Bradley v. State Board of Education of Virginia Brief for Petitioners
Public Court Documents
January 1, 1973
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Brief Collection, LDF Court Filings. Bradley v. State Board of Education of Virginia Brief for Petitioners, 1973. 4c57a4a2-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4dc48eb4-cc77-46b5-a052-af5faea77f31/bradley-v-state-board-of-education-of-virginia-brief-for-petitioners. Accessed June 01, 2025.
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I n t h e
§at|irjmu> (Emir! ni tljr lu itri Stairs
O ctober T e r m , 1972
No. 72-550
C arolyn B radley , et al.,
Petitioners,
vs.
T h e S tate B oard op E du ca tio n of t h e
C o m m o n w e a l t h of V ir g in ia , et al.
ON w r i t o f c e r t i o r a r i t o t h e u n i t e d s t a t e s
COURT OF APPEALS FOE T H E FOURTH CIRCUIT
BRIEF FOR PETITIONERS
J ack G reen berg
J a m es M. N a brit , III
N orm an J . C h a c h k in
10 Columbus Circle
New York, New York 10019
Louis R . L ucas
525 Commerce Title Building
Memphis, Tennessee 38103
W il l ia m L. T aylor
Catholic University Law School
Washington, D.C.
J a m es R. Ol p h in
214 East Clay Street
Richmond, Virginia 23219
W il l ia m T. C o lem a n , J r.
Fidelity-Phila. Trust Bldg.
Philadelphia, Pennsylvania 19110
M. R a l p h P age
420 North First Street
Richmond, Virginia 23219
A n t h o n y G. A m sterdam
Stanford University Law School
Stanford, California 94305
Attorneys for Petitioners
I N D E X
PAGE
Opinions Below....................................... 1
Jurisdiction ........ .........— ............. -.............................. 4
Question Presented ................................. 4
Constitutional and Statutory Provisions Involved........ 4
Statement ................... 5
I. Segregation in tlie Schools of the Greater Rich
mond Area .............................................. 5
A. Maintenance and Expansion of the Dual
School Systems ....................... 11
1. Delays in Compliance with Brown ........ 11
2. Perpetuation of the Dual System Through
School Construction.................................. 16
3. The Role of the State ....... ..... ................. 18
4. Crossing Division Lines for Segregation 22
B. The Metropolitan Context .......... 24
1. Unity of the Metropolitan A rea .............. 25
2. Demographic Trends ................................ 30
II. The Proceedings Below........ .............................. 35
A. Litigation from 1961 to 1970 ......................... 35
B. Proceedings on the Motions for Further Re
lief and to Add Parties ........ 36
C. The Findings and Order of the District Court 42
D. The Court of Appeals’ Decision................... 50
11
PAGE
Summary of Argument ................................................ 51
Argument—•
I. Introduction .......................... ........... ................... 56
II. The District Court Did Not Lack Power to Order
an Inter-Division Desegregation P la n ............... 62
A. The Scope of Federal Judicial Power to Ter
minate Dual School Systems ......................... 62
B. The Court of Appeals’ Objections to an Inter-
Division Desegregation Plan .................... 73
III. The District Court Did Not Abuse Its Discretion
in Ordering an Inter-Division Desegregation
Plan ...................................................................... 82
A. Crossings of the Lines to Promote Segrega
tion and Other State Interests ..................... 84
B. The Indurate Quality of Segregation in the
Bichmond Area Schools ................................ 86
Conclusion .............................................. 99
Appendix A—•
The Constitutional Basis of the District Court’s
Desegregation O rder........ .............. l a
Appendix B—
The Basis of the District Court’s Approval of
Consolidation as a Means of Inter-Division Deseg
regation ...................................... 16
Ill
PAGE
A p p e n d ix C—
The Bole of Virginia State School Authorities in
School Administration and Policy Making............ 1c
A p p e n d ix D—
The Practical Operation of the District Court's
Desegregation Order ........... ........... ...... .... ............ Id
A p p e n d ix E—
The History of Localism and Centralism in Vir
ginia Educational Administration and Policy___ le
Ap p e n d ix P —
Forces Containing Blacks Within Richmond........ If
T able of A u t h o b it ie s
Cases:
Adkins v. School Bd. of Newport News, 148 F. Supp.
430 (E.D. Va.), aff’d 246 F.2d 325 (4th Cir.), cert.
denied, 355 U.S. 855 (1957) ............... .......... ............ 19n
Alexander v. Holmes County Bd. of Educ., 396 U.S. 19
1969) ________ ________ _______ ________ _...38n, 68n
Allen v. County School Bd., 207 F. Supp. 349 (E.D. Va.
1962) ........................................................................... 2e
Atkin v. Kansas, 191 U.S. 207 (1903) ...... .................. 78n
Baker v. Carr, 369 U.S. 186 (1962) ___________ ____ 77
Board of Supervisors v. County School Bd., 182 Va.
266, 28 S.E.2d 698 (1944) _____ _____ ____ ______ le
Bradley v. Milliken, 6th Cir. Nos. 72-1809, 1814, decided
December 8, 1972 (rehearing en banc pending) ...... 78n
IV
PA G E
Bradley v. School Bd. of Richmond, 382 U.S. 103
(1965) ...............................................................13n, 36, 91n
Bradley v. School Bd. of Richmond, 462 F.2d 1058 (4th
Cir. 1972) — .......... ................................................ passim
Bradley v. School Bd. of Richmond, 456 F.2d 6 (4th
Cir. 1972) ............................................ ....................... 3
Bradley v. School Bd. of Richmond, 345 F.2d 310 (4th
Cir.), rev’d 382 U.S. 103 (1965) ........................... .....3,35
Bradley v. School Bd. of Richmond, 317 F.2d 429 (4th
Cir. 1963) ................................ ....................................3, 35
Bradley v. School Bd. of Richmond, 338 F.Supp. 67
(E.D. Ya. 1967) ...........— .....................................passim
Bradley v. School Bd. of Richmond, 325 F.Supp. 828
(E.D. Ya. 1971) ........... .............................................. 3
Bradley v. School Bd. of Richmond, 324 F.Supp. 456
(E.D. Ya. 1971) ........... ............. .............. ............. . 2
Bradley v. School Bd. of Richmond, 324 F.Supp. 439
(E.D. Va. 1971) ................. ....................................... 2
Bradley v. School Bd. of Richmond, 324 F.Supp. 401
(E.D. Ya. 1971) ......................................... ................ 3
Bradley v. School Bd. of Richmond, 324 F.Supp. 396
(E.D. Ya. 1971) .......... .............................. ................ 3
Bradley v. School Bd. of Richmond, 51 F.R.D. 139
(E.D. Va. 1970) ...................................... ................... 2
Bradley v. School Bd. of Richmond, 317 F.Supp. 555
(E.D. Ya. 1970) ........ ................................. ............... 2
Brewer v. School Bd. of Norfolk, 456 F.2d 943 (4th
Cir.), cert, denied, 406 U.S. 905 1972 ........ ................ 9 On
Brewer v. School Bd. of Norfolk, 397 F.2d 37 (4th Cir.
1968) ..................................................... ............33n,3f
Broughton v. Pensacola, 93 U.S. 266 (1876) ............ 77n
Brown v. Bd. of Educ., 349 U.S. 294 (1955) _______passim
Brown v. Bd. of Educ., 347 U.S. 483 (1954) ......... passim
v
PA G E
Brown, v. Swann, 35 U.S. (10 Pet.) 497 (1836) .......... 63n
Buchanan v. War ley, 245 U.S. 60 (1917) .... If
Calhoun v. Cook, 451 F.2d 583 (5th Cir. 1971) .......... 78n
Calhoun v. Cook, 430 F.20 1174 (5th Cir. 1970) ___ 38n
Camp v. Boyd, 229 U.S. 530 (1913) ................. .............. 63
Carter v. West Feliciana Parish School Bd., 396 U.S.
290 (1970) ....... ................... ........................ .......... 38n
Cassell v. Texas, 339 U.S. 282 (1950) _______ __ ____ 72n
Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir.
1972) ............................. .............................................. 72n
City of Richmond v. Deans, 281 U.S. 704 (1930) ......... If
Clark v. Board of Educ. of Little Rock, 426 F.2d 1035
(8th Cir. 1970), cert, denied, 402 U.S. 952 (1971) .... 4f
Comanche County v. Lewis, 133 U.S. 198 (1890) ___ 77n
Cooper v. Aaron, 358 U.S. 1 (1958) ..... ............... ....... 80
Davis v. Board of School Commr’s, 402 U.S. 33
(1971) ........................................ ....... ................ .passim
Davis v. County School Bd., Q.T. 1954, No. 3 ....... ...... 19n
Drummond v. Acree, 409 U .S .----- (1972) ................... 59n
Ford Motor Co. v. United States, 405 U.S. 562 (1972) .. 74n
Franklin v. Quitman County Bd. of Educ., 288 F.Supp.
509 (N.D. Miss. 1968) ................ ......... ............ ....... 81n
Gomillion v. Lightfoot, 364 U.S. 339 (I960) ................. 78n
Graham v. Folsom, 200 U.S. 248 (1906) .................. 78n
Green v. County School Bd. of New Kent County, 391
U.S. 430 (1968) .... ......... ............... .......... ...............passim
Griffin v. County School Bd. of Prince Edward County,
377 U.S. 218 (1964) ............... ....................... .20n, 64, 80n
Griffin v. State Bd. of Educ., 296 F. Supp. 1178 (E.D.
Va. 1969) ..................................................... .............. 91n
Griggs v. Duke Power Co., 401 U.S. 424 (1971) .......... 72n
V I
PA G E
Hall v. St. Helena Parish School Bd., 197 F. Snpp.
649 (E.D. La. 1961) (three-judge court), aff’d 368
U.S. 515 (1962) .......................... ..............-............... 80n
Haney v. County Bd. of Educ., 429 F.2d 364 (8th Cir.
1970) ................ ................. .................................. ....... 77
Haney v. County Bd. of Educ., 410 F.2d 920 (8th Cir.
1969) ............................-.....-.... ............ -.... - 78n
Harrison v. Day, 200 Va. 439, 106 S.E.2d 636 (1959).... 20n
Hawkins v. Town of Shaw, 461 F.2d 1171 (5th Cir.
1972) ......................................................................-.... 72n
Hecht v. Bowles, 321 U.S. 321 (1944) ........ .................. 63
Henry v. Clarksdale Municipal Separate School Dist.,
433 F.2d 387 (5th Cir. 1970) ...................................... 85n
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) .......... .......... ..................................-........... 72n
Hunter v. Erickson, 393 IJ.S. 385 (1969) ..................... 77
Hunter v. Pittsburgh, 207 U.S. 161 (1907) ......... ........ 77
James v. Almond, 170 F. Supp. 331 (E.D. Va.) appeal
dismissed, 359 U.S. 1006 (1959) ...........................20n, 91n
Kennedy Park Homes Assn., Inc. v. City of Lacka
wanna, 436 F.2d 108 (2d Cir. 1970) _____ ___ ____ 72n
Lee v. Macon County Bd. of Educ., 448 F.2d 746 (5th
Cir. 1971), 455 F.2d 978 (5th Cir. 1972) .................. 78n
Lee v. Macon County Bd. of Educ., 267 F. Supp. 458,
aff’d sub nom. Wallace v. United States, 389 U.S. 215
(1967) .................................. .. ............................. ...... 81n
Louisiana v. United States, 380 U.S. 145 (1965) ..... ... 64
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .... 63n
McLeod v. County School Bd. of Chesterfield County,
Civ. No. 3431 (E.D. Va.) .......... ............ ................11,14n
V1X
PA G E
MeNeese v. Board of Educ., 373 U.S. 668 (1963) ........ 64
Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288
(1960) ......................................................................... 64
Mobile v. Watson, 116 U.S. 289 (1886) ......................... 77n
Monroe v. Pape, 365 U.S. 167 (1961) ................. .... ...... 63n
Mount Pleasant v. Beckwith, 100 U.S. 514 (1879) ....... 77n
N.A.A.C.P. v. Patty, 159 F. Supp. 503 (E.D. Va. 1958),
rev’d on other grounds sub nom. Harrison v.
N.A.A.C.P., 360 U.S. 167 (1959) .......... .............. ....... 88n
North Carolina State Bd. of Educ. v. Swann, 402 U.S.
43 (1971) ....................................... 59n, 60n, 76, 77, 82n, 84
Palmer v. Thompson, 403 U.S. 217 (1971) ................... 72n
Porter v. Warner Holding Co., 328 U.S. 395 (1946) ... 63
Raney v. Board of Educ. of the Gould School Dist.,
391 U.S. 443 (1968) ..................................................64, 74
Reynolds v. Sims, 377 U.S. 533 (1964) ........ ................ 78n
Robinson v. Shelby County Bd. of Educ., 330 F. Supp.
837 (W.D. Tenn. 1971), aff’d 467 F.2d 1187 (6th Cir.
1972) ........................................................................ 78n
School Bd. of Prince Edward County v. Griffin, 204 Va.
650, 133 S.E.2d 565 (1963) ................... .......... ......... 20n
Shapleigh v. San Angelo, 167 U.S. 646 (1897) ............ 77n
Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J. 1971),
aff’d per curiam, 404 U.S. 1027 (1972) ..................... 74
Swann v. Charlotte-Meeklenburg Bd. of Educ., 402 U.S.
1 (1971) ...................................... .............. .......... passim
Swann v. Charlotte-Meeklenburg Bd. of Educ., 431
F.2d 138 (4th Cir. 1970), rev’d 402 U.S. 1 (1971) ....37, 3f
Taylor v. Coahoma County School Dist., 330 F. Supp.
174 (N.D. Miss. 1970-1971), aff’d 444 F.2d 221 (5th
Cir. 1971) ............ 78n
V U 1
PAGE
Turner v. Fouche, 396 U.8. 346 (1970) ......................... 72n
United States v. Armour & Co., 402 U.S. 673 (1971) .... 74n
United States v. Board of Educ. of Baldwin County,
423 F.2d 1013 (5th Cir. 1970) .................................... lb
United States v. Board of Public Instruction of Polk
County, 395 F.2d 66 (5th Cir. 1968) ......................... 17n
United States v. Board of School Comm’rs, 332 F.
Supp. 655 (S.D. Ind. 1971) ........ ................ ........... .. 72n
United States v. Crescent Amusement Co., 323 U.S.
173 (1944) ................................................................... 75n
United States v. Darby, 312 U.S. 100 (1941) .............. 77n
United States v. Jefferson County Bd. of Educ., 372
F.2d 836 (5th Cir. 1966); aff’d en banc, 380 F.2d 385
(5th Cir. 1967) ................... ....................................... 79
United States v. Loew’s, Inc., 371 U.S. 38 (1962) ...... 75n
United States v. Paramount Pictures, Inc., 334 U.S.
131 (1948) ................... ............................. .............. . 75n
United States v. Scotland Neck City Bd. of Educ., 407
U.S. 484 (1972) .......................... ..................74n, 78n, 99n
United States v. Texas, 321 F. Supp. 1043 (E.D. Tex.
1970), 330 F. Supp. 235 (E.D. Tex. 1971), modified
and aff’d, 447 F.2d 441 (5th Cir. 1971) ..............78n, 81n
United States v. United Shoe Machinery Corp., 391
U.S. 244 (1968) ............ 74n
United States v. United States Q-ypsum Co., 340 U.S.
76 (1950) ........................................ 75n
Virginian Railway Co. v. System Federation No. 40,
300 U.S. 515 (1937) _______ ___ ____ ______ ____ 64
Wright v. Council of the City of Emporia, 407 U.S. 451
(1972) ............................................... 'passim
IX
PA G E
Wright v. County School Bd. of Greensville County,
309 F. Supp. 671 (E.D. Va. 1970), rev’d 442 F.2d 570
(4th Cir. 1971), rev’d sub nora. Wright v. Council of
the City of Emporia, 407 U.S. 451 (1972) ...........— 62n
Federal Statutes:
28 U.S.C. §1254(1) ......... .......................................... - 4
28 U.S.C. §2281 ............................................................. 42n
42 U.S.C. §1983 .......... .......... ............... -............ -----.... 63n
Rule 19, F.R.C.P...........................-.........................~~.... 38
State Statutes:
Virginia Acts 1959, Ex. Sess., ch. 32, p. 110 .............. 20n
Virginia Acts 1956, Ex. Sess., ch. 68, p. 69, 1 Race Rel.
L. Rep. 1103 ................... .............. ................- .........- 19n
Virginia Acts 1956, S.J.R. 3, p. 1213, 1 Race Rel. L.
Rep. 445 ................. .................................. -.......... ----- 19n
Va. Code Anno. §§22-1, -2, -7, -30, -34, -100.1 through
-100.12 (Repl. 1969) ................ ............. ..................... 5
Va. Code Anno. §§22-1.1, -2, -7, -21.2, -30, -32, -100.1,
-100.3 through -100.11, -126.1, -127 (Sapp. 1972) ..... 5
Va. Code Anno. §22-2, (Repl. 1969) ....... ............ ........ lc
Va. Code Anno. §22-6 (Repl. 1969) ------- ------- ------ 2c
Va. Code Anno. §22-7 (Repl. 1969) ......................—- 62n
Va. Code Anno. §22-21 (Repl. 1969) ............... ......... 3c
Va. Code Anno. §22-21.2 (Supp. 1972) ........................ 2c
Va. Code Anno. §§22-29.2 to 22-29.15 (Supp. 1972) .... 2c
Va. Code Anno. §22-30 (Supp. 1972) ............ 76, 91n, lc, Id
Va. Code Anno. §22-31 (Repl. 1969) ........ 2c
Va. Code Anno. §22-33 (Supp. 1972) ........................... 2c
Va. Code Anno. §22-37 (Supp. 1972) ....................... 2c
X
PA G E
Va. Code Anno. §22-99 (Repl. 1969) ......... ..... ........... 62n
Va. Code Anno. §22-100.1 (Snpp. 1972) ......... Id
Va. Code Anno. §22-100.3 (Snpp. 1972) .......... 2d
Va. Code Anno. §22-100.4 (Repl. 1969) .......... 2d
Va. Code Anno. §22-100.5 (Repl. 1969) .......... 2d
Va. Code Anno. §22-100.6 (Supp. 1972) ........ 2d
Va. Code Anno. §22-100.7 (Supp. 1972) .. . 2d
Va. Code Anno. §22-100.8 (Repl. 1969) .......... 2d
Va. Code Anno. §22-100.9 (Supp. 1972) ........ 2d
Va. Code Anno. §22-100.10 (Repl. 1969) ..................... 2d
Va. Code Anno. §22-117 (Supp. 1972) ........................... 2c
Va. Code Anno. §22-126.1 (Supp. 1972) . 2c
Va. Code Anno. §22-146.1 (Repl. 1969) ........... 3c
Va. Code Anno. §22-152 (Repl. 1969) .................. 3c
Va. Code Anno. §22-166.1 (Repl. 1969) ............ 3c
Va. Code Anno. §22-191 (Repl. 1969) ...... 2c
Va. Code Anno. §22-202 (Repl. 1969) ................... 2c
Va. Code Anno. §§22-232.18-232-31 ......................... 20n
Va. Code Anno. §22-276 (Repl. 1969) ........... 2c
Va. Code Anno. §§22-295, et seq. (Repl. 1969) .... 2c
Virginia Constitution of 1971, Art. V III, §§1-7.............5, lc
Virginia Constitution of 1902, §§129, 130, 132, 133 ....... 5
Other Authorities:
[1972] Ayer Directory of P ublications ....................... 27
W. Gates, The Making of Massive Resistance (1964).. 94n
B. Muse, Virginia’s Massive Resistance (1961) ......... . 94n
Rand, McNally & Co., [1972] Commercial Atlas &
Marketing Guide ................... .................. ....... ......... . 27n
K. and A. Taeuber, Negroes in Cities (1965) .......... .... 2f
XI
PAGE
United. States Bureau of the Budget, Office of Statis
tical Standards, S tandard M etro po lita n S ta tistica l
A reas (1967) ......... -.....— .......... -.......-..... .....-.......- ^9n
United States Comm’n on Civil Rights, 1 R e p o r t :
R acial I solation in t h e P u b l ic S chools (G.P.O.
1967 0-243-637) (1967) ......................... -.................- ?2n
U n it e d S tates D e p t , of C o m m er c e , B ureau o r t h e
Ce n s u s , C e n s u s of P o pu la tio n : 1970, Detailed Char
acteristics (G.P.O. PC(l)-48, 1972) .........—-......-...... 3f
U n it e d S tates D e p t , of C o m m er c e , B u rea u of t h e
C e n s u s , C e n s u s T racts, C e n s u s of P o pu la tio n and
H o u sin g , Richmond, V a. SMS A (G.P.O. PHC (1)-
173, 1972) ......................-.............................. 27n, 92n, 93n
U n it e d S ta tes D e p t , of C o m m er c e , B u rea u of t h e
C e n s u s , CENSUS OF POPULATION: 1970 (G.P.O.
PC(1)-B48, October, 1971) ................ -..................... 80n
U n it e d S ta tes D e p t , of C o m m er c e , B u rea u of t h e
C e n s u s , CENSUS OF POPULATION: 1970 (G.P.O.
PCH(2)-48, 1971) .................................... -................ •’In
U n it e d S ta tes D e p t , of C o m m er c e , B u rea u of t h e
C e n s u s , I CENSUS OF POPULATION: 1960
(G.P.O. 1961) ...................... ....................... -............. 80n
U n it e d S ta tes D e p t , of C o m m er c e , B u rea u of t h e
C e n s u s , I I C E N SU S OF P O P U L A T IO N : 1950
(G.P.O. 1952) ...... ............ ................... -........ -....... 3,On
I n t h e
gnjprm? (tart ni % Imtrin BtvlUb
O ctober T e r m , 1972
No. 72-550
C arolyn B radley , et al.,
vs.
Petitioners,
T h e S tate B oard oe E d ucation of t h e
C o m m o n w ea lth of V ir g in ia , et al.
ON W RIT OF CERTIORARI TO T H E UNITED STATES
COURT OF APPEALS FOR T H E FOURTH CIRCUIT
BRIEF FOR PETITIONERS
Opinions Below
The opinions of the Court of Appeals for the Fourth
Circuit are reported at 462 F.2d 1058 and are reprinted
at pp. 557-602 of the Appendix to the Petition for Writ of
Certiorari filed by the School Board of the City of Rich
mond, Virginia, et al., in No. 72-549.1 The opinion of the
1 Citations in this brief in the form “A. ——” refer to the Joint
Appendix filed by Petitioners in this case and No. 72-549. Trial
exhibits are designated “PX” for plaintiffs’, “RX” for the Rich
mond School Board’s, “CX” for exhibits of the Chesterfield School
Board or Board of Supervisors, “HX” for exhibits of the Henrico
School Board or Supervisors, and “SX” for exhibits of the State
Board of Education and State Superintendent of Public Instruc
tion. In addition, citations to exhibits reprinted as part of the
Appendix in a separate volume are given in the form “Ex. A. —”.
Citations in the form “Pet. A —” refer to the separate Appendix
2
United States District Court for the Eastern District of
Virginia rendered on January 5, 1972 and its implementing
order entered January 10,1972 are reported at 338 F. Supp.
67 and are reprinted in the same Appendix at pp. 164-545.
Other opinions and orders of the courts below related to
this litigation are reported or reprinted as follows:
1. District Court opinion and order entered August 17,
1970, approving interim plan of desegregation for Bich-
mond, reported at 317 F. Supp. 555 and reprinted at Pet.
A. 1-47.
2. District Court opinion and order entered December
5, 1970, granting motion for joinder of additional parties
defendant and directing the filing of an amended complaint,
reported at 51 F.B.D. 139 and reprinted at Pet. A. 48-57.
3. District Court opinion of January 8, 1971 denying
motion to recuse, reported at 324 F. Supp. 439 and reprinted
at Pet. A. 58-90.
4. Unreported District Court order of January 8, 1971,
as entered nunc pro tunc January 13, 1971, on pre-trial
motions, reprinted at Pet. A. 91-93.
5. Unreported District Court order of January 13, 1971
on additional pre-trial motions, reprinted at Pet. A. 94-97.
6. District Court opinion of January 29, 1971, denying
motion to implement further desegregation at midyear and
continuing pendente lite construction injunction in effect,
reported at 324 F. Supp. 456.
of Opinions Below and relevant state statutes filed with the Peti
tion in No. 72-549. Citations to portions of the record not re
printed in the Joint Appendix are given by volume number and
page, e.g., “28 R. 713.” Transcripts of earlier hearings are cited
by date and page.
3
7. District Court opinion and order entered February
10,1971, declining to convene three-judge court, reported at
324 F. Supp. 396 and reprinted at Pet. A. 98-106.
8. District Court opinion and order entered February
10, 1971 denying motion to dismiss as to certain defendants
in their individual capacities, reported at 324 F. Supp. 401
and reprinted at Pet. A. 107-09.
9. District Court opinion and order entered April 5,
1971 approving further desegregation plan for Richmond
schools, reported at 325 F. Supp. 828 and reprinted at Pet.
A. 110-55.
10. Unreported District Court opinion and order entered
July 20, 1971 denying renewed motion to convene three-
judge court, reprinted at Pet. A. 156-62.
11. Unreported District Court order entered September
15, 1971 denying evidentiary motion, reprinted at Pet. A.
163.
12. Unreported District Court opinion and order issued
January 19, 1972 denying stay of January 10 order, re
printed at Pet. A. 546-52.
13. Court of Appeals order granting partial stay of
District Court decree, entered February 8, 1972, reported
at 456 F.2d 6 and reprinted at Pet. A. 553-56.
14. Amended judgment of the Court of Appeals, entered
August 14, 1972, reprinted at Pet. A. 603.
Other reported opinions in this case are as follows: 317
F.2d 429 (4th Cir. 1963); 345 F.2d 310 (4th Cir.), rev’d
382 U.S. 103 (1965).
4
Jurisdiction
The opinion of the Court of Appeals was entered June
5, 1972 and its amended judgment filed August 14, 1972.
On August 29, 1972, Mr. Justice Marshall extended the
time within which a Petition for a Writ of Certiorari might
be filed to and including October 5, 1972. The Petition
was filed on October 5 and was granted on January 15,
1973. On the same date, this case was consolidated with
No. 72-549 by order of the Court. The Court’s jurisdiction
rests upon 28 TT.S.C. §1254(1).
Q uestion Presented
Is the constitutional power of a federal court to remedy
racial discrimination in the public schools confined within
the geographic boundary lines of a single State-created
school district in the absence of a showing of racial motiva
tion in the drawing of the district lines ?
Constitutional and Statutory Provisions Involved
The case involves the application of the Equal Protection
Clause of the Fourteenth Amendment to the Constitution
of the United States, which provides as follows:
. . . nor shall any State . . . deny to any person within
its jurisdiction the equal protection of the laws.
This matter also involves the Tenth Amendment to the
Constitution of the United States, which reads as follows:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively or to the people.
5
Various provisions of Virginia’s Constitutions of 1902
and 1971 and Virginia statutes relating to education are
set out at Pet. A. 604-23. These are; Constitution of 1902,
§§ 129, 130,132,133 ; Constitution of 1971, Art. VIII, §§ 1-7;
Va. Code Anno. §§ 22-1, -2, -7, -30, -34, -100.1 through -100.12
(Eepl. 1969); Va. Code Anno. §§ 22-1.1, -2, -7, -21.2, -30,
-32, -100.1, -100.3 through -100.11, -126.1, -127 (Supp. 1972).
Statem ent
The basic issue in this case is whether the remedy pro
posed by the Richmond School Board and adopted by the
district court to end racially identifiable schools in the
greater Richmond area was beyond the power of the dis
trict court in view of its findings that the Richmond school
system, as well as the Henrico and Chesterfield County
school systems, were in violation of the Fourteenth Amend
ment in 1970 (when the county school authorities were
joined as defendants) and at the time of final decision by
the district court. We begin by describing the extent and
the history of the public school segregation that the district
court undertook to remedy.
I. Segregation in th e Schools o f th e
G reate r R ichm ond A rea
In 1961, at the commencement of this litigation, the
schools administered by the Richmond, Chesterfield and
Henrico School Boards were completely segregated. A
decade later, the district court found that the same boards
were still operating non-unitary systems (338 F. Supp., at
103-04, 70-72, 78-79, 169-71, 174-76, Pet. A. 237-38, 165-69,
183-84, 383-86, 393-97) :
During the school year 1970-71 (when the Chesterfield
and Henrico boards were added as defendants [see pp. 38-
6
41 infra]), the School Board of the City of Richmond
administered 54 regular school facilities.2 Twelve schools
enrolled more than 70% white students, including six
schools which were more than 90% white (EX 30; 338 F.
Supp., at 232-33, Pet. A. 522-23). Four schools were at
tended solely by black students, an additional eight by
more than 95% black students, and another three by more
than 90% black students {ibid.). Thus, in a system of
47,988 pupils, 64.2% of whom were black (EX 75, Ex. A.
21; Pet. A. 417), nearly one-quarter of the schools were
more than 70% white (half of these more than 90% white)
and another quarter of the schools enrolled in excess of
90% black students.3
During the same 1970-71 school year, the Chesterfield
County School Board operated 39 schools, of which nine
teen were more than 90% white and one over 99% black
(PX 115; 338 F. Supp., at 234-36, Pet. A. 524-26). The
black school retained an all-black faculty while six other
Chesterfield County schools had no black faculty members,
and an additional nine schools had only one black faculty
2 Excluding programs and classes for handicapped, special edu
cation students, etc.
3 This was the result obtained from the implementation of a
partial plan of desegregation limited to the City schools pursuant
to an August 17, 1970 decree of the District Court (Pet. A. 1-47).
In comparison, during the 1969-70 school year, prior to the issu
ance ^of the first judicial decree in this lawsuit which required
the City School Board to assign students mandatorily to achieve
desegregation (see pp. 36-37 infra), the City Board operated
61 facilities: 22 were all-black and six others more than 90%
black; two were all-white and 17 more than 90% white- and
faculties were similarly segregated (RX 30; 338 F. Supp at 232-
33, 240-42, Pet. A. 522-23, 530-32, 6-7)
7
member (PX 102; 20 E, 132a-35, 338 F. Supp., at 170, 234-
36, Pet. A. 384, 524-26).4
Daring the 1970-71 school year, the Henrico County
School Board was responsible for the operation of 39
schools. Twenty-eight were more than 90% white but Cen
tral Gardens Elementary School was over 96% black, and
enrolled more than two-fifths of all black elementary stu
dents residing in the system (PX 116; 338 F. Supp., at 175,
237-39, Pet. A. 395, 527-29). Central Gardens had the
largest proportion of black faculty members of any facility
operated by Henrico, while ten schools had no blacks on
their faculties and another 20 had only one black staff
person (PX 116; 338 F. Supp., at 176, 237-39, Pet. A. 397,
527-29).6
To summarize, of 132 schools operated during the 1970-
71 year by the three local boards, 53 had student bodies
more than 90% white; 17 schools were more than 80%
black.6 All but three of the black schools were located
within the City of Richmond,7 and all but sis of the 90%-
4 During the 1968-69 school year, Chesterfield operated 9 all
black schools, and during the 1969-70 school year, 5 all-black or
virtually all-black facilities (PX 115; 338 F. Supp., at 234-36,
Pet. A. 524-26). The reduction in number was brought about by
closing the black schools as part of an HEW-approved plan (PX
118, pp. 214, 217-18).
5 Henrico in 1968-69 had 5 all-black or more-than-90%-black
schools (PX 116; 338 F. Supp., at 237-39, Pet. A. 527-29). Four
of these five schools were closed at the end of the 1968-69 school
year after HEW commenced enforcement proceedings, leaving
Central Gardens virtually all-black during the 1969-70 and 1970-
71 years {ibid,.; PX 120, pp. 318-19, 321-22).
6 The overall student population was 33.7% black, a change of
only one-tenth of one percent from the figure of the previous decade
(RX 78; Ex. A. 26; Pet. A. 418).
7 One black school was administered by the School Board of
Richmond but located in Henrico County; another black school
facility was located partly within Henrico County (338 F. Supp.,
8
white schools in the surrounding counties.8 Schools of
substantially differing racial composition were located
within reasonably short distances of each other (two to
five miles): in most instances, the boundary line between
the Richmond and county systems fell between them. The
following Table comparing the enrollments of neighboring-
Richmond and Henrico schools by race in 1970-71 is illus
trative :
TABLE I s
1970-71, and Distances Between Them
Richmond Henrico
Distance
(miles)
School % Black School % Black
Armstrong High 75% 5.0 Highland Springs High 13%
Kennedy High 93% 4.9 Henrico High 4%
John Marshall High 73% 1.4 Henrico High 4%
Mosby Middle 95% 3.6 Fairfield Jr. High 18%
East End Middle 68% 3.6 Fairfield Jr. High 18%
Fulton-Davis Elem. 53% 1.8 Montrose Elem. 0%
Mason Elem. 100% 3.1 Adams Elem. 14%
Highland Park Elem. 90% 1.3 Glen Lea Elem. 1%
Stuart Elem. 91% 2.2 Laburnum Elem. 20%
Because of the 1970 annexation of a portion of Chester
field County containing several white schools, the new Rich-
at, 172, Pet. A. 388; cf. 24 R. 69; PX 117, 338 F. Supp., at 164,
Pet. A. 371 [1954 request by Richmond Board for permission of
Chesterfield Supervisors to build white Richmond high school in
the county]; A. 581; PX 120; 338 F. Supp., at 172, Pet. A. 388
[1957 action of Henrico Board directing its Superintendent to
negotiate with Richmond to permit Henrico black students to
attend Richmond schools]).
_ 8 Approximately 85% of all black pupils in the area were as
signed to schools administered by the Richmond Board.
9 Derived from PX 97, 97A; see 338 F. Supp., at 190, Pet. A.
428-29; 23 R. 30-36.
9
mond-Chesterfield boundary line did not separate Richmond
and Chesterfield schools of markedly different racial com
position during the 1970-71 school year. However, the
previous boundary line fell between such schools. For
example, Richmond’s Franklin Elementary School (100%
black in 1969-70) is shown by the maps (RX 64, Ex. A. 27)
utilized by the Richmond School Board in presenting its
proposed plan (see pp. 46-48 infra) to have been within
three miles of the sites of Chesterfield County’s Green Ele
mentary School and Redd Elementary School (100% white
and 92% white, respectively, in 1969-70).
The decree proposed by the Richmond School Board and
approved by the district court to disestablish these segre
gated schools is described more fully below (see pp. 42-49
infra). It suffices here to note that that decree—whose law
fulness is the issue before this Court—sought to desegre
gate all of the schools, no matter which side of the boundary
lines they fell. The decision of the Court of Appeals re
versing that decree and restricting the desegregation proc
ess to the Richmond side of the boundary lines essentially
perpetuates the pre-1971 pattern of black Richmond schools
closely adjoining white county schools, as illustrated by
Table 2. Indeed, there would be an even greater number of
schools of substantially differing racial composition located
within short distances of one another, separated by the
Richmond boundary:
10
TABLE 2
Enrollments10 of Selected Schools Adjoining Each Other On
Either Side of Richmond Boundary
Richmond School County School
School % Black School % Black
Armstrong High 72% Highland Springs High 13%
Kennedy High 88% Henrico High 4%
John Marshall High 78% Henrico High 4%
Mosby Middle 86% Fairfield Jr. High 18%
East End Middle 66% Fairfield Jr. High 18%
Pulton Elementary 50% Montrose Elem. 0%
Mason Elementary 83% Adams Elem. 30%
Highland Park Elem. 84% Glen Lea Elem. 30%
Stuart Elem. 79% Laburnum Elem. 20%
Wythe High 57% Manchester High 5%
Elkhardt Middle 45% Providence Interm. 2%
Broad Rock Elem. 57% Falling Creek Elem. 0%
Oak Grove & Annex Elem. 42% Chalkley Elem. 5%
Southampton Elem. 68% Crestwood Elem. 1%
Fisher Elem. SRGOCO Bon Air Elem. 3%
10 The record contains 1971-72 enrollment data only for the
Richmond schools together with projected 1971-72 enrollments
for the schools paired with Central Gardens in Henrico County.
The figures listed for the other county facilities are those of the
1970-71 school year, the latest in the record. We believe the sig
nificance of the comparison for 1971-72 remains substantially accu
rate since neither county planned any change in method of pupil
assignment between 1970-71 and 1971-72 (with the exception of
the attempt to sever all formal ties between the Chesterfield County
School Board and the Matoaca Laboratory School [A. 1021-24]
and the Central Gardens pairing [RX 88; A. 961], the results
of which are reflected in the Table). We further note that the
same comparison was made by the Court of Appeals in con
nection with its conclusion that when the two steps referred to
parenthetically above were taken, each of the county systems
would be “unitary,” as the Court of Appeals used that term (462
F.2d, at 1065, Pet. A. 571-72).
11
The net result of the Court of Appeals’ ruling is that,
out of 131 schools which would now be operated by the three
local boards, 44 would be attended by more than 90% white
students, and 11 by more than 80% black students. All of
the black schools would be part of the Eichmond system,
and all of the white schools would be in the counties.
A. M aintenance and E xpansion o f the D ual School System s
1. D elays in Com pliance w ith B row n
The development of identifiable white schools and black
schools within the greater Eichmond area was not adven
titious. Prior to Brown v. Board of Education, 347 IT.S.
483 (1954), Virginia’s public schools vTere racially segre
gated by statute. Following Brown, none of the three
school boards in the Eichmond region made any move to
end their traditional segregatory practices until required
to do so by either judicial or administrative proceedings.11
In both Eichmond City and Chesterfield County, the first
modification of the pre-Brown form of dual system resulted
from federal judicial decrees requiring the local boards
and the State’s pupil placement agency (see p. 19 infra;
Appendix E infra) to allow certain individual black
pupils to transfer to white facilities from the black schools
to which they had been assigned. In Henrico, no desegre
gation occurred until after the passage of the 1964 Civil
Eights Act (PX 115, 116, 120; 338 F. Supp., at 173, Pet. A.
390-91 ;12 317 F.2d 429 [4th Cir. 1963] ; McLeod v. County
11 This is not surprising in light of the encouragement local
authorities were given by State officials to resist compliance with
the law (see p. 21 infra).
12 The ruling of the District Court (338 F. Supp., at 67-248,
Pet. A. 164-545) contains extensive detailed findings of fact (338
F. Supp., at 116-230, Pet. A. 185-532) including specific findings
as to matters about which there is little dispute, such as the time
when the first desegregation occurred. The District Court on
several occasions expressed its dismay that such factual matters
12
School Bd. of Chesterfield County, Civ. No. 3431 [E.D.
Va.]).
From 1954 to 1966, the Richmond School Board persisted
in maintaining all its policies and practices of the pre-
Brown era except insofar as judicial decrees required their
abandonment. White students and black students were
assigned to white schools and black schools, respectively,
without any change until 1961. At that time, pursuant to
a federal court decree, black children who complied with
pupil placement procedures were permitted to transfer to
white schools but initial assignments by the School Board
continued to be made on a segregated basis.
In 1966 the Richmond Board agreed to a consent decree
in this litigation which, while embodying a freedom-of-
choice plan of pupil assignment, also committed school
authorities to examine other methods of student assign
ment if significant desegregation did not occur. No such
action was ever taken. Yet in 1970, after a motion for
further relief had been filed, the School Board conceded
that its free choice plan did not meet constitutional re
quirements13 (338 F. Supp., at 70-72, Pet. A. 165-69). The
Board then embraced a plan based strictly on geographic
zoning, although aware of the drastic residential segrega
tion within the City of Richmond (338 F. Supp., at 74-75,
Pet. A. 173-76). Not until 1971-72 did the Richmond Board
propose a plan of mandatory, race-conscious pupil assign
ments to all Richmond schools for desegregation (338 F.
Supp,, at 78-79, Pet. A. 182-83; Pet. A. 119-27).
could not be stipulated (e.g., 25 R. 14, 62) but since they were
not, undertook to make the requisite specific findings. For this
reason, and given the enormity of the record and the necessity
to limit the Joint Appendix, insofar as possible, to manageable
dimensions, we shall from time to time refer the Court to the
lower court’s findings on factual matters rather than the record.
13 Green v. County School Bd. of New Kent County, 391 U.S.
430 (1968).
13
Faculty and staff continued to be assigned to particular
schools on the basis of their race and that of the student
body (338 F. Supp., at 72, Pet. A. 168-69) ;14 affirmative
reassignments of faculty and staff in a manner designed to
eradicate the racial labelling of schools accomplished
through past practices did not commence until the 1970-71
school year.
The Richmond Board also promoted continuation of the
dual system through the rapid transformation of schools
from white to black. Prior to 1960, it had formally redesig
nated white schools as black. Thereafter, under its free
choice plan, it acquiesced in the wholesale transfer of re
maining whites away from schools of increasing black
concentration.15 School site locations continued to be
chosen so as conveniently to serve predominantly one-race
residential areas, or without consideration of the tendency
of the locations to perpetuate or aggravate school segre
gation in view of pre-existing residential segregation (338
F. Supp., at 75-76; Pet. A . 177; 324 F. Supp. 456, 461-69).
Next door in Chesterfield County, the county school
board and the Board of Supervisors had repeatedly memo
rialized their support of the various “massive resistance”
tactics (see pp. 18-21 infra) developed and implemented by
Virginia state officials to avoid school desegregation fol
lowing Brown (PX 117, pp. 82, 97; PX 118, pp. 76-79, 82;
338 F. Supp., at 167-68, Pet. A. 377-81). The School Board
14 This pattern continued even after this Court in this case held
the plaintiffs had standing to challenge continued racial faculty
assignments, Bradley v._ School Bd. of Richmond, 382 U.S. 103
(1965), and continued in substance even after the School Board
pledged in the 1966 consent decree, see p. 36 infra, that it would
take steps to desegregate faculties.
16 See Chart from Richmond School Board’s submission of
“HEW” plan in 1970; 317 P. Supp. 855, and relevant testimony
of Superintendent, 6/19/70 Tr. 248-53.
14
continued to refer to its schools as white schools and
“colored schools” (A. 528; PX 93,117; EX 92; 338 F. Supp.,
at 135-37, Pet. A. 307-12), and to assign faculties accord
ingly (see 338 F. Supp., at 234-36, Pet. A. 524-26).
Although a 1962 federal district court decree required
the Chesterfield Board and the Pupil Placement Board (see
p. 19 infra) to admit certain black pupils to the formerly
white facilities for which they had made application,16 the
Board took no steps of its own to bring about any desegre
gation until after the passage of the 1964 Civil Eights Act.17
It finally agreed in 1966 to adopt a freedom-of-choice pro
posal (PX 118; 338 F. Supp., at 168-69, Pet. A. 381)
after having first- sought to convince the Department of
Health, Education and Welfare that the Chesterfield schools
were in compliance with the Act because they were oper
ated pursuant to the 1962 decree (which applied to the
named plaintiffs only) {ibid.). That year the Board ad
ministered 47 schools, including an all-black secondary
school serving the entire county and eight all-black ele-
mentaries (PX 115; 338 F. Supp., at 234-36, Pet. A. 524-26).
These schools remained all-black while freedom-of-choice
was in effect {ibid.). All faculties were completely segre
gated except for one white teacher at a black school, and
one black teacher at a white school {ibid.).
In 1968, after having been advised by the Department of
HEW that the school system faced termination of federal
funding because of the failure of the free choice plan to
16 McLeod v. County School Bd. of Chesterfield County, Civ. No.
3431 (E.D. Va.).
17 There were no further proceedings in the McLeod ease after
the 1962 decree, which was not accepted by the Department of
Health, Education and Welfare as evidence of compliance with
the Act. See text infra. Accordingly, the Department undertook
Title VI enforcement.
15
bring about effective desegregation, the Chesterfield School
Board proposed closing eight of the nine all-black ele
mentary schools effective with either the 1968-69 or 1969-70
school year, and the establishment of geographic zones for
the formerly white facilities (PX 118, pp. 214, 217-18). The
ninth black elementary school was still all-black at the
time of the hearing below (PX 115; 338 F. Supp., at 236,
Pet. A. 526). While the faculties of the closed black schools
were generally absorbed within the system, most of the
principals were assigned to lesser positions at the white
schools (20 R. 85-89, 105-09). Extensive segregation in the
assignment of faculties is apparent through at least the
1969-70 school year (338 F. Supp,, at 234-36, Pet, A. 524-26;
PX 115).
A similar course of events occurred in Henrico County:
continuation of segregation policies after 1954 (e.g., PX
120, p. 141 [segregated faculty conferences]) together with
expressions of support for the State’s anti-desegregation
efforts (Id. at p. 89; PX 121, at p. 83). The first desegrega
tion in the county did not occur until after the passage of
the 1964 Civil Rights Act; then, from 1965-66 through
1968-69 the schools were operated under a freedom-of-
choice plan (PX 120, pp. 212, 218, 267, 285-89). Of 42
schools administered in 1966-67, four elementary schools
and a county-wide secondary school remained all-black.
Faculties were completely segregated. (338 F. Supp., at
237-39, Pet. A. 527-29). The Board of Supervisors denied
assertions by HEW that county black schools were inferior
facilities offering inadequate programs (PX 121, p. 15;
338 F. Supp., at 174, Pet. A. 392-93); but the School Board’s
response to the commencement of administrative proceed
ings to terminate federal funding to the county school
system in 1968 was to propose the closing of all of these
schools beginning in the 1969-70 school year, and the en-
16
largement of the zones for adjacent white facilities (PX
120, pp. 318-19, 321-22). The School Board did not pro
pose to desegregate Central Gardens Elementary School
although it was over 90% black (see 338 P. Supp., at 239,
Pet. A. 529).
As late as the 1970-71 school year, two-fifths of Henrico’s
black elementary school students were assigned to the
virtually all-black Central Gardens School, which also had
the greatest concentration of black faculty members
throughout the system (Ibid.; 23 E. 13). Indeed, while it
was continuing to operate its other black facilities as late
as the 1968-69 school year, the Board was increasing the
black faculty component at Central Gardens as the number
of black students increased (PX 116; 338 F. Supp., at 175,
238, Pet. A. 395, 529).
2. Perpetuation o f the D ual System T hrough School
Construction
The period since Brown has seen a steady increase in
pupil population in the three divisions; from 1961 to 1971
alone, the number of pupils in the greater Richmond area
increased by nearly 24,000 (EX 78, Ex. A. 26; 338 F.
Supp., at 185, Pet. A. 418). School construction programs
which responded to this growth extended and entrenched
segregation in the public schools.
Virtually none of the new facilities built in any of the
three school divisions since 1954 opened with any substan
tial degree of desegregation (HX 29; PX 116, 117; 338 F.
Supp., at 232-42, Pet. A. 522-32; Answers to Interroga
tories, 3 R. 653, 4 E. 10; 324 F. Supp., at 461-69). Indeed,
applications submitted to the State Department of Educa
tion for approval of construction projects long after 1954
continued to characterize proposed facilities as intended
for black or white students (EX 90, 92; PX 117, p. 133;
17
PX 118, pp. 107, 111-12, 116, 132, 137, 169; 338 F. Supp.,
at 127-38, Pet A. 289-313). No consideration was given,
in the process of site selection, to the effect of placing new
schools in residentially segregated settings. School con
struction and expansion in Henrico, for example, was re
peatedly premised upon Negro population increases in
specific areas of the county (EX 90; see 29 E. 167-80).
And none of the new Chesterfield school construction in
the planning stages at the time of trial in 1971 had been
developed with any consideration of its effects upon de
segregation (A. 494).
Virginia state officials’ role in school construction was
direct. Their approval of sites and building plans was
required before bonds could be sold, state construction aid
funds released, or facilities erected (21 E. 82, 89-92; PX
117, PX 122, pp. 63, 115-19, 158 ; EX 83, p. 26; 338 F. Supp.,
at 124-26, Pet. A. 283-86). The responsible state officials
published a planning handbook designating criteria to be
used by local administrators in evaluating plans for addi
tional construction. But they did not require that the
impact of proposed new construction in perpetuating segre
gation or retarding desegregation be considered.18 While
the State Superintendent did notify local officials of a
1968 judicial decision requiring that school planning take
account of the effects of new locations upon desegregation,19
that consideration was never incorporated into the State’s
evaluation process (A. 513-14), and the current planning
handbook makes no mention of it (SX 4, § 10.31).
18 Not only did the handbook contain no such requirement, but
in actual practice the State officials were as derelict as local ad
ministrators in assessing impact on segregation. E.g., RX 90; 338
F. Supp., at 130, Pet. A. 295-96).
19 United States v. Board of Public Instruction of Polk County
395 F.2d 66 (5th Cir. 1968).
18
3. T he R ole o f the State
Segregatory institutions and policies dating from the
era prior to 1954 continued to be supported by State au
thorities long after this Court’s decision in Brown. Black
regional schools created and maintained with the assistance
of the State Board of Education (PX 122, pp. 70a-71; 338
F. Supp., at 155-57, Pet. A. 352-56) remained in operation
as late as 1968. No action was taken by State authorities
either to desegregate or to close them (21 B. 132); indeed,
the State Board approved expansion of one such facility
in 1955 (PX 119, p. 44; PX 122; 338 F. Supp., at 157, Pet.
A. 355). The State Education Department continued to
hold its statewide conferences on a segregated basis until
1965 (PX 122, pp. 230, 237, 240, 251, 267, 280-81; A. 535).
Prior to the passage of the Civil Eights Act of 1964, the
State Board of Education (which had responded to Brown
by officially opposing it and endorsing “massive resistance”
devices under legislative consideration at the time (PX
119, pp. 42-43; 338 F. Supp., at 139, Pet. A. 316)), desig
nated no Education Department staff personnel to work
with local divisions to accomplish integration because, as
an Assistant State Superintendent agreed, in the 1950’s
Virginia was not desegregating its schools (A. 679-80).
And, as noted above, assessment of school construction
proposals for their impact upon desegregation has never
been made a part of the State’s review procedures.
The State intervened directly to maintain segregation,
however. Immediately after the Brown decision, the State
Board and Superintendent directed local districts to op
erate as they had, until Virginia’s school segregation laws
were changed (PX 122, pp. 161-64; PX 119, pp. 42-43; EX
82, 83; A. 525-27, 533-35). They never were.
Instead, the 1956 Virginia Legislature enacted a series
of measures designed to prevent school desegregation. It
19
began with an interposition resolution20 attempting to
nullify Brown, It authorized the Governor to close any
school which became integrated,21 whether by local initiative
or federal court order.22 It. withdrew pupil assignment
power from the local school division Boards23 and vested
all authority over assignments in a newly created inde
pendent agency known as the State Pupil Placement
Board24 in order to preserve segregation25 (PX 122, p.
171). The Board continued to function until 1968 (23 R.
20 Va. Acts 1956, S.J.R. 3, p. 1213, 1 Race Rel. L. Rep. 445.
21 Va. Acts 1956, Ex. Sess., eh. 68, p. 69; 1 Race Rel. L. Rep.
1103. See PX 144-1; 338 F. Supp,, at 243-44, Pet. A. 533-36.
22 Exercising this authority in 1958, the Governor ordered the
State Police to prevent the enrollment of seventeen Negro students
in six formerly white Norfolk schools (PX 144, p. 122; 338 F.
Supp., at 140, Pet. A. 318).
23 A December 29, 1956 telegram from the Pupil Placement
Board to then Chesterfield County Superintendent of Schools Fred
D. Thompson began:
Under the provisions of Chapter 70, Acts of Assembly, extra
session of 1956, effective December 29, 1956, the power of
enrollment or placement of pupils in all public schools of
Virginia is vested in the Pupil Placement Board. The local
school board, Division Superintendents, are divested of all
such powers.
(A. 521-22; PX 122, p, 91).
24 The State Department of Education undertook to publicize
the regulations and procedures of the Pupil Placement Board (PX
122, p. 171; A. 522-24) and one of its employees also served the
Placement Board on a part-time basis (A. 693).
25 See PX 144-F; 338 F. Supp., at 138, Pet. A. 313-14 [letter
from Attorney General] ; Adkins v. School Bd. of Newport News,
148 F. Supp. 430 (E.D. Va.), aff’d 246 F.2d 325' (4th Cir.), cert,
denied, 355 U.S. 855 (1957). Compare the Attorney General’s
reference to a “state-wide policy” with the following passage from
the Brief for Appellees in No. 3, Davis v. County School Bd., O.T.
1954, at p. 15:
In general, education in Virginia has operated in the past
pursuant to a single plan centrally controlled with regard to
the segregation of the races.
20
58-59; 338 F. Supp., at 138, Pet. A. 313) ;26 but, following
invalidation of the Governor’s school-closing powers by
the Virginia courts in 1959,27 the Legislature vested those
same powers in the local school boards.28
The 1956 legislature also passed tuition grant legislation
(338 F. Supp., at 141, Pet. A. 321). In 1958 the State
Board of Education adopted regulations for the distribu
tion of tuition grants, specifying their availability to pupils
desiring to avoid attending desegregated public schools
operated by the division of their residence (PX 122, pp.
181, 188; PX 119, p. 74; 338 F. Supp., at 141-42, Pet. A.
321-22). The program was expanded by enactment in 1960
of a pupil scholarship statute making grants available to
attend nonpublic schools (PX 122, p. 210; 338 F. Supp.,
at 142-43, Pet. A. 323-25), and providing that the cost
would be shared by the State and the local division. The
act called for deduction of a local division’s share of grants
from State aid funds otherwise due it, if it refused to
participate in the scholarship programs and thereby forced
the State to make the full payment to individual parents
(PX 122, pp. 213-17, 225-26).
26 In 1960 the General Assembly authorized local divisions to
resume making pupil assignments in accordance with criteria to
be promulgated by the State Board of Education. Va. Code Anno.
§§ 22-232.18 to -.31. The following year, the State Board adopted
regulations virtually identical to those of the Pupil Placement
Board (PX 122, p. 218; A. 523-24).
27 In Harrison v. Day, 200 Va. 439, 106 S.E.2d 636 (1959), the
Supreme Court of Appeals of Virginia held the statute uncon
stitutional under the Virginia Constitution insofar as it authorized
a State officer to discontinue local schooling over the objections
of a division board.
28 Va. Acts 1959, Ex. Sess., eh. 32, p. 110. The Virginia courts
subsequently upheld the power of a division board to close all of
its schools rather than desegregate them. School Board of Prince
Edward County v. Griffin, 204 Va. 650, 133 S.E.2d 565 (1963).
Compare James v. Almond, 170 P. Supp. 331 (E.D. Va.), app.
dism’d, 359 U.S. 1006 (1959); Griffin v. County School Board, 377
U.S. 218 (1964).
21
Meanwhile, the State made the services of its legal
officers available to divisions resisting school desegregation
efforts, and shared in the cost of retaining private counsel
to fight desegregation suits. This financial support of
segregation continued through the date of the District
Court’s decision below (PX 122, pp. 287-88, 304; PX 149,
149A, 149B, 149D, 149E; 338 F. Supp., at 155, Pet. A. 351).
The State Department of Education circulated the anti
desegregation speeches of Virginia Governors (PX 122,
p. 327; EX 83, pp. 38-41; 338 F. Supp., at 148, Pet. A. 336),
but not information about the decisions of this Court which
successively spelled out the scope of the constitutional duty
to desegregate (A. 717-20; 338 F. Supp., at 155, Pet. A.
350). It supported continuing segregation in many ways:
for example, by assisting Henrico to redraw segregated
pupil transportation routes in 1957 (PX 120, pp. 102-38)
and by making retroactive tuition grants to Prince Edward
County whites in 1964 (PX 119, pp. 87-88; 338 F. Supp., at
143-44, Pet. A. 326).
Passage of the Civil Rights Act of 1964 and execution
of a compliance agreement between the United States De
partment of Health, Education and Welfare and the State
Department of Education brought little change. Not only
did the State fail to take affirmative action to facilitate
desegregation, but it threw roadblocks in the way of HEW
enforcement.29 The tuition grant and pupil scholarship
programs continued (PX 112). No sanctions were brought
to bear at the State level against divisions which refused
29 In 1971 the State Board of Education still denied it had an
affirmative duty to assist in the creation of unitary systems through
out the Commonwealth (A. 95, 113 [ffll]) . Compare PX 96, Ex.
A. 75, wherein the Assistant Attorney General of the United
States expressed the view to State Superintendent Wilkerson that
“the State Board of Education is the appropriate agency to be
called upon to adjust the conditions of unlawful segregation and
racial discrimination existing in the public school systems of
Virginia . . . . ”
22
to cooperate with HEW (A. 684-88, 700-01). The only
official within the State Education Department with re
sponsibility for desegregation efforts was critical of HEW
(PX 136; 338 F. Supp., at 148, Pet. A. 336-37) and sought
to have the Department make HEW’s job as difficult as
possible (PX 123; EX 87; PX 136A; A. 681-84; 338 F.
Supp., at 152-53, Pet. A. 344-36). Despite the State’s assur
ance in its agreement with HEW that it would secure and
facilitate local school-division compliance with non-discrim
ination requirements (SX 7), it left matters entirely up
to division officials (PX 144-G; 338 F. Supp., at 149, Pet.
A. 337-38). And the State stood by while the ranks of
black principals and teachers were decimated in the process
of such desegregation as occurred at all (PX 139; A. 930-
31; 338 F. Supp., at 155, Pet. A. 351-52).
4. Crossing D ivision Lines fo r Segregation
Of particular significance to this case are the many
instances in which black and white students were assigned
across school division lines to maintain school segregation.
Three regional high schools for Negro students established
with State approval and support30 continued to operate a
decade after Brown (PX 109; EX 86, Ex. A. 79).31 Such
30 For example, in 1946 the State Board of Education contributed
$75,000 toward the cost of building the Carver High School to serve
Negro students from Orange, Madison, Greene, Rappahannock, and
Culpeper Counties (RX 82, p. 2; 338 F. Supp., at 155-56, Pet.
A. 352).
31 Carver (see n. 30 supra), Manassas (serving Prince William,
Fairfax, Fauquier Counties), Christiansburg Institute (serving
Montgomery County, Pulaski County, and Radford City). A fourth
regional high school, Jackson P. Burley (serving Charlottesville
and Albemarle County) operated until the 1959-60 school year
(A. 510, PX 109; RX 86, Ex. A. 79). Many other joint schools for
black students were countenanced in Virginia, including those oper
ated by the Lancaster and Northumberland County divisions, and
the Rockbridge and Lexington divisions (see 338 F. Supp., at 155-57,
Pet. A. 352-56). See A. 508-09.
23
facilities were jointly administered by up to five school
divisions, which sent all of their black students to the
school. Often, travel distances were great:32 in several
instances, black students had to be housed in dormitories
during the week to avoid inordinate daily transportation
(PX 119, pp. 15, 19, 23; PX 122, pp. 70a-71; 338 F. Supp.,
at 157, Pet. A. 356). Where school divisions did not con
struct regional facilities, they often sent Negro pupils to
classes in other districts by contractual agreement (PX 94,
pp. 4, 7-8, 20, 30-31, 34-35, 39-41, 45, 49, 50, 57, 60; 338 F.
Supp., at 159-61, Pet. A. 360-64).33 This practice continued,
in some instances, until 1969—and even involved the trans
portation of blacks to West Virginia or Tennessee districts
to preserve segregation (ibid.).
Large numbers of individual student transfers across
school division boundaries to attend segregated facilities
resulted from the tuition grant and pupil scholarship pro
grams (see p. 20 supra).34 For example, within a few
months after the Norfolk schools were closed,36 nearly
6,500 grant applications had been approved to permit Nor
folk students to attend South Norfolk and other school
systems (PX 119, pp. 60-65; 338 F. Supp., at 142, Pet A.
323). The funds were used to permit students to attend
out-of-State schools as well (PX 110, 111). From 1954 to
32 The Carver High School, for example, served five counties and
a total area of 1338 square miles. See A. 508-10.
33 The district court’s opinion details numerous examples from the
exhibits in the case at 338 F. Supp. 159-61, Pet. A. 360-64.
84 The 1960 statute contained a declaration of legislative purpose
stating that
it is desirable and in the public interest that scholarships
should be provided from the public funds of the State for
the education of the children in non-sectarian private schools
in or outside, and in public schools located outside, the locality
where the children reside. (A. 938).
35 See note 22 supra and accompanying text.
24
1971, almost $25 million in State and local funds were ex
pended under the grant and scholarship programs (PX
112; 338 F. Supp., at 145, Pet A. 329); substantial amounts
were paid to Eichmond, Henrico and Chesterfield students
(PX 101, 112, 117, 118, 120; 338 F. Supp., at 145, Pet A.
329-30).
Pupils have crossed lines to attend segregated schools
through a variety of other means. For example, as previ
ously noted,36 a black Eichmond high school is located
within Henrico County, and a black elementary school
partly within the county. As the result of annexations,
numbers of students have temporarily attended classes in
school divisions in which they did not reside, on a segre
gated basis. The 1970 annexation decree, for example, pro
vided that some Chesterfield residents would attend schools
now located within the Eichmond system during a transi
tional period. As long as those schools remained identi-
fiably white, no difficulty ensued; but after Eichmond im
plemented its interim plan of desegregation37 for the 1970-
71 school year, the County Superintendent publicly invited
county residents attending Eichmond schools to return and
enroll in county schools (A. 485-90).
B. The M etropo litan C on text
We have several times spoken in this Brief of the
“greater Eichmond area.” We now summarize the evi
dence which supports that characterization and describes
the two principal relevant features of the Eichmond-
Chesterfield-Henrico complex: (1) intense and increasing
cohesion as a single, functioning economic and social com
munity, marked, however, by (2) intense and increasing
differentials in racial concentration as between the City
and its two surrounding counties.
36 See note 7 supra.
37 See note 4 supra; pp. 36-37 infra.
25
1. U nity o f the M etropolitan Area
The City of .Richmond, encompassing approximately
sixty-three square miles, lies nearly at the geographic
center of the area made up by the Counties of Henrico
(244 square miles) and Chesterfield (445 square miles),
which surround the City on all sides. Other counties to
the north and south of Henrico and Chesterfield, respec
tively, are separated from this greater Richmond region
in whole or in part by the Appomattox and Chicahominy
Rivers (see maps at Ex. A. 27-31).38 Virtually all of Hen
rico and most of Chesterfield County39 lie within thirty
minutes’ travel of Capitol Square in Richmond, using
regular streets and averaging twenty to forty miles per
hour (A. 154-56; RX 60, Ex. A. 13; HX 36-A).
The two counties and Richmond are highly interrelated
and mutually dependent. As is typical of most urban
areas,40 the central core city has ceased to register in
creases in population in the decennial censuses; the major
population growth from 1950 to 1960 occurred in Henrico
County, and in 1960 to 1970 in Chesterfield County (A. 156-
57; PX 17, Plates 8, 10-11, 15; RX 46; CX 21; HX 24). The
most densely populated areas of each county are contiguous
to Richmond (PX 17, Plates 17-24; HX 38, 38-A; see also,
38 The entire area was originally a part of Henrico (A. 798);
Richmond and Chesterfield County, among other political entities,
were created from it. Subsequently, the city annexed various
portions of each county (HX 5; CX 2).
39 This includes all of the areas which, under the plan approved
by the district court (see pp. 46-49 infra), would send any students
to a school or schools presently located within the boundaries
of the City of Richmond (see A. 236; RX 95). Although parts
of Chesterfield County are also within thirty minutes’ travel
time of other Virginia municipalities (CX 20), there was no
showing of the same degree of mutual interdependence that exists
between the county and Richmond.
40 See discussion at pp. 55-60 of the Petition for Writ of
Certiorari in this matter.
26
PX 17, Plates 42-44). The 1970 Census reveals a total
population of 480,840: 249,430 in Richmond, 154,364 in
Henrico and 77,046 in Chesterfield.41
A variety of historical, economic and social indicators
demonstrates the close functional unity of the region de
spite its division into three independent political entities.
For example, evidence introduced at the trial indicates that
prior to the 1970 annexation,42 over three-quarters of the
jobs in the region (78% of those covered by Virginia’s
unemployment compensation program) were in Richmond
(RX 55, Ex. A. 3) and that half or more of the residents
of each county worked in Richmond (A. 160-61).48 1970
Census data44 confirms the continuation of these patterns.45
41 See table at p. 30 infra.
42 Effective January 1, 1970, Richmond annexed an area of
Chesterfield County containing 47,262 persons, 97% white. See
Holt v. City of Richmond, 459 F.2d 1093 (4th Cir. 1972).
,43 The evidence introduced below was prepared in connection
with annexation proceedings against Henrico and Chesterfield
Counties in 1964 and 1969, respectively, and showed that in 1962,
66% of Henrico residents, and in 1968, 48% of Chesterfield resi
dents were employed in Richmond (RX 56, 56A, Ex. A. 5-6). It
was also shown that 90% of all attorneys listed in the 1970
Greater Richmond Telephone Directory” had their offices within
the city, and of those, 51.4% lived in Richmond, 42% in either of
the two counties, and 6.6% elsewhere (A. 161) ; and that approxi
mately one-third of the State Education Department employees
in 1971 lived in each of the three political entities (ibid.).
44 Statistics compiled from the 1970 United States Census were
not available to the parties or the district court at the time of trial
(see A. 160). Throughout this Brief, we shall refer to the latest
figures available from judicially noticeable sources because they
update those available at the time of trial and have the added
virtue that they were compiled following the 1970 annexation of a
portion of Chesterfield County by the City of Richmond (note 42
supra; see 3,38 F. Supp., at 180-82, Pet. A. 406-10).
45 According to the 1970 Census, 48% of Chesterfield workers
are employed in Richmond, 30% in Chesterfield and 6% in Henrico;
65% of Henrico residents work in Richmond, 27% in Henrico and
27
Similarly, pre-annexation Eiclimoncl accounted for 62%
of the region’s retail sales (A. 163; RX 54, 54A, Ex. A. 1-2)
and later figures demonstrate its continued preponderance
as the commercial and mercantile center of the area.46
The daily newspapers of general circulation throughout
the area are in Richmond (A. 775-76),47 as are most local
television and radio stations and a disproportionate num
ber of public and private educational and cultural facilities:
3% in Chesterfield. United States D ept , op Commerce, B ureau
op th e Census, Census Tracts, Census op P opulation and H ous
ing , Richmond, Va. SMSA (G.P.O. PHC(1)-173, 1972), p. 11,
Table P-2, Social Characteristics of the Population: 1970. (These
figures omit workers whose place of work is unreported). Analyses
performed for a Richmond Regional Transportation Study pro
jected that the City would retain a similar proportion of metro
politan employment in the future (A. 160, 163; RX 54, 55, Ex.
A. 1-4).
46 Richmond is responsible for $698,123,000 (72%) in retail
trade as compared to $89,226,000 in Chesterfield and $186,021,000
in Henrico. Richmond’s preponderance is still greater in regard
to “shopping goods”—those purchased from department and ap
parel stores and thus comprising routine consumer items. Rich
mond accounts for $213,671,000 of such purchases, five times the
amount of Henrico’s $39,253,000 and almost seventeen times Ches
terfield’s $12,704,000. R and, McNally & Co., [1972] Commercial
A tlas & Marketing Guide 76. Compare 338 P. Supp., at 178, 182,
Pet. A. 402, 411.
47 Newspapers are a good index of the independent identity of
subparts of a region, because they are relatively inexpensive to
establish (less expensive, for example, than television stations—all
six of which in the Richmond SMSA are located in Richmond
City), and are directly responsive to the demand of the ̂ local
populace for news about their neighbors, about local political issues,
and about the doings in the community as that is perceived by
its inhabitants. Henrico County apparently has no newspapers;
Chesterfield has only one: a weekly published in Chester, which
is a town of about 5,500 residents. The Richmond newspapers
therefore serve the counties. There are an estimated 83,100 house
holds in Richmond City, and 74,200 in the counties, op. tit. supra,
at 76 n. 77; Richmond’s morning Times-Dispatch has a daily circu
lation of 140,618 and a Sunday circulation of 193,540, Richmond’s
evening News-Leader a circulation of 118,410. [1972] Ayer D irec
tory op P ublications 1084, 1122.
28
for example, six of seven, institutions of higher learning,
including a medical college (A. 164), and the major li
braries and museums of the area (A. 164; EX 59, Ex. A.
9-11). Health services for the entire area are concen
trated in Richmond (which includes within its boundaries
17 of the community’s 18 hospitals (A. 165)); most resi
dents of the region are born in and die within Richmond.48
Such public transportation as is available in each of the
counties is almost exclusively directed toward travel be
tween suburb and city rather than within each county
(see A. 885-86).
While the subdivision of the region among three politi
cal units naturally creates a competitive spirit in various
affairs, there has been a great deal of concerted action for
mutual benefit. Henrico County offices are located in Rich
mond, and its employees there depend upon the City’s police
and fire services (A. 805-06). Parts of the county’s territory
have in the past received fire protection from Richmond
pursuant to agreement, and there is presently a reciprocal
fire assistance pact between Richmond and Chesterfield
County (A. 877; 338 F. Supp., at 184, Pet. A. 415). The City
has entered into 20-year sewage treatment and water supply
contracts with Henrico County, which receives 90% of its
water from Richmond, as well as reciprocal supply agree
ments for these utilities with Chesterfield County (A. 188-
94; RX 48-51). Pursuant to statute, the city and counties
share concurrent regulatory jurisdiction over subdivision
development in an area five miles around Richmond (A. 166;
PX 121, p. 232; 338 F. Supp., at 229, Pet. A. 517).
48 Data compiled by the Richmond Planning Department from
Bureau of Vital Statistics records showed that 70% of resident
Chesterfield mothers, 79% of Henrico mothers and 94% of Rich
mond mothers gave birth within the City, while 49% of Chesterfield
residents, 55% of Henrico residents and 85% of all Richmond
residents died in the City (A. 165; RX 61, 61A, Ex. A. 15-16).
29
The three school systems have likewise acted together.
A. modern vocational-technical training facility is operated
by the Richmond system, enrolling a proportionate number
of students from the three subdivisions. Together, several
specialized joint schools are operated: two centers for
mentally retarded children (one located in Henrico and an
other in that area of Chesterfield County annexed to Rich
mond in 1970), and a mathematics-science center in Hen
rico (A. 417-20).
Together with Hanover County, the three jurisdictions
compose the Richmond Standard Metropolitan Statistical
Area as designated by the U.S. Census Bureau.49 Every re
port of local or regional planning bodies and privately
retained consulting firms has noted the marked interde
pendence of the city and counties (PX 148; RX 47, 89, Ex.
A. 34, 36); the district court reviews these and much of the
evidence introduced at the trial in its detailed findings (338
F. Supp., at 178-84, Pet. A. 401-16).60
49 The Bureau’s criteria are set forth in U nited States B ureau
of the B udget, Office of Statistical Standards, Standard
Metropolitan Statistical A reas (1967). Generally, an SMS A
is defined to include counties containing at least one city of 50,000
or more inhabitants, together with those adjacent counties that
are metropolitan in character and are integrated economically and
socially with the county of the central city. Although Hanover
County, which contains only 7% of the SMSA’s population, was
added to the Richmond SMSA by the Census Bureau in 1963,
consultants’ reports have noted the considerably lesser degree of
interdependence between Hanover and Richmond (HX 25, Ex.
A. 41). The Hanover schools enroll only 9,600 students, 78%
white, and were desegregated in 1969.
60 See the comment of the Henrico County Circuit Court in a
1964 decision in a Richmond annexation suit (HX 7, Ex. A. 53) :
Although community of interests is not necessarily as vital a
consideration as other factors to be considered . . . this Court
nevertheless feels that this factor should be given consideration.
. . . Dependence of the central city of Richmond and the im
mediately surrounding county is mutual, [record citations
omitted] The evidence shows that the commercial and civic
interests of the city and county are largely identical.
30
2. D em ographic Trends
A dominant characteristic of the metropolitan area is
the increasing concentration of blacks in the Richmond
central city, and whites in the suburban counties. (See RX
57, 57A, Ex. A. 7, 8; RX 71 [total population]; RX 62,
75-78, Ex. A. 21-26 [school population]; PX 17, Plate 25).
Census reports for the past twenty years are revealing:
TABLE 3
P opulation W it h in the R ichmond SMSA51
Richmond
p o p u la
tio n
m s °
230,310
% n o n
w h ite
31.7
p o p u la
tio n i S to
219,958
% n o n
w h ite
lA to
42.0
p o p u la
tio n
m o
249,43062
% n o n
w h ite
1170
4 2 4 5 2
Chesterfield 40,400 20.9 71,197 13.3 77,04662 11.562
Henrico 57,340 9.9 117,339 5.2 154,364 6.8
This realignment of the region’s racial demography
coincides with the suburbanization of Richmond—a dra
matic shift in population growth patterns.63 Prior to 1940
most of the population increase in the region occurred in
Richmond (A. 156), but since that time more than 90%
of the growth has taken place in Henrico and Chesterfield
counties. Henrico made its greatest gains from 1950 to
51 Sources: United States D ept , of Commerce, B ureau op the
Census, II Census op P opulation : 1950 (G.P.O. 1952), 46-29,
46-30; United States D e pt , op Commerce, B ureau of th e Census,
I Census op P opulation .- 1960 (G.P.O. 1961), 48-28; U nited
States D ept , of Commerce, B ureau op the Census, Census op
P opulation : 1970 (G.P.O. PC(1)-B48, Oct. 1971), 48-42 (correc
tion page), 48-44.
62 The Richmond and Chesterfield figures for 1970 are affected
by the 1970 annexation described in note 42, supra. Without that
annexation, the differential population growth and racial change
trends shown by the table would be even more marked.
63 The Executive Director of the Richmond Regional Planning
District Commission testified, in fact, that for a century prior to
1950, Richmond’s non white population had been declining (21 R.
10-11) .
31
1960, and Chesterfield in the 1960-70 decade (compare PX
17, Plates 8, 10, 11; CX 21; HX 24 [lots and subdivisions
developed]), while .Richmond lost population.
The overall racial composition of the area has remained
remarkably stable throughout its recent development: in
1940 blacks accounted for 28% of the population; in 1970,
26% (EX 71). But the distribution of whites and blacks
throughout the area has shifted markedly, as noted above.
Despite the annexation of a predominantly white portion
of Chesterfield County in 1970,54 Richmond showed an in
creased proportion of blacks in its total population and
reached a new high of 42.4%; while black population in
Chesterfield and Henrico fell off to 11.5% and 6.8% black,
respectively.65 Richmond accounted for only 25% of the
white population g'ain in the SMS A during the 1960-70
decade, whereas Henrico and Chesterfield Counties re
ceived 60%66 of that increase. On the other hand, Rich
mond received 75% of the increase, in black population
within the SMSA during the decade.
The population changes are, of course, reflected in the
changing enrollments of the region’s schools. Enrollment
in the Richmond system grew from 38,857 in 1954-55 to
47,604 in 1970-71 (including the pupils gained by the 1970
annexation from Chesterfield County), while Henrico went
from 13,142 to 34,470, and Chesterfield went from 9,132 to
54 The annexation added some 47,000 residents to the city; with
out it, instead of gaining nearly 30,000 people from 1960 to 1970,
Richmond would have lost over 17,000. See U nited States D ept ,
of Commerce, B ureau of th e Census, Census of P opulation :
1970 (G.P.O. PCH(2)-48, 1971), at p. 5.
66 In the preceding decade (1950-60), Richmond lost total popula
tion but changed from 32% black to 42% black. Henrico more
than doubled in size but dropped from 10% to 5% black, and
Chesterfield grew by 75% but dropped from 21% black to 13%
black. See Table 3 supra.
56 Richmond contains 48% of the total population in the SMSA.
32
24,063 (the latter figure reflecting, once again, the pupils
lost by the 1970 annexation). Although at the time of Brown,
Richmond’s student population was 43.5% black and the
counties’ 20.4% and 10.4% black, respectively, by 1971-72
each county enrolled less than 10% black students and the
Richmond system had become over 69% black (RX 75-78,
Ex. A. 21-26).
Both total population distribution and school system en
rollments from 1950 to 1970 reflected increasing racial
concentration and segregation, according to Dr. Karl
Taeuber, an expert witness and noted demographer (PX
131, A. 628-32). These trends have been apparent to local
agencies and consultants for some time. A 1964 report
of the Richmond Regional Planning Commission predicted
an increasing black population in the City and noted that
the increasing non-white school population was a factor
contributing to the decline in white city residents (24 R. 81,
84-85). An earlier consultant’s study (RX 89, Ex. A. 34)
stressed that white migration from the city was resulting
in the rapid changeover to a majority-black school system..
Anri in 1967, private consultants retained by the Boards of
Supervisors of Henrico and Chesterfield Counties made
these observations (HX 25, Ex. A. 41) :
. . . there is every reason to believe that life in the
Richmond metropolitan area is becoming more seg
regated with time, rather than less segregated. By that
we mean non-white populations are continuing to be
concentrated in the City of Richmond, and the small
non-white percentages in Henrico and Chesterfield
counties are likely to become even smaller with time
as the white population in these counties continues to
expand. At the present time there is little reason to
believe that the State of Virginia or the U.S. Govern
ment is likely to adopt legislation, such as a “fair
housing act,” which would significantly alter this pat-
33
tern of concentrating Negro housing in central cities
and white housing in suburbs.57
It is not surprising, therefore, to find that racially dis
criminatory housing practices pervade the area (338 F.
Supp., at 84, Pet. A. 195-96; 462 F.2d, at 1065-66, Pet. A.
572-74).58 In its earlier ruling involving the City of Rich-
67 It is obvious from the statistics that the 1968 Fair Housing
Act, passed by the Congress, has not “significantly alter [ed] the
pattern.” Martin Sloane, an expert on race and housing (A. 727
-35) testified that such measures would take generations to re
verse the effects of past discrimination (A. 753).
68 The Court of Appeals misconceived the significance of the
evidence relating to housing segregation in several respects. For
one thing, while it accepted the lower court’s findings that past
state and federal governmental action had limited the areas, in
which blacks could buy housing (462 F.2d, at 1065, Pet. A. 572),
it failed to consider whether school district lines which incorpo
rated that segregation into the school system were not therefore
impermissible obstructions of the affirmative duty to desegregate
identifiably black schools. Compare Brewer v. School Bd. of Nor
folk, 397 F.2d 37, 41 (4th Cir. 1968) (attendance zones incor
porating housing discrimination) with 462 F.2d at 1066, Pet. A.
574 (housing discrimination apparently irrelevant in the present
ease).
Second, the Court of Appeals appears to have dismissed the
significance of discrimination against blacks in the field of housing
because it existed in Richmond as well as the two counties (462
F.2d at 1066, Pet. A. 574). There are still areas of Richmond
to which blacks cannot move (21 R. 32). But the suburban county
areas in which population growth has taken place in the last
twenty years have been all but totally closed to blacks while the
established ghetto areas in the city have expanded, in typical
fashion, on their periphery (A. 666).
Finally, the Court of Appeals thought housing segregation ir
relevant because it could not perceive that blacks had been at
tracted to Richmond from the counties or that all the whites who left
Richmond settled in the counties (462 F.2d at 1066, Pet. A. 574).
Not only is the Court’s examination of school attendance changes
for a single year (ibid.) an exceedingly imperfect indicator of
population trends, but racial disproportions also result from the
tendency of new arrivals to an area to settle in accordance with
perceived customs in the community, i.e., to conform to established
or developing patterns of racial segregation (A. 666). Compare
HX 25, Ex. A. 41.
34
mond alone (317 F. Snpp., at 561-63, Pet. A. 8-12), the
district court found extensive discrimination, both public
and private, affecting the availability of housing to black
families, including widespread use of racial covenants,
deliberate location of segregated housing projects in seg
regated areas, encouragement of racial discrimination by
brokers and sellers through policies of federal (FHA, VA,
etc.) and private lending or mortgage insuring' institutions,
and long-continued newspaper advertisement identification
(direct or indirect) of properties as intended for purchase
by buyers of a particular race. The evidence received in
the present proceedings establishes that these and other
discriminatory practices exist throughout the metropolitan
area (338 F. Supp., at 212-29, Pet. A. 478-519).
Only a brief canvass is feasible here: The Acting Deputy
Staff Director of the United States Civil Rights Commis
sion described in detail how early FHA approval of racially
restrictive covenants established racial segregation as the
normal practice of the building industry (A. 737-39; see
PX 127-30A, 137), whose effects continue even today. Prior
to 1950, most subdivisions developed in either Richmond
or the counties contained the covenants (A. 80-86, 1335),
and a significant number platted thereafter also employed
the covenants (PX 127; OX 37, 38). An FHA official re
ported that covenants were used on many county subdivi
sions constructed with FHA assistance (A. 595-98). The
location of black housing projects in segregated areas of
Richmond (PX 39, 121, p. 242, 130) was confirmed by the
Director of the Housing and Redevelopment Authority, who
said that his inability to locate public housing outside the
City59 reinforced the overall segregated residential pat
terns (A. 617). There were continued racially separate
property listings in the newspapers of general circulation
59 Compare A. 468-80.
35
throughout the area until 1968 (A. 769-70, 777; PX 42),
and the area’s leading title company continued until 1969
to include restrictive covenants in its title reports (20
E. 4-17; PX 90). Incidents suggesting discriminatory treat
ment of black prospective buyers of county properties were
unrebutted and unchallenged on cross-examination (A. 461-
67; 21 E. 42-49; see also, PX 92; 19 E. 214-18), and the
existence of a pattern of discriminatory practices was con
firmed by both reports of an official agency (PX 148, p.
34) and the testimony of its Executive Director (A. 497-98,
500-01). To the extent that the segregated patterns might
be viewed as the result of economic, not racial factors (but
see A. 632, 636-38), evidence demonstrating the substan
tially lower socioeconomic status of blacks in Virginia
after decades of inferior, segregated education was intro
duced (PX 125).
II. The Proceedings Below
A. L itiga tion from. 1961 to 1 9 7 0
The present case began in 1961 as a class action to
desegregate the Eichmond schools (A. 1). The School
Board of the City of Eichmond and the Pupil Placement
Board of the Commonwealth of Virginia were initially
made defendants (A. 59-69). The district court ordered
that individual named plaintiffs be admitted to the white
schools to which they desired to transfer but denied an
injunction in favor of the class. The Court of Appeals
reversed in part, directing limited class relief. 317 F.2d
429 (4th Cir. 1963).
After further proceedings in the district court, the Court
of Appeals rejected plaintiffs’ challenge to free-transfer
desegregation plans and held also that faculty desegrega
tion would not be required. 345 F.2d 310 (4th Cir. 1965).
36
This Court granted certiorari on the latter holding only,
reversed, and directed that faculty desegregation be com
menced. 382 U.S. 103 (1965).60
On remand from this Court, a consent decree was entered
which embodied a freedom-of-choice plan, provided for
faculty desegregation, and obligated school authorities to
replace free choice if it failed to produce results. How
ever, despite continuation of the patterns of segregation
(see 338 F. Supp., at 71-72, Pet. A. 167-69), Richmond
school officials took no action. March 10, 1970, the plain
tiffs filed a motion for further relief, relying upon Green
v. County School Board, 391 U..S. 430 (1968) (A. 8).
B. P roceed in gs on the M otions fo r F u rth er R e lie f an d to
A dd P arties
The motion for further relief elicited an admission by
the Richmond School Board that its free-choice plan did
not meet then current constitutional standards (338 F.
Supp., at 70-71, Pet. A. 165). The district court directed
submission of new plans for desegregation of the Rich
mond schools. Initially the Richmond School Board sub
mitted a plan, prepared with the assistance of HEW,
based upon neighborhood zoning without pupil transporta
tion (338 F. Supp., at 71, 74-76, Pet. A. 166-67, 173-77).
The plaintiffs, through an educational expert, submitted
an alternative plan using all of the techniques subsequently
validated by this Court in Swann v. Charlotte-Mecldenburg
Board of Education, 402 U.S. 1 (1971), as applied to the
schools within the City of Richmond (317 F. Supp., at 568-
72, Pet. A. 24-32). June 26, 1970, at the conclusion of an
evidentiary hearing, the district court rejected the HEW
60 In its 1965 opinion, this Court noted the passage of a decade
since Brown and announced that delays in desegregation could no
longer be tolerated. 385 U.S., at 105.
37
plan and afforded the Richmond School Board an addi
tional opportunity to submit its own alternative plan (338
F. Supp., at 78, Pet. A. 182). The board thereafter pro
posed a plan which adopted pupil transportation at the
secondary levels but avoided it at the elementary levels,
and which did not achieve as much desegregation as the
plaintiffs’ plan.
Following a hearing in August, 1970, the district court
permitted the school board to implement its second plan on
an interim basis for the 1970-71 school year, for the ex
plicit reason that sufficient time was no longer available
within which to acquire the transportation capacity neces
sary to implement a plan like that submitted by the plain
tiffs, which the district court expressly approved as “rea
sonable” within the meaning of the then applicable lawr
[Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d
138 (4th Cir. 1970)] [rev’d 402 U.S. 1 (1971).] (317 F.
Supp., at 572, Pet. A. 32). The district court’s opinion
and order instructed the Richmond School Board that a
plan which achieved as much or more desegregation than
that submitted by the plaintiffs would have to be imple
mented not later than the 1971-72 school year, and again
afforded the board an opportunity to submit such a plan
drawn by its officials.
. . . The Richmond public schools cannot be desegre
gated without using the techniques used by Dr. Foster
such as non-contiguous zoning, pairing, clustering of
schools and transportation, . . . (317 F. Supp., at 575,
Pet. A. 40).
The school board was directed to notify the district
court within 90 days of the steps it had taken to imple
ment a constitutional plan and of the earliest date such
a plan could be put into operation in the Richmond public
schools (317 F. Supp., at 578-79, Pet. A. 47).
38
On November 4, 1970, the School Board of the City of
Richmond filed a motion to join the School Boards and
Boards of Supervisors of Henrico and Chesterfield Coun
ties, their school superintendents, the State Board of Edu
cation, and the State Superintendent of Public Instruction
as additional parties, on the ground that full and effective
relief could not be granted to the plaintiffs61 without the
joinder of these parties (Fed. Rule Civ. Pro. 19).62 The
61 During the previous summer’s hearings, Dr. Thomas Little,
Associate Superintendent of the Richmond system, had been asked
on cross examination whether Richmond schools could be desegre
gated without using pupil transportation. After his negative re
sponse, the following exchange took place:
Q. Dr. Little, assuming transportation of pupils, is there
any way to achieve what you consider to be, as an educator,
an optimum of desegregation in the Richmond area? A. In
the Richmond area, yes.
Q. How would you do that? A. It would involve the in
volvement of a larger area than the present city boundaries
of the City of Richmond.
Q. Are you talking about Henrico County, Chesterfield
County, or both? A. Henrico County, Chesterfield County,
and the possibility of the general metropolitan area, maybe
bordering on, in other counties other than Henrico _ and
Chesterfield. Basically, the problem could be solved within
the City of Richmond, Henrico and Chesterfield Counties.
[6/25/70 Tr. 1122-23],
62 On November 15, 1970, counsel for the Richmond Board in
formed the district court by letter that new plans would not be
filed until January, 1971. On December 9, 1970, plaintiffs ac
cordingly filed a motion which sought implementation of their
alternative plan effective with the second semester of the 1970-71
school year, which they contended was required under Alexander
v. Holmes County Board of Education, 396 U.S. 19 (1969) and
Carter v. West Feliciana Parish School Board, 396 U.S. 290 (1970).
The district court also had before it a motion of the School Board
seeking to vacate a pendente lite construction injunction, see, e.g.,
Calhoun v. Cook, 430 F.2d 1174 (5th Cir. 1970), which it had
issued following the first hearings on the motion for further re
lief. In an opinion entered January 29, 1971 and reported at
324 F. Supp. 456, the court deified the motion to implement
39
district court invited counsel for the parties sought to be
joined by the motion to appear and present argument
concerning the sufficiency and propriety of the motion (36
R.) After the submission of memoranda, the district judge
plaintiffs’ plan and vacated its injunction as to those proposed
construction projects to which plaintiffs had no objection.
On January 15, 1971, the School Board of Richmond filed three
alternative desegregation plans limited to the Richmond schools.
Following an evidentiary hearing on March 4, 1971 (to which
counsel for the added defendants were invited to express any
views concerning the appropriate relief required within the City
of Richmond should the claim against them be held insufficient
[see 34 R., 2/16/71 Tr. 5-6]), the district court approved one of
the plans proposed by the school board and directed its imple
mentation commencing with the 1971-72 school year. In doing
so, the court expressly qualified its conclusion that the school
board’s plan met the requirements of the law by the reservation
that all questions of additional relief against the joined parties
remained to be litigated:
The record will disclose that there is now pending before the
Court in this school desegregation case a yet to be determined
issue concerning the duty or duties, if any, imposed by law
upon certain defendants joined by leave of Court granted
Dec. 5, 1970. The conclusions contained in this memorandum
are accordingly predicated solely on the state of the record
insofar as same applies to the present duty of those defen
dants who were parties to the suit prior to the joinder mo
tion; without consideration of the issues involving the joined
defendants. Trial of those issues, depending on the evidence
and the law, may or may not disclose further obligations on
all parties.
325 F. Supp.. at 830 n. 1, Pet. A. 110. In its opinion of April
5, 1971, the court approved the Richmond School Board’s plan
for 1971-72 because:
. . . the School Board, if this proposal succeeds as planned,
will have eliminated the racial identifiabilitv of each facility
to the extent feasible within the City of Richmond. This is
the extent, under current law, of the affirmative obligation gov
erning use of its available powers. . . . (325 F. Supp., at 835,
Pet. A. 121 [emphasis supplied].)
The court noted in a footnote th a t: “This conclusion is based upon
what can be reasonably expected within the geographical boundaries
from which the students for whom the School Board now has re
sponsibility come.”
40
found, without intimating any view on the merits of
whatever underlying claims might he made, that it was
appropriate to grant the motion in order to litigate the
duty, if any, owed by the additional defendants to the
plaintiffs or the Richmond School Board. The court noted
that its finding with respect to a desegregation plan for the
City of Richmond was
. . . made in the context of litigation between Rich
mond residents and Richmond officials alone. I t is by
no means inconsistent with the existence of a duty
on the part of officials with broader powers to exer
cise such powers to afford different or additional re
lief from what the Court has found to be state-imposed
segregation. The addition of further parties, more
over, alters the range of alternatives, some of which
may be shown as feasible and more promising in their
effectiveness. Green v. County School Bd. of New
Kent County, [citations omitted]. It is with an eye
to this range of choices between means to provide
desegregated schools that the legal sufficiency of a
proposed unitary plan is to be tested.
(51 F.R.D., at 141, Pet. A. 50-51).
At the same time, the district court set forth its view
of the issues which would be presented by claims against
the additional defendants, in terms to which the court con
sistently adhered during subsequent proceedings:
Certain of the additional parties have a direct af
firmative obligation toward the Bradley plaintiffs, and
others of them might well be necessary in order that
the first can fulfill that obligation; the question re
mains whether in fact that obligation has been ful
filled. On that point the position of the instant plain
tiffs is not clear. They demand a unitary school system.
41
However, whether it is their contention that this may
or must be achieved by the formation of a consolidated
school division or by other means beyond the power
of the present defendants does not appear with clarity
from the pleadings. The measure of the effort which
may be required of .those sought to be joined may
depend upon both the extent to which the actions, if
any, of these persons or their predecessors have con
tributed to the existing situation, and also the reason
ableness of the remedial steps which are available.
(Id. at 143, Pet. A. 54-55). Accordingly, and since counsel
had expressed their intention to do so at the hearing (36
B. 8), plaintiffs were directed to file an amended complaint
“wherein they set forth both those alleged facts which they
contend give rise to an obligation on the part of those
joined to take steps to achieve a unitary school system
for the class they represent, and also the particular relief
demanded.” (Id. at 143-44, Pet. A. 55).
Plaintiffs’ amended complaint (A. 99-109), filed Decem
ber 14, 1970, alleged constitutional violations on the part
of all added defendants and concluded with a prayer seek
ing the assignment of students across the school division
lines between Bichmond, Henrico and Chesterfield to
achieve desegregation, either by “the consolidation or mer
ger of the defendant school systems in all aspects of
school operation and administration . . . ” or by “such
agreements, contracts, or otherwise [as would] provide for
the joint operation of the educational systems of the City
of Bichmond and the Counties of Henrico and Chester
field, with free availability of all facilities for pupil atten
dance and tri-system-wide assignment of pupils, teachers,
school plant, transportation facilities and all other inci
dents of school operation, to the end that no school within
42
the respective defendant school systems shall be racially
identifiable” (A. 107-08).63 (See also, A. 1336-43.)
Following disposition of a series of pre-trial motions by
the State and County defendants,64 and pretrial confer
ences during the Spring of 1971, evidence was received
August 16-20, 23-27, 31 and September 1-2, 7-10, and 13,
1971.
C. T he F indings and O rd er o f th e D istric t C ourt
On January 5, 1972, the district court issued its Memo
randum, containing a short history of the case (338 F.
Supp., at 70-79, Pet. A. 164-85); general factual findings
and conclusions, together with a discussion of applicable
legal principles (338 F. Supp., at 79-116, Pet. A. 185-263);
and extensive, detailed, specific findings of fact supportive
63 The Amended Complaint also requested that defendants be
required
to prepare and submit for approval of the Court a plan for the
operation of all of the public schools within the defendant
school systems in conformity with the requirements of the
Fourteenth Amendment, including but not limited to, the
establishment of schools, pupil populations, staffs, faculties,
transportation routes and extracurricular activities which are
not racially identifiable and to be effective with the commence
ment of the 1971-1972 school year.
(A. 108).
64 On January 8,1971, the district court denied a motion to recuse
which had been made by several of the added defendants (324 F.
Supp., at 439, Pet. A. 58-90). On February 10, 1971, the court
denied a motion to dismiss as to certain of the added defendants
in their individual capacities (324 F. Supp., at 401, Pet. A. 107-09)
and on the same date denied the motion of several of the joined
parties to convene a three-judge court pursuant to 28 U.S.C. §2281
to hear and determine the cause (324 F. Supp., at 396, Pet. A. 98-
106). Additional pre-trial motions were disposed of in two unre
ported orders (Pet. A. 91-97). A renewed motion to convene a
three-judge court, made following a 1971 amendment of Virginia’s
Education Code (see Appendix,E infra), was also denied (Pet. A.
156).
43
of the general findings and conclusions (338 F. Supp., at
116-230, Pet. A. 185-545).
The district court found that, notwithstanding the im
plementation of a court-ordered plan in Richmond and the
taking of various steps toward desegregation in the coun
ties, the schools remained racially identifiable. They were,
in other words, “black” schools and “white” schools, whether
viewed in terms of the common sense perceptions of stu
dents and parents based upon marked deviations from the
community-wide ratio, or of the informed judgment of pro
fessional educators, or of the history of discrimination
and segregation in Virginia. (338 F. Supp., at 80-81, Pet.
A. 186-90.) The court concluded that unconstitutional dual
school systems in the Richmond area had not been elimi
nated :
A brief examination of the current data and that of
recent years showing pupil assignment patterns in
schools of the three political subdivisions of Richmond,
Henrico and Chesterfield, shows both great disparities
in 1971 racial composition, making both individual
facilities and entire systems racially identifiable and
also a very recent history of the maintenance of a
great number of one-race schools. Some such still
exist.. The recent statistical history of these school
divisions is set forth in accompanying tables. Appen
dix “A”. [338 F. Supp., at 80, Pet. A. 186]
The institution within the three existing school dis
tricts of something which might in some other context
pass for desegregation of schools is a phenomenon
dating at best from the opening of the 1971-72 school
year, which took place during the trial of this case.
Prior thereto each system was in some respect non-
unitary, and the Court is not fully advised as to the
44
current status of the county system[s]. Even were
each existing system, considered in a vacuum, as it
were, to be legally now unitary within itself, the ques
tion still remains whether a state policy having the
effect of preventing further desegregation and fore-
seeably frustrating that which has been accomplished
to date may be imposed upon a very recently achieved
desegregated situation. Momentary unitary s ta tu s -
assuming it existed here, which has not been shown—
will not insulate a school division from judicial super
vision to prevent the frustration of the accomplish
ment. (338 F. Supp., at 104, Pet. A. 238.)
The persisting dual school systems, the court found,
could no longer be remedied by piecemeal desegregation
plans limited to the individual divisions of the metro
politan area (338 F. Supp., at 90-91, 103-04, Pet. A. 207-11,
236-39):
The maintenance of segregation in an expanding com
munity therefore creates problems, when a remedy
must eventually be found, of a greater magnitude in
the present than existed at an earlier date. . . . (338
F. Supp., at 91, Pet. A. 210.)
Believing that practical needs compelled consideration of
the three school divisions together in developing an effec
tive plan of desegregation, the district court inquired
whether any legitimate State interest in maintaining the
existing school division boundary lines would prevent the
combination of city and county schools in a desegregation
plan that could achieve the greatest possible degree of
actual desegregation and thereby eliminate racially iden
tifiable schools or systems (338 F. Supp., at 81-83, Pet. A.
190-93).
45
The court answered this question in the negative, in
light of:
(1) the history of willingness by Virginia school
authorities to cross school division lines freely in order
to promote and serve segregation (338 F. Supp., at
83-84, Pet. A. 193-95; see pp. 34-37, supra)-,
(2) the coincidence of the Richmond City boundary
lines with highly segregated residential patterns which
were shown to have resulted in part from, racially
discriminatory practices by private individuals and
public agencies, including the school construction prac
tices of the separate systems (338 F. Supp., at 84-89,
91-92, Pet. A. 195-207, 211; see pp. 16-17, 33-35, supra) ;
(3) the lack of coincidence of the boundary lines
with any “tangible obstacles” and their lack of rela
tion “to any administrative or educational needs” (338
F. Supp., at 83, Pet. A. 192-93);
(4) the shared control of public education—utilized
in the past to avoid and resist desegregation—between
local and State authorities (338 F. Supp., at 92-96,
98-103, Pet. A. 212-21, 227-36; see Appendices C, E
infra).
The district court therefore found it appropriate to re
quire state and local authorities to act in concert to facili
tate the execution of a desegregation plan that would
cross existing school division lines in order to provide
effective constitutional desegregation65 of the Richmond
area schools (338 F. Supp., at 96-98, 104-13, Pet. A. 222-26,
239-59):
The Court concludes, in the context here presented,
that the duty to take whatever steps are necessary to
66 See Appendix A in fra .
46
achieve the greatest possible degree of desegregation
in formerly dual systems by the elimination of racially
identifiable schools is not circumscribed by school divi
sion boundaries created and maintained by the cooper
ative efforts of local and central State officials. (338
F. Supp., at 79-80, Pet. A. 185-86.)
A proposed metropolitan plan of desegregation (RX
64-66, A. 195-243, Ex. A. 29-31) had been presented at the
extensive hearings following joinder of the county and
state defendants. The plan was developed by administra
tors in the Richmond system,66 and favorable opinions as
to its operability were expressed by distinguished educa
tional witnesses (E.g., A. 378, 433, 563). The district judge
concluded that the plan was basically workable and that
—barring development of a better scheme, which he stood
ready to consider—it should be implemented:
. . . It is to be recognized that Dr. Little in prepar
ing the suggested plan, which, the Court finds rea
sonable, has done so without the benefit of any co
operation from the respective county school officials.
Their cooperation and expertise will undoubtedly make
the task easier. (338 F. Supp., at 190, Pet. A. 428.)
The metropolitan plan as now formulated is based
on attendance figures from September of 1970. It
demonstrates, however, the feasibility of the tech-
66 During pre-trial conferences, the Richmond Board announced
that it would present such a plan at the hearings. The district court
urged the parties, and in particular the added state and county
defendants, to examine the proposed plan—which the court in
structed the Richmond Board to tender prior to the hearing (A.
138)—in order that they might suggest any preferable alternatives
and avoid delay in implementation should metropolitan relief be
found required (A. 136-40). However, none of the other parties
made any alternative suggestions to the district court during the
trial. See Appendix B infra.
47
niques employed. Furthermore, its current form, can
be brought up to date rapidly to conform to current
attendance statistics and capacity figures with a few
hours’ work with the computer. . . . Any one of the
school administrations involved herein could design
a desegregation plan to achieve roughly equal racial
proportions in schools throughout the Richmond met
ropolitan area. Neither of the defendant counties has
undertaken to develop any proposed desegregation
plan in cooperation with the city. It is apparent that
the combined efforts of the city, the counties and the
state authorities can lead to an even better plan
than the one now before the Court—nevertheless the
plan now proposed will be acceptable and the Court
will be readily available to consider suggested modi
fications. [338 F. Supp., at 191, Pet. A. 431-32]
The salient features of the Richmond Board’s plan are
set out in the margin.67 Because the plan attempted to
67 The plan redivides the area consisting of the city and the two
comities into six subdivisions for purposes of administration. Each
subdivision, with the exception of the sixth, would contain a pro
portion of black and white students roughly equivalent to the
system-wide ratio (A. 203-05, 208-12; 338 F. Supp., at 186, Pet. A.
419). Pupils would be assigned to schools within each subdivision
or immediately contiguous thereto (A. 206-07; 338 F. Supp., at
186, Pet. A. 419). Generally speaking, students would be ex
changed or reassigned on a school-by-school basis, without pairing
or grade restructuring (A. 199-201; 338 F. Supp., at 186, Pet, A.
419). The selection of schools between which students would be
exchanged was made by computer pursuant to instructions to
equalize, for all students insofar as possible, the length of transpor
tation routes (A. 213-18; 338 F. Supp., at 187, Pet. A. 421). The
projected assignments would result in pupil populations at each
school (except those in Subdivision Six, in the southern part of
Chesterfield County) between 20% and 40% black (RX 63; A.
201-06, 214; 338 F. Supp., at 186-87, Pet. A. 419-22). The Board’s
plan for Subdivision Six, the most sparsely settled (A. 217-18),
would eliminate all-white and all-black schools through pairing or
48
provide for the administration of the desegregated schools
in accordance with existing Virginia law insofar as pos
sible,68 and becanse its designers were of the view that
administrative problems would thereby be eased (A. 240),
the plan called for consolidation of the school divisions
under the supervision of the State Department of Edu
cation. Accordingly, the district court’s order (338 F.
Sjupp., at 244-48, Pet. A. 536-45) specified in detail the
elements of planning and adjustment that were required
to be completed in order to prepare for implementation
zoning (A. 205-06, 1320-21; 338 F. Supp., at 187, 189, Pet, A.
422-26).
The Richmond Board’s plan provided for the selection of students
to be exchanged between schools or subdivisions by use of a birth
day lottery (A. 223-25; 338 F. Supp., at 187, Pet. A. 422) although
it was also suggested that where such a mechanism would result
in transportation of undesirable length, noncontiguous zoning
could be employed (A. 1322-23; 17 R. 135-45; 338 F. Supp., at
187, Pet. A. 421-23). After county school officials testified that
experimental simulated birthday lotteries in the least populated
areas of each county (including Subdivision Six in Chesterfield
County) resulted in bus routes of inordinate length, the Richmond
Associate Superintendent of Schools presented to the court detailed
satellite (noncontiguous) zoning proposals and transportation
routings for these areas which minimized the transportation time
required (RX 96, 96A; CX 30; IIX 33; A. 1001-05, 1322-23),
including adoption of a noncontiguous zone utilized by Henrico
County in 1970-71 (A. 1322-23). See 338 F. Supp., at 190, Pet. A.
427-28).
The maximum number of students who would need to be trans
ported under the proposed plan was 78,000—10,000 more than were
transported in the three school divisions (A. 232-34) ; 338 F. Supp.,
at 188, Pet. A. 423). (This figure includes both students who would
be transported for purposes of integration and those entitled to
transportation to the school serving their geographic zone of resi
dence, apart from the desegregation plan (A. 232; 338 F. Supp.,
at 188, Pet. A. 423)). The district court found that the projected
times of transportation for pupils would not exceed those which
both counties have required in the past (338 F. Supp., at 188,
Pet. A. 424; see A. 988; RX 91; HX 32; 20 R. 79, 137-38; 29 R.
205).
68 See Appendix D infra.
49
of desegregation throughout the greater Richmond area
by consolidating the Richmond, Chesterfield and Henrico
school divisions. In its order, however, the district court
once again reiterated its willingness to consider other
plans to eliminate racially identifiable schools in the re
gion, asking for the submission
. . . to this Court within seventy (70) days from the
date of this Order [of] the modifications required by
paragraph g(l) above as well as any other modifica
tions, changes or recommendations, as may be desired
by the State Board of Education, the State Superin
tendent of Public Instruction, the acting school super
intendent or the school board created pursuant to
paragraph b above. (338 F. Supp., at 246, Pet. A.
541.)
The court had earlier made clear at the conclusion of its
comprehensive opinion that:
While the viable racial mix contemplated by the plan
is educationally sound and would indeed result in a
unitary system, variations from that suggested viable
mix may be unavoidable. All parties are admonished
that it is not the intention of the Court to require a
particular degree of racial balance or mixing. If in
the implementaion of the plan improved modifica
tions seem appropriate, the Court stands ready to
entertain them. (338 F. Supp., at 230, Pet. A. 519-20.)
50
D. T he C ourt o f A p p ea ls’ D ecision
On June 5, 1972, following an expedited appeal,69 the
Fourth Circuit reversed (Judge Winter dissenting). The
majority opinion (462 F.2d, at 1060-70, Pet. A. 562-83)
saw the case as one in which a federal district court had
undertaken to “compel one of the States of the Union to
restructure its internal government” (462 F.2d, at 1060,
Pet. A. 562) “for the purpose of achieving racial balance”
{ibid.). In arriving at this view, the majority appears to
have extrapolated from the District Court’s approval of
the Richmond Board’s plan what it took to he the set of
principles that had guided the District Court in its resolu
tion of the legal issues in the case.
Thus, the Court of Appeals proceeded from the recitation
that
. . . the district judge sets out in some detail [notably
only in his comprehensive detailed findings of fact,
which cover virtually all of the evidence in a volumi
nous record] the theory advanced by various witnesses
of a “viable racial mix.” . . . (462 F.2d, at 1062, Pet.
A. 567 [emphasis supplied])70
to the very different ascription that
69 On January 19, 1972, the District Court denied a stay of its
order pending appeal, noting that the order by its terms would not
have resulted in the transfer of any students for six months, during
which period essentially planning functions would have been carried
out (Pet. A. 549-50). February 8, 1972, the Court of Appeals
stayed all provisions of the order except those explicitly regarding
continued planning, although it left to the State Board’s discretion
whether a provisional school board for a merged division should
be formed; it also expedited the appeals (Pet. A. 553-56).
70 Dr. Little, Associate Superintendent of the Richmond schools
who drafted the Richmond Board plan, did indeed testify that
achieving a “viable racial mix” which would promote stable deseg
regation was one of his goals (A. 214).
51
In his concern to achieve a “viable racial mix,” the
district court [ordered a tri-division desegregation
plan], (462 F.2d, at 1063, Pet. A. 567 [emphasis sup
plied]).
Similarly, although the Richmond Board’s plan had pro
posed consolidation of school divisions as the mechanism
for an interdivision desegregation plan because, in Dr.
Little’s judgment, the administration of the desegregated
schools would thereby be simplified and education improved
for all students (A. 240), the Court of Appeals treated this
particular form of plan as an essential element of the case
and reversed outright without directing examination of
other inter-division alternatives.
The majority thought that the case involved—and in
volved only—a question of the constitutionality of the ex
istence of adjoining political subdivisions with differing
racial demographies. It found that maintaining boundary
lines between such subdivisions involved “no constitutional
violation” (462 F.2d, at 1070, Pet. A. 583); and it added
that the Tenth Amendment barred a contrary holding
“absent invidious discrimination in the establishment or
maintenance of local governmental units.” (462 F.2d, at
1060, Pet. A. 562). I t accordingly held that inter-division
desegregation was legally impermissible, with the result
that we have previously described at pp. 10-11 supra.71
Summary o f Argument
I. Like Swann, this case concerns a long-persisting dual
school system. It does not present the question whether
the mere maintenance of school division lines separating
71 For a more thorough treatment of the Court of Appeals’ opin
ion, see pp. 46-54, 64-65, and 74-83 of the Petition for Writ of
Certiorari herein; pp. 57-62, 70-82 infra.
52
adjacent divisions of differing racial concentration vio
lates the Constitution. Violations are established upon
other grounds. This case involves the scope of remedies
for them.
It does not involve any question of “racial balance.”
Nor does it involve any claim that Virginia’s maintenance
of school division lines between Richmond and the counties
is per se unconstitutional. The Fourth Circuit wrongly
treats the problem of division lines in isolation from the
over-all problems of desegregating the Richmond area
schools. The District Court did not cross the lines on the
theory that they were unconstitutional but upon the finding
that, unless they were crossed, desegregation would remain
incomplete because Richmond area schools would remain
racially identifiable.
Finally, the case does not involve any question regard
ing the particular form of inter-division relief given here:
namely, consolidation. That form of relief was ordered by
the District Court because no alternative proposal for
inter-division desegregation was advanced by the defen
dant school authorities.
II. The practical situation confronting the District
Court after ten years of efforts to desegregate the Rich
mond schools made effective desegregation impossible
within the confines of the Richmond City school division
boundary lines, and therefore required that the lines be
crossed. That being so, it is no objection to crossing the
lines (as the Fourth Circuit believed) either (1) that the
lines are not per se unconstitutional, or (2) that a State
might not be taxed with violating Brown merely because
of differing racial ratios in the school populations of ad
jacent school divisions. Like other structural arrange
ments of a State’s public schools, division lines are sub-
53
ject to alteration where necessary to devise an effective
remedy for indurate and intractable de jure segregation.
The State of Virginia, not its several political and educa
tional subdivisions, is responsible under the Constitution
for the segregation of the public schools within each sub
division; and the State may not oppose state-created
boundaries of local administrative jurisdiction to the ef
fective redress of racial segregation for which it bears
the constitutional responsibility.
III. This does not imply, of course, that federal district
courts are free entirely to ignore school division lines in
the fashioning of desegregation decrees. The practical
problems entailed by inter-division plans are among the
“practicalities” that the district judges are obliged to
consider. In addition, a State’s decisions regarding the
manner in which its public school system should be sub
divided, while not entitled to an invariable, inflexible
preference over other concerns relevant to the formula
tion of an effective school desegregation plan, are entitled
to substantial weight. In the present case, however, a
combination of factors deprives the boundary lines be
tween Richmond and the counties of much of the weight
that they might otherwise possess, and overwhelmingly
supports the District Court’s conclusion to cross those
line s. P rincipally:
(A) Virginia law, Virginia public officials, and Virginia
school authorities have historically crossed or ignored
school division lines in the service of numerous interests,
including the interest of segregation. A concern for local
autonomy that has been so often subordinated to other
interests by Virginia law and practice ought not suddenly
to be honored as a categorical imperative when it con
flicts with the interest of effective school desegregation.
54
(B) The District Court properly found that the Rich
mond, Chesterfield and Henrico school divisions consti
tute a single educational community within which the
purposes and promises of Brown require an elimination
of racially identifiable schools. Fundamentally, Brown is
concerned with the unmistakable stigma of second-class
citizenship that “separate but equal” schools attach to
black Americans, and with the destructive impact of that
stigma upon the education of black children. Implemen
tation of Brown requires the eradication of all arrange
ments of the public educational institutions of a State
which perpetuate the stigma or reinforce its effects. In
the context of the history and the current circumstances
of the Richmond area schools, a desegregation plan which
leaves racially identifiable black Richmond City schools
sequestered by division boundary lines from closely ad
joining one-race white county schools would also leave the
vital aims of Brown completely thwarted.
In that context, the Fourth Circuit’s judgment perpetu
ates the same old system of “white” schools and “black”
schools that the Richmond area has always had. This kind
of dual system is not ended by a process in which Rich
mond City successfully resists desegregation for eighteen
years, and then “desegregates” internally when demo
graphic developments have turned the City so black that
“desegregation” makes little change in the racial compo
sition of the schools. In such a process, the principles of
Brown are not affirmed; they are merely made too un
important for mobile whites to fuss about. Particularly
since the social and economic integration of the Richmond
metropolitan area now permits suburban whites to take
advantage of everything Richmond has to offer without
subjecting their children to schooling with Richmond’s
blacks, the end result of eighteen years’ resistance to
55
Brown is a change in the shape, but not the nature, of
the old dual system.
(C) Rampant racial discrimination in housing and other
regards throughout the Richmond metropolitan area firmly
supports the District Judge’s predictive judgment that a
Richmond-only desegregation plan will hasten the conver
sion of the City into a single black ghetto, both by encour
aging white flight and by discouraging white immigra
tion. Past and expectable future discrimination in em
ployment and housing interacts with school segregation
to lock blacks into the isolated existence of the center-city
ghetto. Once this cycle becomes apparent, school authori
ties may not ignore it as the setting within which their
arrangement of school facilities will operate to produce
one-race schools. The resulting “black” schools and
“white” schools are the State’s responsibility; and, whether
or not their1 advertent creation would alone violate the
Constitution, surely their perpetuation does not satisfy
the obligation of either public school officials or a federal
district court to terminate long-time dual school systems
“root and branch.”
56
ARGUMENT
I.
In tro d u c tio n .
Like Swann v. Charlotte-Mecklenburg Board of Educa
tion, 402 U.S. 1 (1971),72 this case arises in a State “having
a long history of maintaining two sets of schools in a single
school system deliberately operated to carry out a govern
mental policy to separate pupils in schools solely on the
basis of race.” Id., at 5-6. As in Swann and Green v.
County School Board, 391 TJ.S. 430 (1968),73 the issues
presented are:
(1) whether the school authorities of such a State
have “fully discharged [their] . . . obligation” to “take
whatever steps might be necessary to convert to a
unitary system in which racial discrimination would
be eliminated root and branch,” id., at 437-438; and
(2) whether, if not, the District Court’s desegrega
tion order (here, requiring an assignment of pupils
across state-created school division lines) exceeded its
power or constituted an abuse of discretion under the
guiding principle that, “[h]aving once found a viola
tion [of Brown v. Board of Education, 347 U.S. 483
(1954)],74 the district judge or school authorities
should make every effort to achieve the greatest pos
sible degree of actual desegregation, taking into ac
count the practicalities of the situation.” Davis v.
Board of School Commissioners, 402 U.S. 33, 37
(1971).75
72 Hereafter cited as Swann.
73 Hereafter cited as Green.
74 Hereafter cited as Brown (I) or simply as Brown.
75 Hereafter cited as Davis.
57
We state these issues at the outset in order to extricate
the case from the grip of several misconceptions which,
with all due respect, appear to have controlled the Court
of Appeals’ disposition of it:
First, in only the most literal sense is it correct to say,
as the Court of Appeals does, that “ ‘this is not primarily
a case about segregation required by law, because state
law has never required segregation as between Richmond
and the neighboring school systems.’ ” (462 F.2d, at 1065,
Pet. A. 571.) This is exclusively a case about segregation
required by law. The fact that Virginia law has “never
required segregation as between Richmond and [the coun
ties]” a singularly needless requirement during the long
years before and after Brown when all three school sys
tems were internally segregated by race—might be impor
tant if
(a) the issue here were whether Virginia had ever
maintained dual school systems in violation of Brown,
and
(b) the only basis upon which such a violation was
asserted was that Virginia operated three separate
school divisions in the Richmond metropolitan area.
But that is not this case. Virginia uncontestably main
tained dual school systems in Richmond, Henrico and Ches
terfield before 1954, in 1954, and interminably thereafter.
(See pp. 5-16 supra.) There is no necessity to search
for “any constitutional violation in the establishment and
maintenance of these three school districts [sic: divisions].”
(462 F.2d, at 1069, Pet. A. 581.) Violations within the divi
sions are undisputed and indisputable. The only question
now is the scope of the remedy for them.
The answer to that question is not controlled or even
clarified by the inquiry to which the Court of Appeals
58
appears to address much of its opinion: whether, with
out more, the maintenance by a State of separate school
divisions for adjacent areas of differing racial concentra
tion violates the Constitution. The latter inquiry is as
much beside the point in Richmond, Virginia as it would
have been beside the point in Swann to consider whether,
without more, a State’s use of the neighborhood school
system violates the Constitution as applied to neighbor
hoods of differing racial concentration. The Court in
Swann was not obliged to decide that assigning “pupils
to schools nearest their homes” (402 U.S., at 28) would
per se constitute a violation of the Equal Protection
Clause in a district marked by residential separation of
the races but “with no history of discrimination” {ibid.).
I t was enough to hold that such an assignment scheme
also was not “per se adequate to meet the remedial re
sponsibilities of local boards” 76 in a system with a his
tory of discrimination.
So here, the question is not whether the adventitious
occurrence of a 70% black school division sandwiched be
tween two 90% white school divisions, all “with no his
tory of discrimination,” would violate Brown. It is whether
a federal district court is required to accept a 70% black
school division sandwiched between two 90% white school
divisions as the end result and satisfactory resolution of
its decade-long efforts to implement Brown in “a system
that has been deliberately constructed and maintained to
enforce racial segregation.” Swann, 402 U.S., at 28.
Second, it is plain that the District Court’s order was
designed precisely and solely to implement Brown. The
Court of Appeals’ characterization of that order as hav
ing “the purpose of achieving racial balance” (462 F.2d,
at 1060, Pet. A. 562) is unwarranted, insofar as “racial
76 Davis, 402 U .S., at 33, 37.
59
balance” means anything other than that “degree of ac
tual desegregation” 77 which the Constitution as construed
in Brown commands. “Racial balance” in its more usual
meaning78 of a non-constitutional “educational policy . . .
that . . . each school should have a prescribed ratio of
Negro to white students reflecting the proportion for the
[area] . . . as a whole,” 79 has nothing to do with this
case. The District Judge neither sought to achieve, nor
did he actually achieve, “racial balance” in this non-
constitutional sense.80
Third, what the District Judge did seek to achieve was
“the greatest possible degree of desegregation in formerly
dual systems by the elimination of racially identifiable
schools.” (338 F. Supp., at 79, Pet. A. 185-86). Pursuing
that objective in the light of this Court’s admonition to
“consider the use of all available techniques,” Davis, 402
U.S., at 37 (1971), he first examined the extent to which
desegregation could be effected within the confines of the
Richmond City school division boundary lines, and found
it “pathetically incomplete.” (338 F. Supp., at 103, Pet.
A. 237.) See pp. 66-68, 86-87 infra. He then considered
the practicability of, and eventually adopted, a desegrega
tion plan that went beyond the boundaries of Richmond.
See pp. 38-49 supra.
77 Swann, 402 U.S., at 26.
78 See Swann, 402 U.S., at 16-18; Board of Education v. Swann,
402 U.S. 43, 45 (1971); Drummond v. Acree, 409 TJ.S. ------ (1972)
(Mr. Justice Powell, in Chambers).
79 Swann, 402 U.S., at 16.
80 We discuss this point in detail in Appendix A, infra. Because
of the prominent place of the “racial balance” misconception in the
Court of Appeals’ opinion, it deserves thorough treatment. But we
confine that treatment to an appendix because it does concern a
misconception, and ought not deflect attention from the essential
issues of the case.
60
By contrast, the Court of Appeals treats the decision
to cross Richmond’s boundaries as though it were unre
lated to the underlying, intractable problems of desegre
gating the Richmond schools. Remarkably, its opinion
does not discuss the District Court’s extensive factual
findings regarding the inadequacy of Richmond-only de
segregation, nor does it even mention the essential predi
cate of the District Court’s order: that all proposed plans
of desegregation which dealt with Richmond and the sur
rounding counties as air-tight compartments left “both
individual facilities and entire systems racially identifi
able.” (338 F. Supp., at 80, Pet. A. 186) Thus the Court
of Appeals demands that a justification for crossing
school division lines be found in some unconstitutional
feature of those lines themselves (462 F.2d, at 1066-1067,
1069, Pet. A. 575-78, 581), rather than in “the implicit
command of Green v. County School Board, 391 U.8. 430
(1968), that all reasonable methods be available to formu
late an effective remedy” 81 for violations of the Consti
tution dating back eighteen years to Brown,
But surely Brown (II)S2 assumed and Swann squarely
held that the forms in which a State arranged its public
school system, although not themselves unconstitutional,
were necessarily subject to adjustment by the district
courts in “the framing of equitable remedies to repair the
denial of a constitutional right.” Swann, 402 U.S., at 15-16.
Contiguous geographic zones and traditional grade struc
tures, for example, may have no inherent constitutional
vice; yet the courts are authorized to alter them where
necessary to desegregate a segregated system. The ques
tion in the present case is whether, uniquely, school divi-
81 North Carolina Board of Education v. Swann, 402 U.S. 43, 46
(1971).
82 Brown v. Board of Education, 349 U.S. 294 (1955) [hereafter
also cited as Brown (II)].
61
sion lines are immune against “remedial adjustments . . .
made to eliminate the dual school systems.” Swann, 402
U.S., at 28. It is not whether the establishment and main
tenance of school divisions are unconstitutional or have
“any unconstitutional consequence” in isolation from the
long-time de jure segregation of the Richmond area schools.
(462 F.2d, at 1069, Pet. A. 581.) It is certainly not whether
“various enactments of the Legislature of Virginia struc
turing Virginia’s system of free public schools” are “in
valid.” (462 F.2d, at 1067, Pet. A. 515) I t is simply
whether, having made a finding that the crossing of these
particular school division lines was “the only remedy
promising of immediate success—not to speak of stable
solutions” (338 F. Supp., at 100, Pet. A. 230) in the con
text of its efforts to desegregate the Richmond schools,
the District Court lacked power or discretion to cross
them.
Fourth, this latter question hardly implicates any gen
eral assertion of a sweeping power in the district courts
to “compel one of the States of the Union to restructure its
internal government.” (462 F.2d, at 1060, Pet. A. 562)
To be sure, the District Court here did finally order a
consolidation of three Virginia school divisions pursuant
to the consolidation provisions of Virginia law.83 But that
particular form of an inter-division desegregation plan—
as opposed, for example, to an order requiring- the assign
ment of pupils across school division lines84-—came about
83 See Appendix D infra.
84 The only critical feature of the relief sought in this case was
that it not be compartmentalized by existing school division lines:
—that some pupils eross division lines, so that schools would not
remain racially identifiable. Whether this result was achieved
through consolidation of the present school divisions or through
some form of pupil exchange, contractual or otherwise, among them
was of no particular moment either to the plaintiffs or as a matter
of legal principle. Indeed, as noted above (pp. 41-42 supra), the
62
in this case through the “total failure”85 of the defendant
school authorities to offer any alternative plan involving
the exchange of pupils between Richmond and the sur
rounding counties.86 The Chesterfield and Henrico school
boards and the Virginia State Board of Education stood
adamantly on the proposition—which the Court of Appeals
below has now fully approved—that school division lines
are sacrosanct and impermeable against any form of school
desegregation decree. The correctness vel non of that
proposition is at the heart of this case.
II.
The District Court Did Not Lack Power to Order
an Inter-Division Desegregation Plan.
A. T he Scope o f F ederal Judicia l P ow er to T erm in a te
D ual School System s.
The District Court believed that its power to fashion
a desegregation plan reaching beyond a single school di
vision rested upon two essential predicates. The first was
amended complaint filed by the plaintiffs sought either merger or
assignment of pupils across division lines within the existing struc
ture (A. 107-08). Virginia law provides more than one mechanism
by which such assignment could be accomplished: operation of
joint schools (Va. Code Anno. §22-7 [Repl. 1969]), contractual
agreement (Va. Code Anno. §22-99 [Repl. 1969]); see generally,
Wright v. County School Bd. of Greensville County, 309 F. Supp.
671 (E.D. Va. 1970), rev’d 442 F.2d 570 (4th Cir. 1971), rev’d
sub nom. Wright v. Council of the City of Emporia, 407 U S 451
(1972).
85 Swann, 402 U.S., at 25.
86 We discuss this point in Appendix B, infra. As we mention
there, neither the District Court’s opinion nor its order precludes
modification of the consolidation plan proposed by the Richmond
School Board and approved by the District Court, in the event
that another equally effective form of inter-division desegregation
plan is subsequently brought forward by any party.
63
that the public schools in the area had been immemorially
segregated in violation of the Constitution as construed
by Brown. The second was that any form of remedial de
cree confined within the limits of one division would be
ineffective “to eliminate from the public schools all vestiges
of state-imposed segregation.” Swann, 402 U.S., at 15.
We submit it is apparent that these two predicates
amply sustain federal judicial power to extend the remedial
process of a district court across state-created school di
vision boundary lines. Questions going* to discretion in
the exercise of the power (See Part III of this Brief,
pp. 82-98 infra) should not be confused with the funda
mental question of the existence of the power itself. As
to the latter, there can be no question.
For the competence of federal equity to secure “com
plete justice” 87 upon a finding of a violation of federal law
is no mere latter-day invention of the second Brown de
cision. It is an established, as it is an indispensable,88
attribute of the equitable jurisdiction of the federal courts.
E.g., Camp v. Boyd, 229 U.S. 530, 551-52 (1913); Hecht v.
Bowles, 321 U.S. 321, 329-30 (1944); Porter v. Warner
Holding Co., 328 U.S. 395, 398 (1946); cases cited in notes
108-10, 112-13, infra. Specifically vouchsafed by statute
since 1871 to enforce the Equal Protection Clause of the
Fourteenth Amendment,89 that power has always been
given the widest latitude by the decisions of this Court.
87 Brown v. Swann, 35 U.S. (10 Pet.) 497, 503 (1836).
88 “The government of the United States has been emphatically
termed a government of laws, and not of men. I t will certainly
cease to deserve this high appellation, if the laws furnish no remedy
for the violation of a vested legal right.” Marbury v. Madison, 5
U.S. (1 Cranch) 137, 163 (1803). .
89 The history of section 1 of the Civil Rights Act of 1871, now
Rev. Stat. §1979, 42 U.S.C. §1983, is canvassed in Monroe v. Pape,
365 U.S. 167 (1961).
64
E.g., McNeese v. Board of Education, 373 U.S. 668 (1963);
Griffin v. County School Board, 377 U.S. 218 (1964). “Once
a right and a violation have been shown, the scope of a
district court’s equitable powers to remedy past wrongs
is broad, for breadth and flexibility are inherent in equi
table remedies.” Swann, 402 U.S., at 15. See, e.g., Louisiana
v. United States, 380 U.S. 145 (1965). And when “ ‘the
public interest is involved . . ., those equitable powers as
sume an even broader and more flexible character than
when only a private controversy is at stake.’ ” Mitchell v.
Robert De Mario Jewelry, Inc., 361 IJ.8. 288, 291 (1960).
See Virginian Railway Co. v. System Federation No. 40,
300 U.S. 515, 552 (1937).
So we take it to be settled that, “ [h]aving once found a
violation,” Davis, 402 U.S., at 37, the District Court had
“not merely the power but the duty to render a decree
which [would] . . . so far as possible eliminate the discrim
inatory effects of the past as well as bar like discrimina
tion in the future.” Louisiana v. United States, 380 U.S.
145, 154 (1965). On this record, neither the violation nor
the necessity for inter-divisional relief to “achieve the
greatest possible degree of actual desegregation,” Davis,
402 U.S., at 37, and prevent resegregation rooted in the
persisting effects of past discrimination, cf. Raney v. Board
of Education, 391 U.S. 443, 449 (1968), can be doubted.
As for violation, it is altogether obvious that unconstitu
tional dual school systems were maintained in Richmond,
Chesterfield and Henrico both before and long after Brown.
See pp. 11-16 supra. Although the District Court was
concerned primarily with Richmond City as the original
subject of this litigation and the most intractable of the
three jurisdictions to desegregate,90 it also made explicit
90 The District Court’s findings as to the history of segregation
in the Richmond City schools are set forth at 338 F. Supp., at 70-
65
findings of segregation in Chesterfield91 and Henrico,92 as
well as findings of state-wide segregatory practices by
Virginia State educational authorities.93 The Court of Ap
peals did not controvert those findings factually, although
—consistently with its Balkanized view of Brown9i—it did
conclude that the District Court’s April 5, 1971 desegrega
tion plan for the operation of the Richmond City schools
during 1971-72 (see note 62, supra) “belatedly” brought
Richmond to the “juncture [where it had] done all it can
do to disestablish to the maximum extent possible the
formerly state-imposed dual school system within its mu
nicipal boundary” (462 F.2d, at 1061, Pet. A. 563); and the
Court of Appeals similarly found that, as of the same
school year, Henrico and Chesterfield had achieved internal
“unitary” status—the latter by eliminating “the racial
identifiability of the Central Gardens School” (462 F.2d, at
1065, Pet. A. 571) which had operated as a. 96% black
facility throughout 1970-71 (338 F. Supp., at 239, Pet. A.
529), and the former by severing formal county ties to the
Matoaca Lab School which continues to operate as a 100%
79, Pet. A. 165-84. Its findings that the schools remained segre
gated at the time of its opinion appear at 338 P. Supp., at 80-81,
90, 100, 103-05, Pet. A. 186-88, 208, 230, 237-39.
91 The District Court’s findings as to the history of segregation
in the Chesterfield County schools are set forth at 338 F. Supp.,
at 133-38, 163-71, Pet. A. 301-13, 368-86. Its findings that those
schools remained segregated at the time of its opinion appear at
338 F. Supp., at 80-81, 90, 100, 103-05, Pet. A. 186-88, 208, 230,
237-39.
92 The District Court’s findings as to the history of segregation
in the Henrico County schools are set forth at 338 F. Supp., at
127-33, 171-76, Pet. A. 289-301, 387-89. Its findings that those
schools remained segregated at the time of its opinion appear at
338 F. Supp., at 80-81, 90, 100, 103-05, Pet. A. 186-88, 208, 230,
237-39.
93 See 338 F. Supp., at 92-97, 138-57, Pet. A. 212-23, 313-56.
94 See note 101 infra.
66
black facility within its geographic boundaries (A. 1024).
(462 F.2d, at 1065, Pet. A: 571-72.) Since the “opening of
the 1971-72 school year . . . took place during the trial of
this case” (338 F. Supp., at 104, Pet. A. 238), we believe
that the District Court’s characterization of “unitary
status” in the three divisions as “ [mjomentary . . . assum
ing it existed . . .—which has not been shown” (ibid.) is al
together accurate.
So there were uncontestable violations. That brings us
to the one major point on which the Court of Appeals and
the District Court were thoroughly agreed: that, within
the boundary lines of the three school divisions, nothing
more can be done than has already been done to “achieve
the greatest possible degree of actual desegregation, taking
into account the practicalities of the situation.” Davis, 402
TJ.S., at 37. This conclusion is at once the basis upon which
the District Court found that an inter-divisional school de
segregation plan was factually necessary,95 and the basis
upon which the Court of Appeals conversely concluded that
the three school divisions were each legally “unitary” (462
F.2d, at 1061, 1065, Pet. A. 563, 571-72). But it is undis
puted and indisputable that this “unitary” system consists
of a black island in a white sea. (See pp. 5-11, 30-33
supra.) Richmond, containing a school population that is
69% black96 (with one-fifth of its schools ranging from 80%
to 89% black) (338 F. Supp., at 240-242, Pet. A. 530-32), is
entirely surrounded by two counties whose school popula-
96 “ • • ■ [T]he ‘desegregation’ of schools within the city and the
counties separately is pathetically incomplete. Not only is the elim
ination of racially identifiable facilities impossible of attainment,
but the partial efforts taken contain the seeds of their own frustra
tion.” (338 F. Supp., at 103, Pet. A. 237); see also 338 F. Supp.,
at 100, Pet. A. 230; pp. 43-44 supra.
96 For the 1971-72 school year, 13,500 white students and 29,747
black students were enrolled in the Richmond schools. (338, F.
Supp., at 185, Pet. A. 417.)
67
tion is 91% white.97 As between Richmond and the counties,
“great disparities in 1971 racial composition . . . [make]
both individual facilities and entire systems racially identi
fiable.” (338 F. Supp., at 80, Pet. A. 186.)
Black Richmond schools and white county schools lie
virtually on top of one another. (See Table 1, p. 8
supra.) Richmond’s black John Marshall High School
(73% black in 1970, 78% black in 1971) is 1.4 miles (eight
blocks) from the 96.1% white Henrico High School; Rich
mond’s black Highland Park School (90% black in 1970,
85% black in 1971) is 1.3 miles from Henrico’s 99.8%
white Glen Lea School; and the District Court’s opinion
identifies nine other “schools of extremely divergent racial
composition . . . located a very short distance apart” (338
F. Supp., at 190, Pet. A. 428-29) across the school division
lines. It is little wonder that an expert witness for the
county and state defendants “conceded that a child, observ
ing two schools on different sides of a jurisdictional bound
ary, with widely disparate racial compositions, would not
be sufficiently sophisticated to know most of the forces
and factors which brought forth such racial composition,
but would simply perceive the existence of black and white
schools.” (338 F. Supp., at 200, Pet. A. 451.) Those “black
and white schools” are perpetuated—immune against con
version into “just schools,” Green, 391 U.S., at 442—if, as
the Court of Appeals held, school division boundary lines
are not crossed. (See Table 2, p. 10 supra.)
In addition, the black Richmond schools are growing
blacker: during the 1970-71 and 1971-72 sessions, “Rich
mond schools lost over 7,800 white students from their
projected figure [i.e., the figure envisaged in the District
97 In 1971-72, Henrico enrolled 31,299 white students and 3,018
black students, while Chesterfield enrolled 21,588 white students
and 2,166 black students. (338 F. Supp., at 185, Pet. A. 417-18.)
68
Court’s interim Richmond-only desegregation plan]” (338
F. Supp., at 185, Pet. A. 417). This loss of “39% of its
white students in the past two years” (338 F. Supp., at
103, Pet. A. 237) was a significant consideration in the
District Judge’s finding that any attempts to desegregate
Richmond schools within the closed confines of the Rich
mond school division would “contain the seeds of their
own frustration” (see note 95, supra).
To say that the command of Brown (II) stops at this
point, that the schools of Richmond are now “unitary,” 98
or that “the greatest possible degree of actual desegrega
tion” has been achieved,99 requires a remarkably narrow
conception of Brown and of those phrases. To appreciate
how narrow it is, one needs only to compare the conditions
under which the Fourth Circuit shuts off further constitu
tional relief in Richmond-Chesterfield-Henrico (see pp. 7-
11 supra) with the conditions under which this Court
approved extensive further constitutional relief in Char-
lotte-Mecklenburg and Mobile. Plainly enough, if Virginia
law had constituted Richmond and the two entirely sur
rounding counties as a single school division, in the way
that North Carolina law includes the City of Charlotte
and the County of Mecklenburg within a single school
division, the Fourth Circuit would have affirmed—and
would have been required by Swann to affirm—the District
Court’s desegregation order here.100 Or if what lay between
98 See Green, 391 U.S., at 438; Alexander v. Holmes County
Board of Education, 396 U.S. 19, 20 (1969).
" Davis, 402 U.S., at 37.
loo ppg 0ourt of Appeals raises no objections to the District
Court’s exercise of the “equitable remedial discretion” whose
“breadth and flexibility” were confirmed in Swann, 402 TJ.S., at
15, 25, 27, other than objections following from the interdivisional
character of the District Court’s decree. To the extent that those
latter objections are practical rather than doetrinal, we discuss
them in Appendix D infra. For present purposes, it suffices to
69
Richmond City and Henrico were not an intangible bound
ary line “so irregular and complex that it often confuses
veteran service personnel of both jurisdictions” (RX 89,
Ex. A. 34), but a “major north-south highway” (Davis,
402 U.S., at 36), the highway could not have stood as an
note that the methods of desegregation embodied in the Richmond
School Board plan that the District Court approved (see pp. 46-
49 supra) are well within the scope of remedial methods author
ized by Swann. We have earlier pointed out, for example, that no
inordinate transportation of students is involved (note 67, supra);
the Court of Appeals had no difficulty in concluding that “ [t]his
is not a bussing case” (462 F.2d, at 1061 n. 2, Pet. A. 563).
Specifically, the number of students who would require bus trans
portation—including both those who lived beyond walking distance
from the school to which they were assigned under the separate
divisions’ geographic zoning schemes (A. 226.-27, 232; 17 R. 65,
96) and those reassigned to achieve desegregation—was projected
at 78,000 (A. 232). During a typical 1970-71 school day, Henrico
and Chesterfield Counties transported 25,000 and 24,000 pupils,
respectively; under its 1971-72 plan (see note 62 supra), Richmond
anticipated transporting 21,000 pupils (A. 233-34). Thus the met
ropolitan plan called for additional busing of 8,000 to 10,000 stu
dents from among a total of 104,000 (ibid.).
Execution of the plan is within the combined means of the school
divisions: they own a sufficient number of buses not only to carry
the 78,00 students but also to provide transportation for students
participating in extracurricular activities (A. 233-38). Dr. Little
estimated the maximum time any student would be bussed as 45
minutes in most instances, up to 55 in a few, and up to one hour
in areas of Subdivision Six (see note 67 supra)—southern Chester
field County (A. 238). These times are comparable to existing
county route travel times and those proposed for 1971-72 in Rich
mond (RX 79, 80, 91; HX 32; CX 29; A. 238, 988; 29 R. 205),
and the Chesterfield County Superintendent of Schools testified
that a one-hour trip was not inordinate (20 R. 79, 137-38). Indeed,
some students were transported as long as two hours each way
in 1970-71 in that county (29 R. 205). As late as 1965, Henrico
was requiring black students to ride long distances and. even trans
fer buses in order to attend segregated schools (29 R. 187), and
Chesterfield bussed some black students 1% hours to an all-black
high school (29 R. 242).
Dr. Little recommended that wherever the lottery method re
sulted in bus routes of undesirable length, alternative means of
pupil assignment such as noncontiguous zoning be employed (see
note 67 supra).
70
impassable frontier against Brown. Put another way,
unless some categorical legal principle invests state-drawn
school division lines with the unique capacity to transmute
racially identifiable schools into “unitary” ones by passing
among them, the implementation of Brown in the greater
Richmond area remains, as the District Court concluded,
“pathetically incomplete” (338 F. Supp., at 103, Pet. A.
237).
The Court of Appeals held that division boundary lines
have precisely this legal capacity: that they stand as the
absolute, unbudgeable outer limits of federal-court desegre
gation decrees.101 The result is that the implementation
101 The Court of Appeals states this proposition in two princi
pal ways, and suggests it in a third :
The first way begins with the Tenth Amendment premise that
“ [o]ne of the powers . . . reserved to the states is the power to
structure their internal government” (462 F.2d, at 1068, Pet. A.
579), and proceeds to the conclusion that school district lines, as
components of that structure, may not be breached by a federal
court unless they have been “ ‘used as an instrument for circum
venting’ ” constitutional rights of racial equality (462 F.2d, at
1069, Pet. A. 580). In this formulation, the Fourth Circuit appar
ently conceives an “instrument” as something “intended to circum
vent” the Constitution (462 F.2d, at 1068-69, Pet. A. 580) ; hence
it holds that the boundary lines of local governmental units are
unalterable by a federal court seeking means to effect desegregation
“absent invidious discrimination in the establishment or mainte
nance of . . . [those] units” (462 F.2d, at 1060, Pet. A. 562), or
invidious “motivation” in the placement of the lines (see note 102,
infra). Related to this theory is the court’s statement that “ [t]o
approve the consolidation of these three school districts would
require us to ignore the tradition and history of the Commonwealth
of Virginia with respect to its establishment and operation of
schools, as well as hold invalid various enactments of the Legis
lature of Virginia structuring Virginia’s system of free public
schools” (462 F.2d, at 1066-67, Pet. A. 575; see also 462 F.2d, at
1064, 1066-67, Pet. A. 570-71, 575-78). Notably, the tradition and
history of Virginia have been to prefer school segregation to local
school district autonomy, while preferring local school district au
tonomy to desegregation. (See pp. 22-24, Appendix E, infra).
And to break with this tradition by crossing school district lines
for the purpose of segregation, as the District Court did, does not
71
of the Constitution within a State depends upon the manner
in which the State carves up its public school system into
administrative units.102 The further, tragic, result is that
require the invalidation of any Virginia statutes: it requires only
recognition that, by reason of the Supremacy clause, no Virginia
statutes (whether or not they are otherwise valid) can confine
the power of a federal court to “consider the use of all available
techniques” for dismantling dual school systems, Davis, 402 U.S.,
at 37. See pp. 76-77 infra. In this setting, the Fourth Circuit’s
invocation of Virginia tradition and law highlight the inflexible
character of its Tenth Amendment holding.
Its second major way of asserting the inviolability of school dis
trict lines is to treat individual school districts, which concededly
have long maintained the sort of dual school systems condemned
by Brown (I), as becoming “unitary” and thus escaping the re
medial powers of the federal courts under Brown (II), so soon as
desegregation has been pursued to the fullest extent that it can
be pursued within the separate boundaries of each district and
without crossing district lines. (See 462 F.2d, at 1060-61, 1065,
1069-70, Pet. A. 563, 564-65, 571-72, 580-81, 582-83). Unless “there
was ever joint interaction between any two of the units involved
(or by higher state officers) for the purpose of keeping one unit
relatively white by confining blacks to another” (462 F.2d, at
1065, Pet. A. 572), the units are to be viewed as watertight com
partments for purposes of the application of both Brown (I) and
Brown (II). (462 F.2d, at 1069-70, Pet. A. 582-83.) The Fourth
Circuit can find no such joint interaction in the case of Richmond,
Chesterfield and Henrico (462 F.2d, at 1065-66, Pet. A. 572-74),
in part because racial discrimination has been so pervasively prac
ticed in all three that it could not have differentially driven blacks
from one to the other (462 F.2d, at 1066, Pet. A. 573-74).
Third, the Court of Appeals expresses concern over various prac
tical problems that it perceives in the District Courts’ inter-district
desegregation plan (see Appendix D, infra), although it nowhere
suggests that these problems approach the level of magnitude
which would justify reversing a district judge’s discretion under
Swann. See 402 U.S., at 31. This is to say that the Swann prin
ciples are inapplicable across school district lines. See note 135
infra.
i ° 2 rpjjg Court of Appeals excepts, of course, cases in which the
drawing or maintenance of the boundary lines can be proved to
be racially “motivated” (462 F.2d, at 1064, Pet. A. 571), or “in
vidious” (462 F,2d, at 1069-70, Pet. A. 582-83), or “intended”
(462 F.2d, at 1069, Pet. A. 580) or done with the “purpose” (462
F.2d, at 1064, 1065, Pet. A. 571, 572) of segregating the public
schools by race. This invidious-motivation test not only flies in the
72
fulfillment of the hopes of Brown is effectively denied to
hundreds of thousands of black children locked into urban
school divisions which “appear to be completely beyond
hope of meaningful desegregation, absent some dramatic
change in their boundaries.” 103
teeth of principles long established and found necessary to protect
the right of Equal Protection of the Laws against evisceration. See,
e.g., Cassell v. Texas, 339 U.S. 282, 287-90 (1950) (plurality opin
ion) ; Turner v. Fouche, 396 U.S. 346, 360-61 (1970) ; Wright v.
Council of the City of Emporia, 407 U.S. 451, 460-62 (1972) ;
Kennedy Park Homes Ass’n v. City of Lackawanna, 436 F.2d 108,
114 (2d Cir. 1970, per Mr. Justice Clark, sitting by designation);
Chance v. Board of Examiners, 458 F.2d 1167, 1170, 1175-76 (2d
Cir. 1972), and cases cited; Hawkins v. Town of Shaw, 461 F.2d
1171, 1173 (5th Cir. 1972) ; Hobson v. Hansen, 269 F. Supp. 401,
497 (D.D.C. 1967), aff’d sub nom. Smuck v. Hobson, 408 F.2d 175
(D.C. Cir. 1969). Cf. Griggs v. Duke Power Co., 401 U.S. 424
(1971), and see Palmer v. Thompson, 403 U.S. 217, 225 (1971).
I t is also wholly illusory as a practical matter, in view of the
extraordinary difficulties involved in proving that racial animus
underlies the failure to change existing divisional boundary lines,
even where this is the fact. The difficulties are exemplified in the
present case, where the District Court found from the history of
Virginia’s treatment of school division lines and from the lack of
other substantial justifications for insisting upon the inflexibility
of those between Richmond and the counties, that “resistance to
the [inter-divisional desegregation] proposal appears clearly to be
racially based,” (see note 137 infra), while the Court of Appeals—
without disputing the factual bases of this inference—concluded:
It is not contended . . . that the establishment of the school
district lines more than 100 years ago was invidiously moti
vated. We have searched the 325-page opinion of the district
court in vain for the slightest scintilla of evidence that the
boundary lines of the three local governmental units have been
maintained either long ago or recently for the purpose of per
petuating racial discrimination in the public schools. (462
F.2d, at 1064, Pet. A. 571.)
103 United States v. Board of School Commissioners, 332 F. Supp.
655, 677 (S.D. Ind. 1971). At pp. 54-63 of the Petition for Writ
of Certiorari herein, we describe in detail these urban areas, where
“solutions not involving suburban participation, no longer are pos
sible,” 1 United States Commission on Civil R ights, Repo rt :
R acial I solation in th e P ublic Schools (G.P.O. 1967 0-243-637)
(1967) 154.
73
If this is to be so, we respectfully suggest there should
be some compelling reason why it is so. The reasons
advanced by the Court of Appeals are clearly insufficient.
B . T h e Court o f Appeals’ O bjections to an Inter-
Division Desegregation Plan.
(1) Throughout its opinion, the Court of Appeals ex
presses in varying ways the proposition that it is “unable
to discern any constitutional violation in the establishment
and maintenance of these three school districts [sic: di
visions], nor any unconstitutional consequence of such
maintenance” (462 F.2d, at 1069, Pet. A. 581).104 We have
previously noted at pp. 57-58 supra, that this focus ap
pears to confuse the issues of violation and remedy. Vio
lations of Brown in all three divisions were established.
See pp. 64-66 supra. They were not required to be es
tablished on the grounds that the school division lines
themselves segregated black children,105 in order to war
rant relief which crossed the lines.106 See p. 60 supra.
(2) It is probable that the Court of Appeals concerned
itself with issues of “constitutional violation” on the view
104 The same theme appears, for example, in the court’s accep
tance of the proposition that “ ‘this is not primarily a case about
segregation required by law, because state law has never required
segregation between Richmond and the neighboring school sys
tems’ ” (see p. 57 supra), and in the court’s statement of the
issue presented in the case as “whether the maintenance of three
separate unitary school divisions constitutes invidious racial dis
crimination in violation of the Fourteenth Amendment” (462 F.2d,
at 1065, Pet. A. 572).
106 It was, of course, neither necessary nor possible for school
division lines to segregate black children during the century that
they were equally and more than sufficiently segregated by other
devices on both sides of the lines.
106 One might as well demand that the highway traversing Mobile
has been demonstrated to be an instrument of segregation in Davis
before the highway could be crossed as part of a plan to desegre
gate that city.
74
that an arrangement of the public schools which was not
forbidden by Brown “as a matter of substantive constitu
tional right” 107 could also not be forbidden to the State
by a federal court enforcing Brown. Upon this view, the
District Court was obliged to leave Richmond’s school di
vision lines intact unless it could be said that the mere
maintenance of those lines between geographic areas of
differing racial density was prohibited by the Equal Pro
tection Clause. Cf. Spencer v. Kugler, 326 P. Supp. 1235
(D.N.J. 1971), aff’d per curiam, 404 U.S. 1027 (1972).
The view is fundamentally unsound. Equitable relief
“is not limited to the restoration of the status quo ante.
There is no power to turn back the clock. Rather, the
relief must be directed to that which is ‘necessary and
appropriate in the public interest to eliminate the effects’ ”
of the evil that required equity’s intervention.108 It goes
without saying that, if the litigation is protracted and the
evil takes new forms, equity has ample power to pursue
it.109 Indeed, it is the “duty of the court to modify . . .
[a] decree so as to assure the complete extirpation of the
illegal” conduct.110
School desegregation cases have always proceeded on
these premises, as Green and Raney v. Board of Education,
391 U.S. 443 (1968), attest. The square holdings of Swann
and of the “splinter district” cases last Term111 finally
107 Swann, 402 U.S., at 24.
108 Ford Motor Co. v. United States, 405 U.S. 562, 573 n. 8 (1972)
(emphasis in original).
109 See United States v. Armour & Co., 402 U.S. 673, 681 (1971)
(dictum).
110 United States v. United Shoe Machinery Corp., 391 U.S. 244,
251 (1968).
in Wright v. Council of the City of Emporia, 407 U.S. 451
(1972); United States v. Scotland Neck City Board of Education,
407 U.S. 484 (1972).
75
conclude the issue. For in each of those cases the relief
approved by the Court overrode arrangements of a school
system which the Court assumed would not themselves
violate Brown.
(3) Nor does the Court of Appeals rest on firmer ground
insofar as it precludes inter-division relief for failure to
find that the school division lines had an “unconstitutional
consequence” in the Richmond setting. Desegregation de
crees are designed to end segregation, not merely its meth
ods and its causes. It has never been thought prerequisite
to the modification of some aspect of a segregated system
that the particular aspect modified be shown to have an
unconstitutional operation or effect. To the contrary,
“equity has the power to uproot all parts of an illegal
scheme—the valid as well as the invalid.” 112 The point
has been made again and again in anti-trust cases:
A trial court upon a finding of a conspiracy in re
straint of trade and a monopoly has the duty to compel
action by the conspirators that will, so far as practica
ble, cure the ill effects of the illegal conduct, and as
sure the public freedom from its continuance. Such
action is not limited to prohibition of the proven means
by which the evil was accomplished, but may range
broadly through practices connected with the acts actu
ally found to be illegal. Acts entirely proper when
viewed alone may be prohibited.113
So it is in school cases. Each provision of a school de
segregation decree “need not rest upon an independent con-
112 United States v. Paramount Pictures, Inc., 334 U.S. 131, 148
(1948).
113 United States v. United States Gypsum Co., 340 U.S. 76, 88-
89 (1950). In addition to the cases cited in Gypsum, see, e.g., United
States v. Crescent Amusement Co., 323 U.S. 173, 189-90 (1944);
United States v. Loew’s, Inc., 371 U.S. 38, 53 (1962).
76
stitutional violation.” Wright v. Council of the City of
Emporia, 407 U.S. 451, 459 (1972).114 It may speak to what
ever arrangements of the school system “would either per
petuate racial segregation in the schools . . . or otherwise
frustrate the dismantling of the dual system . . . .” Id., at
471 (dissenting opinion of the Chief Justice). The con
stitutionality of those arrangements in and of themselves
cannot insulate them from modifications necessary to de
segregate the schools.
[I]f a state-imposed limitation on a school author
ity’s discretion operates to inhibit or obstruct the
operation of a unitary school system or impede the dis
establishing of a dual school system, it must fall; state
policy must give way when it operates to hinder the
vindication of federal constitutional guarantees. (North
Carolina State Board of Education v. Swann, 402 U.S.
43, 45 (1971).)
(4) Thus the Court of Appeals is incorrect that “ [t]o
approve the consolidation of these three school districts
[sic: divisions] would require us to . . . hold invalid vari
ous enactments of the Legislature of Virginia structuring
Virginia’s system of free public schools” (462 F.2d, at 1066-
67, Pet. A. 575). The consolidation ordered by the District
Court is entirely consonant with Virginia law allowing and
providing detailed mechanisms for: the consolidation of
school districts,116 except on one single point. That point
is the provision of Va. Code § 22-30, “enacted since the
joinder of state and county defendants in this case” (338
P. Supp., at 99, Pet. A. 228),116 which prohibits the State
Board of Education from creating school districts composed
of more than a single city or county without consent of the
114 Hereafter cited as Wright.
115 See Appendix D infra.
116 See Appendix E, at p. 5e infra.
77
local school boards and governing bodies. This provision
does not oppose any obstacle to the District Court’s decree
except the obstacle that is instinct in any situation where a
judicial decree is called for—the unwillingness of the
party against whom the decree runs to do what it compels
without its compulsion. It need not be held “invalid” for
the obvious reason that, whether valid or invalid, it cannot
trammel the power of a federal court of equity. See, e.g.,
Wright; Haney v. County Bd. of Education, 429 F.2d 364,
368-369 (8th Cir. 1970). But to the extent that this latter
proposition amounts to a narrow ground of “invalidation”
of the provision as applied under the Supremacy Clause,
that is no novel or troublesome result. North Carolina
State Board of Education v. Swarm, supra.
(5) It is also not a result that can be said to ignore “a
fundamental principle of federalism incorporated in the
Tenth Amendment . . .” (462 F.2d, at 1061, Pet. A. 563).
The Tenth Amendment—expressing “but a truism that all
is retained which has not been surrendered” 117—does not
restrict the power of the federal courts to enforce the
Fourteenth. E.g., Baker v. Carr, 369 U.S. 186 (1962);
Hunter v. Erickson, 393 U.S. 385 (1969). And the pro
nouncements in Hunter v. Pittsburgh, which the Court of
Appeals quotes as confirming the “absolute discretion” of
a State with regard to its municipal corporations,118 do
not speak to situations in which the consequences of the
exercise of that discretion collide with federally guaranteed
rights. The law of this Court governing such collisions
has been settled for 100 years,119 and state power over the
117 United States v. Darby, 312 U.S. 100, 124 (1941).
118 Hunter v. Pittsburgh, 207 U.S. 161, 198 (1907), cited in 462
F.2d, at 1068, Pet. A. 579.
119 Broughton v. Pensacola, 93 U.S. 266 (1876); Mount Pleasant
v. Beckwith, 100 U.S. 514 (1879); Mobile v. Watson, 116 U.S. 289
(1886); Comanche County v. Lewis, 133 U.S. 198 (1890); Shap-
78
organization and structure of political subdivisions has
been consistently subordinated to “the fundamental condi
tion that the collective and individual rights of the people
of the municipality shall not thereby be destroyed.” 120
The Court and the lower federal courts have consequently
found no Tenth Amendment obstacle to altering the struc
ture or the boundaries of state school divisions where nec
essary and proper to enforce the rights of black school
children to a desegregated education.121
State legislative district lines, congressional dis
tricts and other state political subdivisions have long
ago lost their mastery over the more desired effect of
protecting the equal rights of all citizens. . . . Political
subdivisions of the state are mere lines of conyenience
for exercising divided governmental respon|bilities.
They cannot serve to deny federal rights.122
leigh v. San Angelo, 167 U.S. 646 (1897); Graham v. Folsom, 200
U.S. 248 (1906); Gomillion v. Lightfoot, 364 U.S. 339 (I960);
Reynolds v. Sims, 377 U.S. 533 (1964).
120 Atkin v. Kansas, 191 U.S. 207, 221 (1903) (dictum).
121 Wright; United States v. Scotland Neck City Bd. of Educ.,
407 U.S. 484 (1972); Calhoun v. Cook, 451 F.2d 583 (5th Cir.
1971) (referring to the “Comment” in 332 F. Supp. 804, 809-10
(N.D. Ga. 1971)); Taylor v. Coahoma County School District, 330
F. Supp. 174 (N.D. Miss. 1970-1971), aff’d, 444 F.2d 221 (5th Cir.
1971) ; United States v. Texas, 321 F. Supp. 1043 (E.D. Tex.
1970), 330 F. Supp. 235 (E.D. Tex. 1971), modified and aff’d,
447 F.2d 441 (5th Cir. 1971) ; Lee v. Macon County Board of
Education, 448 F.2d 746 (5th Cir. 1971), 455 F.2d 978 (5th Cir.
1972) ; Bradley v. Milliken, 6th Cir. Nos. 72-1809, -1814, decided
December 8, 1972 (rehearing en banc pending). Pairing of schools
across school district lines was also ordered in Robinson v. Shelby
County Board of Education, 330 F. Supp. 837 (W.D Tenn 1971)
aff’d, 467 F.2d 1187 (6th Cir. 1972).
123 Haney v. County Board of Education, 410 F.2d 920, 924, 925
(8th Cir. 1969), subsequent history in 429 F.2d 364 (8th Cir. 1970).
79
(6) Ultimately, this latter point is what the Court of
Appeals misses. Its opinion comes at the case as though
the Fourteenth Amendment and Brown (I) spoke severally
to the individual school divisions in the State of Virginia,
rather than to the State itself. Conceding that each of
the divisions of Richmond, Chesterfield and Henrico long-
maintained dual school systems, it inquires whether each
has made its separate peace with the Constitution.
Because each has done all that it can do within its own
boundaries, the Constitution is satisfied. Schools that were
built to be or become black schools before Brown and
during- seventeen years of recalcitrance thereafter may re
main black schools. Previously white schools may remain
white schools. So long as the black schools and the white
schools are a mile and a half apart on either side of a
school division line, no one is responsible. The State
of Virginia is not responsible, because—having chosen to
assert its prerogative powers only in support of segrega
tion (see pp. 18-24 supra)—it now chooses to take no
further action.
This approach cannot be squared with authority or rea
son, with the premises of the Fourteenth Amendment or
the promises of Brown. To be sure, the named party-
defendants in the Brown cases were local school systems
within the States of Virginia, Kansas, South Carolina and
Delaware. But they were not constitutional independent
contractors. Each was operating its schools under the
segregatory compulsion of state law, and the meaning of
Brown (I) was to declare those state laws—and every
aspect of the dual systems emanating from them—uncon
stitutional. As Judge Wisdom put it in United States v.
Jefferson County Board of Education, 372 F.2d 836, 847
(5th Cir. 1966), aff’d en banc, 380 F.2d 385 (5th Cir. 1967):
“The two Brown decisions . . . compelled seventeen states,
80
which, by law had segregated public schools, to take af
firmative action to reorganize their schools into a unitary,
non-racial system.” If the Brown decisions themselves
left any doubt of this, Cooper v. Aaron, 358 U.S. 1 (1958),
did not. “State authorities were thus duty bound to devote
every effort toward initiating desegregation and bringing
about the elimination of racial discrimination in the public
school system.” Id., at 7.
Two principles are essential here. The first is that “ [t]he
fundamental guarantee of equal treatment at the hands of
the State cannot be thwarted by the fragmentation of
decision making.”123 “The United States Constitution recog
nizes no governing unit except the federal government and
the state.” 124 For the long-time growth of racially iden
tifiable black schools within the City of Richmond, it is the
State of Virginia, not Richmond alone, that must answer
to the Constitution.126 And its answer cannot be that
Richmond is an island, any more than that Prince Edward
County126 or Emporia127 was.
The second principle is that “ [t]he affirmative obligation
to seek means of- disestablishing state-imposed segrega
tion must be shared by all agencies, or agents of the state
. . . who are charged by law with, and who exercise, official
123 Brief for the United States as Amicus Curiae, in Griffin v.
County School Board, 377 U.S. 218 (1964) (O.T. 1963, No. 592),
p. 20.
124 Hall v. St. Helena Parish School Board, 197 P. Supp. 649,
658 (E.D. La. 1961) (three-judge- eourt), aff’d, 368 U.S. 515
(1962).
126 Virginia law invests state officials with extensive supervisory
and policy-making responsibilities, as well as elaborate administra
tive functions, in the operation of the public schools. See Appen
dix C, infra.
126 Griffin v. County School Board, 377 U.S. 218 (1964).
127 Wright.
81
public school functions.” 128 That principle unquestionably
reaches both the state and the county defendants here.
For many years, they had been participants in the dual
system that the District Court sought to end. If affirmative
acts, the discharge of affirmative obligations, was necessary
by them to disestablish the dual system, the District Court
could command them to act.
The contrary conception supposes, as Judge Winter’s dis
sent below puts it, that “each political subdivision is free
to operate in its own orbit” (462 F.2d, at 1076, Pet. A. 595)
—that neither is a school district obliged to look beyond
its own boundaries for available and practicable desegrega
tion techniques, nor is the State obliged to assist it to find
them. We submit that Brown clearly imposes such obliga
tions.
Within a district, the obligation of Brown is to “consider
the use of all available techniques including restructuring
of attendance zones,” with a view to “effectiveness” and to
“the greatest possible degree of actual desegregation, tak
ing into account the practicalities of the situation.” 129 The
practicalities may differ when a division line is reached,
but not the obligation to consider them. Maximum feasible
desegregation remains the objective, and the State remains
constitutionally bound to seek it. Especially where state
law and practice provide mechanisms for the ready ef
fectuation of inter-division plans,180 it would be an un-
1 2 8 Franklin v. Quitman County Board of Education, 288 F.
Supp. 509, 519 (N.D. Miss. 1968). Accord: Lee v. Macon County
Board of Education, 267 F. Supp. 458, 478-79 (M.D. Ala. 1967)
(three judge court), aff’d sub nom. Wallace v. United States, 389
U.S. 215 (1967) ; United States v. Texas, 321 F. Supp. 1043, 1056-
1057 (E.D. Tex. 1970), 330 F. Supp. 235 (E.D. Tex. 1971), modi
fied and aff’d, 447 F.2d 441 (5th Cir. 1971).
129 Davis, 402 U.S., at 37.
130 See Appendix D , infra.
82
warranted limitation upon Brown to say that they need
never be considered. In Virginia, with its history of the
use of inter-division mechanisms for the purposes of segre
gation,181 it would be a travesty.
III.
The District Court Did Not Abuse Its D iscretion
in Ordering an Inter-Division Desegregation Plan.
Thus far, we have spoken to the question of power, not
discretion. We have urged that the “broad remedial
powers” 132 of the federal district courts in school desegre
gation cases are not categorically confined by state-created
school division boundary lines. Crossing the lines may
therefore be one of the “available techniques” 133 to be con
sidered in an appropriate case.
But the absence of a “flat” or “absolute prohibition” 134
against the crossing of division lines does not mean that
decisions to cross lines should be made routinely, or with
out good cause. Ordinarily considerations of efficiency
both in the management of litigation and in the administra
tion of desegregation plans will impel the district judge
first to consider—as Judge Merhige did here—whether de
segregation can be practicably effected by a single-division
plan.
Even if he concludes that the shortcomings of proposed
single-division plans require his consideration of inter
division alternatives, he may encounter specific problems in
131 See pp. 22-24 supra; pp. 84-86 infra.
132 Swann, 402 U.S., at 27.
133 Davis, 402 U.S., at 37.
134 North Carolina Stale Board of Education v. Swann, 402 U.S.
43, 46 (1971).
83
going beyond the division that suggest the advisability of
remaining within it. These, certainly, are among the
“practicalities of the situation” that he is obliged to take
into account. Davis, 402 U.S., at 37. In the present case,
the District Court made a thorough canvass of those prac
ticalities and concluded that “Educational and Administra
tive experts have testified that the proposed [inter-division]
plan is a sound and feasible one, educationally and ad
ministratively, and the Court so finds.” (338 F. Supp., at
192, Pet. A. 432.) That conclusion is fully supported by
the record.136
136 Plainly the Court of Appeals did not reverse the District
Court for abuse of discretion in this or any other regard; its deci
sion was placed upon the ground of outright lack of legal power
to go beyond the Richmond City limits. See pp. 50-51 supra.
Nevertheless, it did express concern about three practical aspects
of the plan approved by the District Court: the size of the re
sulting consolidated division (see 462 F.2d, at 1062, Pet. A. 566),
“practicalities of budgeting and finance that boggle the mind” (see
462 F.2d, at 1068, Pet. A. 578), and an asserted disregard for
policies of Virginia law (see 462 F.2d, 1066-68, Pet. A. 575-78).
We discuss the size of the division, with particular reference to
student transportation, in notes 67, 100, supra; further matters re
lating to size appear in Appendix D, infra. The subjects of financ
ing and consistency with Virginia law are also treated in Appen
dix D. We think that examination of these materials will disclose:
(1) that the Court of Appeals’ concern for size—which is voiced in
passing, without asserting any conclusion—relates neither to prob
lems of transportation nor to problems of administration; and that
there are no such problems of significance; (2) that the finance
and budgeting problems are overstated, and represent a substitu
tion of the judgment of the Court of Appeals for that of the Dis
trict Court which—if the Court of Appeals had undertaken to
dispose of the appeal upon this ground—would exceed the scope
of appellate review of the District Court’s equitable discretion
under Swann; and (3) that the District Court’s order assiduously
follows, and is fully supported by, detailed provisions of Virginia
law except in one regard: that it overrides the veto against consoli
dation which Virginia law gives to the counties and their school
authorities, see pp. 76-77 supra. This last point is therefore not one
of practicality at all; it is a restatement of the Court of Appeals’
Tenth Amendment ground.
84
Beyond these practical considerations, it may also be
appropriate for the district judge to insist upon a strong
demonstration of need before resorting to an inter-division
plan. Settled forms of local school administration doubt
less should command substantial respect, even though,
when a clear showing is made that they “impede the dis
establishing of a dual school system, [they] . . . must fall.”
North Carolina State Board of Education v. Swann, 402
U.S. 43, 45 (1971). On the record now before the Court,
both the evidence and the district judge’s findings of need
are compelling (see pp. 5-35, 42-45 supra); and additional
factors vitiate the weight that might ordinarily be given
to the Richmond-Chesterfield-Henrico school division lines:
A. Crossings o f the Lines to P rom ote Segregation
and O ther State Interests.
As we have pointed out at pp. 22-24, 29 supra, Virginia’s
school division lines which are now erected as insurmount
able barriers against desegregation have historically “been
ignored when necessary to serve public educational poli
cies, including segregation.” (338 F. Supp., at 113, Pet.
A. 257; see also 338 F. Supp., at 83, 100, 155-161, Pet. A.
193, 231, 352-64). They “have never been obstacles for
the travel of pupils under various schemes, some of them
centrally administered, some of them overtly intended to
promote the dual system.” (338 F. Supp., at 83, Pet. A.
193.) Not only have children been assigned to schools
across those lines—most notably, black children sent to
black schools pursuant to the policy of apartheid—(ibid.;
see pp. 22-24 supra), but the entire structure of local
school-division autonomy was promptly scrapped in the
first throes of Virginia’s massive resistance to Brown, and
thereafter reassumed subject to various segregatory ex
ceptions such as tuition grants (see pp. 18-20 supra; 338
85
F. Supp., at 84, 92-95, 119-123, 138-146, Pet. A. 194, 212-20,
271-81, 313-31).
Indeed, the post -Brown history of public school organiza
tion in Virginia is characterized by extreme fluctuation
in the extent to which local school divisions determine and
delimit such matters as pupil assignment: the only con
sistent thread seems to be that the role of the divisions
waxes or wanes in whatever measure seems best suited to
preserve racial separation in the schools. This history,
which we collect in Appendix E, infra, casts the gravest
doubt upon the Court of Appeals’ conclusion that the main
tenance of the boundary lines between Richmond and the
counties has been altogether neutral and uninfluenced by
racial considerations.136 To the contrary, it sustains the
District Court’s conclusion that the extreme protectiveness
displayed by the counties in regard to their boundaries
reflects less a concern for local autonomy than a desire
to keep blacks out of the county schools.137 But, however
that may be, surely “[bjarriers which did not prevent en
forced segregation in the past [should] . . . not be held to
prevent conversion to a full unitary system.” 138 And a
concern for the integrity of school division boundary lines
that has been conveniently ignored in the service of other
interests preferred by Virginia law and practice should not
136 See note 102, supra.
137 “Considering the historic flexibility of political subdivisions
in the state and in this area in matters of pupil exchange across
political boundaries and in the cooperative operation of other pub
lic utilities, in view of the several statutory patterns—part of the
public policy of the state—under which cooperative ventures can
be undertaken, and in view of the fact that school operation in the
counties has always entailed transportation times and distances
similar to those involved in the suggested metropolitan plan, re
sistance to the proposal appears clearly to be racially based.” (338
F. Supp., at 100, Pet. A. 231.)
138 Henry v. Clarksdale Municipal Separate School District, 433
F.2d 387, 394 (5th Cir. 1970).
86
now be treated as infrangible so soon as it collides with
the federal constitutional interest in desegregating schools.
B . T h e Indurate Q uality o f Segregation in the
R ichm ond Area Schools.
On this voluminous record, the District Judge properly-
determined that the purposes of Brown required him to
look beyond the Richmond City limits in order to “elim
inate from the public schools all vestiges of state-imposed
segregation.” 139 Brown’s essential concern was the stigma
of inferiority that segregation visits on its victims, to
gether with the debilitating effect of that stigma on black
children. The “effectiveness” 140 of a decree enforcing
Brown therefore depends on whether it succeeds in rooting
out of the schools all arrangements which perpetuate the
stigma or reinforce its effects.
This is why Green focused upon “ [rjacial identification”
of schools as to the evil to be remedied. (391 U.S., at 435.)
It is why Swann recognized a presumption against one-
race schools, even in areas of preponderately one-race
occupancy. (402 U.S., at 26.) It is why Wright, harkening-
back to the language of Brown itself, took account of
“adverse psychological effect” in forbidding the secession
of white splinter districts. (407 U.S., at 466.)
In the present case, the District Court’s conclusion that
a Richmond-only desegregation plan would be “pathetically
incomplete” (see note 95, supra) rests upon its finding that
the history and conditions of the greater Richmond schools
make “both individual facilities and entire systems racially
identifiable” (see p. 43 supra). That finding was based
not merely upon the gross indications we have described
m <U e d r t - 6 \ r . S
139 Swann, 402 U.S., at 15.
140 Davis, 402 U.S., at 37.
87
above: —the enduring, entrenched resistance to Brown141
and perseverance of widespread racial discrimination142 in
a region marked by intense and increasing social and eco
nomic integration143 and racial isolation,144 where 70% and
80% black Richmond schools closely adjoin 90% white
county schools,145 and the total black school population
of Richmond is approximately 70% as compared with less
than 10% in the surrounding counties.146 It was also based
upon a multitude of details from which “identifiability—
a perception of students, faculty and community percep
tion—[in] . . . the historical context within which a school
of disproportionate composition exists”—could be inferred
(338 F. Supp., at 80, Pet. A. 187).147
Within this historical context, a desegregation plan that
left black city schools and white county schools facing each
other across the imperceptible division boundary lines sur
rounding Richmond would amount to a betrayal of Brown,
for numerous reasons.
141 Pp. 11-16, 18-22 supra.
142 Pp. 33-35 supra.
143 Pp. 25-29 supra.
144 Pp. 30-33 supra.
145 Pp. 5-11 supra.
146 P . 66 supra.
147 For example, virtually all of the schools built and opened as
black schools prior to 1954 which are still in operation remain
black. See note 151, infra. Similarly, schools intentionally con
structed after Brown to serve predominantly black or white
populations retain their initial character with few exceptions.
See pp. 16-17 supra. The professional educators whose testimony
was credited by the District Court were in accord that the schools
—and, indeed, entire school systems—were identifiable by race.
E .g . , A. 430, 437. And there can be little doubt that the community
and schoolchildren also perceive the gross racial disproportions in
the schools. See A. 1215-16.
88
(1) Whatever might be the case in systems never
segregated by law, the “white” school and the “black”
school have a plain meaning in Virginia. Before
Brown, they stood for white supremacy; after Brown,
they stood for the success and ingenuity of state offi
cials in maintaining white supremacy despite the Con
stitution. Virginia and the three Richmond area
school divisions never accepted Brown. They resisted
it by every means within their power. See pp. 11-16,
18-22 supra. “This deliberate perpetuation of the un
constitutional dual system can only have compounded
the harm of such a system.” Green, 391 U.S. at 438.
It did:
(a) Official resistance—and particularly Virginia’s
massive resistance'—to school desegregation put the
stamp of public approval upon racist attitudes148
which assumed that black separation signified black
inferiority.149 These attitudes, reinforced by eigh-
148 In NAACP v. Patty, 159 F. Supp. 503, 515-16 (E.D. Va.
1958), rev’d on other grounds sub nom. Harrison v. NAACP, 360
U.S. 167 (1959), the three-judge court described the effect of the
massive resistance legislation upon public sentiment toward school
integration:
It was in this setting [footnote omitted] that- the Acts now
before the court were passed as parts of the general plan of
massive resistance to the integration of schools of the state
under the Supreme Court’s decrees. The agitation involved
in the widespread discussion of the subject and the passage
of the statutes by the Legislature have had a marked effect
upon the public mind which has been reflected in hostility to
the activities of the plaintiffs in these cases. This has been
shown not only by the falling off of revenues, indicated above,
but also by manifestations of ill will toward white and colored
citizens who are known to be sympathetic with the aspirations
of the colored people for equal treatment, particularly in the
field of public education.
149 Dr. Robert Green, a black educational psychologist who lived
in Prince Edward County, Virginia while directing a United
States Office of Education study of the effects of that county’s
89
teen years of calculated evasion of a plain constitu
tional command, today provide the setting* for com
munity perception of the significance of neighboring
predominately-white and predominately-black public
school facilities.160
(b) The repeated pattern of conversion of for
merly white schools into predominately black schools
without more than a fleeting and unstable period of
integration161 emphasizes that this process involves
no repudiation of the dual system. Schools such as
Richmond’s 70% black facilities are not perceived
school closing (A. 1251), testified that the pronouncements and
actions of State officials in support of “massive resistance,” the
closing of the Prince Edward County schools, etc., all had a “very
long-range unhealthy and negative impact” upon black children
(A. 1261). He stated that, in the context of this history, 70%-black
Richmond schools and 90%-white county schools wouid have that
same negative impact upon black pupils (A. 1262).
160 One of the educational expert witnesses for the state and
county defendants agreed that the history of massive resistance
would affect perception of the Richmond area schools as segregated
or integrated (A. 1199), and that a child would be aware of the
predominantly black composition of the Richmond schools but not
sophisticated enough to comprehend that it resulted from the
intangible political jurisdiction boundary (A. 1215-16).
151 During the past decade and throughout the period when
“free choice” or other ineffective approaches to desegregation were
being implemented in the city and county systems, numbers of
schools have undergone substantial shifts in racial composition
from white to black (see 338 F. Supp., at 234-42, Pet. A. 524-32).
This process was not limited to Richmond schools, but is illustrated
by the increasingly black student body composition at Henrico’s
Central Gardens Elementary School (338 F. Supp., at 238, Pet.
A. 529), which in 1964-65 was an all-white school (A. 589). No
black school enrolled a substantial number of white students during
this period until the implementation of the interim Richmond plan
Sn 1970-71 and the Central Gardens pairing in 1971-72. The
Court of Appeals’ decree will increase the number of facilities
which have undergone the transition from white to black, as shown
by the 1971-72 enrollment figures for Richmond schools (338 F.
Supp., at 240-42, Pet. A. 530-32).
90
as desegregated; they are perceived merely as new
locations of segregation.
(c) Nor is this segregation seen as ended when
the Richmond City schools, after having been main
tained for years in flagrant violation of the Consti
tution, finally accede within the limits of a City
grown so black—and growing blacker—that acceding
makes but very little difference now and soon may
make none at all.152 Meanwhile, the capacity of the
suburbs to absorb whites has increased;153 whites
may live in the counties and have all the benefits of
Richmond for less than a half hour’s drive;154 and
their schools remain 91% white. Surely even the
proverbial dog would know that in this process he
has not been tripped but been kicked.
(d) The very diversity of methods by which Vir
ginia school authorities have sought to evade
Brown155 strongly reinforces the perception that a
162 See pp. 31-33, 67-68 supra.
153 See HX 24 [lots and subdivisions developed, 1947-71] ; 1IX
24-A [multi-family units, 1960-71] ; HX 25, p. 1-3; CX 21 [sub
divisions developed, 1950-70] ; 27 R. 201-02 [Chesterfield subdivi
sions developed, 1951-70],
154 See p. 25 supra.
165 In earlier sections of this Brief we have enumerated in con
siderable detail the wide range of devices by which Virginia offi
cials have sought to avoid public school desegregation: attempted
nullification of Brown by the General Assembly, school and school
system closings, removal of assignment powers from local division
boards, assignment of black students to regional schools, complex
pupil placement procedures as a prerequisite to transfer to inte
grated facilities, “free choice” plans, neighborhood geographic
zoning, construction of new schools in locations accessible only to
students of one racei (sometimes combined with the refusal to
furnish student transportation [cf. Brewer v. School Bd. of Nor
folk, 456 F.2d 943 (4th Cir.), cert, denied, 406 U.S. 905 (1972)]),
91
Richmond-only desegregation plan would marls the
ultimate success of their efforts. Having failed at
all else, 166 they have at last found the trick (with
the assistance of legislation enacted during this law
suit) :167 reliance upon school division boundary lines
to preserve the affluent suburbs as havens158 for all-
white schools.
pupil tuition grants and scholarships affording access to public
or private segregated schools, non-cooperation with HEW, etc.
See pp. 16-22 supra. To this roster will now be added, as the
result of the decision of the Court of Appeals, a rigid insistence
upon maintaining existing school division boundaries irrespective
of the containment of blacks and the impact upon desegregation.
156 See, e.g., James v. Almond, 170 F. Supp. 331 (E.D. Ya.),
app. dis’md 359 U.S. 1006 (1959) (school closing and operation—-
Governor) • Griffin v. County School Board, 377 U.S. 218 (1964)
(school closing—local board) ; Griffin v. State Board of Education,
296 F. Supp. 1178 (E.D. Va. 1969) (Tuition grants and “scholar
ships”) ; Green (free choice) ; Wright (splinter districts) ; Bradley
v. School Board, 382 U.S. 103 (1965) (faculty assignments).
167 As indicated in Appendix E, at p. 5e infra, following the
filing of the joinder motion in the present case the 1971 General
Assembly amended Va. Code Anno., § 22-30 to forbid the State
Board of Education from including more than a single political
subdivision in a school division without the consent of the school
boards and governing bodies concerned.
168 Virginia blacks tend, of course, to be poorer than Virginia
whites (PX 125) ; and living in the counties is generally more
expensive than living in Richmond. Indeed, some of the witnesses
at the trial explained the contrasting racial demographies of Rich
mond and the two surrounding counties as a result of economic
differentials (e.g., A. 167, 501, 862). The relationship had earlier
been noted by various of the consultants’ studies introduced at
the trial. For example, the authors of the 1967 SUA study per
formed on commission for Henrico and Chesterfield Counties (HX
25, pp. III-2, -5) wrote:
The outward movement of people has been from the relatively
higher income, white segment of the population . . . .
Chesterfield has a very low percentage of lower income groups,
though the percentage has been increasing. Due to the recent
92
(2) The high degree of social and economic integra
tion of the Richmond metropolitan area (see pp. 25-
29 supra) has two important implications in this con
nection :
development of the County, most of the dwelling units are
relatively new. There are few low rent facilities. For this
reason, no significant change is anticipated in the number of
low income families. For the same reason, the percentage of
non-whites in the County is expected to remain almost con
stant.
Public housing and federally-assisted, low-income, multi-family
projects are virtually all located in black areas of the City (A. 605-
11, 616-17; see also, A. 472), as are the greater number of un
skilled, low-income jobs (A. 176). In 1969, 73% of all families
in the greater Richmond area which earned less than $3,000
annually resided in the City of Richmond. They made up 11.6%
of Richmond’s total number of resident families—but 19.9% of
Richmond’s resident black families earned less than $3,000 in that
year. United States D ept , of Commerce, B ureau op th e Census,
Census Tracts, Census op P opulation and H ousing, Richmond,
Va. SMSA (G.P.O. PHC(1)-173, 1972), pp. P-31, Table P-4,
Income Characteristics of the Population: 1970, and P-45, Table
P-6, Economic Characteristics of the: Negro Population: 1970.
See also, A. 158. These families generally find housing available
to them only in the City:
93
(a) It causes residents to perceive the metropoli
tan area as the relevant community for purposes of
Richmond* Chesterfield* Henrico
Median Value, Single-
Family Dwellings on
less than 10 acres,
owner-occupied $ 15,400 $ 20,800 $ 18,100
Number of such single
family dwellings
valued at less than
$10,000 6,518 1,685 2,454
% of all such single
family dwellings valued
at less than $10,000 17.5% 11.8% 7.4%
Number of such single
family dwellings
valued at more than
$25,000 6,908 4,724 7,716
% of all such single
family dwellings valued
at more than $25,000 18.5% 33.1% 23.4%
Median contract rent,
renter-occupied dwellings
except single-family
dwellings on more than
10 acres $78 $99 $112
* As with other 1970 Census statistics referred to in this Brief,
see notes 44, 52, supra, the figures for Richmond and Chesterfield
County are affected by the 1970 annexation. Inasmuch as the
development of Chesterfield County is relatively recent (see com
ments from SUA study quoted above, this note), it is likely that
absent the annexation, the median dwelling value and proportion
of low-valued homes in Richmond would have been somewhat lower
and those figures for Chesterfield County somewhat higher.
Source: U nited States Dept , of Commerce, B ureau of the
Census. Census Tracts, Census of P opulation and H ousing,
Richmond, Va. SMSA (G.P.O. PHC(1)-173, 1972), p. H-l, Table
H-l, Occupancy, Utilization and Financial Characteristics of Hous
ing Units: 1970
Lack of public transportation in the counties also operates to
exclude low-income groups (A. 862).
94
the racial identifiability of schools.159 Boundary lines
that are functionally insignificant in the lives of
citizens160 are not seen as neutral, non-racial ex
planations for the continued existence of black
schools and white schools in close proximity on
either side of the lines.161
(b) It enables whites to live in Richmond for all
practical purposes without sending their children to
a Richmond-only desegregation plan—particularly in
schools with the black children of Richmond. Thus
the.context of traditional Virginia racial attitudes
that have been reinforced by eighteen years of of
ficial resistance to desegregation162—provides a
169 See, e.g.:
. . . I don’t see how in this metropolitan area you can separate
this issue out. Continuing along the way in which the Rich
mond school district is developing and which Plan III is
likely to further promote, is a school district which would
he highly identifiable as a black school district. . . . The fact
that you would have in the counties what essentially would
be identifiable as a white school system, it is going to be quite
obvious to the pupils in the metropolitan area that in a sense
you continue to have a dual school district. (A. 437.)
See also, A. 374-76, 445, 562-63.
160 The lines “coincide with no tangible obstacles and are un
related to any administrative or educational needs.” (338 F. Supp.,
at 83, Pet. A. 193.) Their location is imperceptible and sometimes
bewildering.) (See pp. 68-70 supra.)
161 See p. 67 supra.
162 Two decades of official racism expressed in word and deed
by Virginia politicians and administrators, see B. Muse, V irginia’s
Massive R esistance (1961); W. Gates, T h e Making of Massive
R esistance (1964); pp. 18-22 supra, has had its effect upon
Virginia’s white population. See note 148 supra. We have pre
viously remarked upon the continuing practice of housing dis
crimination against blacks by private sellers and real estate brokers
(see pp. 33-35 supra). We also note the ways in which the white
citizens of Richmond, Chesterfield and Henrico have consistently
exercised any options made available to them so as to avoid
95
strong incentive to white flight and a strong dis
incentive to white immigration. The expectable re
sponse of Virginia whites to these stimuli163 com
pletes the vicious circle that began with, and now
intensifies, the perception on the part of blacks and
whites alike that the dual system is being continued
behind the shelter of school division lines.
(3) Compelling evidence sustains the District
Court’s findings that racial discrimination in housing
is pervasive throughout the greater Eichmond area.164
This discrimination—some of it private, some fostered
by governmental agencies166—was properly viewed by
the District Judge as a factor in his decision that a
intercourse with blacks: For example, under “free choice” plans,
in each school division, whites remained in traditionally white
schools or relocated if those schools underwent more than token
integration (see pp. 11-16 supra; note 151 supra) ; and after
the interim plan was implemented in Eichmond for the 1970-
71 school year, white Chesterfield parents of students assigned
to Richmond schools pursuant to the 1970 annexation decree suc
cessfully sought to re-enroll their children in Chesterfield schools
(A. 485-88). This prevalent climate of resistance to school desegre
gation is reflected in, and encouraged by, the hostile statements of
incumbent public officials (see A. 671-75). Given the decision of
the Court of Appeals establishing school division lines as absolute
barriers to pupil assignment for desegregation, it is hardly im
probable (especially in light of the varied and ingenious anti
integration tactics employed by the Commonwealth in the past,
see note 155 supra), that white parents will now leave Richmond,
new migrants to the area will tend even more than in the past to
settle in the counties rather than the City, and additional exclu
sionary measures strictly limiting the number of blacks entering
the counties will be devised.
163 See pp. 30-35 supra.
164 See pp. 33-35 supra. The Court of Appeals accepted these
findings (462 F.2d, at 1065, Pet. A. 572), and thought it “deplor
able” that “there has been housing discrimination in all three
units” (462 F.2d, at 1066, Pet. A. 575). See also note 101, para. 3,
supra.
165 rpjjg Court 0f Appeals also accepted the District Court’s
findings of governmental involvement in housing discrimination.
(462 F.2d, at 1065, Pet. A. 572.)
96
desegregation plan limited to the boundaries of the
City of Richmond would be ineffective:
(a) Widespread discrimination of this sort attests
eloquently to racial attitudes in whose light the con
tinuation of predominantly black Richmond school
facilities will be perceived as the perpetuation of a
dual system of inferior Negro and superior white
schools.
(b) Such discrimination, together with other pat
terns of racially discriminatory behavior by whites,166
forcefully supports the District Court’s predictive
judgment that a desegregation plan confined to Rich
mond City would accelerate the development—al
ready well advanced167—that is turning the City into
an all-black enclave. The court could therefore con
clude, as it did, that any plan not embracing the
counties would “contain the seeds of [its] . . . own
frustration,” 168 and that “the only remedy promising
of immediate success—not to speak of stable solu
tions—involves crossing [the county] . . . lines.” 169
(c) In the context of a region so seamed with
racial discrimination, it was proper for the District
Judge to take account of the tendency of a Rich
mond-only plan to encourage exclusionary practices
in the counties,170 with the result that school division
166 See note 162, supra.
167 See pp. 30-33, 67-68 supra.
168 338 F. Supp., at 103, Pet. A. 237.
169 338 F. Supp., at 100, Pet. A. 230.
170 By promising whites safe haven behind school district lines,
the Fourth Circuit’s decision will unquestionably encourage them
to seek such havens out and, once there, to employ every public
and private means at their disposal to keep them as white as
possible. Some of these means (such as rejection of school district
consolidation proposals, of public housing projects, of zoning
variances for uses threatening to attract black employees) are
97
boundary lines would be used as bulwarks of segre
gation to lock Richmond’s black population still more
tightly into the self-perpetuating isolation of the
center-city ghetto.171
“The weighing of these factors to determine their effect
upon the process of desegregation is a delicate task that
is aided by a sensitivity to local conditions, and the judg
ment is primarily the responsibility of the district judge.”
Wright, 407 U.S., at 466. Here, as in Wright, the District
Court’s conclusion that to treat Richmond and the counties
as separate universes for the purposes of Brown would
“actually impede the process of dismantling the existing
dual system” (ibid.) must be respected.172
essentially undetectable; others (such as inflation of property
values by the premium paid to purchase the assurance of all-white
schools) are innately uncorrectable; still others (such as intimida
tion of prospective black occupants) are correctable in theory but
not in fact. It is one thing, as this Court said in Swann, 402 U.S.,
at 22, not to load a school case with more baggage than it can
carry; but it is quite another, as the Fourth Circuit has done here,
in deciding a school case, to throw the baggage out in the road
where it will foreseeably cause these sorts of “accidents.”
171 The processes of containment, by which blacks are essentially
confined to the urban center of the metropolitan area, are developed
in the record and summarized in Appendix F, infra.
172_ The District Judge in the present case undertook an extraord
inarily careful and thorough analysis of all the evidence in reach
ing his determination. A voluminous record was made in extensive
hearings because of the court’s desire to hear any evidence which
the parties considered relevant (e.g., 26 R. 143). The court then
undertook to make detailed, exhaustive factual findings so that
the basis for its legal ruling would be clear, and in the course
of those findings explicitly resolved testimonial conflicts (338 F.
supp., at 115-16, Pet. A. 263; see also, 338 F. Supp., at 202, 203,
206, Pet. A. 456, 466). Throughout the proceedings, the court
declined to reach judgments without thorough evidentiary presen
tations (e.g., 325 F. Supp., at 830 n. 1, Pet. A. 110; 51 F.R.D., at
54-55, Pet. A. 143; 338 F. Supp., at 193, Pet. A. 435) which would
familiarize the court with relevant local conditions. And the court
considered the matter for four months after the close of the proof
before rendering its ruling. In sum, the history of these proceed
ings and the record reveal a most intensive and comprehensive
consideration of all facts and circumstances by the local district
judge.
98
The present case is, indeed, a far stronger one for sus
taining the District Court’s discretion than was Wright.
For, compared with the staggering city-county racial dis
parities and other intractable problems besetting the court
below in its efforts to desegregate the public schools in
th Richmond area, the difficulties involved in desgregating
Greensville-Emporia pale into insignificance. To be sure,
in Wright “the city and county constituted but one unit
for the purpose of student assignments during the entire
time that the dual system was maintained.” (407 U.S.,
at 459-460). But the relevance of that fact in the Greens
ville-Emporia context was to establish that the city and
county were appropriately perceived by all concerned as
a single educational community within which schools of
differing racial concentration would be racially identifiable.
Here, the fact of previous political unification is absent,
but its place is supplied by the several factors itemized
above, on the basis of which the District Court found fac
tually that black Richmond schools and white county schools
would be racially identifiable within the historical and
practical context of metropolitan Richmond.
Nor is it important that Wright involved an affirmative
act of withdrawal by the city, whereas here the counties
are merely holding aloof from Richmond along previously
established boundary lines. That difference might be sig
nificant if the issue in Wright and in the present case
were one of constitutional violation. But, as we have
seen,173 it is not. The question in both cases is whether
school authorities have adequately met their obligation to
abolish dual systems formerly maintained in unquestion
able violation of the Constitution. Such an obligation
comports a duty of affirmative action ;174 and, in a situation
where affirmative action is required, the plea of mere inac
tion is no defense.
173 Pp. 56-58 supra.
174 See pp. 79-80 supra.
99
CONCLUSION
The power of a federal district court to cross state-
created school division lines where necessary to enforce
the federal constitutional rights declared in Brown is
manifest. On this record, in view of the overwhelming
problems involved in dismantling the dual school system
of Richmond, Virginia—problems which, exacerbated by
the eighteen-year resistance of Virginia state and local
school officials to Brown,175 assumed “a greater magnitude
176 A variety of changing circumstances since 1954, some flowing
directly from Virginia’s course of resistance to Brown and others
which commenced independently but have become inextricably
entwined with the former, have created new obstacles to the elimi
nation of school segregation in the greater Richmond area through
traditional means. The major factors have been discussed previ
ously in separate fashion and we shall attempt here merely to
collect and summarize them.
(a) The striking demographic change within Richmond since
1954 (pp. 30-33 supra) has altered the guidepost by which sub
stantial interna] disproportion may be gauged from less than
50% black to about 70% black. The same period of time has also
witnessed a contrasting reduction in black proportion among the
county school systems. If, as this Court suggested in United States
v. Scotland Neck City Board of Education, 407 U.S. 484, 490
(1972), the District Court was obliged to consider the likelihood
that proposed plans would cause resegregation of the public schools,
then he could not fail to perceive the significant danger that
implementation of separate plans for the three divisions would
result in such resegregation.
(b) Concurrently with the racial changes just noted, the coun
ties surrounding the City of Richmond became increasingly urban
ized as they grew significantly in population after 1950. The
entire area acquired a new character of social and economic unity
(see pp. 25-29 supra). As relationships between county residents
and city or vice versa) became more complex, it beeame increas
ingly difficult in a realistic, practical, sense for the district court
to evaluate a plan for one division without considering its impact
upon the others. Cf. Wright, at 468. See also pp. 92-95 supra.
(c) The persistent efforts of public officials throughout the
period to preserve segregation at all costs (see pp. 18-24 supra)
generated the forces described at pp. 88-91 supra, which made
the elimination of racially identifiable schools through piecemeal
approaches all the more difficult.
(d) Finally, the harm engendered by having had yet another
generation of schoolchildren socialized, by their1 experiences, to
100
iii the present than existed at an earlier date” (338 F.
Snpp., at 91, Pet. A. 210)—the District Judge did not
abuse his discretion in the exercise of that power. The
judgment of the Court of Appeals should therefore be
reversed.
Respectfully submitted,
J ack Green b er g
J a m es M. N a b r it , III
N orm an J . C h a c h k in
10 Columbus Circle
New York, New York 10019
Louis R. L ucas
525 Commerce Title Building
Memphis, Tennessee 38103
W il l ia m L. T aylor
Catholic University Law School
Washington, D.C.
J a m es R. O l p h in
214 East Clay Street
Richmond, Virginia 23219
W il l ia m T. C o lem a n , J r,
Fidelity-Philadelphia Trust
Building
Philadelphia, Pennsylvania 19110
M. R a l p h P age
420 North First Street
Richmond, Virginia 23219
A n t h o n y G. A m sterdam
Stanford University Law School
Stanford, California 94305
Attorneys for Petitioners
separatism (and this generation having been told that the law
of the land forbade that separatism), had to be taken into account
by the district court. It is in this context, in particular, that the
district court’s concern to avoid “sprinkling” or token desegrega
tion is significant.
APPENDICES
la
APPENDIX A
The Constitutional Basis o f the District Court’s
Desegregation Order
Throughout its opinion, the Court of Appeals repeatedly
treats the District Court’s decree as one designed to
achieve “racial balance” rather than constitutionally com
pelled desegregation (see 462 F.2d, at 1060, 1062-64, 1068,
1069, Pet. A. 562, 565, 567-70, 578-79, 580). Closely in
spected, however, this does not mean what it appears to
say. It does not mean either that the District Court under
took to pass beyond the pale of “constitutional violation”
into the fields of “educational policy,” Swann, 402 U.S., at
16, or that the District Court’s decree in fact strayed into
the educational policy field.
If the Court of Appeals did think that the District Judge
was proceeding on some theory of obligation or power to
dictate a non-constitutionally-commanded “racial balance,”
then its discussion of state school division organization,
Virginia’s supposed law and tradition of local school ad
ministration, the Tenth Amendment, and about ninety-nine
percent of its twenty-page opinion for reversal was un
necessary. Reversal was compelled by one sentence quoting
Swann for the obvious proposition—which the District
Court here manifestly understood—that “judicial powers
may be exercised only on the basis of a constitutional
violation,” Swann, 402 U.S., at 16. The contradistinction
between mere “racial imbalance” and “state-imposed segre
gation in violation of Brown I,” Swann, 402 U.S., at 17-18,
did not escape the District Judge, however; and the Court
of Appeals could not conceivably have thought it did. From
the inception of his opinion and throughout all that follows,
2a
Appendix A
Judge Merhige makes uncontestably clear what he is hold
ing:
The Court concludes, in the context here presented,
that the duty to take whatever steps are necessary to
achieve the greatest possible degree of desegregation
in formerly dual systems by the elimination of racially
identifiable schools is not circumscribed by school divi
sion boundaries created and maintained by the co
operative efforts of local and central State officials.
The Court also concludes that meaningful integration
in a bi-racial community, as in the instant case, is
essential to equality of education, and the failure to
provide it is violative of the Constitution of the United
States. [338 F. Supp., at 79-80, Pet. A. 185-86]
The Court of Appeals concedes that the District Court
disclaimed any intention of imposing a “fixed racial quota”
by its adoption of the Richmond School Board’s desegrega
tion plan (462 F.2d, at 1063-64, Pet. A. 569-70). But it
concludes that “the adoption of the Richmond Metropolitan
Plan in toto by the district court, viewed in the light of
the stated reasons for its adoption, is the equivalent, de
spite disclaimer, of the imposition of a fixed racial quota”
(462 F.2d, at 1064, Pet. A. 570). The key to this sentence
is the Court of Appeals’ own view of what the “adoption
of the Richmond Metropolitan Plan in toto” implied:
namely, that, insofar as the plan went beyond the Richmond
city line, it went beyond the Constitution. For, apart from
that view, it could not be said—and the Court of Appeals
does not say—that the “use made of mathematical ratios
[in the Metropolitan Plan] was . . . more than a starting
point in the process of shaping a remedy,” Swann, 402
U.S., at 25, or that the District Court required “as a matter
3a
Appendix A
of substantive constitutional right, any particular degree
of racial balance or mixing,” id., at 24.
To the contrary, the record reflects that the task the
District Court set for itself was not the elimination of
“racial imbalance,” but the lasting eradication of vestiges
of state-imposed segregation; and the particular means
embodied in the District Court’s decree, i.e., adoption of
the Richmond School Board’s Metropolitan Plan, resulted
from the shape given the litigation by the parties, not
the Court.
In the first place, the Metropolitan Plan originated with
the Richmond School Board—not the District Court—as
a means of effectively desegregating schools (A. 247-49).la
While the outlines of the plan were devised, to be sure, with
a consciousness of the overall racial proportions of students
in the three divisions together, mathematical balance was
not a goal; rather, the plan was shaped by practical con
siderations. For example, percentages of black and white
students in Subdivision Six (southern Chesterfield County)
differed significantly from the overall ratio, and from those
of the other subdivisions, a fact accounted for by the low
density of population and greater geographical area of
the subdivision (A. 205, 231-32). Hypothetical pupil ex
changes between schools within a subdivision or immedi
ately adjacent thereto, to be based on a birthday lottery,
were selected by a computer programmed to equalize bus
rides rather than to achieve precisely the same percentage
of black and white students at each school (A. 213-18).
And the results reflect variances in projected ratios at in-
la Dr. Little testified that he had not voiced the possibility of a
metropolitan school system in the Richmond area until the duty to
effectively desegregate schools had been made unmistakably clear
by the district court’s rejection of the HEW plan (see pp. 36-37
supra) (A. 264).
4a
dividual schools ranging between 20% and 40% black in
all subdivisions (RX 63; A. 201-06, 214).
Second, the same awareness of the overall ratio which
guided Dr. Little in the preparation of the Richmond
Board’s plan characterized the response of Henrico County
educators to HEW’s 1971 directive to desegregate Central
Gardens Elementary School: the school was clustered
with four predominantly white facilities so that each would
enroll about 30% black students, rather than being paired
with a single white facility (which would have resulted in
creation of two majority-black schools) in order to develop
a stable desegregation plan (A. 592-95, 970-71).
Third, the Richmond School Board’s Metropolitan Plan,
which the district court approved, was the only plan of
inter-division desegregation put before the court by any
of the parties. (See Appendix B infra.) None of the State
or county defendants has ever suggested a plan which
would, for example, result in greater variances from the
overall ratio by involving fewer schools.
The district court’s opinon, from, its beginning to its
end,2a consistently focuses upon the elimination of racially
identifiable schools, not the achievement of racial balance.
2a E.g., 338 F. Supp., at 79-80, Pet. A. 185-86:
. . . achieve the greatest possible degree of desegregation in
formerly dual systems by the elimination of racially identifi
able schools . . .
. . . great disparities in 1971 racial composition, making both
individual facilities and entire systems racially identifiable
338 F. Supp., at 230, Pet. A. 519-20:
While the viable racial mix contemplated by the plan is edu
cationally sound and would indeed result in a unitary system,
variations from that suggested viable mix may be unavoidable.
All parties are admonished that it is not the intention of the
Court to require a particular degree of racial balance or
mixing. If in the implementation of the plan improved modifi
cations seem appropriate, the Court stands ready to entertain
them.
5a
Appendix A
The significance of the court’s own analysis is even greater
than in the normal case, for the district judge here was
particularly sensitive to the impact of racial disproportion
upon desegregation plans—also having been the district
judge in Wright v. Council of the City of Emporia, 407 U.S.
451 (1972).
Finally, the Court of Appeals’ portrayal of a district
judge bent upon attaining an artificial, absolute “racial
mix” seems at least inconsistent with the district court’s
disinclination to reach out to include Hanover County in a
greater Richmond area desegregation plan (338 F. Supp.,
at 193, Pet. A. 435).
lb
APPENDIX B
The Basis o f the District Court’s Approval
o f Consolidation as a Means o f Inter-
D ivision Desegregation
As indicated in footnote 66 to the body of the Brief, dur
ing the course of pretrial proceeding's after joinder of the
state and county defendants, counsel for the Richmond
School Board announced to the court and to all parties
that Richmond would present a metropolitan desegregation
plan as a part of its case (see 34 R., 4/16/71 Tr. 34-36).
The District Court thereupon directed that the Richmond
proposal be made available to counsel in advance of the
commencement of the hearings, so that it could be examined
by them and so that the state and county defendants could
suggest alternative forms of relief more acceptable to
them if relief were to be granted (A. 136-42). The court
suggested that administrators from the three school di
visions confer for the purpose of devising the best form
of inter-division plan (A. 141). However, despite a writ
ten invitation from counsel for the Richmond School
Board to counsel for the County Superintendents, no meet
ings were held, nor did the county systems’ administra
tors make any attempt to devise their own alternatives
(A. 1009-10).
Among all the parties, only the Richmond School Board
offered a plan, and it was this Richmond School Board
plan calling for consolidation that the District Court even
tually embodied in its opinion and order. Cf. United States
v. Board of Education of Baldwin County, 423 F.2d 1013
(5th Cir. 1970). However, the District Court did not
merely accept whatever was put before it. It expressly
found the plan feasible (338 F. Supp., at 191, Pet. A. 431-
2b
Appendix B
32) after receiving not only the testimony of its designer
that the consolidation form of desegregation plan was
selected for reasons of economy and efficiency (A. 195,
197-98, 240) but also information concerning the success
ful functioning of an existing Virginia division (Fairfax
County and City) which enrolled more students than pro
posed for the new division in the Richmond Board’s plan,
and which utilized the same sort of decentralized sub-
districting proposed by that plan (A. 481-82, 1045). Fur
ther, the District Court did not simply approve the plan
and direct its implementation. It required a lengthy, de
tailed and specific planning process to be carried out
under the supervision of the State Board of Education,
with periodic reporting to the court well in advance of
scheduled implementation, to insure that the desegregation
plan could and would be smoothly implemented (338 F.
Supp., at 246-47, Pet. A. 539-43). Most important, the
District Court emphasized its readiness to consider modi
fication of its order, and the plan, in any respect:
The court’s opinion and order state that “with the cooper
ative efforts of the educators within the proposed Metro
politan Plan, perhaps an even better plan wall emerge”
(338 F. Supp., at 115, Pet. A. 262); that the Court
stands ready at any time to consider any proposed modi
fication of the plan to be approved” (338 F. Supp., at 230,
Pet. A. 519; see also, 338 F. Supp., at 193, Pet. A. 435);
and that the reason why the court finds it “necessary . . .
not to await any proposed modifications, but to order the
plan to be implemented” is in order that “a metropolitan
school system [providing effective desegregation] will be
in effect for the commencement of schools in September,
1972” (338 F. Supp., at 115, Pet. A. 262). None of the
state and county defendants has ever availed itself of the
3b
Appendix B
opportunity to present the District Court with an inter
division desegregation plan based on some other method
than consolidation. Although these defendants intimated
a wish to do so in their stay application to the Court of
Appeals (A. 1347-48), they took no steps in that direction
even after the Court of Appeals directed continuation of
planning toward ultimate effectuation of the Richmond
Board’s plan pending determination of the appeal. (Pet. A.
553-56).
lc
APPENDIX C
The Role o f Virginia State School Authorities
in School Administration and Policy Making
The Virginia State Board of Education and the State
Superintendent of Public Instruction are responsible for
the general supervision of all public education in the State.
Va. Code Anno § 22-2 (Repl. 1969). By law and in practice,
the State Board establishes educational policy in a wide
variety of areas and its mandates are carried out by the
State Superintendent of Public Instruction and the staff
of the State Department of Education. In addition, the
persuasive power of the State Board of Education as
Virginia’s leading educational institution is great.
The Virginia Constitution itself, after providing that
“[t]he general supervision of the public school system shall
be vested” in the State Board of Education, Article VIII,
Section 4, lists as the first of the powers and duties of the
Board:
Subject to such criteria and conditions as the General
Assembly may prescribe, the Board shall divide the
Commonwealth into school divisions of such geographic
area and school population as will permit the realiza
tion of the prescribed standards of quality and shall
periodically review the adequacy of existing school
divisions for this purpose.
Article VIII, Section 5a.lc
lc The State Board never had an opportunity, after enactment of
the new Constitution, to examine the adequacy of school divisions
because the General Assembly of Virginia, with knowledge of pos
sible impact on this lawsuit (A. 942, 944), immediately required
that every city and county be named a separate school division.
Va. Code* Anno. §22-30 (Supp. 1972). Standards of quality in
2c
Appendix C
By statute or constitutional provision the State Board of
Education must establish minimum criteria for local school
divisions: it describes the qualifications for division super
intendents, Ya. Code Anno. §22-31 (Repl. 1969); it estab
lishes the minimum salary for those officials (which cost
is shared by the State and the local division), Va. Code
Anno. § 22-37 (Supp. 1972); it establishes the minimum
length of the school year for which a local division must
operate in order' to be eligible for State aid, Ya. Code
Anno. §22-117 (Supp. 1972); it establishes the minimum
number of pupils required to operate a school, Ya. Code
Anno. § 22-6 (Bepl. 1969); it issues bylaws and regulations
governing pupil transportation, Ya. Code Anno. § 22-276
(Repl. 1969); it sets rules and regulations for high schools,
Ya. Code Anno. § 22-191 (Repl. 1969); it prescribes text
books, Ya. Code Anno. §§ 22-295, et seq. (Repl. 1969); and
it certifies teachers for employment by local divisions, Va.
Code Anno. § 22-202 (Repl. 1969).
The State Board of Education and officers of the State
Department of Education perform other functions with
direct effect upon the conduct of local educational systems:
the State Board may appoint division superintendents in
the event of vacancies which are not promptly filled by
division boards, Ya. Code Anno. § 22-33 (Supp. 1972); the
Virginia Public School Authority, successor to the Literary
Fund, creates a market to permit school expansion by
purchasing school district bonds, Va. Code Anno. §§ 22-29.2
education were adopted by the State Board in 1971 (SX 8). By
statute, local divisions are required to levy a school tax sufficient
to maintain those standards, Ya. Code Anno. §22-126.1 (Supp.
1972). The State Board of Education through the State Attorney
General may compel appropriation of and sufficient funds to meet
the standards, Ya. Code Anno. §22-21.2 (Supp. 1972).
3c
Appendix C
to 22-29.15 (Supp. 1972) ;2° the Superintendent of Public
Instruction must approve all school building plans and
specifications, Va. Code Anno. §22-152 (Eepl. 1969), and
prepares model specifications and plans for use by local
divisions, Va. Code Anno. § 22-166.1 (Repl. 1969) ;So indeed,
the State Board “is authorized and required to do all things
necessary to stimulate and encourage local supervising-
activities and interest in the improvement of the elementary
and secondary schools . . .” Va. Code Anno. § 22-21 (Repl.
1969).
Virtually the only area related to education in which the
State Board and Department did not have, or would not
accept, responsibility and leadership was the desegregation
of the public schools. The assistant State Superintendent
who served as the liaison between the United States Depart
ment of Health, Education and Welfare and the State
Education Department declined to express an opinion as
to whether strong support for compliance with the law on
the part of State Education officials would not have eased
the problems faced by local school systems in meeting their
affirmative constitutional obligations (A. 699-700). But the
Chairman of the Richmond School Board felt that if the
State Board had led the way, Richmond (and presumably
other school districts) would have complied (A. 911-12).
2c The State has also made special appropriations for school con
struction purposes. See Va. Code Anno. §22-146.1 (Repl. 1969).
30 See SX 4.
Id
APPENDIX D
The Practical Operation o f the District Court’s
Desegregation Order
The detailed order of the district court requires execution
of the various steps necessary to consolidate the Richmond,
Chesterfield and Henrico school divisions in order to im
plement the approved plan of school desegregation (338
F. Supp., at 244-46, Pet. A. 536-40). It is noteworthy that
the entire process is completely in accord with, and guided
hv, existing Virginia law and practice. No part of the
Richmond School Board’s plan required the district court
to ignore policies and procedures established by Virginia
statutes.
Under Virginia law at the time of the district court’s
decree14 two or more school divisions may be designated a
single school division by request of their school boards and
the governing bodies of the political jurisdictions which
they serve, upon approval of the State Board of Education
(Va. Code Anno., §22-30 (Supp. 1972)). The district court’s
order requires the defendant county school boards and
Boards of Supervisors to make such a request, and the
State Board to approve it (338 F. Supp., at 245, Pet. A.
538). Virginia law also provides that when such a single
division is created, composed of more than one political
subdivision, it must be operated and administered just as
proposed in the Richmond School Board’s plan: under one
school board responsible for the entire area, with one super
intendent, and on a unified basis (Va. Code Anno., §22-100.1
(Supp. 1972)).
Virginia statutes specify all of the relevant mechanisms
for creation and administration of the consolidated divi-
14 See Appendix E infra.
2d
Appendix D
sion. The number, term, salary, and method of appointing
school board members is established by Virginia law, Va,
Code Anno., §§22-100.3, -.6 (Supp. 1972); Va, Code Anno.,
§22-100.4 (Eeply 1969)). The school board is given corpo
rate status (Va. Code Anno., §22-100.5 (Repl. 1969)) and
authorized to receive title to all property formerly belong
ing to the school boards of the individual divisions which
were consolidated (Va, Code Anno., §22-100.7 (Supp.
1972)). The district court’s order directs composition of a
school board and transfer of school property to the new
board (338 F. Supp., at 245, Pet. A. 539).
Virginia statutes settle the most important potential fi
nancial dispute affecting the operation of a consolidated
division by requiring the pro rata allocation of both capital
and operating costs (Va. Code Anno., §22-100.9 (Supp.
1972)). The State Board of Education is given authority
to promulgate such other financial regulations as may be
appropriate, and to designate a fiscal officer for the com
bined division should the local agencies be unable to agree
on a selection prior to consolidation (Va, Code Anno.,
§§22-100.8, -.10 (Repl. 1969)). (See 338 F. Supp., at 24fi’
Pet. A. 538.)
In all of these respects, the district court’s decree re
quires nothing more—or less—than compliance with Vir
ginia’s educational policy as established in its statutes.
The remaining portions of the decree (338 F. Supp., at
246-48, Pet. A. 540-45) are more typically found in federal
court desegregation decrees: they require that the defen
dants fill in the details of the plan by making specific pro
posals for administrative structure, pupil and faculty as
signment, transportation routes, etc. The decree also invites
submission of such modifications of the Richmond School
Board’s plan as may be desired by the state defendants or
3d
Appendix D
the governing board of the new school division (338 F.
Supp., at 246, Pet. A. 541).
The consolidated system contemplated by the Richmond
School Board’s Metropolitan Plan is neither unique to
Virginia practice nor foreign to the experience of the de
fendants in the case. In addition to state officers’ familiarity
with public education in Virginia, the current Superinten
dent of Schools of Chesterfield County came to his present
position after having served as a supervisor for one ad
ministrative subdivision of the Fairfax City-Fairfax County
school system, which enrolls over 133,000 students (A. 481-
82, 491-92).
The Court of Appeals’ principal practical objections to
the plan are that (1) the new division would be large (the
second largest in the state), and (2) it would be funded by
the governing bodies of three separate political subdivi
sions. (462 F.2d, at 1062, 1068, Pet. A. 566, 578.) Further
matters relating to size are set forth in footnotes 67 and
100 to the body of the Brief. Fiscal dependency upon three
local political jurisdictions, rather than one, (1) represents
a difference only in degree, not in kind, from the more
general predicament of Virginia school divisions because
they all lack independent taxing authority;23 and (2) is
apparently thought workable by Virginia lawmakers, since
it characterizes the consolidated divisions for which Vir
ginia law provides. Significantly, the new Constitution of
2a Indeed, the expert witnesses who criticized the Metropolitan
Plan because the new school division would be funded by three
political subdivisions also expressed the view that all Virginia school
divisions should be given independent taxing authority (A. 1085,
1128, 1176). One said he had not made any study to determine if
financial problems of the sort he envisioned had developed in the
operation of joint schools for black students, funded by two or
more political jurisdictions, in Virginia (A. 1248).
Appendix D
Virginia, adopted in 1971, provides a mechanism whereby
division boards and local governing bodies of political sub
divisions may be required to appropriate sufficient funds
as will allow school divisions to meet the minimum stan
dards of quality in education adopted by the State Board
of Education (A. 555; see note lc, supra).
le
A PPEND IX E
T he H isto ry o f Localism an d C entralism
in V irginia E duca tiona l A dm in istra tion
and Policy
The Court of Appeals’ opinion takes the view that pub
lic education in Virginia has always been a matter of purely
local concern:
The power to operate, maintain and supervise public
schools in Virginia is, and has always been, within
the exclusive jurisdiction of the local school boards
and not within the jurisdiction of the State Board of
Education. School Board of Prince Edward, County
v. Griffin, 204 Va. 650, 133 S.E.2d 565 (1963). Indeed,
the operation of public schools has been a matter of
local option. See Griffin v. School Board of Prince
Edward County, 377 U.S. 218 (1964). (462 F.2d, at
1067, Pet. A. 576.)
We here examine that conclusion in some detail, because
it seems to us that the Court of Appeals attributes to
Virginia a policy of individual school-division sanctity
that does not exist. See also Appendix C, swpra.
Virginia’s public schools were, at the outset, entirely
local in character and operation. The earliest education
statute of the Commonwealth (1797) merely authorized
county officials to construct and operate schools with rev
enues from county taxes. Not until 1869 did the Virginia
Constitution and laws create “school districts” and require
the establishment of a State-wide public school system. See
Board of Supervisors v. County School Board, 182 Va. 266,
268-69, 275, 28 S.E.2d 698, 699, 702 (1944). At the same
time, however, a policy of segregation in the public schools
2e
Appendix E
was adopted and enforced on a State-wide basis (see note
25 to the body of the Brief).
The subsequent development of Virginia’s educational
system has been marked by increasingly larger units of
administration and operation as well as the development
of State institutions to regulate and standardize educa
tion.10 Indeed, as early as 1962, a federal district court
concluded that a county’s public schools were “primarily
administered on a statewide basis. A large percentage of
the school operating funds is received from the state. The
curriculums, school textbooks, minimum teachers’ salaries,
and many other school procedures are governed by state
law . . . . ” Allen v. County School Bd., 207 F. Supp. 349,
354 (E.D. Va. 1962).20
However, the actions of Virginia officials, including state
educational authorities, have made manifest the hierarchy
le In 1922 the General Assembly abolished the prior system of
separate school districts congruent with magisterial (county sub
unit) districts following the recommendation of the State Super
intendent of Public Instruction that this be done in order to elim
inate “ [pjurely artificial differences” among the various districts.
Annual Report of the State Superintendent, 1917-18, at 14 (PX
124). About the same time, the legislature established the policy
of “school divisions” staffed by a State official as Superintendent
(whose salary was to be shared between local jurisdictions and the
State). Although the State Board of Education did not exercise
the authority it had prior to 1971 to place more than one “district”
in a “division,” it has consistently supported consolidation into
larger operating units. In 1969, the Board said:
The State Board, therefore, has favored in principle the con
solidation of school divisions with the view to creating admin
istrative units appropriate to modern educational needs. The
Board regrets the trend to the contrary, pursuant to which
some counties and newly formed cities have sought separate
divisional status based on political boundary lines which do
not necessarily conform to educational needs. (RX 82)
2e The current role of State authorities in Virginia is described
in Appendix C supra.
3e
Appendix E
of values when the need to maintain segregation conflicted
either with the supposed commitment to localism or with
the increasingly centralist tendency of educational admin
istration. For example, the State Board of Education did
not avail itself of its authority to consolidate separate
school districts into single school divisions despite avowed
State policy favoring consolidation; almost without excep
tion, the State Board joined only consenting districts at
their request.3® On the other hand, state authorities ac
tively endorsed and facilitated the establishment and oper
ation of joint schools for blacks which drew their students
from within several separate school districts and over dis
tances which sometimes required the black children to
board at the school during the week. (See pp. 22-23 supra.)
With the express sanction of state authorities, county
school systems before and after Brown sent their black
resident pupils to other school divisions (including some
in other States) and paid tuition for them (see pp. 23-24
supra).
The State showed the most blatant disregard for its sup
posed tradition of local public education in its reaction to
the Brown decision. The General Assembly of Virginia
restructured control of education in the Commonwealth,
subjecting all phases of school operation to centralized
control and direction in an effort to maintain pupil seg
regation; the Pupil Placement Board was established to
keep control of all Virginia public education in Richmond
(see pp. 19-20 supra). These and other devices effectively
prevented any local school divisions from voluntarily un
dertaking desegregation in accordance with Brown, and
restricted the elimination of segregation to those school
divisions involved in federal court litigation.
8e See note le supra.
4e
Appendix E
When the devices of extreme centralization represented
by the school closing and pupil assignment laws (see notes
21-24, supra, and accompanying text) failed to prevent
desegregation, Virginia accepted the inevitability of token
ism but did all within its means to minimize the amount
of integration. A combination of centralist and, localist
policies was designed, fluctuating from time to time in what
ever manner seemed to promise the most successful avoid
ance of Brown. Thus, although pupil assignment powers
were returned in 1961 to local boards, criteria essentially
identical to those of the Pupil Placement Board (which
dealt explicitly with race) were promulgated by the State
Board of Education (see note 26 supra). At the same
time, the resources of the State were made available to
school districts for the purpose of perpetuating segrega
tion: they received assistance in designing transportation
systems to serve segregated schools, legal aid in resisting
desegregation litigation, and loans and grants of State
funds to construct and operate additional segregated
schools either within existing divisions or as joint facil
ities for black students (see pp. 21-23 supra). State offi
cials continued to urge defiance of this Court’s mandates
and set the pattern by their own activities, as by holding
segregated stage-wide personnel meetings (A. 535).
At the local level, the new tolerance allowed local boards
—coming only two years after the Governor had closed the
Norfolk schools rather than allow them to open on an
integrated basis (see note 22 to the body of the Brief)'—
was demonstrated in Prince Edward County, which was
permitted to end its public school system to avoid desegre
gation despite a State constitutional provision requiring
the establishment of a system of free public schools (see
notes 27, 28 to the body of the Brief, and accompanying
5e
Appendix E
text). State authorities continued to function in support
of segregation even in Prince Edward County, however, by
distributing tuition grants and scholarships (see pp. —
supra) enabling white pupils to attend either private
schools or public schools in other divisions untainted by
desegregation.
State authorities again receded to a position of secondary
importance, however, after passage of the Civil Rights
Act of 1964 and execution of a compliance agreement be
tween HEW and the State Education Department—taking
the position that they could do nothing more than advise
with local school divisions (see p. 21 supra).
The final chapter in this history was written in 1971,
after the adoption of a new Virginia Constitution con
taining a provision requiring the State Board of Education
to divide the Commonwealth into appropriate school divi
sions “subject to such criteria and conditions as the Gen
eral Assembly may prescribe,” Article VIII, §5. After the
filing of the joinder motion in this litigation, the 1971 Gen
eral Assembly of Virginia amended Va. Code Anno., §22-30
so as to prohibit the State Board of Education from
placing more than one political subdivision in a single
school division without the consent of school boards and
governing bodies involved—aware that the enactment could
have some effect on this lawsuit (see A. 942, 944).
If
APPENDIX F
Forces Containing Blacks W ithin Richmond
The containment of blacks to the City of Richmond which
characterizes the development of the greater Richmond
area is apparent from the statistics of demographic change
themselves. Since 1940, the proportion of blacks: in the
counties’ populations has dropped while that in Richmond
has significantly grown (see Table 3, at p. 30 supra).
While the causes of this concentration may not be simple
and some small numbers of blacks may escape their effects
(cf. 462 F.2d, at 1066, Pet. A. 573-574), the forces which
combine to lock blacks generally into the City are identifi
able on this record.
It must be kept in mind that the widening differential
between City and counties has been effected in a period of
rapid total demographic change (see pp. 30-31 supra).
While the counties were mainly rural, with small total
populations, they were relatively blacker than they are to
day; but it is readily apparent that as they grew after
1950 (see note 135 supra), blacks either did not or could
not participate in the suburban expansion.
This development is hardly surprising—and was readily
foreseeable—in light of the historic enforced segregation
of blacks within Richmond and the resultant patterns of
expansion. Blacks have always been confined to pre
scribed sections of the City.lf
lf Indeed, well after this Court’s decision in Buchanan v. Warley,
245 U.S. 60 (1917), the City of Richmond attempted to enforce
an ordinance limiting blacks to established neighborhoods. See
City of Richmond v. Deans, 281 U.S. 704 (1930). Discrimination
was continued after judicial invalidation of the ordinance through
the use of restrictive covenants and the practices of the real estate
industry. (See, e.g., A. 497-98; pp. 33-34 supra.)
2f
Appendix F
These were smaller in the past; they now have ex
panded under the pressure of a rising- black population;
but there are still areas of the City effectively restricted
to whites (21 R. 32). The manner of expansion of black
residential areas was established by these same discrim
inatory customs, however: always on the periphery of the
ghetto rather than by colonizing new areas (see; 338 F.
Supp., at 73, Pet. A. 172 [reference to RX 18 at 1970
trial]). Prior to 1950, then, Richmond was characterized
by a continually expanding black central ghetto and ex
panding white belts surrounding it (A. 666). See gen
erally, K . & A. T a eu ber , N egroes, ix C it ie s (1965).
What we have referred to as the process of suburbaniza
tion after 1950 is nothing more than the continuation of
this pattern, now across invisible political boundary lines.
The continuation of rampant discrimination against blacks
in suburban housing is apparent from the; figures, sup
ported by the testimony, and accepted by the Court of Ap
peals (462 F.2d at 1065, Pet. A. 572). In the context of the
historic cycle of racial residential transition in the City,
this was enough to contain blacks to Richmond.
New mechanisms were now available, however. As the
income gap between blacks and whites—itself a reflection
of past educational deprivations in segregated school sys
tems and continuing employment discrimination (see, e.g.,
A. 186; PX 104-107c, 125)—widened, restricting the access
of the poor to suburban housing generally meant restrict
ing blacks (see note 158 supra). The Court of Appeals ac
cepts the notion that the counties’ refusal to permit low-
income housing has contributed to the segregated pattern
between City and suburbs.21, (462 F.2d, at 1066, Pet. A.
2f Although the Court of Appeals supposes “the possibility that
in a heavily white county much of such housing would likely be
3f
Appendix F
574.) Economic differences also combine with the lack of
public transportation available in suburban counties de
pendent upon automobile travel, to restrict access of the
poor (see A. 885-86).31
These patterns of bousing and economic discrimination
would, whether governmentally compelled or not, prevent
resort to the use of political jurisdiction boundaries to
define school attendance areas if the greater Richmond
region were a single school division. Brewer v. School Bd.
of Norfolk, 397 F.2d 37, 41 (4th Oir. 1968); Swann, v.
Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 138 (4th
Cir. 1970), rev’d on other grounds, 402 U.S. 1 (1971). Yet
the Court of Appeals seems to have held them irrelevant
here because Yirginia has divided the greater Richmond
area among three school units. (See 462 F.2d, at 1066, Pet.
A. 574.) Thus, the Court of Appeals’ peculiar view of the
Tenth Amendment seems to control this issue as well.
Not only have the forms of discrimination affecting adult
Negroes described above played a substantial role in con
fining blacks to the City of Richmond, but the very tech
niques utilized by the school authorities of the three divi
sions since 1954 to perpetuate segregation have, by their
inevitable effect upon residential demography, contributed
to that phenomenon:
occupied by low income whites,” 462 F.2d at 1066, Pet. A. 574,
there are relatively few low income families in the counties now
(see note 158 supra) while nearly all public housing units within
Richmond are occupied by black tenants (PX 39, 129; A. 614).
sf In 1969, 18% of all employees living and working in the
Richmond SMSA travelled to work by public transportation—but
36% of black employees did so. U.S. D ept , op Commerce, B ureau
op the Census, Census op P opulation : 1970, Detailed Character
istics (G.P.O. PC (l)-48, 1972), pp. 1026-28, Table 190, Place of
Work During the Census Week, by Selected Characteristics: 1970.
4f
Appendix F
We have described the development of the greater Rich
mond area’s white suburbs as but an extension, across
political boundary lines, of the process by which black
neighborhoods have always expanded. In this context, the
repeated conversion of formerly white Richmond school
facilities to identifiably black ones, together with the ex
tensive construction of new white schools in the counties,"
operates to exacerbate the general demographic trend to
ward a black City surrounded by white counties. Indeed,
the process is the analogy of that described by this Court
in Swann, 402 U.S., at 20-21, whereby white city schools
likely to become desegregated were closed [here converted
to black schools] while new white suburban schools were
constructed. See Clark v. Board of Educ. of Little Bock,
426 F.2d 1035 (8th Cir. 1970), cert, denied, 402 U.S. 952
(1971).
_ 4f Contrary to the Court of Appeals’ supposition that the coun
ties’ maintenance of segregated schools long after Brown could not
have affected the residential inability of blacks (462 F,2d, at 1066,
Pet. A. 574), the county school systems did offer disincentives to
black settlement in the newly urbanized areas of Henrico and
Chesterfield adjacent to Richmond. Blacks who might have been
able to defeat the attempts to bar them and have moved to these
areas knew their children could not attend the schools located
where they lived. Black students were assigned to small, often
inferior and overcrowded facilities (see pp. 13-15 swpra) and
might be required to travel for an hour and a half or two hours
to get to such distant schools (see note 100 to the body of the
brief).
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