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19



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
NOS. 72-1058, -1059, -1060 and -1150

CAROLYN BRADLEY, et al.,
Plaintiffs-Appellees,

vs.
THE SCHOOL BOARD OF THE CITY OF 
RICHMOND, VIRGINIA, et al.,

Defendants-Appellees,
and

THE STATE BOARD OF EDUCATION OF THE 
COMMONWEALTH OF VIRGINIA, et al.,

Defendants-Appellants.

Appeal from the United States District Court for the 
Eastern District of Virginia, Richmond Division 

Hon. Robert R. Merhige, Jr., United States District Judge

REPLY BRIEF FOR PLAINTIFFS-APPELLEES

The State and county defendants' opening brief is less 
a reasoned argument than an attempt to overbear rational 
analysis by repeated pejorative labelling and miscasting of 
the basis for the decision below. We make no attempt here at 
detailed rebuttal; rather we seek in these brief comments to 
identify and illuminate the issues on which the parties differ 
and to reveal some of the more egregious misrepresentations 
of the facts and the predicate for the decision of the court
below.



I

The State and county defendants argue, as below, that 
this matter should have proceeded before a three-judge court, 
and they have repeated the contentions originally made in 
their application for stay of the district court's order. We 
refer the Court to both our Memorandum in Opposition to Stay, 
pp. 11-14 and our Opening Brief, pp. 58-60. We merely wish 
to re-emphasize here that neither Spencer v. Kugler nor Evans 
v. Buchanan, cited by these defendants, in fact supports 
their claim for a three-judge court.

In Spencer v. Kugler, 326 F. Supp. 1235 (D.N.J. 1971),
aff*d mem., 404 U.S. ___ (1972), the plaintiffs sought— without
having to make a factual showing of discriminatory action by
state or local authorities— to declare invalid a New Jersey
law making school district lines coterminus with municipality
lines on the ground that maintenance of such lines resulted
in heavily black school districts offering education generally

1/unequal to that available in predominantly white districts.
The New Jersey court was unwilling to hear the case on the 
basis of assumptions about the quality of education available 
in majority-black districts without any allegation that the 
State had engaged in discriminatory practices contributing to 
this result. Defendants argue from analogy that the lower

XT" Despite the State and county defendants' fervent and 
repeated accusations to the contrary (e.q., Brief, pp. 5, 6,
34, 45, 51, 62, 66, 68), that is not the basis either of 
plaintiffs' claim nor of the decision below.

- 2 -



court here was powerless to direct that steps be taken in 
accordance with the plain meaning of Va. Code Ann. § 22-30 
(Supp. 1971) because in Spencer, the New Jersey Commissioner 
had the power to cross district lines to desegregate and yet 
a three-judge panel was convened.

However: (1) the New Jersey Commissioner's authority to 
take such action flows not from' a specific implementing 
statute such as Va. Code Ann. § 22-30, but from his general 
responsibility to effectuate the State's constitutional 
command to implement a "thorough and efficient" system of 
public schools (Jenkins v. Township of Morris School Dist.,
58 N.J. 483, 279 A.2d 619 (1971)); a suit to enjoin the Com­
missioner to exercise specifically delegated authority would 
properly have been heard before a single federal district 
judge; (2) Spencer v. Kugler was decided May 13, 1971— prior 
to the New Jersey Supreme Court's decision in Jenkins, supra, 
which established for the first time under New Jersey law 
(through "necessary and proper" reasoning) a power in the 
Commissioner to cross district lines to achieve desegregation; 
thus, at the time the Spencer complaint was filed, it had not 
been determined that there was an available remedy pursuant 
to State law which a single district judge could have ordered 
be followed had he granted relief; (3) the question was not 
litigated in Spencer, neither party objecting to the convening 
of a panel, nor presenting a jurisdictional issue before the 
Supreme Court of the United States.

-3-



The convening of a three-judge panel in Evans v. Buchanan
may not be interpreted as a x'uling on the jurisdictional 
question. The Amended Complaint therein attacks a Delaware 
statute directing the State Board of Education to redraw 
school district lines throughout the State except that the 
Wilmington district boundaries, coterminus with the city 
limits, should remain unchanged.. That is a statute of local, 
not general application, Brad ley v. Milliken, 433 F.2d 897, 
n. 2 (6th Cir. 1970) , and while a three-judge district court 
has been convened, it has not passed upon the jurisdictional 
issue and may well disband itself. Cf. Alabama v. United 
States, 314 F. Supp. 1319 (S.D. Ala.), appeal dismissed for
lack of jurisdiction, 400 U.S. 954 (1970), aff1d on merits,
444 F.2d 540 (5th Cir. 1971).

II
The State and county defendants make a great deal of the 

"approval" of the county public schools by the United States 
Department of Health, Education and Welfare, citing cases some 
five to seven years old in which this and other Circuits 
afforded the 1965 and 1966 H.E.W. Guidelines "great weight." 
Defendants pointedly ignore the reservation, in all of those 
opinions, of the courts' responsibility to insure that perform­
ance based upon H.E.W. standards complies with the Constitution 
Cf. Taylor v. Cohen, 405 F.2d 277, 281 (4th Cir. 1968). This 
Court is entirely familiar with the current performance (or 
nonperformance) by HEW of its constitutionally required

-4-



2/responsibility. We think it sufficient, in addition to 
recalling its role in this litigation, see 317 F. Supp. 855 
(E.D. Va. 1970), to note here that in the case of the 
separate black and white districts (the former consisting of 
two non-contiguous sections entirely surrounded by the latter) 
operated in Sevier County, Arkansas, there was no recognition 
by HEW of any constitutional violation in the operation of 
separate uniracial districts between the enactment of the 
Civil Rights Act of 1964 and the entry of a decree on remand 
from the Eighth Circuit in Haney v. County Bd. of Educ., 410 
F.2d 920 (8th Cir. 1969).

The State and county defendants expend a great deal of 
effort in their brief attempting to establish that education 
within the Commonwealth of Virginia is a matter of purely 
local responsibility, with little or no participation on the 
part of State authorities. However, as early as 1953, the 
Attorney General of Virginia represented to the Supreme Court 
that this is not the case: then he reported that the public 
schools of Virginia were operated "pursuant to a single plan 
centrally controlled with regard to the segregation of the 
races," Brief for Appellees in Davis v. County School Bd. of 
Prince Edward County, No. 3 (Oct. Term 1954), p. 15. The 
history of education in Virginia since 1954 is a compelling

17"  See, e.g., Northeross v. Board of Educ. of Memphis, Civ.
No. 3931 (W.D. Tenn., Jan. 12, 1972); Acree v. County Bd. of
Educ. of Richmond County, Civ. No. 1179 (S.D. Ga., Jan. 13, 
1972), aff'd, No. 72-1211 (5th Cir., March 31, 1972); Adams 
v. Richardson, Civ. No. 3095-70 (D.D.C.).

-5



demonstration that this was the only policy consistently 
followed by the Commonwealth. When it served to achieve 
segregation, local control was paramount, but the State 
stood ready to intervene in the most drastic fashion to insure 
the perpetuation of inferior segregated schools for its black 
students.

Defendants prominently cite, for example, the Virginia
Supreme Court's 1963 decision in School Board of Prince

2/Edward County v. Griffin, 204 Va. 650, 133 S.E.2d 565. It 
is apparent from the entire discussion in their Brief that 
defendants would reargue here the United States Supreme Court's 
holding in Griffin, 377 U.S. 218 (1964); there is, however, 
no way in which the State can be divorced of its ultimate 
responsibility under the Constitution for the operation of 
Virginia's school system both before and after 1954.

—7 Defendants make the point that the interpretation of Virginia 
law expounded in Griffin ("that neither the Constitution of 
Virginia, nor the statutes enacted thereunder, required a 
locality to operate and maintain public schools and that the 
State Board of Education lacked authority to operate such 
schools") was "accepted by the Supreme Court of the United 
States" (Brief, p. 18). Of course, this did not prevent 
formulation of a remedy for the violation of constitutional 
rights; defendants have unwittingly made the case for the power 
of federal courts to disregard state law in fashioning remedies 
for unconstitutional school segregation. No case, in fact, 
more graphically supports the concept of supervening federal 
law than does the tortured Virginia jurisprudence involving 
Prince Edward County. Cf. Turner v. Goolsby, 255 F. Supp. 724
(S.D. Ga. 1965) (State Superintendent appointed as receiver of 
school system which failed to carry out federal court desegre­
gation orders); Louisiana v. United States, 380 U.S. 145 (1965) 
(voter registration qualifications under prior state law frozen) 
United States v. Georgia, Civ. No. 12972 (N.D. Ga., Dec. 17, 
1969), rev'd on other grounds, 428 F.2d 377 (5th Cir. 1971)
(State Education Department given new affirmative responsibili­
ties for enforcement of Fourteenth Amendment rights).

- 6 -



The examples in the Brief do not support the argument. 
Defendants point out that pupil assignment and transportation 
are indispensable elements of a school desegregation plan.
But they are also indispensable elements of a segregation plan, 
and the State has been heavily involved in the past in assisting 
local school authorities to devise and implement such segre­
gation plans. State assistance^ was used in these counties 
to establish efficient and segregating bus transportation 
routes as late as 1963, for instance. (Mem. Op. 94). The 
Virginia cases of School Bd. of Carroll County v. Shockley,
160 Va. 405, 168 S.E. 419 (1933) and Howard v. County School 
Bd., 203 Va. 55, 122 S.E.2d 891 (1961), also do not stand 
as limitations upon the power of the State Board of Education. 
Just as federal courts may achieve affirmative results through 
prohibitory injunctions, the fact that the State may not 
directly compel a school system to choose a particular location 
for a school facility does not mean that it is without power 
to achieve that result by refusing to approve any other site. 
Finally, defendants deliberately misstate the facts at page 
21 where they have charged that "[t]he only attempt by the 
General Assembly to centralize control of local public schools" 
was the school closing legislation of 1956 invalidated in 
Harrison v. Day, 200 Va. 439, 106 S.E.2d 636 (1959). Their 
omission of the Pupil Placement Board, and the tuition grant 
and pupil scholarship programs from discussion is hardly 
accidental; these transparent devices to perpetuate racial 
segregation were never invalidated by Virginia courts.

-7-



Ill

Just as in no case of which plaintiffs are aware (despite
contrary claims expressed in the political arena), has any

4/court ever ordered "racial balance," so the caricatured issue
which the State and county defendants present at page 67 of
their Brief is not at stake in this or any other metropolitan
litigation. Defendants urge this Court to declare that the
Constitution does not require that:

a school district which has established a 
unitary school system in which blacks are 
in the majority must, if by chance it 
happens to be contiguous to a unitary 
school system in which whites are in the 
majority, take action to combine itself 
with the contiguous school district for 
the purpose of thinning out its majority 
black school population and subordinating 
it to a majority white school population 
so that the combined school system will 
contain a viable racial mix (emphasis supplied).

Only defendants' tortuous labor to frame an issue in 
terms which could not be more alien to this record permits them 
to charge the district court with proceeding from the assumption

Cf. Acree v~ County Bd. of Educ. of Richmond County, No. 
71-1211 (5th Cir., March 31, 1972) (typewritten slip op. at 
P- 2) :

The board and intervenors contend, however, 
that the district court's order irreparably 
harms "quality education" in Richmond County.
The district court should not, and did not, 
permit the use of such platitudes to perpet­
uate a dual school system, nor could it permit 
defendants to rely on the inferiority of 
certain school facilities to which children 
were to be transferred as a justification 
for continued racial discrimination.

- 8 -



that blacks are inferior to whites and must therefore remain 
in the minority at every school. We can find no support for 
such a contention, nor for their taunt that affirmance will 
evince this Court's agreement with such a thesis, in the 
opinion below. What the district court properly did was, 
rather, to follow Swann v. Charlotte-Mecklenburg Bd. of Educ., 
402 U.S. 1 (1971) by entertaining a presumption against the 
operation, within the Richmond community, of schools which 
are substantially disproportionate to the total student 
population within that community.

The district court found Swann1s legal principle to be 
supported by sound educational reasoning: schools of substan­
tially disproportionate racial composition are perceived as 
atypical by the educational community (their students, staffs 
and patrons) and the success of their functioning is affected 
by this status; against the background of historic and con­
tinuing discrimination against the Negro in the United States, 
schools substantially disproportionately black are regularly 
expected to be poor schools.

Disparaging the analysis of the district court, defendants
refer to this as the "Pettigrew hypothesis" rejected by this
Court in Brunson v. Board of Trustees, 429 F.2d 820 (4th Cir.
1970) and in Brewer v. School Bd. of City of Norfolk, 434 F.2d

5/
408 (4th Cir. 1970). They proclaim with great grandiloquence:

In Brewer we argued vigorously against a plan, said to be supported by Dr. Pettigrew's "optimal racial mix" theory and 
his testimony in the case, which would have left over half of

-9-



Nor will we [the defendants] accept the shameful 
premise that in America today schools which are 
majority black cannot be made to work (Brief, 
p. 34).

57 (cont1 d)
Norfolk's black students in all-black schools— even though 
Norfolk's total student population was virtually within 
the limits of the optimum at 42%. In his testimony below 
(Tr. C 114-15), Dr. Pettigrew disclaimed any support for that 
result and he further stated hê  would favor metropolitan 
relief in this case even if a combined system were more than 
40% black (Tr. C 36, 52). We appreciate the clarification of 
Dr. Pettigrew's views, but we remain suspicious of the whole 
notion (see our Opening Brief, pp. 43-44, n. 43) .

The district court did not predicate its granting relief 
upon Dr. Pettigrew's testimony, however. Cf. Tr. C 63-64.
No optimal mix is referred to in the legal conclusions of the 
district court (Mem. Op. 20-89); the court holds only that 
"meaningful integration in a bi-racial community, as in the 
instant case, is essential to equality of education ..."
(Mem. Op. 21). Its decree does not establish specific ratio 
requirements for any plan to be submitted and/or approved; 
the 20% to 40% figures are descriptive of the. plan which the 
Richmond City School Board presented to the district court 
during the August and September hearings, but the district 
court's approval of this plan does not amount to its holding 
that all of its elements are specifically required by the 
Fourteenth Amendment to the United States Constitution.

The distinctive treatment of identifiably black and white 
schools within subdivision 6, in contrast to the methods of 
student assignment proposed for the other subdivisions by 
the Richmond plan, indicates the flexibility inherent within 
the plan and its nonadherence to a strict mathematical ratio. 
In any event, several district courts and Courts of Appeals 
have explicitly prohibited the operation of schools with 
enrollments over 50% black— where such enrollments would, 
without question (as is the case here), be substantially dis­
proportionate to the overall student ratio. See Swann v. 
Charlotte-Mecklenburg Bd. of Educ., No. 71-1ST1 (4th Cir., 
Feb. 16, 1972), aff*g 328 F. Supp. 1346 (W.D. N.C. 1971); 
Kelly v. Guinn, No. 71-2332 (9th Cir., Feb. '22, 1972); cf. 
Yarbrough v. Hulbert-West Memphis School Disit. , No. 71-1524 
(8th Cir., March 27, 1972). Thus, had the district court's 
decree explicitly provided that it would not approve any 
alternative plan which projected the operation of any school 
more than 50% black— i.e., substantially disproportionate—  
such a provision would have been in accord with the consti­
tutional requirements.

- 10 -



Would that such tender regard for black children had been
acted upon twenty or ten or even two years ago. But the
past history which defendants would put to one side cannot

6/be so easily brushed away. The way in which black schools

— The rhetoric of defendants' Brief is strange stuff coming 
from school boards and the Commonwealth of Virginia, which 
until now could hardly have been more conscious of the effects 
of race; the State's contribution to the "deliberate speed" doctrine is more typical:

Without community acceptance, public education as 
we know it now will not survive in those localities.
This brings us to the second major problem in 
Virginia as a whole. Ratio of population is of 
great significance in the solution to segregation.
The study quoted above is emphatic on this point:

"The ratio of Negro to white population is 
not a final determinant of racial attitudes, 
but it is perhaps the most powerful single 
influence, for the practical results of 
desegregation depend heavily upon it. This, 
more than anything else, seems to account 
for the great variation in the degree of 
expressed concern in the South over the 
steadily rising status of the Negro in the 
last generation - which has led finally to 
the demand for admission.to the white schools.
The Upland South, for example, found little 
to alarm it in the Negro's successful legal 
battle for the ballot, for there his numbers 
are not sufficient to give him control of 
local politics. The whites in the Black 
Belt, however, have had to face the prospect 
of becoming members of a political minority 

■ and many of them are still resisting, although 
the only means left to them are extra-legal."

The question of ratio of population has particular 
significance in Virginia. The percentage of Negro 
school children ranges from zero in Buchanan, Craig 
and Highland Counties to 77.3% in Charles City County. 
(Brief for appellees on further re-argument in Davis 
v. County School Board of Prince Edward County,
November 15, 1954, in the United States Supreme Court, at 14-15.)

The present posture of these defendants is but a euphemism for 
the underlying consistent policy of opposition to effective 
school desegregation and maintenance of black schools.

- 11 -



are perceived and characterized in Virginia today— especially 
those coexisting within the framework of interrelated geo­
graphically separate political subdivisions— is but the result 
of a consistent course of official conduct followed by the 
Commonwealth.

This case is not controlled as defendants suggest by the
decisions in Brewer and Brunson. In Brewer, this Court
rejected a school board plan which, under the guise of achieving
an "optimal racial mix" in some schools, left most black
students in completely segregated schools. Clearly the district

7/court has approved no such scheme here. See also, Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 138, 146-47 
(4th Cir. 1970), rev'd in part on other grounds, 402 U.S. 1 
(1971) .

Brunson also involved a proposal to assign most black 
students, at least initially, to black schools— in order to 
reduce the likelihood that the system's small minority of 
white students would leave the public schools. As had this

— Quite the contrary; the district court recognized that if 
limited to existing school division lines in the Richmond 
area, "the whole plan of desegregation becomes a futile 
gesture and will represent for the disadvantaged child, 
intended to be protected thereby in his constitutional rights, 
a cruel hoax" just as this Court stated in describing Norfolk's 
plan to assign students to distant schools without providing 
transportation. Brewer v. School Bd. of City of Norfolk,
No. 71-1900 (4th Cir., March 7, 1972) (slip op. at pp. 7-8).

- 12 -



8/
Court in Brewer and Swann, Judge Sobeloff condemned the
notion that educational assumptions about the inferiority of
identifiably black schools could justify the assignment of

9/black students to such schools. 11 [S] chool segregation is 
forbidden simply because its perpetuation is a living insult 
to the black children and immeasurably taints the education 
they receive." 429 F.2d at 826 (emphasis supplied). The 
decree below does not result in school segregation, but 
desegregation? it rests not upon assumptions of black inferi­
ority but upon recognition of the way our white society 
treats black children in black institutions, and upon the 
demonstrated influence of such policies and practices upon 
the present distribution of black and white children among 
these school systems.

We emphasize again that at the core of defendants' 
conception of this case is the notion that the racial demography 
of the contiguous school systems involved in this appeal 
has occurred "by chance" (see p. 8 supra). The lower court's 
contrary finding is convincingly supported by the evidence, 
and nothing could be further from the truth than defendants' 
supposition in Richmond, Detroit, Memphis or many other metro-

8/ "The position of this Court in Brewer and Brunson is com­prehensively stated in the concurring opinion of Judge 
Sobeloff in the latter case ...." Brief for Appellants herein, 
p. 63.
9/ (Of. Dove v. Parham, 282 F. 2d 256, 258-59 (8th Cir. 1960); 
Clark v. Board of Educ. of Little Rock, 426 F.2d 1035, 1042-43 
(8th Cir. 1970); see n. 4, supra.

-13-



politan areas. The fact of the matter is that in Richmond
the actions of school authorities, as well as those of other
governmental agencies, have been directly responsible for the
fact that a majority black school system "happens to be
contiguous" to two heavily white school systems within the

10/same urbanized area.

IV

Defendants attack the holding of the district court by
referring to the ruling of the same court in Holt v. City of
Richmond, 334 F. Supp. 228 (E.D. Va. 1971), and allowing that
the decree below will

ensure that the black color of their skin 
will forever prohibit [black citizens] 
from gaining control of a single school 
much less an entire school division. (Brief, 
p. 34)

Holt and other voting cases involve the protection of interests 
fundamentally different from those at stake here; they deal 
with legislative bodies (see 334 F. Supp. at 232) and the 
constitutional requirement "that each person's vote counts 
as much as every other person's . . .", 334 F. Supp. at 237.

\
\In contrast, school desegregation cases concern the 

requirement that public schools serve the needs of their 
students without discrimination based on race or color. No

It is true, as defendants suggest (Brief, p. 52) that the 
Supreme Court in Green v. County School Bd. of New Kent County, 
391 U.S. 430 (1968) did not examine the racial composition 
of the adjoining systems. It did note, however, that there 
was no residential segregation, ib. at 432, unlike this case.
11/ There is no independent federal constitutional franchise 
if a State has provided for appointed school boards. Sailors

-14- (cont' d)



constitutional right to "control" schools has ever been
recognized; the student bodies of particular schools do not
bear the responsibility of educating themselves, but that

12/responsibility rests with the State.—

The plan submitted by the Richmond School Board proposed
administrative subdivision of the metropolitan system toward
the end of greater community participation. What the State
and county defendants here urge under the rubric of community
involvement is the continuance of segregated schools, a result
impermissible under the law:

Separatism is just as offensive to the law 
when fostered by the Negro community as when 
the white community encourages it. Perpetu­
ation of a biracial school system moves only 
toward further intolerances and misunderstan­
dings. The law can never afford to bend in 
this direction again. The Constitution of the 
United States recognizes that every individual, 
white or black, is considered equal before the 
law. As long as this principle is viable, full 
equality of educational opportunity must pre­
vail over theoretical sociological and genetical 
arguments which attempt to persuade to the 
contrary.

11/ (cont'd)
v. Kent Bd. of Educ,, 387 U.S. 105, 108 (1967). Defendants* 
argument is difficult to fathom since none of the school boards 
in Richmond, Henrico or Chesterfield is directly elected.
12/ Indeed, where participation is achieved through the vote, 
the Supreme Court has not permitted limitation of the franchise 
to parents and property taxpayers alone. Kramer v. Union 
Free School Dist. No. 15, 395 U.S. 621 (1969). Even if this 
were in some way involved here, it is far from clear that 
participation by blacks on equal terms with others in a metro­
politan system is any less effective in providing equal 
educational opportunity than containment within a predominantly 
black division. Cf. Whitcomb v. Chavis, 403 U.S. 124 (1971).

-15-



Haney v. County Bd. of Educ., 410 F.2d 920, 926 (8th Cir.
1969). Accord, United States v. Choctaw County Bd. of Educ., 
417 F.2d 838 (5th Cir. 1969), at 842: "An all-Negro school, 
even if desired by the students and their parents, is just 
as wrong constitutionally, as an all-white school desired 
by white students and their parents."

V

The obligation of district courts in school desegregation 
cases is not materially different from that of federal courts 
in other areas of public law involving the protection of 
public rights, such as anti-trust. The court must, for 
example, "prescribe relief which will terminate the illegal 
monopoly, deny to the defendants the fruits of its statutory 
violation, and ensure that there remain no practices likely 
to result in monopolization in the future." United States v. 
United Shoe Machinery Corp., 3 91 U.S. 244, 2 50 (1968) (emphasis 
supplied). Thus, the relief granted must be shaped in 
accordance with the factual circumstances existing _at the time 
relief is fashioned rather than at the commencement of the 
violation. E.g., United States v. Aluminum Co. of America,
91 F. Supp. 333, 339 (S.D.N.Y. 1950); United. States v. Union 
P.R. Co., 226 U.S. 470, 477 (1913); United States v. DuPont 
deHemours & Co., 366 U.S. 316, 331-32 (1961); cf. United 
States v. Board of School Comm1rs of Indianapolis, 33 2 F.
Supp. 655 (S.D. Ind. 1971).

In anti-trust cases, the Supreme Court has held that 
the lower federal judiciary must guide the effectuation

16-



of the underlying public policy. Thus, in united States v.
United Shoe Machinery Corp., supra, the government was 
permitted to reopen a case in order to more effectively 
achieve the purposes of the litigation, even though there was 
no material change in circumstances rendering the decree 
inadequate. 391 U.S. at 251; cf. King-Seely Thermos Co. v. 
Aladdin Industries, 418 F.2d 31, 35 (1969). Similar princi­
ples have in fact been applied, to school desegregation
litigation. The district courts are instructed to retain 

13/jurisdiction— ■ for such period of time as may be necessary 
to insure that the pervasive patterns and effects of segre­
gation are, in fact, eliminated, and to modify their decrees 
in the light of experience. Raney v. Board of Educ. of Gould, 
391 U.S. 443, 449 (1968); cf■ Swann v. Charlotte-Mecklenburg 
Bd. of Educ., 431 F.2d 138, 141 (4th Cir. 1970) , rev1d in 
part on other grounds, 402 U.S. 1 (1971); No. 71-1811 (4th 
Cir., Feb. 16, 1972), aff'g 328 F. Supp. 1346 (W.D.N.C. 1971); 
Lemon v. Bossier Parish School Bd., 444 F.2d 1400, 446 F.2d 
911 (5th Cir. 1971); Boykins v. Fairfield Bd. of Educ., No. 
71-3028 (5th Cir., Feb. 23, 1972).

These concerns for effective and lasting relief recently 
prompted the United States District Court for the Eastern 
District of Michigan to reject an intra-city desegregation plan

13/ Clearly the court below did not lose its jurisdiction in 
this matter when it ordered the implementation of Plan III 
within the City of Richmond for the 1971-72 school year. Cf. 
United States v. Choctaw County Bd. of Educ., supra.

-17-



in the Detroit school desegregation suit. Bradley v. Milliken,
Civ. No. 35257 (E.D. Mich., Mar. 28, 1972)[copy attached
immediately following the Certificate of Service herein].

The basis of the Court's decision in Detroit, which we 
commend to this Court, is entirely applicable to the Richmond 
case. The Court recognizes, as did the district court below, 
that the City of Detroit (or Richmond) does not exist in a 
vacuum, and that a complete city plan would only transfer 
racial identifiability from schools to a school system.
The Court found in prior rulings (as the district court here 
found in its Memorandum Opinion) that the segregation of the 
metropolitan area occurs as the result of governmental action: 
federal, state and local, including the acts of local and 
state educational agencies. Both courts noted discriminatory 
acts and omissions on the part of local and state educational 
authorities. The only difference is the long history of
massive resistance in Virginia, which is clearly relevant to\
the inquiry because of its continuing effects. But the 
Detroit order demonstrates that the principles of State 
responsibility for equal educational opportunities are not 
imposed solely on Virginia, or on other States with a past 
record of interposition. All States' obligations are the 
same when they have violated their constitutional duty not 
to discriminate on the grounds of race.

This is confirmed by the Detroit court's remedial 
approach to the matter, having once found illegal segregation 
in Detroit caused by the acts and omissions of state and 
local defendants. The rationale of Bradley v. Milliken is

-18-



compelling here; if anything, this is an a_ fox~tiori case in 
light of the overwhelming detailed proof and findings of the 
district court.

We respectfully submit that the Opening Brief for the 
Appellants fails to persuade that the district court committed 
error or exceeded its judicial powers, and therefore the 
judgment below should be affifmed.

Respectfully submitted.

JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 
10 Columbus Circle 
New York, New York 10019
LOUIS R. LUCAS525 Commerce Title Building
Memphis, Tennessee 38103
JAMES R. OLPHIN214 East Clay Street
Richmond, Virginia 23219
M. RALPH PAGE420 North First Street
Richmond, Virginia 23219
WILLIAM L. TAYLORCatholic University Law School
Washington, D. C.
Attorneys for Plaintiffs- 
Appellees

-19-



CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of April, 1972, I 
mailed two copies of the foregoing Reply Brief for plaintiffs- 
Appellees via United States mail, first class postage prepaid, 
from Richmond, Virginia to counsel for the respective parties 
herein:

Walter E. Rogers, Esq.
510 United Virginia Bank Bldg.
Richmond, Virginia 23219
Conard B. Mattox, Jr., Esq.
City Attorney 
402 City Hall 
Richmond, Virginia 23219
Hon. Andrew P. Miller 
Attorney General of Virginia 
Supreme Court Building 
Richmond, Virginia 23219
J. Segar Gravatt, Esq.
105 East Elm Street 
Blackstone, Virginia

I

R.D. Mcllwaine, III, Esq. 
P. 0. Box 705
Petersburg, Virginia 23803
L. Paul Byrne, Esq.
701 East Franklin Street 
Richmond, Virginia 23219
George B. Little, Esq.
1510 Ross Building 
Richmond, Virginia 23219
Frederick T. Gray, Esq.
510 United Va. Bank Bldg. 
Richmond, Virgnia 23219

Attorney for Plaintiffs-Appellees



r ._L

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

)
| A T R U E  C OP Y
j  FREDERICK W. JOHNSON, Clerk

) BY / I  f t -  . _  _
) depu ' t y  c l e r k  ;)))
) CIVIL ACTION NO:
) 35257
))•)) '))))).)

FINDINGS OF FACT AND CONCLUSIONS OF LAW .
ON

DETROIT-ONLY RIANS OF DESEGREGATION_
In accordance with orders of the court defendant 

Detroit Board of Education submitted two plans, limited 
to the corporate limits of the city, for desegregation 
of the public schools of the City of Detroit, which we will 
refer to as Plan A and plan C; plaintiffs submitted a 
similarly limited plan, which will be referred to as the 
Foster Plan. Hearings were had on said plans ojii March 14,
15, 16, 17 and 21, 1972. In considering these plans the 
court does not limit itself to the proofs offered at the 
hearing just concluded; it considers as part of the evidence 
bearing on the issue (£.£., City-Only Plans) all proofs 
submitted in the case to this point, and it specifically 
incorporates herein by reference the Findings amd 
Conclusions contained in its "Ruling on Issue off Segregation," 

filed September 27, 1971.

RONALD BRADLEY, et al.,
Tlaintiffs

WILLIAM G. MILLIKEN, et al.,
Defendants

DETROIT FEDERATION OF TEACHERS,
LOCAL #231, AMERICAN FEDERATION 
OF TEACHERS, AFL-CIO,

Defendant-
Intervenor

and
DENISE MAGD0W5KI, et al.,

Defendants-
Intervenor

et al.



The court makes the following factual findings;

PLAN A .
1. The court finds that this plan is an elabora­

tion and extension of the so-called Magnet plan, previously 
authorized for implementation as^an interim plan pending 
hearing and determination on the issue of segregation.

2. As proposed we find, at the high school level, 
that it offers a greater and wider degree of specialization, 
but any hope that it would be effective to desegregate the 
public schools of the city of Detroit at that level is 
virtually ruled out by the failure of the current model to 
achieve any appreciable success.

3. We find, at the Middle School level, that the 
expanded model would affect, directly, about 24,000 pupils 
of a total of 140,000 in the grades covered; and its effect 
would be to set up a school system within the school system, 
and would intensify the segregation in schools not included 
in the Middle School program. In this, sense, it would 
increase segregation.

4. As conceded by its author, Plan A is neither a 
desegregation nor an integration plan.

PLAN C .
1. The court finds that Plan C is a token or part- 

time desegregation effort.

2. We find that this plan covers only a portion 

of the grades and would leave the base schools no less 

racially -identifiable.



I

PLAINTIFFS1 PLAN.
1. The court finds that Plaintiffs' Plan would 

accomplish more desegregation than now obtains in the system, 
or would be achieved under Plan A or Plan C.

2. We find further that the racial composition of 
the student body is such that tho. plan's implementation would 
clearly make the entire Detroit public school system 
racially identifiable, as Black.

3. The plan would require the development of trans­
portation on a vast scale which, according to the evidence, 
could not be furnished, ready for operation, by the opening
of the 1972-73 school year. The plan contemplates the 
transportation of 82,000 pupils and would require the 
acquisition of some 900 vehicles, the hiring and training 
of a great number of drivers, the procurement of space 
for storage and maintenance, the recruitment of maintenance 
and the not negligible task of designing a transportation 
system to service the schools.

4. The plan would entail an overall recasting
of the Detroit school system, when there is little assurance 
that it would not have to undergo another reorganization if 
a metropolitan plan is adopted.

5. It would involve the expenditure of vast sums 
of money and effort which would be wasted or lost.

6. The plan does not lend itself as a building 
block for a metropolitan plan.

7. The plan would make the Detroit school system 
more identifiab]y Black, and leave many of its schools 75 to

-3-



90 per cent Black.

8. It would change a school system which is now 
Black and White to one that would be perceived as Black, 
thereby increasing the flight of Whites from the city and 
the system, thereby increasing the Black student population.

9. It would subject the students and parents, 
faculty and administration, to the trauma of reassignments, 
with little likelihood that such reassignments would 
continue for any appreciable time.

In summary, we find that none of the three plans 
would result in the desegregation of the public schools of 
the Detroit school district.

/
CONCLUSIONS OF LAW

1. The court has continuing jurisdiction of this 
action for all purposes, including the granting of effective 
relief. see Ruling on Issue of Segregation, September 27, 
1971.

2. On the basis of the court's finding of illegal 
school segregation, the obligation of the school defendants 
is to adopt and implement an educationally sound, practicable 
plan of desegregation that promises realistically to achieve 
now and hereafter the greatest possible degree of actual 
school desegregation. Green v. County School Board. 391 u.S. 
430; Alexander v. Holmes County Board of Education. 396 U.S. 
19; Carter v. West Feliciana Parish School Board. 396 U.S.
2 9 Swann v. Charlotte-Meck]enburg Board of Education,
402 U.S. 1.

-4-



3. Detroit Board of Education plans A and C 
are legally insufficient because they do not promise to 
effect significant desegregation. Green v. County School 
Board, supra, at 439-440.

Plaintiffs' Plan, while it would provide a 
racial mix more in keeping with the Black-White proportions 
of the student population than under either of the Board's 
plans or as the system now stands, would accentuate the 
racial identifiability of the district as a Black school 
system, and would not accomplish desegregation.

5. The conclusion, under the evidence in this 
case, is inescapable that relief of segregation in the 
public schools of the City of Detroit cannot be accomplished 
within the corporate geographical limits of the city. The 
State, however, cannot escape its constitutional duty to 
desegregate the public schools of the City of Detroit by 
pleading local authority. As Judge Merhige pointed out 
in Bradley v. Richmond, (slip opinion p. 64):

"The power conferred by state law on central and 
local officials to determine the shape of school 
attendance units cannot be employed, as it has been 
here, for the purpose and with the effect of sealing 
off white conclaves of a racial composition more 
appealing to the local electorate and obstructing the 
desegregation of schools. The equal protection 
clause has required far greater inroads on local 
government structure than the relief sought here, 
which is attainable without deviating from state* 
statutory forms. Compare Reynolds v. Sims, 377 u.S.
533; Gomillion v. Lightfoot, 364 U.S. 339; Serrano v 
Priest, 40 U.S.L.W. 2128 (Calif. Sup. Ct. Aug. 30, 1971)
"In any case, if political boundaries amount to 
insuperable obstacles to dasegregation because of 
structural reason, such obstacles are self-imposed. 
Political subdivision lines are creations of the state itself, after all."



School district lines ore simply matters of
political convenience and may not be used to deny 
constitutional rights. If the boundary lines of the 
school districts of the City of Detroit and the surround­
ing suburbs were drawn today few would doubt that they 
could not withstand constitutional challenge. In seeking 
for solutions to the problem of school segregation, other 
federal courts have not "treated as immune from intervention 
the administrative structure of a state's educational 
system, to the extent that it affects the capacity to 
desegregate. Geographically or administratively independent 
units have been compelled to merge or to inititate or 
continue cooperative operation as a single system for school 
desegregation purposes."^

Detroit school district for a solution to the problem of
segregation in the Detroit public schools is' obvious;
that it has the authority, nay more, the duty to (under
the circumstances of this case) do so appears plainly

2anticipated by Brown II, seventeen years ago. While other
school cases have not had to deal with our exact 

3situation, the logic of their application of the command 
of Brown II supports our view of our duty.

That the court must look beyond the limits of the

United States District Judge

-G-



FOOTNOTES

1Bradley v. Richmond, supra (slip opinion p. 68).

2
Brown v. Bd. of Ed. of Topeka, 349 U.S. 294, pp. 300-301.

3Haney v. County Board of Education of Sevier County,
410 F.2d 920 (8th Cir. 1969); Bradley v. School Board of the 
City of Richmond, supra, slip opinion pp. 664-65; Hall v.
St. Helena Parish School Board, 197 F. Supp. 649 (E.D. La. 
1961), aff'd. 287 F.2d 376 (5th Cir. 1961) and 368 U.S. 515 
(1962); Lee v. Macon County Bd. of Educ., 448 F.2d 746, 752 
(5th Cir. 1971); Gomillion v. Lightfoot, 364 U.S. 339 (1960); 
Turner v. Littleton-Lake Gaston School Dist., 442 F.2d 584 
(4th Cir. 1971); United States v. Texas, 447 F.2d 551 
(5th Cir. 1971); Lemon v. Bossier Parish School Board, 446 
F.2d 911 (5th Cir. 1971).