Blacks, Women Hit High Among Commissioners News Clipping

    MEMORANDUM

TO: Lani Guinier
FROM: Meredith Gibbs
RE: Edmisten v. Gingles

July 1.3, 1984

At the district court hearing in the above matter, the

goverment offered into evidence the testimony of black community

leaders who opposed single-member voting districts. fhe government

sought to use their testimony to show that many members of the

black community did not support the plaintiff's voter dilution

claim. The district court found that the views expressed by

the government's witnesses went to the "desirability of the remedy"

and not to the "existence of a condition of vote dilution". On

appeal, in its jurisdictional statement, the government argues

that the district court erroneously disregarded the "substantial

evidence that black leaders were satisfied with black electoral

access and opportunity. "

I have found three Supreme Court cases which support our

argument that even if the district court erroneously disregarded

the testimony of the government's black expert witnesses, their

testimony is irrelevant in light of the fact that a constitutional

guarantee has been violated.

In Cooper v. Aaron, 358 U.S. 1r16, 3 L.Ed 2d-5 rL5 (1958)

plaintiffs argued that community opposition, unrest and disorder

warfig;ted a delay in integrating the public schools in Little

Rock, Arkansas. The Court summarily rejected this contention

reasoning that the constitutional rights of the defendant school-

children could not give way to resistance by the Arkansas glovernor

and other executive officials. Cooper stands for the proposition



that individual or community opposition to a proposed court or

legistative mandate will not override the vindication of a

federal constitutional guarantee.

In U.S. v; Sgotland l{eck City Bd. of'9d., 407 U.S. 484t49L,

33 L.Ed.2d 75,81 (L972) the Court held that "white flight"r dD out-

ward and obvious denonstration of community opposition to school

desegregation, is an invalid justification for disregarding a

constitutional mandate to completely uproot a dual school system.

In that case, the North Carolina legislature enacted a statute,

Chapter 31, authorizing the creation of a new school district

which, in effect, created a refuge for white students to avoid

desegregation. One of the school board's main arguments in support

of Chapter 31 was that it was necessary to avoid "white flight"

into private shcools by Scotland Neck residents. Affidavits were

introduced into evidence at the district court hearing documenting

the degree of "white flight" since the inception of a unitary

school p1an. The court was unswayed by this evidence of community

resistance; such evidence being analogous to the evidence in our

case of black comrnunity opposition to single member districts.

Similarly, in-Mo+roe'v.:Bd: o-f Commissignersr 391 U.S. 4501

20 L. Ed. 2d 7 33 t7 39 Ogl2l the court re j ected the school board' s

argument that its free transfer p1an, which permitted students

to transfer to another school within their attendance zone, was

necessary in ord.er to prevent white student's from fleeing the

school system. Citing-Brown II, the court stated that "it

should go without saying that the vitatity of these constitutional

principles cannot be allowed to yield simply because of dis-

agreement with them."'Id, at 739



733

,'BRENDA 
". 

;8ii*'dttt"T ,r., Petitioners,

v

BOARD OF COMMISSIONERS OF THE CITY
OF JACKSON, TENN., et al.

391 US 450,20 L Ed 2d 733, 88 S Ct 1700

lNo. 7401

Argued April 3, 1968. Decided May 27, 1968.

SUMMARY

This case, a companion case to Green v County School Board of New
Kent County supra, p. 716, and Raney v Board of Education of Gould
School District, supra, p. 727, similarly presents the question whether
a school board's "free-transfer" plan, which permits a child, after regis-
tering in his assigned school in his attendance zone, to freely transfer to
another school of his choice if space is available, is adequate to comply
with the board's responsibility to effectuate a transition from a racially
segregated school system to a racially nondiscriminatory system. The
school system in question consisted of eight elementary schools, three
junior high schools, and two senior high schools. Under the former state
law, five of the elementary schools, two of the junior high schools, and
one of the senior high schools were operated as "white" sehools, and the
remainder of the schools were operated as "Negro" schools. [n an action
by Negro children arising out of the administration of such "free-transfer"
plan, the United States District Court for the Western District of Ten-
nessee approved the plan in its application to the junior high schools,
but not in its application to the elementary schools. (244 F Supp 353.)
The United States Court of Appeals for the Sixth Circuit affirmed, except
on an issue of faculty desegregation, as to which the case was remanded
for further proceedings. (380 F2d 955.)

On certiorari, the United States Supreme Court vacated the judgment
of the Court of Appeals insofar as it affirmed the District Court's approval
of the plan in its application to the junior high schools, and remanded the
case for further proceedings. In an opinion by BnrNNlN, J., expressing
the unanimous views of the court, it was held that the "free-transfer"
plan was inadequate to comply with the school board's responsibility to
effectuate a transition to a racially nondiscriminatory school system, where,
3 school years after such approval by the District Court, the "Negro"

tlt.



1'

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:

r

]IONROE v BOARD OF COMIIiSSIONERS 736

3eiG rso' io L Ed 2d ?33' 88 s ct 17oo

still almost all white' Inie"' of tne some'cirtumstances-as effectuating a

piaht elementary ..tuoi.'^r*re- still transition from a racially segregated

"tienaea 
only b1' Xtg''o-"-t'-"nJitreott'- ttt'oof system to a racially nondis-

er five had t'otn u'"'tlw as three "ti*inutotv llt'l?3:-'3f"ffi:l ::XHi
Negroes in a student [oii'of 281-to^as fer plan or provlslon

many as 160 in " t'ua"""n?Uoay of 682t ttgt"g'tion is the inevitable conse-

the board mrtst be "quitta 
t"o formu- qu"nt-" may stand under the Four-

late a nerv pl"n. ond''uil'iiJr'i""i "ir'"t t't*;i imlnamtnt; if it cannot be

causes rvhich 'ortu' 
";;;'' 

T'lt -i;;:; ii'"f ='"t' a plan rvill further

fashion steps which';;";i'.;";"ai1sti; rrirt.t than delay conversion to a unr-

callv to convert promptl;; to. a system t"t'' 
' nont"i'i' nondiscriminatory

without a "w'hite" 
'stlhool and ' 

*l'tit'ot system' it is unacceptable'

:i;;' scrroot, but iust schools' civit Rights S 1.2.5 . relief - racial

Civil Rishts s 12.5 _ racial discrim. 
-.'.ai""?i'oi'."ti,'. in schools

ination - "free'tri;ti;;" plan to 4' 
-fi;;lt"lttv of the principle that

desegregate schools ra;i"i;tt;i;in"ation in public educa-

3. while "f""-t-'In-tft'" plans' ti";'it-;;;;t"iit'tiot''t cannot be al-

which permit " .t,iij"io"^r'*"tv i;;.- i""ri-i"r"'r"rJ. simply because of dis-

fer from his assignla-sctooi to an- ;;;;;;"i rvith such principle'

;;i,.;;;i;;i migi't be varid under

.\PPEAR.\NCES OF COUNSEL

James M' Nabrit III argued the cause for petitioners'

Russell Riee argued the cause for respondents'

Louis f' Cf"iUo"'"e argued the cause for the United States' as

amicus ."i"t,-Lv special leave of Court'

Briefs of Counsel' P 1600' infra'

OPINION OF THE COURT

*691 us 1521 The respondent. Board of Com-

*Mr. Justice #;il" delivered *i..i"r"r.-ry tt-r. School Board for

tt.'opinio' Li tr'' court' 
*""rr:lY.i:r',1'r$::' ff:t:l.itt1"t-

This case was arsued with Green i;;;;";;iltid9s -wrt-tr 
the citv limits'

" i;;tv s;r'oor go-"id of Newx-ent iot" o""third-of the citv's popu-

countv, 391 us 4;fi0 i na za z-ro' i""ii; ot ao'ooo -are 
Negroes' the

88 S Ct rOSg, aniil,r*v u Souta "f il;; -r:"rity of whom live in the

Education of ths a;;id Scho-ol Dis- iiti" 
"""1"a1 

area' The school sv-s-

trict, 3e1 us 143'-;d'i 
-fi 2d 727' ;;;"t,',-. ;ight' elementarv schools'

88 S Ct 169?. f-fi" qu.*tion for de- i1.." Junioi high schools' and two

cision is similar i" tt't question de- t"nio'" t'igtt schools' There are

cided in those case-s.--ff.i" however, ;;#0 chillren enrolled in the-sys-

the principat teaiure of a desegrega- ;eiib ;;h;"ls' about 40% of whom'

ii;;;;:which calls in qlttli9,n over 3,200, are Nesroes'

l[.'*oJ X','., li,r"Tffitu13::,fl 'L:Til 
rn 1 e E4 renne ssee bv raw requi red

system in compliance with- Erown *tiui"-t"g"g'ti"' in its public

v Board or eau'jr1iii, iig'ui zga, ;;;..---AcJordinslv, j*i"r',"Tt?;
99 L Ed 10$, # s"ili 1rg (B-Io-wl tarv - schools' 

- 
1

II)-is not "freedom of choice" but 
'Iil"oort' 

and orte senioi high school

a variant commonly referred to as ;;;'A;;'ied as "white" schools'

,.free transrar.,)o''' 
rererreu uu aD 

,ra- tt "a" 
elementary schools' one

rF':

t'

i

!
at
?

*
L

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f
A

*

I



736 U. S. SUPREME

junior high school, and one senior
high school were operated as
"Negro" schools. Racial segrega-
tion extended to all aspects of school
Iife including faculties and staffs.

'[.39] US {53]*After Brown v Board of Educa_
tion, 347 US 488, 98 L Ed 879,74
S Ct 686, 38 ALR2d 1180 (Brown
I), declared such state-imposed dual
systems unconstitutional, Tennessee
enacted a pupil placement law, Tenn
Code S 49-L74L et seq. (1966). That
law eontinued previously enrolled
pupils in their assigned schools and
vested local school boards with the
exclusive authority to approve as-
signment and transfer requests.
No white children enrolled in any
"Negro" school under the statutl
and the respondent Board granted
only seven applications of Negro
children to enroll in ..white,, scho6ls,
three in 1961 and four in 1962. In
March 1962 the Court of Appeals
for the Sixth Circuit held ttrii ttre
pupil placement law was inaclequate
"as a plan to convert a biracial sys_
tem into a nonracial one.,, Norih-
cross v Board of Education of City
of Memphis, 302 F2d 818, g21.

In January 1963 petitioners
brought this action in the District
Court for the Western District of
Tennessee. The complaint sought a
declaratory judgment that respond-
ent was operating a compulsory
racially segregated school system,
injunctive relief against the con-
tinued maintenance of that system,
an order directing the admission to
named "white" schools of the plain-
tiff Negro school children, and an
order requiring respondent Board to
formulate a desegregation plan. The
District Court ordered the Board to
enroll the children in the schools in
question and directed the Board to
formulate and file a desegregation
plan. A plan was duly filed and,

COURT REPORTS 20LEd2d

after modifications directed by the
court were incorporated, the plan
was approved in August 1g68 to be
effective immediately in the elemen-
tary schools and to be gradually ex-
tended over a four-year period to
the junior high schools and senior
high schools. ZZL F Supp 96g.

The modified plan provides for the
automatic assignment of pupils liv_
ing within attendance zoneJ drawn
by the Board or school officials alongr[39r US ,151]
geographic or "natural', *boundaries
and_"according to the capacity and
facilities of the [school] buiidings

." within the zones. Id., at
974. However, the plan also has the
"free-transfer" provision which was
ultimately to bring this case to this
Court: Any child, after he has
complied with the requirement that
he register annually in his assigned
school in his attendance zone, may
freely transfer to another school o1
his choice if space is available, zone
residents having priority in cases of
overcrowding. Students must pro-
vide their own transportation; the
school system does not operate
school buses.

By its terms the "free-transfer"
plan was first applied in the elemen-
.tary schools. After one year of op-
eration petitioners, joined by 27
other Negro school children, moved
in September 1964 for further relief
in the District Court, alleging re-
spondent had administered the plan
in a racially discriminatory manner.
At that time, the three Negro ele-
mentary schools remained all Negro;
and 118 Negro pupils were scattered
among four of the five formerly all-
white elementary schools. After
hearing evidence, the District Court
found that in two respects the
Board had indeed administered the
plan in a discriminatorv fashion.
First, it had systematically denied
Negro children-specifically the 27

intervenors-
from their al
schools wher
in the maj
students se

Negro schoo
been allowed
held this to
lation, see (
tion, 373 US
S Ct 1405, t
the terms o:

Supp 353, i
found that
the lines of
ance zones
three eleme
clude Negrr
white schor

rthose are
schools loct
at 361-362.

In the st
Board filed
posed zone
high schoc
the "white'
Merry, th
school. Ar
the three
racial ider
did have o
otherwise
The facull
spective r

gated. Pr
proposed :

guing firs
gerryman
to assign
"Negro"
children t
Tigrett s

that the
adequate
on a nol
through
that the
a "feedet

[20 L



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*,
a:'tt
!.i-

&$
*T*
rt.

Er*
5

TIONROE v BOARD OF COMMISSIONERS 737

3ei u' {50, 20 L Ed 2d 733' 88 s ct 1?oo

intervenors_the,igt,t-totransfermethodofassigningstudentswhere-
from their utl-N"grot'j;.;*;;;;;; uv "u"rt 

junior high school would

schools where white;;;;;tr 
-;.". 

draw its siuclents from specified ele-

in the majority, 'fif'"'gt' 
white mentary schools' The groupings

students seeking tt'"ttttt from could be made so as to assure

Negro schools t" *hi;'r;h*t, n"a ru.iuilv integrated.student bodies in

been allowea to transler. The court *ri-ir,r." ju"nior high schools, with

held this to be a ."..iiirti"""i "i"- 
au"-r"gu"a for etlucational and ad-

lation, see Goss , B;;;d of Educa- minirtirtiue considerations such as

tion, BTB US 683, 1;L il ii 6Bi, Sg nriiairg capacity.and proximitv of

S Ct 1405, as well ;;;i"'mn ol students to the schools'

ir,"i.t t'of the plan itself' 244F rt,r,L^ r\iorrinr (

Supp 353, 359. St""'* tf'e court tll The District Court held that '/
found that the Board, in drawing petitioners had not sustained their

the lines of the geographic attend- ailegations that the proposed junior

ance zones' h"d'"?;;;*una"t"a high school attendance zones were

three elementary sch6ol ztnes to ex- gerrymandered' saying

;ffi; N;;" residential areas from "Tiqrett lwhite] is located in 
-the

white school zones and to include *;;i;; .;;ii;;,'llerrv lNegro] is

fthose ,r.;:t'lru?Jf:l of Negro tocatea in the central section and

schools located farbher away' Id'' i*ffi [white] is located in the

at 861-862. 
rf,ner a\'v'lr' ru'' 

::::Tt"?i'JT};."Jlt. i,111i, XJI-

In the same 1g64 proceeding the ltu,v,-l,ocate the western section

Board filed with the court its pro- to- tigr"tt' the central section to

posed zones for 
';i',""";h;;" junior ilit"v] "'u.fl'f, ilt'r?1l "uttt:l.to

[i;h ..h";ls, Jackson and Tigrett' *Jackson. irr" L"rraaries follow
ih;':{hit"" junior high schoolt'.1n9 ;;;;i;".tt ot tigr,*avs and rail-
irritv,---it. "Negro"- junjor, hiql ;;;[. According- to ihe school
school. As of the 1964 school year p"irfrti". maps, there are a con-
th;-l;";;- schools retained their lia'"our" number oi N"g.o pupils in
racial identities, although Jackson iii"- .ouif,"r-n part of the Tigrett
aia tra"e one Nesro child among its ;;;.;-;-- ;onsiherable number of

"if,."*i.. all-white student bodv' ;hl; pupils in the middle and
The faculties and staffs of the re- ;;;th.;-;""t. ot the Merrv zone'
spective schools were also segre- 

""J" 
.rnr'iderable number of Negro

gated. Petitioners objected to the 
"rri[-ir- 

fhe southern part o{ !lt"
proposed zones on two gtounds' ar- i;;k;;--r";". The location of the

suing first that they were- racially iili"""-."f,o"t. in an approximate

s*ri*rrraered because so drawn as east-west line makes it inevitable

to assigxr Negro children to the it ri it " three zones divide the city

"Negro" Merry 
-str'oot 

and white il th;;; parts from north to south'

children to the "*iii";'r"kson 'nd while it appears that pro-ximity of

Tigrett schools, 
" 
u'J ttt"*atively pupirt and 

-natural 
boundaries are

that the pt'n *"t*ii anv-event in- ;;; ;t important in zoning for

adequate to reorganize the system .iuniot-ttigf" as in zoning for ele-

on a nonr"iur 
'f,"it' 

Petitioners' mentary ichools"it does not appear

through 
"*p""t"?ir""-."t, 

u"gto ;h"t" N;;" pupils will be discrim'

that the Board be required to adopt ;;;;; u'g'intt'1' 244 F Supp' at

a "feeder system," a commonly used 362'

[ 20 L Ed 2Al-47



U. S. SUPRE}IE COURT REPORTS738 U. S. SUPRE}IT]

As for the recommended "feeder
system," the District Court con-
cluded simply that "there is no con-
stitutional requirement that this
particular system be adopted."
Ibid. The Court of Appeals for the
Sixth Circuit affirmed except on an
issue of faculty desegregation, as to
which the case was remanded for
further proceedings. 380 F2d 955.
We granted certiorari, 389 US 1033,
19 L Ed 2d 821,88 S Ct 771 and
set the case for oral argument im-
mediately follorving Green v County
School Board, supra. Although the
case presented brr the petition for
certiorari concerns only the junior
high schools, the plan in its applica-
tion to elementary and senior high
schools is also necessarily impli-
cated since the right of "free trans-
fer" extends to pupils at all levels.

t2l The principles governing de-
termination of the adequacy of the
plan as compliance with the Board's
responsibility to effectuate a transi-
tion to a racially nondiscriminatory
system are those announced today
in Green v County School Board, su-

.t39r us tsTl
pra. Tested by those *principles the
plan is clearly inadequate. Three
school years have followed the Dis-
trict Court's approval of the attend-
ance zones for the junior high
schools. Yet Merry Junior High
School was still completely a
"Negro" school in the 1967-1968
school year, enrolling some 640
Negro pupils, or over 80% of the
system's Negro junior high school
students. Not one of the "consid-
erable number of white pupils in
the middle and northern Parts of
the Merry zone" assigned there un-
der the attendance zone aspect of
the plan chose to stay at MerrY.
Every one exercised his option to
transfer out of the "Negro" school.
The "white" Tigrett school seem-

OURT REPORTS 20 L Ed 2d

ingly had the same experience in
reverse. Of the "considerable num-
ber of Negro pupils in the southern
part of the Tigrett zone" rqentioned
Ly the Districi Court, only ieven are
enrolled in the student body of 819 ;

apparently all other Negro children
assigned to Tigrett chose to go else-
where. Only the "white" Jackson
school presents a different picture;
there, 349 rvhite children and 135
Negro children compose the student
body. How many of the Negro chil-
dren transferred in from the
"rvhite" Tigrett school does not ap-
pear. The experience in the junior
high schools mirrors that of the ele-
mentary schools. Thus the three
elementary schools that were op-
erated as Negro schools in 1954 and
continued as such until 1963 are still
attended only by Negroes. The five
"white" schools all have some Negro
children enrolled, from as few as
three (in a student body of 781) to
as many as 160 (in a student bodY
of 682).

This experience with "free trang-
fer" was accurately predicted by the
District Court as early as 1963:

"In terms of numbers the
ratio of Negro to white pupils is ap-
proximately 40-60. This figure is'
horvever, somev'hat misleading as a
measure of the extent to which in'

't391 us .1581

tegration will actually occur *under

the proposed plan. Because the
homes of Negro children are con-
centrated in certain areas of the
city, a plan of unitary zoning, even
if prepared without consideration oI
race, will result in a concentration
of Negro children in the zones of
heretofore'Negro' schools and white
children in the zones of heretofore
'white' schools. Moreoaer, this
tentlettcy of concentration in schools
u',ill b; f urther accentttated Ay

th,e errr"ise of choice of schools

t20 L Ed 2dl

I

I
i
t

t
t
E

ilI

. ." 221F
phasis suPPlied.

PlainlY, the I

resPondent's "a
take whatever s'

sary to convert
in which racial t
be eliminated
Green v Count;
pra, at 437-438,
Only by dism
imposed dual s
be achieved. I
end has not bee

does the plan a1

courts for the
promise meani
ward doing so.
ther the dismr
system, the ["
has operated si
dren and their
sponsibility wh
squarely on 1

Green v Count
pra, at 441442
That the Boarc
a mtthod achie
tion of the ol
from its long
effort whatsor
and the delibe
manner in whi
istered the plar
District Court

t3, at The
proved the
attendance-zon
that as drawr
dents to the t
that was capal
ing'ful desegr
schools. But.[:
option has *p
erable numbe
students in
zones to retu.
vitation of tt
fortable secur
lished discrim



Sr

MONROE v BOARD
391 us 450, 20 L Ed

. ." 221F SuPP, at 971. (Em-
phasis supplied.)

Plainly, the Plan does not meet

respondent's "affirmative dutY to
takl whatever steps might be neces-

sary to convert to a unitary sYstem

in which racial discrimination would
be eliminated root and branch.''
Green v CountY School Board, su-
pra, at 437438,20 L Ed 2d at 723'
bnly by dismantling the state-
imposed- dual sYstem'can that end

be achieved. And manifestlY, that
end has not been achieved here nor
does the plan aPProved bY the lower
courts for ttre junior high schools
promise meaningful Progress -to-
ward doing so. "Rather than fur-
ther the dismantling of the dual
system, the f"free transfer"] PIan
has operated simply to burden chil- '

dren and their Parents with a re-
sponsibility which Brown II placed
squarely on the School Board."
Green v County School Board, su-
pra, at 441442,20 L Ed 2d at 726.
That the Board has chosen to adoPt
a m6thod achieving minimal disrup-
tion of the old pattern is evident
from its long delay in making anY
effort whatsoever to desegregate,
and the deliberately discriminatory
manner in which the Board admin-
istered the plan until checked by the
District Court.

t3, rl The District Court aP-

Proved the junior high school
attendance-zone lines in the view
that as drawn they assigned stu-
dents to the three schools in a waY
that was capable of producing mean-
insful desegregation of all three
schools. gut the "free-transfer"

'[391 Lis l59l
option has *permitted the "consid-
erable number" of white or Negro
students in at least two of the
zones to return, at the implicit in-
vitation of the Board, to the com-
fortable securitv of the old, estab.
lished discriminatory pattern. Like

OF COMMISSIONERS
2d ?33, 88 S Cb 1?00

739

the transfer provisions held invalid
in Goss v Board of Education, 373

us 683, 686, 10 L Ed 2d 632, 635'
83 S Ct 1405, "[i]t is readilY aP-

parent that the transfer [provision]
iends itself to perpetuation of segre-
g:ation." While we there indicated
thrt "free-transfer" Plans under
some circumstances might be valid,
we explicitly stated that "no official
transfLr plan or provision of which
racial segregation is the inevitable
consequence may stand under the
Fourteenth Amendment'" Id., at
689, 10 L Ed 2d at 636. So it is
here; no attemPt has been made

to justify the transfer provision as

a device designed to meet "legiti-
mate local Problems," ibid.; rather
it patently oPerates as a device to
allow resegregation of the races to
the extent desegregation would be

achieved by geographicallY drawn
zones. ResPondent's argument in
this Court reveals its PurPose. We
are frankly told in the Brief that
without the transfer oPtion it is
apprehended that white students
wiit flee the school sYstem alto-
gether. "But it should go without
saying that the vitality of these con-
stitutional prineiples cannot be al-
il;;; t; vlera Jimplv because of i

disagreement with them." Brown 
i

tt, ai goo, 99 L Ed at 1106. -)

We do not hold that "free trans-
fer" can have no place in a desegre-
gation plan. But like "freedom of
choice," if it cannot be shown that
such a plan will further rather than
delay conversion to a unitary' non-
racial, nondiscriminatorY school

system, it must be held unaccePt-
able. See Green v CountY School
Board, supra, at 439-441, 20 L Ed
2d at 724-726.

t2I We conclude, therefore, that
the Board "must be required to
formulate a new Plan and, in light
of other courses which appear open



740

to the Board, fashion steps
which promise realistically to con-rt39l us 4601
vert promptly to a rsystem without
a'white' school and a'Negro' school,
but just schools." Id., at 442,20 L
Ed 2d at 726.t

The judgment of the Court of Ap-
peals is vacated insofar as it af-

U. S. SUPREME COURT REPORTS 20LEd2d

firmed the District Court's approval
of the plan in its application to the
junior high schools, and the case is
remanded for further proceedings
consistent with this opinion and
with our opinion in Green v County
School Board, supra.

It is so ordered.

f We imply no agreement with the Dis-
trict Court's conclusion that under the pro-
posed attendance zones for junior high
sehools "it does not appear that Negro
pupils will be discriminated against.'l We
note also that on the record as it now
stands, it appears that petitioners' recom-

mended "feeder system," the feasibility of
which respondent did not challenge in the
District Court, is an effective alternative
reasonably available to respondent to abol-
ish the dual system in the junior high
schools. 39

Defendant war
magazines to a n
repealed, which
the lust of mino
ferences betweer
Term of the Ner

On appeal, th
per curiam opin
it was held that

DoucLAs, J.,
even obscene m
freedom of spee

HARLAN, J.,
(1) the majorit
ute than the cou
in this area of
act to strike do
already been re



75

t407 us r84l
UNITED STATES, Petitioner,

v
SCOTLAND NECK CITY BOARD OF EDUCATION

(No. 70-130)
et al.

PATTIE BLACK COTTON et al., Petitioners,

v
SCOTLAND NECK CITY BOARD OF EDUCATION et al.

(No. 70-187)

407 US 484,33 L Ed 2d 75,92 S Ct 2214

[Nos. 70-130 and 70-187]

Argued February 29 and March l, 1972. Decided June 22, t972.

SUMMARY

After the United States Department of Justice had obtained an agree-
ment whereby a county school board undertook to desegregate a dual,
racially segregated county school district consisting of. 22 percent white
students and77 percent Negro students, and after the state department of
public instruction, acting on a request from the county school board, had
recommended a detailed desegregation plan, the North Carolina state
legislature enacted a statute authorizing a city within the county to create
a separate school district. About 57 percent of the students in the city's
public schools were white, and about 43 percent were Negro, and if
the city had its own school district, a formerly all-white school in the city
would retain a white majority, while a formerly all-Negro school just
outside the city would be 91 percent Negro. In the United States District
Court for the Eastern District of North Carolina, the United States sought
injunctive relief against the establishment of a separate school district
for the city. The District Court granted an injunction, holding that the
state statute was enacted with the effect of creating a refuge for white
students, and that the statute interfered with the desegregation of the
county school system (314 F Supp 65). The United States Court of Ap-
peals for the Fourth Circuit reversed, holding that the effect of the separa-
tion of the city's schools and students on the desegregation of the remainder
of the county was minimal and insufficient to invalidate the state statute
(442 Fzd 576).

Briefs of Counsel, p779, infra.



78 U. S. SUPREME COURT REPORTS 33LEd2d
Burger, C. J., filed an opinion concur- py9llt11d Rehnquist, JJ., joined post,ring in the result, in whlch Si".L*rn, p +of, eS L Ed 2d p g1.

APPEARANCES OF COUNSEL
Lawrence G. rvarace argued the cause for petitioner in No.70-130.
Adam stein argued the cause for petitioners in No. T0-1g2.William T. Joyner and C. Kitchin Joeey 

".g*a-if," cause forrespondents in both cases.
Briefs of Counsel, p 77g, infra.

UNITED

city limits o
approval by :

voters.r Th,
March 3, 19

the 1969 Se

Carolina. Tl
Neck approvr

t

trict in a reft
and the new
steps towarc
school systet

The effect
carve out of
trict a new r

of whom 399
2s6 (43%\
transfer plat
appointed Sc
of Educatio
white and 1
side the city
fer into the
while 44 stt
plied to tran
tem to a ne:
fax County
district plan
of the forrr
Neck High
building loc
limits that
the eounty.

The Unitt
suit in June
and county t
gation of th

1. An earlie
the 1966 sessi
would have cr
trict for Scotl
rounding towr
to-one Negro
plated that th
under a freed
that existing
The bill wac r

2. The vote
to 332 in favr
Ol Scotland
voteru, 360 trr

3. After th,

OPINION OF

t{07 us 4851
Mr. Justice Stewart delivered the

opinion of the Court.

The petitioners in these con-
solidated caseg challenge the imple-
mentation of a North Carolina siat_ute authorizing the creation of a
n-ew- school district for Scoiland
Neck, a city which at the time oi
the statute's enactment was part of
a larger school distriet then'in the
process of dismanfling a dual school
system. In a judgment entered the
same day as its judgment in Councilor Urty of Emporia v Wright,
442 Fzd 570, a decision which-we
Jev:rjse^ today, 402 US p 4b1, BB

: rrg z-d .p Et, 92 S Ct 2196, the
Cgurt of Appeals held that the Dis_
trict..Court erred in .n:oinirrg tf,1
creation of the new school disirict.

Scotland Neck is a community of
about 3,000 persons, located in the
southeastern portion of Halifax
County, North Carolina. Since 1g86,
the city has been a part of the Hali-
fax County Adminiitrative Unit, a
school district eomprising the entire
county with the exception of two
towns located in the northern sec_tion. In the 1968-1969 school year,
10,655 students attended schois inthis system, of whom 77Tc *.""
Negro, 22% white, and lTo Amer_
ican Indian.

The schools of Halifax County
wer-9 completely segregated by race
until 1965. In that year, the school
board adopted a freedom_of-choice

THE COURT

plan that produced very
t,107 us 4861

desegregation. In rn" "lSt ii'rH
school year, all of the white students
in the county attended the four tra-
{itlgnatly all-white schoots, whiie
97% of. the Negro students aitendedth-e L4 traditionally all-Neero
schools. The school-busing .v.iJ*,
used by 90% of. the studenti, was
segregated- by race, and faculty
desegregation was minimal.

_ In 1968, the United States
Department of Justice 

"nte""a 
irrionegotiations with the HalifaxCounty School Board to b;i;;the county's school system l"i;

compliance with federai law. An
agreement was reached wherebythe school board undertook 6provide some desegregation in thefall of 1968, and to effect a com_
pletely unitary system in the 1969_
1970 school year. The State Depart_
ment of Public Instruction, ,ctirg
on a request from the county board,
recommended a detailed plan (the
Interim -Plan) for thg uniiary
system that would have put somlwhite students in every school in
the county, and that *orta have lefi
a white majority in only one school.

In January 19Gg, after the Interim
Plan had been submitted to the
county school board but before any
action had been taken upon it, a biil
was introduced in the state legisla_
ture to authorize the creation of a
new school district bounded by the



UNITEDSTATESvSCoTLANDNECKCITYBD'oFED.79
{0? us {8{, 33 L Ed 2d 75, 92 S ct 2214

citylimitsofScotlandNeck,upontyschools.sThecomplaintasked
,pir"t"i uv ; -r:oritv "] 

th; ciiv's for preliminarv and. permanent in-

;;;;i tn" Uitj was enacted on junctions against the implementa-

March 3, 1909, u...Ctupt.. 31 o-f iion of Chapter 31. Various Negro

the 1g6g Session f,o*.'of Xortfr children, parents, and teachers, the

C'".rfi.". The citizens of Scotland petitioners in No' 70-187 ' were per-

x".t ,ppr"ved the new school mitted to intervene as plaintiffs'
t407 us 4871 

dis- After a three-day hearing before

trict in a referendum a month tater,t two district judges on both this case

andthenewdistrictbegantakingandasimilarcaseinvolvingtwo
steps toward beginning 

"a separate newly created school districts in

..i,Lr 
-;t.d i. *,.'i',ri "i-ie-6e.- ts::tH:t:f,"rY,1",i,i11,,?i,i""Y;",lli

The effect of Chapter 31- was.to the implementation of Chapter 31,
carve out of the Halifax schoo-l dis- finding that "the Act in its appli-
trict a new unit with 695 students' cation creates a refuge for white
of whom ggg (57%') were whlte and students, and promotes segregated
iia t+g%) were Negry' .-under,a schools in Halifax couniy,"- and
transfer plan deviseg !v j|t" ::Y-i{ further that,,[t]he Act impedes and
appointed Scotland-Neck L.ity lJoard 

Cefeats the Halifax County Board of
oI'Pau.rtio", 360 students (350 :

*r,it" and 10' N.g.oi-i*iqi"g ",1- f,}ltjl .JilT,r'#::H#,1:t",1;
fer into the Scotland Neck schools, the public schools in Halifax County

while 44 students 
"O'! 

IT;gro) ap' by the opening of the school vear

plied to transfer out of the city sy,s- 1969-70'"{ After further hearings'

tem to a nearby ..t *t i" tf,e ffiti- t407 us 4881

fax County system. The new the District Court on May 23' 1970'

district planned to use the facilities found Chapter 31 unconstitutional

of the formerly att-wfrite Scotland and permanently enjoined its en-

Neck High School, including one forcement' 314 F Supp 65' The

building located outside the city court of Appeals reversed, 442 F2d'

limits that would be leased from 575' and we granted certiorari' 404

the county Us 821, 30 L Ed 2d' 49,92 S Ct 4?.

The United States filed this law-
suit in June 1969 against both citY
and eounty officials, seeking desegre-
gation of the existing Halifax Coun-

tl-31 The Court of APPeals did
not believe that the seParation of
Scotland Neck from the Halifax
County system should be viewed as

1. An earlier bill had been introduced in
the 1966 session of the legislature, which
would have created a separate school dis-
trict for Scotland Neck and the four sur-
rounding townships, an area with a three-
to-one Neglo majority' It was contem-
plated that the new district would operate
under a freedom-of-choice plan similar to
that existing in the county at the time'
The bill wasr defeated in the State Senate'

2. The vote in the referendum was 813

to 332 in favor of the new school district'
Ol Scotland Neck's 1,382 registered
voten, 360 were Ne8ro.

3. After the preliminary injunction was

issued in this case, the District Court dis-
missed the Ilalifax County Board of Edu-
cation from that part of the case dealing
with Scotland Neck's efrorts to implement
a separate school sYstem' On MaY 19,

iSzo, tlr. court ordered the county-school
board to implement, beginning in the fall
of 19?0, the-Interim Plan proposed by the
State Department ol Public Instruction,
with certain modifications proposed by the
school board.

4. The opinion ol the District Court on

the issuance of the preliminary injunction
is unreported.



80 U. S. SUPREME COURT REPORTS 33LEd2d
an alternative plan for desegregating
!h" county system, because th;
"severance was not part of a aeseg_
lesation plan proposed by the scho6l
board but was instead an action bv
the Legislature redefining the founa"_
aries of local governmental units.,,
442Fzd, at E8B. This suggests that
an action of a state Iegislalure affect_
ing tt " 

de,qegls*.1ion of a dual sys_tem stands on a footing ditrerent
from an action of a sch'ool b;a;d.
But in North Carolina Board of ear_
91tr,on v Swann, 402 US 48, Zg t Ed
2_d 586, 91 S Ct 12g4, decided aftei
the-decision of the Court 

"t epp""i.
in this case, we held that ,,if ;;;;;;:
imposed Iimitation on a school au_
-t|-o-Iity'r discretion operates to in_hibit or obstruct the dis_
establishing of a dual school system,it mus-t falt; state policy ;di;t;;
way when it operatei to hinder ui-nJi_
cation of federal constitutionrt gur"_
311"".:_ Id., at 45, Zg L ea IJ at589. _The fact that ttr" .r"rtio, Jithe Scofland Neck school- ai-iir.iwas authorized by a special act oitne state legislature

t407 US 489I

the schoot board ," .i#1"Jr*?L,:l
thus has no constitrti";; ;lc"ifi:
cance.

[4, t] 1rys have today held that
any attempt by state or local officialsto carve out a new school clistrici
from an existing district that-is i;the process of dismantling a dual
school system .,must be jutgea-ac-
c-ording to whether it hind-erslr fur_
thers the Drocess of school d.*;;_sation. If the proposal would
imoede the dismaniting of , J;;i
system, then a district court, in the
exercise of its rbmedial discretion,
may enjoin it from being carriedort." Wright v Council o1 City oi
Emporia, supra, at 460, gS L Ud ZJ
at 60. The District Court in this case
concluded that Chapter Bl ,,was en-
acted with the effect of creating a

refuge for white students of the
Halifax County School system, anJ
interferes with the desegiegation oithe Halifax County School sys_tem . .,, 814 F Supp, atiA.
The Court of Appeals, however, did
not regard the separation of Scot-
land Neck as creating 

" ".trg. fo"
white students seeking to escfre aL-
segregation, and it held that ,,the

9ffect of the separation of the Scoi-
land Neck schools ana students onthe desegregation of the ,"rnrina"iat the Halifax County ,y.t.rn-is
minimal and insufficient to invatiaaie
Chapter 81.,, 442 FZd at OAZ. Oui
review of the record leads us to con-
clude that the District Couri. ieilr_
mination was the only proper i;i;;-
ence to be drawn from the facts ofthis case, and we ttru, 

".u"r." 
ii"judgment of the Court "i A;;.;i;:

T!9 major impact of Chapter Bl
would fall on the southeastern por-
tion of Halifax County, designated
as District I in the Interim pLn for
Slitary schools proposed by the
State Department of public Instruc_tion. The projected enrollment in
the schools of this district under the
Interim PIan was 2,94g students, oi
whom 78/o werc Negro. If Chan_
ter 31 were implemented, the Scoi_
land Neck schools would be 57/o

t407 us 4901
white, while the schools remainingin District I would be gg/" N.;;;:
The traditional racial identities- ofthe schools in the area would be
maintained; the formerly all_white
Scotland Neck school would ,.trin 

"l:lrit" majority,_while the for*.ify
atl-Negro Brawley school, a higir
scnoot tocated just outside Scofland
Neck, would be gl % Negro.

[6, 7I In Swann v Charlotte-
Mecklenburg Board of Education,
402 US L,2g L Ed 2d 654, 91 S C[
1267, we said that district judges or

UNITED

school autho
every effort t
possible degrt
tion," and tha
to remedy sta
regation therr
tion against
stantially dis
racial compos
LEd2datS
today in Writ
Emporia, sup
at 62, that
achieved by s

system opera
'Negro schoo
tems, each op
within its bor
two new syst
and the othe

tsl In this
ity in the ra,
Scotland Nt
schools remai
Halifax Cou
"substantial''
measuremenl
response am(
side Scotlan
board's proP,
firmed what
the Scotlanc
be the "whi'
while the ot

would remi

Mr. Chief
whom Mr.
Justice Pov
Rehnquist j
result.

I agree thr
rate school s

would tend t

5- The figurr
Appeals were r

mitted to this C

[33 L Ed 2dl-{



UNITED STATES V SCOTLAND NECK CITY BD. OF ED' 81

107 us 484, 33 L Ed 2d 75' 92 S ct 2214

schoolauthorities..shouldmakeGiventhesefacts'wecannotbut
everyefforttoachievethegreatestconctudethattheimplementationof
oossible degree "t u"iu'i'LJ"gt"g'- Chapter :31 ryoul{ have the effect

il#l;#'r.'hJi.^t"rt"rrrting a plan oi impeains the disestablishment of

toremedystate-enforcedschoolseg-tt,.au^tschoolsystemthatexisted
rlJi'ii"t ih"* strould be "a presump- in Halifax Countv'

Hl,;1il":1d:l;:lit"t#,t" 1l',;11; , t8r rhe primarv argument made

racial composition."""if, ]'u'" 2;,';i bv the ttto?i$"t'*t 
rtJl,

L pa za ai slz. And we have said support of
today in Wright v Council-otC:ty:{ Chapter 31 is that the separation of
Emporia. supra, at 463, 33 L Ed 2d itu "i.otfuna Neck schools from
at 62, that "desegregation ls .nor those of Halifax County was neces-

achievecl by splitting a sinsle school ;;;;1;;rrid "white flight" bv Scot-
system operoting.'white schools' and i".i 

-N".f. 
residents into private

,Ttr:ffi';;5r","X?J#,X,l,"[1fi Xm:,ffi'#ltli:]i:J:il'$::
;tf **:}.",:ff ''Iir;;T';"1[: ;;;' -' sffirementar affi davits were

and the other is, in fact, ,Negro., ,' rrrrniti.d'to th. court of Appeals

ao.o..nting the degree to which

t5l In this litigation' the dispar- ir't tvttt*las undergone a loss of

itv in the racial tornpoliiio" 9f ll't ti'auntt since the unitary school

ilJ";iil;' NJJI t"iii"rt and the oiun toor' effect -in 
the fall of 1e70'6

;;;;;i;;.*aining in District I of the sitt *t'itt this development mav be

Halifax county system would be cause for deep concern to the re- 
'

,,substantial" by 
"iry 

.trnaard of spontients, i!--e?I,qqt, as the Cgurj of fl
;;;t;t;t"nt' And tire enthusiastic Appeals reciignized' be accepted- as

response among whites residing out- u tuuto" for achieving anything less

.iJ|-i."tf"nd 
-Nect< to the school tf,r, ."-;fete uprooting oi the dual

[""ra;. froposed transfer plan con- public school system. See Monroe

nit "J 
*r,it the figures suggest: I-.goota <if-fffimissioners' 391 us

ite- stotrund Neck school was to 450' 459'20 L Ed 2d ?33' 739' 88 s ct
be the "white school" of the area' 1700'
while the other District I schools

would remain "Negro schools'" Reversed'

SEPARATE OPINION

Mr. Chief Justice Burger, with
whom Mr. Justice Blackmun, Mr'
Justice Powell, and Mr' Justice

Rehnquist join, concurring in the

result.

I agree that the creation of a sePa-

rate school system in Scotland Neck
would tend to undermine desegrega-

tion efforts in Halifax CountY, and

i tf,r. join in the result reached bY

tf," Coutt. However, since I dis-

."nt"a from the Court's decision in
W"igftt v Council of CitY J! E-t-
porii, 407 us, p 471,33 L Ed 2d P
'OO, t'feel constrained to set forth
Uri"nv the reasons why I distinguish
the cases.

5. The figures supplied to the Court of
lpp."i. *"-"e updated by an affidavit. sub-

miltea to this Court, showing the total en-

[33 L Ed 2dl{

rollment in the Halifax County schoolg at

H;';A"t ot ttt" lg?r-1972 school vear-to
ii""" U*" S,Ogl, of whom 1474 were white'



82 U. S. SUPREME COURT REPORTS 33LEd2d

First, the operation of a separate
school system in Scotland Neck
would preclude meaningful desegre-
gation in the southeastern portion of
Halifax County. If Scotland Neck
were permitted to operate separate
schools, more than 2,200 of the
nearly 3,000 students in this sector
would attend virtually all-Negro
schools located just

t1o7 us n"o'ur.ro" 
of the

corporate limits of Scotland Neck.
The schools located within Scotland
Neck would be predominantly white.
Further shifts could reasonably be
anticipated. In a very real sense,
the children residing in this rel-
atively small area would continue to
attend "Negro schools" and "white
schools." The effect of the with-
drawal would thus be dramatically
different from the effect which could
be anticipated in Emporia.

Second, Scotland Neck's action
cannot be seen as the fulfillment of
its destiny as an independent govern-
mental entity. Scotland Neck had
been a frart of the county-wide school
system for many years; special leg-
islation had to be pushed through
the North Carolina General As-
sembly to enable Scotland Neck to
operate its own school system. The
movement toward the creation of

a separate school system in Scotland
Neck was prompted solely by the
likelihood of desegregation in the
county, not by any change in the
political status of the municipality.
Scotland Neck was and is a part of
Halifax County. The city of Em-
poria, by contrast, is totally inde-
pendent from Greensville County;
Emporia's only ties to the county
are contractual. When Emporia be-
came a city, a status derived pursu-
ant to longstanding statutory pro-
cedures, it took on the legal responsi-
bility of providing for the education
of its children and was no longer en-
titled to avail itself of the county
school facilities.

Third, the District Court found,
and it is undisputed, that the Scot-
land Neck severance was substan-
tially motivated by the desire to
create a predominantly white system
more acceptable to the white parents
of Scotland Neck. In other words,
the new system was designed to
minimize the number of Negro chil-
dren attending school with the white
children residing in Scotland Neck.
No similar finding was made by the
District Court in Emporia, and the
record shows that Emporia's deci-
sion was not based on the projected
racial composition of the proposed
new system.

A

A state pr
Court of Ap
in the Unitr
alleging for
from the gr
had convicte
States Cour'
because the
unconstituti
F2d 370).

On certio:
Although nt
that the prir
systematic ,

oner's allegr
conviction t

Mlnsnnr
joined by I
his race, a
system on'
from grand
of law, it r

bias.

WHtts, J

ment, stati
provides tt
or state gr
central con

t33 L Ed 2dl Briefs o