Swann v. Charlotte-Mecklenberg Board of Education Brief Amicus Curiae

    Supreme Court of the United States
OCTOBER TERM, 1970

No. 281

JAMES E. SWANN, et a l .,
Petitioners,

v.

CHARLOTTE-MECKLENBURG BOARD OF 
EDUCATION, et  a l .,

Respondents.

ON W RIT OF CERTIORARI TO T H E  U N ITE D  STATES COURT 
OF APPEALS FOR T H E  FOURTH CIRCU IT

BRIEF FOR THE COMMONWEALTH OF VIRGINIA, 
AMICUS CURIAE

H u n t o n , W il l ia m s , G ay , 
P ow ell  & G ibson 

0 /  Counsel

A ndrew  P . M iller  
Attorney General 

W il l ia m  G. B roaddus 
T heodore J . M arrow

Assistant Attorneys General 
Supreme Court Building 
Richmond, Virginia 23219

L e w is  F. P ow ell , J r .
J o h n  W . R iely  
G eorge H . H ettrick  
Guy  K. T ower

Special Counsel 
700 East Main Street 
Richmond, Virginia 23212

Dated September 16, 1970.



Printed Letterpress by 
LEWIS PRINTING COMPANY 
Richmond, Virginia



TABLE OF CONTENTS

I . I ntrod uction  ..................................................................................   1

II. T h e  I nterest  Of V i r g i n ia ..........................................................  1

III. T h e  I ssu e  B efore T h e  C o u r t ...............................................  6

IV. S u m m a r y  O f A r g u m e n t .......................................................  6

V. A r g u m en t  ................................................................................  8

A. The Origin Of Racial Segregation Is Irrelevant.............  8

B. Racial Balance Is Not Required.......................................  10

C. The Highest Quality Of Education Must Be The Goal .. 17

D. The Court Below Misapplied Its Rule Of Reason.........  20

VI. C o n c lu sio n  .... .......................................................................   26

TABLE OF AUTHORITIES

Cases

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 (1968) ..2, 11

Atkins v. School Bd., 148 F. Supp. 430 (E.D.Va. 1957), aff’d 
246 F.2d 325 (4th Cir. 1957), cert, denied, 355 U.S. 855 
(1957).......................... .................... ........................................ . 1

Beckett v. School Bd., 308 F. Supp. 1274 (E.D.Va. 1969) ....9, 11, 22

Beckett v. School Bd., Civil Action No. 2214 (E.D.Va., Aug.
14, 1970) ........................................................ ....................... 20, 22

Beckett v. School Bd., Civil Action No. 2214 (E.D.Va., Aug.
27, 1970) ............................. - .......................................................  2

Bell v. School City, 324 F.2d 209 (7th Cir. 1963), cert, denied,
377 U.S. 924 (1964)..................................................................... 8

Blocker v. Board of Educ., 229 F. Supp 709 (E.D.N.Y. 1964) _ 10

i

Page



Bradley v. School Bd., Civil Action No. 3353 (E.D.Va., Aug.
17, 1970) ............................................................... ........................2, 3

Brewer v. School Bd., No. 14,544 (4th Cir., June 22, 1970), cert, 
denied, 38U.S.L.W. 3522 (U.S. June 29, 1970) (No. 1753)..3, 10

Brown v. Board of Educ., 347 U.S. 483 (1954)
1, 11, 15, 16, 18, 19, 24

Brown v. Board of Educ., 349 U.S. 294 (1955) ................... 1, 12, 24

Brunson v. Board of Trustees, No. 14,571 (4th Cir., June 5, 1970)
13, 15, 26

Carter v. West Feliciana School Bd., 396 U.S. 290 (1970) .......  11

Crawford v. Board of Educ., No. 822, 854 (Cal. Super. Ct.,
Feb. 11, 1970) ...............................................................................  21

Daniels v. School Bd., 145 F. Supp. 261 (E.D.Va., 1956) .........  1

Davis v. County School Bd., 103 F. Supp. 337 (E.D.Va., 1952) .. 1

Deal v. Cincinnati Bd. of Educ., 369 F.2d 55 (6th Cir. 1966), 
cert, denied, 389 U.S. 847 (1967) ....................................... 8, 9, 24

Green v. County School Bd., 391 U.S. 430 (1968) ........... 2, 11, 12

Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff’d sub 
nom., Smuck v. Hobson, 408 F.2d 175 (D.C.Cir. 1969) ___  17

James v. Almond, 170 F. Supp. 331 (E.D.Va. 1959), appeal 
dismissed, 359 U.S. 1006 (1959) .................................................  1

Northcross v. Board of Educ., 397 U.S. 232 (1970) ...................  12

Pierce v. Society of Sisters, 268 U.S. 511 (1925) ...........................  15

Thompson v. County School Bd., 144 F. Supp. 239 (E.D. Va. 
1956), aff’d sub nom. School Bd. v. Allen, 240 F.2d 59 (4th Cir. 
1956), cert, denied, 353 U.S. 910, 911 (1957), opinion supple­
mented, 159 F. Supp. 567 (1957), aff’d 252 F.2d 929 (1958), 
cert, denied, 356 U.S. 958 (1958), injunction dissolved, 204 
F. Supp. 620 (1962) __________________________________  1

United States v. Montgomery Bd. of Educ., 395 U.S. 225 (1969) 12

»

Page



Civil Rights Act of 1964, 42 U.S.C. § 2000c(b) (1964) ...............  22

Education Appropriations Act of 1971, P.L. 91-380, 91st Cong.,
2d Sess., §§ 209, 210 (1970) ....................................................... 22

Elementary and Secondary Education Act of 1965, 20 U.S.C.
§ 884 (1966), amending 20 U.S.C. § 884 (1965) ...................  22

S. 4167, 91st Cong., 2d Sess. (1970) .............................................  10

A. Bickel, The Supreme Court and the Idea of Progress (1970) .... 10

Christian Science Monitor, Aug. 14, 1970 ....................................... 23

Civil Rights U.S.A.: Public Schools North and West, U.S. 
Comm’n on Civil Rights (1962) ................................................. 16

R. Clark, Testimony before Senate Select Committee on Equal 
Educational Opportunity (July 7, 1970) ...................................  9

Cohen, Defining Racial Equality in Education, 16 U.C.L.A.
L. Rev. 255 (1959) .............................................................. 18, 19

Coleman, The Concept of Equality of Educational Opportunity,
38 Harv. Educ. Rev. 7 (1968) ................................................... 19

J. Conant, Slums and Suburbs (1961) .......................................... 23

Desegregation of America’s Elementary and Secondary Schools, 
Weekly Compilation of Presidential Documents (March 30, 
1970) ..............................................................................................  21

Equality of Educational Opportunity, Office of Education, U.S. 
Dept, of Health, Education and Welfare (1966) ............... 4, 18

Freund, Civil Rights and the Limits of Law, 14 Buffalo L. Rev.
199 (1964) .......................................................- .........................  9

C. Hansen, Danger in Washington (1968) ................................ —  23

Kemer, et al., Report of the National Advisory Comm’n on Civil 
Disorders (1968) ........................................................................... 16

N.Y. Times, Feb. 12, 1970...................................... - ......................... 21

Other Authorities
Page



Page 

. . .  22 

... 23

N.Y. Times, Sept. 13, 1970

N.Y. Times, Sept. 14, 1970

Racial Isolation in the Public Schools, U.S. Comm’n on Civil 
Rights (1967) ............................................................... 4, 9, 14, 25

United States Census of Population: 1960 Standard Metropolitan 
Statistical Areas, Bureau of the Census, U.S. Dept, of Com­
merce (1963) .................................................................................  15

M. Weinberg, Desegregation Research: An Analysis (1968) ....23, 26

M. Weinberg, Race and Place, Office of Education, U.S. Dept, of 
Health, Education and Welfare (1967) .....................................  9

rr



INTRODUCTION

The Commonwealth of Virginia, because of the immedi­
ate effect that the decision in this case will have on many 
thousands of its citizens, requests the Court to consider 
its views outlined in this brief. It seeks modification of the 
opinions of both of the courts below and an expression of 
principles that will guide all courts throughout the nation 
in this most difficult area of basic human relationships.

n.
THE INTEREST OF VIRGINIA

In Virginia, segregation by race in the public schools 
was required by constitution and statute prior to 1954. In 
fact, one of the cases decided here under the style of Brown 
v. Board of Education1 came to this Court from a Vir­
ginia locality.2 3

It would be erroneous to assert that Virginia localities 
welcomed Brown I  and began at once to put into effect the 
remedial steps required by Brown I I s; in most places they 
did not. There was, instead, intense public opposition and 
much delay. As a result, litigation arose in many communi­
ties.4 The march toward what more recently has been termed

1 347 U.S. 483 (1954).
2 Davis v. County School Bd., 103 F. Supp. 337 (E.D.Va. 1952), 

reversed by the Brown decisions.
3 349 U.S. 294 (1955).
* See, e.g., Thompson v. County School Bd., 144 F. Supp. 239 

(1956), aff’d sub. nom School Bd. v. Allen, 240 F.2d 59 (1956), cert, 
denied, 353 U.S. 910, 911 (1957), opinion supplemented, 159 F. 
Supp. 567 (1957), aff’d 252 F.2d 929 (1958), cert, denied, 356 U.S. 
958 (1958), injunction dissolved, 204 F. Supp. 620 (1962); Daniels 
v. School Bd., 145 F. Supp. 261 (1956); Atkins v. School Bd. 
148 F. Supp. 430 (1957), aff’d 246 F.2d 325 (1957), cert, denied, 
355 U.S. 855 (1957); James v. Almond, 170 F.Supp. 331 (1959), 
appeal dismissed, 359 U.S. 1006 (1959).

I.



2

a “unitary” system of public schools proceeded inexorably in 
Virginia but, for a decade, it was an unwilling march 
prodded by the courts of the United States.

It is now fair to say that Virginia localities* 6 are attempt­
ing in good faith to comply with the mandate of the Equal 
Protection Clause. But the courts have failed to make it 
clear exactly what compliance entails. The dual system 
must be replaced by a unitary school system,6 but how this is 
to be accomplished is still far from apparent.

The result has been a chaotic condition in several of 
Virginia’s school systems. Two of its largest school divi­
sions, as the local systems are called, are located in Rich­
mond and Norfolk, Virginia’s two largest cities. Litigation 
affecting both of these cities has produced orders in August 
of this year substantially rearranging school attendance 
areas and inevitably requiring extensive pupil busing.7 This 
has resulted in major disruption of public education and 
confusion among white and black parents, students, faculty 
and staff; it often has led to resentment and even fear.

The educational process is difficult enough without such 
disruption. The time has come to think first of education 
and the whole body of children to be educated. That, in our 
view, can be accomplished only by the establishment by this 
Court of the parameters within which school officials are to 
act and by which their action is to be judged by the courts.

The factual situation existing in Charlotte, North Caro­
lina, presents certain striking similarities to the situations 
presented by Norfolk and Richmond. All three cities are

In Virginia local school boards, pursuant to the State constitution, 
have the primary responsibility to operate the public schools.

6 Green v. County School Bd., 391 U.S. 430, 438 (1968) ; Alex­
ander v. Holmes County Bd. of Educ., 396 U.S. 19, 21 (1968).

7 Bradley v. School Bd., Civil Action No. 3353 (E.D. Va., Aug. 
17, 1970) (Richmond) ; Beckett v. School Bd., Civil Action No. 
2214 (E.D. Va., Aug. 27, 1970) (Norfolk).



3

localities where, prior to 1954, segregation by race was re­
quired by law. In all three, the percentage of black students 
in the school population is significant, the 70% white and 
30% black ratio of Charlotte becoming 60% white and 
40% black in Norfolk and reversing to less than 40% 
white and more than 60% black in Richmond.

Plans proposed by HEW  and others presented by 
the Norfolk and Richmond School Boards were rejected 
because, the courts said, racial imbalance was not elimi­
nated in sufficient degree.8 That result obtains equally in 
this case from Charlotte. In each of these cases the court’s 
solution was to require greater racial balance and, inevitably, 
massive compulsory busing of students.

The question in those cases, as here, was whether racial 
balance is an end in itself; if substantial racial balance must 
be achieved, regardless of other educational factors that are 
of significance in the situation presented, then the District 
Courts were right in Charlotte and Richmond and the Court 
of Appeals was right in Norfolk. If, as we urge, other 
factors are also relevant, those courts were in error.

What will be decided here is, therefore, entirely relevant 
in the two most critical Virginia situations. For that rea­
son, the decision here may be determinative in Virginia. 
Therein lies Virginia’s interest.

There are, of course, substantial points of difference be­
tween Charlotte and the Virginia cities. The difference in 
the racial mix has already been mentioned. This results 
primarily from the fact that, by and large, the Norfolk and 
Richmond school divisions are entirely urban rather than 
both rural and urban as is the case in Charlotte. Norfolk is

8 Bradley v. School, Civil Action No. 3353 (E.D. Va., Aug. 
17, 1970) (memorandum opinion) ; Brewer v. School Bd., No. 
14,544 (4th Cir., June 22, 1970), cert, denied, 38 U.S.L.W. 3522 
(U.S. June 29, 1970) (No. 1753).



4

adjoined by two cities, Chesapeake and Virginia Beach; in 
them the percentage of black students is relatively small. 
Richmond is bounded by two counties, Chesterfield and 
Henrico; again their black student percentages are drasti­
cally lower than is that of Richmond. As urban systems, the 
two Virginia cities do not normally provide transportation 
for pupils. The transportation problem presented by the 
racial balance requirement is therefore more acute because 
of the lack of facilities.

A brief word may be relevant as to the Norfolk and 
Richmond plans that were rejected by the United States 
courts. In both cities, the rejected plans provide for the 
effective integration of all senior high schools and all junior 
high schools or middle schools. In both plans, the respective 
school boards go far beyond neutral or objective zoning 
plans, gerrymandering natural attendance zones in a man­
ner designed to increase the degree of integration in the 
systems and to overcome the segregative effects of racial 
residential patterns. Both plans include a majority-to- 
minority transfer provision. The Richmond plan calls for 
“learning centers” where weekly or bi-weekly interracial 
educational experiences are to be provided for each child in 
the system who attends a school with a population 90% or 
more of the same race. Principles of the Norfolk plan were 
explicitly based on the best available social science data, in­
cluding the highly regarded research projects sponsored by 
the U.S. Office of Kducation8 9 and the U.S. Commission on 
Civil Rights.10

In sum, both plans adopt a neighborhood or community 
concept in the sense that attendance areas for elementary

8 Equality of Educational Opportunity, Office of Education U.S.
Dept, of Health, Education and Welfare (1966).

10 Racial Isolation in the Public Schools, U.S. Comtn’n on Civil 
Rights (1967).



5

schools are served by one or several schools and the advan­
tages of convenience and close school-family relationships 
are retained where practical. Overlaying this concept, how­
ever, is the use in each plan of all feasible alternatives to 
maximize integration. A number of subsidiary concepts, 
such as pairing, consolidation and closing of schools, are in­
corporated in the plans. No alternative plan was offered at 
any hearing which would have the effect of increasing the 
amount of desegregation that would result from the school 
board plans, short of a plan which would require compul­
sory massive busing to attain racial balance throughout each 
system.

The question before the Virginia federal courts was, 
accordingly, much the same as that presented in Charlotte: 
is racial balance a constitutional requirement? The difficul­
ties of busing in an urban system were presented to the 
courts in both Virginia cases. The expense of initiation of 
school transportation systems, a factor not present in Char­
lotte, and the inadequacy of existing public transportation 
systems were explored. The plaintiffs nevertheless sought 
approval of plans requiring cross-busing, even of the 
youngest children. Those plans, in essence, received ulti­
mate judicial confirmation.

Virginia opposes racial balance as a constitutional require­
ment. It believes that such balance must be considered; but 
it should not be the controlling consideration. It seems to us 
that racial balance alone was the determining factor in 
Charlotte, Norfolk and Richmond. We suggest to the Court 
that racial balance is not a desideratum in itself and that 
this Court should declare the constitutional mandate to be 
the best available quality of education for all regardless of 
race or color.



6

THE ISSUE BEFORE THE COURT

The central issue before the Court is whether racial bal­
ance is an end in itself, required by the Constitution with­
out regard to other educational considerations or other 
values.

III.

IV.
SUMMARY OF ARGUMENT

A.

The Origin Of Racial Segregation Is Irrelevant

The proposition that one set of rules applies where the 
origin of racial segregation was de jure and another where 
the origin was de facto is without substance. History is 
irrelevant to the enforcement of a constitutional right. 
Racial segregation has almost everywhere received State 
support. Thus no racial segregation is purely de facto. 
Because the State maintains public schools, a segregated 
system constitutes State action. Its existence, without regard 
to its origin, thus raises a substantial constitutional ques­
tion. The same rules must apply to non-unitary systems 
wherever found.

B.

Racial Balance Is Not Required

Racial balance in the schools is not a constitutional im­
perative. No decision of this Court has established such 
a mandate. It is effective neither to accomplish integration 
nor to improve education. Racial balance once prescribed 
may be outdated by population shifts before it becomes ef­
fective. The effort to attain racial balance promotes resegre­



7

gation and movement to suburbia. These results defeat the 
goal of racial balancing, adversely affect education and 
contribute to urban deterioration.

C.

The Highest Quality Of Education Must Be The Goal

The goal of the desegregation movement must be to 
achieve the highest quality of education. That has been the 
thrust of previous decisions of this Court. Equal opportunity 
is not to be measured purely by equality of resource appli­
cation and racial balance; that system best conforms to the 
constitutional mandate that provides, through equal oppor­
tunity for every student, the highest level of achievement 
for all students of every race, compensating appropriately 
for any deficiencies that may have resulted from previous 
racial segregation. The court below failed to recognize that 
the best educational achievement for all is what the Consti­
tution demands.

D.

The Court Below Misapplied Its Rule Of Reason

The court below unduly emphasized racial balance. It 
also failed to recognize the relevance of the neighborhood 
school and the disadvantages for all races of extensive 
compulsory busing. The neighborhood school has obvious 
social and educational advantages, particularly at the ele­
mentary level. It can be used with a number of related tech­
niques reasonably applied, without destroying neighborhood 
advantages. Modern social scientists have developed many 
considerations that ought to be taken into account in de­
vising the plan that, giving weight to all relevant disparities, 
best promotes the educational achievement of students of 
all races.



8

V.

ARGUMENT

A.

The Origin Of Racial Segregation Is Irrelevant

In its consideration of the question presented here, the 
Court of Appeals, in the plurality opinion, went to some 
lengths to determine that the segregated pattern of housing 
in Charlotte results from governmental action. We consider 
this investigation irrelevant. We consider it more than irrele­
vant ; it may be pernicious. It could lead to one set of rules 
applying in one area of our nation and another set apply­
ing in another. The constitutional right at issue here should 
be available to all citizens without regard to the fortuitous 
circumstance of the racial history of the places in which 
they live.

An Unsound, Distinction

Such an investigation presupposes that one set of rules 
applies where the origin of racial segregation was de jure 
and another set where the origin was de facto. As an ex­
ample of this distinction, reference is made to Deal v. Cin­
cinnati Board of Education, 369 F.2d 55 (6th Cir. 1966), 
cert, denied, 389 U.S. 847 (1967). There, the Sixth Circuit 
held that the school board has no duty to bus students 
“. . . for the sole purpose of alleviating racial imbalance that 
it did not cause . . . . ” (369 F.2d a t61).11

First, the question is not whether the State action is 
limited to schools; it is a matter of State action in all phases 
of race relationships such as public housing and zoning. In 
this context, it is probable that all racial segregation in the

11 See also Bell v. School City, 324 F.2d 209 ( 7th Cir. 1963), cert, 
denied, 377 U.S. 924 (1964).



9

United States, wherever occurring, has at some time been 
maintained or supported by governmental action.12 Thus 
there is no such thing as de facto segregation that is not of 
de jure origin in some degree. The distinction purportedly 
made in Deal cannot, then, be factually supported.13

State Action is Inevitable

But the vice lies deeper. Public schools are creatures of 
the State, and a State may not continue to operate through 
its local school boards or otherwise a system which denies 
a constitutional right. Thus, a school system which denies 
equal educational opportunity infringes protected rights. 
Whether such a system was State created or State assisted 
or merely State perpetuated is beside the point. If it de­
prives children of equal educational opportunity, the Equal 
Protection Clause is infringed.

Uniformity of Constitutional Rights

This conclusion is not only sound doctrine but desirable 
public policy. If non-unitary school systems must be elim­
inated because they perpetuate racial segregation, they must 
be extirpated everywhere and not just in the former Con­
federate states. A constitutional right ought not to be en­

12 In Appendix C to his opinion, Judge Hoffman complied a sum­
mary of governmental action in the various states. Beckett v. School 
Bd., 308 F. Supp. 1274, 1304, 1311-15. See also Racial Isolation in The 
Public Schools, U.S. Comm’n on Civil Rights 245, 254-59 (1967); M. 
Weinberg, Race and Place, Office of Education, U.S. Dept, of Health, 
Education and Welfare (1967).

13 See Freund, Civil Rights and the Limits of Law, 14 Buffalo L. 
Rev. 199, 205 (1964). On July 7, 1970, Ramsey Clark, former At­
torney General of the United States, testifying before the Senate 
Select Committee on Equal Educational Opportunity, said:

“In fact, there is no de facto segregation. All segregation re­
flects some past actions of our governments.’’



10

forced in Virginia and denied enforcement in Ohio or 
Indiana because of the vagaries of history.

Professor Bickel has commented on this double standard. 
As he points out: “Outside the South . . . school segregation 
is massive, and has, indeed, increased substantially in recent 
years . . . caused mainly by residential patterns. Neverthe­
less, very few federal courts have tried to intervene [and] 
none has done so without qualification.”14

In commenting on the incongruity of different rules 
issuing “out of the same federal judiciary” Professor Bickel 
spoke of “one binding rule of constitutional law for Man- 
hasset, New York” and “a different rule of constitutional 
law for New York City.”15 16 *

Such a situation, without precedent in constitutional doc­
trine, cannot be tolerated. Citizens are entitled to enforce­
ment of constitutional rights evenly and consistently 
throughout the United States. The Constitution requires 
no less.18

B.

Racial Balance Is Not Required

Opponents of the school board plans insist upon sub­
stantial racial balancing in each school in a system. If, as in

14 A. Bickel, The Supreme Court and the Idea of Progress 131 
(1970). See also Racial Isolation in the Public Schools, supra, at 2-10.

15 Id. at p. 133. The Manhasset decision is found in Blocker v. 
Board of Educ., 229 F. Supp. 709 (E.D.N.Y. 1964).

16 This is, among other things, the purpose of S. 4167, 91st
Cong., 2d Sess. (1970), introduced by Senator William B. Spong 
of Virginia (and a similar bill introduced in the House of Repre­
sentatives). Hearings on these bills have been held before ap­
propriate committees in both houses. See also Sobeloff and Winter, 
JJ-, concurring specially in Brewer v. School Bd., No. 14,544 (4th 
Cir., June 22,1970) (Norfolk).



11

Richmond, the overall student population ratio is 60% black 
and 40% white, these opponents contend that each school in 
the system must have substantially this ratio both of pupils 
and teachers.17

It is submitted that the racial balance concept is neither 
required by the Constitution nor is in the public interest. 
Indeed, if established as the “law of the land,” its conse­
quences could be disastrous to public education.

The Decisions of This Court
What Brown I  required, to assure equal educational op­

portunity, was the elimination of racial segregation in the 
schools. Subsequent cases have added the affirmative man­
date that dual school systems must be eliminated and unitary 
systems established.18 These are the terms with which local 
school boards and lower courts have struggled. Some have 
construed them to require racial balancing; others, more 
perceptive we think, have recognized that this Court has 
never projected a mechanistic solution for a problem of 
such delicacy and diversity. Brown I  states:

“. . . because of the wide applicability of this decision, 
and because of the great variety of local conditions, 
the formulating of decrees in these cases presents prob­
lems of considerable complexity.” 347 U.S. at 495.

When the Court came to the problem of formulating de­
crees, it provided substantial latitude:

17 Beckett v. School Bd., 308 F. Supp. 1274, 1276 (E.D.Va. 
1969), stating the position of the plaintiffs. See Winter and Sobeloff, 
JJ., concurring in part and dissenting in part, in the court below in
this case. „

18 Green v. County School Bd., 391 U.S. 430 (1968) ; Alexander v. 
Holmes County Bd. of Educ., 396 U.S. 19 (1969); Carter v. West 
Feliciana School Bd., 396 U.S. 290 (1970).



12

“In fashioning and effectuating the decrees, the 
courts will be guided by equitable principles. Tradi­
tionally 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.” 349 U.S. at 300.

Further along in that opinion, Mr. Chief Justice Warren 
recognized that there were a number of areas of considera­
tion. He said:

“To that end, the courts may consider problems related 
to administration, arising from the physical condition 
of the school plant, the school transportation system, 
personnel, revision of school districts and attendance 
areas into compact units to achieve a system of de­
termining admission to the public schools on a non- 
racial basis, and revision of local laws and regulations 
which may be necessary in solving the foregoing prob­
lems.” 349 U.S. at 300-01.

The approach remains unchanged. In Green v. County 
School Board, 391 U.S. 430 (1968), Mr. Justice Brennan 
said, speaking for the Court:

“There is no universal answer to complex problems 
of desegregation; there is obviously no one plan that 
will do the job in every case. The matter must be 
assessed in the light of the circumstances present and 
the options available in each instance.” 391 U.S. at 439.

See also United States v. Montgomery Board of Education, 
395 U.S. 225, 235 (1969). And Mr. Chief Justice Burger 
has made clear his view that there are a number of areas 
other than (but including) transportation that must be 
given consideration. He said, concurring in the result in 
Northcross v. Board of Education, 397 U.S. 232 (1970) :



13

. . we ought to resolve some of the basic practical 
problems when they are appropriately presented in­
cluding whether, as a constitutional matter, any par­
ticular racial balance must be achieved in the schools; 
to what extent school districts and zones may or must 
be altered as a constitutional matter; to what extent 
transportation may or must be provided to achieve the 
ends sought by prior holdings of the Court.” 397 U.S. 
at 237.

This Court could hardly have more clearly stated its 
refusal to enunciate a mechanistic rule of racial balance
in every case.

Racial Balance is Illusory

The issue before this Court is whether such a rule should 
now be established. Those who support it argue that it has 
the virtue of exactitude; that it would be easy for courts to 
adopt and administer; and that it would put an end to the in­
evitable litigation resulting from the application of a less 
definitive rule.

We suggest that these views misconceive both the consti­
tutional requirements and the realities of public education.

The racial mix varies widely among the cities and counties 
of this country. The range is from school districts which 
are perhaps 90% black (Washington, D. C. and Clarendon 
County, South Carolina19) to many districts which are 
nearly all white. The demography also constantly varies, es­
pecially within cities. The population ratio changes as citi­
zens move to suburban areas, and white and black families

19 See Brunson v. Board of Trustees, No. 14,571 (4th Cir., June 5, 
1970).



14

are constantly moving within cities. Racial balance estab­
lished one year would rarely be valid two or three years later.

The City of Richmond is not atypical. In 1960 the 
school population ratio was 55% black and 45% white. 
Prior to the annexation of a portion of Chesterfield County 
on January 1, 1970, population shifts—some perhaps re­
lated to integration, but most to the normal desire to live 
in suburbia—had increased the ratio of black to 70%. An­
nexation temporarily reversed this trend, so that the black 
majority was reduced to about 60%. At the opening of the 
present school session, it has grown to 64%. No one be­
lieves it will remain there for as much as a year.

As shown in the Richmond case, population shifts within 
the city have been equally dramatic. Many previously white 
areas are now all black. But despite this shifting there are 
in Richmond—as in scores of cities in the North and South

large areas populated entirely by blacks, with the fringes 
populated by the poorer whites.20

To impose, as urged by plaintiffs, an arbitrary per­
centage mixing in every school in Richmond would be as 
unrealistic as to impose such a scheme upon New York, 
Chicago, Philadelphia or Pittsburgh. Yet, if racial balance 
is a constitutional imperative, it is applicable to all commu­
nities at all times.

Racial Balance is Regressive

One wonders why compulsory racial balancing is ad­
vocated. It would be difficult to conceive of a more certain 
way to assure a return, in countless communities, to es­
sentially separate schools—if not for whites and blacks, 
certainly for those in the lower income levels of both races.

20 Racial Isolation in the Public Schools, supra, at 19-20, 31.



15

The shorthand term, often used critically, is “white 
flight.” Concurring opinions below criticize this exercise of 
freedom.21

But the connotation of “white flight” misconceives the 
fundamentals. It is obviously true that since Brown the 
white exodus to suburbia has accelerated. It must be re­
membered, however, that the population movement from 
congested urban areas into suburban environments has long 
been characteristic of the American scene.22 It antedated 
Brown; it exists throughout our country, and indeed abroad; 
in its genesis, it bore no relation whatever to school integra­
tion. Indeed, the desire to move upward economically and 
socially—so basic to the American ideal—reflects itself no­
where as strongly as in the urge for a better residential 
environment. Often access to a particular neighborhood 
school is a dominant factor in selecting a new home site.

These ambitions cannot be suppressed by court decrees. 
The movement from congested urban areas will continue 
regardless of how this case is decided. But few would doubt 
that it will accelerate geometrically if the concept of racial 
balance is enforced by law.23 Examples of the inevitable

21 See Sobeloflr and Winter, JJ., concurring in part and dissenting 
in part in this case and in Brunson v. Board of Trustees, supra, at 
n. 19. White flight is, of course, an erroneous term because middle 
income citizens of both races are seeking suburbia.

22 United States Census of Population: 1960, Standard Metropolitan 
Statistical Areas, Bureau of the Census, U.S. Dept, of Commerce 
1-257 (1963).

23 The trend toward private schools, especially in the South, will 
also be accelerated. There are some who say that the “remedy” for 
this is the outlawing of private schools or withdrawing of their tax ad­
vantages. But this drastic solution would scarcely be acceptable to the 
public generally. In addition, it would require the overruling of Pierce 
v. Society of Sisters, 268 U.S. 511 (1925).



16

resegregation24 process are numerous, but Washington, 
D. C. suffices.

It is thus evident that enforced racial balance is both 
regressive and unproductive. It frustrates the aspirations 
of Brown, namely, the promotion of equal education oppor­
tunity; it assures in time the resegregation of most of the 
blacks in many urban communities. This will result in de­
teriorating educational opportunities both for the poorer 
blacks and whites who cannot afford to move.

In short, the end result is precisely the opposite of that 
desired; it widens the disparities between the lower and the 
middle-income families of both races.

The adverse economic and social consequences of re­
segregation, however caused, also are disquieting. Prop­
erty values deteriorate; sources of local taxation shrink; all 
municipal services—as well as education—suffer; and— 
worst of all—the quality of civic leadership erodes.25

The foregoing results, now known from experience to be 
predictable, are scarcely in the public interest. They sug­
gest the need for careful rethinking of proposals such as 
enforced racial balance which accelerate the process of 
urban deterioration.26

24“ [A]t the critical point—whatever it is—a formerly stable state 
of integration tends to deteriorate, being reflected by the exodus of 
white pupils. At the same time that this process is going on in the 
schools, the exodus of white residents is also apparent in the turnover 
of housing to the Negroes at only a slightly slower pace.” Civil Rights 
U.S.A.: Public Schools North and West, U.S. Comm’n on Civil 
Rights 185-86 (1962).

-5 Kerner et al., Report of the National Advisory Commission on 
Civil Disorders 220 (1968).

26 Indeed, the integration of schools is only one aspect of the com­
plex of problems associated with urban life. The courts are ill-equipped 
to deal with these problems, which lie primarily within the province of 
the legislative and executive branches. The time may have come, 
with respect to the schools, for greater reliance upon the Congress as 
contemplated by Section 5 of the Fourteenth Amendment.



17

Restructuring of Governmental Relationships

The results of enforced racial balance could be sufficiently 
serious to prompt demands for restructuring of federal and 
state relationships. The facile answer to population with­
drawal from urban areas is to enlarge the boundaries of 
school districts.27 But this cannot be done, either by judicial 
decree or federal legislation, without uprooting state consti­
tutional and statutory provisions with respect to the auton­
omy and authority of local school boards and governmental 
subdivisions. And new and enlarged boundaries, wher­
ever drawn, would not long contain a mobile and unwilling 
population.

C.

The Highest Quality Of Education Must Be The Goal

If not racial balance, what is the alternative that is com­
patible with the Constitution and the goal of quality educa­
tion for all ? We think there can be no single, inflexible rule. 
We start from principles settled by this Court: Racial dis­
crimination is a denial of equal educational opportunity; 
dual or segregated school systems are proscribed; and school 
authorities have an affirmative duty to establish unitary sys­
tems. These principles must be observed and applied, not as 
ends in themselves but as means of achieving the educa­
tional goal. The alternative then, to simplistic racial mixing 
pursuant to formula, is to recognize that reasonable dis­
cretion must be allowed in the assignment of pupils and the 
administration of a school system so long as the foregoing 
principles are not contravened and the measures taken com­
port with the educational goal.

27 See Hobson v. Hanson, 269 F. Supp. 401, 515-16 (D.D.C. 1967), 
aff’d sub nom., Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969).



18

That education of the best quality is the goal was clearly 
recognized in Brown I :

“Today, education is perhaps the most important func­
tion of state and local governments. Compulsory school 
attendance laws and the great expenditures for educa­
tion both demonstrate our recognition of the impor­
tance of education to our democratic society. It is re­
quired in the performance of our most basic public 
responsibilities, even service in the armed forces. It is 
the very foundation of good citizenship. Today it is a 
principal instrument in awakening the child to cultural 
values, in preparing him for later professional train­
ing, and in helping him to adjust normally to his en­
vironment. In these days, it is doubtful that any child 
may reasonably be expected to succeed in life if he is 
denied the opportunity of an education. . . . ” 347 U.S. 
at 493.

It seems clear that desegregation by race is only one step 
along the road toward equal educational opportunity—an 
equal chance to obtain the best education that the particular 
system can provide. The goal is the best education for all; 
racial segregation is an impediment to be removed in striv­
ing to achieve that goal.

The best education, however, is not achieved solely through 
racial integration. In a recent article. Dr. David K. Cohen 
states that “three major criteria of equality seem to com­
pete as policy alternatives: equal resource allocation, de- 
segregation, and equality of educational outcome. . . . ” 
Cohen, Defining Racial Equality in Education, 16 U.C.L.A. 
L. Rev. 255 (1969). But, as Dr. James Coleman, author of 
the famous Coleman Report,28 has concluded, equal resource 
allocation plus desegregation does not necessarily result in 
improved educational output. He said that “ [t]he result of

28 Equality of Educational Opportunity, Office of Education, U.S. 
Dept, of Health, Education and Welfare (1966).



19

the first two approaches (tangible input to the school, and 
[de]segregation) can certainly be translated into policy, 
but there is no good evidence that these policies will improve 
education’s effects. . . Coleman, The Concept of Equality 
of Educational Opportunity, 38 Harv. Educ. Rev. 7, 17 
(1968). And the goal is, after all, the improvement of the 
effect of education.

This conclusion has received the concurrence of Dr. 
Cohen. He states:

“The problem, however, is that although desegrega­
tion and equal resources are educationally salient, both 
seem a good deal less strategic than achievement. Judg­
ments about the quality of students’ education in 
America are certainly not made on a purely merito­
cratic basis, but students’ achievement still weighs more 
heavily in the balance than either the degree of racial 
integration, or the quality of resources in their schools. 
The same thing is true of the standards presently em­
ployed in assessing schools’ effectiveness. Equal 
achievement seems the most relevant standard of racial 
equality.” Cohen, Defining Racial Equality in Educa­
tion, 16 U.C.L.A. L. Rev. 255, 278 (1969).

Dr. Cohen concludes that the implicit assumption of 
Brown I  that desegregation and proper resource allocation 
would result in equal achievement was an erroneous one:

“Experience and knowledge gained since then have 
shown that the two standards cannot be met by the 
same measures.” Id. at 280.

What, therefore, is the criterion? In Dr. Cohen’s words, 
it is equal achievement; in Dr. Coleman’s, it is educational 
output. What, in simpler terms, the school boards must seek 
and the courts must approve is the means to promote equal 
educational opportunity, regardness of race, in a system 
structured for the highest achievement.



20

It seems strange that this goal is not mentioned by the 
court below. It places no emphasis whatsoever on the 
quality of education. It seems mesmerized by race; it hardly 
seems to recognize that we are presented with an educa­
tional problem of which race is merely a facet.29

D.

The Court Below Misapplied Its Rule Of Reason

The Court of Appeals in the Charlotte case adopted a 
“test of reasonableness,” saying:

1. “not every school in a unitary school system need 
be integrated.”

2. “school boards must use all reasonable means to 
integrate the schools in their jurisdiction.”

3. Where all schools cannot reasonably be inte­
grated, “school boards must take further steps to as­
sure that pupils are not excluded from integrated 
schools on the basis of race.”

These views, we think, are compatible with the opinions 
of this Court. They do not accept the mechanistic rule of 
racial balance.

But we believe the Court of Appeals misconceived the ap­
plication of its own test. The focus, as is evident from the 
rejection of the school board plans in Charlotte, Norfolk and 
Richmond, was upon desegregation with little or no visible 
concern for the object of desegregation, namely, improved 
educational opportunity for all students. We think that the 
Court below departed from an appropriate test of reason­
ableness particularly with respect to (i) its emphasis on

29 The District Judge in the Norfolk case commented correctly that 
the word “education” does not even appear in the opinion of the 
Court of Appeals reversing his general approval of the Norfolk School 
Board’s plan. Beckett v. School Bd., Civil Action No. 2214 (E.D.Va., 
Aug. 14, 1970).



21

extensive compulsory busing and (ii) its misappreciation 
of the educational relevance of neighborhood or community 
schools.

Compulsory Busing
There is nothing inherently wrong with transporting 

school children where this is necessary. In every rural school 
district busing is a necessity. In such districts in the South 
it was used for decades to implement segregation. In the 
Charlotte case, involving a large urban-rural school district, 
there was substantial necessary busing before the District 
Court undertook in effect to impose racial balance by ex­
tensive cross busing.

Even in an urban district some busing may be appro­
priate, contributing both to integration and sound educa­
tion. The problem, one so familiar in law, is one of degree 
and reasonableness. A notable example of unreasonable 
busing in pursuit of racial balance is that ordered in Craw­
ford v. Board of Education.30 In that case the Los Angeles 
school board was ordered to establish a rigorously uniform 
racial balance throughout its 711-square-mile district, with 
its 775,000 children in 561 schools. This order, if upheld on 
appeal, would require the busing of 240,000 students at a 
cost of $40 million for the first year and $20 million for 
each year thereafter with the result that the deficit of 
$34-54 million already confronting the school board would 
be increased by these amounts.31

30 No. 822, 854 (Cal. Super. Ct., Feb. 11,1970).
31 N.Y. Times, Feb. 12, 1970, at 1, col. 5 (city ed.). President 

Nixon, in his statement of March 24, 1970, aptly states that rulings 
of this character “. . . would divert such huge sums of money to 
non-educational purposes, and would create such severe disruption 
of public school systems, as to impair the primary function of provid­
ing a good education.” Desegregation of America’s Elementary and 
Secondary Schools, Weekly Compilation of Presidential Documents 
(March 30, 1970).



22

The preoccupation with “racial mixing of bodies”32 has 
often caused the overlooking of the social and educational 
disadvantages of busing, especially at the elementary level.33 
It removes a child from a familiar environment and places 
him in a strange one; it separates the child from parental 
supervision for longer periods of time; it undermines the 
neighborhood or community school, so desirable at the 
elementary level; and it adds to already strained budgetary 
demands.

These are the considerations which have prompted the 
Congress, reflecting overwhelming public sentiment, three 
times to record its opposition to enforced busing merely to 
achieve racial balance.34 35 * *

The Neighborhood School

We think that the Court below also largely ignored the 
educational advantages of the neighborhood school at the 
elementary level. The geographic neighborhood is the most 
common unit of organization of urban elementary public 
schools.30 The neighborhood unit provides for ease of access 
to schools for students, minimizing costs and time of

32 In his memorandum decision of August 14, 1970, attempting to 
implement the mandate of the Circuit Court, Judge Hoffman com­
mented “that the benefits of sound education have now been clearly 
subordinated to the requirement that racial bodies be mixed.” 
See also Beckett v. School Bd., 308 F. Supp. at 1302.

33 A disturbing aspect of seeking racial balance at any cost is that 
children too often are treated as pawns to produce sociological changes 
that are related more to other factors, such as housing, than to edu­
cation.

34 Civil Rights Act of 1964, 42 U.S.C. § 2000c(b) (1964) ; Ele­
mentary and Secondary Education Act of 1965, 20 U.S.C. § 884 
(1966), amending 20 U.S.C. § 884 (1965) ; Education Appropriations 
Act of 1971, P.L. 91-380, 91st Cong., 2d Sess., §§ 209, 210 (1970).

35 New York City’s current experiment in decentralization is
further evidence of the vitality of the neighborhood or community
concept. N.Y. Times, Sept. 13, 1970, at 1, col. 2.



23

travel to and from school, and thus maximizing the po­
tential extracurricular role schools can play in the lives 
both of parents and children. These factors, along with 
the associational benefits of attending school with friends 
which, particularly for elementary school children, ease 
the psychological stress of initial adjustment to school, 
have led such a noted educator as James B. Conant, former 
President of Harvard University, to the conclusion that 
“ [a]t the elementary school level the issue seems clear. To 
send young children day after day to distant schools seems 
out of the question.”36

The quality of a community’s education depends ulti­
mately upon the level of public suport.37 A willingness to 
pay increased taxes and to vote for bond issues can evapo­
rate quickly in the face of enforced busing and dismantling 
of neighborhood schools where such actions do not con­
tribute to improved education for all.

Educational effectiveness also is dependent on the attitude 
of parents toward their children’s education, and rationally 
configured systems of neighborhood schools play a vital 
role. Parental support of their children’s schooling normally 
reinforces the efforts of their children’s teachers in sub­
stantial measure;38 to the degree that schools can involve 
parents with their children’s education as such,39 or broaden 
the parents’ own educational horizons,40 this end is served. 
Community schools, when designed in such a way as to 
avoid the feelings of disaffection which attend systematic

38 J. Conant, Slums and Suburbs 29 ( 1961).
37 A current dramatic example of the financial crisis in public edu­

cation across the country is found in St. Louis, Missouri, where tax­
payers in four suburban school districts north of the city have shut 
46,(XX) pupils out of classes by consistently defeating school tax levies. 
N.Y. Times, Sept. 14, 1970, at 1, col. 3.

38 M. Weinberg, Desegregation Research: An Analysis 140-41 
(1968).

39 Christian Science Monitor, Aug. 14, 1970, at 11, col. 1.
40 C. Hansen, Danger in Washington 81 (1968).



24

ghettoization, whatever its origin, foster such an active 
parental role because of their very accessibility.

Further, the accessibility of community schools mini­
mizes the cost of school transportation for students. Pro­
vision of substantial transportation at public cost solely for 
the purpose of attaining racial balance diverts resources 
which might otherwise be used, in a neighborhood scheme 
consistent with students’ constitutional rights, for more 
directly constructive educational purposes. Where the cost 
of such transportation is borne privately by the families of 
students—assuming that public transportation facilities are 
adequate to cover the necessary specialized routes—it strikes 
regressively, imposing a heavier burden on the poor than 
on the affluent.

This Court in Brown II, in suggesting “revision of school 
districts and attendance areas into compact units to achieve 
a system of determining admission to the public schools on a 
non-racial basis”41 as a means of complying with the equal- 
educational-opportunity requirement of Brown I, implicitly 
recognized the advantages of the community school sys­
tem.42

The unique educational advantages of the neighborhood 
school system, where it is administered in a manner con­
sistent with the Equal Protection Clause, result in the 
accomplishment of the ultimate goal of that clause: the 
best possible education for all children. Pursuit of absolute 
racial balance in major metropolitan areas through the use 
of extensive busing of students deprives the school system 
of the singular advantages of the neighborhood concept, 
and in at least this respect thwarts the attainment of equal 
educational opportunity.

«  349U.S. at 300-01.
42 These advantages were well expressed in Deal v. Cincinnati Bd. 

of Educ., 369 F.2d 55 (6th Cir. 1966), cert, denied 359 U.S 847 
(1967).



25

It has frequently been pointed out that neighborhood 
school systems have, on occasion, come into existence for 
the purpose of fostering racial segregation.43 But this fact 
should no more prejudice consideration of the intrinsic edu­
cational merits of a racially satisfactory neighborhood 
school system than should these merits justify it when it is 
administered in a fashion which entrenches unconstitutional 
racial imbalance.

Other Considerations

The community school concept is capable of flexible 
administration: zoning, pairing, clustering, and siting of 
school buildings all are techniques which may be used, con­
sistent with its advantages, and should be, when reasonable, 
to fulfill constitutional requirements. In addition, a majority- 
to-minority transfer option and specialized learning centers 
may be provided to ameliorate the effect of residential segre­
gation. Techniques which destroy the advantages of the 
community school in pursuit only of mechanistic racial bal­
ance in the name of the Fourteenth Amendment tend to 
negate the very educational values in whose service they 
are invoked.

But these are measures that are customarily used in the 
racial desegregation context; they are by no means all of the 
factors to be taken into account in devising a plan designed 
to promote educational achievement for all students to the 
utmost.

Modern social scientists have developed studies that take 
into account a number of other factors. These include a de­
termination of the racial mix that will maximize educa­
tional achievement, development of plans that maximize 
use of physical facilities, teachers and staff, avoidance of

43 See, e.g., Racial Isolation in the Public Schools, U.S. Comm’n 
on Civil Rights 252 (1967).



26

resegregation and “white flight,” consideration of the de­
sirable socio-economic mix, preservation of the cultural 
uniqueness and autonomy of the individual student, giving 
effect to positive and realistic educational and vocational 
aspirations and other relevant factors of equal importance.44

Such evidence is sound and available.45 Plans based on 
such studies will result in greater educational achieve­
ment. Education is not based on race alone. That plan is 
the best plan that provides the best opportunity for educa­
tional achievement for all students. In the preparation of 
such a plan, racial imbalance is a consideration, but it is 
not the controlling factor.

It is in this light, we conceive, that the rule of reason 
postulated by the court below should be applied. The rule 
of reason makes little sense when it is couched in purely 
racial terms. The creation of racial balance by massive 
busing may eliminate racial segregation, but it may harm 
the general level of educational achievement. What schools 
need desperately is to improve that level. This Court should 
provide a more realistic approach to achieve that end.

VI.

CONCLUSION

The Court has the opportunity in this case to resolve the 
principal issues which have confused and divided the lower

44 See, e.g., M. Weinberg, Desegregation Research: An Analysis, 
supra; Equality of Educational Opportunity, supra.

45 Evidence of this nature was presented in the Norfolk case by 
Dr. Thomas F. Pettigrew and disregarded without mention by the 
Circuit Court. But Dr. Pettigrew’s evidence in the Norfolk case is 
substantially the entire basis for the opinion of three of the judges in 
the Clarendon case. See Craven, J., concurring and dissenting in 
Brunson v. Board of Trustees, No. 14,571 (4th Cir., June 5, 1970). 
If testimony of this character may be used as a basis for decision in 
one case, it clearly deserves consideration in another.



27

courts and school authorities. We respectfully suggest, for 
the reasons that we have stated, the following:

(i) The purported distinction between de jure and de 
facto racial segregation should be rejected. It can be sup­
ported neither factually nor consistently with constitutional 
principles. The right to equal educational opportunity must 
be uniform throughout the United States.

(ii) The concept of racial balance is not a constitutional 
imperative. If pursued as an end in itself, rather than as a 
factor to be considered, this concept accelerates the process 
of resegregation and frustrates the attainment of sound 
educational goals.

(iii) The Constitution does not delineate the extent to 
which the transportation of pupils may or must be provided 
to achieve and maintain a unitary school system. Nor does 
the Constitution prescribe the extent to which school at­
tendance zones may or must be altered for this purpose.

(iv) The principles settled by this Court must be ob­
served : racial discrimination is a denial of equal educational 
opportunity; dual or segregated school systems are pro­
scribed; and school authorities have an affirmative duty to 
maintain unitary systems. But these principles must be ap­
plied as the means of maximizing the educational oppor­
tunity for all students. A reasonable discretion must be 
allowed school authorities in assigning pupils and adminis­
tering a school system so long as these principles are not 
contravened and the measures taken comport with the edu­
cational goal.

(v) School authorities should give appropriate weight 
to the educational advantages of the neighborhood or com­
munity schools and the disadvantages of extensive cross 
busing in urban areas, especially for young children.



28

(vi) In devising plans to assure a unitary school system, 
all relevant techniques may be considered, including the re­
alignment of attendance zones, the flexible utilization of 
school facilities, and the assurance of opportunities for 
interracial learning experience.

(vii) Perhaps the overriding need is to shift the empha­
sis from a mechanistic approach of integration as an end 
in itself to the goal desired by every citizen: Equal educa­
tional opportunity in a school system structured for the
highest achievement by all students.

It is not too much to say that public education is in a 
state of serious disarray, with increasing evidence of erod­
ing public support. The problems and confusion relating 
to integration are a contributing though not the only cause. 
The time has come for a clarification of the principles to be 
applied by the courts. We respectfully submit that those 
outlined above are consistent both with constitutional re­
quirements and the urgent need for improved education.
Dated September 16, 1970

Respectfully submitted,
A n d rew  P . M iller

Attorney General of Virginia 
W il l ia m  G. B roaddus 
T heodore J .  M arkow

Assistant Attorneys General 
Supreme Court Building 
Richmond, Virginia 23219

L e w is  F. P ow ell , J r . 
J o h n  W . R iely  
G eorge H . H ett r ic k  
G uy  K . T ow er

H u n t o n , W il l ia m s , Gay , 
P o w ell  & G ibson  

Of Counsel

Special Counsel 
700 East Main Street 
Richmond, Virginia 23219