Richmond Virginia School Board v Virginia Board of Education Brief for Petitioners
Public Court Documents
October 1, 1972
126 pages
Cite this item
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Brief Collection, LDF Court Filings. Richmond Virginia School Board v Virginia Board of Education Brief for Petitioners, 1972. f04c196e-c29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5c6bf3de-00a2-46b9-960a-3051de80a246/richmond-virginia-school-board-v-virginia-board-of-education-brief-for-petitioners. Accessed May 07, 2025.
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In the
Supreme Court of the United States
October Term, 1972
No. 72-549
THE SCHOOL BOARD OF THE CITY
OF RICHMOND, VIRGINIA, et al.,
v.
Petitioners,
THE STATE BOARD OF EDUCATION OF THE
COMMONWEALTH OF VIRGINIA, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR PETITIONERS
G eorge B. L ittle
J am es K. C lu veriu s
Browder, Russell, Little & Morris
1510 Ross Building
Richmond, Virginia 23219
C onard B. M attox, J r ,
City Attorney
City Hall
Richmond, Virginia 23219
Attorneys for Petitioners
INDEX
Opinions Below ........................................................ 1
J urisdiction ........................................ 3
Constitutional and Statutory Provisions Involved............. 4
Questions Presented....................................................................... 4
Statement.................................................................... 5
1. Introduction............................................................................... 5
2. Proceedings Below................................................................ ..... 6
3. Characteristics of the Richmond Metropolitan A rea........... 15
A. Geography, Demographic Patterns and General Inter
dependence ........................................................................... 15
B. Patterns of Racial Composition of Metropolitan Area
Schools, 1954-1971 ............................................................. 22
(1) Richmond Schools ..................................................... 22
(2) Chesterfield Schools..................................................... 25
(3) Henrico Schools ......................................................... 26
C. Richmond Metropolitan Schools....................................... 27
4. State and Local Policies and Practices Insuring Maintenance
of Segregated Schools Throughout Sixteen-Year Period Fol
lowing Brown 1 ......................................................................... 30
A. State Policies and Practices........................................ _..... 32
B. Local Policies and Practices............................................... 36
(1) Richmond .................................................................. 36
(2) Chesterfield.................................................. 37
(3) Henrico......................................................................... 40
C. State and Local Discrimination in School Site Selection
and Construction................................................................ 44
5. Desegregation Plan Approved by District Court ................. 47
Page
i
S um m ary of A rg u m en t . 53
Page
A rg u m en t ........................................................................................................... 58
I. The District Court Neither Exceeded its Powers Nor Abused
its Discretion in Approving a Desegregation Plan Involving
the Assignment of Pupils Across Existing School Division
Lines ........................................................................................ 58
A. In Light of the Evidence Presented, the Relief Decreed
Resulted from a Sound Application of the Remedial
Guidelines Previously Established by this C ourt.................. 58
1. Interdependence Between Richmond, Henrico and
Chesterfield and the Inevitable Effects of Such Mu
tual Dependency on Community and Student Per
ceptions ........................................................................... 62
2. Proof Establishing Lack of Overriding Interest in
Maintaining Existing School Division Lines or in
Limiting the Assignment of Pupils to Schools Within
the Political Subdivision Where They Reside............ 64
3. The Further Entrenchment of the Dual School Sys
tem and the Containment of Blacks Since Brown I .... 67
4. Accentuation of the Gross Racial Disparities Since
1954 Attributable in Part to State and Local Discrim
ination Through 1971 ........................................... 68
5. Failure of the Three School Divisions Involved to
Establish Unitary Systems by June, 1971 ....... 69
6. White Attrition in City Schools and the Foreseeable
Effects Thereof............................................................... 69
7. The Presentation of a Desegregation Plan Promising
Realistically to Eliminate All Vestiges of the Dual
School System ............................................................... 70
Summary ...................................................... 72
B. The Effectiveness of Relief in De Jure Metropolitan Areas
Should Not Be Made Dependent Upon the Manner in
Which a State Has Elected to Align its Local School
Divisions .............................................................................. 73
ii
C. Justice Requires that the Means of Disestablishment
Should be at Least Coextensive with those Used to
Establish and Perpetuate the Statewide System of Dual
Schools ................................................................................. 77
D. The Continuing Denial of Equal Educational Oppor
tunity Within the Richmond Metropolitan Area is
Attested by an Application of the Rationale Underlying
Both Brown I and a Traditional Goal of Education....... 83
II. The Decision of the Court of Appeals is Irreconcilable with
Applicable Decisions of this Court and with Rationale
Utilized by Other Federal Courts in Related Cases............. 92
A. The Test of the Court of Appeals for Assessing the
Sanctity of Existing School Division Lines and the
Existence of a Constitutional Violation is Predicated on
a Judicial Standard Expressly Rejected by this C ourt.... 92
B. Even Under the Overly Restrictive Test of the Court
of Appeals, the Record Herein Establishes that the
Continued Maintenance of the Existing School Division
Lines Has, in Part, Been Racially Motivated ................. 97
C. The Judgment of the Court of Appeals Effectively
Thwarts the Guidelines for the Fashioning of Effective
Relief as Established in Prior Decisions of this Court....... 100
D. The Decision of the Court of Appeals Was Based on
“New” Findings Achieved through a Significant De
parture from the Standard of Appellate Review in
School Desegregation Cases...... ........................................ 104
E. The Rationale of the Court of Appeals Varies With That
Utilized by Other Federal Courts in Related Cases....... 109
Page
C o n c lu sio n 115
TABLE OF CITATIONS
Cases
Page
Adkins v. School Bd., 148 F.Supp. 430 (E.D. Va.), aff’d, 246
F.2d 325 (4th Cir.), cert, denied, 355 U.S. 855 (1957) ......... 32
Aytch v. Mitchell, 320 F.Supp. 1372 (E.D. Ark. 1971) ............. 110
Bradley v. Milliken, Nos. 72-1809, -1814 (6th Cir., Dec. 8, 1972),
vacated for rehearing en banc, (Jan. 16, 1973) ........... 73, 113, 115
Bradley v. Milliken, No. 35257 (E.D. Mich. S.D., Mar. 24, 28,
June 14, 1972) ............................................................................... 113
Bradley v. Milliken, 338 F.Supp. 582 (E.D. Mich. S.D. 1971) .... 113
Bradley v. School Bd. of City of Richmond, 382 U.S. 103 (1965) ..7, 32
Bradley v. School Bd. of City of Richmond, 462 F.2d 1058 (4th
Cir. 1972) ................................................................... .................1, 14
Bradley v. School Bd. of City of Richmond, 456 F.2d 6 (4th
Cir. 1972) ..................................................................................... 14
Bradley v. School Bd. of City of Richmond, 345 F.2d 310 (4th
Cir.), rev’d, 382 U.S. 103 (1965) ................................................ 3, 6
Bradley v. School Bd. of City of Richmond, 317 F.2d 429 (4th
Cir. 1963) ........................................................................................ 3, 6
Bradley v. School Bd. of City of Richmond, 338 F.Supp. 67 (E.D.
Va. 1972) .....................................................................................2, 12
Bradley v. School Bd. of City of Richmond, 325 F.Supp. 828 (E.D.
Va. 1971) ....................................................................................... 10
Bradley v. School Bd. of City of Richmond, 324 F.Supp. 396,
401 (E.D. Va. 1971) ..................................................................... 10
Bradley v. School Bd. of City of Richmond, 324 F.Supp. 456 (E.D.
Va. 1971) .....................................................................................3, 44
Bradley v. School Bd. of City of Richmond, 324 F.Supp. 439 (E.D.
Va. 1971) ....................................................................................... 10
Bradley v. School Bd. of City of Richmond, 51 F.R.D. 139 (E.D.
Va. 1970) ....... 8
iv
7
Bradley v. School Bd. of City of Richmond, 317 F.Supp. 555 (E.D.
Va. 1970) ............................................................. ..........................
Brown v. Board of Educ., 349 U.S. 294 (1955) ................... passim
Brown v. Board of Educ., 347 U.S. 483 (1954) ................... passim
Buckner v. County School Bd., 332 F.2d 452 (4th Cir. 1964) . 79
Burleson v. County Bd. of Election Comm’rs., 308 F.Supp. 352
(E.D. Ark.), aff’d, 432 F.2d 1356 (8th Cir. 1970) ................... 110
Calhoun v. Cook, 451 F.2d 583 (5th Cir. 1971) ............................. 114
Calhoun v. Cook, 332 F.Supp. 804 (N.D. Ga. 1971) ................... 114
Cooper v. Aaron, 358 U.S. 1 (1958) ............................................... 81
Corbin v. County School Bd., 177 F.2d 924 (4th Cir. 1949) ....... 79
Davis v. Board of School Comm’rs., 402 U.S. 33 (1971) ...........passim
Franklin v. Quitman County Bd. of Educ., 288 F.Supp. 509
(N.D. Miss. 1968) ...... ................................................................. 81
Godwin v. Johnston County Bd. of Educ., 301 F.Supp. 1339
(E.D. N.C. 1969) ........................................................................... 81
Goins v. County School Bd., 186 F.Supp. 753 (W.D. Va. 1960) .. 79
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............................ 76, 111
Green v. County School Bd., 391 U.S. 430 (1968) ..................... passim
Griffin v. County School Bd., 377 U.S. 218 (1964) ......................... 32
Griffin v. State Bd. of Educ., 296 F.Supp. 1178 (E.D. Va. 1969) .. 65
Hall v. St. Helena Parish School Bd., 197 F.Supp. 649 (E.D. La.),
aff’d, 287 F.2d 376 (5th Cir. 1961), aff’d per curiam, 368 U.S.
515 (1962) ............................................................ - ...................... I l l
Haney v. County Bd. of Educ., 410 F.2d 920 (8th Cir. 1969)
73, 103, 110, 112
Henry v. Clarksdale Mun. Sep. School Dist., 433 F.2d 387 (5th
Cir. 1970) 82
James v. Almond, 170 F.Supp. 331 (E.D. Va.), appeal dismissed,
359 U.S. 1006 (1959) ................................................................... 32
Lee v. Macon County Bd. of Educ., 448 F.2d 746 (5th Cir. 1971) 110
Lee v. Macon County Bd. of Educ., 267 F.Supp. 458 (M.D.
Ala.) (three judge court), aff’d sub nom. Wallace v. United
Page
States, 389 U.S. 215 (1967) ............... ........................................ 81
Louisiana v. United States, 380 U.S. 145 (1965) ........................... 60
Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713 (1964) ....... 103
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ................... 115
Monroe v. Board of Comm’rs., 391 U.S. 450 (1968) ................... 7, 100
NAACPv. Button, 371 U.S. 218 (1964) ........................ ............... 32
National Socialist White People’s Party v. Ringers, No. 72-1737
(4th Cir., Feb. 5, 1973) ...............................................................
North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43 (1971)
50, 103
Northcross v. Board of Educ., 397 U.S. 232 (1970) ..................... 104
Raney v. Board of Educ., 391 U.S. 443 (1968) ............................. 7
Reynolds v. Sims, 377 U.S. 533 (1964) ............................................. 76
School Bd. of Warren County v. Kilby, 259 F.2d 497 (4th Cir
1958) ............................................................................................. 79
School Town of Speedway v. Dillin, cert, denied, U S 92
S.Ct. 2457 (1972) .................................................................. ’..... 114
Smith v. North Carolina State Bd. of Educ., 444 F.2d 6 (4th
Cir. 1971) ........................ ............................................. gj
Stout v. Jefferson County Bd. of Educ., 448 F.2d 403 (5th Cir
i 97i ) ............................................................................................................................................: n o
Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1
(1971) ..passim
United States v. Board of School Comm’rs., No. 72-1031 (7th Cir.
Feb. 1, 1973) ..........................................................................104’ 106
VI
Page
United States v. Board of School Comm’rs., 332 F.Supp. 655 (S.D.
Ind. 1971), aff’d, No. 72-1031 (7th Cir., Feb. 1, 1973) ........... 73
United States v. E. I. duPont De Nemours & Co., 366 U.S. 316
(1961) ........................................................................................... 60
United States v. Greenwood Mun. Sup. School Dist., 406 F.2d
1086 (5th Cir.), cert,, denied, 395 U.S. 907 (1969) ................. 112
United States v. Jefferson County Bd. of Educ., 372 F.2d 836
(5th Cir. 1966), aff’d en banc, 380 F.2d 385, cert, denied, 389
U.S. 840 (1967) ............................................................. 81
United States v. Scotland Neck City Bd. of Educ., ..... U.S........,
92 S.Ct. 2214 (1972) ................................................................ .passim
United States v. Scotland Neck City Bd. of Educ., 442 F.2d 575
(4th Cir. 1971) ....................................................... 92
United States v. Texas, 321 F.Supp. 1043 (E.D. Tex. 1970),
aff’d, 447 F.2d 441 (5th Cir. 1971), cert, denied,..... U.S.........
92 S.Ct. 675 (1972) ................................................................... 73, 81
Wesberry v. Sanders, 376 U.S. 1 (1964) ............................ .............. 76
Wright v. Council of City of Emporia, ..... U.S........ , 92 S.Ct.
2196 (1972) ............................................................................... passim
Wright v. Council of City of Emporia, 442 F.2d 570 (4th Cir.
1971) ............... 92
Constitutional Provisions
U.S. Const, amend. X ........................................................................ 4
U.S. Const, amend. XIV, § 1 ............................................................... 4, 6
Va. Const, art. V III, §§ 1-7 (1971) ...... .......................................... 4
Va. Const, art. VIII, § 5(a) (1971) ............................................... 89
Va. Const. §§ 129-30, 132-33 (1902) ............................................... 4
Statutory Provisions
.............................................. 50-51
vii
20 U.S.C.A. §§ 1601-19
28 U.S.C. § 4 7 ............. 5
28 U.S.G. § 1254(1) ........................................................................... 4
28 U.S.C. § 1343 ................................................................................. 6
Rule 19, Fed. R. Civ. P., 28 U.S.C..................................................... 8
Rule 52(a), Fed. R. Civ. P., 28 U.S.C.............................. ............. 6, 108
42 U.S.C. § 1983 ................................................................................. 6
Va. Code Ann., as amended (1950) :
§ 22-1 ............................................................................................. 4
§ 22-2 ............................................................................................. 4
§ 22-7 ............................................................................................ 4. 67
§ 22-30 ......................................................................................... passim
§ 22-34 ........................................................................................... 4
§ 22-93 ........................................................................................... 74
§§ 22-100.1 through -100.12 ................... 66
§ 22-115.29 ..................................................................................... 65
Va. Code Ann., as amended (1971) :
§ 22-1.1 ........................................................................................... 4
§ 22-21.2 ........................................................................... ............. 4
§ 22-30 ......................................................................................... passim
§ 22-32 ......................................................................................... 4; 49
§ 22-100.1 ...............................................................................4, 49; 66
§§ 22-100.3 through -100.11 ................................................. 4; 49; 66
§ 22-126.1 ............................................................. ................... ’ ’ 4
§ 22-127 .......................................................................................” 4
Other Authority
Va. Brief for Appellees in No. 3, Davis v. County School Bd
O.T. 1954
Page
via
32
In the
Supreme Court of the United States
October Term, 1972
No. 72-549
THE SCHOOL BOARD OF THE CITY
OF RICHMOND, VIRGINIA, et a l .,
Petitioners,
v.
THE STATE BOARD OF EDUCATION OF THE
COMMONWEALTH OF VIRGINIA, et a l .,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR PETITIONERS
OPINIONS BELOW
The opinions of the United States Court of Appeals for
the Fourth Circuit are reported at 462 F.2d 1058 and are
reprinted at pp. 557-602 of the Appendix to the Petition
for Writ of Certiorari seeking review of the judgment filed
in this Court by Petitioners, the School Board of the City
2
of Richmond, et al.1 The opinion and order of the United
States District Court for the Eastern District of Virginia
dated January 5 and 10, 1972, respectively, and reversed
by the court of appeals, are reported at 338 F.Supp. 67 and
are reprinted at Pet. A. 164-545.
Other related opinions and orders of the courts below are
reported or reprinted as follows:
1. Opinion and order dated August 17, 1970, reported at
317 F.Supp. 555 (directing implementation of interim plan
of desegregation in Richmond system for September, 1970)
(Pet. A. 1).
2. Opinion and order dated December 5, 1970, reported
at 51 F.R.D. 139 (directing joinder of various State and
County defendants) (Pet. A. 48).
3. Opinion dated January 8, 1971, reported at 324 F.
Supp. 439 (denying recusal motions submitted by County
defendants) (Pet. A. 58).
4. Order filed January 13, 1971, nunc pro tunc, January
8, 1971, unreported (disposing of various pretrial motions,
etc.) (Pet. A. 91).
5. Opinion and order dated January 13, 1971, unreported
(disposing of various pre-trial motions) (Pet. A. 94).
6. Opinion and order dated February 10, 1971, opinion
1 A separate appendix containing all relevant opinions and orders
below as well as pertinent state constitutional and statutory provisions
was filed by the Richmond School Board with its Petition for Writ of
Certiorari on October 4, 1972, and all references in this brief to opin
ions and orders below or to the state provisions will be in the following
form: “Pet. A.— All other matters excepting trial exhibits are
printed in separate appendix volumes and will be referred to as
“A.— The appendix volume containing only trial exhibits will be
referred to as “Ex. A.— The various exhibits of each party will be
designated as follows: Richmond School Board—“RX------Plain
tiffs—“PX---------Chesterfield and Henrico County defendants—
“CX-------- ”, and “HX— -----respectively.
3
reported at 324 F.Supp. 396 (denying three judge court)
(Pet. A. 98).
7. Opinion and order dated February 10, 1971, opinion
reported at 324 F.Supp. 401 (denying motion to drop addi
tional parties in individual capacities) (Pet. A. 107).
8. Opinion and order dated April 5, 1971, reported at
325 F. Supp. 828 (directing implementation of desegregation
Plan III in Richmond system for 1971-72 school year) (Pet.
A. 110).
9. Opinion and order dated July 20, 1971, unreported
(denying motion to convene three judge court) (Pet. A.
156).
10. Order dated September 15, 1971, unreported (deny
ing motion to limit evidence) (Pet. A. 163).
11. Opinion and order dated January 19, 1972, unre
ported (denying stay of January 10, 1972 order) (Pet. A.
546).
12. Order of court of appeals granting partial stay dated
February 8, 1972, reported at 456 F.2d 6 (Pet. A. 553).
13. The amended judgment of the court of appeals, en
tered August 14, 1972, appears at Pet. A. 603.
Other proceedings in this case are reported as follows:
Bradley v. School Board of City of Richmond, 317 F.2d 429
(4th Cir. 1963); 345 F.2d 310 (4th Cir.), rev’d and re
manded, 382 U.S. 103 (1965); 324 F. Supp. 456 (E.D.
Va. 1971).
JURISDICTION
The opinion and judgment of the court of appeals was
filed on June 5, 1972, and its amended judgment was filed
on August 14, 1972. The jurisdiction of this Court is in
4
voked pursuant to 28 U.S.C. § 1254(1). By an order dated
August 12, 1972, Mr. Justice Douglas granted an extension
of time to file the petition for a writ of certiorari from Sep
tember 5, 1972, to and including October 5, 1972. The
petition for a writ of certiorari was filed in this Court on
October 4, 1972, and was granted on January 15, 1973.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the tenth amendment to the Constitu
tion of the United States, which reads as follows:
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are re
served to the States respectively or to the people.
This matter also involves the equal protection clause of the
fourteenth amendment to the Constitution of the United
States, which provides as follows:
. . . nor shall any State . . . deny to any person within its
jurisdiction the equal protection of the laws.
Various provisions of Virginia’s 1902 and 1971 constitu
tions and statutes relating to education which are also rele
vant to this matter are set out at Pet. A. 604-23: constitu
tion of 1902, §§ 129, 130, 132, 133; constitution of 1971,
art. V III, §§ 1-7; Va. Code Ann. §§ 22-1, -2, -7, -30, -34,
-100.1 through -100.12 (Repl. Vol. 1969) ; Va. Code Ann.
§§ 22-1.1, -2, -7, -21.2, -30, -32, -100.1, -100.3 through
-100.11, -126.1, -127 (Cum. Supp. 1972).
QUESTIONS PRESENTED
1. Under what circumstances the remedial powers of a
district court may be limited by existing school division
boundaries.
5
2. The extent to which the effectiveness of relief in de
jure metropolitan communities may be dependent upon the
manner in which a state may choose to align its local school
divisions.
3. Whether, in the formulation of effective relief, district
courts are permitted to utilize means coextensive with those
used by school authorities in the past to establish and per
petuate a statewide system of dual schools.
STATEMENT
1. Introduction
This Court has granted review of an en banc2 decision
of the United States Court of Appeals for the Fourth Cir
cuit reversing the judgment and order of District Judge
Robert R. Merhige, Jr., of the Eastern District of Virginia,
which had directed the implementation of a desegregation
plan encompassing three Richmond metropolitan area
school divisions. The district court had ordered the consoli
dation of the Henrico and Chesterfield County school di
visions with the school division of the City of Richmond,
substantially in accordance with existing provisions of state
law, as “a first, reasonable and feasible step toward the
eradication of the effects of the past unlawful discrimina
tion” practiced by the state and local school authorities
involved (Pet. A. 239). In the majority opinion written by .
Judge Craven, however, five members of the court of ap
peals concluded that the district judge had exceeded his
authority in that, regardless of the relative effectiveness of
alternative desegregation plans presented, the remedial
2 As was indicated when the case first came to the court of appeals
on motions for a stay of the district court’s order (Pet. A. 553-56),
Judge Butzner disqualified himself pursuant to 28 U.S.C. § 47 since,
as a United States district judge, he had presided over the case from
1962 to 1967 (Pet. A. 554).
6
power of a district court could not extend beyond existing
school division lines absent findings of discriminatory pur
pose or motivation in the establishment or maintenance of
such lines3 or of joint interaction by any two of the three
school divisions involved for the purpose of keeping one
system relatively white by confining blacks to another4 (Pet.
A. 562, 572). Judge Winter, however, viewed the lower
court’s decree as embodying the only relief permissible under
the fourteenth amendment and would have affirmed (Pet.
A. 586).
2. Proceedings Below
This case is an outgrowth of the Richmond school de
segregation suit originally filed by black parents and students
in 1961, pursuant to 28 U.S.C. § 1343, 42 U.S.C. § 1983,
and section 1 of the fourteenth amendment of the Constitu
tion of the United States5 (A. 59-69). The current phase of
3 As discussed at pp. 97-100 infra, the district court did, in fact, make
such findings to which the court of appeals apparently assigned no
importance.
4 In reaching this conclusion, the court of appeals failed to find as
clearly erroneous under Rule 52(a), Fed. R. Civ. P. any of what the
district court had viewed as operative facts established by largely un
contradicted evidence, but in some instances substituted its conclusions
as to the inferences to be drawn therefrom. This action on the part of
the appellate court is discussed more fully at pp. 104-09 infra.
5 The case was first tried during 1962 at which time the plaintiffs
sought transfers of pupils from Negro public schools to white public
schools and, on behalf of all persons similarly situated, an injunction
restraining the Richmond School Board from operating racially seg
regated schools. The district court approved the individual transfers
but refused to grant further injunctive relief and the plaintiffs ap
pealed. The court of appeals reversed the order in part, holding that
plaintiffs’ class were entitled to an injunction restraining the Rich
mond School Board from maintaining a discriminatory “feeder” sys
tem which in effect had perpetuated segregated schools. (317 F.2d
429 [1963]). Again, in 1965, the court of appeals upheld a district
court order approving what was in effect a limited freedom of choice
plan. (345 F.2d 310 [1965]). This Court, however, vacated the order
of the court of appeals and remanded the case for consideration of
7
the litigation began in March of 1970 when the plaintiffs,
relying upon decision which this Court had rendered nearly
two years previously,6 again sought the desegregation of the
Richmond public school system.
Pursuant to the plaintiffs’ motion, a series of hearings
was conducted during June and August of 1970 by District
Judge Robert R. Merhige, Jr., who entered his initial judg
ment (317 F. Supp. 555; Pet. A. 1) finding that the Rich
mond system was still illegally segregated under freedom of
choice in that the various facilities were as to student popu
lation and staffs readily identifiable as either black or white
schools7 (Pet. A. 7-8). Even though the plan submitted by
the Richmond School Board at this time was found to be
deficient in certain respects,8 Judge Merhige nevertheless
accepted it as an interim measure for the 1970-71 school
year while at the same time requiring the School Board to
come forward with another plan at a later date9 (Pet. A.
38-41).
allegations relating to discriminatory faculty allocations, specifically
noting that more than a decade had passed since its decision in Brown
v. Board of Education, 349 U.S. 294 (1955) [hereinafter cited as
Brown II], and that delays in desegreation of school systems could no
longer be tolerated (382 U.S. 103, 105 [1965]). During the school years
1966-67 through 1969-70, the schools in the City of Richmond were
operated under a freedom of choice plan pursuant to a consent decree
entered by the district court in March of 1966.
6 Green v. County School Bd., 391 U.S. 430 (1968); Monroe v.
Board of Comm’rs., 391 U.S. 450 (1968); Raney v. Board of Educ.,
391 U.S. 443 (1968).
7 In his opinion, Judge Merhige made extensive findings regarding
the existence and effects of de jure segregation within the City of
Richmond alone (Pet. A. 8-13).
8 See p. 37 infra, noting the district court’s dissatisfaction with the
degree of segregation remaining in the City’s elementary schools under
the Richmond Board’s plan.
9 The Richmond public schools were operated under the “Interim
Plan” for the duration of the 1970-71 school year in that the district
court on January 29, 1971, declined to order any further relief in the
middle of the school year. 324 F. Supp. 456.
8
With the implementation of the “Interim Plan” in Sep
tember, 1970, however, the City school system experienced a
300 per cent increase in the normal rate of attrition of its
white students. Stating that complete and effective relief
could not be provided within the City alone, the Richmond
School Board on November 4, 1970, filed a motion under
Rule 19, Fed. R. Civ. P. to compel the joinder of parties
needed for a just adjudication with a view of presenting a
plan of desegregation which would encompass the major
portion of the Richmond metropolitan area10 (A. 90-97).
Hearings were conducted regarding this new aspect of the
case following which the district court on December 5,
1970, granted the Richmond School Board’s motion and
directed the plaintiffs to file an amended complaint11 (51
F.R.D. 139; Pet. A. 48).
10 Dr. Thomas C. Little, Associate Superintendent of the Richmond
Public Schools, as early as June 25, 1970, had testified on cross exami
nation that the solution to the problem would involve an area larger
than the City school division:
Q. Dr. Little, assuming transportation of pupils, is there any
way to achieve what you consider to be, as an educator, an
optimum of desegregation in the Richmond area? A. In the
Richmond area, yes.
Q. How would you do that? A. It would involve the involve
ment of a larger area than the present city boundaries of the City
of Richmond.
Q. Are you talking about Henrico County, Chesterfield County,
or both? A. Henrico County, Chesterfield County, and the pos
sibility of the general metropolitan area, maybe bordering on, in
other counties other than Henrico and Chesterfield. Basically,
the problem could be solved within the City of Richmond, Hen
rico and Chesterfield Counties.
[6/25/70 Tr. 1122-23],
11 In noting the objections of the additional defendants to the effect
that their joinder was unnecessary in view of earlier findings regarding
the sufficiency of a desegregation plan confined to the City, the district
court stated that such a determination was
. . . made in the context of litigation between Richmond residents
and Richmond officials alone. It is by no means inconsistent with
9
This the plaintiffs accomplished on December 14, 1970, by
filing an amended complaint wherein certain portions of the
original complaint as initially filed in 1961 and amended
in 1962, including the basis for federal jurisdiction in the
matter as previously noted at p. 6 supra, were specifically
realleged (A. 99-109). The prayer was stated in the alterna
tive, as the plaintiffs requested relief through either
the consolidation or merger of the defendant school
systems . . . [or]
. . . that the Court require [the] defendants. . . to enter
into such agreements, contracts or otherwise to provide
for the joint operation of the educational systems of the
[three divisions], with free availability of all facilities
for pupil attendance, and tri-system-wide assignment of
pupils . . . .
(A. 107-08).
Numerous motions, hearings and district court orders in
tervened prior to the trial of the matter which did not
the existence of a duty on the part of officials with broader pow
ers, to exercise such powers to afford different or additional relief
from what the Court has found to be State imposed segregation.
The addition of further parties, moreover, alters the range of
alternatives, some of which may be shown as feasible and more
promising in their effectiveness. Green v. County School Board
of New Kent County [citation omitted]. It is with an eye to this
range of choices between means to provide desegregated schools
that the legal sufficiency of a proposed unitary plan is to be
tested.
(Pet. A. 50-51).
The specific defendants eventually joined under the district court’s
order and the plaintiffs’ amended complaint were as follows: The
Virginia State Board of Education and the individual members
thereof; the State Superintendent of Public Instruction; the School
Boards of the Counties of Chesterfield and Henrico and the individual
members thereof; the Division Superintendents of schools of Chester
field and Henrico Counties; and the Boards of Supervisors of the
Counties of Chesterfield and Henrico and the individual members
thereof (A. 55-56). These parties collectively will be referred to as
the “State and County defendants.”
10
commence until mid-August of 1971.12 Evidence was re
ceived in the lower court on August 16-20, 23-27, 31 and
September 1-2, 7-10 and 13, 1971.13
Even though the metropolitan phase of the case had been
substantially advanced, the Richmond School Board still
was under an outstanding order of the district court to come
forward with an additional desegregation plan limited to
the City schools for the 1971-72 school year.14 On April 5,
1971, Judge Merhige ordered the Richmond Board to im
plement its “Plan I I I ” for the 1971-72 school year within
the City (325 F. Supp. 828; Pet. A. 110). Since the metro
12 On Januaiy 4, 1971, the County defendants filed a motion for
recusal and joined with the State defendants in moving for a dis
missal of the amended complaint. At the January 8, 1971 hearings
on these motions, at which time Judge Merhige delivered his opinion
denying the recusal motion (324 F. Supp. 439; Pet. A. 58), the State
and County defendants submitted a number of additional motions.
On January 13, 1971, the district court issued orders disposing of many
of these pre-trial motions and directing the State and County de
fendants to answer the amended complaint (Pet. A. 91; 94). All
defendants submitted answers to the amended complaint on January
15, 1971, and the Richmond School Board in conjunction with its
answer filed a cross-claim reasserting allegations made in its motion
for joinder and specifically requesting relief in the form of consolida
tion of the Richmond, Chesterfield and Henrico school divisions. On
February 10, 1971, the district court entered its memorandum opinions
and orders denying State and County motions for a three judge court
and for the dropping of parties in their individual capacities (324
F.Supp. 396, 401; Pet. A. 98; 107). Other pre-trial motions submitted
by the State and County defendants were subsequently disposed of by
Judge Merhige on July 20 and September 15, 1971 (Pet. A. 156; 163).
13 At the conclusion of the presentation of its evidence, the Rich
mond School Board on August 26, 1971, filed a motion for leave to
amend its answer and cross-claim (A. 721-26) which was subsequently
granted under the terms of the district court’s final decree (Pet A.
536).
14 Pursuant to a report submitted to the district court in November
of 1970, the Richmond School Board on January 15, 1971, filed
alternative plans for the additional desegregation of the City schools
for the coming school year. Hearings on the proposals were conducted
in the lower court on March 4, 1971.
11
politan phase of the case was then pending, the district
court was careful to note that its decision was “based upon
the assumption that the city will [in 1971-72] operate as it
has heretofore, as a single administrative unit for school
purposes” (Pet. A. 110) (footnote omitted). Judge Merhige
further noted that his conclusions were made entirely with
out consideration of the issues involving the State and
County defendants previously joined in the metropolitan
phase of the case (Pet. A. 110 n. 1), and cautioned that his
approval of the Richmond plan was conditioned upon its
ultimate effectiveness as “ [t]he Constitution is satisfied only
when an integration plan ‘works’ in practice and not merely
on paper” 15 (Pet. A. 148-49) (citation omitted).
Concurrently with the trial of the issues involving the
metropolitan relief, the Richmond School Board was open
ing its schools under “Plan II I .” Once again in September,
1971, attendance data established a substantial acceleration
in white attrition within the Richmond system in that of
the approximately 17,500 white students anticipated to en
roll, only 13,260 actually were in attendance. The Septem
ber, 1971, enrollment data available to the district judge
prior to his ruling in the instant case indicated that m any
of Richmond’s schools, particularly those which traditionally
had been all-black schools, opened with proportionately
15 At the time of the district court’s action in April of 1971, it had
only projections for student attendance upon which to base its judg
ment regarding the ultimate effectiveness of “Plan II I” in eliminating
the racial identifiability of City schools. As the court said in approving
the plan:
A comparison of the projected racial attendance figures for
each school with the systemwide ratio reveals that . . . the School
Board, if this proposal succeeds as planned, will have eliminated
the racial identifiability of each facility to the extent feasible
within the City of Richmond. . . .
(Pet. A. 121) (emphasis added).
12
greater black enrollments than had been projected16 (RX-98;
Ex. A. 155).
On January 10, 1972, Judge Merhige issued his opinion
(338 F.Supp. 67; Pet. A. 164-536) and filed his order (Pet.
A. 536) directing the September, 1972 implementation of
the Richmond School Board’s metropolitan desegregation
plan which embodied the consolidation of the school divi
sions of Richmond, Henrico and Chesterfield substantially
in accordance with provisions of State law.17 The district
court based its order on extensive findings of discriminatory
practices including the following illustrative determinations
that:
(1) “the ‘desegregation’ of schools within the city and
the counties separately [was] pathetically incom
plete” and that “ [n]ot only [was] the elimination
of racially identifiable facilities impossible of at
tainment, but the partial efforts taken contained]
the seeds of their own frustration” (Pet. A. 237) ;
(2) State and local officials had “by their actions di
rectly contributed to the continuing existence of
the dual school system which now exists in the
metropolitan area of Richmond” (Pet. A. 379);
(3) “desegregation of the schools of the city and the
counties as well cannot now be achieved within
the current school division bounds” owing in sub
stantial part to the deliberate deferral by the state
and local authorities of plaintiffs’ constitutional
rights (Pet. A. 207);
(4) the minmum size school district required “to elimi
nate the effect of state-imposed segregation, would
be that of the division created by the merger of the
16 The effect of this disparity between projected and actual at
tendance of students in the Richmond system is illustrated more
graphically at pp. 23-25 infra.
17 These provisions are discussed at note 51 infra.
13
systems of Richmond, Henrico and Chesterfield”
(Pet. A. 434);
(5) “ [t]he school division lines here . . . have never been
obstacles for the travel of pupils under various
schemes, some of them centrally administered,
some of them overtly intended to promote the dual
system” (Pet. A. 193) ;
(6) “ [t]he existing [political subdivision lines] have no
relation to natural obstacles or substantial govern
mental interests, but they are related to strict
housing segregation patterns, maintained by public
and private enforcement and owing their genesis
in substantial part to the manner in which the three
school divisions have been operated and expanded.
Thus by the maintenance of existing school division
lines the State advantages itself of private enforce
ment of discrimination and prolongs the effects of
discriminatory acts of its own agents” (Pet. A.
195-96);
(7) “ [t]he proof here overwhelmingly establishes that
the school division lines between Richmond and
the counties here coincide with no natural obstacles
to speak of and do in fact work to confine blacks
on a consistent, wholesale basis within the city,
where they reside in segregated neighborhoods”
(Pet. A. 196); and
(8) regarding the school construction policies of the
three school divisions, “ [t]he longer term impact
of [these policies] has been the exaggeration of the
racial disproportion between the city and the two
neighboring counties. This has come about by vir-
ture of the maintenance of school division lines as
obstacles to pupil assignment for purposes of de
segregation while the area’s housing patterns, when
its population grew, became increasingly segre
gated. The continued operation of the schools of
each subdivision as racially identifiable facilities
moreover necessarily caused each new school and
14
old ones as well to take on the label of a black or
white school.” This process led to the racial identi-
fiability of the entire systems in issue, with the
Richmond system being identifiable as a black one,
and that of each county perceivably a white system
(Pet. A. 200-01).
Motions for a stay of the district court’s order were
sought in that court and denied by Judge Merhige on
January 19, 1972 (Pet. A. 546). Enlarged applications for
a stay18 were renewed in the court of appeals on January 25,
1972, and that court by order dated February 8, 1972,
granted a partial stay of Judge Merhige’s order pending its
disposition of the case on an expedited appeal (456 F.2d 6;
Pet. A. 553). Under the terms of the partial stay issued by
the court of appeals, the State defendants were required to
direct and coordinate planning for the operation and financ
ing of the merger of the Richmond, Chesterfield and Hen
rico school divisions as contemplated in the district court’s
order (Pet. A. 553). Planning for the implementation of
that order thus was conducted at the State level for at least
the four month period from early February, 1972, until the
time of the decision of the appellate court.
Following arguments before the court of appeals on
April 13, 1972, that court, on June 5, 1972, filed its opinion
and judgment reversing the district court’s order (462 F.2d
1058; Pet. A. 557), Judge Winter dissenting (Pet. A. 585).19
The amended judgment of the court of appeals was entered
on August 14, 1972 (Pet. A. 603).
18 These applications on behalf of the State and County defendants
contained the first intimations that those parties apparently preferred,
as an alternative to the consolidation ordered by the district court, a
method of assignment based on an exchange of pupils between the
three subsisting school divisions (A. 1346-48). See note 49 infra and
accompanying text.
19 The opinions of the court of appeals are discussed at pp. 92-115
infra.
15
3. Characteristics of the Richmond Metropolitan Area
A.
G eo gra ph y , D em og ra phic Pattern s A nd
G en era l I nterd epen den ce
The City of Richmond, along with the Counties of Hen
rico and Chesterfield form the major part of the Richmond
Standard Metropolitan Statistical Area.20 The City of Rich
mond (63 square miles) occupies the approximate geo
graphical center of the region, while the Counties of Hen
rico (244 square miles) and Chesterfield (445 square miles)
completely surround and are contiguous with the City at
all points. There are no distinct geographical features or
man-made barriers21 which separate the City from either
Henrico or Chesterfield (A. 151-52; Pet. A. 401-02, 195).
The Richmond, Henrico and Chesterfield metropolitan
area covers a total of 752 square miles, and according to
20 As of 1963, the Census Bureau included Hanover County as a part
of the Richmond SMSA, which is thus currently composed of the four
political subdivisions. At no point is Hanover County contiguous with
the City of Richmond, and the substantial part of the County is largely
rural in nature. Approximately 9,600 students, 78 per cent of whom are
white, attend schools in the Hanover system which number is relatively
small in comparison to the enrollments in the other three political
subdivisions in the Richmond SMSA. In 1967, consultants commis
sioned by Henrico and Chesterfield to study the Richmond area noted
the substantially lesser degree of interdependency between Hanover
and the other three components of the Richmond SMSA (HX-25;
II-l n. 1; A. 834; Ex. A. 41).
21 The boundary line separating the City of Richmond and Henrico
County, last changed pursuant to a 1942 annexation (CX-2 [map];
A. 878), was characterized in a 1959 report by an independent con
sultant studying the Richmond region as “so irregular and complex
that it often confuses even veteran service personnel of both jurisdic
tions” (RX-89, IV-2; A. 821-22).
The same consultant’s 1959 conclusions regarding a more clearly
defined boundary as between the City and Chesterfield County are no
longer valid since, pursuant to a 1970 annexation, the new Richmond-
Chesterfield line now conforms to no significant features or barriers
and thus is similarly indistinct (A. 151).
16
the 1970 Census contains a total of 480,840 persons. Rich
mond’s population totaled 249,621 while the totals for Hen
rico and Chesterfield were 154,364 and 76,855, respectively
(Pet. A. 401-02). The great majority of Henrico and Ches
terfield citizens live in the urban-suburban portions of the
respective Counties most closely contiguous with the City of
Richmond and are easily within thirty minutes travel of the
heart of downtown Richmond, using regular streets and
observing applicable speed limits (A. 154-56; RX-60; Ex A
13).
The district court found that there is a substantial com
munity of interest and general interdependence between
citizens in Richmond, Henrico and Chesterfield as demon
strated by such indices as area-wide employment, retail sales,
commuter traffic patterns and inter-jurisdictional utility serv
ices. Recreational, educational, cultural, transportation and
hospital facilities used by the metropolitan population are
concentrated largely within the City of Richmond. The City
is the central economic element in the region as it is the
major place of employment, the center of commerce, as well
as the situs of the majority of area manufacturing activity
and retail sales (Pet. A. 402-16).
Prior to the 1970 annexation of a portion of Chesterfield
County by the City of Richmond,"2 over 75 per cent of the
jobs (covered by the State’s unemployment program) in the
tri-jurisdictional area were in Richmond (A. 159-60, 162;
RX-54, 54A; Ex. A. 1-3; Pet. A. 402). The 1967 census
data, the most recent available at the time of the proceedings
below, indicated that Richmond contributed 76 per cent of
the value added by manufacturing in the region (A. 162-63; *
As of January 1, 1970, an area of approximately 23 square miles
of Chesterfield containing over 47,000 persons, 97 per cent of whom
were white was awarded to Richmond pursuant to an annexation
decree (A. 878; Pet. A. 411).
17
RX-54, 54A; Ex. A. 1-2; Pet. A. 402), and that in 1970 re
tail sales, Richmond accounted for 62.5 per cent of the area’s
business (A. 463; RX-54, 54A; Ex. A. 1-2). Further data
indicated that a substantial percentage of employed Chester
field and Henrico residents come into the City to work.23 (A.
160-61; RX-56, 56A; Ex. A. 5-6).
Evidence introduced at the trial below further indicated
the substantial degree to which all major public and semi
public facilities of a recreational, educational and cultural
variety are located within Richmond (A. 163-65; RX-59;
Ex. A. 9-12). Of the hospitals serving the area, 17 of 18 are
in Richmond (RX-59; Ex. A. 9-12), and data compiled
for the years 1965-1969 demonstrated that most area resi
dents are born in and die within city facilities (A. 165;
RX-61, 61A; Ex. A. 15-16).
The division of the community by three political jurisdic
tions has not altered the mutual interdependence which per
sists in various protective and utility services. Since Hen
rico County’s principal offices are located within the City,
it thus relies upon Richmond’s fire and police departments
for service (A. 805-06), and a reciprocal fire protection as
sistance agreement presently exists between Richmond and
23 Even though the 1970 census data on employment and place of
residence was not available at the time of the trial, 1968 information
from Chesterfield showed that prior to the 1970 annexation, approxi
mately 48 per cent of Chesterfield workers had jobs within the City,
while 1963 data on Henrico demonstrated that 66 per cent of Henrico
workers came into Richmond to work (A. 160-61; RX-56, 56A; Ex.
A. 5-6). Additional evidence introduced at the trial, however, showed
that in two selected employments the respective percentages in
1970 were equally significant. Of all attorneys listed in the 1970 Greater
Richmond Telephone Directory, over 90 per cent had their offices
within the City; of the number working in Richmond, 42 per cent
lived in the two Counties, 51.4 per cent resided in Richmond and
6.6 per cent elsewhere (A. 161). Approximately a third of the
employees of the State Department of Education which is head
quartered in Richmond lived in each of the three jurisdictions (A.
161).
18
Chesterfield (A. 877). Richmond and Henrico have en
tered into numerous contracts concerning the provision by
the City of water and sewerage treatment facilities (A. 187-
91; Pet. A. 414-15), and similar reciprocal compacts have
been made by Richmond and Chesterfield (A. 191-94).
The conclusions reached by the district court regarding
the marked interdependence and community of interest be
tween the three jurisdictions were substantially identical to
those reached by separate independent consultants who have
studied the region over the past 14 years (Pet. A. 402-05).
Financed by the Richmond Regional Planning Commis
sion, the Public Administration Service Report of 1959 in
cluded : (1) findings that the area’s residents shared a com
mon heritage and had common interests; (2) comments
concerning the disadvantages in the operation of each of
the school systems on a separate basis and the need for
unified management of the region’s public education;24
and (3) proposals that governmental consolidation be ef
fected between Richmond and Henrico through a recom
mendation that “Henrico County and Richmond City com
bine their governments for the common and mutual benefit
of the citizens of both” 25 (RX-89, IV-3; A. 820-22).
24 With regard to the existence of the three separate school systems
in the Richmond region, the consultants concluded:
With each school operation going its separate way, optimum
efficiency in management and best planning, location, and utili
zation of the expensive school plants are difficult, if not impossible
of achievement. Whatever may be the outcome of the current
controversy over public education in Virginia, it does not seem
likely that it will result in the scrapping of the $60 million school
plant that now exists in the Region, or in the discontinuance of
its expansion and its need for unified management.
(RX-89, 11-25; Ex. A. 34-35).
25 Such a consolidation, of course, necessarily would have included
the school systems of the two jurisdictions.
19
A report prepared in 1967 at the request of the Boards of
Supervisors of Henrico and Chesterfield by Space Utilization
Associates likewise incorporated a recognition by indepen
dent consultants of the need for solution of local problems
on an area-wide basis through the elimination of many of
the jurisdictional limitations imposed by the existing gov
ernmental structure in the area (RX-47; A. 825-26; HX-25;
A. 834; Ex. A. 36, 41; Pet. A. 404-05).
The initial version of this report26 contained the following
observations:
The central city is an essential element of the region as
the major place of employment, the center of com
merce, and the State Capital and consequently its prob
lems affect the entire region. The other jurisdictions
cannot dictate the affairs of the central city nor can
they refuse to cooperate in the solution of its problems.
* * *
The jurisdictional boundaries of the three jurisdic
tions do not necessarily coincide with the living patterns
of area residents or natural service areas. Many of the
problems associated with urban areas cross over arti
ficial boundaries and cooperative action or multijuris-
dictional programs must be mounted to cope with crime,
disease, pollution, etc. Jurisdictional boundaries are not
inviolate and should be changeable when war
ranted . . . .
(RX-47, IV-1; Ex. A. 37, 38). A recommendation concern
ing the ultimate solution for future government in the Rich
mond area was expressed in the following terms:
26 Certain portions of the report originally submitted by the con
sultants on June 1, 1967 (RX-47; Ex. A. 36), were not well-received
by the County Boards of Supervisors who commissioned it (Pet. A.
404). Accordingly, certain passages were deleted and a later version
dated June 12, 1967 (HX-25; Ex. A. 41), was submitted to the County
Boards (Pet. A. 404).
20
It is the Consultant’s opinion that consolidation
would be the “idealized” solution for the Richmond
region, but that, without a change in attitudes or a
crisis of major proportions, it would not receive the
necessary voter approval.
(RX-47, V-5; Ex. A. 39).
Although the “idealized” solution through consolidation
was excluded in the report which finally met with the ap
proval of the County Boards of Supervisors, the later version
(June 12th edition) nevertheless contained significant obser
vations regarding indices such as the social and economic
disparities between Richmond and the two Counties.27
27 In describing conditions in the Richmond region, the consultants
rendered opinions as to the future situation if certain remedial actions
were not taken:
Much more must be done in education, from pre-school through
high school education and vocational training. All officials and
all levels of government must participate in the improvement of
education for the Negroes and in developing employment op
portunities that permit growth and full utilization of aspirations,
education, and abilities.
A continually growing concentration of the Negroes without
improvements in housing, education, and opportunities will fur
ther increase the disparities between the central city and the
suburbs, making cooperative regional action more difficult in
eradicating the disparities.
Henrico does not have a high percentage of low income families.
The percentage of non-whites in the population is lower than
the national average and lower than any other jurisdiction in
the SMSA. In contrast to all other jurisdictions in the region,
the number of non-whites in Henrico decreased between 1950
and 1960. If current trends continue, there seems little likelihood
of any significant social or economic disparities between eco
nomic or racial groups within the County.
Chesterfield has a very low percentage of lower income groups,
though the percentage has been increasing. Due to the recent
development of the County, most of the dwelling units are rela
tively new. There are few low rent facilities. For this reason, no
significant change is anticipated in the number of low income
families. For the same reason, the percentage of non-whites in
the County is expected to remain almost constant.
(HX-25, III-2, 4, 5; Ex. A. 47-48).
21
Examining measures of “social distance” extant in the Richmond
metropolitan area, the consultants observed:
. . . as the percentage of non-whites in the core city increases, the
possibility of effective cooperation to solve metropolitan problems
diminish [«'c]. In city-suburban racial imbalance and other mea
sures of social distance, the Richmond area is worse off (the social
distance between city and suburb is greater) than most other
metropolitan areas in the State of Virginia, the southern region,
and the United States as a whole.
.Let us look at some measures of social distance.
A. Percentage of Non-Whites
In 1960, 42 percent of the City’s population was non-white.
This was by far the highest non-white percentage among Vir
ginia’s SMSA’s; it is almost three times the median figure for
metropolitan areas in the United States; and it is almost twice
the median figure for the Southern region.
In contrast, the 1960 percentage of non-whites in the coun
ties surrounding Richmond was only 10.4 percent. This figure
was lower than the Southern regional figures. It was also 39
percent lower than that of the figure for the City of Rich
mond.
And there is every reason to believe that life in the Rich
mond metropolitan area is becoming more segregated with
time, rather than less segregated. By that we mean non-white
populations are continuing to be concentrated in the City of
Richmond, and the small non-white percentages in Henrico
and Chesterfield counties are likely to become even smaller
with time as the white population in these counties continues
to expand. At the present time there is little reason to believe
that the State of Virginia or the U. S. Government is likely
to adopt legislation, such as a “fair housing act”, which would
significantly alter this pattern of concentrating Negro housing
in central cities and white housing in suburbs.
B. Education
The median education level in the City of Richmond in 1960
was 10.1 years. This figure, which increased only 0.2 years in
the decade 1950-1960, was lower than every other Virginia
SMSA except Lynchburg, was lower than the U.S. SMSA
median and, more importantly, was lower than comparable
levels for SMSAs in the Southern region.
In contrast, the median education level in Henrico and
Chesterfield was 12.2 years in 1960. This level was the highest
of the State’s SMSAs, higher than the U.S. SMSA median,
higher than the median level in the Southern SMSAs, and
most importantly, was 2.1 years higher than the City of
22
The percentage of the total black population in the
Richmond metropolitan area remained stable over the 30-
year period from 1940 (28 per cent) to 1970 (26 per cent).
In 1970, however, approximately 84 percent of the metro
politan black population was confined within the City of
Richmond. During the respective periods of greatest growth
in the Counties, from 1940 to 1960 in Henrico, and from
1960 to 1970 in Chesterfield, the total number of black
residents in each area decreased. (RX-57A; A. 158-59; Ex.
A. 8).
B.
P attern s O f R acial C o m po sitio n O f M etropolitan
A rea Sc h o o l s , 1954-1971
( 1 )
Richmond Schools
Duringthe 1954-55 school year, Richmond enrolled 35,857
students with a racial composition of 20,259 white (56.5 per
Richmond. While the City’s educational figure increased
only 0.2 in the 1950-1960 period, Henrico’s figure increased
1.2 years and Chesterfield’s increased 2.0 years.
The City had a smaller proportion of high school graduates
than other Virginia cities, smaller than the average of all
U.S. cities, and smaller than the average of all Southern
cities. In contrast, Richmond’s suburbs had a higher per
centage of high school graduates than the suburbs of other
Virginia cities, higher than the average of all U. S. schools,
and higher than the average of all Southern suburbs.
(HX-25, IV-2, 3, 8; Ex. A. 48-50).
Finally, the consultants recommended remedial action in the following
terms:
Governmental action alone cannot resolve all of the regional
problems; all sections of the regional community must participate
in the elimination of the social and economic disparities that exist
between the central city and the suburbs. This is most lucidly il
lustrated by the failure of most public housing efforts to realize
the perhaps too lofty expectations set for them. Educational op
portunities must parallel housing improvements.
(HX-25, V-4; Ex. A. 50).
23
cent) and 15,598 black (43.5 per cent) students (R. Tr.
A-142; RX-75; Ex. A. 21; Pet. A. 417). From 1954-55
through 1966, the school facilities within the City of Rich
mond remained all-white or all-black in a manner identical
to enrollment patterns prior to 1954.
In September of 1969, the racial composition of the Rich
mond school system was 70.5 per cent black and 29.5 per
cent white (RX-75; Ex. A. 21; Pet. A. 416).
In the thirteen-month period from September, 1970, to
mid-September, 1971, during which City school officials
implemented two desegregation plans, approximately a third
of the white student enrollment which originally had been
expected to attend Richmond schools in the beginning of
the 1970-71 term had left the system (RX-98; Ex. A. 155;
Pet. A. 417).
As a result of the annexation of a portion of Chesterfield
by the City of Richmond which, for school purposes, did not
become effective until the end of the 1969-70 school year,
the City system anticipated a significant influx of white
students for the 1970-71 term.28 In planning for the open
ing of its schools in September of 1970 under the newly
approved “Interim” desegregation plan, the Richmond
School Board thus anticipated a racial mix of 60 per cent
28 A number of Chesterfield County schools ranging in student en
rollment from 92 to 100 per cent white became a part of the Rich
mond system pursuant to the annexation decree. A total school
population of approximately 8,135 students, 97.5 percent of whom
were white, was included within the territory annexed by the City of
Richmond. Since there was not sufficient space in the school buildings
acquired by the City to house all of the student population living
within the annexed area, under the terms of the decree approximately
3,500 students were to remain in Chesterfield schools at the beginning
of the 1970-71 school year. Of this 3,500, all elementary students were
to enter Richmond schools in September of 1971, with secondary
pupils enrolling in September, 1972. Thus, of the total number of
pupils gained pursuant to the annexation, more than 4,500 were to
have enrolled in the City school system as of September, 1970 (R.
Tr. A-143-44; Pet. A. 178).
24
black and 40 per cent white, but of the 20,400 whites ex
pected, only 17,203 actually enrolled (RX-75; Ex. A. 21;
Pet. A. 167, 417). During the 1970-71 school year under
its first plan of substantial desegregation, the Richmond sys
tem was 64.2 per cent black and 35.8 per cent white (RX-
75; Ex. A. 21; Pet. A. 417).
Based on the pupil membership during the 1970-71 school
year, a student population of 63 per cent black and 37 per
cent white was projected for the 1971-72 school year as the
Richmond system prepared to operate under “Plan III .”
After two weeks of school in September, 1971, however, the
student enrollment in the Richmond system reflected a
total of 42,423 pupils with a racial composition of 69 per
cent black and 31 per cent white. Of the 17,462 white stu
dent enrollment which had been projected for that year,
only 13,260 actually had enrolled (RX-98; Ex. A. 155;
Pet. A. 417).
Over the period from the 1954-55 school year through
the 1969-70 school year, the white student population in the
Richmond system fell roughly 40 per cent from a total of
20,259, or 56.5 per cent to a low of 12,622 or 29.5 per cent
(RX-75; Ex. A. 21; Pet. 416-17). Even with the addition
of a substantial number of white students pursuant to the
1970 annexation, the white student enrollment in the Rich
mond system as of September, 1971, was rapidly approach
ing the 1969 low.
During the corresponding period, the black student popu
lation in the Richmond system increased from 15,598 to
30,097, or nearly a 100 per cent rise over the fifteen-year
span (RX-75; Ex. A. 21; Pet. A. 417).
As of September, 1971, the Richmond system with a
racial composition of 69 per cent black and 31 per cent
white, operated 56 facilities of which 49 were majority
black. Twenty-five of these schools were in excess of 70 per
25
cent black and of those, 11 were in excess of 80 per cent
black (RX-98; Ex. A. 155). Richmond high and middle
schools such as Walker, Armstrong, Kennedy, Mosby and
Graves and elementary schools such as Baker, Blackwell,
Fairmount, Mason and Norrell which had been built and
opened as all-black schools and which had remained all
black through 1969-70, ranged from 72 to 88 per cent black
in 1971-72 notwithstanding the successive implementation
of extensive plans of desegregation (RX-98; Ex. A. 155).
Because of primary reliance on neighborhood zoning from
1954 to 1970, a period during which the City’s black student
population was doubling, Richmond blacks continued to
attend schools that were segregated in a manner identical
to conditions which existed in 1954. The first significant
desegregation of these historically all-black schools under
taken in September of 1970 and 1971, accompanied by a
loss of nearly 35 per cent of the City’s white students, left
over 17,700 or nearly 61 per cent of the City’s black pupils
in schools which were in excess of 70 per cent black (RX-98;
Ex. A. 155).
( 2 )
Chesterfield Schools
In the school year 1953-54, Chesterfield enrolled 9,132
students with a racial composition of 7,429 white (79.6 per
cent) and 1,903 black (20.4 per cent) students (Pet. A.
418).
During the 1961-62 school year, there were 85.1 per cent
white and 14.9 per cent black students attending Chester
field schools, whereas, by the 1970-71 school year, the pupil
population of Chesterfield was 90.6 per cent white and 9.4
per cent black. Over that nine-year period, the total pupil
membership rose from 15,596 to 24,063 even though Ches
terfield lost approximately 8,000 students to the City of
26
Richmond pursuant to the 1970 annexation (RX-76; R.
Tr. A-145; Ex. A. 24).
During the 1970-71 school year, in contrast to the City’s
operation of 25 facilities in excess of 70 per cent black, the
12 Chesterfield facilities closest to the City were all between
95 and 100 per cent white29 and over half of all Chesterfield
schools were in excess of 90 per cent white (Pet. A. 524-26,
530-32).
For the 1971-72 school year, Chesterfield enrolled a total
of 23,754 students with a racial composition of 21,588 white
(90.9 per cent) and 2,166 blacks (9.1 per cent) students
(Pet. A. 418).
Over the period from 1953-54 school year through 1971-
72, the overall percentage of blacks in the Chesterfield school
system thus fell from 20.4 per cent to 9.1 per cent.
(3)
Henrico Schools
In 1953-54, Henrico schools enrolled 13,142 students with
a racial composition of 11,771 white (89.6 per cent) and
1,371 black (10.4 per cent) students (Pet. A. 418).
In 1970-71, the pupil population in Henrico was 91.9 per
cent white and 8.1 per cent black. Over the ten-year period
from 1960-61 to 1970-71, the Henrico pupil population rose
from 24,059 to 34,470 (RX-77; R. Tr. A-146; Ex. A. 25;
Pet. A. 417).
During the 1970-71 school year, in contrast to Richmond’s
25 facilities in excess of 70 per cent black, all Henrico
facilities except Central Gardens Elementary (96.2 per cent
black) were in excess of 70 per cent white and over two-
thirds of Henrico’s schools were in excess of 90 per cent
white (Pet. A. 527-29, 530-32).
29 See Chesterfield schools listed at note 33 infra.
27
During the 1971-72 school year, Henrico enrolled 34,317
students in 43 facilities with a racial composition of 31,299
white (91.2 per cent) and 3,018 black (8.8 per cent) stu
dents (Pet. A. 417).
In the period from 1953-54 to 1971-72, the over-all per
centage of blacks in the Henrico school system thus fell from
10.4 per cent to 8.8 per cent.
C.
R ic h m o n d M etropo litan Sch o o ls
In 1961-62 the combined Richmond, Henrico and Ches
terfield school divisions enrolled a total of 82,761 students
with a racial composition of 54,948 whites (66.4 per cent)
and 27,813 blacks (33.6 per cent). In June of 1971, there
were a total of 106,521 students attending schools in the
three divisions with an over-all racial composition of 70,664
whites (66.3 per cent) and 35,857 blacks (33.7 per cent)
(RX-78; R. Tr. A-146; Ex. A. 26; Pet. A. 418). Although
the total number of students attending schools in the com
bined area over the past ten years has increased by nearly
24,000, the over-all racial composition of the three divisions
has varied only one-tenth of one per cent which contrasts
sharply with the substantial shifts in the racial compositions
of the separate divisions (RX-78; Ex. A. 26). The Rich
mond system has shifted from 57.9 per cent white in 1953-
54 to a current figure of 70 per cent black, while the County
systems over a corresponding period have experienced sub
stantial increases in white student enrollment and decreases
in the over-all percentage of black student enrollment.30
30 During the period 1955-1970, white student enrollment in both
Henrico and Chesterfield increased by approximately 37,000 (RX-
76, 77; Ex. A. 24, 25; Pet. A. 418). In the same general period,
Richmond experienced a near 100 per cent rise in black enrollment
while losing approximately a third of its white pupils from September,
1970, to September, 1971.
28
Speaking in terms of a single metropolitan school system,
the Richmond, Henrico and Chesterfield area during the
1971-72 school year served approximately 103,000 students
in 132 schools with an over-all racial composition of ap
proximately 65 per cent white and 35 per cent black stu
dents (Pet. A. 417-18).
As of June, 1972, there were approximately 35,000 black
students in the Richmond, Henrico and Chesterfield systems
of whom 29,747 or 85 per cent attended schools within the
City of Richmond. Over 62 per cent of the 29,747 or about
18,500 black students attended 26 City schools which were
in excess of 70 per cent black. These 26 City schools served
approximately 53 per cent of all black students in the Rich
mond, Henrico and Chesterfield metropolitan area31 (Pet.
A. 416-18, 530-32). In contrast, the County systems during
the 1970-71 school year operated a total of 46 facilities
which were 90 per cent or more white (Pet. A. 524-29).
For many years, Richmond, Henrico and Chesterfield have
participated in joint programs designed to meet the educa
tional needs of the entire metropolitan school community
which could not otherwise have been made available by any
of the divisions on a separate basis.32
31 The June, 1972 student enrollment figures for the City are re
flective of data submitted to the district court by the Richmond School
Jbtoard as of the end of September, 1971, as opposed to the September
7, 1971 figures contained in RX-98, Ex. A. 155. The lower court’s
figures (Pet. A. 417-18) as well as its compilation for the City system
m 1971-72 (Pet. A. 530-32) also reflect the later enrollment report.
32 Currently, pupils from Richmond, Henrico and Chesterfield are
being transported by school buses provided by each of the three divi
sions to joint schools as follows: (1) branches of a cooperative train-
mg center for mentally retarded children, one of which is in northern
Henrico and another of which is located in the area which Richmond
gained from Chesterfield pursuant to the 1970 annexation; (2) a
math-science center also located at the same facility in northern
Henrico; and (3) a technical center located within the City of Rich
mond (A. 417-20; Pet. A. 358).
29
The Richmond School Board operates two facilities lo
cated wholly, in the case of Kennedy High School, or partly,
in the case of Fairfield Court Elementary, in Henrico
County. Both schools historically have had all-black student
enrollments (Pet. A. 388).
There are a number of instances where substantially black
Richmond schools and nearly all-white Henrico or Chester
field schools are located only short distances from one
another33 (Pet. A. 428-29).
During 1970-71, the math-science center at one time or another
served a total of 8,872 students from Chesterfield, 10,469 from Henrico
and 11,399 from Richmond—most of whom were regularly trans
ported on an inter-jurisdictional basis in order to attend programs
at this particular facility (A. 419-20). The same process occurred
with regard to the operation of the technical center which normally
serves 700-800 pupils per year (A. 420).
33 The following comparisons are illustrative of this phenomenon:
Richmond Henrico
Schools Schools Distance
1970-71 1970-71 Miles
Kennedy High School Henrico High School 4.9
93% black 96.1% white
John Marshall High School Henrico High School 1.4
73% black 96.1% white
Mosby Middle School Fairfield Junior High School 3.6
95% black 81.9% white
East End Middle School Fairfield Junior High School 3.6
68% black 81.9% white
Fulton-Davis Elementary Montrose Elementary 1.8
53% black 100% white
Mason Elementary Adams Elementary 3.1
100% black 86.4% white
Highland Park Elementary Glen Lea Elementary 1.3
90% black 99.8% white
Stuart Elementary Laburnum Elementary 2.2
91% black 79.6% white
In addition both Kennedy and Mosby, two of the City’s most heavily
black secondary schools in 1970-71, are from approximately two-to-
four miles of the following Henrico elementary schools: Ratcliffe—
100% white; Montrose—100% white; Glen Lea—99.8% white; and
Adams—86.4% white (RX-64-66; Ex. A. 27-31). While precise
30
4. Slate and Local Policies and Practices Insuring Maintenance of
Segregated Schools Throughout Sixteen-Year Period Following
Brown I
Both the Richmond School Board and the plaintiffs pre-
sented detailed evidence in the district court concerning the
magnitude and continuing effects of racial discrimination in
the operation of public schools as it has been practiced by
the State and local school authorities both prior to and
after this Court’s decision in Brown v. Board of Education,
347 U.S. 483 (1954) [hereinafter cited as Brown /]. This
evidence not only concerned discrimination in pupil assign
ments, but also involved discriminatory practices in school
site selection and construction policies, discriminatory allo
cation of faculties in the individual systems, as well as a
myriad number of policies and programs deliberately de
signed to perpetuate racial segregation which continued
mneagc was n°t measured as between Richmond schools and those
m Chesterfield nearest to the City-County boundary, a glance at the
maps utilized by the Richmond School Board in presenting its plan
for metropolitan desegregation (RX-64-66; Ex. A. 27-31) clearly
shows that the following Chesterfield schools are within two-to-four
miles, or closer from various Richmond schools and virtually ring; the
City s southern boundary: 5
Racial Composition
Chesterfield Schools 1970-71
Robious Road Elementary
Bon Air Elementary
Crestwood Elementary
A. M. Davis Elementary
Providence Intermediate School
Manchester High School
Chalkley Elementary
Hening Elementary
Meadowbrook High School
Falling Creek Elementary
Falling Creek Intermediate School
Bensley Elementary
(Pet. A. 524-26).
98.6% white
97.5% white
99.8% white
96.9% white
97.6% white
94.8% white
95.5% white
100 % white
97.3% white
100 % white
97.2% white
99.4% white
31
until the time of the trial below. Detailed evidence also was
presented supporting the following lower court findings:
that the desegregation of schools within each of the three
school divisions was pathetically incomplete at the time of
the hearings in this case (Pet. A. 237); that the State and
local defendants had failed to utilize powers possessed under
State law to eradicate the vestiges of the dual system of
schools in the face of actual knowledge of the consequences
of such inaction (Pet. A. 233-35, 258-59) ; that the opposi
tion on the part of State and local officials to assignments
of students across existing school division lines for the pur
pose of school desegregation was, at least in part, racially
motivated (Pet. A. 212, 230, 258); and that the State and
local authorities had promoted segregation through the
assignment of pupils across existing school and political sub
division boundaries as well-as through the employment of
principles underlying the consolidation of school districts
(Pet. A. 193-95, 352-56).
The district court analyzed the voluminous evidence be
fore it and made exhaustive findings of fact both in its earlier
opinions relating to the Richmond phase of the case (Pet.
A. 1, 110) and with regard to the metropolitan phase in
its January 5th opinion (Pet. A. 164). Although many of
these findings were based on uncontradicted evidence, the
court of appeals made no reference to the substantial ma
jority of them.34
34 The appellate court, however, did agree with Judge Merhige’s
findings that there had been both state and federal action within the
City of Richmond tending to entrench and perpetuate patterns of
racial segregation throughout the City (Pet. A. 572). The court also
agreed with the district court’s finding that there had been state
action within the Counties of Henrico and Chesterfield as well which
restricted the location of black residences (Pet. A. 572).
32
A.
State Po licies and Practices
In contrast to the court of appeals’ reliance upon Virginia’s
so-called tradition of local control of its public schools, the
lower court made significant findings establishing exten
sive control at the state level in the administration of
various programs designed to perpetuate segregated schools
both prior to35 and well beyond 195436 (Pet. A. 313-31).
Findings were made regarding the deep implication of the
State school authorities in the administration of programs
divesting the localities of all control over pupil assignments
and involving as well the movement of students across school
division lines in order to insure the perpetuation of the
dual system of schools37 (Pet. A. 313-31).
5 In 1954, the Virginia Attorney General told this Court that: “In
general, education in Virginia has operated in the past pursuant to
a single plan centrally controlled with regard to the segregation of the
races.” (Brief for Appellees in No. 3, Davis v. County School Bd.
O.T. 1954, at p. 15).
1(6 Of course, this case, as did those arising from North Carolina,
Georgia and Alabama which were characterized in Swann v. Char-
lotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 5-6 (1971) as coming
from “states having a long history of maintaining two sets of schools
in a single system deliberately operated to carry out a government
policy to separate pupils in schools solely on the basis of race . . .”
arises as well from a State which historically has been indefatigable
m its efforts to perpetuate segregated public schools. See, e.g. Brown
v. Board of Educ. I & II, 347 U.S. 483 (1954), 349 U.S. 294 ?1955) ■
NAACP v. Button, 371 U.S. 415, 435 n. 16 (1963) (noting volumi
nous list of Virginia school desegregation cases with postscript that
despite such, effort, at that time “only l/2 of 1% of Virginia’s Negro
public school pupils attended] school with whites” ) ; Griffin v
County School Bd, 377 U.S. 218 (1964); Bradley v. School Bd
382 U.S. 103 (1965); Green v. County School Bd, 391 U.S. 430
(1968); Wright v. Council of City of Emporia, .... U.S........
92 S.Ct. 2196 (1972); see also Adkins v. School Bd, 148 F.Supp
430 (E.D. Va.), aff’d, 246 F.2d 325 (4th Cir.), cert, denied, 355
U.S. 855 (1957); James v. Almond, 170 F.Supp. 331 (E.D. Va.)
appeal dismissed, 359 U.S. 1006 (1959).
33
The district court found that the purposeful, centrally
compelled policy of segregation was vigorously pursued in
the State of Virginia for many years subsequent to this
Court s 1954 declaration of the illegality of laws requiring
segregation in public education, and that the enduring ef
fects of this policy were manifested in the racial character
istics of the schools (Pet. A. 258). The district judge noted
that even at this late date, the abandonment of such a
position had been gradual, piecemeal, intentionally reluctant
and was less than total (Pet. A. 258). Judge Merhige further
found that during this entire period, the State Board of
Education had dutifully and hastily communicated to local
school authorities the most recent State enactments de
signed to frustrate desegregation; whereas, by contrast,
during the years from 1965 to date, during which the State
Board in order to avoid the cutoff of federal funds had exe
cuted a compliance agreement with HEW, it had failed to
disseminate to local school authorities the substance of even
the most important decisions of this Court in the area of
school desegregation37 38 (Pet. A. 350). The district court found
37 The details of some of these programs as set out in the district
court’s opinion may be highlighted as follows: a series of memoranda
of the State Superintendent of Public Instruction to local school
authorities and State Board of Education resolutions advising of the
propriety of continued operation of segregated schools following this
Court’s directives in Brown I and Brown I I (Pet. A. 314-16); the
vesting of the power of enrollment of pupils in the centrally-controlled
Pupil Placement Board (Pet. A. 313-14, 318-20); procedures authoriz
ing the State through the office of its Governor to assume control over
and close any school which either voluntarily or under court order
became integrated (PX-144-I; Pet. A. 316-18, 533-36); and the
centralized administration of programs designed to fund intra- or
inter-divisional transfers of students in the interest of avoiding at
tendance at schools which had become integrated (Pet. A. 320-31).
38 A deputy superintendent in the State Department of Education
was assigned the task of administering the State’s compliance with
the Civil Rights Act of 1964. Prior to the passage of the Act in July,
1964, no one in the State Department of Education had been re
34
that for the major part of the 17-year period from Brown I
to date, the State of Virginia’s primary and subordinate
agencies with authority over educational matters had de
voted themselves to the perpetuation of a policy of racial
separation in the public schools (Pet. A. 215).
As a result of these State practices and policies, each of
the three school systems in the Richmond area, and indeed,
others throughout Virginia, remained virtually segregated
even after the adoption of court-ordered or HEW-induced
freedom of choice plans. Still, there was no more than token
quired to assume any responsibility concerning desegregation (A.
680; Pet. A. 332). During the following years the State Depart
ment’s efforts in securing local compliance were confined solely to
passing various data between HEW and the local divisions (A.
678-93). Even this minor role, however, had its limits as was evi
denced in a memorandum written in 1969 by this particular deputy
superintendent concerning a government request for information on
certain Virginia school divisions wherein it was suggested that the
State deny having data that was, in fact, available (A. 681-83; RX-87;
Ex. A. 82; Pet. A. 344-45). Advice concerning the State’s role in the
process was offered as follows:
I do not think it is sound, politically or otherwise, for the De
partment to assume the role of a coercive collection agency for
the Federal government in instances where local school systems
refuse to supply the information and are willing to forego
Federal aid. The Federal government has ample authority to
exercise over localities if it desires to institute suit through the
Justice Department to place such localities under Court ordered
desegregation plans. It would be ill advised, in my judgment for
our Department to align itself with the Federal government in
this confrontation. . . .
(RX-87; Ex. A. 82-83; Pet. A. 346). This individual could recall
few instances where the State Department of Education had advised
local school authorities of relevant court decisions and was unable to
produce any such notification of this Court’s action in Green v.
County School Bd., 391 U.S. 430 (1968) (A. 717-20; Pet. A. 350).
Even though funds had been available for nearly five years, the
State Department of Education failed to apply for any federal grant
under the technical assistance (in desegregating local divisions)
program until late 1970 (A. 576-77; Pet. A. 348-49).
35
integration, and in 1968-69 in the Counties and 1969-70 in
the City, all of the traditionally black schools remained all
black (Pet. A. 524-32).
Superimposed over the lack of any substantial desegrega
tion in the Richmond community during the sixteen-year
period following Brown I was the rapid increase of white
students in the Chesterfield and Henrico systems, and the
100 per cent growth of the black student population of the
City. The continued use of pre-Brown criteria in the selec
tion of school sites coupled with the use of neighborhood
zoning,39 thus caused the further solidification of patterns
of segregation in the community.40
Because of the State’s “defiance of the announced consti
tutional mandate,” and the inevitable effect of such policies
on the racial characteristics of Richmond area schools, the
district court concluded that
[t]he task of disestablishing the dual system may there
fore be much more difficult in 1971 [and that] [t]he de
fendants ought not to benefit from such self-imposed
hardships.
Against this background the “desegregation” of
schools within the city and the counties separately is
pathetically incomplete. Not only is the elimination
of racially identifiable facilities impossible of attain
ment, but the partial efforts taken contain the seeds of
their own frustration.
(Pet. A. 237) (emphasis added).
39 These processes are discussed more fully at pp. 45-47 infra.
40 See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1
20 (1971), where in the context of the Charlotte metropolitan area,
this Court recognized that the process of greatly expanding school
capacity for white students in the suburbs while at the same time
converting white schools to black schools within the central city had
been " . . . a potent weapon for creating or maintaining a state-segre
gated school system.” Id. at 21.
36
At the same time the State school authorities were ad
hering to the foregoing policies through either action or
inaction on their part, the various school and governmental
officials in the Richmond metropolitan area also were ac
tively discriminating against blacks in education, housing
and employment.
B.
L ocal P olicies A nd Practices
. (1)Richmond
In his initial opinion in the Richmond phase of the case
on August 17, 1970, Judge Merhige included a detailed set
of findings indicating the degree to which freedom of choice
had failed to remove the racial identity of the substantial
majority of the public schools within the City system (Pet.
A. 6-8). Also included within that opinion were extensive
findings on the magnitude of illegal residential segregation
as it existed within the City and its interrelationship with
school segregation (Pet. A. 8-13). Judge Merhige specifically
found that prior State laws which had required racial segre
gation in housing and schools, had long term effects which
had not been diminished by the earlier lifting of the formal
restrictions (Pet. A. 10).
Thus, even though matters pertaining to the desegregation
of the Richmond system had been litigated throughout the
1960’s, by the end of the 1969-70 school year approximately
43,000 students were enrolled in schools within the City
which were segregated in virtually the same manner as they
had been in 1954.41 Neither had faculty and staff desegre
41 As of May 1, 1970, seven high schools were operated within the
City of which three were 100 per cent black, three were 99.3 per
cent, 92 per cent, and 81 per cent white and the remaining one was
68 per cent black. Also, at that time on the middle school level, two
100 per cent black schools, three others that ranged from 99.9 per
37
gation been accomplished (Pet. A. 7-8). The district court
concluded that there was little doubt that Richmond “had
not achieved a unitary system as required by law” (Pet. A.
7 ).
As noted at p. 7 supra, the district court in approving
the Richmond School Board’s first significant plan of de
segregation for the 1970-71 term, cautioned that the plan
could be operated only on a temporary basis owing to the
substantial number of virtually one-race schools remaining
at the elementary level. During the 1970-71 year, approxi
mately 9,000 blacks in the City system attended thirteen
schools which were at least 90 per cent black; additionally,
Richmond operated four all-white elementary facilities (Pet
A. 36).
(2)
Chesterfield
Chesterfield schools were operated on a completely segre
gated basis for at least twelve years following this Court’s
decision in Brown I. During the school years 1966-67 through
1969-70, the student body at one of the County’s secondary
schools was 100 per cent black and its faculty over 90 per
cent black, while during the 1968-69 school year there were
nine schools with all-black student enrollments even though
blacks in Chesterfield represented only 10 per cent of the
County’s total school population (Pet. A. 524-26). In
July of 1968, Chesterfield was threatened with the termi
nation of all federal aid owing to a deficient plan for de
segregation of its schools, and only then did Chesterfield
cent to 69 per cent black, and three that were over 91 per cent white
were operated within Richmond. On the elementary level, seventeen
City schools were 100 per cent black, four others were in excess of
99.J per cent black, two were 100 per cent white, and thirteen others
ranged upward from 90 per cent white (Pet. A. 6).
38
authorities propose a plan of desegregation which was not
to take effect until September of 1970 (Pet. A. 382).
In the 1970-71 school year, Chesterfield operated six ele
mentary schools which were in excess of 99 per cent white
with two of these being 100 per cent white; at the same
time three of Chesterfield’s secondary facilities were in ex
cess of 97 per cent white (Pet. A. 524-26). Also at this time
and against the background of a system that was less than
10 per cent black, the Matoaca Lab Elementary facility
which had been operated jointly with Virginia State Col
lege remained at 99 per cent black even though it was
within reasonable pairing distances of Bensley and Curtis,
two virtually all-white schools (Pet. A. 384-85, 526). As
late as August 20, 1971, Chesterfield received and trans
mitted State funds to Virginia State College for the support
of Matoaca Lab School which at that time remained an
all-black facility. Additionally, Chesterfield provided bus
transportation for pupils attending that school (Pet. A. 386).
In 1969-70 there were nine Chesterfield County schools
without a single black on their faculty, while during the
same year 14 facilities including three of County’s largest
high schools had only one black faculty member (Pet. A.
524-26). Throughout the 1970-71 school year, six Chester
field facilities were without any black faculty members and
nine schools had only a single black on their staff (Pet. A.
524-26). By way of contrast, in the same year the Matoaca
Laboratory School in Chesterfield had a 100 per cent black
faculty (Pet. A. 384, 526).
The district court also made extensive findings regarding
the general discrimination which persisted in all aspects of
Chesterfield practices and policies of which the following
are representative: it maintained a number of inferior all
black schools even during the 1960’s, and black administra
tors were often demoted upon the closing of such schools
39
(Pet. A. 380-82, 377); the Chesterfield County governing
body had, as late as five years after the Brown I decision,
stated its opposition to any integration of schools whatsoever
and urged State authorities to hold the line against school
integration (Pet. A. 379); through the 1969-70 school year,
Chesterfield operated an all-black secondary school whose
attendance zone constituted the entire County (Pet. A.
383); in 1971, a Chesterfield political leader openly called
upon County residents to revolt rather than participate in
school integration involving that County and the City of
Richmond42 (Pet. A. 412-13); Chesterfield County has had
no public housing authority and has made it clear that it
has no desire for any low-income housing projects;43 public
42 Shortly after this Court’s decision in Swann v. Charlotte-Mecklen-
burg Bd. of Educ., 402 U.S. 1 (1971), the Chairman of the Board of
Supervisors of Chesterfield County publicly recommended to his con
stituents :
a revolt in the form of a school boycott, separate private school
system, or even freedom of choice school assignments and letting
federal troops see what they can do about it, rather than inte
grate the schools in Chesterfield County with the City of Rich
mond . . .
(A. 667-68, 671; Pet. A. 412). He clarified his statement by explaining
that when Swann was decided Chesterfield citizens were “fit to be
tied” and that he had reacted in such a manner because he was
registering the feelings of the people of his political jurisdiction (A.
672; Pet. A. 413). This individual further related his belief
that firm action by the people was necessary to indicate and
show that they were not pleased with the way that conditions
were going and the un-Americanism that they believed was tak
ing place because this Charlotte-Mecklenburg case of course
made the people afraid that their community schools would be
destroyed.
(A. 673).
43 Subpoenaed as a witness by the plaintiffs, the Executive Director
of the Richmond Redevelopment and Housing Authority testifying
with regard to both Chesterfield and Henrico stated in effect that
owing to the scarcity of available sites in Richmond that it would be
“most helpful” for his authority to obtain County locations for low
40
employment in Chesterfield over the years has been avail
able most exclusively to whites (PX-107B-C; R. Tr. M-46;
Ex. A. 91; Pet. A. 510); most Chesterfield administrative
jobs are manned entirely by whites, with blacks occupying
at best menial positions (PX-107B-C; Ex. A. 86; Pet. A.
514) ; and blacks in Chesterfield have settled in small, con
tiguous cells rather than in any widely dispersed pattern
throughout the County as a whole (Pet. A. 511).
(3).Henrico
Henrico schools as well were totally segregated well into
the mid-1960’s. A major secondary school which served the
rent housing (A. 612, 616). Questioned if he had considered the possi
bility of obtaining sites in those areas, the witness further testified as
follows:
A. We have discussed a number of times the possibility of
approaching the two counties regarding some authorization to
undertake development in the counties, but have not done so.
Q. Why is that, sir? A. Two reasons. One was that we saw
almost no likelihood of success; secondly because of the existing
tensions between the City and county groups.
Q. What was the basis for seeing no reasonable possibility of
success? A. County officials had declared their position, particu
larly in the case of Chesterfield, in no uncertain terms. We saw
no likelihood of success on that account.
Q. Is there authority for the expansion—for the construction
of projects outside the city limits by the Richmond Public Hous
ing Authority if it had the approval of the surrounding jurisdic
tion? A. Yes. It is the state law that contemplates this possibility
in two or three different ways.
Q. And can the housing problem in this area be solved with
out the cooperation of these suburban counties? A. I don’t be
lieve it can be solved without metropolitan cooperation.
Q- Because of the difficulty you have had in terms of both
acquiring new sites and rejections of sites in apparently pre
dominantly white areas, is there any realistic possibility of loca
tion of governmental housing, disestablishing the existing pattern
of residential racial segregation in the Richmond community?
A. If I understand your question, I don’t think so.
(A. 616-17).
41
entire County remained all-black until it was closed at the
end of the 1968-69 school year (Pet. A. 389). In September
of 1966, Henrico school authorities informed State school
authorities that the County would not cooperate with HEW
in the matter of faculty desegregation (Pet. A. 343). The
State authorities took no action upon this notification, and
in 1968 were advised by HEW that federal funds for the
Henrico school system were being terminated owing to its
having submitted an inadequate and ineffective plan for
accomplishing the elimination of its dual school system
(Pet. A. 344). Only in the face of pending HEW enforce
ment proceedings did Henrico finally adopt a desegregation
plan which was not to commence until September of 1969
(Pet. A. 393). Pursuant to its new plan, Henrico at the
beginning of the 1969-70 school year closed five formerly
all-black schools and black principals were generally de
moted to lesser jobs (Pet. A. 393-94).
During the 1970-71 school year, Henrico still operated 14
of 30 elementary facilities with a racial composition of 99
per cent or more white with six of these remaining 100
per cent white (Pet. A. 529). Against the background of
a system that was less than 10 per cent black, Henrico school
authorities the same year placed 40 per cent of the County’s
total black elementary enrollment in one school, Central
Gardens, which was more than 96 per cent black and
within one-to-two miles of all-white elementary schools (Pet.
A. 395, 529). This concentration was not alleviated until
after the commencement of the trial below (Pet. A. 395-96),
and the method used placed the principal burden of trans
portation upon the black students attending grades 1-5 at
Central Gardens.44 At least six of Henrico’s elementary
44 The Superintendent of Henrico Schools testified as to the details
of the plan used to desegregate Central Gardens Elementary which
was not implemented until after the commencement of the trial below
42
schools, Crestview, Lakeside, Montrose, Ratcliffe, Sandston
and Holladay which were built as all-white schools were
still 100 per cent white during the 1970-71 term. Henrico
also operated Tuckahoe Junior High which was 98.6 per
cent white and Freeman High School, the County’s largest
containing nearly 2,000 students, remained 99.3 per cent
white during the 1970-71 school year (Pet. A. 527-29).
Even though the Superintendent of Henrico Schools ad
mitted that one of the indicia of racial identifiability was the
faculty composition of a particular school (R. Tr. H-89),
(A. 591-95). Central Gardens had gone from 62.6 per cent black in
1966-67 to over 96 per cent black in the 1970-71 school year. During
that same time Henrico operated a number of elementary facilities,
all-white or nearly so since their opening, which were located in close
proximity to Central Gardens:
Distance
from
Central
School
Central
1966-67 1967-68 1968-69 1969-70 1970-71 Gardens
Gardens
(black)
62.2% 78% 91% 95% 96.2%
Ratcliffe
(white)
100% 100% 100% 100% 100% 1 mi.
Glen Lea
(white)
100% 100% 98.1% 100% 99.8% 2.4 mi.
Adams
(white)
99.3%
97.4% 96.5% 86.3% 86% 3.4 mi.
Highland Springs
(white)
99.6% 99.3% 95.3% 99.6% 8.5 mi.
(A. 589-91; Pet. A. 529). The plan adopted by Henrico required all
students in grades 1-5 at Central Gardens (these were nearly all
blacks) to be transported out to the other facilities listed above; in
turn, all 6th graders from those schools were to be transported to
Central Gardens (A. 592, 595). The resulting racial composition in
each school was approximately 70% white and 30% black (A.
592), and the Henrico Superintendent expressed the hope that
these ratios would insure stability in the racial compositions of the
schools involved (A. 595). Even though the burden of transporta
tion was thus placed on the youngest black pupils, the Henrico Super
intendent nevertheless saw the plan as educationally sound and
feasible (A. 593-94).
43
numerous Henrico schools during the period from 1966-67
through 1970-71 were without any black faculty members
whatsoever (Pet. A. 397). During the 1969-70 term, four
Henrico schools had no black faculty members while 23
facilities had only one black on their respective faculties
(Pet. A. 527-29). In the 1970-71 school year the number of
Henrico facilities without any black faculty members had in
creased to nine, while there were still 21 schools which had
only one black member apiece (Pet. A. 527-29).
The planned reassignment of faculty in an effort to elimi
nate the racial identifiability of many of the Henrico schools
was not undertaken until after the County officials had been
joined as parties in this case (Pet. A. 397). During the
1971-72 school year, 25 facilities in Henrico had only one
black faculty or staff member, and the district court was
unable to determine how many of these were classroom
teachers (Pet. A. 397).
Similar to its extensive findings of general discrimination
in Chesterfield the district court made the following con
clusions regarding Henrico: HEW officials had charged in
the early part of 1968 that Henrico had made insufficient
progress toward school desegregation in that County school
authorities were maintaining small inadequate all-black
schools and the program at the all-black secondary school
was demonstratively inferior to those being offered at other
schools in the system (Pet. A. 392); housing patterns in
Henrico were segergated, and the blacks that were able to
move into that County settled principally into small colonies
(Pet. A. 506); Henrico County has had no public housing
authority or programs, nor any rent supplement programs45
45 See note 43 supra. One of the witnesses at the trial below, a black
citizen of Henrico, told how he had attempted (and failed) to get
County approval for low cost housing because he felt that “Henrico
County could not indefinitely dump their unfortunate families on
Richmond” (A. 472).
44
(Pet. A. 510) ; and public employment in Henrico over the
years has been available almost exclusively to whites (PX-
104-107A; Ex. A. 85; Pet. A. 510).
C.
State A nd L ocal D iscr im in a tio n I n Sc h o o l
Site Selectio n A nd C o n str u ctio n
In discussing the role of the State school authorities in
the maintenance of policies and programs of school site selec
tion and construction, the district court found that decisions
on school locations as well as the expansion of existing
facilities in the three metropolitan systems were matters for
central as well as local control (Pet. A. 210). The district
judge further found that the approval of State school au
thorities was required for the site selection for any new
facility by the various localities (Pet. A. 284). Not until
1968 did the State school authorities caution all local su
perintendents to consider the effect on desegregation of new
school construction; however, this advice was never incor
porated into State procedures for review of construction pro
posals, and the contribution that each new proposal would
have made to the elimination of the dual school system was
not considered (Pet. A. 286). Current State Department
of Education regulations concerning school facility site selec
tion do not, in either recommendations or binding regula
tions, refer to desegregation (Pet. A. 289).
Throughout the period from 1954 to 1971, each of the
school divisions with the support and authorization of the
State school authorities pursued programs and policies of
discriminatory school site selection and construction (Pet.
A. 204-07). The district court’s findings with regard to
City practices have been detailed elsewhere.46 With regard
46 See Bradley v. School Bd. of City of Richmond, 324 F.Supp.
456 (E.D. Va. 1971).
45
to the Henrico and Chesterfield systems, the district judge
made a finding that new school construction was planned
for black schools years after Brown I without regard to the
possibility of accommodating the black pupil population in
white schools (Pet. A. 204).
The Superintendent of Chesterfield schools was unaware
of the 1968 memorandum distributed by the State school
authorities, and the district court found that none of the
Chesterfield schools including those under construction at
the time of the trial had been planned with a view toward
assisting the desegregation of the various County schools
through a strategic location of the site (A. 494; Pet. A.
312). The district court also concluded that Henrico school
authorities had, without exception, likewise ignored de
segregation requirements in planning and constructing new
schools (Pet. A. 298-301).
As a result of these programs and policies pursued at both
State and local levels, the district court concluded that the
perpetuation of the racial identifiability of the particular
facilities while each system expanded by means of the crea
tion of new schools planned for one race or the other, had
greatly assisted in the continuation of prevailing housing
segregation which, coupled with the continued use of neigh
borhood zoning, further entrenched existing school segrega
tion47 (Pet. A. 207). Judge Merhige concluded that such
school construction policies contributed substantially to the
current segregated conditions within each of the three school
systems, and specifically found that the longer term impact
of the same policy had been the accentuation of the racial
disproportion between the City school system and those of
47 See note 40 supra and accompanying text.
46
the two Counties48 (Pet. A. 200). In viewing the over-all
process, the district court found that the continued opera
tion of the schools of each subdivision as racially identifiable
facilities necessarily caused each new facility and old ones
as well to take on the label of a “black” or “white” school,
and that this process had led to the current racial identifi-
ability of the entire systems in issue—the Richmond City
system identifiable as black, and that of each County as white
(Pet. A. 200-01).
The district judge in making the above findings regarding
the extensive discrimination which had been practiced by
the various State and local agencies from the period following
this Court’s decision in Brown I up until the trial of this
matter, concluded that the long years of the maintenance of
the dual system, as well as the massive and effective State-
managed efforts to oppose desegregation under free choice
assignment plans had caused more and more facilities in the
48 While each of the Counties were constructing new white schools
in their most urbanized areas contiguous to Richmond, City schools
were at the same time being converted from white to black facilities
as established black neighborhoods expanded. During this period
such a policy and other practices as well produced obvious disincentives
for blacks looking to relocate in the suburbs: while building new
schools for whites, both Henrico and Chesterfield even in the mid-to-
late 1960’s were operating small inadequate black schools which were
demonstratively inferior, see pp. 37-38, 43 supra; through June of
1969, Henrico was operating an all-black secondary school in its north
ern sector which necessitated the transportation of blacks, some for
substantial distances, from all parts of the County (A. 587-88; Pet. A.
389); through June of 1970, Chesterfield maintained an all-black
secondary facility whose attendance zone likewise was comprised of the
entire County (A. 492; Pet. A. 383) ; and the housing and employment
available for blacks in each of the Counties was severely limited, see
pp. 39-40, 43-44 supra.
Such conditions were no doubt recognized by the County-retained
consultants, see p. 19 supra, who in their initial report submitted on
June 1, 1967, found that “. . . the attitudes and practices of the
counties and their residents . . . contributed to the high and growing
percentage of Negroes in the central city” (RX-47, 1-3; Ex. A.
36).
47
area to become segregated by a process of white withdrawal
and black occupation (Pet. A. 230). These factors together
with forces containing blacks in the City, were found to
have produced a community school system divided into ra
cially identifiable sectors by political boundaries (Pet. A.
230). In discussing the rapid progression of racial dispro
portion between the City and each of the County systems,
Judge Merhige found that the desegregation of Richmond
as well as Henrico and Chesterfield schools could not be
achieved within the current school division boundaries owing
in substantial part to the long and continued deferral of
plaintiffs’ constitutional rights which had been deliberately
practiced on the part of the appropriate State and local au
thorities (Pet. A. 207).
5. Desegregation Plan Approved By District Court
When it initiated the metropolitan phase of this case, the
Richmond School Board advised that it was preparing a
desegregation plan for all schools in the Richmond metro
politan area. The amended complaint filed by the plaintiffs
pursuant to the lower court’s order of December 5, 1970,
included a specific request that the district court require all
defendants to prepare and submit a desegregation plan for
the combined divisions as well as a prayer for relief through
the consolidation of the three systems, or alternatively,
through a contractual exchange of pupils between the sepa
rate divisions. See p. 9 supra. In spite of ample oppor
tunity however, none of the State and County defendants
suggested any desegregation plan in lieu of the one developed
by the City school authorities49 (Pet. A. 359). The Richmond
49 As early as April of 1971, in an attempt to avoid delays in the
event the plan proposed by the Richmond School Board were ulti
mately approved, the district court advised the State and County de
fendants to confer with the City school administration for purposes of
48
School Board’s metropolitan desegregation plan was thus the
only one before the district court at the time of its decision.50
The plan itself embodied most of the tools of desegrega
tion specifically approved by this Court in Swann v. Char-
lotte-Mecklenburg Board, of Education, 402 U.S. 1 (1971)
[hereinafter cited as Swann}. The plan envisioned the con
solidation of the Richmond, Henrico and Chesterfield school
divisions into a single entity which would be administered
and operated by a centralized school authority pursuant to
provisions of State law many of which have existed at least
since 195451 (Pet. A. 430).
resolving problems incident to the implementation of the metropolitan
desegregation plan which City authorities were then preparing (A.
136-42). During the trial in the lower court, however, it became
apparent that neither the State nor County defendants had expended
any effort or time in suggesting improvements to the plan or in de
veloping any alternative proposals (A. 1009-11). It was not until after
the record in this matter had been transmitted to the court of appeals
that the State and County defendants in applying for a stay in that
court suggested an alternative method of assignment involving a con
tractual exchange of pupils between the three school divisions (A.
1346-48).
60 At the time of his decision, Judge Merhige made it clear that
he stood “. . . ready at any time to consider any proposed modifica
tions to the plan to be approved” (Pet. A. 519). He further stated
in his order that the State defendants could submit “. . . any . . .
modifications, changes or recommendations, as may be desired . .”
(Pet. A. 541).
51 Under laws in effect prior to July 1, 1971, at which time the
revised constitution of Virginia and its implementing legislation be
came effective, the State Board of Education had the unfettered
power to create school divisions comprised of more than one political
subdivision (§ 22-30; Pet. A. 607). The effect of this action alone
would have been to place two or more divisions under one superin
tendent for administrative purposes, with each of the divisions re
taining a separate school board (A. 943). Had the Richmond,
Henrico and Chesterfield school divisions been so combined, the
Superintendent of Chesterfield schools admitted in the trial below
that the extreme disparities in the student racial compositions as
between the City and County components would have likely neces
sitated some form of remedial action (A. 494-95).
49
During the pendency of the proceedings below, however, the statu
tory provision was amended so as to restrict the previous power of the
State Board of Education to divide the State into school divisions
comprised of more than one political subdivision (A. 941-43, 949). An
official of the State Department of Education admitted that the
legislature was no doubt conscious that the amendment might have
an effect on this case (A. 942). The State Board, acting pursuant
to the new statute, in fact, redrew all school division lines in the
State as of July 1, 1971 (RX-83; R. Tr. F-150; Ex. A. 67; Pet. A.
280-81).
Now under the current law, the State Board of Education may
act only upon the request of the school boards with the concurrence
of the governing bodies of the affected school divisions in consolidating
or otherwise altering such divisions (§ 22-30; Pet. A. 617). Where a
single school division comprising more than one political subdivision
has been created in this manner, the supervision of such a division
must be vested in a single school board and a division superintendent
selected by that board (§§ 22-100.1, -32; Pet. A. 617-18). Current
State law also requires adherence to a definitive scheme of school
board representation and administration and operation of a school
division composed of more than one political subdivision. Specific
provisions govern:
(1) the composition, appointment and terms of members of a
school board of a division composed of two or more political
subdivisions (§ 22-100.3; Pet. A. 618) ; (2) the qualification and
duties of the consolidated division board members (§ 22-100.4;
Pet. A. 610) ; (3) The corporate status of such a board and its
general powers (§ 22-100.5; Pet. A. 610) ; (4) the compensation
of the board members (§ 22-100.6; Pet. A. 620); (5) the
transfer of title to school property (§ 22-100.7; Pet. A. 620);
(6) the State Board’s responsibility for promulgating rules and
regulations for the financial plan of operation of the consolidated
division schools (§ 22-100.8; Pet. A. 611); (7) the formula for
the allocation of operating costs, capital outlay and the incurring
of indebtedness for school construction (§ 22-100.9; Pet. A.
621) ; (8) the designation of the fiscal agent for the consolidated
division (§ 22-100.10; Pet. A. 612); and (9) the effective date
for the formation of the board and its assumption of the super
vision and operation of all schools within the consolidated divi
sion (§ 22-100.11; Pet. A. 612).
With the exception of the statute requiring local initiative and con
sent, the district court in its January 10, 1972 order specifically di
rected that the creation and operation of the single school division
consisting of the City of Richmond and the Counties of Henrico and
Chesterfield be accomplished in conformity with these provisions of
Virginia law (Pet. A. 538-40).
Current Virginia school laws contain no affirmative requirement
that a school division conform to political subdivision boundaries.
50
Under the Richmond metropolitan desegregation plan,
the entire area would be divided into six geographical sub
divisions (A. 197; RX-64; Ex. A. 27) each with a stu
dent population varying from approximately 17,000 to
20,00052 (Pet. A. 430, 432). Certain administrative and cur
riculum decisions would be delegated to a separate board
for each subdivision (A. 197; Pet. A. 430).
The plan would eliminate all one-race schools in the
Richmond metropolitan area with resulting racial composi
tions ranging from 17 to 40 per cent black. No school in
the Richmond, Henrico and Chesterfield division would have
a racial composition substantially disproportionate to the
over-all composition of the area-wide school population (65
per cent white and 35 per cent black). As a starting point
in the development of the metropolitan plan, the Richmond
School Board utilized this over-all ratio in attempting to
formulate an effective remedy.* 63 Evidence tendered during
52 The exception to this general configuration is subdivision 6 which
is comprised of the southern portion of Chesterfield County, a rela
tively sparsely populated area containing approximately 9,000 stu
dents (A. 205; RX-64; Ex. A. 27; Pet. A. 419). Concerning the
over-all size of the consolidated school division as well as the ap
proximately 104,000 pupils (1971-72 total enrollment in the three
subdivisions was 101,318 [Pet. A. 417-18]) it would contain, Judge
Winter noted that Virginia had six school divisions each encompassing
more than 700 square miles, as well as another school division, Fairfax
County, which enrolled oyer 135,000 students, or over 30,000 more
than would be enrolled in the proposed Richmond, Henrico and
Chesterfield school division (Pet. A. 600, n. 16).
63 This Court has approved of the use of such techniques on the
part of school authorities. Swann, 402 U.S. at 24-25; North Carolina
State Bd. of Educ. v. Swann, 402 U.S. 43, 46 (1971).
Also, Congress has found the use of such area-wide proportions
to be of assistance in determining the effectiveness of urban school
desegregation. Under the “Emergency School Aid Act”, 20 U.S.C.A.
§§ 1601-19 (Supp. Oct. 1972) which became effective on June 23,
1972, emphasis was directed toward the alleviation of “minority group
segregation and discrimination” particularly within the context of this
nation’s Standard Metropolitan Statistical Areas. E.g., 20 U.S.C.A. §§
51
the trial to establish the probable degree of stability and
ultimate effectiveness to be achieved under the proposed
plan was accepted by the lower ourt as demonstrating that
the racial compositions would be within what was described
by educators and sociologists as an “optimal range” (A. 242,
277-78, 374-75).
The district court, in referring to the ratios used by the
Richmond School Board, noted that variations might be un
avoidable, and further admonished all parties that it did not
intend to require a particular degree of racial balance or
mix (Pet. A. 519). Even though (1) the ratios used were
those of the City Board, (2) the Board’s plan was the only
one before the lower court, and (3) the district judge had
specifically stated his readiness to entertain proposed modifi
cations to the plan, as, for example, through the contractual
exchange of pupils in lieu of consolidation, the court of
appeals viewed the relief as imposing a fixed racial quota
and held that it was beyond the power of the district court
to impose any particular degree of racial balance as a matter
of substantive constitutional right (Pet. A. 570). The court
of appeals, in discussing the proposed racial composition of
the schools under the metropolitan plan, found, however,
that the evidence seemed to indicate its workability in prac
tice (Pet. A. 570). Judge Winter disagreed that the basis
for the relief was a desire on the part of the district court
to achieve as much racial balance as possible. In his view,
the lower court was within its equitable remedial discretion
under Swann in considering racial ratios as a part of the
relief decreed. Judge Winter found that the range of racial
ratios among the various subdivisions of the consolidated
1601, 1605 (a) (2) (A), (B), 1608. It is significant that Congress de
fined an “integrated school” in terms of minority enrollment con
stituting at least 50 per cent of the over-all minority student population
within the SMSA as a whole. 20 U.S.C.A. § 1619(6) (emphasis
added).
52
division, as well as among the various schools within the
subdivisions, was sufficient proof that the basis for the ma
jority’s opinion was without support (Pet. A. 602).
The substantial majority of students would attend a school
located within the particular subdivision wherein they re
side, and in no case would there be assignments between
non-contiguous subdivisions. Approximately 36,000 students
would be exchanged between the City system and the two
Counties, with about 1,000 more whites than blacks being
involved in this central city-suburban exchange (A. 232-33;
Pet. A. 423). No exchange is contemplated between stu
dents residing in the more rural portion of southern Chester
field (subdivision 6) and those in the City of Richmond (A.
205-06; Pet. A. 425-26).
Approximately 68,000 pupils were transported to school
by yellow buses by the three school divisions operating in
dependently during the 1971-72 school year (A. 233-34).
Under the metropolitan desegregation plan, approximately
78,000 students would be transported from home to school,
with 42,000 of these attending schools in their neighborhood
zone of residence (A. 232; Pet. A. 423).
Also, during the 1971-72 school year the three school di
visions operated a total of over 600 yellow buses, and of this
amount only 524 would be necessary to meet the transpor
tation requirements of the metropolitan plan (A. 236; Pet.
A. 424). Travel times and distances compare favorably with
those experienced presently in each of the three school di
visions independently (Pet. A. 422-24). During oral argu
ment in the court of appeals, the State and County defend
ants conceded, and that court later agreed, that this was not
a busing case (Pet. A. 563 n. 2).
The separate treatment accorded students living within
the large area composed of southern Chesterfield (sub
division 6) is indicative of the flexibility inherent in the
53
Richmond Board’s plan. Other factors likewise demonstrate
the ready adaptability of the plan: (1) the method of se
lecting the students for the central city-suburban exchange
could be varied to meet the exigencies of the particular situa
tion (A. 220-24, 1320-26) ; (2) the racial compositions of
the various schools would range from 17 to 40 per cent
black; and (3) there was trial testimony to the effect that
sound judgment and common sense in general, in lieu of any
inflexible criteria, would be utilized as the particular circum
stances might warrant (A. 205, 219, 1320-26).
SUMMARY OF ARGUMENT
The propriety of the exercise by a district court of its
remedial powers to enjoin the creation of new school division
lines where the effect thereof enhances a return to “black” or
“white” schools or would otherwise impede the disestablish
ment of a state-mandated dual system of schools has been
established by this Court in Wright v. Council of City of
Emporia,...U .S ..... , 92 S.Ct. 2196 (1972) [hereinafter cited
as Emporia] and United States v. Scotland Neck City Board
of Education,..... U. S......... , 92 S.Ct. 2214 (1972) [herein
after cited as Scotland Neck], Conversely, this case poses
questions relating to the extent to which existing school lines
can effectively thwart remedial efforts to eliminate the reality
of black schools surrounded by white schools within a single
metropolitan community.
Both the necessity for and the remedial techniques to be
utilized in the elimination of racially identifiable schools
within school systems consisting of a black core city and
white suburban areas have also been prescribed by this Court
in Swann and Davis v. Board of School Commissioners, 402
U.S. 33 (1971) [hereinafter cited as Davis]. One feature,
however, distinguishes the metropolitan areas of Charlotte
and Mobile from that of Richmond. Owing to a unique
54
method of political subdivision alignment employed in Vir
ginia, the center-city as a separate administrative unit for
school purposes is completely enveloped by the two sub
urban Counties which likewise operate separate school sys
tems. As an inevitable result of both this administrative ar
rangement and years of state and local discrimination, black
City children attend historically all-black schools which con
tinue to range from 70 to 90 per cent black surrounded by
but in isolation from thousands of suburban students attend
ing schools in two 90 per cent white school systems. The
social and economic unity pervasive in so many other phases
of life in the Richmond metropolitan community, however,
belies such a separation of the area’s school children.
In seeking to rectify the inequality inherent in the fore
going arrangement, both the Richmond School Board and
the plaintiffs herein requested the interdivisional assignment
of pupils as the essential method of desegregation envisioned
in both of the alternative forms of relief sought, i.e., the
consolidation of the three systems substantially in accord
ance with provisions of State law or a contractual exchange
of students between the separate divisions.
After finding that the racial identifiability of schools per
sisted in the Richmond metropolitan area and that “desegre
gation of the schools of the city and the counties as well
[could not] be achieved within the current school division
bounds” owing in substantial part to the deliberate deferral
by the State and local authorities of plaintiffs’ constitutional
rights (Pet. A. 207), the district court had a duty to con
sider all reasonable alternatives and to select that plan which
afforded the most realistic promise of working to insure the
elimination of all racially identifiable schools in the Rich
mond metropolitan area. The district court thus approved
the desegregation plan presented by the Richmond School
Board calling for the consolidation of the three metropolitan
55
area divisions substantially in accordance with existing pro
visions of State law as “a first, reasonable and feasible step
toward the eradication of the effects of past unlawful dis
crimination” (Pet. A. 239).
I .
It is submitted that the district court neither exceeded its
authority nor abused its discretion in ordering the imple
mentation of the metropolitan desegregation plan devised
by the Richmond School Board. A practical application of
the explicit remedial guidelines established by this Court to
largely uncontradicted evidence compels the conclusion that
the greatest amount of actual desegregation, the elimination
of racially identifiable schools and the abolition of segrega
tion and its effects can only be accomplished by the assign
ment of students across existing school division lines. A pro
fusion of State laws negates the existence of any State policy
to restrict school divisions to one political subdivision. More
over, the traditional disregard of existing school division
lines to meet educational needs and to perpetuate segrega
tion dispels any overriding State interest in restricting the as
signment of pupils to the political subdivision in which they
reside.
Even a cursory review of the variations among the several
states in the structuring of administrative units for the op
eration of schools exposes the untenable nature of and the
incongruity inherent in any judicial standard which regards
existing school boundaries as sacrosanct.
It is of the utmost significance that all that is required to
insure the complete removal of the racial identifiability of
schools in the Richmond metropolitan area is the employ
ment of measures and devices far less drastic than were
those seized upon by the State and local school authorities
in perpetuating illegal segregation for years after Brown I.
56
Since methods incorporated in the Richmond School Board’s
desegregation plan, e.g., the assignment of pupils across exist
ing school division lines and a legislatively conceived con
solidation of separate divisions, were used throughout this
State in open defiance of Brown I, it is inconceivable that the
equitable discretion of the district court can be restricted to
remedial techniques less extensive than those utilized to
establish and perpetuate the denial of equal educational
opportunity.
This record establishes a close interrelationship between
the rationale underlying the legal commands of Brown,
Green v. County School Board, 391 U.S. 430 (1968) [here
inafter cited as Green], Swann and Davis and traditional
educational goals. The crippling effects of segregation on the
perceptions and motivations of school children both formed
the basis for this Court’s conclusion that “black” schools and
“white” schools were inherently unequal and undergird one
of the classic goals in education,he., the development of at
titudes and values in the preparation of children for good
citizenship and effective participation in a biracial com
munity. From a view of the realities in the Richmond metro
politan area, however, it is all too apparent that from 1954
through the trial below, resistance to integration has pro
duced an incalculable degree of deliberate harm to many
thousands of children born subsequent to Brown I, has
drastically compounded the task of disestablishment and has
precluded the eradication of the evils of segregation which
cannot now be accomplished absent the interdivisional as
signment of the area’s students.
II.
While the foregoing circumstances are fully supportive of
the district court’s action, it is submitted that in a number
of crucial areas, the court of appeals utilized rationale which
57
is irreconcilable both with decisions of this Court and with
those of other federal courts in related cases.
In requiring, as a prerequisite to the relief decreed, a
demonstration of invidious purpose or racial motivation in
the establishment or maintenance of the existing school
boundaries, the appeals court employed a standard which has
been expressly rejected by this Court in Emporia and Scot
land Neck. Even if, as the court of appeals suggests, there
must have been a finding that racial considerations entered
into the continued maintenance of school division lines, the
district court properly drew such inferences based on a va
riety of evidence to which the appeals court apparently as
signed no importance.
More significantly, the standard espoused by the court of
appeals in sanctifying the existing school boundaries in the
Richmond metropolitan community exposes a complete dis
regard of the school desegregation guidelines previously
established by this Court. The application of such a standard
effectively emasculates the directives of Brown I, Brown II,
Green, Swann and Davis and would insure the preservation
of racially separate schools in the Richmond area for the
foreseeable future.
Furthermore, in reaching such a result, the court of ap
peals departed significantly from the established standard of
appellate review in school desegregation cases in making
new findings based on its own interpretation of the evidence
below.
Finally, it is clear that, unlike the court of appeals here,
other federal courts both prior and subsequent to the de
cisions of this court in Emporia and Scotland Neck have
used “effect-oriented” tests in determining the proper scope
of a district court’s remedial powers. Other fundamental
variances in approach as between the decision of this and
other courts of appeals in related cases are likewise demon
58
strative of the generally erroneous legal basis upon which it
reversed the decree of the lower court.
ARGUMENT
I.
The District Court Neither Exceeded Its Powers Nor Abused Its
Discretion In Approving A Desegregation Plan Involving The
Assignment Of Pupils Across Existing School Division Lines
A.
I n L ig h t O f T h e E vidence P r esen ted , T h e R el ie f D ecreed R e
su lted F rom A Sou nd A pplication O f T h e R em edial G uide
l in e s Previou sly E sta blish ed B y T h is C ourt
In recognition of the complexities involved in the
transition from state-mandated dual school systems to ones
free of the effects of racial discrimination, this Court in
1955 instructed the district courts to rely upon the breadth
and flexibility inherent in their equity jurisdiction in order
to mold effective relief:
In fashioning and effectuating the decrees, the courts
will be guided by equitable principles. Traditionally,
equity has been characterized by a practical flexibility
in shaping its remedies and by a facility for adjusting
and reconciling public and private needs. These cases
call for the exercise of these traditional attributes of
equity power---- To effectuate this interest may call
for elimination of a variety of obstacles in making the
transition to school systems operated in accordance" with
the constitutional principles set forth in [Brown /].
Courts of equity may properly take into account the
public interest in the elimination of such obstacles in a
systematic and effective manner. But it should go with
out saying that the vitality of these constitutional prin
ciples cannot be allowed to yield simply because of dis
agreement with them.
59
Brown II , 349 U.S. at 300 (footnotes omitted). At the same
time this Court also recognized that the revision of school
districts and attendance areas might well be required in
order to provide effective relief54 and in 1971 reiterated the
necessity for such action in appropriate cases:
[OJne of the principal tools employed by school planners
and by courts to break up the dual school system has
been a frank—and sometimes drastic—gerrymandering
of school districts and attendance zones. . . . More often
than not, these zones are neither compact nor contigu
ous ; indeed they may be on the opposite ends of the city.
As an interim corrective measure, this cannot be said
to be beyond the broad remedial powers of a court.
Swann, 402 U.S. at 27 (footnote omitted).
This Court again in Swann recognized the drastic nature
of the relief that might be required: “The remedy for such
segregation may be administratively awkward, inconveni
ent, and even bizarre in some situations and may impose
burdens on some; but all awkwardness and inconvenience
cannot be avoided in the interim period when remedial ad
justments are being made to eliminate the dual school
systems.” Swann, 402 U.S. at 28.
In both Green and Davis this Court made it abundantly
clear that district courts were required to consider all avail
able options and alternatives in selecting a plan of desegre
gation which realistically offered the greatest promise of
54 The Court, in addressing itself to the necessity for good faith
compliance with the mandates of Brown I at the earliest practicable
date, stated that
. . . courts may consider problems related to . . . revision of
school districts and attendance areas into compact units to
achieve a system of determining admission to the public schools
on a nonracial basis, and revision of local laws and regulations
which may be necessary in solving the . . . problems.
Brown II, 349 U.S. at 300-01.
60
effectively eliminating all vestiges of a dual school system.56
Though disavowing any constitutional right to racial bal
ance, this Court in both Swann and Davis reaffirmed that
the district court or school authorities should make every
effort to achieve “the greatest possible degree of actual de
segregation” and in the former case established that in a
historically segregated system a presumption arose against
any schools which were substantially disproportionate in their
racial composition.56
The cardinal guideline for school authorities and district
courts alike is to be found in the repeated assertions in Brown
II , Green, Swann and Davis that any proposed plan is to
be judged by its effectiveness through evaluation in practice,
and that new plans are required if in reality the objective
in achieving actual desegregation is not attained. As was
stated in Green:
[t]he obligation of the district courts, as it always has
been, is to assess the effectiveness of a proposed plan in
^ Green, 391 U.S. at 439; Davis, 402 U.S. at 37. Regarding the
techniques to be employed in the construction of equitable remedies
generally, this Court likewise has been clear in stating that the duty
of a court is to fashion a remedy which not only eradicates the effects
of past evils, but also insures the prevention of the continuation or
repetition of discriminatory practices in the future. Louisiana v
United States, 380 U.S. 145, 154, 156 (1965). That this doctrine is
particularly applicable in school desegregation cases is evidenced by
a parallel drawn in Green between techniques appropriate in remedy
ing illegal school segregation and those utilized in various antitrust
cases. Green, 391 U.S. at 438 n. 4. It should be noted that in the
area oi antitrust remedies, this Court has been careful to point out
that in order to be entitled to relief, the complaining party need only
show that the existing decree leaves a substantial likelihood that the
practice condemned has not been satisfactorily eliminated. United
States v. E. I. duPont DeNemours & Co., 366 U.S. 316, 331-32
(1961). It is thus reasonable to assume that this Court in determining
the appropriate scope of relief in a desegregation case, saw the need
for decrees which would not only insure the eradication of all the
vestiges of the past unlawful segregation, but also to the extent feasible
preclude the revival of such effects.
56 Swann, 402 U.S. at 26; Davis, 402 U.S. at 37.
61
achieving desegregation. There is no universal answer
to complex problems of desegregation; there is obvi
ously no one plan that will do the job in every case. The
matter must be assessed in light of the circumstances
present and the options available in each instance. I t is
incumbent upon the school board to establish that its
proposed plan promises meaningful and immediate
progress toward disestablishing state-imposed segrega
tion. It is incumbent upon the district court to weigh
that claim in light of the facts at hand and in light of
any alternatives which may be shown as feasible and
more promising in their effectiveness. Where the court
finds the board to be acting in good faith and the pro
posed plan to have real prospects for dismantling the
state-imposed dual system “at the earliest practicable
date,” then the plan may be said to provide effective
relief. Of course, the availability to the board of other
more promising courses of action may indicate a lack
of good faith; and at least it places a heavy burden
upon the board to explain its preference for an appar
ently less effective method. Moreover, whatever plan
is adopted will require evaluation in practice, and the
court should retain jurisdiction until it is clear that state-
imposed segregation has been completely removed. . . .
. . . As Judge Sobeloff has put it,
‘“ Freedom of choice’ is not a sacred talisman; it is
only a means to a constitutionally required end—
the abolition of the system of segregation and its ef
fects. If the means prove effective, it is acceptable,
but if it fails to undo segregation, other means must
be used to achieve this end. The school officials have
the continuing duty to take whatever action may be
necessary to create a ‘unitary, non-racial system.’ ” . . .
Green, 391 U.S. at 439-40 (citations omitted) (emphasis
added).
Since Brown II this Court has placed primarily reliance
on the district courts to formulate effective relief, recog-
62
nizing that their proximity to and familiarity with local
conditions places them in a better position to perform the
required judicial appraisal of the relative effectiveness of
proposed methods of relief.57 Significantly, this Court has
not found that any district court has exceeded the breadth
and scope of its remedial powers in fashioning meaningful
relief from the invidious effects of school segregation. Nor
has this Court held any school system to be unitary in the
face of a viable, feasible alternative holding greater promise
for the attainment of the desired objective.
In this case the district court predicated the relief decreed
on the foregoing remedial guidelines calling for the elimina
tion of all vestiges of a system of dual schools by the most
effective alternative or plan available under the facts and
circumstances presented.58 In the judgment of the lower
court, these mandates required it to consider the totality of
a myriad of factual circumstances fully established by largely
uncontradicted evidence; and in this perspective, a number
of these factors, the most significant of which are discussed
below, led the district court to conclude that its remedial
powers were not restricted by the existing school division
lines.
1.
Interdependence Between Richmond, Henrico and Chesterfield and
the Inevitable Effects of Such Mutual Dependency on Community
and Student Perceptions
The evidence established, in the judgment of the district
court, the conclusions reached by all independent consultants
who had studied the three political subdivisions involved,
i.e., the existence of a strong economic, cultural and social 67
67 See, e.g.j Brown II, 349 U.S. at 299; Swann, 402 U.S. at 28;
Emporia, 92 S.Ct. at 2205.
58 See note 11 supra.
63
interdependence and community of interest between the City
of Richmond and the Counties of Henrico and Chesterfield,
the lack of any distinctive geographical features dividing the
three jurisdictions, and, indeed, the artificial, confusing and
transitional nature of the boundaries which do exist (Pet. A.
402-16).
Expert testimony from southern educators59 as well as the
district court’s own intimate knowledge of local conditions
led it to conclude that even though students attending schools
in the Richmond metropolitan community would prepare
for citizenship and pursue their vocational, cultural and so
cial goals in a community with a historically stable racial
composition of approximately two-thirds white and one-third
black, that, absent assignments across the existing school
division lines, these school children would be attending
identifiably black schools in the City and white schools in
the two surrounding Counties (Pet. A. 436, 469-74). The
district court accepted the detailed reasons given by these
experts as to why the invidious effects of segregation on
student perceptions and motivations could not be eradicated
in the Richmond metropolitan community without the as
signment of pupils across the existing school division lines
(Pet. A. 477-78).
This established interdependence thus serves to accentuate
the reasonableness of assigning students throughout the
metropolitan area since, in the words of one educational
expert, they would be “living [a] lie” if otherwise confined
to schools with racial compositions grossly disproportionate
to that of the over-all community (A. 375). Additionally,
when this mutual dependency is viewed in terms of such
practices as the failure of either County to permit low cost
housing or their discriminatory hiring policies regarding
59 See pp. 84-86 infra.
64
public jobs, it becomes quite clear that the effects of such
policies can and have caused an impact beyond the confines
of any one of the jurisdictions in the Richmond metropolitan
area.
2.
Proof Establishing Lack of Overriding Interest in Maintaining Existing
School Division Lines or in Limiting the Assignment of Pupils to
Schools Within the Political Subdivision Where They Reside
The district court s finding that there was no overriding
State interest in the maintenance of existing school division
lines as inviolate was rooted in proof of the history of previ
ous treatment of these boundaries on the part of the State
and local school authorities and the abundance of State law
and policies permitting and encouraging both the creation
of school divisions consisting of more than one political sub
division and interdivisional student assignments.
A plethora of evidence showed the State’s complete dis
regard of both political subdivision and school division lines
with respect to the assignment of pupils in establishing, main
taining and perpetuating segregation for many years after
Brown I (Pet. A. 193-95, 352-56, 360-64). Existing school
division and political boundaries served as no impediment
to the creation and State funding of regional schools for
blacks consisting of as many as five separate political sub
divisions and comprising areas as large as 1,700 square miles,
one of which was operated as late as 1968 (RX-86; R. Tr.
G-l 13; Ex. A. 79; Pet. A. 352-56).
As a part of its policy of maintaining segregated schools,
the State in 1960 by statute encouraged interdivisional as
signments of pupils:
The General Assembly, mindful of the need for a liter
ate and informed citizenry, and being desirous of ad
vancing the cause of education generally, hereby de
clares that it is the policy of this Commonwealth to
65
encourage the education of all of the children of Vir
ginia. In furtherance of this objective, and to afford
each individual freedom in choosing public or private
schooling, the General Assembly finds that it is desir
able and in the public interest that scholarships should
be provided from the public funds of the State for the
education of the children in nonsectarian private schools
in or outside, and in public schools located outside, the
locality where the children reside; and that [the locali
ties] . . . should be authorized to levy taxes and appro
priate public funds to provide for such scholarships.60
Thus with express State encouragement all the defendant
school authorities participated in the assignment of pupils
across political and school boundary lines throughout the pe
riod of tuition grants and pupil scholarships (Pet. A. 328-31),
and such lines were similarly disregarded when, to perpetu
ate segregation, blacks were transported to other school
divisions, and, indeed, across State boundaries as well to all
black schools (Pet. A. 330-31, 360-64).
The district court found that neither assignments across
existing school division lines nor consolidation, though en
couraged for many valid and invalid purposes in the past,
had ever been utilized or considered as tools to facilitate the
disestablishment of the statewide system of dual schools
(Pet. A. 218-19, 278, 281-83).
As early as 1944, the State Board of Education had looked
with favor on a long-range plan having as its objective ap
proximately a 50 per cent reduction in the total number of
school divisions which necessarily would have required the
60 Va. Code Ann., § 22-115.29 (Repl. Vol. 1969) (emphasis added).
Although this and accompanying laws regarding the use of tuition
grants and pupil scholarships to perpetuate illegal school segregation
were declared unconstitutional in Griffin v. State Bd. of Educ., 296
F.Supp. 1178 (E.D. Va. 1969), the quoted statute has never been
expressly repealed by the State legislature. The pupil scholarship pro
gram was not officially terminated until June 30, 1970 (Pet. A. 328).
66
disregard of many of the existing school division lines then
coterminous with political subdivision lines as well as the
grouping of then existing separate political subdivisions into
single school divisions (Pet. A. 271). In fact, minutes of a
1969 meeting of the State Board reflected its viewpoint re
garding consolidation of smaller school divisions as follows:
The State Board . . . has favored in principle the con
solidation of school divisions with the view to creating
administrative units appropriate to modern educational
needs. The Board regrets the trend to the contrary, pur
suant to which some counties and newly formed cities
have sought separate divisional status based on political
boundary lines which do not necessarily conform to edu
cational needs.
(RX-82, 20; R. Tr. F-127, 138-39; Ex. A. 63) (emphasis
added).
The district court further predicated its conclusions as to
the lack of any compelling interest in maintaining existing
school division lines on the existence of a State statute which
for many years had given unfettered discretion to the State
Board of Education to divide the State into school divisions
consisting of more than one political subdivision,61 other
sections of State law enacted in 1954 detailing the method
of operation of school divisions consisting of more than one
political subdivision,62 and another provision which expressly
61 Va. Code Ann., § 22-30 (Repl. Vol. 1969) (Pet. A. 607). Dur
ing the pendency of the proceedings below, however, a new statute
became operative which divested the State Board of the power to act
alone in so dividing the States’ school divisions. Va. Code Ann.,
§ 22-30, as amended (Cum. Supp. 1972) (Pet. A. 617). See note 51
supra.
62 Va. Code Ann., §§ 22-100.1, -100.12 (Repl. Vol. 1969) (Pet. A.
608-13). Slight amendments to these provisions pursuant to the July
1, 1971 constitutional revision failed to alter the substance of the 1954
statutes. See Va. Code Ann., §§ 22-100.1, -100.3 through -100.11
(Cum. Supp. 1972) (Pet. A. 618-21); see also note 51 supra.
67
authorized the operation of joint schools by separate political
subdivisions in accordance with rules and regulations promul
gated by the State Board of Education63 (Pet. A. 355).
The lower court’s conclusion that existing lines were not
inviolate was further supported by an abundance of expert
testimony that as applied to the Richmond metropolitan
area, the existing school division lines served no educational
purpose, rendered effective desegregation impossible, and
that the continued maintenance thereof would result in the
denial of equal educational opportunity in the Richmond
metropolitan area64 (Pet. A. 231, 258, 469-78).
3.
The Further Entrenchment of the Dual School System and the
Containment of Blacks Since Brown I
It was not until 1970, sixteen years after Brown /, that
the first significant effort was made to disestablish the state-
mandated dual school system in Richmond, Virginia. This
period from 1954-1970 saw the further entrenchment of the
dual school systems in each of the three political subdivisions
with the long range debilitating effects attendant thereto
resulting in large measure from the overt defiance to the
mandates of Brown I and Brown II, the continuing discrimi
nation at the federal, state and local levels in housing and
other areas, and the concentration within the City of all
public and rent subsidized housing occupied overwhelmingly
by blacks.
As the district court found, the effect of the operation of
small inferior all-black schools in the Counties through the
late 1960’s, the refusal of the Counties to authorize and per-
63 Va. Code Ann., § 22-7 (Repl. Vol. 1969) (Pet. A. 607). The
State Board minutes of May, 1946, reflect a detailed set of regula
tions developed for the operation of joint schools by counties and
cities (RX-82, 4-7; Ex. A. 57).
84 See pp. 84-86 infra.
68
mit low cost housing within their boundaries, and their
blatant discrimination in public employment, had the fore
seeable consequence of deterring the movement of blacks
to the Counties (Pet. A. 195-211, 380-82, 392). School site
selection and construction through the 1970-71 school year
corresponded to and was superimposed upon the segregated
residential housing patterns within the three localities as a
result of the school authorities’ continued adherence to
neighborhood zoning irrespective of its effects on the process
of desegregation65 (Pet. A. 203-11).
4.
Accentuation of the Gross Racial Disparities Since 1954 Attributable
In Part to State and Local Discrimination Through 1971
During the sixteen-year period from 1954 to 1970, charac
terized by the continuous utilization of practices designed
to frustrate the process of school desegregation, the student
racial composition of the City system changed from 56 per
cent white to 66 per cent black, notwithstanding the 1970
annexation which produced an influx of more than 8,000
students, 97 per cent of whom were white. Over the same
period of time, the student racial compositions of the rapidly
growing contiguous suburban communities of Chesterfield
and Henrico had changed from 20 and 10 per cent black
respectively to 9 and 8 per cent black. The number of black
students in the City had increased from 15,000 to 30,000
with the result that 85 per cent of the blacks in the Rich
mond metropolitan area attended schools in the City. The
combined racial composition within the three school divi
sions, however, had varied less than one-tenth of one per
cent in the decade from 1960 to 1970.
The district court found that discriminatory practices and
policies in education, housing and employment had facili
65 See pp. 44-47 and note 48 supra.
69
tated the further entrenchment of the dual school systems,
had contributed in part to the acceleration of the racial
disparities between the City and County systems, and had
rendered the process of disestablishment more difficult66
(Pet. A. 212-22, 237, 478-514).
5.
Failure of the Three School Divisions Involved to Establish
Unitary Systems by June, 1971
The open hostility of the County school authorities to any
integration and the continued operation by all three school
systems of black and white schools clearly identifiable as such
by reference to student population and/or faculty member
ship through the school year 1970-71 has been summarized
previously at pp. 37-43 supra. Thus, at the time of the hear
ings below all three systems were in the process of imple
menting either court-ordered or HEW-induced plans of de
segregation—required as a result of their persistent denial
of equal educational opportunity and, like other recent cases
presented to this Court,67 a condition justifying the continued
exercise of the district court’s remedial power.
6 .
White Attrition in City Schools and the
Foreseeable Effects Thereof
The first significant attempt to desegregate Richmond
schools occurred in the 1970-71 school year with the imple
mentation of the “Interim Plan” which was accompanied
by an exodus of more than 3,000 or 15 per cent of the City’s
total white student population. This loss represented a 300
66 This conclusion on the part of the district judge is quoted more
fully at p. 35 supra.
67 E.g., Emporia, 92 S.Ct. 2196; Scotland Neck, 92 S.Ct. 2214;
Swann, 402 U.S. 1.
70
per cent increase in white attrition over previous years.
Twelve months later the desegregation plan modeled upon
the principles enunciated in Swann produced another exodus
of more than 3,000 white students. Thus, Richmond sus
tained a loss of more than a third of its white students within
a 12-month period involving two school openings.
The district judge concluded that this massive withdrawal
from the City system foreshadowed an all-black system
within the foreseeable future and that the process of in
creasing polarization was immeasurably facilitated by the
existence of the two virtually all-white school systems sur
rounding the City (Pet. A. 207-10). Judge Merhige thus
concluded that effective relief could not be afforded within
the limits of the City of Richmond and that the assignment
of pupils across the existing school division lines was essential
to the complete disestablishment of the state-mandated and
perpetuated dual school system (Pet. A. 201). These con
clusions were amply supported by expert testimony predicting
the utter frustration of the promises of Brown I and the cer
tainty that black students for the foreseeable future could
only look forward to attending substantially all-black City
schools ringed by virtually all-white suburban schools68 (Pet
A. 469-78).
7.
The Presentation of a Desegregation Plan Promising Realistically
to Eliminate All Vestiges of the Dual School System
Both the Richmond School Board’s motion to compel
joinder of parties needed for just adjudication and the plain
tiffs’ amended complaint envisioned a metropolitan desegre
gation plan wherein assignments of pupils would not be re
stricted by the existing school division lines. The plaintiffs
sought relief by either the merger of the Richmond, Henrico
See pp. 84-86 infra.
71
and Chesterfield school divisions or through the develop
ment of a court-approved plan for the exchange of pupils
between the three separate divisions.
The State and County defendants failed to offer any
proposed modifications or alterations to the plan submitted
by the City School Board nor did they submit any other
plans despite adequate time and invitations to do so from
the district court and the Richmond Board as well. The
district court’s order of January 10, 1972, which gave rise
to this petition provides the State defendants with an abiding
opportunity to seek modifications and alterations to the ap
proved plan (Pet. A. 541).
Significant features of the metropolitan desegregation plan
have been detailed previously at pp. 47-53 supra. The lower
court found the plan to be educationally sound and its imple
mentation reasonable, feasible and workable (Pet. A. 428,
432). The district judge, based on evidence presented, con
cluded that the metropolitan plan offered vastly superior
prospects for effective relief in that it would insure: (1) the
eradication of all vestiges of the dual system of schools
through the removal of the racial identifiability of all fa
cilities in the Richmond metropolitan area; (2) the aboli
tion of the County systems as white havens facilitating the
further resegregation of Richmond schools; and (3) the
elimination of the extreme racial disparities between the
City and County systems (Pet. A. 239-40, 418-35).
Further buttressing these findings was the testimony of
southern educators who, based on their substantial experi
ence in desegregation efforts, were convinced that the plan
would provide long-range stability (A. 243, 381, 432). In
light of the static racial composition of students attending
Richmond, Henrico and Chesterfield schools (from 1960 to
1970, the combined systems had been approximately 65 per
cent white and 35 per cent black), these witnesses reaffirmed
72
the educational advantages in achieving a racial composition
within each school which would not be substantially dispro
portionate to the racial composition of the entire school
community (A. 242-43, 373-77, 432-34). They endorsed
the preliminary estimates of variances in each school rang
ing from 17 to 40 per cent black as accomplishing this objec
tive. Testimony from an eminent sociologist who specialized
in race relations indicated that the suggested range approxi
mated the optimal racial compositions which have produced
the most effective integration.69
Sum m ary
Under the remedial guidelines established by this Court,
the district court clearly had the following duties: (1) to
consider all available options and alternatives designed to
69 In testifying as to the general characteristics of meaningful in
tegration in public education, this witness further explained the inter
relationship between over-all percentages of black student enrollment
and participation in the various activities of any particular school
(A. 273-74). His conclusions as to effective integration were supported
by a Chesterfield exhibit which, although introduced for a different
purpose graphically illustrated the educational advantages of meaning
ful integration as opposed to racial sprinkling or isolation. The general
extra-curricular activities for six Chesterfield high schools were listed
showing participation therein by race. The racial composition of the
schools ranged from 3 per cent to 44 per cent black. Increasing levels
of black student enrollment revealed a corresponding rise in the num
ber of integrated activities as follows:
Black
Number of
Integrated
Extra-Curricular
School Enrollment Activities
Meadowbrook 3% 11 of 38
Manchester 5% 14 of 24
Midlothian 7% 18 of 28
Thomas Dale 11% 30 of 37
Grange Hall 34% 10 of 13
Matoaca 44% 13 of 13
(CX-32; A. 1025; Ex. A. 131).
73
eliminate all vestiges of the area's dual school system which,
of course, included the plan submitted by the Richmond
School Board; (2) to weigh the relative effectiveness of
desegregation efforts then under way in the City and Coun
ties as against the greater promises inherent in the Rich
mond School Board’s plan; and (3) to select the alternative
providing for the greatest amount of actual desegregation
and offering the most realistic chance of working in actual
operation. Considering these duties in light of the diverse
factual circumstances noted above which attested to the
soundness of the proposed metropolitan desegregation plan,
it is abundantly clear that the district court was compelled
to order the relief ultimately decreed.
B.
T h e E ffe c tiv en ess O f R el ie f I n D e J ure M etropolitan A reas
S h o u ld N ot Be M ade D epe n d e n t U po n T h e M a n n er I n
W h ic h A State H as Elected T o Alig n I ts L ocal School
D ivisions
As noted previously, considerable variances exist among
the several states with respect to school division alignments.
In Virginia, North Carolina and Alabama, states with a
history of state-mandated systems of segregated public
schools, there is no uniformity in the interrelationship be
tween school division and political subdivision lines.70 In
70 In other de jure states, school district lines do not necessarily
coincide with political subdivision boundaries. See, e.g., United States
v. Texas, 321 F.Supp. 1043 (E.D. Tex. 1970), aff’d, 447 F.2d 441
(5th Cir. 1971), cert, denied, ..... U.S......92 S.Ct. 675 (1972);
Haney v. County Bd. of Educ., 410 F.2d 920 (8th Cir. 1969). Nor do
school boundaries conform to political subdivision lines in other areas
currently involved in school desegregation litigation. See, e.g., Bradley
v. Milliken, Nos. 72-1809, -1814 (6th Cir., Dec. 8, 1972), vacated for
rehearing en banc, (Jan. 16, 1973) ; United States v. Board of School
Comm’rs. of City of Indianapolis,. 332 F.Supp. 655 (S.D. Ind. 1971),
aff’d, No. 72-1031 (7th Cir., decided Feb. 1, 1973).
74
Charlotte, North Carolina, and Mobile, Alabama, each re
spective school district includes the urban core city along
with the surrounding suburban county. The cities themselves
are but a part of a larger political subdivision which en
compasses the entire metropolitan area involved. On the
other hand, Virginia is unique in that Richmond and, indeed,
all of its cities are separate political subdivisions which under
State law have the right to operate separate school systems.71
In all three cities mentioned, the overwhelming percent
age of black citizens live within the city limits ringed by
substantially all-white suburban areas.
In upholding the district court in Swann, this Court ap
proved a desegregation plan projecting a racial composition
under which substantially all schools in the Charlotte-
Mecklenburg metropolitan area would range from 9 to 38
per cent black. Swann, 402 U.S. at 9-11. In Davis, this
Court rejected attempts by Mobile school authorities to rely
upon a natural geographical barrier as a means of effectively
confining the majority of black students in that metropolitan
area to substantially all-black schools in the core city. In
both Charlotte and Mobile, the racial compositions of indi
vidual schools now bear a reasonable relationship to the
over-all racial composition of the entire metropolitan school
population.
In the Richmond metropolitan community, however, 85
per cent of all the black students are presently confined to
71 This States’ internal arrangement of its political subdivisions is un
usual for instance, in that a single county may completely surround a
separate city, see, e.g,. Emporia, 92 S.Ct. 2196, or a single metropolitan
area may be subdivided into multiple political jurisdictions as is the
case here where the City of Richmond is completely surrounded by
the two separate counties of Henrico and Chesterfield.
Furthermore, as this Court has noted, the independent political sub
divisions in Virginia have a right under state law to operate their own
school systems. Emporia, 92 S.Ct. at 2199 n. 5, citing Va. Code Ann.,
§ 22-93 (Repl. Vol. 1969) (case citation omitted).
75
schools within the City system ringed as it is by the two
County systems each of which is more than 90 per cent white.
The district court found that, viewed in its metropolitan
setting, the Richmond school system was clearly identifiable
as black and those of Henrico and Chesterfield as white (Pet.
A. 201), and that additional white attrition from the Rich
mond system facilitated by the close proximity of the substan
tially all-white County systems could reasonably be antici
pated (Pet. A. 209-10).
Though conceding that the evidence indicated the worka
bility of the racial compositions envisioned in the City
School Board’s metropolitan desegregation plan (Pet. A.
570), the court of appeals nevertheless held that in its con
cern for effective relief, the district court had exceeded its
powers in ordering the implementation of the plan in the
absence of a specific finding of invidious racial motive or in
tent in the establishment or maintenance of the existing
school division lines (Pet. A. 580-81). Absent such findings,
the court of appeals held in effect that the tenth amendment
permitted Virginia to adhere to its particular scheme of
school division alignment even though a more effective plan
for the elimination of all the vestiges of the dual system of
schools in the Richmond metropolitan area was thereby pre
cluded.
In having thus sanctioned the maintenance of virtually all
black and all-white school systems in the Richmond metro
politan community with its history of de jure segregation in
public education, the court of appeals has implicitly ap
proved less effective relief based solely on the manner in
which this State has chosen to align its school divisions. Be
cause, in that court’s view, school boundary lines must con
form to the three political subdivisions in the Richmond
metropolitan area, patterns of school segregation, racially
identifiable schools and inherent educational inequalities
76
eliminated in the Charlotte and Mobile metropolitan areas
are allowed to persist in this community.
Thus, the marked polarization of black and white children
attending schools in the Richmond metropolitan area serves
as the antithesis of the effective integration which, owing to
the implementation of school desegregation plans approved
by this Court, enjoys current vitality in similar metropolitan
areas. This bizarre result stems from a sanctity accorded
existing state-created lines not permitted in cases where other
fourteenth and fifteenth amendment rights have been in
volved.72
The constitutional basis commending the rationale em
ployed by the court of appeals thus must be questioned.
Clearly the application of the tenth amendment fails to jus
tify such a result; instead, in severely limiting the district
court’s remedial powers, it serves only as a resurrection of
echos from the past when it was unsuccessfully invoked by
the State of Virginia as a basis for interposition as well as
a host of other laws and policies used in flouting Brown I.
Though the state is the relevant unit of equality under the
fourteenth amendment, the degree of effectiveness of relief
within a particular geographical area of a state should rest
upon the feasibility of viable alternatives available and not
upon the happenstance of variances in school division align
ment.
Contrary to the view of the court of appeals, it was not
asked to compel one of the states to restructure its internal
government for the purpose of achieving racial balance (Pet.
72 This Court has steadfastly refused to allow political subdivision
or any other state-created lines to control the effective exercise of
fundamental constitutional rights unrelated to school desegregation.
E.g., Reynolds v. Sims, 377 U.S. 533 (1964) (legislative district lines) ;
Wesberry v. Sanders, 376 U.S. 1 (1964) (congressional district lines) ;
Gomillion v. Lightfoot, 364 U.S. 339 (1960) (political subdivision
lines).
77
A. 562). No party has asserted any constitutional right to
racial balance; rather it is the right, to the extent feasible,
to effective relief from the invidious and persistent denial of
equal educational opportunity which prompted the relief
decreed in the district court. Certainly it is neither unfair
nor unreasonable to require those who perpetuated the
wrong to implement a plan of feasible relief which the lower
court found to offer the only realistic promise for success
in effectively eliminating the racial identifiability of all
Richmond area schools through the removal of all vestiges
of the dual school system. The extensive variances in school
division alignment throughout the several states not only
establish that no one form is crucial, but also demonstrate
the incongruity inherent in regarding such lines as a limita
tion on the equitable remedial discretion of the district courts.
Since the statewide system of dual schools was the evil
struck down in Brown I, it would indeed be ironical if one
of the guilty and recalcitrant states could in fact effectively
segregate thousands of its black school children owing to a
fortuitous alignment of school divisions regardless of the
existence of feasible and viable alternatives.
C.
J u stic e R equires T h a t T h e M ea n s O f D ise st a b l ish m e n t Sh o uld
Be A t L ea st C oextensive W it h T h o s e U sed T o E sta blish
A nd Per petu a te T h e Statew ide Sy stem O f D ual Sch o o ls
A major portion of the proceedings below consisted of the
extensive development by largely uncontradicted evidence
of the practices and methods utilized by the State and local
school authorities in both the establishment and the post-
Brown I perpetuation of a dual system of schools, and of
their reluctant and incomplete efforts in eradicating the
vestiges thereof up to the time of the hearings below. All
of the devices and means, both ingenious and ingenuous,
78
employed in vain, yet harmful attempts to defy, circumvent
and delay the realization of the promises of Brown I and
Brown I I were detailed in full. Accordingly, this evidence
and its own considerable experience in school desegregation
cases in Virginia compelled the district court to reject the
pleas of the State and County defendants concerning this
State’s allegedly historical tradition of local autonomy in
school operations, and their opposition to assignments across
existing school boundaries and to the consolidation of the
three school divisions.78
During this all too recent period, the State, for the pur
pose of perpetuating segregation, not only without objection
but with the encouragement of the Counties, assumed all
control over the assignment of pupils and, in some instances,
the complete operation of local public schools—which at
tributes are now alleged to be the hallmarks of the so-called
historical tradition of local autonomy in the operation of Vir
ginia’s public schools ((Pet. A. 575-76). For decades the
State encouraged consolidation of separate school divisions
and the operation of joint schools for all educational objec
tives, save desegregation. Years ago the Virginia legislature
established a detailed framework for the operation of school
divisions consisting of more than one political subdivision,73 74
though obviously with no view of utilizing this procedure as
a tool in the dismantling of dual school systems.
The State with the concurrence of local school authorities
employed principles of consolidation in establishing regional
schools for blacks which operated as late as 1968, and many
local school boards including the defendants herein for many
73 The district court also made specific findings regarding the racial
hostility which underlay the opposition to the use of such obvious
techniques on the part of the State and County officials (Pet. A. 212,
230-31). See pp. 97-100 infra.
74 See note 51 supra.
79
years engaged in the joint operation of special educational
facilities which of necessity required the daily crossing of the
existing school division lines; however, neither the State nor
local school authorities have ever recommended that these
techniques be employed for the purpose of disestablishing the
system of dual schools. Rather, the assignment of students
across existing school division, political subdivision, and, in
deed, State lines was encouraged, financed and required of
thousands of pupils by the State and local authorities for the
sole purpose of perpetuating segregation.75
The desegregation plan presented by the Richmond
School Board and approved by the district court involved
the assignment of pupils across existing school division lines
and the utilization of the legislatively conceived plan for the
operation of a consolidated school division—the same tools
and principles utilized by the same school authorities in
establishing a system of segregated schools and in maintain
ing and perpetuating it for years after Brown I.
It is apparent that the district court deemed such long
standing utilization of these devices and principles for both
valid and invalid purposes as affording a rational basis for
requiring the defendant State and local authorities to exer
75 The district court specifically cataloged a group of “[e]arlier
judicial opinions [which bore] witness to Virginia’s policy permitting
the transportation of pupils across political subdivision lines for the
purposes of maintaining segregation” (Pet. A. 194) citing Buckner v.
County School Bd., 332 F.2d 452 ( 4th Cir. 1964) ; School Bd. of War
ren County v. Kilby, 259 F.2d 497 (4th Cir. 1958) (where Warren
County’s maintenance of only one high school which was restricted to
whites caused it to transport some of its Negro children of high school
age 50 miles daily to a facility in adjoining Clarke County and others
over 50 miles one way to a distant high school for Negroes in Prince
William County where they were required to stay for five days of the
week, being boarded at public expense) ; Corbin v. County School
Bd., 177 F.2d 924 (4th Cir. 1949); Goins v. County School Bd., 186
F.Supp. 753 (W.D. Va. 1960) (involving daily transportation of Negro
high school students from residences in Grayson County to location in
Wythe County for one-way distances ranging from 30 to 40 miles).
80
cise the powers which they now have under State law in pro
viding for the complete and effective desegregation of all
schools in the Richmond metropolitan community:
[IJnstances . . . of the education of pupils of one po
litical subdivision in schools run in whole or in part by
officials of another demonstrate as a matter of historical
fact the insubstantiality of any argument that strong
state concerns support their maintenance as barriers to
the achievement of integration. For the State has coun
tenanced much more than the plaintiffs seek here. Stan
dard practice has encompassed schemes under which
students are educated in systems financed and operated
by local officials wholly irresponsible, in the political
sense, to residents of the students’ home area. Centrally-
enforced uniformity in certain educational practices has
no doubt helped to make this acceptable. But here the
plaintiffs do not demand that desegregation take place
by means that render school authorities politically ir
responsible to the parents of the children they teach.
Means are available, such as the consolidation form
presented in Virginia law, by which representatives of
each political subdivision will have a role in manage
ment of a combined school system. Flexible state law
provisions for financing exist as well. The State cannot
insist that compliance with its own statutory policy
violates some substantial interest. This is so especially
in the light of the recurrent successful use of the joint
system of school management, which entails the opera
tion of facilities by a committee of control, having repre
sentatives from participating school divisions, with fi
nancing provided by the political bodies of each.
(Pet. A. 194-95) (emphasis added).
In view of its silence in this area, however, it can only be
inferred that in the judgment of the court of appeals such
past conduct was irrelevant in determining the scope of the
remedial powers of the lower court.
81
This court as early as 1955 in Brown II, 349 U.S. at 299-
301, recognized the extreme complexity of the problems in
volved in the dismantling of state-mandated dual school
systems, and that imaginative and, indeed at times, drastic
measures might well be required. The record herein fully
establishes, however, that the State of Virginia has taken no
affirmative voluntary actions, much less drastic or imagina
tive ones, to dismantle its dual system of schools (Pet. A.
212-22, 332-52). In light of this State’s abdication of its
affirmative duty to take whatever steps might be necessary
to eradicate all vestiges of its dual system of schools,76 simple
justice compels the approval of the district court’s action in
molding its decree to meet the exigencies of the case through
a utilization of means and methods at least coextensive with
76 As of January 15, 1971, the State defendants were still expressly
denying the existence of any such affirmative duty (A. 113-16) and their
position throughout the trial was that the basic responsibility lay with
the local school authorities (A. 678-93). Certainly, at this late date,
however, the existence of such a duty on the part of state school au
thorities is abundantly clear. E.g., Smith v. North Carolina State Bd.
of Educ., 444 F.2d 6 (4th Cir. 1971); United States v. Texas, 321
F. Supp. 1043 (E.D. Tex. 1970), supplemental order of April 19,
1971 (unreported), modified and aff’d, 447 F.2d 441 (5th Cir. 1971),
cert, denied, 404 U.S. 1016 (1972); Godwin v. Johnston County Bd. of
Educ., 301 F.Supp. 1339 (E.D. N.C. 1969); Franklin v. Quitman
County Bd. of Educ., 288 F.Supp. 509 (N.D. Miss 1968); Lee v.
Macon County Bd. of Educ., 267 F.Supp. 458 (M.D. Ala.) (three
judge court), aff’d sub nom. Wallace v. United States, 389 U.S. 215
(1967); see United States v. Jefferson County Bd. of Educ., 372 F.2d
836, 846-47 (5th Cir. 1966), aff’d en banc, 380 F.2d 385, cert, denied,
389 U.S. 840 (1967).
The court of appeals, although not even alluding to the State’s
affirmative duty in this case, has belatedly recognized in another con
text that the local school board in Virginia is but “an arm of the
State. . . .” National Socialist White People’s Party v. Ringers, No.
72-1737 (4th Cir., decided Feb. 5, 1973) (slip opinion at 3). This
Court years ago established that local public school authorities “from
the point of view of the Fourteenth Amendment . . . [stood] . . . as the
agents of the State.” Cooper v. Aaron, 358 U.S. 1, 16 (1958).
82
those which have been employed by the State and local
officials in the active and continuous perpetuation of illegal
discrimination in public education.
The limitations on the remedial power of the district court
as imposed by the court of appeals in this case, however, are
productive of the following incongruity: the powers of the
lower court to insure the removal of all vestiges of a state-
enforced dual school system are to be less extensive than
were the means utilized by the State and local school authori
ties alike in perpetuating the denial of equal educational
opportunity; and the existence of school division lines which
have never served as barriers or impediments to the retention
and promotion of segregation in the past, now precludes
effective relief in the Richmond community.77
The Richmond School Board submits that proof of state
support and encouragement of student assignments across
political subdivision lines for valid educational purposes as
well as for the perpetuation of illegal segregation, the prior
use of principles of consolidation both to effectively segre
gate blacks and for worthy educational purposes as well, and
the existence of a legislatively conceived plan for the opera
tion of a school division composed of two or more political
subdivisions collectively afford a sound basis for the judicial
approval of such techniques as a means of eliminating all
vestiges of a system of state-mandated segregation in the
Richmond metropolitan area.
77 The United States Court of Appeals for the Fifth Circuit has
recognized that “[bjarriers which did not prevent enforced segrega
tion in the past” will not be allowed to impede the process of desegre
gation. Henry v. Clarksdale Mun. Sep. School Dist., 433 F.2d 387
394 (5th Cir. 1970).
83
D.
T h e C o n tin u in g D en ia l O f E qual E ducational O ppo r tu n ity
W it h in T h e R ich m o n d M etropolitan A rea I s A ttested B y
A n A pplication O f T h e R ationale U nderlying Br o w n I
A nd A T raditional G oal O f E ducation
The inequality inherent in a system of separate education
and the deleterious effects on the perceptions and motiva
tions of school children were the predicates underlying the
constitutional violation proscribed by Brown I. The need
for the correction of the harm recognized in Brown I also
formed the basis for the creation of the affirmative obliga
tion on the part of state and local school authorities to
eliminate to the extent feasible the racial identifiability of
schools through the eradication of all vestiges of the state-
mandated dual school systems.
Since Brown I, courts and those educators charged with
the responsibility of providing equal educational opportunity
to all children have tended to consider the legal obligations
imposed as something apart from traditional educational
goals. All have been slow to grasp the interrelationship be
tween the affirmative duty to promote the greatest amount of
actual desegregation and the fundamental purposes of edu
cation. That the legal requirements, however, do in
fact parallel the primary objectives of education is amply
supported by this record and the findings of the district court.
Of equal significance, a view of the operation of schools in
the Richmond metropolitan area since Brown I in light of
these intertwined disciplines provides a vivid example of the
incalculable harm which persists today as a result of the de
liberate and continuing deferral of quality education and
equal educational opportunity to the children in the Rich
mond school community. Moreover, the application of these
educational principles to the situation existing in Richmond
84
today is strongly indicative of the means required to bring
fulfillment to the promises of Brown I and Brown II.
The bases for the conclusions that “in the field of public
education the doctrine of ‘separate but equal’ ha[d] no
place and that [sjeparate educational facilities [were] in
herently unequal Brown I, 347 U.S. at 495, were the same
intangible yet vital considerations underlying earlier deci
sions condemning segregation in higher education:
Such considerations apply with added force to chil
dren in grade and high schools. To separate them from
others of similar age and qualifications solely because
of their race generates a feeling of inferiority as to their
status in the community that may affect their hearts
and minds in a way unlikely ever to be undone.
Brown I, 347 U.S. at 494. This Court then quoted with ap
proval from the opinion of the Kansas case then before it:
Segregation of white and colored children in public
schools has a detrimental effect upon the colored chil
dren. The impact is greater when it has the sanction
of law; for the policy of separating the races is usually
interpreted as denoting the inferiority of the negro
group. A sense of inferiority affects the motivation of a
child to learn. Segregation with the sanction of law,
therefore, has a tendency to [retard] the educational
and mental development of Negro children and to de
prive them of some of the benefits they would receive in
a racial[ly] integrated school system.”
Brown I, 347 U.S. at 494 (footnote omitted).
Prominent southern educators experienced in the area of
school desegregation established during the trial below the
nature in which such effects on perceptions and motivations
underlay one of the two basic objectives of public education,
i.e., the development of attitudes and values essential to good
85
citizenship and effective participation in society (A. 369-75,
428-29).
These witnesses expanded upon the previous delineation
by this Court of the invidious effects of separateness in edu
cation, the benefits to be derived from effective integration
and, from purely an educational standpoint, the necessity of
eliminating the racial identifiability of schools to the extent
feasible as a prerequisite for the preparation of children for
life in a multi-racial society (A. 372-75, 428-29). All agreed
that from an educational standpoint the development of
attitudes and values as a purpose of public education was
equally important as and inextricably interwoven with the
other acknowledged purpose of education, namely, the teach
ing of academic skills (A. 371, 428-29). They were in com
plete agreement that in a biracial community such as the
Richmond metropolitan area meaningful integration to the
extent feasible was an essential element of quality education
and equal educational opportunity and that meaningful in
tegration was as vitally important for white students as for
life in a multi-racial society (A. , , ..... ). All agreed
ing of academic skills (A....... , ......, ..... ). They were in corn-
blacks. (A. 243, 432). They also delineated reasons why
students, parents and teachers of both races in the Richmond
metropolitan area have historically perceived “black” schools
as “bad” or “inferior” and “white” schools as “good” or
“superior” (A. 369-76). These same witnesses explained
why the invidious effects of segregation could not be eradi
cated in the Richmond metropolitan area absent the assign
ment of pupils across the existing school division lines.
(A. 243,375-76,429-30, 434).
The foregoing expert testimony coupled with the findings
of the district court thus belies the existence of any dichotomy
between legal requirements and fundamental educational
concepts. Though not establishing any new constitutional
rights, such testimony and findings from an educational
standpoint support the necessity for and the potential ef
86
fectiveness of the relief decreed if public schools in the Rich
mond metropolitan area are to prepare children for good
citizenship and effective participation in this, a biracial
community.78
The debilitating effects on the hearts and minds of black
children throughout the State of Virginia which flowed from
the pre-1954 conduct on the part of State and local school
authorities has been well documented in the Brown decisions.
A summary of this record as it bears on the conduct of these
same school authorities since 1954 affords a sound measure
of both the continuing nature of the constitutional violation,
and the incalculable additional harm inflicted on these school
children by virtue of the all-pervasive and deliberate mainte
nance of separate educational facilities and the concomitant
deferral of equal educational opportunity.
The manner in which the post-Brown harm compounded
the problem of disestablishment is easily perceived. Countless
thousands of children have commenced and completed their
78 A witness testifying as an educational expert on behalf of the
State and County defendants acknowledged his participation in and
endorsement of a previous study wherein it was concluded that a
merger of the two school systems in the Raleigh-Wake County, North
Carolina metropolitan area would be beneficial in that “the schools
[were] the basic preparation agent for the community” and that “a
single school system would have greater capability for responding to
the challenges of the urbanizing community” (RX-93, 3; A. 1114-16;
Ex. A. 149). This witness further acknowledged making observations
in that study to the effect that
school children of one district deserve the same educational op
portunities as children of the other district. Educational oppor
tunities for children and youth should not be dependent on where
they happen to reside within Wake County. Wake County and
Raleigh compromise [tic] a unified socioeconomic cultural area.
Many children and youth educated in the Wake County schools
will eventually live and work in Raleigh. The concern of Raleigh
citizens for the education of these county children and vice versa
should be a very practical one.
(A. 1119).
87
formal education in the public schools of the Richmond
metropolitan area since 1954. Indeed, a second generation
of school children had completed a substantial portion of
their formal education by the close of the 1970 school year
during which the plaintiffs’ motion for further relief was
filed—and substantially all had done so in either black or
white schools. In fact, in 1970, there were many more thou
sands of black pupils attending all-black schools in the Rich
mond metropolitan area than was the case in 1954 (Pet. A.
417-18,524-32).
Many of these children and their parents witnessed and
suffered the consequences of the primary force which this
record graphically depicts—the utilization of all State means
and resources in open defiance of Brown I through the main
tenance of policies dedicated to the perpetuation of com
plete segregation for as long a time as possible, and thereafter
to the minimization of integration in every conceivable
manner.
Beginning with the official action of the State Board of
Education in calling for adherence to State law through
continued maintenance of segregated schools subsequent to
the rendition of the Brown decisions, the dismal courses of
interposition, massive resistance, recalcitrance and delay were
pursued. The highlights include: the repeal of the compul
sory attendance laws for the purpose of avoiding any inte
gration; the establishment of tuition grants and pupil schol
arships to enable those confronted with any prospect of
integration to enter either all-white private schools or to
cross political subdivision lines to attend all-white public
schools; and the enactment of the Pupil Placement Act, the
repeal of which did not occur until 1966. Contrary to the
present argument advanced by the State and Counties re
garding the historic local autonomy of schools in Virginia,
the Pupil Placement Act divested the local school boards of
8 8
all authority regarding the assignment of pupils in an at
tempt to maintain separate schools for blacks and whites.
Even though the State’s view as to central-versus-local con
trol over schools has thus varied since 1954,79 one definitive
conclusion can be readily drawn from this vacillation: alter
nating preferences for local as opposed to centralized control
have been dictated by the degree to which one or the other
best served the perpetuation of segregated public schools.
This State continued to participate in the operation of
regional schools for black students serving multiple political
subdivisions as late as 1968. The attendance areas for the all
black regional schools encompassed as many as five counties
and 1,700 square miles. Indeed, the travel distances to one
such facility were so great that black student dormitories
were necessitated.
When, in 1965 this State entered into a compliance agree
ment under the Civil Rights Act of 1964 in order to avoid
the cutoff of federal funds, it took the position that desegre
gation was a primary concern of the local school boards and
refused to assert any positive leadership in dismantling the
statewide system of dual schools.
The State’s most recent contribution in rendering the
disestablishment of its dual school systems more difficult con
cerns the amendment by the legislature during the pendency
of this suit of Section 22-30 of the Code of Virginia which
had previously granted unfettered power to the State Board
79 Compare the 1954 statement of the Attorney General of this State
at note 35 supra to the effect that Virginia’s schools had been operated
pursuant to a centrally controlled plan regarding the maintenance of
segregated public schools and the frequent use of other State-level
practices such as the closing of integrated schools (Pet. A. 533-36)
with the trial testimony of one of the State school authorities con
cerning his view that in the late 1960’s when the individual school
divisions were forced to desegregate in order to avoid the termination
of federal funds, the primary responsibility for such disestablishment
lay with the local school authorities (A. 678-93).
89
of Education to place more than one school division under
the operation of a single superintendent. If, prior to the
amendment, the State Board had directed such a reorgani
zation of the Richmond, Henrico and Chesterfield school
divisions, it is inconceivable, the continuation of separate
school boards in each system notwithstanding, that present
patterns of segregation in Richmond area schools would
have withstood constitutional challenge under Swann. The
amendment, however, removed the previous power of the
State Board to subdivide the State into appropriate school
divisions by requiring that any placement of more than one
political subdivision into a single division henceforth could
be accomplished only with the consent of the school boards
and the governing bodies of each of the political subdivisions
to be affected.80
Finally, perhaps the greatest factor compounding the post-
Brown evils and rendering disestablishment even more diffi
cult was the continued use through the school year 1970-71
by the State and local school authorities of pre-1954 policies
dealing with school site selection and construction to the end
that schools built for one race or another served attendance
zones that were superimposed over segregated housing pat
terns. Construction programs carried out through 1970 and
1971 in Richmond, Henrico and Chesterfield had as their
purpose and effect the perpetuation of segregation by race.
No school site has ever been selected by any of the jurisdic
tions for the purpose of assisting in the process of desegrega-
80 The statutory change was prompted by a general revision of the
State’s constitution which, however, did not require the legislature to
restrict the State Board’s power to divide the State into school divisions
to the degree accomplished under § 22-30, as amended. See § 5(a) of
article V III of the Constitution of Virginia, as revised (1971) (Pet. A.
615) ; see also note 51 supra.
90
tion—a fact one county school official readily admitted
(A. 494). Thus, the evidence in the lower court (Pet. A.
283-313) fully attests to the soundness of this Court’s de
termination in Swann that school site selection is a potent
weapon for the continued maintenance of segregation.81 The
first step toward substantial desegregation did not occur in
the City of Richmond until the 1970-71 school year, and
Henrico and Chesterfield, both of which had operated
countywide schools for blacks as late as 1968-69 and 1969-
70, respectively, were still operating racially identifiable
black schools during the 1970-71 school year even though
the total black enrollment was 8.1 per cent in Henrico and
9.4 per cent in Chesterfield.
The reasoning of this Court in Swann makes it clear that
even in a static community the continuation of a policy
of superimposing neighborhood schools on segregated resi
dential housing patterns effectively segregates school chil
dren. Certainly the continuation of such a process in the
Richmond area from 1954 to 1970 had the same effect and
severely complicated the task of eliminating the racial
identifiability of area schools which was first undertaken
in late 1970. Additionally, the growth and demographic
changes occurring in the Richmond area during this period
undoubtedly served to magnify the injurious effects of the
above processes.
Even though the black-white student ratio in the Rich
mond metropolitan area remained constant, i.e., 65 per cent
white and 35 per cent black, the gross racial disparity be
tween the City of Richmond and the two Counties was fur
ther accentuated. At the time of Brown I, the student popu
lation of Richmond was 43.5 per cent black, and Henrico
and Chesterfield were 10.4 per cent black and 20.4 per cent
81 See note 40 supra.
91
black, respectively. The total enrollment in Richmond grew
from approximately 36,000 in 1954 to approximately 43,000
in 1970, but its racial composition was approximately 70
per cent black by June, 1970. Duirng the same period, the
number of black students in the Richmond system more
than doubled—from approximately 15,000 to approximately
30,000. The significant growth in the student population in
the Counties during this period of approximately 37,000
additional white students reduced the percentage of black
enrollment in Chesterfield schools from more than 20 per
cent black to less than 10 per cent, while Henrico’s per
centage of black enrollment dropped from 10.4 per cent to
approximately 8 per cent. Ironically, in the 1969-70 school
year the number of blacks in all-black schools in the Rich
mond metropolitan area was substantially greater than was
the case in 1954.
The involvement of the State Board of Education and the
School Boards of the City of Richmond and the Counties of
Henrico and Chesterfield in all of the State policies of re
sistance to integration subsequent to Brown I establishes the
continuing nature of the constitutional violation requiring
relief. Indeed, the constitutional violation giving rise to the
relief decreed in Swann is not fairly distinguishable from the
necessitating relief in the Richmond community. Clearly,
the district court was fully justified in its belief that the
breadth and flexibility inherent in its equity jurisdiction was
more than adequate to prevent the architects and adherents
of years of pervasive discrimination from advantaging them
selves of their own illegal practices through the effective
segregation of thousands of white and black students in the
Richmond metropolitan area.82
82 In this context, the district court concluded as follows:
In the light of all the evidence the insistence now by school
authorities upon a system of separate attendance districts within
92
II.
The Decision Of The Court Of Appeals Is Irreconcilable With Ap
plicable Decisions Of This Court And Rationale Utilized By
Other Federal Courts In Related Cases
The incompatibility of the opinion of the court of appeals
with decisions of this Court manifests itself in three signifi
cant areas: the standard for assessing the sanctity of existing
school division lines and the existence of a constitutional vio
lation; the drastic limitations placed upon the previous
guidelines established by this Court for the shaping of ef
fective relief; and the significant departure from the ac
cepted standard of review in school desegregation cases.
The reasoning employed by the court of appeals is like
wise at odds with that of other federal courts which have
considered similar issues.
A.
T h e T e s t O f T h e C ourt O f A ppea ls F or A sse s s in g T h e Sanc
tity O f E xisting Sc h o o l D ivisio n L in e s A nd T h e E xistence
O f A C o n stitu tio n a l V iolation I s Predicated O n A J udicial
Standard E x pressly R e jec ted B y T h is C ourt
It is clear that in evaluating the sanctity of the existing
school division lines in this case, the court of appeals as it
had done in Wright v. Council of City of Emporia, 442
F.2d 570, 572-74 (4th Cir. 1971) and United States v. Scot
land Neck City Board of Education, 442 F.2d 575, 577, 582
(4th Cir. 1971), focused on the purpose and motivation
underlying the establishment and maintenance of such lines
in the Richmond metropolitan area:
the enlarged community reflects the desires of the State’s central
and local officials, based at least in part on their perceptions of
their constituents’ wishes, to maintain as great a degree of segre
gation as possible.
(Pet. A. 201).
93
It is not contended by any of the parties or by amici that
the establishment of the school district lines more than
100 years ago was invidiously motivated. We have
searched the . . . opinion of the district court in vain for
the slightest scintilla of evidence that the boundary lines
of the three local governmental units have been main
tained either long ago or recently for the purpose of
perpetuating racial discrimination in the public schools.
[N] either the record nor the opinion . . . even suggests
that there was ever joint interaction between any two
of the units involved (or by higher state officers) for the
purpose of keeping one unit relatively white by confin
ing blacks to another. . . .
. . . The facts of this case do not establish . . . that state
establishment and maintenance of school districts co
terminous with the political subdivisions of the City of
Richmond and the Counties of Chesterfield and Hen
rico have been intended to circumvent any federally
protected right.
(Pet. A. 571-72, 580) (emphasis added). Having found no
such invidious purpose or motivation, the court of appeals
concluded there was no constitutional violation, and that the
district court was thus without authority to act (Pet. A.
581).
This Court in Emporia, 92 S.Ct. 2196, however, made it
clear that “effect” was controlling and that any inquiry into
purpose or motivation was as irrelevant as it was fruitless in
that the existence of permissible purposes cannot otherwise
sustain actions that have an impermissible effect. Emporia,
92 S.Ct. at 2203. It is thus apparent that the decision of the
court of appeals was predicated on a judicial standard which
has been expressly rejected by this Court.
Moreover, the judgment of the court of appeals is irrecon
94
cilable with much of the rationale underlying the opinion of
the dissenting Justices in Emporia, 92 S.Ct. at 2207-14. First,
as evidenced by this Court’s unanimous opinion in the com
panion case, Scotland Neck, 92 S.Ct. 2214, no Justice has
questioned either the power of a district court in a proper
case to enjoin state or local officials acting under state law
from carving out a new school district from an existing dis
trict that had not yet completed the process of dismantling
a system of enforced racial segregation, or the principle that
the remedial powers of a district court are not limited by
provisions of state law. The dissent in Emporia was not
predicated, as was the opinion of the court of appeals in this
case, on any tenth amendment limitation on the remedial
powers of federal district courts, but rather on the belief
that the lower court had abused its discretion in light of the
particular facts and circumstances presented. Secondly, it
would appear that on the particular facts presented in this
record, the rationale employed in the Emporia dissent is in
deed consistent with an affirmance of the relief decreed by
the district judge below.
In his dissent, Mr. Chief Justice Burger emphasized that
realities, not theories, were to be controlling, that a meaning
ful remedy was the basic criterion, that “dual systems must
cease to exist in an objective sense as well as under the law”
Emporia, 92 S.Ct. at 2208, and finally that
[if] it appeared that the city of Emporia’s operation of
a separate school system would either perpetuate racial
segregation in the schools of the Greensville County
area or otherwise frustrate the dismantling of the dual
system in that area, [he] would unhesitatingly join in
reversing the judgment of the Court of Appeals and
reinstating the judgment of the District Court.
Emporia, 92 S.Ct. at 2207 (dissenting opinion). It is clear
that the dissenting Justices’ disagreement with the majority
95
in Emporia was based on the particular facts before the
Court. One circumstance which disturbed the dissenting
Justices was that the two separate systems each would have
had majority black student racial compositions with a vari
ance of only six per cent, which prompted the disbelief that
“a difference of one or two children per class would even be
noticed,” or that “it would render a school part of a dual
system.” Emporia, 92 S.Ct. at 2209 (footnote omitted).
The realities disclosed by this record, however, are all too
clear—gross racial disparities between adjoining school dis
tricts, one of which is overwhelmingly black and the other
two of which are overwhelmingly white. The differences in
the individual classrooms of the various schools in these
contiguous districts are pronounced to the extent that the
racial identifiability of schools in this area persists.
The dissenting Justices in Emporia also concluded that
evidence of resegregation between the two systems was highly
speculative and remote since the entire area was majority
black, but nevertheless were careful to note that “ [o]f course,
when there are adjoining school districts differing in their
racial compositions, it is always conceivable that the dif
ferences will be accentuated by the so-called ‘white flight
phenomenon.” Emporia, 92 S.Ct. at 2209. Applying this
rationale to the Richmond area, the findings of the district
court and the proven existence of the loss of 35 per cent of
the white population of the Richmond school system in a
12-month period involving two school openings removes the
probability of resegregation from the realm of speculation.
The dissenting Justices further felt that “it surpasse[d]
the bounds of reason to equate the psychological impact of
creating adjoining unitary school systems, both having Negro
majorities, with the feelings of inferiority referred to in
Brown I . . . . ” Emporia, 92 S.Ct. at 2210.
96
It is respectfully submitted that the findings of the district
court as to the adverse effects on the children attending Rich
mond, Henrico and Chesterfield schools were not only amply
supported by educational and sociological authorities who
testified during the trial proceedings but, indeed, were well
within the realm of common experience. The defendants in
this suit have the power under provisions of State law to
eliminate “black” and “white” schools, but have not done
so; moreover, on this record, it is clear that they will never
voluntarily do so.S3 The racial motivation underlying this
refusal, as found by the district court, is all too obvious—the
continued restriction of blacks to a center core, albeit a
larger one, in an otherwise predominantly white area which
has likewise expanded. The deleterious effects on percep
tions and motivations of the school children are not, we re
spectfully submit, difficult to perceive even in the absence of
the substantial testimony supporting such findings.
Finally, in the view of the dissenting Justices in Emporia,
allowance of the continued operation of adjoining majority
black systems there “would not [have] factually preserve[d]
the separation of the races that existed in the past . . . .” and
that “all vestiges of the discriminatory system would [have
been] removed.” Emporia, 92 S.Ct. at 2210. Measured by
this standard, the failure to affirm the remedy decreed by the
district court herein not only would effectively preserve past
patterns of separate schools for the races, but would, in fact,
engraft an indelible permanence upon the vestiges of the
dual system of schools in the Richmond area through the 83
83 The district court made the following pertinent observation:
[T]he court is satisfied from the evidence that given the attitude
of the defendants the securing of the constitutional rights to
which the plaintiff class are entitled will not be accomplished
except under the supervision of the Court.
(Pet. A. 359).
97
continued maintenance of the same historic pattern: black
city schools encompassed by traditionally white suburban
schools.
B.
E ven U nder T h e O verly R estrictive T e s t O f T h e C ourt O f
A ppe a l s , T h e R ecord H er ein E sta b lish es T h a t T h e C o n
tin u ed M ain tena nce O f T h e E xisting Sch oo l D ivision L in es
H as , I n Part, Been R acially M otivated
It is clear that while the decision of the court of appeals
severely limits the power of a district court to consider assign
ments of pupils across existing school division lines, it does
admit of such a remedy upon a showing of racial motivation
or purpose underlying the continued maintenance of these
lines. This record, in fact, does establish that the persistent
maintenance of the area’s school division lines has been in
part racially motivated. As the district court expressly
found:
[a] firm policy of resistance at the state and local
levels to consolidation or other methods of cooperative
pupil assignment [:i . e contractual interchange of pupils]
on any significant scale so as to bring about desegrega
tion has been related at each level to racial motives. . . .
There has been a discernible policy of refraining from
taking such steps as would promote desegregation. . . .
(Pet. A. 212). After pointing out that all officials had been
well advised of the facts creating the community school prob
lem through the division of the Richmond area into racially
identifiable sectors, and that the only realistic remedy at this
time involved the crossing of area school lines, the district
court further found as follows:
Rejection of such a solution by the county and state
defendants is explicable principally in terms of racial
hostility. Opposition to desegregation in the counties
98
has been the historical pattern to the present date. State
officials have been guilty of encouraging or condoning
such sentiment. County officials have publicly dis
claimed any obligation to play an effective role in the
desegregation of schools in the area and declared their
opposition to effective desegregation and disapproval
of Supreme Court rulings setting forth the law of the
land on the subject. Considering the historic flexibility
of political subdivisions in the state and in this area in
matters of pupil exchange across political boundaries
and in the cooperative operation of other public utilities,
in view of the several statutory patterns—part of the
public policy of the state—under which cooperative
ventures can be undertaken, and in view of the fact that
school operation in the counties has always entailed
transportation times and distances similar to those in
volved in the suggested metropolitan plan, resistance to
the proposal appears clearly to be racially based.
. . . The evidence here indicates that a primary con
sideration in the refusal of county officials to establish
cooperative school operation with Richmond has been
their own concurrence with perceived constituents’ op
position to integration efforts, which one county official
termed “unamerican.” This is not a legally cognizable
objection.
Such an attitude is wholly at odds with considerations
of one’s affirmative obligation to exercise state-conferred
powers affecting school administration so as to promote
that end. The state and county officials equipped to alter
the limits of attendance units unquestionably have that
duty, their conduct affecting deeply the educational
interests of many thousands of our youth and constitu
tional rights of the plaintiffs. Yet they have refused to
act. . . .
From the insubstantiality of nonracial reasons for
adhering to political subdivision boundaries as attend
ance limits, the Court infers that insistence on such a
99
policy must be predicated on its known racial effects.
A purposeful, centrally compelled policy of segregation
persisted in Virginia for many years; its effects endure
today and affect the racial characteristics of the schools.
Its abandonment has been gradual, piecemeal, and in
tentionally reluctant and is less than total today. No
administrator can plead ignorance of these facts. At
the same time, by means of repeated internal and out
side surveys, reports, and recommendations, the magni
tude of the problems of the depth of discrimination and
its impact and the means to begin to alleviate it were
presented to official bodies with the power to act. When
their response was inaction or even contrary steps, it
cannot be said that they acted without the intention of
infringing constitutional rights. Informed of the conse
quences of past discrimination, they knowingly renewed
or entrenched it. “ [I]t was action taken with knowl
edge of the consequences, and the consequences were
not merely possible; they were substantially certain.
Under such conditions the action is unquestionably wil
ful.” . . .
(Pet. A. 230-32, 258-59) (citations omitted).
Discussing the interrelationship of the existing lines with
strict patterns of housing segregation, the district court con
cluded that “by the maintenance of existing school division
lines the State advantages itself of private enforcement of
discrimination and prolongs the effects of discriminatory acts
of its own agents.” (Pet. A. 195-96) (citation omitted).
Additional circumstances underlie and support the fore
going findings: the amendment of Section 22-30 of the Code
of Virginia, effective July 1, 1971, created an additional
obstacle for the combining of two or more political sub
divisions into one school division through a first-time require
ment of consent on the part of the governing bodies and
school boards of the affected localities; at the time this suit
was pending, the area school division lines were actually
100
redrawn and re-established by the State Board of Education
without any consideration being given to the effects thereof
on the process of desegregation or on the dismantling of the
state-mandated system of dual schools; and there was open
hostility on the part of County leaders to any integration—
particularly with the children of the City of Richmond—
which persisted up to and throughout the trial below.84 85
Hence, it is apparent that the record herein even satisfies
the test of the court of appeals as to the necessity for estab
lishing racial motivation in the continued maintenance of
the existing school division lines. Even under such an er
roneously restrictive test, the district court’s findings re
quired it to approve a plan involving pupil assignments
across the school division lines in the Richmond metropolitan
area.
C.
T h e J ud gm en t O f T h e C ourt O f A ppea ls E ffectively T h w a rts
T h e G u id elin es F or T h e F a s h io n in g O f E ffective R el ie f A s
E sta blish ed I n P rior D ec isio n s O f T h is C ourt
As this Court noted in Emporia, 92 S.Ct. at 2202, the court
of appeals apparently did not consider that case to have
been governed by the principles of Green and Monroe v.
Board of Commissioners, 391 U.S. 450 (1968). The same
general critique is fully applicable to its decision here in
that the appellate court failed to reconcile its conclusions
with no less than four key objectives previously established
by this Court. Instead, the application of its rationale places
rigid limitations on these guidelines with dire consequences
to the future of school desegregation in de jure metropolitan
areas.
“Effectiveness” has been firmly established as the measure
of any desegregation plan.86 Yet under the decision of the
84 See note 42 supra.
85 E.g., Davis, 402 U.S. at 37; Emporia, 92 S.Ct. at 2203.
101
court of appeals, irrespective of its relative effectiveness, the
metropolitan desegregation plan involving assignments across
existing school division lines was adjudged to have been
beyond the scope of the lower court’s remedial power absent
proof of invidious racial purpose or motivation in the estab
lishment or maintenance of those lines. The district court’s
conclusions as to the relative effectiveness of the metropoli
tan plan were not disputed by the court of appeals which,
instead, noted that in his concern for effective relief the dis
trict judge had overlooked limitations upon his remedial
powers (Pet. A. 563). If after years of extensive litigation
the relief which has been afforded consists of little more than
the maintenance of historically black schools, and indeed,
the establishment of a substantially all-black system in the
face of a viable and feasible alternative which promises real
istically to work in providing equal educational opportunity,
the promises of Brown I will in reality have little meaning to
school children in the Richmond community.
This Court has also made it clear that the objective in the
development of any desegregation plan should be the attain
ment of the greatest possible degree of actual desegregation
and the elimination to the extent feasible of all vestiges of
the dual system of schools.86 Again, the overwhelming evi
dence before the district court was that attempts to desegre
gate within Richmond alone were futile exercises doomed
to failure which paled in comparison to the realistic expec
tations provided by the City Board’s metropolitan plan
(Pet. A. 207-08, 230, 237, 239-40). The consequence of the
judicial standard adopted by the court of appeals, however,
presents a stark contrast between what will and what could
occur: the promise of substantially all-black schools within
the City surrounded by substantially all-white schools in the
86 Davis, 402 U.S. at 37; Swann, 402 U.S. at 15; cf. Green, 391
U.S. at 437-38.
102
Counties with the attendant community and student per
ceptions of “black” and “white”, “inferior” and “superior”,
schools, as opposed to the district court’s remedy which
promises realistically to erase the racial identifiability of
schools in the area and to remove all vestiges of the dual
school system which do in fact persist in the Richmond
metropolitan area today.
This Court has also made it clear that in desegregating
schools, district courts and school authorities as well have
a duty to consider all available options and alternatives in
selecting the plan which holds the greatest expectation of
working in practice.87 This mandate was limited by the
court of appeals, however, to the extent that the district
judge could not consider alternatives which involved either
the interdivisional exchange of pupils or the consolidation of
school districts even though he had found compelling fac
tors and circumstances requiring such relief.
Regarding such available alternatives, it is important to
note that Virginia law has never forbidden the contractual
exchange of pupils between separate school divisions, that
for many years there has been a legislatively conceived plan
for the consolidation of school divisions consisting of more
than one political subdivision, and that current laws make
no requirement that school divisions conform to political
subdivision boundaries88 (Pet. A. 227-29, 607-13, 618-21).
Even though the present law (Section 22-30 of the Code of
Virginia) requires the consent of the local governing bodies
and school boards prior to a consolidation (Pet. A. 228,
617), it is axiomatic that the enjoyment of fundamental
constitutional rights cannot be made to depend upon any
87 E.g., Green, 391 U.S. at 439.
88 See note 51 supra; notes 62 & 63 supra and accompanying text.
103
type of popular consent89 and that state laws which serve as
impediments or barriers to the effective disestablishment of
dual school systems are not binding on a district court in its
formulation of effective relief.90 Moreover, the district court
simply required and ordered the State and County defend
ants to exercise powers which had been expressly granted
to them by State law (Pet. A. 538-40).
Similarly, the court of appeals made no reference to the
statements of this Court to the effect that the most potent
weapons for the dismantling of dual school systems lie in the
revision of school districts and attendance areas.91
From the analogy which this Court has drawn between the
shaping of relief in school desegregation and antitrust cases,92
it is clear that an effective plan should, to the extent feasible,
prevent the recurrence of the evils sought to be corrected.
The district court’s concern over the resegregation of the City
system was amply supported by the evidence establishing a
35 per cent loss of white students within 12 months under the
two Richmond-only desegregation plans. Yet the court of
appeals without even alluding to the district judge’s con
clusion as to the lack of any realistic chance for effective
relief within the City system, established a standard which
as applied to this case will insure a return to the situation
which existed in 1954 and in 1969-70 as well, i.e., all black
students in Richmond and, indeed, 85 per cent of all black
pupils in the Richmond metropolitan area, will be attending
89 See Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 736-37
(1964) ; Haney v. County Bd. of Educ., 410 F.2d 920, 925 (8th Cir.
1969).
90 Scotland Neck, 92 S.Ct. at 2217, quoting North Carolina State Bd.
of Educ. v. Swann, 402 U.S. 43, 45 (1971); see also cases cited note
103 infra.
91 Brown II, 349 U.S. at 300-01; Swann, 402 U.S. at 27.
92 See note 55 supra.
104
virtually all-black schools surrounded by substantially all-
white schools.
D.
T h e D ec isio n O f T h e C ourt O f A ppea ls W as Based O n “N e w ”
F ind in gs A ch ieved T h r o u g h A Sign ifica n t D epa rtu re F rom
T h e Standard O f A ppella te R eview I n Sc h o o l D esegrega
tio n C ases
This Court has made it clear that the weighing of facts
and circumstances to determine their effect upon the process
of desegregation is a delicate task that is aided by the sensi
tivity of the trier of facts to local conditions, and that the
judgment with respect thereto is primarily the responsibility
of the district court.93 Furthermore, as this Court has specifi
cally ruled in another school desegregation case, a court of
appeals commits error when it substitutes its own findings
for those of the district court which are supported by sub
stantial evidence.94 From a comparison of the court of
appeals’ opinion with the record in this case, however, it is
clear that in critical areas the appellate court substituted its
evaluation of the evidence for that of the district judge.
In concluding that the desegregation of schools by the
three school divisions involved was pathetically incomplete
(Pet. A. 237), the district court had considered voluminous
evidence relating to the actual operation of the Richmond,
Henrico and Chesterfield schools for many years including
the term which had concluded in June of 1971, approxi
mately two months prior to the hearings below.
93 E.g., Emporia, 92 S.Ct. at 2205, citing Brown II, 349 U.S. at 299;
see also Swann, 402 U.S. at 28.
94 Northcross v. Board of Educ., 397 U.S. 232, 235 (1970). The
United States Court of Appeals for the Seventh Circuit, in a school
desegregation case as well, has recently recognized this established con
straint on its powers of review. United States v. Board of School
Comm rs., No. 72-1031 (7th Cir., decided Feb. 1, 1973) (slip opinion
at 6).
105
In phrasing the issue in its terms, however, the court of
appeals in the initial paragraph of its opinion implicitly
assumed the operation of unitary systems by all three school
divisions involved95 (Pet. A. 562). No party, however, in
cluding the Richmond School Board, contended that the City
had achieved a unitary system during the 1970-71 school
year. The basis for such an assumption by the appellate court
is thus unclear. Moreover, as is implied in subsequent por
tions of its opinion, the court of appeals agreed that neither
Henrico nor Chesterfield had attained a unitary system dur
ing the 1970-71 year, the last school year for which data was
available. The appellate court stated that with the discon
tinuation by Chesterfield of its connection with Matoaca
Laboratory School (which occurred subsequent to the 1970-
71 school year)96 and Henrico County’s announced plan to
reassign the 40 per cent of its total black elementary enroll
ment which had attended Central Gardens School during
the 1970-71 school year, the systems had become unitary97
95 In Judge Winter’s view, he probably would not have dissented
“were the case as simple as described in the opening paragraph of
the majority opinion. . . .” (Pet. A. 585 n. 1)
96 Prior to the 1971-72 school year, the Matoaca Laboratory Ele
mentary School, on the grounds of Virginia State College, was listed
as a Chesterfield County school and was administered by the Chester
field School Board with regard to the disbursement of State funds,
pupil transportation, teaching materials, food service and the like
(Pet. A. 385). In submitting compliance data to HEW in 1971, the
County reported Matoaca Lab as an all-black school with an all-black
faculty. When challenged by HEW, Chesterfield responded by drop
ping Matoaca Lab from its system as of 1971-72 (Pet. A. 386). The
facility is still operated as a virtually all-black elementary school.
Thus, at the time the district court rendered its opinion and order,
the precise responsibility for the operation of Matoaca Lab was un
clear, and the court of appeals apparently chose to ignore the clear
implication of the State of Virginia in the continued operation of this
all-black public school.
97 These measures, of course, occurred after the commencement of
the trial proceedings below. Regarding actions taken by school au
106
(Pet. A. 571-72). Remarkably, the court of appeals made
this assumption without reference to any of the other non-
unitary features which had been considered by the district
judge such as the racial identifiability of faculties and the
gross examples of racial isolation in other schools (Pet. A.
384, 397, 524-29), and, indeed, without the benefit of rele
vant data subsequent to the 1970-71 school year.
It is apparent from the opinion of the court of appeals
that it was troubled by the size of the proposed consolidated
school division and by problems of finance and budgeting
which in its opinion were sufficient to “boggle the mind”
(Pet. A. 578). Suffice it to point out that after weighing the
extensive evidence presented on all such aspects of the pro
posed metropolitan desegregation plan, the district court
concluded that the optimal size of any school district was
largely dependent on the objectives sought to be attained
(having before it evidence of the eminently successful op
eration of the Fairfax, Virginia school system consisting of
more than 135,000 students), and that in all respects the
weight of the testimony from the educational experts estab
lished that the proposed plan was reasonable, feasible and
workable98 (Pet. A. 432). In addition, the district court had
considerable evidence before it that many of the very features
that the court of appeals found disturbing had proved work
thorities to correct illegal segregation after the date on which a
particular suit had been filed, the United States Court of Appeals for
the Seventh Circuit has acknowledged that “such actions go more to
the propriety of granting equitable relief, rather than to the merits of
the district court’s findings.” United States v. Board of School
Comm rs., No. 72-1031 (7th Cir., decided Feb. 1, 1973) (slip opinion
at 13).
98 Regarding all the testimony as to “optimum” school district size,
the district court specifically found that ‘[c]urrent studies . . . focus
principally on the minimum size required for a particular purpose”
(Pet. A. 432) (emphasis added).
107
able in the operation of State-authorized joint schools as well
as all-black regional schools (Pet. A. 352-56); indeed, the
existence of detailed Virginia laws governing the operation
of school divisions consisting of more than one political sub
division (Pet. A. 608-13, 618-21) clearly indicates that such
problems were not considered insurmountable by this State’s
own lawmakers. Certainly no school desegregation case to
date upholds the substitution by an appellate court of new
conclusions regarding elements of the feasibility of desegre
gation plans when substantial evidence supports findings
made by a district court."
In other instances, the court of appeals seized upon one
item of evidence relating to a certain point and drew conclu
sions different from those of the district court without refer
ence to any of the other evidence on the same issue. As a sig
nificant example, the appellate court focused upon the testi
mony of one County official relating to his interpretations of
the findings of a questionnaire submitted to students to deter
mine the number who had previously attended City schools.
The testimony, designed to establish that relatively few
County students ever had attended Richmond schools, con
vinced the court of appeals that the evidence failed to estab
lish that the City’s white students were fleeing to County
schools (Pet. A. 573). On this issue, the district court had
weighed a considerable amount of evidence establishing the
losses of whites from the City system including the testimony
in question and, with respect to the results of the specified
questionnaire, the record indicated that the County Super
intendent was unable to give any detailed information as to
the scope, extensiveness or degree of participation by County
students (A. 1026-27). In addition, this Superintendent
had previously admitted that his staff had been con
ey. cases cited note 94 supra.
108
fronted with the problem of white parents and students from
Richmond giving false County addresses and renting unoc
cupied apartments for the purpose of gaining admission to
the substantially all-white schools in the County (A. 491;
Pet. A. 383). Certainly, it is doubtful that students engaging
in such activities would candidly answer any questionnaire
exposing their actions. Further, the questionnaire obviously
failed to reflect the degree of white attrition occasioned by
parents moving to the Counties so that their children could
be initially enrolled in County schools. This further explana
tion of the record upon which the district court relied is
illustrative of the danger inherent in any departure from the
accepted standard of judicial review of factual determina
tions.
On the question of the effects of admitted racial dis
crimination by all three political subdivisions in housing
and the admitted refusal of the Counties to take steps
necessary to allow the construction of low-cost or rent-sub
sidized housing, the court of appeals concluded that it was
“unable to determine whether such discrimination, prac
ticed in all three units, has had any impact upon movement
by blacks out of the city and into the counties” (Pet. A.
574). The district court’s conclusions in this area, however,
were predicated on substantial evidence and testimony pro
viding a reasonable basis for its determinations that dis
crimination in housing, school site selection and construc
tion, public employment, and County operation of small,
inferior all-black schools through the late 1960’s and County
inaction in failing to provide low-cost housing had operated
to contain blacks within Richmond, in turn, accentuating
the extreme racial disparity between the City and the two
Counties (Pet. A. 195-211, 380-82, 392).
These illustrative intrusions upon the normal standard
of appellate review which under Rule 52(a), Fed. R. Civ. P.,
109
is limited to the extent that the findings of a district court
may be set aside only if found to be clearly erroneous, re
quire this Court to find that the court of appeals erred.
E.
T h e R ationale O f T h e C ourt O f A ppeals V aries W it h T hat
U tilized B y O t h e r F ederal C ourts I n R elated C ases
Though factually distinguishable, the issues presented
herein are closely akin to those dealt with in Emporia and
Scotland Neck as well as other cases involving the attempted
creation of splinter school districts. In pointing out that it
was unfortunately predictable that a court which had ap
proved the dismantling of existing school districts so as to
create smaller whiter enclaves had now rejected the con
solidation of school districts to make effective the mandate
of Brown I and its progeny (Pet. A. 585-86), Judge Winter
made the following comparison:
. . . While the district court attempted to distinguish
these cases, the fact is that they are simply the obverse
of the same coin which is presented here. In each of
Scotland Neck and Emporia, the effect of splitting the
school district was further to delay and hinder the
achievement of what would otherwise have been a uni
tary system in the original district, although arguably
there were noninvidious reasons for subdividing. Here,
as I view the case, the question is one of consolidating
school districts within the framework of state law in
order to eradicate the effects of past discrimination and
to achieve a unitary system. Logically it is impossible
to sustain the former and not condemn the converse. . . .
(Pet. A. 585 n. 1)
As noted by this Court in Emporia, the reasoning of the
court of appeals differed materially from that utilized by
110
other federal courts which had prohibited the carving out
of “white enclaves” based not on the motive or purpose un
derlying the actions taken by the respective school authorities,
but on the effect of such practices.100 If the court of appeals’
decision is left undisturbed, the result would be productive
of the following incongruity: in the splinter district cases the
actions of state and local school authorities would be judged
in terms of their effect on the dismantling process, whereas
such a test would be irrelevant in prescribing the circum
stances under which a district court may require either the
assignment of students across existing school division lines or
the merger of existing districts in accordance with provisions
of state law in order to alleviate the effects of past discrimi
nation. The criteria should be the same, however, since in
both instances school boundaries affect the dismantling proc
ess by serving as barriers to effective desegregation.
The severe limitation on the remedial powers of the dis
trict court occasioned by the court of appeals’ reliance on
both Virginia tradition and the tenth amendment to sanctify
existing school division lines (Pet. A. 575-80) is in sharp
contrast with the view of the United States Court of Appeals
for the Eighth Circuit as expressed in Haney v. County
Board of Education, 410 F.2d 920 (8th Cir. 1969) [herein
after cited as Haney]:
If segregation in public schools could be justified
simply because of pre-Brown geographic structuring of
100 Emporia, 92 S.Ct. at 2203, citing Lee v. Macon County Bd. of
Educ., 448 F.2d 746, 752 (5th Cir. 1971); Stout v. Jefferson County
Bd. of Educ., 448 F.2d 403, 404 (5th Cir. 1971); Haney v. County Bd.
of Educ., 410 F.2d 920, 929 (8th Cir. 1969) ; Burleson v. County Bd.
of Election Comm’rs., 308 F.Supp. 352, 356 (E.D. Ark.), aff’d, 432
F.2d 1356 (8th Cir. 1970); Aytch v. Mitchell, 320 F.Supp. 1372, 1377
(E.D. Ark. 1971).
I l l
school districts, the equal protection clause would have
little meaning. . . .
State legislative district lines, congressional district
and other state political subdivisions have long ago lost
their mastery over the more desired effect of protecting
the equal rights of all citizens. . . . [citing Gomillion v.
Lightfoot, 364 U.S. 339 (I960)].
Political subdivisions of the state are mere lines of
convenience for exercising divided governmental re
sponsibilities. They cannot serve to deny federal rights.
The court of appeals made no reference to the district
court’s finding that the existing school division lines were
redrawn as late as July 1, 1971, pursuant to the requirements
of the revised State constitution which took effect on the
same date (Pet. A. 229). This express reaffirmance of the
present school division lines had the uncontradicted effect
of a state-approved separation of an existing 70 per cent
black school division (Richmond) from the two 90 per cent
white school divisions surrounding it. Furthermore, this re
drawing occurred at a time when the State was under a
clear and continuing duty to take whatever steps might be
necessary to eradicate all vestiges of its dual system of
schools.101 102 The failure of the court of appeals to even con
sider this a proper point of inquiry cannot be squared with
the rationale of the court in Haney that “[i]t would be
sheer fantasy to say that the school districts in Sevier County
could be realigned today in the same manner that they were
101 Haney, 410 F.2d at 924-25, citing Reynolds v. Sims, 377 U.S.
533 (1964); Hall v. St. Helena Parish School Bd., 197 F.Supp 649
658 (E.D. La.), affd, 287 F.2d 376 (5th Cir. 1961), afj’d per curiam
368 U.S. 515 (1962).
102 See note 76 supra.
112
in 1948 and still comply with the constitutional mandate of
Brown I and II .” Haney, 410 F.2d at 924.
With regard to the force and effect of Virginia’s consent
requirement regarding the consolidation of separate school
districts, the court of appeals mistakenly felt that it would
have been necessary to have held such a limitation unconsti
tutional had the plan approved by the lower court been
affirmed (Pet. A. 575, 577-78). Such reasoning, however,
ignores the basic tenant that the enjoyment of constitutional
rights cannot be made dependent upon popular consent. As
was expressed by the court in Haney,
. . . [t]he argument that ‘equal protection’ rights must
depend upon the majority vote has never found foothold
under our form of constitutional government. Demo
cratic government under our Constitution respects the
majority will, but our forefathers had sufficient vision
to insure that even the many must give way to certain
fundamental rights of the few.
Haney, 410 F.2d at 925 (citations omitted).
Also ignored by the court of appeals was the settled prin
ciple that the remedial powers of a district court cannot be
limited by provisions of state law.103
Finally, even though its opinion was subsequently vacated
pursuant to the granting of an en banc rehearing, it is sig
nificant that a three judge panel of the United States Court
of Appeals for the Sixth Circuit in a desegregation case in
volving the Detroit, Michigan school system has noted its
rejection of “the contention that school district lines [were]
sacrosanct and that the jurisdiction of the District Court to
103 Haney, 410 F.2d 920; United States v. Greenwood Mun. Sep.
School Dist., 406 F.2d 1086, 1094 (5th Cir.), cert, denied, 395 U.S.
907 (1969).
113
grant equitable relief . . . [was] limited to the geographical
boundaries of Detroit.” 104 Concluding that “the District
Court . . . [was] not confined to the boundary lines of De
troit in fashioning equitable relief”, that panel specifically
declined to follow the decision of the court of appeals in
this case.105
Even though the foregoing opinion is not in effect at this
time, the applicability of the views of such experienced cir
cuit judges to this case cannot be denied. Of even greater
significance, the similar conclusions of the district court
herein were based on a record which is much stronger than
that which is currently before the Sixth Circuit. In addi
tion to the same type of factual considerations giving rise to
the metropolitan relief in Detroit,106 the record here docu
104 Bradley v. Milliken, Nos. 72-1809, -1814 (6th Cir., filed Dec. 8,
1972), vacated for rehearing en banc (Jan. 16, 1973) (slip opinion at
66) . This panel had before it inter alia four interlocutory orders en
tered by the district court which had found generally that relief from
school segregation could not have been effectively provided by any of
the intra-city plans, and that the only realistic plan for desegregation
of the Detroit system would have required the assignment of students
between a number of city-suburban school districts in the Detroit
metropolitan area. See Bradley v. Milliken, 338 F.Supp. 582 (E.D.
Mich. S.D. 1971) (ruling as to illegal segregation existing within
Detroit system) ; Bradley v. Milliken, No. 35257 (E.D. Mich S.D.,
Mar. 24, 28, June 14, 1972) (ruling on propriety of metropolitan
remedy, findings and conclusions on “Detroit only” relief, and ruling
on desegregation area and development of plan, respectively).
On February 8, 1973, appellate arguments concerning the relief
decreed for the Detroit metropolitan area were made before the full
court of appeals which currently has the matter under advisement.
105 Bradley v. Milliken, Nos. 72-1809, -1814 (6th Cir., filed Dec. 8,
1972), vacated for rehearing en banc (Jan. 16, 1973) (slip opinion at
67) .
106 Similar issues are likewise involved in cases which are in various
stages of litigation in federal district courts. In a suit brought to de
segregate the schools of Indianapolis, Indiana, the district judge there
found that the city schools were illegally segregated, and that since
114
ments the following: the very evil proscribed by Brown I—
a state with a long history of enforced separation of the
races in public education; tortious years of overt defiance
and delay in the face of an announced constitutional man
date ; pervasive discrimination on the part of all of the school
divisions involved; and an abundance of state laws and con
duct encouraging both the combining of separate political
subdivisions into single school divisions and the interdivisional
assignment of pupils for valid educational purposes as well
as for the perpetuation of segregation. Finally, the lower
court here had the actual experience of witnessing the utter
futility of attempts to provide effective relief within the City
of Richmond alone.
In summary, the use by the court of appeals of an invidious
motivation standard which resulted in the sanctification of
existing school boundaries is clearly contrary to the effect-
oriented test which this Court adopted in Emporia and
any plan of desegregation confined to the city system alone might not
work in affording a realistic remedy, suburban school districts in the
Indianapolis metropolitan area should be joined as parties so that the
matter could be fully litigated. United States v. Board of School
Comm’rs. of City of Indianapolis, 332 F.Supp. 655 (S.D. Ind. 1971),
aff’d, No. 72-1031 (7th Gir., decided Feb. 1, 1973). This Court has
refused to hear questions presented by one of the newly joined sub
urban school districts regarding the propriety of the joinder action.
School Town of Speedway v. Dillin, cert, denied, ..... U.S........ , 92
S.Ct. 2457 (1972). Related questions have arisen in a case involving
the Atlanta, Georgia school system. In Calhoun v. Cook, 332 F.Supp.
804 (N.D. Ga. 1971), the district court noted that at the time the
case was originally filed in 1958, the Atlanta system was approximately
70 per cent white whereas at the time of its decision, there had been
a complete reversal in percentages in that the system was then 70 per
cent black. Calhoun, 332 F.Supp. at 805. The United States Court of
Appeals for the Fifth Circuit has specifically directed that the district
court make supplemental findings of fact and conclusions of law with
regard to suggestions made by the latter concerning the desirability of
a metropolitan area solution to the increasing segregation within the
Atlanta system. Calhoun v. Cook, 451 F.2d 583 (5th Cir. 1971).
115
which had been applied previously by other federal courts.
The dire consequences which would flow from an affirmance
of the unique approach of the court of appeals are all too
clear. The tenth amendment, concerned with neither indi
vidual justice nor equality, would preclude an effective,
feasible remedy for a long-standing denial of equal educa
tional opportunity. The children in the Richmond metropoli
tan area for the foreseeable future would thus attend clearly
identifiable black or white schools just as previous genera
tions had done both prior to and after 1954.107
CONCLUSION
In the view of the district court, the nature of the relief
required under this Court’s previous decisions from Brown I
through Swann and Davis necessitated the assignment of
pupils across the existing school division lines in the Rich
mond metropolitan area. Based on a legislatively conceived
alternative for the operation of schools, the lower court’s
order was fully supported by exhaustive findings which the
court of appeals failed to find as clearly erroneous, instead
basing its reversal on legal principles which run counter to
guidelines established by this Court as well as others. The
effect of the decision of the court of appeals is to perpetuate
107 Chief Judge Phillips in his vacated opinion regarding the necessity
for a plan of desegregation extending beyond the boundaries of the De
troit School District, recalled the admonition from. Chief Justice
Marshall:
The government of the United States has been emphatically
termed a government of laws, and not of men. It will certainly
cease to deserve this high appellation, if the laws furnish no
remedy for the violation of a vested legal right.
Bradley v. Milliken, Nos. 72-1809, -1814 ( 6th Cir., filed Dec. 8, 1972),
vacated for rehearing en banc (Jan. 16, 1973) (slip opinion at 66),
citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
116
indefinitely the vestiges of the dual system of schools which
remain in the Richmond metropolitan area thus rendering
illusory the promises inherent in Brown I.
For the foregoing reasons, it is respectfully submitted that
the judgment of the court of appeals should be reversed and
the district court’s January 10, 1972 order reinstated with
directions that it be implemented forthwith.
Respectfully submitted,
G e o r g e B. L i t t l e
J a m e s K. C l u v e r i u s
Browder, Russell, Little & Morris
1510 Ross Building
Richmond, Virginia 23219
C o n a r d B. M a t t o x , J r .
City Attorney
City Hall
Richmond, Virginia 23219
Attorneys for Petitioners