Franklin County Board of 
Education, 273 F. Supp. 289 (E. D. N. C. 1967), appeal pending, 
.he Court found that there was marked hostility to desegregation 
m Franklin County, that Negroes had been subjected to violence, 
intimidation and reprisals, and that each successive year under the 
freedom of choice plan it had approved earlier had resulted in 
fewer requests by Negroes for reassignment to formerly all-white 
schools. Concluding that (Id. at 296) :

Community attitudes and pressures . . . have effectively inhib­
ited the exercise of free choice of schools by Negro pupils and 
their parents

the ( 'onrt directed that the defendants
prepare and submit to the Court, on or before October 15th. 
1967, a plan for the assignment, at the earliest practicable date’



24

Nor were they mistaken. The Civil Rights Commission, 
in its most recent reports on school desegregation in 
B row n-affected states, reports exhaustively of the violence, 
threats of violence and economic reprisals to which Ne­
groes have been and are subjected to deter them from 
placing their children in white schools.32 That specific

of all students upon the basis of a unitary system of non-racial 
geographic attendance zones, or a plan for the consolidation of 
grades, or schools, or both (Id. at 299-300).

32 Southern School Desegregation, 1966-67 at pp. 45-69; Survey 
of School Desegregation in the Southern and Border States, 1965- 
66, at pp. 55-66. To relate but a few of the numeroiis instances of 
intimidation upon which the Commission reported: the 1966-67 
study quotes the parents of a 12 year old boy in Clay County, 
Mississippi as saying (at p. 48) :

white folks told some colored to tell us that if  the child went 
[to a white school] he wouldn’t come back alive or wouldn’t 
come back like he went.

In Edgecombe County, North Carolina, the home of a Negro couple 
whose son and daughter were attending the formerly all-white 
school was struck by gunfire (50). In Dooly County, Georgia, the 
father of a 14 year old boy, who had filled out his own form and 
attended the formerly white school, reported that “ that Monday 
night the man [owner] came and said ‘I want my damn house by 
Saturday’ ” (52).

The Commission made the following findings, in its 1966-67 re­
port (atp. 88) :

6. Freedom of choice plans, which have tended to perpetu­
ate racially identifiable schools in the Southern and Border 
States, require affirmative action by both Negro and white 
parents and pupils before such disestablishment can be 
achieved. There are a number of factors which have prevented 
such affirmative action by substantial numbers of parents and 
pupils of both races:

(a) Fear of retaliation and hostility from the white com­
munity ..  .

(b) [V]iolence, threats of violence and economic reprisal by 
white persons, [and the] harassment of Negro children by 
white classmates .. .

(e) [improper influence by public officials].
(footnote continued on following page)



25

With rare exception, then, school officials adopted, and 
the lower courts condoned, free choice knowing that it 
would produce fewer Negro students in white schools, and 
less injury to white sensibilities than under the geographic 
attendance zone method. Their expectations were justified. 
Meaningful desegregation has not resulted from the use of 
free choice. Even when Negroes have transferred, how­
ever, desegregation has been a one-way street—a few 
Negroes moving into the white schools, but no whites trans­
ferring to Negro schools. In most districts, therefore, as 
here, the vast majority of Negro pupils continue to attend 
school only with Negroes.

Although the proportion of Negroes in all-Negro schools 
has declined since Brown, more Negro children are now 
attending such schools than in 1954.33 Indeed, during the 
1966-67 school year, a full 12 years after Brown, more 
than 90% of the almost 3 million Negro pupils in the 11 
Southern states still attended schools which were over 
95% Negro and 83.1% were in schools which were 100% 
Negro.34 And, in the case before the Court, 85% of the 
Negro pupils in New Kent County still attend schools with

episodes do not occur to particular individuals hardly pre­
vents them from learning of them and acting on that knowl­
edge.

(d) Poverty. . . . Some Negro parents are embarrassed to 
permit their children to attend such schools without suitable 
clothing. In some districts special fees are assessed for courses 
which are available only in the white schools;

(e) Improvements . . . have been instituted in all-Negro 
schools . . .  in a manner that tends to discourage Negroes from 
selecting white schools.

33 Southern School Desegregation, 1966-67, at p. 8.
34 U. at 103.



26

only Negroes. “ This June, the vast majority of Negro 
children in the South who entered the first grade in 1955, 
the year after the Brown decision, were graduated from 
high school without ever attending a single class with a 
single white student.” 35 Thus, as the Fifth Circuit has 
said, “ [f]or all but a handful of Negro members of the 
High School Class of 1966, this right [to equal educational 
opportunities with white children in a racially non-dis- 
criminatory public school system] has been ‘of such stuff 
as dreams are made on.’ ” 36

In its most recent report, the Civil Rights Commission 
states (Southern School Desegregation, 1966-67, at p. 3):

. . . the slow pace of integration in the Southern and 
border states was attributable in large measure to the 
fact that most school districts in the South had adopted 
so-called “ free choice plans” as the principal method 
of desegregation . . .

* * * * *
The review of desegregation under freedom of choice 
plans contained in this report, and that presented in 
last year’s Commission’s survey of southern school de- 
segregation, shows that the freedom of choice plan is 
inadequate in the great majority of cases as an in­
strument for disestablishing a dual school system. Such 
plans have not resulted in desegregation of Negro 
schools and therefore perpetuate one-half of the dual 
school system virtually intact (Id. at 94).

# #  # *  #

35 Id. at 90-91.

36 United States v. Jefferson County Board of Education, supra, 
372 F. 2d 836 at 845.



27

Freedom of choice plans . . . [have] failed to dis­
establish the dual school systems in the Southern and 
border states . . . [Id. at 3],37

II.

A Freedom of Choice Plan Is Constitutionally Unac­
ceptable Where There Are Other Methods, No More 
Difficult to Administer, Which Would More Speedily 
Disestablish the Dual System.

The duty of a school board under Brown, in the late 
sixties is to adopt that plan which will most speedily ac­
complish the effective desegregation of the system. By 
now, the time for “deliberate speed” has long run out.38 We 
concede that a court should not enforce its will where

37 HEW has apparently reached the same conclusion. According 
to the Director of its Office of Civil Rights, F. Peter Libassi, “ [free­
dom of choice] . . . often doesn’t finish the job of eliminating the 
dual school system. We had to follow the freedom of choice plan 
to prove its ineffectiveness, and this was the year that it did prove 
its ineffectiveness, so that now we’re ready to move into the next 
phase.” N. Y. Times, Sept. 24, 1967, at p. 57. And, in the Palm 
Beach Post-Times of Oct. 8, 1967 at p. B-7, he was reported to have 
said, “you can’t eliminate the dual system by free choice.”

In an earlier report, Racial Isolation in the Public Schools, the 
Civil Rights Commission observed (at p. 69) that, “ . . . the degree 
of school segregation in these free-choice systems remains high,” and 
concluded that (ibid.) : “ only limited school desegregation has been 
achieved under free choice plans in Southern and Border city school 
systems.”

38 Almost two years ago this Court stated, “ more than a decade 
has passed since we directed desegregation of public school facilities 
with all deliberate speed. . . . Delays in desegregating school systems 
are no longer tolerable.”  Bradley v. School Board of The City of 
Richmond, 382 U. S. 103, 105. “ There has been entirely too much 
deliberation and not enough speed . . . ”  Griffin v. County School 
Board of Prince Edward County, 377 U. S. 218, 229. “ The time for 
more ‘deliberate speed’ has run out . . . ”  Id. at 234. Cf. Waison 
v. Memphis, 373 U. S. 526, 533.



2 8

alternative methods are not likely to produce dissimilar 
results—that much discretion should still be the province 
of the school board. We submit, however, that a court may 
not—at this late date, in the absence of persuasive evidence 
showing the need for delay—permit the use of any plan 
other than that which will most speedily and effectively 
disestablish the dual system. Put another way, at this point, 
that method must be mandated which will do the job more 
quickly and effectively.

A. The Obligation of a School Board Under Brown v.
Board of Education Is to Disestablish the Dual 
School System and to Achieve a Unitary, Non-racial 
System.

1. The Fourth Circuit’s Adherence to Briggs.

At bottom, this controversy concerns the precise point 
at which a school board has fulfilled its obligations under 
Brown I and II. When free choice plans initially were con­
ceived, courts generally adhered—mistakenly, we submit— 
to the belief that it was sufficient to permit each student an 
unrestricted free choice of schools. It was said that “ de­
segregation” did not mean “ integration” and that the 
availability of a free choice of schools, unencumbered by 
violence and other restrictions, was sufficient quite apart 
from whether any integration actually resulted. (The doc­
trine probably had its genesis in the now famous dictum 
of Judge Parker in Briggs v. Elliot, 132 F. Supp. 776, 777 
(E. D. S. C. 1955), “ The Constitution . . . does not require 
integration. It merely forbids segregation.” 39) Despite

, „ J eer,?en,erally Jeffers v. Whitley, 309 F. 2d 621, 629 (4th Cir. 
1962); Borders v. Hippy, 247 F. 2d 268, 271 (5th Cir. 1957); Boson 
v. Rippy, 28o F. 2d 43, 48 (5th Cir. 1960); Vich v. Board of Edu­
cation of Obion County, 205 F. Supp. 436 (W. D. Tenn. 1962):
9UQ 99t w ° {  Education of the City of Nashville, 270 F. 2d zuu, ZZU (6th Cir. 1959).



29

its protestations, the majority below manifested much of 
this thinking (66-67a, 68a):

Employed as descriptive of a system of permissive 
transfers out of segregated schools in which the initial 
assignments are both involuntary and dictated by racial 
criteria [freedom of choice], is an illusion and an op­
pression which is constitutionally impermissible . . . 
Employed as descriptive of a system in which each 
pupil, or his parents, must annually" exercise an un­
inhibited choice, and the choices govern the assign­
ments, it is a very different thing.

Since the plaintiffs here concede that their annual 
choice is unrestricted and unencumbered, we find in its 
existence no denial of any constitutional right not to be 
subjected to racial discrimination. [Emphasis added.]

At no point in its opinion did the majority meet the 
essence of petitioners’ claim—that in view of related ex­
perience under the pupil placement law, there was no good 
reason to believe that free choice would, in fact, desegre­
gate the system and that the district court should have 
mandated the use of geographic zones which, on the evidence 
before it, would produce greater desegregation. The opin­
ion, in true Briggs form, neither states nor implies a re­
quirement that the plan actually “work.” The most it can be 
read to say is that while Negroes rightfully may complain 
if extraneous circumstances inhibit the making of a “ truly 40

40 Contrary to the court’s statement, the plan did not require 
that “each pupil or his parents must annually exercise [a] choice.” 
See Note 2, supra.



30

free choice,” they have no basis to complain and the Con­
stitution is satisfied if no such circumstances are shown.41

2. Brown Contemplated Complete Reorganization.

The notion that the making available of an ostensibly 
unrestricted choice satisfies the Constitution, quite apart 
from whether significant numbers of white students choose 
Negro schools or Negro students white schools, is funda­
mentally inconsistent with Brown I and II, Bolling v. 
Sharpe, 347 U. S. 497, Cooper v. Aaron, 358 U. S. 1, Brad­
ley v. School Board of the City of Richmond, 382 U. S. 103 
and other decisions of this Court.41 42 Brown, in our view, 
condemned not only compulsory racial assignments but 
also, more generally, the maintenance of a dual public 
school system based on race—where some schools are 
maintained or identifiable as being for Negroes and others 
for whites. It presupposed major reorganization of the 
educational systems in affected states. The direction in 
Brown II, to the district courts demonstrates the thorough­

41 This is not an overharsh reading of the opinion. Only recently 
a writer observed:

The Fourth is apparently the only circuit of the three that 
continues to cling to the doctrine of Briggs v. Elliot, and em­
braces freedom of choice as a final answer to school desegrega­
tion in the absence of intimidation and harassment.

®ee Punn> Title VI, The Guidelines and School Desegregation in 
the South, 53 Va. L. Rev. 42 72 (1967). Judge Sobeloff perceived 
tiiis and exhorted the majority to “move out from under the in- 
cubus of the Briggs v. Elliot dictum and take [a] stand beside the 
fifth  and Eighth Circuits” (89a). Cf. Swann v. Charlotte Meck­
lenburg Board of Education, 369 P. 2d 29 (4th Cir. 1966) where 
essentially the same philosophy— that a desegregation plan need not 
result m actual integration—was expressed in a case involving geo­
graphic zones.

n Paul> 382 U- s - 198; Calhoun v. Latimer, 377
} f  , 2” 3 >, v- County School Board of Prince Edward
County, 3 u  L. S. 218 • Goss v. Board of Education, 373 U. S. 683.



31

ness of the reorganization envisaged. They were held to 
consider:

problems related to administration, arising from the 
physical condition of the school plant, the school trans­
portation system, personnel, revision of school districts 
and attendance areas into compact units to achieve a 
system of determining admission to the public schools 
on a non-racial basis, and revision of local laws and 
regulations which may be necessary in solving the 
foregoing problems (349 U. S. at 300-301).43

If a “ racially non-discriminatory system” could be 
achieved with Negro and white students continuing as be­
fore to attend schools designated for their race, none of the 
quoted language was necessary. It would have been suffi­
cient merely to say “ compulsory racial assignments shall 
cease.” But the Court did not stop there. It ordered, rather, 
a pervasive reorganization which would transform the sys­
tem into one that was “unitary and non-racial,” one, in other 
words, in which schools would no longer be identifiable as 
being for Negroes or whites.

That students have been permitted to choose a school 
does not destroy its racial identification if it previously 
was designated for one race, continues to serve students of, 
and is staffed solely by, teachers of that race. The only 
way the racial identification of a school—consciously im­
posed by the state during the era of enforced segregation 
—can be erased is by having it serve students of both races, 
through teachers of both races. Only when racial identifica­
tion of schools has thus been eliminated will the dual sys­
tem have been disestablished.

43 Much the same was implied in Cooper v. Aaron, supra, at 358 
U- S- I : “state authorities were thus duty bound to devote every 
effort toward initiating desegregation . . . ”



32

3. Case and Statutory Law.

44 Dissatisfied with the snail’s pace of southern school desegrega­
tion (caused mainly by the early approval by the lower courts of 
pupil placement laws and, when they were invalidated as admin­
istered, by judicial acceptance of free choice), Congress enacted 
Titles IV (42 U. S. C. 2000-c et seq.) and VI (42 U. S. C. 2000-d 
et seq. (1964)) of the Civil Eights Act of 1964.

Pursuant to Title VI, the Department of Health, Education and 
Welfare adopted a series of “ Guidelines,” for school districts de­
segregating pursuant to Brown. In its most recent— the Revised 
Guidelines, dated December, 1966—the Department has taken the 
position that desegregation plans must wTork—result in actual in­
tegration. Under these Guidelines, the Commissioner has the power, 
where the results under a free choice plan continue to be unsatis­
factory, to require, as a precondition to the making available of 
further federal funds, that the school system adopt a different type 
of desegregation plan. Revised Guidelines, 45 CFR 181.54. Al­
though administrative regulations propounded under Title VI of 
the Civil Eights Act of 1964 are not binding on courts determining 
private rights under the Fourteenth Amendment, nonetheless they 
are entitled to great weight in the formulation by the judiciary 
of constitutional standards. See Skidmore v. Swift <& Co., 323 
U. S. 134, 137, 139-140; United States v. American Trucking 
Associations, Inc., 310 U. S. 534; Norwegian Nitrogen Products Co. 
v. United States, 288 U. S. 294; United States v. Jefferson County 
Board of Education, supra, 380 F. 2d at 390.

That HEW accepts free choice plans as establishing the eligibility 
of a district for federal aid does not, of course, mean that such 
plans are constitutional. The available evidence indicates that 
HEW has approved such plans, despite the massive evidence of 
their inability to disestablish the dual system, only because they 
have received approval in the courts. It feels, perhaps properly, 
that it may not enforce requirements more stringent than those 
imposed by the Fourteenth Amendment, Cf. 45 CFR 181.2(1) and 
181.6 which provide, in effect, that districts under court order are 
eligible for aid. See also, the materials collected in Dunn, Title VI, 
The Guidelines and School Desegregation in the South, 53 Va. L. 
Rev. 42 (1967); Note, The Courts, H EW  and Southern School De­
segregation, 17 Yale L. J. 321 (1967). Change then must come from 
the courts.

46 In the Sixth Circuit, see Brenda K. Monroe v. Board of Com­
missioners of the City of Jackson, Tenn., 380 F. 2d 955 (1967),

Decisional and statutory44 law support this reading of
B ro w n . Only two—the Fourth and the Sixth45—of the six



33

circuits which have spoken to the question have taken the 
position that a desegregation plan need not “work”—that 
is disestablish the dual system by destroying racial iden­
tification of schools. In United States v. Jefferson County 
Board of Education, 372 F. 2d 836 (5th Cir. 1966) aff’d 
with modifications on rehearing en banc, 380 F. 2d 385 
(1967), cert. den. sub nom. Caddo Parish School Board 
v. United States, 389 U. S. 840, the Fifth Circuit, in what 
has so far been the most thorough judicial examination of 
school desegregation, specifically rejected the Briggs theory 
that Brown I and the Constitution do not require integra­
tion but only an end to enforced segregation. Concluding 
that “ integration” and “ desegregation” mean one and the 
same thing, the court used the terms interchangeably to 
mean the achievement of a “ unitary non-racial [school] 
system.”  Judge Wisdom analyzed the problem (372 F. 2d 
836, 866):

We do not minimize the importance of the Fourteenth 
Amendment rights of an individual, but there was more 
at issue in Brown than the controversy between cer­
tain schools and certain children. Briggs overlooks the 
fact that Negroes are collectively harmed when the 
state by law or custom operates segregated schools 
or a school system with uncorrected effects of segre­
gation.

* =* * * *
What is wrong about Briggs is that it drains out of 
Brown that decision’s significance as a class action to 
secure equal educational opportunities for Negroes by

now under review in No. 740 and Kelley v. Board of Education of 
the City of Nashville, Term., 270 F. 2d 209 (6th Cir. 1959).



34

compelling the states to reorganize their public school 
systems (Id. at 865).

He concluded (Id. at 866):

Segregation is a group phenomenon . . . Adequate 
redress therefore calls for much more than allowing 
a few Negro children to attend formerly white schools: 
it calls for liquidation of the state’s system of de jure 
school segregation and the organized undoing of the 
effects of past segregation.

* * * * *
. . . the only adequate redress for a previously overt 
system-wide policy of segregation directed at Negroes 
as a collective entity is a system wide policy of in­
tegration (Id. at 869). (Emphasis in original.) 

* * * * *
We use the terms “ integration” and “desegregation” 
of formerly segregated public schools to mean the 
conversion of a de jure segregated dual system to a 
unitary, non-racial (non-discriminatory) system—lock, 
stock and barrel; students, faculty, staff, facilities, pro­
grams and activities (Id. at 846, Note 5).46

On rehearing en banc, the majority, while reaffirming 
the panel opinion, put it this way (380 F. 2d 385, 389);

16 The Court held that- school officials in formerly de jure systems 
have ‘‘an absolute duty to integrate, in the sense that a dispropor­
tionate concentration of Negroes in certain schools cannot be ig­
nored” (372 F. 2d 836, 846). The test for any school desegregation 
plan, said the court, is whether it achieves the “substantial inte­
gration” which is constitutionally required and that a plan not ac­
complishing that result must be abandoned and another substi­
tuted (Id. at 895-896).



35

[School] Boards and officials administering public 
schools in this circuit [footnote omitted] have the af­
firmative duty under the Fourteenth Amendment to 
bring about an integrated unitary school system in 
which there are no Negro schools and no white schools 
—just schools. Expression in our earlier opinions dis­
tinguishing between integration and desegregation 
[footnote omitted] must yield to this affirmative duty 
we now recognize. In fulfilling this duty it is not 
enough for school authorities to offer Negro children 
the opportunity to attend formerly all-white schools. 
The necessity of overcoming the effects of the dual 
system in this circuit requires integration of faculties, 
facilities and activities, as well as students.47 (Em­
phasis added.)

Most of the other circuits have joined the Fifth Circuit 
in requiring that school boards employ affirmative action 
to “undo” the racial segregation they had previously cre­
ated and that desegregation plans “work”—result in inte-

47 Even before Jefferson, the Fifth Circuit had said (Singleton v. 
Jackson Municipal Separate School District, 355 F. 2d 865, 869 
(1966)) :

The Constitution forbids unconstitutional state action in the 
form of segregated facilities, including segregated public 
schools. School authorities, therefore, are under the constitu­
tional compulsion of furnishing a single, integrated school 
system . . . .
This has been the law since Brown v. Board of Education . . . .  
Misunderstanding of this principle is perhaps due to the pop­
ularity of an over-simplified dictum that the constitution “ does 
not require integration.”

And in an earlier stage of the same case: “Judge Parker’s well- 
known dictum . . . should be laid to rest.” 348 F. 2d 729, 730 
(1965).

X.



36

gration sufficient to disestablish the prior state-imposed 
racial identification of schools. In Kemp v. Beasley, 352 
F. 2d 14, 21 (1965), the Eighth Circuit stated “ the dictum 
in Briggs has not been followed in this Circuit and is log­
ically inconsistent with Brown.” In a later case, Kelley 
v. The Altkeimer, Arkansas Public School District, No. 22, 
378 F. 2d 483 (8th Cir. 1967), emphasizing the obligation 
of formerly de jure school boards to disestablish, by af­
firmative action the identities of formerly all-Negro and 
all-white schools, the court stated:

We have made it clear that a Board of Education does 
not satisfy its obligation to desegregate by simply 
opening the doors of a formerly all-white school to 
Negroes [footnote omitted] (Id. at 488).

# # * * #
The appellee School District will not be fully deseg­
regated nor the appellants assured of their rights under 
the Constitution so long as the Martin School clearly 
remains identifiable as a Negro school. The require­
ments of the Fourteenth Amendment are not satisfied 
by having one segregated and one desegregated school 
in a District. We are aware that it would be difficult 
to desegregate the Martin School. However, while the 
difficulties are perhaps largely traditional in nature, the 
Board of Education has taken no steps since Brown 
to attempt to change its identity from a racial to a non- 
racial school (Id, at 490).48 (Emphasis added.)

48 Raney v. The Board of Education of the Gould School District, 
381 F. 2d 252 (8th Cir. 1967) suggests a withdrawal from Kelley 
and a return to Briggs (cf. 381 F. 2d at 255-256). Appellants in 
that ease moved for rehearing en lane or by the panel adverting to 
the conflict between panels. The motion was denied September 18, 
1967.



37

To the same effect are Board of Education of Oklahoma 
City Public Schools v. Dowell, 375 F. 2d 158 (10th Cir. 
1967), cert, den., 387 U. S. 931,49 and Evans v. Ennis, 281 
F. 2d 385, 389 (3rd Cir. 1960), “ The Supreme Court has 
unqualifiedly declared integration to be their constitutional 
right.”

This Court granted certiorari January 15, 1968, No. 805. See p. 
13, supra.

The recent decision in the second appeal in Kemp v. Beasley,------
F. 2 d ------ , No. 19017, January 9, 1968, is, however, a reaffirmation
of the principles enunciated in the first Kemp decision (352 F. 2d 
14) and in Kelley.

49 In the Oklahoma City case, the School District adopted in 
1955, in response to Brown, a unitary zoning plan which preserved, 
because of residential housing patterns, substantial segregation of 
the races and over which it superimposed a “ minority to majority” 
transfer provision of the type condemned by this court in Goss v. 
Board of Education of the City of Knoxville, Tenn., 373 U. S. 683. 
At the time of the district court’s final decision in 1965, 80% of 
the Negro students in the system were still attending schools which 
were all-Negro or at least 95% Negro. In addition, little or nothing 
had been done to integrate faculties. The district court found (244 
F. Supp. 971, 976 (W. D. Okla. 1965)) :

That the Board had failed to desegregate the public schools 
in a manner so as to eliminate . . . the tangible elements of the 
segregated system.
. . . where the cessation of assignment and transfer policies 
based solely on race is insufficient to bring about more than 
token change in the segregated system, the Board must devise 
affirmative action reasonably purposed to effectuate the de­
segregation goal. (Emphasis added.)

It ordered, inter alia, as a panel of educational administrators had 
recommended, changes in the grade structures of some schools and 
the adoption of a “ majority to minority” transfer provision. A l­
though such a provision— one which permits a student to transfer 
only from a school in which his race is in the majority to a school 
where his race will be in the minority— is not a racially neutral 
rule, and, in fact, has the effect of promoting integration, the Tenth 
Circuit approved the district court order. Said the Court, “ [ujnder 
the factual situation here we have no difficulty in sustaining the 
trial court’s authority to compel the board to take specific action in 
compliance with the decision so long as such compelled action can 
be said to be necessary for the elimination of . . . unconstitutional 
evils . . . ”  (375 F. 2d at 166). It found all such actions necessary.



38

4. Equitable Analogies.

The second Brown decision, declared that “ in fashioning 
and effectuating the decrees, the courts will be guided by 
equitable principles” (349 U. S. at 300). Equity courts 
have broad power to mold their remedies and adapt relief 
to the circumstances and needs of particular cases. Where, 
as here, the public interest is involved “ those equitable 
powers assume an even broader and more flexible char­
acter . . . ” Porter v. Warner Holding Co., 328 U. S. 395, 
398. Accordingly, such courts have required wrongdoers 
to do more than cease unlawful activities and compelled 
them to take affirmative steps to undo effects of their wrong­
doing. Louisiana v. United States, 380 U. S. 145, 1.54 in­
volved such a decree:

The court has not merely the power but the duty to 
render a decree which will so far as possible, eliminate 
the discriminatory effects of the past as well as bar 
like discrimination in the future.

Under the Sherman Anti-trust Act, unlawful combina­
tions are dealt with by dissolution and stock divestiture. 
See e.g., United States v. Crescent Amusement- Co., 323 
U. S. 173, 189 and cases cited; ScTiine Chain Theatres v. 
United States, 334 U. S. 110, 126-130. Similarly, where a 
corporation has unlawful monopoly power which would 
operate as long as it retains a certain form, equity has 
required dissolution. United States v. Standard Oil Co., 
221 U. S. 1.

The same has been accomplished under the National 
Labor Relations Act where it was recognized early that 
disestablishment of an employer-dominated labor organi­
zation, “may be the only effective way of wiping the slate



39

clean and affording the employees an opportunity to start 
afresh in organizing . . .  ” , N. L. B. B. v. Newport News 
Shipbuilding & Dry Dock Co., 308 U. S. 241, 250; American 
Enka Corp. v. N. L. R. B., 119 F. 2d 60, 63 (4th Cir. 1941); 
Sperry Gyroscope Co. Inc. v. N. L. R. B., 129 F. 2d 922, 
931-932 (2nd Cir. 1942); Carpenter v. Steel Co., 76 NLEB 
670 (1948).

5. Summary.

Of course, nothing we have said is directed to the ques­
tion whether school boards in all places and all circum­
stances are under a constitutional duty to eradicate school 
segregation no matter how engendered. That question is 
not here.

Nor, do we think, as Judges Gewin and Bell have argued 
forcefully in their dissent in Jefferson, that to insist that 
a desegregation plan (of a district formerly segregated by 
law) “work” is to impose a special rule on 17 states but 
not on other states whose schools might equally be segre­
gated. See 380 F. 2d at 397-398, 413-414. Segregation in 
the systems before that court was directly traceable to 
state action. It was certainly within the court’s power (and, 
indeed, its duty under the Brown decisions) to require that 
that segregation be undone. In any event, the fact that 
segregation caused by residential patterns might have the 
same effect on Negro pupils as segregation caused by state 
law does not insulate the latter from the Fourteenth Amend­
ment merely because no remedy has yet been prescribed 
for the former.

Our submission is : where racial segregation is the prod­
uct of unconstitutional acts or policies, the mere allowance 
of a choice of schools does not satisfy the duty to effect



40

a unitary non-racial system, if, in fact, the overwhelming 
majority of students continue to attend schools previously 
designated by law for their race.

The Fifth Circuit in J efferson  did not hold and we do 
not urge, that freedom of choice plans are unconstitutional 
per se. Indeed, in areas where residential segregation is 
substantial and entrenched, a free transfer system might 
be of assistance in the achievement of desegregation. 
Rather, our position is that a freedom of choice plan is not, 
in the late sixties, an “adequate” desegregation plan (Brow n  
II , supra, 349 U. S. at 301), where, as here, there is an­
other plan, more feasible to administer, which will more 
speedily and effectively disestablish the dual system.50

50 The dissenters’ opinions in Jefferson create the mistaken im­
pression that free choice is an established, sensible method of pupil 
assignment:

Freedom of choice means the unrestricted, uninhibited, unre­
strained, unhurried and unharried right to choose where a stu­
dent will attend public school . . . (380 F. 2d at 404).

# # # * = *
Accordingly while professing to vouchsafe freedom and liberty 
to Negro children, [the Judges in the majority] have destroyed 
the freedom and liberty of all students, Negro and white alike 
(Id. at 405).

But, as we point out in the Introduction (pp. 13-27, supra), per­
mitting students tô  assign themselves is entirely novel, administra­
tively wasteful, racially motivated, and incapable of disestablishing 
the dual system. “Freedom of choice,” despite its appealing title, 
should constantly be viewed as what it is: another sophisticated 
device school boards have developed in their long fight to neutralize 
the Brown decision.



41

III.

The Record Clearly Shows That a Freedom of Choice 
Plan Was Not Likely to Disestablish and Has Not Dis­
established the Dual School System and That a Geo­
graphic Zone Plan or Consolidation Would Immediately 
Have Produced Substantial Desegregation.

Plaintiffs’ exhibits showed, Judge Sobeloff observed, and 
the available census figures confirmed, that there was no 
residential segregation in New Kent County. Separate 
buses maintained for the races traversed all areas of the 
county picking up children to be taken to the school main­
tained for their race. Yet, instead of geographically zon­
ing each school as logic and reason would seem to dictate,51 
and as it almost certainly would have done had all children 
been of the same race, the School Board gratuitously 
adopted a free choice plan thereby incurring the adminis­
trative hardship of processing choice forms and of furnish­
ing transportation to children choosing the school farthest 
from their homes. Indeed, in view of the lack of residential 
segregation it can fairly be concluded that the dual school 
system could not continue, as Judge Sobeloff has said (see 
p. 10 supra), but for free choice. Freedom of choice has 
been, at least in this community, the means by which the 
State has continued, under the guise of desegregation, to 
maintain segregated schools.

The Board could not, in good faith, have expected that 
enough students would choose the school previously closed

51 Compare Judge Sobeloff’s suggestion quoted at p. 10, supra 
(76-77a) that the dual system could immediately he eliminated and 
a unitary non-raeial system achieved by the assignment of students 
in the eastern half of the county to New Kent and those in the 
western half to Watkins.



42

to them to produce a truly integrated system. The evidence 
belies this. The Board had, for several years prior to the 
adoption of free choice in 1965,52 operated under the Vir­
ginia Pupil Placement Act, under which any student, could, 
as in free choice, choose either school. When the New 
Kent Board adopted free choice, no Negro student had 
ever chosen to transfer to the white school and no white 
student had ever chosen to attend the Negro school (25a, 
no. 7). Thus, at the time the Board adopted free choice, 
it was clear, based on related experience under the Pupil 
Placement Law, that free choice would not disestablish the 
separate systems and produce a “ unitary non-racial sys­
tem.” 53

52 Although the Board adopted its plan in August, 1965, it was 
not approved by the Court and actually implemented until the 
Pall term of 1966.

53 The use, in this case, of a free choice plan is subject to serious 
question on the ground that it promotes invidious discrimination. 
By permitting students to choose a school, instead of assigning them 
on some rational non-racial basis, the school board allows students 
invidiously to utilize race as a factor in the school selection process. 
Thus it is that white students invariably choose the formerly white 
school and not the Negro school. To be sure the Constitution does 
not prohibit private discrimination. But states may not designedly 
facilitate the discriminatory conduct of individuals or lend support 
to that end. See Reitman v. Mulkey, 387 U. S. 369; Robinson v. 
Florida, 378 U. S. 153; Anderson v. Martin, 375 U. S. 399; Goss 
v. Board of Education, 373 U. S. 683. See also, Black, The Supreme 
Court, 1966 Term—Foreword: “ State Action,”  Equal Protection 
and California’s Proposition 14, 81 Ilarv. L. Rev. 69 (1967). Cf. 
Burton v. Wilmington Parking Authority, 365 U.'S. 715. Thus in 
Anderson, this Court held that although individual voters are con­
stitutionally free to vote partly or even solely on the basis of race, 
the State may not designate the race of candidates on the ballot. 
Such governmental action promotes and facilitates the voters’ suc­
cumbing to racial prejudice. So too here, giving students in a dis­
trict. formerly segregated by law the right to choose a school facili­
tates and promotes choices based on race.

It. is no answer that some students may not, in fact, use race as a 
factor in the choice process. In Anderson, the statute was not saved



43

Nor has it done so in the years since its adoption. Bnt 
for the relatively small number of Negro children attend­
ing the formerly white school the two schools are operated 
substantially as before Brown. “ The transfer of a few 
Negro children to a white school does not,” as the Fifth 
Circuit has observed, “ do away with the dual system.” 
United States v. Jefferson County Board of Education, 
supra, 372 F. 2d at 812.54 During the current school year, 
1967-68, only 115 (approximately 15%) of the 736 Negroes 
in the New Kent School District attend school with whites 
at the New Kent school. No whites are attending and, 
indeed, none have ever attended Watkins, the Negro school. 
A full generation of school children after Brown, 85% of 
New Kent’s Negro children still attend a school that is 
entirely Negro. Here, as in most districts utilizing free

because some persons might vote without regard to the race of the 
candidate. It is the furnishing of the opportunity that is prohibited 
by the Constitution.

We do not argue that a school board may never permit students 
to choose schools. And certainly systems using attendance zones 
would not run afoul of the Constitution by permitting students to 
transfer for good cause shown. Presumably in such instances a 
legitimate non-racial reason would have to be supplied.

Nor do we argue that freedom of choice may never be used where 
race is intended to be a factor. For in a system in which residential 
segregation is deeply entrenched, the allowance of a choice of 
schools based on race may be a useful way to achieve desegregation. 
There, however, the plan is being used to undo rather than per­
petuate segregation as the plan in this case is being used to do. Cf. 
Goss, supra at 688, where this Court stated that “no plan or pro­
vision of which racial segregation is the inevitable consequence may 
stand under the Fourteenth Amendment.”

5i The Eighth Circuit puts it another w ay:
School boards must recognize the constitutional inadequacy of 
maintaining school systems where the formerly all white school 
has the appearance of only token integration and the all Negro 
school is still perpetuated as a separate unit.”

Kemp v. Beasley, ——— F. 2 d ------ , No. 19017, January 9, 1968, slip
op. at 4.



44

choice, one-half of the dual system has been retained intact. 
Nothing but race can explain the continued existence of 
this all-Negro school and defer indefinitely its elimination 
where both races are scattered throughout the county. 
“ Perpetuation of [this] all-Negro school in a formerly 
de jure segregated school system is simply constitutionally
impermissible.” Kemp v. Beasley, ------ F. 2d —— , No.
19,017, January 9, 1968, slip op. at 8.

The duty of the Board was to convert the dual school 
system created by state law and local rules in derogation 
of petitioners’ rights into a “unitary non-raeial system.” 
It had a common sense alternative—geographic zoning— 
which the record shows would have disestablished the dual 
system more speedily and with much less administrative 
hardship than the free choice device it ultimately chose. 
But that was not the only alternative: the Board could 
have consolidated the two facilities into one school with 
one site, for example, serving grades 1-7 and the other 
grades 8-12.55 56 This would have resulted in a more efficiently 
operated system enabling better equipment and expanded 
course offerings,36 and immediately would have produced 
an integrated system. The most important study of sec­
ondary education in this country, James Bryant Conant’s, 
The American High School Today (1959), gives highest 
priority to the elimination of small high schools graduating

■’a New Kent has apparently never utilized separate junior high 
schools. Both Watkins and New Kent- are operated on the basis of 
7 elementary grades and 5 high school grades (no. 14, 26a).

56 No extended argument is needed to support the proposition 
that a school board can more economically furnish one well- 
equipped science laboratory, than two of mediocre quality. Sim­
ilarly, where particular course offerings depend on student demand, 
more such courses might be offered after consolidation.



45

classes of less than one hundred.57 Here, New Kent County, 
despite this opportunity to provide a broader and more 
intensive educational experience to all students, both Negro 
and white, continues wastefully to maintain two separate 
sites, each graduating but 30-35 students each year.

To be sure, the Fourteenth Amendment does not require 
that school administrators in Brown-affected states operate 
their systems in the most efficient manner. But the motive 
of a school board which has needlessly converted to free 
choice in an area where the races are interspersed comes 
more clearly into focus when examined against the back­
ground of available options.

The Board’s construction policies shed further light on 
its motives. As late as June, 1965, the Board announced 
its intention to make identical additions at both Watkins 
and New Kent (at each, 4 classrooms—2 seventh, 2 sixth) 
(no. 19, 27-28a). And, in December 1966, six months after 
the district court had approved its desegregation plan (al­
legedly designed to achieve a unitary non-racial system), 
both four room additions were opened. Adding equally, 
in the context of free choice, to each of two sites, one tra­
ditionally maintained for Negroes, the other for whites,

57 “The enrollment of many American public high schools is too 
small to allow a diversified curriculum except at exorbitant expense 
. . . The prevalence of such high schools—those with graduating 
classes of less than one hundred students— constitutes one of the 
serious obstacles to good secondary education throughout most of 
the United States. I believe such schools are not in a position to 
provide a satisfactory education for any group of their students— 
the academically talented, the vocationally oriented, or the slow 
reader. The instructional program is neither sufficiently broad nor 
sufficiently challenging. A  small high school cannot by its very 
nature offer a comprehensive curriculum. Furthermore, such a 
school uses uneconomically the time and efforts of administrators, 
teachers, and specialists, the shortage of whom is a serious national 
problem” (p. 76).



46

Most important, however, the success of free choice de­
pended on the ability of Negroes to unshackle themselves 
from the psychological effects of prior state-imposed racial 
discrimination, and to withstand the fear and intimidation 
of the present and future. Neither of the other alternatives 
(geographic zones or restructuring grades) under which 
assignments would be made by the Board—as they had been 
until Brown—would subject Negroes to the possibility of 
intimidation or give undue weight, as does free choice, to 
the very psychological effects of the dual system that this 
Court found objectionable.58 59 Instead of fashioning a decree 
which would “as far as possible eliminate the discrimina­

indicates, we submit, an intention by the Board to r e in fo r c e ,

rather than d is e s ta b lis h  the dual system.58

58 Its construction policies have apparently remained unchanged. 
Only a few months ago the Board voted unanimously to construct, 
inter alia, two new gymnasiums, one at Watkins, the other at New 
Kent. Richmond Times-Dispatch, Thursday, Aug. 24, 1967, p. B-8.

A similar inference (of an intention to reinforce rather than dis­
establish the dual system) was made in Kelley v. Altheimer Arkansas 
Public School District No. 22, 378 P. 2d 483 (8th Cir., 1967) dis­
cussed at p. 36, supra. There, as here, the school board added 
additional classrooms at each of two complexeSj one traditionally 
maintained for Negroes, the other for whites. Said the Court (Id. 
at 497):

We conclude that the construction of the new classroom build­
ings had the effect of helping to perpetuate a segregated school 
system and should not have been permitted by the lower court.

See also Id. at 495-496. Cf. section V II of the decree appended by 
the United States Court of Appeals for the Fifth Circuit to its 
opinion in the Jefferson County case, where the court ordered that 
school officials (380 F. 2d at 394)

locate new school[s] and [expansions of] existing schools with 
the objective of eradicating the vestiges of the dual system.

59 In a related context, this Court has said:
It must be remembered that we are dealing with a body of 
citizens lacking the habits and traditions of political inde­
pendence and otherwise living in circumstances which do not 
encourage initiative and enterprise. Lane v. Wilson, 307 U. S. 
268, 276. Cf. pp. 22-23 and Note 29, supra.



47

tory effects of the past” (cf. Louisiana v. United States, 
380 U. S. 145, and the other cases discussed at pp. 38-39, 
supra), the lower courts have, by approving free choice, 
permitted the Board to utilize those discriminatory effects 
to maintain its essentially segregated system.

Nor did the Board introduce any evidence to justify its 
method, which, if it could disestablish the dual system at 
all, would require a much longer period of time than the 
method petitioners had urged upon the Court. As this 
Court said in Brown II  (349 U. S. at 300):

The burden rests upon the defendants to establish 
that such time [in which to effectuate a transition 
to a racially non-discriminatory system] is necessary 
in the public interest and is consistent with good 
faith compliance at the earliest practicable date.

It was, therefore, error for the court below to approve 
the freedom of choice plan in the face of petitioners’ proof, 
especially when the Board failed to show administrative 
reasons, cognizable by Brown II, justifying delay.

The data regarding assignment of teachers also reveal 
the failure of the Board to disestablish the dual system. 
The racial composition of the faculty at each school dur­
ing the current year (1967-68) mirrors the racial compo­
sition of the student bodies. No Negroes are among the 
28 full-time teachers at the formerly all-white New Kent 
school; only one Negro teacher is assigned there and that 
is for the equivalent of one day each week. At Watkins, 
only one of some 30 teachers is white. Thus, neither of 
the only two schools in the county has lost, either in terms 
of its students or faculty, its racial identification.60

60 The failure of the Board to take meaningful steps to integrate 
its faculties is consistent with what the record shows: that the



48

Only occasionally in the fourteen years since Brown has 
this Court reviewed lower court supervision of the tran­
sition to non-discriminatory systems. This may have been 
due in part to the belief voiced in Brown II, that “ the 
[district] courts, because of their proximity to local con­
ditions . . . ” could best oversee the transition. (349 U. S. 
at 298). With the enactment of Title VI, however, the 
situation has changed. Whereas the first decade of litiga­
tion produced only token compliance with Brown, more 
has been accomplished by HEW's implementation of Title
VI.61 Indeed, as the Civil Rights Commission has found, 
“the major federal role in Southern school desegregation 
[has] shifted from the federal courts to [HEW ].” 62

Title VI enforcement by HEW has at its disposal ample 
resources not available to courts. In assisting a district 
to regain or attain eligibility for federal funds it can utilize 
educational experts, field investigators and other profes­
sional personnel. But HEW relies on the courts to articu­
late the standards it implements. (Note 44 supra.) Thus, 
its effectiveness in converting the principles enunciated 
in Brown into living experience for school children, will * •

Board, by adopting free choice, could not in good faith have be­
lieved or intended that the dual system would thereby be converted 
into the non-racial system required by the Constitution. “ [P]ac­
uity segregation encourages pupil segregation and is detrimental 
to achieving a constitutionally required non-racially operated school 
system.” Clark v. Board of Education, Little Rock School District, 
369 P. 2d 661, 669-670 (8th Cir. 1966); United States v. Jefferson 
( ounty Board of Education, supra, 372 P. 2d at 883-885; Bradley 
v. School Board of the City of Richmond, 382 U. S. 103; Rogers 
v. Paid, 382 U. S. 198.

• • ■ [M]ore Negro children have entered schools with white 
children during this period [the 3 years since enactment of Title 
Vlj than during all of the 10 previous years.”  Southern School 
Desegregation. 1966-67, at 90.

62 Id. a t 1.



49

be enhanced by this Court’s articulation of governing 
standards.

We repeat, however, that our thrust is limited rather 
than general; we do not urge that a freedom of choice 
plan is unconstitutional per se and may never be used. 
Our submission is simply that it may not be used where 
on the face of the record there is little reason to believe 
it will be successful and there are other methods, more 
easily administered, which will more speedily and effec­
tively disestablish the dual system.63

68 A trend away from freedom of choice seems to have developed 
recently in some of the lower courts. A  recent order of a district 
court in Virginia appears to have adopted the view we urge. See 
Corbin v. County School Board of Loudon County, Virginiai, C. A. 
No. 2737, E. D. Va., August 27, 1967. In Loudon County, as in this 
case, Negroes were scattered throughout the County. The district 
court had approved in May, 1963 a freedom of choice plan of de­
segregation. In April, 1967, plaintiffs and the United States filed 
motions for further relief contending that the freedom of choice 
plan had resulted in only token or minimal desegregation with the 
majority of Negroes still attending all-Negro schools. They re­
quested that the district be ordered to desegregate by means of 
unitary geographic attendance zones drawn without regard to race. 
The district court agreed and on August 27th entered an order 
directing that:

No later than the commencement of the 1968-69 school year the 
Loudon County Elementary Schools; shall be operated on the 
basis of a system of compact, unitary, non-racial geographic 
attendance zones in which, there shall be no schools staffed or 
attended solely by Negroes. Upon the completion of the New 
Broad Run High School, the high schools shall be operated on 
a like basis.

See also Moses v. Washington Parish School B oard ,------ F. Supp.
— — (E. D. La., October 19, 1967), discussed at pp. 19-20, supra. 
Cf. Orders requiring the use of geographic zones in Coppedge v. 
Franklin County Board of Education, 273 F. Supp. 289 (E. D. 
N. C. 1967) appeal pending, discussed in Note 31, supra, and 
Braxton v. Board of Public Instruction of Duval County, Florida, 
No. 4598 (M. D. Fla,), January 24, 1967.

So far as we are aware the first and only court order disapprov­
ing free choice, prior to the cases discussed above, was entered in 
Mason v. Jessamine County Board of Education, 8 Race Rel. L. Rep. 
530 (E. D. Ky. 1963).



50

CONCLUSION

W herefore, for the foregoing reasons it is respectfully 
submitted that the judgment of the United States Court 
of Appeals should be reversed. The case should be re­
manded to the district court with instructions to conduct 
immediately a hearing on whether some other method of 
pupil assignment would, consistently with sound educa­
tional principles, sooner disestablish the dual system. If 
such be the case that court should order that the speedier 
method be employed by defendants.

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III 
F ranklin  E. W h ite  

10 Columbus Circle 
New York, New York 10019

S. W. T ucker 
H enry L. M arsh , III 

214 East Clay Street 
Richmond, Virginia

Attorneys for Petitioners

Of Counsel:

Michael M eltsner 
Michael J. Henry









RECORD PRESS — N. Y. C. 38



N os. 695, 740 and  805

Jit tfe (fotrt uf tfa ® M
October T erm, 1967

Charles C. Green, et al., petitioners

v.
County School B oard of New  K ent County, 

V irginia, et al.

B renda K . M onroe, et al., petitioners

v.
Board of Commissioners of the City of J ackson, 

T ennessee, et al.

Arthur L ee R aney, et al., petitioners

v.
The B oard of E ducation of the Gould School 

D istrict, et al.

ON WRITS OF CER TIO R AR I TO THE UNITED STATES COURTS OF 
APPEALS FOR THE FOURTH, S IX T H  AND E IG H TH  CIRCUITS

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

E R W IN  N. G RISW OLD ,
Solicitor General, 

ST E PH E N  J. PO LLA K ,
Assistant A ttorney General,

LOUIS E. C LA IBO RN E,
L A W R E N C E  G. W A L L A C E ,
Assistants to  the Solicitor General,
B R IA N  K. LAN DSBERG ,

Attorney,
Departm ent o f  Justice, 

Washington, D.C. S05S0.





I N D E X

CITATIONS
f,ases: page

Anderson v. Martin, 375 U.S. 399____________ 15
Bradley v. School Board, 382 U.S. 103_______  4
Brown v. Board of Education, 347 U.S. 483, 349

U.S. 294______________________________ 2, 7 ,11,14
Burton v. Wilmington Pkg. Auth., 365 U.S.

715_______________________________________  12
Cassell v. Texas, 339 U.S. 282_______________  12
Evans v. Newton, 382 U.S. 296_______________  12
Goss v. Board of Education, 373 U.S. 683_____ 6,13
Griffin v. School Board, 377 U.S. 218_________  10
Harman v. Forssenius, 380 U.S. 528_________  11
Kelley v. Altheimer, Ark. Public School Dist.,

No. 22, 378 F. 2d 483_____________________  10
Lamont v. Postmaster General, 381 U.S. 301 __ 11
Lane v. Wilson, 307 U.S. 268________________  11
Lee v. Macon County Board of Education, 267 

F. Supp. 458, affirmed sub nom. Wallace v.
United States, 389 U.S. 215_______________  12

Lombard y. Louisiana, 373 U.S. 267_________  14
Louisiana Financial Assistance Comm. v. Poin­

dexter, No. 793, this Term, decided January
15, 1968, affirming 275 F. Supp. 833______  13

Louisiana v. United States, 380 U.S. 145_____ 4
McCabe v. Atchison, Topeka & Santa Fe Rail­

way Co., 235 U.S. 151_____________________  15
McLaurin v. Oklahoma State Regents, 339 U.S.

637_______________________________________  6
to

292- 074— 68------------1



II

Cases— Continued Page
Marsh v. Alabama, 326 U.S. 501________ ____ 12
Missouri ex rel. Gaines v. Canada, 305 U.S.

337_________________________________________  11
Reitman v. Mulkey, 387 U.S. 369____________ 15
Robinson v. Florida, 378 U.S. 153____________ 14
Rogers v, Paul, 382 U.S. 198________________  4
Shelley v. Kraemer, 334 U.S. 1_______________ 15
Shelton v. Tucker, 364 U.S. 479________________  11
Singleton v. Jackson Municipal Separate School

District, 355 F. 2d 865_______________________ 11
South Carolina v. Katzenbach, 383 U.S. 301__  4
Speiser v. Randall, 357 U.S. 513_______________  11
St. Helena Parish School Board v. Hall, 368

U.S. 515_____________________________  13
Strauder v. West Virginia, 100 U.S. 303______ 13,14
Sweatt v. Painter, 339 U.S. 629________ _____  6
Terry v. Adams, 345 U.S. 461_______ ________ 12
Thomas v. Collins, 323 U.S. 516_______________  11
United States v. Jefferson County Board of Edu­

cation, 372 F. 836, 846, affirmed on rehear­
ing en banc, 380 F. 2d 385, certiorari denied,
389 U.S. 840_____________________________4, 9,12

Constitution:
United States Constitution, Fourteenth

Amendment___________________________  12, 13,14
Miscellaneous:

U.S. Commission on Civil Rights, Survey of 
School Desegregation in the Southern and
Border States—1965-1966 (1966)_________  8

U.S. Commission on Civil Rights, I Racial Iso­
lation in the Public Schools (1967)_________  6

U.S. Commission on Civil Rights, Southern 
School Desegregation 1966-1967 (1967)____ 3



3  it tfa  J k p m t t f  d[ourt of t o  H t t i M  states
October Term, 1967

No. 695

Charles C. Green, et al., petitioners
v.

County School B oard of New K ent County, 
V irginia, et al.

No. 740

B renda K . M onroe, et al., petitioners
v.

Board of Commissioners op the City op J ackson, 
Tennessee, et al.

No. 805

A rthur L ee R aney, et al., petitioners
v.

The B oard op E ducation of the Gould School 
D istrict, et al.

ON WRITS OF CERTIO RARI TO THE UNITED STATES COURTS OF 
APTEALS FOR THE FOURTH, S IX T H  AND EIG H TH  CIRCUITS

m em o ran d um  fo r  t h e  u n it e d  st a t e s  a s  a m ic u s  c u r ia e

The central issue in these cases is the character 
and extent o f  the State’s constitutional obligation in 
desegregating its public school system pursuant to

(i)



2

the mandate o f Brown  v. Board o f Education, 347 
U.S. 483, 349 U.S. 294. Although it is only one aspect 
of the problem, we focus on the pupil assignment 
policies o f the three school districts involved because 
that is the most obvious defect o f the plans in suit. 
Faculty desegregation and other measures designed 
to erase the labels “ white”  and “ N egro”  from  the 
schools of the system are, o f course, essential, as the 
courts below recognized. But effective desegregation 
is not accomplished so long as there remain all-Negro 
schools, attended by an overwhelming m ajority of the 
Negro children. It is that result in these cases, avoid­
able by employing a differing assignment technique, 
which invokes our concern.

In effect, each o f the systems uses the so-called 
“ freedom-of-choice”  plan, under which each student is 
free to assign himself to any school in the district.1 In 
each instance, a strict geographic assignment policy 
without the right of free transfer would desegregate 
the schools. In  fact, more than 80% o f the Negro 
children attend all-Negro schools, and this is attribut­
able to a plan which permits the white students to 
assign themselves elsewhere. Nor are these isolated 
cases. “ Freedom-of-choice”  plans are much in vogue 
today, and the consequences are often the same. See

In New Kent, Virginia (No. 695), every student entering 
the first and eighth grades is required to choose a school; 
thereafter, he is re-assigned to the same school unless he affirma­
tively elects a different school. In Jackson, Tennessee (No. 740), 
initial assignments are made by geographic zones, but every 
student is free to transfer to any other school. In Gould,

vansas (No. 805), every student is apparently required to 
choose his school each year.



3

U.S. Commission on Civil Rights, Southern School 
Desegregation 1966-1967 (1967), pp. 3, 8-9, 45-46, 94- 
95. The question is whether this technique is constitu­
tionally permissible when it has the effect o f substan­
tially minimizing desegregation. The courts below an­
swered in the affirmative, reasoning that it was 
enough if  the school authorities removed all legal bar­
riers to desegregation, leaving it to the students them­
selves to mix or not, as they chose.

In our view, so-called “ freedom o f choice”  plans 
satisfy the State’s obligation only i f  they are part o f 
a comprehensive program which actually achieves 
desegregation. W e do not contend that “ freedom-of- 
choice”  is per se invalid as an assignment technique or 
that its presence automatically condemns the deseg­
regation plan o f which it is a part. I f  substantial 
progress in eliminating all-Negro schools is shown, 
the Constitution does not forbid freedom o f choice as 
an element in the plan. But when the results are like 
those reflected by these records, two objections must 
be interposed: First, against a background o f  prior 
State-compelled educational segregation, a freedom- 
of-choice plan that does not operate to eliminate all- 
Negro schools is an inadequate remedy to disestablish 
the dual school system; secondly, i f  the effect is to 
retard or defeat the desegregation that a geographic 
assignment policy would produce, allowing the stu­
dents to make their own assignments impermissably 
abdicates the State’s responsibility while effectively 
authorizing and facilitating public school segregation 
at the instance o f the white students, with official 
sanction.



4

I

At the outset, we consider the plans in suit in their 
factual context. So judged, they are plainly in­
adequate as remedial devices responsive to the evils 
created by the previous de jure  segregation in the 
three school districts. The persistence o f  all-Negro 
schools in all three systems is eloquent testimony to 
the fact that mere abandonment o f compulsory stu­
dent assignments based on race is insufficient to elimi­
nate the continuing momentum of the past dual sys­
tem. And it is apparent that the approach represented 
by the “ freedom-of-choice”  and “ free transfer”  pro­
visions of the approved desegregation plans is essen­
tially one of “ laissez faire,”  and will not substantially 
improve the status quo.

Against the background of educational segregation 
long maintained by law, the duty of school authorities 
is to accomplish “ the conversion o f a de jure segre­
gated dual system to a unitary, nonracial (nondis- 
criminatory) system— lock, stock, and barrel: students, 
faculty, staff, facilities, programs, and activities.” 
United States v. Jefferson County Board o f Educa­
tion, 372 F. 836, 846, n. 5 (C.A. 5), affirmed on rehearing 
en banc, 380 F. 2d 385, certiorari denied, 389 U.S. 840. 
And see Bradley v. School Board, 382 U.S. 103; Rogers 
v  Paul, 382 I  .S. 198. That is not a self-executing task. 
Here, no less than in other areas where govern- 
mentally imposed racial discrimination was deep- 
rooted and pervasive, a mere abandonment o f the old 
practices will not restore the balance. Cf. Louisiana v. 
United States, 380 U.S. 145, 154; South Carolina v. 
Katzenbaeh, 383 U.S. 301, 327-337. Neutrality is not



5

enough; affirmative measures must be taken to over­
come the effects o f past discrimination and reverse 
the direction.

An essential goal o f the conversion process is to 
terminate the racial identification of particular schools 
as “ Negro”  schools or “ white”  schools. That aspect o f 
the problem is highlighted in two of the cases before 
the Court (Nos. 695 and 805), involving systems with 
only two plants, one traditionally allocated to Negroes, 
the other to whites. O f course, the facilities must be 
equalized and deliberate steps must be taken to deseg­
regate their faculties and staff. In  some communities 
that may be enough to establish a new climate in which 
voluntary student desegregation will follow under a 
“ freedom-of-choice”  plan. And in other areas where 
residential patterns and the present location o f schools 
would perpetuate segregation under a geographic as­
signment plan, a “ freedom -of-choice”  technique may 
offer more promise as an interim measure until new 
schools are constructed. But, as Judge Sobeloff ob­
served below, concurring specially in the New Kent, 
Virginia case (No. 695, A. 79) :

“ Freedom o f choice”  is not a sacred talisman; 
it is only a means to a constitutionally required 
end— the abolition o f the system o f segrega­
tion and its effects. I f  the means prove effec­
tive, it is acceptable, but i f  it fails to undo 
segregation, other means must be used to 
achieve this end. * * *

In the circumstances o f these cases, it is plain that 
“ freedom-of-choice”  is not a tool to achieve desegre­
gation. On the contrary, in New Kent, Virginia, and



6

Gould, Arkansas, where geographic zoning would in­
tegrate the two schools o f the district, it is apparent 
that “ freedom-of--choice”  works in the opposite di­
rection, to perpetuate an identifiably “ N egro”  school-, 
attended only by Negroes. And, although less dra­
matically, the “ free transfer”  policy followed in Jack- 
son, Tennessee, likewise tends to defeat the substantial 
degree of pupil desegregation that would result from 
strict geographic zoning.

In  our view, these facts alone condemn the plans 
in suit as inadequate measures to disestablish the dual 
school system. Cf. Goss v. Board o f Education, 373 
U.S. 683. But there are other reasons to question the 
constitutional validity o f the “ freedom-of-choice”  
technique as it operates here. These are broader 
grounds, which we think relevant, though the Court 
may find it unnecessary to reach them.

I I

The actual results in these cases demonstrate that, 
in some circumstances at least, “ freedom-of-choice” 
plans empower the white students effectively to segre­
gate the school system by assigning themselves away 
from the schools they would otherwise be attending 
with Negroes. And there is no doubt that the conse­
quence of racial isolation for  the Negro children puts 
them at a disadvantage. Not only are they deprived of 
contacts and experiences which would enable them to 
participate on a more equal footing in the public and 
private life o f the dominant community (see Sweatt 
v. Painter, 339 U.S. 629, 634-635; McLaurin  v. Okla­
homa State Regents, 339 U.S. 637, 640-642; and see 
U.S. Commission on Civil Rights, I  Racial Isolation in



7

the Public Schools (1967), pp. 100-114, 193, 203-204), 
but, shunned by the whites, the Negro children are 
unmistakably told that their separation is not the 
accidental result o f neutral geographical zoning, but, 
rather, the deliberate consequence o f  a system which, 
as Brown emphasized (347 U.S. at 494), “ generates 
a feeling o f inferiority as to their status in the com­
munity that may affect their hearts and minds in a 
way imlikely ever to be undone. ’ ’ The question accord­
ingly arises whether segregation, so caused, offends the 
Constitution.

The courts below thought the result constitutionally 
unobjectionable, apparently reasoning that the injury 
was self-inflicted in view of the seemingly equal op­
portunity given the Negro students to determine their 
own assignments and thus to avoid their separation 
by pursuing the white students. In  our view, that is 
not an adequate answer.

1. Initially, we have difficulty with the premise 
that the Negro students in areas like those involved 
here enjoy a truly unencumbered option to move 
away from their traditional schools. The Fourth Cir­
cuit itself, in one o f the cases under review (No. 695,
A. 67), has emphasized that “ ‘freedom of choice’ is 
acceptable only i f  the choice is free in the practical 
context of its exercise.”  And the court went on to 
add that “ [ i ] f  there are extraneous pressures which 
deprive the choice of its freedom, the school board 
may be required to adopt affirmative measures to 
counter them” (id .). But is this a realistic approach?

We do not believe that it is enough to eliminate 
only the grosser forms o f intimidation— threats o f

292- 074— 68--------- 2



physical injury or economic reprisal— even assuming 
that judicial decrees or administrative action can 
effectively deal with such pressures. The reality is 
that a variety of more subtle influences— short o f out­
right intimidation— tend to confine the Negro to his 
traditional school. Insecurity, fear, founded or un­
founded, habit, ignorance, and apathy, all inhibit the 
Negro child and his parents from  the adventurous 
pursuit of a desegregated education in an unfamiliar 
school, where he expects to be treated as an unwel­
come intruder. And corresponding pressures operate 
on the white students and their parents to avoid the 
“ Negro’ ’ school.2 No doubt, special provisions in the

2 Some of the factors at work are isolated in the report of the 
U.S. Commission on Civil Eights, Survey o f School Desegrega­
tion in the Southern and Border States—1965-1966 (1966), pp. 
51-52, quoted by Judge Sobeloff, concurring below in the New 
Kent, Virginia case (No. 695, A. 80-81) :

Freedom o f choice plans accepted by the Office o f Edu­
cation have not disestablished the dual and racially segre­
gated school systems involved, for the following reasons: a. 
Negro and white schools have tended to retain their racial 
identity; b. White students rarely elect to attend Negro 
schools; c. Some Negro students are reluctant to sever nor­
mal school ties, made stronger by the racial identification of 
their schools; d. Many Negro children and parents in South­
ern States, having lived for decades in positions of sub­
servience, are reluctant to assert their rights; e. Negro chil­
dren and parents in Southern States frequently will not 
choose a formerly all-white school because they fear retalia­
tion and hostility from the white community; f. In some 
school districts in the South, school officials have failed to 
prevent or punish harassment by white children who have 
elected to attend white schools; g. In some areas in the 
South where Negroes have elected to attend formerly all- 
white schools, the Negro community has been subjected to 
retaliatory violence, evictions, loss o f jobs, and other forms 
o f intimidation.



9

“ freedom-of-choice”  plan can mitigate the play o f 
these forces. But when the results are like those in 
these cases, we think it blinks reality to assume that 
the persistence o f  all-Negro schools is the consequence 
of wholly voluntary self-segregation by the Negro 
students.

2. Even if  one could properly characterize the result 
as the product o f truly free choice, however, it would 
be constitutionally objectionable because the exercise 
of the option involves an improper burden where the 
racial identity o f the schools has not been eliminated. 
Thus, the Fourth and F ifth  Circuits have disapproved 
transfer plans which require the Negro students to 
take special steps to obtain a desegregated education. 
In the words o f the Fourth Circuit, in one of the cases 
under review (No. 695, A . 66 ):

The burden of extracting individual pupils from  
discriminatory, racial assignments may not be 
cast upon the pupils or their parents. It is the 
duty of the school boards to eliminate the dis­
crimination which inheres in such a system.

See, also, United States v. Jefferson County Board of 
Education, supra, 372 F. 2d at 864—867. In our view, 
the same rationale condemns the present plans, which 
unnecessarily shift the burden to the Negro to seek 
his way out of his traditional school.

Under a plan like that prevailing in Jackson, Ten­
nessee, where initial assignments are made by geo- 
grapical zones, special steps must be taken to transfer 
elsewhere. That is, in itself, an obstacle. The burden 
on the Negro is not lightened because the white stu­
dents must also assume it i f  they Avish to avoi d the



10

traditionally Negro school to which proxim ity first 
assigns them. Cf. Griffin v. School Board, 377 U.S. 
218. Nor are the obstacles in fact equal in the situa­
tion that most concerns us, the persistence o f the all- 
Negro school. Where students o f both races have been 
initially assigned, on the basis o f residence, to a 
traditionally Negro school, the decision to transfer 
elsewhere is obviously more difficult fo r  the Negro. 
Unlike the white child whose “ transfer’ 7 merely re­
turns him to his accustomed school, the Negro is re­
quired to sacrifice old ties for  an uncertain welcome 
if  he wishes to pursue his search for  a desegregated 
education.

Nor are these problems immediately overcome by 
the “ freedom-of-ehoice”  provisions prevailing in New 
Kent, Virginia, and Gould, Arkansas. Something is 
gained by requiring everyone to express a choice be­
fore any assignment is made. But that does not elimi­
nate all the pressures weighing on the Negro— and to 
a lesser extent on the white— to “ choose”  in favor 
o f the status quo. Again, an uneven burden falls on 
the Negro if  he is to leave his traditional school. At 
least where all the white students have shunned the 
local Negro school, the decision to follow  them re­
quires courage, and, for the pioneers at least, a will­
ingness to subordinate personal advantage to the com­
mon good o f the race. See K elley  v. Altheim er, Ark. 
Public School Dist. No. 22, 378 F. 2d 483, 486^87, n. 6 
(C.A. 8).

W e do not mean to exaggerate the tendency of 
“ freedom-of-choice”  plans to perpetuate the all- 
Negro school or the special burden they impose on



11

Negroes to remove themselves from  their old segre­
gated institutions. O f course, individuals can resist the 
pressures and in some communities the technique may 
work. Yet, where, as in these cases, freedom-of-choice 
does not eliminate the all-Negro school, it would be pure 
irony i f  Negro children or their parents, already vic­
tims of educational segregation, suffering the very 
handicaps that this Court sought to avoid for  the 
future, were held to have “ waived”  the promise of 
Brown. Cf. Lane v. W ilson, 307 U.S. 268, 276. H ow­
ever surmountable they may be, the Constitution does 
not tolerate the erection o f unnecessary hurdles to the 
enjoyment o f fundamental rights. See, e.g., Missouri 
ex rel. Gaines v. Canada, 305 XJ.S. 337. Cf. Lamont v. 
Postmaster General, 381 U.S. 301; Harman v. Fors- 
senius, 380 XJ.S. 528; Shelton v. Tucker, 364 U.S. 479, 
488; Speiser v. Randall, 357 U.S. 513; Thomas v. Col­
lins, 323 U.S. 516.

3. The situation would be different i f  the burden, 
and the resulting injury, were unavoidable, or even if  
pupil assignment were traditionally a matter left to 
the free play o f private choice. But that is not the 
fact. On the contrary, compulsory assignment of pub­
lic school students had been the almost invariable rule, 
North and South, until Brown. Freedom-of-choice 
plans—haphazard and administratively cumbersome 3 
—have been devised for  the apparent purpose of 
allowing the white students to accomplish what the

3 See Singleton v. Jackson Municipal Separate School Dis­
trict, 355 F. 2d 865, 871 (C.A. 5).



12

State could no longer provide for them.4 Essentially, 
the assignm ent of students is a governmental func­
tion, controlled by the requirements of the Fourteenth 
Amendment. Cf. Marsh v. Alabama, 326 U.S. 501; 
Terry v. Adams, 345 U.S. 461; Evans v. Newton, 382 
U.S. 296. And, as this Court observed in Burton  v. 
Wilmington Pkg. Auth., 365 U.S. 715, 725, “ no State 
may effectively abdicate its responsibilities by either 
ignoring them or by merely failing to discharge them 
whatever the motive may be.”

The suggestion that the action of the students in 
effectively segregating themselves need be o f no con­
cern to the State may be compared to the proposition 
that the State, which has a constitutional duty to avoid 
discrimination in jury selection, is free to allow pro­
spective jurors to separate themselves on racial lines 
for service on particular panels. The unconstitution­
ality o f  such a permissive arrangement is surely be­
yond debate. The reason is not that a defendant has 
a right to be tried by a racially representative jury 
(see Cassell v. Texas, 339 U.S. 282), but, rather, that 
the State may not permit discrimination to influence 
the selection o f a jury. The same principle governs 
here: even if  accidental segregation in public educa­
tion is permissible, the Constitution does not tolerate

4 The lower courts have recognized that in some communities 
freedom-of-choice was adopted because alternative plans would 
require white pupils to attend Negro schools. See Lee v. Macon 
County Board o f Education, 267 F. Supp. 458, 479, n. 27 
(M.D. A la.), affirmed sub norm,. Wallace v. United States, 389 
U.S. 215; United States v. Jefferson Comity Board o f Education, 
supra^ 372 F. 2d at 878, 888-889. And see the testimony o f the 
Superintendent of the Gould, Arkansas, schools (No. 805, A . 67).



13

schemes which invite that result to be accomplished 
by indirect means through a delegation o f State 
responsibility. Cf. St. Helena Parish School Board  v. 
Hall, 368 IT.S. 515; Goss v. Board of Education, 
supra; Griffin v. School Board, supra; Louisiana 
Financial Assistance Comm. v. Poindexter, No. 793, 
this Term, decided January 15, 1968, affirming 275 E. 
Supp. 833 (E.D. La.).

In sum, where freedom-of-choice plans leave the 
schools essentially segregated, while a more tradi­
tional assignment policy would not, that segregation 
may fairly be attributed to the State. That conclusion 
alone covers the present cases. But the fact that the 
State is knowingly contributing to the result has an­
other dimension also.

4. By resorting to a permissive device which, in 
context, seems to serve no purpose other than to 
defeat or retard integration, the State is declaring 
its approval o f the discrimination which it allows to 
govern pupil assignments. The effect is tw o-fold: the 
apparent official sanction given to the preference o f 
the white students aggravates the injury to the Negro 
children; and, at the same time, it lends encourage­
ment to the separation o f  the white students and tends 
to stiffen those very attitudes that desegregation 
might relax.

There is, o f course, nothing novel in the proposition 
that the Equal Protection Clause forbids official 
action which injures the Negro by implying his unfit­
ness or inferiority as a class and encourages private 
racial prejudice. Indeed, this is the rationale of 
Strauder v. W est Virginia, 100 U.S. 303, one of the



14

earliest landmark decisions construing the Fourteenth 
Amendment, Striking down a statute excluding 
Negroes from service on juries, the Court there 
observed (100 U.S. at 308) :

The very fact that colored people are singled 
out and expressly denied by a statute all right 
to participate in the administration o f the law, 
as jurors, because of their color, though they 
are citizens, and may be in other respects fully 
qualified, is practically a brand upon them, 
affixed by the law, an assertion o f  their inferi­
ority, and a stimulant to that race prejudice 
which is an impediment to securing to indi­
viduals o f the race that equal justice which 
the law aims to secure to all others.

The Brown opinion merely returned to this authentic 
interpretation of the Amendment when it noted (ap­
provingly quoting one o f the lower courts, 347 U.S. 
at 494): “ Segregation o f white and colored children 
in public schools has a detrimental effect upon the 
colored children. The impact is greater when it has 
the sanction of the law; for  the policy o f  separating 
the races is usually interpreted as denoting the in­
feriority of the negro group.”

The principle is not limited to situations in which 
the State teaches a philosophy o f racial inferiority by 
expressly compelling segregation. The same message 
can be conveyed by lesser measures and they are 
equally forbidden. E.g., Lombard v. Louisiana, 373 
U.S 267; Robinson v. Florida, 378 U.S. 153. Indeed, in 
some contexts, the Equal Protection Clause prohibits 
official action which merely facilitates, or gives effect 
to, private discrimination on the ground o f race. E.g.,



15

Anderson v. Martin, 375 U.S. 399; McCabe v. Atchi­
son, Topeka & Santa F e  Railway Co., 235 U.S. 151; 
Shelley v. Kraem er, 334 U.S. 1. And see Reitman v. 
Mulkey, 387 U.S. 369. The State cannot gratuitously 
take steps to make discrimination easy; the Four­
teenth Amendment bars State action which unneces­
sarily creates opportunities for the play o f  private 
prejudice. So, here, we submit, the State authorities 
overstepped the constitutional line by adopting stu­
dent assignment plans which predictably, i f  not de­
signedly, cater to the preference o f white students to 
avoid desegregated schools.

I l l
It remains to suggest the appropriate remedy in 

each of the cases before the Court. As we have noted, 
the central fact in all three school districts involved is 
that an overwhelming m ajority of the ISTegro student 
population still attend all-Negro schools because the 
prevailing “ freedom -of-choice”  or “ free transfer” 
plans allow the white students who would otherwise 
attend those schools to assign themselves elsewhere. 
That result condemns the freedom-of-choice assignment 
system in each o f the cases, in light o f the availability 
of other more promising alternatives.

We need not particularize the details o f  an appro­
priate plan for each district. But it is apparent that 
in both New Kent, Virginia (No. 695) and Gould, A r­
kansas (No. 805), each o f which have only two schools, 
a substantial degree o f desegregation would be 
achieved i f  geographical zoning were adopted. And, 
of course, full desegregation would result i f  the two



16

schools in each district were “ paired” , one as the ele­
mentary school for the entire area, the other as the 
secondary school. Either solution is presumably sound 
educationally and nothing in the record suggests that 
either alternative presents special administrative 
problems.

The Jackson, Tennessee, situation (No. 740) is more 
complex, but the availability o f alternate solutions is 
equally clear. In  this district, geographic attendance 
zones are already in operation and the obvious first 
step therefore seems to be to eliminate the super­
imposed “ free transfer”  provision o f  the plan which 
has worked to preserve as all-Negro each o f  the for­
merly Negro elementary schools, the form erly Negro 
junior high school, and the form erly Negro high 
school. There remains, however, a challenge to the 
three junior high school zones as “ gerrymandered.” 5

On the face of the record, the charge o f gerryman­
dering is well founded. Indeed, it appears that sub­
stantially greater desegregation at the junior high 
school level would have resulted i f  the elementary 
zone lines had been followed to create a feeder system, 
h o  explanation was offered for  the deviations from 
this traditional plan. Moreover, it is demonstrable 
that other alternative boundaries— with no apparent 
disadv antages can be drawn to achieve still more de- 
segr egation in the three schools involved. Quite plainly, 
the school authorities made no effort in this direction. 
In our view, they should be directed— subject, of 
course, to the supervision o f the district court—to

5 A  challenge to the elementary school zones was sustained 
by the district court and is not in issue here.



17

redraw the junior high school zones with this purpose 
in view.

Respectfully submitted.
E rwin 1ST. Griswold,

Solicitor General. 
Stephen J. P ollak,
Assistant A ttorney General. 
Louis P. Claiborne, 
L awrence G. W allace, 
Assistants to the Solicitor 

General.
B rian K . L andsberg,

Attorney.
F ebruary 1968.

U.S .  GOVERNMENT PRINTING OFFICE:  196®









IN THE

Supreme Court of the United States

No. 695

CHARLES C. GREEN, et a l .,

v.
Petitioners,

COUNTY SCHOOL BOARD OF 
NEW KENT COUNTY, VIRGINIA, et a l .,

Respondents.

On Writ of Certiorari to the United States Court of 
Appeals for the Fourth Circuit

BRIEF FOR THE RESPONDENTS

Frederick  T. G ray  
W alter  E. R ogers 
R obert  E. Eic h er

Counsel for Respondents

Williams, M u l l e n  & C h r istia n  
1309 State-Planters Bank Bldg.
Richmond, Virginia 23219

Robert Y. Bu t to n  
Attorney General of Virginia 

Robert D. M c I l w a in e , I I I  
First Assistant Attorney General 
Richmond, Virginia





Question Presented ...................................................................................  1

Constitutional Provision I nvolved .....................................................  2

Statement...............................................................................-...................- 2

Summary O f Arg u m en t ................ ......—...... -....... -.......................... 3

Argument ......................................................................................... —..... -  4

I. Introduction   ...........—;— -..................................... .— ...........  4

II. The validity of a plan permitting each pupil annually to at­
tend the public school of his free choice is implicit in the 
mandate of Brown v. Board of Education....................................  8

A. The Mandate of Brown v. Board of Education................... 8

B. The Shape and Meaning of the Brown v. Board o f Edu­
cation Mandate.........................................................................— 11

1. In the United States Supreme Court................................ 11

2. In the other Federal Courts.............-................................. 14

3. In the Congress............................................. -......................  19

C. Fulfilling the Brown v. Board of Education Mandate;
The Freedom of Choice Plan................................................... 21
1. Whether the plan “ works” — constitutional principle or

mathematical equation? .................................................— 21

2. Private discrimination— promoted or suffered? ............ 23

3. Free choice— w hose?............................................................  25
4. Compulsory integration in formerly de jure systems—

principle or purge? ............................................................... 27
5. Integration and education— antitheticals? ...................... 29

Conclusion...................................................................................................  33

TABLE OF CONTENTS
Page

*



TABLE OF CITATIO N S
Page

United States Constitution

Fourteenth Amendment........................................ -8, 12, 17, 23, 27,

Cases

Anderson v. Martin, 375 U.S. 399 (1964) .........................................

Bell v. School City of Gary, 213 F. Supp. 819 (N.D. Ind. 1963), 
affirmed, 324 F. 2d 209 (7th Cir.), cert, den., 377 U.S. 
924 ................................................................................... 15, 19-20,

Board of Education of Oklahoma City Public Schools v. Dowell, 375 
F. 2d 158 (10th Cir. 1967), cert, den., 387 U.S. 931 .................

Bolling v. Sharpe, 347 U.S. 497 (1954) .............................................

Bowman v. County School Board of Charles City County, 382 
F. 2d 326 (4th Cir. 1967) ........................................................... 5,

Bradley v. School Board of City of Richmond, 345 F. 2d 310 (4th 
Cir. 1965), vacated and remanded on other grounds, 382 
U.S. 103 ..................................................................... 6, 8, 15, 22,

Briggs v. Elliott, 132 F. Supp. 776 (E.D.S.C. 1955) ....... 14, 19, 27,
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 

349 U.S. 294 (1955) ................. 3, 6, 8, 9, 10, 11, 12, 17, 21,
Brown v. Board of Education of Topeka, 139 F. Supp. 468 (D. 

Kan. 1955) ................................................... ..............................14,
Calhoun v. Latimer, 377 U.S. 263 (1964) .......................................
Clark v. Board of Education of Little Rock School District, 369 F. 

2d 661 (8th Cir. 1966), reh. den., 374 F. 2d 569 ..... 15, 21, 23,
Cooper v. Aaron, 358 U.S. 1 (1958) ...................................................
Coppedge v. Franklin County Board of Education, 273 F. Supp. 

289 (E.D.N.C. 1967) .....................................................................
Deal v. Cincinnati Board of Education, 369 F. 2d 55 (6th Cir. 

1966), cert, den.,.....  U.S...............................................................

Downs v. Board of Education of Kansas City, 336 F. 2d 988 ( 10th 
Cir. 1964), cert, den., 380 U.S. 914 ....... ............................15, 16,

28

24

27

16

7

25

23

28

27

20

12

24

11

26

8

17



20
Evans v. Ennis, 281 F. 2d 385 (3d Cir. 1960) .................. ............15

Goss v. Board of Education of Knoxville, 373 U.S. 683 (1963)
12, 13, 23

Kelley v. Altheimer, Arkansas Public School District, 378 F. 2d 483 
(8th Cir. 1967) ......................................................................... . . . . .8, 15

Kemp v. Beasley, .....  F. 2d ..... , No. 19017 (8th Cir. Jan. 9,
1968) ............................................................................................15, 22

Lombard v. Louisiana, 373 U.S. 267 (1963) ...................................  24

Meyer v. Nebraska, 262 U.S. 396 (1923) .........................................  26

Monroe v. Board of Commissioners of City of Jackson, 380 F. 2d 
955 (6th Cir. 1967), cert, granted, No. 740 (O.T. 1967) ....15, 28

Moses v. Washington Parish School Board, 276 F. Supp. 834 (E.D.
La. 1967) .................................................................................. 28, 29

Evans v. Buchanan, 207 F. Supp. 820 (D. Del. 1962)

Olson v. Board of Education of Union Free School District, 250 
F. Supp. 1000 (E.D.N.Y. 1966), appeal dismissed, 367 F. 2d 
565 (2d Cir.) ...................................................................................  30

Pierce v. Society of Sisters of Holy Names, 268 U.S. 510 (1925) .... 26 
Plessy v. Ferguson, 163 U.S. 537 (1896) ........................................ . 6

Raney v. Board of Education of Gould School District, 381 F. 2d 
252 (8th Cir. 1967), cert, granted, No. 805 (O.T. 1967) .........  15

Reitmanv. Mulkey, 387 U.S. 369 (1967) .........................................  24

Robinson v. Florida, 378 U.S. 153 (1964) ................... ............. .....  24

Rogers v. Paul, 382 U.S. 198 (1965) ............. .................................... 6

Springfield School Committee v. Barksdale, 348 F. 2d 261 (1st 
Cir. 1965) .......................................................................................  15

Swann v. Charlotte-Mecklenburg Board of Education, 369 F. 2d 
29 (4th Cir. 1966) 8



Taylor v. Board of Education of City School District of New 
Rochelle, 294 F. 2d 36 (2d Cir. 1961), cert. den. 368 U.S. 
940 ................. ......................... ....................................................15, 16

United States v. Jefferson County Board of Education, 372 F. 2d 
836 (5th Cir. 1966), aff’d with modifications on rehearing en 
banc, 380 F. 2d 385 (1967), cert. den. sub. nom., Caddo Parish 
School Board v. United States, 389 U.S. 840 ............17, 24, 27, 28

Page

Statutes

Civil Rights Act of 1964, 78 Stat. 241 ..................... 17, 18, 19, 20, 27

1966 Amendment to Elementary and Secondary Education Act of 
1965, 80 Stat. 1212 ......................................................................20-21

Other Authorities

Conant, Slums and Suburbs (1961) * ................................. 10, 17, 30-31

Congressional Record, Vol. 110 (1964) ............................................  19

De Facto Segregation, Educational Policies Commission of the NEA 
and the American Association of School Administrators, NEA 
Journal (October 1965)*...............................................................  7

Fischer, Educational Problems of Segregation and Desegregation, 
from Education in Depressed Areas, A. Harry Passow, editor 
(1963)* ...........................................................................................  8

Gordon, Assimilation in American Life: The Role of Race, Religion 
and National Origin (1964 )* ..................................................... 7, 18

Greenberg, Race Relations and American Law (1959) ............... 17, 18

Handlin, The Goals of Integration, from Daedalus (Winter 1966)*
18, 31

Ward & Paul, Transcripts of Brown v. Board of Education of 
Topeka, Case No. 101 (Library U.S. Supreme Court) ....___9, 10

* Extracts from cited authorities appear in the Respondents’ Ap­
pendix in No. 740.

iv



IN THE

Supreme Court of the United States

No. 695

CHARLES C. GREEN, e t  a l .,
Petitioners,

v.

COUNTY SCHOOL BOARD OF 
NEW KENT COUNTY, VIRGINIA, et  a l .,

Respondents.

On Writ of Certiorari to the United States Court of 
Appeals for the Fourth Circuit

BRIEF FOR THE RESPONDENTS

QUESTION PRESENTED

Are the Negro patrons of a public school system denied 
equal protection of the laws under the Fourteenth Amend­
ment to the United States Constitution where the system 
is administered under a plan of operation by which each



2

CONSTITUTIONAL PROVISION INVOLVED

This case involves Section I of the Fourteenth Amend­
ment to the Constitution of the United States.

STATEMENT

The petitioners correctly state that, through the 1965- 
1966 school year, children in New Kent County attended 
school under the Pupil Placement Act of Virginia, and that 
there was no integration of the school system until 1965- 
1966 when 35 Negro children chose to attend the formerly 
all white school. Brief for Petitioners pp. 6-7.

However, an examination of the tables set forth on page 
7 of their Brief will show that, in the year following im­
plementation of the respondents’ freedom of choice plan, 
the number of Negro children attending the formerly all 
white school more than tripled, and that progress has been 
made towards faculty desegregation.

The most recent statistics show that 115 of the 736 Negro 
students are attending New Kent, the formerly all white 
school, and that there is an enrollment of 644 in New 
Kent and 621 in Watkins, and 28.2 teachers in New Kent 
and 30.8 in Watkins.

The freedom of choice plan under which the New Kent 
County public school system is operated is set forth in the 
Appendix at pages 34a through 44a and pages 50a through 
51a. In general, it gives each student in the system an un­
restricted right to attend the school of his choice. It has 
been examined and approved by HEW, the District Court 
and the Court of Appeals en banc.

pupil is given an unrestricted annual right to attend the
school of his choice without regard to race, color or na­
tional origin?



3

Brown v. Board of Education of Topeka1 articulated a 
proscriptive constitutional mandate under the Fourteenth 
Amendment: No state shall deny to any child, solely be­
cause of race, admission to the public school of his choice. 
Compliance with the mandate required the elimination of 
state-imposed racial considerations so that those admitted 
to public schools were not Negro children and white chil­
dren—but just children.

The petitioners themselves concede that they have an un­
restricted choice and “ a privilege rarely enjoyed in the past 
—the opportunity to attend the school of their choice.” 
(Pet. for Cert. p. 13.) Yet they ask to be deprived of a 
choice because the choice exercised by their fellow resi­
dents of the county— entirely free of state-imposed or pro­
moted racial considerations— has not produced some sort 
of integrated balance of Negroes and whites in the school 
system.

That the states have no obligation under the Fourteenth 
Amendment to enforce compulsory integration of the races 
throughout the school system is recognized by decisions in 
the Courts of Appeal for the Fourth Circuit, the Sixth Cir­
cuit, the Seventh Circuit, the First Circuit, the Eighth Cir­
cuit and the Tenth Circuit and by the Congress of the 
United States. The same principle is implicit in decisions 
in the Courts of Appeal for the Third Circuit and the Sec­
ond Circuit, respectively.

The respondents are aware that their public school sys­
tem could be operated under some other plan. Their adop­
tion of freedom of choice is rooted in both a constitutional 
base and an educational base. It is designed to honor the *

SU M M A R Y  OF ARGUM EN T

*347 U.S. 483 (1954), 349 U.S. 294 (1955) (hereinafter referred 
to as Brown I  and Brown II  or as the Brown decisions).



4

educational imperative of the system, as well as to comply 
with the Fourteenth Amendment, in the light of the cir­
cumstances in this rural Virginia county and the experi­
ences in other areas with the withdrawal of white children 
from the public school system. Both the constitutional 
requirement and the educational function are fulfilled by 
the freedom of choice plan.

ARGUMENT

I.

Introduction

In their Complaint filed March 15, 1965, the petitioners 
alleged, in Article VI, paragraph 16 on page 8, that they 
“ [Sjuffer and will continue to suffer irreparable injur)' as 
a result of the persistent failure and refusal of the defend­
ants to initiate desegregation and to adopt and implement 
a plan providing for the elimination of racial discrimination 
in the public school system.”  'Emphasis added.) This was 
the basic premise of their Complaint and. significantly 
enough, it was reminiscent of the language in the Brown 
decisions.

On June 28, 1966. the District Court approved the re­
spondents freedom of choice plan for the operation of the 
hew Kent County public school system. U nder this plan 
each student in the county public school svstem. effective 
the 1966-6, term, was given the right to attend each rear 
any school of his choice in the svstem.

The petitioners have acknowledged that under a free 
choice plan students are allowed to attend the school of 
their choice.' and have conceded that their right to make

'  JS]tudents are giv en a privilege rarely enjoyed in the past—the 
opportunity to attend the school of their choice.*’ Greer, v. County 
School Board of New Kent County, Pet. for Cert p. 13.



5

an annual choice is “ unrestricted and unencumbered.”3 
This would seem to fulfill the petitioners’ original premise; 
viz., elimination of racial discrimination by the respondents 
in their operation of the public school system.

However, the petitioners re-tooled their premise follow­
ing the adoption of the freedom of choice plan by the re­
spondents. It is now their premise that the respondents 
have a constitutional duty to compel Negro and white stu­
dents alike, their free choices to the contrary notwithstand­
ing, to attend schools on a racial basis in order to achieve 
an integrated system.

The re-tooled premise necessarily entails some difficulty 
for the petitioners, for it requires them to complain of the 
“privilege rarely enjoyed in the past— the opportunity to at­
tend the school of their choice.”4 Thus, on page 49 of their 
Brief, the petitioners acknowledge that a freedom of choice 
plan is not unconstitutional per se, but that it is unconstitu­
tional in operation where “ there is little reason to believe 
it will be successful”— an euphemistic expression for racial 
balance throughout the system.

It is at this juncture, we submit, that the petitioners con­
cede the validity of the action of the District Court, which 
approved the plan with the retention of jurisdiction in order 
to observe its operation,5 and the action of the Court of 
Appeals, which remanded the case for the District Court to 
review and update the record and fashion proper decrees.

3Bowman v. County School Board of Charles City County, 382 F. 2d 
326, 328 (4th Gir. 1967), the companion case, for which no review 
is sought, decided together with this case. While the opinion dis­
cussed herein was rendered in the Charles City County case, it was 
expressly made applicable to this case. Green v. County School Board 
of New Kent County, 382 F. 2d 338, 339 (4th Cir. 1967).

4Note 2, supra.
Since the plan has been in operation, the number of Negro students 

attending the formerly all white school has grown from 35 in 1965-66
115 in 1967-68, according to the FIEW Documents filed by the

petitioners.



6

A fundamental rule established by the Supreme Court 
in school desegregation cases is that control over the course 
and shape of desegregation rests with the district courts and 
with the school boards themselves. The very nature of the 
problem points up the wisdom of the rule.

It was precisely for this reason that Brown II  remanded 
the cases to the district courts. In subsequent cases the 
Supreme Court consistently has adhered to this rule, either 
expressly or in practice, and it was the basis of the remands 
in Rogers v. Paul, 382 U.S. 198 (1965), and Bradley v. 
School Board of City of Richmond, 382 U.S. 103 (1965). 
Yet the petitioners would have control transferred to this 
Court, despite the fact that the District Court unquestion­
ably has the greater opportunity to observe the free choice 
plan in operation.

In the courts below, the thrust of the petitioners’ attack 
was upon the principle of free choice rather than the opera­
tion of the plan. It is incongruous that the movement which 
began in order to free the Negro from the inability to exer­
cise a choice because of race would now, for purely racial 
motives, deny him the choice. The petitioners say in effect 
that white and Negro alike should have no choice. There 
must be integration of the races in any event. The desire 
of parents and students must yield to the desire of those who 
would require compulsory integration.

Though the petitioners have conceded the existence of an 
unrestricted choice, they would have this Court force others 
to do what they are free to do already. This is dangerous 
in principle because it restores race as a criterion in the 
opeiation of the public schools, and it was this very criterion 
that was rejected in the Brown decisions. The criterion of 
i ace simply is improper under our governmental system.'1

Our Constitution is colorblind.” Plessv v. 
559 (1896) (Dissenting opinion).

Ferguson, 163 U.S. 537.



7

The genius of the American political tradition, in its 
best sense, in relation to race is that it dictates that 
racial criteria are not legitimate in the operation of 
governmental facilities and should be rigorously es­
chewed. To bring racial criteria in by the front door, 
so to speak, even before throwing them out the back, 
represents, in my opinion, no real gain for the 
body politic and has potentially dangerous implications 
for the future.7

The petitioners’ position also endangers the fundamental 
aim of the public school system. Clearly there is no re­
deeming value in integration compelled at the expense of 
education. This result would obtain, however, where the 
free choices of parents and pupils are frustrated. The fol­
lowing statement gives some perspective to the problem:

[T]he purpose of schools is education and . . .  no child 
is being served if education is being made impossible. 
School authorities must make clear when they believe 
that pupils are being used as pawns in the struggles 
of adults. The question to be asked about all proposals 
is whether they will improve the education of the 
pupils involved, not whether they will contribute to 
other goals, even desegregation.8

Integration alone is not, therefore, a proper goal in terms 
of the educational imperative. The social engineering in­
herent in compelling students to attend certain schools on * &

7Gordon, Assimilation in American Life: The Role of Race, Re­
ligion and National Origins, p. 250 (1964). See Bolling v. Sharpe, 347 
U.S. 497, 499 (1954) : “ Glassifications based solely upon race must be 
scrutinized with particular care, since they are contrary to our tradi­
tions and hence constitutionally suspect.”

&De Facto Segregation, Educational Policies Commission of the NEA 
and the American Association of School Administrators, NEA Journal 
p. 36 (October 1965).



8

purely racial grounds and against their wishes has no place 
in education,9 and, it is submitted, no warrant in law.

II.

The validity of a plan permitting each pupil annually to attend the 
public school of his free choice is implicit in the mandate of 

Brown v. Board of Education

A. T h e  M andate  of Brown v. Board of Education

The seed of the petitioners’ case is sown upon stony 
ground when they cite the Brown decisions for the proposi­
tion that the Fourteenth Amendment mandates compulsory 
integration of public schools. The petitioners construe these 
decisions to mean that the Fourteenth Amendment pro­
hibits public schools which are segregated from any cause

See Fischer, Educational Problems of Segregation and Desegrega­
tion, from Education in Depressed Areas, A. Harry Passow, editor, 
p. 290 (1963), in which the author commends “a maximum of free 
choice for all children” and criticizes the “growing pressure to locate 
schools, draw district lines, and organize curricula in order to achieve 
a pre-determined racial pattern or enrollment.” Id. at 296-97.

A sufficient answer to the petitioners’ complaint that a free choice 
plan iŝ  unreasonably burdensome and uneconomical to the school 
system is that these are not criteria under the Fourteenth Amendment.
dtt aov V' Altheimer> Arkansas Public School District, 378 F. 2d 

, 97 (8th Cir. 1967) (discussing costly and inefficient bus sys­
tems) . It is not conceded, moreover, that the geographic zone plan 
urge by the petitioners would be more economical and convenient 
to t le system. The inevitable result of this, based upon the racial 
alance concept implicit in the petitioners’ argument, would be to 

put the respondents in the zoning business—a diurnal haul indeed. 
6ee itwmn v_ Charlotte-Mecklenburg Board of Education, 369 F. 2d 29 
( m  Ur. 1966), and Deal v. Cincinnati Board of Education, 369 F. 2d 
55 (6th Car. 1966), cert, den., ...........  U.S............ , where the plain­
tiffs complained that the zones as drawn did not produce the “nec­
essary racial composition in the schools and argued that the Boards 
were required to re-zone or take other steps whenever necessary to 
achieve the proper racial composition in the schools . See also Bradley 
v. School Board of City of Richmond, 345 F. 2d 310 (4th Cir. 1965), 
vacated and remanded on other grounds, 382 U.S. 103.



9

whatsoever and requires the appropriate State authorities 
to compel integration.

This construction by the petitioners must yield to the un­
equivocal language of the Court itself: 10

We come then to the question presented: Does 
segregation of children in public schools solely on the 
basis of race, even though the physical facilities and 
other ‘tangible’ factors may be equal, deprive the chil­
dren of the minority group of equal educational oppor­
tunities? We believe that it does. (Emphasis added.)

To separate [Negroes] from others of similar age and 
qualifications solely because of their race generates a 
feeling of inferiority as to their status in the com­
munity. . . . (Emphasis added.)

[W]e hold that the plaintiffs and others similarly situ­
ated for whom the actions have been brought are, by 
reason of the segregation complained of, deprived of 
the equal protection of the laws guaranteed by the 
Fourteenth Amendment. (Emphasis added.)

The key to the meaning of Brown I  lies in the italicized 
words, taken in context. The “ segregation complained of,” 
which was held to deny equal protection of the laws, was 
the refusal of the respondents, solely on the basis of race, 
to permit Negroes to attend the school of their choice. It 
was, therefore, legally enforced segregation, solely on the 
basis of race, which the Court struck down— not freedom 
of choice. In fact, Mr. Justice Marshall himself, during 
his argument at the bar of this Court on December 9, 1952, 
in Case No. 101, carefully pointed out that the harm suf­
fered by the Negro children was the product of state-im­
posed segregation:

10347 U.S. at 493, 494 and 495 (Brown I ) .



10

But my emphasis is that all we are asking for is to 
take off this state-imposed segregation. It is the state- 
imposed part of it that affects the individual chil­
dren. . . .u

That Brown I permits the respondents’ freedom of choice 
plan is implicit in the fourth of five questions put to coun­
sel to reargue in terms of the proper method of achieving 
desegregation:12

4. Assuming it is decided that segregation in public 
schools violates the Fourteenth Amendment
(a) would a decree necessarily follow providing that, 
within the limits set by normal geographic school dis­
tricting, Negro children should forthwith be admitted 
to schools of their choice, or
(b) may this Court, in the exercise of its equity powers, 
permit an effective gradual adjustment to be brought 
about from existing segregated systems to a system not 
based on color distinctions? (Emphasis added.)

Clearly what concerned the Court was whether free 
choice shall be granted now or shall there be a gradual 
adjustment? Gradual adjustment to what? To schools with 
racial balance? No!— “ to a system not based on color dis­
tinctions.’" A freedom of choice plan, in which there is an 
unrestricted and unencumbered right to attend any school 
in the system, is manifestly not based on color distinctions.

The Court invited freedom of choice by the very nature

"Ward & Paul, Transcript of Brown v. Board of Education of 
Topeka p. 28 (Library, U.S. Supreme Court). See Conant, Slums 
and Suburbs p. 27 et seq. (1961). The author suggests that the pupils 
in a completely Negro school are not by that fact alone deprived of 
equal educational opportunities if they are not assigned solely because 
of their race. Id. at 28

12347 U.S. at 495, n. 13.



11

of the relief it was considering and, in addition, by its de­
cision in Brown II. There the Court answered question 
4(b) in the affirmative in remanding the cases to the dis­
trict courts for such orders and decrees as might be required 
to admit the petitioners to public schools on a racially non- 
discriminatory basis. Moreover, it is not without signifi­
cance that the Court couched its decision in terms of the 
admission, rather than the assignment, of students on a 
racially nondiscriminatory basis. A freedom of choice plan 
provides just such a basis in that the sole criterion for ad­
mission to any school is the individual’s free choice and not 
his race.13

B. T h e  Sh a p e  a n d  M e a n in g  o f  t h e  Brown v. Board of 
Education M an date

1. In the United States Supreme Court

The mandate of the Brown decisions was stated in un­
equivocal terms in Cooper v. Aaron, 358 U.S. 1, 5, 7 
(1958) :

On May 17, 1954, this Court decided that enforced 
racial segregation in the public schools of a State is 
a denial of the equal protection of the laws enjoined 
by the Fourteenth Amendment. (Emphasis added.)

State authorities were thus duty bound to devote every 
effort toward initiating desegregation and bringing 
about the elimination of racial discrimination in the 
public school system. (Emphasis added.)

13Provided, of course, the choice will not result in overcrowding. 
In this case the plan properly provides that where a school would 
become overcrowded if all the choices were granted, pupils choosing 
that school will be assigned to the school of their choice nearest to 
their homes.



12

Clearly the respondents are not “ duty bound” under the 
Fourteenth Amendment to compel Negro and white stu­
dents alike, solely because of their race, to attend certain 
schools for the avowed purpose of integrating the races, 
their free choices to the contrary notwithstanding.

Later decisions of this Court likewise fail to support 
the petitioners’ argument that the States have an obligation 
under the Fourteenth Amendment to enforce a mixed racial 
composition in their public school systems. In fact, this 
Court has conveyed the clear impression that a freedom 
of choice plan is constitutionally permissible under the 
Brown mandate, even though some sort of racial balance 
between Negroes and whites is not thereby produced 
throughout the school system. Thus, Calhoun v. Latimer, 
377 U.S. 263 (1964), was remanded to the district court 
for an evidentiary hearing to determine whether the re­
spondent’s free transfer plan, with the addenda adopted 
subsequent to argument, satisfied the desegregation man­
date of Brown.

Goss v. Board of Education of Knoxville, 373 U.S. 683, 
689 (1963), focused on the elimination of “state-imposed 
racial conditions” in the transfer of pupils. There the plan 
re-zoned school districts without reference to race but set 
up a transfer system under which students, upon request, 
would be permitted—solely on the basis of their race and 
the racial composition of the school to which they had been 
assigned to transfer from such school, where they would 
be in the racial minority, back to their former segregated 
school, where their race would be in the majority.

Although this Court held that a racial criterion for pur­
poses of transfer between public schools was unconstitu­
tional, it noted that:14

14373 U.S. at 687.



13

[I]f the transfer provisions were made available to all 
students regardless of their race and regardless as well 
of the racial composition of the schools to which he 
requested transfer we would have an entirely different 
case. Pupils could then at their option (or that of their 
parents) choose, entirely free of any imposed racial 
considerations, to remain in the school of their zone 
or to transfer to another. (Emphasis added.)

The respondents’ free choice plan is that “ entirely dif­
ferent case” in which each pupil (or his parents) is free 
to choose which school he will attend, “ entirely free of any 
imposed racial considerations.” There the pupil (or his 
parents) had to show that he came under the majority- 
minority transfer rule to justify his choice. Here the pupils 
are not required to justify their choice by any racial cri­
terion. It is unrestricted and unencumbered and, therefore, 
consistent with the following dictum from Goss v. Board of 
Education of Knoxville, supra, at 688-89:

This is not to say that appropriate transfer provi­
sions, upon the parents’ request, consistent with sound 
school administration and not based upon any state- 
imposed racial conditions would fall. Likewise, we 
would have a different case here if the transfer provi­
sions were unrestricted, allowing transfers to or from 
any school regardless of the race of the majority there­
in. (Emphasis added.)

There is no difference in principle in the respondents’ 
plan, which gives to each pupil an unrestricted right each 
year to choose the school he wishes to attend, and a plan 
which assigns pupils on a non-racial basis and then gives 
them an unrestricted right each year to transfer to the 
school they wish to attend.



14

Although this Court has decided several other cases in­
volving desegregation, the issue in most of them has been 
speed, i.e., the number of grades to be desegregated within 
a given time. Speed is not an issue in this case. The re­
spondents’ desegregation plan applied to all grades in the 
schools effective the 1966-67 school year.

2. In the other Federal Courts

The gist of the petitioners’ argument is that a public 
school system is segregated as long as there remains any 
school which is not attended by both white and Negro 
children. This argument was rejected by the three judge 
court on the remand in Brown v. Board of Education of 
Topeka, 139 F. Supp. 468, 470 (D. Kan. 1955) :

It was stressed at the hearing that such schools as 
Buchanan are all-colored schools and that in them 
there is no intermingling of colored and white chil­
dren. Desegregation does not mean that there must be 
intermingling of the races in all school districts. It 
means only that they may not be prevented from inter­
mingling or going to school together because of race 
or color.

In Briggs v. Elliott, 132 F. Supp. 776, 777 (E.D.S.C. 
1955), Judge Parker made perhaps the most famous ex­
pression of the constitutional distinction embodied in the 
Brown mandate:

W hat [the Supreme Court] has decided . . .  is that a 
state may not deny to any person on account of race the 
right to attend any school that it maintains. . . . Noth­
ing in the Constitution or in the decision of the Su­
preme Court takes away from the people freedom to 
choose the schools they attend. The Constitution, in



15

This fundamental distinction is supported by decisions 
in the Circuit Courts of Appeal for the Fourth Circuit 
(.Bradley v. School Board of City of Richmond, supra, which 
was followed by the Court of Appeals in the case at bar), 
the Sixth Circuit (Monroe v. Board of Commissioners of 
City of Jackson, 380 F. 2d 955 (1967)) (now under review 
in No. 740), the First Circuit (Springfield School Com­
mittee v. Barksdale, 348 F. 2d 261 (1965)), the Seventh 
Circuit {Bell v. School City of Gary, 324 F. 2d 209 (1963), 
cert, den., 377 U.S. 924), the Eighth Circuit (Clark v. 
Board of Education of Little Rock School District, 369 
F. 2d 661 (1966), reh. den., 374 F. 2d 569)15 and the Tenth 
Circuit (Downs v. Board of Education of Kansas City, 336 
F. 2d 988 (1964), cert, den., 380 U.S. 914).

The same distinction is implicit in Evans v. Ennis, 281 
F. 2d 385 (3d Cir. 1960). Although Judge Biggs’ state­
ment quoted on page 37 of the petitioners’ Brief appears to 
support their position (“ The Supreme Court has unquali­
fiedly declared integration to be their constitutional right.” ), 
it has been lifted out of the context of his repeated state­
ments about Negro children who “ desire,” “ seek” and “ will 
seek” integration. There was no suggestion that the state 
was to compel integration where the children (or parents) 
did not desire or seek to attend school on an integrated 
basis. See also Taylor v. Board of Education of City 15

15Contra, Kemp v. Beasley, ........... F. 2d.............. , No. 19017 Janu­
ary 9, 1968 (different panel of 8th Circuit). Compare Raney v. 
Board of Education of Gould School District, 381 F. 2d 252 (8th Cir. 
1967) (now under review in No. 805), with Kelley v. Altheimer, Ar­
kansas Public School District, supra, for a further illustration of the 
division in opinion among the panels in the Eighth Circuit.

other words, does not require integration. It merely
forbids discrimination.



16

School District of New Rochelle, 294 F. 2d 36 (2d Cir. 
1961), cert, den., 368 U.S. 940, where the court, after 
finding that the school board had deliberately drawn and 
maintained district lines to perpetuate a “Negro” school, 
decreed that the pupils were to be permitted (not com­
pelled) to transfer to other schools.

Moreover, support for the petitioners’ position is more 
apparent than real in Board of Education of Oklahoma 
City Public Schools v. Dowell, 375 F. 2d 158 (10th Cir. 
1967), cert, den., 387 U.S. 931. That case must be read in 
the fight of Downs v. Board of Education of Kansas City, 
supra, where the use of geographic attendance zones had 
resulted in some schools having an all white and some 
schools having an all Negro enrollment. The appellants’ 
argument that this result rendered the zone plan unconstitu­
tional was rejected by the court, at 998:

Appellants also contend that even though the Board 
may not be pursuing a policy of intentional segrega­
tion, there is still segregation in fact in the school sys­
tem and under the principles of Brown v. Board of 
Education, supra, the Board has a positive and affirma­
tive duty to eliminate segregation in fact as well as 
segregation by intention. 5Chile there seems to be 
authority to support that contention, the better rule is 
that although the Fourteenth Amendment prohibits 
segregation, it does not command integration of the 
races in the public schools and Negro children have 
no constitutional right to have white children attend 
school with them. (Footnote omitted.) (Citations 
omitted.) (Emphasis added.)

This principle was reaffirmed in the Oklahoma City 
case even though it required the school board to take af­
firmative action to promote integration. The distinction 
between the two cases is that in Oklahoma Citv the school



17

board had acted in bad faith in its plans (or lack thereof) 
to desegregate the school system (even failing to comply 
with a court order), while in the Kansas City case the 
school board had acted in good faith.

The Fifth Circuit alone has stated without qualification 
that there is no distinction in constitutional principle be­
tween “ desegregation” and “ integration,” and that the states 
have a duty under the Brown mandate to take affirmative 
action to achieve a mixed racial composition in all schools 
in the system.16 This position runs counter to the cases 
cited above from the other circuits, to the proscriptive lan­
guage of the Fourteenth Amendment, to the Civil Rights 
Act of 1964 and to the views of those who are trying to 
keep the educational lighthouse in sight amidst the turbu­
lent seas of litigation.

“Segregation” is, according to the petitioners’ definition, 
both a condition and an activity. In their use it means any 
situation in which all pupils in a particular school are of 
the same race, and apparently they contend that even so 
defined it is unconstitutional— at least in the South. The 
sounder view, it is submitted, is that merely the existence of 
a wholly white or wholly Negro school is not unconstitu­
tional per se,17 The missing ingredient is someone who is 
discriminated against, who is denied admission solely be­
cause of race. This is the true focus of the Brown mandate, 
and it points up the distinctive meaning of the words in­
volved. The mandate was thus understood by Jack Green­
berg, principal counsel for the petitioners: 18

16United States v. Jefferson County Board of Education, 372 F. 2d 
836 (5th Cir. 1966), aff’d with modifications on rehearing en banc, 
380 F. 2d 385 (1967) (four judges dissenting), cert. den. sub. nom., 
Caddo Parish School Board v. United States, 389 U.S. 840.

17See Conant, Note 11, supra.
18Greenberg, Race Relations and American Law pp. 239-40 (1959). 

See Conant, Note 11, supra.



18

Moreover, the jury discrimination precedents may be 
recalled: Bias may be presumed from a consistently 
segregated result; a token number of Negroes may be 
legally equivalent to none. If, however, in education 
there were complete freedom of choice, or geographic 
zoning, or any other nonracial standard, and all Ne­
groes still ended up in certain schools, there would seem 
to be no constitutional objection.

“ Segregation,” “ desegregation” and “ integration” are, 
therefore, words of art in legal contemplation, though it is 
significant that they are assigned distinctive meanings in 
other disciplines as well. Thus, Milton Myron Gordon, a 
sociologist at the University of Massachusetts, has writ­
ten :19

Desegregation refers to the elimination of racial 
criteria in the operation of public or quasi-public fa­
cilities, services, and institutions, which the individual 
is entitied to as a functioning citizen of the local or 
national community, equal in legal status to all other 
citizens. . . . Integration, however, embraces the idea 
of the removal of prejudice as well as civic discrimina­
tion and therefore refers to much more.

Proper definitions of these terms can be framed on the 
basis of the great body of decisional law and the Civil Rights 
Act of 196420:

Segregation— a system whereby persons of different 
races are required by the state to attend public schools 
set apart for their use only and are denied admission 
to all other public schools by the state solely because 
of a racial criterion.

lsNote 7, supra, p. 246. See generally Handlin. The Goals of In­
tegration, from Daedalus, p. 268 (Winter 1966).

M78 Stat. 241.



19

Desegregation— a plan whereby persons of different 
races are admitted to the public schools in the system 
without regard to their race.

Integration— the intermingling of persons of differ­
ent races in the same public schools, either by the free 
choice of the persons themselves or by compulsory as­
signment by the state through the use of race as a 
criterion for assignment.

3. In the Congress

The legislative history of the Civil Rights Act of 1964 
clearly shows that Congress did not intend or announce a 
national policy requiring the states to take affirmative ac­
tion to achieve integration of the races in every school 
throughout the public school system. This is manifest from 
the statements of the Senate floor leader for the Act, Hubert 
H. Humphrey, whose language paraphrased Judge Parker 
in Briggs v. Elliott, supra:21

Judge Beamer’s opinion in the Gary case [Bell v. School 
City of Gary, 213 F. Supp. 819 (N.D. Ind. 1963)] 
is significant in this connection. In discussing this case, 
as we did many times, it was decided to write the 
thrust of the court’s opinion into the proposed sub­
stitute.

I should like to make one further reference to the 
Gary case. This case makes it quite clear that while the 
Constitution prohibits segregation, it does not require 
integration. . . .  The bill does not attempt to integrate 
the schools, but it does attempt to eliminate segregation 
in the school systems. (Emphasis added.)

Since Congress intended to write the “ thrust” of the Gary 
opinion into the Civil Rights Act, an examination of that

21110 Cong. Rec. 12715, 12717.



20

case will disclose the national policy embodied in the Act. 
The third question presented to the court for determination 
in that case is the same that the petitioners now present to 
this Court:

Whether the plaintiffs [approximately 100 minor Negro 
children] and other members of the class have a con­
stitutional right to attend racially integrated schools 
and the defendant has a constitutional duty to provide 
and maintain a racially integrated school system. Id. 
at 820.

The question was answered in the negative by Judge 
Beamer, who relied upon Brown v. Board of Education of 
Topeka, supra, and Evans v. Buchanan, 207 F. Supp. 820 
D- Del. 1962). Judge Beamer quoted with approval from 

the latter case, at 830:

[T he States do not have an affirmative, constitu­
tional duty to provide an integrated education. The 
pertinent portion of the Fourteenth Amendment . . . 
reads, nor [shall any State] deny any person within 
its jurisdiction the equal protection of the laws.” This 
clause does not contemplate compelling action; rather, 
it is a prohibition preventing the States from applying 
their laws unequally.’

Therefore, the Civil Rights Act of 1964 embodies the 
policy that, while no Negro shall be denied admission to 
any public school solely because of his race, there is no 
constitutional right to attend a racially integrated school 
and no corresponding duty on the state to achieve racial 
integration in all schools. .Any lingering doubts should 
hav e been set to rest by the reaffirmation of this policy in 
the 1966 amendments to the Elementary and Secondary



21

In the administration of this chapter, no department, 
agency, officer, or employee of the United States shall 
exercise any direction, supervision, or control over the 
personnel, curriculum, or program of instruction of any 
school or school system of any local or State educa­
tional agency, or require the assignment or transporta­
tion of students or teachers in order to overcome racial 
imbalance.

C. F u l fill in g  t h e  Brown v. Board of Education 
M a n d a t e : T h e  F reedom  of C hoice  P lan

1. Whether the plan “ works” — constitutional principle 
or mathematical equation?

Freedom of choice plans have met with approval de­
spite the objections now made by the petitioners. The argu­
ment that they do not “work” because too few Negroes 
choose to attend formerly all white schools and whites seldom 
choose to attend the school formerly for Negroes alone was 
made and answered in Clark v. Board of Education of 
Little Rock School District, supra, at 666:

Plaintiffs are disturbed because only 621 of 7,341 
Negroes in the Little Rock school system of 23,000 
. . . were actually attending previously all white 
schools.22 23 Thus, they argue that the ‘freedom of choice’ 
plan is not succeeding in the integration of the schools.

Though the Board has a positive duty to initiate a

2280 Stat. 1212.
23HEW Documents filed by the petitioners show that 115 of 736 

Negroes are attending the formerly all white school in New Kent 
County, Virginia, in 1967-68.

Education Act of 1965, which added the emphasized lan­
guage below:22



22

plan of desegregation, the constitutionality of that plan 
does not necessarily depend upon favorable statistics 
indicating positive integration of the races. The Con­
stitution prohibits segregation of the races, the opera­
tion of a school system with dual attendance zones based 
upon race, and assignment of students on the basis of 
race to particular schools. If all of the students are, 
in fact, given a free and unhindered choice of schools, 
which is honored by the school board, it cannot be said 
that the state is segregating the races, operating a school 
with dual attendance areas, or considering race in the 
assignment of students to their classrooms. . . . The 
system is not subject to constitutional objections simply 
because large segments of whites and Negroes choose 
to continue attending their familiar schools.24

A like objection to freedom of choice was rejected in 
Bradley v. School Board of City of Richmond, supra, at 
315-16:

[T]he plaintiffs insist that there are a sufficient number 
of Negro parents who wish their children to attend 
schools populated entirely, or predominantly, by Ne­
groes to result in the continuance of some schools at­
tended only by Negroes. To that extent, they say that, 
under any freedom of choice system, the state ‘permits’ 
segregation if it does not deprive Negro parents of a 
right of choice.

It has been held again and again, however, that the 
Fourteenth Amendment prohibition is not against segre­
gation as such. The proscription is against discrimina­
tion. Everyone of every race has a right to be free of 
discrimination by the state by reason of his race. There 
is nothing in the Constitution which prevents his vol­
untary association with others of his race or which 
would strike down any state law which permits such 
association. The present suggestion that a Negro's

24Contra, Kemp v. Beasley, supra (different panel).



23

right to be free from discrimination requires that the 
state deprive him of his volition is incongruous.

There is no hint [in Brown] of a suggestion of a con­
stitutional requirement that a state must forbid volun­
tary associations or limit an individual’s freedom of 
choice except to the extent that such individual’s free­
dom of choice may be affected by the equal right of 
others. A state or a school district offends no constitu­
tional requirement when it grants to all students uni­
formly an unrestricted freedom of choice as to schools 
attended, so that each pupil, in effect, assigns himself 
to the school he wishes to attend.25

2. Private discrimination— promoted or suffered?

The petitioners have varied the theme of the arguments 
in Clark and Bradley in an effort to bring freedom of 
choice within the pale, however peripheral, of proscribed 
“state action” under the Fourteenth Amendment. Thus, 
in note 53 on page 42 of their Brief they suggest that by 
permitting students (or parents) to choose their schools, the 
respondents promote invidious discrimination which ren­
ders the plan unconstitutional.26

25Under the respondents’ freedom of choice plan there is a 15 day 
choice period each year, all school activities are covered, transporta­
tion is without regard to race, no person may be penalized or favored 
because of the choice made, and no school personnel may advise, 
recommend or influence choices. See Goss v. Board of Education of 
Knoxville, supra.

26The same point is stressed by the Solicitor General in his amicus 
Memorandum. He seems to assume that a freedom of choice plan 
peculiarly enables school patrons to succumb to the blandishments 
of racial prejudice. In reality school patrons are as likely to succumb 
even where geographic zoning or pairing devices are employed. The 
experience in the North and Washington, D. C., bears this out. The 
fact of the matter is that, in terms of integration, Negroes have a 
greater option under the freedom of choice plan. This is true because



24

The flaw in this argument is that, while the petitioners 
concede that the Constitution does not prohibit private 
discrimination, they are unable to point to any affirmative 
race-related, activity on the part of the respondents. It is 
settled, of course, that the state may remain neutral with 
respect to private racial discrimination. See Reitman v. 
Mulkey, 387 U.S. 369 (1967). And this would seem to 
be a sufficient answer to the petitioners’ argument because 
here, unlike Reitman v. Mulkey, supra, and other so-called 
“state action" cases,2' the state has made no classification 
on the basis of race and has not acted in any way to inject 
racial considerations in the free choice process.

The validity of the respondents’ plan is not based upon 
their neutrality, however. It is based upon the fact that the 
respondents have taken affirmative action towards the elimi­
nation of race as a criterion in the school comm unitv under 
the free choice plan. Thus, the Choice of School Form sent 
annually is accompanied by a letter on the school board 
letterhead, signed by the Superintendent of Schools, stat­
ing the following:

Dear Parent:
A plan for the desegregation of our school system has 
been put into effect so that our schools will operate

people may choose where they will live and whether their children 
will attend a private school, but because of their economic condition 
and housing pattern Negroes do not enjov the same choice. A free­
dom of choice plan alone enables Negroes to break a wav from housing 
patterns and a disadvantaged economic condition to achieve education 
in an integrated school. See Clark v. Board of Education of Little 
Rock School District, supra. Taliaferro Countv. Georgia, is a case in 
point. Its two schools were paired in 1965. when there were some 600 
Negro students and 200 white students. In 1967 there were 527 
Negro students and no whites. L nited States v. Je ~crson County 
Board of Education, supra, at 416. n. 6.

- E.g., Robinson v. Florida, 378 U.S. 153 1964 . Anderson v.
Martr:. 375 U.S. 399 (1964 '. and Lombard v. Louisiana. 373 US. 
267 (19631.



25

in all respects without regard to race, color, or national 
origin.

[T]here will be no discrimination based on race, color, 
or national origin in any school-connected services, fa­
cilities, activities and programs.28

The respondents have, therefore, committed the influence 
of their office to a nonracial school system and have com­
mended such a system to the community by means of this 
letter and by the publicity and community preparation ac­
tivities spelled out in Article X  of the Plan for School 
Desegregation.29

3. Free choice— whose?

The exercise of the choice in an acceptable freedom of 
choice plan was discussed by Judge Haynsworth in the 
companion case, Bowman v. County School Board of 
Charles City County, supra, at 327-28:

If each pupil, each year, attends the school of his 
choice, the Constitution does not require that he be 
deprived of his choice unless its exercise is not free.

Whether or not the choice is free may depend upon 
circumstances extraneous to the formal plan of the 
school board. If there is a contention that economic 
or other pressures in the community inhibit the free 
exercise of the choice, there must be a judicial appraisal 
of it, for ‘freedom of choice’ is acceptable only if the 
choice is free in the practical context of its exercise. 
If there are extraneous pressures which deprive the 
choice of its freedom, the school board may be re-

28The letter is set out in the petitioners’ Appendix at pp. 43a-44a.
29The Plan is set out in the Petitioners’ Appendix at pp. 34a-40a.



quired to adopt affirmative measures to counter them.

Since the plaintiffs here concede that their annual choice is unrestricted and unencumberedwe find in its 
existence no denial of any constitutional right not to 
be subjected to racial discrimination- (Emphasis 
added.)

Despite their concession in the Court of Appeals, the 
petitioners apparendy take the position that a free choice 
for Negroes in the South is a contradiction in terms. Yet 
the)' were unable to offer for judicial appraisal bv the Dis­
trict Court anything other than speculation and conjecture. 
Therefore- cases such as Coppedge v. Franklin County 
Board Gf Education, 273 F. Supp. 289 E.D.X.C. 1967), 
are scarcely relevant.

Moreover, the petitioners' argument that Negroes in New 
Kent County do not have a free choice is. in logic, post hac 
<ergo propter -.ac. From the fact that a greater number of 
Negro students have not chosen to attend the formerly all 
white school, the petitioners conclude that the Negroes do 
not have a free choice. the petitioners overlook is that
Negroes, like whites, may choose to remain in the same 
xthool simply because the surroundings are familiar and 
they have friends there.

Because they view any choice as the product of racial 
prejudice whites or coercion Negroes and disclaim non- 
racial choices, the petitioners would denv a choice to every­
one students and parents alike. The fundamental right 
of parents to direct the education of their children is. 
therefore, to be denied in the name of intesxation. their 
preference to the contrary notwithstandin g.®

»Cf. Pierce v. Society of Sisters of Hobe Xemes, 268 L\S. 510 
i 19251 . and Meyer v. .Wfrntsfca. 262 U.S. 396 1923 .



27

4. Compulsory integration in formerly de jure systems— 
principle or purge?

The petitioners argue that, since there was de jure segre­
gation in the New Kent County schools at the time of 
Brown v. Board of Education, supra, the respondents have 
an affirmative duty under the Fourteenth Amendment to 
enforce integration of the races in every public school. 
In support of this unique argument, they quote at length 
from United States v. Jefferson County Board of Educa­
tion, supra, which, interestingly enough, concluded by ap­
proving a freedom of choice plan.

There the court found such a duty following its re­
examination of school desegregation standards in the light 
of the Civil Rights Act of 1964 and the HEW Guidelines. 
As we have seen, the congressional intent was to embody 
in the Act the decision of Judge Beamer in Bell v. School 
City of Gary, supra. In Jefferson County the court (divided 
2-1) excised this intent by a tailored construction of the 
legislative history. It found that, although Senator Hum­
phrey spoke several times in the language of Briggs v. 
Elliott, his references to Bell v. School City of Gary “ indi­
cated” that the policy against affirmative, compulsory ac­
tion to achieve racial balance was directed to the Gary. 
Indiana, de facto segregation and did not apply to de jure 
segregation. Therefore, the court concluded, there was in 
fact a national policy that formerly de jure segregated pub­
lic school systems were obligated to take affirmative action 
m order to achieve a mixed racial composition throughout 
the entire system.31

3)The HEW Guidelines were considered an expression of such a 
national policy. In the instant case the petitioners did not, and 
properly so, predicate their case on the HEW Guidelines. Indeed, in 
note 44 on page 32 of their Brief the petitioners make an interesting



28

This conclusion is untenable, as four judges vigorously 
pointed out on the rehearing en banc. In the first place, the 
decision ignores the fact that the Gary school system had 
de jure segregation until 1949, and that Judge Beamer cited 
cases which upheld Briggs v. Elliott, clearly a de jure segre­
gation situation. Secondly, the decision fashions a double 
standard under the Fourteenth Amendment, one for the 
South and another for the North, on the basis of the de 
jure-de facto distinction. This is without support in prin­
ciple and reason. It completely rejects the fact that prior to 
1954 racially separate, if equal, public schools had not been 
declared unconstitutional.

The real concern about Jefferson County is that it will 
not be understood for what it is— an exercise in “social 
engineering.”32 There is cause for optimism, however, be­
cause the decision was not accepted by the Fourth Circuit 
in this case, and the error in its de jure-de facto distinction 
was clearly seen in Monroe v. Board of Commissioners of 
City of Jackson, supra, at 958:

However ugly and evil the biracial school systems ap­
pear in contemporary thinking, they were, as Jefferson, 
supia, concedes, de jure and were once found lawful 
in Plessy v. Ferguson . . . and such was the law for 58 
years thereafter. To apply a disparate rule because 
these early systems are now forbidden by Brown would

concession regarding the Guidelines. They state that HEW has ap­
proved free choice plans, despite their inability to disestablish the dual 
system only because such plans have received approval in the courts.

ee s, perhaps properly, that it may not enforce requirements more 
stringent than those imposed by the Fourteenth Amendment.”  (Em- 
R asls added.) This is tantamount to a concession by the petitioners 
that the requrrements they now ask this Court to impose are more 
stringent than those imposed by the Fourteenth Amendment.
„  Sj e0̂ f>t®s08 and 9> suPra- Cf. Moses v. Washington Parish School 
Board, 276 F. Supp. 834 (E. D. La. 1967).



29

be in the nature of imposing a judicial Bill of At­
tainder. . . . Neither, in our view, would such decrees 
comport with our current views of equal treatment 
before the law.

5. Integration and education— antitheticals?

It is hoped that the educational lighthouse is still in 
sight. It calls for an equal educational opportunity for 
all children, regardless of race, color or national origin. The 
respondents maintain that their public school system offers 
an opportunity for each child to receive as good an educa­
tion as every other child in the system, and apparently the 
petitioners do not challenge this in fact.

Their position seems to be that, as a matter of principle, 
the educational opportunity of Negro children is unequal 
and can never be equal unless they are made to attend 
classes with white children. Thus, if the free choices of 
children and parents produce schools which do not grant 
to Negro children the “ advantage” of education with white 
children, the Negro children are, ipso facto, receiving an 
education inferior to that of the whites and their fellow 
Negroes who are attending school with whites.

That argument is manifestly erroneous in two respects. 
First, it assumes that Negro children who freely choose not 
to attend an integrated school are thereby harmed. It is too 
incredible for belief that this circumstance generates a 
feeling of inferiority as to their status in the community. 
Certainly this proposition has never been tested and proved. 
Moses v. Washington Parish School Board, supra. The sec­
ond, and more fundamental error, was discussed in Moses 
at 845, 846:

It should be noted that the rather obvious objective 
of the proponents of the ‘equal educational oppor­
tunity’ theory is the elimination of racial prejudice



3 0

through the public school system, rather than the im­
mediate fulfillment of equal educational opportunities 
for all students. Little has been put forth to prove that 
actual and active integration will in fact of itself raise 
the educational opportunities even of formerly segre­
gated Negro students.

[T]he emphasis should always be on a good education 
for all students, and courts should refuse to rule that a 
particular all-Negro school, where the Negro concen­
tration is fortuitous, is ipso facto unequal and that the 
solution to the ‘problem’ is the forced mixing of the 
races.

Long ago it was settled that the hearts and minds of 
Negro children are adversely affected by a state’s refusal 
to admit them, solely because of their race, to the schools 
of their choice. We have now come full circle, but little 
or no consideration seems to have been given to the effect 
of compulsory integration on Negroes and whites alike. 
Is there no danger in compelling children, in the name of 
integration, to attend a certain school in order to achieve 
a certain racial composition, regardless of their own de­
sires? The matter was aptly put in Olson v. Board of Edu­
cation of Union Free School District, 250 F. Supp. 1000, 
1006 (E.D.N.Y. 1966), appeal dismissed, 367 F. 2d 565 
(2d C H r . ) :

[N]or did it [Brown] decide that there must be coerced 
integration of the races in order to accomplish educa­
tional equality for this also would require an appraisal 
of the effect upon the hearts and minds of those who 
were so coerced.

Like caveats have been sounded in terms of how com­
pulsory integration will affect the educational imperative. 
James Bryant Conant, whom the petitioners identify on



31

page 44 of their Brief as the author of the most important 
study of secondary education in America, warrants quoting 
at length:33 *

In some cities, political leaders have attempted to 
put pressure on the school authorities to have Negro 
children attend essentially white schools. In my judg­
ment the cities in which the authorities have yielded to 
this pressure are on the wrong track. Those which have 
not done so, like Chicago, are more likely to make 
progress in improving Negro education. It is my belief 
that satisfactory education can be provided in an all- 
Negro school through the expenditure of more money 
for needed staff and facilities. Moreover, I believe that 
any sense of inferiority among the pupils caused by 
the absence of white children can be largely if not 
wholly eliminated in two ways: first, in all cities there 
will be at least some schools that are in fact mixed 
because of the nature of the neighborhood they serve; 
second, throughout the city there ought to be an in­
tegrated staff of white and Negro teachers and ad- 
mimstrators.

A similar position has been taken by Oscar Handlin, 
another distinguished writer, who has called integration 
a “ false issue” :35

The insistence upon integration is thus self-frustrating, 
as the experience of Washington, D. C., shows. Fur­
ther pressure toward racial balance will certainly weak-

33Note 11, s u p ra , pp. 28-29.
MThe second suggestion of Dr. Conant points up the wisdom of the 

Circuit Court in remanding this case to the District Court to review 
and update the record and fashion proper decrees based upon  ̂its 
continuing observation of the plan in operation through the retention 
of jurisdiction.

35Note 19, s u p ra , p. 282.



3 2

en the public schools and leave the Negroes the greatest 
sufferers.36

These views warrant serious consideration. They make a 
point which has been overlooked too often: Desegregation 
(i.e., the elimination of state enforced segregation solely 
because of race) is a legal question; integration (i.e., the 
compulsory assignment of pupils to achieve intermingling) 
is an education question— best left for decision by educators, 
for educational purposes, on the basis of educational cri­
teria.37 A freedom of choice plan alone honors this dis­
tinction.

x Id. at 281. The experience in Taliaferro County, Georgia (Note 
26, supra) is a sad illustration of this. A unitary system was achieved, 
of course, but it is hardly what the proponents of compulsory inte­
gration intended and is unlikely to afford an adequate— let alone 
equal—educational opportunity to the Negro students.

37See Notes 8 and 9, supra.



33

CONCLUSION

WHEREFORE, for the foregoing reasons it is respect­
fully submitted that the judgment of the Court of Appeals 
for the Fourth Circuit should be affirmed.

Respectfully submitted,

F r e d e r i c k  T. G r a y  

W a l t e r  E. R o g e r s  

R o b e r t  E. E i c h e r

Counsel for Respondents

W i l l i a m s ,  M u l l e n  &  C h r i s t i a n  

1309 State-Planters Bank Bldg.
Richmond, Virginia 23219

Robert Y. Bu t to n  
Attorney General of Virginia 

Robert D. M c I l w a in e , I I I  
First Assistant Attorney General 
Richmond, Virginia



■

■











APPENDIX

Supreme Court of the United States
O ctober T erm , 1967

No. 695

Charles C. Green , et al.,

Petitioners,

County S chool B oard of N ew  K ent  County, 
V irginia, et al.,

Respondents.

ON W R IT  OF CERTIORARI TO T H E  U N ITED STATES 

COURT OF APPEALS FOB T H E  FOU RTH  CIRCUIT

PETITION FOR CERTIORARI FILED OCTOBER 9, 1967 

CERTIORARI GRANTED DECEMBER 11, 1967









I N D E X
PAGE

District Court Docket Sheet .........................................  la

Complaint.............................................................  3a

Motion to Dismiss.......................   13a

Order on Motion to Dismiss .........................................  14a

Plaintiffs’ Interrogatories .....................................    15a

Answer .............................................................................. 21a

Defendants’ Answers to Plaintiffs’ Interrogatories .... 23a

Plan for School Desegregation...................  34a

First Memorandum of the District Court ..................  47a

First Order of the District Court.................................. 49a

Defendants’ Plan Supplement.......................................  50a

Plaintiffs’ Exception to Plan Supplement ..................  52a

Final Memorandum of the District Court..................  53a

Final Order of the District Court.................................. 62a



11

PAGE

Decision of the United States Court of Appeals for 
the Fourth Circuit .....    63a

Opinions of the United States Court of Appeals for 
the Fourth Circuit___________________________  65a

Judgment of the United States Court of Appeals for 
the Fourth Circuit___________________________  90a

Order Extending Time to File Petition for Writ of 
Certiorari____________________________________ 91a

Order Allowing Certiorari________________________ 92a



District Court Docket Sheet

4266—New Kent
d a t e  p r o c e e d i n g s

1965
March 15 Complaint filed, summons issued.

Apr.

May

U

U
u

June
U

1966
May

5 Motion to dismiss filed by County School Board 
of New Kent Co., W. R. Davis, E. P. Binns, 
Jr., W. J. Wallace, Jr. and Harry S. Mount- 
castle, ind. & as members of the County 
School Board and Byrd W. Long, Div. 
Supt. of Schools of New Kent Co., Va.

3 Motion for consolidation of motion to dismiss
with hearing on merits, for requirement of 
answer by defts and for fixing of trial date 
filed by pltfs.

5 Order deferring ruling on motion to dismiss; 
directing defts. to answer on or before 6-1-65; 
directing Clerk to call case at next docket 
call, ent. 5-5-65. * * *

7 Interrogatories filed by plfs.
24 Order extending time to 6-8-65 for deft. School 

Board to file answers to interrogatories ent. 
5-24-65. * * *

1 Answer filed by defts.
8 Answer to interrogatories filed by County

School Board of New Kent Co., Va. Exhibits 
attached

* # t

4 Teial P b o c e e d i n g s — Butzner, J . : Parties ap­
peared by counsel. Issues joined. Discussion. 
Court to enter order.



2 a

DATE PROCEEDINGS

May 4 * * * Motion of defendants for 30 days within 
which to tile Plan, granted.

10 Plan of desegregation filed by School Board. 
17 Memorandum of the court filed
“ Order that defts/ motion to dismiss denied; 

Pltfs. prayer for an unjunction restraining 
school construction & purchase of school sites 
denied; Defts. granted leave to submit on or 
before June 6,1966 amendments to their plan 
which will provide for employment & assign­
ment on non-racial basis. Pending receipt of 
these amendments to their plan which will 
defer approval of plan & consideration of 
other injunctive relief; Pltfs. motion for 
counsel fees denied; Case will be retained 
upon docket with leave granted to any party 
to petition for further relief; Pltfs. shall re­
cover their costs to date.; ent. & filed; * * *

June 6 Motion for leave to file & request for approval 
of a plan supplement filed by defts. together 
with plan supplement.

10 Exceptions to plan supplement filed by pltf.
June 10 I n Open Court—Butzner, J .: Counsel dis­

cussed exceptions to Plan. Court will ap­
prove Plan.

16 Notice of Appeal from order of 5-17-66 filed by
plfs.

#  *  *

28 Memorandum of the Court filed.
Order approving Plan adopted by the New 

Kent County School Board, ent. 6-28-66. 
Case to be retained on docket. * * *



3a

Complaint

(Filed March 15, 1965)

I

1. (a) Jurisdiction of this Court is invoked under Title 
28, United States Code, Section 1331. This action arises 
under the Fourteenth Amendment to the Constitution of 
the United States, Section 1, and under Title 42, United 
States Code, Section 1981, as hereafter more fully appears. 
The matter in controversy, exclusive of interest and costs, 
exceeds the sum of Ten Thousand Dollars ($10,000.00).

(b) Jurisdiction is further invoked under Title 28, United 
States Code, Section 1343(3). This action is authorized by 
Title 42, United States Code, Section 1983 to be commenced 
by any citizen of the United States or other person within 
the jurisdiction thereof to redress the deprivation under 
color of state law, statute, ordinance, regulation, custom 
or usage of rights, privileges and immunities secured by 
the Fourteenth Amendment to the Constitution of the 
United States and by Title 42, United States Code, Sec­
tion 1981, providing for the equal rights of citizens and 
of all persons within the jurisdiction of the United States, 
as hereafter more fully appears.

n

2. Infant plaintiffs are Negroes, are citizens of the 
United States and of the Commonwealth of Virginia, and - 
are residents of and domiciled in the political subdivision 
of Virginia for which the defendant school board maintains 
and operates public schools. Said infants are within the



4a

age limits or will be within the age limits to attend, and 
possess or upon reaching such age limit will possess all 
qualifications and satisfy all requirements for admission 
to, said public schools.

3. Adult plaintiffs are Negroes, are citizens of the United 
States and are residents and taxpayers of and domiciled 
in the Commonwealth of Virginia and the above mentioned 
political subdivision thereof. Each adult plaintiff who is 
named in the caption as next friend of one or more of the 
infant plaintiffs is a parent, guardian or person standing 
in loco parentis of the infant or infants indicated.

4. The infant plaintiffs and their parents, guardians and 
persons standing in loco parentis bring this action in their 
own behalf and, there being common questions of law and 
fact affecting the rights of all other Negro children attend­
ing public schools in the Commonwealth of Virginia and, 
particularly, in the said political subdivision, similarly sit­
uated and affected with reference to the matters here in­
volved, who are so numerous as to make it impracticable 
to bring all before the Court, and a common relief being 
sought as will hereinafter more fully appear, the infant 
plaintiffs and their parents, guardians and persons stand­
ing in loco parentis also bring this action, pursuant to Rule 
23(a) of the Federal Rules of Civil Procedure, as a class 
action on behalf of all other Negro children attending or 
who hereafter will attend public schools in the Common­
wealth of Virginia and, particularly, in said political subdi­
vision and the parents and guardians of such children sim­
ilarly situated and affected with reference to the matters 
here involved.



5a

5. Further, the adult plaintiffs bring this action pursu­
ant to Rule 23(a) of the Federal Rules of Civil Procedure 
as a class action on behalf of those of the citizens and tax­
payers of said political subdivison who are Negroes; the 
tax raised contribution of persons of that class toward the 
establishment, operation and maintenance of the schools 
controlled by the defendant school board being in excess 
of $10,000.00. The interests of said class are adequately 
represented by the plaintiffs.

in
6. The Commonwealth of Virginia has declared public 

education a state function. The Constitution of Virginia, 
Article IX, Section 129, provides:

“Free schools to be maintained. The General As­
sembly shall establish and maintain an efficient system 
of public free schools throughout the State.”

Pursuant to this mandate, the General Assembly of Vir­
ginia has established a system of public free schools in the 
Commonwealth of Virginia according to a plan set out in 
Title 22, Chapters 1 to 15, inclusive, of the Code of Vir­
ginia, 1950. The establishment, maintenance and adminis­
tration of the public school system of Virginia is vested 
in a State Board of Education, a Superintendent of Public 
Instruction, Division Superintendents of Schools, and 
County, City and Town School Boards (Constitution of 
Virginia, Article IX, Sections 130-133; Code of Virginia, 
1950, Title 22, Chapter 1, Section 22-2).

IV

7- The defendant School Board exists pursuant to the 
Constitution and laws of the Commonwealth of Virginia as



6 a

an administrative department of the Commonwealth, dis­
charging governmental functions, and is declared by law 
to be a body corporate. Said School Board is empowered 
and required to establish, maintain, control and supervise 
an efficient system of public free schools in said political 
subdivision, to provide suitable and proper school build­
ings, furniture and equipment, and to maintain, manage 
and control the same, to determine the studies to be pur­
sued and the methods of teaching, to make local regulations 
for the conduct of the schools and for the proper discipline 
of students, to employ teachers, to provide for the trans­
portation of pupils, to enforce the school laws, and to per­
form numerous other duties, activities and functions essen­
tial to the establishment, maintenance and operation of the 
public free schools in said political subdivision. (Constitu­
tion of Virginia, Article IX, Section 133; Code of Virginia, 
1950, as amended, Title 22.) The names of the individual 
members of the defendant School Board are as stated 
in the caption and they are made defendants herein in their 
individual capacities.

8. The defendant Division Superintendent of Schools, 
whose name as such is stated in the caption, holds office 
pursuant to the Constitution and laws of the Common­
wealth of Virginia as an administrative officer of the pub­
lic free school system of Virginia. (Constitution of Vir­
ginia, Article IX, Section 133; Code of Virginia, 1950, as 
amended, Title 22.) He is under the authority, supervision 
and control of, and acts pursuant to the orders, policies, 
practices, customs and usages of the defendant School 
Board. He is made a defendant herein as an individual 
and in his official capacity.



7a

9. A Virginia statute, known as the Pupil Placement 
Act, first enacted as Chapter 70 of the Acts of the 1956 
Extra Session of the General Assembly, viz. Article 1.1 of 
Chapter 12 of Title 22 (Sections 22-232.1 through 22-232.17) 
of the Code of Virginia, 1950, as amended, confers or pur­
ports to confer upon the Pupil Placement Board all power 
of enrollment or placement of pupils in the public schools 
in Virginia and to charge said Pupil Placement Board to 
perform numerous duties, activities and functions per­
taining to the enrollment or placement of pupils in, and the 
determination of school attendance districts for, such pub­
lic schools, except in those counties, cities or towns which 
elect to be bound by the provisions of Article 1.2 of Chapter 
12 of Title 22 (Sections 22-232.18 through 22-232.31) of 
the Code of Virginia, 1950, as amended.

10. Plaintiffs are informed and believe that in execut­
ing its power or purported power of enrollment or place­
ment of pupils in and determination of school districts 
for the public schools of said political subdivision, the 
Pupil Placement Board will follow and approve the recom­
mendations of the defendant School Board unless it appears 
that such recommendation would deny the application of a 
Negro parent for the assignment of his child to a school 
attended by similarly situated white children.

11. The procedures provided by the Pupil Placement 
Act do not provide an adequate means by which the plain­
tiffs may obtain the relief here sought.

V

12. Notwithstanding the holding and admonitions in
Brown v. Board of Education, 347 U. S. 483 (1954) and



8 a

349 U. S. 294 (1955), the defendant School Board main­
tains and operates a biracial school system in which certain 
schools are designated for Negro students only and are 
staffed by Negro personnel and none other, and certain 
schools are designated for white students or primarily for 
white students and are staffed by white personnel and none 
other. This pattern continues unaffected except in the few 
instances, if any there are, in which individual Negroes 
have sought and obtained admission to one or more of the 
schools designated for white students. The defendants have 
not devoted efforts toward initiating nonsegregation in the 
public school system, neither have they made a reasonable 
start to effectuate a transition to a racially nondiscrimina- 
tory school system, as under paramount law it is their duty 
to do. Deliberately and purposefully, and solely because of 
race, the defendants continue to require or permit all or 
virtually all Negro public school children to attend schools 
where none but Negroes are enrolled and none but Negroes 
are employed as principal or teacher or administrative 
assistant and to require all white public school children 
to attend school where no Negroes, or at best few Negroes, 
are enrolled and where no Negroes teach or serve as princi­
pal or administrative assistant.

13. Heretofore, petitions signed by several persons 
similarly situated and conditioned as are the plaintiffs with 
respect to race, citizenship, residence and status as tax­
payers, were filed with the defendant School Board, asking 
the School Board to end racial segregation in the public 
school system and urging the Board to make announcement 
of its purpose to do so at its next regular meeting and 
promptly thereafter to adopt and publish a plan by which 
racial discrimination will be terminated with respect to



9 a

administrative personnel, teachers, clerical, custodial and 
other employees, transportation and other facilities, and 
the assignment of pupils to schools and classrooms.

14. Representatives of the plaintiff class forwarded 
said petitions to the defendant School Board with a letter, 
copy of which was sent to each member of the defendant 
School Board, part of which is next set forth:

“ * * * In the light of the following and other court 
decisions, your duty [to promptly end racial segrega­
tion in the public school system] is no longer open to 
question:

Brown v. Bd. of Education, 347 U. S. 483 (1954);
Brown v. Bd. of Education, 349 U. S. 294 (1955);
Cooper v. Aaron, 358 U. S. 1 (1958);
Bradley v. School Bd. of the City of Richmond, 

317 F 2d 429 (4th Cir. 1963);
Bell v. Co. School Ed. of Powhatan Co., 321 F 

2d 494 (4th Cir. 1963).

“We call to your attention the fact that in the last 
cited case the unyielding refusal of the County School 
Board of Powhatan County, Virginia, to take any 
initiative with regard to its duty to desegregate schools 
resulted in the board’s being required to pay costs of 
litigation including compensation to the attorneys for 
the Negro school children and their parents. We are 
advised that upon a showing of a deliberate refusal 
of individual school board members to perform their 
clear duty to desegregate schools, the courts may re­
quire them as individuals to bear the expense of the 
litigation.



10a

“In the case of Watson v. City of Memphis, 373 U. S. 
526 (1963) the Supreme Court of the United States 
expressed its unanimous dissatisfaction with the sloth­
fulness which has followed its 1955 mandate in Brown 
v. Board of Education, saying: ‘The basic guarantees 
of our Constitution are warrants for the here and now 
and, unless there is an overwhelmingly compelling rea­
son, they are to be promptly fulfilled.’ ”

15. More than two regular meetings of the defendant 
School Board have been held since it received the petitions 
and letter above referred to. Neither by word or deed has 
the defendant School Board indicated its willingness to end 
racial segregation in its public school system.

VI
16. In the following and other particulars, plaintiffs suf­

fer and will continue to suffer irreparable injury as a 
result of the persistent failure and refusal of the defen­
dants to initiate desegregation and to adopt and implement 
a plan providing for the elimination of racial discrimina­
tion in the public school system.

17. Negro public school children are yet being edu­
cated in inherently unequal separate educational facilities 
specially sited, built, equipped and staffed as Negro schools, 
in violation of their liberty and of tlieir right to equal 
protection of the laws.

18. Negro adult citizens are yet being taxed for the 
support and maintenance of a biracial school system the 
very existence of which connotes a degrading classification 
of the citizenship status of persons of the Negro race, in 
violation of the Fourteenth Amendment to the Constitution.



11a

19. Public funds are being spent and will be spent by 
the defendants for the erection of schools and additions to 
schools deliberately planned and sited so as to insure or 
facilitate the continued separation of Negro children in the 
public school system from others of similar age and quali­
fication solely because of their race, contrary to the pro­
visions of the Fourteenth Amendment which forbid gov­
ernmental agencies, whether acting ingeniously or ingenu­
ously, to make any distinctions between citizens based 
on race.

20. This action has been necessitated by reason of the 
failure and refusal of the individual members of the defen­
dant School Board to execute and perform their official 
duty, which since May 31, 1955 has been clear, to initiate 
desegregation and to make and execute plans to bring about 
the elimination of racial discrimination in the public school 
system.

V II

W h e r e f o r e , p l a i n t i f f s  r e s p e c t f u l l y  p r a y :

A. That the defendants be restrained and enjoined from 
failing and refusing to adopt and forthwith implement 
a plan which will provide for the prompt and efficient elimi­
nation of racial segregation in the public schools operated 
by the defendant School Board, including the elimination of 
any and all forms of racial discrimination with respect to 
administrative personnel, teachers, clerical, custodial and 
other employees, transportation and other facilities, and 
the assignment of pupils to schools and classrooms.

B. That pending the Court’s approval of such plan the 
defendants be enjoined and restrained from initiating or



12a

proceeding further with the construction of any school 
building or of any addition to an existing school building 
or the purchase of land for either purpose to any extent 
not previously approved by the Court.

C. That the defendants pay the costs of this action in­
cluding fees for the plaintiffs’ attorneys in such amounts 
as to the Court may appear reasonable and proper and that 
the plaintiffs have such other and further relief as may be 
just.

/ s /  S. W . T uckeb Of Counsel for Plaintiffs



13a

Motion to Dismiss

(Filed April 5, 1965)

Now come the Comity School Board of New Kent County, 
Virginia, W. K. Davis, E. P. Binns, Jr., W. J. Wallace, Jr., 
and Harry S. Mountcastle, individually and as members of 
the County School Board, and comes Byrd W. Long, Divi­
sion Superintendent of Schools of New Kent County, Vir­
ginia, and move the Court to dismiss the Complaint herein 
upon the following grounds:

1. The Complaint fails to state a claim upon which 
relief can be granted.

(Signature of Counsel Omitted)



14a

Order on Motion to Dismiss

The Court defers ruling on the motion to dismiss. The 
defendants are directed to answer on or before June 1, 
1965.

The Clerk is directed to call this case at the next docket 
call.

Let the Clerk send copies of this order to counsel of 
record.

May 5,1965

/ s /  John D. B utzxer, Jr. 
United States District Judge



15a

Plaintiffs’ Interrogatories

(Filed May 7, 1965)

Plaintiffs request that the defendant School Board, by 
an officer or agent thereof, answer under oath in accordance 
with Rule 33, Federal Rules of Civil Procedure, the follow­
ing interrogatories:

1. List for each public school operated by the defendant 
School Board the following:

a. Date on which each school was erected;

b. Grades served by each school during the 1964-65 
school term;

c. Planned pupil capacity of each school;

d. Number of white pupils in attendance at school 
in each grade level as of most recent dates for which 
figures are available for 1964-65 term;

e. Number of Negro pupils in attendance at school 
in each grade level as of most recent date for which 
figures are available for 1964-65 term;

f. Number of Negro teachers and other administra­
tive or professional personnel and the number of white 
teachers, etc., employed at each school during 1964-65 
school term;

g. Pupil-teacher ratio at each school during 1964- 
65 school term (most recent available figures);

h. Average class size for each school during 1964- 
65 school term (most recent available figures);

i. Name and address of principal of each school.



16a

2. Furnish a map or maps indicating the attendance 
areas served by each school in the system during the 1963- 
64 term and the 1964-65 term. If no such map or maps can 
be furnished, state where such maps or other descriptions 
of the attendance areas may be found and inspected.

3. State the number of Negro pupils and the number of 
white pupils, by grade level, residing in each attendance 
area established by the School Board during the 1964-65 
school term. If definite figures are unavailable, give the 
best projections or estimates available, stating the basis 
for any such estimates or projections.

4. State whether any pupils are transported by school 
buses to schools within the school division, and if there are 
any, give the average daily attendance of transported stu­
dents during 1964-65 term, stating separately the number 
of white pupils and the number of Negro pupils in the ele­
mentary grades and in the high schools and in the junior 
high schools.

5. Furnish a map or maps indicating the bus routes in 
effect throughout the school division during the 1963-64 
term and for the 1964-65 term (indicate for each bus route 
the name and address of the bus driver and the race of the 
students transported).

6. State with respect to the 1964-65 term, the total num­
ber of white pupils who reside in the attendance area of 
an all-Negro school, but were in attendance at an all-white 
or predominantly white school. Indicate with respect to 
such pupils the following:

a. Number, by grade, residing in the attendance 
area of each Negro school;



7. State the total number of Negro pupils who were 
initially assigned to attend all-white or predominantly white 
schools for the first time during either the 1963-64 school 
term or the 1964-65 term. Give a breakdown of these totals 
by schools and grades.

8. State whether during the 1964-65 term it was neces­
sary at any schools to utilize for classroom purposes any 
areas not primarily intended for such use, such as library 
areas, teachers’ lounges, cafeterias, gymnasiums, etc. If so, 
list the schools and facilities so utilized.

9. State whether a program or course in Distributive 
Education is offered in the school system and if so at what 
schools it is offered.

10. Are any special teachers for subjects such as art and 
music provided?

11. If so, state:

a. The number of such special teachers in the sys­
tem;

b. The number of full-time special teachers;

c. The number of part-time special teachers;

d. The schools to which they are assigned for the 
current school year;

e. The schools to which they were assigned for the 
preceding school year.

b. The schools actually attended by white pupils
residing in the attendance area of each Negro school.



18a

12. Indicate whether a program of vocational education 
was offered in any school or schools in the system during 
the 1963-64 or the 1964-65 school term.

13. If so, state for each such year the name of each vo­
cational education course at each school and the number 
of pupils enrolled therein; and give the number of indi­
viduals teaching vocational education at each school.

14. Furnish a statement of the curriculum offered at each 
junior high school and each high school in the system dur­
ing the 1964-65 term.

15. Furnish a list of the courses of instruction, if any, 
which are available to seventh grade students who attend 
junior high schools in the system hut are not available to 
those seventh grade pupils assigned to elementary schools.

16. State whether any summer school programs operated 
by the School Board have been operated on a desegregated 
basis with Negro and white pupils attending the same 
classes.

17. Are any buildings of frame construction presently 
being utilized for schools? If so, which ones?

18. Are any of the school buildings in need of major 
repairs ? If so, which ones ?

19. State with respect to any new school construction 
which is now contemplated, the following with respect to 
each such project:

a. Location of contemplated school or addition;



b. Size of school, present and proposed number of 
classrooms, grades to be served, and projected ca­
pacity;

c. Estimated date of completion and occupancy;

d. Number of Negro pupils and number of white 
pupils attending grades to be served by such school 
who reside in existing or projected attendance area 
for such school.

20. State as to each teacher and principal first employed 
by the School Board during the school year 1964-65 and 
each of the four preceding school terms the following:

a. His or her name, age at time of such employment, 
sex, race;

b. Initial date of employment by the defendant 
School Board;

c. Teaching experience prior to employment by de­
fendant School Board;

d. College from which graduated and degrees 
earned;

e. Major subjects studied in college and in graduate 
school ;

f. Certificate from State Board of Education held 
at time of initial employment by defendant School 
Board, date thereof, and specific endorsements thereon;

g. The school and (elementary) grade or (high 
school) subjects which he was assigned to teach at 
time of initial employment;

h. Ratings earned for each year since initial employ­
ment by defendant School Board.



20a

21. Are any records maintained which reflect the turn­
over of teachers in each school!

22. If so, state:

a. Type of records maintained;

b. For what periods such records are maintained;

c. Where they are located;

d. In whose custody they are maintained.

23. Are any records maintained which reflect the mobil­
ity of children in and out of the school system and in and 
out of specific schools, including transfers and dropouts!

24. If so, state:

a. Type of records maintained;

b. Where these records are located;

c. In whose custody they are maintained.

25. State the amount of funds received through programs 
of Federal assistance to education during each of the school 
sessions 1963-64 and 1964-65.

26. State whether any pledge of non-discrimination has 
been signed by or on behalf of defendant School Board.

27. Give a copy of any plans for desegregation submitted 
to the Department of Health, Education and Welfare or 
to any other agency of the State or Federal Government.

P lease take notice that a cop y  o f  such answers must 
be served upon the undersigned within fifteen days after 
service.

/ s /  H enry L. M arsh III 
Of Counsel for Plaintiffs



21a

Answer

(Filed June 1, 1965)

The undersigned defendants for Answer to the Complaint 
exhibited against them say as follows:

1. These defendants deny that the amount in contro­
versy herein exceeds the sum of Ten Thousand Dollars 
($10,000.00) as alleged in paragraph 1 (a) of the Com­
plaint.

2. These defendants deny that this Court has jurisdic­
tion under Title 28, United States Code, Section 1331 or 
Title 28, United States Code, Section 1343(3) or Title 42, 
United States Code, Section 1983 to grant any of the relief 
prayed for in the Complaint.

3. The allegations of paragraphs 2 and 3 of the Com­
plaint are neither admitted or denied but the defendants 
believe the allegations to be essentially true.

4. These defendants specifically deny that there are 
questions of law and fact affecting the rights of all other 
Negro children attending public schools in the said po­
litical subdivision and call for strict proof thereof and of 
the fact that it is impracticable to bring all before the 
Court who desire the relief being sought. These defen­
dants affirmatively allege that, as will hereinafter more 
fully appear, the Constitutional and statutory rights of 
all children in the said political subdivision, in so far as 
public schools are concerned, are protected by the defen­
dants and the desire for the relief being sought is common 
°uly to the named plaintiffs.

5. These defendants deny that grounds for a class ac­
tion exist as alleged in paragraph 5 of the Complaint and



22a

6. The allegations of paragraphs 6, 7, 8 and 9 of the 
Complaint are admitted insofar as they assert the existence 
of various Constitutional and statutory provisions of the 
Commonwealth of Virginia. These defendants are not re­
quired and therefore do not admit or deny the accuracy 
of the plaintiffs interpretation of the provisions of law to 
which reference is made.

7. These defendants believe the allegations of paragraph 
10 to be correct except that they believe that the Pupil 
Placement Board would refuse to follow any recommen­
dations which denied an application due to the race of the 
applicant whether the applicant be Negro or white.

8. These defendants, in answer to paragraph 11 of the 
Complaint, assert that the assignment procedures avail­
able to the plaintiffs afford an adequate means for ob­
taining all rights to which they are entitled.

9. The allegations of paragraphs 12, 13, 14, 15, 16, 17, 
18, 19 and 20 are denied except that the defendants admit 
having received the petition and letter referred to in para­
graphs 13 and 14.

10. Infant plaintiffs and all others eligible to enroll in 
the pupil schools in the political subdivision are permitted, 
under existing policy, to attend the school of their choice 
without regard to race subject only to limitations of space.

W herefore, defendants p ray  to be dism issed with their 
costs.

deny that those constituting the gi'oup seeking relief herein
contributed taxes in excess of $10,000.00 and call for strict
proof.

(Signature of Counsel Omitted)



2 3 a

Defendants’ Answers to Plaintiffs’ Interrogatories

(Filed June 8, 1965)

Now comes Byrd W. Long, Division Superintendent of 
schools of New Kent County, Virginia, and submits the 
following answers to interrogatories filed by the plaintiffs, 
said answers correspond to the numbered paragraphs in 
the interrogatories, to-wit:

1. a. Date on which each school was erected:

1. New Kent High School erected 1930 (Addi­
tion 1934). Elementary Building erected 1954 (Ad­
dition 1961).

2. George W. Watkins High School erected 1950. 
Elementary Building erected 1958 (Addition 1961).

b. Grades served by each school during the 1964-65 
school term:

1. New Kent served grades one through twelve.

2. George W. Watkins served grades one through 
twelve.

c. Planned pupil capacity of each school:

1. New Kent High School 207, New Kent Ele­
mentary School 330.

2. George W. Watkins High School 207, George 
W. Watkins Elementary School 420.

d. Pupils by grades—New Kent (All White) 
Elementary: 1-54; 2-61; 3-51; 4-57; 5-48; 6-54; 
7-42.
High School: 8-41; 9-49; 10-42; 11-33; 12-20.



24a

e. Pupils by grades—George W. Watkins (All 
Colored)

Elementary: 1-87; 2-73; 3-94; 4-79; 5-60; 6-77;
7-68.
High School: 8-49; 9-43; 10-34; 11-37; 12-38.

f. Negro school—1 Principal, 1 Librarian, 26 Teach­
ers, 1 Supervisor, 1 Counselor

White school—1 Principal, 1 Librarian, 26 Teach­
ers, 1 Supervisor, 1 Counselor

g. Pupil-teacher ratio at each school during 1964-65 
school term: New Kent-22—George W. Watkins-28

h. Average class size for each school during 1964-65 
school term, Grades 1-12: New Kent-21—George W. 
Watkins-26

i. Name and address of principal of each school: Ger­
ald W. Tudor, New Kent High School, New Kent Vir­
ginia; Todd W. Dillard, George W. Watkins High 
School, Quinton, Va.

2. New Kent County has no attendance areas. A map 
of the County may be obtained from the Virginia Depart­
ment of Highways.

3. As stated in No. 2 above. New Kent County is not 
divided into school attendance areas.

4. Eleven school buses transport pupils to die George 
W. W atkins school. Ten school buses transport pupils to 
the New Kent School. One bus transports IS Indian chil­
dren to a Charles City School. By agreement this bus also 
transports 60 Charles City children.



25a

White pupils transported—548 

Negro pupils transported—710

5. Bus routes in 1963-64 and 1964-65 are the same. 
See attached maps—names of drivers of buses are shown 
on maps. (Exhibits A  and B)

6. As stated in No. 2 and 3 above, New Kent County 
is not divided into attendance areas.

7. New Kent County Schools have been operated on a 
Freedom of Choice Plan administered by the State Pupil 
Placement Board since the establishment of the Pupil Place­
ment Board. To September 1964, no Negro pupil had applied 
for admission to the New Kent School and no White pupil 
had applied for admission to the George W. Watkins School.

8. Both schools are crowded beyond capacity in the 
high school departments.

New Kent High School: Two basement areas, a 
conference room, stage dressing room, and the audi­
torium are used for classes.

George W. Watkins High School: Two basement 
areas, clinic room, and a part of the Vocational Shop 
are used for classes.

9. Distributive Education is not offered in either school.

10. There are special teachers for subjects such as art 
and music.

11. a. New Kent High School—Part-time music teach­
er. George W. Watkins High School—Part-time music



26a

teacher. New Kent Elementary School—Part-time music 
teacher.

b. One—New Kent School—Full time.

c. One—George W. Watkins School—Part-time.
d. Stated in b. and c.

e. Same as stated in b. and c.

12. Vocational Home Economics and Vocational Agri­
culture were offered in both schools during 1963-64 and 
during 1964-65.

13. Substantially the same for 1964-65 and 1963-64.

New Kent High School offered Vocational Agricul­
ture and Home Economics. Vocational Agriculture: 
1 teacher, 63 pupils. Home Economics: 1 teacher, 32 
pupils.

George W. Watkins High School offered Vocational 
Agriculture and Home Economics. Vocational Agri­
culture : 1 teacher, 52 pupils. Home Economics: 1 teach­
er, 56 pupils.

14. New Kent County has no junior high schools. Each 
of the two schools are operated on the plan called the 7-5 
plan, which consists of 7 elementary grades and 5 high 
school grades.

Each high school offers the following: Academic 
Curriculum, Vocational Curriculum, General Course.

Tlie Academic Curriculum is geared mainly for pupils 
preparing for college.



27a

The Vocational Course is offered pupils not planning for 
college, and a boy may major in Agriculture; a girl in Home 
Making; and a boy or girl may major in Commercial 
courses.

Those pupils planning to seek work in general employ­
ment may enroll in a general course.

Each high school has a guidance counselor who attempts 
to aid the pupil and parent in the selection of a course ac­
cording to the pupil’s aptitude and his desired type of 
employment after graduation.

15. New Kent County has no Seventh grade pupils who 
take courses in the high school department.

Each school in New Kent County is a combination high 
school and elementary school, but teachers do not work 
partly in high school and partly in elementary school.

16. The School Board of New Kent County offers no 
summer school program in any school.

17. At the George W. Watkins School the Agriculture 
building is a frame building.

18. Extensive repairs were made at both schools during 
the summer of 1963 and 1964. No major repairs are needed 
at either school at the present time.

19. a. New Kent School—campus type addition. George 
W. Watkins School campus type addition.

b. New Kent School—4 classrooms planned: 2 sev­
enth grade classrooms; 2 sixth grade classrooms; two 
toilets to serve the four rooms. This addition will serve 
6th & 7th grade pupils at the above school. George



28a

W. Watkins School—4 classrooms planned: 2 seventh 
grade classrooms; 2 sixth grade classrooms; two toilets 
to serve the four rooms. This addition will serve 6th & 
7th grade pupils at the above school.

c. A completion date has not been set for this project 
as State Literary Loan funds have not been released.

The two above projects will be let to bid at the same 
time and one contract will be executed for both of the 
projects.

d. New Kent County has no attendance areas.

20. George W. Watkins High School and Grade School:
a. Todd W. Hillard. Principal. Male, age 80, Negro
b. Employed April, 1964, effective July L 1964

c. Four years experience

d. B.S. Virginia State College—Work completed 
for Masters Degree

e. Science and Mathematics Major

f. Collegiate Professional Certificate 
g- Does not team—tnl.-tire PrirLpsi 

k. Bated as superior

New Kent High School and Grade School: 

s. Gersic W. Trcor. Principal. Mile, age IS. White 

t- Employed July 14. 1964 

c. Five years experience

d ?  S. Fas: Car.'hra 1 - g — ;rs c i :  .eted for 
Misters Degree



29a

e. Physical Education

f. Collegiate Professional Certificate

g. Does not teach—full-time Principal

For information regarding teachers, see attached 
Exhibit “ C”.

21. Records in the School Board Office will reflect the 
turnover of teachers in each school.

22. Contract with teachers are executed annually for 
a period of one year. A  report of teachers contracted with 
for each year is filed in the school board office.

a. As stated above

b. For past 5 years

e. School Board Office

d. The Clerk of the School Board

23. Teachers’ attendance registers record entries, re­
entries and withdrawals. Xo other special records are kept.

24. Teachers registers

a. Same as above

b. School Board Office

e. Clerk of School Board

25. Federal Funds L963-S4
School L u n ch _________________________ £  4,554.68
PL 874_____________________________________ 9,612.00
X D E A ___________________________________  1,572.00
Guidance___________________________________ 2/XXJ.00

Total *17,738.68



30a

Federal Funds—Estimated—1964-65
School Lunch .................................................$ 5,500.00
PL 874 ............................................................  9,800.00
NDEA ............. .............................................. 1,750.00
Guidance ......................................................... 2,000.00

Total .............................................................. $19,050.00

26. Yes
HEW Form 441

27. Plan to accompany HEW Form 441 has not been 
completed at this date.

/ s /  B yrd W. L ong 
Byrd W. Long, Division Superin­
tendent of Schools of New Kent 
County, Virginia



31a

Exhibit C
20. Continued

Paul Gilley, age 22, white, male, b. 1963, c. None, d. 
V.P.I., B.S., e. Agriculture, f. Collegiate Professional, 
Agricultural, g. Agriculture, New Kent High School, h. 
Teachers are not rated in this Division.

Edward J. Stansfield, age 24, white, male, b. 1961, c. 
None, d. Houghton, B.A., e. Sociology, f. Collegiate, Soci­
ology, History, English, g. History, English, New Kent 
High School.

Billy E. Eicks, age 21, white, male, b. 1964, c. None, d. 
East Carolina, B.A., e. History and Social Science, f. Col­
legiate History and Social Science, g. History, New Kent 
High School.

John E. Averett, age 25, white, male, b. 1963, c. 2 years, 
d. University of Eichmond, no degree, e. Physical Educa­
tion, f. Special License, g. Math, Physical Education, New 
Kent High School.

Jayne P. Thomas, age 31, white, female, b. 1962, c. 2 
years, d. Madison, B.M. Education, e. Music, f. Collegiate 
Professional, Music, g. Music, New Kent High and Ele­
mentary School.

Mary W. Potts, age 38, white, female, b. 1963, c. 4 years, 
d. Longwood, B.S., e. English, Chemistry, f. Collegiate 
Professional 6th and 7th grades, g. 7th grade, New Kent 
Elementary School.

Alice V. Fisher, age 56, white, female, b. 1963, c. 16 
years, d. Mary Washington, no degree, e. Elementary Edu­
cation, f. Special License, g. 5th grade, New Kent Ele­
mentary.



32a

Shirley F. Francisco, age 31, white, female, b. 1964, c. 2 
years, d. Madison, no degree, e. Elementary Education, f. 
Special License, g. 2nd grade, New Kent Elementary.

Patricia B. Averett, age 20, white, female, b. 1963, c. 
None, d. Ferrum, no degree, e. Elementary Education, f, 
Special License, g. 1st grade, New Kent Elementary School.

Murray Carson, age 53, white, male, b. 1964, c. None, 
d. Averett, no degree, e. English and History, f. Special 
License, g. 1/2 day English, New Kent High School.

Laurenstine Porter, age 22, Negro, female, b. 1964,
c. Is one, d. North Carolina College B.S., e. Library, f. Col­
legiate, Health and Physical Education, Library Science,
g. Librarian, G. W. Watkins High & Elementary School.

Guy A. Boykins, age 57, Negro, male, b. 1960, c. None,
d. \ irginia Union University, A.B., e. Social Studies and 
History, f. Collegiate Professional, English, g. Social Stud­
ies and History, G. W. Watkins High School.

James E. Coleman, age 23, Negro, male, b. 1964, c. None, 
d. \ irginia Union, no degree, e. Chemistry, f. Special Li­
cense, Science and Physical Education, g. Science and Phys­
ical Education, G. W. Watkins High School.

Edith Jackson, age 24. Negro, female, b. 1960, c. None, 
d. 1 irginia Union, B.S., e. Business, f. Collegiate Profes­
sional, Business, g. Commercial. G. W. Watkins High 
School.

Gloria Miller, age 41, Negro, female, b. 1964. c. 2 years, 
d. 1 irginia Union. B.A.. e. Elementary, f. Collegiate Pro­
fessional—English and History, g. English and French, 
G. W. Watkins High School.

John A. Baker, age 39. Negro, male. b. 1961, c. 13 years, 
d. Wilburforce l  niversity, B.S., e. Agriculture, f. Collegiate 
Professional, g. Agriculture. G. W. Watkins High School.



33a

Charles J. Washington, Sr., age 53, Negro, male, b. 1962,
c. None, d. Virginia Union, B.A., e. English, f. Collegiate 
Professional—English and Latin, g. English, G. W. Wat­
kins High School.

Seth Pruden, age 37, Negro, male, b. 1960, c. None, d. 
Virginia Union, B.S., e. History, f. Collegiate Professional 
—French and History, g. 7th grade, G. W. Watkins 
Elementary School.

Phillip Battle, age 24, Negro, male, b. 1963, c. None, d. 
St. Paul’s, B.A., e. History and Social Sciences, f. Col­
legiate—History and Social Sciences, g. 7th grade, G. W. 
Watkins Elementary School.

Natalie Boykins, age 24, Negro, female, b. 1964, c. 2 
years, d. Virginia State, B.A., e. Sociology, f. Collegiate— 
Sociology, g. 6th grade, G. W. Watkins Elementary School.

Julia Boyce, age 34, Negro, female, b. 1961, c. 10 years,
d. Virginia State, B.S., e. English and Physical Education,
f. Collegiate Professional—All grade subjects in 6th and 
7th, g. 5th grade, G. W. Watkins Elementary School.

Willie Gillen water, age 34, Negro, female, b. 1963, c. 2, 
d. Virginia Union, B.A., e. Elementary Education, f. Col­
legiate Professional—English, g. 4th grade, G. W. Wat­
kins School—Elementary.

Audrey Dillard, age 28, Negro, female, b. 1963, c. 6 years, 
d. Virginia State, A.B., e. Social Studies, f. Collegiate Pro­
fessional—History, g. 4th Grade, G. W. Watkins School 
—Elementary.

Dorothy Joyner, age 28, Negro, female, b. 1961, c. 3 
years, d. Winston Salem, B.S., e. English & History, f. Col­
legiate Professional—Elementary7, g. 2nd grade, G. W. 
Watkins School—Elementary.

Susie Bates, age 23, Negro, female, b. 1962, c. None, 
d. Virginia State, B.S., e. Elementary, f. Collegiate Pro­
fessional—Grades 1-7, g. 1st grade, G. W. Watkins School 
—Elementary.



34a

Plan for School Desegregation
(Filed May 10, 1966)

N e w  K e n t  C o u n t y  P u b l i c  S c h o o l s  

P r o v i d e n c e  F o r g e , V i r g i n i a

I .  A n n u a l  F r e e d o m  o e  C h o i c e  o r  S c h o o l s

A. The County School Board of New Kent County 
has adopted a policy of complete freedom of 
choice to he offered in grades 1, 2, 8, 9, 10, 11, 
and 12 of all schools without regard to race, color, 
or national origin, for 1965-66 and all grades 
after 1965-66.

B. The choice is granted to parents, guardians and 
persons acting as parents (hereafter called 
“parents” ) and their children. Teachers, prin­
cipals and other school personnel are not per­
mitted to advise, recommend or otherwise in­
fluence choices. They are not permitted to favor 
or penalize children because of choices.

II. P u p i l s  E n t e r i n g  F i r s t  G r a d e

Registration for the first grade will take place, 
after conspicuous advertising two weeks in ad­
vance of registration, between April 1 and May 
31 from 9 :00 A. M. to 2 :00 P. M.

When registering, the parent will complete a 
Choice of School Form for the child. The child 
may’ be registered at any elementary school in 
this syrstem, and the choice made may be for that



35a

school or for any other elementary school in the 
system. The provisions of Section VI of this plan 
with respect to overcrowding shall apply in the 
assignment to schools of children entering first 
grade.

III. P u p i l s  E n t e r i n g  O t h e r  G r a d e s

A. Each parent will be sent a letter annually ex­
plaining the provisions of the plan, together with 
a Choice of School Form and a self-addressed 
return envelope, by April 1 of each year for 
pre-school children and May 15 for others. 
Choice forms and copies of the letter to parents 
will also be readily available to parents or stu­
dents and the general public in the school offices 
during regular business hours. Section VI ap­
plies.

B. The Choice of School Form must be either mailed 
or brought to any school or to the Superintend­
ent’s Office by May 31st of each year. Pupils 
entering grade one (1) of the elementary school 
or grade eight (8) of the high school must ex­
press a choice as a condition for enrollment. Any 
pupil in grades other than grades 1 and 8 for 
whom a choice of school is not obtained will be 
assigned to the school he is now attending.

IV. P u p i l s  N e w l y  E n t e r i n g  S c h o o l  S y s t e m  o r  C h a n g ­

i n g  R e s i d e n c e  W i t h i n  I t

A. Parents of children moving into the area served 
by this school system, or changing their residence 
within it, after the registration period is com­



36a

pleted but before the opening of the school year, 
will have the same opportunity to choose their 
children’s school just before school opens during 
the week of August 30th, by completing a Choice 
of School Form. The child may be registered at 
any school in the system containing the grade 
he will enter, and the choice made may be for 
that school or for any other such school in the 
system. However, first preference in choice of 
schools will be given to those whose Choice of 
School Form is returned by the final date for 
making choice in the regular registration period. 
Otherwise, Section VI applies.

B. Children moving into the area served by this 
school system, or changing their residence within 
it, after the late registration period referred to 
above but before the next regular registration 
period, shall be provided with registration forms. 
This has been done in the past.

V. R e s id e n t  a n d  N o n - R e s i d e n t  A t t e n d a n c e

This system will not accept non-resident students, 
nor will it make arrangements for resident stu­
dents to attend public schools in other school 
systems where either action would tend to pre­
serve segregation or minimize desegregation. 
Any arrangement made for non-resident students 
to attend public schools in this system, or for 
resident students to attend public schools in an­
other system, will assure that such students will 
be assigned without regard to race, color, or na­
tional origin, and such arrangement will be ex­



37a

plained fully in an attachment made a part of 
this plan. Agreement attached for Indian chil­
dren.

VI. O v e r c r o w d i n g

A. No choice will be denied for any reason other 
than overcrowding. Where a school would be­
come overcrowded if all choices for that school 
were granted, pupils choosing that school will be 
assigned so that they may attend the school of 
their choice nearest to their homes. No preference 
will be given for prior attendance at the school.

B. The Board plans to relieve overcrowding by 
building during 1965-66 for the 1966-67 session.

VII. T r a n s p o r t a t i o n

Transportation will be provided on an equal basis 
without segregation or other discrimination be­
cause of race, color, or national origin. The right 
to attend any school in the system will not be 
restricted by transportation policies or practices. 
To the maximum extent feasible, busses will be 
routed so as to serve each pupil choosing any 
school in the system. In any event, every student 
eligible for bussing shall be transported to the 
school of his choice if he chooses either the for­
merly white, Negro of Indian school.

VIII. S e r v i c e s , F a c i l i t i e s , A c t i v i t i e s  a n d  P r o g r a m s

There shall be no discrimination based on race, 
color, or national origin with respect to any ser­



38a

vices, facilities, activities and programs spon­
sored by or affiliated with the schools of this 
school system.

IX. S t a f f  D e s e g r e g a t i o n

A. Teacher and staff desegregation is a necessary 
part of school desegregation. Steps shall be taken 
beginning with school year 1965-66 toward elimi­
nation of segregation of teaching and staff per­
sonnel based on race, color, or national origin, 
including joint faculty meetings, in-service pro­
grams, workshops, other professional meetings 
and other steps as set forth in Attachment C.

B. The race, color, or national origin of pupils will 
not be a factor in the initial assignment to a par­
ticular school or within a school of teachers, ad­
ministrators or other employees who serve pupils, 
beginning in 1966-67.

C. This school system will not demote or refuse to 
reemploy principals, teachers and other staff 
members who serve pupils, on the basis of race, 
color, or national origin; this includes any de­
motion or failure to reemploy staff members be­
cause of actual or expected loss of enrollment in 
a school.

D. Attachment D hereto consists of a tabular state­
ment, broken down by race, showing: 1) the num­
ber of faculty and staff members employed by 
this system in 1964-65; 2) comparable data for 
1965-66; 3) the number of such personnel demoted, 
discharged or not reemployed for 1965-66; 4)



39a

the number of such personnel newly employed for 
1965-66. Attachment D further consists of a cer­
tification that in each case of demotion, discharge 
or failure to reemploy, such action was taken 
wholly without regard to race, color, or national 
origin.

X. P u b l i c i t y  a n d  C o m m u n i t y  P r e p a r a t io n

Immediately upon the acceptance of this plan by 
the IT. S. Commissioner of Education, and once a 
month before final date of making choices in 1966, 
copies of this plan will be made available to all 
interested citizens and will be given to all tele­
vision and radio stations and all newspapers 
serving this area. They will be asked to give 
conspicuous publicity to the plan in local news 
section of the Richmond papers. The newspaper 
coverage will set forth the text of the plan, the 
letter to parents and Choice of School Form. 
Similar prominent notice of the choice provision 
will be arranged for at least once a month there­
after until the final date for making choice. In 
addition, meetings and conferences have been and 
will be called to inform all school system staff 
members of, and to prepare them for, the school 
desegregation process, including staff desegre­
gation. Similar meetings will be held to inform 
Parent-Teacher Associations and other local com­
munity organizations of the details of the plan, 
to prepare them for the changes that will take 
place.



40a

X I .  C e r t i f i c a t i o n

This plan of desegregation was duly adopted by 
the New Kent County School Board at a meeting 
duly called and held on August 2, 1965.

Signed:...........................................................
(Chairman, Superintendent or 

other authorized official)

(title of signing officer)



41a

(School Board Letterhead)

Date Sent to Parents 
and Guardians:

May 15, 1966

CHOICE OF SCHOOL FORM

This form is provided for you to choose a school for your 
child to go to next year. The form must be either mailed 
or brought to any school or to the Superintendent’s office 
at the address above by May 31, 1966.

1. Name of Child ...................................................................

Last First Middle

2. Date of Pupil’s Birth (if entering first grade) ..............
Month

Attachment A

Day Year

3. Grade Pupil Eligible for

4. School Last Attended ....



42a

5. School Chosen (Mark X  beside school chosen)

□  George W. Watkins High and Elementary
1-12 Quinton, Virginia

□  New Kent High and Elementary
1-12 New Kent, Virginia

□  Samaria School (Indian)
1-12 Charles City, Va.

Signature .................. .......................

Address .............................................

Date ..................................................

This block is to be filled in by the Superintendent’s office, 
not by parents. School chosen: ..........................School as­
signed to: ..........................  If different, explain: .............



43a

(School Board Letterhead)

Attachment B

Dear Parent:
May 15,1966

A plan for the desegregation of our school system has been 
put into effect so that our schools will operate in all re­
spects without regard to race, color, or national origin.

The desegregation plan provides that each pupil and his 
parent or guardian has the absolute right to choose each 
year the school the pupil will attend. No teacher, princi­
pal, or other school official is permitted to advise you, or 
make recommendations or otherwise influence your deci­
sion. No child will be favored or penalized because of the 
choice made.

Attached is a Choice of School Form listing the names and 
locations of all schools in our system and the grades they 
include. Please mark a cross beside the school you choose, 
and return the form in the enclosed envelope or bring it 
to any school or the Superintendent’s office by May 31,1966.

No choice will be denied for any reason other than over­
crowding. Anyone whose choice is denied because of over­
crowding will be offered his choice from among all other 
schools in the system where space is available in his grade.

School bus routes will be on a desegregated basis. There 
will be no discrimination based on race, color, or national 
origin in any school-connected services, facilities, activities 
and programs.



44a

For pupils entering grades one (1) and eight (8) a Choice 
of School Form must be filled out as a requirement for 
enrollment. Children in other grades for whom no choice is 
made will he assigned to the school they are presently at­
tending.

Sincerely yours,

Superintendent



45a

Additional Steps Toward Staff Desegregation

Below are possible steps toward faculty and staff desegre­
gation which have been taken in other school systems and 
one or more of which you may deem appropriate for your 
system to adopt at this time. Please indicate by checking 
the appropriate box or boxes and attach this page to the 
plan when submitting it.

1. jxj All members of the supervisory staff will be. as­
signed to serve schools, teachers and pupils without 
regard to race, color or national origin.

2. QJ Teachers and staff members who serve more than
one school, such as librarians, music and art teach­
ers, nurses, counselors will be assigned to serve 
schools, teachers and pupils without regard to race, 
color, or national origin.

3. Q  During the first semester of 1965-66, “pioneer teach­
ers” of both races will be selected and given special 
preparation and, during the second semester of 
school year 1965-66, assigned to exchange class­
rooms and schools periodically.

4- Q  Institutions, agencies, organizations and individuals 
that refer teachers and staff to school systems in 
this State will, during school year 1965-66 be in­
formed of this school system’s policy of nondis­
crimination in filling positions for serving pupils 
in this school system and they will be asked to so 
inform persons seeking referrals.

Attachment C



46a

5. [~| In the future, there will be no requirement or re­
quest for the photograph of or racial identification 
of applicants for employment, reemployment or 
reassignment.

6. ^  All teaching vacancies will be prominently posted
in all schools and applicants will be considered with­
out regard to race, color or national origin.

7- □  No new teacher will hereafter be employed who is 
not willing to work on a completely desegregated 
basis.

8. Q] Other steps as follows:



47a

First Memorandum of the District Court
(Filed May 17, 1966)

The infant plaintiffs, as pupils or prospective pupils in 
the public schools of New Kent County, and their parents 
or guardians have brought this class action asking that the 
defendants be required to adopt and implement a plan 
which will provide for the prompt and efficient racial 
desegregation of the county schools, and that the defen­
dants be enjoined from building schools or additions and 
from purchasing school sites pending the court’s approval 
of a plan. The plaintiffs also seek attorney’s fees and costs.

'The defendants have moved to dismiss on the ground that 
the complaint fails to state a claim upon which relief can 
be granted. They have also answered denying the material 
allegations of the bill.

The facts are uncontested.
New Kent is a rural county located east of the City of 

Richmond. Its school system serves approximately 1,300 
pupils, of which 740 are Negro and 550 are White. The 
school board operates one white combined elementary and 
high school, and one Negro combined elementary and high 
school. There are no attendance zones. Each school serves 
the entire county. Indian students attend a school in 
Charles City County.

On August 2, 1965 the county school board adopted a 
freedom of choice plan to comply with Title VI of the 
Civil Rights Act of 1964, 42 U. S. C. §2000.d-l, et seq. The 
choices include the Indian school in Charles City County. 
The county had operated under the Pupil Placement Act, 
§§22-232.1, et seq., Code of Virginia, 1950, as amended. 
As of September 1964 no Negro pupil had applied for



48a

admission to the white school. No Negro faculty member 
serves in the white school and no white faculty member 
serves in the Negro school.

New construction is scheduled at both county schools.
The case is controlled by the principles expressed in 

Wright v. School Bd. of Greenville County, Va., No. 4263 
(E. D. Va., Jan. 27, 1966). An order similar to that en­
tered in Greenville will deny an injunction restraining con­
struction and grant leave to submit an amendment to the 
plan for employment and assignment of staff on a non- 
racial basis. The motion for counsel fees will be denied.

/ s /  J ohn  D. B tjtzneb, Je.
United States District Judge



49a

First Order of the District Court
(Filed May 17, 1966)

For reasons stated in the Memorandum of the Court this 
day filed in the Memorandum of the Court in Wright 
v. County School Board of Greenville County, Virginia, 
Civil Action No. 4263 (E. D. Va., Jan. 27, 1966),

It is a d j u d g e d  and o r d e r e d  :

1. The defendants’ motion to dismiss is denied;

2. The plaintiffs’ prayer for an injunction restraining 
school construction and the purchase of school sites is 
denied;

3. The defendants are granted leave to submit on or be­
fore June 6, 1966 amendments to their plan which will pro­
vide for employment and assignment of the staff on a non- 
racial basis. Pending receipt of these amendments, the 
court will refer approval of the plan and consideration of 
other injunctive relief;

4. The plaintiffs’ motion for counsel fees is denied;

5. The case will be retained upon the docket with leave 
granted to any party to petition for further relief.

The plaintiffs shall recover their costs to date.

Let the Clerk send copies of this order and the Memo­
randum of the Court to counsel of record.

/ s /  J o h n  D. B u t z n e r , Jr. 
United States District Judge



50a

Defendants’ Plan Supplement

(Filed June 6, 1966)

The School Board of New Kent County recognizes its 
responsibility to employ, assign, promote and discharge 
teachers and other professional personnel of the school 
systems without regard to race, color or national origin. 
We further recognize our obligation to take all reasonable 
steps to eliminate existing racial segregation of faculty 
that has resulted from the past operation of a dual system 
based upon race or color.

The New Kent Board recognizes the fact that New Kent 
County has a problem which differs from most counties in 
that the white citizens are the minority group. The Board 
is also cognizant of the fact that race relations are gen­
erally good in this county, and Negro citizens share in 
county government. A Negro citizen is a member of the 
County Board of Supervisors at the present time.

In the recruitment, selection and assignment of staff, the 
chief obligation is to provide the best possible education 
for all children. The pattern of assignment of teachers and 
other staff members among the various schools of this sys­
tem will not be such that only white teachers are sought 
for predominantly white schools and only Negro teachers 
are sought for predominantly Negro schools.

The following procedures will be followed to carry out 
the above stated policy:

1. The best person will be sought for each position with­
out regard to race, and the Board will follow the policy 
of assigning new personnel in a manner that will work 
toward the desegregation of faculties. We will not 
select a person of less ability just to accomplish de­
segregation.



51a

2. Institutions, agencies, organization, and individuals 
that refer teacher applicants to the school system will 
be informed of the above stated policy for faculty de­
segregation and will be asked to so inform persons 
seeking referrals.

3. The School Board will take affirmative steps to allow 
teachers presently employed to accept transfers to 
schools in which the majority of the faculty members 
are of a race different from that of the teacher to be 
transferred.

4. No new teacher will be hereafter employed who is not 
willing to accept assignment to a desegregated faculty 
or in a desegregated school.

5. All Workshops and in-service training programs are 
now and will continue to be conducted on a completely 
desegregated basis.

6. All members of the supervisory staff will be assigned 
to cover schools, grades, teachers and pupils without 
regard to race, color or national origin.

7. All staff meetings and committee meetings that are 
called to plan, choose materials, and to improve the 
total educational process of the division are now and 
will continue to be conducted on a completely desegre­
gated basis.

8. All custodial help, cafeteria workers, maintenance 
workers, bus mechanics and the like will continue to 
be employed without regard to race, color or national 
origin.

9. Arrangements will be made for teachers of one race to 
visit and observe a classroom consisting of a teacher 
and pupils of another race to promote acquaintance 
and understanding.



52 a

Plaintiffs’ Exception to Plan Supplement

(Filed June 10, 1966)

The plaintiffs take exception to the defendants’ Plan 
Supplement adopted May 23, 1966 and filed herein pur­
suant to leave granted in this Court’s order of May 17, 
1966 to submit amendments which will provide for employ­
ment and assignment of the staff on a non-racial basis.

I
The Supplement does not contain well-defined procedures 

which will be put into effect on definite dates. The Supple­
ment does not even provide the “ token assignments” which 
this Court warned would not suffice.

II

In all reality, the Supplement states the defendant school 
board’s refusal to take any initiative to desegregate the 
faculties of the several schools.

W h e k e f o k e , the plaintiffs pray that their exceptions be 
sustained and that the defendants be required to forthwith 
eliminate all facets of racial segregation and discrimination 
with respect to administrative personnel, teachers, clerical, 
custodial and other employees, transportation and other 
facilities, and the assignment of pupils to schools and class­
rooms in the public schools of New Kent County and that 
the defendants be required to establish geographic attend­
ance areas for each public school in said county and assign 
each child to the school so designated to serve his area of 
residence.

/ s /  S. W .  T u c k e r  

Of Counsel for Plaintiffs



53a

(Filed June 28, 1966)

This memorandum supplements the memorandum of the 
court filed May 17, 1966. The court deferred ruling on the 
school board’s plan of desegregation until after the board 
had an opportunity to amend the plan to provide for 
allocation of faculty and staff on a non-racial basis. The 
board has filed a supplement to the plan to accomplish 
this purpose.

The plan and supplement are:

I .

A n n u a l  F e e e d o m  o f  C h o i c e  o f  S c h o o l s

A. The County School Board of New Kent County has 
adopted a policy of complete freedom of choice to be offered 
in grades 1, 2, 8, 9, 10, 11, and 12 of all schools without 
regard to race, color, or national origin, for 1965-66 and all 
grades after 1965-66.

B. The choice is granted to parents, guardians and per­
sons acting as parents (hereafter called ‘parents’ ) and their 
children. Teachers, principals and other school personnel 
are not permitted to advise, recommend or otherwise in­
fluence choices. They are not permitted to favor or penalize 
children because of choices.

Memorandum of the Court

II.

P u p i l s  E n t e r i n g  O t h e r  G r a d e s

Registration for the first grade will take place, after con­
spicuous advertising two weeks in advance of registration, 
between April 1 and May 31 from 9 :00 A.M. to 2 :00 P.M. 

When registering, the parent will complete a Choice of



54a

School Form for the child. The child may be registered at 
any elementary school in this system, and the choice made 
may be for that school or for any other elementary school 
in the system. The provisions of Section VI of this plan 
with respect to overcrowding shall apply in the assignment 
to schools of children entering first grade.

III.

P u p i l s  E n t e r i n g  O t h e r  G r a d e s

A. Each parent will be sent a letter annually explaining 
the provisions of the plan, together with a Choice of School 
Form and a self-addressed return envelope, by April 1 of 
each year for pre-school children and May 15 for others. 
Choice forms and copies of the letter to parents will also 
be readily available to parents or students and the general 
public in the school offices during regular business hours. 
Section VI applies.

B. The Choice of School Form must be either mailed 
or brought to any school or to the Superintendent’s Office 
by May 31st of each year. Pupils entering grade one (1) 
of the elementary school or grade eight (8) of the high 
school must express a choice as a condition for enrollment. 
Any pupil in grades other than grades 1 and 8 for whom 
a choice of school is not obtained will be assigned to the 
school he is now attending.

M e m o r a n d u m  o f  th e  C o u r t

IV.

P u p i l s  N e w l y  E n t e r i n g  S c h o o l  S y s t e m  o r  

C h a n g i n g  R e s i d e n c e  W i t h i n  I t

A. Parents of children moving into the area served by 
this school system, or changing their residence within it.



55a

after the registration period is completed but before the 
opening of the school year, will have the same opportunity 
to choose their children’s school just before school opens 
during the week of August 30th, by completing a Choice 
of School Form. The child may be registered at any school 
in the system containing the grade he will enter, and the 
choice made may be for that school or for any other such 
school in the system. However, first preference in choice of 
schools will be given to those whose Choice of School Form 
is returned by the final date for making choice in the regular 
registration period. Otherwise, Section VI applies.

B. Children moving into the area served by this school 
system, or changing their residence within it, after the late 
registration period referred to above but before the next 
regular registration period, shall be provided with regis­
tration forms. This has been done in the past.

V.
R e s i d e n t  a n d  N o n - e e s i d e n t  A t t e n d a n c e

This system will not accept non-resident students, nor 
will it make arrangements for resident students to attend 
public schools in other school systems where either action 
would tend to preserve segregation or minimize desegre­
gation. Any arrangement made for non-resident students 
to attend public schools in this system, or for resident stu­
dents to attend public schools in another system, will assure 
that such students will be assigned without regard to race, 
color, or national origin, and such arrangement will be ex­
plained fully in an attachment made a part of this plan. 
Agreement attached for Indian children.

M e m o r a n d u m  o f  th e  C o u r t



56a

VI.

OVER CR O W D IN G

A. No choice will be denied for any reason other than 
overcrowding. Where a school would become overcrowded 
if all choices for that school were granted, pupils choosing 
that school will be assigned so that they may attend the 
school of their choice nearest to their homes. No preference 
will be given for prior attendance at the school.

B. The Board plans to relieve overcrowding by building 
during 1965-66 for the 1966-67 session.

VII.

T r a n s p o r t a t i o n

Transportation will be provided on an equal basis with­
out segregation or other discrimination because of race, 
color, or national origin. The right to attend any school in 
the system will not be restricted by transportation policies 
or practices. To the maximum extent feasible, busses will 
be routed so as to serve each pupil choosing any school in 
the system. In any event, every student eligible for bussing 
shall be transported to the school of his choice if he chooses 
either the formerly white, Negro or Indian school.

VIII.

S e r v i c e s , F a c i l i t i e s , A c t i v i t i e s  a n d  P r o g r a m s

There shall be no discrimination based on race, color, or 
national origin with respect to any services, facilities, ac­
tivities and programs sponsored by or affiliated with the 
schools of this school system.

M e m o r a n d u m  o f  th e  C o u r t



57a

Memorandum of the Court

IX.

S t a f f  D e s e g r e g a t i o n

A. Teacher and staff desegregation is a necessary part 
of school desegregation. Steps shall be taken beginning 
with school year 1965-66 toward elimination of segregation 
of teaching and staff personnel based on race, color, or 
national origin, including joint faculty meetings, in-service 
programs, workshops, other professional meetings and 
other steps as set forth in Attachment C.

B. The race, color, or national origin of pupils will not 
be a factor in the initial assignment to a particular school 
or within a school of teachers, administrators or other em­
ployees who serve pupils, beginning in 1966-67.

C. This school system will not demote or refuse to re­
employ principals, teachers and other staff members who 
serve pupils, on the basis of race, color, or national origin; 
this includes any demotion or failure to reemploy staff 
members because of actual or expected loss of enrollment 
in a school.

D. Attachment D hereto consists of a tabular statement, 
broken down by race, showing: 1) the number of faculty 
and staff members employed by this system in 1964-65; 
2) comparable data for 1965-66; 3) the number of such per­
sonnel demoted, discharged or not re-employed for 1965- 
66; 4) the number of such personnel newly employed for 
1965-66. Attachment D further consists of a certification 
that in each case of demotion, discharge or failure to re­
employ, such action was taken wholly without regard to 
race, color, or national origin.



58a

Memorandum of the Court

X.
P u b l i c i t y  a n d  C o m m u n i t y  P b e p a b a t i o n

Immediately upon the acceptance of this plan by the U. S. 
Commissioner of Education, and once a month before final 
date of making choices in 1966, copies of this plan will be 
made available to all interested citizens and will be given to 
all television and radio stations and all newspapers serving 
this area. They will be asked to give conspicuous publicity 
to the plan in local news sections of the Richmond papers. 
The newspaper coverage will set forth the text of the plan, 
the letter to parents and Choice of School Form. Similar 
prominent notice of the choice provision will be arranged 
for at least one a month thereafter until the final date for 
making choice. In addition, meetings and conferences have 
been and will be called to inform all school system staff 
members of, and to prepare them for, the school desegrega­
tion process, including staff desegregation. Similar meet­
ings will be held to inform Parent-Teacher Associations 
and other local community organizations of the details of 
the plan, to prepare them for the changes that will take 
place.

S u p p l e m e n t

“The School Board of New Kent County recognizes its 
responsibility to employ, assign, promote and discharge 
teachers and other professional personnel of the school sys­
tems without regard to race, color or national origin. We 
further recognize our obligation to take all reasonable steps 
to eliminate existing racial segregation of faculty that has 
resulted from the past operation of a dual system based 
upon race or color.



59a

“The New Kent Board recognizes the fact that New 
Kent County has a problem which differs from most coun­
ties in that the white citizens are the minority group. The 
Board is also cognizant of the fact that race relations are 
generally good in this county, and Negro citizens share in 
county government. A Negro citizen is a member of the 
County Board of Supervisors at the present time.

“In the recruitment, selection and assignment of staff, the 
chief obligation is to provide the best possible education for 
all children. The pattern of assignment of teachers and 
other staff members among the various schools of this sys­
tem will not be such that only white teachers are sought for 
predominantly white schools and only Negro teachers are 
sought for predominantly Negro schools.

“The following procedures will be followed to carry out 
the above stated policy:

1. The best person will be sought for each position 
without regard to race, and the Board will follow the 
policy of assigning new personnel in a manner that 
will work toward the desegregation of faculties. We 
will not select a person of less ability just to accomp­
lish desegregation.

2. Institutions, agencies, organization, and individ­
uals that refer teacher applicants to the schools system 
will be informed of the above stated policy for faculty 
desegregation and will be asked to so inform persons 
seeking referrals.

3. The School Board will take affirmative steps to 
allow teachers presently employed to accept transfers 
to schools in which the majority of the faculty members

M e m o r a n d u m  o f  th e  C o u r t



60a

are of a race different from that of the teacher to be 
transferred.

4. No new teacher will be hereafter employed who 
is not willing to accept assignment to a desegregated 
faculty or in a desegregated school.

5. All workshops and in-service training programs 
are now and will continue to be conducted on a com­
pletely desegregated basis.

6. All members of the supervisory staff will be as­
signed to cover schools, grades, teachers and pupils 
without regard to race, color or national origin.

7. All staff meetings and committee meetings that 
are called to plan, choose materials, and to improve the 
total educational process of the division are now and 
will continue to he conducted on a completely desegre­
gated basis.

8. All custodial help, cafeteria workers, maintenance 
workers, bus mechanics and the like will continue to 
be employed without regard to race, color or national 
origin.

9. Arrangements will be made for teachers of one 
race to visit and observe a classroom consisting of a 
teacher and pupils of another race to promote acquaint­
ance and understanding.”

The plaintiffs filed exceptions to the supplement charging 
that it does not contain well defined procedures which will 
be put into effect on definite dates and that it demonstrates 
the board’s refusal to take any initiative to desegregate the 
staff.

M e m o r a n d u m  o f  th e  C o u r t



61a

The plan for faculty desegregation is not as definite as 
some plans received from other school districts. The court 
is of the opinion, however, that no rigid formula should be 
required. The plan will enable the school board to achieve 
allocation of faculty and staff on a non-racial basis. The 
plan and supplement satisfy the criteria mentioned in 
Wright v. School Board of Greensville County, Va., No. 
4263 (E.D. Va., Jan. 27 and May 13, 1966).

Provision should be made for a registration period in the 
summer or immediately prior to the beginning of the 1966- 
67 term to allow pupils to exercise their choice of school. 
This is necessary because the supplement to the plan was 
adopted late in the school year. The summer or fall regis­
tration should present no administrative difficulties. Many 
of the schools which have adopted a freedom of choice plan 
provide for such registration as a matter of course.

It may become necessary for the .board to modify the 
plan. It may become necessary to revoke in full or in part 
the approval that the court has given the plan. The case 
will remain on the docket for any of the parties to seek 
relief which future circumstances may require.

/ s /  J o h n  D. B u t z n e k , J b .

United States District Judge

M e m o r a n d u m  o f  th e  C o u r t



62a

Order
(Entered June 28, 1966)

For reasons stated in the memorandum of the court this 
day tiled and in Wright v. School Board of Greensville 
County, Va., No. 4263 (E.D. Va., Jan. 27 and May 13, 
1966), it is A djudged and Ordered that the plan adopted 
by the New Kent County School Board is approved.

This case will be retained on the docket with leave 
granted to any party to seek further relief.

Let the Clerk send copies of this order and of the mem­
orandum of the court to counsel of record.

/ s /  John D. B u t z n e r , Jr.
United States District Judge



63a

Decision of the United States Court of Appeals
For the Fourth Circuit

No. 10,792.

Charles C. Green, Carroll A. Green and Robert C. Green, 
infants, by Calvin C. Green and Mary 0. Green, 

tbeir father and mother and next friends, 
and all others of the plaintiffs,

Appellants,

versus

County School Board of New Kent County, Virginia, et al.,
Appellees.

A p p e a l  f r o m  t h e  U n i t e d  S t a t e s  D i s t r i c t  C o u r t  f o r  

t h e  E a s t e r n  D i s t r i c t  o f  V i r g i n i a , a t  R i c h m o n d . 

J o h n  D .  B u t z n e r , J r ., D i s t r i c t  J u d g e .

(Argued January 9, 1967. Decided June 12, 1967.)

Before H a y n s w o r t h , Chief Judge, and S o b e l o f f , B o r e m a n , 

B r y a n , J. S p e n c e r  B e l l , *  W i n t e r  and C r a v e n ,  Circuit 
Judges, sitting en banc.

S. W. Tucker (Henry L. Marsh, III, Willard H. Douglas, 
Jr., Jack Greenberg and James M. Nabrit, III, on brief) 
for Appellants, and Frederick T. Gray (Williams, Mullen 
& Christian on brief) for Appellees.

* Ju dge B e ll  sa t  a s  a  m e m b e r  o f  th e  C o u r t  w h e n  th e  ease w a s  h ea rd  
but died b e fo r e  it  w a s  d e cid e d .



64a

p e r  c u r i a m  :

The questions presented in this case are substantially the 
same as those we have considered and decided today in 
Bowman v. County School Bd. of Charles City County.1 
For the reasons stated there, the rulings of the District 
Court merit our substantial approval, but the case is neces­
sarily remanded for further proceedings in accordance with 
the District Court’s order and our opinion in Bowman.

Remanded.

D e c is io n  o f  th e  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  F o u r t h  C ir c u it

l 4  C ir ...........  F .2 d  .......  (D e c id e d  th is  d a y ) .  T h e  s p e c ia l  concurring
o p in io n  o f  J u d g e  S o b e lo ff , in  w h ich  J u d g e  W in t e r  jo in s ,  in  B o w m a n  is 
a p p lic a b le  to  th is  ca se  a lso .



65a

Opinion of the United States Court of Appeals
For the Fourth Circuit

No. 10,793.

Shirlette L. Bowman, Rhoda M. Bowman, Mildred A. 
Bowman, Richard M. Bowman and Sandra L. Bowman, 
infants, by Richard M. Bowman, their father and next 

friend, and all others of the plaintiffs, 
Appellants,

versus

County School Board of Charles City County, 
Virginia, et al.,

Appellees.

A p p e a l  f r o m  t h e  U n i t e d  S t a t e s  D i s t e i c t  C o u r t  f o r  

t h e  E a s t e r n  D i s t r i c t  o f  V i r g i n i a , a t  R i c h m o n d . 

J o h n  D .  B u t z n e r , J r ., D i s t r i c t  J u d g e .

(Argued January 9, 1967. Decided June 12, 1967.)

Before H a y n s w o r t h , Chief Judge, and S o b e l o f f , B o r e m a n , 

B r y a n ,  J. S p e n c e r  B e l l , *  W i n t e r  and C r a v e n ,  Circuit 
Judges, sitting en banc.

S. W. Tucker (Henry L. Marsh, III, Willard H. Douglas, 
Jr., Jack Greenberg and James M. Nabrit, III, on brief) 
for Appellants, and Frederick T. Gray (Williams, Mullen 
& Christian on brief) for Appellees.

* Ju d ge  B e ll  sa t  as a  m e m b e r  o f  th e  C o u r t  w h e n  th e  ca se  w a s  h e a rd  
but died b e fo r e  it  w a s  d e cid e d .



66 a

H a y n s w o b t h , Chief Judge:

In this school case, the Negro plaintiffs attack, as a dep­
rivation of their constitutional rights, a “ freedom of 
choice” plan, under which each Negro pupil has an ac­
knowledged “unrestricted right” to attend any school in the 
system he wishes. They contend that compulsive assign­
ments to achieve a greater intermixture of the races, not­
withstanding their individual choices, is their due. We 
cannot accept that contention, though a related point af­
fecting the assignment of teachers is not without merit.

I
“Freedom of choice” is a phrase of many connotations.
Employed as descriptive of a system of permissive trans­

fers out of segregated schools in which the initial assign­
ments are both involuntary and dictated by racial criteria, 
it is an illusion and an oppression which is constitutionally 
impermissible. Long since, this court has condemned it.1 
The burden of extracting individual pupils from discrimi­
natory, racial assignments may not be cast upon the pupils 
or their parents. It is the duty of the school boards to 
eliminate the discrimination which inheres in such a system.

Employed as descriptive of a system in which each pupil, 
or his parents, must annually exercise an uninhibited choice, 
and the choices govern the assignments, it is a very different

O p in io n  o f  th e  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  F o u r t h  C ir c u it

1 N e sb it  v . S ta te sv ille  C ity  B d . o f  E d u c ., 4  C ir ., 34 5  F .2 d  333 , 334 n. 3; 
B ra d le y  v . S c h o o l B d . o f  E d u c . o f  C ity  o f  R ic h m o n d , 4  C ir ., 345 F .2d  310, 
319 & n. 1 8 ;  W h e e le r  v . D u rh a m  C ity  B d . o f  E d u c ., 4  C ir ., 309 F-23 
630 , 6 3 3 ; J e f fe r s  v . W h it le y , 4  C ir ., 30 9  F .2 d  6 2 1 ; M a rsh  v . County 
S c h o o l B d . o f  R o a n o k e  C o u n ty , 4  C ir ., 30 5  F .2 d  9 4 ;  G re e n  v . School 
B d . o f  C ity  o f  R o a n o k e , 4  C ir ., 3 0 4  F .2 d  1 1 8 ;  H i l l  v . S c h o o l  B d . o f  City 
o f  N o r fo lk , 4  C ir ., 28 2  F .2 d  4 7 3 ;  J o n e s  v . S c h o o l B d . o f  C ity  o f  Alex­
a n d r ia , 4  C ir ., 27 8  F .2 d  72.



67a

thing. If each pupil, each year, attends the school of his 
choice, the Constitution does not require that he be de­
prived of his choice unless its exercise is not free. This we 
have held,2 and we adhere to our holdings.

Whether or not the choice is free may depend upon cir­
cumstances extraneous to the formal plan of the school 
board. If there is a contention that economic or other 
pressures in the community inhibit the free exercise of the 
choice, there must be a judicial appraisal of it, for “ freedom 
of choice” is acceptable only if the choice is free in the 
practical context of its exercise. If there are extraneous 
pressures whih deprive the choice of its freedom, the school 
board may be required to adopt affirmative measures to 
counter them.

A panel of the Fifth Circuit3 recently had occasion to con­
centrate its guns upon the sort of “ freedom of choice” plan 
we have not tolerated, but, significantly, the decree it pre­
scribed for its district courts requires the kind of “freedom 
of choice” plan we have held requisite and embodies stan­
dards no more exacting than those we have imposed and 
sanctioned.

The fact that the Department of Health, Education and 
Welfare has approved the School Board’s plan is not deter­
minative. The actions of that department, as its guidelines, 
are entitled to respectful consideration, for, in large mea­

O p in io n  o f  th e  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  F o u r t h  C ir c u it

2 Wheeler y. Durham City Bd. of Educ., 4 Cir., 346 F.2d 768, 773; 
Bradley v. School Bd. of Educ. of City of Richmond, 4 Cir., 345 F.2d 310, 
313, vacated and rem anded on o th er g rounds, 382 U.S. 103. See Jeffers v. 
Whitley, 4 Cir., 309 F.2d 621.

3 United States v. Jefferson County Board of Education, 5 Cir., 372 
F.2d 836, aff’d on rehearing en banc,.....  F .2 d ..... ; see also , Deal v. Cin­
cinnati Board of Education, 6 Cir., 369 F.2d 55.



68a

sure or entirely, they are a reflection of earlier judicial 
opinions. We reach our conclusion independently, for, while 
administrative interpretation may lend a persuasive gloss 
to a statute, the definition of constitutional standards con­
trolling the actions of states and their subdivisions is 
peculiarly a judicial function.

Since the plaintiffs here concede that their annual choice 
is unrestricted and unencumbered, we find in its existence 
no denial of any constitutional right not to be subjected to 
racial discrimination.

O p in io n  o f  th e  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  F o u r t h  C ir c u i t

I I

Appropriately, the School Board’s plan included provi­
sions for desegregation of the faculties. Supplemented at 
the direction of the District Court, those provisions are 
set forth in the margin.4

4 The School Board of Charles City County recognizes its responsibility 
to employ, assign, promote and discharge teachers and other professional 
personnel of the school systems without regard to race, color or national 
origin. We further recognize our obligation to take all reasonable steps 
to eliminate existing racial segregation of faculty that has resulted from 
the past operation of a dual system based upon race or color.

In the recruitment, selection and assignment of staff, the chief obliga­
tion is to provide the best possible education for all children. The pattern 
of assignment of teachers and other staff members among the various 
schools of this system will not be such that only white teachers are sought 
for predominantly white schools and only Negro teachers are sought for 
predominantly Negro schools.

The following procedures will be followed to carry out the above stated 
policy:

1. The best person will be sought for each position without regard 
to race, and the Board will follow the policy of assigning new 
personnel in a manner that will work toward the desegregation of 
faculties.

2. Institutions, agencies, organizations, and individuals that refer 
teacher applicants to the school system will be informed of the



69a

These the District Court found acceptable under our deci­
sion in Wheeler v. Durham City Board of Education, 363 
F.2d 738, but retained jurisdiction to entertain applications 
for further relief. It acted upon a record which showed that 
white teachers had been assigned to the “Indian school”

O p in io n  o f  th e  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  F o u r t h  C ir c u it

above stated policy for faculty desegregation and will be asked to 
so inform persons seeking referrals.

3. The School Board will take affirmative steps including personal 
conferences with members of the present faculty to allow and en­
courage teachers presently employed to accept transfers to schools 
in which the majority of the faculty members are of a race differ­
ent from that of the teacher to be transferred.

4. No new teacher will be hereafter employed who is not willing to 
accept assignment to a desegregated faculty or in a desegregated 
school.

5. All Workshops and in-service training programs are now and will 
continue to be conducted on a completely desegregated basis.

6. All members of the supervisory staff have been and will continue 
to be assigned to cover schools, grades, teachers and pupils with­
out regard to race, color or national origin.

7. It is recognized that it is more desirous, where possible, to have 
more than one teacher of the minority race (white or Negro) on 
a desegregated faculty.

8. All staff meetings and committee meetings that are called to plan, 
choose materials, and to improve the total educational process of 
the division are now and will continue to be conducted on a com­
pletely desegregated basis.

9. All custodial help, cafeteria workers, maintenance workers, bus 
mechanics and the like will continue to be employed without regard 
to race, color or national origin.

10. Arrangements will be made for teachers of one race to visit and 
observe a classroom consisting of a teacher and pupils of another 
race to promote acquaintance and understanding.

11. The School Board and superintendent will exercise their best efforts, 
individually and collectively, to explain this program to school 
patrons and other citizens of Charles City County and to solicit 
their support of it.



70a

and one Negro teacher had been assigned to a formerly all 
white school.

The appellants’ complaint is that the plan is insufficiently 
specific in the absence of an immediate requirement of sub­
stantial interracial assignment of all teachers.

On this record, we are unable to say what impact such 
an order might have upon the school ssytem or what ad­
ministrative difficulties might be encountered in complying 
with it. Elimination of discrimination in the employment 
and assignment of teachers and administrative employees 
can be no longer deferred,5 but involuntary reassignment 
of teachers to achieve racial blending of faculties in each 
school is not a present requirement on the kind of record 
before us. Clearly, the District Court’s retention of juris­
diction was for the purpose of swift judicial appraisal of 
the practical consequences of the School Board’s plan and 
of the objective criteria by which its performance of its 
declared purposes could be measured.

An appeal having been taken, we lack the more current 
information which the District Court, upon application to 
it, could have commanded. Without such information, an 
order of remand, the inevitable result of this appeal, must 
be less explicit than the District Court’s order, with the 
benefit of such information, might have been.

While the District Court’s approval of the plan with its 
retention of jurisdiction may have been quite acceptable 
when entered, we think any subsequent order, in light of the 
appellants’ complaints should incorporate some minimal, 
objective time table.

O p in io n  o f  th e  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s
F o r  th e  F o u r t h  C ir c u i t

5 Bradley v. School Bd. of Educ. of City of Richmond, 382 U.S. Mb 
Wheeler v. Durham City Bd. of Educ., 4 Cir., 363 F.2d 738.



71a

Quite recently, a panel of the Fifth Circuit Court of Ap­
peals6 has required some progress in faculty integration for 
the school year 1967-68. By that decree, school boards are 
required to take affirmative steps to accomplish substantial 
desegregation of faculties in as many of the schools as pos­
sible for the 1967-68 school year and, wherever possible, to- 
assign more than one member of the minority race to each 
desegregated faculty. As much should be required here. 
Indeed, since there was an earlier start in this case, the 
District Court, with the benefit of current information, 
should find it appropriate to fashion an order which is 
much more specific and more comprehensive. What is done 
on remand, however, must be done upon a supplemented 
record after an appraisal of the practical, administrative 
and other problems, if any, remaining to be solved and 
overcome.

Remanded.

C o n cu rr in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W i n t e r

S o b e l o f f , Circuit Judge, with whom W i n t e r , Circuit
Judge, joins, concurring specially.

Willingly, I join in the remand of the cases* * to the Dis­
trict Court, for I concur in what this court orders. I dis­
agree, however, with the limited scope of the remand, for I 
think that the District Court should be directed not only to 
incorporate an objective timetable in the School Boards’ 
plans for faculty desegregation, but also to set up proce­

6 United States v. Jefferson County Bd. of Edue., fn. 3, su p ra .

* This special concurrence is directed not only to Bowman v. County 
School Bd. of Charles City County, but also Green v. County School Bd. 
°f New Kent County, ..... F.2d ..... , decided this day.



72a

dures for periodically evaluating the effectiveness of the 
Boards’ “ freedom of choice” plans in the elimination of 
other features of a segregated school system.

With all respect, I think that the opinion of the court is 
regrettably deficient in failing to speel out specific direc­
tions for the guidance of the District Court. The danger 
from an unspecific remand is that it may result in another 
round of unsatisfactory plans that will require yet another 
appeal and involve further loss of time. The bland discus­
sion in the majority opinion must necessarily he pitched 
differently if the facts are squarely faced. As it is, the 
opinion omits almost entirely a factual recital. For an 
understanding of the stark inadequacy of the plans promul­
gated by the school authorities, it is necessary to explore 
the facts of the two cases.

New Kent County. Approximately 1,290 children attend 
the public schools of New Kent County. The system oper­
ated by the School Board consists of only two schools—the 
New Kent School, attended by all of the county’s white 
pupils, and the Watkins School, attended by all of the 
county’s Negro pupils.

There is no residential segregation and both races are 
diffused generally throughout the county. Yet eleven buses 
traverse the entire county to pick up the Negro students and 
carry them to the Watkins School, located in the western 
half of the county, and ten other buses traverse the entire 
county to pick up the white students for the New Kent 
School, located in the eastern half of the county. One ad­
ditional bus takes the county’s 18 Indian children to the 
“Indian” school, located in an adjoining county. Each of 
the county’s two schools has 26 teachers and they offer 
identical programs of instruction.

C o n c u r r in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W in te r



73a

Repated petitions from Negro parents, requesting the 
adoption of a plan to eliminate racial discrimination, were 
totally ignored. Not until some months after the present 
action had been instituted on March 15, 1965, did the 
School Board adopt its “ freedom of choice” plan.1

The above data relate to the 1964-1965 school year.2 
Since the Board’s “ freedom of choice” plan has now been in 
effect for two years as to grades 1, 2, 8, 9, 10, 11 and 12 
and one year as to all other grades, clearly this court’s re­
mand should embrace an order requiring an evaluation of 
the success of the plan’s operation over that time span, not 
only as to faculty but as to pupil integration as well. While 
the court does not order an inquiry in the District Court as 
to pupil integration, it of course does not forbid it. Since 
the District Judge retained the case on the docket, the 
matter will be open on remand to a thorough appraisal.

Charles City County. Approximately 1,800 children at­
tend public schools in Charles City County. As in New Kent 
County, Negroes and whites live in the same neighborhoods 
and, similarly, segregated buses (Negro, Indian and white) 
traverse many of the same routes to pick up their respective

C o n cu rr in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W i n t e r

1 As this circuit has elsewhere said, “Such a last minute change of 
heart is suspect, to say the least.” Cypress v. The Newport News General
& Nonsectarian Hospital Ass’n , .....F .2 d ...... , .....  (4th Cir. Mar. 9, 1967).
See also Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966). Of 
course, in the present case, the District Court has noted that the plan 
was adopted in order to comply with Title VI of the Civil Rights Act 
of 1964, 42 U.S.C. 5 2000.d-l (1964), and thus ensure the flow of federal 
funds.

2 These data are culled from answers to plaintiffs’ interrogatories. 
Neither side has furnished us or the District Court with more recent 
data. In oral argument, the defendant replied obscurely and unspecifically 
to inquiries from the bench as to what progress the county had made.



74a

charges.3 The Board operates four schools in all—Buth- 
ville, a combined elementary and high school exclusively 
for Negroes; Barnetts, a Negro elementary school; Charles 
City, a combined elementary and high school for whites; 
and Samaria, a combined elementary and high school for 
Indian children. Thus, as plaintiffs point out, the Board, 
well into the second decade after the 1954 Brown decision, 
still maintains “what is in effect three distinct school sys­
tems—each organized along racial lines—with hardly 
enough pupils for one system!” 4 5 The District Court found 
that “the Negro elementary schools serve geographical 
areas. The other schools serve the entire county.” 6 This 
contrasting treatment of the races plainly exposes the pre­
vailing discrimination. For the 1964-65 school year, only 
eight Negro children were assigned to grades 4, 6, 7, 8,9, 
10 and 11 at the all-white Charles City School—an instance 
of the feeblest and most inconsequential tokenism.

Again, as in New Kent County, Negro parents on several 
occasions fruitlessly petitioned the School Board to adopt a 
desegregation plan. This suit was instituted on March 15,

C o n c u r r in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W in ter

3 The Eighth Circuit has recently held that the operation of two school 
buses, one for Negro children and one for white, along the same route, 
is impermissible. “While we have no authority to strike down transpor­
tation systems because they are costly and inefficient, we must strike 
them down if their operation serves to discourage the desegregation of 
the school systems.” Kelley v. Arkansas Public School District, 35 U.S.L. 
WEEK 2619 (8th Cir. Apr. 12, 1967).

4 The Board seems to go to an extreme of inefficiency and expense in 
order to maintain the segregated character of its schools, indulging in the 
luxury of three separate high school departments to serve a total of 
approximately 600 pupils, 437 of whom are in one school, and three 
separate and overlapping bus services.

5 ................ E.Supp., .............  (1966).



75a

1965 and the Board adopted the plan presently under con­
sideration on August 6, 1965. Not until June 1966 did the 
Board assign a single Negro teacher to the all-white faculty 
at Charles City School. Apart from this faint gesture, how­
ever, the faculties of the Negro and white schools remain 
totally segregated.6

The majority opinion implies that this court has gone as 
far as the Fifth Circuit and that the “ freedom of choice” 
plan which that circuit has directed its district courts to 
prescribe “embodies standards no more exacting than those 
we have imposed and sanctioned.” If this court is willing to 
go as far as the Fifth Circuit has gone, I welcome the re­
solve.7 It may be profitable, therefore, to examine closely 
what the Court of Appeals of that jurisdiction has recently 
said and done.8 We may then see how much further our 
court needs to go to bring itself abreast of the Fifth Circuit.

C on cu rr in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W i n t e r

6 Three of the Board’s eight teachers in the 175 pupil “Indian” school 
are white, the other five are Indian.

The Board asserts that it is “earnestly” seeking white teachers for the 
nine existing vacancies in the Negro schools, but so far its efforts have 
not met with success. This is not surprising, considering that the Board 
has formally declared that it “does not propose to advertise vacancies in 
papers as this would likely cause people of both races to apply who 
are not qualified to teach.”

7 A recent article in the Virginia Law Review declares the Fifth Cir­
cuit to be “at once the most prolific and the most progressive court in 
the nation on the subject of school desegregation.” Dunn, Title V I, the 
Guidelines and School Desegregation in the South, 53 VA. L. REV. 42, 
73 (1967).

8 United States v. Jefferson County Bd. of Edue., ..... F.2d .....  (5th
Cir. 1966), aff’d on rehearing en banc, ..... F.2d .....  (5th Cir., Mar. 29,



76a

Concurring Opinion of Judges Sobeloff and Winter 

I. Pupils

Under the plans of both Charles City County and New 
Kent County, only children entering grades one or eight are 
required to express a choice. Freedom of choice is permitted 
children in all other grades, and “any pupil in grades other 
than grades 1 and 8 for whom a choice of school is not ob­
tained will be assigned to the school he is now attending.”

In sharp contrast, the Fifth Circuit has expressly abol­
ished “permissive” freedom of choice and ordered manda­
tory annual free choice for all grades, and “any student who 
has not exercised his choice of school within a week after 
school opens shall be assigned to the school nearest his 
home * * * 9 This is all that plaintiffs have been vainly
seeking in New Kent County—that students be assigned to 
the schools nearest their homes.

If, in our cases, those who failed to exercise a choice were 
to be assigned to the schools nearest their homes, as the 
Fifth Circuit plan provides, instead of to the schools they 
previously attended, as directed in the plans before us, 
there would be a measure of progress in overcoming dis­
crimination. As it is, the plans manifestly perpetuate 
discrimination. In view of the situation found in New Kent 
County, where there is no residential segregation, the elim­
ination of the dual school system and the establishment of a 
“unitary, non-racial system” could be readily achieved with 
a minimum of administrative difficulty by means of geo­
graphic zoning—simply by assigning students living in the 
eastern half of the county to the New Kent School and those 
living in the western half of the county to the Watkins 9

9 United States v. Jefferson County Bd. of Edue., .....  F.2d
(5th Cir., Mar. 29, 1967) (en bane). (Emphasis supplied.)



77a

School. Although a geographical formula is not universally 
appropriate, it is evident that here the Board, by separately 
busing Negro children across the entire county to the “ Ne­
gro” school, and the white children to the “white” school, 
is deliberately maintaining a segregated system which 
would vanish with non-racial geographic zoning. The con­
ditions in this county present a classical case for this ex­
pedient.

In Charles City County, Negro elementary school chil­
dren are geographically zoned, while white elementary 
school children are not, despite the conceded fact that the 
children of both races live in all sections of the county. 
Surely this curious arrangement is continued to prop up 
and preserve the dual school system proscribed by the 
Constitution and interdicted by the Fifth Circuit . . .

“The Court holds that boards and officials administer­
ing public schools in this circuit have the affirmative 
duty under the Fourteenth Amendment to bring about 
an integrated, unitary school system in which there are 
no Negro schools and no white schools—just schools. 
* * * In fulfilling this duty it is not enough for 
school authorities to offer Negro children the oppor­
tunity to attend formerly all-white schools. The neces­
sity of overcoming the effects of the dual school system 
in this circuit requires integration of faculties, facili­
ties, and activities, as well as students.” 10

The Fifth Circuit stresses that the goal is “a unitary, non- 
racial system” and the question is whether a free choice 
plan will materially further the attainment of this goal.

C o n cu rr in g  O p in io n  o f  J u d g e s  S o b e lo f f  a n d  W i n t e r

10 F.2d at ..... (en banc). (Emphasis supplied.)



78a

Stating that courts must continually check the sufficiency of 
school boards’ progress toward the goal, the Fifth Circuit 
decree requires school authorities to report regularly to the 
district courts to enable them to evaluate compliance “by 
measuring the performance.” In fashioning its decree, that 
circuit gave great weight to the percentages referred to in 
the HEW Guidelines,11 declaring that they establish “mini­
mum” standards

“for measuring the effectiveness of freedom of choice 
as a useful tool. * * * If the plan is ineffective, longer 
on promises than performance, the school officials 
charged with initiating and administering a unitary 
system have not met the constitutional requirements 
of the Fourteenth Amendment; they should try other 
tools.”  12

C o n c u r r in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W in ter

11 “ [S]trong policy considerations support our holding that the stan­
dards of court-supervised desegregation should not be lower than 
the standards of HEW-supervised desegregation. The Guidelines, of 
course, cannot hind the courts; we are not abdicating any judicial 
responsibilities. [Footnote omitted.] But we hold that HEW’s stan­
dards are substantially the same as this Court’s standards. They are 
required by the Constitution and, as we construe them, are within 
the scope of the Civil Rights Act of 1964. In evaluating desegrega­
tion plans, district courts should make few exceptions to the Guide­
lines and should carefully tailor those so as not to defeat the policies 
of HEW or the holding of this Court.”

United States v. Jefferson County Bd. of Educ., ..... F.2d .....,   (5ft
Cir., Dec. 29, 1966), ad op ted  en banc, .....  F.2d .....  (6th Cir., Mar. 29,
1967). C f. Cypress v. Newport News Gen. Hosp., .....  F.2d — , ......n.15
(4th Cir., Mar. 9, 1967).

12 ................ F .2 d ..... (Emphasis supplied.) The HEW Guidelines provide.
(1) if 8 or 9 percent of the Negro students in a sehool district transferred 
from segregated schools during the first year of the plan, the total trans­
fers the following year must be on the order of at least twice that 
percentage; (2) if only 4 or 5 percent transferred, a “substantial” in­
crease in the transfers will be expected the following year—bringing the



79a

“Freedom of choice” is not a sacred talisman; it is only 
a means to a constitutionally required end—-the abolition of 
the system of segregation and its effects.13 If the means 
prove effective, it is acceptable, but if it fails to undo seg­
regation, other means must be used to achieve this end. The 
school officials have the continuing duty to take whatever 
action may be necessary to create a “unitary, non-racial 
system.”

While I would prefer it if this court were more explicit 
in establishing requirements for periodic reporting by the 
school officials, I assume that the District Court will do 
this, rather than place the burden upon the plaintiffs to 
collect the esential data to show whether the free choice

C o n cu rr in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W i n t e r

total to at least tr ip le  the percentage of the previous year; (3) if less 
than 4 percent transferred the previous year, then the rate of increase 
in total transfers for the following year must be proportionately greater 
than that under (2) ; and (4) if no students transferred under a free 
choice plan, then unless a very “substantial start” is made in the following 
year, the school authorities will “be required to adopt a different type of 
plan.” HEW Reg. A., 45 C.F.R. 5181.54 (Supp. 1966).

In both New Kent County and Charles City County, at least some 
grades have operated under a “freedom of choice” plan for two years. 
In Charles City County, only 0.6% of the Negro students transferred to 
the white school for the 1964-65 session. Under the standards subscribed 
to by the Fifth Circuit, therefore, a minimum of 6% of the Negro pupils 
in that county should have transferred to the “white” school the following 
year. Less than this percentage would indicate that the free choice plan 
was “ineffective, longer on promises than performance,” and that the 
school officials “should try other tools”—e.g., geographic zoning or pairing 
of grades.

In New Kent County, no Negro students transferred during the first 
year of the plan. Thus, unless the requisite “substantial start” was made 
the following year, school officials m ust adopt a different plan—one that 
will work.

13 Judge Wisdom, in Singleton v. Jackson Munic. Separate School Dist., 
355 F.2d 865, 871 (5th Cir. 1966), referred to “freedom of choice” plans 
as a “haphazard basis” for the administration of schools.



80a

plan is materially furthering the achievement of “a unitary, 
non-racial system.” 14 *

A significant aspect of the Fifth Circuit's recent decree 
that, by implication, this court has adopted, deserves ex­
plicit recognition. The Jefferson County decree orders 
school officials, “without delay,” to take appropriate mea­
sures for the protection of Negro students who exercise a 
choice from “harassment, intimidation, threats, hostile 
words or acts, and similar behavior.” Counsel for the 
school hoards assured us in oral argument that relations 
between the races are good in these counties, and that no 
incidents would occur. Nevertheless, the fear of incidents 
may well intimidate Negroes who might otherwise elect to 
attend a “white” school.16 To minimize this fear school

C o n c u r r in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W in ter

14 See Section IX of the decree issued in United States v. Jefferson
County Bd. of Educ., .....  F.2d ..... , .....  (5th Cir. Mar. 29, 1967) (en
banc) providing for detailed reports to the district courts.

16 Various factors, some subtle and some not so subtle, operate effec­
tively to maintain the status quo and keep Negro children in “their” 
schools. Some of these factors are listed in the recent report issued by 
the U.S. Commission on Civil Rights:

“Freedom of choice plans accepted by the Office of Education have 
not disestablished the dual and racially segregated school systems 
involved, for the following reasons: a. Negro and white schools have 
tended to retain their racial identity; b. White students rarely elect 
to attend Negro schools; c. Some Negro students are reluctant to sever 
normal school ties, made stronger by the racial identification of their 
schools; d. Many Negro children and parents in Southern States, 
having lived for decades in positions of subservience, are reluctant 
to assert their rights; e. Negro children and parents in Southern 
States frequently will not choose a formerly all-white sehool because 
they fear retaliation and hostility from the white community; f- hi 
some school districts in the South, school officials have failed to pre­
vent or punish harassment by white children who have elected to 
attend white schools; g. In some areas in the South where Negroes 
have elected to attend formerly all-white schools, the Negro com­



81a

officials must demonstrate unequivocally that protection will 
be provided. It is the duty of the school boards actively to 
oversee the process, to publicize its policy in all segments 
of the population and to enlist the cooperation of police 
and other community agencies.16

The plaintiffs vigorously assert that the adoption of the 
Board’s free choice plan in Charles City County, without 
further action toward equalization of facilities, will not cure 
present gross inequities characterizing the dual school sys­
tem. A glaring example is the assignment of 135 commer­
cial students to one teacher in the Negro school in contrast 
to the assignment of 45 commercial students per teacher in 
the white school and 36 in the Indian school. In the Jeffer­
son County decree, the Fifth Circuit directs its attention 
to such matters and explicitly orders school officials to take 
“prompt steps” to correct such inequalities. School authori­
ties, who hold responsibility for administration, are not 
allowed to sit back complacently and expect unorganized 
pupils or parents to effect a cure for these shockingly dis­
criminatory conditions. The decree provides:

“Conditions of overcrowding, as determined by pupil- 
teacher ratios and pupil-classroom ratios shall, to the

C o n cu rr in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W i n t e r

munity has been subjected to retaliatory violence, evictions, loss of 
jobs, and other forms of intimidation.”

U.S. COMM’N ON CIVIL RIGHTS, SURVEY OF SCHOOL DESEG­
REGATION IN THE SOUTHERN AND BORDER STATES—1965-66, 
at 51 (1966). In addition to the above enumeration, a report of the Office 
of Education has pointed out that Negro children in the high school 
grades refrain from choosing to transfer because of reluctance to assume 
additional risks close to graduation. Coleman & Campbell, Equality of 
Educational Opportunity (U.S. Office of Education, 1966). See also 
Hearings B efore the Special Subcommittee on Civil Rights o f  the H ouse 
Committee on the Judiciary, 89th Cong., 2d Sess., ser. 23 (1966).

16 HEW Reg. A, 45 C.F.R. 5181.17(e) (Supp. 1966).



82a

extent feasible, be distributed evenly between schools 
formerly maintained for Negro students and those 
formerly maintained for white students. If for any 
reason it is not feasible to improve sufficiently any 
school formerly maintained for Negro students, * * * 
such school shall be closed as soon as possible, and 
students enrolled in the school shall be reassigned on 
the basis of freedom of choice.” 17 18

II. Faculty

Defendants unabashedly argue that they cannot be com­
pelled to take any affirmative action in reassigning teachers, 
despite the fact that teachers are hired to teach in the 
system, not in a particular school. They assert categorically 
that “ they are not required under the Constitution to de­
segregate the faculty.” This is in the teeth of Bradley v. 
School Bd. of Richmond, 382 U.S. 103 (1965).

Having made this declaration, they say that they have 
nevertheless submitted a plan which does provide for fac­
ulty desegregation, but circumspectly they add that “it will 
require time and patience.” They protest that they have 
done all that could possibly be demanded of them by pro­
viding a plan which would permit “ a constructive begin­
ning.” This argument lacks appeal an eighth of a century 
after Brown.1* Children too young for the first grade at

C o n c u r r in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W in ter

17 ................ F.2d at ...............  (en bane). (Emphasis supplied.)
18 “The rule has become: the later the start the shorter the time allowed 

for transition.” Lockett v. Bd. of Educ. of Muscogee County, 342 F.2d 
225, 228 (5th Cir. 1965). See Rogers v. Paul, 382 U.S. 198, 199 (1965); 
Bradley v. School Bd. of Richmond, 382 U.S. 103 (1965); Griffin v. County 
School Bd., 377 U.S. 218, 229 (1964); Watson v. City of Memphis, 373 
U.S. 526, 530 (1963).



83a

the time of that decision are beyond high school age by 
now. Yet their entire school experience, like that of their 
elder brothers and sisters, parents and grandparents, has 
been one of total segregation. They have attended only a 
“Negro” school with an all Negro staff and an all Negro 
student body. If their studies encompassed Brown v. Bd. 
of Educ. they must surely have concluded sadly that “ the 
law of the land” is singularly ineffective as to them.

The plans of both counties grandly profess that the pat­
tern of staff assignment “will not be such that only white 
teachers are sought for predominantly white schools and 
only Negro teachers are sought for predominantly Negro 
schools.” No specific steps are set out, however, by which 
the boards mean to integrate faculties. It cannot escape 
notice that the plans provide only for assignments of “new 
personnel in a manner that will work towards the desegre­
gation of faculties.” As for teachers presently employed by 
the systems, they will be “allowed” (in Charles City County, 
the plan reads “allowed and encouraged” ) to accept trans­
fers to schools in which the majority of the faculty members 
are of the opposite race. We are told that heretofore an 
average of only 2.6 new white teachers have been employed 
annually in New Kent County. Thus the plan would lead to 
desegregation only by slow attrition. There is no excuse 
for thus protracting the corrective process. School authori­
ties may not abdicate their plain duty in this fashion. The 
plans filed in these cases leave it to the teachers, rather than 
the Board, to “ disestablish dual, racially segregated school 
systems” and to establish “a unitary, non-racial system.” 
This the law does not permit.

C o n cu rr in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W i n t e r



84a

As the Fifth Circuit has put it, “ school authorities have 
an affirmative duty to break up the historical pattern of 
segregated faculties, the hallmark of the dual system.” 11

“ [U]ntil school authorities recognize and carry out 
their affirmative duty to integrate faculties as well as 
facilities, there is not the slightest possibility of their 
ever establishing an operative non-discriminatory 
school system.” 19 20

In contrast to the frail and irresolute plans submitted by 
the appellees, the Fifth Circuit has ordered school officials 
within its jurisdiction not only to make initial assignments 
on a non-discriminatory basis, but also to reassign staff 
members “to eliminate past discriminatory patterns.”

For this reason, I wholeheartedly endorse the majority’s 
remand for the inclusion of an objective timetable to facili­
tate evaluation of the progress of school authorities in de­
segregating their faculties. I also join the majority in 
calling upon the District Court to fashion a specific and 
comprehensive order requiring the boards to take firm steps 
to achieve substantial desegregation of the faculties. At 
this late date a desegregation plan containing only an in­
definite pious statement of future good intentions does not 
merit judicial approval.

19..... F.2d at .......
80 United States v. Jefferson County Bd. of Edue., ..... F.2d .... ,

(5th Cir. 1966), ad op ted  en b a n c ,....... F.2d .....  (5th Cir. Mar. 29, 1967).
This thought lias been similarly expressed in Bradley v. School Bd. of 
City of Richmond, 345 F.2d 310, 323 (4th Cir. 1965) (concurring opinion)-

“It is now 1965 and high time for the court to insist that good faith 
compliance requires administrators of schools to proceed actively with 
th e ir nontransferable duty to undo the segregation which both bj 
action and inaction has been persistently perpetuated.” (Emphasis 
in the original.)

C o n c u r r in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W in ter



85a

I must disagree with the prevailing opinion, however, 
where it states that the record is insufficiently developed to 
order the school systems to take further steps at this stage. 
No legally acceptable justification appears, or is even 
faintly intimated, for not immediately integrating the 
faculties. The court underestimates the clarity and force 
of the facts in the present record, particularly with respect 
to New Kent County, where there are only two schools, 
with identical programs of instruction, and each with a 
staff of 26 teachers. The situation presented in the records 
before us is so patently wrong that it cries out for im­
mediate remedial action, not an inquest to discover what 
is obvious and undisputed.

It is time for this circuit to speak plainly to its district 
courts and tell them to require the school boards to get on 
with their task—no longer avoidable or deferrable—to inte­
grate their faculties. In Kier v. County School Bd. of Au­
gusta County, 249 F. Supp. 239, 247 (W.D. Va. 1966), 
Judge Michie, in ordering complete desegregation by the 
following years of the staffs of the schools in question, re­
quired that “the percentage of Negro teachers in each school 
in the system should approximate the percentage of the 
Negro teachers in the entire system” for the previous year. 
See Dowell v. School Bd., 244 F. Supp. 971, 977-78 (W.D. 
Okla. 1965), aff’d, 35 U.S.L. W e e k  2484 (10th Cir., Jan. 
23, 1967), cert, denied, 35 U.S.L. W e e k  3418 (U.S. May 
29, 1967). While this may not be the precise formula ap­
propriate for the present cases, it does indicate the attitude 
that district courts may be expected to take if this court 
speaks with clarity and firmness.

C on cu rrin g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W i n t e r



86a

III. The Briggs v. Elliott Dictum

Tlie defendants persist in their view that it is constitu­
tionally permissible for parents to make a choice and assign 
their children; that courts have no role to play where segre­
gation is not actively enforced. They say that Brown only 
proscribes enforced segregation, and does not command 
action to undo existing consequences of earlier enforced 
segregation, repeating the facile formula of Briggs v. 
Elliott.*1

The court’s opinion recognizes that “it is the duty of the 
school boards to eliminate the discrimination which inheres” 
in a system of segregated schools where the “ initial assign­
ments are both involuntary and dictated by racial criteria,” 
but seems to think the system under consideration today “a 
very different thing.” I fail to perceive any basis for a dis­
tinction. Certainly the two counties with which we are 
here concerned, like the rest of Virginia, historically had 
de jure segregation of public education, so that by the 
court’s own definition, the boards are under a duty “to 
eliminate the discrimination which inheres” in such a sys­
tem. Whether or not the schools now permit “ freedom of 
choice,” the segregated conditions initially created by law 
are still perpetuated by relying primarily on Negro pupils 
“to extricate themselves from the segregation which has 
long been firmly established and resolutely maintained 
***-.’’ 21 22 “ [T]hose who operate the schools formerly segre­

21 “Nothing- in the Constitution or in the decision of the Supreme Court 
takes away from the people freedom to choose the schools they attend. 
The Constitution, in other words, does not require integration. It 
merely forbids discrimination.” 132 F. Supp. 776, 777 (E.D.S.C. 
1955).

22 Bradley v. School Bd. of City of Richmond, 345 F.2d 310, 322 (1® 
Cir. 1965) (concurring opinion).

C o n c u r r in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W in te r



87a

gated by law, and not those who attend, are responsible for 
school desegregation.” 23 24 *

It is worth recalling the circumstances that gave birth 
to the Briggs v. Elliott dictum—it is no more that dictum. 
A three-judge district court over which Judge Parker 
presided had denied relief to South Carolina Negro pupils 
and when this decision came before the Supreme Court as 
part of the group of cases reviewed in Brown v. Bd. of 
Educ., the Court overruled the three-judge court and issued 
its mandate to admit the complaining pupils to public 
schools “on a racially non-discriminatory basis with all 
deliberate speed.” Reassembling the three-judge panel, 
Judge Parker understook to put his gloss upon the Su­
preme Court’s decision and coined the famous saying.21 
This catchy apothegm immediately became the refuge of 
defenders of the segregation system, and it has been quoted 
uncritically to eviscerate the Supreme Court’s mandate.26

23 Dunn, T itle V I , the G uidelines and  S ch o o l D esegregation  in  the 
South, 53 YA. L. REV. 42, 45 (1967).

See Dowell v. School Bd., 244 F. Supp. 971, 975, 981 (W.D. Okla. 1965), 
aff’d, 35 U.S.L. WEEK 2484 (10th Cir. Jan. 23, 1967), cert, denied, 35 
U.S.L. WEEK 3418 (U.S. May 29, 1967):

“The Board maintains that it has no affirmative duty to adopt policies 
that would increase the percentage of pupils who are obtaining a 
desegregated education. But a school system does not remain static, 
and the fa ilu re  to ad o p t an  affirm ative p o lic y  is its e lf  a  p o licy , ad­
herence to which, at least in this case, has slowed up—in some cases— 
reversed the desegregation process.

* * *
The d u ty  to  d isesta b lish  se g r e g a t io n  is  c le a r  in  s itu a t io n s  su ch  as 
O klah om a C ity , w h e re  su ch  s ch o o l s e g r e g a t io n  p o l ic ie s  w e re  in  f o r c e  
and th e ir  e ffe cts  h a v e  n o t  b e e n  c o r r e c te d .”  (E m p h a s is  s u p p lie d .)

24 See n.21, su p ra .

26 Ju d g e  W is d o m , in  th e  co u rse  o f  a  p e n e tra t in g  c r it ic is m  o f  the B rig g s
decision, s a y s :

C o n cu rr in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W i n t e r



88a

Having a deep respect for Judge Parker’s capacity to 
discern the lessons of experience and his high fidelity to 
duty and judicial discipline, it is unnecessary for me to 
speculate how long he would have adhered to his view, or 
when he would have abandoned the dictum as unworkable 
and inherently contradictory.26 In any event, the dictum 
cannot withstand the authority of the Supreme Court or 
survive its exposition of the spirit of the Brown holding, as 
elaborated in Bradley v. School Bd., 382 TT.S. 103 (1965); 
Goss v. Bd. of Educ., 373 TT.S. 683 (1963); Cooper v. 
Aaron, 358 U.S. 1 (1958).

C o n c u r r in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W in te r

“ Briggs overlooks the fact that Negroes collectively are harmed when 
the state, by law or custom, operates segregated schools or a school 
system with uncorrected effects o f  segregation.

*  * *  *

Adequate redress therefore calls for much more than allowing' a few 
Negro children to attend formerly white schools; it calls for liquida­
tion of the state’s system of de jure school segregation and the 
organised undoing o f the effects o f  past segregation.

*  *  *

The central vice in a formerly de jure segregated public school system 
is apartheid by dual zoning * * * . Dual zoning persists in the continu­
ing operation of Negro schools identified as Negro, historically and 
because the faculty and students are Negroes. Acceptance of an in­
dividual’s application for transfer, therefore, may satisfy that par­
ticular individual; it will not satisfy the class. The class is all Negro 
children in a school district attending, by definition, inherently un­
equal schools and wearing the badge of slavery separation displays. 
Relief to the class requires school boards to desegregate the school 
from  which a transferee comes as well as the school to which he goes.
* * * [T]he overriding right of Negroes as a class [is] to a com­
pletely integrated public education.”
F.2d at ....., .......  (Emphasis supplied.)

26 Shortly after pronouncing his dictum, in another school case Judge 
Parker nevertheless recognized that children cannot enroll themselves and 
that the duty of enrolling them and operating schools in accordance wit) 
law rests upon the officials and cannot be shifted to the pupils or then 
parents. Carson v. Warliek, 238 F.2d 724, 728 (1956).



89a

Anything that some courts may have said in discussing 
the obligation of school officials to overcome the effects of 
de facto residential segregation, caused by private acts and 
not imposed by law, is certainly not applicable here. Ours 
is the only circuit dealing with school segregation re­
sulting from past legal compulsion that still adheres to the 
Briggs dictum.

“The Fourth is apparently the only circuit of the 
three that continues to cling to the doctrine of Briggs 
v. Elliott and embraces freedom of choice as a final 
answer to school desegregation in the absence of intimi­
dation and harrassment.” 27

We should move out from under the incubus of the Briggs 
v. Elliott dictum and take our stand beside the Fifth and 
the Eighth Circuits.

C o n cu rr in g  O p in io n  o f  J u d g e s  S o b e l o f f  a n d  W i n t e r

27 Dunn, T itle V I , the G uidelines and  Sch oo l D esegregation  in  the S o u th , 
53 VA. L. REV. 42, 72 (1967). See United States v. Jefferson County
Bd. of Edue., ..... F.2d .....  (5th Cir., Mar. 29, 1967) (en banc); Single-
ton v. Jackson Munic. Separate School Dist., 348 F.2d 729, 730 n.5 (5th 
Cir. 1965) (“ [T]he second Brown opinion clearly imposes on public 
school authorities the duty to provide an integrated school system. Judge 
Parker’s well known dictum * * * in Briggs v. Elliott * * * should be 
laid to rest. I t is inconsistent with Brown and the later development of 
decisional and statutory law in the area of civil rights.”) ; Kemp v. 
Beasley, 352 F.2d 14, 21 (8th Cir. 1965) (“The dictum in Briggs has 
not been followed or adopted by this Circuit and it is logically inconsistent 
with Brown and subsequent decisional law on this subject.” )

Cf. Evans v. Ennis, 281 F.2d 385, 389 (3d Cir. 1960), cert, denied, 364 
U.S. 933 (1961) : “The Supreme Court has unqualifiedly declared in te ­
gration to be their constitutional right.” (Emphasis supplied.)



90a

Judgment of United States Court of Appeals 
For the Fourth Circuit

No. 10,792

Charles C. Green, Carroll A. Green and Robert C. Green, 
infants, by Calvin C. Green and Mary 0. Green, 

their father and mother and next friends, 
and all others of the plaintiffs,

Appellants,

versus

County School Board of New Kent County, Virginia, et ah,
Appellees.

A p p e a l  f b o m  t h e  U n i t e d  S t a t e s  D i s t r i c t  C o u r t  

f o r  t h e  E a s t e r n  D i s t r i c t  o f  V i r g i n i a

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, ad­
judged and decreed by this Court that this cause be, and 
the same is hereby, remanded to the United States District 
Court for the Eastern District of Virginia, at Richmond, 
for further proceedings consistent with the opinion of the 
Court filed herein; and that each side bear its own costs 
on appeal.

C l e m e n t  F. H a y n s w o r t h , J& 

Chief Judge, Fourth Circuit

Filed: June 12, 1967 
Maurice S. Dean, Clerk



Order Extending Time to File Petition for 
Writ of Certiorari

SUPREME COURT OF THE UNITED STATES 

No........... , O ctobee T eem , 1967

Shielette L. B ow m an , Chables C. Green, et al.,

Petitioners,
— vs.—

County S chool B oabds oe Chables City  County , V irginia, 
and N ew  Ke n t  County , V irginia, et al.

91a

Upon Consideration o f  the application  o f  counsel fo r  
petitioner (s ) ,

It Is Ordered that the time fo r  filing a petition  fo r  w rit 
of certiorari in  the above-entitled cause be, and the same 
is hereby, extended to and including O ctober 10, 1967.

/ s /  H ugo L. B lack  
Associate Justice of the Supreme 

Court of the United States

Dated this 8th day of September, 1967



92a

Order Allowing Certiorari— December 11, 1967

SUPREME COURT OF THE UNITED STATES 

No. 695, O ctober T erm , 1967

Charles C. Green , et al.,

Petitioners,
—vs.—

County S chool B oard of N ew  K ent  County, 
V irginia, et al.,

Respondents.

The petition herein for a writ of certiorari to the United 
States Supreme Court of Appeals for the Fourth Circuit 
is granted and the case is placed on the Summary Calendar.

And it is further ordered that the duly certified copy of 
the transcript of the proceedings below which accompanied 
the petition shall be treated as though filed in response to 
such writ.





RECORD PRESS — N. Y. C. 38



I n  t h e

i>aprrmr Court of tip  lUutrfu i>tatr£
October Term, 1967 

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

A rth u r  L ee R aney , et al.,

v.
Petitioners,

The B oard of E ducation of the  G ould S chool D istrict, 
a Public Body Corporate, et al.

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

FOR THE EIGHTH CIRCUIT

J ack  Greenberg 
M ichael  M eltsner 
M ichael J . H enry

10 Columbus Circle 
New York, New York 10019

J ohn  W . W alker 
N orman C h a ch k in

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Petitioners





I N D E X

Citations to Opinions Below —......................... _ .......  1

Jurisdiction ________ ______________ — .................. 2

Questions Presented ___________ ______ —...............  2

Constitutional Provision Involved .............................  2

Statement---------------------------------------------------------  2
New Construction to Perpetuate Segregation __  4
Unequal Facilities and Programs _____________  6
Teacher Segregation-------------------------------------  8
Intimidation _______________________________  9
Denial of Belief by the Courts Below_________  10

R e a s o n s  f o b  G b a x t t s g  t h e  W p. i t

Introduction ________________________________  11
The Court Below Erred in Dismissing the Com­
plaint Without Further Inquiry Into the Feasibil­
ity of Grade Consolidation or Other Belief Which 
Would Disestablish Segregation...........................  15
A. By Dismissing the Complaint, the Courts 

Below Abdicated Their Besponsibility Under Brown v. Board of Education to Supervise 
Disestablishment of the Segregated System .... 15

B. “Freedom of Choice” Is Incapable of Dises­
tablishing Segregation in the Gould School 
District ............................................................  21

PAGE



11

C. Use of One School for Elementary Grades and
the Other for Secondary Grades Is a Reason­
able Alternative to “Freedom of Choice” Which 
Will Disestablish the Dual System ..................  25

D. As Minimum Compliance With Brown v. Board 
of Education Petitioners Are Entitled to a 
Comprehensive Decree Governing the Deseg­

PAGE

regation Process ...................................................  29

Conclusion ....................................................................................  32

A ppendix

Opinion of United States District Court ........................  la
Order of Dismissal............................................................. 15a

Opinion of United States Court of Appeals for the 
Eighth Circuit ................................................................  16a

Judgment ............................................................................  26a

Order Denying Petition for Rehearing ..........................  27a

T a b l e  o p  C a s e s

Board of Public Instruction of Duval Co., Fla. v.
Braxton, 326 F.2d 616 (5th Cir., 1964) ......................  18

Bradley v. School Board of the City of Richmond, 382
U.S. 103 (1965) .....................................   19,24

Brooks v. School Board of Arlington County, 324 F.2d
305 (4th Cir. 1963) ..........................   16,17

Brown v. Board of Education, 347 U.S. 483; 349 U.S.
294 (1955) ................................................. 2,3,11,12,15,16,

17, 21, 23, 25, 30
Buckner v. Board of Education, 332 F.2d 452 (4th Cir. 

1964) 17



Ill

Calhoun v. Latimer, 377 U.S. 263 (1964) .............. 16,18, 26
Carr v. Montgomery County Board of Education, 253

F. Supp. 306 (M.D. Ala. 1966) .....................................  17
Cypress v. Non-sectarian Hospital Association, 375 

F.2d 648 (4th Cir. 1967) .............................................  20

Dowell v. School Board of Oklahoma City, 244 F. Supp.
971 (W.D. Okla., 1965), aff’d 375 F.2d 158 (10th Cir., 
1967) cert. den. 387 U.S. 931 (1967) ..........................  18

Charles C. Green v. County School Board of New Kent
County, Virginia, No. 695, October Term, 1967 .......11,14

Griffin v. School Board of Prince Edward County, Va.,
377 U.S. 218 (1964) ............................................ ........ 17,19

Kelley v. Altheimer, 378 F.2d 483 (8th Cir. 1967) ....10,11,
23, 24, 29, 30

Kier v. County School Board of Augusta Co., Va., 249 
F. Supp. 239 (W.D. Va., 1966) ...................................  24

McLaurin v. Oklahoma State Regents, 339 U.S. 637
(1950) ..................................      23

Missouri ex rel. Gaines v. Canada, 305 U.S 337 ........... 23
Brenda K. Monroe v. Board of Commissioners of the 

City of Jackson, Tennessee, No. 740 October Term,
1967) ..............   11,14

Moses v. Washington Parish School Board, — F. Supp.
—, No. 15973, E.D. La...................................................  28

Schine Chain Theatres v. United States, 334 U.S. 110
(1948) .............................................................................. 17

Smith v. Hampton Training School, 360 F.2d 577 (4th
Cir. 1966) ........................................................................  16

Smith v. Morrilton, 365 F.2d 770 (8th Cir. 1966) .......16,18
Sweatt v. Painter, 339 U.S. 629 (1950) ............................ 23

PAGE



IV

United States v. Jefferson County Board of Education,
372 F.2d 836 (5th Cir. 1966) aff’d with modifications 
on rehearing en hanc, 380 F.2d 385 (1967) cert. den. 
sub nom. Caddo Parish School Board v. United 
States,------U .S ......................................12,13,16, 22,29,30

United States v. National Lead Co., 332 U.S. 319 
(1947) .............................    17

United States v. Standard Oil Co., 221 U.S. 1 (1910) .... 17

Wheeler v. Durham City Board of Education, 346 F.2d 
768 (4th Cir., 1965) ....................................................... lg

Yarbrough v. Hulbert-West Memphis, 380 F.2d 962 
(8th Cir. 1967) ............................................................... 17

T a b l e  o f  S t a t u t e s  a n d  R e g u l a t io n s

15 U.S.C. §4 ......................................................................  17

28 U.S.C. §1254(1) ........................................................... 2

Elementary and Secondary Education Act of 1965, 20 
U.S. §241A ............................................. .......................13,14

Revised Statement of Policies for School Desegrega­
tion Plans Under Title VI of the Civil Rights Act 
of 1964 (45 CFR Part 181.54) .....................................  21

O t h e r  A u t h o r i t ie s

Conant, The American High School Today (1959) ..... 28

Southern School Desegregation, 1966-67, a Report of 
the U.S. Commission on Civil Rights, July 1967 -.12,13,

14,20

PAGE



I n  t h e

l^uprpm? Court of thr Hmtpfc ^tatro
October Term, 1967 

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

A r t h u r  L e e  R a n e y , et al.,

Petitioners,

v.

T h e  B o a r d  o f  E d u c a t io n  o f  t h e  G o u l d  S c h o o l  D i s t r ic t , 

a Public Body Corporate, et al.

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

FOR THE EIGHTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Eighth Circuit entered in the above-entitled case Au­
gust 9, 1967, rehearing of which was denied September 18, 
1967.

Citations to Opinions Below

The unreported opinion of the district court is reprinted 
in the appendix, infra, at pp. la-14a. The opinion of the 
court of appeals is reported at 381 F.2d 252 (8th Cir. 
1967) and is reprinted in the appendix, infra, at pp. 15a- 
25a.



2

Jurisdiction

The judgment of the Court of Appeals was entered 
August 9, 1967 and petition for rehearing was denied 
September 18, 1967, infra, pp. 26a-27a. The jurisdiction of 
this Court is invoked under 28 U.S.C. Section 1254(1).

Questions Presented

1. Whether—13 years after Brown v. Board of Educa­
tion,—a “freedom of choice” plan which maintains an all- 
Negro school is constitutional in a system with only two 
nearby school plants, one traditionally Negro and the other 
traditionally white, although assigning elementary grades 
to one school and secondary grades to the other would 
immediately desegregate the system.

2. Whether the court of appeals erred in denying all 
relief, dismissing the complaint, and declining to order the 
district court to supervise the desegregation process on 
the ground that the Department of Health, Education and 
Welfare had initially approved the Board’s plan as facially 
sufficient to comply with Title VI of the Civil Bights Act 
of 1964.

Constitutional Provision Involved

This case involves Section I of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement

Negro students filed a class action September 7, 1965, 
to enjoin the Gould School Board from (1) requiring them 
and all others similarly situated to attend the all-Negro 
Field School; (2) providing public school facilities for



3

Negro pupils inferior to those for whites; and (3) other­
wise operating a racially segregated system (R. 3-8). Plain­
tiffs first learned of a proposed school construction pro­
gram during a November, 1965 hearing in the district 
court, and amended to pray that future replacement high 
school facilities be located on the premises of the white 
Gould High School, rather than at the Negro Field School 
(E. 12, 19, 138).

Gould is a small district of about 3,000 population, and 
total school enrollment of 879 in the 1965-66 school year 
(R. 79-80). Until September, 1965, the district had not 
taken any steps to comply with Brown v. Board of Educa­
tion, and operated completely separate schools for Negro 
and for white pupils with racially separate faculties (R. 
31). Negro students were instructed in a complex of build­
ings known as the Field School, and white students were 
taught in a complex of buildings known as the Gould School 
(R. 31). The two complexes are within 8 to 10 blocks of 
each other; each contains an elementary school and a 
secondary school (R. 31, 73).

The school district did not consider undertaking any 
desegregation program until the United States Department 
of Health, Education, and Welfare issued Guidelines im­
plementing Title VI of the Civil Rights Act of 1964 (R. 
121-23). September, 1965, the district adopted a “ free­
dom of choice” plan of desegregation for all 12 grades, 
but later obtained approval from H.E.W. to withdraw 
three grades from the plan’s operation for 1965-66 be­
cause of overcrowding in those grades caused by Negro 
requests to go to the white school. There were no white 
requests to go to the Negro school. As a result Negroes, 
m the 5th, 10th and 11th grades were turned away from 
the white school (R. 53-60, 62-63). During the 1965-66 
school year, the enrollment figures for the school district 
were as follows (R. 79-80):



4

G rades N egro W h ite

Field Complex 1-12 509 0
Gould Complex 1-12 70 299

During the 1966-67 school year, the second year of “free-
dom of choice” , the enrollment figures were as follows:1

G rades N egro W h ite

Field Complex 1-12 477 0
Gould Complex 1-12 71 304

New Construction to Perpetuate Segregation

White Gould High School, constructed in 1964, is the 
most modern facility in the district (R. 89). Adjacent 
white Gould Elementary School was constructed originally 
as a high school and was subsequently converted to an 
elementary school (R. 81-82). The Negro Field Elemen­
tary School is also modern, constructed in 1954; gym­
nasium and auditorium were added in 1960 (R. 89-91). 
Until the 1967-68 school year Negro high school class­
rooms were in a building constructed in 1924 concededly 
obsolete and inferior to the white high school (R. 10, 16, 
130).

Promises by the Board to improve the Negro high school 
date back to 1954, a decade before any consideration was 
given to desegregation, and apparently resulted from a 
suit to require equal facilities for Negroes (131-132, 129).

1 The record in this case, like the records in all school desegregation 
cases, is necessarily incomplete by the time it reaches this Court. In this 
case the 1965-66 school year was the last year for which the record sup­
plies desegregation statistics. Information regarding student and faculty 
desegregation during the 1966-67 school year was obtained from official 
documents, available for public inspection, maintained by the United States 
Department of Health, Education and Welfare. Certified copies thereof 
and an accompanying affidavit have been deposited with this Court and 
served upon opposing counsel.



5

Actual construction of a new high school building on the 
site of the Field school, however, did not begin until Janu­
ary, 1967. The new building was scheduled to open in Fall, 
1967 (R. 65, 66).

The superintendent admitted that the old Field High 
School was clearly a “Negro” school, and probably would 
continue to be an all-Negro school if replaced with a new 
facility at the Field site (R. 67). He also conceded that 
it was inefficient for a small school district to construct 
a new secondary school when it already had one. There 
would be duplication of libraries, auditoriums, agriculture 
buildings, science laboratories, cafeterias, and other facil­
ities (R. 74-76). He was asked (R. 76) :

Q. “This means that you have to spend a lot more 
money for equipment and for materials for the Negro 
school in order to just have an equal department with 
the white school?”

He answered: “ I suppose so. It would take more 
money to build a new building and equip it.”

Plaintiffs sought to shift the construction site of the 
new high school to the site of the white school by a timely 
amendment during the hearing in November, 1965 more 
than a year before construction was scheduled to begin 
(R. 137-138). The district court refused to grant relief 
in an opinion in April, 1966. Because of illness the court 
reporter did not complete the transcript until one year 
later—April 1, 1967—thereby delaying determination of 
the appeal (R. 140). At the time the case was submitted 
to the court of appeals the outer shell of the new building 
at the Negro school site was completed.2 Because the con-

2 Petitioners filed in the court of appeals an affidavit of their attorney 
stating that the outer shell was completed but that a number of walls, 
plumbing facilities and fixtures and interior walls, the roof and flooring 
had not been completed, see infra, p. 18a.



6

struction of the replacement facility at the Negro school 
had progressed by the time briefs were filed in the court 
of appeals, petitioners asked that court to require a utiliza­
tion of the Gould School site as the single secondary school, 
and the Field School site the single elementary school for 
the district. It was urged that such a utilization was prac­
tical, economical, educationally superior and would dis­
establish segregation.

Unequal Facilities and Programs

The record shows that for many years prior to con­
structing the new Negro high school the Board tolerated 
substantial inequalities between the segregated schools. 
The old all-Negro high school, a wooden frame structure, 
was admitted by the president of the Board to have been 
“grossly inferior” to the white high school (R. 10, 16, 130). 
He said that the reason no money was spent on the build­
ing was that every dollar available had been exhausted on 
other uses (R. 130). Nevertheless, a new all-white high 
school was constructed at the Gould site (rather than at 
the Negro Field site) in 1964 following a fire which de­
stroyed the old high school building there (R. 83).

The Negro Field High School is completely unaccredited; 
the Arkansas State Department of Education rates the 
Field Elementary School class “ C” (R. 31) and the white 
Gould Schools “A ” (R. 10). The Negro school bathrooms 
were in a building separated by a walk exposed to weather 
(R. 51-52); the white schools had rest rooms in each build­
ing (R. 50, 52).

There is an agriculture building at the predominantly 
white high school, and a hot lunch program for elementary



7

and secondary students but none at the Negro site (E. 
40-41). The library at the white high school contains ap­
proximately 1,000 books, and a librarian (R. 42-43). The 
Negro school has only three sets of encyclopedias, one pur­
chased a month before the hearing in this case (R. 113- 
114). These books were kept in the principal’s office, rather 
than in a separate library, and the principal, in effect, 
functions as librarian, to the extent that such function is 
required (R. 114). The superintendent had a complete 
lack of knowledge of the extent of library facilities at the 
Negro school (R. 42).

The science facilities at the Negro high school were 
inferior to those of the predominantly white high school, 
even though the former is larger (R. 43-44). Pupils who 
attend Gould generally have an individual desk and chair; 
the standard pattern at the old Negro school was a folding 
table with folding chairs and three students on each side, 
sitting at the table (R. 47-48).

The “per pupil” expenditure is less at Field School than 
for the formerly all-white, now predominantly white, Gould 
School (R. 44). The system has charged “enrollment fees” 
to pupils at Field, but not at Gould (R. 44-45). It was 
also the practice to require Negro students to pick cotton 
in the fields during class time to earn money for school 
fund raising projects, and to pay “enrollment fees” (R. 
44-46).

Unequal per pupil expenditures are also reflected in 
higher student-teacher ratio at the Negro school i.e., the 
average class size is larger (R. 59-62). There are 14 teach­
ers at Gould, but only 16 teachers at Field although it has 
about 130 more students (R. 60-61). The range of Negro 
teacher salaries is from $3,870 to $4,500; for white teachers, 
the range is from $4,050 to $5,580 (R. 33-39).



8

There are also disparities in course offerings. Neither 
vocational agriculture nor journalism, offered at Gould, are 
offered at Field (E. 52-53). There is a similar disparity 
in extracurricular activities. The larger Negro school has 
no football, basketball, or track programs, whereas there 
are football, basketball, and track teams at the white school 
(E. 106-107). There is a Future Farmers of America voca­
tional club at the white school, but none at the Negro school 
“because they do not have an agricultural department” 
(E. 106).

Teacher Segregation

The school system has no plans for substantial faculty 
desegregation. In 1965, the Board planned to assign two 
white teachers to the Negro school but no Negro teachers 
to full teaching duties at the white school (E. 67-70). How­
ever, by the 1966-67 school year the only faculty desegre­
gation which had taken place was assignment of one part 
time white teacher to the Negro school.3 Faculty meetings 
had not been integrated (E. 68). At trial, the superin­
tendent stated that “we have kept that in the background, 
we want to get the pupil integration question settled and 
running as smoothly as possible before we go into some­
thing else” (E. 68).

When asked whether re-assignments of faculty members 
were eventually contemplated, the superintendent stated 
that “we do not have any plans to re-assign anybody” 
(E. 69). He stated that, in compliance with H.E.W. re­
quirements, the school system “will attempt to employ 
Negro teachers in a predominantly white school on a limited 
basis, and particularly in positions that do not involve di­
rect instructions to pupils” (E. 69). The superintendent

8 See Note 1, supra.



9

described the Negro teachers’ academic qualifications as 
superior to the white teachers. Every Negro teacher had a 
bachelor’s degree and two had master’s degrees. Only one 
white teacher had a master’s degree; two have no degree 
(R. 33, 94-95).

Intimidation

When the PTA at the Negro school began to protest to 
the superintendent and the Board the deplorable condi­
tions at the old Negro high school the superintendent re­
sponded by issuing an order which forbade the Negro PTA 
from meeting in the Negro high school (R. 63-64). He 
stated: “The reason for that is, as I understand, the PTA 
had evolved into largely a protest group against the school 
board and the policies of the board. The members of that 
organization were the same who planned to demonstrate 
against the Gould High School and had sent chartered bus 
loads of people to Little Rock to demonstrate around the 
Federal Building, who were getting a chartered bus of 
sympathizers to come to this hearing today and it does 
not seem right to us to furnish a meeting place for a group 
of people that is fighting everything we are trying to do 
for them” (R. 64).

When questioned whether this meant the Negro high 
school parents could not have a PTA, the superintendent 
responded: “They can have a PTA but they can meet 
somewhere else” (R. 64). He later admitted that he had no 
knowledge that any plans for marches or demonstrations 
had been made at a PTA meeting, and that all that he 
heard to this effect was hearsay (R. 108-109). The super­
intendent and some members of the Board obtained an in­
junction against several civil rights groups, enjoining them 
from protesting conditions in the system (R. 63).



1 0

Denial of Relief by the Courts Below

The district court denied all relief and dismissed the 
case in an opinion April 26, 1966 (R. 12-25). The court 
relied on the fact that the school district adopted a plan 
without court order, that the plan was approved by the 
Department of Health, Education, and Welfare, and that 
some Negro students were in fact attending the “white” 
school. With respect to constructing new secondary school 
replacement facilities on the site of the present Negro 
school, rather than enlarging the previously all-white school, 
the court decided that the replacement plan was not “solely 
motivated by a desire to perpetuate or maintain or support 
segregation in the school system” (R. 24-25).

The court of appeals found that the Board was operating 
under a freedom of choice plan which on its face met stan­
dards approved by the circuit and the Department of 
Health, Education, and Welfare; that there was “no sub­
stantial evidence to support a finding that the Board was 
not proceeding to carry out the plan in good faith” ; that 
progress was being made in equalizing teachers’ salaries; 
and that relief requiring that the replacement construction 
be undertaken at the Gould site could not be effective be­
cause considerable progress has been made in constructing 
the building on the Field site.4

Although the court found that “There is no showing that 
the new construction added could not be converted at a 
reasonable cost into a completely integrated grade school 
or into a completely integrated high school when the appro-

4 Plaintiffs filed notice of appeal and oral argument was originally 
scheduled at the same time as a case involving similar issues, Kelley v. 
Altheimer, 378 F.2d 483 (8th Cir. 1967). However, the court reporter 
was sick for an extended period of time, and was unable to complete the 
transcript until April 1st, 1967 (R. 140).



1 1

priate time for such course arrives”  (emphasis supplied), 
it declined to order conversion of one school plant to use 
as an elementary school and the other as a secondary school 
as such relief had not been considered by the trial court. 
In addition, the court held that petitioners were not en­
titled to a comprehensive judicial decree governing the 
operation of the “choice” plan as ordered by a different 
panel of the court in Kelley v. Altheimer, 378 F.2d 483 (8th 
Cir. 1967), and affirmed dismissal of the complaint.

A petition for rehearing en banc or by the panel, ad­
verting to a conflict between panels of the court with re­
spect to standards for approval of desegregation plans, 
was denied September 18, 1967.

REASONS FOR GRANTING THE WRIT 

Introduction

The question here is whether in the mid-sixties, a full 
school generation after Brown v. Board of Education, a 
board which stubbornly refused to comply until threatened 
with loss of federal funds, may, with judicial approval, 
adopt a desegregation plan which perpetuates racially 
identifiable schools, although a practical, economical, and 
educationally superior alternative would disestablish the 
dual system. Similar issues are pending here in Charles 
C. Green v. County School Board of New Kent County, 
Virginia, No. 695, October Term, 1967, and Brenda K. 
Monroe v. Board of Commissioners of the City of Jackson, 
Tennessee, No. 740, October Term, 1967. A second ques­
tion, no less significant, is whether a district court and 
court of appeals may dismiss a complaint broadly chal­
lenging the constitutionality of desegregation policies and 
refuse to supervise the desegregation process because the



12

In the Gould School District, as elsewhere, “ free choice” 
has not achieved meaningful desegregation. Although the 
proportion of Negroes in all-Negro schools has declined 
since 1954, more Negro children are now attending such 
schools than in 1954.5 Indeed, during the 1966-67 school 
year, 12 years after Brown, more than 90% of the almost 
3 million Negro pupils in the 11 Southern states still at­
tended schools over 95% Negro; 83.1% were in 100% Ne­
gro schools.6 In this case approximately 85% of the Negro 
pupils in the system still attend schools with only Negroes. 
Desegregation has been a one-way street—a few Negroes 
moving into white schools, no whites attending Negro 
schools. “This June, the vast majority of Negro children 
in the south who entered the first grade in 1955, the year 
after the Brown decision, were graduated from high school 
without ever attending a single class with a single white 
student,” 7 a result plainly attributable to the prevalence 
of “choice” plans. The United States Civil Bights Com­
mission in its most recent report stated:

The review of desegregation under freedom of choice 
plans contained in this report, and that presented in 
last year’s commission’s survey of southern school

Board has adopted a plan facially approved by the United
States Department of Health, Education, and Welfare.

6 S o u th e rn  S ch o o l D eseg reg ation , 1 9 6 6 -6 7 , a Report of the U.S. Com­
mission on Civil Rights, July 1967, p. 11.

6 Id . at 165.
' I d .  at 147. As the Fifth Circuit has had occasion to say “ [f]or all 

but a handful of Negro members of the High School Class of 1966, this 
right [to a racially nondiscriminatory public school system] has been of 
such stuff as dreams are made on.” U nited  S ta te s  v. Je ffe rs o n  County 
B o a rd  o f  E d u cation , 372 F.2d 836, 845 (5th Cir., 1966) a ff’d w ith  modifi­
cations on reh earin g  en banc, 380 F.2d 385 (1967) cert. den. sub nom.,
Caddo P a r ish  S ch o o l B o a rd  v. U nited  S t a t e s ,----- U.S. ------- (October 9,
1967).



13

desegregation, show that the freedom of choice plan 
is inadequate in the great majority of cases as an 
instrument of disestablishing a dual school system. 
Such plans have not resulted in desegregation of Ne­
gro schools and therefore perpetuate one-half of the 
dual school system virtually intact. (Emphasis added.)8

By dismissing the complaint, the courts below totally 
refused to supervise the desegregation process, remitting 
Negro school children to a supposed remedy under Title VI 
of the Civil Bights Act of 1964. Such a disposition is un­
precedented. It is particularly difficult to comprehend here 
because the H.E.W. Guidelines do not regulate the impact 
of construction policy or include specific standards to 
measure the effect of construction on “ freedom” in a “ free­
dom of choice” plan. The irony of the court of appeals 
deferral to H.E.W. is that in formulating desegregation 
standards the Department is guided by legal principles 
emanating from the courts.9 * For the Guidelines to develop 
in accordance with constitutional desegregation standards, 
the courts must continue to develop those standards with 
respect to central, but not heretofore considered, issues 
such as the impact of school construction policies on a 
desegregation plan and remedies appropriate to overcome 
institutionalization of segregation.

This petition is filed at a critical time in American edu­
cation. Under the newly enacted Elementary and Secondary 
Education Act of 1965, 20 U.S. §241A, federal aid to the 
states for education is constituting an increasingly sig­
nificant portion of the school budget. “In many cases

8 S o u th e rn  S ch o o l D eseg reg ation , 19 6 6 -6 7 , a Report of the U.S. Com­
mission on Civil Rights, July, 1967, pp. 152-153.

9 The Fifth Circuit recognized this in U nited  S ta te s  v. Je ffe rs o n  C ou nty
B oard o f  E d u cation , su p ra , at 372 F.2d 847, 851.



14

higher than 20% and in some cases higher than 30%.” 10 
These vast funds can either institutionalize segregation or 
operate as a force to eliminate it. Too often they have been 
a force for segregation. As the U.S. Commission on Civil 
Eights has reported:

That Title I funds have been employed in such a 
manner as to institutionalize and strengthen the dual 
school structure is apparent when the use of such 
funds in the construction of new school facilities is 
examined. In at least one district, for example, school 
authorities used Title I funds to purchase portable 
classrooms for overcrowded Negro schools. In another 
district, Title I funds were used to build a vocational 
training shop midway between a white and a Negro 
school to be used separately by the children at each 
school. In still another district, Title I funds supplied 
one-third of the money to add separate gymnasiums 
to white and Negro schools which were 1,000 yards 
apart.11

This particular case, Green v. County School Board of New 
Kent County, Virginia, No. 695, October Term, 1967 and 
Monroe v. Board of Commissioners of the City of Jackson, 
Tennessee, No. 740, October Term, 1967, now pending be­
fore the court, do not involve the expenditure of ESEA 
funds, although in the instant suit the school board has 
been spending other federal grants. The causes arose 
before ESEA funds might have become an issue. But over 
years to come thousands of districts, probably including 
those mentioned above, will be receiving such monies with 
consequences that will tend to establish or disestablish

10 S o u th e rn  S ch o o l D eseg reg ation , 1 9 6 6 -6 7 , a Report of the U.S. Com­
mission on Civil Rights, July, 1967, at p. 130.

11 Id . at p. 136.



15

segregation as well as affect other aspects of the education 
process. The disposition of this case will be exceedingly 
important in such a development because this case involves 
standards which H.E.W. may impose on a district or from 
which it may relieve a district in the course of admin­
istering federal monies. This case, therefore, involves the 
relationship between this Court’s interpretation of the 
Constitution and the administration of federal statutes im­
plementing that interpretation, a matter of paramount 
importance.

The Court Below Erred in Dismissing the Complaint 
Without Further Inquiry Into the Feasibility of Grade 
Consolidation or Other Relief Which Would Disestab­
lish Segregation.

A. By Dismissing the Complaint, the Courts Below Abdicated 
Their Responsibility Under Brown v. Board of Education 
to Supervise Disestablishment of the Segregated System.

Petitioners made a timely challenge to racially planned 
construction of new secondary school classrooms on the 
Negro school site. They did not challenge the replacement 
of a dilapidated Negro school generally but asked only 
that the construction, not scheduled to begin for over a 
year, take place on the white school site. Under a choice 
plan, to do otherwise would result in perpetuating an 
unmistakably identifiable Negro school. After the district 
court failed to enjoin the construction and a court re­
porter’s illness delayed the appeal, the new building’s 
outer shell was completed. In the court of appeals peti­
tioners sought utilization of the dual plants as constructed 
in a maner which would disestablish the segregated sy­
stem. The court ruled that it would not consider utiliza­
tion of one plant for elementary students and the other



16

We submit this is an ironic and unnecessary result which 
demonstrated a misconception by the court of its equitable 
powers and responsibility in a school desegregation case. 
Desegregation is by its nature a continuous process which 
requires continuing supervision by the lower courts. Rec­
ords are always somewhat out of date and relief to be 
effective must be fashioned with flexibility. In the circum­
stances of this case, where completion of the construction 
merely altered the appropriate form of relief, dismissal 
of the complaint was abdication of jurisdiction over the 
desegregation process. See Brown v. Board of Education, 
349 U.S. 294, 301 (1955); Calhoun v. Latimer, 377 U.S. 263 
(1964); Brooks v. School Board of Arlington County, 324 
F.2d 305 (4th Cir. 1963); Smith v. Morrilton, 365 F.2d 
770, 783 (8th Cir. 1966); Cf. Smith v. Hampton Training 
School, 360 F.2d 577, 581 (4th Cir. 1966). As the court of 
appeals said in United States v. Jefferson County Board 
of Education, supra (380 F.2d at p. 389): “ School deseg­
regation cases involve more that a dispute between certain 
Negro children and certain schools. If Negroes are ever 
to enter the mainstream of American life as school chil­
dren they must have equal educational opportunities with 
white children.” The fact that petitioners’ request for 
consideration of a grade consolidation plan had not been 
sought in the trial court does not justify dismissal of 
this case. The construction itself, and the failure of the 
Board to disestablish segregation, were the subject of 
timely attack in the district court. It was not feasible to 
raise the issue of consolidation because at the time the 
trial was held the new construction was not scheduled to 
begin for over a year. At the very least, the court of 
appeals was obligated to remand to the district court for a

for secondary students because this relief was not sought
in the trial court. It affirmed dismissal of the complaint.



17

hearing with instructions to order grade consolidation if 
not educationally impractical.

It is submitted that by dismissal of the complaint, at a 
time when segregation is entrenched, the panel failed to 
adhere to the rule of Brown v. Board of Education, 349 
U.S. 294, 301 (1955) and numerous decisions of lower 
courts which hold that district courts must retain juris­
diction until a racially nondiscriminatory school system is 
a reality.12 In Brown, federal courts were expressly di­
rected to retain jurisdiction in order to supervise the 
enforcement of desegregation. Here, the court simply re­
fused to be influenced by developments subsequent to trial 
even though their genesis, the construction program, was 
subject to timely attack.13 The failure of the court of

12 See e.g. B ro o k s  v. S ch o o l B o a rd  o f  A r lin g to n  C ou nty , 324 F.2d 305 
(4th Cir. 1963); B u ck n er v. B o a rd  o f  E d u cation , 332 F.2d 452 (4th Cir. 
1964); Y a rb ro u g h  v. H u lb e rt-W e st M em phis, 380 F.2d 962 (8th Cir. 1967).

13 In the second B ro w n  decision this Court directed that “in fashioning 
and effectuating the decrees, the courts will be guided by equitable prin­
ciples.” (349 U.S. at 300). Equity courts have broad power to mold their 
remedies and adapt relief to the circumstances and needs of particular 
cases as graphically demonstrated by the construction given to 15 U.S.C. 
54 in restraining violations of the Sherman Antitrust Act. The test of the 
propriety of such measures is whether remedial action reasonably tends to 
dissipate the effects of the condemned actions and to prevent their con­
tinuance, U nited  S ta te s  v. N atio n a l L ead  Co., 332 U.S. 319 (1947). Where 
a corporation has acquired unlawful monopoly power which would con­
tinue to operate as long as the corporation retained its present form, 
effectuation of the Act has been held even to require the complete dis­
solution of the corporation. U nited  S ta te s  v. S ta n d a rd  O il Co., 221 U.S. 
1 (1910); S ch in e  C hain  T h eatres v. U nited  S ta te s , 334 U.S. 110 (1948). 
Numerous decisions establish that the federal courts construe their power 
and duties in the supervision of the disestablishment of state imposed 
segregation to require as effective relief as in the antitrust area. So in 
Griffin v. S ch o o l B o a rd  o f  P rin c e  E d w a rd  C ou nty , V a ., 377 U.S. 218 
(1964) this Court ordered a public school system which had been closed 
to avoid desegregation to be reopened. C a rr  v. M o ntg om ery C o u n ty  (A la .)  
B oard o f E d u cation , 253 F. Supp. 306 (M.D. Ala. 1966), ordered twenty- 
one (21) small inadequate segregated schools to be closed over a two



1 8

appeals to remand to the district court with instructions 
to order consolidation, if feasible, demonstrates a too nar­
row view of the power and duties of a federal court of 
equity in supervising desegregation and granting relief 
required by the Constitution.14 At one point in its opinion 
the court of appeals states that the parties had no oppor­
tunity to offer evidence on the feasibility of consolidation 
and the trial court had no opportunity to pass on the issue. 
If the defect was solely one of evidence, however, the proper 
remedy was remand to the district court for further pro­
ceedings, not dismissal.

Other portions of the panel’s opinion suggest, however, 
that it affirmed dismissal of the complaint for quite dif­
ferent, although also erroneous, reasons:

Moreover, there is no showing that the Field facilities 
with the new construction added could not be con-

year period and the students reassigned to larger integrated schools. 
D ow ell v. S ch o o l B o a rd  o f  O klahom a C ity , 244 F. Supp. 971 (W.D. Okla., 
1965), aff’d 375 F.2d 158 (10th Cir., 1967), cert. den. 387 U.S. 931 (1967), 
ordered the attendance areas of pairs of six-year junior-senior high 
schools in adjacent neighborhoods consolidated, with one school in each 
pair to become the junior high school and the other to become the senior 
high school for the whole consolidated area. The Fifth Circuit has held 
that a district court has power to enjoin “approving budgets, making 
funds available, approving employment contracts and construction pro­
grams . . . designed to perpetuate, maintain or support a school system 
operated on a racially segregated basis.” B o a rd  o f  P u b lic  In stru c tio n  of 
D u v a l Co., F la . v. B ra x to n , 326 F.2d 616, 620 (5th Cir., 1964). The 
Fourth Circuit has held that a school construction program an appro­
priate matter for court consideration in spite of the possible complexities 
involved. W h eele r v. D u rh am  C ity  B o a rd  o f  E d u cation , 346 F.2d 768 
(4th Cir., 1965).

14 The continuous nature of the desegregation proeess has consistently 
obligated appellate courts to fashion relief despite the occurrence of 
events subsequent to judgment in the district court. Such has been the 
common practice of the courts applying B ro w n  and indeed it had been 
the practice of the Eighth Circuit until this case. C alhoun  v. Latim er, 
377 U.S. 263 (1964); S m ith  v . M o rr ilto n , 365 F.2d 770 ( 8th Cir. 1966).



19

verted at a reasonable cost into a completely inte­
grated grade school or into a completely integrated 
high school when the appropriate time for such course 
arrives. (Emphasis supplied.) Appendix, infra, p. 20a.

Utilization of one school as elementary and one as second­
ary school is thus acceptable to the court of appeals but 
only “when the appropriate time for such course arrives.” 
Such language strongly implies that it is a notion of 
deliberate speed which led the court to reject grade con­
solidation and approve a choice plan and not solely that 
petitioners did not seek in the trial court altered utilization 
of classrooms which were not even constructed at the time 
of trial. But the time for deliberate speed is over. Over 
two years ago this Court stated, “more than a decade has 
passed since we directed desegregation of public school 
facilities with all deliberate speed. . . . Delays in deseg­
regating school systems are no longer tolerable.” Bradley 
v. School Board of the City of Richmond, 382 U.S. 103, 105 
(1965). In 1964, the Court said: “ There has been entirely, 
too much deliberation and not enough speed. . . .” Griffin 
v. County School Board of Prince Edward County, 377 
U.S. 218, 229. The Court should grant certiorari in this 
case to make it clear that “ the appropriate time” is now.

By their opinions and dispositions the courts below indi­
cated that they regard the United States Department of 
Health, Education, and Welfare as having controlling re­
sponsibility for supervising school desegregation in Gould 
despite the fact that H.E.W. Guidelines do not deal with 
the impact of construction policy on a “freedom of choice” 
plan, that H.E.W. had not required modification of the 
construction plan or in any way sought to ameliorate its 
impact. To be sure H.E.W. Guidelines are entitled to 
substantial weight as general propositions of school deseg­
regation law, and as minimum standards for court-ordered



20

desegregation plans. The same cannot be said for H.E.W. 
administrative approval of a particular school district’s 
actual compliance with constitutional standards. With its 
limited personnel and funds, the Department is simply un­
able to ascertain all of the relevant facts about the per­
formance of an individual school district in the way that a 
court hearing can, especially where, as here, H.E.W. Guide­
lines do not even purport to regulate the effect of con­
struction policy. H.E.W.’s “compliance reviews and en­
forcement proceedings” are “not planned in a rational and 
consistent manner” ; the Department’s appraisal of deseg­
regation sometimes cannot be but “faulty and inefficient.” 
“Manpower limitations” force the Department to fail to 
proceed against many districts which are not in compliance. 
See Southern School Desegregation, 1966-67, A Report of 
the U. S. Civil Rights Commission, July, 1967, pp. 58, 59. 
Compare Cypress v. N on-sectarian Hospital Association, 
375 F.2d 648, 658, 659 (4th Cir. 1967) where a hospital 
defended a desegregation suit on grounds of H.E.W. ap­
proval, but the court ruled that H.E.W.’s compliance 
mechanism was so inefficient that it was not an equitable 
defense to a suit based on deprivation of constitutional 
rights. Unfortunately, the sorry statistics of southern 
school desegregation, see supra p. 12, reflect the inability 
of the Department to police, effectively, compliance with 
the Guidelines.

Petitioners complained, moreover, of a violation of their 
constitutional rights; not statutory rights such as they 
may have under Title VI of the Civil Rights Act which 
regulates the relationship between the federal government 
and its grantees. The courts may not abdicate their re­
sponsibility to construe the performance of school boards 
in terms of the constitutional standards of the Fourteenth 
Amendment. Petitioners have been unable to locate any



21

decision which holds to the contrary. In this regard, the 
court below fundamentally misconstrued the role of burden 
of proof in school desegregation cases. The burden of 
proof is not on plaintiffs to demonstrate that a school sys­
tem which undisputedly has been segregated for genera­
tions is still segregated, but on the school board to demon­
strate that its desegregation plan desegregates the system. 
Brown v. Board of Education, supra. That burden is not 
carried by adoption of a “ freedom of choice” plan when 
another plan which apparently is reasonable and possible 
will immediately desegregate the system.

B. “Freedom of Choice” Is Incapable of Disestablishing Segre­
gation in the Could School District.

The fundamental premise of Brown v. Board of Educa­
tion was that segregation in public education had very 
deep and long term effects upon Negroes who were segre­
gated. It is not surprising that individuals, reared in that 
system and schooled in the ways of subservience (by segre­
gation in schools and every other conceivable aspect of 
existence) who are given the opportunity to “make a 
choice,” chose, by inaction, that their children remain in 
Negro schools.15 By making the Negro’s exercise of choice 
the critical factor, school authorities virtually insure de­
segregation’s failure. Moreover, intimidation, a weapon

lo In its R evised  S ta tem en t o f  P o lic ies f o r  S ch o o l D eseg reg ation  P la n s  
Under T itle V I  o f  the C iv il E ig h ts A c t  o f  1 9 6 4  (referred to as the Guide­
lines), the Department of Health, Education, and Welfare states (45 
CPE Part 181.54) :

A free choice plan tends to place the burden of desegregation on 
Negro or other minority group students and their parents. Even 
when school authorities undertake good faith efforts to assure its fair 
operation, the v e ry  n a tu re  o f  a  fr e e  choice p la n  and the effect o f  lon g­
standing  com m unity a ttitu d es o fte n  tend  to p rec lu d e o r  in h ib it the 
exercise o f  a  t ru ly  f r e e  choice by or f o r  m in o rity  g rou p  students. 
(Emphasis added.)



22

well-known throughout the south, has been employed to 
deter transfers. Every community pressure militates 
against the affirmative choice of white schools by Negro 
parents. Here the heavy hand of segregation did its work 
in overt fashion.

First. “ The only school desegregation plan that meets 
constitutional standards is one that works” (United States 
v. Jefferson County Board of Education, supra, 372 F.2d 
at p. 847 (emphasis in original)) and the Gould plan has 
not worked. In both first and second year of its operation 
only about 70 Negro pupils attended the white school and 
no whites “chose” to attend the Negro school. In the first 
year of the plan several Negroes “chose” the white school 
but were refused admission due to overcrowding, an over­
crowding caused in part by the fact that no whites “chose” 
to attend the Negro school. Only one teacher has been 
assigned to a desegregated faculty, and that teacher on a 
part time basis. In June, 1967, the superintendent in­
formed the Department of Health, Education and Welfare 
that he anticipated an increase of only 14 Negro students 
in the white school for the 1967-68 school year, the third 
year of desegregation and that again no whites would 
attend the Negro school. No Negro teacher would be as­
signed to teach at the white school; one white teacher and 
one white supervisor would have part time duties at the 
Negro school, see note 1, supra. In short, in over two 
years of operation “ freedom of choice” has not and does 
not appear capable of disestablishing segregation.

Second, the record shows active intimidation of the Ne­
gro community. The PTA of the Negro school was pro­
hibited by the superintendent from meeting at the school 
once it began to protest conditions there, and an injunction 
was obtained by the board of education against public 
protests concerning school conditions (R. 63-64).



23

Third, the degree of inequality between the Negro and 
white high schools which has been maintained for so long 
inevitably communicates to the Negro community that the 
Board could not be trusted to administer a “ freedom of 
choice”  plan fairly, see supra pp. 6-8. Until 1965, the 
Negro high school had such a poor physical plant and 
program that it was completely unaccredited by the State 
of Arkansas, while the white high school had an “A ” 
rating (R. 10, 16, 31, 83, 130). Long promised reconstruc­
tion took place only after adoption of a “ freedom of 
choice” desegregation plan when a new school would have 
the possible effect of limiting the number of Negro trans­
ferees under the choice plan. Not only has the practice 
of segregation followed by this district been unconstitu­
tional since 1954, Brown v. Board of Education, 347 U.S. 
483, but the “gross inferiority” of the separate public 
school facilities provided for Negro students has been 
unconstitutional at least since 1938, Missouri ex rel. Gaines 
v. Canada, 305 U.S. 337; Sweatt v. Painter, 339 U.S. 629 
(1950); McLaurin v. Oklahoma State Regents, 339 U.S. 
637 (1950). The court of appeals erred fundamentally, in 
ignoring the relevance of these historic inequalities to the 
validity of the choice plan.

Fourth, the character of the new replacement construc­
tion on the traditional segregated site (and that no ra­
tional educational purpose is apparent behind such dual 
construction) is not susceptible to any other interpretation 
by the community, Negro and white, than that the Board 
wishes to maintain a segregated system, with one school 
intended for whites and the other intended for Negroes, 
see Kelley v. Altheimer, 378 F.2d 483, 490, 496 (8th Cir. 
1967). This was just as unambiguous an act as re-writing 
the word “white” over the door of the Gould School and 
the word “Negro” over the door of the Field School—and



24

is just as coercive to the Negroes who have traditionally 
been informed by the segregated system that they were 
not wanted in “white” institutions, and to whites who have 
been informed that it was not proper for them to be in 
“Negro” institutions. The replacement construction here 
has precisely the same effect on the “ freedom” in a “ free­
dom of choice” plan as does the maintenance of all-white 
and all-Negro faculties at various schools in a system. 
Cf. Bradley v. School Board of the City of Richmond, 382 
U.S. 103 (1965); Kier v. County School Board of Augusta 
Co., Va., 249 F. Supp. 239, 246 (W.D. Va., 1966).

Fifth. The integration of faculty is a factor absolutely 
fundamental to the success of a desegregation plan, for a 
school with a Negro or white faculty will always be a 
Negro or white school. Nevertheless, the Board has as­
signed no Negro teachers to regular teaching at the tra­
ditionally white school, and only two whites to limited, 
non-teaching, duties at the traditionally and still all-Negro 
school (R. 67-70; see note 1, supra). There are no plans 
for substantial desegregation in the future (R. 68-69).16 
Compare Kelley v. Altheimer, 378 F.2d 483, 491 (1967).

The duty of the School Board was to convert the dual 
school system it had created into a “unitary non-racial 
system.” Although it had an alternative which would have 
disestablished the dual system more speedily and with less 
educational inefficiency, the Board chose a method whose 
success depended on the ability of Negroes to unshackle 
themselves from the psychological effects of the dual sys­
tem of the past, and to withstand the fear and intimidation

16 The failure of the Board to take meaningful steps to integrate its 
faculty is consistent with what the record shows: that the Board, by 
adopting freedom of choice, could not in good faith have believed or in­
tended that the dual system would thereby be converted into the nonracial 
system required by the Constitution.



25

of the present and future. Only a “ freedom of choice” 
plan subjects Negroes to the possibility of intimidation 
or gives undue weight to the very psychological effects of 
the dual system that this Court found unconstitutional in 
Brown v. Board of Education. Nor did the Board intro­
duce evidence to justify adoption of a method, which if it 
could disestablish the dual system at all, would require 
a much longer period of time in the method petitioners 
urge. The failure of the Board to show, by clear and con­
vincing evidence, the existence of such administrative rea­
sons as this Court contemplated in Brown II  might justify 
delay, made it error for the courts below to abdicate totally 
to an administratively supervised “freedom of choice” plan 
and refuse to place the Board under the restraint of a 
court order.

C. Use of One School for Elementary Grades and the Other 
for Secondary Grades Is a Reasonable Alternative to “ Free­
dom of Choice”  Which Will Disestablish the Dual System.

Because of the very simple configuration of this small 
district, there is a clear-cut choice between a system com­
posed of one reasonably-sized integrated elementary school 
and one reasonably-sized integrated secondary school, or 
a system composed of two inefficiently-small, combination 
elementary and secondary schools. The superintendent’s 
concession that the replaced Negro school would continue 
to be all-Negro (R. 67) as well as the obvious educational 
inefficiency and undesirability of the dual schools provides 
a reasonable basis for providing that one site shall be used 
for an elementary school and the other site for a secondary 
school. The system’s school buildings as constructed are 
adaptable to changed usages and whatever additional cost 
might be involved in alteration, as the court of appeals 
recognized, appendix, infra, p. 20a, can be more than bal-



26

anced against the continued extra operating cost of the 
inefficient dual system.

The court of appeals failed to order grade consolidation 
because of the time when such relief was sought, a ruling 
which is discussed fully, supra pp. 15-19. For this reason, 
however, we believe that the proper course for this Court 
to follow is to remand to the district court for a deter­
mination of the feasibility of consolidation with instruc- 
tons to order such relief if not impractical. We, therefore, 
restrict ourselves in this section of the petition to a brief 
showing that such utilization is shown by this record to be 
a sufficiently workable and attractive method of admin­
istering the system for the lower courts to be required to 
consider it on the merits. See e.g. Calhoun v. Latimer, 377 
U.S. 263 (1964).

The school facilities of the district ideally lend them­
selves to a plan of consolidation. The traditionally white 
Gould High School is the most modern facility in the dis­
trict, having been completed in 1964 (E. 89). The imme­
diately adjacent Gould Elementary School was originally 
constructed for use as a high school, and was subsequently 
converted to an elementary school (E. 81-82). If the Gould 
Elementary School were converted back to use as a second­
ary school, the Gould site would be clearly suitable for all 
the secondary students in the district. The 1966-67 second­
ary enrollment of the district was 360 for grades 8-12, 
while the total enrollment at the Gould School was 375 
(grades 1-12).17

The all-Negro Field Elementary School is also a modern 
facility, constructed in 1954 with subsequent additions (E. 
89-91). The gymnasium is adequate for both the present

17 See footnote 1, su p ra .



27

number of Negro elementary and Negro high school stu­
dents, so that it would also be suitable for use by all of 
the elementary students in the system. The new building 
constructed by the system for use as the Negro high school 
is adjacent to the Field Elementary School, and can easily 
be furnished as an addition to the elementary school— 
which would make the combined Field School adequate for 
all of the elementary students in the district. The enroll­
ment for the district in 1966-67 was 492 for grades 1-7, 
while the total enrollment at the Field School was 477. 
(grades 1-12).18

Unless the Board is required to cease maintaining dual 
facilities, not only will a predominantly segregated school 
system be fastened upon the community for at least another 
generation, but all students—Negro and white—will con­
tinue to pay the price of the inefficiency caused by oper­
ating a dual system in such a small district. This is 
graphically illustrated by the disparity in course offerings 
at the two high schools. I f all students were attending the 
same high school, everyone would have the opportunity 
to take courses such as journalism or agriculture, as well 
as other courses which would be available because a higher 
total of students would elect them. Negroes who presently 
have no football, basketball or track programs would be 
able to participate in those sports. The basic sciences, 
chemistry and biology, are offered only in alternate years 
at Gould while they are offered every year at Field. There 
is no Future Farmers of America Program at Field be­
cause there is no agriculture course. In a consolidated 
system, all students would have the opportunity to take 
each of these courses every year.

18 Ibid.



28

The sad fact is that the Board’s failure to consider grade 
consolidation not only perpetuates segregation but deprives 
both Negroes and whites of significant educational oppor­
tunities. It is no accident that the most important study 
of secondary education that has been made in this country, 
James Bryant Conant’s, The American High School Today 
(1959) gives highest priority in educational planning to 
the elimination of small high schools with graduating 
classes of less than one hundred.19 See Moses v. Washing­
ton Parish School Board, — F. Supp. — No. 15973, E.D. 
La. (“Free choice” plan “wasteful in every respect” ; geo­
graphic zones ordered).

The court of appeals recognized that there is substantial 
evidence that consolidation is a feasible alternative to free­
dom of choice when it found that “ there is no showing 
that the Field facilities with the new construction added 
could not be converted at a reasonable cost into a com­
pletely integrated grade school or into a completely inte­
grated high school when the appropriate time for such a 
course arrives”  (emphasis supplied), appendix, infra, p. 20a. 
Given the apparent feasibility of grade consolidation, the 
deficiencies of a “choice” plan in this district, and the fact 
that petitioners could not have explicitly sought consolida­
tion in the trial court because the hearing took place long

19 “The enrollment of many American public high schools is too small 
to allow a diversified curriculum except at exorbitant expense . . . ‘The 
prevalence of such high schools—those with graduating classes of less than 
one hundred students—constitutes one of the serious obstacles to good 
secondary education throughout most of the United States. I  believe such 
schools are not in a position to provide a satisfactory education for any 
group of their students—the academically talented, the vocationally 
oriented, or the slow reader. The instructional program is neither suffi- 
cinetly broad nor sufficiently challenging. A small high school cannot by 
its very nature offer a comprehensive curriculum. Furthermore, such a 
school uses uneconomieally the time and efforts of administrators, teachers, 
and specialists, the shortage of whom is a serious national problem 
(p. 76).



29

before construction of new classrooms began, the court of 
appeals had an obligation to fashion a remedy equal to the 
task of disestablishing the dual structure. Instead, it er­
roneously affirmed dismissal of the complaint.

D. As Minimum Compliance With Brown v. Board of Educa­
tion Petitioners Are Entitled to a Comprehensive Decree 
Governing the Desegregation Process.

As alternative relief, petitioners asked the court of 
appeals to issue a comprehensive decree governing the 
desegregation process similar to that imposed by another 
panel of the circuit in Kelley v. Altheimer, 378 F.2d 483 
(8th Cir. 1967), and by the Fifth Circuit in United States 
v. Jefferson County Board of Education, supra. The court 
did not detail its reasons for refusing to grant this relief 
but only stated:

Unlike the Altheimer situation, no attack has been 
made in the pleadings on the desegregation plan 
adopted by the Board. Additionally, we find no sub­
stantial evidence to support a finding that the Board 
was not proceeding to carry out the plan in good 
faith. (Appendix, infra, p. 24a)

If the failure of the court of appeals to subject the 
Board to a comprehensive decree, rather than dismissing 
the complaint, rests on whether an attack had been made 
on the plan in the trial court, it rests on a finding which 
is clearly erroneous. The complaint sought to enjoin the 
Board from compelling any Negroes to attend the all- 
Negro school (relief fundamentally inconsistent with the 
“choice” plan) and also sought to enjoin the “operating 
of a segregated school system” (ft. 8). The trial is replete 
with testimony concerning the operation of the plan (R. 53- 
63, 67-71, 75, 95, 96, 101, 102, 109, 117, 118, 121-23) and the



30

district court refused to enjoin the Board from maintain­
ing a segregated system as prayed only because he found 
the plan adequate (R. 14).

To the extent the second reason given by the court— 
that the Board was proceeding to carry out the plan in 
good faith—supports the court’s conclusion that the com­
plaint should be dismissed, it reflects a misconception of 
the role of lower courts in supervising the desegregation 
process, see supra, pp. 16-19). This petition describes ad­
ministration of the Gould system in detail sufficient to 
show that whether the Board is acting in good faith or 
not, its performance is not such as to permit the lower 
courts to avoid supervision of the desegregation process.

In United States v. Jefferson County, supra, and in 
Kelley v. Altheimer, supra, the courts found that the 
policies and practices of the school boards had been de­
signed to perpetuate segregation and for that reason, 
and to insure the continuity and speed of desegregation, 
ordered that any plan submitted by the boards would 
have to conform to certain principles as to student and 
faculty desegregation, transportation, school equalization 
and other areas touching on desegregation. At the very 
least, on the basis of the record in this case, petitioners 
were entitled to a retention of jurisdiction and entry of 
a comprehensive decree by the district court.

The finding of the Fifth Circuit in Jefferson that “case 
by case development of the law is a poor sort of medium 
for reasonably prompt and uniform desegregation” (372 
F.2d at pp. 854-55) is undisputable. A comprehensive and 
uniform decree, therefore, provides invaluable assistance 
to district courts in fulfilling their responsibility to require 
the reorganization of segregated school systems under 
Brown. Such a decree provides a distillation of the ex-



31

perience in formulating desegregation standards of the 
courts, the Executive branch, educators and administrators. 
When adopted uniformly such a decree also avoids totally 
different rates of desegregation in communities which are 
similarly situated. It provides Negroes with a definite 
understanding of what they can expect, and district courts 
with what they must require, from school authorities. It 
insures that desegregation plans will encompass the mini­
mum range of administration and planning functions which 
must be reorganized if the unlawful segregated system is 
to be disestablished.

This litigation should not have been necessary. At a 
minimum, the Negroes represented by petitioners are 
entitled to judicial supervision of desegregation where 
administrative supervision has not proved adequate as well 
as to a clear statement of the essential features which 
the plan must encompass. Only in this way will there be 
removed the “obstacles” to enjoyment of the right to an 
equal and desegregated education guaranteed by the Four­
teenth Amendment—“obstacles” which this Court recog­
nized must be destroyed thirteen years ago.



32

CONCLUSION

W herefore, petitioners p ra y  that the petition  fo r  writ 
o f  certiorari be granted.

B espectfu lly  submitted,

J ack  Greenberg 
M ichael M eltsner 
M ichael J . H enry

10 Columbus Circle 
New York, New York 10019

J ohn  W . W alker 
N orman Ch a ch k in

1304-B Wright Avenue 
Little Bock, Arkansas 72206

Attorneys for Petitioners



A P P E N D I X





APPENDIX

(Filed April 26, 1966)

The plaintiffs in this case are Negro children who are 
pupils in grades five, ten and eleven in the Public School 
System of Gould, Arkansas. This action was brought by 
their parents and next friends and is a class action seek­
ing an injunction enjoining the Board of Education of the 
Gould School District from (1) requiring the minor plain­
tiffs and all others similarly situated to attend the all- 
Negro Field School for the 1965-66 school term, (2) pro­
viding public school facilities for Negro pupils in Gould, 
Arkansas, which are inferior to those provided for white 
pupils, (3) expending any funds for operation or improve­
ment of the predominantly white Gould Public Schools 
until and unless the Field School is made substantially 
equal in facilities, equipment, curriculum, advantages, etc. 
to the predominantly white Gould Schools, (4) building 
any new facilities to replace Field High School at any 
location other than on or adjacent to the grounds of the 
Gould Public Schools, and from (5) otherwise operating a 
racially segregated school system.

The defendant school board claims that it is doing every­
thing possible to correct the very things plaintiffs are 
complaining of and that no injunction is required or war­
ranted, therefore the case should be dismissed.

The Gould School District encompasses about eighty 
square miles of agricultural land in Lincoln County in 
Southeast Arkansas. Almost 20,000 acres of this land is 
tax exempt because the Arkansas State Penitentiary is 
located within the district. It is a rural and agricultural

Opinion of United States District Court



2a

area. There are no significant industries within the dis­
trict, and Gould, with a population of 1,210, is the district’s 
only incorporated town. In the 1964-65 school year the 
district derived $56,530 from its millage levy on the as­
sessed value of the real and personal property in the 
district and most of the rest of its budget of over $200,000 
was received from various programs of the State and 
Federal Government. It is obvious from these facts and 
from other testimony given at the hearing of this case 
that this school district is a financially poor one.

The population of the district of about 3,000 consists of 
1,800 Negroes and 1,200 white people. There are approxi­
mately 880 students in the system and 580 of these are 
Negro. Prior to 1965 the school board operated two school 
systems from grade one through twelve on a racially 
segregated basis. The Field Elementary School and the 
Field High School were attended by Negro children only. 
The Gould Elementary School and the Gould High School 
had only white students. In the spring of 1965 the de­
fendant school board unanimously voted to accept a 
desegregation plan which provided for the integration of 
all twelve grades of the system in the 1965-66 school year 
in accordance with a “Freedom of Choice” plan.1

After the students and their parents had expressed their 
choice of schools it appeared that there would be over­
crowding in the Gould Schools in grades five, ten, and 
eleven. The school authorities discussed the problem with 
the appropriate authorities of the Department of Health, 
Education and Welfare and it was agreed that it would be

Noth 1: The “Freedom of Choice” plan in this case is of the same 
type that the Court of Appeals for the Eighth Circuit indicated it would 
approve in Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965), therefore it 
is unnecessary to explain the details of the plan in this opinion.

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3a

better for the school to postpone the granting of the free­
dom of choice in these grades for one year. However, as 
many Negro children in these three grades as possible who 
chose the previously all-white school were accepted in 
that school on the basis of geographical proximity of their 
home to the school. The plan as amended was approved by 
the federal agency.

In other words, all students in the district were accepted 
in the school of their choice except in the fifth, tenth, and 
eleventh grades. In these grades some forty Negro pupils 
expressed a preference to attend the Gould Schools and 
twelve of them were accepted. The remaining students 
were assigned to the Field Schools and it is this group 
that is represented by the plaintiffs in this case.

At the trial plaintiffs offered testimony concerning al­
leged discrimination within the district which they con­
tend this Court should correct by use of its injunctive 
powers.

One of plaintiffs’ contentions is that the Court should 
enjoin the defendant school board from maintaining a 
racially segregated school system. But the testimony dis­
closes that the school board is no longer maintaining such 
a system. The desegregation plan which it has adopted 
and which has been approved by the Department of 
Health, Education and Welfare has brought about more 
than token integration even though it has been in opera­
tion only one year. There are 71 Negro students and 298 
white students attending the previously all-white school 
and there will undoubtedly be more Negro students in 
this school next year. The Negro students are participat­
ing on the school athletic teams and taking part in several 
other extra-curricular activities at the school. Further­
more, in the school term beginning September 1966 it is

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4a

the plan of the district to honor the preference of all 
children in the three grades to which the Choice plan was 
only partially applicable this year.

Another contention of the plaintiffs is that the school 
board is discriminating against Negroes by paying Negro 
teachers salaries lower than those paid to white teachers. 
The testimony revealed that the base salary paid to 
Negro teachers is $3,870, while the base salary for white 
teachers is $4,050.00. The range of salaries for Negro 
teachers is from $3,870.00 to $4,500.00, and the range for 
white teachers is $4,050.00 to $5,580.00. The superintend­
ent of the schools testified that he was well aware of the 
differences in salaries paid to the teachers of different 
races, and he said that the historical reason for this differ­
ence was simply the law of supply and demand. Because 
of the larger supply of Negro teachers he was able to hire 
them at lower salaries than those demanded by white 
teachers. He stated that five years ago, when he was first 
employed by the school system, the difference in the base 
salaries was $600. In the last five years the difference has 
been lowered to $180. The reason the salaries cannot be 
equalized before next year is purely a financial one. The 
budget for the 1965-66 school year is practically exhausted 
and there are no funds available for this or any other 
purpose.2 In the course of his testimony, the superintend­
ent assured the Court that the salaries for Negro and white 
teachers for the 1966-67 school year would be equal.

The primary complaint of the plaintiffs is that they are 
being discriminated against because the Field Schools to 
which they have been assigned are grossly inferior to the

N ote  2 : The total received for all school purposes this year was 
$225,000. The budget expenditure is $221,000. This is a typical year. 
The surplus remaining from last year was $1,200.

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5a

Gould Public Schools. They show the inferiority of the 
Fields Schools by citing several examples. Some of these 
are: (1) the Field High School is a frame building erected 
in 1924 which is in a poor state of repair, with holes in the 
floor and cracks in the Avail, Avhile the Gould High School 
is located in a brick and concrete block building only two 
years old; (2) the Gould High School has an “A ” rating 
from the Arkansas Department of Education, while the 
Field High School is unaccredited; (3) the restroom facili­
ties at the Field High School are located in a separate 
building, causing students to walk outdoors to reach the 
restroom, AA’hile at the Gould High School the restroom 
facilities are located in the school building itself; (4) the 
Field High School is heated Avith upright gas heaters, while 
the Gould Schools are heated with central heat; (5) the 
science laboratory facilities at Field High School are in­
ferior to those at Gould High School; (6) the library facili­
ties at Field High are very poor, with few books and no 
full-time librarian, while the Gould School library con­
tains almost 1,000 books and has a librarian; (7) there is 
no hot lunch program at the Field Schols, Avhile the Gould 
Schools have an air-conditioned cafetorium; and, finally 
(8) courses in journalism and agriculture are not offered 
at the Field High School, while they are taught at the 
Gould High School.

The defendant admits that facilities at the Field High 
School are inferior to those at the Gould Schools, that the 
situation is a bad one, and that a new school building is 
needed. It claims that there are no funds available at the 
present time Avith Avhich to build such a school and that the 
school district does not have sufficient borrowing power to 
secure enough money for such a project. To borrow that

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6a

much money the school district would need a new bond 
issue, but since the present millage is at 47 (the maximum 
allowable under State law),3 new millage cannot be added 
to finance such a bond issue. However, one of the present 
outstanding bond issues will be paid off by January of 
1967, and the nine mills used to finance that issue can be 
transferred to a new issue. The money obtained through 
this new bond issue has long been earmarked by the board 
for the construction o f a modern facility to replace Field 
High School. Therefore, it appears that the defendant 
school board realizes the need for a new school building 
and is doing all that it is financially able to do toward filling 
this need.

On the other hand, the defendant does not admit the 
degree of inequality between the schools is as great as 
plaintiffs claim. They contend that although the Field 
High School building is in very poor condition and is in­
ferior to the Gould High School building, the same is not 
true for the rest of the buildings in the Field School System. 
The evidence shows that in the last fifteen years, or at 
lease since 1954, over seventy-five per cent of all money 
available for construction has been spent on the Negro 
schools. In fact, the total building expenditures for the 
Negro schools since 1954 are in excess of $138,000. On the 
other hand, the only money spent on capital improvements 
at the Gould School was from proceeds of an insurance 
policy when the school building burned late in 1963. The 
new building was built entirely with the funds from this

O p in io n  o f  U n ite d  S t a t e s  D i s t r i c t  C o u r t

Note 3 : Under Arkansas law a school district may not issue bonds 
in an amount in excess of 15% of the district’s assessed valuation of 
property located within the district. Gould has reached that limit.



7a

insurance policy.4 The Field Elementary School is a mod­
ern brick and concrete block building built in 1954 with 
classrooms added as late as 1965. The gymnasium for the 
Field Elementary and High Schools is a modern concrete 
block building with excellent restroom, dressing room, and 
shower facilities, as well as a fine gymnasium and audito­
rium. The gymnasium at the Gould School is an old frame 
building in poor repair, with inadequate and unsightly 
dressing room and restroom facilities. The home economics 
buildings at both the schools are old buildings which the 
citizens of the school district have helped repair and deco­
rate, and which are of approximately the same quality. 
Although it was never definitely established just what 
scientific laboratory facilities the Field High School has, 
it is evident from the testimony that they are inadequate 
and practically nonexistent. However, the laboratory facili­
ties at the Gould High School would hardly be considered 
adequate or satisfactory. The laboratory is located in an 
old concrete block building that was once used as a bar- 
beque house. For most of the experiments there is only 
enough equipment for the teacher to use at a demonstra­
tion desk and sink. According to the evidence, no build­
ing on either campus is heated by central heat, and in 
the last two years the same amount of money has been 
allocated to each of the libraries. The defendant admits 
that the Field Schools do not have a hot lunch program 
or an agriculture department but claims that federal aid 
is being sought, and the superintendent of schools as­
sured the Court that both programs would be established

Note 4: A Teacherage, consisting of two cottages for oecupany by 
teachers, was constructed on the Field campus a year or two ago. This 
was financed locally, and the monthly payments to pay the loan come 
from rent paid by the teachers.

O p in io n  o f  U n ite d  S t a t e s  D i s t r i c t  C o u r t



8a

in the Field Schools by the end of this year. Defendant 
also states that the reason some courses such as journalism 
are taught in Gould School and not in Field School is that 
they are elective courses and are not taught unless there 
is a sufficient demand for them. Therefore the defendant 
claims that although conditions at the Field High School 
are poor, there is not a large degree of inequality between 
the two school systems.

During the course of the hearing on this matter, after 
the defendant had admitted the inferiority of the Field 
High School and had set forth its proposal for building a 
new facility, plaintiffs moved in open court to amend 
their petition for an injunction to include enjoining the 
defendant from building any new facilities to replace 
Field High School at any location other than on or ad­
jacent to the grounds of the Gould Public Schools. This, 
it is believed, is the only real issue remaining in the case. 
The Court granted the motion, and evidence was heard 
on both sides of this question. The Court also asked 
counsel for briefs on the question of whether or not the 
Court could or should order the school district to build 
its proposed new facilities at any particular location.

It is plaintiff’s contention that the building of a new 
high school at the site o f the old Field High School or 
on the Field Elementary School grounds would promote 
and encourage segregation in the school system. Plain­
tiffs contend that if the new high school was built at one 
of these locations, only Xegro pupils would request that 
they be assigned there. Plaintiffs also say that in fact 
this is the intention of the school board. They point out 
that at the hearing the superintendent of schools stated 
that probably only Xegro children would select the new 
high school and plaintiff argues that this shows that it is

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9a

the school board’s intention to create a “Xegro high 
school”  and not just another high school for the district. 
Plaintiffs argues that it is a breach of plaintiffs’ consti­
tutional rights to allow defendant school board to carry 
out a construction program which is designed to bring 
about or further segregation in the school system.

Plaintiffs also contend that it would be unsound for a 
school district in the financial condition of the Gould School 
District to maintain separate school facilities for Xegro 
children. Such a plan would entail considerable duplica­
tion and would dilute the quality of education which 
could be offered to both white and Xegro students by a 
school district of this size.

The defendant contends that the management or ad­
ministration of the schools has been committed to local 
school officials and is not within the province of the Court 
and that selection of the location of a new school facility 
is an administrative or managerial decision which should 
be left to those officials whose duty is to determine what 
is best educationally and administratively for the school 
system. The defendant claims that there are several rea­
sons why it is unsound to locate the new high school at 
the site insisted upon by plaintiffs and which support 
the board’s selection of a site adjacent to the Field Ele­
mentary School. These facts are (1) that the school dis­
trict already owns enough land at the Field Elementary 
School to accommodate the new high school building, (2) 
the district does not own sufficient land at the site of the 
Gould High School for this purpose, (3) additional land 
near the Gould High School is not for sale and would 
have to be acquired by condemnation at a high price since 
it is being subdivided into residential lots, (4) the new 
gymnasium (which has been referred to above) was

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10a

built on the grounds of the Field Elementary School to 
accommodate both elementary and high school students in 
anticipation of the location of the new high school on that 
campus, (5) that the location of the schools in opposite 
ends of town and on opposite sides of a heavily traveled 
U. S. highway is desirable for the safety of the children 
and for obtaining the educationally advantageous concept 
of “neighborhood schools.”

The question before the Court is actually two pronged. 
First, is this Court authorized to tell the school board 
where to build or not to build a new school building, and 
second, should the Court do so under the circumstances 
in this case? These questions are of first instance before 
this Court, and in fact there is very little authority from 
any jurisdiction.

In the “landmark” civil rights cases concerning school 
integration the courts leave no doubt that segregation 
is and must be a thing of the past. They tell the courts 
that there can no longer be “ Negro schools” and “White 
schools” and that the courts cannot permit a state to 
support “ segregated schools through any arrangement, 
management, funds or property. . . . ” Cooper v. Aaron, 
358 U.S. 1. In a general way these cases give this and 
all district courts the authority to take what steps are 
necessary to insure that there is an end to segregation in 
our schools.

At the same time these cases also contain language 
which seems to recognize a limit to the courts’ authoriza­
tion to deal in school affairs. In Brown v. Board of Ed­
ucation of Topeka, 349 U.S. 294, the court said:

“ school authorities have the primary responsibility 
for elucidating, assessing, and solving these problems;

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11a

courts will have to consider whether the action of 
school authorities constitutes good faith implementa­
tion of the governing constitutional principles.”

In Briggs v. Elliot, 132 F.Supp. 776, 777 (E.D. S.Car. 
1955), a three-judge district court interpreting Brown 
said,

“Having said this, it is important that we point out 
exactly what the Supreme Court has decided and 
what it has not decided in this case. It has not decided 
that the federal courts are to take over or regulate 
the public schools of the state.”

And this Court in Aaron v. Cooper, 164 F.Supp. 325, 334 
(1959) stated:

“It is not the duty or function of the Federal Court to 
regulate or take over and operate the public schools. 
That is still the duty of the duly state-created school 
authorities.”

These cases make it apparent that there is a limit to the 
court’s authority to deal in school matters, although they 
do not say what that limit is.

In Board of Public Instruction of Duval County, Fla. v. 
Braxton, 326 F.2d 616 (1964), the Court of Appeals for 
the Fifth Circuit approved an injunction issued by Judge 
Simpson of the District Court for the Middle District of 
Florida in which the school authorities were enjoined 
from operating a compulsory biracial school system, main­
taining dual attendance areas, assigning pupils and teach­
ers on the basis of color, and from

“Approving budgets, making available funds, approv­
ing employment contracts and construction programs,

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12a

and approving policies, curricula and programs de­
signed to perpetuate, maintain or support a school 
system operated on a racially segregated basis.”

Although that injunction does not go as far as plaintiffs 
have asked for in this case, it does go further into the 
realm of school administration than any other court has 
gone. Perhaps some of the factors that the case dealt 
with should be pointed out in that they may limit the 
scope of the decision.

In that case the court was dealing with a school system 
that, some eight years after the second Brown decision, 
had done nothing toward bringing an end to segregation. 
In fact, the board was still maintaining and planning to 
continue to maintain separate systems for colored and 
white children with dual attendance areas. The court, of 
course, was trying to enjoin all this type action. There­
fore it did enjoin all the policies of the board including its 
future construction policies which were “designed to per­
petuate, maintain or support a school system operated 
on a racially segregated basis.”

In June of 1965 this Court in Yarbrough v. Hulbert-West 
Memphis School Dist. No. 4, 243 F. Supp. 65, 71, said:

“ . . . the basic responsibility and authority for oper­
ating the schools in a constitutional manner rest upon 
school boards and school authorities rather than the 
courts. The question is not what the court would do 
if it were operating the schools, but whether the 
defendants are proceeding in a permissible manner 
from a constitutional standpoint.”

This still seems to be the better or most well reasoned role 
for the court. It should be an ameliorative or corrective

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13a

body rather than an initiating or policy-making one. Once 
the school board has made a decision to take a certain 
action in the administration of the schools, then it be­
comes the Court’s duty to determine whether or not this 
action is constitutional.

However, this Court is not prepared to state that there 
might not be circumstances under which the Court would 
be justified in taking action such as that the plaintiff is 
asking for in this case. Assuming without deciding that 
this is an area of school policy-making which the court 
could enter to protect the civil rights of the school dis­
trict’s citizens, this Court does not feel that the circum­
stances of this case merit such action.

Here the school board has begun a desegregation pro­
gram for all twelve grades without having been ordered 
to do so by a court. The delay in the program for the 
three grades involved in this case is temporary and future 
plans call for complete integration. The fact that the 
Negro children who are attending the previously all-white 
schools are participating in the school’s curricular and 
extra-curricular activities seems to indicate that this plan 
is more than a pretense or sham to meet the minimum re­
quirements of the law.

The availability of campus area in one place and not 
the other, the lack of funds to procure more land, and the 
necessity of locating the new high school near the exist­
ing gymnasium designed to accommodate the high school 
students are all valid reasons for the administration’s deci­
sion as to the location of the new high school. There is 
no reason to assume that only Negro students will attend 
the new high school. In fact, it is a virtual certainty with 
the progress of integration, building space limitations 
alone will insure that the new school will be integrated.

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14a

Certainly these reasons, coupled with the school board’s 
recent initiative toward integrating the schools, do not 
indicate that the board’s plans are solely motivated by a 
desire to perpetuate or maintain or support segregation 
in the school system. Therefore, the Court will not usurp 
the normal managerial prerogative of the school board to 
the extent of determining where the new building will be 
located.

O p in io n  o f  U n ite d  S t a t e s  D i s t r i c t  C o u r t

CONCLUSION

Practically all of the questions or problems in this case 
stem from one major source—the school district has a 
serious lack of funds. The main problem, of course, is 
the inferiority of the Field High School. However, if the 
Court ordered the school board to build a new facility to­
morrow the board would be powerless to act. It simply 
does not have the money to do so. It is obviously not the 
purpose of an injunction to order someone to do something 
he is already doing or something which is impossible for 
him to perform. Therefore, this Court can see no reason 
for the requested injunction to be issued. The petition 
will be denied and the case dismissed.

Dated: April 26, 1966.

C oed ox E. Y oung 
United States District Judge



15a

Order of Dismissal

(Filed April 26, 1966)

In accordance with memorandum opinion filed this date, 
the complaint is dismissed.

Dated: April 26, 1966.

/ s /  Gordon E. Y oung 
United States District Judge



16a

Opinion of United States Court of Appeals
For the Eighth Circuit

[Filed August 9, 1967.]

Before V ogel, Chief Judge, V an O ostekhout and Gibson, 
Circuit Judges.

V an Oostebhout, Circuit Judge.

This timely appeal is taken from final judgment dis­
missing a class action brought by plaintiffs as parents and 
next friends of sixteen minor Negro students attending 
grades five, ten and eleven of the defendants’ district 
Negro school against the Board of Education of the Gould 
School District pursuant to 28 U.S.C.A. § 1343(3) and 
42 U.S.C.A. § 1983, seeking injunctive relief. The prayer 
of the original complaint is to enjoin the defendant Board 
from:

“ (1) requiring minor plaintiffs and all other simi­
larly situated to attend the all-Negro Field School 
for the 1965-66 School Term;

(2) providing public school facilities for Negro 
pupils in Gould, Arkansas which are inferior to those 
provided for white pupils;

(3) expending any funds for operation or improve­
ment of the predominantly white Gould Public Schools 
until and unless the Field School is made substantially 
equal in facilities, equipment, curriculum, advantages, 
opportunities, etc. to the predominantly white Gould 
schools; and



17a

(4) otherwise operating a racially segregated school 
system.”

At the close of all of the evidence, plaintiffs amended 
their complaint by striking item (3) above set out and 
substituting in lieu thereof:

“the prayer to have any future high school facilities 
in the Gould School System constructed on or near 
the premises of the present Gould high school, which 
is now attended predominantly by white pupils, . . . ”

Upon appeal, plaintiffs again altered their position and 
urged that the Board be restrained from using the new 
building construction as a replacement for the Field High 
School and that instead, the building be converted into a 
unit of a completely integrated grade school. The issue 
last stated is raised for the first time upon appeal and 
was not presented to the trial court and no opportunity 
was afforded the parties to offer evidence on the feasibility 
of such a plan, nor was the trial court given any oppor­
tunity to pass thereon. It is fundamental that issues not 
presented to or considered by the trial court cannot be 
considered upon appeal.

The trial court, in our view, states the issues properly 
raised by this appeal as follows:

“The question before the Court is actually two 
pronged. First, is this Court authorized to tell the 
school board where to build or not to build a new 
school building, and second, should the Court do so 
under the circumstances in this case?”

O p in io n  o f  U n it e d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  E ig h th  C ir c u it



18a

The trial court on the first issue recognized that under 
appropriate circumstances a constitutionally discrimina­
tory construction program could be enjoined, stating:

“However, this Court is not prepared to state that 
there might not be circumstances under which the 
Court would be justified in taking action such as that 
the plaintiff is asking for in this case. Assuming with­
out deciding that this is an area of school policy­
making which the Court could enter to protect the 
civil rights of the school district’s citizens, this Court 
does not feel that the circumstances of this case merit 
such action.”

Our recent decision in Kelley v. Altheimer, 8 Cir., . . . 
F.2d . . . (April 12, 1967), recognizes that a court may 
enjoin a construction program which is designed to per­
petuate segregation. The supporting facts in Altheimer 
are far stronger than those in our present case. We recog­
nized in Altheimer that injunctive relief against construc­
tion could not be effective after a building is constructed. 
Such appears to be the situation here.1

The trial court as a basis for its refusal to exercise its 
equitable powers to grant the injunction requested states:

“Here the school board has begun a desegregation 
program for all twelve grades without having been 
ordered to do so by a court. The delay in the pro­
gram for the three grades involved in this case is

O p in io n  o f  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  E ig h th  C ir c u it

1 Attached to plaintiffs’ brief is an affidavit of their attorney dated 
April 28, 1967 which states that the building in controversy is under con­
struction and from which it would appear that considerable progress 
had been made upon such construction.



19a

temporary and future plans call for complete integra­
tion. The fact that the Negro children who are attend­
ing the previously all-white schools are participating 
in the school’s curricular and extra-curricular activi­
ties seems to indicate that this plan is more than a 
pretense or sham to meet the minimum requirements 
of the law.

“ The availability of campus area in one place and 
not the other, the lack of funds to procure more land, 
and the necessity of locating the new high school near 
the existing gymnasium designed to accommodate the 
high school students are all valid reasons for the ad­
ministration’s decision as to the location of the new 
high school. There is no reason to assume that only 
Negro students will attend the new high school. In 
fact, it is a virtual certainty with the progress of 
integration, building space limitations alone will insure 
that the new school will be integrated. Certainly 
these reasons, coupled with the school board’s recent 
initiative toward integrating the schools, do not indi­
cate that the board’s plans are solely motivated by a 
desire to perpetuate or maintain or support segrega­
tion in the school system. Therefore, the Court will 
not usurp the normal managerial prerogative of the 
school board to the extent of determining where the 
new building will be located.”

We note that the Field High School which was being 
replaced is the oldest building in the school system. The 
bulk of the evidence in this case is directed at its many 
deficiencies and dilapidated condition. The Negro seg­
ment of the community had for years been insisting that

O p in io n  o f  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  E ig h th  C ir cu it



20a

a replacement of such, building be made and continued to 
assert such position throughout the trial and at least until 
the amendment made at the close of all of the evidence 
hereinabove set out. Eeference is made in plaintiffs’ testi­
mony to an alleged prior action which purported to require 
the Board to give priority to the upgrading of the Field 
High School and the Board’s commitment so to do. The 
evidence discloses that the district is weak financially and 
that prior construction was largely prevented by statutory 
limitations upon bonded indebtedness. It would appear 
that such obstacle would be cleared up by the completion 
of payments on prior bonded indebtedness by 1967. There 
is absolutely nothing in the record to indicate the nature 
of the plans for the new high school building under con­
struction on the Field elementary school grounds. The 
evidence does disclose that a gymnasium and certain other 
facilities on such ground already in existence had been 
used and would continue to be used by students in the 
Field High School. Moreover, there is no showing that 
the Field facilities with the new construction added could 
not be converted at a reasonable cost into a completely in­
tegrated grade school or into a completely integrated high 
school when the appropriate time for such course arrives. 
We note that the building now occupied by the predomi­
nantly white Gould grade school had originally been built 
to house the Gould High School.

As pointed out by the trial court, the defendant Board 
had voluntarily adopted a desegregation plan for the 
schools which it operates, the plan to be in effect in Sep­
tember 1965. Such plan went considerably beyond the 
minimum requirements of the Department of Health, Edu-

O p in io n  o f  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  E ig h t h  C ir cu it



21a

cation and Welfare (H.E.W.), providing for immediate 
unrestricted freedom of choice of school attendance on the 
part of all students, and provision was also made for 
faculty desegregation. The desegregation plan is similar 
to a plan we indicated would he approved in Kemp v. Beasley, 8 Cir., 352 F.2d 14.

Subsequently, when the students exercised the freedom 
of choice provided for by the plan, it developed that grades 
five, ten and eleven would he seriously overcrowded which 
led to an amendment making the freedom of choice in­
operative for the 1965-66 school year with respect to 
grades five, ten and eleven but fully effective thereafter. 
The plan as amended was approved by H.E.W. As stated 
in Kemp v. Beasley, supra, final responsibility for deter­
mining the constitutionality of desegregation plans rests 
with the court but H.E.W. guidelines are entitled to con­
siderable weight.

In Clark v. Board of Education of Little Rock Sch. Dist., 
8 Cir., 374 F.2d 569, we approved a freedom of choice plan 
similar to that adopted by the Board here. We stated:

“ [W]hen a student is given a well publicized annual 
right to enter the school of his choice, coupled with 
periodic mandatory choices as set forth in the Board’s 
amended plan, vre can find on the face of it no uncon­
stitutional state action. . . .
Therefore, if  in fact all the students wishing to trans­
fer were fully accommodated, the Constitution would 
unquestionably be satisfied, and apparently under 
these circumstances petitioners would have little objec­
tion to the plan’s operation. . . . ” 374 F.2d 569, 
571-72.

O p in io n  o f  U n i t e d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  E ig h th  C ir c u it



22a

We recognized in Clark that a plan appropriate on its 
face could be unconstitutionally administered and observed 
that in case of such a development, the District Court 
upon appropriate application could do what is necessary 
to bring the plan up to constitutional standards.

Prior to 1965, the defendant District had operated an 
all-Negro school known as the Field school and an all- 
white school known as the Gould school on a segregated 
basis. The district is a predominantly agricultural district 
with little industry. The population is approximately 
3,000 of which 60% are Negro. There are about 880 stu­
dents in the system of which 580 are Negro.

Under the freedom of choice plan adopted, all students 
expressed their attendance preference. Seventy-one Ne­
groes who expressed a preference for the Gould School 
were accepted for attendance at that school. All prefer­
ences except those for overcrowded grades five, ten and 
eleven were fully respected. Twelve of the forty Negro 
students applying were accepted in grades five, ten and 
eleven. Those who were accommodated at Gould lived 
the greatest distance from Field. Under the plan all 
preferences are to be honored commencing with the 1966-67 
school year.

The evidence shows that the defendant Board has taken 
substantial steps to narrow the gap between the salaries 
paid to white and Negro teachers and that any discrep­
ancy in this respect will be completely eliminated by the 
1966-67 school year. The superintendent as a witness also 
stated that no teachers would be discharged as a result 
of the integration. It also appears that the transportation 
of pupils has been integrated.

O p in io n  o f  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  E ig h th  C ir c u it



23a

The enrollment at the G-onld school in 1965-66 consisted 
of 71 Negro students and 298 white students. Thus sub­
stantial progress toward integration has been made in the 
first year of the plan’s operation. With the restricted 
grades open for freedom of choice and upon the basis of 
the favorable acceptance of the Negro students at the 
Gould school, it is reasonable to anticipate that integra­
tion will rapidly progress as predicted by the trial court.

The complaint charges coercion has been used against 
integration. The Chief of Police of Gould was named as 
a defendant on this charge. The case was voluntarily 
dismissed by the plaintiffs against him. There is no sub­
stantial evidence that any coercion was exercised to deter 
Negro students from electing to attend the white school. 
The record fairly shows that the integration plan has 
operated smoothly and that the Negro students have been 
encouraged to elect the white school.2

O p in io n  o f  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  E ig h th  C ir cu it

2 The testimony of the president of the school board includes the 
following:

“We have had wonderful cooperation out of the white people and the 
colored people. I’d say that we have got ninety-five percent of the 
cooperation out of both sides. And the Board as a whole—if I might 
elaborate just a little—has gone out of our way in going to athletics 
—not just the Board, but all the people, to go to our athletic pro­
gram, or any social functions and to discourage any violence or any 
nagging, or anything of that nature, not only with the white patrons, 
but the colored patrons, we’ve had wonderful cooperation. We’ve 
got a small minority that’s not interested in our schools or our peo­
ple or our economy or our welfare that don’t even have kids. We 
haven’t had any trouble out of people that’s got kids that’s going to 
school—colored or white. We’ve had wonderful cooperation out of 
them.

“Q. Do you have any knowledge of any such coercion or undue 
influence attempted to be exercised with respect to the students



24a

The trial judge by reason of his presence at all stages 
of the trial has the feel of the case. The court’s findings 
are based upon substantial evidence and are not clearly 
erroneous. Moreover, the trial court has a large discre­
tion in determining whether an injunction should be 
granted. See 43 C.J.S.2d Injunctions §§ 14, 15, and cases 
there cited.

Plaintiffs have failed to demonstrate that the trial court 
abused its discretion in denying the injunction here sought.

Plaintiffs alternately upon this appeal ask us to issue 
a comprehensive decree governing the desegregation proc­
ess similar to that in Kelley v. Altheimer, supra. The rec­
ord in this case does not warrant such relief. Unlike the 
Altheimer situation, no attack has been made in the plead­
ings on the desegregation plan adopted by the Board. Ad­
ditionally, we find no substantial evidence to support a 
finding that the Board was not proceeding to carry out 
the plan in good faith.

Primary responsibility for the operation of the public 
schools rests in the school board. Courts are not equipped 
to solve the everyday problems of school operation. The 
court’s interference with the Board’s operation of its 
school is justified only upon a showing that the Board in

O p in io n  o f  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  E ig h th  C ir c u it

making their choices, that are allocated under this plan, by any em­
ployees or representatives of the Gould School District?

A. None whatever, by no member of the faculty, no member of the 
School Board, or no farmers. In fact we have encouraged colored 
people to send their kids up to the white school. To the contrary, 
they have failed and refused—people that we thought we could talk 
with if something come up, that we could adjust the situation. There 
hasn’t been any economic pressure put on. Almost every member of 
this Board has got colored people living on their farm that have 
colored children in the white schools.”



25a

its operation of its school is depriving pupils of rights 
guaranteed by the federal constitution.

In Brown v. Board of Education of Topeka, 349 U.S. 
294, 299, the Court states:

“School authorities have the primary responsibility 
for elucidating, assessing, and solving these problems; 
courts will have to consider whether the action of 
school authorities constitutes good faith implementa­
tion of the governing constitutional principles. Be­
cause of their proximity to local conditions and the 
possible need for further hearings, the courts which 
originally heard these cases can best perform this 
judicial appraisal.”

In our present case, no issue on the adequacy of the 
plan adopted by the Board or its implementation was 
raised in the District Court. Issues not fairly raised in 
the District Court cannot ordinarily be considered upon 
appeal. Hormel v. Helvering, 312 U.S. 552, 556; Duignan 
v. United States, 274 U.S. 195, 200; Smith v. American 
Guild of Variety Artists, 8 Cir., 368 F.2d 511, 514.

The judgment is affirmed.3

3 The evidence in this case was taken on November 24, 1965. Due 
to disability of the reporter, the preparation of the transcript of testi­
mony was delayed and this has delayed the appeal. Since the hearing 
in the trial court, the 1966-67 school year has been completed and the 
1967-68 year is about to commence. Our decision is based upon the 
record before us. If subsequent evidence should prove that the defend­
ant Board is not fairly administering its integration plan, resort to the 
equitable powers of the District Court is open to any aggrieved party.

O p in io n  o f  U n ite d  S t a t e s  C o u r t  o f  A p p e a l s

F o r  th e  E ig h th  C ir cu it



26a

Judgment

UNITED STATES COURT OF APPEALS 

F oe the  E igh th  Ciecuit 

September Term, 1966 

No. 18,527

Arthur Lee Raney, by his mother and next friend, Mrs. 
Roxie Raney; Bobby Cox and Annette Cox, by their 
grandmother and next friend Mrs. Carrie Dilworth; 
Charles Washington, by his mother and next friend, 
Mrs. Vertis Frazier; Dennis James Bailey, by his 
mother and next friend, Mrs. Olens Bailey; Robert 
Hall, by his mother and next friend, Nonie Mae George; 
Wyvonne Dale, by her mother and next friend, Laverne 
Dale; Earnestine Dale, by her father and next friend,
E. W. Dale; Irma Jean Clark, by her grandmother 
and next friend, Mrs. Mattie Harper; Linda Wright, 
by her grandmother and next friend, Mrs. Blanche 
Newman; Jake Taylor, Jr., and Linda Austin, by their 
mother and next friend, Mrs. Beatrice Austin; Willie 
Lee Jones and Stella Harper, by their parents and 
next friends, Mr. and Mrs. Rice Harper; Bobbye Caro­
lyn Hadden, by her mother and next friend Mrs. Norma 
Jean Hadden; Jesteen Jasper, by her father and next 
friend, Jim Jasper,

Appellants,
vs.

Board of Education of the Gould School District.



27a

Judgment

APPEAL FROM  T H E  U N ITED  STATES DISTRICT COURT 

FOR T H E  EASTERN DISTRICT OF ARKANSAS

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

On Consideration Whereof, It is now here Ordered and 
Adjudged by this Court that the judgment of the said 
District Court in this cause be, and the same is hereby, 
affirmed.

August 9th, 1967.

Order Denying Petition for Rehearing

(Filed September 18, 1967)

Appellants’ Petition for Rehearing en banc or by the 
Panel filed in this cause having been considered, It is now 
here Ordered by this Court that the same be, and it is 
hereby, denied.







MEIIEN PRESS INC. —  N. Y. C ^ g g ^ - 219



No. 695

IN THE

Supreme Court of the United States
October Term, 1967

CHARLES C. GREEN, e t  a l ., Petitioners,
v.

County School Board of New K ent 
County, V irginia, et al., Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT

Frederick T. Gray
Williams, Mullen and Christian 
1309 State Planters Bank Bldg. 
Richmond, Virginia 23219 Counsel for Respondents





TABLE OF CONTENTS
Page

... 1Q u e stio n  Pr e se n t e d

St a t e m e n t  .......................

Ar g u m e n t

I. The Constitutionality of Freedom of Choice Plans under 
the Brown Decision......................................................................

II. The Decisions of the Various Circuits Do Not Require Action 
by this Circuit ..............................................................................

C o n c l u s io n ...........................................................—..................................................

TABLE OF CASES

Bell v. School, etc. City of Gary, 324 F.2d 209 Cert. den. 377
U S. 924 ............................................................................................

Bolling v. Sharpe, 347 U.S. 497 ..........................................................7,

Bowman v. School Board of Charles City County (No. 10793), 
U.S. Court of Appeals, Fourth Circuit.........................................

Bradley v. School Board of the City of Richmond, 345 F.2d 310, 
382 U.S. 103................................................................................5, 6,

Brown v. Board of Education, 347 U.S. 483 ..................... 4, 5, 8, 9,

Brown v. Board of Education, 139 Fed. Supp. 470 ............................

Clark v. Board of Education of Little Rock, 369 F.2d 661 .............

Downs v. Board of Education of Kansas City, 336 F.2d 988, Cert, 
den. 380 U.S. 9 1 4 ............................................................................

Green v. County School Board of New Kent County, (No. 10792) 
U.S. Court of Appeals, Fourth Circuit .....................................

Jefferson County Board of Education, 372 F.2d 836 .........................

Springfield School Committee v. Barksdale, 348 F.2d 261 ...............

2

4

12

13

12

, 8

2

, 7
10

12

12

12

2

12

12



-i



IN THE

Supreme Court of the United States

October Term, 1967

No. 695

CHARLES C. GREEN, et al.,

v.
Petitioners,

County School Board of New K ent 
County, V irginia, et al., Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT

QUESTION PRESENTED

Does a local school board offend the constitutional right 
of any of the petitioners when it administers its schools 
under a plan of operation by which each pupil, including 
each petitioner, each year attends the school of his choice 
and the petitioners admit that their annual right is un­
restricted and unencumbered?



2

STATEMENT

On July 15, 1966 the United States District Court for 
the Eastern District of Virginia approved plans for the 
operation of the public schools in New Kent County, Vir­
ginia and Charles City County, Virginia. The Court of 
Appeals for the Fourth Circuit in Bowman v. School Board 
of Charles City County, Virginia, No. 10793 and Green v. 
School Board of New Kent County, Virginia, No. 10792, 
reviewed the “ freedom of choice” provisions of the two 
plans as they relate to pupil assignment and said

“ Since the plaintiffs here concede that their annual 
choice is unrestricted and unencumbered, we find in its 
existence no denial of any constitutional right not to be 
subjected to racial discrimination.”

As to the faculty provisions of the plan the Court said

“ Appropriately, the School Board’s plan included 
provisions for desegregation of the faculties. Supple­
mented at the direction of the District Court, those 
provisions are set forth in the margin.

“ These the District Court found acceptable under 
our decision in Wheeler v. Durham City Board of Edu­
cation, 363 F. 2d 738, but retained jurisdiction to en­
tertain applications for further relief. It acted upon a 
record which showed that white teachers had been 
assigned to the ‘ Indian school’ and one Negro teacher 
had been assigned to a formerly all white school.

“ The appellants’ complaint is that the plan is in­
sufficiently specific in the absence of an immediate 
requirement of substantial interracial assignment of all 
teachers.

“ On this record, we are unable to say what impact 
such an order might have upon the school system or 
what administrative difficulties might be encountered



3

in complying with it. Elimination of discrimination in 
the employment and assignment of teachers and ad­
ministrative employees can be no longer deferred, but 
involuntary reassignment of teachers to achieve racial 
blending of faculties in each school is not a present 
requirement on the kind of record before us. Clearly, 
the District Court’s retention of jurisdiction was for the 
purpose of swift judicial appraisal of the practical con­
sequences of the School Board’s plan and of the ob­
jective criteria by which its performance of its de­
clared purposes could be measured.

“ An appeal having been taken, we lack the more 
current information which the District Court, upon 
application to it, could have commanded. Without 
such information, an order of remand, the inevitable 
result of this appeal, must be less explicit than the Dis­
trict Court’s order, with the benefit of such informa­
tion, might have been.

“ While the District Court’s approval of the plan 
with its retention of jurisdiction may have been quite 
acceptable when entered, we think any subsequent 
order, in light of the appellants’ complaints should in­
corporate some minimal, objective time table.

“ Quite recently, a panel of the Fifth Circuit Court 
of Appeals has required some progress in faculty in­
tegration for the school year 1967-68. By that decree, 
school boards are required to take affirmative steps to 
accomplish substantial desegregation of faculties in as 
many of the schools as possible for the 1967-68 school 
year and, wherever possible, to assign more than one 
member of the minority race to each desegregated 
faculty. As much should be required here. Indeed, 
since there was an earlier start in this case, the Dis­
trict Court, with the benefit of current information, 
should find it appropriate to fashion an order which is 
much more specific and more comprehensive. What is 
done on remand, however, must be done upon a sup­
plemented record after an appraisal of the practical,



4

administrative and other problems, if any, remaining 
to be solved and overcome.

Remanded

We respectfully submit that the Fourth Circuit’s action 
was proper and, as the Court specifically noted, the remand 
of the case coupled with the District Court’s retention of 
jurisdiction would have permitted the District Court to 
move expeditiously to determine what steps should be taken 
with respect to faculty and whether the freedom of choice 
plans were being administered in a proper manner. The re­
mand would have permitted the record to be properly 
assembled and brought up to date rather than have the 
petitioners seek to bring to this Court statements and rec­
ords not a part of the record below.

Thus, we submit, the only relevant facts before this court 
are the plans adopted by the school board which plans are 
set forth in the Appendix to the Petition pages 4a through 
11a.

ARGUMENT

I

The Constitutionality of Freedom of Choice Plans Under 
the Brown Decisions

The petitioners apparently are having some difficulty 
finding their footing as they seek to establish the principle 
that a state or locality offends the constitutional right of 
someone if it provides that, “under a so-called freedom of 
choice plan of desegregation, students are given a privilege 
rarely enjoyed in the past— the opportunity to attend the 
school of their choice.”  (Petition, p. 13). Would it not be 
strange if the Constitution of the United States denies this



5

privilege? Prior to Brown it was denied in many areas. It 
was to establish just such right that Brown was brought and 
it was to fix just such right that Brown was decided.

Petitioners recognize difficulty in complaining of such 
privilege and thus seek on page 12 of the Petition to limit 
their attack so as not to urge the per se unconstitutionality 
of such plans but the operational unconstitutionality. It is 
at this juncture, we submit, that they concede the validity 
of the action of the District Court in approving the plan 
with the retention of jurisdiction in order that the opera­
tion of the plan could be observed and they also concede the 
wisdom of the Court of Appeals in remanding the case for 
the District Court to review and update the record and 
fashion proper remedial decrees.

The difficulty encountered by the petitioners is that while 
in Charles City and New Kent Counties a geographical plan 
of school zoning might result in a student body composition 
satisfactory to the advocates of compulsory integration a 
similar plan might not accomplish their goal in a different 
geographical context— thus in Hopewell, Virginia and Gary, 
Indiana they were not content with geographical plans.

It becomes apparent then that the sole point presented by 
the petition is whether or not the Brown decisions require 
compulsory integration in schools, although as a preliminary 
question one might inquire who it is that is aggrieved by 
the freedom of choice plan since each petitioner is free to 
choose— what petitioner is denied what constitutional right?

Unless the “ freedom of choice” principle approved in 
Bradley v. School Board of the City of Richmond, 345 F. 2d 
310, vacated and remanded on other grounds 382 U.S. 103 
(1965) is now to be declared invalid the admission of the 
petitioners that there exists an “unrestricted choice” would



6

“A system of free transfers is an acceptable device 
for achieving legal desegregation of schools.”

The Court of Appeals for the Fourth Circuit speaking 
further in Bradley said:

“ It has been held again and again, however, that 
the Fourteenth Amendment prohibition is not against 
segregation as such. The proscription is against dis­
crimination. . . . There is nothing in the Constitution 
which prevents his voluntary association with others of 
his race or which would strike down any state law 
which permits such association. The present suggestion 
that a Negro’s right to be free from discrimination 
requires that the state deprive him of his volition is 
incongruous. . . .There is no hint (in Brown) of a sug­
gestion of a constitutional requirement that a state 
must forbid voluntary associations or limit an indi­
vidual’s freedom of choice except to the extent that 
such individual’s freedom of choice may be affected by 
the equal rights of others. A state or a school district 
offends no constitutional requirement when it grants to 
all students uniformly an unrestricted freedom of choice 
as to schools attended, so that each pupil, in effect, 
assigns himself to the school he wishes to attend.”

“ Imposed discrimination is eliminated as readily by 
a plan under which each pupil initially assigns him­
self as he pleases as by a plan under which he is in­
voluntarily assigned on a geographic basis. . . .The 
other means (in addition to geographic zoning) of 
abolishing the dual zone system was to do away with 
zones completely. From the point of view of the ulti­
mate objective of eliminating the illegal dual zoning, 
dezoning seems the obvious equivalent of rezoning and,

seem to bring the case squarely within the language of
B ra d le y



7

administratively, far easier of accomplishment when 
the School Board intends ultimate operation to be 
founded upon the free choice of the pupils.”

Under the freedom of choice plan involved here a 15 day 
choice period is provided, all activities of the schools are 
covered, transportation is without regard to race and no 
person may be subjected to penalty or favor because of the 
choice made.

No real attack was made upon the operation of the plan 
in the courts below. The only attack made was upon the 
principle of free choice. The movement which began to free 
the Negro from the inability to exercise a choice because of 
race would now— for purely racial motives— deny him the 
choice. The Petitioners say in effect there can be no free 
choice— there must be intermixture. The desire of parents 
must fall before the desire of those who would require 
“ immediate total desegregation.”

In spite of the fact that every Petitioner in this law suit 
admits the existence of an “ unrestricted choice” they would 
have the Court force others to do what they are free to do 
already.

It is difficult to envision this as a bona fide action if the 
parents are merely asking the Court to do for others that 
which they can do by a mere application to the School 
Board. This argument flys in the teeth of the very type relief 
which was originally asked in the school cases. For example, 
it was argued before this Court in the District of Columbia 
case on April 11, 1955:

“ Now, it would seem to me that this also could be 
of assistance to the Court in dealing with the question 
if, in a situation where the Court has as wide a super­
visory power as in this, the Court directed the courts



8

below here to enter a decree which is in effect, Mr. 
Justice Frankfurter, this judgment reversed and cause 
remanded to the District Court for proceedings not 
inconsistent with this Court’s opinion, and entry of a 
decree containing the following provisions:

“ (1) All provisions of District of Columbia Code or 
other legislative enactments, rules or regulations, re­
quiring, directing or permitting defendants to admin­
ister public schools in the District of Columbia on the 
basis of race or color, or denying the admission or 
petitioners or other Negroes similarly situated to the 
schools of their choice within the limits set by normal 
geographic school districting on the basis of race or 
color are unconstitutional and of no force or effect;

“ (2) Defendants, their agents, employees, servants 
and all other persons acting under their direction and 
supervision, are forthwith ordered to cease imposing 
distinctions based on race or color in the administration 
of the public schools of the District of Columbia; and 
are directed that each child eligible for public school 
attendance in the District of Columbia be admitted to 
the school of his choice not later than September, 1955 
within the limits set by normal geographic school dis­
tricting ;

“ (3) The District Court is to retain jurisdiction to 
make whatever further orders it deems appropriate to 
carry out the foregoing;” *

We shall point out later herein that the Court embodied 
that free choice principle in its whole reasoning.

In Brown v. Board of Education, 347 U.S. 483 after 
holding that there is doubt that the Fourteenth Amendment 
was intended to apply to public education at all but that

* See Page 75, Vol. I Transcript in Supreme Court of the United 
States, April 11, 1955, Bolling v. Sharpe, 347 U.S. 497.



9

“ In Sweatt v. Painter (U.S.) supra, in finding that 
a segregated law school for Negroes could not provide 
them equal educational opportunities, this Court relied 
in large part on ‘those qualities which are incapable 
of objective measurement but which make for great­
ness in a law school.’ In McLaurin v. Oklahoma 
State Regents, 339 U.S. 637, 94 L. ed. 1149, 70 S. Ct. 
851, supra, the Court, in requiring that a Negro ad­
mitted to a white graduate school be treated like all 
other students, again resorted to intangible considera­
tions : ‘ . . . his ability to study, to engage in discussions 
and exchange views with other students, and, in gen­
eral, to learn his profession.’ Such considerations apply 
with added force to children in grade and high schools. 
To separate them from others of similar age and 
qualifications solely because of their race generates a 
feeling of inferiority as to their status in the community 
that may affect their hearts and minds in a way un­
likely ever to be undone. The effect of this separation 
on their educational opportunities was well stated by 
a finding in the Kansas case by a court which neverthe­
less felt compelled to rule against the Negro plaintiffs:

“ ‘Segregation of white and colored children in pub­
lic schools has a detrimental effect upon the colored 
children. The impact is greater when it has the sanction 
of the law; for the policy of separating the races is 
usually interpreted as denoting the inferiority of the 
Negro group. A sense of inferiority affects the motiva­
tion of a child to learn. Segregation with the sanction 
of law, therefore, has a tendency to [retard] the educa­
tional and mental development of Negro children and 
to deprive them of some of the benefits they would 
receive in a racial[ly] integrated school system.’

“ Whatever may have been the extent of psycho­
logical knowledge at the time of Plessy v. Ferguson, this

under today’s conditions it must be applied, the Court
reached the heart of its reasoning:



10

finding is amply supported by modern authority. Any 
language in Plessy v. Ferguson contrary to this finding 
is rejected.”

So it was legally enforced segregation which the Court 
struck down— not freedom of choice. Indeed the Court 
answers our question vividly in the fourth of five questions 
which it had propounded for counsel to reargue. It asked 
for still further argument on question 4 which was:

“ 4 Assuming it is decided that segregation in public 
schools violates the Fourteenth Amendment

“ (a) would a decree necessarily follow providing 
that, within the limits set by normal geographic school 
districting, Negro children should forthwith be ad­
mitted to schools of their choice, or

“ (b) may this Court, in the exercise of its equity 
powers, permit an effective gradual adjustment to be 
brought about from existing segregated systems to a 
system not based on color distinctions?” (Emphasis 
added)

Clearly all that concerned the Court was shall free choice 
be granted now or can there be a gradual adjustment— ? 
Gradual adjustment to what? A school with racial balance? 
No!— “ to a system not based on color distinctions.”  Indeed 
the Court invited freedom of choice by the very nature of 
the relief it was considering.

When one considers that the Court had difficulty deter­
mining that the 14th Amendment forbade compulsory segre­
gation— it is hard to understand how the Petitioners so 
easily find that it forbids free choice!

In attempting to understand the law as It has developed 
in public school field, it is important to define the term 
“ segregation” and the term “ desegregation.”  Petitioners use



11

the term “ segregation” as though it means any situation in 
which all pupils in a particular school are of one race. They 
apparently contend that even so defined segregation is un­
constitutional. If that be true it is unconstitutional for 
Colonial Heights, Virginia, to engage in public education at 
all for its entire population is white. Obviously then, a wholly 
white or a wholly colored school does not necessarily violate 
the Constitution. The missing ingredient is someone who is 
denied admission— someone who is discriminated against. 
Thus we come to the meaning of the term just as Webster 
defines it.

In Webster’s New Collegiate Dictionary the terms segre­
gate and segregation are defined as follows:

segregate— Set apart; separate; select. To separate 
or cut off from others or from the general mass; to 
isolate; seclude.
segregation— Act of segregating or state of being 
segregated; separation from a general mass or main 
body; specif., isolation or seclusion of a particular group 
of persons.

We submit that when the State stops acting, segregation 
no longer exists: for segregation is the result of action—  
a setting apart, separation or selection.

Desegregate is defined in that same work as follows:

desegregate— To free (itself) of any law, provision, or 
practice requiring isolation of the members of a par­
ticular race in separate units, esp. in military service 
or in education.

Under that definition our schools are desegregated!
On remand to the District Court the original Brown case 

resulted in the following statement by that Court:



“ Desegregation does not mean that there must be an 
intermingling of the races in all school districts. It 
means only that they may not be prevented from inter­
mingling or going to school together because of race ' 
or color.” 139 Fed. Supp. 470)

X  ~ " ; ' '■ ’  1  ■" 'X X X .  . .  X U

Surely freedom of choice is constitutionally acceptable.

II-•* - ........................... - '  • ■ - •
‘  \ ' •

The Decisions of the Various Circuits Do Not Require 
Action by This Court

Having reviewed the decision of the Court of Appeals for 
the Fourth Circuit we would point out that the decisions of 
other Circuits are not inconsistent.

In Clark v. Board of Education of Little Rock, 369 F. 2d 
661 rehearing denied 374 F. 2d 569 (1967) the Court of 
Appeals for the Eight Circuit reached the same conclusion. 
The Tenth Circuit in Downs v. Board of Education of 
Kansas City, 336 F. 2d 988 (1964) cert. den. 380 U.S. 914 
held that “ although the Fourteenth Amendment prohibits 
segregation, it does not command integration of the races 
* * So, too, with the First Circuit in Springfield School 
Committee v. Barksdale, 348 F. 2d 261 (1965) and the 
Seventh Circuit in Bell v. School, etc., City of Gary, 324
F. 2d 209, (1963) cert. den. 377 U.S. 924 (1964).

The decision of the Fifth Circuit in Jefferson County 
Board of Education, 372 F. 2d 836 (1966) is not in con­
flict. There the decision was based upon local resistence and 
the Court admitted that it had not had to deal with “non- 
racially motivated de facto segregation.”  Clearly that de­
cision would not declare unconstitutional a fairly adminis­
tered freedom of choice plan.



13

CONCLUSION

We respectfully submit that the record racial unrest 
which has swept this country dictates that the proper course 
of action in these cases is to permit or require the States and 
localities to shape and operate non-discriminatory plans 
under the guidance of the District Court. It certainly does 
not indicate that a concept should be outlawed which is 
gaining orderly acceptance, is totally non-discriminatory, is 
resulting in markedly increased integration and is giving 
“ a privilege rarely enjoyed in the past— the opportunity to 
attend the school of their choice.” (Petition, p. 13.)

Respectfully submitted,

Frederick T. Gray 
Williams, Mullen and Christian 
1309 State Planters Bank Bldg. 
Richmond, Virginia 23219 

Counsel for Respondents



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