Board of Education of the City of Bessemer v. Brown for a Writ of Certiorari

    IN THE

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1966. 

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

THE BOARD OF EDUCATION OF THE CITY OF BESSEMER, et a!., JEF­
FERSON COUNTY BOARD OF EDUCATION, et al„ and THE BOARD 

OF EDUCATION OF THE CITY OF FAIRFIELD, et al„ 
Petitioners,

v.
UNITED STATES OF AMERICA, DORIS ELAINE BROWN, et al„ GEORGE 
ROBERT BOYKINS, et al„ and LINDA STOUT, by Her Father and Next 

Friend, BLEVIN STOUT,
Respondents.

PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals 

for the Fifth Circuit.

REID B. BARNES,
WILLIAM G. SOMERVILLE, JR., 

317 North Twentieth Street, 
Birmingham, Alabama, 

MAURICE F. BISHOP,
JOHN C. SATTERFIELD,

Counsel for Petitioners.
Of Counsel:

LANGE, SIMPSON, ROBINSON & SOMERVILLE,
Exchange Security Bank Building,

Birmingham, Alabama.

St. L ouis L aw  P b in tin s  Co., Inc., 411-15 N. E ighth  St., 63101. C Entral 1-4477.



INDEX.
Page

Prayer ........................................................................... 1
Citations to opinions below .........................................  2
Jurisdiction .................    2
Questions presented .................................................... 3
Constitutional and statutory provisions involved . . . .  4
Statement .....................................................................  4
Reasons for granting the w r i t ...................................... 8

I. The requirement by the decision below of sub­
stantial quantitative integration is erroneous 
and conflicts with the decisions of the other 
circuits ................................................................  9
A. The decision imposes new constitutional

duties on the schools and on the students 9
B. The decision below conflicts with the deci­

sions of the other circuits in its require­
ments of mandatory quantitative integration 17

C. In holding that there is an absolute duty to
achieve substantial quantitative integration, 
the decision below is erroneous and conflicts 
with decisions of this court ............    30

II. The Civil Rights Act of 1964 does not provide
authority for the decision ..............................  35

III. The requirement by the decision below of a 
uniform detailed decree conflicts with the deci­
sion of this court and other circuits ..............  38

Conclusion.....................................................................  39
Appendix A ..................................................................  41
Appendix B .................................................................. 46
Appendix C ..................................................................  48



11
Cases Cited.

Armstrong v. Board of Ed. of Birmingham, 323 F. 2d 
333, 333 F. 2d 47 .................................................... 5,16

Bell v. School City of Gary, 324 F. 2d 209 (7th Cir. 
1963), cert, denied, 377 U. S. 924
(1964) ................................................. 10,17,26,27,36,37

Board of Education of the Oklahoma City Public 
Schools v. Dowell, F. 2d (8th Cir., January 23, 
1967), cert, denied, 35 U. S. L. Week 3418 (IT. S.
May 29, 1967) ......................................................29,30

Boson v. Rippy, 285 F. 2d 43, 48 (5th Cir. 1960) __  16
Bowman v. County School Board of Charles City

County, Va., F. 2d (4th Cir., June 12, 1967) .........  19
Bradley v. School Board of Richmond, 345 F. 2d 310 

(4th Cir.), vacated and remanded on other grounds,
382 U. S. 103 (1965) ......................................5,17,33,38

Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C.
1955) ..............................................................17,19,21,36

Calhoun v. Latimer, 377 U. S. 263 (1964) ................  33
Clark v. Board of Education of Little Rock School 

Dist., 369 F. 2d 661 (4th Cir. 1966), rehearing de­
nied, 374 F. 2d 569 (8th Cir. 1967) .......................21,37

Cooper v. Aaron, 358 IT. S. 1, 19 (1958) .................... 31
Deal v. Cincinnati Board of Ed., 369 F. 2d 55 (6th

Cir. 1966) ............................................................... 24,27
Downs v. Board of Education of Kansas City, 336 F.

2d 988 (10th Cir. 1964), cert, denied, 380 IT. S.
914 (1965) ........................................................ 26,27,30

Goss v. Board of Education of City of Knoxville, 373
U. S. 683, 687, 689 (1963) ......................................  33

Green v. County School Board of New Kent County,
Va., F. 2d (4th Cir., June 12, 1967) ......................19-20

Kelley v. Board of Education of City of Nashville,
270 F. 2d 209 (6th Cir. 1959) 25



Ill

Lockett v. Board of Ed., 342 F. 2d 225 (5tli Cir. 1965) 5
Olson v. Board of Education of Malverne, N. Y., 250 

F. Supp. 1000, 1006 (E. D. N. Y. 1966) ................  32
Rogers v. Paul, 382 U. S. 198 (1965) ...........................5,38
Shuttlesworth v. Birmingham Bd. of Ed., 358 U. S.

101 (1958) ...............................................................  33
Springfield School Committee v. Barksdale, 348 F. 2d

261, 264 (1st Cir. 1965) ...........................................  26
Stell v. Savannah-Chatham County Board of Educa­

tion, 333 F. 2d 55, 59 (5th Cir. 1964) .................... 16
Swain v. Alabama, 380 U. S. 202, 226-28 (1965) . . . .  34

Statutes Cited.
Civil Rights Act of 1964, 78 Stats. 246, Sections 401,

407, 601, 602 and 604 ............................................ • 4
Constitution of the United States:

Fourteenth Amendment ...........................................  4
28 U. S. C., § 1254 (1) ..............................................  2

Textbooks Cited.
Bickel, “ The Decade of School Desegregation,” 64

Colum. L. Rev. 193, 213-15 (1964) ........................... 15
Dr. Max Wolff, “ The Educational Park,” Conference 

on Education and Racial Imbalance in the City,
p. 4 (March, 1967) .................................. - ............  27

Racial Isolation in the Public Schools (1967). .24, 26, 28, 34 
Survey of School Desegregation in the Southern and 

Border States, 1965-66 (Feb. 1966) .......................  14



IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1966.

No.

THE BOARD OF EDUCATION OF THE CITY OF BESSEMER, et al., JE F­
FERSON COUNTY BOARD OF EDUCATION, et al., and THE BOARD 

OF EDUCATION OF THE CITY OF FAIRFIELD, et al., 
Petitioners,

v.
UNITED STATES OF AMERICA, DORIS ELAINE BROWN, et al„ GEORGE 
ROBERT BOYKINS, et al., and LINDA STOUT, by Her Father and Next 

Friend, BLEVIN STOUT,
Respondents.

PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals 

for the Fifth Circuit.

The Board of Education of the City of Bessemer et al., 
Jefferson County Board of Education et al., and the Board 
of Education of the City of Fairfield et al., pray that a 
writ of certiorari issue to review the judgment of the 
United States Court of Appeals for the Fifth Circuit, en­
tered in the above-entitled causes on March 29, 1967.



2 —

CITATIONS TO OPINIONS BELOW.

No opinions were written by the District Court,.1 Two 
decisions were rendered by the Court of Appeals. The 
original decision of a panel of the Court (Record, Vol. IV, 
p. 6) is reported at 372 F. 2d 836, and is printed in Ap­
pendix L to the petition in Caddo Parish School Board v. 
United States, filed in this Court in June, 1967. The opin­
ions on rehearing by the court en banc (Record, Vol. IV, 
p. 12) is not yet reported, and also is printed in Appendix 
L to the petition in Caddo Parish School Board v. United 
States. Since the petitioners herein were consolidated in 
the Court of Appeals for purposes of argument and de­
cision with petitioner in Caddo Parish v. United States, 
these petitioners ask leave to incorporate herein by refer­
ence Appendix L to the petition in Caddo Parish,2

JURISDICTION.

The original judgments of the Court of Appeals were 
entered on December 29, 1966 (Record, Vol. IV, pp. 7A- 
7C). A timely petition for rehearing en banc (R. Vol. IV, 
p. 8) was granted (R. Vol. IV, p. 9). The judgments of 
the Court on rehearing en banc were entered on March 
29, 1967 (R. Vol. IV, p. 13). The jurisdiction of this 
Court is invoked under 28 U. S. C., §1254 (1).

1 The D istrict Court orders from which the appeals to the 
Court of Appeals were taken are at the following pages of the 
Transcript of R ecord: Jefferson County, Transcript Vol. I, 
pp. 70-71; Bessemer, Transcript Vol. II, pp. 85-86; Fairfield, 
Transcript Vol. I l l ,  pp. 65-66.

2 Citations herein to the opinions below will include refer­
ences to page numbers of the slip opinions printed in Appen­
dix L.



— 3 —

QUESTIONS PRESENTED.
1. Whether the sole measure of the constitutional ad­

equacy of a method of student assignment in public 
schools is that it results in a prescribed number of per­
centage of Negro children at schools with white children 
or a progressive change in the racial ratios of students 
ultimately removing racial imbalance or concentration.

2. Whether the Fourteenth Amendment imposes upon 
Negro children who freely choose to attend certain schools 
a duty to attend other schools in order to eliminate racial 
concentrations or imbalances in the schools chosen by 
them.

3. Whether a “freedom of choice” method of student 
assignment whereby all children have the unrestricted 
right to choose annually to attend any school in the sys­
tem is rendered unconstitutional solely because it does 
not achieve prescribed percentage or numerical results 
reducing or removing racial imbalances or concentrations.

4. Whether an unrestricted “ freedom of choice” 
method of student assignment must be combined with a 
neighborhood school or geographic zone method of as­
signment in order to be constitutionally adequate.

5. Whether there is a constitutional distinction between 
the existence in Northern school systems of racially im­
balanced schools under “ neighborhood” assignment plans 
and the existence in Southern school systems of similarly 
imbalanced schools under “ free choice” assignment plans 
such as to require elimination of the imbalance in the 
Southern schools but not in the Northern schools.

6. Whether the requirement by a court of appeals of a 
detailed decree to be applied uniformly to every school 
system in the circuit without affording an evidentiary 
hearing as to the necessity or the effect of its provisions



— 4 —

on local educational and administrative functions un­
related to race is consistent with Brown v. Board of Edu­
cation and other decisions of this Court.

7. Whether questions concerning the validity and pro­
priety of the Court of Appeals’ adoption of the so-called 
“ 1966 Guidelines” of the Department of Health, Educa­
tion and Welfare were properly before and appropriate 
for decision by the Court of Appeals although the “ Guide­
lines” were not issued until after the appeals were dock­
eted, and, if so, whether such “ Guidelines” are valid and 
within the Congressional intent of the Civil Rights Act 
of 1964.

8. Whether it is proper for a federal appellate court to 
adopt present and future regulations issued by the De­
partment of Health, Education and Welfare for administra­
tion of federal funds under Title VI of the Civil Rights 
Act of 1964 as the court’s constitutional standards in de­
termining rights under the Fourteenth Amendment.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED.

The constitutional provision involved is Section I of 
the Fourteenth Amendment to the Constitution of the 
United States. The statutory provisions involved are 
Sections 401, 407, 601, 602, and 604 of the Civil Rights 
Act of 1964, 78 Stat. 246. They are printed in Appendix 
A, infra.

STATEMENT.
Each of the petitioners is a local school board in 

Jefferson County, Alabama. These actions were com­
menced by complaints filed in the spring of 1965.3 The

3 The Bessemer complaint was filed on May 24, 1965, the Je f­
ferson complaint on June 4, 1965, and the Fairfield com­
plaint on Ju ly  21, 1965.



5

District Court, per Judges Lynne and Grooms, granted 
(with virtual consent of defendant’s counsel)4 the relief 
as prayed and ordered the submission of desegregation 
plans. The plans filed by the Boards several days there­
after were considered by the District Court to be consist­
ent with the requirements of the Fifth Circuit’s decisions 
as of that time,3 and the objections of the plaintiffs and 
the United States accordingly were overruled. Appeals 
from these orders were taken in the Bessemer and Jeffer­
son cases and on August 18, 1965, the Court of Appeals 
remanded each for consideration in light of two recent 
Fifth Circuit decisions. In accordance with the mandates 
of the Court of Appeals, the plans in Bessemer and Jeffer­
son were amended on August 27, 1965, and on the same 
day the District Court held the amended plans to be in 
compliance with the Fifth Circuit decisions and entered 
orders overruling objections to them.6

The present appeals were taken by the United States 
from the orders of overruling objections entered on Au­
gust 27, 1965, in Bessemer and Jefferson, and on August 
18, 1965 in Fairfield.7 The Negro plaintiffs never appealed

4 See, for example, Record, Vol. II, pp. 127-28.

5 And they were consistent with the F ifth  Circuit decisions. 
See, e. Armstrong v. Board of Ed. of Birmingham, 323 F. 
2d 333, 333 F. 2d 47; Lockett v. Board of Ed., 342 F. 2d 225 
(5th Cir. 1965).

e The plans contained no provision for faculty desegregation, 
but they were filed and the present appeals were taken from 
orders entered before this Court’s decision in Bradley v. School 
Board of City of Richmond, 382 U. S. 103 (1965), and Rogers 
v. Paul, 382 U. S. 198 (1965), and a t a time when the F ifth 
Circuit did not require provisions for faculty desegregation, see 
Lockett v. Board of Ed., supra.

" Because of this Court’s often expressed concern for time 
in school cases, the considerable lapse of time between the date 
of the orders appealed from and the date of the F ifth  Cir­
cuit’s decision now sought to be reviewed deserves an explana­
tion. Much of the delay is attributable to the United States



—  6 —

from these orders. They moved to intervene, however, 
when the appeals were set for argument.

These three cases were consolidated on appeal with 
four cases involving Louisiana school boards, and a panel 
of the Court of Appeals rendered a decision (with one 
dissent) reversing all of the cases and directing the Dis­
trict Courts to enter a uniform decree appended to its 
opinion. A petition for rehearing en banc was granted 
and on March 29, 1967, a majority of the court en banc 
entered a per curiam opinion adopting the panel’s opinion 
and decree with minor “ clarifying statements” . Three 
members of the Court dissented and one concurred in the 
reversal but disagreed with the substance of the opinion.

Although the two majority opinions discussed many 
questions, their substance was that Southern school sys­
tems have, by reason of their previous practice of segre­
gation, a constitutional duty to achieve what the court 
termed “ substantial-integration” , which is to be measured 
by the numerical or percentage results obtained. Over­
ruling its prior decisions holding that the Fourteenth 
Amendment only prohibits enforced segregation but does 
not compel actual integration, the court held further that 
an unrestricted “ freedom of choice” plan is constitu­
tionally inadequate unless it achieves the required results. 
The decision and decree were intended to be applicable 
uniformly to all school systems in the circuit.

The original desegregation plans and the facts appear­
ing before the District Court are not only out-of-date but

which utilized through extensions the maximum permissible 
time for noticing and docketing the appeals—thereby consum­
ing a period of some seven months before the appeals were 
docketed. The cases were argued before the panel on May 23, 
1966, and another seven months elapsed before the decision 
was rendered on December 29, 1966. Arguments on rehearing 
en banc were heard on March 10, 1967, and the judgm ents on 
rehearing entered on March 29.



7

are immaterial to the decision of the court below and to 
the issues raised in this petition. They are out-of-date 
because the appeals were taken immediately after adop­
tion of the plans and before they could be administered 
or their effects could be gauged. The record therefore 
does not reflect the changes adopted by the Boards in 
their administration and resulting in their liberalization.8 
More important, the only facts either material to or men­
tioned in the decision below were that the school systems 
involved (as well as all other systems in the South) were 
previously segregated by law and that the numerical 
results of their plans were insufficient. The opinion was 
not premised on any determination that the petitioners 
were still operating “ de jure” segregated schools at the 
time of the decision, but on the fact that they previously 
had “ de jure” segregation. The decision did not pur­
port to be merely based on or limited to any factual 
circumstances peculiar to only the particular school 
boards which were parties. It was based instead on 
broad constitutional principles which are intended to 
govern all school systems in the circuit without regard 
to variations in details of factual circumstances. Like­
wise, the existence of the good faith of the school boards 
is immaterial to the decision. The only test of the con­
stitutional adequacy of a board’s desegregation efforts is 
the objective results, not whether the board has acted in 
good faith. The opinion does not mention the existence 
or absence of good faith by the petitioner boards, and the 
records of the present cases in the District Court contain 
nothing evidencing anything other than good faith.■*

8 As they have been administered since the appeals were 
taken, the plans have afforded all students an annual righ t to 
choose any school in the systems. This righ t has not been lim­
ited by any tests or other criteria of any sort. So fa r as we 
are aware, no student’s choice has been denied for any reason.

» The plans adopted by the petitioner boards at the time 
of these appeals in 1965 were held by the District Court to eon- 
form with the F ifth  Circuit’s previous decisions.



—  8 —

Nor are the nature of the plans adopted in 1965 or the 
evidence in the District Court material to the issues raised 
by this petition.10 Petitioners do not contend now, and 
did not maintain in the court below, that certain details 
of those plans are now sufficient in the light of develop­
ments in the law subsequent to the appeals, such as the 
decisions concerning faculty desegregation. The points 
raised here thus are not that the old plans are facially 
adequate, but that the new constitutional standards re­
quired by the Fifth Circuit are improper—particularly as 
they relate to the student assignments.

REASONS FOR GRANTING THE WRIT.
Petitioners are fully aware of the extent of the Fifth 

Circuit’s experience with school desegregation suits. As 
its opinions themselves recognize, however, its decision in 
the present cases marks a far-reaching and substantial 
departure from any previous decision by it or any other 
federal appellate court. It admittedly establishes for this 
circuit new concepts of the nature of the constitutional 
standards and the forms of remedy which will govern 
public schools. Particularly with regard to questions of 
student assignment, it is believed that the constitutional 
standard adopted by the Court of Appeals is based on a 
misconception of the fundamental nature of the constitu­
tional right established in Brown v. Board of Education. 
In any event, however, the decision is in direct conflict in 
this respect with recent desegregation decisions of the

10 There was evidence in the D istrict Court on behalf of the 
respondents aimed at showing the physical inferiority of pre­
dominantly Negro schools. Due to insufficient time, however, 
the D istrict Judge was unable to allow the petitioner an op­
portunity  to present evidence in rebuttal (See Record, Vol. II, 
pp. 259, 265, 267). Accordingly, when petitioners disputed on 
appeal th a t the schools were inferior, counsel for the United 
States, Mr. David Norman, acknowledged during the original 
oral argum ent that the cases should be remanded for further 
evidence on this question.



— 9 —

Fourth and Eighth Circuits and conflicts at least in prin­
ciple with decisions of other circuits. Moreover, its im­
portance is clear: the decision and the detailed decree 
affect not only the petitioners but are expressly directed 
by the court to be followed by every school system in the 
six states comprising the circuit; and by reason of the 
principles on which it is premised, it unquestionably 
would apply to most of the school systems in the Fourth 
and Eighth Circuits and should apply to school systems 
in every other circuit in which schools with racial con­
centrations now exist.

L

The Requirement by the Decision Below of Substantial
Quantitative Integration Is Erroneous and Conflicts 

With the Decisions of the Other Circuits.

A. The Decision Imposes New Constitutional Duties on 
the Schools and on the Students.

Despite its length and discussion of numerous subsid­
iary questions, the decision of the court of appeals rests 
on several fundamental points. The most basic is its 
determination that the Fourteenth Amendment and deci­
sions of this Court require the achievement of “ substan­
tial-integration’ ’ in terms of favorable statistics showing 
the numbers of Negro children who attend certain schools. 
Corollarilv, it holds that a so-called freedom-of-choice 
method of student assignment—and, indeed, any other 
method of assignment—-is constitutionally insufficient in 
Southern states unless it results in “ substantial-integra­
tion.” A subsidiary but related point underlying the 
decision is that the constitutional requirement of “ sub­
stantial-integration” applies only to schools in states 
which previously permitted or required school segregation 
by law (characterized as “ de jure segregation” ) but not



—  10 —

to schools in states which in 195411 had no laws requiring 
or permitting segregation (characterized as “ de facto 
segregation” ). Also related is its reliance on Title VI 
of the Civil Rights Act of 1964 as a congressional recog­
nition of a requirement of substantial-integration in the 
Southern school systems but not in the North. Another 
major aspect is the decision for the first time in any 
school case that a minutely detailed decree be dictated 
by an appellate court for uniform use by all school sys­
tems in the circuit without reference to or regard for 
local differences and needs.

The main thrust and basis of the decision are that the 
Fourteenth Amendment requires in the South “ substan­
tial-integration” and that any means of student assign­
ment in the South is unconstitutional if it does not meet 
that requirement. Its keystone is the principle reiterated 
throughout the opinion that, “ The only school desegrega­
tion plan that meets constitutional standards is one that 
works,” 12 and that, “ As the Constitution dictates, the 
proof of the pudding is in the eating: the proof of a school 
board’s compliance with constitutional standards is the 
result.” 13 The nature of this constitutional duty and the 
court’s meaning of one that “ works” is explained as be­
ing that:14

[T]he law imposes . . .  an absolute duty to integrate
in the sense that a disproportionate concentration of
Negroes in certain schools cannot be ignored; racial

11 Thus, it distinguishes Bell v. School City of Gary, 324 F. 
2d 209 (7th Cir., 1964), on the ground th a t it involved “de 
facto” segregation even though tha t school system had oper­
ated segregated schools perm itted by law as late as 1949 (page 
63; 372 F. 2d at 873).

12 Page 7; 372 F. 2d at 847.

18 Page 112; 372 F. 2d at 894.

14 Page 6, n. 5; 372 F. 2d at 846-47.



11

mixing of students is a high priority educational goal. 
The law does not require a maximum of racial mix­
ing or striking a racial balance accurately reflecting 
the racial composition on the school population. It 
does not require that each and every child shall at­
tend a racially balanced school. This, we take it, is 
the sense in which the Civil Rights Commission used 
the phrase ‘ ‘ substantial-integration. ’ ’

The decision then predicates the achievement of “ sub­
stantial-integration” and the constitutionality of a school 
system on the attainment of prescribed percentages of 
Negro students in attendance at schools with whites:15

In reviewing the effectiveness of an approved plan 
it seems reasonable to use some sort of yardstick or 
objective percentage guide. The percentage require­
ments in the [HEW] Guidelines are modest, suggest­
ing only that systems using free choice plans for at 
least two years should expect 15 to 18 per cent of 
the pupil population to have selected desegregated 
schools.

Finally, if these quantitative results are not achieved, the 
decision requires the adoption of whatever means are 
necessary to accomplish them. The panel’s opinion thus 
concludes:16

If school officials in any district should find that 
their district still has segregated faculties and schools 
or only token integration, their affirmative duty to 
take corrective action requires them to try an alter­
native to a freedom of choice plan, such as a geo­
graphic attendance plan, a combination of the two, 
the Princeton plan, or some other acceptable substi­
tute, perhaps aided by an educational park.

15 Page 95; 372 F. 2d at 115.
16 Page 115; 372 F. 2d at 895-96.



Adopting the panel opinion, the rehearing opinion added 
with regard to the percentage requirements:

The percentages are not a method for setting 
quotas or striking a balance. If the plan is inef­
fective, longer on promises than performance, the 
school officials charged with initiating and adminis­
tering a unitary system have not met the constitu­
tional requirements of the Fourteenth Amendment; 
they should try other tools.

The substance of the decision, then, is that while the 
achievement of a perfectly proportionate balance is not 
necessarily required, yet the elimination of imbalance 
and the achievement of a certain prescribed degree of 
“ racial mixing” (“ substantial-integration” ) is constitu­
tionally mandated.17

In the context of an unrestricted “ free choice” plan, 
the concomitant to this requirement is that a similar duty 
is constitutionally required equally of the children 
(colored and white) as of the school officials and that the 
achievement of “ substantial-integration” is required 
without regard to—and, indeed, notwithstanding—the stu­
dents’ individual choices and preferences. School officials 
are required to compel all children to attend certain 
schools to the end that “ substantial-integration” may be 
achieved, notwithstanding that the children have affirma­
tively chosen the schools they attend. If their choices 
do not measure up to the court’s concept of “ substantial- 
integration,” a means of assignment must be adopted 
which will force them elsewhere. Realizing this effect of 
its decision, the rehearing opinion concludes: “ A school 
child has no inalienable right to choose his school.” This

17 Of course, whether the percentage requirements are char­
acterized as a “rule of thum b” or as a strict condition is im­
m aterial to the fundamental constitutional question which they 
raise—whether the Fourteenth Amendment requires quantita­
tive results.



13

conclusion evidently is based upon the court’s reading of 
the Brown decisions and the Fourteenth Amendment as 
subordinating the rights of individual Negro students to 
a theoretical group right of “ Negroes as a class” to an 
integrated education.18

These principles not only form the basis of the de­
cision, but also are manifested in certain provisions of its 
uniform decree. Thus, Section II (d) of the decree al­
ready requires the replacement of freedom of choice with 
a geographic zone or a neighborhood school assignment 
plan subject to a right of transfer through exercise of the 
choice procedures; it requires assignments by residence 
unless a student affirmatively chooses to go elsewhere.19

The practical effect of blindly requiring quantitative 
integration without regard to other considerations can be 
demonstrated by the results of the choices made in the 
Bessemer system for the 1967-68 school year—which will 
be the third year Bessemer has used freedom of choice. 
The choice period was held from May 1 to June 1, 1967, 
and all of the requirements of publicity, letters, forms, 
etc., dictated by the Fifth Circuit’s uniform decree were 
followed. All grades were included. Of the total Negro 
enrollment of 5,127 in the Bessemer schools, the number 
of students returning their choices was 3,348. Of that 
number, only 146 chose to attend predominantly white 
schools. A total of 3,202 Negro students affirmatively

18 This view of Brown as a governing basis of the decision 
is evident throughout the panel’s opinion and is discussed 
there in detail a t pages 46-59, 372 F. 2d a t 866-70. For example, 
it maintains tha t the “righ t of the individual plaintiffs must 
yield to the overriding righ t of Negroes as a class to a com­
pletely integrated public education.” I t  is never explained who 
comprises this class if it is not the individual Negroes.

19 Section II (d) provides in pertinent p art th a t:
“Any student who has not expressed his choice of school 

within a week after school opens shall be assigned to the 
school nearest his home where space is available. . . .”



14 —

chose to remain in their former schools. The percentage 
“ results” are: only 4.17% of the students in Bessemer 
have selected desegregated schools.20 Since this of course 
falls far short of the Court’s concept of “ substantial- 
integration” as demanding that “ 15 to 18 percent” of 
the pupils select desegregated schools in systems using 
free choice plans for two years, the decision expects the 
Bessemer system to adopt now another method of assign­
ment which will accomplish the required results. In 
doing so it presumably will override the expressed choices 
of the 3,202 Negro students who elected to remain in their 
present schools and compulsively assign them elsewhere.

In assessing the meaning of this, it is to be noted that 
the personal reasons actually motivating the students’ 
choices are not revealed anywhere in these cases, were not 
considered or mentioned by the Court of Appeals, and 
indeed are rendered altogether irrelevant by its deter­
mination that the quantitative result is the only consti­
tutional concern. It seems impossible to read any such 
meaning into Brown unless the Court of Appeals is inter­
polating a conclusive presumption that the choices made 
by the Negro children were caused solely by fear, in­
timidation, or other extraneous pressures. But there is 
not the slightest indication in fact that the choices made 
by students in the petitioner systems have been influenced 
by anything except genuine preference. On the contrary, 
a recent report of the United States Commission on Civil 
Rights21 reveals that reasons given by Negro children in 
actual interviews included the desire to remain with their 
friends, to continue their participation in school activi­
ties, and a feeling of identification with and pride in a 
particular school for the usual reasons any student identi-

20 This includes 67 other students who attended predom­
inantly white schools last year and will return  next fall.

21 Survey of School Desegregation in the Southern and 
Border States, 1965-66 (Feb. 1966).



15 —

lies himself with the school he attends.22 However unim­
portant these reasons might seem in comparison with 
other educational purposes, it hardly seems proper for a 
court to arrogate to itself, especially under the guise of 
enforcing constitutional rights, the authority to determine 
that the Fourteenth Amendment prohibits a child from 
associating with his friends. Since there has been no 
opportunity for any evidentiary determination as to 
whether freedom of choice in the present school systems 
does not in fact serve the preferences and interests of 
the students, no one (including the court below) is in a 
position now to adequately appreciate or anticipate the 
actual effect which the court’s requirement of quantita­
tive results will have on the students themselves.23

22 See also, Bickel, “The Decade of School Desegregation,” 
64 Colum. L. Rev. 193, 213-15 (1964).

28 The danger of such precipitate action by an appellate 
court on the basis of theoretical concepts and without con­
sideration of individual factual circumstances is illustrated by 
an occurrence this spring in the school system of Okaloosa 
County, Florida. There, in accordance with a desegregation 
plan adopted pursuant to H. B. W. requirements, the school 
system closed a formerly all Negro high school (Combs) and 
assigned all its 107 Negro students to a formerly all white 
high school for the 1966-67 school year. On May 9th, the Civic 
League of F ort W alton Beach, a Negro organization, petitioned 
the school board to reopen the closed Negro high school and 
to allow the re tu rn  of its Negro students. The Negro spokes­
man explained th a t they were “not fighting integration, but 
rather wanted each student to have the right to attend what­
ever school he wishes.” F ort W alton Beach, Florida, “P lay­
ground Daily News,” May 10, 1967, p. 1, eol. 4. The basis of 
their request, as set forth  in the petition, wTas th a t of the 107 
Negro students who had previously attended Combs school but 
were required to attend a different school this year, 46 had 
dropped out of school as of March 3 (Page 30 of the Petition 
filed with the Board of Public Instruction of Okaloosa County, 
Florida). This was stated by the Negroes’ petition to represent 
an increase of 2,033% in the number of dropouts in the Negro 
students formerly attending Combs High School during the 
1966-67 school year as compared with the school years from 
1962 to 1966. Ibid. The Negro organization submitted to each 
of the 46 dropouts questionnaires which revealed th a t all 46 
wanted a high school education and wanted to re tu rn  to Combs



— 16 —

In order to reach its conclusion that the Constitution 
absolutely compels quantitative integration, it was neces­
sary for the Fifth Circuit to expressly overrule previous 
decisions which until then had consistently interpreted 
Brown as meaning that, “ The equal protection and due 
process clauses of the Fourteenth Amendment do not 
affirmatively command integration, but they do forbid 
any state action requiring segregation on account of their 
race or color of children in the public schools.’’24 
The court recognized that in doing so it was departing 
from its previous concept of the controlling constitu­
tional standards: “ Expressions in our earlier opinions 
distinguishing between integration and desegregation 
must yield to this affirmative duty we now recognize.”23 
The importance of this departure to the decision is in­
dicated by the fact that the opinion devotes no less than 
35 pages26 to an attack on its prior interpretation of

High School. Id,., a t 22, 23. This information and a copy of 
the petition were obtained on May 22 from the attorney for 
the Board of Public Instruction of Okaloosa County, Florida, 
Mr. Erwin Fleet of F ort W alton Beach. I t  is difficult to see 
how the “educational opportunity” of these 46 children was 
improved by their compelled attendance at the predominantly 
white school.

24 Boson v. Rippy, 285 F. 2d 43, 48 (5th Cir. 1960) (Rives, 
C. -J.). The en banc opinion lists nine of its former decisions 
which it overruled, and there are others to the same effect 
which it did not list. Similar examples of statem ents in the 
F ifth  Circuit decisions a r e : “Nothing contained in this opinion 
. . . is intended to mean tha t voluntary segregation is unlaw ful; 
or that the same is not legally permissible.” Armstrong v. Board 
of Education of City of Birmingham, 323 F. 2d 333, 339 (5th 
Cir. 1963) (Rives, J .) ; “No court has required a ‘compulsory 
racially integrated school system’ to meet the constitutional 
m andate tha t there be no discrimination on the basis of race 
in the operation of public schools. . . . The interdiction is 
against enforced racial segregation.” Stell v. Savannah-Chat- 
ham County Board of Education, 333 F. 2d 55, 59 (5th Cir. 
1964) (Bell, J .) .

25 Rehearing opinion, p. 5.
2« pp. 28-73; 372 F. 2d at 861-78.



— 17

Brown as similarly expressed (and still adhered to) in 
decisions of other jurisdictions—such as Briggs v. Elliott, 
132 F. Supp. 776 (E. I). S. C. 1955), and Bell v. School 
City of Gary, 324 F. 2d 209 (7th Cir. 1963), cert, denied, 
377 U. S. 924 (1964). Inasmuch as the central issues and 
principles of the decision relate to the definition of the 
essential nature of the rights and duties decreed by 
Brown I rather than mere remedial details, the decision’s 
impact and application extend beyond this circuit.

B. The Decision Below Conflicts With the Decisions of 
the Other Circuits in Its Requirements of Mandatory 
Quantitative Integration.

Both in its governing constitutional principles and in 
each of its fundamental requirements discussed above27 
the decision of the Fifth Circuit is in conflict with the 
decisions of every other circuit which has considered 
these questions.

1. Fourth Circuit. In Bradley v. School Board of Rich­
mond, 345 F. 2d 310 (4th Cir.), vacated and remanded 
on other grounds, 382 U. S. 103 (1965), a majority of the 
Fourth Circuit sitting en banc approved without quali­
fication a freedom-of-choice method of assignment which 
the court below now rejects.28 The Negro appellants

27 That the Fourteenth Amendment requires “substantial in­
tegration” measured by quantitative re su lts ; th a t the only 
constitutionally adequate method of student assignment is one 
which achieves such “results” ; th a t a freedom-of-choice method 
of assignment is inherently inadequate and must be abandoned 
if it has failed to achieve those results; and tha t freedom of 
choice is permissible only if superimposed on geographical 
zones.

28 The Richmond plan, as described in 345 F. 2d at 315, 
provided “for a freedom-of-choice by every individual in the 
Richmond School system as to the school he attends. There 
also is a requirement th a t the choice be affirmatively exercised 
by every pupil entering the system for the first time and by 
every other pupil as he moves from one level to another.” It 
is the same plan which petitioners unsuccessfully urged the 
F ifth  Circuit to approve in the present cases.



18 —

urged that it be rejected for reasons similar to those on 
which the decision of the Fifth Circuit is based. In reply 
to the appellants’ insistence that the plan was unconsti­
tutional because the preferences of Negro parents for pre­
dominantly Negro schools “ result[ed] in the continuance 
of some schools attended only by Negroes,” the Fourth 
Circuit concluded (Id. at 316):

It has been held again and again, however, that 
the Fourteenth Amendment prohibition is not against 
segregation as such. The proscription is against 
discrimination. . . . There is nothing in the Consti­
tution which prevents his voluntary association with 
others of his race or which would strike down any 
state law which permits such association. The pres­
ent suggestion that a Negro’s right to be free from 
discrimination requires that the state deprive him of 
his volition is incongruous. . . . There is no Pint [in 
Brown] of a suggestion of a constitutional require­
ment that a state must forbid voluntary associations 
or limit an individual’s freedom of choice except to 
the extent that such individual’s freedom of choice 
may be affected by the equal right of others. A 
state or a school district offends no constitutional 
requirement when it grants to all students uniformly 
an unrestricted freedom of choice as to schools at­
tended, so that each pupil, in effect, assigns himself 
to the school he wishes to attend.

To their contention that a freedom of choice plan is ade­
quate only if it is combined with geographic assignments 
based on residence, as provided in Section II (d) of the 
Fifth Circuit’s decree, the Fourth Circuit concluded (Id., 
at 318-19):

We find, however, that an underlying geographic 
plan is not a prerequisite to the validity of a freedom 
of choice plan. A system of free transfer is an ac­
ceptable device for achieving a legal desegregation



— 19 —

of schools. Its acceptability is not dependent upon 
the concurrent use of some other device which also 
might be adequate. . . . Imposed discrimination is 
eliminated as readily by a plan under which each 
pupil initially assigns himself as he pleases as by a 
plan under which he is involuntarily assigned on a 
geographic basis. . . . The other means [in addition 
to geographic zoning] of abolishing the dual zone 
system was to do away with zones completely. From 
the point of view of the ultimate objective of elim­
inating the illegal dual zoning, dezoning seems the 
obvious equivalent of rezoning and, administratively, 
far easier of accomplishment when the School Board 
intends ultimate operation to be founded upon the 
free choice of the pupils.

For its holding, the Fourth Circuit relied explicitly on 
Briggs v. Elliott, 132 F. Supp. 776 (E. D. S. C. 1955), 
which the Fifth Circuit concluded to be inconsistent with 
the constitutional requirements imposed by Brown. The 
completely opposite results were reached by the Fourth 
and Fifth Circuits in factual circumstances that were 
identical insofar as they are material to the decision. 
The basis of the Fifth Circuit’s decision that there is a 
constitutional duty throughout the Fifth Circuit to achieve 
“ substantial integration” is that everywhere in the South 
(including Richmond, Virginia), due to “ formerly de 
jure” segregation, “ the separation originally was racially 
motivated and sanctioned by law.”29

Demonstrating more clearly its direct conflict with the 
decision below are the Fourth Circuit’s recent en banc 
decisions in Bowman v. County School Board of Charles 
City County, Va., F. 2d (4th Cir., June 12, 1967), and 
Green v. County School Board of New Kent County, Va.,

29 See, e. g., Panel Opinion, page 77; En Banc Opinion, page 
5, n. 1.



—  20 —

F. 2d (4th Cir., June 12, 1967), which are printed as 
Appendix B, infra. None of the school systems involved 
in those cases adopted any plan of desegregation until 
after the commencement of suits in 1965. As the result 
of those suits, each board adopted a freedom of choice 
plan identical to that approved in Bradley—providing 
only for permissive choices except when a student ini­
tially entered the system or progressed to another school 
level. It is evident from the opinions that the Negro 
appellants challenged the adequacy of the plans on the 
same grounds on which the Fifth Circuit’s decision is 
based. Directly contrary to the decision below, a ma­
jority of the Fourth Circuit held:

In this school case, the Negro plaintiffs attack, as 
a deprivation of their constitutional rights, a “ free­
dom of choice” plan, under which each Negro pupil 
has an acknowledged, “ unrestricted right” to attend 
any school in the system he wishes. They contend 
that compulsive assignment to achieve a greater in­
termixture of the races, notwithstanding their indi­
vidual choices, is their due. We cannot accept that 
contention . . .

If each pupil, each year, attends the school of his 
choice, the constitution does not require that he be 
deprived of his choice unless its exercise is not free. 
This we have held and we adhere to our holdings.

Although the majority opinion of the Fourth Circuit con­
sidered its decision to be consistent with the requirements 
of the decree formulated by the Fifth Circuit in the pres­
ent cases, it clearly did not purport to adopt the objective 
of substantial quantitative integration as a constitutional 
duty, and the concurring opinion of Judges Sobeloff and 
Winter leaves no doubt that the Fourth Circuit’s decision 
conflicts with the decision below in every major constitu­



tional point which petitioners now raise regarding pupil 
assignment. Most notably, it is pointed out that the 
Fourth Circuit’s decision does not require mandatory an­
nual choices with provision for compulsive assignments 
“ to the school nearest his home” in event of a student’s 
failure to exercise a choice, that it does not contemplate 
that the sufficiency of a free choice plan be measured by 
consideration of quantitative results, and that it does not 
require that freedom of choice be replaced if it does not 
result in actual integration. The concurring opinion also 
points out that the Fourth Circuit continues to follow and 
apply the principles in Briggs v. Elliott, in determining 
the constitutional adequacy of desegregation plans. In 
short, there is absolutely no way the Fourth Circuit’s de­
cisions can be squared with that of the Fifth.

2. Eighth Circuit. The Eighth Circuit recently has ex­
pressly rejected each of the major premises which the 
Fifth Circuit sustained. Clark v. Board of Education of 
Little Rock School Dist., 369 F. 2d 661 (4th Cir. 1966), 
rehearing denied 374 F. 2d 569 (8th Cir. 1967). The as­
signment features of the plan approved by the Eighth Cir­
cuit in Clark were the same as those in the Fourth Circuit 
decisions: an unrestricted freedom-of-choice plan with no 
provision for geographic assignments on failure to make 
a choice. The court rejected the contention that the con­
stitutionality of a plan depends upon whether it “ works” 
in achieving numerical results (369 F. 2d at 666):

Thus, they [plaintiffs] argue that the “ freedom of 
choice” plan is not succeeding in the integration of 
the schools.

Though the board has a positive duty to initiate 
a plan of desegregation, the constitutionality of that 
plan does not necessarily depend upon favorable sta­
tistics indicating positive integration of the races. 
. . . The system is not subject to constitutional ob-



—  22 —

jections simply because large segments of whites and 
Negroes choose to continue attending their familiar 
schools.

# # # #

In short, the constitution does not require a school 
system to force a mixing of the races in schools ac­
cording to some predetermined mathematical formula. 
Therefore, the mere presence of statistics indicating 
absence of total integration does not render an other­
wise proper plan unconstitutional.

Regarding the validity in general of a freedom-of-choice 
plan of the sort which petitioners urged the Fifth Circuit 
to allow, the Eighth Circuit concluded:

Notwithstanding the H. E. W. Guidelines and the 
recent opinion of the Fifth Circuit [in Jefferson 
County], when a student is given a well publicized 
annual right to enter the school of his choice, coupled 
with periodic mandatory choices as set forth in the 
Board’s amended plan, we can find on the face of it 
no unconstitutional state action. We find no state act 
that results in discrimination against Negroes [374 
F. 2d at 571].

# # # # # # #
Therefore, if in fact all the students wishing to 

transfer were fully accommodated, the constitution 
would unquestionably be satisfied . . . [374 F. 2d 
at 572].

# # # # # # #
If all of the students are, in fact, given a free and 

unhindered choice of schools, which is honored by 
the school board, it cannot be said that the state is 
segregating the races, operating a school with dual 
attendance areas or considering race in the assign­
ment of students to the classrooms. We find no un­
lawful discrimination in the giving of students a free 
choice of schools [369 F. 2d at 666].



— 23

With respect to the contention that a free choice plan 
must provide for a mandatory annual choice with geo­
graphic assignments on failure to choose, the Eighth Cir­
cuit stated:

They are afforded an annual right to transfer 
schools if they so desire. The failure to exercise this 
right does not result in the student being assigned 
to a school on the basis of race. Rather, the student 
is assigned to the school he is presently attending, by 
reason of a choice originally exercised solely by the 
student [369 F. 2d at 668].

# # # # % # #

On its face, we believe that the plan, as approved by 
us, is proper and constitutional, and appellants have 
made no showing that this non-mandatory freedom 
of choice plan to laterally transfer schools has in­
fringed their constitutional rights [374 F. 2d at 571].

It is true that in rejecting the Fifth Circuit’s present 
decision, the Eighth Circuit commented that the “ factual 
situation” was different in that the Fifth Circuit was 
“ still dealing with dual attendance zones” and that “ a 
much greater degree” of integration has been achieved 
in Arkansas than the states “ directly concerned” in the 
Jefferson County decision. However, the Fifth Circuit’s 
decision was based upon much broader grounds than any 
factual differences between Arkansas and the six states 
comprising the Fifth Circuit—namely, that racial con­
centrations in Southern schools (including those in Ar­
kansas) were originally caused by legally enforced dual 
school systems, and that Southern schools therefore have 
an affirmative duty to do whatever is necessary to elimi­
nate the disproportionate concentrations which are deemed 
to be vestiges of the dual system. The Fifth Circuit’s 
decision was not based on any notion that the petitioner 
Boards continue now to have “ de jure” segregation, but



— 24 —

on the theory that all “ cases in this circuit involve 
formerly de jure segregated schools” (E . g., Panel Opin­
ion, p. 39). The Fifth Circuit’s decision was not based on 
and did not involve dual attendance zones, which admit­
tedly are eliminated by freedom of choice plans, but was 
concerned solely with what it considered to be vestiges of 
the dual school system. Further, the degree of integra­
tion in Arkansas schools generally and in Little Rock 
specifically is not so “ much greater” as to avoid appli­
cation of the Fifth Circuit’s decision. Appendix A 1 to 
the Eeport of the United States Commission on Civil 
Rights, Racial Isolation in Public Schools (1967), lists the 
following as the percentages of total Negro elementary 
students attending schools with 90 to 100 per cent Negroes 
in sample Arkansas cities: Little Rock, 95.6%; Forrest 
City, 98.3%; Helena, 99.5%; Jonesboro, 98.6%; Marvell, 
98.1%; Pine Bluff, 98.2%; Hot Springs, 90.6%. Quite 
plainly, none of the Arkansas schools approach achieve­
ment of the “ substantial-integration” (15% to 18% after 
two years) required by the Fifth Circuit’s decision. More­
over, the Fifth Circuit’s decision is made expressly appli­
cable to every school system in this Circuit, including 
states and communities in which the degree of percentage 
integration is equivalent to or quite substantially larger 
than that in Arkansas.30

3. Sixth Circuit. The petitioners in Deal v. Cincinnati 
Board of Education, No. 1358, October Term, 1966, assert 
in their petition for certiorari that the Sixth Circuit’s 
decision in Deal v. Cincinnati Board of Ed., 369 F. 2d 55
(6th Cir. 1966), is in conflict with the Fifth Circuit’s deci­
sion below. We agree. The Deal decision rests on that 
circuit ’s interpretation of Brown as holding that the very

so p or example, the 1966-67 statistical summary compiled by 
the Southern Education Reporting Service shows for the 1966-67 
school year th a t the percentage of Negro enrollment in schools 
with whites was 44.9% in Texas, 22.3% in Florida.



25 —

right which is accorded constitutional protection is the 
individual student’s freedom of choice, and that the Four­
teenth Amendment operates only to prohibit “ enforced 
segregation” impinging on that freedom of choice.31 
The decision of the Fifth Circuit, to the contrary, is 
based on the totally inconsistent interpretation of Brown 
resulting in its conclusion that “ freedom of choice is not 
a goal in itself” and that “ a school child has no alienable 
right to choose his school,” and indeed that in order to 
effectuate a goal of “ substantial-integration” the Consti­
tution affirmatively requires restriction on freedom of 
choice for the individual by compelling his assignment to 
other schools. See also Kelley v. Board of Education of 
City of Nashville, 270 F. 2d 209 (6th Cir. 1959), where 
the Sixth Circuit applied the same principles in the con­
text of a desegregation plan adopted by a school system 
which previously had a “ de jure” segregated system.

4. Other Circuits. A number of other circuits have held 
uniformly that neither the Fourteenth Amendment nor this 
Court’s decisions require school systems to eliminate or 
relieve racial concentrations or imbalances in certain 
schools not shown to result from purposeful and enforced

31 The Sixth Circuit thus concluded in Deal:
“The principle thus established in our law [by Brown 

and subsequent decisions] is that the State may not erect 
irrelevant barriers to restrict the full play _ of individual 
choice in any sector of society. Since it is freedom of 
choice that is to be protected, it is not necessary th a t any 
particular harm be established if it is shown tha t the 
range of individual options had been constricted without 
the high degree of justification which the Constitution re­
quires.”

# # # # # #  *

“The element of inequality in Brown was the unnecessary 
restriction on freedom of choice for the individual, based 
on the fortuitous, uncontrollable, arb itra ry  factor of his 
race.

#  *  *  #  =& *  «=

“We read Brown as prohibiting only enforced segrega­
tion” [369 F. 2d at 59, 60],



— 26 —

segregation by the school boards. Springfield School Com­
mittee v. Barksdale, 348 F. 2d 261, 264 (1st Cir. 1965); 
Bell v. School City of Gary, 324 F. 2d 209 (7th Cir. 1963), 
cert, denied, 377 U. S. 924 (1964); Downs v. Board of 
Education of Kansas City, 336 F. 2d 988 (10th Cir. 1964), 
cert, denied, 380 U. S. 914 (1965). That several of these 
cases involved school systems operated on a neighborhood 
school basis rather than freedom of choice does not lessen 
the conflict in controlling constitutional principle or in­
deed in fact. To conveniently distinguish them with the 
facile label of “ de facto” segregation is not only overly 
simplistic but avoids the fundamental principles of con­
stitutional interpretation on which the Fifth Circuit’s 
decision is based. The Fifth Circuit’s decision is not based 
on any finding that the petitioners or other school systems 
in this circuit continue now to operate “ de jure” segre­
gated schools or that they now engage in purposeful seg­
regation or discrimination. And it could not have been, 
since unrestricted free choice plainly is not legally en­
forced segregation. Rather, it held that a duty to achieve 
“ substantial-integration” to eliminate “ disproportionate 
racial concentrations” extended to them because of their 
“ formerly de jure” segregation.32 Its constitutional theory 
is that despite freedom of choice, the existence of schools 
with racial imbalances can be traced to past practices of 
segregation. The court below accordingly recognized the 
similarity between what is termed “ pseudo de facto segre­
gation in the South,” in the form of continued isolation 
caused by the students’ choices, and what it called “ actual 
de facto segregation in the North.”33 Yet, the similar 
degree of racial imbalance in northern schools can be 
traced to the same or similar causes. Indeed, the Civil 
Rights Commission observes in its most recent report:33®

32 Panel Opinion, pp. 14, 39.
33 Panel Opinion, p. 68.
33a Eacial Isolation in the Public Schools, p. 42 (1967).



— 27 —

“ These cases [involving Northern schools] appear 
to be the legacy of an era, recently ended in some 
places in the North, when laws and policies explicitly 
authorized segregation by race. State statutes au­
thorizing separate-but-equal public schools were on the 
books in Indiana until 1949, in New Mexico and 
Wyoming until 1954, and in New York until 1938. 
Other Northern states authorized such segregation 
after the Civil War and did not repeal their author­
izing statutes until early in the 20th century.”

The Civil Eights Commission report goes on to cite 
examples in a number of states and cities, including Cin­
cinnati, Ohio, Illinois, Kansas, New Jersey and other 
places where segregated schools were operated by law or 
custom, some as recently as 1952 and 1954—the very places 
involved in the Deal, Bell, Downs, and other cases cited 
above. As the dissenting opinion of Judge Gewin in the 
present cases points out, the principles on which the deci­
sion below is based apply equally to the circumstances in 
Bell v. School City of Gary, supra, since, as the district 
court there observed (213 F. Supp. at 822), Gary, Indiana, 
had operated a segregated dual system until 1949. The 
only real distinction between those cases and this one is 
that involved school systems which assigned students to 
neighborhood schools, whereas here the students have 
freedom of choice. However, it has been observed that 
the relatively recent creation of neighborhood schools in 
the North was racially motivated from the outset. As 
stated by Dr. Max Wolff, Senior Research Sociologist for 
the New York Center for Urban Education:34

“ The neighborhood school concept arose in the 
twenties of this century, responding to the widespread 
migration of Negroes to the North after World War I .”

34 Dr. Max Wolff, “The Educational Park ,” Conference on 
Education and Racial Imbalance in the City, page 4 (March, 
1967).



28

There simply is no distinction in constitutional prin­
ciple between the segregation existing in the North and 
that in the Fifth, Fourth, and Eighth Circuits. Every­
where, North and South, school segregation is the result 
of a complex variety of socio-economic causes and condi­
tions including, both North and South, past official policy 
and practices of school segregation.35 Certainly to a 
greater degree than free choice methods of assignment in 
the South, strictly administered neighborhood school poli­
cies in the North involve official participation by school 
officials in the creation and perpetuation of schools with 
“ disproportionate racial concentrations.”36 The Fifth Cir­
cuit’s decision now holds that there is a constitutional 
duty applicable to all school systems in the South to 
eliminate racial imbalance resulting from choices made 
by students. Meanwhile, Northern cities with equally dis­
proportionate racial concentrations in their schools37 and 
with substantially equivalent or greater disparities in 
physical facilities and pupil-teacher ratios as in the 
South38 remain untouched by any duty under the Four­
teenth Amendment to achieve the quantitative integration

35 United States Commission on Civil Rights, Racial Isolation 
in the Public Schools, pages 200-02.

36 The Civil Rights Commission thus concludes that, “geo­
graphical zoning, the most commonly used form of student as­
signment in Northern cities, has contributed to the creation 
and maintenance of racially and socially homogenous schools.” 
Id., a t 202.

37 See Appendix A. 1, Report of U. S. Commission on Civil 
Rights, Racial Isolation in the Public Schools (1967).

38 See Southern Education Report, page 4 (May; 1967), 
setting forth  a comparison of the physical characteristics of 
.schools attended by Negro and white students in the whole na­
tion and in the South, compiled from Table 2, page 11, of the 
U. S. Office of Education Report, Equality of Educational Op­
portunity (1966). It is revealed there, for example, that 
whereas the average pupils per room in the whole nation is 34 
for Negro students and 31 for white, in the metropolitan South 
it is only 30 for Negro students and 34 for white.



29 —

which the Fifth Circuit now requires of the South. We 
do not believe the Constitution is capable of such sec- 
tionalization. If there exists any constitutional duty to 
achieve “ substantial integration” , there is no basis in 
fact or principle why the same duty does not govern 
Northern school systems with segregated schools resulting 
from substantially the same causes and having substan­
tially the same characteristics as those in the South. We 
submit, therefore, that the decision of the Fifth Circuit 
is in conflict in both principle and fact with the decisions 
of other circuits involving so-called “ de facto” segrega­
tion. The conflict is compounded by the fact that all of 
these decisions of other circuits expressly rely on the con­
stitutional principles in the prior decision of the Fifth 
Circuit which are now expressly overruled by the decision 
below.

The Tenth Circuit’s recent decision in Board of Educa­
tion of the Oklahoma City Public Schools v. Dowell,
F. 2d (8th Cir., January 23, 1967), cert, denied, 35 U. S. L. 
Week 3418 (U. S. May 29, 1967), does not remove or les­
sen this conflict. Dowell involved a strictly enforced geo­
graphic zoning method of assignment, not freedom of 
choice. The district court’s order did not require or con­
template the achievement of “substantial integration” and 
did not compel any student to attend a school for the 
purpose of achieving integration. Indeed, the major in­
novation by the district court was a form of free choice 
—“ majority to minority” transfer provision which merely 
permitted students to choose a school outside of 
their zone. The district court’s order was based upon an 
expressed finding of bad faith and a detailed evidentiary 
study of the propriety of the plan it adopted to the pe­
culiar circumstances of the Oklahoma City system; it was 
not based on the broad concept of a constitutional duty 
applying uniformly to all school systems in the circuit 
regardless of good faith and local circumstances, as was



— 30 —

the decision of the Fifth Circuit. The Tenth Circuit’s af­
firmance was predicated expressly on the district court’s 
finding of bad faith, and it was on this ground that it 
distinguished its former decision in Downs. The Tenth 
Circuit’s decision in Dowell was very narrow and did not 
purport to establish any new concept of constitutionnal law 
consistent with that adopted in the present cases by the 
Fifth Circuit. On the contrary, it expressly re-affirmed its 
decision in Downs, where it had said:

Appellants also contend that even though the Board 
may not be pursuing a policy of intentional segre­
gation, there is still segregation in fact in the school 
system and under the principles of Brown v. Board 
of Education, supra, the Board has a positive and 
affirmative duty to eliminate segregation in fact as 
well as segregation by intention. While there seems 
to be authority to support that contention, the better 
rule is that although the Fourteenth Amendment pro­
hibits segregation, it does not command integration 
of the races in the public schools and Negro children 
have no constitutional right to have white children 
attend schools with them.

C. In Holding That There Is an Absolute Duty to 
Achieve Substantial Quantitative Integration, the De­
cision Below Is Erroneous and Conflicts With Decisions 
of This Court.

The Fifth Circuit’s decision seems to be bottomed on 
an interpretation of this Court’s decisions as establishing 
a “ governmental objective of . . . educational opportuni­
ties on equal terms to all”38 which imposes upon the 
students and schools alike a duty to benefit Negroes as a 
class39 even if it requires the subordination of the rights

88 Bn banc Opinion, page 6.
30 B. g., Panel Opinion, pages 47, 50, 51.



— 31 —

and preferences of individual Negro students to the as­
sumed right of the class. Insofar as the decision looks 
toward the attainment of equal educational opportunities 
and requires to this end that the dual system be elimi­
nated through elimination of racial distinctions in faculty 
assignments, activities, and facilities, petitioners have no 
fundamental quarrel. Insofar as this objective is con­
sidered to embrace a duty on children and schools to 
achieve “ substantial-integration”, however, petitioners 
believe the Fifth Circuit has misconstrued the funda­
mental substance of this Court’s decisions.

First, it would seem quite basic that this Court in 
Brown I was concerned with and determined only the 
rights of individuals, as distinguished from any obliga­
tions of individual Negro students to either their class or 
to public education generally. Of course it is true that, 
as the decision below stresses at considerable length, 
Brown was a class action, but the clear intent of Brown 
was to confer the same personal right to all members of 
the class to the attendance of a school without regard to 
race—not that the class as a distinct corporate body it­
self has any right which transcends and subordinates the 
individual rights of its members. Subsequent decisions 
of this Court have expressed the personal nature of the 
right thus conferred upon individual Negroes as members 
of the class. In Brown II, 349 U. S. 294, 300 (1955), it 
was observed that, “ at stake is the personal interest of 
plaintiffs in admission to public schools as soon as prac­
ticable on a non-discriminatory basis.” In Cooper v. 
Aaron, 358 U. S. 1, 19 (1958), the Court similarly spoke 
of “ the right of a student not to be segregated.” No 
subsequent decision has ever intimated that the individual 
right is in any way limited by a theoretical right of the 
class. Underscoring the individuality of the bases of its 
decision is the important finding in Brown I that separa­
tion of children “ solely because of their race generates



— 32 —

a feeling of inferiority as to their status in the community 
that may affect their hearts and minds in a way unlikely 
ever to be undone.” 347 U. S. at 494. But it did not 
decide “ that there must be coerced integration of the 
races in order to accomplish an educational equality, for 
this also would require an appraisal of the effect upon the 
hearts and minds of those who were so coerced.”40 A re­
quirement of “ substantial-integration” by which the con­
stitutionality of a desegregation plan is measured by the 
quantitative results necessarily has the effect of trans­
forming the rights of the individual students as decreed 
by Brown I into an obligation to be assigned to a par­
ticular school in order to accomplish educational benefits 
for the class.

Secondly, an unrestricted freedom of choice plan, if 
fairly and properly administered, constitutes “ a system 
of determining admission to the public schools on a non- 
racial basis,” which Brown II defined as the ultimate 
object of the remedies to he fashioned for pupil assign­
ment. 349 U. S. at 300-01.41 It also effectively eliminates 
any constitutional objection, as expressed in Rogers v. 
Paul, 382 U. S. 198, 199 (1965), based on the fact that 
students might have been previously “ assigned to a 
Negro . . . school on the basis of their race.” For under 
a freedom of choice plan, their assignments are based 
solely on their personal choice. Thus, the 3,348 Negro 
students in the Bessemer system who have made choices 
for the 1967-68 school year will be attending certain 
schools not because of “ constitutionally forbidden” assign-

40 Olson v. Board of Education of Malverne, N. Y., 250 F.
Supp. 1000, 1006 (E. D. N. Y. 1966).

41 Of course, we do not mean to contend tha t there might 
not be other aspects of school operations, apart from the man­
ner of student assignment, for which other requirements might 
be imposed in order to comply fully with Brown II. We are 
speaking here solely of freedom of choice as a constitutionally 
adequate method of student assignment.



— 33

ments based on race but because of their affirmative 
choices. It likewise effectuates the elimination of “ dual 
school systems,” since the school boards no longer main­
tain a dual system based on race but a system of schools 
attended by the children who select them. If the choices 
made by the students result in “ disproportionate concen­
trations of Negroes in certain schools,”42 there may be 
a racial imbalance but on its face it is not an imbalance 
caused by school officials. In requiring that a freedom 
of choice method of assignment must be abandoned as 
constitutionally inadequate solely because it does not 
achieve certain preconceived results, the Fifth Circuit has 
imposed a duty wholly different from and far exceeding 
anything contemplated by the decisions of this Court. 
There is not the slightest intimation in any decision of 
this court that a freedom of choice method of student 
assignment is not constitutionally adequate. On the con­
trary, however, in the few instances in which the Court 
has had occasion to consider or discuss the adequacy of 
free choice plans, it has conveyed a distinct impression 
that they constitute sufficient means of desegregation re­
gardless of the numerical results of their operation— 
an impression which has been a basis for the consistent 
approval of similar plans by circuits other than the Fifth 
Circuit.43 See Goss v. Board of Education of City of 
Knoxville, 373 U. S. 683, 687, 689 (1963); Calhoun v. Lati­
mer, 377 U. S. 263 (1964); cf. Shuttlesworth v. Birming­
ham Bd. of Ed., 358 U. S. 101 (1958); Bradley v. School 
City of Richmond, 382 U. S. 103 (1965).

Moreover, although the decision below requires the 
adoption of another means of assignment, there was no

42 Panel Opinion, p. 6.

43 See, c. g., Bradley v. School Board of City of Richmond,
345 F. 2d 310, 318 (4th Cir. 1965), vacated and remanded on 
other grounds, 382 U. S. 103 (1965).



34 —

evidence before the court that any other method, such as 
geographic zoning, would be as effective. Due to resi­
dential racial isolation, it is likely that in the South as 
now in the North a geographic approach will tend only to 
accentuate racial concentrations in the schools.44 Indeed, 
the Civil Rights Commission does not find freedom of 
choice to be improper if it is properly administered.45

Finally, in the context of an unrestricted free-choice 
plan, the percentage results of themselves evidence neither 
the state action nor the discrimination necessary to the 
assertion by the court below of authority under the Four­
teenth Amendment to compel a change in the method of 
assignment. Unless it be shown that the choices made by 
the students are influenced in some way by school of­
ficials or that they do not reflect the students’ actual 
preferences, any resulting racial imbalance is due to the 
students’ actions. In its conclusion that percentage results 
constitute a sufficient basis for determining the constitu­
tional inadequacy of a plan, the Fifth Circuit followed 
the jury exclusion cases in which it has been held that 
disproportions constitute presumptive evidence of pur­
poseful discrimination.46 But that rule of evidence is 
manifestly inapplicable in the context of a free-choice 
plan since, as in the case of peremptory jury challenges, 
the selection process is not “wholly in the hands of state 
officers.” Swain v. Alabama, 380 IJ. S. 202, 226-28 (1965). 
On the contrary, the selection process is wholly in the 
hands of the children. Yet, there was absolutely no evi-

44 As observed in Rep. U. S. Comm, on Civil Rights, Racial 
Isolation in the Public Schools, p. 60 (1967), “since residen­
tial segregation generally is as intense in Southern and border 
cities as in Northern cities, the racial composition of Southern 
and border city schools substantially reflects the pattern  of 
residential segregation.”

45 Id., a t 66-70.
46 Panel Opinion, pp. 95-96.



35

deuce in these cases, and the court referred to nothing 
outside the record, which indicates in the slightest that 
the students’ choices were influenced by any consideration 
other than personal preference.

II.

The Civil Rights Act of 1964 Does Not Provide 
Authority for the Decision.

Although the decision discusses previous decisions of 
this Court and draws alternately on the Fourteenth 
Amendment and on the “ 1966 Guidelines” of the Depart­
ment of Health, Education and Welfare,47 it is evident 
that all of the major substantive requirements imposed 
by the decision and decree are based directly and solely 
on the H. E. W. Guidelines.48 The decision of the panel 
thus commences with the suggestion that the Civil Rights 
Act of 1964 establishes new and different constitutional 
standards for school desegregation.49 It never mentions, 
however, where in the Civil Rights Act or its legislative

47 The 1966 “Guidelines” are printed as Exhibit I to the 
Petition in Caddo Parish School Board v. United States.

48 For example, both the percentage requirements (see p. 
95; 372 F. 2d at 887) and all of the essential provisions of 
the uniform decree (see p. 112, 372 F. 2d at 894) are drawn 
specifically from the Guidelines. Although the opinion states 
that the “substantive requirements of the decree derive from 
the Fourteenth Amendment as interpreted by the decisions of 
the Supreme Court and of this Court” and th a t the decision 
looks to the Guidelines only “ [f] or administrative details,” 
the fundamental requirements of the Guidelines to which peti­
tioners object are clearly of constitutional dimension, rather 
than m atters of mere administrative detail. I t is equally clear 
that for such substantive requirements—and we speak here 
of the fundamental requirements of mandatory quantitative 
integration and of a uniform detailed decree—there is no 
precedent in any decision of either this Court or prior decisions 
of the 5th and other circuits.

49 See generally pgs. 12-16; 372 F. 2d at 849-52.



36

history any such new constitutional standards are estab­
lished, or indeed the nature of the new standards which 
it is considered to establish. It simply concludes that 
the 1966 Guidelines express these new standards and then 
holds that the Guidelines are constitutional and within 
the congressional intent of the Civil Eights Act. How 
this conclusion is reached is never demonstrated. It is 
based on the Court’s view of Title VI as the part of the 
Act primarily intended to achieve school desegregation— 
not Title IV which is the only part of the Act which deals 
specifically with school desegregation.50 The legislative 
history to the Act repudiates any notion that Title VI 
was intended to be the main vehicle for school desegrega­
tion.51

Moreover, Title IV, which dealt specifically with 
schools, provided in two separate places that the Act was 
not intended to provide means for the relief or elimination 
of racial imbalance. (See Sections 401 (b) and 407 (a) 
(2).) As recognized in the opinion below, the legislative 
history demonstrates that these provisions regarding ra­
cial imbalance were expressly intended by Congress to 
incorporate the constitutional principles and rationale of 
Bell v. School City of Gary, 324 F. 2d 209 (7th Cir. 1963), 
which held, relying on Briggs v. Elliot, supra, that the 
constitution does not require affirmative mixing.52 Inas­
much as the decision below requires the elimination of 
racial imbalance, to avoid this clear intent the decision

50 See Opinion, p. 19.

31 See E. g., 140 Cong. Rec. 6840 (April 7, 1964) ; 110 Cong. 
Rec. 12690 (June 9, 1964); 110 Cong Ree. 6847; 110 Cong. Rec. 
8703 (April 24, 1964).

32 110 Cong. Rec. 12294-95 (Sen. Humphrey, June 4, 1964). 
Senator Humphrey thus summarized the in tent of the provi­
sions :

“The bill does not attem pt to integrate the schools but 
it does attem pt to eliminate segregation.” Id.



— 37 —

below states that Congress’ use of the term “ racial im­
balance” and its adoption of Bell v. School City of Gary, 
supra, were intended to apply only to Northern schools. 
Yet, leading Senate proponents of the bill stated specif­
ically that the proviso to Section 407 (a) (2) was intended 
to apply equally to all parts of the country.53

The virtual adoption by the decision below of the con­
stitutional standards applied by the Department of Health, 
Education and Welfare not only raises serious questions 
regarding the proper relationship between the Federal 
Judiciary and administrative agencies in formulating con­
stitutional standards, but it also creates a conflict with 
decisions of other circuits. A majority of the Fourth 
Circuit did not adopt the “ guidelines” in its most recent 
decisions (See Appendix B, infra), and the Eighth Cir­
cuit has refused to follow the “ constitutional require­
ments” of the guidelines in Clark v. Board of Education 
of Little Rock, 374 F. 2d 569 (8th Cir. 1967).54

53 See E. g., 110 Cong. Rec. 13345 (June 15, 1964), where 
Sen. Saltonstall stated that, “This provision would certainly 
apply to all parts of the country.”

34 Although the Eighth Circuit has said it gives weight to the 
“guidelines”, it specifically does not follow their requirements 
which are of constitutional dimension. I t thus observes (374 
F. 2d at 571):

“If  a court’s view of constitutional requirements results 
in federal funds being channeled to where the legislative 
branch feels they are unwarranted, this is a defect tha t 
must be cured by the administrative and legislative 
branches of our Government. That problem should not be 
met by the Court’s altering its standards of constitutional 
protections so that these protections might correspond to 
the present policy of an administrative agency. If we ac­
cept this ‘easy’ remedy to the proper allocation of federal 
funds, we would be accepting the position tha t the flow 
of federal money is the final arbiter of constitutionally 
protected rights.”



— 38 —

III.

The Requirement by the Decision Below of a Uniform De­
tailed Decree Conflicts With the Decision of 

This Court and Other Circuits.

This court in Brown II, 349 U. S. 294 (1955), determined 
that it should remand the cases to the trial courts for 
remedial implementation rather than “ formulate detailed 
decrees” itself. 349 U. S. at 299 n. 2. The reasons for its 
determination were because of the district courts’ “ prox­
imity to local courts”, the necessity of “ solution of varied 
local school problems” and the desirability for a “ prac­
tical flexibility in shaping its remedies . . . and a facility 
for adjusting and reconciling public and private needs.” 
Id. at 299-300. Sinee that time this court and every other 
federal appellate court has adhered to this determination 
in every school desegregation case. In its most recent de­
cisions, in Rogers v. Paul, 382 U. S. 198 (1965), and Brad­
ley v. School Board of City of Richmond, 382 U. S. 103 
(1965), the cases were remanded to the district courts for 
evidentiary hearings regarding the necessity and pro­
priety of provisions for teacher desegregation.

The decision below adopts in its uniform detailed de­
cree substantially the provisions of H. E. W. Guidelines 
issued after these appeals were taken. In doing so, the 
basic purposes of this court’s remands in Brown II and 
other instances were ignored. None of the petitioners 
were afforded any opportunity of a evidentiary inquiry 
as to the effect and propriety of these minutely restrictive 
provisions on the operation of their school systems. As a 
result, it is impossible to anticipate what effect its pro­
visions will have on the educational functions and peroga- 
tives of local schools which are wholly unrelated to race or 
segregation. Only educators and school administrators 
are in a position to assess the effects; neither the attor-



— 39

neys for the school boards, nor the members of the court 
below have the necessary knowledge or training.

CONCLUSION.

For the foregoing reasons, this petition for a writ of 
certiorari should be granted.

Respectfully submitted,

REID 15. BARNES,

WILLIAM (L SOMERVILLE, JR., 
367 North 20th Street. 

Birmingham, Alabama,

MAURICE F. BISHOP,

JOHN C. SATTERFIELD,
Counsel for Petitioners.

Of Counsel:
LANGE, SIMPSON, ROBINSON & 

SOMERVILLE,
Exchange Security Bank Building, 

Birmingham, Alabama.



APPENDIX.



41

APPENDIX A.

Constitutional and Statutory Provisions Involved.

Section 1, of the Fourteenth Amendment to the Consti­
tution of the United States:

All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are 
citizens of the United States and of the state wherein 
they reside. No state shall make or enforce any law 
which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any state de­
prive any person of life, liberty, or property, without 
due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.

Civil Rights Act of 1964:
Section 401. As used in this title—
(a) “ Commissioner” means the Commissioner of 

Education.
(b) “ Desegregation” means the assignment of stu­

dents to public schools and within such schools with­
out regard to their race, color, religion, or national 
origin, but “ desegregation” shall not mean the as­
signment of students to public schools in order to 
overcome racial imbalance.

(c) “ Public school” means any elementary or 
secondary educational institution, and “ public col­
lege” means any institution of higher education or 
any technical or vocational school above the second­
ary school level, provided that such public school or 
public college is operated by a State, subdivision of 
a State, or governmental agency within a State, or 
operated wholly or predominantly from or through 
the use of governmental funds or property, or funds 
or property derived from a governmental source.



— 42 —

(d) “ School board” means any agency or agencies 
which administer a system of one or more public 
schools and any other agency which is responsible for 
the assignment of students to or within such system.

Section 407. (a) Whenever the Attorney General
receives a complaint in writing—

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

(2) signed by an individual, or his parent, to the 
effect that he has been denied admission to or not 
permitted to continue in attendance at a public col­
lege by reason of race, color, religion, or national 
origin,
and the Attorney General believes the complaint is 
meritorious and certifies that the signer or signers 
of such complaint are unable, in his judgment, to 
initiate and maintain appropriate legal proceedings 
for relief and that the institution of an action will 
materially further the orderly achievement of de­
segregation in public education, the Attorney General 
is authorized, after giving notice of such complaint 
to the appropriate school board or college authority 
and after certifying that he is satisfied that such 
board or authority has had a reasonable time to ad­
just the conditions alleged in such complaint, to in­
stitute for or in the name of the United States a civil 
action in any appropriate district court of the United 
States against such parties and for such relief as may 
be appropriate, and such court shall have and shall 
exercise jurisdiction of proceedings instituted pur­
suant to this section, provided that nothing herein 
shall empower any official or court of the United 
States to issue any order seeking to achieve a racial



— 43 —

balance in any school by requiring the transportation 
of pupils or students from one school to another or 
one school district to another in order to achieve such 
racial balance, or otherwise enlarge the existing 
power of the court to insure compliance with consti­
tutional standards. The Attorney General may im­
plead as defendants such additional parties as are or 
become necessary to the grant of effective relief here­
under.

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

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

Section 601. No person in the United States shall, 
on the ground of race, color, or national origin, be 
excluded from participation in, be denied the benefits 
of, or be subjected to discrimination under any pro­
gram or activity receiving Federal financial assist­
ance.

Section 602. Each Federal department and agency 
which is empowered to extend Federal financial as­
sistance to any program or activity, by way of grant, 
loan, or contract other than a contract of insurance



44 —

or guaranty, is authorized and directed to effectuate 
the provisions of section 601 with respect to such 
program or activity by issuing rules, regulations, or 
order of general applicability which shall be con­
sistent with achievement of the objectives of the 
statute authorizing the financial assistance in connec­
tion with which the action is taken. No such rule, 
regulation, or order shall become effective unless and 
until approved by the President. Compliance with 
any requirement adopted pursuant to this section 
may be effected (1) by the termination of or refusal 
to grant or to continue assistance under such pro­
gram or activity to any recipient as to whom there 
has been an express finding on the record, after op­
portunity for hearing, of a failure to comply with 
such requirement, but such termination or refusal 
shall be limited to the particular political entity, or 
part thereof, or other recipient as to whom such a 
finding has been made and, shall be limited in its 
effect to the particular program, or part thereof, in 
which such noncompliance has been so found, or (2) 
by any other means authorized by law: Provided, 
however, That no such action shall be taken until 
the department or agency concerned has advised the 
appropriate person or persons of the failure to comply 
with the requirement and has determined that com­
pliance cannot be secured by voluntary means. In 
the case of any action terminating, or refusing to 
grant or continue, assistance because of failure to 
comply with a requirement imposed pursuant to this 
section, the head of the Federal department or agency 
shall file with the committees of the House and 
Senate having legislative jurisdiction over the pro­
gram or activity involved a full written report of the 
circumstances and the grounds for such action. No 
such action shall become effective until thirty days 
have elapsed after the filing of such report.



45

Section 604. Nothing contained in this title shall 
be construed to authorize action under this title by 
any department or agency with respect to any em­
ployment practice of any employer, employment 
agency, or labor organization except where a primary 
objective of the Federal financial assistance is to 
provide employment.



46 —

APPENDIX B.

United States Court of Appeals 
for the Fourth Circuit.

(No. 10,792.)
Charles C. Green, Carroll A. Green and Robert C. Green, 

infants, by Calvin C. Green and Mary 0. Green, their 
father and mother and next friends, and all 

others of the plaintiffs,
Appellants,

versus
County School Board of New Kent County, Virginia,

et al.,
Appellees.

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

John D. Butzner, Jr., District Judge.

(Argued January 9, 1967. Decided June 12, 1967.)

Before Haynsworth, Chief Judge, and Sobeloff, Bore- 
man, Bryan, J. Spencer Bell, Winter and Craven, Circuit 
Judges, sitting en banc.

S. W. Tucker (Henry L. Marsh, III, Willard H. 
Douglas, Jr., Jack Greenberg and James M. Nabrit, III, 
on brief) for Appellants, and Frederick T. Gray (Wil­
liams, Mullen and Christian on brief) for Appellees.



47 —

Per Curiam:

The questions presented in this ease are substantially 
the same as those we have considered and decided today 
in Bowman v. County School Bd. of Charles City County.1 
For the reasons stated there, the rulings of the District 
Court merit our substantial approval, but the case is 
necessarily remanded for further proceedings in accord­
ance with the District Court’s order and our opinion in 
Bowman.

Remanded.

1 4 Cir., . . .  F. 2d . . .  (Decided this day). The special con­
curring opinion of Judge Sobeloff, in which Judge W inter 
joins, in Bowman is applicable to this case also.

Judge Bell sat as a member of the Court when the case was 
heard but, died before it was decided.



— 48

APPENDIX C.

United States Court of Appeals 
For the Fourth Circuit.

No. 10,793.

Shirlette L. Bowman, Rhoda M. Bowman, Mildred A. 
Bowman, Richard M. Bowman and Sandra L. Bow­

man, Infants, by Richard M. Bowman, Their 
Father and Next Friend, and All Others 

of the Plaintiffs,
Appellants,

versus
County School Board of Charles City County, 

Virginia et ah,
Appellees.

Appeal From the United States District Court for the 
Eastern District of Virginia, at Richmond. John D. 

Butzner, Jr., District Judge.

(Argued January 9, 1967. Decided June 12, 1967.)

Before Haynsworth, Chief Judge, and Sobeloff, Bore- 
man, Bryan, J. Spencer Bell, Winter and Craven, Circuit 
Judges, sitting en banc.

S. W. Tucker (Henry L. Marsh, III, Willard H. Doug­
las, Jr., Jack Greenberg and James M. Nabrit, III, on 
brief) for Appellants, and Frederick T. Gray (Williams, 
Mullen & Christian on brief) for Appellees.



— 49 —

Ilaynsworth, Chief Judge:
In this school case, the Negro plaintiffs attack, as a 

deprivation of their constitutional rights, a “ freedom of 
choice” plan, under which each Negro pupil has an 
acknowledged, “ unrestricted right” to attend any school 
in the system he wishes. They contend that compulsive 
assignments to achieve a greater intermixture of the 
races, notwithstanding their individual choices, is their 
due. We cannot accept that contention, though a related 
point affecting the assignment of teachers is not without 
merit.

I.

“ Freedom of choice” is a phrase of many connotations.
Employed as descriptive of a system of permissive 

transfers out of segregated schools in which the initial 
assignments are both involuntary and dictated by racial 
criteria, it is an illusion and an oppression which is con­
stitutionally impermissible. Long since, this court has 
condemned it.1 The burden of extracting individual pupils 
from discriminatory, racial assignments may not be cast 
upon the pupils or their parents. It is the duty of the 
school boards to eliminate the discrimination which in­
heres in such a system.

Employed as descriptive of a system in which each 
pupil, or his parents, must annually exercise an unin­
hibited choice, and the choices govern the assignments, 
it is a very different thing. If each pupil, each year,

1 Nesbit v. Statesville City Bd. of Educ., 4 Cir., 345 F. 2d 
333, 334 n. 3; Bradley v. School Bd. of Educ. of City of Rich­
mond, 4 Cir., 345 F. 2d 310, 319 and n. 18; Wheeler v. Durham 
City Bd. of Educ., 4 Cir., 309 F. 2d 630, 633; Jeffers v. Whitley, 
4 Cir., 309 F. 2d 621; Marsh v. County School Bd. of Roanoke 
County, 4 Cir., 305 F. 2d 94; Green v. School Bd. of City of 
Roanoke, 4 Cir., 304 F. 2d 118; Hill v. School Bd. of City of 
Norfolk. 4 Cir., 282 F. 2d 473; Jones v. School Bd. of City of 
Alexandria, 4 Cir., 278 F. 2d 72.



50 —

attends the school of his choice, the Constitution does 
not require that he be deprived of his choice unless its 
exercise is not free. This we have held,2 and we adhere 
to our holdings.

Whether or not the choice is free may depend upon 
circumstances extraneous to the formal plan of the school 
board. If there is a contention that economic or other 
pressures in the community inhibit the free exercise of 
the choice, there must be a judicial appraisal of it, for 
“ freedom of choice” is acceptable only if the choice is 
free in the practical context of its exercise. If there are 
extraneous pressures which deprive the choice of its free­
dom, the school board may be required to adopt affirmative 
measures to counter them.

A panel of the Fifth Circuit3 recently had occasion 
to concentrate its guns upon the sort of “ freedom of 
choice” plan we have not tolerated, but, significantly, 
the decree it prescribed for its district courts requires 
the kind of “ freedom of choice” plan we have held 
requisite and embodies standards no more exacting than 
those we have imposed and sanctioned.

The fact that the Department of Health, Education and 
Welfare has approved the School Board’s plan is not 
determinative. The actions of that department, as its 
guidelines, are entitled to respectful consideration, for, 
in large measure or entirely, they are a reflection of ear­
lier judicial opinions. We reach our conclusion inde-

2 W heeler v. Durham City Bd. of Educ., 4 Cir\, 346 F. 2d 768, 
773 ; Bradley v. School Bd. of Educ. of City of Richmond, 4 Cir., 
345 F. 2d 310, 313, vacated and remanded on other grounds,
382 U. S. 103. See Jeffers v. Whitley, 4 Cir., 309 F. 2d 621.

3 United States v. Jefferson County Board of Education, 5 
Cir., 372 F. 2d 836, aff’d on rehearing en banc, . . .  F. 2d . . .  ; 
see also, Deal v. Cincinnati Board of Education, 6 Cir., 369 F. 
2d 55.



51

pendently, for, while administrative interpretation may 
lend a persuasive gloss to a statute, the definition of con­
stitutional standards controlling the actions of states and 
their subdivisions is peculiarly a judicial function.

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

II.

Appropriately, the School Board’s plan included pro­
visions for desegregation of the faculties. Supplemented 
at the direction of the District Court, those provisions 
are set forth in the margin.4

4 The School Board of Charles City County recognizes its 
responsibility to employ, assign, promote and discharge teach­
ers and other professional personnel of the school systems with­
out regard to race, color or national origin. We fu rther rec­
ognize onr obligation to take all reasonable steps to eliminate 
existing racial segregation of faculty that has resulted from 
the past operation of a dual system based upon race or color.

In the recruitm ent, selection and assignment of staff, the 
chief obligation is to provide the best possible education for 
all children. The pattern  of assignment of teachers and other 
staff members among the various schools of this system will 
not be such that only white teachers are sought for predom­
inantly white schools and only Negro teachers are sought for 
predominantly Negro schools.

The following procedures will be followed to carry out the 
above stated policy:

1. The best person will be sought for each position with­
out regard  to race, and the Board will follow the policy 
of assigning new personnel in a manner th a t will work 
toward the desegregation of faculties.

2. Institutions, agencies, organizations, and individuals 
tha t refer teacher applicants to the school system will be 
informed of the above stated policy for faculty desegrega­
tion and will be asked to so inform persons seeking re­
ferrals.

3. The School Board will take affirmative steps including 
personal conferences with members of the present faculty



— 52 —

These the District Court found acceptable under our 
decision in Wheeler v. Durham City Board of Education, 
363 F. 2d 738, but retained jurisdiction to entertain ap­
plications for further relief. It acted upon a record which 
showed that white teachers had been assigned to the 
“ Indian school” and one Negro teacher had been assigned 
to a formerly all white school.

The appellants’ complaint is that the plan is insuffi­
ciently specific in the absence of an immediate require­
ment of substantial interracial assignment of all teachers.

to allow and encourage teachers presently employed to ac­
cept transfers to schools in which the m ajority of the 
faculty  members are of a race different from th a t of the 
teacher to be transferred.

4. No new teacher will be hereafter employed who is 
not willing to accept assignment to a desegregated faculty 
or in a desegregated school.

5. All Workshops and in-service training programs are 
now and will continue to be conducted on a completely 
desegregated basis.

6. All members of the supervisory staff have been and 
will continue to be assigned to cover schools, grades, 
teachers and pupils without regard to race, color or na­
tional origin.

7. I t  is recognized that it is more desirous, where pos­
sible, to have more than one teacher of the m inority race 
(white or Negro) on a desegregated faculty.

8. All staff meetings and committee meetings th a t are 
called to plan, choose materials, and to improve the total 
educational process of the division are now and will con­
tinue to be conducted on a completely desegregated basis.

9. All custodial help, cafeteria workers, maintenance 
workers, bus mechanics and the like will continue to be 
employed without regard  to race, color or national origin.

10. Arrangements will be made for teachers of one race 
to visit and observe a classroom consisting of a teacher 
and pupils of another race to promote acquaintance and 
understanding.

11. The School Board and superintendent will exercise 
their best efforts, individually and collectively, to explain 
this program to school patrons and other citizens of 
Charles City County and to solicit their support of it.



53 —

On this record, we are unable to say what impact such 
an order might have upon the school system or what ad­
ministrative difficulties might be encountered in comply­
ing with it. Elimination of discrimination in the employ­
ment and assignment of teachers and administrative 
employees can be no longer deferred,n but involuntary reas­
signment of teachers to achieve racial blending of faculties 
in each school is not a present requirement on the kind 
of record before us. Clearly, the District Court’s reten­
tion of jurisdiction was for the purpose of swift judicial 
appraisal of the practical consequences of the School 
Board’s plan and of the objective criteria by which its 
performance of its declared purposes could be measured.

An appeal having been taken, we lack the more current 
information which the District Court, upon application to 
it, could have commanded. Without such information, an 
order of remand, the inevitable result of this appeal, must 
be less explicit than the District Court’s order, with the 
benefit of such information, might have been.

While the District Court’s approval of the plan with 
its retention of jurisdiction may have been quite accept­
able when entered, we think any subsequent order, in light 
of the appellants’ complaints should incorporate some 
minimal, objective time table.

Quite recently, a panel of the Fifth Circuit Court of 
Appeals8 has required some progress in faculty integra­
tion for the school year 1967-68. By that decree, school 
boards are required to take affirmative steps to accom-

■’> Bradley v. School Bd. of Educ. of City of Richmond, 382 
U. S. 103; Wheeler v. Durham City Bd. of Educ., 4 Cir., 363 
F. 2d 738.

<> United States v. Jefferson County Bd. of Educ., fn. 3, 
supra.

Judge Bell sat as a member of the Court when the case was 
heard but. died before it was decided.



— 54 —

plish substantial desegregation of faculties in as many of 
the schools as possible for the 1967-68 school year and, 
wherever possible, to assign more than one member of the 
minority race to each desegregated faculty. As much 
should be required here. Indeed, since there was an 
earlier start in this case, the District Court, with the 
benefit of current information, should find it appropriate 
to fashion an order which is much more specific and more 
comprehensive. What is done on remand, however, must 
be done upon a supplemented record after an appraisal 
of the practical, administrative and other problems, if 
any, remaining to be solved and overcome.

Remanded.

Sobeloff, Circuit Judge, with whom Winter, Circuit 
Judge, Johns, concurring specially.

Willingly, I join in the remand of the cases* to the 
District Court, for I concur in what this court orders. I 
disagree, however, with the limited scope of the remand, 
for I think that the District Court should be directed not 
only to incorporate an objective time table in the School 
Boards’ plans for faculty desegregation, but also to set 
up procedures for periodically evaluating the effective­
ness of the Boards’ “ freedom of choice” plans in the 
elimination of other features of a segregated school 
system.

With all respect, I think that the opinion of the court 
is regrettably deficient in failing to spell out specific di­
rections for the guidance of the District Court. The 
danger from an unspecific remand is that it may result 
in another round of unsatisfactory plans that will re­
quire yet another appeal and involve further loss of

* This special occurrence is directed not only to Bowman v. 
County School Bd. of Charles City County, but also Green v. 
County School Bd. of New Kent County, . . .  F. 2d . . ., decided 
this day.



55

time. The bland discussion in the majority opinion must 
necessarily be pitched differently if the facts are squarely 
faced. As it is, the opinion omits almost entirely a factual 
recital. For an understanding of the stark inadequacy 
of the plans promulgated by the school authorities, it 
is necessary to explore the facts of the two cases.

New Kent County. Approximately 1,290 children attend 
the public schools of New Kent County. The system 
operated by the School Board consists of only two 
schools—the New Kent School, attended by all of the 
county’s white pupils, and the Watkins School, attended 
by all of the county’s Negro pupils.

There is no residential segregation and both races are 
diffused generally throughout the county. Yet eleven 
buses traverse the entire county to pick up the Negro 
students and carry them to the Watkins School, located 
in the western half of the county, and ten other buses 
traverse the entire county to pick up the white students 
for New Kent School, located in the eastern half of the 
county. One additional bus takes the counties’ 18 Indian 
children to the “ Indian” school, located in an adjoining 
county. Each of the counties’ two schools has 26 teachers 
and they offer identical programs of instruction.

Repeated petitions from Negro parents, requesting the 
adoption of a plan to eliminate racial discrimination, were 
totally ignored. Not until some months after the present 
action had been instituted on March 15, 1965, did the 
School Board adopt its “ freedom of choice” plan.1

The above data relate to the 1964-1965 school year.2 
Since the Board’s “ freedom of choice” plan has now been 
in effect for two years as to grades 1, 2, 8, 9, 10, 11, and 
12 and one year as to all other grades, clearly this 
court’s remand should embrace an order requiring an 
evaluation of the success of the plans operation over 
that time sjjan, not only as to faculty but as to



— 56 —

pupil integration as well. While the court does not 
order an inquiry in the District Court as to pupil inte­
gration, it of course does not forbid it. Since the District 
Judge retained the case on the docket, the matter will 
be open on remand to a thorough appraisal.

Charles City County. Approximately 1,800 children at­
tend public schools in Charles City County. As in New 
Kent County, Negroes and whites live in the same neigh­
borhoods and, similarly, segregated buses (Negro, In­
dian and white) traverse many of the same routes to pick 
up their respective charges.3 The Board operates four 
schools in all—Ruthville, a combined elementary and 
high school exclusively for Negroes; Barnetts, a Negro 
elementary school; Charles City, a combined elementary 
and high school for whites; and Samaria, a combined 
elementary and high school for Indian children. Thus, as 
plaintiffs point out, the Board, well into the second 
decade after the 1954 Brown decision, still maintains 
“ what is in effect three distinct school systems—each 
organized along racial lines—with hardly enough pupils 
for one system!”4 The District Court found that “ the 
Negro elementary schools serve geographical areas. The 
other schools serve the entire county.” 5 This contrasting 
treatment of the races plainly exposes the prevailing

8 The Eighth Circuit has recently held th a t the operation 
of two school buses, one for Negro children and one for white, 
along the same route, is impermissible. “W hile we have no 
authority  to strike down transportation systems because they 
are costly and inefficient, we must strike them down if their 
operation serves to discourage the desegregation of the school 
systems.” Kelley v. Arkansas Public School D istrict, 35 U. S L 
Week 2619 (8th Cir. April 12, 1967).

4 The Board seems to go to an extreme of inefficiency and 
expense in order to maintain the segregated character of its 
schools, indulging in the luxury of three separate high school 
departm ents to serve a total of approximately 600 pupils, 437 
of whom are in one school, and three separate and overlap­
ping bus services.

5 . . .  F. Supp. . . . ,  . . .  (1966).



—  57 —

discrimination. For the 1964-65 school year, only eight 
Negro children were assigned to grades 4, 6, 7, 8, 9, 
10 and 11 at the all-white Charles City School—an in­
stance of the feeblest and most inconsequential tokenism.

Again, as in New Kent County, Negro parents on sev­
eral occasions fruitlessly petitioned the School Board to 
adopt a desegregation plan. This suit was instituted on 
March 15, 1965 and the Board adopted the plan presently 
under consideration on August 6, 1965. Not until June 
1966 did the Board assign a single Negro teacher to the 
all-white faculty at Charles City School. Apart from 
this faint gesture, however, the faculties of the Negro 
and white schools remain totally segregated.6

The majority opinion implies that this court has gone 
as far as the Fifth Circuit and that the “ freedom of 
choice” plan which that circuit has directed its district 
courts to prescribe “ embodies standards no more exact­
ing than those we have imposed and sanctioned.” If this 
court is willing to go as far as the Fifth Circuit has 
gone, I welcome the resolve.7 It may be profitable, there­
fore, to examine closely what the Court of Appeals of 
that jurisdiction has recently said and done.8 We may

6 Three of the Board’s eight teachers in the 175 pupil “In ­
dian” school are white, the other five are Indian.

The Board asserts that it. is “earnestly” seeing white teach­
ers for the nine existing vacancies in the Negro schools, but 
so far its efforts have not met with success. This is not sur­
prising, considering that the Board has formally declared that 
it “does not propose to advertise vacancies in papers as this 
would likely cause people of both races to apply who are not 
qualified to teach.”

7 A recent article in the Virginia Law Review declares the 
Fifth Circuit to be “at once the most prolific and the most 
progressive court in the nation on the subject of school de­
segregation.” Dunn, Title VI, the Guidelines and School De­
segregation in the South, 53 Va. L. Rev. 42, 73 (1967).

8 United States v. Jefferson County Bd. of Edue., . . . F. 2d 
. . .  (5th Cir. 1966), aff’d on rehearing en banc, . . .  F. 2d . . .  
(5th Cir., Mar. 29, 1967).



then see how much further our court needs to go to 
bring itself abreast of the Fifth Circuit.

I. Pupils.
Under the plan of both Charles City County and New 

Kent County, only children entering grades one or eight 
are required to express a choice. Freedom of choice is 
permitted children in all other grades, and “ any pupil 
in grades other than grades 1 and 8 for whom a choice 
of school is not obtained will be assigned to the school 
he is now attending.”

In sharp contrast, the Fifth Circuit has expressly 
abolished “ permissive” freedom of choice and ordered 
mandatory annual free choice for all grades, and “ any 
student who has not exercised his choice of school within 
a week after school opens shall be assigned to the school 
nearest his home # # V ’9 This is all that plaintiffs have 
been vainly seeking in New Kent County—that students 
be assigned to the schools nearest their homes.

If, in our cases, those who failed to exercise a choice 
were to be assigned to the schools nearest their homes, 
as the Fifth Circuit plan provides, instead of to the 
schools they previously attended, as directed in the plans 
before us, there would be a measure of progress in over­
coming discrimination. As it is, the plans manifestly 
perpetuate discrimination. In view of the situation found 
in New Kent County, where there is no residential segre­
gation, the elimination of the dual school system and the 
establishment of a “ unitary, non-racial system” could 
be readily achieved with a minimum of administrative 
difficulty by means of geographic zoning—simply by 
assigning students living in the eastern half of the county 
to the New Kent School and those living in the western

9 United States v. Jefferson County Br. of Educ., . . .  F. 2d 
. . . ,  . . .  (5th Cir., Mar. 29, 1967) (en banc). (Emphasis sup­
plied.)



— 59

half of the county to the Watkins School. Although a 
geographical formula is not universally appropriate, it is 
evident that here the Board, by separately busing 
Negro children across the entire county to the “ Negro” 
school, and the white children to the “ white” school, is 
deliberately maintaining a segregated system which would 
vanish with non-racial geographic zoning. The conditions 
in this county present a classical case for this expedient.

In Charles City County, Negro elementary school chil­
dren are geographically zoned, while white elementary 
school children are not, despite the conceded fact that 
the children of both races live in all sections of the county. 
Surely this curious arrangement is continued to prop up 
and preserve the dual school system proscribed by the Con­
stitution and interdicted by the Fifth Circuit.

“ The Court holds that boards and officials admin­
istering public schools in this circuit have the affirma­
tive duty under the Fourteenth Amendment to bring 
about an integrated, unitary school system in which 
there are no Negro schools and no white schools—- 
just schools. * * * In fulfilling this duty it is not 
enough for school authorities to offer Negro children 
the opportunity to attend formerly all-white schools. 
The necessity of overcoming the effects of the dual 
school system in this circuit requires integration of 
faculties, facilities, and activities, as well as 
students.” 10

The Fifth Circuit stresses that the goal is “ a unitary, 
non-racial system” and the question is whether a free 
choice plan will materially further the attainment of this 
goal. Stating that courts must continually check the 
sufficiency of school boards’ progress toward the goal, 
the Fifth Circuit decree requires school authorities to

10 . . .  F. 2d at . . .  (en bane). (Emphasis supplied.)



—  60

report regularly to the district courts to enable them to 
evaluate compliance “ by measuring the performance.” In 
fashioning its decree, that Circuit gave great weight to 
the percentages referred to in the HEW Guidelines,11 
declaring that they establish “ minimum” standards

“ for measuring the effectiveness of freedom of choice 
as a useful tool. * # # If the plan is ineffective, longer 
on promises than performance, the school officials 
charged with initiating and administering a unitary 
system have not met the constitutional requirements 
of the Fourteenth Amendment; they should try other 
tools.”12

11 “ [S]trong policy considerations support our holding 
th a t the standards of court-supervised desegregation should 
not be lower than the standards of HEW -supervised de­
segregation. The Guidelines, of course, cannot bind the 
co u rts ; we are not abdicating any judicial responsibilities. 
[Footnote omitted.] But we hold that H EW ’s standards 
are substantially the same as this Court’s standards. They 
are required by the Constitution and, as we construe them, 
are within the scope of the Civil Eights Act of 1964. In 
evaluating desegregation plans, district courts should make 
few exceptions to the Guidelines and should carefully tailor 
those so as not to defeat the policies of HEW  or the hold­
ing of this Court.”

United States v. Jefferson County Bd. of Educ., . . .  F. 2d . . . ,  
. . .  (5th Cir., Dec. 29, 1966), adopted en banc, . . .  F. 2d . . .  
(5th Cir., Mar. 29, 1967). Cf. Cypress v. Newport News Gen. 
Hosp., . . .  F. 2d . . . ,  . . . n. 15 (4th Cir., Mar. 9, 1967).

12 F. 2d at . . . .  (Emphasis supplied.) The HEW  Guidelines 
provide: (1) if 8 or 9 percent of the Negro students in a 
school district transferred  from segregated schools during the 
first year of the plan, the total transfers the following year 
must be on the order of at least twice th a t percentage; (2) if 
only 4 or 5 percent transferred, a “substantial” increase in the 
transfers will be expected the following year—bringing the 
to tal to at least triple the percentage of the previous y e a r ; 
(3) if less than 4 percent transferred  the previous year, then 
the ra te  of increase in to tal transfers for the following year 
must be proportionately greater than that under (2) ; and (4) 
if no students transferred  under a free choice plan, then unless 
a very “substantial s ta rt” is made in the following year, the



61 —

“ Freedom of choice” is not a sacred talisman; it is 
only a means to a constitutionally required end—the 
abolition of the system of segregation and its effects.13 
If the means prove effective, it is acceptable, but if it 
fails to undo segregation, other means must be used to 
achieve this end. The school officials have the continuing 
duty to take whatever action may be necessary to create 
a “ unitary, non-racial system.”

While I would prefer it if this court were more explicit 
in establishing requirements for periodic reporting by the 
school officials, I assume that the District Court will do 
this, rather than place the burden upon the plaintiffs to 
collect the essential data to show whether the free choice 
plan is materially furthering the achievement of “ a uni­
tary, non-racial system.” 14

school authorities will “be required to adopt a different type 
of plan.” HEW  Reg. A.. 45 C. F. R., § 181.54 (Supp. 1966). "

In both New Kent County and Charles City County, a t least 
some grades have operated under a “fredom of choice” plan for 
two years. In Charles City County only 0.6% of the Negro 
students transferred  to the white school for the 1964-65 ses­
sion. Under the standards subscribed to by the F ifth  Circuit, 
therefore, a minimum of 6% of the Negro pupils in th a t county 
should have transferred  to the “white” school the following 
year. Less than this percentage would indicate th a t the free 
choice plan was “ineffective, longer on promises than perform ­
ance,” and th a t the school officials “should try  other tools”—• 
c. g-, geographic zoning or pairing of grades.

In New Kent County, no Negro students transferred  during 
the first year of the plan. Thus, unless the requisite “substantial 
s ta rt” was made the following year, school officials must adopt 
a different plan—one that will work.

13 Judge Wisdom, in Singleton v. Jackson Munic. Separate 
School Dist., 355 F. 2d 865, 871 (5th Cir. 1966), referred  to 
“freedom of choice” plans as a “haphazard basis” for the ad­
m inistration of schools.

14 See Section IX  of the decree issued in United States v. 
Jefferson County Bd. of Edue., . . .  F. 2d . . . ,  . . .  (5th Cir. 
Mar. 29, 1967) (en banc) providing for detailed reports to the 
district courts.



A significant aspect of the Fifth Circuit’s recent decree 
that, by implication, this court has adopted, deserves ex­
plicit recognition. The Jefferson County decree orders 
school officials, “ without delay,” to take appropriate 
measures for the protection of Negro students who exer­
cise a choice from “ harassment, intimidation, threats, 
hostile words or acts, and similar behavior.” Counsel 
for the school boards assured us in oral argument that 
relations between the races are good in these counties, 
and that no incidents would occur. Nevertheless, the fear 
of incidents may well intimidate Negroes who might other­
wise elect to attend a “ white” school.15 To minimize this

15 Various factors, some subtle and some not so subtle, oper­
ate effectively to maintain the status quo and keex) Negro chil­
dren in “their” schools. Some of these factors are listed in 
the recent report issued by the U. S. Commission on Civil 
R ig h ts:

“Freedom of choice plans accepted by the Office of E du­
cation have not disestablished the dual and racially segre­
gated school systems involved, for the following reasons: 
a. Negro and white schools have tended to retain  their 
racial identity ; b. W hite students rarely  elect to attend 
Negro schools; c. Some Negro students are reluctant to 
sever normal school ties, made stronger by the racial 
identification of their schools; d. Many Negro children 
and parents in Southern States, having lived for decades in 
positions of subservience, are re luctant to assert their 
righ ts; e. Negro children and parents in Southern States 
frequently will not choose a formerly all-white school be­
cause they fear retaliation and hostility from the white 
community; f. In some school districts in the South, school 
officials have failed to prevent or punish harassment by 
white children who have elected to attend white schools; 
g. In some areas in the South where Negroes have elected 
to attend formerly all-white schools, the Negro commu­
nity  has been subjected to retaliatory violence, evictions, 
loss of jobs, and other forms of intim idation.”

U. S. Comm’n on Civil Rights, Survey of School Desegregation 
in the Southern and Border States—1965-66, at 51 (1966). In 
addition to the above enumeration, a report of the Office of 
Education has pointed out tha t Negro children in the high 
school grades refrain from choosing to transfer because of re­
luctance to assume additional risks close to graduation. Cole­
man & Campbell, Equality of Educational Opportunity (U. S.



63 —

fear, school officials must demonstrate unequivocally that 
protection will be provided. It is the duty of the school 
boards actively to oversee the process, to publicize its 
policy in all segments of the population and to enlist the 
cooperation of police and other community agencies.16

The plaintiffs vigorously assert that the adoption of 
the Board’s free choice plan in Charles City County, with­
out further action toward equalization of facilities, will 
not cure present gross inequities characterizing the dual 
school system. A glaring example is the assignment of 
135 commercial students to one teacher in the Negro 
school in contrast to the assignment of 45 commercial stu­
dents per teacher in the white school and 36 in the Indian 
school. In the Jefferson County decree, the Fifth Circuit 
directs its attention to such matters and explicitly orders 
school officials to take “ prompt steps” to correct such 
inequalities. School authorities, who hold responsibility 
for administration, are not allowed to sit back complac­
ently and expect unorganized pupils or parents to effect 
a cure for these shockingly discriminatory conditions. 
The decree provides:

“ Conditions of overcrowding, as determined by 
pupil-teacher ratios and pupil-classroom ratios shall, 
to the extent feasible, be distributed evenly between 
schools formerly maintained for Negro students and 
those formerly maintained for white students. If for 
any reason it is not feasible to improve sufficiently 
any school formerly maintained for Negro students, 
* * * such school shall be closed as soon as possible, 
and students enrolled in the school shall be reas­
signed on the basis of freedom of choice.” 17

Office of Education, 1966). See also Hearings Before the Spe­
cial Subcommittee on Civil Rights of the House Committee on 
the Judiciary, 89th Cong., 2d Sess., ser. 23 (1966).

is HEW  Reg. A, 45 C. F. K„ § 181.17 (c) (Supp. 1966).
17 . . .  F. 2d at . . .  (en banc). (Emphasis supplied.)



— 64 —

II. Faculty.
Defendants unabashedly argue that they cannot be com­

pelled to take any affirmative action in reassigning teach­
ers, despite the fact that teachers are hired to teach in 
the system, not in a particular school. They assert cate­
gorically that “ they are not required under the Constitu­
tion to desegregate the faculty.” This is in the teeth of 
Bradley v. School Bd. of Richmond, 382 U. S. 103 (1965).

Having made this declaration, they say that they have 
nevertheless submitted a plan which does provide for 
faculty desegregation, but circumspectly they add that 
“ it will require time and patience.” They protest that 
they have done all that could possibly be demanded of 
them by providing a plan which would permit “ a con­
structive beginning.” This argument lacks appeal an 
eighth of a century after Brown.18 Children too young 
for the first grade at the time of that decision are beyond 
high school age by now. Yet their entire school experi­
ence, like that of their elder brothers and sisters, parents 
and grandparents, has been one of total segregation. They 
have attended only a “ Negro” school with an all Negro 
staff and an all Negro student body. If their studies en­
compassed Brown v. Bd. of Educ. they must surely have 
concluded sadly that “ the law of the land” is singularly 
ineffective as to them.

The plans of both counties grandly profess that the 
pattern of staff assignment “ will not be such that only 
white teachers are sought for predominantly white schools 
and only Negro teachers are sought for predominantly 
Negro schools.” No specific steps are set out, however,

18 “The rule has become: the later the s ta rt the shorter the 
time allowed for transition.” Lockett v. Bd. of Educ. of Mus­
cogee County, 342 F. 2d 225, 228 (5th Cir. 1965). See Rogers 
v. Paul, 382 U. S. 198, 199 (1965) ; Bradley v. School Bd. of 
Richmond, 382 U. S. 103 (1965) ; Griffin v. County School Bd., 
377 U S. 218, 229 (1964); W atson v. City of Memphis, 373 
U. S. 526, 530 (1963).



— 65 —

by which the hoards mean to integrate faculties. It 
cannot escape notice that the plans provide only for 
assignments of “ new personnel in a manner that will 
work towards the desegregation of faculties.” As for 
teachers presently employed by the systems, they will be 
“ allowed” (in Charles City County, the plan reads “ al­
lowed and encouraged” ) to accept transfers to schools in 
which the majority of the faculty members are of the 
opposite race. We are told that heretofore an average 
of only 2.6 new white teachers have been employed an­
nually in New Kent County. Thus the plan would lead 
to desegregation only by slow attrition. There is no 
excuse for thus protracting the corrective process. School 
authorities may not abdicate their plain duty in this 
fashion. The plans filed in these cases leave it to the 
teachers, rather than the Board, to ‘ ‘ disestablish dual, 
racially segregated school systems” and to establish “ a 
unitary, non-racial system.” This the law does not per­
mit.

As the Fifth Circuit has put it, “ school authorities 
have an affirmative duty to break up the historical pat­
tern of segregated faculties, the hallmark of the dual 
system.” 19

“ [U]ntil school authorities recognize and carry out 
their affirmative duty to integrate faculties as well 
as facilities, there is not the slightest possibility of 
their ever establishing an operative non-discrimina- 
tory school system.”20

is . . .  F. 2d at . . . .

20 United States v. Jefferson County Bd. of Edue,, . . . F. 2d 
. . . ,  . . .  (5th Cir. 1966); adopted en banc, . . .  F. 2d . . .  (5th 
Cir. Mar. 29, 1967).

This thought has been similarly expressed in Bradley v. 
School Bd. of City of Richmond, 345 F. 2d 310, 323 (4th Cir. 
1965) (concurring opinion). (Emphasis in the original.)

“I t  is now 1965 and high time for the court to insist 
th a t good faith  compliance requires adm inistrators of



66 —

In contrast to the frail and irresolute plans submitted 
by the appellees, the Fifth Circuit has ordered school of­
ficials within its jurisdiction not only to make initial 
assignments on a non-discriminatory basis, but also to 
reassign staff members “ to eliminate past discriminatory 
patterns. ’ ’

For this reason, I wholeheartedly endorse the majority’s 
remand for the inclusion of an objective time table to 
facilitate evaluation of the progress of school authorities 
in desegregating their faculties. I also join the majority 
in calling upon the District Court to fashion a specific 
and comprehensive order requiring the boards to take 
firm steps to achieve substantial desegregation of the 
faculties. At this late date a desegregation plan contain­
ing only an indefinite pious statement of future good 
intentions does not merit judicial approval.

I must 1disagree with the prevailing opinion, however, 
where it states that the record is insufficiently developed 
to order the school systems to take further steps at this 
stage. No legally acceptable justification appears, or is 
even faintly intimated, for not immediately integrating the 
faculties. The court underestimates the clarity and force 
of the facts in the present record, particularly with respect 
to New Kent County, where there are only two schools, 
with identical programs of instruction, and each with a 
staff of 26 teachers. The situation presented in the records 
before us is so patently wrong that it cries out for im­
mediate remedial action, not an inquest to discover what 
is obvious and undisputed.

It is time for this circuit to speak plainly to its district 
courts and tell them to require the school boards to get 
on with their task—no longer avoidable or deferrable— 
to integrate their faculties. In Kier v. County School Bd.

schools to proceed actively with their nontransferable duty 
to undo the segregation which both by action and inaction 
has been persistently perpetuated.”



67 —

of Augusta County, 249 F. Supp. 239, 247 (W. D. Va. 
1966), Judge Michie, in ordering complete desegregation 
by the following year of the staffs of the schools in ques­
tion, required that “ the percentage of Negro teachers in 
each school in the system should approximate the per­
centage of the Negro teachers in the entire system” for 
the previous year. See Dowell v. School Bd., 244 F. Supp. 
971, 977-78 (W. D. Okla. 1965), aff’d, 35 U. S. L. Week 
2484 (10th Cir., Jan 23, 1967), cert, denied, 35 U. S. L. 
Week 3418 (U. S. May 29, 1967). While this may not be 
the precise formula appropriate for the present case, it 
does indicate the attitude that district courts may be ex­
pected to make if this court speaks with clarity and 
firmness.

III. The Briggs v. Elliott Dictum.
The defendants persist in their view that it is constitu­

tionally permissible for parents to make a choice and 
assign their chlidren; that courts have no role to play 
where segregation is not actively enforced. They say that 
Brown only proscribes enforced segregation, and does not 
command action to undo existing consequences of earlier 
enforced segregation, repeating the facile formula of 
Briggs v. Elliott.21

The court’s opinion recognizes that “ it is the duty of 
the school boards to eliminate the discrimination which 
inheres” in a system of segregated schools where the 
“ initial assignments are both involuntary and dictated 
by racial criteria,” but seems to think the system under 
consideration today “ a very different thing.” I fail to 
perceive any basis for a distinction. Certainly the two 
counties with which we are here concerned, like the rest 
of Virginia, historically had de jure segregation of public

21 “Nothing in the Constitution or in the decision of the 
Supreme Court takes away from the people freedom to choose 
the schools they attend. The Constitution, in other words, does 
not require integration. I t  merely forbids discrimination.” 132 
F. Supp. 776, 777 (E. D. S. C. 1955).



68 —

education, so that by the court’s own definition, the 
boards are under a duty “ to eliminate the discrimination 
which inheres” in such a system. Whether or not the 
schools now permit “ freedom of choice,” the segregated 
conditions initially created by law are still perpetuated 
by relying primarily on Negro pupils “ to extricate them­
selves from the segregation which has long been firmly 
established and resolutely maintained # * V ’22 “ [T]hose 
who operate the schools formerly segregated by law, and 
not those who attend, are responsible for school desegrega­
tion.”23

It is worth recalling the circumstances that gave birth 
to the Briggs v. Elliott dictum—it is no more than dictum. 
A three-judge district court over which Judge Parker 
presided had denied relief to South Carolina Negro pupils 
and when this decision came before the Supreme Court 
as part of the group of cases reviewed in Brown v. Bd. 
of Educ., the Court overruled the three-judge court and 
issued its mandate to admit the complaining pupils to 
public schools “ on a racially non-discriminatory basis 
with all deliberate speed.” Reassembling the three-judge

22 Bradley v. School Bd. of City of Richmond, 345 F. 2d 
310, 322 (4th Cir. 1965) (concurring opinion).

23 Dunn, Title VI, the Guidelines and School Desegregation 
in the South, 53 Va. L. Rev. 42, 45 (1967).

See Dowell v. School Bd., 244 F. Supp. 971, 975, 981 (W. D. 
Okla. 1965), aff’d 35 U. S. L. Week 2484 (10th Cir. Jan . 31, 
1967), cert, denied, 35 TJ. S. L. Week 3418 (U. S. May 29, 1967): 

“The Board maintains tha t it has no affirmative duty to 
adopt policies tha t would increase the percentage of pupils 
who are obtaining a desegregated education. But a school 
system does not remain static, and the failure to adopt an 
affirmative policy is itself a policy, adherence to which, at 
least in this case, has slowed up—in some cases—reversed 
the desegregation process.

#  #  :X= #  #  #  :X=

The duty to disestablish segregation is clear in situations 
such as Oklahoma City, where such school segregation 
policies were in force and their effects have not been cor­
rected” (Emphasis supplied.)



69 —

panel, Judge Parker undertook to put his gloss upon 
the Supreme Court’s decision and coined the famous say­
ing.24 This catchy apothegm immediately became the 
refuge of defenders of the segregation system, and it 
has been quoted uncritically to eviscerate the Supreme 
Court’s mandate.'25 . . .  F. 2d . . . ,  . . . .  (Emphasis sup­
plied).

Having a deep respect for Judge Parker’s capacity to 
discern the lessons of experience and his high fidelity to 
duty and judicial discipline, it is unnecessary for me to 
speculate how long he would have adhered to his view, 
or when he would have abandoned the dictum as un­
workable and inherently contradictory.26 In any event,

24 See n. 19, supra.
25 Judge Wisdom, in the course of a penetrating criticism 

of the Briggs decision, say s:
“Briggs overlooks the fact tha t Negroes collectively are 

harmed when the state, by law or custom, operates segre­
gated schools or a school system with uncorrected effects 
of segregation.

# *  # # # #  #

Adequate redress therefore calls for much more than al­
lowing a few Negro children to attend formerly white 
schools; it calls for liquidation of the state’s system of 
de jure school segregation and the organized undoing of 
the effects of past segregation.

# *  *  *  # *  #

The central vice in a formerly de ju re segregated public 
school system is apartheid by dual zoning * * *. Dual 
zoning persists in the continuing operation of Negro schools 
identified as Negro, historically and because the faculty 
and students are Negroes. Acceptance of an individual’s 
application for transfer, therefore, may satisfy tha t par­
ticular individual; it will not satisfy the class. The class 
is all Negro children in a school district attending, by 
definition, inherently unequal schools and wearing the 
badge of slavery separation displays. Relief to the class 
requires school boards to desegregate the school from which 
a transferee comes as well as the school to which he goes. 
• * * [T]he overriding right of Negroes as a class [is] to 
a completely integrated public education.’'

26 Shortly after pronouncing his dictum in another school 
case, Judge Parker nevertheless recognized that children can­
not enroll themselves and that the duty of enrolling them and



— 70 —

the dictum cannot withstand the authority of the Supreme 
Court or survive its exposition of the spirit of the Brown 
holding, as elaborated in Bradley v. School Bd., 382 U. S. 
103 (1965); Goss v. Bd. of Educ., 373 U. S. 683 (1963); 
Cooper v. Aaron, 358 U. S. 1 (1958).

Anything that some courts may have said in discussing 
the obligation of school officials to overcome the effects 
of de facto residential segregation, caused by private acts 
and not imposed by law, is certainly not applicable here. 
Ours is the only circuit dealing with school segregation 
resulting from past legal compulsion that still adheres 
to the Briggs dictum.

“The Fourth is apparently the only circuit of the 
three that continues to cling to the doctrine of Briggs 
v. Elliott and embraces freedom of choice as a final 
answer to school desegregation in the absence of in­
timidation and harassment.”27 

We should move out from under the incubus of the Briggs 
v. Elliott dictum and take our stand beside the Fifth and 
the Eighth Circuits.

operating schools in accordance with law rests upon the officials 
and cannot be shifted to the pupils or their parents. Carson v. 
W arlick, 238 F. 2d 724, 728 (1956).

27 Dunn, Title VI, the Guidelines and School Desegregation 
in the South, 53 Va. L. Rev. 42, 72 (1967). See United States v. 
Jefferson County Bd. of Educ., . . .  F. 2d . . .  (5th Cir., Mar. 
29, 1967) (en banc); Singleton v. Jackson Munie. Separate 
School Disk, 348 F. 2d 729, 730, n. 5 (5th Cir. 1965) (“ [T]he 
second Brown opinion clearly imposes on public school authori­
ties the duty to provide an integrated school system. Judge 
P ark er’s well known dictum * * # in Briggs v. E lliott * * * 
should be laid to rest. I t  is inconsistent with Brown and the 
later development of decisional and statu tory  law in the area 
of civil rights” ) ; Kemp v. Beasley, 352 F. 2d 14, 21 (8th Cir. 
1965) (“The dictum in Briggs has not been followed or adopted 
by this Circuit and it is logically inconsistent with Brown and 
subsequent decisional law on this subject” ).

, Cf. Evans v. Ennis, 281 F. 2d 385, 389 (3rd Cir. 1960), 
cert, denied, 364 U. S. 933 (1961) : “The Supreme Court has 
unqualifiedly declared integration to be their constitutional 
right.” (Emphasis supplied.)