Green v. New Kent County, VA School Board Brief for the Petitioners
Public Court Documents
January 1, 1967
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Brief Collection, LDF Court Filings. Green v. New Kent County, VA School Board Brief for the Petitioners, 1967. 8f941727-b49a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/538314d9-34d1-42bb-9707-1cd3a80bfea4/green-v-new-kent-county-va-school-board-brief-for-the-petitioners. Accessed April 29, 2025.
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B npnm x ( to r t of tfy? Imtrfr Stairs
O ctober T erm , 1967
No. 695
C harles C. Gr e e n , et al.,
Petitioners,
— v.—
C ounty S chool B oard of N ew K e n t C ounty ,
V irg in ia , et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR THE PETITIONERS
J ack Greenberg
J am es M. N abr.it , III
F r a n k l in E. W h it e
10 Columbus Circle
New York, New York 10019
S. W. T u ck er
H en ry L. M a rsh , III
214 East Clay Street
Richmond, Virginia
Attorneys for Petitioners
Of Counsel:
M ic h a el M eltsn er
M ich a el J . H en ry
I N D E X
Citations to Opinions Below ........... 1
Jurisdiction ................................................................... 1
Question Presented ............................................... 2
Constitutional Provision Involved ............................... 2
Statement ....................................................................... 2
I. The Pleadings .................................................. 2
II. The Plan Adopted by the B oard..................... 4
III. The Evidence ... ...................... 5
IY. The District Court’s Decision.......................... 8
V. The Court of Appeals’ Opinion...................... 8
Summary of Argument...................... 11
A rg u m en t :
I. Introduction ...... ............................................... 13
II. A Freedom of Choice Plan Is Constitutionally
Unacceptable Where There Are Other Meth
ods, No More Difficult to Administer, Which
Would More Speedily Disestablish the Dual
System............................................................... 27
PAGE
11
PAGE
A. The Obligation of a School Board Under
Brown v. Board of Education Is to Dises
tablish the Dual School System and to
Achieve a Unitary, Non-raeial System ..... 28
1. The Fourth Circuit’s Adherence to
Briggs ..................................................... 28
2. Brown Contemplated Complete Reor
ganization ............................................... 30
3. Case and Statutory Law ..................... 32
4. Equitable Analogies ................. 38
5. Summary ............................................... 39
III. The Record Clearly Shows That a Freedom
of Choice Plan Was Not Likely to Disestab
lish, and Has Not Disestablished, the Dual
School System and That a Geographic Zone
Plan or Consolidation Would Immediately
Have Produced Substantial Desegregation .... 41
C o n c l u s io n .................. .......................... ........................................... 50
TABLE OF CASES
American Enka Corp. v. N. L. B. B., 119 F. 2d 60 (4th
Cir. 1941) ................................................................... 39
Anderson v. Martin, 375 U. S. 399 ............................... 42n
Board of Education of Oklahoma City Public Schools
v. Dowell, 372 F. 2d 158 (10th Cir. 1967) .............. 37
Bolling v. Sharpe, 347 U. S. 497 .................................... 30
I l l
Borders v. Rippy, 247 F. 2d 268, 271 (5th Cir., 1957) .. 28n
Boson v. Rippy, 285 F. 2d 43, 48 (5th Cir., 1960) ....... 28n
Bowman v. County School Board of Charles City
County, Va., 382 F. 2d 326 (4th Cir. 1967) .............. 9n
Bradley v. School Board of the City of Richmond, 382
U. S. 103 .......................................................... 18n, 27n, 30
Braxton v. Board of Public Instruction of Duval
County, Florida, No. 4598 (M. D. Fla.), January 24,
1967 ............................................................................ 49n
Briggs v. Elliot, 132 F. Supp. 776 (E. D. S. C. 1955) ..28, 33
Brown v. Board of Education, 347 IT. S. 483, 349 U. S.
294 .................................................4n, 13,15n, 21, 30, 31, 47
Burton v. Wilmington Parking Authority, 365 U. S.
715 ......................... 42n
Calhoun v. Latimer, 377 U. S. 263 ............................ 30n
Carpenter v. Steel Co., 76 NLBB 670 (1948) .............. 39
Clark v. Board of Education, Little Rock School Dis
trict, 369 F. 2d 661 (8th Cir. 1966) ......................... 48n
Cooper v. Aaron, 358 U. S. 1 ....................................30, 31n
Coppedge v. Franklin County Board of Education,
273 F. Supp. 289 (E. D. N. C. 1967) ..................... 23n, 49n
Corbin v. County School Board of Loudon County,
Virginia, C. A. No. 2737, August 27, 1967 ............. 49n
Dove v. Parham, 282 F. 2d 256 (8th Cir. 1960) 15n
Evans v. Ennis, 281 F. 2d 385 (3rd Cir. 1960) .......... 37
Farley v. Turner, 281 F. 2d 131 (4th Cir.) ............... 16
Franklin v. County School Board of Giles County,
Va., 242 F. Supp. 371 (W. D. Va. 1965) reversed
360 F. 2d 325 (4th Cir. 1966) .................................... 17n
PAGE
IV
Gibson v. Board of Public Instruction of Dade County,
272 F. 2d 763 (5th Cir. 1959) .................................. 15n
Gilliam v. School Board of the City of Hopewell, Va.,
345 F. 2d 325 (4th Cir. 1965) remanded 382 U. S.
103 (1965) ................................................................. 17n
Goss v. Board of Education, 373 U. S. 683 ...... 30n, 42n, 43n
Green v. County School Board of the City of Roanoke,
304 F. 2d 118 (4th Cir. 1962) .................................... 17
Griffin v. County School Board of Prince Edward
County, 377 TJ. S. 218 (1964) ................................ 27n, 30n
Hamm v. County School Board of Arlington County,
264 F. 2d 945 (4th Cir. 1960) ......... ........................ 16n
Harrison v. Day, 200 Va. 439, 106 S. E. 2d 636 .......... 16n
James v. Almond, 170 F. Supp. 331 (E. D. Va. 1959) .. 16n
Jeffers v. Whitley, 309 F. 2d 621 (4th Cir., 1962) ....... 28n
Kelley v. Altheimer Arkansas Public School District,
378 F. 2d 483 (8th Cir., 1967) ......................... .......36, 46n
Kelley v. Board of Education of the City of Nashville,
270 F. 2d 209 (6th Cir., 1959) .............................. 28n, 33n
Kemp v. Beasley, 352 F. 2d 14 (8th Cir. 1965) .......... 36
Kemp v. Beasley, — - F. 2d ----- , No. 19017 (8th
Cir. Jan. 9, 1968) ............................................. 37n, 43n, 44
Lane v. Wilson, 307 U. S. 268 ...................................... 46n
Louisiana v. United States, 380 IT. S. 145 ..................38, 47
Manning v. Board of Public Instruction of Hillsboro
County, 277 F. 2d 370 (5th Cir., 1960)
PAGE
15n
V
Marsh v. County School Board of Roanoke County,
Va., 305 F. 2d 94 (4th Cir., 1962) ............................. 17
Mason v. Jessamine County Board of Education, 8
Race Eel. L. Rep. 530 (E. D. Ky. 1963) .................. 49n
Monroe v. Board of Commissioners of the City of
Jackson, Term., 380 F. 2d 955 (6th Cir. 1967) cert.
granted, No. 740 ( 0. T. 1967) ................................ 13, 33n
Moses v. Washington Parish School Board, ----- F.
Supp.----- (E. D. La. Oct. 19, 1967) ............ .14n, 19, 49n
N. A. A. C. P. v. Patty, 159 F. Supp. 503 ..................... 16n
N. L. R. B. v. Newport News Shipbuilding and Dry
Dock Co., 308 U. S. 241 ........................................... 39
Northcross v. Board of Education of the City of Mem
phis, 302 F. 2d 818 (6th Cir., 1962) ......................... 15n
Norwegian Nitrogen Products Co. y. United States,
288 U. S. 294 .............. ............................................... 32n
Pettaivay v. County School Board of Surry County,
Va., 230 F. Supp. 480 (E. D. Ya. 1964), modified
and remanded, 339 F. 2d 486 (4th Cir.) .................. 17n
Porter v. Warner Holding Co., 328 IT. S. 395 .......... 38
Raney v. The Board of Education of the Gould School
District, 381 F. 2d 252 (8th Cir. 1967), cert, granted,
No. 805 ..................................................................... 13, 36n
Reitman v. Midkey, 18 L. ed. 831 ................................ 42n
Robinson v. Florida, 378 U. S. 153 ............................. 42n
Rogers v. Paul, 382 U. S. 198 ....................... ........... 30n, 48n
Schine Chain Theatres v. United States, 334 U. S. 110 38
School Board of City of Charlottesville v. Allen, 263
F. 2d 295 (4th Cir. 1959)
PAGE
16n
v i
Singleton v. Jackson Municipal Separate School Dis
trict, 348 F. 2d 729 (5th Cir. 1965) .......................... 35n
Singleton v. Jackson Municipal Separate School Dis
trict, 355 F. 2d 865 (5th Cir. 1966) ..................... 18n, 35n
Skidmore v. Swift & Co., 323 U. S. 134 ..................... 32n
Sperry Gyroscope Co. Inc. v. NLRB, 129 F. 2d 922,
931-932 (2d Cir. 1942) ............................................... 39
Swann v. Charlotte Mecklenburg Board of Education,
369 F. 2d 29 (4th Cir. 1966) .................................... 30n
United States v. American Trucking Associations,
Inc., 310 U. S. 534 ...................................................... 32n
United States v. Crescent Amusement Co., 323 U. S.
173 .............................................................................. 38
United States v. County School Board of Prince
George County, Va., 221 F. Supp. 93, 105 (E. D.
Va. 1963) ..................................................................... 17n
United States v. Jefferson County Board of Educa
tion, 372 F. 2d 836, ail’d with modifications on re
hearing en banc, 380 F. 2d 385, cert, denied sub nom.
Caddo Parish School Board v. United States, 389
U. S. 840, 19 L. ed. 103 (1967) ..............4n, 9 ,18n, 33, 46n
United States v. Standard Oil Co., 221 U. S. 1 .......... 38
Vick v. Board of Education of Obion County, 205 F.
Supp. 436 (W. D. Tenn. 1962) ................................. 28n
PAGE
Watson v. Memphis, 373 U. S. 526 27n
VU
STATUTES
Code of Va., 1950 (1964 Replacement Vol.)
§22.232.1.....................................................................6 ,16n
§22.232.6 ................................................................. 6
§22.232.20 ................................................................ 6
45 C. F. R, Part 181 ........................................ .......... 22, 32n
Civil Rights Act of 1964, 78 Stat. 241 .........................3, 32n
28 U. S. C. §1331 .................... 3n
28 U. S. C. §1343 ......................... 3n
42 U. S. C. §1981 .......................................................... 3n
42 U. S. C. §1983 .......................................................... 3n
42 U. S. C. §2000-c ...................................................... 32n
42 U. S. C. §2000-d ....... 32n
OTHER AUTHORITIES
PAGE
Black, The Supreme Court, 1966 Term—Foreword:
“State Action,” Equal Protection and California’s
Proposition 14, 81 Harv. L. Rev. 69 (1967) ........... . 42n
Campbell, Cunningham and McPhee, The Organisa
tion and Control of American Schools, 1965 ...... 13n, 14n
Conant, The American High School Today (1959) .... 44
Dunn, Title VI, The Guidelines and School Desegre
gation in the South, 53 Va. L. Rev. 42 (1967) ...... 30n, 32n
Equality of Educational Opportunity: A Report of
the Office of Education of the United States Depart
ment of Health, Education and W elfare................. 21n
Meador, The Constitution and the Assignment of
Pupils to Public Schools, 45 Ya. L. Rev. 517 (1959) 14
Mizell, The South Has Genuflected and Held on to
Tokenism, Southern Education Report, Vol. 3, No.
6 .................................................................................. 23n
Note, The Courts, HEW and Southern School Deseg
regation, 77 Yale L. J. 321 (1967) ......................... 32n
Racial Isolation in the Public Schools, Volume I:
A Report of the United States Commission on Civil
Rights 1967 ................................ 27n
Revised Statement of Policies for School Desegrega
tion Plans Under Title VI of the Civil Rights Act
of 1964 .......... 22
Southern School Desegregation, 1966-67, a Report
of the U. S. Commission on Civil Rights, July,
1967 ........................................................ ..15n, 24n, 26,48n
Survey of School Desegregation in the Southern and
Border States, 1965-1966, U. S. Commission on Civil
Rights, February, 1966 ...... ..........................16n, 18n, 24n
U. S. Bureau of the Census. U. S. Census of Popula
tion: 1960 General Population Characteristics, Vir
ginia. Final Report PC (1)-48B 5n
I n the
i>ttprem£ ©curt nf the States
October T e e m , 1967
No. 695
C harles C. Gr e e n , et al.,
—v.—
Petitioner.*'
County S chool B oard of N ew K e n t County ,
V irg in ia , et al.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR THE PETITIONERS
Citations to Opinions Below
The District Court filed memorandum opinions on May-
17, 1966 and June 28, 1966. Both, unreported, are reprinted
appendix at pp. 47-48a and 53-61a. The June 12, 1967 Court
of Appeals opinions, reprinted appendix pp. 63-89a, are
reported at 382 F. 2d 326 and 338.
Jurisdiction
The judgment of the Court of Appeals was entered
June 12, 1967, appendix p. 90a. Mr. Justice Black, on
September 8, 1967, extended time for filing the petition for
2
writ of certiorari until October 10, 1967 (91a). The petition
for certiorari was filed October 9, 1967 and was granted
December 11, 1967 (92a). The jurisdiction of this Court
is invoked under 28 U. S. C. Section 1254(1).
Question Presented
Whether—13 years after Brown v. Board of Education—
a school board discharges its obligation to conduct a unitary
non-racial school system, by adopting a freedom of choice
desegregation plan, where the evidence shows that such plan
is not likely to disestablish the dual system and where
there are other methods, no more difficult to administer,
which would immediately produce substantial desegrega
tion.
Constitutional Provision Involved
This case involves Section I of the Fourteenth Amend
ment to the Constitution of the United States.
Statement
Petitioners seek review of the constitutional adequacy
of a freedom of choice desegregation plan adopted by
defendant School Board and approved by the Court below
en banc, Judges Sobeloff and Winter disagreeing with the
majority opinion.
I. The Pleadings
Petitioners, Negro parents and children of New Kent
County, Virginia, filed on March 15, 1965, in the United
States District Court for the Eastern District of Virginia,
3
a class action seeking injunctive relief against the main
tenance of separate schools for the races. The complaint
named as defendants the County School Board, its indi
vidual members, and the Superintendent of Schools.1
The defendants filed, on April 5, 1965, a Motion to Dis
miss the complaint on the sole ground that it failed to state
a claim upon which relief could be granted (13a). In an
order entered on May 5, 1965, the district court deferred
ruling on the motion and directed the defendants to file
an answer by June 1, 1965 (14a). Defendants answered as
serting that plaintiffs were permitted under existing policy
(the pupil placement law) to attend the school of their
choice without regard to race, subject only to limitations
of space and denied that the court had jurisdiction to grant
any of the relief prayed (21-22a).
Thereafter, to comply with Title VI of the Civil Rights
Act of 1964, 78 Stat. 241, and regulations of the United
States Department of Health, Education and Welfare, the
New Kent County School Board, on August 2,1965, adopted
a freedom of choice desegregation plan (to be placed into
effect in the 1966-67 school year) and on May 10, 1966 filed
copies thereof with the District Court.
1 The action was filed pursuant to 28 U. S. C. §1331 and §1343,
and 42 TJ. S. C. §1981 and §1983. The complaint alleged that
(7-8a) :
Notwithstanding the holding and admonitions in Brown v.
Board of Education, 347 U. S. 483 (1954) and 349 U. S. 294
(1955), the defendant school hoard maintains and operates a
biracial school system. . . .
[that the defendants] ha[d] not devoted efforts toward initiat
ing non-segregation in the public school system, [and had failed
to make] a reasonable start to effectuate a transition to a
racially non-discriminatox-y school system as under paramount
law it [was] their duty to do.
4
II. The Plan A dopted by the Board
The plan provides essentially for “permissive transfers”
for 10 of the 12 grades. Only students eligible to enter
grades one and eight are required to exercise a choice of
schools. It provides further that “any student in grades
other than grades one and eight for whom a choice is not ob
tained will be assigned to the school he is now attending.” 2
It states that no choice will be denied other than for over
crowding in which case students living nearest the school
chosen will be given preference (34-4-Oa).
2 By failing to require, at least in its initial year, that every stu
dent make a choice, the plan permits some students to be assigned
under the former dual assignment system until approximately 1973.
Under the plan students entering other than grades one or eight
who do not exercise a choice are assigned to the school they are
then attending. Thus, a student, who began school in fall, 1965,
one year before the plan went into effect and was therefore assigned
to a school previously maintained for his race would, unless he
affirmatively exercised a choice to go elsewhere, be reassigned there
for the remainder of his elementary school years. Similarly, stu
dents who entered high school prior to 1966-67 under the old dual
assignment system, would, unless they took affirmative action to
transfer elsewhere, be reassigned to that school until graduation.
The plan, then, permits some students (those who began at a school
before it went into effect) to be reassigned for as long as up to
seven years (in the case of a first grader) to schools to which they
originally had been assigned on the basis of race. It need hardly
be said that such a plan—one which fails immediately to abolish
continued racial assignments or reassignments—may not stand
under Brown v. Board of Education, 347 U. S. 483 and 349 U. S.
294. The Fifth Circuit has rejected plans having that effect. See
United States v. Jefferson County Board of Education, 372 F. 2d
836, 890-891, aff’d with modifications on rehearing en banc, 380 F.
2d 385, cert, denied sub nom. Caddo Parish School Board v. United
States, 389 U. S. 840, 19 L. Ed. 2d 103. We point this out only to
fully describe the workings of the plan. For overturning the deci
sion below7 on this ground would be insufficient to protect petitioners’
rights. As v7e more fully develop later wrhat is objectionable about
this plan is its employment of free choice assignment provisions to
perpetuate segregation in an area, -where, because of the lack of
residential segregation, it could not otherwise result.
5
III. The Evidence
New Kent is a rural county in Eastern Virginia, east
of the City of Richmond. There is no residential segrega
tion; both races are diffused generally throughout the
county3 (cf. PX “A” and “B” ; see also the opinion of
Judge Sobeloff at pp. 72a, 23a).4 5 There are only two public
schools in the county: New Kent, the formerly all-white
combined elementary and high school, and George W.
Watkins, an all-Negro combined elementary and high school.
Students f During the 1964-1965 school year some 1291
students (approximately 739 Negroes, 552 whites) were
enrolled in the school system. There were no attendance
zones. Each school served the entire county. Eleven Negro
buses canvassed the entire county to deliver 710 of the
740 Negro pupils to Watkins, located in the western half
of the county. Ten buses transported almost all of the
550 white pupils to New Kent in the eastern half (see PX
“A” and “B” and 24a, no. 4).
As the following table6 indicates, the Negro school was
more overcrowded and had a substantially higher pupil-
teacher ratio, and larger class sizes than the white school:
3 The Census reports show that the Negro population was sub
stantially the same in each of the four magisterial districts in New
Kent County: Black Creek—479, Cumberland—637, St. Peters—
633, and Weir Creek—565. See U. S. Bureau of the Census. V. 8.
Census of Population: 1960 General Population Characteristics,
Virginia. Pinal Report PC(1)-48B.
4 The prefix “PX” refers to plaintiffs’ exhibits. Exhibits “A” and
“B” show the bus routes for each of the two county schools. Because
of the difficulty in doing so, they have not been reproduced in the
appendix. Each exhibit shows the routes travelled by the various
buses bringing children to that particular school. Each school is
served by buses that traverse all areas of the county.
5 The information that follows was obtained from defendants’ an
swers to plaintiffs’ interrogatories (23-33a).
6 The data was compiled from 23-33a, in particular nos. 1-c, 1-f,
1-g, and 4.
6
Name of School
.Pupil-
Teacher
Eatio
Average
Class
Size
Overcrowding
Variance
From
Capacity
(Elem.
Grades
Number
Buses
Average
Pupils
Per Bus
New Kent
(white) 1-12 ....... 22 21 + 37 (9%) 10 54.8
George W. Watkins
(Negro) 1-12 .... 28 26 + 118 (28%) 11 64.5
From 1956 through the 1965-66 school year, school assign
ments of New Kent pupils were governed by the Virginia
Pupil Placement Act, §22-232.1 et seq. Code of Virginia,
1950 (1964 Replacement Volume), repealed by Acts of
Assembly, 1966, c. 590, under which any pupil could request
assignment to any school in the county; children making no
request were assigned to the school previously maintained
for their race.7 The free choice plan the Board adopted
in August, 1965 was not placed into effect until the 1966-
1967 school year by which time it had been approved by the
district court.
Despite their rights under the pupil placement procedure,
up to and including the 1964-1965 school year no Negro
pupil ever sought admission to New Kent and no white
7 Section 22-232.20 provided in p a r t:
“ . . . any child who wishes to attend a school other than the
school which he attended the previous year shall not be eligible
for placement in a particular school unless application is made
therefor . . . ”
Section 22-232.6 provided:
“After December 29, 1956, each school child who has heretofore
attended a public school and who has not moved from the
county, city or town in which he resided while attending such
school shall attend the same school which he last attended until
graduation therefrom unless enrolled for good cause shown, in
a different school by the Pupil Placement Board.”
7
pupil ever sought admission to Watkins (25a, no. 7). Al
though, as the following table shows, some Negro students
have since chosen to attend New Kent, no white pupil has
ever attended Watkins:
Student Body by Race8
Year N ew K ent Watkins
White Negro Other White Negro Other
1964-65 ...... .... 552 0 0 0 739 0
1965-66 .......... 555 35 0 0 691 0
1966-67 ...... .... 517 111 0 0 628 0
1967-68 ......____ 519 115 10 0 621 0
Thus, as late as 13 years after the decision in Brown,
85% of the Negro students in the county attend school only
with other Negroes.
Faculty. Teachers’contracts are for one year only. Until
the 1966-67 school year, the Board adhered to a policy of
assigning only white teachers to New Kent and only Negro
teachers to Watkins. Despite the declarations of the Board,
its policy has remained essentially unchanged as the fol
lowing table shows:
F aculty Composition by Race8 9
N ew K ent Watkins
W hite Negro White Negro
1964- 65 ______ 26 0 0 26
1965- 66 ______ 26 0 0 27
1966- 67 ______ 28.4 .4 0 27
1967- 68 ______ 28 .2 1 29.8
8 The record in this ease, like the records in all school desegrega
tion cases, is necessarily stale by the time it reaches this Court. In
this case the 1964-65 school year was the last year for which the
record supplied desegregation statistics. Information regarding stu
dent and faculty desegregation during the 1965-66, 1966-67 and
1967-68 school years was obtained from official documents, available
for public inspection, maintained by the United States Department
of Health, Education and Welfare. Certified copies thereof and an
accompanying affidavit have been filed with this Court and served
upon opposing counsel.
9 This information is taken from the HEW documents referred
to in Note 8, supra, and from number 1-f on 24a. Principals, li
brarians and other non-teaching personnel are not included.
8
In sum, during the current year, 1967-68, faculty in
tegration consists of the assignment of one full-time white
(of a total of 30.8 teachers) to Watkins and one part-time
(the equivalent of one day each week) Negro teacher to
New Kent. All the full-time teachers at that school are
still white.
IV. The D istrict Court’s Decision
On May 4, 1966, the case was tried before the District
Judge, Hon. John D. Butzner, Jr., who, on May 17, 1966,
entered a memorandum opinion and order: (a) denying
defendants’ motion to dismiss, and (b) deferring approval
of the plan pending the filing by the defendants of “an
amendment to the plan [which would provide] for em
ployment and assignment of staff on a non-racial basis”
(47-49a).
The Board filed on June 6, 1966, a supplement to its
plan dealing with school faculties (50a). On June 10, 1966,
plaintiffs filed exceptions to the supplement contending
(a) that the supplement failed to provide sufficiently for
faculty and staff desegregation, and (b) that plaintiffs
would continue to be denied constitutional rights under
the freedom of choice plan and that the defendants should
be required to assign students pursuant to geographic
attendance areas (52a).
On June 28, 1966, the district court entered a memo
randum opinion and an order approving the freedom of
choice plan as amended (53-62a).
V. The Court of A ppeals’ Opinion
On appeal to the Court of Appeals for the Fourth Cir
cuit petitioners contended that in view of the cireum-
9
stances in the county, the freedom of choice plan adopted
by the defendants was the method least likely to accomplish
desegregation and that the district court erred in ap
proving it.
On June 12, 1967, the Court, en banc, affirmed the dis
trict court’s approval of the freedom of choice assign
ment provisions of the plan, but remanded the case for
entry of an order regarding faculty “which is much more
specific and more comprehensive” and which would in
corporate in addition to a “minimal objective time table,”
some of the faculty provisions of the decree entered by
the Fifth Circuit in United States v. Jefferson County
Board of Education, supra (70-71a).
Judges Sobeloff and Winter concurred specially with
respect to the remand on the teacher issue but disagreed
on other aspects. Said Judge Sobeloff (71-72a) :10
I think that the District Court should be directed not
only to incorporate an objective time table in the
School Board’s plans for faculty desegregation, but
also to set up procedures for periodically evaluating
the effectiveness of the Boards’ “freedom-of-choice”
plans in the elimination of other features of a segre
gated school system.
# # * * #
. . . Since the Board’s “Freedom-of-choice” plan has
now been in effect for two years as to grades 1, 2,
8, 9, 10, 11 and 12 and one year as to all other grades,
10 This case was decided together with a companion case Bowman
v. County School Board of Charles City County, Virginia, No.
10793, for which no review is sought. While the opinion discussed
herein was rendered in the Charles City ease, it was expressly made
applicable to Neiv Kent (64a); similarly Judge Sobeloff stated that
his opinion in Charles City applied to New Kent (p. 71a). The
opinion in the Charles City case is at 65-89a.
1 0
clearly this court’s remand should embrace an order
requiring an evaluation of the success of the plan’s
operation over that time span, not only as to faculty
but as to pupil integration as well (73a).
While they did not hold, as petitioners had urged, that the
peculiar conditions in the county made freedom of choice
constitutionally unacceptable as a tool for desegregation
they recognized that it was utilized to maintain segregation
(76-77a):
As it is, the plans manifestly perpetuate discrimina
tion. In view of the situation found in New Kent
County, where there is no residential segregation, the
elimination of the dual school system and the establish
ment of a “unitary, non-racial system” could he readily
achieved with a minimum of administrative difficulty
by means of geographic zoning—simply by assigning
students living in the eastern half of the county to
the New Kent School and those living in the western
half of the county to the Watkins School. Although a
geographical formula is not universally appropriate,
it is evident that here the Board, by separately busing
Negro children across the entire county to the “Negro”
school, and the white children to the “white” school, is
deliberately maintaining a segregated system which
would vanish with non-racial geographic zoning. The
conditions in this county represent a classical case for
this expedient. (Emphasis added.)
While the majority implied that freedom of choice was
acceptable regardless of result, Judges Sobeloff and Winter
stated the test thus (79a):
1 1
“Freedom of choice” is not a sacred talisman; it is only
a means to a constitutionally required end—the aboli
tion of the system of segregation and its effects. If
the means prove effective, it is acceptable, but if it
fails to undo segregation, other means must be used
to achieve this end.
SUMMARY OF ARGUMENT
Brown condemned not only compulsory racial assign
ments of public school children, but required “a transition
to a racially non-diseriminatory system.” That goal is not
achieved if some schools are still maintained or identifiable
as being for Negroes and others for whites. It cannot be
achieved until the racial identification of schools, con
sciously imposed by the state during the era of enforced
segregation, has been erased. The specific direction in
Brown II and general equitable principles require that
school districts formerly segregated by law, employ af
firmative action to achieve this end.
If the time for deliberate speed has indeed ended, as this
Court has said (Note 38, infra), lower courts must now
fashion decrees which, consistent with educational and
equitable principles, will speedily and effectively disestab
lish the dual system thereby achieving the unitary non-
racial system mandated by the Constitution. That was not
done here.
Freedom of choice desegregation plans typically leave the
dual system undisturbed. The overwhelming majority of
school districts in Brown-affected states have adopted
such plans (Note 18, infra) and available statistics demon
1 2
strate that they have not disestablished the dual system
(infra, pp. 26-27). At best, such plans leave one segment,
the Negro segment, intact (Ibid.). Yet, most, but not all,
lower courts have not responded to the obvious: such plans
are not only wasteful and inefficient, but by nature are in
capable of effectuating that transition.
Lengthy related experience under the Virginia Pupil
Placement Law demonstrated that plans under which stu
dents assign themselves were not likely to disestablish the
dual system in New Kent County. Petitioners, moreover,
furnished uncontradicted evidence that another method,
more feasible to administer would immediately disestab
lish the dual system. Nonetheless, the Board failed to offer
any reasons justifying delay in achieving a unitary non-
racial system. There was no suggestion that administra
tive difficulties would preclude the division of the county
into two school attendance areas or the assignment of
elementary school pupils to one school and high school
students to the other.
Where alternative means of immediate accomplish
ment of a unitary non-racial school system are so readily
available, judicial approval of free choice is constitution
ally impermissible.
13
A R G U M E N T
I.
Introduction
The question here is whether in the late sixties, a full
generation of public school children after Brown v. Board
of Education,11 school boards may employ so-called free
dom of choice desegregation plans which perpetuate ra
cially identifiable schools, where other methods, equally or
more feasible to administer, will more speedily disestab
lish the dual systems.
Other plans or programs, similarly ineffective where
adopted, are under review in Monroe v. Board of Com
missioners of the City of Jackson, Term., No. 740, and
Raney v. The Board of Education of the Gould School
District, No. 805.12 The controversies in all three cases
concern the precise point at which a school board has ful
filled its obligations under Brown; and all three present
for determination the question whether school districts for
merly segregated by law must employ affirmative action
to erase state-imposed racial identification of their schools.
The most marked and widespread innovation in school
administration in southern and border states in the last
fifty years has been the change in pupil assignment method
in the years since Brown,13 from geographic attendance
11 347 U. S. 483 (Brown I ) ; 349 U. S. 294 (Brown II).
12 All three cases will be argued together. See 36 U. S. L. W. 3286
(U. S. Jan. 15,1968).
13 See generally, Campbell, Cunningham and MePhee, The Or
ganization and Control of American Schools, 1965. (“As a conse
quence of [Brown v. Board of Education, supra], the question of at
tendance areas has become one of the most significant issues in
American education of this Century” (at 136).)
14
zones to so-called “free choice.” Prior to Brown, systems
in the north and south, with rare exception, assigned pupils
by zone lines around each school.14
Under an attendance zone system, unless a transfer is
granted for some special reason, students living in the zone
of the school serving their grade would attend that school.
Prior to the relatively recent controversy concerning seg
regation in large urban systems, assignment by geographic
attendance zones was viewed as the soundest method of
pupil assignment. This was not without good reason; for
placing children in the school nearest their home would
often eliminate the need for transportation, encourage the
use of schools as community centers and generally facili
tate planning for expanding school populations.15
In states where separate systems were required by law,
this method was implemented by drawing around each
white school attendance zones for whites in the area, and
around each Negro school zones for Negroes. In many
14 “In the days before the impact of the Brown decision began to
be felt, pupils were assigned to the school (corresponding, of course
to the color of the pupils’ skin) nearest their homes; once the school
zones and maps had been drawn up, nothing remained but to in
form the community of the structure of the zone boundaries.” Ven-
trees Moses v. Washington Parish School Board,----- P. Supp.____
(slip op. 15-16) (E. D. La. 1967), discussed infra, p. 19. See also
Meador, The Constitution and the Assignment of Pupils to Public
School, 45 Ya. L. Rev. 517 (1959), “until now the matter has been
handled rather routinely almost everywhere by marking off' geo
graphical attendance areas for the various buildings. In the South,
however, coupled with this method has been the factor of race.”
15 Campbell, Cunningham and MePhee, supra, Note 13 at 133-
144.
By showing that zone assignment was the norm prior to Brown,
we intend merely to indicate the background against which free
choice was developed. We do not suggest that the use of zones is
always the most desirable method of pupil assignment.
15
areas, as in the ease before the Court where the entire
county was a zone, lines overlapped because there was no
residential segregation. Thus, in most southern school dis
tricts, school assignment was largely a function of three
factors: race, proximity and convenience.
After Brown, southern school boards were faced with
the problem of “effectuating a transition to a racially non-
discriminatory system” (Brown II at 301). The easiest
method, administratively, was to convert the dual attend
ance zones into single attendance zones, without regard
to race, so that assignment of all students would depend
only on proximity and convenience.16 With rare exception,
however, southern school boards, when finally forced to
begin desegregation, rejected this relatively simple method
in favor of the complex and discriminatory procedures of
pupil placement laws and, when those were invalidated,17
switched to what has in practice worked the same way—
so-called free choice.18
16 Indeed, it was to this method that this Court alluded in Brown
I I when it stated “ [t] o that end, the courts may consider problems
related to administration, arising from . . . revision of school dis
tricts and attendance areas into compact units to achieve a system
of determining admission to the public schools on a non-racial basis”
(349 U. S. at 300-301).
17 For cases invalidating or disapproving such laws, see North-
cross v. Board of Education of the City of Memphis, 302 F. 2d 818
(6th Cir., 1962); Gibson v. Board of Public Instruction of Dade
County, 272 F. 2d 763 (5th Cir., 1959); Manning v. Board of
Public Instruction of Hillsboro County, 277 F. 2d 370 (5th Cir.,
1960) ; Dove v. Parham, 282 F. 2d 256 (8th Cir., 1960).
18 According to the Civil Rights Commission, the vast majority of
school districts in the south use freedom of choice plans. See
Southern School Desegregation, 1966-67, A Report of the U. S.
Commission on Civil Rights, July, 1967. The report states, at pp
45-46:
Free choice plans are favored overwhelmingly by the 1,787
school districts desegregating under voluntary plans. All such
16
In Virginia, the freedom of choice concept was resorted
to after the state’s “massive resistance” 19 measures had
failed.20 The Pupil Placement Board, first created by legis
lation approved September 29, 195621 placed no Negro child
in any white school until after the June 28. 1960 decision in
Farley v. Turner, 281 F. 2d 131 (4th Cir.). During the
next two years, 1960-61 and 1961-62, that board conducted
individual hearings in the cases of those Negro children
and their families who, having protested against assign
ments to Negro schools and having had the fact of such
districts in Alabama, Mississippi, and South Carolina, without
exception, and. 83% of such districts in Georgia have adopted
free choice plans. . ..
The great majority of districts under court order also are
employing “freedom of choice.”
See also Survey of School Desegregation in the Southern and
Border States, 1965-1966, United States Commission on Civil
Rights, February, 1966, at p. 47.
19 In National Association for the Advancement of Colored Peo
ple v. Patty, 159 F. Supp. 503, 511, Judge Soper discusses the
legislative history of the massive resistance program.
20 The State statute requiring the closing of any public school
wherein both white and Negro children might otherwise be enrolled
was invalidated on January 19, 1959 in Harrison v. Day, 200 Va.
439,106 S. E. 2d 636. See also, James v. Almond, 170 F. Supp. 331
(E. D. Va. 1959) (three-judge court); but not until after one or
more schools had been closed in Norfolk (see James v. Almond, 170
F. Supp. 331) (E. D. Va. 1959), in Charlottesville (see School
Board of City of Charlottesville v. Allen, 263 F. 2d 295 (4th Cir.
1959)) and in Warren County (see Governor’s proclamation re
ported in 3 Race Rel. L. Rep. 972); and the threat of closed schools
had effectively deterred desegregation in Arlington County (see
Hamm v. County School Board of Arlington County, 264 F. 2d 945,
946 (4th Cir. I960)).
21 Chapter 70, Acts of Assembly, 1956, Extra Session, codified as
§22-232.1 et seq. of the Code of' Virginia 1950, 1964 Repl. Vol.
(repealed by Acts 1966, c. 590).
17
protest publicized in the local newspaper, were subjected
to tests and other criteria not required of white children.
The unconstitutionality of such discriminatory practices
was declared in Green v. School Board of the City of
Roanoke, 304 F. 2d 118 (4th Cir. 1962) and Marsh v. County
School Board of Roanoke County, 305 F. 2d 94 (4th Cir.
1962). Thereafter,22 the timely applications for the assign
ment of Negro children to named schools attended by their
white neighbors were routinely granted23 except in a few
communities where boundaries for school attendance zones
have been drawn around racially segregated residential
areas.24
Under so-called free choice students are allowed to at
tend the school of their choice. Most often they are per
mitted to choose any school in the system. In some areas,
they are permitted to choose only either the previously
all-Negro or previously all-white school in a limited geo
graphic area. Not only are. such plans more difficult to
administer (choice forms have to- be processed and stand
ards developed for passing on them, with provision for
22 See United States v. County School Board of Prince George
County, Va., 221 F. Supp. 93, i05 (E. D. Va. 1963), viz.: “The
Pupil Placement Board suggested in oral argument that this suit
is premature because recently the Board has adopted a policy of
assigning Negro applicants to schools attended by white children
without, regard to academic achievement or residence requirements
different from those required of white children.” (Emphasis
added.)
23 See, e.g., Pettaway v. County School Board of Surry County,
Virginia, 230 F. Supp. 480 (E. D. Va. 1964), modified and re
manded, 339 F. 2d 486 (4th Cir.); Franklin v. County School
Board of Giles County, Virginia, 242 F. Supp. 371 (W. D. Va.
1965) reversed 360 F. 2d 325 (4th Cir. 1966).
24 See, e.g., Gilliam v. School Board of the City of Hopewell,
Virginia, 345 F. 2d 325 (4th Cir. 1965), remanded 382 IT. S 103
(1965).
18
notice of the right to choose and for dealing with students
who fail to exercise a choice),25 they are, in addition,—as
experience demonstrates (infra pp. 25-27)—far less likely
to disestablish the dual system.
25 Section II of the decree appended by the United States Court
of Appeals for the Fifth Circuit, to its recent decision in United
States v. Jefferson County Board of Education, 372 F. 2d 836, aff’d
with modification on rehearing en banc, 380 F. 2d 385, cert, denied
sub nom. Caddo Parish School Board v. United States, 389 U. S.
840, 19 L. Ed. 2d 103, shows the complexity of such plans. That
Court had previously described such plans as a “haphazard basis”
for the administration of schools. Singleton v. Jackson Municipal
Separate School District, 355 F. 2d 865, 871 (5th Cir. 1966).
Under such plans generally, and under the plan in this case,
school officials are required to mail (or deliver by way of the
students) letters to the parents informing them of their rights to
choose within a designated period, compile and analyze the forms
returned, grant and deny choices, notify students of the action
taken and assign students failing to choose to the schools nearest
their homes. Virtually each step of the procedure, from the initial
letter to the assignment of students failing to choose, provides an
opportunity for individuals hostile to desegregation to forestall its
progress, either by deliberate mis-performance or non-performance.
The Civil Eights Commission has reported on non-compliance by
school authorities with their desegregation plans:
In Webster County, Mississippi, school officials assigned on a
racial basis about 200 white and Negro students wThose freedom
of choice forms had not been returned to the school office, even
though the desegregation plan stated that it was mandatory
for parents to exercise a choice and that assignments would be
based on that choice [footnote omitted]. In McCarty, Missouri
after the school board had distributed freedom of choice forms
and students had filled out and returned the forms, the board
ignored them.
Survey of School Desegregation in the Southern and Border States,
1965-1966, at p. 47. Given the other shortcomings of free choice
plans, there is serious doubt whether the constitutional duty to effect
a non-racial system is satisfied by the promulgation of rules so sus
ceptible of manipulation by hostile school officials. As Judge So-
beloff has observed:
A procedure which might well succeed under sympathetic ad
ministration could prove woefully inadequate in an antagonis
tic environment.
Bradley v. School Board of the City of Richmond, 345 F. 2d 310
(4th Cir. 1965) (concurring in part and dissenting in part).
19
Only recently a district court, in what has proved to be
the most important judicial scrutiny of free choice plans,
observed (Moses v. Washington Parish School Board, ——
F. Supp. —— (E. D. La., October 19, 1967):
Free choice systems, as every southern school official
knows, greatly complicate the task of pupil assign
ment in the system and add a tremendous workload
to the already overburdened school officials (----- F.
Supp. ----- ; Slip Op. 15).
If this Court must pick a method of assigning stu
dents to schools within a particular school district,
barring very unusual circumstances, we could imagine
no method more inappropriate, more unreasonable,
more needlessly wasteful in every respect, than the
so-called “free-choice” system. (Emphasis added.)
(Id. at 21)
* # * # ^
Under a “free-choice” system, the school board can
not know or estimate the number of students who will
want to attend any school, or the identity of those
who will eventually get their choice. Consequently,
the board cannot make plans for the transportation of
students to schools, plan curricula, or even plan such
things as lunch allotments and schedules; moreover,
since in no case except by purest coincidence will an
appropriate distribution of students result, and each
school will have either more or less than the number
it is designed to efficiently handle, many students at
the end of the free-choice period have to be reassigned
to schools other than those of their choice—this time
on a strict geographical-proximity basis, see the Jeffer
2 0
son County decree, thus burdening the board, in the
middle of what should be a period of firming up the
system and making final adjustments, with the awe
some task of determining which students will have to
be transferred and which schools will receive them.
Until that final task is completed, neither the board
nor any of the students can be sure of which school
they will be attending; and many students will in the
end be denied the very “free choice” the system is
supposed to provide them. (Id. at 21-22)
Although the court never explicitly answers its own ques
tion—why was the Washington .Parish Board willing to
undergo the uncertainty and unreasonable burdens imposed
by such a system (slip. op. at 21-22)—it ordered the aban
donment of free choice and, in its place the institution of
a geographical zoning plan.26
Under free choice plans, the extent of actual desegre
gation varies directly with the number of students seek
26 As we more fully develop infra pp. 23-25, we think the answer
obvious: that the Washington Parish Board, and indeed most
boards, adopted free choice knowing and intending that it would
result in fewer Negro students in white schools and, conversely,
fewer (if any at all) white students in Negro schools, than would
otherwise result under a rational non-racial system of pupil assign
ment.
To be sure, a free choice plan might make some sense, as Judge
Heebe recognized, in the context of grade by grade desegregation
and where all grades in a given building had not yet been reached
(Id. at 18-19). In such circumstances, it might indeed have been
easier to assign by “choices” rather than have to draw new zones for
each building each time a new grade level was reached under the
plan. But, as Judge Heebe pointed out, “the usefulness of such
plans logically ended with the end of the desegregation process
[when the plan reached all grades]” (Ibid.). Thus, even conceding
some interim usefulness for free choice, in some other situation, it
was entirely out of place in New Kent County which desegregated
all grades at the time the plan was approved and which had but two
schools.
2 1
ing, and actually being permitted to transfer to schools
previously maintained for the other race. It should have
been obvious, however, that white students—in view of
general notions of Negro inferiority and that far too often
Negro schools are vastly inferior to those furnished whites27
—would not transfer to formerly Negro schools; and, in
deed, very few have.28 Thus, from the beginning the burden
of disestablishing the dual system under free choice was
thrust upon the Negro children and their parents, despite
this Court’s admonition in Brown II (349 IT. S. 294, 299)
that “school authorities had the primary responsibility.”
That is what happened in this case. Although the majority
stated that (66a):
The burden of extracting individual pupils from dis
criminatory, racial assignments may not be cast upon
the pupils or their parents [and that] it is the duty
27 Watkins, the Negro school in New Kent County was more over
crowded and had substantially larger class sizes and teacher-pupil
ratios than did the white school. (See p. 6, supra.)
The Negro schools in the South compare unfavorably to white
schools in other important respects. In Equality of Educational
Opportunity, a report prepared by the Office of Education of the
United States Department of Health Education and Welfare pur
suant to the Civil Rights Act of 1964, the Commissioner states, con
cerning Negro schools in the Metropolitan South (at p. 206) :
The average white attends a secondary school that, compared
to the average Negro is more likely to have a gymnasium, a
foreign language laboratory with sound ecpiipment, a cafeteria,
a physics laboratory, a room used only for typing instruction,
an athletic field, a chemistry laboratory, a biology laboratory,
at least three movie projectors.
Essentially the same was said of Negro schools in the non-metropoli
tan South (Id. at 210-211). I t is not surprising, therefore, quite
apart from race, that white students have unanimously refrained
from choosing Negro schools.
28 “During the past school year, as in previous years, white stu
dents rarely chose to attend Negro schools.” Southern School De
segregation, 1966-67 at p. 142, United States v. Jefferson County
Board of Education, supra, 372 F. 2d at 889.
2 2
of the school boards to eliminate the discrimination
which inheres in such a system [,]
the very plan the court approved did just that. To be sure
each pupil was given the unrestricted right to attend any
school in the system. But, as previously noticed, desegre
gation never occurs except by transfers by Negroes to
the white schools. Thus, the freedom of choice plan ap
proved below, like all other such plans, placed the burden
of achieving a single system ujjon Negro citizens.
The fundamental premise of Brown I was that segrega
tion in public education had very deep and long term
effects. It was not surprising, therefore, that individuals
reared in that system and schooled in the ways of sub
servience (by segregation, not only in schools, but in every
other conceivable aspect of human existence) when asked
to “make a choice,” chose, by inaction, that their children
remain in the Negro schools. In its Revised Statement of
Policies for School Desegregation Plans Under Title VI
of the Civil Rights Act of 1964 (hereinafter referred to as
Revised Guidelines), the Department of Health, Education
and Welfare states (45 C.F.R. Part 181.54):
A free choice plan tends to place the burden of
desegregation on Negro or other minority group stu
dents and their parents. Even when school authorities
undertake good faith efforts to assure its fair opera
tion, the very nature of a free choice plan and the
effect of longstanding community attitudes often tend
to preclude or inhibit the exercise of a truly free choice
by or for minority group students. (Emphasis added.)
Beyond that, by making the Negro’s exercise of choice the
critical factor upon which the conversion depended, school
23
authorities virtually insured its failure. Every community
pressure militates against the affirmative choice by Negro
parents of white schools.29 Moreover, intimidation of Ne
groes, a weapon well-known throughout the south, could
equally be employed to deter them from seeking transfers
to white schools. At best, school officials must have rea
soned, only a few hardy souls would venture from the
more comfortable atmosphere of the Negro school, with
their all-Negro faculties and staff.30 Those that “dared,”
would soon be taught their place.31
29 Compare the following (M. Hayes Mizell, The South Has Gen
uflected and Held on to Tokenism, Southern Education Report, Vol.
3, No. 6 (January/February, 1968), at p. 19) :
Freedom of choice . . . has not brought significant school deseg
regation . . . simply because it is a policy which has proved too
fragile to withstand the political and social forces of Southern
life. The advocates of freedom of choice assumed that school
desegregation would somehow be insulated from these forces
while, in reality, it was central to them.
In embracing the freedom of choice plan Southern school
systems understood, even if HEW did not, that man’s choices
are not made within a vacuum, but rather they are influenced
by the sum of his history and culture.
30 “Negro students who choose white schools are, as we know from
many cases, only Negroes of exceptional initiative and fortitude.”
United States v. Jefferson County Board of Education, supra, 372
F. 2d at 889.
31 A good example is Coppedge v. Franklin County Board of
Education, 273 F. Supp. 289 (E. D. N. C. 1967), appeal pending.
The Court found that there was marked hostility to desegregation
in Franklin County, that Negroes had been subjected to violence,
intimidation and reprisals, and that each successive year under the
freedom of choice plan it had approved earlier had resulted in
fewer requests by Negroes for reassignment to formerly all-white
schools. Concluding that (Id. at 296) :
Community attitudes and pressures . . . have effectively inhib
ited the exercise of free choice of schools by Negro pupils and
their parents
the Court directed that the defendants
prepare and submit to the Court, on or before October 15th,
1967, a plan for the assignment, at the earliest practicable date,
24
Nor were they mistaken. Tlie Civil Eights Commission,
in its most recent reports on school desegregation in
Brown-affected states, reports exhaustively of the violence,
threats of violence and economic reprisals to which Ne
groes have been and are subjected to deter them from
placing their children in white schools.32 That specific
of all students upon the basis of a unitary system of non-racial
geographic attendance zones, or a plan for the consolidation of
grades, or schools, or both (Id. at 299-300).
32 Southern School Desegregation, 1966-67 at pp. 45-69; Survey
of School Desegregation in the Southern and Border States, 1965-
66, at pp. 55-66. To relate but a few of the numerous instances of
intimidation upon which the Commission reported: the 1966-67
study quotes the parents of a 12 year old boy in Clay County,
Mississippi as saying (at p. 48) :
white folks told some colored to tell us that if the child went
[tO' a white school] he wouldn’t come back alive or wouldn’t
come back like he went.
In Edgecombe County, North Carolina, the home of a. Negro couple
whose son and daughter were attending the formerly all-white
school was struck by gunfire (50). In Dooly County, Georgia, the
father of a 14 year old boy, who had filled out his own form and
attended the formerly white school, reported that “that Monday
night the man [owner] came and said ‘I want my damn house by
Saturday’ ” (52).
The Commission made the following findings, in its 1966-67 re
port (atp . 88):
6. Freedom of choice plans, which have tended to perpetu
ate racially identifiable schools in the Southern and Border
States, require affirmative action by both Negro and white
parents and pupils before such disestablishment can be
achieved. There are a number of factors which have prevented
such affirmative action by substantial numbers of parents and
pupils of both races:
(a) Fear of retaliation and hostility from the white com
munity . . .
(b) [V]iolence, threats of violence and economic reprisal by
white persons, [and the] harassment of Negro children by
white classmates . . .
(c) [improper influence by public officials].
(footnote continued on following page)
25
episodes do not occur to particular individuals hardly pre
vents them from learning of them and acting on that knowl
edge.
With rare exception, then, school officials adopted, and
the lower courts condoned, free choice knowing that it
would produce fewer Negro students in white schools, and
less injury to white sensibilities than under the geographic
attendance zone method. Their expectations were justified.
Meaningful desegregation has not resulted from the use of
free choice. Even when Negroes have transferred, how
ever, desegregation has been a one-way street—a few
Negroes moving into the white schools, but no whites trans
ferring to Negro schools. In most districts, therefore, as
here, the vast majority of Negro pupils continue to attend
school only with Negroes.
Although the proportion of Negroes in all-Negro schools
has declined since Brown, more Negro children are now
attending such schools than in 1954.83 Indeed, during the
1966-67 school year, a full 12 years after Brown, more
than 90% of the almost 3 million Negro pupils in the 11
Southern states still attended schools which were over
95% Negro and 83.1% were in schools which were 100%
Negro.* 34 And, in the case before the Court, 85% of the
Negro pupils in New Kent County still attend schools with
(dj Poverty. . . . Some Negro parents are embarrassed to
permit their children to attend such schools without suitable
clothing. In some districts special fees are assessed for courses
which are available only in the white schools ;
(e) Improvements . . . have been instituted in all-Negro
schools . . . in a manner that tends to discourage Negroes from
selecting white schools.
:,s Southern School Desegregation, 1966-67, at p. 8.
Id. at 103.
26
only Negroes. “This June, the vast majority of Negro
children in the South who entered the first grade in 1955,
the year after the Brown decision, were graduated from
high school without ever attending a single class with a
single white student.” 33 Thus, as the Fifth Circuit has
said, “ [f]or all but a handful of Negro members of the
High School Class of 1966, this right [to equal educational
opportunities with white children in a racially non-dis-
criminatory public school system] has been ‘of such stuff
as dreams are made on.’ ” 35 36
In its most recent report, the Civil Eights Commission
states (Southern School Desegregation, 1966-67, at p. 3 ) :
. . . the slow pace of integration in the Southern and
border states was attributable in large measure to the
fact that most school districts in the South had adopted
so-called “free choice plans” as the principal method
of desegregation . . .
The review of desegregation under freedom of choice
plans contained in this report, and that presented in
last year’s Commission’s survey of southern school de
segregation, shows that the freedom of choice plan is
inadequate in the great majority of cases as an in
strument for disestablishing a dual school system. Such
plans have not resulted in desegregation of Negro
schools and therefore perpetuate one-half of the dual
school system virtually intact (Id, at 94).
* # # # *
35 Id. at 90-91.
36 United States v. Jefferson County Board of Education, supra,
372 F. 2d 836 at 845.
27
Freedom of choice plans . . . [have] failed to dis
establish the dual school systems in the Southern and
border states . . . [Id. at 3].37
II.
A Freedom of Choice Plan Is Constitutionally Unac
ceptable Where There Are Other Methods, No More
Difficult to Administer, Which Would More Speedily
Disestablish the Dual System.
The duty of a school board under Brown, in the late
sixties is to adopt that plan which will most speedily ac
complish the effective desegregation of the system. By
now, the time for “deliberate speed” has long run out.38 We
concede that a court should not enforce its will where
37 HEW has apparently reached the same conclusion. According
to the Director of its Office of Civil Rights, F. Peter Libassi, “ [free
dom of choice] . . . often doesn’t finish the job. of eliminating the
dual school system. We had to follow the freedom of choice plan
to prove its ineffectiveness, and this was the year that it did prove
its ineffectiveness, so that now we’re ready to move into the next
phase.” N. Y. Times, Sep.t. 24, 1967, at p. 57. And, in the Palm
Beach Post-Times of Oct. 8, 1967 at p. B-7, he was reported to have
said, “you can’t eliminate the dual system by free choice.”
In an earlier report, Facial Isolation in the Public Schools, the
Civil Rights Commission observed (at p. 69) that, “ . . . the degree
of school segregation in these free-choice systems remains high,” and
concluded that (ibid,.) : “only limited school desegregation has been
achieved under free choice plans in Southern and Border city school
systems.”
38 Almost two years ago this Court stated, “more than a decade
has passed since we directed desegregation of public school facilities
with all deliberate speed. . . . Delays in desegregating school systems
are no longer tolerable.” Bradley v. School Board of The City of
Richmond, 382 U. S. 103, 105. “There has been entirely too much
deliberation and not enough speed . . . ” Griffin v. County School
Board of Prince Edward County, 377 U. S. 218, 229. “The time for
more ‘deliberate speed’ has run out . . . ” Id. at 234. Cf. Watson
v. Memphis, 373 U. S. 526, 533.
2 8
alternative methods are not likely to produce dissimilar
results—that much discretion should still be the province
of the school board. We submit, however, that a court may
not—at this late date, in the absence of persuasive evidence
showing the need for delay—permit the use of any plan
other than that which will most speedily and effectively
disestablish the dual system. Put another way, at this point,
that method must be mandated which will do the job more
quickly and effectively.
A. The Obligation of a School B oard Under B rown v.
B oard of Education Is to Disestablish the Dual
School System and to Achieve a Unitary, Non-racial
System .
1. The Fourth Circuit’s Adherence to Briggs.
At bottom, this controversy concerns the precise point
at which a school board has fulfilled its obligations under
Brown I and II. When free choice plans initially were con
ceived, courts generally adhered—mistakenly, we submit—
to the belief that it was sufficient, to permit each student an
unrestricted free choice of schools. It was said that “de
segregation” did not mean “integration” and that the
availability of a free choice of schools, unencumbered by
violence and other restrictions, was sufficient quite apart
from whether any integration actually resulted. (The doc
trine probably had its genesis in the now famous dictum
of Judge Parker in Briggs v. Elliot, 132 F. Supp. 776, 777
(E. I). S. C. 1955), “The Constitution . . . does not require
integration. It merely forbids segregation.” 39) Despite
39 See generally Jeffers v. Whitley, 309 F. 2d 621, 629 (4th Cir.
1962); Borders v. Bippy, 247 F. 2d 268, 271 (5th Cir. 1957); Boson
v. Bippy, 285 F. 2d 43, 48 (5th Cir. 1960); Vick v. Board of Edu
cation of Obion County, 205 F. Supp. 436 (W. D. Tenn. 1962);
Kelley v. Board of Education of the City of Nashville, 270 F. 2d
209,229 (6th Cir. 1959).
29
its protestations, the majority below manifested much of
this thinking (66-67a, 68a):
Employed as descriptive of a system of permissive
transfers out of segregated schools in which the initial
assignments are both involuntary and dictated by racial
criteria [freedom of choice], is an illusion and an op
pression which is constitutionally impermissible . . .
Employed as descriptive of a system in which each
pupil, or his parents, must annually" exercise an un
inhibited choice, and the choices govern the assign
ments, it is a very different thing.
* * * # #
Since the plaintiffs here concede that their annual
choice is unrestricted and unencumbered, we find in its
existence no denial of any constitutional right not to be
subjected to racial discrimination. [Emphasis added.]
At no point in its ojhnion did the majority meet the
essence of petitioners’ claim—that in view of related ex
perience under the pupil placement law, there was no good
reason to believe that free choice would, in fact, desegre
gate the system and that the district court should have
mandated the use of geographic zones which, on the evidence
before it, would produce greater desegregation. The opin
ion, in true Briggs form, neither states nor implies a re
quirement that the plan actually “work.” The most it can be
read to say is that while Negroes rightfully may complain
if extraneous circumstances inhibit the making of a “truly 40
40 Contrary to the court’s statement, the plan did not require
that “each pupil or his parents must annually exercise [a] choice.”
See Note 2, supra.
30
free choice,” they have no basis to complain and the Con
stitution is satisfied if no such circumstances are shown.41
2 . B ro w n C o n tem p la ted C om ple te R eo rg an iza tio n ,
The notion that the making available of an ostensibly
unrestricted choice satisfies the Constitution, quite apart
from whether significant numbers of white students choose
Negro schools or Negro students white schools, is funda
mentally inconsistent with Brown I and II, Bolling v.
Sharpe, 347 U. S. 497, Cooper v. Aaron, 358 U. S. 1, Brad
ley v. School Board of the City of Richmond, 382 II. S. 103
and other decisions of this Court.42 Brown, in our view,
condemned not only compulsory racial assignments but
also, more generally, the maintenance of a dual public
school system based on race—where some schools are
maintained or identifiable as being for Negroes and others
for whites. It presupposed major reorganization of the
educational systems in affected states. The direction in
Brown II, to the district courts demonstrates the thorough
41 This is not an overharsh reading of the opinion. Only recently
a writer observed:
The Fourth is apparently the only circuit of the three that
continues to cling to the doctrine of Briggs v. Elliot, and em
braces freedom of choice as a final answer to school desegrega
tion in the absence of intimidation and harassment.
See Dunn, Title VI, The Guidelines and School Desegregation in
the South, 53 Va. L. Rev. 42, 72 (1967). Judge Sobeloff perceived
this and exhorted the majority to “move out from under the in
cubus of the Briggs v. Elliot dictum and take [a] stand beside the
Fifth and Eighth Circuits” (89a). Cf. Swann v. Charlotte Meck
lenburg Board of Education, 369 F. 2d 29 (4th Cir. 1966) where
essentially the same philosophy—that a desegregation plan need not
result in actual integration—was expressed in a case involving geo
graphic zones.
42 See Rogers v. Paul, 382 U. S. 198; Calhoun v. Latimer, 377
U. S. 263; Griffin v. County School Board of Prince Edward
County, 377 U. S. 218; Goss v. Board of Education, 373 U. S. 683.
31
ness of the reorganization envisaged. They were held to
consider:
problems related to administration, arising from the
physical condition of the school plant, the school trans
portation system, personnel, revision of school districts
and attendance areas into compact units to achieve a
system of determining admission to the public schools
on a non-racial basis, and revision of local laws and
regulations which may be necessary in solving the
foregoing problems (349 U. S. at 300-301).43 *
If a “racially non-discriminatory system” could be
achieved with Negro and white students continuing as be
fore to attend schools designated for their race, none of the
quoted language was necessary. It would have been suffi
cient merely to say “compulsory racial assignments shall
cease.” But the Court did not stop there. It ordered, rather,
a pervasive reorganization which would transform the sys
tem into one that was “unitary and non-racial,” one, in other
words, in wdiieh schools would no longer be identifiable as
being for Negroes or whites.
That students have been permitted to choose a school
does not destroy its racial identification if it previously
was designated for one race, continues to serve students of,
and is staffed solely by, teachers of that race. The only
way the racial identification of a school—consciously im
posed by the state during the era of enforced segregation
—can be erased is by having it serve students of botli races,
through teachers of both races. Only when racial identifica
tion of schools has thus been eliminated will the dual sys
tem have been disestablished.
43 Much the same was implied in Cooper v. Aaron, supra, at 358
U. S. 7: “state authorities were thus duty bound to devote every
effort toward initiating desegregation . . . ”
32
3. Case and Statutory Law.
Decisional and statutory44 law support this reading of
Brown. Only two—the Fourth and the Sixth45—of the six
44 Dissatisfied with the snail’s pace of southern school desegrega
tion (caused mainly by the early approval by the lower courts of
pupil placement laws and, when they were invalidated as admin
istered, by judicial acceptance of free choice), Congress enacted
Titles IV (42 U. S. C. 2000-c et seq.) and VI (42 U. S. C. 2000-d
et seq. (1964)) of the Civil Rights Act of 1964.
Pursuant to Title VI, the Department of Health, Education and
Welfare adopted a series of “Guidelines,” for school districts de
segregating pursuant to Brown. In its most recent—the Revised
Guidelines, dated December, 1966—the Department has taken the
position that desegregation plans must work—result in actual in
tegration. Under these Guidelines, the Commissioner has the power,
where the results under a free choice plan continue to be unsatis
factory, to require, as a precondition to the making available of
further federal funds, that the school system adopt a different type
of desegregation plan. Revised Guidelines, 45 CFR 181.54. Al
though administrative regulations propounded under Title VI of
the Civil Rights Act of 1964 are not binding on courts determining
private rights under the Fourteenth Amendment, nonetheless they
are entitled to great weight in the formulation by the judiciary
of constitutional standards. See Skidmore v. Swift & Co., 323
U. S. 134, 137, 139-140; United States v. American Trucking
Associations, Inc., 310 U. S. 534; Norwegian Nitrogen Products Co.
v. United States, 288 U. S. 294; United States v. Jefferson County
Board of Education, supra, 380 F. 2d at 390.
That HEW accepts free choice plans as establishing the eligibility
of a district for federal aid does not, of course, mean that such
plans are constitutional. The available evidence indicates that
HEW has approved such plans, despite the massive evidence of
their inability to disestablish the dual system, only because they
have received approval in the courts. It feels, perhaps properly,
that it may not enforce requirements more stringent than those
imposed by the Fourteenth Amendment. Cf. 45 CFR 181.2(1) and
181.6 which provide, in effect, that districts under court order are
eligible for aid. See also, the materials collected in Dunn, Title VI,
The Guidelines and School Desegregation in the South, 53 Va. L.
Rev. 42 (1967) ; Note, The Courts, HEW and Southern School De
segregation, 77 Yale L. J. 321 (1967). Change then must come from
the courts.
45 In the Sixth Circuit, see Brenda K. Monroe v. Board of Com
missioners of the City of Jackson, Tenn., 380 F. 2d 955 (1967),
33
circuits which have spoken to the question have taken the
position that a desegregation plan need not “work”—that
is disestablish the dual system by destroying racial iden
tification of schools. In United States v. Jefferson County
Board of Education, 372 F. 2d 836 (5th Cir. 1966) aff’d
with modifications on rehearing en banc, 380 F. 2d 385
(1967), cert. den. sub nom. Caddo Parish School Board
v. United States, 389 U. S. 840, the Fifth Circuit, in what
has so far been the most thorough judicial examination of
school desegregation, specifically rejected the Briggs theory
that Brown I and the Constitution do not require integra
tion but only an end to enforced segregation. Concluding
that “integration” and “desegregation” mean one and the
same thing, the court used the terms interchangeably to
mean the achievement of a “unitary non-racial [school]
system.” Judge Wisdom analyzed the problem (372 F. 2d
836, 866):
We do not minimize the importance of the Fourteenth
Amendment rights of an individual, but there was more
at issue in Brown than the controversy between cer
tain schools and certain children. Briggs overlooks the
fact that Negroes are collectively harmed when the
state by law or custom operates segregated schools
or a school system with uncorrected effects of segre
gation.
What is wrong about Briggs is that it drains out of
Brown that decision’s significance as a class action to
secure equal educational opportunities for Negroes by
now under review in No. 740 and Kelley v. Board of Education of
the City of Nashville, Term., 270 F. 2d 209 (6th Cir. 1959).
34
compelling the states to reorganize their public school
systems (Id. at 865).
He concluded (Id. at 866):
Segregation is a group phenomenon . . . Adequate
redress therefore calls for much more than allowing
a few Negro children to attend formerly white schools:
it calls for liquidation of the state’s system of de jure
school segregation and the organized undoing of the
effects of past segregation.
# # * # *
. . . the only adequate redress for a previously overt
system-wide policy of segregation directed at Negroes
as a collective entity is a system wide policy of in
tegration (Id. at 869). (Emphasis in original.)
# # # # *
We use the terms “integration” and “desegregation”
of formerly segregated public schools to mean the
conversion of a de jure segregated dual system to a
unitary, non-racial (non-discriminatory) system—lock,
stock and barrel; students, faculty, staff, facilities, pro
grams and activities (Id. at 846, Note 5).46
On rehearing en banc, the majority, while reaffirming
the panel opinion, put it this way (380 F. 2d 385, 389);
46 The Court held that school officials in formerly de jure systems
have “an absolute duty to integrate, in the sense that a dispropor
tionate concentration of Negroes in certain schools cannot be ig
nored” (372 F. 2d 836, 846). The test for any school desegregation
plan, said the court, is whether it achieves the “substantial inte
gration” which is constitutionally required and that a plan not ac
complishing that result must be abandoned and another substi
tuted (Id. at 895-896).
35
[School] Boards and officials administering public
schools in this circuit [footnote omitted] have the af
firmative duty under the Fourteenth Amendment to
bring about an integrated unitary school system in
which there are no Negro schools and no white schools
—just schools. Expression in our earlier opinions dis
tinguishing between integration and desegregation
[footnote omitted] must yield to this affirmative duty
we now recognize. In fulfilling this duty it is not
enough for school authorities to offer Negro children
the opportunity to attend formerly all-white schools.
The necessity of overcoming the effects of the dual
system in this circuit requires integration of faculties,
facilities and activities, as well as students.47 (Em
phasis added.)
Most of the other circuits have joined the Fifth Circuit
in requiring that school boards employ affirmative action
to “undo” the racial segregation they had previously cre
ated and that desegregation plans “work”—result in inte
47 Even before Jefferson, the Fifth Circuit had said (Singleton v.
Jackson Municipal Separate School District, 355 F. 2d 865, 869
(1966)) :
The Constitution forbids unconstitutional state action in the
form of segregated facilities, including segregated public
schools. School authorities, therefore, are under the constitu
tional compulsion of furnishing a single, integrated school
system. . . .
This has been the law since Brown v. Board of Education . . . .
Misunderstanding of this principle is perhaps due to the pop
ularity of an over-simplified dictum that the constitution “does
not require integration.”
And in an earlier stage of the same ease: “Judge Parker’s well-
known dictum . . . should be laid to rest.” 348 F. 2d 729, 730
(1965).
36
gration sufficient to disestablish the prior state-imposed
racial identification of schools. In Kemp v. Beasley, 352
F. 2d 14, 21 (1965), the Eighth Circuit stated “the dictum
in Briggs has not been followed in this Circuit and is log
ically inconsistent with Brown” In a later case, Kelley
v. The Altheimer, Arkansas Public School District, No. ,22,
378 F. 2d 483 (8th Cir. 1967), emphasizing the obligation
of formerly de jure school boards to disestablish, by af
firmative action the identities of formerly all-Negro and
all-white schools, the court stated:
We have made it clear that a Board of Education does
not satisfy its obligation to desegregate by simply
opening the doors of a formerly all-white school to
Negroes [footnote omitted] (Id. at 488).
* * * * *
The appellee School District will not be fully deseg
regated nor the appellants assured of their rights under
the Constitution so long as the Martin School clearly
remains identifiable as a Negro school. The require
ments of the Fourteenth Amendment are not satisfied
by having one segregated and one desegregated school
in a District. We are aware that it would be difficult
to desegregate the Martin School. However, while the
difficulties are perhaps largely traditional in nature, the
Board of Education has taken no steps since Brown
to attempt to change its identity from a racial to a non-
racial school (Id. at 490).48 (Emphasis added.)
48 Raney v. The Board of Education of the Gould School District,
381 F 2d 252 (8th Cir. 1967) suggests a withdrawal from Kelley
and a return to Briggs (cf. 381 F. 2d at 255-256). Appellants in
that case moved for rehearing en banc or by the panel adverting to
the conflict between panels. The motion was denied September 18,
1967.
37
To the same effect are Board of Education of Oklahoma
City Public Schools v. Dowell, 375 F. 2d 158 (10th Cir.
1967), cert, den., 387 U. S. 931,49 and Evans v. Ennis, 281
F. 2d 385, 389 (3rd Cir. 1960), “The Supreme Court has
unqualifiedly declared integration to be their constitutional
right.”
This Court granted certiorari January 15, 1968, No. 805. See p.
13, supra.
The recent decision in the second appeal in Kemp v. Beasley,-----
F. 2 d ------, No. 19017, January 9, 1968, is, however, a reaffirmation
of the principles enunciated in the first Kemp decision (352 F. 2d
14) and in Kelley.
49 In the Oklahoma City case, the School District adopted in
1955, in response to Brown, a unitary zoning plan which preserved,
because of residential housing patterns, substantial segregation of
the races and over which it superimposed a “minority to majority”
transfer provision of the type condemned by this court in Goss v.
Board of Education of the City of Knoxville, Tenn., 373 U. S. 683.
At the time of the district court’s final decision in 1965, 80% of
the Negro students in the system were still attending schools which
were all-Negro or at least 95% Negro. In addition, little or nothing
had been done to integrate faculties. The district court found (244
F. Supp. 971, 976 (W. D. Okla. 1965)) :
That the Board had failed to desegregate the public schools
in a manner so as to eliminate . . . the tangible elements of the
segregated system.
. . . where the cessation of assignment and transfer policies
based solely on race is insufficient to bring about more than
token change in the segregated system, the Board must devise
affirmative action reasonably purposed to effectuate the de
segregation goal. (Emphasis added.)
It ordered, inter alia, as a panel of educational administrators had
recommended, changes in the grade structures of some schools and
the adoption of a “majority to minority” transfer provision. Al
though such a provision—one which permits a student to transfer
only from a school in which his race is in the majority to a school
where his race will be in the minority—is not a racially neutral
rule, and, in fact, has the effect of promoting integration, the Tenth
Circuit approved the district court order. Said the Court, “ [ujnder
the factual situation here we have no difficulty in sustaining the
trial court’s authority to compel the board to take specific action in
compliance with the decision so long as such compelled action can
be said to be necessary for the elimination of . . . unconstitutional
evils . . . ” (375 F. 2d at 166). It found all such actions necessary.
38
4. Equitable Analogies.
The second Brown decision, declared that “in fashioning
and effectuating the decrees, the courts will be guided by
equitable principles” (349 U. S. at 300). Equity courts
have broad power to mold their remedies and adapt relief
to the circumstances and needs of particular cases. Where,
as here, the public interest is involved “those equitable
powers assume an even broader and more flexible char
acter . . . ” Porter v. Warner Molding Co., 328 U. S. 395,
398. Accordingly, such courts have required wrongdoers
to do more than cease unlawful activities and compelled
them to take affirmative steps to undo effects of their wrong
doing. Louisiana v. United States, 380 U. S. 145, 154 in
volved such a decree:
The court has not merely the power but the duty to
render a decree which will so far as possible, eliminate
the discriminatory effects of the past as well as bar
like discrimination in the future.
Under the Sherman Anti-trust Act, unlawful combina
tions are dealt with by dissolution and stock divestiture.
See e.g., United States v. Crescent Amusement Co., 323
U. S. 173, 189 and cases cited; Schine Chain Theatres v.
United States, 334 U. S. 110, 126-130. Similarly, where a
corporation has unlawful monopoly power which would
operate as long as it retains a certain form, equity has
required dissolution. United States v. Standard Oil Co.,
221 U. S. 1.
The same has been accomplished under the National
Labor Relations Act where it was recognized early that
disestablishment of an employer-dominated labor organi
zation, “may be the only effective way of wiping the slate
39
clean and affording the employees an opportunity to start
afresh in organizing . . . ”, N. L. R. B. v. Newport News.
Shipbuilding <& Dry Dock Co., 308 U. S. 241, 250; American
Enka Corp. v. N. L. R. B., 119 F. 2d 60, 63 (4th Cir. 1941);
Sperry Gyroscope Co. Inc. v. N. L. R. B., 129 F. 2d 922,
931-932 (2nd Cir. 1942); Carpenter v. Steel Co., 76 NLRB
670 (1948).
5. Summary.
Of course, nothing we have said is directed to the ques
tion whether school hoards in all places and all circum
stances are under a constitutional duty to eradicate school
segregation no matter how engendered. That question is
not here.
Nor, do we think, as Judges Gewin and Bell have argued
forcefully in their dissent in Jefferson, that to insist that
a desegregation plan (of a district formerly segregated by
law) “work” is to impose a special rule on 17 states but
not on other states whose schools might equally be segre
gated. See 380 F. 2d at 397-398, 413-414. Segregation in
the systems before that court was directly traceable to
state action. It was certainly within the court’s power (and,
indeed, its duty under the Brown decisions) to require that
that segregation be undone. In any event, the fact that
segregation caused by residential patterns might have the
same effect on Negro pupils as segregation caused by state
law does not insulate the latter from the Fourteenth Amend
ment merely because no remedy has yet been prescribed
for the former.
Our submission is: where racial segregation is the prod
uct of unconstitutional acts or policies, the mere allowance
of a choice of schools does not satisfy the duty to effect
40
a unitary non-racial system, if, in fact, the overwhelming
majority of students continue to attend schools previously
designated by law for their race.
The Fifth Circuit in Jefferson did not hold and we do
not urge, that freedom of choice plans are unconstitutional
per se. Indeed, in areas where residential segregation is
substantial and entrenched, a free transfer system might
be of assistance in the achievement of desegregation.
Rather, our position is that a freedom of choice plan is not,
in the late sixties, an “adequate” desegregation plan (Brown
II, supra, 349 U. S. at 301), where, as here, there is an
other plan, more feasible to administer, which will more
speedily and effectively disestablish the dual system.50
50 The dissenters’ opinions in Jefferson create the mistaken im
pression that free choice is an established, sensible method of pupil
assignment:
Freedom of choice means the unrestricted, uninhibited, unre
strained, unhurried and unharried right to choose where a stu
dent will attend public school . . . (380 F. 2d at 404).
* # # # #
Accordingly while professing to vouchsafe freedom and liberty
to Negro children, [the Judges in the majority] have destroyed
the freedom and liberty of all students, Negro and white alike
(Id. at 405).
But, as we point out in the Introduction (pp. 13-27, supra), per
mitting students to assign themselves is entirely novel, administra
tively wasteful, racially motivated, and incapable of disestablishing
the dual system. “Freedom of choice,” despite its appealing title,
should constantly be viewed as what it is: another sophisticated
device school boards have developed in their long fight to neutralize
the Brown decision.
41
III.
The Record Clearly Shows That a Freedom of Choice
Plan Was Not Likely to Disestablish and Has Not Dis
established the Dual School System and That a Geo
graphic Zone Plan or Consolidation Would Immediately
Have Produced Substantial Desegregation.
Plaintiffs’ exhibits showed, Judge Sobeloff observed, and
the available census figures confirmed, that there was no
residential segregation in New Kent County. Separate
buses maintained for the races traversed all areas of the
county picking up children to be taken to the school main
tained for their race. Yet, instead of geographically zon
ing each school as logic and reason would seem to dictate,51
and as it almost certainly would have done had all children
been of the same race, the School Board gratuitously
adopted a free choice plan thereby incurring the adminis
trative hardship of processing choice forms and of furnish
ing transportation to children choosing the school farthest
from their homes. Indeed, in view of the lack of residential
segregation it can fairly be concluded that the dual school
system could not continue, as Judge Sobeloff has said (see
p. 10 supra), but for free choice. Freedom of choice has
been, at least in this community, the means by which the
State has continued, under the guise of desegregation, to
maintain segregated schools.
The Board could not, in good faith, have expected that
enough students would choose the school previously closed
51 Compare Judge Sobeloff’s suggestion quoted at p. 10, supra
(76-77a) that the dual system could immediately he eliminated and
a unitary non-racial system achieved by the assignment of students
in the eastern half of the county to New Kent and those in the
western half to Watkins.
42
to them to produce a truly integrated system. The evidence
belies this. The Board had, for several years prior to the
adoption of free choice in 1965,52 operated under the Vir
ginia Pupil Placement Act, under which any student, could,
as in free choice, choose either school. When the New
Kent Board adopted free choice, no Negro student had
ever chosen to transfer to the white school and no white
student had ever chosen to attend the Negro school (25a,
no. 7). Thus, at the time the Board adopted free choice,
it was clear, based on related experience under the Pupil
Placement Law, that free choice would not disestablish the
separate systems and produce a “unitary non-racial sys
tem.” 53
52 Although the Board adopted its plan in August, 1965, it was
not approved by the Court and actually implemented until the
Fall term of 1966.
53 The use, in this case, of a free choice plan is subject to serious
question on the ground that it promotes invidious discrimination.
By permitting students to choose a school, instead of assigning them
on some rational non-racial basis, the school board allows students
invidiously to utilize race as a factor in the school selection process.
Thus it is that white students invariably choose the formerly white
school and not the Negro school. To be sure the Constitution does
not prohibit private discrimination. But states may not designedly
facilitate the discriminatory conduct of individuals or lend support
to that end. See Beitman v. Mulkey, 387 U. S. 369; Robinson v.
Florida, 378 U. S. 153; Anderson v. Martin, 375 U. S. 399; Goss
v. Board of Education, 373 U. S. 683. See also, Black, The Supreme-
Court, 1966 Term—Foreword: “State Action,” Equal Protection
and California’s Proposition 14, 81 Harv. L. Rev. 69 (1967). Cf.
Burton v. Wilmington Parking Authority, 365 U. S. 715. Thus in
Anderson, this Court held that although individual voters are con
stitutionally free to vote partly or even solely on the basis of race,
the State may not designate the race of candidates on the ballot.
Such governmental action promotes and facilitates the voters’ suc
cumbing to racial prejudice. So too here, giving students in a dis
trict formerly segregated by law the right to choose a school facili
tates and promotes choices based on race.
It is no answer that some students may not, in fact, use race as a
factor in the choice process. In Anderson, the statute was not saved
43
Nor has it done so in the years since its adoption. Bnt
for the relatively small number of Negro children attend
ing the formerly white school the two schools are operated
substantially as before Brown. “The transfer of a few
Negro children to a white school does not,” as the Fifth
Circuit has observed, “do awa}̂ with the dual system.”
United States v. Jefferson County Board of Education,
supra, 372 F. 2d at 812.54 During the current school year,
1967-68, only 115 (approximately 15%) of the 736 Negroes
in the New Kent School District attend school with whites
at the New Kent school. No whites are attending and,
indeed, none have ever attended Watkins, the Negro school.
A full generation of school children after Brown, 85% of
New Kent’s Negro children still attend a school that is
entirely Negro. Here, as in most districts utilizing free
because some persons might vote without regard to the race of the
candidate. It is the furnishing of the opportunity that is prohibited
by the Constitution.
We do not argue that a school board may never permit students
to choose schools. And certainly systems using attendance zones
would not run afoul of the Constitution by permitting students to
transfer for good cause shown. Presumably in such instances a
legitimate non-racial reason would have to be supplied.
Nor do we argue that freedom of choice may never be used where
race is intended to be a factor. For in a system in which residential
segregation is deeply entrenched, the allowance of a choice of
schools based on race may be a useful way to achieve desegregation.
There, however, the plan is being used to undo rather than 'per
petuate segregation as the plan in this case is being used to do. Cf.
Goss, supra at 688, where this Court stated that “no plan or pro
vision of which racial segregation is the inevitable consequence may
stand under the Fourteenth Amendment.”
64 The Eighth Circuit puts it another way:
School boards must recognize the constitutional inadequacy of
maintaining school systems where the formerly all white school
has the appearance of only token integration and the all Negro
school is still perpetuated as a separate unit.”
Kemp v. Beasley,----- F. 2 d ------ , No. 19017, January 9, 1968, slip
op. at 4.
44
choice, one-half of the dual system has been retained intact.
Nothing bat race can explain the continued existence of
this all-Negro school and defer indefinitely its elimination
where both races are scattered throughout the county.
“Perpetuation of [this] all-Negro school in a formerly
de jure segregated school system is simply constitutionally
impermissible.” Kemp v. Beasley, ----- F. 2d ——, No.
19,017, January 9, 1968, slip op. at 8.
The duty of the Board was to convert the dual school
system created by state law and local rules in derogation
of petitioners’ rights into a “unitary non-racial system.”
It had a common sense alternative—geographic zoning—
which the record shows would have disestablished the dual
system more speedily and with much less administrative
hardship than the free choice device it ultimately chose.
But that was not the only alternative: the Board could
have consolidated the two facilities into one school with
one site, for example, serving grades 1-7 and the other
grades 8-12.55 This would have resulted in a more efficiently
operated system enabling better equipment and expanded
course offerings,56 and immediately would have produced
an integrated system. The most important study of sec
ondary education in this country, James Bryant Conant’s,
The American High School Today (1959), gives highest
priority to the elimination of small high schools graduating
55 New Kent has apparently never utilized separate junior high
schools. Both Watkins and New Kent are operated on the basis of
7 elementary grades and 5 high school grades (no. 14, 26a).
56 No extended argument is needed to support the proposition
that a school board can more economically furnish one well-
equipped science laboratory, than two of mediocre quality. Sim
ilarly, where particular course offerings depend on student demand,
more such courses might be offered after consolidation.
45
classes of less than one hundred.57 Here, New Kent County,
despite this opportunity to provide a broader and more
intensive educational experience to all students, both Negro
and white, continues wastefully to maintain two separate
sites, each graduating but 30-35 students each year.
To be sure, the Fourteenth Amendment does not require
that school administrators in -Brown-affected states operate
their systems in the most efficient manner. But the motive
of a school board which has needlessly converted to free
choice in an area where the races are interspersed comes
more clearly into focus when examined against the back
ground of available options.
The Board’s construction policies shed further light on
its motives. As late as June, 1965, the Board announced
its intention to make identical additions at both Watkins
and New Kent (at each, 4 classrooms—2 seventh, 2 sixth)
(no. 19, 27-28a). And, in December 1966, six months after
the district court had approved its desegregation plan (al
legedly designed to achieve a unitary non-racial system),
both four room additions were opened. Adding equally,
in the context of free choice, to each of two sites, one tra
ditionally maintained for Negroes, the other for whites,
57 “The enrollment of many American public high schools is too
small to allow a diversified curriculum except at exorbitant expense
. . . The prevalence of such high schools—those with graduating
classes of less than one hundred students—constitutes one of the
serious obstacles to good secondary education throughout most of
the United States. I believe such schools are not in a position to
provide a satisfactory education for any group of their students-—
the academically talented, the vocationally oriented, or the slow
reader. The instructional program is neither sufficiently broad nor
sufficiently challenging. A small high school cannot by its very
nature offer a comprehensive curriculum. Furthermore, such a
school uses uneconomieally the time and efforts of administrators,
teachers, and specialists, the shortage of whom is a serious national
problem” (p. 76).
46
indicates, we submit, an intention by the Board to reinforce,
rather than disestablish the dual system.58
Most important, however, the success of free choice de
pended on the ability of Negroes to unshackle themselves
from the psychological effects of prior state-imposed racial
discrimination, and to withstand the fear and intimidation
of the present and future. Neither of the other alternatives
(geographic zones or restructuring grades) under which
assignments would be made by the Board—as they had been
until Brown—would subject Negroes to the possibility of
intimidation or give undue weight, as does free choice, to
the very psychological effects of the dual system that this
Court found objectionable.59 Instead of fashioning a decree
which would “as far as possible eliminate the discrimina
58 Its construction policies have apparently remained unchanged.
Only a few months ago the Board voted unanimously to construct,
inter alia, two new gymnasiums, one at Watkins, the other at New
Kent. Richmond Times-Dispatch, Thursday, Aug. 24, 1967, p. B-8.
A similar inference (of an intention to reinforce rather than dis
establish the dual system) was made in Kelley v. Altheimer Arkansas
Public School District No. 22, 378 F. 2d 483 (8th. Cir., 1967) dis
cussed at p. 36, supra. There, as here, the school board added
additional classrooms at each of two complexes, one traditionally
maintained for Negroes, the other for whites. Said the Court (Id.
at 497) :
We conclude that the construction of the new classroom build
ings had the effect of helping to perpetuate a segregated school
system and should not have been permitted by the lower court.
See also Id. at 495-496. Cf. section VII of the decree appended by
the United States Court of Appeals for the Fifth Circuit to its
opinion in the Jefferson County case, where the court ordered that
school officials (380 F. 2d at 394)
locate new school [s] and [expansions of] existing schools with
the objective of eradicating the vestiges of the dual system.
59 In a related context, this Court has said:
It must be remembered that we are dealing with a body of
citizens lacking the habits and traditions of political inde
pendence and otherwise living in circumstances which do not
encourage initiative and enterprise. Lane v. Wilson, 307 U. S.
268, 276. Cf. pp. 22-23 and Note 29, supra.
47
tory effects of the past” (cf. Louisiana v. United States,
380 U. S. 145, and the other cases discussed at pp. 38-39,
supra), the lower courts have, by approving free choice,
permitted the Board to utilize those discriminatory effects
to maintain its essentially segregated system..
Nor did the Board introduce any evidence to justify its
method, which, if it could disestablish the dual system at
all, would require a much longer period of time than the
method petitioners had urged upon the Court. As this
Court said in Brown II (349 U. S. at 300):
The burden rests upon the defendants to establish
that such time [in which to effectuate a transition
to a racially non-discriminatory system] is necessary
in the public interest and is consistent with good
faith compliance at the earliest practicable date.
It was, therefore, error for the court below to approve
the freedom of choice plan in the face of petitioners’ proof,
especially when the Board failed to show administrative
reasons, cognizable by Brown II, justifying delay.
The data regarding assignment of teachers also reveal
the failure of the Board to disestablish the dual system.
The racial composition of the faculty at each school dur
ing the current year (1967-68) mirrors the racial compo
sition of the student bodies. No Negroes are among the
28 full-time teachers at the formerly all-white New Kent
school; only one Negro teacher is assigned there and that
is for the equivalent of one day each week. At Watkins,
only one of some 30 teachers is white. Thus, neither of
the only two schools in the county has lost, either in terms
of its students or faculty, its racial identification.60
60 The failure of the Board to take meaningful steps to integrate
its faculties is consistent with what the record shows: that the
48
Only occasionally in the fourteen years since Brown has
this Court reviewed lower court supervision of the tran
sition to non-discriminatory systems. This may have been
due in part to the belief voiced in Brown II, that “the
[district] courts, because of their proximity to local con
ditions . . . ” could best oversee the transition. (349 U. S.
at 298). With the enactment of Title VI, however, the
situation has changed. Whereas the first decade of litiga
tion produced only token compliance with Brown, more
has been accomplished by HEW’s implementation of Title
VI.61 Indeed, as the Civil Rights Commission has found,
“the major federal role in Southern school desegregation
[has] shifted from the federal courts to [HEW].” 62
Title VI enforcement by HEW has at its disposal ample
resources not available to courts. In assisting a district
to regain or attain eligibility for federal funds it can utilize
educational experts, field investigators and other profes
sional personnel. But HEW relies on the courts to articu
late the standards it implements. (Note 44 supra.) Thus,
its effectiveness in converting the principles enunciated
in Brown into living experience for school children, will
Board, by adopting free choice, could not in good faith have be
lieved or intended that the dual system would thereby be converted
into the non-racial system required by the Constitution. “ [F]ac
uity segregation encourages pupil segregation and is detrimental
to achieving a constitutionally required non-raeially operated school
system.” Clark v. Board of Education, Little Bock School District,
369 F. 2d 661, 669-670 (8th Cir. 1966); United States v. Jefferson
County Board of Education, supra, 372 F. 2d at 883-885; Bradley
v. School Board of the City of Richmond, 382 U. S. 103; Rogers
v. Paul, 382 U. S. 198.
61 “ . . . [M] ore Negro children have entered schools with white
children during this period [the 3 years since enactment of Title
VI] than during all of the 10 previous years.” Southern School
Desegregation, 1966-67, at 90.
62 Id. at 1.
49
be enhanced by this Court’s articulation of governing
standards.
We repeat, however, that our thrust is limited rather
than general; we do not urge that a freedom of choice
plan is unconstitutional per se and may never be used.
Our submission is simply that- it may not be used where
on the face of the record there is little reason to believe
it will be successful and there are other methods, more
easily administered, which will more speedily and effec
tively disestablish the dual system.63
63 A trend away from freedom of choice seems to have developed
recently in some of the lower courts. A recent order of a district
court in Virginia appears to have adopted the view we urge. See
Corbin v. County School Board of Loudon County, Virginia-, C. A.
No. 2737, B. D. Va., August 27, 1967. In Loudon County, as in this
case, Negroes were scattered throughout the County. The district
court had approved in May, 1963 a freedom of choice plan of de
segregation. In April, 1967, plaintiffs and the United States filed
motions for further relief contending that the freedom of choice
plan had resulted in only token or minimal desegregation with the
majority of Negroes still attending all-Negro schools. They re
quested that the district be ordered to desegregate by means of
unitary geographic attendance zones drawn without regard to race.
The district court agreed and on August 27th entered an order
directing th a t:
No later than the commencement of the 1968-69 school year the
Loudon County Elementary Schools shall be operated on the
basis of a system of compact, unitary, non-raeial geographic
attendance zones in which, there shall be no schools staffed or
attended solely by Negroes. Upon the completion of the New
Broad Bun High School, the high schools shall be operated on
a like basis.
See alsojhoses v. Washington Parish School Board, —-— F. Supp.
----- (E. D. La., October 19, 1967), discussed at pp. 19-20, supra.
Cf. Orders requiring the use of geographic zones in Coppedge v.
Franklin County Board of Education, 273 F. Supp. 289 (E. D.
N. C. 1967) appeal pending, discussed in Note 31, supra, and
Braxton v. Board of Public Instruction of Duval County, Florida,
No. 4598 (M. D. Fla.), January 24, 1967.
So far as we are aware the first and only court order disapprov
ing free choice, prior to the cases discussed above, was entered in
Mason v. Jessamine County Board of Education, 8 Race Rel. L. Rep.
530 (E. D. Ky. 1963).
50
CONCLUSION
W h erefo re , for the foregoing reasons it is respectfully
submitted that the judgment of the United States Court
of Appeals should be reversed. The case should be re
manded to the district court with instructions to conduct
immediately a hearing on whether some other method of
pupil assignment would, consistently with sound educa
tional principles, sooner disestablish the dual system. If
such be the case that court should order that the speedier
method be employed by defendants.
Respectfully submitted,
J ack Greenberg
J ames M. N abrit, III
F r a n k l in E. W h it e
10 Columbus Circle
New York, New York 10019
S. W. T ucker
H en ry L. M a rsh , III
214 East Clay Street
Richmond, Virginia
Attorneys for Petitioners
Of Counsel:
M ich a el M eltsn er
M ic h a el J . H en ry
RECORD PRESS — N. Y. C.