Briscoe v. Bell Brief of the Mexican Americal Legal Defense and Educational Fund, NAACP Legal Defense and Educational Fund, Leadership Conference on Civil Rights, and Lawyers' Committee for Civil Rights Under Law, Amici Curiae in Support of the Decision Below
Public Court Documents
February 25, 1977
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Brief Collection, LDF Court Filings. Cotton v. Scotland Neck City Board of Education Brief for Petitioners, 1971. 2fdba372-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ab2c143b-4485-44da-9304-5cd3a16d688e/cotton-v-scotland-neck-city-board-of-education-brief-for-petitioners. Accessed April 06, 2025.
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In t h e
( ta r t ni tty Ittitrd Bizitm
October T erm, 1971
No. 70-187
Pattie Black Cotton, et al.,
v.
Petitioners,
Scotland Neck City Board oe E ducation, et al.
o n w r i t o p c e r t i o r a r i t o t h e
UNITED STATES COURT OP APPEALS POR THE FOURTH CIRCUIT
BRIEF FOR PETITIONERS
Jack Greenberg
James M. Nabrit, III
N orman J. Chachkin
10 Columbus Circle
New York, N. Y. 10019
J. L eV onne Chambers
237 West Trade Street
Charlotte, N. C. 28202
A dam Stein
157 East Rosemary Street
Chapel Hill, N. C. 27514
James R. W alker, Jr.
501 West Third Street
Weldon, N. C. 27890
Samuel S. Mitchell
126% East Hargett Street
Raleigh, N. 0 . 27601
Attorneys for Petitioners
TABLE OF CONTENTS
PAGE
Opinions B elow ........................... 1
Jurisdiction ............................... 2
Questions Presented............................................................ 2
Constitutional and Statutory Provisions Involved....... 2
Statement .............................................. 2
1. Proceedings B elow ................................... 2
2. The Public Schools in Halifax County and
Scotland Neck Prior to 1968-69 ........................... 6
3. Department of Justice Intervention................... 8
4. The State Consolidation and Desegregation
Plan ............. 9
5. Chapter 31—The Scotland Neck B ill ................. 11
a. The Purpose of Chapter 31 ........................... 12
b. The Effects of Chapter 31 ............................ 14
6. Events Subsequent to the Preliminary Injunc
tion ........................................................................... 18
A rgument—
The District Court Correctly Enjoined the Divi
sion of Halifax County’s System into Two Sep
arate Units Where the Changed Boundaries Would
Impede Desegregation and Where Formerly Ig
noring Such Boundaries Was Instrumental in
Promoting Segregation.............................................. 20
Introduction and Summary of Argument............... 20
I. The District Court Correctly Evaluated the
Proposed Scotland Neck Secession in Terms
of Its Effectiveness in Dismantling School
Segregation in Eastern Halifax County ....... 22
II. The Separation of Scotland Neck From the
Halifax County School System Impedes De
segregation of the Schools Involved............... 33
A. Organization of the Dual System in Scot
land Neck A re a .............................................. 33
B. The Interim Plan .......................................... 38
C. The Assignment Pattern I f Scotland Neck
Secedes; the Doughnut-Shaped Zone for
Braw ley............................................................ 39
D. The Effect of Secession on Brawley and
District I ...................................................... 43
E. The Interdistrict Transfer P lans............... 47
F. Other Effects of the Secession of Scotland
Neck .... ............................................................. 49
ii
PAGE
Conclusion 53
Ill
T able of A uthorities
Cases: page
Alexander v. Holmes County Board of Education, 396
U.S. 19 (1969) ........................ ..................... ................... 23
Aytch v. Mitchell, 320 F. Supp. 1372 (E.D. Ark. 1971) 29
Brown v. Board of Education, 347 U.S. 483 (1954) ....20, 22,
29, 33, 46, 51
Brown v. Board of Education, 349 U.S. 294 (1955) ....20, 23,
29, 33
Brown v. South Carolina State Board of Education,
296 F. Supp. 199 (D. S.C. 1968), aff’d, 393 U.S. 222
(1968) ............................................................................... 50
Brunson v. Board of Trustees of School District No. 1,
Clarendon County, S. C., 429 F.2d 830 (4th Cir. 1970) 51
Buckner v. County School Board of Greene County,
Va., 332 F.2d 452 (4th Cir. 1964) ................................ 36
Burleson v. County Board of Election Commissioners
of Jefferson County, 308 F. Supp. 352 (E.D. Ark.
1970), affirmed, 432 F.2d 1356 (8th Cir. 1970) ......... 29
Bush v. Orleans Parish School Board, 190 F. Supp. 861
(E.D. La. 1960), affirmed sub nom. City of New
Orleans v. Bush, 366 U.S. 212 (1961) ......................... 28
Carter v. West Feliciana Parish School Board, 396 U.S.
290 (1970) ............................. ........................................... 22
Coffey v. State Education Finance Commission, 296
F. Supp. 1389 (S.D. Miss. 1969) .................................. 50
Cooper v. Aaron, 358 U.S. 1 (1958) .............................. 28
IV
Corbin v. County School Board of Pulaski County, Va,,
177 F.2d 924 (4th Cir. 1949) .... ............... ...... ............... 36
Crisp v. County School Board of Pulaski County, Ya.
(W.D. Ya. 1960), 5 Race Eel. L. Eep. 721 ............... . 36
Davis v. Board of School Commissioners of Mobile,
402 U.S. 33 (1971) ...............:........ ................... 21, 22, 24, 39
Evans v. Buchanan, 207 F. Supp. 83 (D. Del. 1962)....... 29
Goins v. County School Board of Grayson County, Va.,
186 F. Supp. 753 (W.D. Va. 1960), stay denied, 282
F.2d 343 (4th Cir. 1960)...................................... ........... 36
Gomillion v. Lightfoot, 364 TJ.S. 339 (1960) ...............23, 39
Green v. County School Board of New Kent County, 391
U.S. 430 (1968) .........................6, 8,12,16, 22, 23, 25, 32, 37
Griffin v. Board of Education of Yancey County, 186
F. Supp. 511 (W.D. N.C. 1960) ................................... 36
Griffin v. School Board, 377 U.S. 218 (1964) ....... ... ....28, 50
Griffin v. State Board of Education, 296 F. Supp. 1178
(E.D. Va. 1969) ................................ ............................... 50
Hall v. St. Helena Parish School Board, 197 F. Supp.
649 (E.D. La. 1961), aff’d, 368 U.S. 515 .................... 50
Haney v. County Board of Education of Sevier County,
Ark., 410 F.2d 920 (8th Cir. 1969) .............................. 29
Hawkins v. North Carolina State Board of Education,
11 Race Eel. L. Eep. 745 (W.D. N.C., March 31,
1966) ...................................... .......................................... 50
Jenkins v. Township of Morris School District, 58
N.J. 483, 279 A.2d 619 (1971)
PAGE
29
V
Lee v. Macon County Board of Education, 267 F, Supp.
458 (M.D. Ala. 1967), aff’d, sub nom. Wallace v.
United States, 389 U.S. 215 (1967) ..... ....... ...... ........ 50
Lee v. Macon County Board of Education, 448 F.2d
746 (5th Cir. 1971) ...................................... 20, 29, 30, 31, 52
Lee y. Nyquist, 318 F. Supp. 710 (W.D. N.Y. 1970,
affirmed per curiam, 402 U.S. 935 (1971)....................... 49
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) 36
Monroe v. Board of Commissioners, 391 U.S. 450 (1968) 22
North Carolina State Board of Education v. Swann, 402
U.S. 43 (1971) .......................................................... 21, 30, 49
Poindexter v. Louisiana Financial Assistance Commis
sion, 275 F. Supp. 833 (E.D. La. 1967), aff’d 389 U.S.
571 (1968) ..................................................................... . 50
Poindexter v. Louisiana Financial Assistance Commis
sion, 296 F. Supp. 686 (E.D. La. 1968), aff’d, 393 U.'S.
16 (1968) ........................................................................... 50
Raney v. Board of Education, 391 U.S. 443 (1968) .....22, 37
School Board of Warren County, Va. v. Kilby, 259 F.2d
497 (4th Cir. 1958)....................... ...................... ............. 36
Sloan v. Tenth School District of Wilson County, Tenn.,
433 F.2d 587 (6th Cir. 1970) ....... ................................. 29
Stout v. Jefferson County Board of Education, 448 F.2d
403 (5th Cir. 1971) ............ ............. ........................20, 29, 30
Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) .............20, 21, 22, 24, 42, 44, 45, 46, 49, 52
PAGE
PAGE
Turner v. Littleton Lake Gaston School District, 442
F.2d 584 (4th Cir. 1971) .............................................. 5,
Turner v. Warren County Board of Education, 313
F. Supp. 380 (E.D. N.C. 1970), affirmed sub nom.
Turner v. Littleton Lake Gaston School District, 442
F.2d 584 (4th Cir. 1971) ..............................................16,
United States v. Bright Star School District i f 6, un-
reported, W.D. Ark., No. T-69-C-24, April 15,1970 ....
United States v. Crockett County Board of Education,
unreported, W.D. Tenn., C.A. No. 1663, May 15, 1967
United States v. Halifax County Board of Education,
314 F. Supp. 65 (E.D. N.C. 1970) ........... 1, 9,13,14,17,
United States v. Louisiana, 225 F. Supp. 353 (E.D. La.
1963), affirmed, 380 U.S. 145 (1965) ........................—
United States v. Scotland Neck City Board of Educa
tion, No. 70-130 .....................—........................................
United States v. Scotland Neck City Board of Educa
tion, 442 F.2d 575 (4th Cir. 1971) .......................... 1, 26,
United States v. Texas, 321 F. Supp. 1043 (E.D. Tex.
1970), affirmed, 447 F.2d 441 (5th Cir. 1971) ...........
United States v. Tunica County School District, 323
F. Supp. 1019 (N.D. Miss. 1970), aff’d, 440 F.2d 1236
(5th Cir. 1971) ....................................... -..... -..................
Walker v. County School Board of Floyd County, Ya.
(W.D. Ya. 1960), 5 Race Bel. L. Rep. 714 ........... .......
Wright v. Council of City of Emporia, 442 F.2d 570
(4th Cir. 1971) ............... .................. -.......... 5, 26, 29, 41,
Wright v. Council of City of Emporia, No. 70-188 .....4,
26
29
30
30
25
42
2
29
29
50
36
42
27
V l l
Statutes: page
28 U.S.C. section 1254(1) ................. 2
1969'Session Laws of North. Carolina, Chapter 31 ..2, 3,4, 27
N.C. Gen. Stat. § 115-163.................................................... 15
Other Authorities:
U. S. Bnrean of the Census, U. S. Census of Popula
tion: 1970 General P opulation Characteristics,
North Carolina............... 40
I n the
g>ttpr?mp ( to r t nf % TUm ttb States
Ootobee T eem, 1971
No. 70-187
Pattie Black Cotton, et al.,
Petitioners,
v.
Scotland Neck City Boaed op E ducation, et al.
ON W RIT OP CERTIORARI TO THE
UNITED STATES COURT' OP APPEALS POE THE FOURTH CIRCUIT
BRIEF FOR PETITIONERS
Opinions Below
The opinion of the Court of Appeals (A. 1104) is re
ported sub nom. United States v. Scotland Neck City Board
of Education, 442 F.2d 575 (4th Cir. 1971). Dissenting opin
ions by Judges Winter and Sobeloff are reported at 442
F.2d 588 and 442 F.2d 593.
The opinion of the United States District Court for the
Eastern District of North Carolina (A. 1062) is reported
sub nom. United States v. Halifax County Board of Educa
tion, 314 F. Supp. 65 (E.D. N.C. 1970).
2
Jurisdiction
The judgment of the Court of Appeals was entered March
23, 1971. The petition for certiorari was filed May 20, 1971,
and was granted on October 12, 1971. The case was con
solidated with United States v. Scotland Neck City Board
of Education, No. 70-130, in which certiorari was also
granted October 12, 1971. The jurisdiction of the Court
rests on 28 U.S.C. section 1254(1),
Questions Presented
Whether the Court of Appeals erred by holding that new
school districts may be formed which divide a unit that is
faced with the duty to desegregate a dual system where
the changed boundaries result in less desegregation and
where formerly the absence of such boundaries was instru
mental in promoting segregation.
Constitutional and Statutory Provisions Involved
1. This case involves the constitutionality of Chapter 31
of the 1969 Session Laws of North Carolina which is set
out in the appendix to this brief, pp. 16b, et seq.
2. The ease also involves Section 1 of the Fourteenth
Amendment to the Constitution of the United States.
Statement
1. Proceedings Below
This case (consolidated here with No. 70-130, United
States v. Scotland Neck City Board of Education) involves
the desegregation of the public schools operated by the
Halifax County Board of Education in North Carolina.
3
The school system of some eighteen schools and slightly
more than 10,600 pupils (in 1968-69) embraces a rural area
and a number of small towns such as Scotland Neck, a
community with about 695 resident pupils. The county
has long maintained a dual system of racially segre
gated schools, and while the county school board was en
gaged in negotiating with the United States Department
of Justice about a desegregation plan, local citizens ob
tained passage of Chapter 31 of the 1969 Session Laws of
North Carolina wThich created a new independent school
system for the town of Scotland Neck and thus separated
the town and its one school from the county school system
and its desegregation plans. This case involves the con
stitutionality of Chapter 31 in the context of the desegre
gation process.
The complaint (A. 26 and amendment at A. 62) was
filed by the United States on June 16, 1969, in the Eastern
District of North Carolina seeking the desegregation of
the schools by a more effective method than the freedom
of choice plan then in effect, and seeking an injunction
against Chapter 31 on the ground that it interfered with
desegregation of the public schools of Halifax County and
denied equal protection of the laws to Negro students.
Petitioners Patty Black Cotton, et al. are Negro pupils,
parents and teachers who were permitted to intervene as
plaintiffs. The Halifax County Board of Education, the
Scotland Neck City Board of Education, the Mayor and
Commissioners of Scotland Neck and the Town of Scotland
Neck were named as defendants, and several other state
and local officials were later added as defendants.
After a three day hearing the district court entered a
preliminary injunction on August 25, 1969, restraining
implementation of Chapter 31 (A. 790). On May 26, 1970,
a final injunction was entered (A. 1084), the district court
4
holding that Chapter 31 was unconstitutional under the
Equal Protection Clause of the Fourteenth Amendment
because it “was enacted with the effect of creating a refuge
for white students of the Halifax County School system”
(A. 1083). The district court order was accompanied by
a long and detailed opinion setting forth complete findings
of fact. The opinion by Judge Larkins was concurred in
by Chief Judge Butler who sat to hear a related case
involving similar questions relating to the creation of two
new school districts—Littleton-Lake Gaston and Warren-
ton—in neighboring Warren County located just west of
Halifax. (For the general location of the several districts
see Map I in Petitioners’ Brief Appendix of Maps, Tables
and Statutes.1 Map I also shows nearby Emporia, Virginia
involved in a companion case, Wright v. Council of City
of Emporia, No. 70-188.)
The Fourth Circuit, sitting en banc, reversed the injunc
tion, with Judges Sobeloff and Winter dissenting. The
opinion of the court by Judge Craven upheld Chapter 31,
concluding that the primary purpose of the law “was not
to invidiously discriminate against black students.” (442
F.2d at 582.) In the companion case involving Emporia,
Virginia, Judge Craven set out the legal rule applied to
decide these cases in the following language:
If the creation of a new school district is designed
to further the aim of providing quality education
and is attended secondarily by a modification of the
racial balance, short of resegregation, the federal
courts should not interfere. If, however, the primary
purpose for creating a new school district is to retain
as much of separation of the races as possible, the
state has violated its affirmative constitutional duty
1 This Brief Appendix is hereinafter referred to as “Maps and
Tables.”
5
to end state supported school segregation. The test
is much easier to state that it is to apply. (Wright v.
Council of City of Emporia, 442 F.2d 570, 572 (4th
Cir. 1971).)
The Court of Appeals held that the effect of the separa
tion of Scotland Neck schools and students on the desegre
gation of the remainder of the county system was
“minimal” and that the shift in .racial percentages was
“hardly a substantial change” (442 F.2d at 582).
The Court of Appeals held that the transfer plan adopted
by the Scotland Neck school board immediately after its
creation—by which 350 white and 10 black pupils would
transfer into the unit from Halifax County and 44 black
pupils would transfer out of Scotland Neck to attend
Brawley School—“would have tended toward the establish
ment of a resegregated system” and did violate the equal
protection clause of the Fourteenth Amendment (442 F.2d
at 583), but found the transfer plan of “no relevance”
to the constitutionality of Chapter 31 because it said that
the legislature did not know that such a plan would be
adopted (442 F.2d at 581-582, note 3). In so doing, the
Court of Appeals ignored findings to the contrary by the
district court (314 F. Supp. at 69).
The Court of Appeals’ contradiction of the district court
finding in this regard is significant since the Court of
Appeals upheld an injunction in the companion case in
volving Littleton-Lake Gaston because the record in that
case indicated legislative awareness of a comparable
transfer scheme. Turner v. Littleton Lake Gaston School
District, 442 F.2d 584 (4th Cir. 1971).
Petitions for certiorari filed by the United States and
the intervening plaintiffs were granted October 12, 1971.
6
The Court of Appeals has stayed the effectiveness of its
mandate pending this Courts’ decision, and thus the imple
mentation of Chapter 31 is still enjoined.
2. The Public Schools in Halifax County and Scotland Neck
Prior to 1968-69
Until the creation of the Scotland Neck Administrative
Unit by the North Carolina General Assembly on March 3,
1969 and by the vote of the residents of Scotland Neck
on April 8, 1969, the Halifax County Board of Education
administered all of the schools in the county except for
two areas on the northern border of the County. (See Map
II, Maps and Tables). During the 1968-69 school year
there were 10,655 students: 2,357 (22.1%) white, 8,196
(76.9%) black and 105 (1%) Indian (Table I, Maps and
Tables).
In 1964, for the first time, six black students were per
mitted to attend a formerly all-white school under a limited
free choice policy. When this Court decided Green v. County
School Board of New Kent County, 391 U.S. 430 (1968),
only 3% of the black children were attending school with
whites pursuant to the Board’s desegregation program.
(314 F. Supp. at 67).
At the time of Green, and a year later when this litigation
commenced, the County operated four schools which housed
all of its 2,357 white students and a few blacks, each offer
ing grades 1 through 12. They were: the Scotland Neck
School, located in the middle of the eastern portion of the
county, Enfield School about 16 miles west of Scotland
Neck, the Aurelian Springs School some 16 miles north
west of Enfield and William R. Davie approximately 8 miles
north of Aurelian Springs. (See Map II, Maps and Tables).
Superimposed upon the system of schools operated for
white children was a network of 14 black schools where in
7
October, 1968 7,446 or 90.8% of the County’s black pupils
attended school (Table I, Maps and Tables). In the eastern
portion of the county, for example, about % of a mile from
the Scotland Neck School and just outside the town limits
to the east is the Brawley School2 (A. 233). Brawley, like
Scotland Neck was a school serving grades 1 through 12.
At the high school level—grades 9 through 12—Brawley
drew students from the same geographical areas as the
Scotland Neck School (A. 273-276; 149; 821). White stu
dents from the outlying county areas rode buses to the
Town of Scotland Neck and went to the Scotland Neck
School. Black pupils rode separate buses from the same
surrounding area to the Town of Scotland Neck and went
to the Brawley School. White students in the town and
nearby areas walked to the Scotland Neck School. Black
children in the Town of Scotland Neck and close by walked
to Brawley.
In addition to Brawley, there are four black elementary
schools (grades 1 to 8) in the areas surrounding the Town
of Scotland Neck. Dawson is to the east, Tillery Chapel to
the north, Bakers to the west and Thomas Shield to the
south (Map II, Maps and Tables). At the elementary level,
Brawley served the Town of Scotland Neck and its immedi
ate environs. The black high school students in this area
had traditionally gone to Brawley. All of the white chil
dren in the areas served by these five black schools had al
ways gone to the Scotland Neck School until August, 1970
(A. 273-276; 149).
2 The Scotland Neck School is on the west side of town. The
town line separates ten acres of its campus and one four-classroom
building which are located in the County. After the new unit was
created arrangements were made to recapture these facilities for
the use of the Scotland Neck Unit by extending the boundaries of
the new unit through administrative action, and by leasing the
building from Halifax County for $1.00 per year. (314 P. Supp.
at 70).
8
This case involves the constitutional duty of North Caro
lina officials to desegregate the six schools in the Scotland
Neck-Brawley area.
Scotland Neck is a town of less than 3,000 people. It is
one mile wide at its widest and two miles long at its longest3
(Map IY, Maps and Tables). It has a resident school
population of 695 of which 399 (57.4%) are white and 296
(42.6%) black (Table IY, Maps and Tables). In October,
1968, the total attendance at the schools in the Scotland
Neck-Brawley area was 3,302: 786 (23.8%) white and 2,516
(76.2%) black (Table I, Maps and Tables). This very
nearly parallels the black/white ratio of the Halifax County
Unit as a whole which was 22.1% white and 76.9% black
(Ibid.).
3. Department of Justice Intervention
Following Green, the Department of Justice on July 27,
1968 sent a letter informing the Halifax County Board of
Education that it would institute suit unless prompt action
were taken to dismantle the dual school system in Halifax
County. The negotiations which ensued produced an agree
ment that the Board would take some desegregation steps
for the 1968-69 school year and would submit a plan for
the complete disestablishment of its dual system by early
1969 to be fully implemented for the 1969-70 school year.
The steps taken for 1968-69 were a few faculty transfers
and the transfers of grades 7 and 8 from three black schools,
and grade 7 from a fourth to four neighboring white schools.
As part of the plan, grades 7 and 8 were moved from Braw-
ley to Scotland Neck. No white students were assigned to
Brawley or to any other black school in the county.
3 It is less than % of a mile wide at its northern end where the
Scotland Neck and Brawley Schools are located (Map IV, Maps
and Tables).
9
In October, 1968, the Halifax School Board made a re
port to the Department of Health, Education and Welfare.
Its report showed student and teacher assignments at the
schools in the Scotland Neck-Brawley area as follows
(Table I, Maps and Tables) :
Pupils Teachers
Grades School White Black Total % Black W B
1 -1 2 Scotland Neck 786 193 979 19.7% 36 10
1-6; 9-12 Brawley 0 1106 1106 100% 0 40
1-8 Bakers 0 283 283 100% 1 12
1-8 Thomas Shields 0 203 203 100% 0 9
1-8 Dawson 0 459 459 100% 2 16
1-8 Tillery Chapel 0 272 272 100% 0 11
Totals 786 2,516 3,302 76.2% 39 98
Of the 193 black students assigned to Scotland Neck, 153
were the students in grades 7 and 8 who had been trans
ferred from Brawley (A. 732). The rest of the students at
Scotland Neck and the five other all-black schools had been
assigned by freedom of choice. Only 40 or about 1%% of
the black students in this area who were assigned by free
choice ended up in school with white children. No white
child chose any of the five black schools.
4. The State Consolidation and Desegregation Plan
On July 1, 1968 the Halifax Board wrote to the North
Carolina Department of Public Instruction requesting that
it propose to the Board a desegregation plan which would
provide “ the most effective organizational patterns for the
county schools in order to insure the best education possible
for the children” (314 F. Supp. at 68). A committee of
staff members of the State Department of Public Instruc
tion and other educators made a detailed survey of the
system and made recommendations to the local board
10
(A. 587). The committee was directed by Dr. J. L. Pierce,
Director of the Division of School Planning of the state
department who was a former teacher, coach and principal
at the Scotland Neck School (A. 972).
The committee made several long range recommenda
tions and also made recommendations for an Interim Plan
to meet immediate educational needs. The principal long
range recommendations were to construct two new high
schools to replace the nine high schools operating in the
county (A. 597-605). To be implemented, the long range
plan would require political and financial arrangements
that would take some time to accomplish.
The Interim Plan (A. 606) was designed for immediate
implementation. It proposed an organization of the schools
which would effectively break up the classical features of
the dual structure in Halifax County. It was essentially
a consolidation plan to eliminate the duplication inherent
in a typical rural segregated school system. Thus, in the
small towns such as Scotland Neck and Enfield, where
there had been white schools and black schools offering
the same grades and serving the same areas, the schools
were consolidated. The result of the plan was the elimina
tion of five of the nine high schools and the creation of
attendance zones for the elementary schools.
In the Scotland Neck-Brawley area which was designated
District I, a high school district was established which
covered the same area formerly served by the Scotland
Neck and Brawley schools (Map III, Maps and Tables).
The State recommended that all 10th through 12th grade
students (white and black) in District I attend Scotland
Neck and that all 8th and 9th grade students attend Brawley.
At the elementary level, students in grades 1 through 7
from the Town of Scotland Neck and its immediate en
11
virons would go to Brawley and the junior high site at
Scotland Neck (A. 606). Elementary zone lines were to be
established for grades 1-7 around the four outlying ele
mentary schools (Bakers, Dawson, Thomas Shields and
Tillery Chapel).
The state department completed its survey and recom
mendations in September, 1968 (A. 233-234). On December
17, 1968, the Board prepared a Table projecting student as
signments by race for the state department’s Interim
Plan (A. 681-682). These December, 1968 projections as
compared to October, 1968 percentages and grade organiza
tions are as follows (see Tables I and II, Maps and Tables):
District I
______________ PnpilsGrades School
5-6;
10-12 Scotland Neck
1-4;
7-9 Brawley
1-8 Bakers
1-8 Thomas Shields
1-8 Dawson
1-8 Tillery Chapel
Totals
White Black Total
325 640 965
330 740 1070
6 387 393
68 340 408
44 570 614
31 378 409
804 3055 3859
1968-69
Grades Black
%
Black
66.3% 1-12 19.8
69.2% 1-12 100
98.5% 1-8 100
83.3% 1-8 100
92.8% 1-8 100
92.4% 1-8 100
79.2%
The State Plan was not submitted to the Department of
Justice. Instead, the Scotland Neck Bill was introduced
into the legislature in January, 1969 and a free choice
plan was submitted to the Department of Justice in
February.
5. Chapter 31— The Scotland Neck Bill
In the summer of 1968, Scotland Neck residents became
fully aware that major changes in school assignments would
12
be finally required. They learned through the press that
Green had prompted the Halifax Board to seek recom
mendations for a desegregation plan from the State De
partment of Public Instruction. The Scotland Neck Com
monwealth gave prominent coverage to the negotiations
with the Government. On August 9, 1968, under a headline
“ County Ordered to End Dual System,” the paper reported
that freedom of choice was not desegregating the schools
and there are available “ ‘other ways, such as unitary
geographic attendance zoning or some form of grade re
organization or consolidation, promising speedier and more
effective conversion to a unitary system’ ” (A. 761).
A week later, the paper reported the terms of the agree
ment between the Board and the Government. “ [SJeventh
and eighth grades of Scotland Neck and Brawley schools
will be consolidated for the 1968-69 term into one junior
high school” and complete disestablishment of the dual
system in the county and in Scotland Neck will occur “at
the beginning of the 1969-70 school year” .
a. The Purpose of Chapter 31.
The district court found and the defendant had conceded
that one of the purposes of the proponents was to carve
out a school system with a racial ratio sufficiently tolerable
to whites to stem the exodus to private segregated schools4
from an area where the ratio was perceived to be intoler
able to whites.
4 “ The testimony and the candid admissions of counsel also indi
cate that the desire to preserve an acceptable white ratio in
the school system was a factor behind the passage of the act.
Mr. Harrison stated that he told the legislature that white
children were going to private schools and that something
needed to be done to retain the support of white people for
the public schools. (Henry Harrison’s Deposition, p. 18). Mr.
Shields and Mr. Overman both testified that they felt that
integration would encourage the growth of the all-white private
schools. (Overman’s Deposition, pp. 217-218, Shields’ Deposi-
13
“After closely scrutinizing the record and after care
fully considering the arguments of counsel, this Court
is of the opinion that the following motivating forces
were responsible for the design of the legislation cre
ating the separate Scotland Neck school district: (1)
the desire to improve the educational level in the Scot
land Neck schools, the present conditions in those
schools having been brought about by a lengthy his
tory of neglect and discrimination with respect to
financial allocations to the Scotland Neck schools by
the Halifax County Board of Education; (2) a desire
on the part of the leaders of Scotland Neck to preserve
a ratio of black to white students in the schools of
Scotland Neck that would be acceptable to white
parents and thereby prevent the flight of white students
to the increasingly popular all-white private schools
in the area; (3) a desire on the part of the people of
Scotland Neck to control their own schools and be in
a position to determine their direction with more final
ity than if the schools were a part of the Halifax
County system.” (314 F. Supp. at 72).
Judge Larkins did not determine which of the purposes
was predominant, but said each was significant.
“In ascertaining such a subjective factor as motiva
tion and intent, it is of course impossible for this Court
to accurately state what proportion each of the above
reasons played in the minds of the proponents of the
bill, the legislators or the voters of Scotland Neck,
tion, pp. 70-71). Mr. C. M. Moore said that it was his opin
ion that the independent school system would be a better al
ternative than the private schools. (Moore’s Deposition, pp.
18-19). Mr. Shields testified to the same thing and said that
most of the adults in Scotland Neck held the same opinion.
(Shields Deposition, pp. 23-26).” (314 F. Supp. at 73). (See
A. 984.)
14
but it is sufficient to say that the record amply sup
ports the proposition that each of the three played
a significant role in the final passage and implementa
tion of Chapter 31.” (314 F. Supp. at 72).
The majority of the Court of Appeals canvassed the
record and determined that the purposes were as Judge
Larkins had found, but concluded that benign objectives
of quality education and local control predominated (442
F.2d at 582). Judges Sobeloff and Winter came to the
opposite conclusion. They believed that the record showed
beyond question that the separation of Scotland Neck from
Halifax County was conceived as a segregation plan (442
F.2d at 592, 598-600).
We agree with the dissenting judges below. But we think
it would unecessarily complicate the case to recite all the
facts which demonstrate that Scotland Neck’s claims of
legitimate non-racial motives are hollow, since Scotland
Neck concedes one of its purposes was to accommodate
the racial prejudices of its white patrons and since the
record is conclusive that the scheme would have substantial
discriminatory effects.
b. The Effects of Chapter 31.
In the Spring of 1969, after the election by the Scotland
Neck voters, the new district immediately took steps to
establish a new administrative unit. One of the first
actions taken was to establish a transfer plan to allow
students residing outside of the city limits to attend the
Scotland Neck school. The new Board adopted a tuition
plan whereby families would be charged $100 tuition for
the first child registered and $25.00 for each additional
child with a maximum of $150 per family. Meanwhile,
the County School Board accommodated this policy by
permitting transfers into the county from Scotland Neck
15
without tuition and releasing comity children who sought
transfer to the new unit.6
The Scotland Neck Unit began with a resident student
population of 695 of whom 399 (57.4%) were white and
296 (42.6%) black. The transfer plan brought in 350 whites
and 10 blacks; no whites and 44 blacks transferred out.
The net result was an anticipated enrollment of 1,011 which
will be 74.1% white. (Table IV, Maps and Tables; A. 522-
524)).
The Court of Appeals thought that the transfer plan
which it found to be unconstitutional had “no relevance”
to the constitutionality of Chapter 31, because it said
“there is nothing in the record to suggest that the Legisla
ture had any idea that the Scotland Neck Board would
adopt a transfer plan after the enactment of Chapter 31
wrhich would have the effect of increasing the percentage
of white students” (442 F.2d at 581-582, note 3). However,
the Court of Appeals overlooked a district court finding
of fact which shows that the legislature did know of the
transfer plan:
In November 1968, a group consisting of Frank
Shields, the future chairman of the Scotland Neck
City Board of Education, C. Kitchin Josey, Henry
Harrison, and Thorne Gregory, the State representa
tive from the area, visited the Tryon City unit, at
that time the smallest school unit in the State with
823 students enrolled during the 1968-69 school year.
At that time, 974 pupils vrere attending the schools
within the corporate limits of Scotland Neck, and it
was expected that, with transfer, any new administra-
6 Children attending schools outside of the administrative unit
where they live may do so only upon the agreement of both the
unit of residence and the receiving unit. Units are permitted to
establish tuition charges for non-resident students but are not re
quired to do so. N.C. Gen. Stat. §115-163.
16
live unit would have approximately the same number
of pupils. (314 F. Supp. at 69; emphasis added.)6
Subsequently, Representative Thorne Gregory intro
duced and sponsored the bill, and served as Chairman
of the House Finance Committee which approved it
(A. 209). Since Scotland Neck had only 695 resident pupils
it was obvious that planning for about a thousand students
in the new administrative unit was based on a substantial
number of transfers. Moreover, since nearly one-half—387
of the 786— of the white pupils attending the historically
all-white school were from outside the town, it was equally
obvious that the expected transfers would increase the
percentage of white students in Scotland Neck School.7
It was only after the preliminary injunction was entered
that the Scotland Neck Board suggested some control of
its transfer policy (A. 796). But it has stubbornly refused
to give up the idea entirely. As Judge Winter observed:
“ This proposal has not yet been finally abandoned. In
oral argument before us, counsel would not tell us forth
rightly that this would not be done, but rather, equivocally
indicated that the proposal would be revived if we, or the
district court, could be persuaded to approve it.” (442 F.2d
at 592). The obvious reasons that Scotland Neck has been
6 This finding was fully supported by the record. See Depositions
of Overman (A. 299), Harrison (A. 366-67), and Shields (A. 422).
7 Aside from the many consolidations of administrative units in
North Carolina in recent years (A. 580-A. 583) ; Turner v. Warren
County Board of Education, 313 F. Supp. 380 (E.D. N.C. 1970),
there had been no new units established in North Carolina since
1953 until the post-Green 1969 Legislature created the small units
of Scotland Neck, Littleton Lake— Gaston and Warrenton (A. 584).
It is highly unlikely, therefore, that the Scotland Neck proponents
would have sought to establish the smallest unit in North Carolina,
particularly where North Carolina law allowed for the kind of
transfer plan which was established. See note 5, supra.
17
reluctant to relinquish its ability to accept transfers are
that with only 695 students it would be considerably
smaller than the smallest school district now existing in
North Carolina making it incapable of even approximating
an adequate educational program and because its bound
aries exclude nearly one-half of its traditional white
patrons.8
In addition to the transfer plan, worked out with the
Halifax Board, Scotland Neck arranged with State educa
tion officials to extend the boundaries of the unit so as to
include the grounds of part of the Scotland Neck School
campus which was on the county side of the town line.9 It
also successfully negotiated with the Halifax Board to lease
the four classroom school building located on the ten acre
site for $1.00 per year. (314 F. Supp. 70-71; A. 294).
When this case came on for hearing on the motion of the
United States for a preliminary injunction on August of
1969, the Halifax Board was planning to assign its children
by freedom of choice. The facts before the district court
were that 350 of the 387 white children wrho lived in the
county and who had attended Scotland Neck School in
1968- 69 (A. 250) had paid a deposit on their tuition to re
turn for the 1969-70 school year and that the five black
schools in the area would be at least 97.8% black. There was,
of course, no assurance that the handful of whites who had
not transferred to Scotland Neck would not do so later
(A. 522) or would show up at the black schools. The only
differences between the school boards’ proposals for the
1969- 70 school year and the situation which had existed at
the Scotland Neck School in 1968-69 were that about half
of the white children would pay tuition and the black ratio
would have increased from 19.8% to 25.9% (Maps and
8 See note 7, supra.
9 See note 2, supra.
18
Tables, Tables I and IV). The black schools would remain
all-black or virtually all-black.
6. Events Subsequent to the Preliminary Injunction
On November 24, 1969, the district court directed the
Halifax County Board of Education to submit a desegrega
tion plan on December 15 (A. 924). On that date, the Board
reluctantly submitted the State’s Interim Plan, indicating
that it knew of no better plan to disestablish the dual system.
On May 19, 1970, Judge Larkins approved the Interim
Plan and ordered that it be fully implemented by June 1,
1970.
Following the final judgment in this case enjoining Chap
ter 31, entered on May 26, 1970, the Halifax School Board
filed a motion (A. 1089) requesting that it be permitted to
implement the Interim Plan except in Scotland Neck where
it proposed to assign all town students to the Scotland Neck
School (See Map IV, Maps and Tables). Both the United
States and the private plaintiffs objected. The Government
correctly characterized the motion as an application for a
stay pending appeal (A. 1092). The Board attached a Map
(Exhibit A ) to its motion which shows what District I
would look like if both the Interim Plan and the Scotland
Neck Unit were put into effect (Map IV, Maps and Tables).
The Brawley zone would entirely encircle the Town of Scot
land Neck—like a doughnut—instead of including the Town
of Scotland Neck as would be accomplished by the Interim
Plan. Scotland Neck School would continue to serve Scot
land Neck children in grades 1 through 12. All high school
students in District I outside of the town limits would be as
signed to Brawley rather than to Scotland Neck as would
happen under the Interim Plan. The Board indicated on
the Map the number of children by race residing in each
zone as follows:
19
Pupils
Grades School White Black Total % Black
Scotland Neck Unit
1-12 Scotland Neck 399 296 695 42.6
Remainder of District I
1-12 Brawley 83 805 888 90.7
1-8 Bakers 9 357 366 97.5
1-8 Thomas Shields 85 233 318 73.2
1-8 Dawson 60 388 448 86.6
1-8 Tillery Chapel 22 211 233 90.6
Presumably these would be the assignments if the Scot
land Neck IJnit were allowed to operate but were subject
to the Court of Appeals’ injunction against permitting
transfers in or out.
20
ARGUMENT
The District Court Correctly Enjoined the Division of
Halifax County’s System into Two Separate Units Where
the Changed Boundaries Would Impede Desegregation
and Where Formerly Ignoring Such Boundaries Was
Instrumental in Promoting Segregation.
Introduction and Summary of Argument
We submit in Part I, infra, that the decision of the dis
trict court is consistent with the basic principles enun
ciated in this Court’s various school desegregation decisions
following Brown v. Board of Education, 347 U.S. 483 (1954)
{Brown 1 ) ; 349 U.S. 294 (1955) {Brown 11), including the
most recent decisions in Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1 (1971), and companion
cases. We believe that the Court of Appeals departed from
those principles in important respects. In particular, we
urge that the district court was correct in evaluating Chap
ter 31 in relation to its effect on the various desegregation
alternatives available in Halifax County. We think the
Court of Appeals erred by adopting a rule that Chapter 31
should be sustained unless plaintiffs proved that its “pri
mary purpose is to retain as much separation of the races
as possible. The Fifth Circuit has applied a correct rule
m deciding similar cases, namely, that districts engaged in
the desegregation process may not make boundary changes
which impede desegregation, particularly where such boun
daries were ignored to facilitate a dual system. See, e.g.,
Lee v. Macon County Board of Education ( Calhoun County
School System and City of Oxford School System), 448
F.2d 746 (5th Cir. 1971); Stout v. Jefferson County Board
of Education, 448 F.2d 403 (5th Cir. 1971).
21
In Part II, below, we focus on tlie facts o f Halifax County
and urge that the district court was correct in ruling that
the proposed separation of Scotland Neck does impede de
segregation, while the Court of Appeals erred by labeling
the change “minimal” and “hardly substantial” in its im
pact on the desegregation process. We show that the dual
system in Halifax County was long sustained and facilitated
by ignoring boundaries of the kind now erected to maintain
Scotland Neck School as a majority white school while
nearby Brawley and four other black schools will be main
tained as black institutions. The proposed separation of
Scotland Neck is in conflict with the requirement that “ school
authorities should make every effort to achieve the greatest
possible degree of actual desegregation” (Swann v. Board
of Education, 402 U.S. 1, 26 (1971); Davis v. Board of
School Commissioners, 402 U.S. 33, 37 (1971)), and impedes
the use of conventional desegregation techniques, e.g., the
“pairing” of nearby schools (Swann, supra at 27); see also
North Carolina State Board of Education v. Swann, 402
U.S. 43 (1971). While no particular degree or percentage
of racial balancing is required by the Constitution, the
shifting percentages caused by the separation of Scotland
Neck would continue existing all-black schools and schools
that are “ substantially disproportionate in their racial com
position” (Swann, supra, 402 U.S. 1, 26).
22
I.
The District Court Correctly Evaluated the Proposed
Scotland Neck Secession in Terms of Its Effectiveness
in Dismantling School Segregation in Eastern Halifax
County.
The district court had the crucial responsibility to see to
it that all vestiges of state imposed segregation in Halifax
County be eliminated forthwith. Brown v. Board of Edu
cation, 347 U.S. 483 (1954); 349 U.S. 294 (1955); Green v.
County School Board of New Kent County, 391 U.S. 403
(1968); Raney v. Board of Education, 391 U.S. 443 (1968);
Monroe v. Board of Commissioners, 391 U.S. 450 (1968);
Alexander v. Holmes County Board of Education, 396 U.S.
19 (1969); Carter v. West Feliciana Parish School Board,
396 U.S. 290 (1970); Swann v. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 (1971); Davis v. Board of School
Commissioners of Mobile County, 402 U.S. 33 (1971). It is
beyond question that a typical pattern of a racially segre
gated dual school system which had been erected pursuant
to the Constitution and laws of the State of North Carolina,
continued to exist in rural Halifax County almost undis
turbed when this case came before the district court in
August and December of 1969. See Part II, infra. In this
case the district court thought that its duty “under this
Court’s mandate to eliminate racially separate public
schools established and maintained by state action” {Swann,
supra, 402 U.S. 1, 5), was to compare the proposed seces
sion of Scotland Neck from Halifax County with other pro
posals in terms of their relative effectiveness in dismantling
school segregation root and branch. Green v. Cou/nty School
Board of New Kent County, 391 U.S. 403 (1968). Applying
this standard, the district judges found that the operation of
the new school unit would impede rather than further de
23
segregation. The court therefore enjoined its operation and
ordered the Halifax County Board to implement the more
effective plan which had been proposed by North Carolina’s
Department of Public Instruction.
We think that this approach was entirely consistent with
this Court’s school desegregation decisions. The novelty of
a state law changing a district’s boundaries in the face of
desegregation does not avert Brown’s basic thrust. Brown
II envisioned that the equitable power of the district courts
ought to be addressed to revision of “ school districts” as
well as individual schools and attendance areas. This was
assumed by the Court in enumerating factors that might
justify delay in immediate desegregation:
To that end the courts may consider problems related
to administration, arising from the physical condition
of the school plant, the school transportation system,
personnel, revision of school districts and attendance
areas into compact units to achieve a system of deter
mining admission to the public schools on a nonracial
basis, and revision of local laws and regulations which
may be necessary in solving the foregoing problems.
(349 U.S. at 300-301; emphasis added.)
In declaring segregation unconstitutional; the Court made
plain that “all provisions of federal, state, or local law-
requiring or permitting such discrimination must yield
to this principle” (Brown II, supra, 349 U.S. at 298).
Cf. Gomillion v. Lightfoot, 364 U.S. 339 (1960).
The Court announced in Green and reaffirmed in Swann
that a “ school authority’s remedial plan or a district
court’s remedial decree is to be judged by its effectiveness.”
402 U.S. 1, at 25. Green said that school boards had “the
affirmative duty to take whatever steps might be necessary
to convert to a unitary system in which racial discrimina
24
tion would be eliminated root and branch.” 391 U.S. at
437-438. Swann articulated further guidelines including,
inter alia, the requirement that district judges and school
authorities “make every effort to achieve the greatest
possible degree of actual desegregation” ; the articulation
of “a presumption against schools that are substantially
disproportionate in their racial composition” with the
burden on school authorities to justify any one-race schools
as not resulting from past discriminatory action; and the
endorsement of the use of drastically altered attendance
zones, and techniques of pairing and non-contiguous zoning
to dismantle segregated systems. 402 U.S. at 26-28. See
also Davis v. School Commissioners of Motile County, 402
U.S. 33, 37 (1971). Moreover, the Court made it clear
that assignment plans are “not acceptable simply be
cause . . . [they appear] to be neutral” if they fail to
counteract the continuing effects of past discrimination.
402 U.S. at 28.
Swann also reflected the Court’s understanding of the
manifold means by which school authorities control the
racial composition of schools, noting the great influence
exerted by decisions about school location and construc
tion, and requiring that Court’s look to the future to pre
vent such decisions from being used to perpetuate or
reestablish dual systems. 402 U.S. at 20-21. Finally,
Swann reemphasized the broad remedial discretion of the
district judges where school authorities have defaulted
in their constitutional obligation to provide a racially non-
discriminatory system of public schools. 402 U.S. at 15-18,
25, 28, 31.
As previously mentioned the district court concluded
that Chapter 31 “was enacted with the effect of creating
a refuge for white students of the Halifax County School
system, and interferes with the desegregation of the Hali-
25
fax County School system, in accord with the plan adopted
by said Board to be implemented on or before June 1,
1970.” 314 F. Supp. at 78. This conclusion, buttressed by
detailed fact-findings, supported the decision to enjoin
Chapter 31 as an interference with the best available
desegregation plan and is in accord with Green and Swann.
The Court of Appeals took a very different approach.
It began by assuming that the withdrawal of a small area
in the middle of the eastern portion of Halifax County
at a time when the Halifax School Board was under an
immediate duty to produce and implement an effective
school desegregation plan was to be viewed as a normal
creation of a political entity by the State of North Carolina:
Appellees urge in their brief that conceptually the
way to analyze this case is to “view the results of
severance as if it were part of a desegregation plan
for the original system.” We do not agree. The
severance was not part of a desegregation plan pro
posed by the school board but was instead an action
by the Legislature redefining the boundaries of local
governmental units. 442 F.2d at 382-83.10
Rejecting the standard of Green requiring the selection
of the most effective plan, the Court of Appeals designed
the “primary purpose” test to determine whether the new
school unit would violate the Fourteenth Amendment.
If the creation of a new school district is designed
to further the aim of providing quality education and
10 The court went on to assume “For the sake of argument that
appellees’ method of analysis is correct” and concluded “that the
severance of Scotland Neck students would withstand constitu
tional challenges.” 442 F.2d at 583. In our next argument (II),
we demonstrate why the district court was correct in its determi
nation that the new unit would impermissibly impede desegregation
in Halifax County.
2 6
is attended secondarily by a modification of the racial
balance, short of resegregation, the federal courts
should not interfere. If, however, the primary purpose
for creating a new school district is to retain as much
of separation of the races as possible, the state has
violated its affirmative constitutional duty to end state
supported school segregation. The test is much easier
to state than it is to apply.
Wright v. Council of City of Emporia, 442 F.2d 570, 572
(4th Cir. 1971).11 In applying this test to Scotland Neck,
the majority of the Court of Appeals concluded that “ The
purpose of Chapter 31 was not to invidiously discriminate
against black students in Halifax County . . ” (442 F.2d
at 582). We agree with the dissenting judges below that
even if the primary purpose test were appropriate, the
record here decisively reveals an overriding motive of
segregation.12 However, the analysis employed by the
11 The rule which applied to the three cases which were decided
together (Emporia, Scotland Neck and Turner v. Littleton-Lake
Gaston School District, 442 F.2d 584 (4th Cir. 1971), was most
fully discussed in Emporia.
12 Judge Sobeloff applied the majority’s test (442 F.2d at 598-60)
and came to the “conclusion that race was the dominant considera
tion and that the goal was to achieve a degree of racial apartheid
more congenial to the white community.” 442 F.2d at 600. Judge
Winter also reviewed the facts, 442 F.2d at 591-92, and reached
the same result. “ On the facts I cannot find the citizens of Scotland
Neck motivated by the benign purpose of providing additional
funds for their schools; patently they seek to blunt the mandate
of Brown.” 442 F.2d at 592. We would only add a brief discussion
of two matters to what Judges Sobeloff and Winter have said.
Judge Craven found for the majority that the unconstitutional
transfer plan did not affect the constitutional validity of Chapter
31 (442 F.2d at n. 3, 581-82) even though a similar plan was
relevant m determining the constitutional invalidity of the new
district in Littlet on-Lake Gaston (442 F.2d n. 2, 587) because the
legislature did not know of the proposed transfer plan for Scot
land Neck but did for Littleton-Lake Gaston. Judges Sobeloff and
Winter convincingly found the transfer plan very relevant to the
27
Court of Appeals is considerably more pernicious in terms
of the future course of school desegregation than in its
application to a particular case.13
The “primary purpose” doctrine is a dangerous departure
from the firmly established principles worked out by this
Court and lower courts since Brown to ensure that all the
interlacing laws, practices and customs which have sup
issue of purpose. 442 F.2d at 591-92; 442 F.2d 598-99. What is
conclusive, however, is the district court’s specific finding based
on substantial evidence that Representative Gregory, who intro
duced and shepherded Chapter 31 through the State House, had
full knowledge of the transfer plan. See p. 15, supra. Moreover,
the law did not take effect until after a vote of the residents of
Scotland Neck where the issue was supported by the same people
who sought its passage in the legislature and who established the
transfer plan immediately after its implementation. Finally, the
transfer plan was readily foreseeable since it was permissible under
state law. See note 5, supra.
Second, Judge Craven in finding the selection of the town boun
daries to he a “ natural geographic boundary” and seeing “no indi
cation that the geographic boundaries were drawn to include white
students and exclude black students . . .” 442 F.2d at 582, thought
that this pointed towards a benign purpose. We dispute both asser
tions. We know of nothing “natural” about the political boundaries
of a town. See pp. 39-40, infra. And we think that the selection
of Scotland Neck, which is the only area of eastern Halifax County
which has a majority white student population, raises an inference
of racial motive. Map IV, Maps and Tables; see pp. 39-40, infra.
13 Judge Sobeloff observed: “ I find no precedent for this test
and it is neither broad enough nor rigorous enough to fulfill the
Constitution’s mandate. Moreover, it cannot succeed in attaining
even its intended reach, since resistant white enclaves wall quickly
learn how to structure a proper record—shrill with protestations
of good intent, all considerations of race muted beyond range of
the court’s ears.” 442 F.2d at 594. The doctrine will trap federal
courts “ in a quagmire of litigation. The doctrine formulated by
the court is ill-conceived and surely will impede and frustrate
prospects for successful desegregation. Whites in counties heavily
populated by blacks will be encouraged to set up, under one guise
or another, independent school districts in areas that are or can be
made predominantly white.” 442 F.2d at 600. See also, Brief for
Petitioners, Wright v. Council of City of Emporia, No. 70-188,
pp. 37-46.
ported dual school systems are dismantled and abolished.
It is fundamentally wrong, therefore, to say as the Court
of Appeals has said, that an act of the legislature aimed at
altering the structure of a single school system amidst a
desegregation controversy is to be judged by its “primary
purpose” and not by its effect on the desegregation in the
locality. It was error to require that plaintiffs prove the
“primary purpose” to segregate where they have shown
that the effect of the law impedes desegregation.
It was recognized by this Court from the start that school
segregation is the product of a whole battery of devices
rooted in state action. A variety of schemes and arrange
ments have cropped up over the years which served to with
hold the promise of Brown. The Court has rejected time
and again claims that the action of one state official or
agency or another has some kind of insulation from judicial
scrutiny. This has been so because:
In short, the constitutional rights of children not to be
discriminated against in school admission on grounds
of race or color declared by this Court in the Brown
case can neither be nullified openly and directly by state
legislators or state executive or judicial officers, nor
nullified indirectly by them through evasive schemes for
segregation whether attempted “ingeniously or in
genuously.”
Cooper v. Aaron, 358 U.S. 1, 17 (1958). See also, Bush v.
Orleans Parish School Board, 190 F. Supp. 861 (E.D. La.
1960), aff’d sub nom. City of New Orleans v. Bush, 366 U.S.
212 (1961); Griffin v. School Board, 377 U.S. 218 (1964);
and see the authorities collected in Judge Sobeloff’s dissent
below, 442 F.2d at 593-594, nn. 1, 2, 3, 4 and 5. See also cases
invalidating a host of private school tuition grant schemes
infra, Part II, note 26.
29
The Court of Appeals acknowledged in the Emporia case
that the device of carving up school districts into a number
of separate units posed a “ serious danger” of obstructing
desegregation. Wright v. Council of City of Emporia, 442
F.2d 570, 572 (4th Cir. 1971). This danger has been clearly
perceived and decisively dealt with by the lower federal
courts. It is very significant that every such attempted
secession which we have found reported in the lower federal
courts—with the sole exception of the Scotland Neck and
Emporia cases—has resulted in a decision disapproving
such secessions as unconstitutional evasions of Brown.
Lee v. Macon County Board of Education (Calhoun County
School System and, City of Oxford School System), 448
F.2d 746 (5th Cir. 1971); Stout v. Jefferson County Board of
Education, 448 F.2d 403 (5th Cir. 1972); Burleson v. County
Board of Election Commissioners of Jefferson County, 308
F. Supp. 352 (E.D. Ark. 1970), affirmed, 432 F.2d 1356 (8th
Cir. 1970); Turner v. Warren County Board of Education,
313 F. Supp. 380 (E.D. N.C. 1970), affirmed sub nom. Turner
v. Littleton-Lake Gaston School District, 442 F.2d 584 (4th
Cir. 1971); Aytch v. Mitchell, 320 F. Supp. 1372 (E.D. Ark.
1971); cf. Jenkins v. Toivnship of Morris School Dist., 58
N.J. 483, 279 A.2d 619 (1971). In each of these cases an
attempted secession was struck down as an interference with
desegregation.
Similarly, in a long series of cases where existing school
districts have been established on a racially segregated
basis, the courts have ordered desegregation plans which
effectively merged racially separate districts. Haney v.
County Board of Education of Sevier County, 410 F.2d 920
(8th Cir. 1969); United States v. Texas, 321 F. Supp. 1043
(E.D. Tex. 1970), affirmed, 447 F.2d 441 (5th Cir. 1971);
Evans v. Buchanan, 207 F. Supp. 820, 825 (D. Del. 1962);
Sloan v. Tenth School District of Wilson County, Tenn.,
30
433 F.2d 587, 588 (6th Cir. 1970) (mentioning prior pro
ceedings involving merger of three overlapping districts);
United States v. Bright Star School District # 6 , nnreported,
W.D. Ark. No. T-69-C-24, April 15, 1970; United States v.
Crockett County Board of Education, nnreported, W.D.
Tenn., C.A. No. 1663, May 15, 1967.
The two recent Fifth Circuit decisions in Lee and Stout,
both decided since this Court’s decisions in Swann and com
panion cases provide the approach which we believe should
be used in deciding such controversies. The decision in
Stout, supra, by a unanimous panel of Judges Thornberry,
Clark and Ingraham, held that splinter school districts,
albeit valid under state law, need not be recognized where
they thwart implementation of a unitary school system. The
court relied upon this Court’s decision striking down the
North Carolina Anti-Bussing statute, North Carolina State
Board of Education v. Swann, 402 U.S. 43, 45 (1971), quot
ing the following language from that opinion by the Chief
Justice:
.. . [I ] f a state-imposed limitation on a school author
ity’s discretion operates to inhibit or obstruct the
operation of a unitary school system or impede the
disestablishing of a dual school system,, it must fall;
state policy must give way when it operates to hinder
vindication of federal constitutional guarantees.
Stout v. Jefferson County Board of Education, 448 F.2d
403, 404 (5th Cir. 1971).
The opinion in Lee, supra, by Judge Wisdom (joined
by Judge Simpson, as on this issue by Judge Coleman)
held that in confronting the secession of the City of Oxford
school system from the Calhoun County system the district
court properly treated the two systems as one for the
31
purpose of developing a desegregation plan. Judge
Wisdom wrote in Lee, 448 F.2d at 752:
For purposes of relief, the district court treated
the Calhoun County and Oxford City systems as one.
We hold that the district court’s approach was fully
within its judicial discretion and was the proper way
to handle the problem raised by Oxford’s reinstitution
of a separate city school system. The City’s action
removing its schools from the county system took
place while the city schools, through the county board,
were under court order to establish a unitary school
system. The city cannot secede from the county where
the effect—to say nothing of the purpose—of the
secession has a substantial adverse effect on desegre
gation of the county school district. If this were
legally permissible, there could be incorporated towns
for every white neighborhood in every city. [Citations
omitted] . . . Even historically separate school dis
tricts, where shown to be created as a part of a state
wide dual school system or to have cooperated to
gether in the maintenance of such a system, have been
treated as one for purposes of desegregation. [Cita
tions omitted] . . .
School district lines within a state are matters of
political convenience. It is unnecessary to decide
whether long-established and racially untainted bound
aries may be disregarded in dismantling school segre
gation. New boundaries cannot be drawn where they
would result in less desegregation when formerly the
lack of a boundary was instrumental in promoting
segregation. Cf. Henry v. Clarksdale Municipal
Separate School District, 5 Cir. 1969, 409 F.2d 683,
688, n. 10.
32
We believe that Judge Wisdom’s formulation provides
a principle for decision consistent with the case law
developed in this Court from Brown to Swann and capable
of coping with a potentially widespread new pattern of
evasion, the “ incorporated town for every white neigh
borhood.” The courts below in this case wrote without
benefit of this Court’s opinion in Swann, but nevertheless
Judge Winter’s dissent (joined by Judge Sobeloff) reached
a formulation based on Green that is similarly satisfactory:
Given the application of the Green rationale, the
remaining task in each of these cases is to discern
whether the proposed subdivision will have negative
effects on the integration process in each area, and,
if so, whether its advocates have borne the “heavy
burden” of persuasion imposed by Green. (442 F.2d
at 589).
Judge Sobeloff’s dissenting opinion stated that the test
for any such secession was whether it served a “compelling
and overriding” state interest:
If challenged state action has a racially discriminatory
effect, it violates the equal protection clause unless
a compelling and overriding legitimate state interest
is demonstrated. This test is more easily applied,
more fully implements the prohibition of the Four
teenth Amendment and has already gained firm root
in the law. (442 F.2d at 595).
Of course Judges Sobeloff and Winter did not have the
benefit of Swann’s statement that in traditionally dual
systems there is a “presumption against schools that are
substantially disproportionate in their racial composition”
(402 U.S. at 26), and the holding that all proposals con
templating disproportionate schools should be scrutinized
“to satisfy the court that their racial composition is not
the result of present or past discriminatory action . .
(402 U.S. at 26).
Whatever verbal formulation is used to state the test,
we think the Fourth Circuit’s emphasis on the requirement
that plaintiffs show a legislative motivation to promote
segregation is basically inconsistent with effective imple
mentation of Brown in the face of determined tactics of
resistance and evasion. The response by all of the other
federal courts which have faced the secession tactic points
the way to full realization of the right to a racially non-
discriminatory public education.
II.
The Separation of Scotland Neck From the Halifax
County School System Impedes Desegregation of the
Schools Involved.
An analysis of the facts in this case demonstrates the
correctness of the district court’s ruling that the proposed
secession would impede desegregation and the error of
the court of appeals in labeling the change “hardly sub
stantial” and “minimal” . The application of the legal prin
ciples discussed in part I can best be understood by
considering the facts with respect to: (1) the pattern of
operation under the dual system, (2) the interim desegre
gation plan proposed by the state survey committee, and
(3) the pattern which would have developed with Scotland
Neck as a separate system, either with or without the
interdistrict transfers.
A. Organization of the Dual System in Scotland Neck Area.
The eastern part of Halifax County around the town of
Scotland Neck had a classic dual segregated system.
34
Scotland Neck School served all-white children for miles
around in grades 1-12.14 Five Black schools served the
same region in a separate system for blacks. Brawley
School (1-12)—less than a mile from Scotland Neck—
served the same region with a high school zone entirely
overlapping Scotland Neck’s and partially overlapping its
elementary zone (A. 273-276; 149). The other four black
schools (Bakers, Tillery Chapel, Dawson and Thomas
Shields) overlapped the balance of Scotland Neck’s ele
mentary attendance area. The black majority had “neigh
borhood” elementary schools while the white minority was
bused to a regional elementary school at Scotland Neck
(A. 273-276).
Under the dual system the boundary of the town of Scot
land Neck had no significance whatsoever in the assignment
of pupils. White pupils in the county came to town to at
tend Scotland Neck (A. 250), and black pupils living in
town went to Brawley which was located just outside the
city limits on the town’s eastern boundary (A. 273-276). In
1960 an addition to Scotland Neck School—the four-class
room junior high site—was built outside the town limits in
the county. Scotland Neck School was expanded period
ically15 to its present capacity of 1,000 students in order to
serve the white population of the eastern end of the county,
a larger population than the 695 resident pupils of the
town. Similarly the establishment of Brawley16 as a sep
arate school for blacks just a short distance away on the
14 The nearest white school was Enfield, about 16 miles from
Scotland Neck.
16 Scotland Neck was built in 1903, with classroom additions and
improvements in 1923, 1939, 1949, 1954 and 1960. (A. 667-A. 668)
16 Brawley was built in 1926 with classroom additions and im
provements in 1937, 1942, 1951, 1955, 1960 and 1968. (A. 652-
A .653)
35
town boundary (A. 233) was premised on using it to serve
all blacks in the region—both within and without the City
limits.
Under the dual system the Halifax County Board had a
variety of arrangements ignoring even the boundaries with
neighboring school administrative units where convenient
or necessary to serve the ends of segregation. For example,
Indian students were sent to the Haliwa School in the next
county, Warren County; many black students were sent to
Chaloner School in the Roanoke Rapids City system ; and
white pupils were sent to Littleton School in Warren County
(A. 221). Similar arrangements brought pupils from other
districts into the Halifax system to attend segregated
schools. The footnote below details this widespread pat
tern of ignoring and crossing over school unit boundaries
to implement segregation.17 When the arrangement sending
black children to Chaloner School located in the Roanoke
Rapids system was challenged by the Department of Health,
Education, and Welfare, the Halifax Board leased Chaloner
from Roanoke Rapids arid continued the black children in
17 (A. 221) ; Answer to interrogatory 3(d) (A. 859-860) :
A pproxim ate N um ber o f Students W ho Reside
W ithin the Unit hut W ho A tten d
School Outside o f the Unit
N o. o f Pupils School Unit School and School Unit
Y ear by Race o f Residence A tten d ed
1964-65 220 (Indian) Halifax County Haliwa-Warren County
160 (W hite) Halifax County Littleton-Warren County
800 (Negro) Halifax County Chaloner-Boanoke Bapids City
1965-66 220 (Indian) Halifax County Haliwa-Warren County
155 (W hite) Halifax County Littleton-Warren County
790 (Negro) Halifax County Chaloner-Boanoke Bapids City
1966-67 215 (Indian) Halifax County Haliwa-Warren County
155 (W hite) Halifax County Littleton-Warren County
1967-68 150 (Indian) Halifax County Haliwa-Warren County
150 (W hite) Halifax County Littleton-Warren County
1968-69 140 (Indian) Halifax County Haliwa-Warren County
150 (White) Halifax County Littleton-Warren County
1969-70 75 (W hite) Halifax County Littleton-Warren County
36
the same building which thus became a part of the Halifax
system even though it was located within the City of Roa
noke Rapids.18 In sum, the Halifax Board, like many other
dual school systems,19 freely ignored not only the boundaries
of the town of Scotland Neck—which were never considered
A pproxim ate N um ber o f Students W ho R eside
Outside o f the H alifax County School A dm inistrative
Unit and A tten d School W ithin the Unit
N o. o f Pupils School Unit School
T ear by P ace o f R esidence A tten d ed
1964-65 75 (white) Roanoke Rapids City Wm. R. Davie
40 (Negro) Martin County Thomas Shields
20 (Negro) Martin County Brawley
10 (white) Martin County Hobgood
4 (white) Martin County Scotland Neck
1965-66 75 (white) Roanoke Rapids City Wm. R. Davie
30 (Negro) Martin County Thomas Shields
10 (Negro) Martin County Brawley
5 (white) Martin County Scotland Neck
1966-67 75 (-white) Roanoke Rapids City Wm. R. Davie
10 (Negro) Martin County Thomas Shields
5 (Negro) Martin County Brawley
7 (white) Martin County Scotland Neck
1967-68 75 (white) Roanoke Rapids City Wm. R. Davie
10 (Negro) Martin County Thomas Shields
5 (Negro) Martin County Brawley
7 (white) Martin County Scotland Neck
1968-69 75 (white) Roanoke Rapids City Wm. R. Davie
10 (Negro) Martin County Thomas Shields
5 (Negro) Martin County Brawley
1969-70 75 (white) Roanoke Rapids City Wm. R. Davie
18 A. 821 and A. 860-861; Answers to Interrogatories 2 and 3(d).
19 The following are some of the reported cases involving sending
black pupils to adjacent county school systems in order to promote
racial segregation: Griffin v. Board of Education of Yancey County,
186 F. Supp. 511 (W.D.N.C. 1960) ; School Board of Warren
County, Ya. v. Kilby, 259 F.2d 497 (4th Cir. 1958) ; Goins v.
County School Board of Grayson County, Va., 186 F. Supp. 753
(W.D. Ya. 1960), stay denied, 282 F.2d 343 (4th Cir. 1960) ; Corbin
v. County School Board of Pulaski County, Va., 177 F.2d 924 (4th
Cir. 1949); Crisp v. County School Board of Pulaski County, Va.
(W.D. Va. 1960), 5 Race Rel. L. Rep. 721; Buckner v. County
School Board of Greene County, 332 F.2d 452 (4th Cir. 1964) ;
Walker v. County School Board of Floyd County, Va. (W.D. Va.
1960), 5 Race Rel. L. Rep. 714. Cf. Missouri ex rel. Gaines v.
Canada, 305 U.S. 337 (1938).
37
relevant to school assignments—hut also the boundaries of
its own school district in order to promote and facilitate the
dual system.
The adoption of a freedom of choice plan had a negligible
impact on the dual pattern developed under state law. Judge
Larkins found:
“The county maintained the freedom-of-choiee assign
ment plan for the next three years during which a few
black students attended formerly all-white schools and
no white students attended formerly all-black schools.
For example, during the 1967-68 school year, all of the
white students and 97% of the black students attended
schools previously maintained for their own races. In
that year, 10 of the 450 teachers in 18 schools were as
signed across racial lines. About 35 black students
attended the Scotland Neck schools during the 1967-68
school year.” (314 F. Supp. at 67.)
In the eastern area of the county five schools remained all
black under the free choice plan.20 The result of “ Freedom
of Choice” at Scotland Neck and Brawley, both serving
grades 1-12, less than a mile apart, directly parallels the
situation of the Field and Gould Schools in Raney v. Board
of Education, 391 IT.S. 443, 445 (1968). See also the New
Kent and Watkins schools in Green, supra, 391 II.S. at 441-
442 (1968).
20 The intermediate desegregation arrangement negotiated by the
Department of Justice for 1969-70 eliminated the dual pattern for
a few classes of black 7th and 8th graders who were transferred
en masse to white schools.
38
B. The Interim Plan.
The interim plan developed by the state survey committee
approached the problem of establishing a unitary system by
using the simplest of techniques, ordinary geographic zon
ing, to eliminate the dual pattern. Scotland Neck and
Brawley would continue to serve the entire eastern region,
but Scotland Neck was made the high school (10-12) and
Brawley would serve grades 8-9.21 Elementary children
in the immediate environs of both schools would go to
Brawley, with the Scotland Neck Junior High site used for
certain elementary grades. The other four elementary
schools in the district were also given geographic zones.
■Some measure of integration would be achieved at each
school by this simple zoning technique (Table II, Maps and
Tables). The white minority in the District I area (21%)
would be somewhat, concentrated in Scotland Neck (33.6%
white) and Brawley (30.8% white) reflecting the population
distribution at the elementary level. But at least Brawley
would be desegregated for the first time and all pupils in
grades 8-12 (or 9-12) would attend schools which reflected
the racial composition of the eastern region of the county.
The other four black elementary schools would also be de
segregated for the first time with white populations reflect
ing those areas and ranging from 1.5% to 16.6%. (See Table
II, Maps and Tables.) In sum, the state survey committee
recommended an interim plan based on conventional geo
graphic attendance zones by which there would be essentially
as much school desegregation as there was residential inte
gration in the area.
21 The interim plan proposed that the elementary schools serve
grades 1-7 (A. 606). For some reason the December, 1968 projec
tions by the Halifax Board show grades 1-8 at these schools (A.
681-682), and this is the grade structure actually put into effect,
e.g., 1-8 at elementary schools, grade 9 at Brawley, and grades
10-12 at Scotland Neck.
39
The Halifax County School Board refused to accept this
interim desegregation plan. Instead, the County Board of
fered more freedom of choice, while the white citizens of
Scotland Neck and local white political leaders pushed
through arrangements for the separate system in Scotland
Neck over the opposition of the black community.
C. The Assignment Pattern If Scotland Neck Secedes; the
Doughnut-Shaped Zone for Brawley.
The sudden designation of the town limits of Scotland
Neck as the attendance boundary for Scotland Neck School,
as we have noted, broke all precedent insofar as pupil
assignments in the county were concerned.32 The town
boundary is in no sense a “natural boundary” although the
opinion below inexplicably uses that phrase. The boundary
is precisely a political and not a natural or geographic
line following notable features of terrain or the like.28
Maps show that the town line (developed by various
annexations) follows a meandering cause with more than
twenty sides not far different in character from the “un
couth twenty-eight-sided figure” involved in Gomillion v.
Lightfoot, 364 U.S. 339, 340 (1960). The Scotland Neck
town limits are not drawn so as to exclude all blacks since
the town has about 42.6% black pupils, but the limits
do include so large a proportion of the whites in the area
that the town is substantially “whiter” in population than
the surrounding township. (See the attendance projections
for Brawley and Scotland Neck; Map IV, Table III, Maps 22 23 * *
22 By creating the state’s smallest district, and the first new
district since 1953, Chapter 31 also broke precedent and reversed
the trend of consolidating small districts. See note 7, supra.
23 In Davis v. School Commissioners of Mobile County, 402 U.S.
33, 36, 38 (1971), the Court ordered consideration of assignments
across a major man-made barrier, a highway dividing the east and
west parts of the district.
40
and Tables.) We note that a separate school system for
Scotland Neck plus four surrounding townships which was
proposed and defeated in 1965 (during the freedom of
choice era) would not have had a white majority.24
The secession of Scotland Neck school effectively im
poses on the county a peculiar zone for Brawley which
must then serve elementary pupils on all sides of the town.
The peculiar looking doughnut shaped zone for Brawley—
with the town as the “hole”—which is created by carving
the town out of the county system is the most flagrant
kind of gerrymander. Yet, the Halifax County Board has
no practical choice but to use some variation of this
“doughnut” to serve as an elementary zone for those
pupils living around the immediate environs of the town
if the secession is permitted to proceed. (See Map IY,
Maps and Tables.)
The new town school unit impedes desegregation and has
“negative effects,” to borrow Judge Winter’s phrase, in a
number of different ways. The effects are negative if the
facts are analyzed either in terms of the impact on the
remaining county school system as a whole, or the impact
on Brawley and the other four black schools in the eastern
end of the county.
24 U.S. Bureau of the Census, U.S. Census of Population: 1970
General P opulation C h aracteristics , North Carolina, pp. 35-116:
Total White Negro Other
Conoconnara Twp. 1,006 186 820 —
Palmyra Twp. 1,546 631 914 1
Roseneath Twp. 1,104 338 766 -
Scotland Neck Twp. 5,013 2,208 2,804 1
8,669 3,363 5,304 2
(The Scotland Neck Township total included 2,869 persons in
Scotland Neck Town.)
41
The lower courts focused discussion on the effect of the
secession on the racial percentages in the entire county
system. Judge Sobeloff described it this way:
“ The challenged legislation carves an enclave, 57 %
white and 43% black, from a previously 22% white
and 77% black school system. No compelling or over
riding state interest justifies the new district, and its
formation has a racially discriminatory effect by allow
ing the white residents of Scotland Neck to shift their
children from a school district where they are part of
a 22% minority to one where they constitute a 57%
majority” (442 F.2d at 597: footnote omitted).
Considering the same facts Judge Winter said: “ The
difference between the percentage of white students within
the existing system and the newly-created one for Scotland
Neck is thus 35%. A more flagrant example of the creation
of a white haven, would be difficult to imagine” (442 F.2d
at 591). By contrast, the opinion of the majority below,
characterized the white majority in the town schools as
“not large” and focused on the fact that removing the
Scotland Neck pupils from the county changed the black
percentage in the county “only 3 percent” from 77% to
80%. We think that the conclusion by the trial court and
by the dissenting appeals judges that these statistics show
a substantial impediment to desegregation is far more
persuasive than the opposing view adopted below. The
Court of Appeals majority did not have the benefit of this
Court’s decision in Swann when it wrote its decision. The
court below reasoned that where the creation of new units
“is designed to further the aim of providing quality educa
tion and is attended secondarily by a modification of the
racial balance, short of resegregation, the federal courts
should not interfere” Wright v. Council of City of
42
Emporia, 442 F.2d 570, 572 (4th Cir. 1971) (emphasis
added). We think this notion that only effective “resegre
gation” is to be condemned completely misses the mark
under Swann. Swann requires “the greatest possible
degree of actual desegregation,” and a presumption against
one-race schools and other schools “ substantially dispro
portionate in their racial composition.” 402 TJ.S. at 26.
Swann gives the district courts discretion to prevent con
struction and site selection decisions that will even tend to
interfere with the elimination of, or threaten to reestablish,
segregation. 402 U.S. at 20-21. The district courts need not
withhold action against such a threat until resegregation
is an accomplished fact. The Court of Appeals has ap
proved the creation of a system in Scotland Neck which
is substantially disproportionate from the surrounding
county. Indeed, as we discuss further below, it is also
substantially disproportionate with the immediate environs
of Scotland Neck and the east end of the county.
The Court of Appeals also suggested that the secession
was justified by the fact that the one school within the
town would be “integrated” in accord with the town’s
population. 442 F.2d at 582. In dealing with the neighbor
hood school concept Swann makes it clear that some
“racially neutral” assignment plans may be inadequate
to “ counteract the continuing effects of past school segrega
tion resulting from discriminatory location of school sites
or distortion of school size in order to achieve or maintain
an artificial racial separation,” Swann, 402 U.S. at 28.
As Judge Wisdom wrote in a famous voting discrimination
case, “The promise of evenhanded justice in the future
does not bind our hands in undoing past injustices” United
States v. Louisiana, 225 F.Supp. 353, 396 (E.D. La, 1963),
affirmed 380 U.S. 145 (1965).
43
D. The Effect of Secession on Brawley and District I.
We believe that a better understanding of what is ac
complished by the secession of Scotland Neck is achieved
by focusing on Scotland Neck and Brawley schools and on
the other four black schools which make up District I in the
east end of Halifax County. It is in this area that Chapter
31 had its major impact. The more distant areas of Halifax
County are obviously not nearly so much affected as the
area near Scotland Neck. The following chart shows the
impact of Chapter 31 on the two schools most directly
involved:
Scotland N eck School B raw ley School
% % % %
W hite W hite Black B lack W h ite W hite B lack B lack
1968-69
(after transfer
o f grades 7
and 8 from
Brawley to
Scotland
Neck)
786 80.3% 193 19.7% 0 0 1,106 100.0%
1969-70
(Proposed)
a) Plan pre
pared by
State Staff 325 33.7% 640 66.3% 330 30.8% 740 69.2%
b) I f Chap
ter 31
were im
plemented 399 57.4% 296 42.6% 83 9.3% 805 90.7%
As Judge Winter noted, “ local legislation is enacted as a
result of local desire and pressure” (442 F.2d at 589). The
local initiative in this case came from whites in Scotland
Neck, in an attempt to keep their white school as white as
possible. Under freedom of choice, only a handful of the
students in their school were black. When the Justice De
partment insisted upon some desegregation progress for
the 1968-69 school year, the County School Board moved
the 7th and 8th grades from Brawley to Scotland Neck,
raising the black enrollment to 19.7%. The complete de
44
segregation plan drawn by state educational officials and
accepted by the Justice Department would have increased
the black population at Scotland Neck to 66.3%. It would
also have assigned whites to Brawley for the first time, re
ducing the black enrollment to 69.2%.
With the creation of a new district, the Scotland Neck
School would remain majority white. Instead of a 66%
black majority under the state plan, it would have a 57%
white majority and the number of white students assigned
to Brawley would be reduced from 330 to 83.
These population shifts are substantial by any test:
(1) the secession reduces Scotland Neck’s black population
by 24 percentage points and increases the white population
a like amount (from 33.7% W-69.2% B to 57.4% W-42.6%
B ); (2) the secession reduces Brawley’s white population
by 21.5 percentage points and increases the black popula
tion a like amount (from 30.8% W-69.2% B to 9.3% W-
90.7% B). These changes would make both Brawley and
Scotland Neck substantially racially disproportionate.
Swann, supra, 402 TJ.S. at 26. The pupil population in Dis
trict I—the entire eastern region has ranged from 76%-
79% black in recent years (see Table III, Maps and Tables).
The combined populations of the Scotland Neck Unit (the
town) and the Brawley zone surrounding it are about 69.5%
black (Table III). Obviously creating a 90.7% black Braw
ley perpetuates its racial identification and it is entirely
unjustifiable to reject the state interim plan which would
make Brawley 69.2% black, an enrollment much more nearly
conforming to the demography of the area.
A similar plain pattern emerges when figures for Dis
trict I as a whole are analyzed (see Tables III and IY, Maps
and Tables):
45
(June 1970) % White % Blach
(1) Interim Plan:
.District I 22.3% 77.6%
(2) I f Chapter 31 implemented:
(a) Scotland Neck School 57.4% 42.6%
(b) Rest of District I 14.6% 85.4%
The very considerable racial concentrations and racial dis
proportions which wonld be created by the implementation
of Chapter 31 are plainly inconsistent with the goal of
achieving “ the greatest possible degree of actual desegre
gation” and of eliminating schools identified as one-race
schools. Swann v. Charlotte-Mechlenburg Board of Edu
cation, 402 U.S. 1, 26 (1971).
This Court made it plain in Swann that the “ constitu
tional command to desegregate schools does not mean that
every school in every community must always reflect the
racial composition of the school system as a whole” (402
U.S. at 24). We make no contrary argument, nor do we
argue that there must be any particular degree of racial
balance at the schools involved. But Stuann also held that
in dual systems “ the need for remedial criteria of sufficient
specificity to assure a school authority’s compliance with
its constitutional duty warrants a presumption against
schools that are substantially disproportionate in their
racial composition” (402 U.S. at 26). It was further stated
that this presumption could only be met by a showing
that continuing disproportionate schools were “not the
result of present or past discriminatory action” by school
46
boards. 402 U.S. at 26.26 Applying this test to Scotland
Neck and Brawley presents little difficulty since their con
tinued character as schools for whites and blacks, respec
tively would obviously reflect the historic dual pattern in
the community. It might be noted that Judge Craven,
writing for the majority below, held that the inability
of Scotland Neck citizens to spend more money on educa
tion without secession justified the racial disproportion
created by the separation. 442 F.2d at 583. Judg’e Winter,
in dissent, retorted that “a community should not be
permitted to buy its way out of Brown.” 442 F.2d at 592.
Swann made it clear that Judge Winter was correct, and
that the burden to justify a continued one-race or seriously
disproportionate school cannot be satisfied by such a show
ing where the original segregation in the institutions so
plainly results from discrimination. The secession plan to
26 The full paragraph from which these quotations are drawn
reads as follows (402 U.S. at 26) :
In light of the above, it should be clear that the existence
of some small number of one-race, or virtually one-race, schools
within a district is not in and of itself the mark of a system
that still practices segregation by law. The district judge or
school authorities should make every effort to achieve the
greatest possible degree of actual desegregation and will thus
ncessarily be concerned with the elimination of one-race schools.
No per se rule can adequately embrace all the difficulties of
reconciling the competing interests involved; but in a system
with a history of segregation the need for remedial criteria
of sufficient specificity to assure a school authority’s compli
ance with its constitutional duty warrants a presumption
against schools that are substantially disproportionate in their
racial composition. Where the school authority’s proposed plan
for conversion from a dual to a unitary system contemplates
the continued existence of some schools that are all or pre
dominantly of one race, they have the burden of showing that
such school assignments are genuinely nondiscriminatory. The
court should scrutinize such schools, and the burden upon the
school authorities will be to satisfy the court that their racial
composition is not the result of present or past discriminatory
action on their part.
47
keep Brawley virtually all-black and Scotland Neck a
school with a disproportionate and unusual concentration
of whites is plainly unjustifiable under the standards of
Swann.
E. The Interdistrict Transfer Plans.
Immediately after enactment of Chapter 31 a number of
events occurred which had important impact on desegrega
tion. The Scotland Neck junior high school site, located
outside the town limits, would have been unavailable to
the new town school system because of its location. This
difficulty was solved by the new town system leasing the
school from the Halifax County system for one dollar a
year, and extending the district to cover 10 more acres.
A. 476-477. The need for this four classroom building was
related to the anticipated transfer of county residents
to the town schools, an eventuality planned from the out
set of the planning for the new district. The town had
but 695 resident pupils and could accommodate about 1,000
students. 314 F.Supp. at 71; A. 294. The Scotland Neck
School Board promptly offered to admit any county
resident pupil who paid a tuition charge (with a special
discount rate for families with more than one child). As
expected, almost all white pupils who lived in the county
but previously attended Scotland Neck promptly paid de
posits to continue their attendance at Scotland Neck. By
the time of the preliminary injunction hearing in August
1969—with the opening of school imminent—350 white and
10 black county resident pupils had made tuition deposits
for Scotland Neck School. 314 F.Supp. at 71. Further
more, the Scotland Neck and Halifax County School Boards
agreed that for two years black pupils living within the
town of Scotland Neck could, if they desired, continue to
go to Brawley High School tuition free. 314 F.Supp. at 71.
48
Thus blacks who chose continued segregation could have
it free of charge. Blacks who wanted to transfer into the
town to go to an integrated school would have to pay
tuition. The district judge found that “ in view of the
economics of the situation . . . [there was] an inability of
blacks to afford the transfer fees . . (314 F. Supp. at 78).
The preliminary injunction against the new unit aborted
the transfer scheme. Thereafter, the board filed a pleading
stating that it intended to allow only transfers which
conformed to the law and court orders, but rather than
abandoning the idea of transfers the board sought in the
Fourth Circuit to have it approved (442 F.2d at 592).
The Fourth Circuit analyzed the plan in these terms:
The net result of these transfers would have been to
have 74 percent white students and 26 percent black
students in the Scotland Neck system. We conclude
that these transfers would have tended toward estab
lishment of a resegregated system and that the trans
fer plan violates the equal protection clause of the
Fourteenth Amendment. See Monroe v. Board of
Commissioners of the City of Jackson, 391 U.S. 450,
88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). (442 F.2d 583-
584; footnote omitted.)
The local effect on Brawley School and District I is even
more drastic and reveals the almost complete success of
the transfer plan in keeping the five black schools all black.
The transfer plan would have left the five remaining schools
in District I 97.8% Black. (Table IY, Maps and Tables.)
Thus is the full dimension of the evasive scheme unveiled.
The district judge treated Chapter 31 and the transfer
plan together as a package when he granted the preliminary
injunction. This was necessary to deal with the reali
ties of the situation. Months later, when writing a final
49
opinion, the district court still found that the secession cre
ated a “ refuge for white students” and “ interferes with the
desegregation of Halifax County School System” even with
out the effect of the transfers. 314 F. Supp. 78.
F. Other Effects of the Secession of Scotland Neck.
Beyond the racial ratios and percentages involved, Chap
ter 31 had other negative effects. Of course the essence of
its operation is to prevent the use of the pairing technique
as a means of desegregating Brawley and Scotland Neck.
These two schools three-fourths of a mile and a 5 minute
bus ride apart (A. 276), serving the same grades, were
naturally slated for some sort of pairing or consolidation
in the event of desegregation. Chapter 31 interjects a new
boundary line to prevent the use of the pairing or consoli
dation technique (A. 431). As such it impedes a necessary
and conventional desegregation technique. Swann v. Char-
lotte-Meoklenburg Board of Education, 402 U.S. 1, 27
(1971). In this respect, Chapter 31 operates similar to the
way the North Carolina Anti-Bussing statute impeded the
use of transportation and other necessary desegregation
techniques and is unconstitutional on this ground. North
Carolina State Board of Education v. Swann, 402 U.S. 43,
45-46 (1971); cf. Lee v. Nyquist, 318 F. Supp. 710 (W.D.
N.Y. 1970), affirmed per curiam, 402 U.S. 935 (1971).
The secession not only prevents the desegregation of the
traditional all-black school at Brawley, it also keeps a white
majority at Scotland Neck. The district judge found that
white proponents of Chapter 31 viewed it as an alternative
to establishing private schools in the face of desegregation
with a black majority in each school reflecting the popula
tion patterns. 314 F. Supp. at 73; A. 431. The relevant
precedents made it plain to the white people of Scotland
Neck that all-white private schools could receive no public
50
support or tuition grants.26 Since a private school would
lose public funding, a separate city unit with a more “ac
ceptable” racial pattern was viewed as preferable by the
proponents of Chapter 31. The new unit would not be all
white and could thus get public tax funds. It would have a
white majority because the chosen boundary embraced a
white majority. Scotland Neck would become a quasi
private school for the tuition paying white residents of the
County who transferred there. They would have the bene
fit of public funding for the school rather than attending
a purely private school. Their attendance together with the
financial inability of many county Negroes to pay the tuition
insured the maintenance of a white majority school. Under
this scheme the Scotland Neck School would be “white”
enough in population to be acceptable to the whites and
would have just enough blacks to enable it to achieve public
financial support. It was a sophisticated evasion of the duty
to desegregated public schools.
With sensitive perception, Judge Winter’s dissenting
opinion refers to the psychological effects on the black
students of the white abandonment of the Halifax County
26 Hawkins v. North Carolina State Board of Education, 11 Race
Eel. L. Rep. 745 (W.D. N.C., C.A. No. 2067, March 31, 1966)
(three-judge court) ; Griffin v. County School Board, 377 U.S. 218
(1964) ; Hall v. St. Helena Parish School Board, 197 F. Supp. 649
(E.D. La. 1961) • aff’d, 368 U.S. 515; Poindexter v. Louisiana Fi
nancial Assistance Commission, 275 F. Supp. 833 (E.D. La. 1967),
aff’d, 389 U.S. 571 (1968); Poindexter v. Louisiana Financial
Assistance Commission, 296 F. Supp. 686 (E.D. La. 1968), affirmed
per curiam, 393 U.S. 16 (1968) ; Lee v. Macon County Board of
Education, 267 F. Supp. 458, 475 (M.D. Ala. 1967), affirmed per
curiam, sub nom. Wallace v. United States, 389 U.S. 2i5 (1967) ;
Griffin v. State Board of Education, 296 F. Supp. 1178 (E.D. Va.
1969) ; Brown v. South Carolina State Board of Education, 296
F. Supp. 199 (D. S.C. 1968), affirmed, 393 U.S. 222 (1968); Coffey
v. State Educational Finance Commission, 296 F. Supp. 1389 (S.D.
Miss. 1969) ; United States v. Tunica County School District, 323
F. Supp. 1019 (N.D. Miss. 1970), affirm,ed, 440 F.2d 1236 (5th Cir.
1971).
51
system. 442 F.2d at 591; also see at 590. The approval of
Chapter 31 by the court below is premised in part on the
idea that the purpose of curbing or diminishing white flight
from a unitary school system “ is entirely consistent with
and may help implement the Brotvn principle.” (442 F.2d
at 581) Rather than being laudable the plan is fundamen
tally racist in its assumptions and underlying theory.
Judge Sobeloff answers this theme in Brunson v. Board of
Trustees of School District No. 1 of Clarendon County,
S. C., 429 F.2d 830, 826 (4th Cir. 1970). Brown, he points
out, was not premised on any notion that “ white children
are a precious resource which should be fairly apportioned,”
or that “black children will be improved by association with
their betters” (ibid.). “ But school segregation is forbidden
simply because its perpetuation is a living insult to the black
children and immeasurably taints the education they receive.
This is the precise lesson of Brown” (ibid., Sobeloff, J.). So,
too, the new secessionist Scotland Neck school administra
tive unit would be a living insult to the black pupils of Hali
fax County.
Finally, the district court judgment might well be
affirmed as within its power to prevent school policies
from influencing residential patterns in a segregationist
fashion so as to lock in school segregation in the future.
It is entirely obvious that creation of the new Scotland
Neck unit would encourage whites, particularly those living
near the boundary, to move into the town. Swann says
that school policies “may well promote segregated residen
tial patterns which, when combined with ‘neighborhood
zoning,’ further lock the school system into the mold of
separation of the races.” 402 TT.S. at 21. District courts
have the remedial responsibility “ to see to it that future
school construction and abandonment is not used and does
not serve to perpetuate or re-establish the dual system”
52
(ibid.). The judgment of the district court requiring a
desegregation plan which ignored the Scotland Neck town
boundary—as it has always been ignored in the past—is
well within the discretionary authority of the district court
to prevent such threatened perpetuation or re-establish
ment of separation.
The broad discretion of the district court in formulating
a remedy for the dual system includes the power to use a
variety of remedial techniques, even techniques which “may
he administratively awkward, inconvenient, and even
bizarre in some situations and may impose burdens on
some.” (Swann, 402 U.S. at 28.) “No fixed or even sub
stantially fixed guidelines can be established as to how
far a court can go, but it must be recognized that there
are limits” (ibid.). We suggest that the technique of as
signing pupils across district lines of administrative units
established by state law—a technique long, successfully and
recently used as an instrumentality of segregation—may
be used as a technique of desegregation. This is particu
larly true in a case such as Halifax County where inter
district transfers are a part of the tradition of the system.
We think the technique may be appropriate in other in
stances as well, but we do not ask that the Court prejudge
the question of interdistrict remedial transfers across long
established or racially untainted boundaries. Cases involv
ing such issues are being litigated in the lower courts
and this case does not have the kind of record upon which
to adequately judge such metropolitan integration disputes.
It is enough to decide the present case to conclude as
Judge Wisdom did. Lee v. Macon County Board of
Education, 448 F.2d 746, 752 (5th Cir. 1971): “New bound
aries cannot be drawn where they would result in less
desegregation when formerly the lack of a boundary was
instrumental in promoting segregation.”
53
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the judgment of the Court of Appeals should be
reversed and the judgment of the United States District
Court for the Eastern District of North Carolina should
be reinstated.
Respectfully submitted,
Jack Greenberg
James M. Nabrit, III
Norman J. Chachkin
10 Columbus Circle
New York, N. Y. 10019
J. LbV onne Chambers
237 West Trade Street
Charlotte, N. C. 28202
A dam Stein
157 East Rosemary Street
Chapel Hill, N. C. 27514
James R. W alker, Jr.
501 West Third Street
Weldon, N. C. 27890
S amuel S. Mitchell
126% East Hargett Street
Raleigh, N. C. 27601
Attorneys for Petitioners
MEiLEN PRESS INC. — N. Y. C. 219