Richmond Virginia School Board v Virginia Board of Education Reply Brief Amicus Curiae

    I n  T h e

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Nos. 72-549, 72-550

Sch ool  B oard op t h e  Cit y  of 
R ic h m o n d , V ir g in ia , et a l ., 

v.
St a t e  B oard of E ducation  of t h e  
Co m m o n w e a l t h  of V ir g in ia , et  a l .,

Ca ro lyn  B rad ley , et  a l ., 
v.

St a t e  B oard of E ducation  of t h e  
Co m m o n w e a l t h  of V ir g in ia , et  a l .,

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

BRIEF AMICUS CURIAE 
FOR THE

NATIONAL EDUCATION ASSOCIATION

St e p h e n  J. P o llak  
R ich ard  M. Sh a rp  

734 Fifteenth Street, N.W. 
Washington, D.C. 20005

D avid  R ubin
1201 Sixteenth Street, N.W. 
Washington, D.C. 20036

Of Counsel■ Attorneys for Amicus Curiae,
S h e a  & Gardner  National Education Association

734 Fifteenth Street, N.W.
Washington, D.C. 20005

W il s o n  - E p e s  Pr in t in g  C o . .  In c . - Re  7 - 6 0 0 2  - W a s h i n g t o n . D. C. 20001



TABLE OF CONTENTS

INTEREST OF THE NATIONAL EDUCATION AS­
Page

SOCIATION .............................   1

ARGUMENT ..................................................................  3

I. Introduction and Summary ..............................  3

II. The State and Its Subdivisions Are Responsible 
in Substantial Measure for the Existing Inter­
district Segregation of the Schools in the Rich­
mond Metropolitan Area ...................................  7

A. The State and Its Subdivisions, by Promoting 
Racial Separation Through “ Massive Re­
sistance” and Delay and by Baiting Their 
School Districts With White and Black 
Schools, Contributed Materially to Inter­
district Segregation in the Richmond Metro­
politan Area .........................     7
1. Delay for 17 Years Has Foreclosed the

Opportunity for Stable Desegregation 
Inside the City of Richmond ...........   7

2. The State’s Policies of Massive Resistance
and Delay Perpetuated and Reinforced 
Racism..................................    11

3. Affirmative Acts of State and Local
School Officials Have Contributed to the 
Concentration of Blacks in the Richmond 
School District........................................... 14

B. Other Forms of Public and Private Discrim­
ination Also Contributed to the Concentra­
tion of Blacks in the Richmond School Dis­
trict ................................................................. 17

C. The Court of Appeals Had No Foundation 
for Overturning the District Court’s Conclu­
sion That It Had the Power To Order a 
Remedy for the Interdistrict Segregation 
in the Richmond Metropolitan Area ______ 20



II

1. The Court of Appeals Erred in Holding
That the Power To Remedy Interdistrict 
Segregation Depends upon a Showing of 
Joint Interaction by Two Arms of the 
State for a Discriminatory Purpose........ 21

2. The Court of Appeals Had No Basis for 
Overturning the District Court’s Finding 
That Official Discrimination Contributed 
Substantially to Interdistrict Segregation
in the Metropolitan Area.........................  23

III. The District Court’s Order Requiring Merger 
of the Three School Districts Was an Appropri­
ate Exercise of Its Equitable Discretion To 
Remedy the Constitutional Violation ................. 27

A. Background .............................   28

B. Educational Advantages of Consolidation .... 30
1. Heterogeneous Grouping .................    31
2. Special Programs.....................................  32
3. Fiscal Stability ..........................................  33

CONCLUSION ................................................................ 35

TABLE OF CONTENTS— Continued
Page



Cases: Page
Boynton V. Virginia, 364 U.S. 454 (1960)............ 19
Brown v. Board, of Education, 347 U.S. 483

(1954) .................  ................................................ 'passim
Coopery. Aaron, 358 U.S. 1 (1958)....................... 22
Department of Conservation & Development V.

Tate, 231 F.2d 615 (1956) .................................. 22
Derrington v. Plummer, 240 F.2d 922 (1956)...... 22
Green v. County School Board, 391 U.S. 430

(1968) .........................-..... .................................. 13, 23
Iowa-Des Moines National Bank v. Bennett, 284

U.S. 239 (1931) .......................................... ......  22
Louisiana V. United States, 380 U.S. 145 (1965).. 23
Loving V. Virginia, 388 U.S. 1 (1967)................... 19
Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972).... 19
Monroe v. Board of Comm’rs, 391 U.S. 450 (1968).. 9
Mumpower v. Housing Authority, 176 Va. 426, 11

S.E.2d 732 (1940) ............................................. 17
NAACP V. Button, 371 U.S. 415 (1963) ..............  19
NLRB V. Remington Rand, Inc., 94 F.2d 862 (2d

Cir. 1938), cert, denied, 304 U.S. 576 (1938).... 26
Pennsylvania V. Board of Directors of City Trusts

of Philadelphia, 353 U.S. 230 (1957) .................. 22
Reynolds V. Sims, 377 U.S. 533 (1964) ................. 22
Shelley V. Kraemer, 334 U.S. 1 (1948) ................. 22
Swann V. Charlotte-Mecklenburg Board of Edu­

cation, 402 U.S. 1 (1971) ...................................passim
Virginia V. Rives, 100 U.S. 313 (1879)...............  22
Watson V. Memphis, 373 U.S. 526 (1963) ---------  19
Wright V. Council of City of Emporia, 407 U.S. 451

(1972) .................................................................- 22

Constitutional and Statutory Provisions:

U.S. Const., Amend. XIV .......................... .......21, 22, 23
Va. Const., Art. VIII, § 5(a) ............ ....................  27
Emergency School Aid Act of 1972, P.L. 92-318, 20 

U.S.C. § 1608 et seq................................. ............

Ill

TABLE OF AUTHORITIES CITED

32



IV

Federal Aid Highway Act of 1956, 23 U.S.C.
§ 102 et seq........ .......................... ........................  8

Code of Virginia:
§ 18.1-356 (repealed 1970)..............................  19
§ 18.1-381 ..........................................................  19
§§ 20-50 to 60 (repealed 1968) .....................  19
§ 20-101 ............................................................. 19
§ 22-30 (Cum. Supp. 1971) ...........................   27
§ 22-221 (repealed 1971) ................................. 19
§§ 23-10 to 12 (repealed 1971).......................  19
§ 24-120 (repealed 1970) ................................. 19
§ 38.1-597 (repealed 1968) ............................... 19
§§ 56-326 to 328 (repealed 1970)...................  19
§§ 56-390 to 404 (repealed 1970)...................  19
§ 58-880 (repealed 1970) ................................ 19

Miscellaneous:

Advisory Commission on Intergovernmental Rela­
tions, State and Local Finances—Significant
Features 1966 to 1969 (Nov. 1968)...................  34

American Association of School Administrators,
School District Organization (1962) ................ 29

Coleman, et al., Equality of Educational Oppor­
tunity (U.S. Office of Education 1966) .............. 31

ERS Circular “ Decentralization and Community 
Involvement: A Status Report” , No. 7 (1969).. 35

Havighurst & Levine, Education in Metropolitan
Areas (1971) ......................................................  31,34

Robert M. Isenberg, speech to American Asso­
ciation of School Administrators, February 20-
24, 1971 .............................................................. . 32

David H. Kurtzman, speech to American Asso­
ciation of School Administrators, February 20- 
24, 1971

TABLE OF AUTHORITIES CITED—Continued
Page

34



V

National Committee for Support of the Public 
Schools, “ The Reorganization of Local School
Districts” (Fact Sheet) (June 1967) ................ 28

NEA Research Division, “Survey of Programs & 
Practices of Public School Systems” (May
1971) ................. — ............................................. 32,33

President’s Commission on School Finance, 
Schools, People & Money: The Need for Edu­
cational Reform (March 3, 1972).......................passim

Report of the New York State Commission on the 
Quality, Cost & Financing of Elementary & 
Secondary Education (Fleischmann Report)
(1972) .................. ............................................. 6,28,31

U.S. Commission on Civil Rights, Racial Isolation 
in the Public Schools (Volumes 1 and 2) (1967).. 12

U.S. Dept, of Commerce, 1967 Census of Govern­
ments Report Governmental Organization (Vol.
I)

TABLE OF AUTHORITIES CITED— Continued

Page

30



In  The

( ta r t  uf %  l&nxUh Status

Nos. 72-549, 72-550

Sch ool  B oard of t h e  Cit y  of 
R ic h m o n d , V ir g in ia , et  a l ., 

v.
St a t e  B oard of E ducation  of t h e  
Co m m o n w e a l t h  of V ir g in ia , et  a l .,

Ca r o ly n  Brad ley , et  a l .,
v.

State  B oard of E ducation  of t h e  
Co m m o n w e a l t h  of V ir g in ia , et  a l .,

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

BRIEF AMICUS CURIAE 
FOR THE

NATIONAL EDUCATION ASSOCIATION

INTEREST OF THE
NATIONAL EDUCATION ASSOCIATION

The National Education Association (hereinafter 
N EA)1 is an independent, voluntary organization of edu­

1 Counsel for the parties have consented to the filing of this 
brief. Letters of consent have been filed with the Clerk of the 
Court pursuant to Rule 42 (2) of the Rules of this Court.



2

cators, open to all professional teachers and administra­
tors. It presently has over one million one hundred thou­
sand regular members, and is the largest professional or­
ganization in the nation. First organized in 1857, NEA 
was chartered by a special act of Congress in 1906. Its 
statutory purpose is “ to elevate the character and advance 
the interests of the profession of teaching and to promote 
the cause of education in the United States” (34 Stat. 
805).

Both the NEA and its members have a deep interest 
in achieving and assuring quality education and equality 
of educational opportunity for the children of all races. 
In pursuit of this goal, the NEA has participated as 
amicus curiae before this Court in numerous cases in­
volving the provision of equal educational opportunity. 
E.g., Keyes v. School District No. 1, Denver, Colorado, 
No. 71-507; San Antonio School District v. Rodriguez, 
No. 71-1332; Swann v. Charlotte-MecJclenburg Board of 
Education, 402 U.S. 1 (1971) ; Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1969). In the 
instant case, the NEA, with the consent of all parties, 
filed a brief amicus curiae in the court below.

The case at bar involves important questions regarding 
the fulfillment of the mandate of Brown v. Board of 
Education, 347 U.S. 483, (1954), for the provision of 
equal education for black children in an urban metro­
politan community within a State that maintained a dual 
school system. It requires this Court to consider whether 
the district court acted properly and within its equitable 
powers in ordering consolidation of school districts as a 
remedy for the continued racial identity of the Richmond 
schools. As the principal association of educators in this 
country, the NEA can draw upon a breadth of experience 
to evaluate for this Court the educational effects of con­
solidating school districts and the reasonableness of the 
district court’s order.



s
ARGUMENT

I

INTRODUCTION AND SUMMARY

The State of Virginia and its political subdivisions— the 
school districts of Richmond, Chesterfield and Henrico*— 
have been under a constitutional mandate for 17 years 
to desegregate the schools. Notwithstanding this mandate, 
Richmond’s schools today are 70 per cent black and the 
counties’ schools are 90 per cent white. This interdistrict 
segregation in the Richmond metropolitan area is the 
product of a multiplicity of forces, including discrimina­
tory policies and practices of private individuals and 
corporations serving to exclude blacks from the counties 
and to confine them to the city. A major contributing 
force has been a pattern of discriminatory policies and 
practices by state and local school officials and other 
public authorities in Virginia.

The record reflects that state and local officials have 
made copious use of their powers to delay and obstruct 
desegregation in the schools within each subdivision. 
Through delay, massive resistance and other tactics, these 
officials not only successfully prevented intradistrict de­
segregation, but also materially furthered the interdistrict 
resegregation which existed when affirmative measures to 
desegregate within each subdivision finally were taken in 
response to HEW pressure and court order.

In 1954, the City of Richmond was majority white. 
The counties were blacker in their racial complexion and 
more sparsely populated. At that time the possibility 
of stable desegregation within the boundaries of Richmond 
still existed: whites constituted a majority (57 per cent) 
of the school population, inadequate housing existed in the 
counties to absorb any abrupt influx of large numbers of 
whites, and the interstate highways which today lubricate



4

the path of the suburban commuter had not been built. 
Stable desegregation within the confines of Richmond is 
no longer possible today, when blacks constitute 70 per 
cent of the school population and when the counties con­
stitute convenient sanctuaries for whites seeking to avoid 
desegregation. Thus, official delay had the operative effect 
of facilitating resegregation, on an interdistrict basis, 
by the time intradistrict desegregation was at hand.

By then, demographic changes had transformed the 
city-county lines into racial dividers. Black children in 
Richmond, and their parents, teachers and the community 
at large, perceived the three economically and socially 
interrelated jurisdictions in the metropolitan area as a 
single community and regarded the Richmond schools 
as segregated institutions. The district court, in findings 
that were not overturned by the court of appeals, found 
that, as a result, black children in Richmond suffered 
harm at least comparable to the harm which this Court 
in Brown recognized as flowing from the segregated 
schools in the cases then before it.

Moreover, instead of leading the way toward com­
pliance with the Brown mandate, and influencing posi­
tively the attitudes of whites and blacks towards de­
segregation, official conduct for 17 years constituted a 
negative force. It encouraged whites to believe that de­
segregation was to be avoided at any cost. Whites whose 
attitudes towards desegregation might have been favorably 
shaped by official compliance were taught, by official de­
fiance, the imperative of circumvention. Among the les­
sons which delay and obstruction taught blacks in the 
city was that hostility— official as well as private—would 
attend their efforts to become integrated with whites. 
Thus, official action can fairly be said to have played a 
role both in stimulating the in-flow of whites to the 
counties and in discouraging blacks from seeking to live 
in the developing white suburbs.



5

School officials influenced the population patterns that 
led to interdistrict segregation in more direct ways. In­
itially the counties baited developing residential areas 
with new schools expressly designed for whites only. 
After the counties adopted freedom of choice, the counties 
built and maintained racially identifiable schools with 
segregated staffs. These school construction policies con­
tributed to the development of the white havens ringing 
the City of Richmond. These havens, by their nature, 
discouraged black entry. The limited number of school 
facilities available for black families in the counties con­
stituted a further deterrent to the in-migration of blacks.

Against this background, the court of appeals erred 
in overturning the district court’s finding that official 
discrimination contributed substantially to interdistrict 
segregation in the metropolitan area, and the district 
court’s conclusion that it had the power to remedy that 
segregation.

With respect to the remedy, the district court had 
broad equitable discretion to frame a decree which would 
undo the effects of the discriminatory actions and policies 
of the State and its subdivisions. Under the facts of this 
case, the court did not abuse that discretion in ordering 
merger of the three school systems.

NEA believes that the merger required by the district 
court’s order has many educational advantages. It ac­
cords with the recommendations of the President’s Com­
mission on School Finance and the 1972 Report of the 
New York State Commission on the Quality, Cost and 
Financing of Elementary and Secondary Education (the 
Fleischmann Report). It also accords with the Virginia 
State Board of Education’s policy of encouraging school 
consolidation and is consistent with the educationally 
desirable national trend which since 1932 has seen the



6

number of school districts shrink from more than 125,000 
to 17,500.

Specifically, the consolidation of the three school dis­
tricts would bring to the children in the Richmond 
metropolitan area the advantages of heterogeneous group­
ing of students. It would provide a broader financial base 
and therefore greater fiscal stability for the schools 
throughout the three districts. And it would afford the 
affected school districts the wherewithal to provide equip­
ment and highly trained personnel for special programs 
that can be feasibly offered only where substantial num­
bers of children are involved.



7

II

The State and Its Subdivisions Are Responsible in 
Substantial Measure for the Existing Interdistrict 
Segregation of the Schools in the Richmond Metro­
politan Area

A. The State and Its Subdivisions, by Promoting 
Racial Separation Through “Massive Resistance” 
and Delay and by Baiting Their School Districts 
With White and Black Schools, Contributed Ma­
terially to Interdistrict Segregation in the Rich­
mond Metropolitan Area.

1. Delay for 17 Years Has Foreclosed the Oppor­
tunity for Stable Desegregation Inside the City 
of Richmond.

In 1954, stable desegregation might have been achieved 
within the city limits of Richmond. The district court 
found that while Richmond’s school system today is 
identifiably black, “ [t]his was not always the case.” “ It 
is so at present because in substantial part the policy 
of school segregation, continued to the present, contri­
buted to pervasive housing segregation.” 2 In 1954 the 
city’s schools were 57 per cent white. Henrico was ap­
proximately 20 per cent black and Chesterfiield ap­
proximately 10 per cent black. (R.X. 62A). Moreover,

2 Memorandum Opinion and Order of the district court dated 
January 5 and 10, 1972, at page 208a of the “Appendix to Peti­
tion for Certiorari, Opinions Below and Relevant State Laws” 
filed by the School Board of the City of Richmond. The decisions 
of the courts below hereafter will be cited to this appendix as 
“ Pet. A.,”  followed by the page reference. The printed appendix 
in this Court was not available at the time this brief was prepared. 
Accordingly, the record citations are to the transcript ( “ Tr.” ) ; 
plaintiff Bradley’s exhibits ( “P.X.” ) ; Richmond exhibits ( “R.X.” ) ; 
Chesterfield exhibits ( “ C.X.” ) and Henrico exhibits ( “ H.X.” ).



8

the counties were more sparsely populated.3 At that time 
housing in the counties was inadequate to readily ac­
commodate any abrupt influx of large numbers of white 
families.4

By 1970, when the school districts had been compelled 
by court order and HEW pressure to act, major changes 
had occurred which made stable desegregation within the 
confines of the city impossible to achieve. In a city in 
which, as the district court found, black schools were 
perceived as inferior (Pet. A. 189a, 476a), the black 
proportion of the city’s school population climbed from 
43 to 70 per cent. And the city’s black ghetto expanded 
to the point where it could not be desegregated in any 
significant measure without busing. The number of 
black public school students in the city rose from 
15,598 to 30,097 between 1954 and 1970 (R.X. 75).

In addition, the counties became more accessible. In­
terstate superhighways were built to smooth and shorten 
the duration of the suburban commuter’s trip to and from 
his place of work in Richmond.5 Substantial housing 
was constructed to accommodate the growing suburban 
movement.6 As the county populations grew,7 the counties

3 Between 1950 and 1970, the total population of the two counties 
increased by 136 per cent. See note 7, infra.

4 See note 6, infra.

5 The Federal Aid Highway Act of 1956, 23 U.S.C. § 102 et seq., 
with its provision for federal grants amounting to 90 per cent of 
the construction costs, provided the impetus for the interstate 
highway system.

6 Between 1951 and 1971 inclusively, Henrico opened 674 sub­
divisions comprised of 21,199 lots (H.X. 24). In this period Chester­
field opened 426 subdivisions comprised of 14,199 lots (C.X. 21).

7 Henrico’s population between 1950 and 1970 increased from 
57,340 to 154,364 or a growth of 169 per cent. Chesterfield grew 
from 40,400 to 76,855, a growth of 90 per cent, which does not 
take into account the loss of 44,000 persons through annexation by 
Richmond in 1970 (H.X. 21; Tr. A-24; Pet. A. 497a).



9

became whiter in their racial complexion. The black 
proportion of the school population diminished to 7.9 per 
cent in each county. The counties had become convenient 
white havens. (Pet. A. 418a). By 1970, the Richmond 
schools had become demographically unstable. In 1970 
and 1971, some 39 per cent of the white students in the 
Richmond schools left the system (Pet. A. 237a).

Against this background, delay had the operative ef­
fect of giving whites time to relocate before desegregation 
was decreed. Thus, delay had an impact similar to the 
“ free transfer” rule and Virginia’s tuition grant program: 
its effect was “ to allow resegregatio%.”  See Monroe v. 
Board of Commissioners, 391 U.S. 450, 459 (1968) (Italics 
by Court). See also Pet. A. 218a, 321a.

In addition, delay aggravated the problem of eliminat­
ing the racial identity of Richmond’s black schools. In 
1954, desegregation of the Richmond schools would have 
resulted in a less drastic differentiation between the 
racial complexion of the schools in the city and the 
county than was possible by 1970. By that year, when 
desegregation of the Richmond schools was decreed, those 
schools had become heavily black and the county schools 
whiter. The city border had become a racial divider. 
Eight blocks from Richmond’s John Marshall High School 
(78 per cent black), Henrico operated Henrico High 
School (96.1 per cent white) (Pet. A. 429a). Richmond 
was operating an 88 per cent black high school (Id.) in­
side Henrico County whose schools on the average were 
92.1 per cent white (R.X. 77). One half-mile from the 
Richmond line beyond which the schools averaged 70 
per cent black, Chesterfiield operated the 95 per cent 
white Manchester High School (Pet. A. 524a).

Delay in the face of these demographic changes thus 
cut off the opportunity that existed in 1954 for black 
children in Richmond to enjoy the benefits of a desegre­



10

gated education in the city system. By 1970, black pupils 
and their parents, teachers and the community at large 
perceived their schools— in the context of the economically 
and socially interrelated metropolitan community8— as 
segregated institutions. On the basis of achievement data 
and expert testimony the lower court concluded that the 
assignment of “ a great majority of the black children . . . 
in 70% or more black schools, at a time when 90% 
white schools are operated just across the line, has 
the same impact upon self-perception and consequent 
effect upon academic achievement as that of official segre­
gation as it existed in 1954” (Pet. A. 478a).9 As the 
district court suggested, the damage to the black children 
about which this Court spoke in Brown v. Board of Educa­
tion “may now have the additional negative component 
of perception by blacks that the law has spoken and the 
situation is the same” (Pet. A. 474a). In sum, as the 
district court found, “ the children of the three areas

8 The briefs of the1 petitioners set forth the evidence underpinning 
the fact that the counties and the city now form a single metro­
politan community. In this connection see also Carolyn Bradley’s 
Petition for Certiorari in this case, pp. 15-21.

9 As the district court noted, “ Schools the racial composition of 
which departs significantly from the community parity . . . are 
perceived by parents, teachers, administrators, public officials, 
pupils, and the community at large as facilities designed and oper­
ated for one race or the other” (Pet. A. 188). That court also 
found that “ the social psychology of the Richmond area is such 
that schools with black enrollments substantially disproportionate 
from the racial composition of the area will be perceived by the 
community as bearing a stigma of inferiority. Black pupils of such 
schools will achieve less by reason of such perceptions by the com­
munity at large, their teachers, their parents, and themselves. Per­
ceptions affect expectations and the expectations of such persons 
have a notable impact upon the achievement of individual students.” 
(Pet. A. 476a). The testimony showed and the court found that 
“ [s]chool segregation . . . has a very negative impact upon self­
perceptions, and consequently development, of black children.”  This 
type of segregation “affects motivation” and instills a “ sense of 
containment, of being confined by a hostile majority, [and] imposes 
a sense of limited possibilities and decreases ambition.”  (Pet. A 
472a-73a).



11

involved cannot, under existing conditions and as the 
school divisions are now operated, receive an equal educa­
tion” (Pet. A. 478a).

2. The State’s Policies of Massive Resistance and 
Delay Perpetuated and Reinforced Racism.

The decision in Brown afforded State and local school 
officials in Virginia a unique opportunity to encourage 
residential integregation and racial harmony. As a re­
sult of Brown, the State and each of the three school 
subdivisions were under the duty to dismantle the dual 
system and extirpate the racial identification of their 
schools. In the post-Brown period the counties— and to 
a lesser extent the city—were adding large numbers of 
new homes and residents.10 Efforts by school officials to 
comply with Brown by locating schools and designing 
attendance policies in such a way as to further school 
desegregation would have had a significant impact upon 
the racial composition of the newly developing residential 
communities in the counties and transitional residential 
areas in the city. As this court observed in Swann: 
“People gravitate toward school facilities, just as schools 
are located in response to the needs of the people. The 
location of schools may thus influence the patterns of 
residential development of a metropolitan area and have 
important impact on composition of inner city neighbor­
hoods.” Swann v. Charlotte-Mecklenburg Board of Edu­
cation, 402 U.S. 1, 20-21 (1971).

Moreover, these officials had the opportunity to shape 
affirmatively the attitudes and actions of public officials 
and private citizens. Merely by providing a desegregated 
education, as Brown required, school officials could have in­
fluenced positively the racial attitudes and the subse­
quent residential choices and options of thousands of 
school children (now adults and parents) who were

10 See discussion supra, p. 8.



12

graduated from schools in the Richmond metropolitan 
area in the 17-year period after Brown. As this Court 
noted in Swann v. Charlotte-Mecklenburg Board of Edu­
cation, supra, 402 U.S. at 22-23, “ desegregation of schools 
ultimately will have impact on other forms of discrimina­
tion.” 11 A  report of the U.S. Commission on Civil Rights 
—based on an extensive study prepared by the National 
Opinion Research Center at the University of Chicago— 
concluded that whites who attended desegregated schools 
expressed greater willingness to reside in an interracial 
neighborhood and to have their children attend desegre­
gated schools and looked more favorably upon fair em­
ployment practice laws than whites who attended racially 
isolated schools. Similarly, blacks who attended desegre­
gated schools were more likely than blacks who attended 
racially isolated schools to live in desegregated neighbor­
hoods and to send their children to desegregated schools.12

Instead of desegregating, however, state and local of­
ficials rejected the responsibilities of leadership that 
Brown thrust upon them. By their long delay, they suc­
ceeded in preserving school segregation for 17 years. The 
effects were the very antithesis of those which might have 
been achieved through school desegregation. As the dis­
trict court found:

“ Attitudes of whites and blacks, employment, income 
levels, housing segregation, and the direction of 
urban growth are all permanently shaped by school 
segregation. To the extent that segregation endured 
past 1954, it fostered these effects by reason of the 
defendants’ defiance of the announced constitutional 
mandate.” (Pet. A. 237a).

11 See the testimony of Dr. Robert Lucas relating to the effective 
consolidation of the all-black high school with schools in another 
district serving Hamilton County, Ohio, which was 90 per cent 
white (Tr. R-21, 27, 35).

12 U.S. Commission on Civil Rights, Racial Isolation in the Public 
Schools Vol. 1, pp. 111-113; Vol. 2, pp. 211-241.



13

Official defiance of Brown went well beyond inaction. 
The State spearheaded “ massive resistance”  to desegrega­
tion and then substituted other devices— including the 
Pupil Placement Law, the tuition grant program and 
“ freedom of choice”— which have had the purpose or 
effect of evading the Brown mandate. Local officials too 
assumed an affirmative role in encouraging and stimulat­
ing resistance. As late as 1971, the Chairman of the 
Chesterfield County Board of Supervisors commended 
to his citizens “a revolt in the form of a school boycott, 
separate private school system, or even freedom of choice 
school assignments and letting federal troops see what 
they can do about it, rather than integrate the schools 
in Chesterfield County with the City of Richmond”  (Pet.
A. 412a).

As this Court declared four years ago, “ This deliberate 
perpetuation of the unconstitutional system can only have 
compounded” the system’s harm. Green v. County School 
Board, 391 U.S. 430, 438 (1968). Thus, the trial court 
found that, against the background of segregation exist­
ing in 1954, “ the systematic obstruction of the rights 
enunciated in Brown, and the deliberate policy to per­
petuate segregation through numerous techniques of cir­
cumvention, have in combination made clear to white 
and black members of the community the favor and satis­
faction with which the State power views the continued 
segregation of schools” (Pet. A. 189a). This official con­
duct could only have encouraged white antipathy toward 
integregation with blacks and conveyed to blacks a mes­
sage that official hostility would attend their efforts to 
seek integration with whites. By encouraging whites to 
avoid integration and discouraging blacks from seeking 
it, official policies stimulated and reinforced segregated 
residential patterns in the metropolitan area.



14

3. Affirmative Acts of State and Local School 
Officials Have Contributed to the Concentration 
of Blacks in the Richmond School District.

The state and local authorities, as we have demon­
strated in the preceding sections, made stable and effective 
desegregation in Richmond impossible by their massive 
resistance and delay in the face of major demographic 
changes in the metropolitan community. Here we show 
that state and local school officials, by affirmative acts 
in addition to massive resistance, influenced the pattern 
of residential segregation in the Richmond metropolitan 
area.

This Court has recognized that “ People gravitate toward 
school facilities. . . Swann, supra, 402 U.S. at 20. 
When those facilities are designated for whites, they 
draw white families into the neighboring community. 
When facilities are designated for blacks, they draw black 
families. Between 1954 and 1971, Henrico and Chester­
field Counties carried out a massive program of school 
construction. Henrico built 31 new schools and expanded 
36 others (Tr. N-109; H.X. 29).1,3 Chesterfield built 33 
new schools in the past 20 years (Tr. N-201).13 14 In both 
counties these schools were built and operated as racially 
identifiable schools with racially identifiable student bodies 
and faculties (Pet. A. 200a; see R.X. 92; C.X. 31). From 
1954 to at least 1962, all schools constructed in the 
counties were expressly designed to serve blacks or whites 
(Pet. A. 287a).15 The district court found that the 
school construction and attendance policies had “ con­
tributed substantially to the current segregated condi­
tions” with “ [t]he longer term impact . . . [being] the

13 In 1970-71 Henrico was operating 39 schools (Pet. A, 527-29a).
14 In 1970-71 Chesterfield was operating 37 schools (Pet. A 524a- 

26a).
15 Twenty-three of the 31 new schools in Henrico were built dur­

ing this period (H.X. 29).



15

exaggeration of the racial disproportion between the city 
and the two neighboring counties” (Pet. A. 200a).

Apart from the immediate segregatory impact of the 
county programs of constructing racially identifiable 
schools, the maintenance and operation of such schools 
created substantial disincentives for blacks to move into 
the counties. In maintaining the dual system, the counties 
signalled to the blacks of Richmond, as well as potential 
black entrants from other areas, that their children would 
not obtain an integrated education in county schools be­
cause those schools were to remain segregated.

The record reflects the obstacles placed in the way of 
black children who had the courage to seek entry into 
a white school in the counties. During the era of the 
Pupil Placement Law, a black child seeking to attend a 
white school across the street from his home in Chester­
field County was required to request a hearing from the 
Pupil Placement Board, which in turn would advertise 
the proposed hearing in the Richmond Times Dispatch 
once a week for two consecutive weeks. The child and 
his parents were then to appear at the appointed time 
to “ present their case” (Tr. 0-12, 13).

During the era of “ freedom of choice,” the counties 
kept black teachers out of the white schools, thereby dis­
couraging blacks from entering (Pet. A. 524a-29a). The 
limited school facilities available to black families with 
high school children also served as disincentives. Chester­
field operated a single all-black high school through 1969- 
70, and Henrico operated one such high school through 
1968-69. At the same time Henrico operated six identifi- 
ably white schools and Chesterfield seven. (Pet. A. 524a- 
27a). Since both counties cover substantial geographical 
areas,1’6 the difference in available facilities meant that 16

16 According to the 1970 Census, Henrico County covered 244 
square miles and Chesterfield County, 445 square miles (Pet. A. 
402a).



16

whites could choose from among many locations and still 
reside in close proximity to a high school. Blacks, on the 
other hand, had a narrower range of housing opportunities 
if their children were to be conveniently located with 
respect to the single high school operated for them.

Furthermore, the counties offered to the whites of 
Richmond and to in-migrating whites a wider range of 
all-white (98 to 100 per cent white) neighborhood schools 
than were available in Richmond. For example, as late 
as the 1969-70 school year, Richmond had one high 
school, one middle school and six elementary schools 
which were all-white (Pet. A. 530a-32a). Henrico and 
Chesterfield, on the other hand, offered a combined total 
of two all-white high schools, two all-white middle schools 
and twenty-two all-white elementary schools (Pet. A. 
524a-532a). In effect, the counties held open to whites 
the opportunity to live in a variety of locations within 
the county boundaries with the knowledge that their 
children would attend a conveniently located all-white 
school.

The district court summed up the radiating effects of 
the discriminatory actions and policies of state and local 
school officials when considered in combination with the 
restricted housing options available to blacks (Pet. A. 
206a):

“ The interdependency of housing and school segre­
gation is fully established by the record. Schools 
were planned with an eye to separate racial occupancy 
and opened as such, with zone and division lines 
imposed upon segregated housing patterns. The ac­
commodation of expanding pupil population in new 
schools paved the way for new urban growth. New 
residents in turn were governed in their choice of 
housing by established patterns of residential segre­
gation. They also were attracted to one or another



17

zone by the opportunity to avoid school desegrega­
tion. Blacks new to the area and young black adults 
native to Richmond in the meanwhile were more re­
stricted in choice of housing sites. Overall, the area’s 
population expanded, and over time black residents, 
with fewer options so far as housing was concerned, 
comprised a greater and greater proportion of the 
city’s residents, while the area’ s whites occupied the 
suburban counties.”

B. Other Forms of Public and Private Discrimination 
Also Contributed to the Concentration of Blacks in 
the Richmond School District.

State and local school authorities are not the only 
officials who bear responsibility for the concentration of 
blacks in the Richmond School District.

The district court found, for example, that all public 
housing projects except one in the Richmond metropolitan 
area are principally black and are located in predomi­
nantly black areas of Richmond.17 While Chesterfield and 
Henrico are empowered to create public housing authori­
ties and establish public housing, they have failed to do 
so,18 notwithstanding the fact that 11 per cent of the 
housing units in each jurisdiction are substandard (Pet. 
A. 495a-496a). “ Both counties have stated their opposi­
tion to public housing within their borders” {id. at 496a). 
In addition, both counties have blocked the operation of 
the federal rent supplement program— a companion to 
public housing—by failing to take the steps required to 
qualify {id. at 493a; see Tr. E-35-42). Similarly, large- 
lot zoning in the counties has made it necessary for less

17 Hillside Court, a public housing project in Richmond, was built 
for whites (Pet. A. 495a).

18 Section 36-4 of the Code of Virginia creates a housing authority 
for each city and county, leaving it to the local governing body 
to actually bring such authority into operation. See Mumpower v. 
Housing Authority, 176 Va. 426, 11 S.E.2d 732, 739 (1940).



18

affluent blacks to seek zoning variances in order to build 
there (Tr. L-195, 197; Pet. A. 513a).

The story has been the same in public employment. 
The evidence shows that there are 635 administrative 
(white collar) positions in the Henrico County Govern­
ment. Of these, 615, or 98.6 per cent, are held by whites 
(P.X. 107). Seventy of the jobs are appointive and only 
one black, who was appointed in 1970, holds such a 
position (id.). In Chesterfield there are 293 administra­
tive jobs. Of these, 286, or 97.62 per cent, are filled by 
whites (P.X. 107B). The district court found that “public 
employment in Henrico and Chesterfield Counties over the 
years has been available almost exclusively to whites” 
(Pet. A. 510a). This discrimination has not only fore­
closed important employment opportunities for blacks, 
but has also established a power structure, ranging from 
the police through the county boards of supervisors, that 
is likely to be regarded as uncongenial and unresponsive 
to black residents.

Public transportation policies have constituted another 
spoke in the wheel of discrimination. “Very scanty” 
public transportation within the large geographical area 
of Chesterfield and between Chesterfield and Richmond 
makes jobs in the county less accessible to poor persons 
living in Richmond or in the county, and jobs in Richmond 
less accessible to poor persons living in the county (Pet. 
A. 514). This has the greatest impact on blacks who 
make up the greatest percentage of the poor in the 
Richmond area (Pet. A. 503a).

In addition, state imposed restrictions on interracial 
contacts have served to reduce the mobility and oppor­
tunities of blacks and to intensify clustering by race. 
During the period of massive resistance and in some 
cases even beyond that period, segregatory laws remained 
in force notwithstanding the spate of decisions by this



19

Court striking down all forms of official segregation.19 
Virginia’s laws required segregation in any place of 
public assemblage, segregation of fraternal benefit so­
cieties, segregation on all public transportation,20 seg­
regation in virtually every type of institution operated by 
the State, and separate treatment, according to race, by 
taxing and polling authorities. Interracial marriage was 
criminal and void.21 Organizations advocating racial in­
tegration were required to register with the state.22

The evidence also shows that brokers,23 title insurance 
companies,24 and newspapers,25 all had a hand in promot­

19 See Watson v. Memphis, 373 U.S. 526 (1963), and cases cited 
therein at 530 n.2.

20 Boynton V. Virginia, 364 U.S. 454 (1960).
21 Loving V. Virginia, 388 U.S. 1 (1967).
22 NAACP V. Button, 371 U.S. 415 (1963). See Code of Va. 

§ 18.1-356 (repealed 1970) ; § 38.1-597 (repealed 1968) ; §§ 56-326 
to 328 (repealed 1970) ; §§ 56-390 to 404 (repealed 1970) ; § 22-221 
(repealed 1971) ; §§ 23-10 to 12 (repealed 1971) ; § 20-101; § 58-880 
(repealed 1970) ; § 24-120 (repealed 1970) ; §§ 20-50 to 60 (repealed 
1968) ; § 18.1-381. See also “A Compendium of Racially Discrim­
inatory Laws of the State of Virginia.” (P.X. 114).

23 The district court found, inter alia, that although the member­
ship requirements for the ‘ ‘Richmond Board of Realtors, a pri­
vate group of real estate brokers, halve no relation to race, there 
has been and still may be, according to uncontradicted testimony, 
a clause in the code of ethics of the realtors to the effect that one 
could not disturb the white community by selling property therein 
to blacks, although certain areas of the city would be offered to 
non-whites by all realtors once the board of realtors determined 
that an area was one of transition and a home had been sold to 
blacks in a particular block, and that block was determined by the 
board to have been ‘broken’ ”  (Pet. A. 171a-72a).

24 On November 7, 1969, the Civil Rights Division of the U.S. 
Department of Justice requested Lawyers Title Company of Rich­
mond to terminate its policy of requiring that racial restrictions 
continue to be included on documents of title. (Pet. A. 515a). See 
Mayers V. Ridley, 465 F.2d 630 (D.C. Cir. 1972).

25 On March 6, 1970, the Civil Rights Division of the U.S. Depart­
ment of Justice requested the Richmond Times Dispatch and the



20

ing residential segregation in the growth period after 
Brown (Pet. A. 506a-507a, 514, 515a).26 It is only rea­
sonable to conclude that the State’s massive resistance 
posture and its pervasive segregation laws promoted and 
reinforced this private discrimination that contributed 
to the interdistrict segregation in the Richmond metro­
politan area.

C. The Court of Appeals Had No Foundation for 
Overturning the District Court’s Conclusion That 
It Had the Power To Order a Remedy for the 
Interdistrict Segregation in the Richmond Metro­
politan Area.

The facts adduced at trial, as we have shown, warrant 
the district court’s conclusions that “ [sjchool construc­
tion policy has constributed substantially to the current 
segregated conditions” (Pet. A. 200a) and that “ officials 
of the City of Richmond, Counties of Chesterfield and 
Henrico, as well as the State of Virginia, have by their 
actions directly contributed to the continuing existence 
of the dual school system which now exists in the metro­
politan area of Richmond” (Pet. A. 379a). The court 
of appeals “ accept[ed]” findings that “ there has been 
state (also federal) action tending to perpetuate apartheid 
of the races in the ghetto patterns throughout the city,

Richmond News Leader to discontinue use of a separate column at 
the beginning of the classified advertisements for homes for sale 
which was commonly understood as indicating houses for Negroes 
(P.X. 42A). This policy was discontinued as of February 1, 1971 
(P.X. 42C).

26 Lawyers Title Insurance Company files show that in Chester­
field 37 subdivisions, accounting for 3,323 lots, had restrictive cov­
enants (C.X. 37). In Henrico 78 subdivisions, accounting for 
14,154 lots, were burdened with restrictive covenants (Tr. Q-6; 
Pet. A. 509a.). The district court found that the Federal Housing 
Authority encouraged and perpetuated housing segregation until 
at least 1947 when it removed “the caveats in its underwriters’ 
manual advising appraisers about the dangers of 'inharmonious 
racial groups’ ”  (Pet. A. 488a-89a).



21

and that there has been state action within the adjoining 
counties also tending to restrict and control the housing 
location of black residents” (Pet. A. 572a). The court of 
appeals “ agree[dj” that “ there has been some inaction, 
{e.g., non-participation in construction of low income 
housing) by the counties here which may have restricted 
the access of blacks to residences in these counties” {id. 
at 574a), and that “ [fjormer FHA policies and the use 
of racially restrictive covenants have doubtless had an 
impact on residential housing patterns within the city 
and the counties” {id.).

Notwithstanding its acceptance of these district court 
findings, the court of appeals reversed. It did so, ap­
parently, on two grounds: (1) that “ neither the record 
nor the opinion of the district court even suggests that 
there was ever joint interaction between any two of the 
units involved (or by higher state officers) for the pur­
pose of keeping one unit relatively white by confining 
blacks to another” (id. at 572a); and (2) that it was 
not established that the racial composition of Richmond 
and the counties is the result of invidious state action 
{id. at 582a).

We show below that the court erred on both counts.

1. The Court of Appeals Erred in Holding That 
the Power To Remedy Interdistrict Segregation 
Depends Upon a Showing of Joint Interaction 
by Two Arms of the State for a Discriminatory 
Purpose.

The court of appeals erred in brushing aside the dis­
trict court’s findings for want of a showing that “there 
was ever joint interaction between any two units of the 
units involved (or by higher state officers) for the purpose 
of keeping one unit relatively white by confining blacks 
to another” (Pet. A. 572a). That approach is inconsistent 
with the Fourteenth Amendment.



22

To the extent that the court of appeals was holding 
that a purpose to cause interdistrict segregation was es­
sential to any constitutional violation, this Court’s de­
cision in Wright v. Council of City of Emporia, 407 U.S. 
451 (1972)— decided subsequent to the court of appeals 
decision below—provides a complete answer. In Wright 
this Court held that the district court properly focused 
on the impermissible discriminatory effect of a city’s 
decision to secede from a school district, stating that 
“ [t]he existence of a permissible purpose cannot sus­
tain an action that has an impermissible effect.”  407 
U.S. 451, 462.

To the extent that the court of appeals was holding 
that official discrimination having interdistrict segrega- 
tory effects must be joint interaction between districts 
(or between two state officials) before it is remediable, the 
court of appeals also erred. “ [T]he prohibitions of the 
Fourteenth Amendment extend to all action of the 
State denying equal protection of the laws; whatever the 
agency of the State taking the action, see Virginia v. 
Rives, 100 U.S. 313; Pennsylvania v. Board of Directors 
of City Trusts of Philadelphia, 353 U.S. 230; Shelley 
v. Kraemer, 334 U.S. 1; or whatever the guise in which 
it is taken, see Derrington v. Plummer, 240 F.2d 922; 
Department of Conservation and Development v. Tate, 
231 F.2d 615.” Cooper v. Aaron, 358 U.S. 1, 17 (1958). 
The Fourteenth Amendment does not require “joint in­
teraction” between agents of the State before the effects 
of discriminatory actions of the State or its agents can 
be remedied.27 We know of no reason or authority to 
support the view that where effects of this type stem from

27 Local school officials are only derivatively subject to the Four­
teenth Amendment. “ From the point of view of the Fourteenth 
Amendment, they stand in this litigation as agents of the State ”  
Cooper v. Aaron, 358 U.S. 1, 16 (1958). See also Reynolds V. Sims, 
377 U.S. 533 (1964) ; Ioiva-Des Moines Bank V. Bennett 284 U S 
239,244-45 (1931).



23

independent acts of discrimination, they are exempt from 
the reach of the Fourteenth Amendment and can be per­
petrated with impunity. Such an exemption would be in­
consistent with this Court’s ruling that in a desegregation 
case, the district court “ ‘has not merely the power but 
the duty to render a decree which will so far as possible 
eliminate the discriminatory effects of the past. . . .’ 
Louisiana v. United States, 380 U.S. 145, 154.” Green 
V. County School Board, 391 U.S. 430, 438, n. 4 (1968).

2. The Court of Appeals Had No Basis for Over­
turning the District Court’s Finding That Offi­
cial Discrimination Contributed Substantially 
to Interdistrict Segregation in the Metropolitan 
Area.

The court of appeals expressly approved many of the 
district court’s findings of invidious official discrimina­
tion in the Richmond metropolitan area. That court, how­
ever, ruled against plaintiffs on the ground that they 
had failed to establish that this discrimination was the 
cause of the racial composition of Richmond and the 
counties (Pet. A. 582a-83a). The court of appeals, we 
submit, had no foundation for overturning the district 
court’s contrary finding.

a. The court of appeals ruled that if the trial judge 
concluded that the “ counties were . . . keeping blacks 
in Richmond schools while allowing whites to flee to rela­
tive white sanctuaries . . .,” the facts do not support 
his conclusion. (Pet. A. 573a). In support of its ruling, 
the court of appeals relied upon defendants’ survey of the 
number of black and white children enrolled in the 
county systems in the spring of the 1970-71 school year 
who had transferred directly from the Richmond system 
{id.).

As to blacks, the survey, if anything, serves to con­
firm that discriminatory official policies had an impact



24

on the residential movement of blacks. As to whites, the 
survey is incomplete and inconclusive.

With regard to the impact on blacks, the survey shows 
that during the preceding decade only 532 black children 
transferred directly from Richmond schools to Henrico 
schools and that, in the preceding 12 years, only 36 black 
school children transferred directly from Richmond to 
Chesterfield (id.). The study does not deal in any way 
with 105,764 blacks living in Richmond in 1970 (R.X. 
57A), including 30,097 black children in the Richmond 
schools (R.X. 75). The survey does not bear in any 
material way on the confining effect that official dis­
crimination had upon these blacks in the City of Rich­
mond.

The survey, moreover, does not negate the influence of 
official discrimination on the abrupt departure of 2,505 
or more school children who enrolled in the Richmond 
schools for the 1970-71 school year but had left the system 
as of February 16, 1971 (Tr. N-181-182). It shows only 
that most of these children did not immediately land in 
county schools. Inasmuch as families may not have been 
able to relocate immediately, it is possible that many of 
these children spent an interim period in a private school 
before enrolling in county schools. Furthermore, the 
study was made before another 3,703 white school chil­
dren left the Richmond schools in 1971-72 when Plan 
III took effect (Pet. A. 573a). Nor did the survey cover 
all the white children in county schools whose parents 
left Richmond while the children were of pre-school age. 
These children may well constitute a substantial number.

The discriminatory effects of official policies were not 
confined, as the court of appeals seems to suggest, to the 
impact of those policies on the residential choices of 
blacks and whites living in the metropolitan area. Rather, 
those policies also must have influenced white and blacks



25

entering the metropolitan area from outside or consid­
ering such entry.

The survey takes no account of such effects. It does 
not indicate the number of blacks who would have moved 
into the counties but for the discriminatory official poli­
cies.28 Nor does it measure the effects of those policies 
on the large numbers of whites living outside the metro­
politan area who chose to relocate in the white counties 
rather than the city.29

In short, the survey did not cover major population 
groups— blacks in the center city and newcomers of both 
races—who constitute the vast majority of the area’s pop­
ulation. It failed to establish that the large number of 
whites who left the Richmond system in 1970-71 and 
1971-72 did not or will not ultimately enter the county 
schools. Nor did it in any way deal with the motiva­
tions of persons living outside the metropolitan area who 
considered but decided against moving into the area. In 
sum, the survey did not negate the foundation for the 
district court’s conclusion— resting on facts summarized 
in Section A and B of this Part II of our brief—that of­
ficial discriminatory policies were in substantial measure 
responsible for the area’s interdistrict segregation.

28 As the district court found, based upon the testimony of expert
witnesses: . . it is clear that non-economie causes lie behind
at least a very substantial amount of the segregation. . . . Dr. 
Tauber, and the Court, are led to the conclusion that publicly and 
privately enforced discrimination accounts for the remainder.” 
(Pet. A. 480a-481a). “With respect to persons moving into a com­
munity as new residents. . . . Dr. Tauber stated, and the Court 
finds, that such people are very much governed in their decision 
upon housing sites by existing patterns of customs and restrictions” 
(Pet. A. 482a). “Dr. Sloane stated as well, and the Court finds, that 
existing patterns of segregation substantially influence the choice 
of housing site by a new entrant into the community” (Pet. A. 
491a).

29 The counties, which are now more than 91.6 per cent white, ex­
perienced a combined population increase of 136 per cent between 
1950 and 1970 (R.X. 57A).



26

b. The record showed increasing segregation in the 
metropolitan area and official discrimination limiting the 
opportunities of blacks for schooling, housing and em­
ployment outside the center city. Common sense dictates 
that on this record the district court correctly concluded 
that such discrimination contributed materially to the 
existing racial separation in the Richmond metropolitan 
area. Where the plaintiffs have shown that racial dis­
crimination has been pervasive at every tier and branch 
of government, and have demonstrated that such official 
discrimination has the effect, or even the potential ef­
fect, of contributing substantially to interdistrict school 
segregation, it is unreasonable to require the plaintiffs 
to sort out and identify the extent to which such discrim­
ination has contributed to that segregated condition. The 
proper approach in such a case is that taken by this Court 
in Sioann v. Charlotte-Mecklenberg Board of Education, 
402 U.S. 1 (1971). There, this Court held, in an intra­
district case, that there is “ a presumption against schools 
that are substantially disproportionate in their racial 
composition,” and that the trial court “ should scrutinize 
such schools,” and place “ the burden upon the school 
authorities . . .  to satisfy the court that . . . [the racial 
identity of the schools] is not the result of present or 
past discriminatory action on their part.” Id. at 26. In 
short, the defendants must “ disentangle the consequences 
for which [they are] chargeable” or bear responsibility 
for the whole. NLRB v. Remington Rand, Inc., 94 F.2d 
862, 872 (2d Cir. 1938), cert, denied, 304 U.S. 576 
(1938).



27

III

The District Court’s Order Requiring Merger of the 
Three School Districts Was an Appropriate Exercise 
of Its Equitable Discretion To Remedy the Constitu­
tional Violation

In the case at bar, the district court ordered merger 
of three school districts, following the state law to the 
maximum extent possible.30 This order is based upon 
substantial evidence, indeed compelling evidence, that only 
an interdistrict remedy could “ eliminate from the public 
schools all vestiges of state-imposed segregation.” Swann, 
supra 402 U.S. at 15. It is further supported by evi­
dence that the school districts involved are constituent 
parts of a single metropolitan community.31 So too, the 
evidence shows that in the past there had been extensive 
interdistrict cooperation and even school district consoli­
dation aimed sometimes at maintaining the dual system 
in Virginia and on other occasions at achieving legiti­
mate educational objectives.32 Thus, the district court’s 
remedy is essentially co-extensive with techniques the

30 In 1970 the State Legislature, aware that this case was pend­
ing before the district court, enacted legislation conditioning the 
State Board of Education’s power to establish appropriate school 
divisions and to create a single school division encompassing more 
than one school district. Under the new enactment, all such con­
solidations must be ratified by the school boards and governing 
political bodies of the political subdivisions affected. See 9 Va. 
Code § 22-30 (Cum. Supp. 1971); Va. Const. Art. VIII, § 5 (a), 
as revised (1970). See also Judge Winter’s dissenting opinion (Pet. 
A. 586-587a, n.3) and the district court’s findings {id. at 227a- 
228a). Judge Winter points out that “ in all respects the order of 
the district court complied with the provisions of existing state 
law, save only that of the requirement of consent of the school 
boards and governing bodies of all of the affected political sub- 
divisons” {id. at 587a, n.3).

31 See note 8, supra.

32 Pet. A. 193a-195a; 352a-356a; 360a-364a.



28

State has used to foster segregation and to pursue legiti­
mate educational objectives. These matters, we under­
stand, are being treated fully in the briefs of the peti­
tioners, and accordingly will not be discussed further 
here.

In this section, we show that the merger required by 
the district court’s order has many educational advan­
tages. It is in accord with the recommendations of the 
President’s Commission on School Finance and the Report 
of the New York State Commission on the Quality, Cost 
and Financing of Elementary and Secondary Education 
(the Fleischmann Report). It is also in accord with 
the State Board of Education’s policy of encouraging 
school consolidations (Pet. A. 274a).

A. Background.

A “ distinctive feature” of American education in the 
past has been the degree of decentralization that has pre­
vailed: “ No other nation has so decentralized the ad­
ministration of its schools.” 83 During the 19th century, 
when the nation was predominantly rural, most school 
districts simply defined the area served by a single school. 
President’s Commission on School Finance, Schools, Peo­
ple & Money: The Need for Educational Reform, p. 68 
(March 3, 1972). In recent times, however, educators 
have sought to draw school district lines in a manner that 
will increase the quality of education in addition to de­
fining the service area of a school system. Today we 
recognize that “ the size and shape of school districts often 
affect the quality of the education they deliver to their 
children.” President’s Commission, supra, p. 68. And we 
now recognize that there are substantial educational and 33

33 National Committee for Support of the Public Schools, “ The 
Reorganization of Local School Districts”  (Fact Sheet) (June 
1967).



29

economic advantages to be derived from the merger and 
consolidation of school districts. As the President’s Com­
mission on School Finance found (id. ) :

“ In recent years, educators have sought and often 
achieved redesign of school district boundaries to 
achieve educational objectives. Small districts were 
combined to produce larger ones so that administra­
tion would be more efficient. Districts were also made 
larger to allow them to support large high schools 
that could offer a wider range of courses and such 
high-cost facilities as laboratories and swimming 
pools. Big cities often put all their schools into 
single districts.”

Thus, since 1932 there has been a dramatic change in 
the number and size of school districts. In 1932 there 
were more than 125,000 school districts.84 Today there 
are only 17,500 school districts. President’s Commission, 
supra, p. xix.

The consolidation of school districts throughout this 
country has not been limited to rural school systems. 
While those systems have much to gain through merger, 
many urban systems, including Charlotte and Winston- 
Salem, North Carolina, and Nashville, Tennessee, have 
consolidated with outlying areas.

The school district established by the court below would 
encompass an area 752 square miles and have an enroll­
ment of 104,000 students (Pet. A. 402a, 430a).85 In 34 35

34 American Association of School Administrators, School Dis­
trict Organization, p. 1 (1962).

35 In Virginia many, but not all school districts, are coterminous 
with a political subdivision such as a county or city. The State 
Board of Education favors consolidation of school systems (Pet. A. 
274a) and, in the past, 28 school divisions have served more than 
one political unit (Pet. A. 279a). Moreover, there is no organi­
zational reason why school districts must be coterminous with a 
single political subdivision. Acocrding to the Bureau of the 
Census, in 1967, there were 4,422 school districts each serving



30

terms of area the new district would be comparable to or 
smaller than six Virginia districts which cover more than 
700 square miles (Bedford, Chatham, Charlottesville, Hali­
fax, Harrisburg and Staunton) and would be smaller in 
student enrollment than the Fairfax County, Virginia, 
school district which presently enrolls 135,948 students. 
The U.S. Bureau of Census reported in 1966-67 that 
there were at least 577 school districts in the country 
having an area of 700 square miles or more. U.S. Dept, 
of Commerce, Bureau of the Census, 1967 Census of Gov­
ernments Report on Governmental Organization (Vol­
ume 1). The district court found that in fall 1970 there 
were 163 school districts having enrollments between 25,- 
000 and 99,000 students and about 28 school districts 
having enrollments of more than 100,000 students (Pet. 
A. 432a).

B. Educational Advantages of Consolidation.
Broadly speaking, urban mergers offer important edu­

cational advantages: (1) a greater opportunity for het­
erogeneous grouping; (2) a greater opportunity to offer 
specialized programs that depend upon a large pupil pop­
ulation base; and (3) an opportunity for achieving a 
more stable tax base.

an area with the same boundary as those of some other local govern- 
ment. These coterminous school systems accounted for 16.8 million 
pupils, or only 28 percent of all public school enrollment. The re­
maining- 18,968 school districts, comprising- 86 per cent of all 
independent school districts and 20 per cent of the dependent school 
systems, served areas that did not correspond directly to those of 
any other local government. The noncoterminous school systems 
included 8,439 classed under the heading “municipal,” for which 
an enrollment of 16.6 million pupils was reported. Most of the 
“municipal” systems included an entire municipal area as well as 
some adjacent territory. Some embraced only a portion of a munici­
pality. These municipal systems included 789 systems that provided 
school services to cities of 25,000 population or more. U.S. Depart­
ment of Commerce, Bureau of the Census, 1967 Census of Govern­
ments Report on Governmental Organization (Volume 1).



31

1. Heterogeneous Grouping. As to the first point, the 
President’s Commission on School Finance recommends 
that “ States reorganize their school districts to encom­
pass within each one, wherever possible, children of di­
verse economic, racial and social backgrounds,”  In the 
Commission’s view, heterogeneity is the first of “ two 
prime considerations” to be taken into account in reor­
ganizing school districts. The Commission attached great 
importance to this factor because, as it found, “ economic 
or ethnic isolation of children reduces the ability of school 
systems to provide equal educational opportunity and qual­
ity education.” President's Commission, supra, p. xix.

“ Research results are not yet conclusive on the 
effect of the socio-economic backgrounds of other 
students on a child’s educational achievement. How­
ever, it is becoming increasingly apparent that the 
student-mix within a school exerts a strong influ­
ence on learning patterns of the total student body. 
A student body reflecting different social, economic, 
ethnic and cultural family backgrounds tends to 
improve the learning of lower achieving students.

“Accordingly, the Commission concludes that the 
effect of the student-mix appears to be such that 
equal educational opportunity is enhanced in a het­
erogeneous student body. Moreover, such a student 
body better prepares all its members for productive 
and creative participation in a free society.” Id. at 15.

See also Coleman, et ah, Equality of Educational Oppor­
tunity (U.S. Office of Education) 1966; Havighurst & 
Levine, Education in Metropolitan Areas (1971), pp. 121, 
250.

Similarly, the Fleischmann Commission noted that the 
district court’s decision in this case, if affirmed, “ should 
create greater stability in individual urban schools by 
curtailing the incidence of white migration to the sub­
urbs in search of racially segregated schools.” Report of 
the New York State Commission on Quality, Cost and Fin­
ancing of Elementary and Secondary Education, p. 4.82



32

(1972). The Commission recommended that the State 
Legislature of New York “facilitate consolidation of 
school districts to achieve desegregation as well as elimi­
nate statutory obstacles to cross-busing of children across 
district lines for the same purpose” and that, pending 
such legislative corrections, the Commissioner of Edu­
cation “ should begin to examine segregation as a regional 
problem and work out regional solutions where needed.” 
Id. at p. 4.14.

So too, in the Emergency School Aid Act of 1972, 
Congress adopted a program for funding metropolitan 
area wide approaches to public schooling.136

2. Special Programs. Educators are generally agreed 
that, as the pupil population rises, so does the opportunity 
and wherewithal to provide special programs. Programs 
requiring expensive machinery or highly trained special­
ists become feasible only when there are substantial num­
bers of children to be served. Examples of such pro­
grams are vocational education, business training, tech­
nical training, educational television and data process­
ing.3̂  Mergers materially increase the school district’s 
capacity to provide such programs.

These gains resulting from increased school district 
size are confirmed by a “ Survey of Programs & Prac­
tices of Public School Systems” conducted in May 1971 * 37

86 Public Law 92-318, 20 U.S.C. § 1608 et seq. Congress sought to 
encourage area-wide projects “ to reduce and eliminate minority 
group isolation,” 20 U.S.C. § 1609(a) (2), and to foster the develop­
ment of educational parks “of sufficient size to achieve maximum 
economy of scale” and an “enrollment in which a substantial pro­
portion of the children is from educationally advantaged back­
grounds and which is representative of the minority group and non­
minority group children” of the districts in the Standard Metro­
politan Statistical Area. 20 U.S.C. § 1609(a) (3).

37 Speech delivered to the American Association of School Ad­
ministrators on February 20-24, 1971 by its Associate Secretary, 
Dr. Robert M. Isenberg. See also President’s Commission, p. 69.



33

by the NEA Research Division.38 The report of the sur­
vey shows that larger systems of 25,000 or more students, 
lead medium (3,000-24,999 students) and small (300- 
2,999 students) systems in the provisions of special pro­
grams :

Percentage of Large, Medium and Small School Systems 
Providing Special Programs in May 1971

% % %
Large Medium Small

Year Round School 3.6 0.7 0
Summer Work Developing

Curriculum 1966 to 1971 62-72 37-44 13-15
After School Study Centers 44 20 12
Evening School for Potential

Dropouts 50 13 5
Humanities Courses

(Secondary) 85 60 49
Nongraded Organization 70 38 12
Nursery School 23 7 4
School-Job Coordination:

Distributive Education 95 65 18
Diversified Occupation 72 35 13
Industrial Coop Training 75 47 17
Job Corps 19 10 7
Vocational Office

Training 89 64 37

3. Fiscal Stability. In recent years educators also have 
been encouraging school districts in metropolitan areas 
to merge and consolidate as a means of achieving a stable 
economic base for public education. The President’s School 
Finance Commission, like numerous others, has pointed 
out that “ the big cities of the Nation are rapidly being 
left to the poor and untrained” (President’s Commission, 
supra, p. xiv). Thus, the migration of the middle class

38 Survey available from NEA Research Division.



34

from the central city is undermining the ability of urban 
school districts to pay for quality education.39

In 1968 the Advisory Commission on Intergovernmental 
Relations— a bipartisan commission of federal, state and 
local officials— proposed model state legislation which 
would metropolitanize school districts. Their stated pur­
poses were, inter alia, (1) to “eliminate the accidents of 
local property tax geography” ; (2) to “ remove the possi­
bility that industrial enclaves and local fiscal zoning 
will shield certain property from the legitimate burdens 
borne by the wider community for public schools” ; and 
(3) to enlarge the financial base for meeting the educa­
tional needs of large numbers of “high-cost” students 
(i.e., students from lower socio-economic levels) located 
in the central city.40

In March 1972 the President’s Commission on School 
Finance found that the second most important considera­
tion in school district reorganization was creation of a 
district “ large enough to encompass to the extent pos­
sible a distribution of wealth comparable to that of the 
State as a whole. This would reduce disparities and make 
more economical the provision of specialized educational 
programs.”  (President’s Commission, supra, p. x ix).41

39 Suburban communities are also adversely affected. Pennsyl­
vania’s State Secretary of Education reports that this migration 
“ in many instances”  renders new suburban school facilities over­
crowded “almost as soon as opened.” Speech of Dr. David H. Kurtz- 
man, delivered to American Association of School Administrators, 
February 20-24, 1971. See also Havighurst & Levine, supra, pp. 
138-42.

40 Advisory Commission on Intergovernmental Relations, State 
and Local Finances—Significant Features 1966 to 1969, p. 202-1 
(November 1968).

41 Merger of the three districts is not inconsistent with com­
munity control of schools. Thus, the plan adopted by the district 
court provides for division of the Richmond metropolitan area 
system into six administrative subdivisions, each with considerable 
local autonomy. Subdivision directors would supervise instruction, 
make decisions concerning curriculum and maintain “close contact



35

CONCLUSION

For the reasons set forth in the preceding pages, the 
National Education Association urges this Court to re­
verse the decision of the court of appeals and to hold (1) 
that the court of appeals erred in overturning the district 
court’s findings that discriminatory actions and policies 
of State and local authorities contributed materially to 
the interdistrict segregation currently existing in the 
Richmond metropolitan area, and (2) that the district 
court did not exceed its power or abuse its discretion in 
ordering merger of the three districts as a remedy for 
the continuing effects of the official discrimination.

Respectfully submitted,

St e p h e n  J. P o ll a k  
R ich ard  M . Sh a r p

734 Fifteenth Street, N.W.
Washington, D.C. 20005 

D avid  R u bin
1201 Sixteenth Street, N.W.
Washington, D.C. 20036

Attorneys for Amicus Curiae 
National Education Association

Of Counsel:
S h e a  & Gardner  

734 Fifteenth Street, N.W.
Washington, D.C. 20005

with parents of children in their schools” (Pet. A. 431a). The 
plan would permit each subdivision to establish a lay-advisory 
school board in order to involve local residents in the decision 
making process. The court found that the decentralization per­
mitted by the plan would “ lead to better communication between 
the patrons and administrators.”  (Id. ) . For examples of large 
school systems which have provided for similar administrative 
decentralization and community participation, see “ Decentraliza­
tion and Community Involvement: A Status Report,”  ERS Cir­
cular No. 7 (1969).