Petitioner for Writ of Certiorari

    wes i ie ABA 0 I AN ARG STM AA at NR CREA PH onP Mf Ab WDE ni AME erin mT eT TI Te _. 
  

  

  
  

  

  

  

  

  

  

  

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In THE 

Ena PEPYS gl yee = far a >< 1 &h +4 * L : 

Supreme Cuuret nf the United Slates : 

October Term, 1967 | PE 

No. h15. 

CHARLES C. GreeN, et al., 4 

| Petitioners, i 

es : 
County Scuoon Boarp oF New Kent County, od 

| VIRGINIA, ef al. Pe 

| Respondents. 4 

~ PETITION FOR A WRIT OF CERTIORARI TO THE | 

UNITED STATES COURT OF APPEALS 1 

FOR THE FOURTH CIRCUIT . | 

JACK GREENBERG ; 

James M. Nasrir, 111 

Fraxguin KE. WHITE PE 

10 Columbus Circle i 

New York, New York 10019 4 

S. W. Tucker 4 

Hexry L. Marsu, IIT : 

214 Bast Clay Street 4 

. Richmond, Virginia 

Attorneys for Petitioners 

  
  

 



  
  

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INDEX 
PAGE 

Citations to Opinions Below ieee 1 

JUTISAICHION  ooeceereeeserrersrrrsesssersersesnessesssmssssnsansaseasnssasssnssmasnassees 2 

Question Presented ones 2 

Statutes and Constitutional Provisions Involved .......... 2 

SAALOTIBNL oovieiiniiiniivirasossmisniiassistsstasussssstsssntssantassossizansvanssatysis 2 

I. The Pleadings and Evidence ........oeoeieeenee 3 

II. The Plan Adopted by the Board .......ccccoommee. 6 

III. The District Courl’s Decision ...cccemreeeresrssneens 7 

IV. The Court of Appeals’ Opinion ......cccovveenns 8 

Af CUMENT 
REASONS TOR—GRANSING—EHRA=WRIT : 

LL Intro dRction i eres misinurrniena tious sa riivasenssti asin 10 

II. A Freedom of Choice Plan is Constitutionally 

Unacceptable Where There Are Other Methods, 

No More Difficult to Administer, Which Would 

More Speedily Disestablish the Dual System .... 

A. The Obligation of a School Board Under 

Brown v. Board of Education is to Disestab- 

lish the Dual School System and to Achieve 

a Unitary, Non-racial System ..........coveeeenes 

B. The Record Clearly Showed that a Free- 

dom of Choice Plan Was Not Likely to 

Disestablish, and Has Not Disestablished, 

the Dual School System and That a Geo- 

graphic Zone Plan Would Immediately Have 

Produced Substantial Desegregation 

COR CLIUBION inns ioiississsrestinsuibirrsassnionbosssnsirsssscsovmiomsinserrsaanbes 

20 

21 

26 

   



  

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{ 
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{ ] 

ii 

APPENDIX: 
PAGE 

A. Memorandum Opinion of May 17, 1966 ........... la 

B. Order of May 17, 1966 eoeeemrnemenrnncnnnmnannnnes 3a 

C. Memorandum Opinion of June 28, 1066 .i..oveee 4a 

D. Order of June 28, 1966 il Ba 

E. Opinions of June 12, 1961 woerremecmmeremecnrcnecnncens 14a 

F. Judgment dated June 12, 1961 ..ocecmermmereanecnueees 41a 

TABLE OF CASES 

Anderson v. Martin, 375 U.S. cot)! EDEN aetciomast 15,16 

Blocker v. Board of Education of Manhasset, 226 F. 

Supp. 208, 220-221 (E.D. N.Y. 1964) cooermeenrrnenmnnnenenees 22 

Board of Education of Oklahoma City Public Schools 

v. Dowell, 372 F.2d 158 (10th Cir. 1967) coeeersnemeersnns 22 

Borders v. Rippy, 247 F.2d 2068, 271 (5th Cir, 1957) .... 21 

Boson Vv. Rippy, 285 F.2d 43, 48 (5th Cir, 1960) —oveeev- 21 

Bradley v. School Board of the City of Richmond, 382 

T1.3. 103 Li sem iiiisteumnsirnssesngs iErsnyionsgstienssapsss 14, 20, 22, 28, 31 

Bowman v. County School Board of Charles City 

County, Va., C.A. No. 10793 (4th Cir. 1967) reaver 8 

. Braxton v. Board of Public Instruction of Duval 

County, Florida, No. 4598 (M.D. Fla.), January 24, 

Ey A Te Rae EE cm 

Briggs v. Elliot, 132 F. Supp. 776 (1.D.S.C. 1053)... 2.2 

Brown v. Board of Education, 347 U.S. 483, 349 U.S 

DOB, oo coos coslinmrpesnte sbamussisonguaan snes 7,12, 15,19, 21, 22, 26, 27, 30 

Burton v. Wilmington Parking Authority, 365 U.S. : 

i LL RAE A ee CC a 15 

 



ii 

PAGE 

Calhoun v. Latimer, 377 U.S. 203 eiiccnecnnceeeees 23 

Clark v. Board of Education, Lattle Rock School Dis- 

trict, 369 F.2d 661 (8th Cir. 1968) .eiiiliicremisiiniirnrornn 28 

Cooper Vv. Aaron, 358 U.S. 1 ceremonies: 22,3 

Coppedge Vv. Franklin Counly Board of Education, 

C.A. No. 1796, decided August 17, 1967 wovceoermceneen 17, 32 

Corbin v. County School Board of Loudon County, 

Virginidg, C.A. No. 2737, August 07, TOB7 .....commmesesnsss 32 

Dove v. Parham, 282 F.2d 256 (8th Cir. 1960) i... 12 

Evans v. Ennis, 281 F.2d 3385 (3rd Cir. 1060) cloner 21 

Gibson v. Board of Public Instruction of Dade County, 

972 F.2d 763 (5th Cir. 1959) areecnermenerreneeenenneees 12 

Green v. County School Board of the City of Roanoke, 

304 F.2d 118 (4th Cir. 1962) .oorrmineniceeiines 12 

Goss v. Board of Ilducation, 373 U.S. 683 ....... 15, 16, 23, 3. 

Griffin v. County School Board of Prince Idward 

County, 377 U.S. 218 (1964) rennin 20, 23, 31 

Jeffers v. Whitley, 309 T'.2d 621 (4th Cir., 1962) '......- 21 

Kelley v. Altheimer Arkansas Public School District 

378 F.2d 483 (Sth Cir., 1967) ores 21,23 

Kelley v. Board of Education of the City of Nashville, 

970 F.2d 209 (6th Cir., 1959) corer 21 

Kemp v. Beasley, 352 F.2d 14 (8th Cir; 1965) vies 21, 25 

Lane v. Wilson, 307 U.S. 268 oor 29 

Louisiana v. United States, 380 U.S. 145 .eerncrinnnnns 29 

Manning v. Board of Public Instruction of Hillsboro 

County, 277 F.2d 370 (5th Cir, 1960) ...iiiiicoceseumens 12 

   



  

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f 
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: 

iv 

PAGE 

Marsh v. County School Board of Roanoke County, 

Va., 305 F.2d 94 (4th Cir. 1962) ........... Ee ieianstes 12 

Northcross v. Board of Education of the City of 

Memphis, 302 F.2d 818 (6th Cir, 10962): ............ovneine 12 

Norwegian Nitrogen Products Co. v. United States, 288 

ETRE UR ONL PO SCE A EL, It ar 25 

Reitman v. Mulkey, 18 L.Ed. 831 eee Si 1D 

Robinson v. Florida, 378 U.S. 153 reece 15 

Rogers v. Paul, 382 U.S. 198 ener 23, 28, 31 

Singleton v. Jackson Municipal Separate School Dis- 

trict, 348 F.2d 729 (5th Cir. 1965) worries 21 

Singleton v. Jackson Municipal Separate School Dis- 

trict, 355 F.2d 865 (5th Cir. 1966) ..ceooeecccermrcnnineean 13 

Skidmore v. Swift & Co., 323 U.S. 134 rreeeens 25 

United States v. American Trucking Associations, Inc., 

SITS. BBL oo fren niisiisiairirinsivans sour spas ueminus sites 25 

United States v. Jefferson County Board of Educa- 

tion, 372 F.2d 836, aff’d with modifications on re- 

hearing en banc, No. 23345 March 29, 1967, pebibben CL 

forcertiorariopenditg,JN0S..256v82301 ar 7,8,13, 15, 

dew. . sub. Mowe 19, 21, 23, 25, 28, 29 

Vick v. Board of Education of Obion County, 205 ¥. 

Supp. 436 (W.D. Tenn. TOBRY ciniisiinnsicssiiomsommmnnditars 21 

Watson v. Memphis, 373 U.S. 526 -ermeeemeeeiecerncenenans 20 

 



Vv 

STATUTES PAGE 

Code of Va., 1950 (1964 Replacement Vol.), § 22.2321 4 

45 CO RIParb Bl siti tim ee i rare 16, 24 

Civil Rights Act of 1964, 78 Stat. 241 .ccoreiiirnnnaes 3 

S8 TLR Q138L neti rsedemietvinmpreiesisssass ost 3 

08 TBI, SITID tims ieisiitisrmsonsisimiesaseboissnasss 3 

RE RANE REI MRI RE Sh AI 3 

VAR TENE NL SCAR RN Rn 3 

OTHER AUTHORITIES 

Campbell, Cunningham and McPhee, The Orgamza- 

tion and Control of dmerican Schools, 1965 ............ 14 

Dunn, Title VI, The Guidelines and School Desegrega- 

tion in the South, 53 Va. 1. Rev. 42 (1967) ................ 25 

Equality of Educational Opportunity: A Report of 

{he Office of Iiducation of the United States Depart- 

ment of ITealth, Education and Welfare .................... 14 

Meador, The Constitution and The Assignment of 

Pupils to Public Schools, 45 Va. Li. Rev. 517 (1959) .... 11 

Racial Isolation in the Public Schools, Volume I: A 

Report of the United States Commission on Civil 

RIohis YOOT incr irria ihn ie rere star ershariinsass cntarin 20 

Revised Statement of Policies for School Desegrega- 

tion Plans Under Title VI of the Civil Rights Act of 

1964 : 

Southern School Desegregation, 1966-67, a Report of 

the U.S. Commission on Civil Rights, July, 1967 

12, 15, 18, 19, 20 

   



  

vi 

PAGE 

Survey of School Desegregation in the Southern and 

Border States, 1965-1966, U.S. Commission on Civil 

Rights, February, 1966 a eerie lOy Yi 18 

U.S. Bureau of the Census, U.S. Census of Population: 

1960 General Population Characteristics, Virginia. 

Final Report PC (1)-48B eens 4 

 



IN THE 

Supreme Court of the United States 
October Term, 1967 

  

CuaarLes C. GreEN, et al., 

Petitioners, 
—_—V 

County Scroor Boarp or New Kent County, 

VIRGINIA, et al., 

Respondents. 

  

PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 

FOR TIE FOURTH CIRCUIT 

Petitioners pray that a writ of certiorari issue to re- 

view the judgment of the United States Court of Appeals 

for the Fourth Circuit entered in the above-entitled case 

on June 12, 1967. 

Citations to Opinions Below 

The District Court filed memorandum opinions on May 

17, 1966 and on June 28, 1966. Both are unreported but 

are reprinted in the appendix at pp. 1-15a. The June 12, 

1967 opinion of the Court of Appeals, reprinted in the 

appendix at p. 16a, is reported at F.2d —. 

     



  

Jurisdiction 

The judgment of the Court of Appeals was entered 

June 12, 1967, appendix p. 41a, infra. Mr. Justice Black, 

on September 8, 1967, extended the time for filing the 

petition for certiorari until October 10, 1967. The juris- 

diction of this Court is invoked under 28 U.S.C. Sec- 

tion 1254 (1). 

Question Presented 

Whether—13 years after Brown v. Board of Education— 

a school board adequately discharges its obligation to 

effect a unitary non-racial school system, by adopting a 

freedom of choice desegregation plan, where the evidence 

shows that such plan is not likely to disestablish the dual 

system and where there are other methods, no more diffi- 

cult to administer, which would immediately produce sub- 

stantial desegregation. 

Statutes and Constitutional Provisions Involved 

This case involves Section I of the Fourteenth Amend- 

ment to the Constitution of the United States. 

Statement 

Petitioners seek review of the adequacy of a freedom of 

choice desegregation plan adopted by defendant School 

"Board and approved by the Court below en banc, Judges 

Sobeloff and Winter disagreeing with the majority opinion. 

   



3 

I. The Pleadings and Evidence 

Petitioners, Negro parents and children of New Kent 

County, Virginia, filed on March 15, 1965, in the United 

States District Court for the Eastern District of Virginia, 

a class action seeking injunctive relief against the main- 

tenance of separate schools for the races. The complaint 

named as defendants the County School Board, its in- 

dividual members, and the Superintendent of Bcliobls 

To comply with Title VI of the Civil Rights Act of 1964, 

78 Stat. 241, and regulations of the United States Depart- 

ment of ITealth, Kducation and Welfare, the New IKent 

County School Board, oni August 2, 1965, adopted a free- 

dom of choice desegregation plan and on May 10, 1966 

filed copies thereof with the District Court. 

New Kent is a rural county in Kastern Virginia, east 

of the City of Richmond. There is no residential segre- 

gation; both races are diffused generally throughout the 

1 The action was filed pursuant to 28 U.S.C. §1331 and § 1343, and 

42 U.S.C. § 1981 and § 1983. The complaint alleged that (R. Vol. 2 

Pp. 8): 

Notwithstanding the holding and admonitions in Brown v. Board of 
Education, 347 U.S. 483 (1954) and 349° U.S. 284 (1955), the de- 

fendant school board maintains and operates a biracial school sys- 

fem... . 

[that the defendants] ha[d] not devoted efforts toward initiating 
non-segregation in the publie school system, [and had failed to make] 
a reasonable start to effectuate a transition to a racially non-diserimi- 
natory school system as under paramount law it [was] their duty 

to do. 

bl 

The defendants filed, on April 5, 1965, a Motion to Dismiss the complaint 

on the sole ground that it failed to state a claim upon which relief could 
be granted (R. Vol. 2, p. 13). In an order entered on May 5, 1965, the 
district court deferred ruling on the motion and directed the defendants 

to file an answer by June 1, 1965 (R. Vol. 2, p. 15). 

 



  

4 

county.? (cf. PX “A” and “B”; see also the opinion of 

Judge Sobeloff at p. 23a.)* 

Students:* During the 1964-1965 school year some 1291 

students (approximately 739 Negroes, 552 whites) were 

enrolled in the only two schools maintained by the county: 

New Kent School, a combined all-white elementary and 

high school and George W. Watkins School, a combined 

all-Negro elementary and high school. There were no 

attendance zones. Kach school served the entire county. 

During 1964-65, 11 Negro busses canvassed the entire 

county to deliver 710 of the 740 Negro pupils to Watkins, 

located in the western half of the county. Ten busses 

transported almost all of the 550 white pupils to New 

Kent in the eastern half. (See PX “A” and “DB” and the 

answer to question No. 4). 

There was no pupil desegregation whatever during the 

1964-65 school year. Every Negro pupil attended Watkins 

and every white pupil attended New Kent. Iighteen In- 

dian pupils living in New Kent were bussed to the Indian 

school in adjoining Charles City County. 

From 1956 through the 1965-66 school year school as- 

signments of New Kent pupils were governed by the Vir- 

ginia Pupil Placement Act §22.232.1 et seq. Code of Vir- 

  

2 The Census reports show that the Negro population was substantially 

the same in each of the four magisterial districts in New Kent County: 

Black Creek-479, Cumberland-637, St. Peters-633, and Weir Creck-565. 

See U.S. Bureau of the Census. U.S. Census of Population: 1960 Gen- 

eral Population Characteristics, Virginia. Final Report PC(1)-48B. 

3 The prefix “PX” refers to plaintiffs’ exhibits. Exhibits “A” and 

“RB” show the bus routes for each of the two county schools. Bach exhibit 

shows the routes travelled by the various busses bringing children to that 

particular school. Each school is served by busses that traverse all areas 

of the county. 

4 The information that follows was obtained from defendants’ answers 

to plaintiffs interrogatories (R. Vol. 2, pp. 27-36). 

 



5 

ginia, 1950 (1964 Replacement Volume), repealed by Acts 

of Assembly, 1966, c. 590, under which any pupil could 

request assignment to any school in the county; children 

making no ‘request were assigned to the school previously 

maintained for their race. The free choice plan the Board 

adopted in August, 1965 was not placed into effect until 

the 1966-67 school year by which time it had been approved 

by the district court. 

Up to and including the 1964-65 school year, no Negro 

pupil ever sought admission to New Kent School and no 

white pupil ever sought admission to Watkins (R. Vol. 2, 

p. 28). Thus, at the close of the 1964-65 school year, 11 

years after Brown v. Board of Education, 347 U.S. 483, 

none of the 739 Negro pupils in the county were in, or 

had ever attended, school with white students. 

As the following table’ indicates, the Negro school was 

more overcrowded and had a substantially higher pupil- 

teacher ratio, and larger class sizes than the white school: 

  
  

Overcrowding 

  

Pupil- Average Variance from Average 

Teacher Class Capacity Number Pupils 

Name of School Ratio Size (Elem. Schools) Buses Per Bus 

New Kent (white) 22 21 + 37 (9%) 10 54.8 

1-12 

George W. 
Watkins (Negro) 28 26 +118 (28%) 11 64.5 

1-12 
NE AL Raa en 3 aia 

  

  
  

  

In the 1965-66 school year some 35 Negroes attended the 

formerly white New Kent High School but no white students 

attended Watkins. During the year just ended, 1966-1967, 

111 of the 739 Negroes in the County attended New Kent. 

5 This table was compiled from defendants’ answers to plaintiffs’ inter- 
rogatories relative to the 1964-65 school year (R. Vol. 2, pp. 27-36). 8 PI 

   



  

6 

No white students attended Watkins; all 628 pupils at 

Watkins were Negroes. Thus, as late as 13 years aftec 

the decision in Brown, 85% of the Negro students in the 

County attended school only with other Negroes.® 

Faculty: Contracts with {teachers are executed for a 

period of one year. No white teachers were assigned to 

the all-Negro Watkins School during 1964-65 nor Negro 

teachers to the all-white New Kent School, and none had 

ever been so assigned. The policy remained unchanged 

for 1965-66. During 1966-67 the extent of teacher desegre- 

gation was the assignment of a single Negro teacher two 

days each week to New Kent. 

II. The Plan Adopted by the Board 

As indicated above, the New Kent School Board on 

August 2, 1965, adopted a freedom of choice desegrega- 

tion plan to be placed into effect in the 1966-67 school year.’ 

The plan provides essentially for “permissive transfers” 

for 10 of the 12 grades. Only students eligible to enter 

grades one and eight are required to exercise a choice of 

schools. It provides further that “any student in grades 

other than grades one and eight for whom a choice is not ob- 

tained will be assigned to the school he 1s now attending.” ? 

  

6 The record in this case, like the records in all school desegregation 

cases, is necessarily stale by the time it reaches this Court. In this case 

the 1964-65 school year was the last year for which the record supplied 

desegregation statistics. Information regarding student and faculty deseg- 

regation during the 1965-60 and 1966-67 school years was obtained from 

official documents, available for public inspection, maintained by the 

United States Department of Health, Education and Welfare. Certified 

copies thereof and an accompanying affidavit have been filed with this 

Court and served upon opposing counsel. 

7 The plan was included by the district court in its memorandum opin- 

jon of June 28, 1966, reproduced herein at p. 4a. 

8 By failing to require, at least in its initial year, that every student 

make a choice, the plan permits some students to be assigned under the 

former dual assignment system until approximately 1973. Under the plan 

 



7 

It states that no choice will be denied other than for over- 

crowding in which case students living nearest the school 

chosen will be given preference. 

III. The District Court’s Decision 

On May 4, 1966, the case was tried before the District 

Judge, Hon. John D. Butzner, Jr., who, on May 17, 1966, 

entered a memorandum opinion and order: (a) denying 

defendants’ motion to dismiss, and (b) deferring approval 

of the plan pending the filing by the defendants of “an 

amendment to the plan [whieh would provide] for em- 

ployment and assignment of staff on a non-racial basis.” 

(BR. Vol. 2, pp. 51-56; 2a). 

The Board filed on June 6, 1966, a supplement to its 

plan dealing with school faculties. On June 10, 1966, 

plaintiffs filed exceptions to the supplement contending 

  

students entering other than grades one or eight who do not exereise a 

choice are assigned to the school they are then attending. Thus, a student, 

who began school in fall, 1965, one year before the plan went into effeet 

and wis therefore assigned to a school previously maintained for his raee 

would, unless he affirmatively exercised a choice to go elsewhere, be reas- 

signed there for the remainder of his elementary school years, Similarly, 

students who entered high school prior to 1966-67 under the old dual as- 

signment system, would, unless they took affirmative action to transfer 

elsewhere, be reassigned to that school until graduation. The plan, then, 

permits some students (those who bean at a school before it went into 

effect) to be reassigned for as long as up to seven years (in the ease of 

a first grader) to schools to which they originally had heen assigned on 

the basis of race. It need hardly be said that sueh a plan—one which 

fails immediately to abolish continued racial assignments or reassienments 

—may not stand under Brown v. Board of Education, 347 U.S. 483 and 

349 U.S. 294. The Fifth Circuit has rejected plans having that effect. 

See United States v. Jefferson County Board of Education, 372 ¥.2d 836, 

890-891, aff’d with modifications on rehearing en bane, No. 23345, March 

29, 1967, petition for certiorari pending, Nos. 256, 282, 301. We point 

this out only in the interest of careful analysis. For overturning the deci- 

sion below on this ground would be insufficient to proteet petitioners’ 

rights. As we more fully develop later what is objectionable about this 

plan is its employment of free choice assignment provisions to perpetuate 

segregation in an area, where, because of the lack of residential segrega- 
tion, it could not otherwise result. 

  

i 
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¢ 

i 

 



  

8 

(a) that the supplement failed to provide sufficiently for 

faculty and staff desegregation, and (Db) that plaintiffs 

would continue to be denied constitutional rights under 

the freedom of choice plan and that the defendants should 

be required to assign students pursuant to geographic 

attendance areas. (R. Vol. 2, pp. 61-62). 

On June 28, 1966, the district court entered a memo- 

randum opinion and an order approving the freedom of 

choice plans as amended. (R. Vol. 1, pp. 7-19; 4a.) 

IV. The Court of Appeals’ Opinion 

On appeal to the Court of Appeals for the Fourth Cir- 

cuit petitioners contended that in view of the circums- 

stances in the county, the freedom of choice plan adopted 

by the defendants was the method least likely to accomplish 

desegregation and that the district court erred in ap- 

proving it. 

On June 12, 1967, the Court, en bane, affirmed the dis- 

trict court’s approval of the freedom of choice assign- 

ment provisions of the plan, but remanded the case for 

entry of an order regarding faculty “which is much more 

specific and more comprehensive” and which would in- 

corporate in addition to a “minimal objective time table,” 

some of the faculty provisions of the decree entered by 

the Fifth Circuit in [Inited States v. Jefferson County 

Board of Education, supra (22a). 

Judges Sobeloff and Winter concurred specially with 

respect to the remand on the teacher issue but disagreed 

on other aspects. Said Judge Sobeloff (22a) :° 

  

9 This ease was decided together with a companion ease Bowman V. 

County School Board of Charles City County, Virginia, No. 10793, for 

which no review is sought. While the opinion discussed herein was ren- 

dered in the Charles City case, it was expressly made applicable to New 

Kent (p. 15a); similarly Judge Sobeloff stated that his opinion in Charles 

City applied to New Kent (p. 22a). 

 



9 

  

I think that the District Court should be directed not 

only to incorporate an objective time table in the 

School Board’s plans but also to set up procedures 

for periodically evaluating the effectiveness of the 

f 
i 
§ 
; 

Board’s “Freedom-of-choice” plans in the elimination 

of other features of a segregated school system. 

_. . Since the Board’s “Freedom-of-choice” plan has 

now been in effect for two years as to grades 1, 2, 

8, 9, 10, 11 and 12 and one year as to all other grades, 

clearly this court’s remand should embrace an order 

requiring an evaluation of the success of the plan’s 

operation over that time span, not only as to faculty 

but as to pupil integration as well. (24a) 

While they did not hold, as petitioners had urged, that the 

peculiar conditions in the county made freedom of choice 

constitutionally unacceptable as a tool for desegregation 

they recognized that it was utilized to maintain segregation 

(27-284) ; 

As it is, the plans manifestly perpetuate diserimina- 

tion. In view of the situation found in New Kent : 

(‘ounty, where there is no residential seeregation, the 

elimination of the dual school system and the establish- 

ment of a “unitary, non-racial system” could be readily g 

achieved with a mimimum of administrate difficulty | 

by means of geographic zoming—simply by assigning 

students living in the eastern half of the county to 

the New Kent School and those living in the western : 

half of the county to the Watkins School. 

Although a geographical formula is not universally 

appropriate, it is evident that here the Board, by 

separately busing Negro children across the entire 

county to the “Negro” school, and the white children 

to the “white” school, is deliberately maintaining a 

 



  

: 10 

segregated system which would vanish with non-racial 

geographic zoning. The conditions in this county rep- 

resent a classical case for this expedient. (Emphasis 

added.) 

While the majority implied that freedorh of choice was 

acceptable regardless of result, Judges Sobeloff and Winter 

stated the test thus (30a): 

‘Freedom of choice’ is not a sacred talisman; it is only 

a means to a constitutionally required end—the aboli- 

tion of the system of segregation and its effects. If 

the means prove effective, it is acceptable, but if it 

fails to undo segregation, other means must be used 

to achieve this end. 

REASONS FOR GRANTING THE WRIT 

I. 

Introduction 

This case presents an issue of paramount importance 

regarding the desegregation of public schools throughout 

the southern and border states pursuant to Brown V. 

Board of Education.'® More particularly, the question 18 

whether in the mid-sixties, a full generation of public 

school children after Brown, school boards may continue 

to adopt so-called freedom of choice desegregation plans 

which tend to perpetuate racially identifiable schools, where 

there are other methods, equally if not more feasible to 

administer, which will more speedily disestablish the dual 

systems. : 

  

10 347 U.S. 483 (Brown I); 349 U.S. 204 (Brown II). 

 



11 

The most marked and widespread innovation in school 

administration in the southern and border states in the 

last fifty years has been the change in pupil assignment 

method in the years since: Brown,' from a geographic 

attendance zone system to so-called “free choice.” Prior to 

Brown, systems®in the North and South, with rare ex- 

ception, assigned pupils by means of zone lines drawn 

around each school.’ 

Under an attendance zone system, unless a transfer 

request is granted for some special reason, students living 

in the zone of the school serving their grade would nor- 

mally attend that school. 

Prior to the relatively recent controversy concerning 

segregation in large urban systems, assignment by geo- 

graphic attendance zones was viewed as the soundest 

method of pupil assignment. This was not without good 

reason; for placing children in the school nearest their 

home would often eliminate the need to furnish transporta- 

tion, encourage the use of schools as community centers 

and generally facilitate the task of planning for an ever- 

expanding school. population." 

In states where separate systems were required by law, 

the zone assignment method was umplemented by drawing 

around each white school attendance zones designed to 

11 See generally, Campbell, Cunningham and McPhee, The Organization 

and Control of American Schools, 1965. (“As a consequence of [Brown 

Vv. Board of Education, supra], the question of attendance areas has be- 

come one of the most significant issues in american education of this 

Century” (at 136)). 

12 See Meador, The Constitution and The Assignment of Pupils to Public 
School, 45 Va. L. Rev. 517 (1959), “until now the matter has been han- 

dled rather routinely almost everywhere by marking off geographieal at- . 

tendance areas for the various buildings. In the South, however, coupled 

with this method has been the factor of race.” 

13 Campbell, Cunningham and McPhee, supra, Note 11 at 133-144. 

  

3 

} ; 
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12 

accommodate whites in the area, and around each Negro 

school attendance zones for Negroes. In many areas, as 

in the cases before the Court, where the entire county was 

a zone, lines overlapped because of the lack of residential 

segregation. Thus, in most southern school districts, school 

assignment was largely a function of three factors: race, 

proximity and convenience. 

After Brown, southern school boards were faced with 

the problem of “effectuating a transition to a racially non- 

discriminatory system” (Brown II at 301). The easiest 

method was to convert the dual attendance zones, drawn 

according to race, into single attendance zones, without 

regard to race, so that assignment of all students would 

depend only on proximity and convenience. With rare ex- 

ception, however, southern school boards, when finally 

forced to begin the desegregation process, rejected this 

relatively simple method in favor of the complex and dis- 

criminatory procedures of pupil placement laws and, when 

those were invalidated," switched to what has in practice 

worked the same way—the so-called free choice.’ 

  

14 The Virginia Pupil Placement Law was invalidated in Green V. 

County School Board of the City of Roanoke, 304 F.2d 118 (4th Cir. 

1962) and Marsh v. County School Board of Roanoke County, Va., 305 

F.2d 94 (4th Cir, 1962). For other cases invalidating or disapproving 

similar laws, see Northcross V. Board of Education of the City of 

Memphis, 302 F.2d 818 (6th Cir., 1962); Gibson v. Board of Public In- 

struction of Dade County, 979 F.2d 763 (5th Cir., 1959); Manning V. 

Board of Public Instruction of Hillsboro County, 277 F.2d 370 (5th Cir, 

1960) ; Dove v. Parham, 282 T.2d 256 (8th Cir., 1960). 

15 According to the Civil Rights Commission, the vast majority of 

school districts in the south use freedom of choice plans. See Southern 

School Desegregation, 1966-67, A Repoit of the U.S. Commission on Civil 

Rights, July, 1967. The Report states, at pp. 71-72: 

All . . . districts [desegregating under voluntary plans] in Alabama, 

Mississippi, and South Carolina, without exception, and 839% of 

such districts in Georgia have adopted free choice plans. . . . 

   



13 

Under a so-called free choice plan of desegregation, 

students are given a privilege rarely enjoyed in the past 

—the opportunity to attend the school of their choice. Most 

often they are permitted to choose any school in the sys- 

tem, but in some areas, they are permitted to choose only 

either the previously all-Negro or previously all-white 

school in a limited geographic area. Not only are such 

plans more difficult to administer (choice forms now have 

to be processed and standards developed for passing on 

them, with provision for notice of the right to choose and 

for dealing with students who fail to exercise a choice), 

they are, in addition, far less likely to disestablish the 

    

The great majority of districts under court order also are employing 

“freedom of choice.” 

See also Survey of School Deseqreqgation in the Southern and Border 

States, 1065-1066, United States Commission on Civil Rights, February, 

1066, at p. 47. 

16 Phe decree appended by the United States Court of Appeals for the 

Fifth Cirenit, to its recent decision in United States v. Jefferson County 

Board of Education, 572 [.2d S36, aff'd with modification on rehearing 

en bane. Civil No. 20315, Mareh 29, 1967, shows the eomplexity of such 

plans, That Court had previously deseribed such plans as a “haphazard 

basis” for the administration of schools, Singleton v. Jackson Municipal 

Separate School District, 355 17.2d 865, 871 (6th Cir. 1966). 

Under such plans generally, and under the plan in this ease, school of- 

ficials are required to mail (or deliver by way of the students) letters to 

the parents informing them of their rights to choose within a designated 

period, compile and analyze the forms returned, grant and deny choices, 

noitfy students of the action taken and assign students failing to choose 

to the schools nearest their homes. Virtually each step of the procedure, 

from the initial letter to the assignment of students failing to choose, 

provides an opportunity for individuals hostile to desegregation to fore- 

stall its progress, either by deliberate mis-performance or non-perform- 

ance. The Civil Rights Commission has reported on non-compliance by 

school authorities with their desegregation plans: 

In Webster County, Mississippi, school officials assigned on a racial 

basis about 200 white and Negro students whose freedom of choice 

forms had not been returned to the school office, even though the 

desegregation plan stated that it was mandatory for parents to exer- 

cise a choice and that assignments would be based on that choice 

[footnote omitted]. In McCarty, Missouri after the school hoard had 

 



  

14 

dual system. And, as demonstrated below, experience has 

proved them largely incapable of disestablishing the dual 

system. 

Under free choice plans, the extent of actual desegre- 

gation varies directly with the number of students seek- 

ing, and actually being permitted to transfer to schools 

previously maintained for the other race. It should have 

been obvious, however, that white students—in view of 

general notions of Negro inferiority and the hard fact 

that in far too many areas Negro schools were vastly 

inferior to those furnished whites’ —would not seek trans- 

  

distributed freedom of choice forms and students had filled out and 

returned the forms, the board ignored them. ; 

Survey of School Desegregation in the Southern and Border States, at 

p. 47. Given the other shortcomings of free choice plans, there is serious 

doubt whether the constitutional duty to effect a non-racial system is sat- 

isfied by the promulgation of rules so susceptible of manipulation by hos- 

tile school officials. As Judge Sobeloff has observed: 

A procedure which might well succeed under sympathetie administra- 

tion could prove woefully inadequate in an antagonistic environment. 

Bradley v. School Board of the City of Richmond, 315 F.2d 310 (4th Cir. 

1965) (concurring in part and dissenting in part). 

17 Watkins, the Negro school in New Kent County was more over- 

crowded and had substantially larger class sizes and teacher-pupil ratios 

than did the white school. (See p. 5, supra). 

The Negro schools in the South compare unfavorably to white schools in 

other important respects. In Equality of Educational Opportunity, a 

report prepared by the Office of Bducation of the United States Depart- 

ment of Health Education and Welfare pursuant to the Civil Rights Aet 

of 1964, the Commissioner states, concerning Negro schools in the Metro- 

politan South (at p. 206) : 

The average white attends a secondary school that, compared to the 

average Negro is more likely to have a gymnasium, a foreign lan- 

guage laboratory with sound equipment, a cafeteria, a physies labora- 

tory, a room used only for typing instruction, an athletic field, a 

chemistry laboratory, a biology laboratory, at least three movie 

projectors. 

Essentially the same was said of Negro schools in the non-metropolitan 

South (Id. at 210-211). It is not surprising, therefore, quite apart from 

race, that white students have unanimously refrained from choosing Negro 

schools. 

 



15 

fers to the formerly Negro schools; and, indeed, very few 

ever have. Thus, from the very beginning the burden 

of disestablishing the dual system under free choice plans 

was thrust squarely upon the Negro children and their 

parents, despite the admonition of this Court in Brown I1 

(349 U.S. 294, 299) that “school authorities had the primary 

responsibility.” That is what happened in this case. Al- 

though the majority stated that (17a): 

The burden of extracting individual pupils from dis- 

eriminatory racial assignment may not be cast upon 

the pupils and their parents [and that] it is the duty 

of the school hoards to eliminate the discrimination 

which inheres in such a system [,] 

the very plan the court approved did just that. To be sure 

cach pupil was given the unresiricted right to attend any 

school in the system. But, as previously noticed, desegre- 

cation never occurs except by transfers by Negroes to 

the white schools, Thus, the freedom of choice plan ap- 

proved below, like all other such plans, placed the burden 

of achieving a single system upon Negro citizens! 

  

18 “During the past school year, as in previous years, white students 

rarely chose to attend Negro schools.” Southern School Desegregation, 

1966-67 at p. 142, United States v. Jefferson County, supra at 889. 

19 The free choice plan adopted in this ease is subjeet to serious question 

on the ground that it promotes invidious discrimination. By permitting 

students to choose a school, instead of assigning them on some rational 

non-racial basis, the school hoard allows students to utilize race as a 

factor in the school selection process. Thus it is that white students, almost 

invariably, choose the formerly white schools and not the Negro schools. 

To be sure the Constitution does not prohibit private diserimination. Dut 

states may not designedly facilitate the diseriminatory conduct of individ- 

nals or lend support to that end. See Reitman v. Mulkey, 18 L. Ed. 831; 

Robinson Vv. Florida, 378 U.S. 153; Anderson v. Martin, 375 U.S. 399; 

Goss Vv. Board of Education, 373 U.S. 683. Cf. Burton v. Wilmington 

Parking Authority, 365 U.S. 715. Thus in Anderson, this Court held that 

although individual voters are constitutionally free to vote partly or even 

solely on the basis of race, the State may not designate the race of can- 

didates on the ballot. Such governmental action promotes and facilitates 

  

I i 

i 
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{ 

 



  

16 

The fundamental premise of Brown I was that segrega- 

tion in public education had very deep and long term 

effects upon the Negroes set apart. It was not surprising, 

therefore, that individuals, reared in that system and 

schooled in the ways of subservience (by segregation, not 

only in schools, but in every other conceivable aspect of 

human existence) when gratuitously asked to “make a 

choice,” chose, by their inaction, that their children should 

remain in the Negro schools. In its Revised Statement of 

Policies for School Desegregation Plans Under Title VI 

of the Civil Rights Act of 1964 (hereinafter referred to as 

Revised Guidelines), the Department of Health, Education 

and Welfare states (45 C.F.R. Part 181.54): 

A free choice plan tends to place the burden of 

desegregation on Negro or other minority group stu- 

dents and their parents. Even when school authorities 

undertake good faith efforts to assure its fair opera- 

tion, the very mature of a free choice plan and the 

  

    

the voters’ succumbing to racial prejudice. So too here, giving students 

in a district formerly segregated by law the right to choose a school facili- 

tates and promotes choices based on race. 

It is no answer that some students may not, in fact, use race as a 

factor in the choice process. In Anderson, the statute was not saved be- 

cause some persons might vote without regard to the race of the candi- 

date. It is the furnishing of the opportunity that is prohibited by the 

Constitution. 

We do not argue that a school board may never permit students to 

choose schools. And certainly systems using attendance zones would not 

run afoul of the Constitution by permitting students to transfer for good 

cause shown. Presumably in such instances a legitimate non-racial reason 

would have to be supplied. 

Nor do we argue that freedom of choice may never be used where race 

is intended to be a factor. For in a system in which residential segrega- 

tion is deeply entrenched, the allowance of a choice of schools based on 

race may be a useful way to achieve desegregation. There, however, the 

plan is being used to undo rather than perpetuate segregation as the plan 

in this case is being used to do. Cf. Goss, supra at 688, where this Court 

stated that “no plan or provision of which racial segregation is the in- 

evitable consequence may stand under the Fourteenth Amendment.” 

 



17 

effect of longstanding community attitudes often tend 

to preclude or inhibit the exvercise of a truly free choice 

by or for minority group students. (Emphasis added.) 

Beyond that, by making the Negro’s exercise of choice the 

critical factor upon which the conversion depended, school 

authorities virtually insured its failure. Every community 

pressure militates against the affirmative choice by Negro 

parents of white schools. Moreover, intimidation of Ne- 

groes, a weapon well- known throughout the south, could 

equally be employed to deter them from seeking transfers 

to the white school. At best, school officials must have 

reasoned, only a few hardy souls would venture from the 

more comfortable atmosphere of the Negro school, with 

their all-Negro faculties and staff. Those that “dared,” 

would soon be taught their place. 

Nor were they mistaken. The Civil Rights Commission, 

in its most recent reports on school desegregation in 

Brown-affected states, reports exhaustively of the violence, 

threats of violence and economic reprisals to whieh Ne- 

oroes have been and are subjected to deter them from 

20 A good example is Coppedge v. Franklin County Board of Education, 

C.A. No. 1796 (E.D. No. Car.), decided August 17, 1967. The Court 

found that there was marked hostility to desegregation in I'ranklin 

County, that Negroes had been subjected to violence, intimidation and 

reprisals, and that each successive year under the freedom of choice plan 

it had approved earlier had resulted in fewer requests hy Negroes for 

reassignment to formerly all-white schools. Concluding that (slip op. 15): 

Community attitudes and pressures . . . have effectively inhibited the 

exercise of free choice of schools by Negro pupils and their parents 

the Court directed that the defendants 

prepare and submit to the Court, on or before October, 1967, a plan 

for the assignment, at the earliest practicable date, of all students 

upon the basis of a unitary system of non-racial geographic at- 

tendance zones, or a plan for the consolidation of grades, or schools, 

or both. (Id. at 17.) 

. 

§ 
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18 

placing their children in white schools.” That specific 

episodes do not occur to particular individuals hardly 

prevents them from learning of them and acting on that 

knowledge. 

With rare exception, then, school officials adopted, and 

the lower courts condoned, free choice knowing full well 

that it would produce less Negro students in white schools, 

and less injury to white sensibilities than under the geo- 

  

21 Southern School Desegregation, 1966-67 at pp. 70-113; Survey of 

School Desegregation in the Southern and Border States, 1965-66, at pp. 

55-66. To relate but a few of the numerous instances of intimidation 

upon which the Commission reported : the 1966-67 study quotes the parents 

of 12 year old boy in Clay County, Mississippi as saying (at p. 76): 

white folks told some eolored to tell us that if the child went [to a 

white school] he wouldn’t come back alive or wouldn't come back like 

he went. 

In Edgecombe County, North Carolina the home of a Negro couple whose 

son and daughter were attending the formerly all-white school was struck 

by gunfire (79). In Dooly County, Georgia, the father of a 14 year old 

boy, who had filled out his own form and attended the formerly white 

school, reported that “that Monday night the man [owner] came and 

said ‘I want my damn house by Saturday.” ” (83) 

The Commission made the following findings, in its 1966-67 report, 

(at p. 142): 

6. Treedom of choice plans, which have tended to perpetuate 

racially identifiable schools in the Southern and Border States, re- 

quire affirmative action by both Negro and white parents and pupils 

before such disestablishment can be achieved. There are a number 

of factors which have prevented such affirmative action by substantial 

numbers of parents and pupils of both races: 

(a) Fear of retaliation and hostility from the white community . . . 

(b) [V]iolence, threats of violence and economic reprisal by white 

persons, [and the] harassment of Negro children by white class- 

mates . . . 

(e) [improper influence by public officials]. 

(d) Poverty. ... Some Negro parents are embarrassed to permit 

their children to attend such schools without suitable clothing. In 

some districts special fees are assessed for courses which are available 

only in the white schools; 

(e) Improvements . . . have been instituted in all-Negro schools 

in a manner that tends to discourage Negroes from selecting 

white schools.   
 



  

19 

graphic attendance zone method. Their expectations were 

justified. Meaningful desegregation has not resulted from 

the use of free choice. oven when Negroes have transferred, 

however, desegregation has been a one-way street—a few 

Negroes moving into the white schools, but no whites trans- 

ferring to the Negro schools. In most districts, therefore, 

as in the case before the Court, the vast majority of Negro 

pupils continue to attend school only with Negroes. 

Although the proportion of Negroes in all-Negro schools 

has declined since Browmn, more Negro children are now 

attending such schools than in 1954. Indeed, during the 

1966-67 school year, a full 12 years years after Brown, more 

than 90% of the alinost 3 million Negro pupils in the 11 

Southern states still attended schools which were over 

95% Negro and 83.1% were in schools which were 100% 

Negro.”* And, in the case hefore the Court, 85% of the 

Negro pupils in New Kent County still attend schools with 

only Negroes. “This June, the vast majority of Negro 

children in the South who entered the first grade in 1955, 

the year after the Drown decision, were gradnated from 

high school without ever attending a single class with a 

* Thus, as the Fifth Cirewit has single white student.” ? 

said, “[fJor all but a handful of Negro menihers of the 

igh School Class of 1966, this right [to equal educational 

opportunities with white children in a racially non-dis- 

eriminatory public school syste] has been of such stuff as 

dreams are made on.” * 

1 

In its most recent report, the Civil Rights Commission 

states: 
    

22 Southern School Desegregation, 1966-67, at p. 11. 

23 Id. at 165. 

24 Id. at 147. 
« ~ 

~
3
 

L ~
 

26 United States v. Jefferson County Board of Education, supra, . 

F.2d 836 at 845. 

   



  

20 

The review of desegregation under freedom of choice 

plans contained in this report, and that presented in 

last years commission’s survey of southern school de- 

segregation, show that the freedom of choice plan is 

inadequate in the great majority of cases as an instru- 

ment for disestablishing a dual school system. Such 

plans have not resulted in desegregation of Negro 

schools and therefore perpetuate one-half of the dual 

school system virtually intact. [Emphasis added]? 

IT. 

A Freedom of Choice Plan is Constitutionally Unae- 

ceptable Where There are Other Methods, no More 

Difficult to Administer, Which Would More Speedily 

Disestablish the Dual System. 

The duty of a school board under Drown, in the mid- 

sixties (by now, the time for “deliberate speed” has long 

run out?”) is to adopt that plan which will most speedily 

accomplish the effective desegregation of the system. We 

quite willingly concede that a court should not enforce its 

will where alternative methods are not likely to produce 

dissimilar results—that much discretion should still be the 

province of the school board. We submit, however, that a 

26 Southern School Desegregation, 1966-1967, pp. 152-153. In an earlier 

report, Racial Isolation in the Public Schools, the Civil Rights Commis- 

sion observed (at p. 69) that, “. .. the degree of school segregation in 

these free-choice systems remain high.” and concluded that (ibid): “only 

limited school desegregation has been achieved under free choice plans in 

Southern and Border city school systems.” 

27 Almost two years ago this Court stated, “more than a decade has 

passed since we directed desegregation of publie school facilities with all 

deliberate speed. . . . Delays in desegregating school systems are no longer 

tolerable.” Bradley v. School Board of The City of Richmond, 382 U.S. 

103, 105. “There has been entirely too much deliberation and not enough 

speed . . . Griffin v. County School Board of Prince Edward County, 

377 U.S. 218, 229. Cf. Watson Vv. Memphis, 373 U.S. 526, 533. 

 



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21 

court may not—at this late date, in the absence of persua- 

sive evidence showing the need for delay—permit the use 

of any plan other than that which will most speedily and 

effectively desegregate the system. Put another way, at 

this point, that method must be mandated which will do the 

job more quickly and effectively. 

A. The Obligation of a School Board Under Brown v. 

Board of Education is io Disestablish the Dual 

Scliool System and to Achieve a Unitary, Non-racial 

System. 

At bottom, this controversy concerns the precise point at 

which a school board has fulfilled its obligations under 

Brown I and II. When free choice plans initially were con- 

ceived, courts generally adhered—mistakenly, we submit— 

to the belief that it was suflicient to permit each student an 

unrestricted free choice of schools. It was said that “de- 

segregation” did not mean “integration” and that the 

availability of a free choice of schools, unencumbered by 

violence and other restrictions, was sufficient quite apart 

from whether any integration actually resulted.”® Despite 

28 The doetrine probably had its genesis in the now famons dietum of 

Judge Parker in Briggs v. Elliot, 132 1.Supp. 776, 777 (15.D.5.C. 1955) 

“The Constitution . . . does not require integration. It merely forbids 

segregation”; See generally Jeffers vo Whitley, 309 ¥.2d 621, 629 (4th 

Cir. 1962) ; Borders v. Rippy, 247 F.2d 268, 271 (5th Cir. 1957); Boson 

v. Rippy, 285 F.2d 43, 48 (5th Cir. 1960); Vick v. Board of Iiducation of 
Obion County, 205 F.Supp. 436 (W.D. Tenn. 1962); Kelley v. Board of 

Education of the City of Nashville, 270 1".2d 209, 229 (6th Cir. 1959). 

In recent years, several courts in addition to that in United States v. 

Jefferson County Board of Education, supra (See discussion infra at pp. 

23-25), have rejected the dictum in Briggs. Even before Jefferson 
County, Judge Wisdom had tersely observed that “Judge Parker's well 
known dictum. . . . should be laid to rest”. Singleton v. Jackson Municipal 
Separate School District, 348 1'.2d 729, 730 (5th Cir. 1965). In Kemp 

Vv. Beasley, 352 F.2d 14, 21 (1965), the Eighth Circuit stated that “The 

dictum in Briggs has not been followed or adopted by this Circuit and is 

logically inconsistent with Brown.” To the same effect is Kelley Vv. 
Altheimer Arkansas Public School District, 378 I'.2d 483, 488 (8th Cir. 
1967). See also Evans v. Ennis, 281 F.2d 385, 389 (3rd Cir. 1960) where 

   



  

22 

its protestations, the majority below manifested much of 

this thinking (17-18a, 19a): 

Employed as descriptive of a system of permissive 

transfers out of segregated schools in which the initial 

assignments are both involuntary and dictated by racial 

criteria, [freedom of choice] is an illusion and an op- 

pression which is constitutionally impermissible . . 

Employed as descriptive of a system in which each 

pupil or his parents, must annually exercise an un- 

inhibited choice, and the choices govern the assign- 

ments, it is a very different thing. * * * 

Since plaintiffs here concede that their annual choice 

is unrestricted and unencumbered, we find in its ex- 

istence no denial of any constitutional right not to be 

subjected to racial discrimination. (Iimphasis added.) 

At no point in its opinion did the majority meet the essence 

of petitioners’ elaim—that in view of related experience un- 

der the Pupil Placement laws, there was no good reason to 

believe that free choice would, in fact, desegregate the sys- 

tem and that the district court should have mandated the 

use of geographie zones which, on the evidence before it, 

would produce greater desegregation. 

The notion that the making available of an unrestricted 

choice satisfies the Constitution, quite apart from whether 

significant numbers of white students choose Negro schools 

or Negro students choose white schools, is, we submit, 

fundamentally inconsistent with the decisions of this Court 

in Brown I and II, Cooper v. Aaron, 358 U.S. 1; Bradley v. 

  

the court declared “The Supreme Court has unqualifiedly declared integra- 

tion to be their constitutional right.” Cf. Blocker V. Board of Education 

of Manhasset, 226 F.Supp. 208, 220, 221 (E.D.N.Y. 1964) and Board of 

Education of Oklahoma City Public Schools, et al. v. Dowell, 372 F.2d 

158 (10th Cir. 1967). 
. 

 



23 

School Board of the City of Richmond, 382 U.S. 103 and the 

entire series of school cases it has decided.” The Highth 

Circuit has said: 

A Board of Education does not satisfy its obligation to 

desegregate by simply opening the doors of a formerly 

all-white school to Negroes. [footnote omitted] 

Kelley v. Altheimer Arkansas Public School District, supra 

at 488. And only recently, the Fifth Circuit, in a major 

school desegregation decision®® that necessarily conflicts 

with the Fourth Circuit's, specifically rejected the argument 

that Brown I and the Constitution do not require integra- 

tion but only an end to enforced segregation. Concluding 

that “integration” and “desegregation” mean one and the 

same thing, the Court used the terms interchangeably to 

mean the achievement of a “unitary non-racial [school] 

system”. Said the Court (372 1°.2d 8306, 847 at Note 9): 

Decision-making in this important area of the law can- 

not be made to turn upon a quibble devised over ten 

years ago by a court [Driggs] that misread Brown, 

misapplied the elass action doctrine in the school de- 

segregation cases, and did nol foresee the development 

of the law of equal opportunities. 

* * * 

We use the terms “integration” and “desegregation” of 

formerly segregated public schools systems to mean 

the conversion of a formerly de jure system to a uni- 

tary, non-racial (non-discriminatory) system—Iock, 

29 See Rogers Vv. Paul, 382 U.S. 198; Calhoun v. Latimer, 377 U.S. 263; 

Griffin v. County School Board of Prince Edward County, 377 U.S. 218; 

Goss V. Board of Education, 373 U.S. 633. 

30 United States v. Jefferson County Board of Education, 372 ¥.2d 836 

(5th Cir. 1966), aff’d with modifications on rehearing en bane. Civ. No. 

23345, March 29, 1967, petition for certiorari pending, Nos. 256, 282, 301. 

  

! 

§ } 

 



  

24 

stock and barrel: students, faculty, staff, facilities, 

programs and activities. 

On rehearing en banc the majority put it this way (slip 

op. at 9): 

[school] Boards and officials administering public 

schools in this circuit [footnote omitted] have the af- 

firmative duty under the Fourteenth Amendment to 

bring about an integrated unitary school system in 

which there are no Negro schools and no white schools 

—just schools. Expressions in our earlier opinion dis- 

tinguishing between integration and desegregation 

[footnote omitted] must yield to this affirmative duty 

we now recognize. In fulfilling this duty it is not 

enough for school authorities to offer Negro children 

the opportunity to attend formerly all-white schools. 

The necessity of overcoming the effects: of the dual 

system in this circuit requires integration of faculties, 

facilities and activities, as well as students. 

The Court went on to hold that the test for any school 

desegregation plan is whether the plan achieves the “sub- 

stantial integration” which is constitutionally required and 

that a plan not accomplishing that result must be abandoned 

and another substituted (372 F.2d 836, 895-896).** We sub- 

31 The Court conceded, as we do here, that the Constitution does not re- 

quire that “each and every child . . . attend a racially balanced school,” 

nor that school officials achieve “a maximum of racial mixing.” (372 

F.2d 836, 846). It concluded, however, that school officials in formerly 

de jure systems have “an absolute duty to integrate.” (Ibid.) 

The Department of Health, Education and Welfare has also taken the 

position that a freedom of choice plan must work—result in actual in- 

tegration. And under the Revised Guidelines the commissioner has the 

power, where the results under a free choice plan continue to be unsat- 

isfactory, to require, as a precondition to the making available of further 

federal funds, that the school system adopt a different type of desegrega- 

tion plan. Revised Guidelines, 45 CFR 181.54. Although administrative 

 



25 

scribe to that view and urge its plain and explicit adoption 

by this Court. 

The majority opinion below, in trye Briggs form, neither 

states nor implies such a requirement—that the plan 

“work.” The most it can be read to say is that while 

Negroes rightfully may complain if extraneous ecircum- 

stances inhibit the making of a “truly free choice,” they 

have no basis to complain and the Constitution is satisfied 

if no such circumstances are shown. This is not an over- 

harsh reading of the opinion. Only recently a writer 

observed: 

The Fourth is apparently the only circuit of the three 

that continues to cling to the doctrine of Driggs v. 

Elliot, and embraces freedom of choice as a final answer 

to school desegregation in the absence of intimidation 

and harrassment. 

Judge Sobeloff perceived this and exhorted the majority to 

“move out from under the incubus of the Driggs v. Elliot 

dictum and take [a] stand beside the Tifth and Eighth? 

Circuits.” (40a) 

The Fifth Circuit in Jefferson did not bold, and we do 

not urge, that freedom of choice plans are unconstitutional 

per se. Indeed, in areas where residential segregation is 

  

regulations propounded under Title VI of the Civil Rights Aet of 1964 
are not binding on courts determining private rights under the fourteenth 

Amendment, nonetheless they are entitled to great weight in the formula- 

tion by the judiciary of constitutional standards. See Skidmore v. Swift 

& Co., 323 U.S. 134, 137, 139-140; United States v. American Trucking 

Associations, Inec., 310 U.S. 534; Norwegian Nitrogen Products Co. V. 

United States, 288 U.S. 294; United States v. Jefferson County, supra, 

en banc slip op. at p. 7. 

32 Dunn, Title VI, The Guidelines and School Desegregation in the 

South, 53 Va. L. Rev. 42, 72 (1967). 

33 See Kemp Vv. Beasley, 352 F.2d 14 (8th Cir. 1965) discussed in Note 
28, supra. ! 

   



  

26 

substantial and entrenched, a free choice plan might well be 

the most effective method of desegregation. Rather, our 

position is that a freedom of choice plan is not an “ade- 

quate” desegregation plan (Brown II, supra, 349 U.S. at 

301), if there is another plan, equally feasible to administer, 

which will more speedily and effectively disestablish the 

dual system. 

B. The Record Clearly Showed That a Freedom of 

Choice Plan Was Not Likely to Disestablish and 

Has Not Disestablished the Dual School System 

and That a Geographic Zone Plan Would Imme- 

diately Have Produced Substantial Desegrega- 

tion. 

Plaintiffs’ exhibits showed, Judge Sobeloff observed, and 

the available census figures confirmed, that there was no 

residential segregation in New Kent County. Separate 

busses maintained for the races traversed all areas of the 

county picking up children to be taken to the school main- 

tained for their race. Yet, instead of geographically zon- 

ing each school as logic and reason would seem to dictate,’ 

and as it most certainly would have done had all children 

been of the same race, the School Board gratuitously 

adopted a free choice plan thereby incurring the adminis- 

trative hardship of processing choice forms and of furnish- 

ing transportation to children choosing the school farthest 

from their homes. Indeed, in view of the lack of residential 

segregation it can fairly be concluded that the dual school 

system could not continue, as Judge Sobeloff has said (see 

p. 9 supra), but for free choice. Freedom of choice, then, 

has been, at least in this community, the means by which the 

  

34 Compare Judge Sobeloff’s suggestion quoted at pp. 9-10, supra 

(27-28a) that the dual system could immediately be eliminated and a 

unitary non-racial system achieved by the assignment of students in the 

eastern half of the county to New Kent and those in the western half to 

Watkins. : 

   



27 

State has continued, under the guise of desegregation, to 

maintain segregated schools. 

The Board could not, in good faith, have hoped that 

enough students would choose the school previously closed 

to them to produce a truly integrated system. The evidence 

belies this. The Board had, for several years prior to the 

adoption of free choice in 1965,* operated under the Vir- 

ginia Pupil Placement Act, under which any student, 

could, as in free choice, choose any school. When the 

New Kent Board adopted free choice, no Negro student 

had ever chosen to transfer to the white school and no 

white student had ever chosen to attend the Negro school. 

(R. Vol. 2, p. 28). Thus, at the time the Board adopted 

free choice, it was fairly clear, based on related experience 

under the Pupil Placement Law, that free choice would not 

disestablish the separate systems and produce a “unitary 

non-racial system.” 

Nor has it done so in the years since its adoption. Dur- 

ing the most recent school year, 1966-67, only 111 of the 

759 Neeroes in the New Kent School distriet attended 

school with whites at the New Kent School. No whites 

chose to attend and, indeed, none have ever attended, 

Watkins, the Negro school. A full generation of school 

children after Brown, 85% of New Kent’s Negro children 

still attended a school that was entirely Negro. 

Nor did the Board introduce any evidence to justify its 

method, which, if it could disestablish the dual system at 

all (and, we think it clear that it could not), would require 

a much longer period of time than the method petitioners 

had urged upon the Court. As this Court said in Brown II 

(349 U.S. at 300): | 

35 Although the Board adopted its plan in August, 1965, it was not ap- 

proved by the Court and actually implemented until the Fall term of 
1966. : : 

 



  

28 

The burden rests upon the defendants to establish 

that such time [in which to effectuate a transition 

to a racially non-discriminatory system] is necessary 

in the public interest and is consistent with good 

faith compliance at the earliest practicable date. 

It was, therefore, error for the Court below to approve 

the freedom of choice plan in the face of petitioner’s proof, 

especially when the Board failed to show administrative 

reasons, cognizable by Brown II, justifying delay. 

The data regarding assignment of teachers also reveal 

the failure of the Board to disestablish the dual system. 

The racial composition of the faculty at each school dur- 

ing the year just ended (1966-67) mirrored the racial com- 

position of the student bodies. There were no Negroes 

among the 28 full-time teachers at the formerly all-white 

New Kent school. Only one Negro teacher was assigned 

there and that was for the equivalent of two days each 

week. No white teachers were assigned to the only Negro 

school, Watkins—all full-time teachers there were Negroes. 

Thus, neither of the only two schools in the county had 

lost, either in terms of its students or faculty, its racial 

identification.®® 

  

36 The failure of the Board to take meaningful steps to integrate its 

faculty is consistent with what the record shows: that the Board, by 

adopting freedom of choice, could not in good faith have believed or in- 

tended that the dual system would thereby be converted into the non-racial 

system required by the Constitution. “[FJaculty segregation encourages 

pupil segregation and is detrimental to achieving a constitutionally re- 

quired non-racially operated school system”. Clark v. Board of Education, 

Little Rock School District, 369 F.2d 661, 669-670 (8th Cir. 1966) ; United 

States v. Jefferson County Board of Education, supra (at 883-885); 

Bradley Vv. School Board of the City of Richmond, 382 U.S. 103; Rogers 

v. Paul, 382 U.S. 198. 

 



29 

The duty of the School Board was to convert the dual 

school system it had created in derogation of petitioners’ 

rights into a “unitary non-racial system.” As we have 
  previously noticed it had alternatives—such as utilizing 

  geographic zones or reshaping grade structures—which the 

record shows would have disestablished the dual system 

more speedily and with much less administrative hardship 

than that which it ultimately chose. More importantly, 

the success of its free choice plan depended on the ability 

of Negroes to unshackle themselves from the psychological 

effects of imposed racial discriminations of the past, and 

to withstand the fear and intimidation of the present and 

future. Neither of the other methods under which assign- 

ment would be involuntary—as it had been until Brown 

—would subject Negroes to the possibility of intimidation 

or give undue weight, as does free choice, fo the very 

psychological effcets of the dual system that this court 

found objectionable.” Instead of employing a procedure 

which would “as far as possible eliminate the diserimina- 

tory effects of the past” (ef. Louisiana v. United States, 

280 U.S. 145) the Board has, by adopting free choice, 

utilized those discriminatory effeets to maintain its essen- 

tially segregated system. 

But for the relatively small number of Negro children 

attending the formerly white school, the schools in the 

county are operated substantially as before the Brown 

decision. “The transfer of a few Negro children to a white 

school does not”, as the Fifth Circuit has observed, “do 

away with the dual system.” United States v. Jefferson 

County Board of Education, supra, 372 T. 2d at 812. All 

37 In a related context, this Court has said: 

It must be remembered that we are dealing with a body of eitizens 
lacking the habits and traditions of political independence and other- 

wise living in circumstances which do not encourage initiative and 
enterprise. Lane v. Wilson, 307 U.S. 268, 276. 

0   

i 

i 

[1 

| 
} 

: 

 



  

30 

white pupils in New Kent County still attend the schools 

formerly maintained for their race; the overwhelming 

majority of Negroes still attend school only with other 

Negroes at Watkins. Here, as in most of the other dis- 

tricts utilizing free choice, one-half of the dual system 

has been retained intact. Nothing but race can explain 

the continued existence of this all-Negro school and defer 

indefinitely its elimination, where all races are scattered 

throughout the county. Freedom of choice has been in 

this county, the instrument by which the State has used 

its resources and authority to maintain the momentum 

of racial segregation. 

The statistics demonstrate that freedom of choice has 

not effected, either in the county before the Court or in 

most districts in the southern and border states generally, 

a unitary non-discriminatory system. While its use in the 

immediate post-Brown years might have been justified as 

an interim or transitional device, one can hardly conceive 

any justification for its adoption as late as 1966, twelve 

years after Brown. Certainly, the record furnishes no 

administrative or other reasons for its retention in this 

county. 

In the 13 years since Brown 1 and II, this Court—con- 

sistent with its early statement in Brown II that “the 

[district] courts, because of their proximity to local con- 

ditions . . . can best perform this judicial appraisal (349 

U.S. at 298)”—has rarely reviewed cases challenging de- 

segregation plans (or provisions thereof) approved by 

the lower courts. But the rule is not without its excep- 

tions and there have been several instances in which this 

Court has found it necessary to overturn the judgment of 

a lower court in a school desegregation case. 

  

38 The school desegregation cases which the court has reviewed are col- 

lected in Note 29, supra and accompanying text. 

 



Standing to one side are the school cases, in which the 

Court acted to preserve, reaffirm, and vindicate, in the 

face of crude local opposition, the very basis of federal 

authority. In this category are Cooper v. Aaron, 358 U. S. 1 

and Griffin v. County School Board of Prince Idward 

County, 377 U.S. 218. 

The other cases are those in which the Court has re- 

viewed the provisions of a plan; they are few and far 

between but have a common characteristic: the issue posed 

is one upon which the continuation of the desegregation 

process depended. In Goss v. Board of Education, 373 

U.S. 683 (1963), the question concerned the validity of 

provisions in desegregation plans entitling a student, solely 

on the basis of race, to obtain a transfer from a school 

in which he would be in the racial minority, back to -his 

former segregated school where his race would be in the 

majority. Such provisions were widely being adopted with 

the approval of the lower courts, even though, as this 

court found, their eileet was to perpetuate segregation. 

It was absolutely necessary, therefore, to prevent the 

desegregation process (whieh had barely begun) from 

being brought to a resounding halt, that this Court, as it 

did, hear the case and mstruet the lower courts that such 

provisions were constitutionally unacceptable. So too, in 

Bradley v. School Board of the City of Richmond, 382 

U.S. 103 and Rogers v. Paul, 382 U.S. 198, this Court, 

faced with increasing litigation concerning teacher de- 

segregation and the unwillingness of lower courts to afford 

relief, recognized that teacher desegregation was a neces- 

sary element of the overall desegregation process and 

directed that the courts turn their attention to it. We 

submit that the question in this case is as important to 

the ultimate successful dismantling of the dual systems 

in Brown—affected states as was the question in Goss. 

   



  

32 

The sheer ubiquitousness of freedom of choice plans, 

he chorus with which they have uniformly been condemned 

and their evident failure to disestablish the dual systems a 

full thirteen years after the Brown decision demonstrates 

that the time has come for this Court to subject their use 

to careful scrutiny. We repeat, however, that our thrust 

is limited rather than general; we do not urge that a 

freedom of choice plan is unconstitutional per se and may 

never be used. Our submission is simply that it may not 

be used where on the face of the record there is little rea- 

son to believe it will be successful and there are other 

methods, more easily administered, which will more 

speedily and effectively disestablish the dual system.*® The 

constitutionality of the continued use of a free choice plan 

in that context merits the attention of this Court. 

  

39 See Note 15, supra. 

40 A trend away from freedom of choice seems to have developed re- 

cently in some of the lower courts. And a recent order of a district court 

in Virginia appears to have adopted the view we urge. See Corbin V. 

County School Board of Loudon County, Virginia, C.A. No. 2737, August 

27, 1967. In Loudon County, as in this case, Negroes were scattered 

throughout the County. The district court had approved in May, 1963 a 

freedom of choice plan of desegregation. In April, 1967, plaintiffs and the 

United States filed motions for further relief contending that the freedom 

of choice plan had resulted in only token or minimal desegregation’ with 

the majority of Negroes still attending all Negro Schools. They requested 

that the district be ordered to desegregate hy means of unitary geo- 

graphic attendance zones drawn without regard to race. The district court 

agreed and on August 97th entered an order directing that: 

No later than the commencement of the 1968-69 school year the 

Loudon County Elementary Schools shall be operated on the basis of 

a system of compact, unitary, non-raeial geographic attendance zones 

in which, there shall be no schools staffed or attended solely by 

Negroes. Upon the completion of the New Broad Run High School, 

the high schools shall be operated on a like basis. 

Cf. Orders requiring the use of geographic zones in Coppedge Vv. Franklin 

County Board of Education, C.A. 1796, decided August 17, 1967, dis- 

cussed in Note 20, supra, and Braxion V. Board of Public Instruction of 

Duval County, Florida, No. 4598 (M.D. Fla.), January 24, 1967. 

 



33 

  

CONCLUSION 

WrEererorg, for the foregoing reasons it is respectfully 

submitted that the petition for certiorari should be granted. 

Respectfully submitted, 
| 

JACK GREENBERG 

James M. Nasrir, III 

FrankLiN 10. WHITE 

10 Columbus Circle 

: New York, New York 1001t 

S. W. Tucker 

JTenry L. Mars, III 

214 Kast Clay Street 

Richmond, Virginia 

Attorneys for Pelitioners 

 



   



APPENDIX 

Memorandum of the Court 

(Filed May 17, 1966) 

The infant plaintiffs, as pupils or prospective pupils in 

the public schools of New Kent County, and their parents 

or guardians have brought this class action asking that the 

defendants be required to adopt and implement a plan 

which will provide for the prompt and efficient racial 

desegregation of the county schools, and that the defen- 

dants be enjoined from building schools or additions and 

from purchasing school sites pending the court’s approval 

of a plan. The plaintiffs also seek attorney's fees and costs. 

The defendants have moved to dismiss on the ground that 

the complaint fails to state a claim upon which relief can 

be granted. They have also answered denying the material 

alleeations of the ill 

The facts are uncontested. 

New Kent is a rural county located cast of the City of 

Richmond. Its school system serves approximately 1,300 

pupils, of which 740 ave Negro and 550 are White. The 

school board operates one white combined elementary and 

high school, and one Negro combined elementary and high 

school. There are no attendance zones. ach school serves 

the entire county. Indian students attend a school in 

Charles City County. 

On August 2, 1965 the county school board adopted a 

freedom of choice plan to comply with Title VI of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000.d-1, et seq. The 

choices include the Indian school in Charles City County. 

he county had operated under the Pupil Placement Act, 

§§ 22-232.1, et seq., Code of Virginia, 1950, as amended. 

As of September 1964 no Negro pupil had applied for 

   



  

2a 

Memorandum of the Court 

admission to the white school. No. Negro faculty member 

serves in the white school and no white faculty member 

serves in the Negro school. 

New construction is scheduled at both county schools. 

The case is controlled by the principles expressed in 

Wright v. School Bd. of Greenville County, Va., No. 4263 

(E.D. Va., Jan. 27, 1966). An order similar to that en- 

tered in Greenville will deny an injunction restraining con- 

struction and grant leave to submit an amendment to the 

plan for employment and assignment of staff on a non- 

racial basis. The motion for counsel fees will be denied. 

/s/ Jounx D. BUTZNER, JR. 

United States District Judge 

 



3a 

Order 

(Filed May 17, 1966) 

For reasons stated in the Memorandum of the Court this 

day filed and in the Memorandum of the Court in Wright 

v. County School Board of Greenville County, Virgina, 

Civil Action No. 4263 (E.D. Va., Jan. 27, 1966), 

It is ADJUDGED and ORDERED: 

i. The defendants’ motion to dismiss is denied; 

2. The plaintiffs’ prayer for an injunction restraining 

scliool construction and the purchase of school sites is 

denied; 

LD 2 The defendants are granted leave to submit on or be- 

fore June 6, 1966 amendments to their plan which will pro- 

vide for employment and assignment of the staff on a non- 

racial basis. Pending receipt of these amendments, the 

court will defer approval of the plan and consideration of 

other injunctive relief 

4. The plaintiffs’ motion for counsel fees is denied: 

5. The case will be retained upon the docket with leave 

oranted to any party to petition for further relief. 

The plaintiffs shall recover their costs to date. 

Let the Clerk send copies of this order and the Memo- 

randum of the Court to counsel of record. 

/s/ Jounx D. BuTrzNER, JE. 

United States District Judge 

  

l 
3 

t 

 



  

4a 

Memorandum of the Court 

(Filed June 28, 1966) 

This memorandum supplements the memorandum of the 

court filed May 17, 1966. The court deferred ruling on the 

school board’s plan of desegregation until after the board 

had an opportunity to amend the plan to provide for 

allocation of faculty and staff on a non-racial basis. The 

board has filed a supplement to the plan to accomplish 

this purpose. : 

The plan and supplement are: 

8 

AxNvAL I'rEEpoM oF CHOICE OF SCHOOLS 

A. The County School Board of New Kent County has 

adopted a policy of complete freedom of choice to be offered 

in grades 1, 2, 8, 9, 10, 11, and 12 of all schools without 

regard to race, color, or national origin, for 1965-66 and all 

grades after 1965-66. 

B. The choice is granted to parents, guardians and per- 

sons acting as parents (hereafter called ‘parents’) and their 

children. Teachers, principals and other school personnel 

are not permitted to advise, recommend or otherwise in- 

fluence choices. They are not permitted to favor or penalize 

children because of choices. 

11 

PuriLs ExTERING OTHER GRADES 

Registration for the first grade will take place, after con- 

spicuous advertising two weeks in advance of registration, 

between April 1 and May 31 from 9:00 A.M. to 2:00 P.M. 

When registering, the parent will complete a Choice of 

 



oa 

Memorandum of the Court 

School Form for the child. The child may be registered at 

any elementary school in this system, and the choice made 

may be for that school or for any other elementary school 

in the system. The provisions of Section VI of this plan 

with respect to overcrowding shall apply.in the assignment 

to schools of children entering first grade. 

111. 

Purins EnxTERING OTHER (GRADES 

A. TIhach parent will be sent a letter annually explaining 

the provisions of the plan, together with a Choice of School 

Form and a self-addressed return envelope, by April 1 of 

each year for pre-school children and May 15 for others. 

Choice forms and copies of the letter to parents will also 

be readily available to parents or students and the general 

public in the school offices during regular business hours. 

Section VI applies. 

B. The Choice of School Form must be either mailed 

or brought to any school or to the Superintendent’s Office 

by May 31st of cach year. Pupils entering grade one (1) 

of the elementary school or grade eight (8) of the high 

school must express a choice as a condition for enrollment. 

Any pupil in grades other than grades 1 and 8 for whom 

a choice of school is not obtained will be assigned to the 

school he is now attending. 

IV, 

Purins NewLy ENTERING SCHOOL SYSTEM OR 

Caavcine Resipexce WiTtHIN IT 

A. Parents of children moving into the areca served by 

this school system, or changing their residence within if, 

  

H 
§ 

i 

t 
5 

 



  

6a 

Memorandum of the Court 

after the registration period is completed but before the 

opening of the school year, will have the same opportunity 

to choose their children’s school just before school opens 

during the week of August 30th, by completing a Choice 

of School Form. The child may be registered at any school 

in the system containing the grade he will enter, and the 

choice made may be for that school or for any other such 

school in the system. However, first preference in choice of 

schools will be given to those whose Choice of School Form 

is returned by the final date for making choice in the regular 

registration period. Otherwise, Section VI applies. 

B. Children moving into the area served by this school 

system, or changing their residence within it, after the late 

registration period referred to above but before the next 

regular registration period, shall be provided with regis- 

tration forms. This has been done in the past. : 

RESIDENT AND NON-RESIDENT ATTENDANCE 

This system will not accept non-resident students, nor 

will it make arrangements for resident students to attend 

public schools in other school systems where either action 

would tend to preserve segregation or minimize desegre- 

gation. Any arrangement made for non-resident students 

to attend public schools in this system, or for resident stu- 

dents to attend public schools in another system, will assure 

that such students will be assigned without regard to race, 

color, or national origin, and such arrangement will be ex- 

plained fully in an attachment made a part of this plan. 

Agreement attached for Indian children. 

 



Ta 

Memorandum of the Court 

VI. 

OVERCROWDING 

A. No choice will be denied for any reason other than 

overcrowding. Where a school would become overcrowded 

if all choices for that school were granted, pupils choosing 

that school will be assigned so that they may attend the 

school of their choice nearest to their homes. No preference 

will be given for prior attendance at the school. 

B. The Board plans to relieve overcrowding by building 

during 1965-66 for the 1966-67 session. 

VII. 

TRANSPORTATION 

Transportation will be provided on an equal basis with- 

oul segregation or other discrimination because of race, 

color, or national origin, The right to attend any school in 

the system will not be restricted by transportation policies 

or practices. To the maximum extent feasible, busses will 

be routed so as to serve each pupil choosing any school in 

the system. In any event, every student eligible for bussing 

shall be transported to the school of his choice if he chooses 

either the formerly white, Negro or Indian school. 

VIII 

SERVICES, I"AcILITIES, ACTIVITIES AND DP’ROGRAMS 

There shall be no discrimination based on race, color, or 

national origin with respect to any services, facilities, ac- 

tivities and programs sponsored by or affiliated with the 

schools of this school system. 

   



  

8a 

Memorandum of the Court 

IX. 

STAFF DESEGREGATION 

A. Teacher and staff desegregation is a necessary part 

of school desegregation. Steps shall be taken beginning 

with school year 1965-66 toward elimination of segregation 

of teaching and staff personnel based on race, color, or: 

national origin, including joint faculty meetings, in-service 

programs, workshops, other professional meetings and 

other steps as set forth in Attachment C. 

B. The race, color, or national origin of pupils will not 

be a factor in the initial assignment to a particular school 

or within a school of teachers, administrators or other em- 

ployees who serve pupils, beginning in 1966-67. 

C. This school system will not demote or refuse to re- 

employ principals, teachers and other staff members who 

serve pupils, on the basis of race, color, or national origin; 

this includes any demotion or failure to reemploy staff 

members because of actual or expected loss of enrollment 

in a school. 

D. Attachment D hereto consists of a tabular statement, 

broken down by race, showing: 1) the number of faculty 

and staff members employed by this system in 1964-65; 

2) comparable data for 1965-66; 3) the number of such per- 

sonnel demoted, discharged or not re-employed for 1965- 

66; 4) the number of such personnel newly employed for 

1965-66. Attachment D further consists of a certification 

that in each case of demotion, discharge or failure to re- 

employ, such action was taken wholly without regard to 

race, color, or national origin. 

   



9a 

Memorandum of the Court 

X. 

Pusricity AND COMMUNITY PREPARATION 

Immediately upon the acceptance of this plan by the U. S. 

Commissioner of Iiducation, and once a month before final 

date of making choices in 1966, copies of this plan will be 

made available to all interested citizens and will be given to 

all television and radio stations and all newspapers serving 

this area. They will be asked to give conspicuous publicity 

to the plan in local news scetions of the Richitiond papers. 

The newspaper coverage will set forth the text of the plan, 

the letter to parents and Choice of School Form. Similar 

prominent notice of {he choice provision will be arranged 

for at least one a month thereafter until the final date for 

making choice. In addition, meetings and conferences have 

been and will be called to inform all school system staff 

mcmbers of, and to prepare them for, the school desegrega- 

tion process, including staff desegregation. Similar meet- 

ines will be held to inform Parent-Teacher Associations 

and other local community organizations of the details of 

the plan, to prepare them for the changes that will take 

place. 

SUPPLEMENT 

“The School Board of New Kent County recognizes its 

responsibility to employ, assign, promote and discharge 

teachers and other professional personnel of the school sys- 

tems without regard to race, color or national origin. We 

further recognize our obligation to take all reasonable steps 

to eliminate existing racial segregation of faculty that has 

resulted from the past operation of a dual system based 

upon race or color. 

 



  

10a 

Memorandum of the Court 

“The New Kent Board recognizes the fact that New 
Kent County has a problem which differs from most coun- 
ties in that the white citizens are the minority group. The 
Board is also cognizant of the fact that race relations are 
generally good in this county, and Negro citizens share in 
county government. A Negro citizen is a member of the 
County Board of Supervisors at the present time. 

“In the recruitment, selection and assignment of staff, the 
chief obligation is to provide the best possible education for 
all children. The pattern of assignment of teachers and 
other staff members among the various schools of this sys- 
tem will not be such that only white teachers are sought for 
predominantly white schools and only Negro teachers are 
sought for predominantly Negro schools. 

“The following procedures will be followed to carry out 

the above stated policy: 

1. The best person will be sought for each position 

without regard to race, and the Board will follow the 

policy of assigning new personnel in a manner that 

will work toward the desegregation of faculties. We 

will not select a person of less ability just to accomp- 

lish desegregation. 

2. Institutions, agencies, organization, and individ- 

uals that refer teacher applicants to the schools system 

will be informed of the above stated policy for faculty 

desegregation and will be asked to so inform persons 

seeking referrals. 

3. The School Board will take affirmative steps to 

allow teachers presently employed to accept transfers 

to schools in which the majority of the faculty members 

 



  

11a 

Memorandum of the Court 

are of a race different from that of the teacher to be 

transferred. 

4. No new teacher will be hereafter employed who 

is not willing to accept assignment to a desegregated 

faculty or in a desegregated school. 

5. All workshops and in-service training programs 

are now and will continue to be conducted on a com- 

pletely desegregated basis. 

6. All members of the supervisory staff will be as- 

siened to cover schools, grades, teachers and pupils : 

without regard to race, color or national origin. 

— 

7. All staff meetings and commitiee meetings that 

are called to plan, choose materials, and to improve the 

total educational process of the division are now and 

will continue to be conducted on a completely desegre- 

grated basis, 

8. All custodial help, cafeteria workers, maintenance 

workers, bus mechanics and the like will continue to 

be employed without regard to race, color or national 

origin. 

9. Arrangements will be made for teachers of onc 

race to visit and observe a classroom consisting of a 

teacher and pupils of another race to promote acquaint- 

ance and understanding.” 

The plaintiffs filed exceptions to the supplement charginy 

that it does not contain well defined procedures which will 

be put into effect on definite dates and that it demonstrates 

the board’s refusal to take any initiative to desegregate the 

staff. 

 



  

12a 

Memorandum of the Court 

The plan for faculty desegregation is not as definite as 

some plans received from other school districts. The court 

is of the opinion, however, that no rigid formula should be 

required. The plan will enable the school board to achieve 

allocation of faculty and staff on a non-racial basis. The 

plan and supplement satisfy the criteria mentioned in 

Wright v. School Board of Greensville County, Va., No. 

4263 (E.D. Va., Jan. 27 and May 13, 1966). 

Provision should be made for a registration period in the 

summer or immediately prior to the beginning of the 1966- 

67 term to allow pupils to exercise their choice of school. 

This is necessary because the supplement to the plan was 

adopted late in the school year. The summer or fall regis- 

tration should present no administrative difficulties. Many 

of the schools which have adopted a freedom of choice plan 

provide for such registration as a matter of course. 

It may become necessary for the board to modify the 

plan. It may become necessary to revoke in full or in part 

the approval that the court has given the plan. The case 

will remain on the docket for any of the parties to seek 

relief which future circumstances may require. 

/s/ Joux D. BuTzNER, JR. 

United States District Judge 

 



13a 

Order 

(Entered June 28, 1966) 

For reasons stated in the memorandum of the court this 

day filed and in Wright v. School Board of Greensville 

County, Va., No. 4263 (E.D. Va., Jan. 27 and May 13, 

1966), it is Apsupcep and Orperep that the plan adopted 

by the New Kent County School Board is approved. 

This case will be retained ‘on the docket with leave 

granted to any party to seek further relict. 

Let the Clerk send copies of this order and of the mem- 

orandum of the court to counsel of record. 

/8/ Joun D. Burzner, Jr. 

United States District Judge 

   



  

14a 

Decision of the United States Court of Appeals 

For the Fourth Circuit 

  

No. 10,792. 
  

Charles C. Green, Carroll A. Green and Robert C. Green, 

infants, by Calvin C. Green and Mary O. Green, 

their father and mother and next friends, 

and all others of the plaintiffs, 

Appellants, 

Versus 

County School Board of New Kent County, Virginia, et al., 

Appellees. 

  

APPEAL FROM THE UNITED STATES District COURT FOR 

rE BASTERN DISTRICT OF VIRGINIA, AT RicaMOND. 

Joux D. BUTZNER, JR., DISTRICT JUDGE. 

  

(Argued January 9, 1967. Decided June 12, 1967.) 

  

Before HayxswortH, Chief Judge, and SoBELOFF, BOREMAN, 

Bryar, J. Spencer BEeLn,* Winter and Craven, Circuit 

Judges, sitting en banc. 
  

S. W. Tucker (Henry L. Marsh, III, Willard H. Douglas, 

Jr., Jack Greenberg and James M. Nabrit, ITI, on brief) 

for Appellants, and Frederick T. Gray (Williams, Mullen 

& Christian on brief) for Appellees. 

  

  

* Judge Bell sat as a member of the Court when the case was heard 

but died before it was decided. 

 



15a 

  

Decision of the United States Court of Appeals 

For the Fourth Circuit 

PER CURIAM : 

The questions presented in this case are substantially the 

same as those we have considered and decided today in 

Bowman v. County School Bd. of Charles City County. 

For the reasons stated there, the rulings of the District. 

Court merit our substantial approval, but the case 1S neces- 

sarily remanded for further proceedings in accordance with 

the District Court’s order and our opinion in Bowman. 

Remanded. 

32 OH. 5 ise Fd... (Decided this day). The special concurring 

opinion of Judge Sobeloff, in which Judge Winter joins, in Bowman is 

applicable to this case also. 

 



  

* 
16a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

  

No. 10,793. 
  

Shirlette IL. Bowman, Rhoda M. Bowman, Mildred A. 

Bowman, Richard M. Bowman and Sandra L. Bowman, 

infants, by Richard M. Bowman, their father and next . 

friend, and all others of the plaintiffs, 

Appellants, 

Versus 

County School Board of Charles City County, 

Virginia, et al, 

Appellees. 

  

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR 

rE EASTERN DISTRICT OF VIRGINIA, AT RicHMOND. 

Joux D. BuTzNER, JR., DISTRICT J UDGE. 

  

(Argued January 9, 1967. Decided June 12, 1967.) 

  

Before HaynsworrH, Chief Judge, and SOBELOFF, BOREMAN, 

Bryax, J. Spencer Brrr, WINTER and Craven, Circuit 

Judges, sitting en banc. 
  

3. W. Tucker (Henry L. Marsh, I1I, Willard H. Douglas, 

Jr., Jack Greenberg and James M. Nabrit, ILI, on brief) 

for Appellants, and Frederick T. Gray (Williams, Mullen 

& Christian on brief) for Appellees. 
  

  

* Judge Bell sat as a member of the Court when the case was heard 

but died before it was decided. 

   



17a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

Hav~swortH, Chief Judge: 

In this school case, the Negro plaintiffs attack, as a dep- 

rivation of their constitutional rights, a “freedom of 

choice” plan, under which each Negro pupil has an aec- 

knowledged “unrestricted right” to attend any school in the 

system he wishes. They contend that compulsive assign- 

ments to achieve a greater intermixture of the races, not- 

withstanding their individual choices, is their due. We 

cannot accept that contention, though a related point af- 

fecting the assignment of teachers is not without merit. 

I 

“I reedom of choice” is a phrase of many connotations. 

Fmployed as deseriptive of a system of permissive trans- 

fors out of seoresated schools in which the initial assign- 

ments are both involuntary and dictated by racial eriteria, 

iis an illusion and an oppression which is constitutionally 

impermissible. Long since, this court has condemned it. 

The burden of extracting individual pupils from diserimi- 

natory, racial assignments may not be east upon the pupils 

or their parents. It is the duty of the school boards to 

eliminate the discrimination which inheres in such a system. 

Employed as descriptive of a system in which each pupil, 

or his parents, must annually exercise an uninhibited choice, 

and the choices govern the assignments, it is a very different 

1 Nesbit v. Statesville City Bd. of Edue., 4 Cir., 345 F.2d 333, 334 n. 3; 

Bradley v. School Bd. of Edue. of City of Richmond, 4 Cir., 345 F.2d 310, 

319 & n. 18; Wheeler v. Durham City Bd. of KEdue., 4 Cir.,, 309 I'.2d 

630, 633; Jeffers v. Whitley, 4 Cir.,, 309 F.2d 621; Marsh v. County 

School Bd. of Roanoke County, 4 Cir, 305 ¥.2d 94; Green v. School 

Bd. of City of Roanoke, 4 Cir., 304 F.2d 118; Hill v. School Bd. of City 

of Norfolk, 4 Cir., 282 F.2d 473; Jones v. School Bd. of City of Alex- 

andria, 4 Cir., 278 F.2d 72. ;  



  

18a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

thing. If each pupil, each year, attends the school of his 

choice, the Constitution does not require that he be de- 

prived of his choice unless its exercise is not free. This we 

have held,? and we adhere to our holdings. 

Whether or not the choice is free may depend upon cir- 

cumstances extraneous to the formal plan of the school 

board. If there is a contention that economic or other 

pressures in the community inhibit the free exercise of the 

choice, there must be a judicial appraisal of it, for “freedom 

of choice” is acceptable only if the choice is free in the 

practical context of its exercise. If there are extraneous 

pressures whih deprive the choice of its freedom, the school 

board may be required to adopt affirmative measures to 

counter them. 

A panel of the Fifth Circuit® recently had occasion to con- 

centrate its guns upon the sort of “freedom of choice” plan 

we have not tolerated, but, significantly, the decree it pre- 

scribed for its district courts requires the kind of “freedom 

of choice” plan we have held requisite and embodies stan- 

dards no more exacting than those we have imposed and 

sanctioned. 

The fact that the Department of Health, Education and 

Welfare has approved the School Board’s plan is not deter- 

minative. The actions of that department, as its guidelines, 

are entitled to respectful consideration, for, in large mea- 

2 Wheeler v. Durham City Bd. of Edue., 4 Cir.,, 346 F.2d 768, 773; 

Bradley v. School Bd. of Edue. of City of Richmond, 4 Cir., 345 F.2d 310, 

313, vacated and remanded on other grounds, 382 U.S. 103. See Jeffers v. 

Whitley, 4 Cir., 309 F.2d 621. 

3 United States v. Jefferson County Board of Education, 5 Cir., 372 

F.2d 836, aff’d on rehearing en bane, ...... Fad .... ; see also, Deal v. Cin- 

cinnati Board of Education, 6 Cir., 369 F.2d 55. 

 



19a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

sure or entirely, they are a reflection of earlier judicial 

opinions. We reach our conclusion independently, for, while 

administrative interpretation may lend a persuasive gloss 

to a statute, the definition of constitutional standards con- 

trolling the actions of states and their subdivisions is 

peculiarly a judicial function. 

Since the plaintiffs here concede that their annual choice 

is unrestricted and unencumbered, we find in its existence 

no denial of any constitutional right not to be subjected to 

racial diserimination. 

II 

Appropriately, the Sehool Board’s plan included provi- 

sions for desegregation of the faculties. Supplemented at 

the direction of the District Court, those provisions are 

set forth in the margin! 

"The School Board of Charles City County recognizes its responsibility 

to employ, assign, promote and discharge teachers and other professional 
personnel of the school systems without regard to race, color or national 

origin. We further recognize our obligation to take all reasonable steps 

to eliminate existing racial segregation of faculty that has resulted from 

the past operation of a dual system based upon race or color. 

In the recruitment, selection and assignment of staff, the chief obliga- 

tion is to provide the best possible education for all children. The pattern 
of assignment of teachers and other staff members among the various 

schools of this system will not be such that only white teachers are sought 

for predominantly white schools and only Negro teachers are sought for 

predominantly Negro schools. 

The following procedures will be followed to carry out the above stated 

policy: 

1. The best person will be sought for each position without regard 

to race, and the Board will follow the policy of assigning new 

personnel in a manner that will work toward the desegregation of 

faculties. 

2. Institutions, agencies, organizations, and individudls that refer 

teacher applicants to the school system will be informed of the 

   



  

20a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

These the District Court found acceptable under our deci- 

sion in Wheeler v. Durham City Board of IEducation, 363 

F.2d 738, but retained jurisdiction to entertain applications 

for further relief. It acted upon a record which showed that 

white teachers had been assigned to the “Indian school” 

  

O
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10. 

31. 

above stated policy for faculty desegregation and will be asked to 

so inform persons seeking referrals. 

The School Board will take affirmative steps including personal 
conferences with members of the present faculty to allow and en- 
courage teachers presently employed to accept transfers to schools 
in which the majority of the faculty members are of a race differ- 

ent from that of the teacher to be transferred. 

No new teacher will be hereafter employed who is not willing to 

accept assignment to a desegregated faculty or in a desegregated 

school. : 

All Workshops and in-serviee training programs are now and will 

continue to be conducted on a completely desegregated basis. 

All members of the supervisory staff have been and will continue 

to be assigned to cover schools, grades, teachers and pupils with- 

out regard to race, color or national origin. 

It is recognized that it is more desirous, where possible, to have 

more than one teacher of the minority race (white or Negro) on 

a desegregated faculty. 

All staff meetings and committee meetings that are called to plan, 

choose materials, and to improve the total educational process of 

the division are now and will continue to be conducted on a com- 

pletely desegregated basis. 

All custodial help, cafeteria workers, maintenance workers, bus 

mechanics and the like will continue to be employed without regard 

to race, color or national origin. 

Arrangements will be made for teachers of one race to visit and 

observe a classroom consisting of a teacher and pupils of another 

race to promote acquaintance and understanding. 

The School Board and superintendent will exercise their best efforts, 

individually and collectively, to explain this program to school 

patrons and other citizens of Charles City County and to solieit. 

their support of it. 

 



21a 

Opinion of the United States Court of Appeals 

For the Fourth Circuit 

and one Negro teacher had been assigned to a formerly all 

white school. 

The appellants’ complaint is that the plan is insufficiently 

specific in the absence of an immediate requirement of sub- 

stantial interracial assignment of all teachers. 

On this record, we are unable to say what impact such 

an order might have upon the school ssyfem or what ad- 

ministrative difficulties might be encountered in complying 

with it. Elimination of discrimination in the employment 

and assignment of teachers and administrative employees 

can be no longer deferred,” but mvoluntary reassignment 

of teachers to achieve racial blending of facullies in each 

school is not a present requirement on the kind of record 

before us. Clearly, the Distriet Court’s retention of juris- 

diction was for the purpose of swift judicial appraisal of 

the practical consequences of the School Board's plan and 

of the objective criteria by whieh its performance of its 

declared purposes could be measured. 

An appeal having been taken, we lack the more current 

information which the District Court, upon application to 

it, could have commanded. Without such information, an 

order of remand, the inevitable result of this appeal, must 
be less explicit than the District Court’s order, with the 

benefit of such information, might have been. 

While the Distriet Court’s approval of the plan with its 

retention of jurisdiction may have been quite acceptable 

when entered, we think any subsequent order, in light of the 
appellants’ complaints should incorporate some minimal, 
objective time table. 

5 Bradley v. School Bd. of Edue. of City of Richmond, 382 U.S. 103; 
Wheeler v. Durham City Bd. of Edue., 4 Cir., 363 F.2d 738. 

   



  

22a 

Concurring Opinion of Judges Sobeloff and Winter 

Quite recently, a panel of the Fifth Circuit Court of Ap- 

peals® has required some progress in faculty integration for 

the school year 1967-68. By that decree, school boards are 

required to take affirmative steps to accomplish substantial 

desegregation of faculties in as many of the schools as pos- 

sible for the 1967-68 school year and, wherever possible, to 

assign more than one member of the minority race to each 

desegregated faculty. As much should be required here. 

Indeed, since there was an earlier start in this case, the 

District Court, with the benefit of current information, 

should find it appropriate to fashion an order which is 

much more specific and more comprehensive. What is done 

on remand, however, must be done upon a supplemented 

record after an appraisal of the practical, administrative 

and other problems, if any, remaining to be solved and 

overcome. 

Remanded. 

  

Soperorr, Circuit Judge, with whom WinTER, Circuit 

Judge, joins, concurring specially. 

Willingly, I join in the remand of the cases® to the Dis- 

trict Court, for I concur in what this court orders. I dis- 

agree, however, with the limited scope of the remand, for 1 

think that the District Court should be directed not only to 

incorporate an objective timetable in the School Boards’ 

plans for faculty desegregation, but also to set up proce- 

  

6 United States v. Jefferson County Bd. of Eduec., fn. 3, supra. 

* This special concurrence is ‘directed not only to Bowman v. County 

School Bd. of Charles City County, but also Green v. County School Bd. 

of New Kent County, ...... Fd .... , decided this day. 

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23a 

Concurring Opinion of Judges Sobeloff and Winter 

dures for periodically evaluating the effectiveness of the 

Boards’ “freedom of choice” plans in the elimination of 

other features of a segregated school system. 

With all respect, I think that the opinion of the court is 

regrettably deficient in failing to speel out specific diree- 

tions for the guidance of the District Court. The danger 

from an unspecific remand is that it may result in another 

round of unsatisfactory plans that will require yet another 

appeal and involve further loss of time. The bland discus- 

sion in the majority opinion must necessarily be pitched 

differently if the facts are squarely faced. As it is, the 

opinion omits almost entirely a factual recital. For an 

understanding of the stark inadequacy of the plans promul- 

cated by the school authorities, it is necessary to ex lore 
ae v bl IY 

the facts of the two cases. 

New Kent County. Approximately 1,290 children attend 

the public schools of New Kent County. The system oper- 

ated by the School Board consists of only two schools—the 

New Kent School, attended hy all of the county’s white 

pupils, and the Watkins School, attended by all of the 

county’s Negro pupils. 

There is no residential segregation and both races are 

diffused generally throughout the county. Yet eleven buses 

traverse the entire county to pick up the Negro students and 

carry them to the Watkins School, located in the western 

half of the county, and ten other buses traverse the entire 

county to pick up the white students for the New Kent 

School, located in the eastern half of the county. One ad- 

ditional bus takes the county’s 18 Indian children to the 

“Indian” school, located in an adjoining county. ach of 

the county’s two schools has 26 teachers and they offer 

identical programs of instruction. 

  

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24a 

Concurring Opinion of Judges Sobeloff and Winter 

Repated petitions from Negro parents, requesting the 

adoption of a plan to eliminate racial discrimination, were 

totally ignored. Not until some months after the present 

action had been instituted on March 15, 1965, did the 

School Board adopt its “freedom of choice” plan.! 

The above data relate to the 1964-1965 school year.’ 

Since the Board’s “freedom of choice” plan has now been in 

offect for two years as to grades 1, 2, 8, 9, 10, 11 and 12 

and one year as to all other grades, clearly this court’s re- 

mand should embrace an order requiring an evaluation of 

the success of the plan’s operation over that time span, not 

only as to faculty but as to pupil integration as well. While 

the court does not order an inquiry in the District Court as 

to pupil integration, it of course does not forbid it. Since 

the District Judge retained the case on the docket, the 

matter will be open on remand to a thorough appraisal. 

Charles City County. Approximately 1,800 children at- 

tend public schools in Charles City County. As in New Kent 

County, Negroes and whites live in the same neighborhoods 

and, similarly, segregated buses (Negro, Indian and white) 

traverse many of the same routes to pick up their respective 

  

1 As this circuit has elsewhere said, “Queh a last minute change of 

heart is suspect, to say the least.” Cypress v. The Newport News General 

& Nonsectarian Hospital Ass'n, ...... 24... § fonnes (4th Cir. Mar. 9, 1967). 

See also Lankford v. Gelston, 3064 F.2d 197, 203 (4th Cir. 1966). of 

course, in the present case, the District Court has noted that the plan 

was adopted in order to comply with Title VI of the Civil Rights Act 

of 1064, 42 U.S.C. § 2000.d-1 (1964), and thus ensure the flow of federal 

funds. 

2 These data are culled from answers to plaintiffs’ interrogatories. 

Neither side has furnished us or the District Court with more recent 

data. In oral argument, the defendant replied obscurely and unspecifically 

to inquiries from the bench as to what progress the county had made. 

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25a 

Concurring Opinion of Judges Sobeloff and Winter 

charges.® The Board operates four schools in all—Ruth- 

ville, a combined elementary and high school exclusively 

for Negroes ; Barnetts, a Negro elementary school; Charles 

City, a combined elementary and high school for whites; 

and Samaria, a combined elementary and high school for 

Indian children. Thus, as plaintiffs point out, the Board, 

well into the second decade after the 1954 Brown decision, 

still maintains “what is in effect three distinet school sys- 

tems—each organized along racial lines— with hardly 

enough pupils for one system!” * The Distriet Court found 

that “the Negro elementary schools serve geographical 

areas. The other schools serve the entire county.” ® This 

contrasting treatment of the races plainly exposes the pre- 

vailing discrimination. or the 1964-65. school year, only 

oicht Negro children were assigned to erades 4, 6, 7, 8, 9, 

10 and 11 at the all-white Charles City School—an instance 

of the feeblest and most inconsequential tokenism. 

Again, as in New Kent County, Negro parents on several 

occasions fruitlessly petitioned the School Board to adopt a 

desegregation plan. This suit was instituted on March 15, 

3 The Kighth Cirenit has reeently held that the operation of two school 

buses, one for Negro children and one for white, along the same route, 

is impermissible. “While we have no authority to strike down transpor- 

tation systems because they are cosily and inefficient, we must strike 

them down if their operation serves to discourage the desegregation of 

the school systems.” Kelley v. Arkansas ublie School Distriet, 35 U.S.L. 

WEEK 2619 (8th Cir. Apr. 12, 1967). 

4 The Board seems to go to an extreme of inefficiency and expense in 

order to maintain the segregated character of its schools, indulging in the 

luxury of three separate high school departments to serve a total of 

approximately 600 pupils, 437 of whom are in one school, and three 

separate and overlapping bus services. 

Bin F.Supp. -.... 3 Srbies (1966). 

 



  

26a 

Concurring Opimion of Judges Sobeloff and Winter 

1965 and the Board adopted the plan presently under con- 

sideration on August 6, 1965. Not until June 1966 did the 

Board assign a single Negro teacher to the all-white faculty 

at Charles City School. Apart from this faint gesture, how- 

ever, the faculties of the Negro and white schools remain 

totally segregated.® 
The majority opinion implies that this court has gone as 

far as the Fifth Circuit and that the “freedom of choice” 

plan which that circuit has directed its district courts to 

prescribe “embodies standards no more exacting than those 

we have imposed and sanctioned.” If this court is willing to 

go as far as the Fifth Circuit has gone, I welcome the re- 

solve.” It may be profitable, therefore, to examine closely 

what the Court of Appeals of that jurisdiction has recently 

said and done.! We ‘may then see how much further our 

court needs to go to bring itself abreast of the Fifth Circuit. 

6 Three of the Board's eight teachers in the 175 pupil “Indian” school 

are white, the other five are Indian. 

The Board asserts that it is “earnestly” seeking white teachers for the 

nine existing vacancies in the Negro schools, but so far its efforts have 

not met with success. This is not surprising, considering that the Board 

has formally declared that it “does not propose to advertise vacancies in 

papers as this would likely cause people of both races to apply who 

are not qualified to teach.” 

TA recent article in the Virginia Law Review declares the Fifth Cir- 

cuit to be “at once the most prolific and the most progressive court in 

the nation on the subject of school desegregation.” Dunn, Title VI, the 

Guidelines and School Desegregation in the South, 53 VA. L. REV. 42, 

73 (1967). 

8 United States v. Jefferson County Bd. of Edue., ...... rad... (6th 

Cir. 1966), aff’d on rehearing en banc, ...... F243... (5th Cir., Mar. 29, 

1967). 

  

  
 



  

  

27a 

Concurring Opinion of Judges Sobeloff and Winter 

1. Pupils 

Under the plans of both Charles City County and New 

Kent County, only children entering grades one or eight are 

required to express a choice. Freedom of choice is permitted 

children in all other grades, and “any pupil in grades other 

than grades 1 and 8 for whom a choice of school is not ob- 

tained well be assigned to the school he is now attending.” 

In sharp contrast, the Fifth Circuit has expressly abol- 

ished “permissive” freedom of choice and ordered manda- 

tory annual free choice for all grades, and “any student who 

has not exercised his choice of school within a week after 

school opens shall be assigned lo the school nearest his 
w Ww home J7® This is all that plaintiffs have been vainly 

seeking in New Kent County—that students be assigned to 

the schools nearest their homes, 

If, in our cases, those who failed to exercise a choice were 

to be assigned to the schools nearest their homes, as the 

[“ifth Circuit plan provides, instead of to the schools they 

previously attended, as directed in the plans before us, 

there would be a measure of progress in overcoming dis- 

crimination. As it is, the plans manifestly perpetuate 

discrimination. In view of the situation found in New Kent 

County, where there is no residential segregation, the elim- 

ination of the dual school system and the establishment of a 

“unitary, non-racial system” could be readily achieved with 

a minimum of administrative difficulty by means of geo- 

graphic zoning—simply by assigning students living in the 

eastern half of the county to the New Kent School and those 

living in the western half of the county to the Watkins 

9 United States v. Jefferson County Bd. of Edue., ERS |b Nad 3 rie 
(6th Cir., Mar. 29, 1967) (en bane). (Emphasis supplied.) 

   



  

28a 

Concurring Opinion of Judges Sobeloff and Winter 

School. Although a geographical formula is not universally 

appropriate, it is evident that here the Board, by separately 

busing Negro children across the entire county to the “Ne- 

gro” school, and the white children to the “white’ school, 

is deliberately maintaining a segregated system which 

would vanish with non-racial geographic zoning. The con- 

ditions in this county present a classical case for this ex- 

pedient. 

In Charles City County, Negro elementary school chil- 

dren are geographically zoned, while white elementary 

school children are not, despite the conceded fact that the 

children of both races live in all sections of the county. 

Surely this curious arrangement is continued to prop up 

and preserve the dual school system proscribed by the 

Constitution and interdicted by the Fifth Circuit . .. 

“The Court holds that boards and officials administer- 

ing public schools in this circuit have the affirmative 

duty under the Fourteenth Amendment to bring about 

an integrated, unitary school system in which there are 

no Negro schools and no white schools—just schools. 

# * * Tp fulfilling this duty it is not enough for 

school authorities to offer Negro children the oppor- 

tunity to attend formerly all-white schools. The neces- 

sity of overcoming the effects of the dual school system 

in this circuit requires integration of faculties, facili- 

ties, and activities, as well as students.” 10 

The Fifth Circuit stresses that the goal is “a unitary, non- 

racial system” and the question is whether a free choice 

plan will materially further the attainment of this goal. 

39 F234 at ..... (en bane). (Emphasis supplied.) 

 



29a 

Concurring Opinion of Judges Sobeloff and Winter 

Stating that courts must continually check the sufficiency of 

school boards’ progress toward the goal, the IMifth Circuit 

decree requires school authorities to report regularly to the 

district courts to enable them to evaluate compliance “by 

measuring the performance.” In fashioning its decree, that 

circuit gave great weight to the percentages referred to in 

the HEW Guidelines, declaring that they establish “mini- 

mum” standards 

“for measuring the effectiveness of freedom of choice 

as a useful tool. * * * If the plan is ineffective, longer 

on promises than performance, the school officials 

charged with initiating and administering a unitary 

system have not met the constitutional requirements 

of the Fourteenth Amendment; they should try other 

fools.” 

Er trong policy congiderations support our holding that the stan- - 

dards of court-supervised desegregation should not be lower than 

the standards of I11I9W-supervised desegregation. The Guidelines, of 
course, eannot bind the courts; we are not abdicaling any judicial 

responsibilities. [Footnote omitted.] But we hold that IIEW’s stan- 
dards are substantially the same as this Court’s standards. They are 

required by the Constitution and, as we construe them, are within 
the scope of the Civil Rights Act of 1964. In evaluating desegrega- 

tion plans, district courts should make few exceptions to the Guide- 
lines and should carefully tailor those so as not to defeat the policies 

of HEW or the holding of this Court.” 

United States v. Jefferson County Bd. of Edue., ..... F.2d ..... UR (Hth 

Cir., Dec. 29, 1966), adopted en bane, ...... ¥ad.. (5th Cir., Mar. 29, 

1967). Cf. Cypress v. Newport News Gen. Hosp. ...... Fad... yrs n.15 
(4th Cir., Mar. 9, 1967). 

12 vies Fad... . (Emphasis supplied.) The HEW Guidelines provide: 
(1) if 8 or 9 percent of the Negro students in a school district transferred 

from segregated schools during the first year of the plan, the total trans- 

fers the following year must be on the order of at least twice that 

percentage; (2) if only 4 or 5 percent transferred, a “substantial” in- 

crease in the transfers will be expected the following year—bringing the 

  

i 

 



  

30a 

Concurring Opinion of Judges Sobeloff and Winter 

«Freedom of choice” is not a sacred talisman; it is only 

a means to a constitutionally required end—the abolition of 

the system of segregation and its effects.®* If the means 

prove effective, it is acceptable, but if it fails to undo seg- 

regation, other means must be used to achieve this end. The 

school officials have the continuing duty to take whatever 

action may be necessary to create a “unitary, non-racial 

system.” : 

While I would prefer it if this court were more explicit 

in establishing requirements for periodic reporting by the 

school officials, I assume that the District Court will do 

this, rather than place the burden upon the plaintiffs to 

collect the esential data to show whether the free choice 

  

total to at least triple the percentage of the previous year; (3) if less 

than 4 percent transferred the previous year, then the rate of increase 

in total transfers for the following year must be proportionately greater 

than that under (2); and (4) if no students transferred under a free 

choice plan, then unless a very “substantial start” is made in the following 

year, the school authorities will “be required to adopt a different type of 

plan.” HEW Reg. A, 45 C.F.R. § 181.54 (Supp. 1966). 

In both New Kent County and Charles City County, at least some 

grades have operated under a “freedom of choice” plan for two years. 

In Charles City County, only 0.6% of the Negro students transferred to 

the white school for the 1964-65 session. Under the standards subscribed 

to by the Fifth Cireuit, therefore, a minimum of 69% of the Negro pupils 

in that county should have transferred to the “white” school the following 

year. Less than this percentage would indicate that the free choice plan 

was “ineffective, longer on promises than performance,” and that the 

school officials “should try other tools”’—e.g., geographic zoning or pairing 

of grades. 

In New Kent County, no Negro students transferred during the first 

year of the plan. Thus, unless the requisite “substantial start” was made 

the following year, school officials must adopt a different plan—one that 

will work. 

13 Judge Wisdom, in Singleton v. Jackson Munie. Separate School Dist. 

355 F.2d 865, 871 (5th Cir. 1966), referred to “freedom of choice” plans 

as a “haphazard basis” for the administration of schools. 

 



Jla 

Concurring Opinion of Judges Sobeloff and Winter 

plan is materially furthering the achievement of ‘““a unitary, 

non-racial system.” * 

A significant aspect of the Fifth Circuit’s recent decree 

that, by implication, this court has adopted, deserves ex- 

plicit recognition. The Jefferson County decree orders 

school officials, “without delay,” to take appropriate mea- 

sures for the protection of Negro students who exercise a 

choice from “harassment, intimidation, threats, hostile 

words or acts, and similar behavior.” Counsel for the 

school boards assured us in oral argument that relations 

between the races are good in these counties, and that no 

incidents would occur. Nevertheless, the fear of incidents 

may well intimidate Negroes who might otherwise elect t 

attend a “white” school.’ To minimize this fear school 

14 See Section IX of the decree issued in United States v. Jefferson 

County Bd. of Educ, ..... F244 wy os (5th Cir. Mav. 29, 1967) (en 
bane) providing for detailed reports to the district courts. 

15 Various factors, sonie subtle and some not so subtle, operate effice- 

tively to maintain the status quo and keep Negro children in “their” 

schools. Some of these factors are listed in the recent report issued by 

the U.S. Commission on Civil Rights: 

“Freedom of choice plans accepted by the Office of Fdueation have 
not disestablished the dual and racially segregated school systems 

involved, for the following reasons: a. Negro and white schools have 

tended to retain their rectal identity; hb. White students rarely elect 

to attend Negro schools; e. Some Negro students ave reluctant to sever 

normal school ties, made stronuor by the racial tdentifia ation of their 

schools; d. Many Negro children and parents in Southern States, 

having lived for decades in positions of subservience, are reluctant 

to assert their rights; e. Negro children and parents in Southern 

States frequently will not choose a formerly all-white school hee cause 

they fear retaliation and hostility from the white community; f. In 

some school districts in the South, school officials have failed to pre- 

vent or punish harassment by white children who have elected to 

attend white schools; g. In some areas in the South where Negroes 

have elected to attend formerly all-white schools, the Negro com- 

   



  

32a 

Concurring Opinion of Judges Sobeloff and Winter 

officials must demonstrate unequivocally that protection will 

be provided. It is the duty of the school boards actively to 

oversee the process, to publicize its policy in all segments 

of the population and to enlist the cooperation of police 

and other community agencies.’ 

The plaintiffs vigorously assert that the adoption of the 

Board’s free choice plan in Charles City County, without 

further action toward equalization of facilities, will not cure 

present gross inequities characterizing the dual school sys- 

tem. A glaring example is the assignment of 135 commer- 

cial students to one teacher in the Negro school in contrast 

to the assignment of 45 commercial students per teacher in 

the white school and 36 in the Indian school. In the Jeffer- 

son County decree, the Fifth Circuit directs its attention 

to such matters and explicitly orders school officials to take 

“prompt steps” to correct such inequalities. School authori- 

ties, who hold responsibility for administration, are not 

allowed to sit back complacently and expect unorganized 

pupils or parents to offect a cure for these shockingly dis- 

criminatory conditions. The decree provides: 

«Conditions of overcrowding, as determined by pupil- 

teacher ratios and pupil-clagsroom ratios shall, to the 

  

et ———————————— 

munity has been subjected to retaliatory violence, evictions, loss of 

jobs, and other forms of intimidation.” 

U.S. COMMN ON CIVIL RIGHTS, SURVEY OF SCHOOL DESEG- 

REGATION IN THE SOUTHERN AND BORDER STATES—1965-66, 

at 51 (1966). In addition to the above enumeration, a report of the Office 

of Education has pointed out that Negro children in the high school 

grades refrain from choosing to transfer because of reluctance to assume 

additional risks close to graduation. Coleman & Campbell, Equality of 

Educational Opportunity (U.S. Office of Education, 1966). See also 

Hearings Before the Special Subcommitiee on Civil Rights of the House 

Committee on the Judiciary, 80th Cong., 2d Sess., ser. 23 (1966). 

16 HEW Reg. A, 45 C.F.R. §18117(c) (Supp. 1966). 

 



33a 

Concurring Opinion of Judges Sobeloff and Winter 

extent feasible, be distributed evenly between schools 

formerly maintained for Negro students and those 

formerly maintained for white students. If for any 

reason it is mot feasible to improve sufliciently any 

school formerly maintained for Negro students, * * * 

such school shall be closed as soon as possible, and 

students enrolled in the school shall be reassigned on 

the basis of freedom of choice.” !’ 

11. Faculty 

Defendants unabashedly argue that they cannot be com- 

pelled to take any affirmative action in reassigning teachers, 

despite the fact that teachers are hired to teach in the 

system, not in a particular school. They assert ategorically 

that “they are not required under the Constitution to de- 

seerecate the faculty.” This is in the teeth of Bradley v. 

School Bd. of Richmond, 382 U.S. 103 (1965). 

Having made this declaration, they say that they have 

nevertheless submitted a plan whieh does provide for fae- 

ulty desegregation, hut eireumspeetly they add that “it will 

require time and patience.” They protest that they have 

done all that could possibly be demanded of them by pro- 

viding a plan which would permit “a constructive begin- 

ning.” This argument lacks appeal an eighth of a century 

after Brown.'* Children too young for the first grade at 

pe F.2d at ..... (en bane). (Emphasis supplied.) 

18 “The rule has become: the later the start the shorter the time allowed 

for transition.” Lockett v. Bd. of Edue. of Muscogee County, 342 I.2d 

225, 228 (5th Cir. 1965). See Rogers v. Paul, 382 U.S. 198, 199 (1965); 

Bradley v. School Bd. of Richmond, 382 U.S. 103 (1965) ; Griffin v. County 

School Bd., 377 U.S. 218, 229 (1964); Watson v. City of Memphis, 373 

U.S. 526, 530 (1963). 

   



  

34a 

Concurring Opinion of Judges Sobeloff and Winter 

the time of that decision are beyond high school age by 

now. Yet their entire school experience, like that of their 

elder brothers and sisters, parents and grandparents, has 

been one of total segregation. They have attended only a 

“Negro” school with an all Negro staff and an all Negro 

student body. If their studies encompassed Brown v. Bd. 

of Educ. they must surely have concluded sadly that “the 

law of the land” is singularly ineffective as to them. 

The plans of both counties grandly profess that the pat- 

tern of staff assignment “will not be such that only white 

teachers are sought for predominantly white schools and 

only Negro teachers are sought for predominantly Negro 

schools.” No specific steps are set out, however, by which 

the boards mean to integrate faculties. It cannot escape 

notice that the plans provide only for assignments of “new 

personnel in a manner that will work towards the desegre- 

gation of faculties.” As for teachers presently employed by 

the systems, they will be “allowed” (in Charles City County, 

the plan reads “allowed and encouraged”) to accept trans- 

fers to schools in which the majority of the faculty members 

are of the opposite race. We are told that heretofore an 

average of only 2.6 new white teachers have been employed 

annually in New Kent County. Thus the plan would lead to 

desegregation only by slow attrition. There is no excuse 

for thus protracting the corrective process. School authori- 

ties may not abdicate their plain duty in this fashion. The 

plans filed in these cases leave it to the teachers, rather than 

the Board, to “disestablish dual, racially segregated school 

systems” and to establish “a unitary, non-racial system.” 

This the law does not permit. 

 



Concurring Opinion of Judges Sobelof] and Winder 

As the Fifth Circuit has put it, “school authorities have 

an affirmative duty to break up the historical pattern of 

segregated faculties, the hallmark of the dual system.” 

“[Ulntil school authorities recognize and carry out 

their affirmative duty to integrate faculties as well as 

facilities, there is not the slightest possibility of their 

ever establishing an operative non-diseriminatory 

school system.” 2° 

In contrast to the frail and irresolute plans submitted by 

the appellees, the IMifth Cireuit has ordered school officials 
within its jurisdiction not only to make initial assienments 

on a mnon-discriminatory basis, but also to reassign staff 

members “to eliminate past diseriminatory patterns.” 

For this reason, I wholcheartedly endorse the majority’s 
remand for the inclusion of an objective timetable to facili- 

tate evaluation of the progress of school authorities in de- 
segregating their faculties. I also join the majority in 
calling upon the Distriet Court to fashion a specific and 
comprehensive order requiring the boards to take firm steps 
to achieve substantial desegregation of the faculties. At 
this late date a desegregation plan containing only an in- 
definite pious statement of future good intentions does not 
merit judicial approval. 

er Fld at... 

20 United States v. Jefferson County Bd. of BEdue,, ...... F.2d 
(6th Cir. 1966), adopted en bane, ....... F.2d ...... (Hth Cir. Mar. 29, 1967). 
This thought has been similarly expressed in Bradley v. School Bd. of 
City of Richmond, 345 F.2d 310, 323 (4th Cir. 1965) (concurring opinion) : 

“It is now 1965 and high time for the court to insist that good faith 
compliance requires administrators of sehools to proceed actively with 
their nontransferable duty to undo the segregation which both by 
action and inaction has been persistently perpetuated.” (Emphasis 
in the original.) 

   



  

36a 

Concurring Opinion of Judges Sobeloff and Winter 

I must disagree with the prevailing opinion, however, 

where it states that the record is insufficiently developed to 

order the school systems to take further steps at this stage. 

No legally acceptable justification appears, or is even 

faintly intimated, for not immediately integrating the 

faculties. The court underestimates the clarity and force 

of the facts in the present record, particularly with respect 

to New Kent County, where there are only two schools, 

with identical programs of instruction, and each with a 

staff of 26 teachers. The situation presented in the records 

before us is so patently wrong that it cries out for im- 

mediate remedial action, not an inquest to discover what 

is obvious and undisputed. 

It is time for this circuit to speak plainly to its district 

courts and tell them to require the school boards to get on 

with their task—no longer avoidable or deferrable—to inte- 

grate their faculties. In Kier v. County School Bd. of Au- 

gusta County, 249 F. Supp. 939, 247 (W.D. Va. 1966), 

Judge Michie, in ordering complete desegregation by the 

following years of the staffs of the schools in question, re- 

quired that “the percentage of Negro teachers in each school 

in the system should approximate the percentage of the 

Negro teachers in the entire system” for the previous year. 

See Dowell v. School Bd., 244 F. Supp. 971, 977-78 (W.D. 

Okla. 1965), aff’d, 35 U.S.L. WEEK 2484 (10th Cir., Jan. 

93, 1967), cert. demed, 35 U.S.L. Week 3418 (U.S. May 

929, 1967). While this may not be the precise formula ap- 

propriate for the present cases, it does indicate the attitude 

that district courts may be expected to take if this court 

speaks with clarity and firmness. 

 



ala 

Concurring Opinion of Judges Sobeloff and Winter 

III. The Briggs v. Elliott Dictum 

The defendants persist in their view that it is constitu- 

tionally permissible for parents to make a choice and assign 

their children ; that courts have no role to play where segie- 

cation is not actively enforced. They say that Brown only 

proscribes enforced segregation, and does not commantl 

action to undo existing consequences of carlier enforced 

segregation, repeating the facile formula of Briggs v. 

Elliott?! 

The court’s opinion recognizes that “it is the duty of the 

school boards to eliminate the diserimination which inheres” 

in a system of segregated schools where the “initial assign- 

ments are both involuntary and dictated by racial eriteria,” 

but seems to think the system under consideration today “a 

very different thing.” 1 fail to perceive any basis for a dis- 

tinction. Certainly the {wo counties with which we are 

here concerned, like the rest of Virginia, historically had 

de jure segregation of public education, so that by the 

court’s own definition, the boards are under a duty “to 

eliminate the discrimination which inheres” in such a sys- 

tem. Whether or not the schools now permit “freedom of 

choice,” the segregated conditions initially created by law 

are still perpetuated by relying primarily on Negro pupils 

“to extricate themselves from the segregation which has 

long been firmly established and resolutely maintained 

# x22 «IM lhose who operate the schools formerly segre- 

21 “Nothing in the Constitution or in the decision of the Supreme Court 
takes away from the people freedom to choose the schools they attend. 

The Constitution, in other words, does not require integration. It 
merely forbids diserimination.” 132 F. Sapp. 776, 777 (1E.D.S.C. 
1955). 

22 Bradley v. School Bd. of City of Richmond, 345 F.2d 310, 322 (4th 
Cir. 1965) (concurring opinion). 

   



  

38a 

Concurring Opinion of Judges Sobeloff and Winter 

gated by law, and not those who attend, are responsible for 

school desegregation.” ** 

It is worth recalling the circumstances that gave birth 

to the Briggs v. Elliott dictum—it is no more that dictum. 

A three-judge district court over which Judge Parker 

presided had denied relief to South Carolina Negro pupils 

and when this decision came before the Supreme Court as 

part of the group of cases reviewed in Brown V. Bd. of 

Educ., the Court overruled the three-judge court and issued 

its mandate to admit the complaining pupils to public 

schools “on a racially non-diseriminatory basis with all 

deliberate speed.” Reassembling the three-judge panel, 

Judge Parker understook to put his gloss upon the Su- 

preme Court’s decision and coined the famous saying.?! 

This catchy apothegm immediately became the refuge of 

defenders of the segregation system, and it has been quoted 

ancritically to eviscerate the Supreme Court’s mandate.?® 

  

23 Dunn, Title VI, the Guidelines and School Desegregation in the 

South, 53 VA. L. REV. 42, 45 (1967). 

See Dowell v. School Bd., 244 F. Supp. 971, 975, 981 (W.D. Okla. 1965), 

aff’d, 35 U.S.L. WEEK 2484 (10th Cir. Jan. 23, 1967), cert. denied, 35 

U.SL. WEEK 3418 (U.S. May 29, 1967) : 

“The Board maintains that it has no affirmative duty to adopt policies 

that would increase the percentage of pupils who are obtaining a 

desegregated education. But a school system does not remain statie, 

and the failure to adopt an affirmative policy 1s itself a policy, ad- 

herence to which, at least in this case, has slowed up—in some cases— 

reversed the desegregation process. 

* LJ * 

The duty to disestablish segregation 1s clear in situations such as 

Oklahoma City, where such school segregation policies were in force 

and their effects have not been corrected.” (Emphasis supplied.) 

24 See n.21, supra. 

25 Judge Wisdom, in the eourse of a penetrating criticism of the Briggs 

decision, says: 

—
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—
 
—
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o
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39a 

Concurring Opinion of Judges Sobeloff and Winter 

Having a deep respect for Judge Parker’s capacity to 

discern the lessons of experience and his high fidelity to 

duty and judicial discipline, it 1s unnecessary for me to 

speculate how long he would have adhered to his view, or 

when he would have abandoned the dictum as unworkable 

and inherently contradictory.* In any event, the dictum 

cannot withstand the authority of the Supreme Court ov 

survive its exposition of the spirit of the Brown holding, as 

olaborated in Bradley v. School Bd., 382 U.S. 103 (1969) ; 

Goss v. Bd. of Educ., 373 U.S. 683 (1963); Cooper v. 

Aaron, 358 U.S. 1 (1958). 

“Briggs overlooks the fact that Negroes collectively are harmed when 

the state, by law or eustom, operates segregated schools or a school 

system with uncorrected effects of segregation. 

% 4 

Adequate redress therefore enlls for much more than allowing a few 

Neero children to attend formerly white schools; it calls for liquida- 

tion of the state's system of de jure school segregation and the 

organized undoing of the effects of past segregation. 

» ® " 

The central vice in a formerly de jure segregated publie school system 

is apartheid by dual zoning “ *.*. Dual zoning persists in the eontinu- 

ing operation of Negro schools identified as Negro, historically and 

because the faculty and students are Negroes. Acceptance of an in- 

dividual’s application for transfer, therefore, may satisfy that par- 

ticular individual; it will not satisfy the class. The class is all Negro 

children in a school distriet attending, by definition, inherently un- 

equal schools and wearing the badge of slavery separation displays. 

Relief to the class requires school boards to desegregate the school 

from which a transferee cones as well as the school to which he goes. 

. #* # * [The overriding right of Negroes as a class [is] to a com- 

pletely integrated public education.” 

eusse F.2d at ...., —...... (Emphasis supplied.) 

26 Shortly after pronouncing his dictum, in another school ease Judge 

Parker nevertheless recognized that children eannot enrol] themselves and 

that the duty of enrolling them and operating schools in accordance with 

law rests upon the officials and eannot be shifted to the pupils or their 

parents. Carson v. Warlick, 238 F.2d 724, 728 (1956). 

   



  

“ 
40a 

Concurring Opinion of Judges Sobeloff and Winter 

Anything that some courts may have said in discussing 

the obligation of school officials to overcome the effects of 

de facto residential segregation, caused by private acts and 

not imposed by law, is certainly not applicable here. Ours 

is the only circuit dealing with school segregation re- 

sulting from past legal compulsion that still adheres to the 

Briggs dictum. 

“The Fourth is apparently the only circuit of the 

three that continues to cling to the doctrine of Briggs 

v. Elliott and embraces freedom of choice as a final 

answer to school desegregation in the absence of intimi- 

dation and harrassment.” 7 

We should move out from under the incubus of the Briggs 

v. Elliott dictum and take our stand beside the Fifth and 
the Kighth Circuits. 

27 Dunn, Title VI, the Guidelines and School Desegregation in the South, 

53 VA. L. REV. 42, 72 (1967). See United States v. Jefferson County 

Bd. of Edue,, ...... 24... (5th Cir., Mar. 29, 1967) (en bane); Single- 

ton v. Jackson Munic. Separate School Dist., 348 F.2d 729, 730 n.5 (5th 

Cir. 1965) (“[T]he sccond Brown opinion clearly imposes on public 

school authorities the duty to provide an integrated school system. Judge 

Parker’s well known dictum * * * in Briggs v. Elliott * * * should be 

laid to rest. It is inconsistent with Brown and the later development of 

decisional and statutory law in the area of civil rights”); Kemp v. 

Beasley, 352 F.2d 14, 21 (8th Cir. 1965) (“The dictum in Briggs has 

not been followed or adopted by this Circuit and it is logically inconsistent 

with Brown and subsequent decisional law on this subject.”) 

Cf. Evans v. Ennis, 281 F.2d 385, 389 (3d Cir. 1960), cert. denied, 364 

U.S. 933 (1961): “The Supreme Court has unqualifiedly declared inte- 

gration to be their constitutional right.” (Emphasis supplied.) 

  

 



  

  

41a 

Judgment of United States Court of Appeals 

For the Fourth Circuit 

  

No. 10,792 
  

Charles C. Green, Carroll A. Green and Robert C. Green, 

infants, by Calvin C. Green and Mary O. Green, 

their father and mother and next friends, 

and all others of the plaintiffs, 

Appellants, 

VErsSuUs 

County School Board of New Kent County, Virginia, et al., 

Appellees. 

  

AprriAL FROM THE UNITED STATES District Courr 
1 - T 

FOr THE IUASTERN DistrIicT oF VIRGINIA 

  

This cause came on to be heard on the record from the 

United States District Court for the Eastern Distriet of 

Virginia, and was argued by counsel. 

On consideration whereof, it 1s now here ordered, ad- 

judged and decreed by this Court that this cause be, and 

the same is hereby, remanded to the United States District 

Court for the Eastern District of Virginia, at Richmond, 

for further proceedings consistent with the opinion of the 

Court filed herein; and that each side bear its own costs 

on appeal. 

Crempnt EF. HavNswortH, JR. 

Chief Judge, Fourth Circuit 

Filed: June 12, 1967 

Maurice S. Dean, Clerk