Green v. New Kent County, VA School Board Brief for the Petitioners

    I n  t h e

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



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