Wright v. Council of the City of Emporia Brief for Respondents

    In The

Supreme Court of the United States
October Term, 1971

No. 70-188

PECOLA ANNETTE W RIGHT, e t  al .
Petitioners,

v.

COUNCIL OF THE CITY OF EMPORIA, e t  a l .
Respondents,

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

BRIEF FOR RESPONDENTS

D . D o rtch  W a rriner
Warriner, Outten, Barrett & Burr 
314 South Main Street 
Emporia, Virginia 23847

J o h n  F. K ay, J r .
Mays, Valentine, Davenport & Moore 
1200 Ross Building 
Post Office Box 1122 
Richmond, Virginia 23208

Counsel for Respondents



Question Presented ..........................................................................  1

Constitutional and Statutory Provisions I nvolved...............  2

Statement ......................................................................  3

Transition of Emporia from Town to C ity .................................. 3

The Contract with Greensville County.......................................... 4

Emporia’s Decision to Operate Own School System .................  5

Quality of Unitary System to be Operated by Emporia Superior 
to That of County......................................................................  10

Decision of the District C o u rt..........................................   16
(a) Proposed System ............................................................... 16
(b) Reasons for Emporia’s Decision .................................... 17
(c) Effect on County ............... ....................... ....................... 18

Decision of Court of Appeals.............................................     20

Summary of Argument ....................................................................  21

Argument

I. The Law Of Virginia Vests The Power And The Duty 
Upon The City Of Emporia To Operate And Maintain A 
Public School System................................................    23

A. Counties and Cities of Virginia Are Independent of
Each Other ........................................................................  23

B. Emporia Became A City Pursuant to Long Existing
State Law ...........      24

C. Cities in Virginia Have the Right and Duty to Operate
and Maintain Own School Systems.................................. 25

II. Operation By The City Of Its Own School System Would 
Violate No Constitutional Rights Of Petitioners .................. 28
A. Petitioners’ Rights ............................................................  28

TABLE OF CONTENTS
Page

i



B. Proposed Action of the C ity ..............................................  32
C. Petitioners’ Rights Will Not Be Violated By the Pro­

posed Action of the C ity ....................................................  33
D. Proposed Action of City Meets Any Constitutional Test

to Which It May Be Fairly Subjected............................. 43

C o n c l u sio n  .................................................................... ......................................  50

Br ief  A ppe n d ix  ...............................................................................................A pp. 1

Page

TABLE OF CITATIONS 

Cases

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 24 L.Ed.2d 
19 (1969) .............................................................................29, 30, 45

Aytch v. Mitchell, 320 F. Supp. 1372 (E.D. Ark. 1971) ................ 39

Bowman v. County School Board of New Kent County, 391 U.S.
430 (1968) ......................................................................................... 4

Brown v. Board of Eduation, 347 U.S. 483 (1954) (Brown I) ..29, 41

Brown v. Board of Educ., 349 U.S. 294 (1955) (Brown II) .......  49

Burleson v. County Bd. of Election Com’rs., 308 F. Supp. 352 
(E.D. Ark. 1970) .........    39

City of Richmond v. County Bd., 199 Va. 679 (1958) .................... 23

Colonial Heights v. Chesterfield, 196 Va. 155 (1954)  ................... 24

Cooper v. Aaron, 358 U.S. 1 (1958) ................................................  31

Deal v. Cincinnati Board of Educ., 369 F.2d 55 (6th Cir. 1966), 
cert, denied, 389 U.S. 847 (1967) ................................................  41

Classman Construction Company v. United States, 421 F.2d 212 
(4th Cir. 1970) ......................   36

ii



Green v. School Bd. of New Kent County, 391 U.S. 430 (1968)
4, 29, 30, 31, 46, 49

Haney v. County Bd. of Educ., 410 F.2d 920 (8th Cir. 1969) .......  40

Jenkins v. Township of Morris School Dist., .....  A.2d .....  (N.J.
1971) .................................................................................................  39

Lee v. Macon County Bd. of Educ., No. 30154 (5th Cir., June 29, 
1971) .................................................................................................  37

Murray v. Roanoke, 192 Va. 321 (1951) ..........................................  23

Palmer v. Thompson, 403 U.S. 217, 29 L.Ed.2d 438 (1971) .......  49

School Board v. School Board, 197 Va. 845 (1956) ........................ 26

Spencer v. Kugler, 326 F. Supp. 1235 (D.C.N.J. 1971) ................ 40

Stout v. Jefferson County Bd. of Educ., 448 F.2d 403 (5th Cir. 
1971) .................................................................................................  38

Supervisors v. Saltville Land Co., 99 Va. 640 (1901) .................  24

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 
(1971) ..................................29, 30, 31, 34, 37, 38, 41, 45, 48, 50

United States v. Scotland Neck City Board of Education, 442 
F.2d 575 (4th Cir. 1971) ................................................ ....21, 23, 48

Page

Constitution

Constitution of United States:
Fourteenth Amendment ............................................................22, 28

Constitution of Virginia:
Article V III, § 5 ..............................................................................  2
Article V III, § 7 ..............................................................................  2
Section 133 .................................................................................. 2, 25

Codes

Code of Virginia, 1950, as amended:
Title 15.1, ch. 22 24



§ 15.1-982 .................................................. ...................................... 2, 3
§ 15.1-987 through 15.1-1010 ........................................................  2
§ 15.1-1005 ........................    24
§ 22-30 ....................    2
§ 22-34 .........         3
§ 22-43 ...............................................................................................  2
§ 22-93 ............ .............................................................................. 2, 26
§ 22-97 ......................................... ......................................... ........2, 26
§ 22-100.1 ..... ...................... .............................................................  2
§ 22-100.2 ............................................................................. ............ 3
§ 22-100.3 ...............................    2

Code of Virginia, 1919:
§ 786 ................................................................................................  26

Acts

Acts of Virginia:

Acts of Assembly, 1891-1892, ch. 595 ............................................ 24

Other Authorities

G. Adrian, State and Local Governments, 249 (2d ed. 1967) .......  38

C. Bain, “A Body Incorporate”—The Evolution of City-County 
Separation in Virginia, ix, 23, 27, 35 (1967) ............................ 38

Developments in the Law—Equal Protection, 82 Harv, L. Rev. 
1065 (1969) .............................................................................. ..45, 49

Page

iv



In The

Supreme Court of the United States
October Term, 1971

No. 70-188

PECOLA ANNETTE W RIGHT, e t  a l„
Petitioners,

v.

COUNCIL OF THE CITY OF EMPORIA, e t  a l .,
Respondents.

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

BRIEF FOR RESPONDENTS

QUESTION PRESENTED

Respondents believe that the question presented is:

Was the Court of Appeals correct in deciding that the 
constitutionally protected rights of petitioners would not 
be violated if the City of Emporia, an independent 
political subdivision of the Commonwealth of Virginia, 
operates a unitary school system separate from that of 
the County of Greensville.

Petitioners’ statement of the question presented (PB 2 1)

1 The following designations will be used in this brief:
PB—Petitioners’ brief
RA—Appendix to this brief of respondents
SA—Appendix to petitioners’ supplemental brief in support of 
petition for writ of certiorari



2

is misleading, inaccurate and not clear. It is misleading in 
that it ignores that the City of Emporia is an independent 
political subdivision for all governmental purposes—it is not 
just a school district.

It is inaccurate in stating that “the changed boundaries 
result in less desegregation” for two reasons. First, no boun­
daries have been changed, as such—rather, a “town” be­
came a “city” under long-standing state transition statutes 
and no boundaries were changed. Second, operation of a 
separate school system by the City would not result in “less 
desegregation” in either the County or the City.

It is not clear what petitioners mean in stating that “for­
merly the absence of such boundaries was instrumental in 
promotion segregation.”

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

1. Va. Const. Art. IX, § 133, which was in effect until 
July 1, 1971, is set forth at RA 1, and Va. Const., Art. 
V III, § 5(a) and § 7, which became effective July 1, 1971, 
are set forth at RA 2.

2. Va. Code Ann. §§ 15.1-978 through 15.1-1010 (1950), 
which relate to the transition of towns to cities in the Com­
monwealth of Virginia. Va. Code Ann. § 15.1-982 (1950), 
as in effect on July 31, 1967, is set forth in part at RA 2.

3. Va. Code Ann. § 22-93, is set forth at RA 3 and 
§ 22-97, is set forth at RA 3, et seq.

4. The following sections of the Virginia Code, which are 
set forth in the appendix to petitioners’ brief, were amended, 
effective July 1, 1971, and are set forth, as amended at RA 
2, 3, 7 respectively: §§ 22-30, 22-43, 22-100.1 and 22-100.3.



3

5. Va. Code Ann. §§ 22-34 and 22-100.2, set forth in the 
appendix to petitioners’ brief, were repealed effective July 1, 
1971.

STATEMENT

Transition of Emporia from Town to City

On September 1, 1969, Greensville County had a public 
school population of 2,616 children of whom 728 were white 
and 1,888 were Negro. On the same date, the City of Em­
poria had a public school population of 1,123 of whom 543 
were white and 580 were Negro (304a) ,2 Four school build­
ings—three elementary and one high—are physically lo­
cated in Greensville County. Three school buildings—two 
elementary and one high—are physically located in the City 
(294a).

Prior to July 31, 1967, Emporia was an incorporated town 
and, as such, was a part of Greensville County, Virginia. On 
July 31, 1967, the Town of Emporia became an independent 
city of the second class pursuant to the provisions of the Code 
of Virginia.3 The evidence is uncontradicted that the moti­
vating factor behind the transition was the desire of Em­
poria’s elected officials to have Emporia receive the benefits 
of the state sales tax that had been recently enacted and to 
eliminate other economic inequities (123a, 124a). There has 
been no charge by petitioners that the decision to become a 
city was in any way motivated by the school desegregation 
situation. There has been no finding by the District Court to 
impugn the motives or purposes of the City in effecting this 
transition.

The Court of Appeals pointed out:

2 References are to the Single Appendix filed herein.
3 Va. Code Ann. § 15.1-982 (RA 2)



4

At the time city status was attained Greensville 
County was operating public schools under a freedom 
of choice plan approved by the district court, and 
Green v. County School Board of New Kent County, 
391 U.S. 430 (1968), invalidating freedom of choice 
unless it “worked,” could not have been anticipated by 
Emporia, and indeed, was not envisioned by this court. 
Bowman v. County School Board of Charles City Coun­
ty, 382 F. 2d 326 (4th Cir. 1967). The record does not 
suggest that Emporia chose to become a city in order 
to prevent or diminish integration. Instead, the motiva­
tion appears to have been an unfair allocation of tax 
revenues by county officials (314a).

The Contract With Greensville County

On April 10, 1968, the City and County entered into an 
agreement pursuant to which the County was to provide 
specified services, including schools, for the people of Em­
poria for a period of four years (32a). It provided for earlier 
termination under certain circumstances. As evidenced by 
minutes of the County Board of Supervisors, this contract 
was entered into by the City under the threat of expulsion 
by the County of the City children from the County schools 
at mid-term (31a). The District Court stated:

Only when served with an “ultimatum” in March of 
1968, to the effect that city students would be denied 
access to county schools unless the city and county came 
to some agreement, was the contract of April 10, 1968, 
entered into (305a).

Further, the contract was entered into only after the City 
School Board had fully explored the feasibility of operating 
its own system immediately upon transition and after negoti­
ations toward establishing a joint school system with the 
County had failed (227a, et seq.). As found by the District 
Court:



5

Ever since Emporia became a city, consideration has 
been given to the establishment of a separate city system 
(305a).

The City School Board determined that for practical rea­
sons it was impossible to establish its own system at that time 
(227a).

The District Court also found that the City’s second choice 
“was some form of joint operating arrangement with the 
county, but this the county would not assent to” (305a). The 
minutes of the County Board of Supervisors make this clear 
(30a).

Petitioners state that instead of filing suit against the 
County to establish the City’s equity in the school property 
in 1967, the City “negotiated for preferred contractual terms 
(see 230a)” (PB 5). It is obvious that had the City chosen 
to file suit at that time the County would have refused to 
permit City students to attend the County schools during the 
pendency of that suit. Therefore, as a practical matter, that 
choice was not available to the City. Further, the record is 
clear that “preferred contractual terms” were not obtained 
by the City—on the contrary, the County’s terms were forced 
upon the City (230a-233a).

The contract of April 10, 1968 terminated after the 1970- 
71 school year as the District Court recognized it would 
(296a). Were it not for this proceeding, the City of Emporia 
would be free to operate its own system during the current 
school year. Actually, it would be obligated so to do under 
the law of the Commonwealth of Virginia.

Emporia’s Decision to Operate Own School System

During the 1968-69 school year, the County operated 
under a freedom-of-choice plan which had been approved 
by the District Court. On June 25, 1969, the District Court



6

enjoined the County to disestablish the existing dual school 
system and to replace it with a racially unitary system. Sub­
sequently, a plan was approved which required the assign­
ment of all pupils in the system as follows (295a) :

School Grades

Greensville County High 
Junior High (Wyatt)
Zion Elementary 
Belfield Elementary 
Moton Elementary (now Hicksford) 
Emporia Elementary 
Greensville County Training

10, 11, 12 
8, 9
7
5, 6 
4 ,5  
1 ,2 ,3
Special Education

Under this plan, an Emporia child who begins in the 
first grade of the Greensville system is required to attend six 
different schools—possibly seven—during the course of his 
elementary and secondary education. In grades 1-3 and in 
grades 10-12, he would attend schools located in the City; 
in the remaining grades, he would be required to go outside 
the City of his residence to attend schools located in the 
County.

After the order of June 25, 1969 was entered by the Dis­
trict Court, the bi-racial (125a) City School Board de­
termined to operate its own schools for 1969-70. It planned 
a racially unitary system in which all elementary school chil­
dren—black and white—would be assigned to one school and 
all high school children—black and white—would be as­
signed to another school (129a). The City system would 
have been approximately 52% black and 48% white. The 
County system would then have been approximately 72%’ 
black and 28% white. The combined system is approxi­
mately 66% black and 34% white (304a, 316a).

Petitioners repeatedly refer to the fact that it was the 
“desegregation” decree of June 25, 1969 that caused the



7

City to decide to operate its own system (e.g. PB 8, 9, 11, 
13). They argue that the separate system “was conceived in 
response to, and represents a determined effort to evade, the 
desegregation decree of the district court” (PB 48); that the 
timing of the city’s decision “strongly suggests racial motiva­
tion” (PB 52); and that “the claims of the city to a continu­
ing and long-standing desire to free itself from county domi­
nation which prevented attainment of educational quality, 
are far outweighed by its unexplained failure to take any 
action until integration was to occur, [and] its awareness 
that a separate system would contain a more palatable racial 
mix which might prevent white flight * * *” (PB 54).4

Throughout their brief, petitioners attempt to convey 
the impression that the City was satisfied with the system 
being operated by the County until the “pairing plan” re­
quired by the Order of June 25, 1969 was put into effect 
(e.g. PB 5, 13). The record is clear that while the City wras 
satisfied with the assignment plan in effect prior to that 
order (freedom of choice), it was not satisfied with the con­

4 Petitioners state on pages 8 and 9 of their brief that the City offered 
to accept county students into the city system on a tuition basis. They 
neglect to state that the City included in the assignment plan it sub­
mitted to the Court in December 1969 a provision that no students 
would be accepted from outside the City until approval was obtained 
from the District Court (224a, 225a). This action was taken after the 
hearing on the preliminary injunction in August 1969 when the Dis­
trict Court expressed some concern about the City’s plan to accept in 
its system students residing in the County on a tuition, no transporta­
tion basis. While the City intended to accept such students on a “first 
come, first served” basis without regard to race, it recognized that this 
plan had apparently cast doubt upon the good faith intention of the 
City to operate a unitary system composed of approximately an equal 
number of white and Negro students. Therefore, while it believed such 
doubt to be unjustified, it decided to affirmatively incorporate in its 
plan that it would accept no students from another school district 
without first obtaining approval of the District Court (225a). The 
District Court so found (296a).



8

tractual arrangement under which it had no control over 
the system nor was it satisfied with the system itself.5

The District Court accurately stated Emporia’s principal 
reason for its decision to operate its own system to be:

Emporia’s position, reduced to its utmost simplic­
ity, was to the effect that the city leaders had come to 
the conclusion that the county officials, and in particular 
the board of supervisors, lacked the inclination to make 
the court-ordered unitary plan work. The city’s evidence 
was to the effect that increased transportation expendi­
tures would have to be made under the existing plan, 
and other additional costs would have to be incurred in 
order to_ preserve quality in the unitary system. The 
city’s evidence, uncontradicted, was to the effect that 
the board of supervisors, in their opinion, would not be 
willing to provide the necessary funds (305a, 306a).

The testimony of the Chairman of the City School Board 
with respect to the reasons for which the City decided to 
operate its own schools is found on pages 236a through 242a 
of the appendix. In summary, the reasons behind the de­
cision were that, in the opinion of the City, the County was 
not able to operate a unitary school system successfully, that 
the County would not be willing to expend the necessary 
funds to make a success of a unitary school system, that the 
City was willing to do so, that a successful public school 
system was a necessary part of the future well being of the

In support of their claim that the City was satisfied with the 
County system, petitioners refer the Court to pages 163a and 235a. 
At page 163a, Mr. Lee, the mayor of the City testified:

“We have never been happy with the system. . . .”
At page 235a, Mr. Lankford, chairman of the City School Board 

testified that he thought the County had operated a reasonably effec­
tive system but that the City did not plan to renew the contract.

At page 147a, Mr. Lankford testified:
I personally, and I think my School Board since we were formed 

two years ago, have never been happy [with the County system].”



9

community, and that Emporia must control its own system 
in order to accomplish these ends.6

Additionally, that the frequent transfers from building to 
building required under the plan was a source of primary 
concern is illustrated by the following colloquy between the 
District Judge and the Chairman of the City School Board:

The Court: What you are really saying, Mr. Lank­
ford, everybody has been at you, the Council (sic) and 
myself and I don’t mean to, but I want to get it straight. 
What you are really saying is that the reason that pre­
cipitated this, and the primary reason, is the fact that 
your children and all the children have got to transfer 
schools more frequently than they have in the past and 
you consider that to be bad?

The Witness: I consider that to be bad, yes, sir, and 
the—

The Court: I am certainly in accord with you that it 
is not the best thing, but that is really the reason, is it 
not?

The Witness: That is the basic reason that we wish 
to operate our city school (152a, 153a).

The Mayor of the City testified that the order of the Dis­
trict Court did cause the City “to try and act with haste” 
(121a). However, the concern of the City was that its chil­
dren would attend six different schools from the first grade 
through high school, that the City was paying more than its

6 At the time of the hearings in the District Court on August 8, 1969 
and December 18, 1969, the contract of April 10, 1968 was in effect. 
The evidence was that the County completely controlled the operation 
of that system and that the City had no control over the school budget, 
over the selection of the school board, over the curriculum, over the 
hiring of teachers, over the salaries to be paid to teachers, or over any 
other matter relating to the operation of the schools (158a, 159a, 
242a). At the present time, the contract now having terminated, the 
situation is the same.



10

fair share of the cost of the County School System which cost 
would be increased by the increased transportation required, 
that such money could be applied to provide a better school 
program for city children—black and white—if all its ele­
mentary students were educated in one school and all its high 
school children were educated in another school (121a 
122a). V
_ Therefore, it is true—and freely conceded—that the as­

signment plan which was ordered by the District Court on 
June 25, 1969 precipitated the decision of the City to accel­
erate the time it would operate its own system. However, it is 
equally true—and here emphasized—that it was not the 
integration aspects of the plan that precipitated the decision.7

Quality of Unitary System to be Operated by Emporia 
Superior to that of County

On August 1, 1969, the petitioners filed a supplemental 
complaint in, and added the School Board and Council of 
the City of Emporia as parties defendant to, the action pend­
ing in the District Court. Until that time, the action was an 
“ordinary” desegregation suit to which the County school 
authorities were the only parties defendant. By the supple­
mental complaint petitioners sought to enjoin the City from 
operating its own school system and on August 8, 1969 the

7 The Chairman of the City School Board testified:
Q. Now, at the present time I believe you testified that the 

ratio is approximately 60-40 in the county? A. Yes, sir to my 
knowledge that is about right. 5 1

Q. And if the city formed the city school system your testi­
mony is it would be approximately 50-50? A. Approximately.

Q. In the city? A. Yes, sir.
Q. Is this a matter of great moment to the City of Emporia?
A. No, sir.
Q. Is that the motivating influence of the City of [Emporial
A. No, sir (152a). r



11

District Court entered an order temporarily enjoining the 
City from so doing (195a). The City decided not to appeal 
the order granting the temporary injunction but rather to 
follow the course of presenting the City’s case in an orderly 
manner to the District Court at a hearing on whether the 
injunction should be made permanent (186a, 187a). The 
earliest date that the District Court could assign for such a 
hearing was December 18, 1969 (188a).

The City then proceeded to prepare itself to be in a 
position to put its system in effect just as soon as it was per­
mitted to do so. It employed Dr. H. I. Willett, who had been 
superintendent of the Richmond, Virginia, public school sys­
tem for 22 years and who was then associated with Virginia 
Commonwealth University, to design a budget specially 
tailored to meet the needs and problems of the unitary sys­
tem which Emporia proposed to operate (252a, 259a, 261a, 
262a) ,8 Dr. Willett’s budget, which was adopted by the City 
School Board and the City Council (200a, 287a) , is included 
in the Appendix beginning at page 202a. The budget mes­
sage is particularly significant (206a-215a).

The City also employed Dr. Neil H. Tracey, Professor of 
Education at the University of North Carolina,9 to evaluate 
the present system as it was being operated by the County of 
Greensville, to compare it with the system proposed by the

8 On at least two occasions in their brief (PB 19, 50), petitioners 
refer to the fact that the proposed budget was not prepared until after 
the temporary injunction had been entered “and the City had gained 
a better idea what evidence might best serve its cause” (PB 50). 
Obviously, a budget would not have been prepared by the City prior 
to its decision to operate its own system and that decision was not 
made until a short time before the temporary injunction was entered.

9 Dr. Tracey was erroneously referred to in the opinion of the Dis- 
strict Court as being from Columbia University and in the transcript 
of the proceedings of December 18, 1969 (266a, et seq.) as being from 
the University of New York.



12

City of Emporia, and to testify at the hearing on whether 
the injunction against the City should be made permanent.10 
At that hearing on December 18, 1969, Dr. Tracey testified 
that the assignment plan ordered by the District Court for 
Greensville County has an adverse effect from, an educational 
standpoint (272a-274a). In summary, Dr. Tracey’s conclu­
sions were based on the following factors:

1. Funds which could otherwise be applied to educational 
purposes must be applied to the expenses of providing trans­
portation (274a).

2. Time that is required to transport the pupils serves no 
useful educational purpose (274a).

3. Educational resources including teachers, text materials, 
library materials and other instructional materials must be 
divided among the buildings in which the various grades are 
taught. With respect to the elementary grades, this results 
in curtailing the resources available to the pupils housed in 
each building. Since most children have an achievement 
range of about double the number of years of their grade 
designation, the curtailment of the educational resources re­
sults in the curtailment of the range of instructional and in­

10 On page 19 of their brief, petitioners state that Dr. Tracey “testi­
fied that it was his ‘understanding’ that he was not serving the City in 
‘any attempt to resegregate or to avoid desegregation’ (269a).” Dr. 
Tracey’s testimony on this point was: [questions by Mr. Kay].

Q. Now, sir, at the time that you were approached to accept 
this assignment, did you place any conditions on your acceptance? 
And if so, what were they? A. Yes, I placed this basic condi­
tion on acceptance of any such assignment, that the intent of the 
people involved, the Emporia people in this instance, should be 
specifically not related to any attempt to resegregate or to avoid 
desegregation or to avoid integration.

Q. And, if you had ascertained that this was the intent, what 
was your understanding with the City? A. My understanding 
was that I would riot serve in this capacity, at all (269a).



13

dependent educational opportunities available to the pupils 
(272a, 273a).

Furthermore, Dr. Tracey testified that the effect of his­
toric segregation of the races is not eliminated purely by a 
proportionate mixing of the races. In his opinion, special 
educational opportunities must be afforded to solve these 
problems (269, 270a). Dr. Tracey testified that an exami­
nation of the Greensville County System indicated that the 
extra effort required to provide these opportunities was not 
being made (271a, 272a, 274a). On the other hand, an 
examination of the system proposed by Dr. Willett, which 
had been adopted to the extent possible by the City, indi­
cated that it would make the necessary effort (275 a, et seq.). 
In this connection, Dr. Tracey studied the budget message 
and budget (275a) prepared for the City School Board by 
Dr. H. I. Willett.

Petitioners state that Dr. Tracey compared the educa­
tional programs of the County with those proposed by the 
City “without reference to the racial composition of the two 
systems” (PB 19). In support of that statement, they quote 
fragments of answers of Dr. Tracey to two different questions 
(PB 20). Neither the questions nor the answers cited by 
petitioners support the conclusion that Dr. Tracey’s compari­
sons were made “without reference to the racial composition” 
of the systems (269a, 270a). Dr. Tracey’s entire testimony 
was directed to the point that special educational effort must 
be exerted to eliminate the effects of segregation (270a)11

11 On direct examination, Dr. Tracey testified:
Q. Is a special effort required by locality and school officials 

to provide such a system, in your opinion?
A. Yes, special effort. There are two kinds of high level sup­

port and a particular orientation on the part of the public and 
the school officials to meet each child in this way (271a).

Dr. Tracey went on to testify why the County was not providing this 
support and why the proposed program of the City would.



14

and to his study of the existing and proposed systems to as­
certain which was more likely to provide that effort. In his 
study, Dr. Tracey examined “the organizational pattern and 
effects on that organizational pattern of the separate or pos­
sible separate school systems for Emporia” (269a). Such 
study necessarily involved a consideration of the racial compo­
sition of the two systems. Dr. Tracey did testify that “no 
particular pattern of mixing has in and of itself, has any 
desirable effect” (270a). He also testified that he knew of 
no study that would indicate whether an increase in the ratio 
of Negro to white children from 60-40 to 70-30 would have 
any effect on the educational process (281a).

In summary, the City has committed itself to assign all 
elementary pupils in the City to one school building and all 
high school pupils to one school building; to assign faculty 
on a completely integrated basis; to rename the former Em­
poria Elementary School the R. R. Moton Elementary 
School; to accept no students from other school divisions or 
districts until approval is obtained from the District Court 
(224a, 225a).12 Further, it has committed itself insofar as

12 The following resolution was adopted by the City School Board 
and filed as the plan under which it proposed to operate if permitted 
to do so (Ex E-F, Flearing of December 18, 1969, 224a) :
_ Mr. Lankford introduced the following Resolution, which after con­

siderable discussion by the Board, was unanimously adopted:
If permitted by the United States District Court to operate 

its own school system, the School Board of the City of Emporia 
will do so according to the following plan:

1. Assignment of pupils and faculty shall be made on a com­
pletely racially integrated basis resulting in a racially unitary 
system. All pupils of the same grade in the system shall be as­
signed to the same school, with the possible exception of those 
pupils assigned to a special education program which program 
will be conducted on a racially integrated basis. It is contem­
plated that all grades, kindergarten through the sixth grade, shall 
be located and conducted in one building (the former Emporia 
Elementary School to be renamed R. R. Moton Elementary 
School) and all grades, seventh through twelfth, shall be located



15

possible to operate a quality system designed to meet the 
problems that naturally occur in the transition from a basic­
ally segregated system to a massively integrated one.

The City system would contain 580 Negro children and 
543 white children—a ratio of 52% Negro to 48% white. 
The County system would contain 1,888 Negro children 
and 728 white children—a ratio of 72% Negro to 28% 
white. The combined systems contained 2,477 Negro chil­
dren and 1,282 white children—a ratio of 66% Negro to 
34% white (304a).

Petitioners introduced no evidence in this case indicating 
any dissatisfaction on their part with the City’s plan to oper­
ate its unitary school system.13

Its evidence at the hearing on August 8, 1969 upon the 
motion for a temporary injunction was restricted to testimony 
from the superintendent of schools, the mayor of the City, 
and the chairman of the City School Board together with 
exhibits introduced through those witnesses. At the hearing 
on December 18, 1969 to determine whether the injunction 
should be made permanent, it was stipulated that the evi­
dence introduced at the August hearing could be considered

and conducted in one building (the former Greensville County 
High School to be renamed Emporia High School).

2. The schools will sponsor and support a full range of extra­
curricular activities and all activities conducted by or in the 
public school system will be on a racially integrated basis.

3. Any bus transportation that is provided will be on a racially 
integrated basis.

4. No students will be accepted from other school divisions or 
districts until approval is first obtained from the United States 
District Court.

13 The record does not disclose the residence of the petitioners at 
the times pertinent to the issues here involved—thus, it is not known 
whether they all resided in the County, whether they all resided in the 
City, or whether some resided in City and some in the County.



16

as received in the December hearing (Transcript of proceed­
ings, 12/18/69, p. 3). Petitioners introduced no additional 
evidence.

Decision of the District Court

On page 17 of their brief, petitioners quote at length from 
the opinion of the District Court delivered from the bench 
on August 8, 1969 at the hearing on the temporary injunc­
tion.

There can be no doubt that the District Court’s impression 
of this case at the time of that hearing changed drastically 
after hearing the evidence presented by the City on Decem­
ber 18, 1969. During the hearing on December 18, the Dis­
trict Judge stated:

f think the matter now is in a different posture and 
less difficult in the calmness of December than it was 
(240a).

*  *  *

* * * j  sajc} before, this is a much—a more dif­
ferent situation than it was in August (248a).

Therefore, it is the findings made by the District Court 
after the evidence was fully developed that are controlling. 
Certainly, they supercede any conflicting findings made after 
the expedited and peremptory hearing on the temporary 
injunction. It is to the later findings we now turn.

(a ) P roposed  Sy s t e m

With respect to the system Emporia desires to operate, the 
District Court found:

The city clearly contemplates a superior quality edu­
cational program. It is anticipated that the cost will be 
such as to require higher tax payments by city residents.



17

A kindergarten program, ungraded primary levels, 
health services, adult education, and a low pupil-teacher 
ratio are included in the plan, defendants’ Ex. E-G 
at 7, 8 (297a).

* * *
The Court does find as a fact that the desire of the 

city leaders, coupled with their obvious leadership abil­
ity, is and will be an important facet in the successful 
operation of any court-ordered plan (306a).

*  *  *

This Court is satisfied that the city, if permitted, will operate 
its own system on a unitary basis (307a).

(b ) R e a so n s  for  E m po r ia ’s D e c isio n

W ith respect to the reasons behind the desire of Emporia 
to operate its own system, the District Court found:

The motives of the city officials are, of course, mixed. 
Ever since Emporia became a city consideration has 
been given to the establishment of a separate city sys­
tem (305a).

•3£ ‘Jf
Emporia’s position, reduced to its utmost simplicity, 

was to the effect that the city leaders had come to the 
conclusion that the county officials, and in particular 
the board of supervisors, lacked the inclination to make 
the court-ordered unitary plan work. The city’s evidence 
was to the effect that increased transportation expendi­
tures would have to be made under the existing plan, 
and other additional costs would have to be incurred in 
order to preserve quality in the unitary system. The 
city’s evidence, uncontradicted, was to the effect that 
the board of supervisors, in their opinion, would not be 
w illin g to provide the necessary funds (305a, 306a).

*  *  *

The Court finds that, in a sense, race was a factor 
in the city’s decision to secede (307a).



18

It is significant that while the District Court found the 
motives of the city officials to be mixed and that, in a sense, 
race was a factor, it did not find that the reasons of the City 
were related to obtaining “a more palatable racial mix” 
(PB 54).

(c ) E f f e c t  o n  C o u n t y

W ith respect to the effect of the establishment by Emporia 
of a separate system, the District Court found:

The establishment of separate systems would plainly 
cause a substantial shift in the racial balance. The two 
schools in the city, formerly all-white schools, would 
have about a 50-50 racial makeup, while the formerly 
all-Negro schools located in the county which, under 
the city’s plan, would constitute the county system, 
would overall have about three Negro students to each 
white [footnote omitted] (304a).

*  *  *

Moreover, the division of the existing system would 
cut off county pupils from exposure to a somewhat more 
urban society (306a).

*  *  *

While the city has represented to the Court that in 
the operation of any separate school system they would 
not seek to hire members of the teaching staff now 
teaching in the county schools, the Court does find as a 
fact that many of the system’s school teachers live with­
in the geographical boundaries of the city of Emporia. 
Any separate school system would undoubtedly have 
some effect on the teaching staffs of the present system 
(307a).

In sum, the District Court was primarily concerned with 
the shift in racial balance that would result if Emporia estab­



19

lished its own system. Secondarily, it commented upon the 
county pupils’ exposure to a somewhat more urban society1* 
and an unspecified effect on the teaching staffs. It was upon 
those factors alone that the District Court prohibited the 
City from exercising the powers and fulfilling the duties im­
posed upon it by the law of Virginia.

In concluding its opinion, the District Court clearly indi­
cated that it considered any possible adverse effects result­
ing from separation to be purely speculative:

But this [fact that Emporia’s system will be unitary] 
does not exclude the possibility that the act of division 
itself might have foreseeable consequences that this 
Court ought not to permit (emphasis supplied) (307a). 

* * *
This Court is most concerned about the possible ad­

verse impact of secession on the effort, under Court di­
rection, to provide a unitary system to the entire class 
of plaintiffs (emphasis supplied) (308a).

Having decided to prohibit Emporia from establishing its 
system for the reasons recited above, the District Court 
added:

If Emporia desires to operate a quality school sys­
tem for city students, it may still be able to do so if it 
presents a plan not having such an impact upon the 
rest of the area now under order. * * * Perhaps, too, a 
separate system might be devised which does not so 
prejudice the prospects for unitary schools for county 
as well as city residents. This Court is not without the 14

14 According to the 1970 census, Emporia had a population of 
5300. U.S. Dept, of Commerce Bureau of Census, 1970 Census of 
Population, General Population Characteristics PC ( / )— B 48 Virginia 
(October 1971). According to the mayor of Emporia, the wealth of 
the area is located in the County and not the City (291a). Thus, the 
benefits of being exposed to the “urban society” of Emporia would 
appear somewhat limited, at best.



20

power to modify the outstanding decree, for good cause 
shown, if its prospective application seems inequitable 
(309a).

If the unitary plan proposed by the City does not satisfy 
the test of equity, it is difficult to envision how it could be 
modified in a manner which would permit the City to accept 
the invitation of the District Court.

Decision of the Court of Appeals

The Court of Appeals reversed the District Court and in­
structed that the injunction against the City be dissolved. Its 
decision was based entirely upon the factual findings of the 
District Court. In summary, the Court of Appeals held:

(a) The power of state government to determine the 
geographic boundaries of school districts is ordinarily 
plenary (311a, 312a).

(b) Such power is limited when the exercise thereof 
is for the purpose of perpetuating invidious discrimi­
nation (312a).

(c) If the effect of the boundary determination is 
resegregation, a discriminatory purpose will be inferred 
(312a).

(d) If the effect of the boundary determination is 
only a modification of the previous racial ratio, then 
further inquiry into the purpose of that change must be 
made (313a).

(e) Relying only upon the findings of fact made by 
the District Court, the Court of Appeals held that 
neither the effect nor the purpose of the boundary de­
termination was in violation of the constitutional rights 
of petitioners (316a).

The decision of the Court of Appeals will be more fully 
discussed subsequently.



21

However, attention is now called to the fact that peti­
tioners throughout their brief refer to the Court of Appeals 
as having given consideration to the motive of the City 
officials in deciding to establish a separate school system 
(PB 26, 29, 37, 40, 45, 46). Whether by accident or design, 
petitioners inaccurately portray that the Court of Appeals 
tested the constitutionality of Emporia’s action by determin­
ing the “primary motive” (313a, 316a, 318a) of the local 
officials. Of course, it was the “purpose” of the action, rather 
than the “motive” behind that action, that was considered 
by the Court of Appeals and this is clearly stated in the 
opinion. Petitioners attempt to negate the distinction between 
purpose and motive by a footnote on page 38 of their brief.

Petitioners quote at length from Judge Sobeloff’s dissent­
ing opinion in United States v. Scotland Neck City Board of 
Education, 442 F.2d 575 (4th Cir. 1971), stating that it 
was a companion case to the instant one (PB 27, 28). 
Though the cases were decided at the same time, the Scot­
land Neck case is not truly a companion to the Emporia case. 
They were tried by different district courts and involve sub­
stantially different facts.10

SUMMARY OF ARGUMENT

I

Under the law of Virginia counties and cities now are and 
historically have been independent of each other politically, 
govemmentally and geographically. Each has the separate

16 Judge Sobeloff did not participate nor vote in the Emporia case. 
If any significance can be attached to his views so far as this case is 
concerned, then it should be noted that Judge Butzner, who likewise 
did not participate in it, was a part of the majority in the United 
States v. Scotland Neck City Bd. of Educ., and must, therefore, be 
assumed to be in accord with the principles set forth by the majority 
in the Emporia case.



22

and independent right and duty to operate and maintain 
its own school system. Emporia became a city on July 31, 
1967 pursuant to a law that has existed since at least 1892 
and, at that time, became obligated to maintain its own 
school system.

II

The proposed action of the City to operate and maintain 
an independent school system will not violate any of the con­
stitutional rights of petitioners as those rights have been de­
fined by the most recent decisions of this Court. The constitu­
tional rights of petitioners, which in this case are grounded 
upon the equal protection clause of the Fourteenth Amend­
ment, require that they be permitted to attend a unitary, 
non-racial system of public education. The corresponding 
duty of the local school authorities is to provide such a sys­
tem. Petitioners are not entitled to demand, and local school 
authorities are not required to provide, any particular plan 
to accomplish that result.

In this case, the proposed action by the City of Emporia 
will result in a racially unitary system of public education 
in the City in which approximately 52% of the school popu­
lation will be Negro and 48% will be white. All students in 
the elementary grades will attend one school and all students 
in the high school grades will attend another school. The 
County system, which will also be racially unitary, will con­
tain approximately 72% Negro students and 28% white 
students. The ratio of the combined system is approximately 
66% Negro and 34% white. The shift in racial balance re­
sulting from the proposed separation of Emporia from the 
County system denies to no one any constitutional right to 
which he is entitled. Further, no other result of the proposed 
separation constitutes the violation of any constitutional right 
of petitioners.



23

The proposed action of the City will stand any constitu­
tional test to which it is fairly subjected whether that test 
be the one announced in the opinion of the Fourth Circuit, 
the one proposed by Judge Winter in his dissent to the 
opinion of the Fourth Circuit, or the one proposed by Judge 
Sobeloff in his dissent to the opinion of the Fourth Circuit in 
United States v. Scotland Neck City Board of Education, 
supra.

Therefore, the City of Emporia should not be restrained 
from exercising the powers and fulfilling the duties imposed 
upon it by the Constitution and laws of Virginia.

ARGUMENT

I
The Law of Virginia Vests the Power and the Duty Upon the City 

of Emporia to Operate and Maintain a Public School System

A.

C o u n t ie s  A nd  C it ie s  O f V irg in ia  A re  
I n d e p e n d e n t  O f E a c h  O t h e r

In City of Richmond v. County Board, 199 Va. 679 
(1958) at 684, the Supreme Court of Virginia stated:

In Virginia, counties and cities are independent of 
each other politically, governmentally and geographi­
cally. Each of them, within its particular boundaries, 
is a co-equal political subdivision agency of the State.

In Murray v. Roanoke, 192 Va. 321 (1951) at 324, the 
Virginia Court held:

In Virginia, counties and cities are separate and dis­
tinct legal entities. Each is a subordinate agency of the 
State government, and each is invested by the legisla­



24

ture with subordinate powers of legislation and adminis­
tration relative to local affairs in a prescribed area. Citi­
zens of the counties have no voice in the enactment of 
city ordinances, and conversely citizens of cities have no 
say in the enactment of county ordinances.

That this has been the law historically in Virginia is 
demonstrated by Supervisors v. Saltville Land Co., 99 Va. 
640 (1901).

This principle is applicable to a city that became such 
under the provisions of the law providing for the transition 
of towns to cities. In Colonial Heights v. Chesterfield, 196 
Va. 155 (1954), the Supreme Court of Virginia held at 167:

The town, upon becoming a city, separates from a 
political subdivision of which it was a part and be­
comes an independent political subdivision, except as to 
certain joint services specified in Code, § 15.104 [now 
§ 15.1-1005],

Schools are not listed among the services specified in 
§ 15.1-1005—that section is limited to the sharing of the 
circuit court, commonwealth’s attorney, clerk and sheriff.

B,

E m poria  Beca m e  A C ity  P u r s u a n t  T o 
L o n g  E x is t in g  Sta te  L a w

The present Code of Virginia provides that a town upon 
attaining a population of 5,000 may elect to become a city of 
the second class by following the procedure set forth in the 
Code. Title 15.1, ch. 22, Va. Code Ann. 1950, as amended. 
The law has been substantially the same since at least 1892. 
Acts of the Assembly, 1891-1892, ch. 595, at 934.

Thus it is clear that the provisions under which the Town 
of Emporia acted to become a city have long been a part of



25

the law of Virginia and were not enacted in any way as the 
result of the school desegregation suits or for any other racial 
reason.

G.

C it ie s  I n  V irg in ia  H ave T h e  R ig h t  A n d  D u t y  T o 
O per a te  A n d  M a in t a in  O w n  S ch o o l  Sy s t e m s

On July 31, 1971, a rather extensive revision of the Con­
stitution of Virginia became effective. Conforming revisions 
to the statutes of Virginia likewise became effective on that 
same date. The argument that follows in this section is ap­
plicable under the constitution and statutes both before and 
after the revision.

The Constitution of Virginia has, since 1928, vested the 
supervision of county schools in the county school boards and 
the supervision of city schools in the city school boards. Sec­
tion 133 of the Constitution of Virginia (RA 1), which 
was in effect at the time this case was tried,16 provides, in 
part, as follows:

The supervision of schools in each county and city 
shall be vested in a school board, to be composed of 
trustees to be selected in the manner, for the term and 
to the number provided by law.

Since at least 1919 the Code of Virginia has affirmatively 
required the city school boards to establish and maintain a

16 Pertinent portions of the Constitution as revised are set forth at 
RA 2.

Many of the sections of the Code of Virginia which are set out in 
the appendix to the Brief for Petitioners have been amended or re­
pealed. The sections, as amended, are set forth at RA 2, 3 and 7.

Under the law of Virginia at the time this case was tried and at 
the present time, it was and is not possible to have a single school 
board for a county and a city without the consent of both and of the 
State Board.



26

system of schools in cities. Section 22-93, V  a. Code Ann., 
1950, as amended (RA 3), provides:

The city school board of every city shall establish 
and maintain therein a general system of public free 
schools in accordance with the requirements of the Con­
stitution and the general educational policy of the Com­
monwealth.

This language was also contained in the Code of 1919, 
§ 786.

Section 22-97, Va. Code Ann., 1950, as amended (RA 
3, et seq.), enumerates the powers and duties of the city 
school boards.

Thus, the law in Virginia for many years has not only per­
mitted but required city school boards to establish and main­
tain city schools.

The petitioners have recognized that the local school 
boards are required to “establish, maintain, control and su­
pervise an efficient system of public free schools” in the 
political subdivisions of the State. See paragraph 7 of the 
Complaint filed on March 12, 1965 (5a).

The Supreme Court of Virginia has spoken directly to 
the duty of a city to maintain its own school system after 
a transition. In School Board v. School Board, 197 Va. 
845 (1956), dealing with the transition of the Town of 
Covington to a city, the court stated at 847:

As a town, Covington was a part of Alleghany County 
whose public schools were operated by the County 
School Board. When Covington became a city it ceased 
to be a part of the county, became a completely inde­
pendent governmental subdivision, and was required by 
law to maintain its own public school system (emphasis 
supplied).



27

The evidence shows that under the contract arrangement 
between Greensville County and the City of Emporia, which 
was in existence when the case was tried in the District 
Court, the School Board of the City of Emporia was not 
exercising or fulfilling any of these powers and duties (158a, 
159a, 242a).

If the City is further restrained from operating its own 
system, an intolerable situation will be perpetuated. Children 
of City residents will be required to attend a school system 
over which the City has absolutely no control. The City will 
have no right to participate in the selection of the members 
of the County School Board and thus will have no voice in 
the quality of the schools that are provided. It will have no 
right to participate in the selection of the governing body of 
the County and thus will have no voice in the amount of 
money appropriated for school purposes.

On the other hand, the County will be required to con­
tinue educating the City’s children. Absent agreement be­
tween the City and County, there is no definitive provision 
for establishing the amount that City should pay to the 
County for this service. If no such agreement could be 
reached—and with the situation as it exists, it is doubtful 
that it could—the question would inevitably be presented to 
the courts. Any order requiring the City to pay a certain 
amount to the County would, in effect, be an order requiring 
the governing body of the City to levy taxes and appropriate 
a fixed sum to pay to the County for the operation of its 
school system—a school system over which the City has no 
control whatsoever.

On page 45 of their brief, in footnote 26, petitioners sug­
gest a solution: they suggest that the District Court “could 
modify the requirements of state law concerning representa­
tion.” They do not elaborate on this plan. Do they envision



28.

court-ordered representation of the City on the school board 
only? This would accomplish nothing since the power of the 
purse lies solely with the governing body of the County. Or 
do they suggest court-ordered representation of the City on 
the governing body of the County? The statement of the 
question alone illustrates the problems—constitutional, statu­
tory and practical—which would inevitably follow.

If petitioners’ suggestion were followed to its logical con­
clusion, district courts would find themselves making legisla­
tive determinations involving every level of state government. 
They would be required to determine the manner in which 
local government in Virginia must be structured, the manner 
of providing representation on the governing bodies and 
school boards of the local units of government, and the man­
ner in which the taxing powers of those units must be exer­
cised.

We do not believe that the operation by Emporia of its 
own school system as provided for by Virginia law violates 
any constitutional right of petitioners. And we submit that 
the fact that the structure of local government in Virginia 
was established under long-existing constitutional and statu­
tory provisions is a consideration upon which this Court 
should focus in deciding this question.

II

Operation by the City of Its Own School System Would Violate no 
Constitutional Rights of Petitioners

A.

P e t it io n e r s ’’ R ig h t s

Petitioners’ rights in this case are grounded upon the man­
date contained in the Fourteenth Amendment to the Con­
stitution of the United States that:



29

No state . . . shall deny any person within its juris­
diction the equal protection of the laws.

Between the date of the decision in Brown v. Board of 
Education, 347 U.S. 483 (1954) (Brown I ) ,  and the present 
time, literally hundreds of cases have been decided dealing 
with the scope of this constitutional mandate as applied to 
the public school systems of the several states. Nevertheless, 
it is well to focus on the language of the basic provision of the 
Constitution which establishes the rights of the petitioners on 
the one hand and the duties of the respondents on the other.

In  Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 
U.S. 1 (1971), Green v. School Board of New Kent County, 
391 U.S. 430 (1968), and in Alexander v. Holmes County 
Board of Educ., 396 U.S. 19, (1969), this Court has made its 
most recent pronouncements with respect to the substantive 
constitutional rights of Negro children and the corresponding 
duties of local school boards.

In Green, the Court stated that it had held dual systems 
unconstitutional in Brown I and that the school boards were 
“required by Brown II  ‘to effectuate a transition to a racially 
non-discriminatory school system’.” 391 U.S. at 435.

The Court then said:

\T]he transition to a unitary, non-racial system of 
public education was and is the ultimate end to be 
brought about . . . (emphasis supplied).

391 U.S. at 436.

The Court continued:

School boards . . . were . . . charged with the af­
firmative duty to take whatever steps might be neces­
sary to convert to a unitary system in which racial dis­
crimination would be eliminated root and branch . . .



30

The constitutional rights of Negro children articulated 
in Brown I  permit no less than this . . .

391 U.S. at 437, 438.

In Holmes, this Court instructed the Court of Appeals to 
declare:

that each of the school districts here involved may no 
longer operate a dual school system based on race or 
color, and directing that they begin immediately to 
operate as unitary school systems within which no per­
son is to be effectively excluded from any school because 
of race or color.

396 U.S. at 21.

In Swann, this Court did not expand its previous defini­
tion of the rights of Negro children but rather dealt with 
the duties of school authorities and the powers of district 
courts to assure that such rights were enjoyed. The objective 
of the Court was “to see that school authorities exclude no 
pupils of a racial minority from any school, directly or in­
directly, on account of race.” Swann, 402 U.S. at 23. (I t is 
to be noted that in the instant case, petitioners are in the 
racial majority.)

Therefore, based upon the foregoing decisions, the peti­
tioners have the constitutional right to attend a unitary, non- 
racial school system, and the local school boards have the 
affirmative duty to provide such a system. It is submitted 
that while the petitioners can expect no less, they can de­
mand no more. Such a system is “the ultimate end,” {Green, 
391 U.S. at 436) to be attained and, if attained, provides the 
rights to which petitioners are entitled and fulfills the duties 
for which the respondents are responsible.

This Court has also held that Negro children have no con­
stitutional right to any particular plan to accomplish the



31

ultimate end of a racially unitary system. If the plan of the 
local school authorities has been adopted in good faith and 
“promises realistically to work now,” then it provides effec­
tive relief. Green, 391 U.S. at 439. And school authorities 
“have broad power to formulate and implement educational 
policy” Swann, 402 U.S. at 16.

Of course, the right to a unitary, nonracial school system 
cannot be nullified “through evasive schemes for segregation 
whether attempted ‘ingeniously or ingenuously’.” Cooper v. 
Aaron, 358 U.S. 1 (1958) at 17. By the same token, the 
rights and duties of local school authorities to operate and 
maintain school systems as provided for by the constitution 
and laws of the state cannot be nullified by insistence upon 
a particular method of achieving a unitary system.

It is only when the violation of a constitutional right has 
been shown that the remedial powers of the courts may be 
exercised. In Swann, this Court stated:

In seeking to define even in broad and general terms 
how far this remedial power extends it is important to 
remember that judicial powers may be exercised only 
on the basis of a constitutional violation. Remedial ju­
dicial authority does not put judges automatically in the 
shoes of school authorities whose powers are plenary, 
judicial authority enters only when local authority de­
faults.

402 U.S. at 16.

Here, the City has not defaulted and its proposed action 
will not violate any of petitioners’ constitutional rights. Thus 
it is not necessary, nor is it proper, to consider the scope of 
the district court’s remedial power. Where there has been 
no denial of a federally protected right, there is no remedial 
power to be exercised.



32

B.

P ro posed  A ctio n  O f  T h e  C ity

The School Board of the City of Emporia has adopted a 
plan pursuant to which it will operate a racially unitary 
school system if permitted so to do by the courts. This plan 
is set forth in footnote 12 on page 14 of this brief and on 
page 224a of the Appendix.

The evidence shows that such a system operated by the 
City will have approximately 48 percent white students and 
52 percent Negro students (304a).

The uncontradicted evidence showed that the City has 
taken steps to plan a school system of excellence that would 
provide incentives for all its children to obtain an education 
in a truly unitary system. The District Court so found 
(297a). It was envisioned that this system would serve as 
an example of what can be done by school officials dedicated 
to making a unitary system work—not just in name and 
numbers, but in actual fact.

The School Board engaged the services of a well-known 
educator who assisted it in making preliminary plans for the 
type of program that would be required to meet the educa­
tional and social challenges of a system that has a 50-50 
racial mix and to hold the children who might otherwise 
drop out of the system before completing their education 
(202a, et seq. espec. 212a). An estimated budget for the 
operation of such a system was prepared and approved by 
the unanimous vote of the School Board (200a). Further, 
the City Council agreed to include the necessary funds to 
finance such a system in the next budget (287a). Of course, 
the actions of the School Board and Council were necessarily 
conditioned upon the dissolution of the injunction entered 
by the District Court.



33

Every step that could practicably be taken to plan such a 
system consistent with the restraints imposed by the District 
Court was taken. The plans were more than mere abstract 
expressions of individuals relating to goals to be sought. 
Formal approval to the extent now possible of workable 
plans and the estimated budget by the respective Boards are 
a matter of record. If those plans violate no constitutional 
rights of petitioners, then the Council and School Board, of 
the City of Emporia should be permitted to proceed to put 
them into effect.

C.

P e t it io n e r s ’ R ig h t s  W il l  N ot Be V iolated  By  T h e  
P roposed  A ctio n  O f  T h e  C ity

It is obvious that the separate systems— City and County 
■—will each be racially unitary in law and in fact. No stu­
dent in the City and no student in the County—whether of 
the racial majority (Negro) or minority (white)—will be 
excluded from any school on account of race. The District 
Court held that it “was satisfied that the City, if permitted 
will operate its own system on a unitary basis” (307a). It 
previously entered an order that assures such a system will be 
operated in Greensville County (54a) regardless of the out­
come of this case.

In footnote 21, on pages 32 and 33 of their brief, peti­
tioners complain that under the City’s plan the traditional 
racial identities of the schools would be maintained. This is 
just not true. For two and one-half years, the County system 
has been operated under the “pairing” plan approved by the 
District Court on June 25, 1969 and presumably it would 
continue to operate under such a plan. Under the City’s pro­
posal, each of the two schools it will operate will be fully 
integrated—one with a slight majority of Negro students,



34

the other with a slight majority of white students (316a). 
And one of those schools will be named the R. R. Moton 
Elementary School (225a).

Therefore, it is only if the separation itself, which came 
about as an automatic and incidental result of the town’s 
transition to city status, deprives petitioners of their constitu­
tional rights that the City should be prohibited from operat­
ing its own system as every other city in Virginia is permitted 
to do.

Petitioners base their argument and their case on an as­
sumption. They assume the deprivation of a constitutional 
right. They do not ever attempt to point out the constitu­
tional right they claim would be violated. Their argument 
speaks only to the remedial powers of the District Court 
which, as we have previously noted, can only be applied 
after a violation of a constitutional right has been shown.
■Swann, supra, 402 U.S. at 16. Thus, petitioners attempt to 
pull themselves up by their own bootstraps—they argue the 
abstract principles with respect to remedy without ever 
establishing a violation.

To put the issue here involved into perspective it is neces­
sary to examine the reasoning of the District Court and of 
the dissenting judge (Judge Winter) on the Court of Ap­
peals in holding that the City should be restrained. Only in 
that way can the applicable law be related to the facts in this 
argument. In their Statement, petitioners set forth the 
following “difficulties” which the District Court found would 
arise upon separation (PB 21, 22) :

1. substantial shift in racial balance,
2. a city high school of less than optimum size,
3. isolation of rural county students from exposure 

to urban society,
4. disruption of teaching staff, and



35

5. withdrawal of city leadership from the county’s 
educational program.

Further, they set forth the factors mentioned by Judge 
Winter which would make the separate system plan “less 
effective” than the District Court order. In summary, these 
factors were stated to be (PB 27) :

1. delay which would be occasioned by adoption of 
new plans,

2. substantial change in racial proportions, and
3. the effect on county black students of the excision 

from their system of a significant part of the white 
population.

W ith the exception of the so-called “substantial shift” in 
racial balance, all of the aforementioned “difficulties” and 
factors would be present even if the racial balance in the 
separate systems had remained precisely the same as it was 
before separation. And almost all of them would be present 
had the systems historically been separate.

We submit that none of such difficulties or factors—even 
if they in fact exist, which we deny—constitutes a violation 
of any constitutional right of petitioners. We again point out 
that the District Court was not convinced that any adverse 
effects would result from the separation. It stated that even 
though the City would operate systems with “superior qual­
ity” (297a) on a “unitary basis” (307a), that

[But] this does not exclude the possibility that the act 
of division itself might have foreseeable consequences 
that this Court ought not to permit” (emphasis sup­
plied) (307a).
And:

This Court is most concerned about the possible ad­
verse impact of secession on the effort, under Court di­



36

rection, to provide a unitary system to the entire class 
of plaintiffs” (emphasis supplied) (308a).

It is clear that the primary factor upon which the Dis­
trict Court based its decision, upon which Judge Winter 
based his dissent and upon which petitioners base their case 
is the shift in racial balance that will occur. We will address 
that issue now.

Shift in racial balance

The facts with respect to racial balance are :

Combined system 66% black; 34% white
Separate systems

Countv ..................................... 72% black; 28% white
C ity ........................................... 52% black; 48% white

These are the facts found by the District Court and 
adopted by the Court of Appeals (304a, 316a). Whether or 
not such a shift of such ratios constitutes the violation of a 
constitutional right is not a question of fact—rather it is a 
conclusion drawn from the facts. It is certainly within the 
powers of courts of appeals to reverse district courts on such 
a matter. Glassman Construction Company v. United States, 
421 F. 2d 212 (4th Cir. 1970). Actually, the District Court 
did not ever specifically hold that the shift did constitute a 
violation of constitutional rights.

In any event, we submit that a six percent increase in 
Negro enrollment and a six percent decrease in white enroll­
ment cannot reasonably be deemed a “substantial shift.” 
Such a minor change of proportions could result in any year 
for a variety of reasons and could not be deemed to alter the 
character of the County system. Before and after such a 
shift, the County system would be fully integrated with an 
approximate two to one Negro to white ratio.



37

We submit that there is no evidence in the record to indi­
cate that such a slight shift would actually result in any harm 
to county students. However, assuming arguendo, that harm 
would result from this slight change in the racial balance, 
per se, is it the type of harm against which the Constitution 
of the United States provides protection? The City submits 
that it is not. It does not result from the deprivation by the 
City of any constitutional rights of the petitioners.

In Swann, 402 U.S. at 24, this Court made it crystal clear 
that there is no requirement “as a matter of substantive con­
stitutional right, [to] any particular degree of racial balance 
or mixing.” It continued:

The constitutional command to desegregate schools 
does not mean that every school in every community 
must always reflect the racial composition of the school 
system as a whole.

402 U.S. at 24.

While local school authorities could require such ratios, 
federal courts do not have the power to do so absent a find­
ing of constitutional violation. Swann, 402 U.S. at 16.

Analysis of the cases cited by petitioners discloses that they 
are readily distinguishable from the Fourth Circuit’s decision 
in this case. It is probable that had those cases been before 
the Fourth Circuit, its decision would have been the same as 
in the cited cases.

In Lee v. Macon County Bd. of Educ., No. 30154 (5th 
Cir., June 29, 1971) (SA la), Oxford City, Alabama, at­
tempted to establish its own school system independent of 
Calhoun County of which it is a part. Apparently, Oxford 
had been a city since at least 1899 (SA 4a) but had been a 
part of the county school system since 1932. Though Oxford 
was a city, it is assumed that it was not completely inde­



38

pendent of the county since Virginia is the only state in the 
United States in which the unique structure of independent 
cities uniformly exists.17

More importantly, however, the Oxford system would have 
contained only 157 Negro students out of a total enrollment 
of 2,441 (SA 10a, fn. 10). At the same time, approximately 
45% of all the black students in the county system would at­
tend all black or virtually all black schools (SA 13a). Thus, 
the effect of the Oxford plan is to perpetuate segregation.

In Stout v. Jefferson County Bd. of Educ., 448 F2d 403 
(5th Cir. 1971), also arising from Alabama, it was held that

“Where the formulation of splinter school districts 
* * * have the effect of thwarting the implementation 
of a unitary school system, the district court may not, 
consistent with the teachings of Swann v. Charlotte- 
Mecklenburg, supra, recognize their creation” (em­
phasis supplied).

448 F2d at 404.

Involved in that case was the city of Pleasant Grove in the 
schools of which were no Negroes.18 Again the effect of the 
Pleasant Grove system was to perpetuate segregation.

17 C. Bain, “A Body Incorporate”— The Evolution of City-County 
Separation in Virginia ix, 23, 27, 35 (1967); G. Adrian, State and 
Local Governments, 249 (2d ed. 1967).

18 Support for this statement comes from the following quotation 
in Stout v. Jefferson County Bd. of Educ., CA No. 65-396 (N.D. Ala., 
July 30, 1970), which is unreported:

To date, the Pleasant Grove System has remained all white, 
but students attending the Pleasant Grove school are attending 
the school nearest their residence whether Pleasant Grove re­
mains separate or a part of the County System. To date, they 
have no black faculty members, but have offered employment to 
black teachers and are seeking to recruit some teacher members 
of that race. The system is open and available for all members 
of all races residing within the City of Pleasant Grove without 
discrimination. There are no black citizens within the city.



39

In Burleson v. County Bd. of Election Com’rs., 308 F. 
Supp. 352 (E.D. Ark, 1970), ajfd per curiam 432 F. 2d 1356 
(8th Cir. 1970), the question was whether the Hardin Area 
of the Dollarway School District of Jefferson County, Arkan­
sas, would be permitted to secede from that particular dis­
trict and establish a new district within the same county. 
Apparently, in addition to the county board of education, 
each school district had its own “board of directors.” For all 
purposes other than schools, it is again assumed that the 
Hardin Area would remain a part of Jefferson County.

In the Burleson case the district court found:

The population of the Area is almost exclusively 
white. In the fall of 1969 270 students residing in the 
Area were in attendance in the schools of the District, 
and only 5 of those students were Negroes.

308 F. Supp. at 353.
The Court went on to hold that under the “existing cir­

cumstances” the proposed secession would be enjoined. 308 
F. Supp. at 358.

In Aytch v. Mitchell, 320 F. Supp. 1372 (E.D. Ark. 
1971), a suburban area was seeking a division of one school 
district into two separate districts. Had this been permitted 
the suburban district would have had a racial ratio of 94% 
white to 6% black and the other district, a ratio of 96% 
black to 4% white. Obviously, no valid comparison can be 
drawn between Aytch and this case.

Petitioners cite Jenkins v. Township of Morris School Dist.,
..... A. 2 d ....... (N.J. 1971) (SA 25a) for the proposition that
the Commissioner of Education for the state had the power 
to cause district lines to be crossed. This is far different from 
a decision that the constitutional rights of Negro students re­
quire such a result.



40

Haney v. County Bd. of Educ. of Sevier County, 410 F. 
2d 920 (8th Cir. 1969) involved two school districts within 
one county that were formed at a time when segregation was 
required by state law. The Lockesburg district contained 
white children only. The Sevier district, which consisted of 
two noncontiguous, irregularly shaped areas each of which 
was almost entirely surrounded by the Lockesburg district, 
contained Negro children only. The court there held as a 
matter of law that the school district lines were created to 
reflect racial separation—gerrymandering. 410 F. 2d at 926.

Each case cited by the petitioners in which the court has 
prohibited separation involved a situation in which the effect 
of such separation would have been to avoid a racially uni­
tary school system as a matter of fact. Under the facts of 
those cases, we suggest that the Fourth Circuit would like­
wise have prohibited the separation.

Not cited by petitioners is Spencer v. Kugler, 326 F. Supp. 
1235 (D.C. N.J., May 13, 1971) which was decided by a 
three-judge district court. The case is now on appeal to this 
Court and bears Docket No. 71-519. That case involves the 
duty of school authorities to redraw school district lines in 
order to correct racial imbalance. In that case, as in the in­
stant case, no black pupil is segregated from any white 
pupil, blacks in the school district predominate over white 
(326 F. Supp. at 1239), school boundaries were prescribed 
by the legislature in conformity with municipal boundaries 
and considerations of race were not involved in the drawing 
of the lines. 326 F. Supp. at 1240. Further, plaintiffs in that 
case, as in this, do not disclose the particulars of the constitu­
tional violations which they assume. 326 F. Supp. at 1240.

The Court held that the school system was unitary in 
nature and any imbalance within a district results from an



41

imbalance in the population of that municipality. 326 F. 
Supp. at 1240. After holding that Brown v. Board of Edu­
cation, supra, “never required more than a unitary school 
system,” the Court dismissed the complaint. 326 F. Supp. 
at 1241. The Court pointed out that its opinion was drafted 
prior to the Swann decision, but that it considered Swann to 
be a favorable appellate review of its views. 326 F. Supp. a£ 
1241.

Factors other than shift in racial balance

None of the other factors which petitioners set forth as 
having been considered by the District Court and by Judge 
Winter in his dissent can possibly give rise to a constitutional 
violation. They are factors which a school board should con­
sider in the administration of its system. They are not con­
stitutional problems which should be weighed and deter­
mined by the federal judiciary. Deal v. Cincinnati Board of 
Educ., 369 F. 2d 55 at 59, 65 (6th Cir. 1966), cert, denied 
389 U.S. 847 (1967). If the racial balance in the City and 
the County would have been precisely the same before and 
after separation, we suggest that a case based upon the other 
factors would not have ever been filed.

The District Court mentioned as difficulties that “the 
smaller city system would not allow a high school of optimum 
size” and that “division of the existing system would cut off 
county pupils from exposure to a somewhat more urban 
society” (306a). It also found that many of the teachers 
live in the City and that a separate system “would un­
doubtedly have some effect on the teaching staffs” even 
though the City represented it would not seek to hire such 
teachers (307a). Petitioners state that the District Court 
also found the “withdrawal of city leadership from the



42

county’s educational program” to be a difficulty (PB 22). 
We cannot locate such a finding unless it be the statement 
that the desire and ability of City leaders will be an impor­
tant facet in the successful operation of any court-ordered 
plan (306a).

We submit that the size of the City high school; the ques­
tionable conclusion that County students would be cut off 
from a somewhat more urban society;19 some unspecified ef­
fect on teaching staffs; and loss of leadership, which the City, 
in fact, is precluded from providing, are not factors which 
give rise to constitutional rights. If they were, then all resi­
dents of a state would be constitutionally entitled to optimum 
size schools, to urban exposure, and to the leadership which 
might be derived from adjacent political subdivisions.

Judge Winter added two other reasons: the delay which 
would have been occasioned by the adoption of the new 
plans (339a) and the “adverse psychological effects on the 
black children in the county” (340a). If the delay which 
Judge Winter believed would occur referred to the situation 
in August 1969, it, of course, would not have been a factor 
in December 1969 since the City did not plan to begin opera­
tion of its own system until September 1970 (200a). Fur­
ther, the plan submitted by the City (224a) was very simple 
and would not have caused delay in implementation. Lastly, 
if the City has the right to operate its own system, any slight 
delay that possibly might occur would not be a constitutional 
obstacle.

There was absolutely no evidence to support Judge Win­
ter’s conclusion that the shift in racial balance of 6% would 
have an “adverse psychological” effect on the Negro students 
in the County with any resultant effect on educational

19 It is to be noted that the District Court did not find this to be 
detrimental.



43

achievement. In fact, Dr. Tracey testified that he spent 
some time in ascertaining whether any studies were available 
on that question and that no such study had been made 
(281a).

D.

P ro posed  A ctio n  of C ity  M e e t s  A n y  
C o n s t it u t io n a l  T e s t  T o W h ic h  I t  M ay F airly  

Be S u b je c t e d

Petitioners assert that the opinion of the Fourth Circuit 
announces a new rule for school desegregation cases, which, 
according to petitioners, involves the determination of the 
“primary motive” of those proposing a change in school dis­
trict organization (PB 37). Only once in that opinion is 
“motivation” mentioned and that was in connection with the 
decision of Emporia to seek city status (314a). Even there, 
the Court found the motivation to have been to correct an 
unfair allocation of tax revenues and not to prevent or 
diminish integration. The Fourth Circuit did examine the 
“purpose” of the City in attempting to operate its separate 
system and it must be assumed that it chose the word “pur­
pose” advisedly. Likewise, it is assumed that the petitioners 
elected to use the word “motive” advisedly, in stating what 
the Court of Appeals said, rather than using that Court’s 
word. Be that as it may, in our view, as we will later ex­
plain, it makes little difference in this case which word is 
used.

Petitioners argue that the “effect” of the proposed action 
should be controlling rather than the motive behind that ac­
tion. We agree. And so did the Court of Appeals. Peti­
tioners, in their argument, ignore completely that the Fourth



44

Circuit was vitally concerned with the effect or result of the 
separation.20

The effect or result of the proposed separation was the 
first matter examined by the Court. Had it found that the 
effect of separation would be to perpetuate segregation or 
to result in resegregation, its inquiry would have ended and 
the District Court would have been affirmed. However, when 
it specifically found that the proposed separation would not 
have that effect, the Fourth Circuit held that further in­
quiry was necessary to determine the dominant or primary 
“purpose” of the proposed action. If the purpose was to 
“further the aim of providing quality education and is at­
tended secondarily by a modification of the racial balance, 
short of resegregation,” it held that “the federal courts 
should not interfere” (313a). If, however, the primary pur­
pose was to “retain as much of separation of the races as 
possible” the “affirmative constitutional duty to end state 
supported school segregation” has been violated (313a).

The test applied by the Fourth Circuit is more generous 
to petitioners than any test which they suggest. It cannot be 
disputed that the effect of establishing the City’s School 
System will be that Greensville County and the City of Em­
poria each will operate racially “unitary school systems with­

20 On page 25 of their brief in the Statement section, petitioners 
write:

In  general, therefore, the Court holds that the permissibility 
of creating new districts from old ones depends upon whether 
the “primary purpose . . .  is to retain as much of separation of 
the races as is possible” (313a). Where the result justifies an in­
ference of purpose, that is the end of the matter. Where it does 
not, the courts are to look to other evidence in forming their 
judgment of the “primary purpose” for establishing new districts 
(emphasis supplied).

Thereafter, they overlook their own statement with respect to the 
basis of the decision of the Fourth Circuit and proceed as if “motive” 
were the sole test applied by that Court.



45

in which no person is to be effectively excluded from ahy 
school because of race or color,” Holmes, 396 U.S. at 20, 
and from which “school authorities exclude no pupil of a 
racial minority [or majority] from any school, directly or 
indirectly, on account of race.” Swann, 402 U.S. at 23. In 
both systems, Negro children will be in the majority just as 
they were in the combined system. In the County that ma­
jority will be increased by only '6 percent as a result of the 
separation (316a). There is no evidence of any resultant 
harm to the petitioners who reside in the County—certainly 
none of a constitutional nature. On the other hand, the 
Negro children who live in the City—for whom those prose­
cuting this litigation appear to have no regard—will not 
only be able to attend a racially unitary system but also a 
system in which a superior quality educational program 
geared to solve the problems of integration will be provided. 
The District Court so found (297a, 306a, 307a).

Thus, we submit that the Fourth Circuit did consider 
“effect” to be of vital importance. It considered “effect” as 
the primary test in determining the purpose of the separa­
tion. And purpose is a proper-—perhaps necessary—inquiry 
in equal protection cases which involve whether a challenged 
classification is unconstitutional. (It is on this point that the 
distinction between purpose and motive is important. The 
former is an objective determination; the latter, a subjective 
one.) See Developments in the Law— Equal Protection, 82 
Harv. L. Rev. 1065 (1969) at 1091.

The Fourth Circuit went beyond “effect” in its determi­
nation of purpose:

Not only does the effect of separation not demon­
strate that the primary purpose of the separation was 
to perpetuate segregation, but there is strong evidence 
to the contrary. Indeed, the district court found that



46

Emporia officials had other purposes in mind (emphasis 
supplied) (316a).

The Court then reviewed the findings of the District Court 
that we have set out previously in this brief.

Having decided that no discriminatory effect or purpose 
existed or would result, which decision was based upon the 
District Court’s findings of fact, the Fourth Circuit held that 
the injunction would sacrifice legitimate and benign edu­
cational improvement and should be dissolved (318a).

In the lone dissent to the opinion of the Fourth Circuit, 
Judge Winter expressed the opinion that the standard to be 
applied was established in Green v. County School Board 
of New Kent County, 391 U.S. 430 (1968) (336a). The 
proposed plan of the City, we submit, meets that standard.

It was in Green that this Court said that “a unitary, non- 
racial system of public education was and is the ultimate end 
to be brought about. . . .” 391 U.S. at 436.

It was in Green that this Court said that there is “no uni­
versal answer” to the problems of desegregation and that 
there is “no one plan that will do the job.” 391 U.S. at 439.

It is only when the proposed plan is “less effective” than 
another plan that “a heavy burden” is placed upon a school 
board to explain its preference. Green, 391 U.S. at 439.

First, we submit that the proposed plan is not less effective 
than the one urged by petitioners. On the contrary, it is more 
effective. Second, even if it were less effective, the City has 
carried the heavy burden of showing why it is preferable.

Judge Winter attaches crucial significance to the fact that 
the percentage of white students in the City would be sub­
stantially greater than it would have been in the combined 
system. He said:

Within the entire county, there are 3,759 students in 
a racial ratio of 34.1% white and 65.9% black. Within



47

the city there are 1,123 students, 48.3% of whom are 
white and 51.7% are black. If the city is permitted to 
establish its own school system, the racial ratio in the 
remainder of the county will change to 27.8% white 
and 72.2% black. To me the crucial element in this 
shift is not that the 48.3% -51.7% white to black ratio 
in the town does not constitute the town a white island 
in an otherwise heavily black county and that a shift of 
6°/o in the percentage of black students remaining in the 
county is not unacceptably large. Whenever a school 
area in which racial separation has been a historical 
fact is subdivided, one must compare the racial balance 
in the preexisting unit with that in the new unit sought 
to be created, and that remaining in the preexisting 
unit after the new unit’s creation. A substantial shift 
in any comparable balances should be cause for deep 
concern. In this case the white racial percentage in the 
new unit will increase from 27.8% to 48.3%.[21] To allow 
the creation of a substantially whiter haven in the midst 
of a small and heavily black area is a step backward 
in the integration process (emphasis supplied) (339a, 
340a).

Thus, Judge Winter agrees with the majority that Em­
poria would not be a white island and that the 6% shift in 
the percentage of black students remaining in the County 
is not unacceptably large. That being so, what possible in­
justice would result from the fact that the percentage of 
white students in the City system would be greater than that 
percentage would have been in the combined system—in 
either case, white students will be in the racial minority. The 
only logical explanation seems to be that Judge Winter be­
lieves that a particular racial balance is required by the Con- 21

21 Judge Winter apparently misread the figures. Actually, the white 
racial percentage would increase from 34% in the combined unit 
to 48% in the City unit.



48

stitution. This Court has made it clear that this is not the 
law. Swann, 402 U.S. at 24.

The standards proposed by Judge Sobeloff in United 
States v. Scotland Neck City Board of Education, 442 F. 2d 
575 (4th Cir. 1971) are preferred by petitioners (PB 43). 
He suggests a “compelling and overriding state interest” test 
(322a, el seq.).

He states it as follows:

If challenged state action has a racially discrimina­
tory effect, it violates the equal protection clause unless 
a compelling and overriding legitimate state interest is 
demonstrated (322a).

Since Judge Sobeloff did not participate in the Emporia 
case, we of course do not know how he would have applied 
that standard in it. In Scotland Neck, he stated that the 
effect of the new school district was to “create a sanctuary 
for white students” (334a) and was therefore discrimina­
tory.

We submit that the proposed action by the City of Em­
poria would have no such effect. The City, as Judge Winter 
agreed (340a), will by no means be a “sanctuary” for 
white students for they will be in the racial minority. Even 
if the fact that white students will constitute 48% of the 
City system, as compared to 34% of the total system, would 
have a racially discriminatory effect, which we deny, we 
submit that it should be permitted under Judge Sobeloff’s 
own test. The objective of the City to provide a superior 
quality, racially unitary school system of its own, as every 
other city in the state is permitted to do, constitutes a com­
pelling and overriding legitimate state interest. The ma­
jority in the Emporia case so held:



49

We think the district court’s injunction * * * was 
improvidently entered and unnecessarily sacrifices legiti­
mate and benign educational improvement (318a).

Petitioners have made it clear that they do not believe 
“motive” to be controlling. As heretofore stated, we agree. 
We have pointed out that the majority did not base its de­
cision upon motive. Judge Winter alone would have no ob­
jection to consideration of motive.22

This Court has recently stated that “no case in this Court 
has held that a legislative act may violate equal protection 
solely because of the motivations of the men who voted for 
it.” Palmer v. Thompson, 403 U.S. 217, 29 L. Ed. 2d 
438 (1971) at 444.

It is true, however, that “the process of finding purpose 
and that of finding motive may overlap” 23 and we suggest 
that the record in this case indicates that the purpose of the 
proposed action by Emporia is identical with the motives 
of the officials who made the decision. Certainly, “good 
faith,” while not determinative, is a factor to be considered. 
Green, 291 U.S. at 439; Brown v. Board of Educ., 349 U.S.

22 Judge Winter said:
In an area in which historically there was a dual system of 

schools and at best grudging compliance with Brown, we cannot 
be too careful to search out and to quash devices, artifices and 
techniques furthered to avoid and to postpone full compliance 
with Brown. We must be assiduous in detecting racial bias mask­
ing under the guise of quality education or any other benevolent 
purpose. Especially must we be alert to ferret out the establish­
ment of a white haven, or a relatively white haven, in an area 
in which the transition from racially identifiable schools to a 
unitary system has proceeded slowly and largely unwillingly, 
where its purpose is at least in part to be a white haven. Once 
a unitary system has been established and accepted, greater lati­
tude in redefinition of school districts may then be permitted 
(338a).

23 Developments in the Law— Equal Protection, supra, 82 Harv. L. 
Rev. at 1092.



50

294 (1955) at 299 (Brown I I ) . And whether the determina­
tion of “good faith” is one of purpose or motive, the record 
here establishes the good faith of Emporia. The decision of 
the Fourth Circuit, which was based upon the District 
Court’s findings of fact, so holds.

There is no evidence in the record which would indicate 
that the motive of the City officials was to perpetuate segre­
gation or to minimize integration. The only consideration 
given to race was the realization that special effort would be 
required to make a unitary system actually work (307a). 
Emporia then determined that it wanted to and would pro­
vide that effort. Therefore, we submit that the “affirmative 
duty to desegregate has been accomplished” and that “racial 
discrimination through official action has been eliminated 
from the system.” Swann, 402 U.S. at 32. Since there has 
been no

“showing that the school authorities or some other 
agency of the State has deliberately attempted to fix or 
alter demographic patterns to affect the racial composi­
tion of the schools, further intervention by a district 
court should not be necessary.”

Swann, 402 U.S. at 32.

CONCLUSION

The District Court enjoined the City from operating its 
own school system. In so doing, it disregarded the beneficial 
effects that would inure to the children—Negro and white— 
of the City. If the injunction were reinstated, excellence of 
education for the City children would be sacrificed. Em­
poria, an independent city, would be denied the opportunity 
to establish a quality educational program in a unitary sys­
tem in order that a particular racial balance in the system of



51

an adjoining independent county would not be disturbed. 
The Constitution does not require this. So long as petitioners 
may attend a racially unitary system, their constitutional 
rights have been fulfilled and the constitutional duties of the 
School Board have been performed.

For the reasons herein stated, the City respectfully submits 
that the judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

D . D o r tc h  W a rrin er  
314 South Main Street 
Emporia, Virginia 23847

J o h n  F. K ay , J r .
1200 Ross Building 
Post Office Box 1122 
Richmond, Virginia 23208

Attorneys for Respondents



A P P E N D I X



VIRGINIA CONSTITUTION

Va. Const. Art. IX, § 133. School districts; school trustees. 
—The supervision of schools in each county and city shall be 
vested in a school board, to be composed of trustees to be 
selected in the manner, for the term and to the number pro­
vided by law. Each magisterial district shall constitute a 
separate school district, unless otherwise provided by law, 
and the magisterial district shall be the basis of represen­
tation on the school board of such county or city, unless some 
other basis is provided by the General Assembly; provided, 
however, that in cities of one hundred and fifty thousand or 
over, the school boards of respective cities shall have power, 
subject to the approval of the local legislative bodies of said 
cities, to prescribe the number and boundaries of the school 
districts.

The General Assembly may provide for the consolidation, 
into one school division, of one or more counties or cities 
with one or more counties or cities. The supervision of 
schools in any such school division may be vested in a single 
school board, to be composed of trustees to be selected in the 
manner, for the term and to the number provided by law. 
Upon the formation of any such school board for any such 
school division, the school boards of the counties or cities in 
the school division shall cease to exist.

There shall be appointed by the school board or boards of 
each school division, one division superintendent of schools, 
who shall be selected from a list of eligibles certified by the 
State Board of Education and shall hold office for four 
years. In the event that the local board or boards fail to 
elect a division superintendent within the time prescribed by 
law, the State Board of Education shall appoint such divi­
sion superintendent.

* * *



A pp.2

Va. Const. (Revised) Art. V III, § 5. Powers and duties of 
the Board of Education.—The powers and duties of the 
Board of Education shall be as follows:

(a) Subject to such criteria and conditions as the General 
Assembly may prescribe, the Board shall divide the Cornmon- 
weath into school divisions of such geographical area and 
school-age population as will promote the realization of the 
prescribed standards of quality, and shall periodically re­
view the adequacy of existing school divisions for this pur­
pose.

*  *  *

Va. Const. (Revised) Art. V III, § 7. School boards.—The 
supervision of schools in each school division shall be vested 
in a school board, to be composed of members selected in 
the manner, for the term, posesssing the qualifications, and 
to the number provided by law.

*  *  *

VA. CODE ANN. (1950)

§ 15.1-982. Result of census; order.—If it shall appear to 
the satisfaction of the court, or the judge thereof in vacation, 
from such enumeration that such incorporated community 
has a population of five thousand or more, such court or 
judge shall thereupon enter an order declaring that fact to 
exist and thereafter such incorporated community shall be 
known as a city and entitled to all the privileges and im­
munities and subject to all the responsibilities and obliga­
tions pertaining to cities of this Commonwealth. . . .

§ 22-30. How division made.—Until the first day of the 
fourth month following adjournment of the session of the 
General Assembly to which is submitted the report of a 
legislative study recommending criteria and conditions to be



App.3

prescribed by the General Assembly under § 5 (a) of Article 
V III of the Constitution, the Board of Education, in divid­
ing the Commonwealth into school divisions, shall be gov­
erned by the following criteria and conditions:

(1) No school division shall be composed of more than 
one county or city;

(2) No school division shall be composed of a county or 
city and any one of the following towns: Abingdon, Cape 
Charles, Colonial Beach, Fries, Poquoson, Saltville, or West 
Point.

Notwithstanding any of the above criteria and conditions, 
the Board of Education may, upon the request of the school 
boards of the counties, cities, and towns affected, concurred 
in by the governing bodies thereof, consolidate or otherwise 
alter school divisions.

§ 22-43. Special districts continued.—Special town school 
districts which now exist for the purposes of representation 
on division school boards shall continue.

§ 22-93. Establishment of public free school system .— 
The city school board of every city shall establish and 
maintain therein a general system of public free schools 
in accordance with the requirements of the Constitution and 
the general educational policy of the Commonwealth.

'§ 22-97. Enumeration of powers and duties.-—The city 
school board shall have the following powers and duties:

(1) Rules and regulations.—To explain, enforce, and ob­
serve the school laws, and to make rules for the government 
of the schools, and for regulating the conduct of pupils going 
to and returning therefrom.



App. 4

(2) Method of teaching and government employed.—To 
determine the studies to be pursued, the methods of teach­
ing, the government to be employed in the schools, and the 
length of the school term.

(3) Employment and control of teachers.—To employ 
teachers on recommendation of the division superintendent 
and to dismiss them when delinquent, inefficient or in any­
wise unworthy of the position; provided, that no school board 
shall employ or pay any teacher from the public funds un­
less the teacher shall hold a certificate in full force, accord­
ing to the provisions of §§ 22-203 to 22-206. It shall also 
be unlawful for the school board of any city, or any town 
constituting a separate school district, to employ or pay any 
teacher or other school employee related by consanguinity 
or affinity as provided in § 22-206. The exceptions and other 
provisions of that section shall apply to this section.

(4) Suspension or expulsion of pupils.—To suspend or ex­
pel pupils when the prosperity and efficiency of the school 
make it necessary.

(5) Free textbooks.—To decide what children, wishing to 
enter the schools of the city, are entitled to receive textbooks 
free of charge and to provide for supplying them accordingly.

(6) Establishment of high and normal schools.—To estab­
lish high and normal schools and such other schools as may, 
in its judgment, be necessary to the completeness and ef­
ficiency of the school system.

(7) Census.—To see that the census of children required 
in § 22-223 is taken within the proper time and in the proper 
manner.

(8) Meetings of boards.—To hold regular meetings and 
to prescribe when and how special meetings may be called.



App. 5

(9) Meetings of people.—To call meetings of the people 
of the city for consultation in regard to the school interests 
thereof, at which meetings the chairman of some other mem­
ber of the board shall preside if present.

(10) Schoolhouses and property.—To provide suitable 
schoolhouses, with proper furniture and appliances, and to 
care for, manage, and control the school property of the 
city. For these purposes it may lease, purchase, or build such 
houses according to the exigencies of the city and the means 
at its disposal. No schoolhouse shall be contracted for or 
erected until the plans therefor shall have been submitted to 
and approved in writing by the division superintendent of 
schools, and no public school shall be allowed in any build­
ing which is not in such condition and provided with such 
conveniences as are required by a due regard for decency 
and health; and when a schoolhouse appears to the division 
superintendent of schools to be unfit for occupancy, it shall 
be his duty to condemn the same, and immediately to give 
notice thereof, in writing, to the chairman of the school 
board, and thenceforth no public school shall be held there­
in, nor shall any part of the State or city fund be applied to 
support any school in such house until the division super­
intendent shall certify, in writing, to the city school board 
that he is satisfied with the condition of such building, and 
with the appliances pertaining thereto.

(11) Visiting schools.—To visit the public free schools 
within the city, from time to time, and to take care that they 
are conducted according to law, and with the utmost 
efficiency.

(12) Management and control of funds.—To manage and 
control the funds of the city made available to the school 
board for public schools, to provide for the pay of teachers



App. 6

and of the clerk of the board, for the cost of providing school- 
houses and the appurtenances thereto and the repairs there­
of, for school furniture and appliances, for necessary text­
books for children attending the public free schools whose 
parent or guardian is financially unable to furnish them; 
and for any other expenses attending the administration of 
the public free school system, so far as the same is under 
the control or at the charge of the school officers.

(13) Approval and payment of claims.—* * *

(14) Report of expenditures and estimate of necessary 
funds.— It shall be the duty of the school board of every 
city, once in each year, and oftener if deemed necessary, to 
submit to the council, in writing, a classified report of all 
expenditures and a classified estimate of funds deemed to be 
needed for the proper maintenance and growth of the public 
schools of the city, and to request the council to make pro­
visions by appropriation or levy pursuant to § 22-126, for 
the same.

(15) Other duties prescribed by State Board.—To per­
form such other duties as shall be prescribed by the State 
Board or are imposed by other parts of this title.

(16) Acquisition of land.—City school boards shall, in 
general, have the same power in relation to the condemna­
tion or purchase of land and to the vesting of title thereof, 
and also in relation to the title to and management of prop­
erty of any kind applicable to school purposes, whether here­
tofore or hereafter set apart therefor, and however set apart, 
whether by gift, grant, devise, or any other conveyance and 
from whatever source, as county school boards have in the 
counties, and in addition thereto, they shall have the further 
right and power to condemn not in excess of fifteen acres of



App. 7

land for any one school when necessary for school purposes, 
except that when dwellings or yards are invaded not more 
than five acres may be condemned for any one school; pro­
vided, however, that the school board of any city having a 
population of more than eighty-six thousand and not more 
than ninety thousand and any city having a population of 
more than seventy-five thousand but less than eighty-seven 
thousand, may have the right and power to condemn not in 
excess of forty-five acres when necessary for school purposes.

(17) Consolidation of schools.—To provide for the con­
solidation of schools whenever such procedure will contribute 
to the efficiency of the school system.

§ 22-100.1. Single school board required.—When the State 
Board of Education has created a school division, the super­
vision of schools in any such school division shall be vested 
in a single school board under the conditions and provisions 
as hereinafter set forth.

§ 22-100.3. How composed; appointment and terms of 
members; vacancies.—Where a school division is composed 
of two or more counties or one or more counties with one or 
more cities, the school board of such division shall be com­
posed of no fewer than six nor more than nine members, the 
exact number to be determined by agreement of the govern­
ing bodies of the counties and cities composing the division. 
Unless the governing bodies of the counties and cities com­
posing the division agree upon some other equitable and rea­
sonable criteria, the number of members of the board from 
each county and city of the division shall be apportioned ac­
cording to the population of each such county or city pro­
vided that no county or city shall have fewer than one mem­
ber. Upon the creation of such school division the members 
for each county or city composing the division shall be ap-



App. 8

pointed by the respective governing bodies thereof and shall 
serve until the first day of July next following the creation of 
such division. W ithin sixty days prior to that day each ap­
pointing body shall appoint the required number of members 
of the division school board as follows: If there be one mem­
ber, he shall be appointed for a term of four years; if there be 
two members, one shall be appointed for a term of two years 
and one for a term of four years; if there be three members, 
one shall be appointed for a term of two years, one for a term 
of three years, and one for a term of four years; if there be 
four members, one shall be appointed for a term of one year, 
one for a term of two years, one for a term of three years, and 
one for a term of four years; if there be five members, one 
shall be appointed for a term of one year, one for a term of 
two years, one for a term of three years and two for terms of 
four years; if there be six members one shall be appointed 
for a term of one year, one for a term of two years, two for 
terms of three years and two for terms of four years.

Within sixty days prior to the first day of July in each and 
every year thereafter there shall be appointed by the ap­
propriate appointing body for a term of four years beginning 
the first day of July next following their appointment, suc­
cessors to the members of the division school board for their 
respective counties or cities whose terms expire on the thir­
tieth day of June on each such year. Any vacancy occurring 
in the membership of the division school board from any 
county or city shall be filled for the unexpired term by the 
appointing body of such county or city. If each county or 
city has an equal number of members, the governing bodies 
concerned shall jointly select for a term of four years one 
person who shall be a member of the division school board 
only for the purpose of voting in case of an equal division of 
the regular members of the board on any question requiring



the action of such board. Such person shall be known as the 
tie breaker.

If the governing bodies are not able to agree as to the per­
son who shall be the tie breaker, then upon application by 
any of the governing bodies involved to a circuit court hav­
ing jurisdiction over a county or city embraced in such school 
division, the judge thereof shall name the tie breaker and 
his decision shall be final.

App. 9