McDaniel v Barresi, Jr. Brief of Petitioners

    IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM , 1970

No. m

CHARLES McDANIEL, et a!., 
Petitioners,

vs.

JOSEPH BARRESI, JR ., et a !.
Respondents.

Ori Writ of Certiorari to the Supreme Court of Georgia

BRIEF OF PETITIONERS

\ " : iVv
f r

f- V

EU G ENE A. EPTING 
ERWIN, EPTING, GIBSON & CHILIVIS 

P. 0. Box 1587 
Athens, Georgia 30601 

Counsei for Petitioners

St. uouiB 3.aw Printing Co., Inc., 411-16 N. Eighth St. 63101 314-231-4477

• r v f r f



i

TABLE OF CONTENTS
Page

o
Opinions below .................................................................

o
Jurisdiction ......................................................................
Constitutional provisions and statutes involved ........ 2

O
Questions presented ..........................................................

A
Statement of facts ...........................................................

7
Summary of argument.....................................................

Argument ..........................................................................  ^
1. Boards of education of public schools have the

judicially declared affirmative duty to take what­
ever action may be necessary to desegregate 
their schools ...........................................................  ®

2. In the placement of students in schools a board
of education is vested with a wide discretion . . .  10

3. A person does not have any constitutional right
to choose which school a child «hall attend; nor 
is assignment to a more distant or less conveni­
ent school than another in the system a viola­
tion of constitutional rights under the Fourteenth 
Amendment .............................................................  H

4. While the establishment of a unitary school sys­
tem requires that students be assigned without 
regard to their race, it is necessary that race be 
taken into consideration in order to eliminate a 
formerly operated dual school system .................  15

5. The Civil Rights Act of 1964 does not prohibit
voluntary action by a board of education which 
involves the moving, by bus or otherwise, of 
students from one area to another in order to 
accomplish school desegregation...........................  16

Conclusion ........................................................................  17



11

Cases Cited

Acree v. County Board of Education of Richmond 
County, Georgia, 294 F. Supp. 1034 (S. D. Ga.) . . . .  13

Alexander v. Holmes County Board of Education, 396 
U. S. 19, 90 S. Ct. 29, 24 L. Ed. 2d 1 9 .......................  9

Beddingfield v. Parkerson, 212 Ga. 654 (94 S. E. 2d 
714) ...............................................................................  11

Caddo Parish School Board v. United States, 389 U. S.
840, 88 S. Ct. 67, 19 L. Ed. 2d 1 0 3 ............................. 13

Carter v. West Feliciana School Board, 396 U. S. 290,
90 S. Ct. 608, 24 L. Ed. 2d 477 ..................................  9

Davis v. Board of School Commissioners of Mobile 
County, et ah, 393 F. 2d 690 (5th Cir.) ................. 10,13

Green v. School Board of New Kent County, 391
U. S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 .................  8, 9

Griffin v. School Board of Prince Edward County, 377 
U. S. 218, 84 S. Ct. 1226, 12 L. Ed. 2d 256 ...............  13

Henry v. Clarksdale Municipal Separate School Dis­
trict. et ah, 409 F. 2d 682 (5th Cir.) .........................  10

Joseph Barresi, Jr., et al. v. Browne, President of 
Clarke County Board of Education, et al., 226 Ga.
456, . . .  S. E. 2 d .........................................................  2

Keever v. Board of Education of Gwinnett County, 188 
Ga. 299 (3 S. E. 2d 886) ............................................  11

Keyes v. School District No. 1, Denver, Colorado (D. 
Col.), 303 F. Supp. 298 ................................................ 16

Ivotch v. River Port Pilot Commissioner, 330 U. S.
552, 67 S. Ct. 910, 91 L. Ed. 1093 ..............................  13

McKenzie v. Walter, 210 Ga. 189 (2) (78 S. E. 2d 486) 11
Monroe, et al. v. Board of Commissioners, 391 U. S.

450, 88 S. Ct. 1700, 20 L. Ed. 2d 733 ......................... 9

m

Northcross v. Board of Education of Memphis, 397 
U. S. 232, 90 S. Ct. 891, 25 L. Ed. 2d 246 .................  9

Olson v. Board of Education (E. D., New York), 250 
F. Supp. 1000 ................................................................. 16

Olson v. Board of Education of U. Free School Dis­
trict No. 12, 250 F. Sup. 1000 ....................................  11

Raney et al. v. Board of Education, 391 U. S. 443,
88 S. Ct. 1697, 20 L. Ed. 2d 727 ................................  9

Spangler v. Pasadena City Board of Education (C. D. 
Cal.), 311 F. Supp. 501 (20)................................ * • • • 16

United States v. Indianola Municipal Separate School 
District, 410 F. 2d 626 (5th Cir.)...............................  10

United States v. Jefferson County Board of Education,
372 F. 2d 836, aff’d cn banc, 380 F. 2d 285 ........12,13,16

United States v. School District 151 of Cook County, 
Illinois (N. D. 111.), 286 F. Sup. 786 .......................15-16

Wanner v. County School Board of Arlington County, 
Virginia, 357 F. 2d 452 (4th Cir.) ........................... 15

Statutes Cited

Constitution of the United States:
Amendment XIV ........................................................2,3,6

The Civil Rights Act of 1964 (Pub. Laws 88-352, Title 
IV, Section 401; 78 Stat. 246, 42 USCA (Chapter 21) 
Section 2000c) .................................................... 2,4,6,7,18

The Civil Rights Act of 1964 (Pub. Laws 88-352, Title 
IV, Section 407; 78 Stat. 428, 42 USCA (Chapter 21) 
Section 2000c-6 (a) (2)) .....................................3,6,7,18

Text Cited

79 C. J. S. 368, Section 450 10



i

IN THE

SUPREME COURT OF I HE UNITED STATES

OCTOBER TERM , 1970

No. 420

CHARLES McDANIEL, et a l. 
Petitioners,

vs.

JOSEPH BARRESi, JR ., et a l. 
Respondents.

On Writ of Certiorari to the Supreme Court of Georgia

BRIEF OF PETITIONERS

Petitioners are tlic Superintendent of Education and 
members of the Board of Education of Clarke County, 
Georgia; and, with certain predecessors in office, were 
defendants in two actions tiled in the Superior Court of 
Clarke County, Georgia, the Plaintiffs, who included the 
Respondents herein, seeking to have enjoined the use of 
an elementary school attendance plan adopted by Clarke 
County Board of Education; wherein injunctions were de­
nied, but on appeal to the Supreme Court of Georgia the 
judgment of the Trial Court was reversed.

%
1.

r - . i  • ,
f  ■

£
\

t ■

t

k
X

l  ■
'I;



OPINIONS BELOW

Petitioners applied for Writ of Certiorari to review tlie 
opinion and judgment of the Supreme Court of Georgia in 
the case of Joseph Barresi, Jr., et al. v. Browne, President 
of Clarke County Board of Education, et al., 22G Ga. 456, 
. . .  S. E. 2d . . . ;  (A-228-234), which judgment reversed 
the judgment of the Superior Court of Clarke County, 
Georgia (A-32-36), which judgment is unreported.

JURISDICTION

Petitioners’ application for Writ of Certiorari was filed 
July 20, 1970, seeking a review and reversal of an opinion 
and judgment rendered by the Supreme Court of Georgia 
on June 15, 1970 (A-228-234); jurisdiction of the Supreme 
Court of the United States being invoked under Title 28, 
U. S. Code, Section 1257 (3). The Supreme Court of 
Georgia is the highest Court of the State of Georgia in 
which a decision could be had; and the case involves the 
claimed rights and privileges of the parties under the 
Fourteenth Amendment of the Constitution of the United 
States.

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

1. Constitution of the United States, Amendment XIV, 
Section I:

“ . . . nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction the equal 
protection of the laws.”

2. The Civil Rights Act of 1964 (Pub. Laws 88-352, 
Title IV, Section 401; 78 Stat. 246, 42 USCA (Chapter 
21) Section 2000c) which provides in pertinent part:

—  3 —

“ As used in this sub-chapter . . . (b) ‘ desegrega­
tion’ means the assignment of students to public 
schools and within such schools without regard to 
their race, color, religion, or national origin, but 
‘ desegregation’ shall not mean the assignment of stu­
dents to public schools in order to overcome racial 
imbalance. ’ ’

3. The Civil Rights Act of 1964 (Pub. Laws 8S-352, Title 
IV, Section 407; 78 Stat. 428, 42 USCA (Chapter 21) Sec­
tion 2000c-6 (a) (2)) which provides in pertinent part:

“ . . . nothing herein shall empower any official or 
court of the United States to issue any order seeking 
to achieve a racial balance in any school by requiring 
the transportation of pupils or students from one 
school to another or one school district to another in 
order to achieve such racial balance, or otherwise 
enlarge the existing power of the court to insure com­
pliance with constitutional standards.”

QUESTIONS PRESENTED
1. Whether the Supreme Court of Georgia was correct 

in holding that a plan adopted by Clarke County Board of 
Education for attendance' of students in the elementary 
schools of Clarke County School District constituted a vio­
lation of the constitutional rights, under the equal pro­
tection clause of the Fourteenth Amendment to tl.e Con­
stitution of the United States, of those students who were 
thereby required to attend schools more distant from 
their residences than other schools in the school district. 
The plan in question was adopted in July of 1969, and ap­
proved by the Civil Rights Division of the Department 
of Health, Education and Welfare on August 7, 1969, and 
established school attendance zones in such a manner as 
to accomplish substantial integration of white and black 
students in all such schools, with a ratio of 20% to 40% 
black and 80% to 60% white students in each school used

r.
|

j:
y
rt i- • £

fv.ffv.

I

i
;■

t



as a criterion; and which plan included five areas de­
scribed as “ pockets”  or “ satellite zones” , from which 
areas students were assigned to schools more distant from 
their residences than other elementary schools of their 
grade level in the system; which plan involved the busing 
of students in some zones to schools more distant from 
their residences than other elementary schools in the sys­
tem.

2. Whether the Supreme Court of Georgia was correct 
in holding that the provisions of the Civil Rights Act of 
196t (Pub. Laws 88-352, Title IV, Section 401 and 407, 78 
Stat. 240 and 248, 42 USCA, Chapter 21) prohibited a 
board of education from adopting and operating a school 
attendance plan which involved the assignment of students 
to public schools in order to overcome racial imbalance, 
and the transportation of students from one school zone 
to another in order to achieve a racial balance.

STATEMENT OF FACTS

Beginning in 1963, Clarke County Board of Education 
began integration of its schools, first by means of transfer 
applications, and subsequently by use of “ freedom of 
choice”  and zoning, all without the compulsion of any 
court proceeding or order. In the 1968-69 school year it 
operated on a zone basis for outlying areas, and freedom 
of choice for schools in the central areas of the City of 
Athens. This was with approval of the Department of 
Health, Education and Welfare (HEW) (A-160).

In October 1968, HEW notified the Board of Education 
that a plan would bo required for future years which 
would involve greater desegregation of students and 
faculty. A committee of three members of the Board, as 
well as faculty, administrative staff members, citizens 
groups, and the School Desegregation Education Center of 
the University of Georgia, studied various zoning, pairing 
and other plans; and the Board of Education finally, on

April 24, 1969, approved a “ Neighborhood Plan”  as being 
the best that could be devised, in view of the complicated 
racial distribution and housing patterns and transportation 
problems in Clarke County. This plan had the tentative 
approval of the Atlanta office of HEW, but after sub­
mitting it to the Washington, D. C., Civil Rights Division 
of HEW, and after considerable discussion and delay by * 
that office, the plan was rejected by letter of June 30, 
1969, primarily because the plan left some schools with a 
small minority of white students and would tend to result 
in resegregation (A-161-164).

After considering the possibility of submitting a differ­
ent plan, the Board of Education, on July 16, I960, voted 
to proceed with a hearing before a hearing director on the 
question of legality of the Neighborhood Plan previously 
submitted. However, on July 30, 1969, after several meet­
ings, the Board adopted what was called a “ Compromise 
Zoning Plan” , which was submitted to and approved by 
the Washington office of HEW on August 7, 1969. This is 
the plan which is involved in this litigation (A-16I).

This plan is basically a neighborhood zone plan, but 
involves four “ Pockets”  to be bussed from one zone to 
schools in another, and one “ pocket”  from which stu­
dents were within one and one-half miles of two schools, 
and were assigned to the one of those two schuolo further 
from their home (A-174).

In order to have space in the schools to which students 
were sent from these pockets, it was necessary to adjust 
zone lines for those schools in such a manner that some 
students would be transported to schools other than those 
nearer their residences. The primary purpose of this plan 
was to achieve some degree of racial balance, and the 
members of the Board of Education, when asked by the 
committee appointed to devise a plan, what racial com­
position should be considered, suggested a criterion of 
20% to 40% black in each school (A-182, 204).



Two actions were filed in Clarke Superior Court to 
enjoin the operation of this plan, the plaintiff’s being 
groups of white parents of children residing in zones 
whereby they were transported to schools more distant 
from their residences than other schools; and also three 
black citizens who resided in the “ Pocket”  from which 
their children walked to a school in an adjoining zone, 
while there was another school nearer their residences. 
None of those persons in the four “ Pockets”  required to 
be transported by bus were parties to either of these ac­
tions (A-48).

The petitions in these actions contended, among other 
things, that the plan violated the Fourteenth Amendment 
rights plaintiffs to equal protection of the laws, and vio­
lated the provisions of Title IV of the Civil Rights Act of 
1964 (A-8 and 22).

These actions, together with a third action by plaintiffs 
against the Georgia State Board of Education (not ma­
terial here), were consolidated for trial, and after hearing 
the Trial Judge denied the injunction sought by plaintiffs 
(A-32-3G).

Some of the plaintiffs in those actions appealed to the 
Supreme Court of Georgia, which Court, on June 15, 1970, 
reversed the judgment of the Trial Judge, and ruled that 
the plan adopted by Clarke County Board of Education 
was unconstitutional in that it deprived plaintiffs-Appcl- 
lants of equal protection of laws as guaranteed by the' 
Fourteenth Amendment to the Constitution of the United 
States; and that it was in violation of Title IV of the 
Civil Rights Act of 1964, in that it assigned students to 
particular schools solely on account of their race (A-228- 
234).

This plan, while designated at the time of its adoption 
as a plan for the 1969-70 school year, must continue as the 
basic iilan for future years, with some modifications, and,

—  7  —

if desegregation is to continue, must still retain the 
“ Pocket Bussing”  and zoning in the manner declared un­
constitutional by the Supreme Court of Georgm, unless that 
decision is upheld. Whether the decision of the Supreme 
Court of Georgia is correct or not is the question which 
the Supreme Court of the United States is asked to deter­
mine.

SUMMARY OF ARGUMENT
1. Boards of Education of public schools have the ju­

dicially declared “ affirmative duty to take whatever action 
may be necessary to desegregate their schools so that they 
are no longer identifiable as white schools or Negro 
schools.”

2. In the placement of students in schools a board of 
education is vested with a wide discretion.

3. Neither a child nor his or her parents has any con­
stitutional right to choose which school the child shall 
attend; nor is assignment to a more distant or less con­
venient school than another school in the system a viola­
tion of the person’s constitutional rights under the Four­
teenth Amendment.

4. While the establishment of a unitary school system 
requires that students be assigned without regard to their 
race, it is necessary that race be taken into consideration 
in order to eliminate a formerly operated dual school 
system.

5. The Civil Rights Act of 1964 (Pub. Laws 88-352, 
Title IV, Section 401; 78 Stat. 246; 42 USCA, Section 
2000c, and Title IV, Section 407, 78 Stat. 24S, 42 USCA, 
Section 2000c 6(a)) does not prohibit voluntary action 
by a board of education which involves busing from one 
area to another in order to accomplish school desegrega­
tion.



— 8 —

ARGUMENT

1. Boards of Education of Public Schools Have the 
Judicially Declared Affirmative Duty to Take Whatever 
Action May Be Necessary to Desegregate Their Schools.

The opinion and judgment of the Supreme Court of 
Georgia (A-228-234), which the petitioners herein insist 
should be reversed and set aside, holds that the school 
attendance plan adopted by Clarke County Board of Edu­
cation violates the rights of the Plaintiffs in the Trial 
Court, who arc parents of children attending elementary 
schools in Clarke County, Georgia, under the equal pro­
tection of the laws clause of the Fourteenth Amendment 
to the Constitution of the United States. The opinion of 
the Supreme Court of Georgia states that “ . . . in our 
view, the United States Supreme Court has not declared 
that compulsory integration of the races in public school 
systems is demanded.” The opinion cites Green v. School 
Board of New Kent County, 391 U. S. 430, 88 S. Ct. 1089, 
20 L. Ed. 2d 716, as its authority for this conclusion.

We do not understand Green to authorize the conclusion 
reached by the Supreme Court of Georgia. In fact, Green 
very plainly states (pp. 437-8) that school boards under 
Brown II are “clearly charged with the affirmative duty 
to take whatever steps might be necessary to convert to 
a unitary system in which racial discrimination would be 
eliminated root and branch.” Green further states (p. 439) 
that “ The burden on a school board today is to come 
forward with a plan that promises realistically to work, 
anu promises realistically to work now.” Also (p. 442), 
that “The Board must be required to . . . fashion steps 
which promise realistically to convert promptly to a 
system without a ‘white’ school and a ‘negro’ school, but 
just schools.”

The issue in Green was whether or not a “ freedom of 
choice” plan adopted by the school board of New Kent 
County, Virginia, was a sufficient compliance with law, 
and this Court held that it was not. To the same effect 
were the decisions of this Court in Raney, et al. v. Board 
of Education, 391 U. S. 443, S8 S. Ct. 1697, 20 L. Ed. 2d 
727; and in Monroe, et al. v. Board of Commissioners, 391 
IT. S. 450, 88 S. Ct. 1700, 20 L. Ed. 2d 733. Monroe dealt 
with what was called a “ free transfer” plan, and the 
Court held (p. 449) that “ . . . if it cannot be shown 
that such a plan will further rather than delay conversion 
to a unitary, nonraeial, nondiseriminatory school system, 
it must be held unacceptable.”

In Alexander v. Holmes County Board of Education,
396 U. S. 19, 90 S. Ct. 29, 24 L. Ed. 2d 19, this Court 
states that “ Under explicit holdings of this Court the 
obligation of every school district is to terminate dual 
school systems at once and to operate now and hereafter 
only unitary schools.”

If there is any doubt that this Court has declared that 
compulsory integration of the races in public school sys­
tems is demanded, the cases of Green and Alexander, as 
followed and applied in Carter v. West Feliciana School 
Board, 396 U. S. 290, 90 S. Ct. 60S, 24 L. Ed. 2d 477, and 
Northcross v. Board of Education of Memphis, 397 U. S. 
232, 90 S. Ct. 891, 25 L. Ed. 2d 246, should make it abun­
dantly clear that boards of education are required to not 
merely refrain from assigning students to racially segre­
gated schools, but to institute assignment policies whereby 
all schools will contain substantially integrated students 
and faculty.

The Courts of Appeals, and particularly of the Fifth 
Circuit, have very clearly held that determination of school 
zones which result in continuing segregation because 
some schools remain substantially white while others re-

—  9 —



—  10 -

main substantially all black do not meet the constitutional 
requirements, and school boards have been required to 
alter zone lines or adopt other attendance plans whereby 
mixing of the races in all schools will be accomplished. 
Davis v. Board of Commissioners of Mobile County, et al., 
393 F. 2d 690 (5th Cir.); United States v. Indianola Mu­
nicipal Separate School District, 410 F. 2d 626 (5th Cir.); 
Henry v. Clarksdale Municipal Separate School District, 
et al., 409 F. 2d 682 (5th Cir.).

2. In the Placement of Students in Schools a Board of 
Education Is Vested With a Wide Discretion.

“ A school board may exercise discretionary power to 
assign pupils to the several schools within its jurisdiction, 
and, where orders and rules made pertaining thereto are 
reasonable, necessary, and such as will best afford all eligi­
ble an opportunity to receive the benefits of proper in­
struction, they will be sustained by the courts.”  79 C. J. S. 
368, Section 450.

Respondents’ children were not assigned to a particular 
school on account of their race, but because they resided 
in an area zoned for that school. Regardless of the race 
of the individual, all students in the area were assigned 
to the designated school, but, of necessity, racial composi­
tion of the area was a prime consideration.

But, even if it be assumed that the Supreme Court of 
Georgia was correct in its conclusion that the children 
of Respondents were excluded from attending a particular 
school on account of their race, this would still not con­
stitute a violation of their rights under the Fourteenth 
Amendment under the circumstances and conditions exist­
ing. In the exercise of its discretion, and in order to ac­
complish required desegregation of its schools, Clarke 
County Board of Education had to make adjustments and 
relocations of students.

—  11 —

In Olson v. Board of Education of U. Free School Dis­
trict No. 12, 250 F. Sup. 1000, on page 1010, the Court 
stated: “ While classifications based on race alone are 
‘ constitutionally suspect’ under the Equal Protection 
Clause, such a classification is not proscribed if it is 
necessary to the accomplishment of a permissible State 
policy. The Commissioner has determined that classifica­
tion is necessary to effectuate the State’s policy of equal 
educational opportunities and he has the support of ex­
pert opinion and the New York Court of Appeals. Under 
the circumstances this Court is not justified in interfering 
with that conclusion.”

The Supreme Court of Georgia has consistently recog­
nized, at least prior to the opinion herein concerned, that 
boards of education have a wide discretion in the matter 
of assigning students to schools within their district. 
Keever v. Board of Education of Gwinnett County, 188 
Ga. 299 (3 S. E. 2d 886); Beddingfield v. Parkerson, 212 
Ga. 654 (94 S. E. 2d 714); McKenzie v. V/alter, 210 Ga. 
189 (2) (78 S. E. 2d 486).

3. A Person Does Not Have Any Constitutional Right 
to Choose Which School a Child Shall Attend; Nor Is 
Assignment to a More Distant or Less Convenient School 
Than Another in the System a Violation of Constitutional 
Rights Under the Fourteenth Amendment.

Clarke County Board of Education has consistently 
tried to meet its obligations with regard to desegregation 
in such a manner as to avoid being subjected to Court 
orders on the one hand and local disorders on the other 
(A-160-176). In April of 1969, after much consideration 
of various plans, it adopted and submitted to the Depart­
ment of Health, Education and Welfare what was called 
the “ Neighborhood Plan”  (A-167-168). While this plan 
had its faults in that it left four of the thirteen elementary



schools substantially all white anti two predominantly 
black, no rearrangement of zone lines could be found to 
alleviate these conditions, without overcrowding some 
schools and leaving vacant spaces in others.

When that plan was rejected by HEW on June 30, 1969, 
the Board could find no workable alternative except the 
establishment of “ Pockets”  or “ Satellite Zones”  from 
which students would be transported to schools in other 
areas of the county. Since school facilities in such other 
areas were filled to capacity, it was necessary to adjust 
zone lines to relieve overcrowding and make room for 
those brought in (A-174-6). The Respondents, who are 
some of the Plaintiffs in the Trial Court, and the Appel­
lants in the Supreme Court of Georgia, are parents of 
white students who consider themselves displaced by such 
adjustment of zone lines, and three parents of black stu­
dents residing in the “ pocket”  from which students at­
tend a formerly all white school although they reside 
somewhat nearer a formerly all black school. None of the 
Respondents or other Plaintiffs in the Trial Court are 
parents of students being bused from any of the 
“ pockets”  or “ Satellite Zones”  (A-48).

The opinion of the Supreme Court of Georgia holds 
that “ The evidence here shows that Appellants’ children 
are ‘ effectively excluded’ from attending a school be­
cause of their race” ; and that “ This neither squares with 
the Fourteenth Amendment nor its interpretation by the 
United States Supreme Court holding that ‘ racial discrim­
ination’ is unconstitutional.”

That ruling can only be upheld if it is found that a stu­
dent has a constitutional right to attend a particular 
school or the school nearest his residence. We submit 
that no such right exists.

In United States v. Jefferson County Board of Educa­
tion, 372 F. 2d 836, aff’d en banc. 380 F. 2d 285, cert, de­

nied sub nom., Caddo Parish School Board v. United 
States, 389 U. S. 840, 88 S. Ct. 67, 19 L. Ed. 2d 103, the 
Court of Appeals of the Fifth Circuit stated that “ A 
school child has no inalienable right to choose his school”  
(380 F. 2d at page 390). This was followed in Davis v. 
Board of School Commissioners of luobile County, ct a!., 
393 F. 2d 690 (Note 5 on page 693), the Court adding 
there that “ The school board on the other hand, has a 
constitutional duty to desegregate its system.”  In Grif­
fin v. School Board of Prince Edward County, 377 U. S. 
218, 84 S. Ct. 1226, 12 L. Ed. 2d 256, this Court held that 
“ The Equal Protection Clause of the Fourteenth Amend­
ment relates to equality between persons in a state, not 
between areas.”  And that “ Showing that different per­
sons are treated differently is not enough, without more, 
to show a denial of equal protection; it is the circum­
stances of each case which govern.”

In Kotch v. River Port Pilot Commissioner, 330 U. S.
552, 67 S. Ct. 910, 91 L. Ed. 1093, the Court stated (page 
556) that “ A law which affects the activities of some 
groups differently from the way in which it affects the 
activities of other groups is not necessarily banned by 
the Fourteenth Amendment (cit.). Otherwise, effective 
regulation in the public interest could not be provided, 
however essential that regulation might be.”

In Acree v. County Board of Education of Richmond 
County, Georgia, 294 F. Supp. 1034 (S. D. Ga.)^ the court 
recognized the principle that no student has a constitu­
tional right to attend a school of his own choice. The 
body of the opinion cites as authority for this statement 
the case of United States v. Jefferson County Board of 
Education, 372 F. 2d 236 (supra).

When it became necessary, in order for Clarke County 
Board of Education to comply with the mandates of this 
Court, in light of numerous decisions of Courts of Appeals



which made it obvious that thorough mixing of the races 
is required, and not merely permitting a few members of 
one race to attend schools where the other race was pre­
dominant, or drawing zone lines so that a small number of 
one race would attend schools predominantly occupied by 
the other, Clarke County Board of Education found itself 
confronted with a racial distribution problem in the county 
which defied solution. The Board adopted a “ Neighbor­
hood Plan”  (A-167-170), which, although zone lines were 
considerably distorted in order to afford more mixing of 
the races, still left two schools with more than 95% white 
and less than 5% black, two schools with more than 90% 
white and less than 10% black, one school with more than 
80% black and less than 20% white, and one school with 
more than 60% black and less than 40% white (A-167).

While this plan involved no racial discrimination, it 
was by no means without faults. That plan was rejected 
by HEW primarily because it was felt that shifting of 
persons who considered themselves adversely affected 
would result in resegregation (A-223-226).

The only course left for the Board to follow required 
some form of extensive busing of students of one race into 
schools predominantly occupied by the other. Since the 
latter schools were filled to capacity, adjustments in zone 
lines had to be, and were, made. The Respondents herein 
are some of those who were affected by the zone changes, 
and who, the Supreme Court of Georgia says, have been 
denied equal protection of the laws in violation of their 
rights under the Fourteenth Amendment.

4. While the Establishment of a Unitary School System 
Requires That Students Be Assigned Without Regard to 
Their Race, It Is Necessary That Race Be Taken Into 
Consideration in Order to Eliminate a Formerly Operated 
Dual School System.

In the opinion of the Supreme Court of Georgia it is 
stated that “ The Clarke County Board of Education has 
attempted to achieve a predetermined racial balance in 
its elementary schools by treating students differently be­
cause ol their race.”  It is true that when a committee, 
appointed to make adjustments in the elementary school 
attendance plan, requested some guide line as to racial 
composition, the Board authorized a criterion of 20-40% 
black in each school (A. 1S1-2, 204).

In order for a board of education to comply with the 
requirements of this Court in Brown II, “ to effectuate 
a transition to a racially nondiscriminatory school sys­
tem” , and the requirement in Green charging school boards 
“ with the affirmative duty to take wdiatevcr steps might 
be necessary to convert to a unitary system in which racial 
discrimination would be eliminated root and branch” , the 
consideiation of the racial composition of the school popu­
lation is absolutely necessary.

In Wanner v. County School Board of Arlington County, 
Virginia, 357 F. 2d 452 (4th Cir.) it is stated (page 454) 
that “ When school authorities, recognizing the historic 
fact that existing conditions are based on a design to
segregate the races, act to undo these illegal conditions__
especially conditions that have been judicially condemned 
— their effort is not to be frustrated on the ground that 
race is not a permissible consideration. This is not the 
‘ consideration of race’ which the Constitution discoun­
tenances.”



Iii United States v. Jefferson County Board of Educa­
tion, 373 F. 2d 836 (5th Cir.), on page 876, the Court 
states: “ The Constitution is both color blind and color 
conscious. To avoid conflict with the equal protection 
clause, a classification that denies a benefit, causes harm, 
or imposes a burden must not be based on race. In that 
sense, the Constitution is color blind. But the Constitu­
tion is color conscious to prevent discrimination being 
perpetuated and to undo the effects of past discrimination. 
The criterion is the relevancy of color to a legitimate 
governmental purpose.”  On page 877 it is stated that 
“ School officials have to know the racial composition of 
their school populations and the racial distribution within 
the school district. The courts and HEW cannot measure 
good faith or progress without taking race into account.”

5. The Civil Rights Act of 1964 Does Not Prohibit Vol­
untary Action by a Board of Education Which Involves 
the Moving, by Bus or Otherwise, of Students From One 
Area to Another in Order to Accomplish School 
Desegregation.

The opinion of the Supreme Court of Georgia, in sub­
division 2 thereof (A-232) holds that the plan adopted 
by Clarke County Board of Education was invalid as 
being in violation of the Civil Rights Act of 1964 (Pub. 
L. 88-352, Title IV, Section 401; 78 Stat. 246, 42 IJSCA 
Chapter 21) (42 USCA, Section 2000c and Section 2000c, 
6-a).

In United States v. Jefferson County Board of Edu­
cation, supra, 372 F. 2d at 878, the Court of Appeals of 
the Fifth Circuit clearly held that these provisions of 
the statute did not make such assignments unlawful. That 
decision has been followed in several other cases in­
cluding United States v. School District 151 of Cook

—  1 7

County, Illinois (N. D. 111.), 286 F. Supp. 786, 799; Keyes 
v. School District No. 1, Denver, Colorado (D. Col.), 303 
F. Supp. 298; Spangler v. Pasadena *City Board of Edu­
cation (C. D. Cal.), 311 F. Supp. 501 (20).

The irrelevancy of such provisions of the Civil Rights 
Act to the plan adopted by Clarke County Board of Edu­
cation is probably best stated in Olson v. Board o*' Edu­
cation (E. D., New York), 250 F. Supp. 1000, on page 
1006, as follows: “ Plaintiff’s assertion that Section 401 
(b) of the Civil Rights Act of 1964, 42 U. S. C. A. Sec­
tion 2000c (b), constitutes a prohibition against any plan 
to correct racial imbalance is without merit. The defini­
tion of the word ‘ desegregation’ in that section relates to 
the administration of the government aid program in the 
desegregation of public schools. It has no relevance to 
the legality or the constitutionality of such a plan.”

CONCLUSION

The Board of Education of Clarke County, Georgia, 
had a duty to take affirmative action to desegregate its 
schools. Performance of that duty required the trans­
ferring of students from formerly segregated schools in 
such a manner as to mix the races in all schools. In view 
of limited facilities, the moving of students into a school 
necessitated the moving of others out by changing of zone 
lines or otherwise. While the exercise of the Board’s 
discretion in making necessary changes displeased some 
people, it did not violate their Constitutional rights.

The Equal Protection Clause of the Fourteenth Amend­
ment does not entitle persons to choose which school then- 
child will attend, nor does it prohibit boards of education 
from arranging attendance zones, transportation routes, 
and use of buildings and equipment, in such a manner 
as to best serve the needs of the whole community.



Title IV, Sections 401 and 407 of the Civil Rights Act 
of 1964 do not restrict hoards of education in the exercise 
of their discretion relative to assignment of students to 
schools within their school systems.

The judgment of the Supreme Court of Georgia is er­
roneous, and should be reversed and set aside.

Respectfully submitted,

EUGENE A. EPTING,
ERWIN, EPTING, GIBSON & 

CHILTVTS,
P. 0. Box 1587,

Athens, Georgia 30601 
Counsel for Petitioners

£

fe ‘ ■ IJ'lwS;\*
t •
.
t

.

i