Brief for the Commonwealth of Virginia, Amicus Curiae

     [||206d51d1-b8a9-4dde-a7e2-39e53206955a||] Supreme Court of the United States 
OCTOBER TERM, 1970 

  

No. 281 
  

JAMES E. SWANN, Et AL, 

Petitioners, 

V. 

CHARLOTTE-MECKLENBURG BOARD OF 

EDUCATION, ET AL., 

Respondents. 

  

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT 

  

BRIEF FOR THE COMMONWEALTH OF VIRGINIA, 
AMICUS CURIAE 
  

ANDREW P. MILLER 
Attorney General 

WiLLiam G. BroaDDUS 
THEODORE |]. MARKOW 

Assistant Attorneys General 
Supreme Court Building 
Richmond, Virginia 23219 

Lewis F. PoweLL, Jr. 
Jorn W. RieLY 
GeorGeE H. HETTRICK 
Guy K. Tower 

Hunton, WiLLiams, Gay, Special Counsel 
PoweLL & GiBsoN 700 East Main Street 

Of Counsel Richmond, Virginia 23212 

Dated September 16, 1970.  



TABLE OF CONTENTS 

. INTRODUCTION   

. THE INTEREST OF VIRGINIA     

. THE Issue BErore THE COURT 

  . Summary OF ARGUMENT 

. ARGUMENT     

A. The Origin Of Racial Segregation Is Irrelevant 

B. Racial Balance Is Not Required 

C. The Highest Quality Of Education Must Be The Goal .. 

D. The Court Below Misapplied Its Rule Of Reason 

  

. CoNcLUSION   

TABLE OF AUTHORITIES 

Cases 

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 (1968) ..2, 11 

Atkins v. School Bd., 148 F. Supp. 430 (E.D.Va. 1957), aff'd 
246 F.2d 325 (4th Cir. 1957 > cert. denied, 355 11.5. 855 

os # 1   

Beckett v. School Bd., 308 F. Supp. 1274 (E.D.Va. 1969) ...9, 11, 22 

Beckett v. School Bd., Civil Action No. 2214 (E.D.Va., Aug. 
14, 1970) 20, 22 

Beckett v. School Bd., Civil Action No. 2214 (E.D.Va., Aug. 
27,1970). - 2 

Bell v. School City, 324 F.2d 209 (7th Cir. 1963), cert. denied, 
377 U.S. 924 (1964) 8 

Blocker v. Board of Educ., 229 F. Supp 709 (E.D.N.Y. 1964) .... 10 

  

  

  

1  



  

Bradley v. School Bd., Civil Action No. 3353 (E.D.Va., Aug. 
200070) oe a A 2, 3 

Brewer v. School Bd., No. 14,544 (4th Cir., June 22, 1970), cert. 

denied, 33.5.1. W. 3522 (11.8. June 29, 1970) (No. 1753)..3, 10 

Brown v. Board of Educ., 347 U.S. 483 (1954) 

1, 11, 15 16, 18, 10, 24 

Brown v. Board of Educ, 349 U.S, 294 (1955) .................... 1, 12, 24 

Brunson v. Board of Trustees, No. 14,571 (4th Cir., June 5, 1970) 

13, 15, 2 

Carter v. West Feliciana School Bd., 396 U.S, 200 (1970) ........ 11 

Crawford v. Board of Educ., No. 822, 854 (Cal. Super. Ct., 

Feb 11, 1070) cr 21 

Daniels v. School Bd., 145 P. Supp. 261 (E.D.Va, 1956) ........ 1 

Davis v. Comty School Bd, 103 PF. Supp. 337 (E.D.Va., 1952) .. 1 

Deal v. Cincinnati Bd. of Edue., 369 F.2d 55 (6th Cir. 1966), 
cert. denied, 389 U.S. 847 (1967) 

Green v. County School Bd., 391 U.S. 430 (1968) 

Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff’d sub 

  

nom., Smuck v. Hobson, 408 F.2d 175 (D.C.Cir. 1969) ........ 17 

James v. Almond, 170 F. Supp. 331 (E.D.Va. 1959), appeal 
dismissed, 359. 11.8. 1006 (1959) ......ccro sinh i 1 

Norihcross v. Board of Edue., 397 U.S. 232 (1970) ...............: 12 

Pierce v. Society of Sisters, 26311.5. 511 (1925) ............ ........ 15 

Thompson v. County School Bd., 144 F. Supp. 239 (E.D. Va. 
1956), aff’d sub nom. School Bd. v. Allen, 240 F.2d 59 (4th Cir. 
1956), cert. denied, 353 U.S. 910, 911 (1957), opinion supple- 
mented, 159 F. Supp. 567 (1957), aff’d 252 F.2d 929 (1958), 
cert. denied, 356 U.S. 958 (1958), injunction dissolved, 204 
B.Supp: 620 (1962) ees 1 

United States v. Montgomery Bd. of Educ., 395 U.S. 225 (1969) 12 

7) 

   



Other Authorities 

  

Page 

Civil Rights Act of 1964, 42 U.S.C. § 2000c(b) (1964) ............... 22 

Education Appropriations Act of 1971, P.L. 91-380, 91st Cong., 

20 Sess, $3209, 210 (1970) ines ins 22 

Elementary and Secondary Education Act of 1965, 20 U.S.C. 
$ 834 (1966), amending 20.11.5.C, § 834 (1965) ..........-....... 22 

S. 4167, 9st Cong., 24 Sess, (1970) ..oooreeereee len i 10 

A. Bickel, The Supreme Court and the Idea of Progress (1970) .... 10 

Christion'Science Monitor, Aug. 14, 1970... civil 23 

Civil Rights U.S.A.: Public Schools North and West, U.S. 
Comm'n oft Civil Rights (1962) ............ccccoccrereracenercrcnncsnrsins 16 

R. Clark, Testimony before Senate Select Committee on Equal 
Educational Opportunity (July 7, 1970) .....ccoenoceieen oe... 9 

Cohen, Defining Racial Equality in Education, 16 U.C.L.A. 
I. Rev, 255 (1089) ...... oncom ieee 18, 19 

Coleman, The Concept of Equality of Educational Opportunity, 
33 Harv. Educ. Rev. 7 (1968)... iiss 19 

J. Conant, Slums and Suburbs (1961) .........ccooreoreetiicrrrnien es 23 

Desegregation of America’s Elementary and Secondary Schools, 
Weekly Compilation of Presidential Documents (March 30, 
1970) mere musormsstts ater ts ait nearer rain ns 21 

Equality of Educational Opportunity, Office of Education, U.S. 

Dept. of Health, Education and Welfare (1966) ............... 4, 18 

Freund, Civil Rights and the Limits of Law, 14 Buffalo L. Rev. 
190 (1964) ....... cocooccsereesioitetirs cesses st tvnteann cn sonsnssscasarebesnes 9 

C. Hansen, Danger in Washington (1963) .....cccieecciincccnnniaas 23 

Kerner, et al., Report of the National Advisory Comm'n on Civil 
Disorders (1008) ....... oo ccomecnscmnmiorsastusasnirssssietliscoibsnranietiossserns 16 

N.Y. Times, Feb. 12, 1970........... - % -21   

10  



  

  

N.Y. Times, Sept. 13,1970 ........ cco cenit iin dis 22 

N.Y. Times, Sept. 14, 1970 ecweniss: shasisazoss 23 

Racial Isolation in the Public Schools, U.S. Comm’n on Civil 

Rigius (1967). ............-. : 4 9 14 25   

United States Census of Population: 1960 Standard Metropolitan 
Statistical Areas, Bureau of the Census, U.S. Dept. of Com- 

merce (1963) i fo ST UC ERY 15 

M. Weinberg, Desegregation Research: An Analysis (1968) ....23, 26 

M. Weinberg, Race and Place, Office of Education, U.S. Dept. of 
Health, Education and Wellare (1967) .........csr-sixescncsssranrasesss 9 

  

1 

   



1 

INTRODUCTION 

The Commonwealth of Virginia, because of the immedi- 

ate effect that the decision in this case will have on many 

thousands of its citizens, requests the Court to consider 

its views outlined in this brief. It seeks modification of the 

opinions of both of the courts below and an expression of 

principles that will guide all courts throughout the nation 

in this most difficult area of basic human relationships. 

II. 

THE INTEREST OF VIRGINIA 

In Virginia, segregation by race in the public schools 

was required by constitution and statute prior to 1954. In 

fact, one of the cases decided here under the style of Brown 

v. Board of Education’ came to this Court from a Vir- 
ginia locality.’ 

It would be erroneous to assert that Virginia localities 

welcomed Brown I and began at once to put into effect the 

remedial steps required by Brown II’; in most places they 

did not. There was, instead, intense public opposition and 

much delay. As a result, litigation arose in many communi- 

ties.* The march toward what more recently has been termed 

1347 U.S. 483 (1954). 
2 Davis v. County School Bd., 103 F. Supp. 337 (E.D.Va. 1952), 

reversed by the Brown decisions. 
8349 U.S. 294 (1955). 
4 See, e.g., Thompson v. County School Bd., 144 F. Supp. 239 

(1956), aff'd sub. nom School Bd. v. Allen, 240 F.2d 59 (1956), cert. 
denied, 353 U.S. 910, 911 (1957), opinion supplemented, 159 F. 
Supp. 567 (1957), aff'd 252 F.2d 929 (1958), cert. denied, 356 U.S. 
958 (1958), injunction dissolved, 204 F. Supp. 620 (1962) ; Daniels 
v. School Bd., 145 F. Supp. 261 (1956); Atkins v. School Bd. 
148 F. Supp. 430 (1957), aff'd 246 F.2d 325 (1957), cert. denied, 
355 U.S. 855 (1957); James v. Almond, 170 F.Supp. 331 (1959), 
appeal dismissed, 359 U.S. 1006 (1959).  



  

2 

a “unitary” system of public schools proceeded inexorably in 

Virginia but, for a decade, it was an unwilling march 

prodded by the courts of the United States. 

It is now fair to say that Virginia localities’ are attempt- 

ing in good faith to comply with the mandate of the Equal 

Protection Clause. But the courts have failed to make it 

clear exactly what compliance entails. The dual system 

must be replaced by a unitary school system,’ but how this is 

to be accomplished is still far from apparent. 

The result has been a chaotic condition in several of 

Virginia’s school systems. Two of its largest school divi- 

sions, as the local systems are called, are located in Rich- 

mond and Norfolk, Virginia's two largest cities. Litigation 

affecting both of these cities has produced orders in August 

of this year substantially rearranging school attendance 

areas and inevitably requiring extensive pupil busing.” This 

has resulted in major disruption of public education and 

confusion among white and black parents, students, faculty 

and staff; it often has led to resentment and even fear. 

The educational process is difficult enough without such 

disruption. The time has come to think first of education 

and the whole body of children to be educated. That, in our 

view, can be accomplished only by the establishment by this 

Court of the parameters within which school officials are to 

act and by which their action is to be judged by the courts. 

The factual situation existing in Charlotte, North Caro- 

lina, presents certain striking similarities to the situations 

presented by Norfolk and Richmond. All three cities are 

5 In Virginia local school boards, pursuant to the State constitution, 
have the primary responsibility to operate the public schools. 

6 Green v. County School Bd., 391 U.S. 430, 438 (1968); Alex- 
ander v. Holmes County Bd. of Educ., 396 U.S. 19, 21 (1968). 

7 Bradley v. School Bd., Civil Action No. 3353 (E.D. Va, Aug. 
17, 1970) (Richmond); Beckett v. School Bd., Civil Action No. 
2214 (E.D. Va, Aug. 27,1970) (Norfolk). 

   



3 

localities where, prior to 1954, segregation by race was re- 

quired by law. In all three, the percentage of black students 

in the school population is significant, the 709%, white and 

30% black ratio of Charlotte becoming 609% white and 

40% black in Norfolk and reversing to less than 409, 

white and more than 609, black in Richmond. 

Plans proposed by HEW and others presented by 

the Norfolk and Richmond School Boards were rejected 

because, the courts said, racial imbalance was not elimi- 

nated in sufficient degree.® That result obtains equally in 

this case from Charlotte. In each of these cases the court’s 

solution was to require greater racial balance and, inevitably, 

massive compulsory busing of students. 

The question in those cases, as here, was whether racial 

balance is an end in itself ; if substantial racial balance must 

be achieved, regardless of other educational factors that are 

of significance in the situation presented, then the District 

Courts were right in Charlotte and Richmond and the Court 

of Appeals was right in Norfolk. If, as we urge, other 
factors are also relevant, those courts were in error. 

What will be decided here is, therefore, entirely relevant 

in the two most critical Virginia situations. For that rea- 

son, the decision here may be determinative in Virginia. 
Therein lies Virginia's interest. 

There are, of course, substantial points of difference be- 

tween Charlotte and the Virginia cities. The difference in 

the racial mix has already been mentioned. This results 

primarily from the fact that, by and large, the Norfolk and 

Richmond school divisions are entirely urban rather than 

both rural and urban as is the case in Charlotte. Norfolk is 

8 Bradley v. School, Civil Action No. 3353 (E.D. Va, Aug. 
17, 1970) (memorandum opinion); Brewer v. School Bd. No. 
14,544 (4th Cir., June 22, 1970), cert. denied, 38 U.S.L.W. 3522 
(U.S. June 29, 1970) (Ne. 1753).  



  

4 

adjoined by two cities, Chesapeake and Virginia Beach; in 

them the percentage of black students is relatively small. 

Richmond is bounded by two counties, Chesterfield and 

Henrico; again their black student percentages are drasti- 

cally lower than is that of Richmond. As urban systems, the 

two Virginia cities do not normally provide transportation 

for pupils. The transportation problem presented by the 

racial balance requirement is therefore more acute because 

of the lack of facilities. 
A brief word may be relevant as to the Norfolk and 

Richmond plans that were rejected by the United States 

courts. In both cities, the rejected plans provide for the 

effective integration of all senior high schools and all junior 

high schools or middle schools. In both plans, the respective 

school boards go far beyond neutral or objective zoning 

plans, gerrymandering natural attendance zones in a man- 

ner designed to increase the degree of integration in the 

systems and to overcome the segregative effects of racial 

residential patterns. Both plans include a majority-to- 

minority transfer provision. The Richmond plan calls for 

“learning centers” where weekly or bi-weekly interracial 

educational experiences are to be provided for each child in 

the system who attends a school with a population 90% or 

more of the same race. Principles of the Norfolk plan were 

explicitly based on the best available social science data, in- 

cluding the highly regarded research projects sponsored by 

the U.S. Office of Education’ and the U.S. Commission on 

Civil Rights." 
In sum, both plans adopt a neighborhood or community 

concept in the sense that attendance areas for elementary 

® Equality of Educational Opportunity, Office of Education, U.S. 
Dept. of Health, Education and Welfare (1966). 

10 Racial Isolation in the Public Schools, U.S. Comm’n on Civil 
Rights (1967). 

   



schools are served by one or several schools and the advan- 

tages of convenience and close school-family relationships 

are retained where practical. Overlaying this concept, how- 

ever, is the use in each plan of all feasible alternatives to 

maximize integration. A number of subsidiary concepts, 

such as pairing, consolidation and closing of schools, are in- 

corporated in the plans. No alternative plan was offered at 

any hearing which would have the effect of increasing the 

amount of desegregation that would result from the school 

board plans, short of a plan which would require compul- 

sory massive busing to attain racial balance throughout each 

system. 

The question before the Virginia federal courts was, 

accordingly, much the same as that presented in Charlotte: 

is racial balance a constitutional requirement? The difficul- 

ties of busing in an urban system were presented to the 

courts in both Virginia cases. The expense of initiation of 

school transportation systems, a factor not present in Char- 

lotte, and the inadequacy of existing public transportation 

systems were explored. The plaintiffs nevertheless sought 

approval of plans requiring cross-busing, even of the 

youngest children. Those plans, in essence, received ulti- 

mate judicial confirmation. 

Virginia opposes racial balance as a constitutional require- 

ment. It believes that such balance must be considered; but 

it should not be the controlling consideration. It seems to us 

that racial balance alone was the determining factor in 

Charlotte, Norfolk and Richmond. We suggest to the Court 

that racial balance is not a desideratum in itself and that 

this Court should declare the constitutional mandate to be 

the best available quality of education for all regardless of 

race or color.  



  

6 

III. 

THE ISSUE BEFORE THE COURT 

The central issue before the Court is whether racial bal- 

ance 1s an end in itself, required by the Constitution with- 

out regard to other educational considerations or other 

values. 

IV. 

SUMMARY OF ARGUMENT 

A. 

The Origin Of Racial Segregation Is Irrelevant 

The proposition that one set of rules applies where the 

origin of racial segregation was de jure and another where 
the origin was de facto is without substance. History is 

irrelevant to the enforcement of a constitutional right. 

Racial segregation has almost everywhere received State 

support. Thus no racial segregation is purely de facto. 

Because the State maintains public schools, a segregated 

system constitutes State action. Its existence, without regard 

to its origin, thus raises a substantial constitutional ques- 

tion. The same rules must apply to non-unitary systems 

wherever found. 

B. 

Racial Balance Is Not Required 

Racial balance in the schools is not a constitutional im- 

perative. No decision of this Court has established such 

a mandate. It is effective neither to accomplish integration 

nor to improve education. Racial balance once prescribed 
may be outdated by population shifts before it becomes ef- 

fective. The effort to attain racial balance promotes resegre- 

   



7 

gation and movement to suburbia. These results defeat the 

goal of racial balancing, adversely affect education and 

contribute to urban deterioration. 

C. 

The Highest Quality Of Education Must Be The Goal 

The goal of the desegregation movement must be to 

achieve the highest quality of education. That has been the 
thrust of previous decisions of this Court. Equal opportunity 

is not to be measured purely by equality of resource appli- 

cation and racial balance; that system best conforms to the 

constitutional mandate that provides, through equal oppor- 

tunity for every student, the highest level of achievement 
for all students of every race, compensating appropriately 

for any deficiencies that may have resulted from previous 

racial segregation. The court below failed to recognize that 

the best educational achievement for all is what the Consti- 

tution demands. 

D. 

The Court Below Misapplied Its Rule Of Reason 

The court below unduly emphasized racial balance. It 

also failed to recognize the relevance of the neighborhood 

school and the disadvantages for all races of extensive 

compulsory busing. The neighborhood school has obvious 

social and educational advantages, particularly at the ele- 

mentary level. It can be used with a number of related tech- 

niques reasonably applied, without destroying neighborhood 

advantages. Modern social scientists have developed many 

considerations that ought to be taken into account in de- 

vising the plan that, giving weight to all relevant disparities, 

best promotes the educational achievement of students of 

all races.  



  

8 

V. 

ARGUMENT 

A. 

The Origin Of Racial Segregation Is Irrelevant 

In its consideration of the question presented here, the 

Court of Appeals, in the plurality opinion, went to some 

lengths to determine that the segregated pattern of housing 

in Charlotte results from governmental action. We consider 
this investigation irrelevant. We consider it more than irrele- 

vant; it may be pernicious. It could lead to one set of rules 

applying in one area of our nation and another set apply- 

ing in another. The constitutional right at issue here should 

be available to all citizens without regard to the fortuitous 

circumstance of the racial history of the places in which 
they live. 

An Unsound Distinction 

Such an investigation presupposes that one set of rules 

applies where the origin of racial segregation was de jure 

and another set where the origin was de facto. As an ex- 

ample of this distinction, reference is made to Deal v. Cin- 
cinnatt Board of Education, 369 F.2d 55 (6th Cir. 1966), 
cert. demied, 389 U.S. 847 (1967). There, the Sixth Circuit 

held that the school board has no duty to bus students 
“. .. for the sole purpose of alleviating racial imbalance that 

itdidnotcause....” (369 F.2d a161)." 
First, the question is not whether the State action is 

limited to schools; it is a matter of State action in all phases 

of race relationships such as public housing and zoning. In 

this context, it is probable that all racial segregation in the 

1 See also Bell v. School City, 324 F.2d 209 (7th Cir. 1963), cert. 
denied, 377 U.S. 924 (1964). 

   



0 

United States, wherever occurring, has at some time been 
maintained or supported by governmental action.* Thus 
there is no such thing as de facto segregation that is not of 
de jure origin in some degree. The distinction purportedly 
made in Deal cannot, then, be factually supported.’ 

State Action is Inevitable 

But the vice lies deeper. Public schools are creatures of 

the State, and a State may not continue to operate through 

its local school boards or otherwise a system which denies 

a constitutional right. Thus, a school system which denies 
equal educational opportunity infringes protected rights. 
Whether such a system was State created or State assisted 
or merely State perpetuated is beside the point. If it de- 
prives children of equal educational opportunity, the Equal 
Protection Clause is infringed. 

Uwmiformity of Constitutional Rights 

This conclusion is not only sound doctrine but desirable 

public policy. If non-unitary school systems must be elim- 
inated because they perpetuate racial segregation, they must 
be extirpated everywhere and not just in the former Con- 
federate states. A constitutional right ought not to be en- 

12 In Appendix C to his opinion, Judge Hoffman complied a sum- 
mary of governmental action in the various states. Beckett v. School 
Bd., 308 F. Supp. 1274, 1304, 1311-15. See also Racial Isolation in The 
Public Schools, U.S. Comm’n on Civil Rights 245, 254-59 (1967) ; M. 
Weinberg, Race and Place, Office of Education, U.S. Dept. of Health, 
Education and Welfare (1967). 

13 See Freund, Civil Rights and the Limits of Law, 14 Buffalo L. 
Rev. 199, 205 (1964). On July 7, 1970, Ramsey Clark, former At- 
torney General of the United States, testifying before the Senate 
Select Committee on Equal Educational Opportunity, said : 

“In fact, there is no de facto segregation. All segregation re- 
flects some past actions of our governments.”  



  

10 

forced in Virginia and denied enforcement in Ohio or 

Indiana because of the vagaries of history. 

Professor Bickel has commented on this double standard. 

As he points out: “Outside the South . . . school segregation 

is massive, and has, indeed, increased substantially in recent 

years . . . caused mainly by residential patterns. Neverthe- 

less, very few federal courts have tried to intervene [and] 

none has done so without qualification.””** 

In commenting on the incongruity of different rules 

issuing “out of the same federal judiciary” Professor Bickel 

spoke of “one binding rule of constitutional law for Man- 

hasset, New York” and “a different rule of constitutional 

law for New York City.”*® 

Such a situation, without precedent in constitutional doc- 

trine, cannot be tolerated. Citizens are entitled to enforce- 

ment of constitutional rights evenly and consistently 

throughout the United States. The Constitution requires 

no less. 

B. 

Racial Balance Is Not Required 

Opponents of the school board plans insist upon sub- 

stantial racial balancing in each school in a system. If, as in 

14 A. Bickel, The Supreme Court and the Idea of Progress 131 
(1970). See also Racial Isolation in the Public Schools, supra, at 2-10. 

15 Jd. at p. 133. The Manhasset decision is found in Blocker v. 
Board of Educ., 229 F. Supp. 709 (E.D.N.Y. 1964). 

16 This is, among other things, the purpose of S. 4167, 9lst 
Cong., 2d Sess. (1970), introduced by Senator William B. Spong 
of Virginia (and a similar bill introduced in the House of Repre- 
sentatives). Hearings on these bills have been held before ap- 
propriate committees in both houses. See also Sobeloff and Winter, 
JJ., concurring specially in Brewer v. School Bd., No. 14,544 (4th 
Cir., June 22,1970) (Norfolk). 

   



11 

Richmond, the overall student population ratio is 60% black 

and 409% white, these opponents contend that each school in 

the system must have substantially this ratio both of pupils 

and teachers.’ 

It is submitted that the racial balance concept is neither 

required by the Constitution nor is in the public interest. 

Indeed, if established as the “law of the land,” its conse- 

quences could be disastrous to public education. 

The Decisions of This Court 

What Brown I required, to assure equal educational op- 

portunity, was the elimination of racial segregation in the 

schools. Subsequent cases have added the affirmative man- 

date that dual school systems must be eliminated and unitary 

systems established.'® These are the terms with which local 

school boards and lower courts have struggled. Some have 

construed them to require racial balancing; others, more 

perceptive we think, have recognized that this Court has 
never projected a mechanistic solution for a problem of 

such delicacy and diversity. Brown I states: 

“. .. because of the wide applicability of this decision, 
and because of the great variety of local conditions, 
the formulating of decrees in these cases presents prob- 
lems of considerable complexity.” 347 U.S. at 495. 

When the Court came to the problem of formulating de- 
crees, it provided substantial latitude: 

2 Beckett v. School Bd., 308 F. Supp. 1274, 1276 (E.D.Va. 
1969), stating the position of the plaintiffs. See Winter and Sobeloff, 
JJ., concurring in part and dissenting in part, in the court below in 
this case. 

18 Green v. County School Bd., 391 U.S. 430 (1968) ; Alexander v. 
Holmes County Bd. of Educ., 396 U.S. 19 (1969) ; Carter v. West 
Feliciana School Bd., 396 U.S. 290 (1970).  



  

12 

“In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tradi- 
tionally equity has been characterized by a practical 
flexibility in shaping its remedies and by a facility for 
adjusting and reconciling public and private needs. 
These cases call for the exercise of these traditional 
attributes of equity power.” 349 U.S. at 300. 

Further along in that opinion, Mr. Chief Justice Warren 

recognized that there were a number of areas of considera- 

tion. He said: 

“To that end, the courts may consider problems related 
to administration, arising from the physical condition 
of the school plant, the school transportation system, 
personnel, revision of school districts and attendance 
areas into compact units to achieve a system of de- 
termining admission to the public schools on a non- 
racial basis, and revision of local laws and regulations 
which may be necessary in solving the foregoing prob- 
lems.” 349 U.S. at 300-01. 

The approach remains unchanged. In Green v. County 

School Board, 391 U.S. 430 (1968), Mr. Justice Brennan 

said, speaking for the Court: 

“There is no universal answer to complex problems 
of desegregation; there is obviously no one plan that 
will do the job in every case. The matter must be 
assessed in the light of the circumstances present and 
the options available in each instance.” 391 U.S. at 439. 

See also United States v. Montgomery Board of Education, 

395 U.S. 225, 235 (1969). And Mr. Chief Justice Burger 
has made clear his view that there are a number of areas 

other than (but including) transportation that must be 
given consideration. He said, concurring in the result in 

Northcross v. Board of Education, 397 U.S. 232 (1970): 

   



13 

€& . . we ought to resolve some of the basic practical 
problems when they are appropriately presented in- 
cluding whether, as a constitutional matter, any par- 
ticular racial balance must be achieved in the schools; 
to what extent school districts and zones may or must 
be altered as a constitutional matter; to what extent 
transportation may or must be provided to achieve the 
ends sought by prior holdings of the Court.” 397 U.S. 
at237. 

This Court could hardly have more clearly stated its 

refusal to enunciate a mechanistic rule of racial balance 

in every case. 

Racial Balance is Illusory 

The issue before this Court is whether such a rule should 

now be established. Those who support it argue that it has 

the virtue of exactitude; that it would be easy for courts to 

adopt and administer; and that it would put an end to the in- 

evitable litigation resulting from the application of a less 

definitive rule. 

We suggest that these views misconceive both the consti- 

tutional requirements and the realities of public education. 

The racial mix varies widely among the cities and counties 

of this country. The range is from school districts which 

are perhaps 90% black (Washington, D. C. and Clarendon 

County, South Carolina) to many districts which are 
nearly all white. The demography also constantly varies, es- 

pecially within cities. The population ratio changes as citi- 

zens move to suburban areas, and white and black families 

19 See Brunson v. Board of Trustees, No. 14,571 (4th Cir., June 5, 
1970).  



  

14 

are constantly moving within cities. Racial balance estab- 

lished one year would rarely be valid two or three years later. 

The City of Richmond is not atypical. In 1960 the 

school population ratio was 55% black and 45% white. 

Prior to the annexation of a portion of Chesterfield County 

on January 1, 1970, population shifts—some perhaps re- 

lated to integration, but most to the normal desire to live 

in suburbia—had increased the ratio of black to 70%. An- 

nexation temporarily reversed this trend, so that the black 

majority was reduced to about 60%. At the opening of the 

present school session, it has grown to 649%. No one be- 

lieves it will remain there for as much as a year. 

As shown in the Richmond case, population shifts within 

the city have been equally dramatic. Many previously white 

areas are now all black. But despite this shifting there are 
in Richmond—as in scores of cities in the North and South 

—large areas populated entirely by blacks, with the fringes 

populated by the poorer whites.* 

To impose, as urged by plaintiffs, an arbitrary per- 

centage mixing in every school in Richmond would be as 

unrealistic as to impose such a scheme upon New York, 

Chicago, Philadelphia or Pittsburgh. Yet, if racial balance 
is a constitutional imperative, it is applicable to all commu- 

nities at all times. 

Racial Balance 1s Regressive 

One wonders why compulsory racial balancing is ad- 

vocated. It would be difficult to conceive of a more certain 

way to assure a return, in countless communities, to es- 

sentially separate schools—if not for whites and blacks, 

certainly for those in the lower income levels of both races. 

20 Racial Isolation in the Public Schools, supra, at 19-20, 31. 

   



15 

The shorthand term, often used critically, is “white 

flight.” Concurring opinions below criticize this exercise of 

freedom.” 
But the connotation of “white flight” misconceives the 

fundamentals. It is obviously true that since Brown the 

white exodus to suburbia has accelerated. It must be re- 

membered, however, that the population movement from 

congested urban areas into suburban environments has long 

been characteristic of the American scene.” It antedated 

Brown ; it exists throughout our country, and indeed abroad; 

in its genesis, it bore no relation whatever to school integra- 

tion. Indeed, the desire to move upward economically and 

socially—so basic to the American ideal—reflects itself no- 

where as strongly as in the urge for a better residential 

environment. Often access to a particular neighborhood 

school is a dominant factor in selecting a new home site. 

These ambitions cannot be suppressed by court decrees. 

The movement from congested urban areas will continue 

regardless of how this case is decided. But few would doubt 

that it will accelerate geometrically if the concept of racial 

balance is enforced by law.* Examples of the inevitable 

21 See Sobeloff and Winter, JJ., concurring in part and dissenting 
in part in this case and in Brunson v. Board of Trustees, supra, at 
n. 19. White flight is, of course, an erroneous term because middle 
income citizens of both races are seeking suburbia. 

22 United States Census of Population: 1960, Standard Metropolitan 
Statistical Areas, Bureau of the Census, U.S. Dept. of Commerce 
1-257 (1963). 

23 The trend toward private schools, especially in the South, will 
also be accelerated. There are some who say that the “remedy” for 
this is the outlawing of private schools or withdrawing of their tax ad- 
vantages. But this drastic solution would scarcely be acceptable to the 
public generally. In addition, it would require the overruling of Pierce 
v. Society of Sisters, 268 U.S. 511 (1925).  



  

16 

resegregation® process are numerous, but Washington, 
D. C. suffices. 

It is thus evident that enforced racial balance is both 

regressive and unproductive. It frustrates the aspirations 

of Brown, namely, the promotion of equal education oppor- 

tunity; it assures in time the resegregation of most of the 

blacks in many urban communities. This will result in de- 

teriorating educational opportunities both for the poorer 

blacks and whites who cannot afford to move. 

In short, the end result is precisely the opposite of that 

desired; it widens the disparities between the lower and the 

middle-income families of both races. 

The adverse economic and social consequences of re- 

segregation, however caused, also are disquieting. Prop- 

erty values deteriorate; sources of local taxation shrink; all 

municipal services—as well as education—suffer; and— 

worst of all—the quality of civic leadership erodes.” 

The foregoing results, now known from experience to be 

predictable, are scarcely in the public interest. They sug- 

gest the need for careful rethinking of proposals such as 

enforced racial balance which accelerate the process of 
urban deterioration.*® 

24 “[ A]t the critical point—whatever it is—a formerly stable state 
of integration tends to deteriorate, being reflected by the exodus of 
white pupils. At the same time that this process is going on in the 
schools, the exodus of white residents is also apparent in the turnover 
of housing to the Negroes at only a slightly slower pace.” Civil Rights 
U.S. A.: Public Schools North and West, U.S. Comm’n on Civil 
Rights 185-86 (1962). 

% Kerner et al., Report of the National Advisory Commission on 
Cuil Disorders 220 (1968). 

26 Indeed, the integration of schools is only one aspect of the com- 
plex of problems associated with urban life. The courts are ill-equipped 
to deal with these problems, which lie primarily within the province of 
the legislative and executive branches. The time may have come, 
with respect to the schools, for greater reliance upon the Congress as 
contemplated by Section 5 of the Fourteenth Amendment. 

   



17 

Restructuring of Governmental Relationships 

The results of enforced racial balance could be sufficiently 

serious to prompt demands for restructuring of federal and 

state relationships. The facile answer to population with- 

drawal from urban areas is to enlarge the boundaries of 

school districts.” But this cannot be done, either by judicial 

decree or federal legislation, without uprooting state consti- 

tutional and statutory provisions with respect to the auton- 

omy and authority of local school boards and governmental 

subdivisions. And new and enlarged boundaries, wher- 

ever drawn, would not long contain a mobile and unwilling 
population. 

C. 

The Highest Quality Of Education Must Be The Goal 

If not racial balance, what is the alternative that is com- 

patible with the Constitution and the goal of quality educa- 

tion for all? We think there can be no single, inflexible rule. 

We start from principles settled by this Court: Racial dis- 

crimination is a denial of equal educational opportunity; 

dual or segregated school systems are proscribed ; and school 

authorities have an affirmative duty to establish unitary sys- 

tems. These principles must be observed and applied, not as 

ends in themselves but as means of achieving the educa- 
tional goal. The alternative then, to simplistic racial mixing 

pursuant to formula, is to recognize that reasonable dis- 

cretion must be allowed in the assignment of pupils and the 

administration of a school system so long as the foregoing 

principles are not contravened and the measures taken com- 

port with the educational goal. 

27 See Hobson v. Hanson, 269 F. Supp. 401, 515-16 (D.D.C. 1967), 
aff'd sub nom., Smuck v. Hobson, 408 ¥.2d 175 (D.C. Cir. 1969).  



  

18 

That education of the best quality is the goal was clearly 

recognized in Brown I : 

“Today, education is perhaps the most important func- 
tion of state and local governments. Compulsory school 
attendance laws and the great expenditures for educa- 
tion both demonstrate our recognition of the impor- 
tance of education to our democratic society. It is re- 
quired in the performance of our most basic public 
responsibilities, even service in the armed forces. It 1s 
the very foundation of good citizenship. Today it is a 
principal instrument in awakening the child to cultural 
values, in preparing him for later professional train- 
ing, and in helping him to adjust normally to his en- 
vironment. In these days, it is doubtful that any child 
may reasonably be expected to succeed in life if he is 
denied the opportunity of an education. . ..” 347 U.S. 
at 493. 

It seems clear that desegregation by race is only one step 

along the road toward equal educational opportunity—an 

equal chance to obtain the best education that the particular 

system can provide. The goal is the best education for all; 

racial segregation is an impediment to be removed in striv- 

ing to achieve that goal. 
The best education, however, is not achieved solely through 

racial integration. In a recent article, Dr. David K. Cohen 

states that “three major criteria of equality seem to com- 

pete as policy alternatives: equal resource allocation, de- 

segregation, and equality of educational outcome. . . .” 

Cohen, Defining Racial Equality in Education, 16 U.C.L.A. 

L. Rev. 255 (1969). But, as Dr. James Coleman, author of 
the famous Coleman Report,” has concluded, equal resource 

allocation plus desegregation does not necessarily result in 

improved educational output. He said that “[t]he result of 

28 Equality of Educational Opportunity, Office of Education, U.S. 
Dept. of Health, Education and Welfare (1966). 

   



10 

the first two approaches (tangible input to the school, and 

[de]segregation) can certainly be translated into policy, 

but there is no good evidence that these policies will improve 

education’s effects. . . .” Coleman, The Concept of Equality 

of Educational Opportunity, 38 Harv. Educ. Rev. 7, 17 

(1968). And the goal is, after all, the improvement of the 

effect of education. 

This conclusion has received the concurrence of Dr. 

Cohen. He states: 

“The problem, however, is that although desegrega- 
tion and equal resources are educationally salient, both 
seem a good deal less strategic than achievement. Judg- 
ments about the quality of students’ education in 
America are certainly not made on a purely merito- 
cratic basis, but students’ achievement still weighs more 
heavily in the balance than either the degree of racial 
integration, or the quality of resources in their schools. 
The same thing is true of the standards presently em- 
ployed in assessing schools’ effectiveness. Equal 
achievement seems the most relevant standard of racial 
equality.” Cohen, Defining Racial Equality wn Educa- 
Hon, 16 U.C.L.A. 1.. Rev. 253, 278 (1969), 

Dr. Cohen concludes that the implicit assumption of 

Brown I that desegregation and proper resource allocation 

would result in equal achievement was an erroneous one: 

“Experience and knowledge gained since then have 
shown that the two standards cannot be met by the 
same measures.” Id. at 280. 

What, therefore, is the criterion? In Dr. Cohen’s words, 

it is equal achievement; in Dr. Coleman’s, it is educational 

output. What, in simpler terms, the school boards must seek 

and the courts must approve is the means to promote equal 

educational opportunity, regardness of race, in a system 

structured for the highest achievement.  



  

20 

It seems strange that this goal is not mentioned by the 

court below. It places no emphasis whatsoever on the 

quality of education. It seems mesmerized by race; it hardly 

seems to recognize that we are presented with an educa- 

tional problem of which race is merely a facet.? 

D. 

The Court Below Misapplied Its Rule Of Reason 

The Court of Appeals in the Charlotte case adopted a 

“test of reasonableness,” saying: 

1. “not every school in a unitary school system need 
be integrated.” 

2. “school boards must use all reasonable means to 
integrate the schools in their jurisdiction.” 

3. Where all schools cannot reasonably be inte- 
grated, “school boards must take further steps to as- 
sure that pupils are not excluded from integrated 
schools on the basis of race.” 

These views, we think, are compatible with the opinions 

of this Court. They do not accept the mechanistic rule of 

racial balance. 

But we believe the Court of Appeals misconceived the ap- 

plication of its own test. The focus, as is evident from the 

rejection of the school board plans in Charlotte, Norfolk and 

Richmond, was upon desegregation with little or no visible 

concern for the object of desegregation, namely, improved 

educational opportunity for all students. We think that the 

Court below departed from an appropriate test of reason- 

ableness particularly with respect to (i) its emphasis on 

29 The District Judge in the Norfolk case commented correctly that 
the word “education” does not even appear in the opinion of the 
Court of Appeals reversing his general approval of the Norfolk School 
Board's plan. Beckett v. School Bd., Civil Action No. 2214 (E.D.Va., 
Aug. 14, 1970). 

   



21 

extensive compulsory busing and (ii) its misappreciation 

of the educational relevance of neighborhood or community 

schools. 

Compulsory Busing 

There is nothing inherently wrong with transporting 
school children where this is necessary. In every rural school 

district busing is a necessity. In such districts in the South 

it was used for decades to implement segregation. In the 

Charlotte case, involving a large urban-rural school district, 

there was substantial necessary busing before the District 

Court undertook in effect to impose racial balance by ex- 

tensive cross busing. 
Even in an urban district some busing may be appro- 

priate, contributing both to integration and sound educa- 

tion. The problem, one so familiar in law, is one of degree 

and reasonableness. A notable example of unreasonable 

busing in pursuit of racial balance is that ordered in Craw- 

ford v. Board of Education.’® In that case the Los Angeles 
school board was ordered to establish a rigorously uniform 

racial balance throughout its 711-square-mile district, with 

its 775,000 children in 561 schools. This order, if upheld on 

appeal, would require the busing of 240,000 students at a 

cost of $40 million for the first year and $20 million for 

each year thereafter with the result that the deficit of 

$34-54 million already confronting the school board would 
be increased by these amounts. 

30 No. 822, 854 (Cal. Super. Ct., Feb. 11, 1970). 
51 N.Y. Times, Feb. 12, 1970, at 1, col. 5 (city ed.). President 

Nixon, in his statement of March 24, 1970, aptly states that rulings 
of this character “. . . would divert such huge sums of money to 
non-educational purposes, and would create such severe disruption 
of public school systems, as to impair the primary function of provid- 
ing a good education.” Desegregation of America’s Elementary and 
Secondary Schools, Weekly Compilation of Presidential Documents 
(March 30, 1970).  



  

22 

The preoccupation with “racial mixing of bodies”®* has 
often caused the overlooking of the social and educational 

disadvantages of busing, especially at the elementary level.** 

It removes a child from a familiar environment and places 
him in a strange one; it separates the child from parental 

supervision for longer periods of time; it undermines the 

neighborhood or community school, so desirable at the 

elementary level; and it adds to already strained budgetary 
demands. 

These are the considerations which have prompted the 

Congress, reflecting overwhelming public sentiment, three 

times to record its opposition to enforced busing merely to 
achieve racial balance * 

The Netghborhood School 

We think that the Court below also largely ignored the 

educational advantages of the neighborhood school at the 

elementary level. The geographic neighborhood is the most 

common unit of organization of urban elementary public 

schools.” The neighborhood unit provides for ease of access 
to schools for students, minimizing costs and time of 

32 In his memorandum decision of August 14, 1970, attempting to 
implement the mandate of the Circuit Court, Judge Hoffman com- 
mented “that the benefits of sound education have now been clearly 
subordinated to the requirement that racial bodies be mixed.” 
See also Beckett v. School Bd., 308 F. Supp. at 1302. 

33 A disturbing aspect of seeking racial balance at any cost is that 
children too often are treated as pawns to produce sociological changes 
that are related more to other factors, such as housing, than to edu- 
cation. 

3 Civil Rights Act of 1964, 42 U.S.C. §2000c(b) (1964); Ele- 
mentary and Secondary Education Act of 1965, 20 U.S.C. § 834 
(1966), amending 20 U.S.C. § 884 (1965) ; Education Appropriations 
Act of 1971, P.L. 91-380, 91st Cong., 2d Sess., §§ 209, 210 (1970). 

8 New York City’s current experiment in decentralization is 
further evidence of the vitality of the neighborhood or community 
concept. N.Y. Times, Sept. 13, 1970, at 1, col. 2. 

   



23 

travel to and from school, and thus maximizing the po- 

tential extracurricular role schools can play in the lives 

both of parents and children. These factors, along with 

the associational benefits of attending school with friends 

which, particularly for elementary school children, ease 
the psychological stress of initial adjustment to school, 

have led such a noted educator as James B. Conant, former 

President of Harvard University, to the conclusion that 

“[a]t the elementary school level the issue seems clear. To 
send young children day after day to distant schools seems 

out of the question.””* 
The quality of a community’s education depends ulti- 

mately upon the level of public suport.” A willingness to 

pay increased taxes and to vote for bond issues can evapo- 

rate quickly in the face of enforced busing and dismantling 

of neighborhood schools where such actions do not con- 

tribute to improved education for all. 

Educational effectiveness also is dependent on the attitude 

of parents toward their children’s education, and rationally 

configured systems of neighborhood schools play a vital 

role. Parental support of their children’s schooling normally 

reinforces the efforts of their children’s teachers in sub- 

stantial measure;* to the degree that schools can involve 

parents with their children’s education as such,* or broaden 
the parents’ own educational horizons,*’ this end is served. 

Community schools, when designed in such a way as to 

avoid the feelings of disaffection which attend systematic 

36 J. Conant, Slums and Suburbs 29 (1961). 
87 A current dramatic example of the financial crisis in public edu- 

cation across the country is found in St. Louis, Missouri, where tax- 
payers in four suburban school districts north of the city have shut 
46,000 pupils out of classes by consistently defeating school tax levies. 
N.Y. Times, Sept. 14, 1970, at 1, col. 3. 

38 M. Weinberg, Desegregation Research: An Analysis 140-4 
(1968). 

39 Christian Science Monitor, Aug. 14, 1970, at 11, col. 1. 
40 C. Hansen, Danger in Washington 81 (1968).  



  

24 

ghettoization, whatever its origin, foster such an active 

parental role because of their very accessibility. 
Further, the accessibility of community schools mini- 

mizes the cost of school transportation for students. Pro- 

vision of substantial transportation at public cost solely for 

the purpose of attaining racial balance diverts resources 

which might otherwise be used, in a neighborhood scheme 

consistent with students’ constitutional rights, for more 

directly constructive educational purposes. Where the cost 

of such transportation is borne privately by the families of 

students—assuming that public transportation facilities are 

adequate to cover the necessary specialized routes—it strikes 

regressively, imposing a heavier burden on the poor than 

on the affluent. 

This Court in Brown II, in suggesting “revision of school 

districts and attendance areas into compact units to achieve 

a system of determining admission to the public schools on a 
non-racial basis”’*! as a means of complying with the equal- 

educational-opportunity requirement of Brown I, implicitly 

recognized the advantages of the community school sys- 

tem. *? 
The unique educational advantages of the neighborhood 

school system, where it is administered in a manner con- 

sistent with the Equal Protection Clause, result in the 

accomplishment of the ultimate goal of that clause: the 

best possible education for all children. Pursuit of absolute 

racial balance in major metropolitan areas through the use 

of extensive busing of students deprives the school system 

of the singular advantages of the neighborhood concept, 

and in at least this respect thwarts the attainment of equal 
educational opportunity. 

41 349 U.S. at 300-01. 
42 These advantages were well expressed in Deal v. Cincinnati Bd. 

of Educ., 369 F.2d 55 (6th Cir. 1966), cert. denied 359 U.S. 847 
(1967). 

   



25 

It has frequently been pointed out that neighborhood 

school systems have, on occasion, come into existence for 

the purpose of fostering racial segregation.*” But this fact 
should no more prejudice consideration of the intrinsic edu- 

cational merits of a racially satisfactory neighborhood 

school system than should these merits justify it when it is 

administered in a fashion which entrenches unconstitutional 

racial imbalance. 

Other Considerations 

The community school concept is capable of flexible 

administration: zoning, pairing, clustering, and siting of 

school buildings all are techniques which may be used, con- 

sistent with its advantages, and should be, when reasonable, 

to fulfill constitutional requirements. In addition, a majority- 

to-minority transfer option and specialized learning centers 

may be provided to ameliorate the effect of residential segre- 

gation. Techniques which destroy the advantages of the 

community school in pursuit only of mechanistic racial bal- 

ance in the name of the Fourteenth Amendment tend to 

negate the very educational values in whose service they 

are invoked. 

But these are measures that are customarily used in the 

racial desegregation context; they are by no means all of the 

factors to be taken into account in devising a plan designed 

to promote educational achievement for all students to the 

utmost. 

Modern social scientists have developed studies that take 

into account a number of other factors. These include a de- 

termination of the racial mix that will maximize educa- 

tional achievement, development of plans that maximize 

use of physical facilities, teachers and staff, avoidance of 

43 See, e¢.g., Racial Isolation in the Public Schools, U.S. Comm’n 
on Civil Rights 252 (1967).  



  

26 

resegregation and “white flight,” consideration of the de- 

sirable socio-economic mix, preservation of the cultural 

uniqueness and autonomy of the individual student, giving 

effect to positive and realistic educational and vocational 

aspirations and other relevant factors of equal importance.* 

Such evidence is sound and available.*® Plans based on 

such studies will result in greater educational achieve- 

ment. Education is not based on race alone. That plan is 

the best plan that provides the best opportunity for educa- 

tional achievement for all students. In the preparation of 

such a plan, racial imbalance is a consideration, but it is 

not the controlling factor. 

It is in this light, we conceive, that the rule of reason 

postulated by the court below should be applied. The rule 

of reason makes little sense when it is couched in purely 

racial terms. The creation of racial balance by massive 

busing may eliminate racial segregation, but it may harm 

the general level of educational achievement. What schools 

need desperately is to improve that level. This Court should 

provide a more realistic approach to achieve that end. 

VL 

CONCLUSION 

The Court has the opportunity in this case to resolve the 

principal issues which have confused and divided the lower 

44 See, e.9., M. Weinberg, Desegregation Research: An Analysis, 
supra; Equality of Educational Opportunity, supra. 

45 Evidence of this nature was presented in the Norfolk case by 
Dr. Thomas F. Pettigrew and disregarded without mention by the 
Circuit Court. But Dr. Pettigrew’s evidence in the Norfolk case is 
substantially the entire basis for the opinion of three of the judges in 
the Clarendon case. See Craven, J. concurring and dissenting in 
Brunson v. Board of Trustees, No. 14,571 (4th Cir., June 5, 1970). 
If testimony of this character may be used as a basis for decision in 
one case, it clearly deserves consideration in another. 

   



27 

courts and school authorities. We respectfully suggest, for 

the reasons that we have stated, the following : 

(i) The purported distinction between de jure and de 

facto racial segregation should be rejected. It can be sup- 

ported neither factually nor consistently with constitutional 

principles. The right to equal educational opportunity must 

be uniform throughout the United States. 

(11) The concept of racial balance is not a constitutional 

imperative. If pursued as an end in itself, rather than as a 

factor to be considered, this concept accelerates the process 

of resegregation and frustrates the attainment of sound 
educational goals. 

(iii) The Constitution does not delineate the extent to 
which the transportation of pupils may or must be provided 

to achieve and maintain a unitary school system. Nor does 

the Constitution prescribe the extent to which school at- 

tendance zones may or must be altered for this purpose. 

(iv) The principles settled by this Court must be ob- 

served : racial discrimination is a denial of equal educational 

opportunity; dual or segregated school systems are pro- 

scribed; and school authorities have an affirmative duty to 

maintain unitary systems. But these principles must be ap- 

plied as the means of maximizing the educational oppor- 

tunity for all students. A reasonable discretion must be 
allowed school authorities in assigning pupils and adminis- 

tering a school system so long as these principles are not 

contravened and the measures taken comport with the edu- 
cational goal. 

(v) School authorities should give appropriate weight 

to the educational advantages of the neighborhood or com- 

munity schools and the disadvantages of extensive cross 
busing in urban areas, especially for young children.  



28 

(vi) In devising plans to assure a unitary school system, 

all relevant techniques may be considered, including the re- 

alignment of attendance zones, the flexible utilization of 

school facilities, and the assurance of opportunities for 

interracial learning experience. 

(vii) Perhaps the overriding need is to shift the empha- 

sis from a mechanistic approach of integration as an end 

in itself to the goal desired by every citizen: Equal educa- 

tional opportunity in a school system structured for the 

highest achievement by all students. 

It is not too much to say that public education is in a 

state of serious disarray, with increasing evidence of erod- 

ing public support. The problems and confusion relating 

to integration are a contributing though not the only cause. 

The time has come for a clarification of the principles to be 

applied by the courts. We respectfully submit that those 

outlined above are consistent both with constitutional re- 

quirements and the urgent need for improved education. 

Dated September 16, 1970 

Respectfully submitted, 

ANDREW P. MILLER 
Attorney General of Virginia 

WiLLiaM G. BRoADDUS 
THEODORE J. MARKOW 

Assistant Attorneys General 
Supreme Court Building 
Richmond, Virginia 23219 

Lewis F. PowELL, Jr. 
JorN W. RIELY 
George H. HETTRICK 
Guy K. Tower 

Hunton, WiLLiaMs, Gay, Special Counsel 

PowerLL & GIBSON 700 East Main Street 

Of Counsel Richmond, Virginia 23219 [||206d51d1-b8a9-4dde-a7e2-39e53206955a||]