Petition for a Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    IN rae 

Supreme Court of the united Siutes 

October Term, 1967 

  

Cmarues C. Grew, et al, 

Petitioners, 

—YV — 

County Scmoor Boarp or New: Kent CouNTy, 

VIRGINIA, et al., | 

Respondents. 

  
  

PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

  
  

Jack GREENBERG : 

James M. Nasrir, III 

FraxgLix KE. WHITE . - 

10 Columbus Circle 

New York, New York 10019 

S. W. Tucker 

Hexry L. Marsa, III 

214 East Clay Street 

Richmond, Virginia 

Attorneys for Petitioners 

  
  

 



  

  

  

INDEX 

Citations to Opinions Below 

Jurisdiction 

II. The Plan Adopted by the Board 

III. The District Court’s Decision 

Reasons For GRANTING THE Writ: 

LiIntreduetlon .......... 0 oe i Re 

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 .._.._._. ii 

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 

CoRONTSION. 0... or ed iy 

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APPENDIX: Hy PAGE 

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

B. Order ob May 17,1088. 3a 

C. Memorandum Opinion of June 28, 1966 ............ 4a 

D.Orderof June 28,1988 ........ 2... io ov 13a 

E Opinions of June 12,1961... ~~ ds 14a 

PP, Judgment dated June 12,1961... 41a 

TABLE OF CASES 

Anderson 8. Martin, 378 UB. 309 ..eeesore ire iresan snes 15,16 

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

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

Board of Education of Oklahoma City Public Schools 

v. Dowell, 372 F.2d 158 (10th Cir, 1987) ........ccooierens 22 

Borders v. Rippy, 247 F.2d 268, 271 (5th Cir., 1957) .... 21 

Boson v. Rippy, 285 F.2d 43, 48 (5th Cir., 1960) .......... 21 

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

EE LR I ae 14, 20, 22, 28, 31 

Bowman v. County School Board of Charles City 

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

Braxton v. Board of Public Instruction of Duval 

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

LY OR A di 32 

Briggs v. Elliot, 132 F. Supp. 776 (E.D.S.C. 1955) ...... 21, 25 

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

20d iii east 7,12,15, 19, 21, 22, 26, 27, 30 

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

AD a A 15 

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PAGE 
Calhoun v. Latimer, ST US,.263 . v oeea 23 
Clark v. Board of Education, Little Rock School Dis- 

trict, 369 F.2d 661 (8th Cir. 1966) =... oi 28 
Uooperv. daron, 358 US. 1. 0 vo 99.31 
Coppedge v. Franklin County Board of Education, 

C.A. No. 1796, decided August 17, 1987 5 Ls 17,32 
Corbin v. County School Board of Loudon County, 

Virginia, C.A. No. 2737, August 27,1067 0 32 

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

Evans v. Ennis, 281 F.2d 385 (3rd Cir, 1960)... 21 

Gibson v. Boc vd of Public Instruction of Dade County, 
272 F.2d 733 (5th Cir. 1989) = ae 12 

Green v. County School Board of the City of Roanoke, 
304 F.2d 118 (4th Cir. 1902) nn Areal 12 

Goss v. Board of Education, 373 U.S. 683 15,16,23,31 
Griffin v. County School Board of Prince Edward 

County, 377 U.S. 218 (1964y 0 ee 20, 23, 31 

Jeffers v. Whitley, 309 F.2d 621 (4th Cir, 1982)... 21 

Kelley v. Altheimer Arkansas Public School District 
378 F.2d 483 (8th Cir. 1967) EE Ie 21, 23 

Kelley v. Board of Education of the City of Nashville, 
270 F.2d 209 (6th Cir. 1939) ....... is a a) 21 

Kemp v. Beasley, 352 F.2d 14 (Sth Cir. 1965) ........ 21,25 

Lone v. Wilson, 307 US. 288.0... = 29 
Louisiana v. United States, 330 US. 145. 29 

Manning v. Board of Public Instruction of Hiisbore 
County, 277 F.2d 370 (5th Oir., 1960) 5-0 on 12 

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1v 

PAGE 

Marsh v. County School Board of Roanoke County, 
Va, 305 F.2d 94 (4th Cir, 1062) oc 0 oe 12 

Northcross v. Board of Education of the City of 
Memphis, 302 F.2d 818 (6th Cir. 1962) 12 

Norwegian Nitrogen Products Co. v. United States, 288. 
OS. 29 EE 25 

Reitman v. Mulkey, 1ISLEd. 831 ooo 15 
Robinson v. Florida, 3718 UR, 153 i ona il 15 
Rogers v, Paul, 382 US, 198 vo oie 23, 28, 31 

Singleton v. Jackson Municipal Separate School Dis- 
trict, 348 F.0d 720 (5th Cir. 1968) i 21 

Singleton v. Jacke mn Municipal Separate School Dis- 
trie, 355 F.2d 8uB (5th Cir. 1966) .... = 13 

Skidmore v. Swift & Co., 323 U8. 134 25 

Uwnited States v. American Tr ucking Associations, Inc., 
BIOS. B84... amen an 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, petition 
for certiorari pending, Nos. 256, 282 1 BER 7,5,13, 15, 

19, 21, 23, 25, 28, 29 

Vick v. Board of Education of Obion Gonnty, 205 F. 
Supp. 436 (W.D. Tenn. 1962) 

Watson v. Memphis, 3713 U.S. 526... ~ Hei 20 

 



  

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{<= 
STATUTES PAGE > | Code of Va., 1950 (1964 Replacement Vol), §22.932.1 4 

$B OPR Port i817... oe 16, 24 
Civil Rights Act of 1064, 78 Stat. uy 0 0 3 
pUsCswnl.. nEn 8; 
PUSBQ SI aes a 3 
RUSO Sm. oo Ea 3 
el ien tes Oheele namie ele 3 

OTHER AUTHORITIES 

Campbell, Cunningham and McPhee, The Organiza- 
tion and Control of American Schools, 1965 14 

. Dunn, Title VI, The Guidelines and School Desegrega- 
tion in the South, 53 Va. L. Rev. 4201087... 25 

1 Equality of Educational Opportunity: A Report of 
thé Office of Education of the United States Depart- ment of Health, Education and Welfare... 14 

Meador, The Constitution and The Assignment of Pupils to Public Schools, 45 Va. L. Rev. 517 (1959) ... 11 
Racial Isolation in the Public Schools, Volume I- A Report of the United States Commission on Civil 
Gi RL Rh i 20 

Revised Statement of Policies for School Desegrega- | tion Plans Under Title VI of the Civil Rights Act of I SR ASE ia) a 16, 24 
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, 19656... i EA 13, 14, 18 

U.S. Bureau of the Census. U.S. Census of Population: 
1960 General Population Characteristics, Virginia. 
Final Bepori PO (1)488 =... = a. 7 ooo 4 

 



  

IN THE 

Supreme Gort nf the Wnited States 
October Term, 1967 

  

Crarres C. Green, ef al. 

Petitioners, 
—_—V 

County ScrooL Boarp or New KuxT Counry, 
Vircinia, et al., 

: Respondents. 

  

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE 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 :   

  

  

 



  

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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 
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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. 

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I. The Pleading, and Evidence Petitioners, Negro Parents apg children of New Kent 

County, Virginia, filed op March 15, 1965, in the United a class actjoy Seeking injunctive relief against the main- 

ment of Health, Education and Welfare, the New Kent 

County Schoo] Board, op August 2, 1965, adopted 4 free- 

dom of choice desegregation plan ang on May 10, 1966 

filed Copies thereof with the District Court. New Kent Is a rurg] county in Eastern Virginia, east 

of the City of Richmong. There ig NO residentjq] segre- 

1 The action wag filed Pursuant to og U.S.C. § 1331 ang § 1343 ang 

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

Pp. 8): 

Notwithstanging the holding anq admonition In Broyy v. Boarg of 

Education, 347 US. 483 (1954) and 349 Ug. 294 (1955), the de- 

fendant school hogrqg maintains ang Operates g biracia} Schoo] sys. 

tem, . , 

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[that the defendants] - pag not devoted efforts towarq initiating 

non-segregation in the Public schoo] System, [ang had fajleq to make] 

a reasonable start to effectuate 5 transition to a racially non-diserimj. 

natory schoo] System gag under Paramount lay, it [was] their duty 

to do. 

The defendants filed, on Apri] 9, 1965, Motion to Dismisg the complaint 

on the sole ground that jt failed to State a claim upon. which relief coylq 

be granteq (R. Vol. 2, p. 13). In ap order entereq on May 5 1965, the 

district court deferred ruling on the motion ang directed the defendants 

to file an answer by June 1, 1965 (R. Vol. 2, 7. 15) 

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

Judge Sobeloff at p. 23a.)3 

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. Each 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 

transpc ‘ted almost all of the 550 white pupils to New 

Kent in the eastern half. (See PX “A” and “B” 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. Highteen 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 Creek-565. 

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

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

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

“B” show the bus routes for each of the two county schools. Each 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). 

 



  

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ginia, 1950 (1964 Replacement Volume), repealed by Acts of Assembly, 1966, ec. 590, under which any pupil could request assignment to any school in the county; children making no request were assigned to the schoo] previously maintained for their race. The free choice plan the Board adopted in August, 1965 was not placed into effect unti] 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 ; 

  

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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 

7 4 - George W. 
: Watkins (Negro) 28 26 +118 (289%) 11 64.5 1-12 

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). 

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No white students attended Watkins; all 628 pupils at 

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

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

County attended school only with other Negroes.® 

Faculty: Contracts with {eachers 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 is 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 1965-66 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 

 



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Tt 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. 

111. The District Courl’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 [which would provide] for em- 

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

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

The Board fled 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 Of eight who do not exercise 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 effect 

and was therefore assigned to a school previously maintained for his race 

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 began at a school before it went into 

effect) to be reassigned for as long as up to geven years (in the case of 

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

the basis of race. 1t need hardly be said that such a plan—one which 

fails immediately to abolish continued racial assignments Or reassignments 

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 Ediication, 372 F.2d 836, 

890-891, afd with modifications on rehearing em bane, NO. 93345, 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- 

gion below on this ground would be insufficient to protect petitioners’ 

rights. As we more fully develop later what 1s 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. 
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(a) that the supplement failed to provide sufficiently for 

faculty ‘and staff desegregation, and (b) 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 circum- 

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 if. 

On June 12, 1967, the Court, en banc, 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 United 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 case 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). 

 



  

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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 
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 
County, where there is no residential segregation, the 
elimination of the dual school system and the establish- 
ment of a “unitary, non-racial system” could be readily 
achieved with a minimum of administrative difficulty 
by means of geographic goning—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 mamtaining a 

 



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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 freedom 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 is 
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. 

10347 U.S. 483 (Brown I); 349 U.S. 294 (Brown II). 

 



  

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The most marked and widespread innovation in school administration in the southern ang border states in the last fifty years hag been the change in pupil assignment “method in the years since Brown," from ga 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 sys{em, unless ga 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 implemented by drawing around each white schoo] attendance zones designed to 

  

11 See generally, Campbell, Cunningham and McPhee, The Organization and Control of American Schools, 1965. (“As a consequence of [Brown V. 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 beep han- dled rather routinely almost everywhere by marking off geographical 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, 

 



  

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 © 

Memphis, 302 F.24 818 (6th Cir, 1962) ; Gibson V. Board of Public In 

struction of Dade County, o79 F.2d 763 (5th Cir, 1959); Manning ¥ 

Board of Public Instruction of Hillsboro County, 077 F.2d 370 (5th Cir. 

1960) ; Dove V. Parham, 282 F.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 Southers 

School Desegregation, 1966-67, A Report of the U.S. Commission on Civi 

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 83% © 

such districts in Georgia have adopted free choice plans. . 

 



  

13 

Under ga 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 ang standards developed for passing on them, with provision for notice of the right to choose and for dealing with students who fail to exercise ga choice), they are, in addition, far Jess likely to disestablish the 

The great majority of districts under court order also are employing “freedom of choice.” 
See also Survey of School Desegregation in the Southern and Border 
States, 1965-1966, United States Commission on Civi] Rights, February, 
1966, at p. 47. 

16 The decree appended by the United States Court of Appeals for the Fifth Circuit, to its recent decision in Uniteg States v. Jefferson County Board of Education, 372 F.2d 83s, af’d with modification on rehearing 
en bane, Civil No. 23345, March 29, 1967, shows the complexity of such 
plans. That Court had previously described such plans as a “haphazard basis” for the administration of schools. Singleton v. Jackson Municipal 
Under such plans generally, and under the plan in this case, 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 op non-perform- ance. The Civil Rights Commission hag 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 schoo] 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 board had 

 



  4 

14 

dual system. And, as demonstrated below, experience ha: proved them largely incapable of disestablishing the dug] 
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 hav: 
been obvious, however, that white students—in view of 
general notions of Negro inferiority and the hard fac; that in far too many areas Negro schools were vast; 
inferior to those furnished whites'"—would not seek trans. 

distributed freedom of choice forms and students had filled out an: returned the forms, the hoard ignored them. 
Survey of School Desegregation in the Southern and Border States, a p- 17. Given the other shortcomings of free choice plans, there is seriou doubt whether the constitutional duty to effect a non-racial system is sat isued 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 sympathetic administre tion could prove woefully inadequate in an antagonistic environmen: 
Bradley v. School Board of the City of Richmond, 345 F.2d 310 (4th Ci: 1965) (concurring in part and dissenting in part). 

1” Watkins, the Negro school in New Kent County was more over crowded and had substantially larger class sizes and teacher-pupi] ratic than did the white school. (See p. 5, supra). 
The Negro schools in the South compare unfavorably to white schools i: other important respects. In Equality of Educational Opportunity, : report prepared by the Office of Education of the United States Depari ment of Health Education and Welfare pursuant to the Civil Rights A of 1964, the Commissioner states, concerning Negro schools in the Metre politan South (at p. 206): 

The average white attends a secondary school that, compared to ti average Negro is more likely to have a gymnasium, a foreign lar guage laboratory with sound equipment, a cafeteria, a physics labors tory, a room used only for typing instruction, an athletic field, : chemistry laboratory, a biology laboratory, at least three mov 
projectors. 

Essentially the same was said of Negro schools in the non-metropolita: South (Id. at 210-211). It is not surprising, therefore, quite apart fror race, that white students have unanimously refrained from choosing Negr 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 IT (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- criminatory racial assignment may not be cast upon the pupils and their parents [and that] it is the duty of the school boards to eliminate the discrimination which inheres in such a system [,] 

the very plan the court approved did just that. To be sure each pupil was given the unrestricted right to attend any school in the system. But, as previously noticed, desegre- gation 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.” Southein School Desegregation, 1966-67 at p. 142, United States™v. Jefferson County, supra at 889. 
13 The free choice plan adopted in this case js subject to serious question on the ground that it promotes invidious discrimination, By permitting students to choose g school, instead of assigning them on some rational non-racial basis, the school board 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 discrimination. But states may not designedly facilitate the diseriminatory conduct of individ- uals or lend support to that end. See Reitman v. Mulkey, 18 L. Ed. 831; Robinson v. Florida, 378 U.S. 153; Anderson v. Martin, 375 U.S. 399; Goss v. 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 

 



  

ed 

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 ang 
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 
choice,” chose, by their inaction, that their children should 
remain in the Negro schools. In its Revised Statement 0f 
Policies for School Desegregation Plans Under Title V] 
of the Civil Rights Act of 1964 (hereinafter referred to a: 
Revised Guidelines), the Department of Health, Educatio: 
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 authoritie: 
undertake good faith efforts to assure its fair opera. 
tion, the very nature of a free choice plan and the 
  

the voters’ succumbing to racial prejudice. So too here, giving student: 
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 ¢ 
factor in the choice process. In Anderson, the statute was not saved be 
cause some persons might vole without regard to the race of the cand: 
date. It is the furnishing of the opportunity that is prohibited by th 
Constitution. 

We do not argue that a school board may never permit students t 
choose schools. 3a certainly systems using attendance zones would no: 
run afoul of the Constitution by permitting students to transfer for goo: 
cause shown. Presumably in such instances a legitimate non-racial reaso: 
would have to be supplied. ~ 

Nor do we argue that freedom of choice may never be used where rac 
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 or 
race may be a useful way to achieve desegregation. There, however, the 
plan is being used to undo rather than perpetuate segregation as the pla: 
in this case is being used to do. Cf. Goss, supra at 688, where this Cour 
stated that “no plan or provision of which racial segregation is the in- 
evitable consequence may stand under the Fourteenth Amendment.” 

 



effect of longstandiy, to preclude 0 

ually ingype Pressure militateg ag Parents of white Schools. | 8roes, a we rell- . equally be employed tq deter them from, se ansferg 

; to the White school, At best, schoo] officials must have 

reasoned, only a few harg, souls wonlg venture from the 

more comfortable atmosplere of the Negro 
their all-Negro faculties and gt Would soon he taught their 
Nor were they Mistake. in its most 

Brown-affe 

he Violence, 

thre 

als to which Ne. 
deter them from 

Franklin , intimidatioy, and dom of 1 

op. 15). 

Community a S ; es... 
Ively inhibited the 

exercise of fy i 

their Parents 

» & plan 

 



  

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 colored 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. Freedom 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 ean 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 . . 

(¢) [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. Even 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 distriets, 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 Brown, 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 almost 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 } fore 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 Brown decision, were graduated from high school without ever attending a single class with a single white student.” 2¢ Thrs, as the Fifth Circuit has sald, “[fJor all but a handful of Negro members of the High School Class of 1966, this right [to equal educational opportunities with white children in a racially non-dis- criminatory public school system] has been of such stuff as dreams are made on.” % 

states: 

  

22 Southern School Desegregation, 1966-67, at p. 11. 
23 Id. at 165. 

2¢ Id. at 147. 

25 United States v. Jefferson County Board of Education, supra, 372 F.2d 836 at 845, 

ECE iin 
Be eis Ga SR Ce ae oie ES 

is #* 

In its most recent report, the Civil Rights Commission 

 



  

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 wmadequate in the great majority of cases as an mstru- 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]?® 

II. 

A Freedom of Choice Plan is Coustitutionally Unae- ceptable Where There are Other Methods, no More Difficult to Administer, Which Would More Speedily Disestablish the Dual System. 

The duty of a schoo] board under Brown, 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 stil] be the province of the school board. We submit, however, that a 

  

26 Southern School Deseyregation, 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 public 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 . . .” Grifin v. County School Board of Prince Edward County, 377 U.S. 218, 229. Cf. Watson v. Memphis, 373 U.S. 526, 533. 

 



  

r
t
 

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—
 

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21 

of any plan other than that which will most speedily and ... effectively desegregate the system. Put another way, at this point, that method must he mandated which wi] do the Job more quickly and effectively. 

A. The Obligation of a School Board Under Brown v. Board of Education is 1, Disestablish the Dual School System and to Achieve ¢ Unitary, Non-racial System. 

At bottom, this controversy concerns the precise point at which a gchool board has fulfilled sits obligations under Brown I ang JT. When free choice plans initially were con. ceived, courts generally adhered—mistakenly, we submit— to the belief that jt was sufficient to permit each student an unrestricted free choice of schools. It was said that “de- segregation” did not mean “integration” ang that the availability of g free choice of schools, unencumbered by violence and other restrictions, wag sufficient quite apart from whether any integration actually resulted, 2s Despite 
He A ha 

28 The doctrine probably had its genesis in the now famous dictum of 
Judge Parker in Briggs v. Elliot, 132 F.Supp. 776, 777 (E.D.S.C. 1955) 
“The Constitution , . . does not require integration. It merely forbids 
segregation”; See generally Jefers v. Whitley, 309 F.2q 621, 629 (4th 
Cir. 1962) ; Borders v., Rippy, 247 F.24 268, 271 (5th Cir, 1957) ; Boson 
Vv. Rippy, 285 F.2d 43, 48 (5th Cir. 1960) ; Vier v. Board of Education of 
Education of the City of Nashville, 270 F.24 209, 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 F.2d 729, 730 (5th Cir. 1965). In Kemp 
V. Beasley, 352 F.24 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 v. 
Altheimer Arkansas Public School District, 378 F.2q 483, 488 (8th Cir. 
1967). See also Evans Vv. Ennis, 281 F.24 385, 389 (3rd Cir, 1960) Where 

% 

 



  

po 

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 mr denial of any constitutional right not to be 

subjectea to racial discrimination. (Emphasis added.) 

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

of petitioners’ claim—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 geographic 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). 

 



  

  

  

DO
 

Ww
 

School Board of the City of Richmond, 382 U.S. 103 and the 
entire series of school cases it has decided.”® The Eighth 
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 F.2d 836, 847 at Note 5): 

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 [Briggs] that misread Brown, 

misapplied the class action doctrine in the school de- 

segregation cases, and did not 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—Ilock, 

29 See Rogers v. Paul, 382 U.S. 198; Calkoun 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. 683. 

80 United States v. Jefferson County Board of Education, 372 F.2d 836 

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

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

a 
® 

 



  

24 

stock and barrel: students, faculty, staff, facilities, 
programs and activities. 

On rehearing en banc the majority put it this way (slip 
op. at §): 

[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 true 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 circum- 
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 Briggs v. 
Ello, and embraces freedom of choice as a final answer 
to s~hool 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 Briggs v. Elliot 
dictum and take [a] stand beside the Fifth and Kighth?® 
Circuits.” (40a) : 

The Fifth Circuit in Jefferson did not hold, 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 Act 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, Inc., 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). 

32 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 11, 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 

  

3¢ 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. 

 



  

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 
739 Negroes in the New Kent School district 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-diseriminatory 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 o the student bodies. There were no Negroes 

among th~ 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. “[F]aculty segregation encourages 

pupil segregation and is detrimental to achieving a constitutionally re- 

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

Little Rock School District, 369 F.2d 661, 669-670 (Sth 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 wright, as does free choice, to the very 
psychological effects of the dual system that this court 
found objectionable.’* Instead of employing a procedure 
which would “as far as possible eliminate the discrimina- 
tory effects of the past” (cf. Louisiana v. United States, 
380 U.S. 145) the Board has, by adopting free choice, 
utilized those discriminatory effects 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 F. 2d at 812. All 

37In a related context, this Court has said: 
It must be remembered that we are dealing with a body of citizens 
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. 

 



  

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- 

triets 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 mo 

administrative or other reasons for its retention in this 

county. 

In the 13 years since Brown I and 11, this Couri—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. 

® 

 



  

31 

‘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 Edward 

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 effect was to perpetuate segregation. 

It was absolutely necessary, therefore, to prevent the 

desegregation process (which had barely begun) from 

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

did, hear the case and instruct 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,® 

the 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. 

89 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 by means of unitary geo- 

graphic attendance zones drawn without regard to race. The district court 
agreed and on August 27th 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-racial 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 v. Franklin 
County Board of Education, C.A. 1796, decided August 17, 1967, dis- 
cussed in Note 20, supra, and Braxton v. Board of Public Instruction of 

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

Pi 
- 

 



  

33 

CONCLUSION 

WHEREFORE, for the f Oregoing reasons submitted that the p 
it is respectfully etition for certior ari should be granted. 

Respectfully Submitted, 

JACK GREENBERG 
James M. Nasrrr, IIT 
Franky ER. Waite 

10 Columbus Circle 
New York, New York 10019 

S. W. Tucker 
Henry I, Marsu, IIT 

214 East Clay Street 
Richmond, Virginia 

Attorneys for Petitioners 

 



 



  

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 

allegations of the bill. 

The facts are uncontested. 
New Kent is a rural county located east of the City of 

Richmond. Its school system serves approximately 1,300 
pupils, of which 740 are 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. Each 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. 

The 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/ Jorx D. Burzxer, Jr. 
United States District Judge 

 



  

e
e
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a —
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. 

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

It is ApsuDGED and ORDERED: 

1. The defendants’ motion to dismiss is denied; 

2. The plaintiffs’ prayer for an injunction restraining 
school construction and the purchase of school sites is 
denied ; 

3. 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 
granted 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. ; 

/8/ Joux D. BurzNer, Jr. 
United States District Judge 

 



  

Ha 

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: 

I. 

ANNUAL FreepoMm 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. : 

JL. 

PurmiLs ExteEriNG 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 

 



  

  

        

t 

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. 

1410 

Pups ExtERING OTHER GRADES 

A. Bach 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 each yeer. 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. 

Pups NEwLY ENTERING QeHOOL SYSTEM OR 

CHANGING RESIDENCE WitHIN IT 

A. Parents of children moving into the area served by 

this school system, or changing their residence within it, 

 



  

Eo 

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. 

Y. 

ResipENT 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- 

out 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, FaciLiTies, AcriviTies AND PRroGgraMS 

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. 

 



  

date of Making choices ip 19686, Coples of this plan will be 

made available to all Interesteg Citizeng,ang will he 8iven to 

“The Schoo] Boarg of New Kent County Tecognizeg its 

to eliminate existing racia] Segregation of faculty that hag 

resulted from the past OPeration of a dua] System based 

upon race op color, 

: 

 



  

10a 

Memorandum of the Court 

“The New Kent Beard 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. 

“Tn 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 

predominan ly 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. is 

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- 
signed to cover schools, grades, teachers and pupils 
without regard to race, color or national origin. 

~~ 

7. 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 completely desegre- 
gated 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 one 
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 charging 
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 js not as definite ag Some plans received from other school districts. The court is of the opinion, however, that no rigid formuls, should be required. The plan will enable the school board to achieve allocation of faculty and staff Onl a non-racial basis. he plan and Supplement satisfy the criteria mentioned in Wright v. School Boarg of Greensville County, Va., No. 4263 (B.D. Va. Jon 27 and May 13, 1966). Provision should be made for 5 registration period in the summer or immediately prior to the beginning of the 1966- 67 term to allow pupils to exercise their chojce of school. This ig necessary because the supplement to the plan was adopted late in the school year. The Summer or fal] regis- tration should present no administrative difficulties. Many of the schools which have adopted a freedom of choice plan provide for such registration ag g 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 tq seek relief which future circumstances may require. 
\ 

/s/ Jomux D. Burzyer, JE. 
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 Apsupeenp and Orprrep 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 relief. 

Let the Clerk send copies of this order and of the mem- 
orandum of the court to counsel of record. 

/s8/ Jorn 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 Districr Court For 
THE KasterNy Districr oF VireINIA, AT RicEHMOND, 

Jory D. Burzxes, JR., District JUDGE, 
    

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

  

Before Hay~NsworrH, Chief J udge, and SoBELoFTF, Boreman, Bryan, J. SrexcEer Bern,* Winter and Craven, Circuit Judges, sitting en bane. 
a 

S. W. Tucker (Henry L. Marsh, III, Willard H. Douglas, Jr., Jack Greenberg and James M. N abrit, ITI, on brief) for Appellants, and Frederick T. Gray (Williams, Mullen & Christian on brief) for Appellees. 

  

etter. 

  

* 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 is neces. sarily remanded for further proceedings in accordance with the District Court’s order and our opinion in Bowman. 

Remanded. 

14 Cir. ¥24 ..- (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 

Ne 

No. 10,793. 
Lr 

Shirlette I, Bowman, Rhoda M. Bowman, Mildred A. Bowman, Richard NM. Bowman ang Sandra I, Bowman, infants, by Richard M. Bowman, their father friend, and a] others of the plaintiffs 
Appellants, 

and next 

) 

versus 
County School Board of Charles (it 

Virginia, et al, 
Appellees. 

y County, 

| i 
APPEAL FROM THE U~rTED STATES Districr Court rox THE Easrery District op Viren, AT Ricamoxp, Jorx D, Burzygg, JR., Districr J UDGE, A 

(Argued January 9, 1967. Decided June 12, 1967.) RR Before HayNsworrs, Chief J udge, Bryan, J. SPENCER Ber * Judges, sitting en bane. 

and SoBELoFF, Boremanx, WiNTER ang Craven, Circuit 

nt a S. W. Tucker (Henry 1, Marsh, IIT, Wi Jr., Jack Greenberg ang James M, N for Appellants, and Frederick T. Gra - & Christian op brief) for Appellees, 
Te ——————— 

llard H, Douglas, 
abrit, ITI, op brief) 

y (Williams, Mullen 

———— 

* Judge Bel] Sat as a member of th but died before it wag decided, 
e Court when the Case was heard 

 



  

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 ecir- cumstances extraneous to the formal plan of the school board. If there is g 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 itg exercise. If there are extraneous pressures whih deprive the choice of its freedom, the school board may |e 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 exactine 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.24q 768, 773; Bradley v. School Bd. of Edue. of City of Richmond, 4 Cir., 345 F.24 310, 313, vacated and remanded on other grounds, 382 U.S. 103. See Jeffers v. Whitley, 4 Cir., 309 F.24 621. 

3 United States v. Jefferson County Board of Education, 5 Cir, 372 F.2d 836, aff’d on rehearing en bane, ..__.. rag... y See also, Deal v. Cin- einnati Board of Education, 6 Cir, 369 F.2d 55. 

 



  

r
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seam 
mam

as 
ern

 
sas 

wi
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19a 

Opinion of the Uniteg States Cours of Appeals Si For the Fourth Circuit 
sure or entirely, they are 4 reflection of earlier Judicial 
opinions, We reach our conclusion independently, for, while 
administratiy, interpretation may lend g Persuasive glogg 
to a statute, the definition of constitutions] standards cop. 
trolling the actions of states ang their subdivisions 1s 
Peculiarly 5 Judicial function, Since the plaintiffs here concede that thei annual choices 
is unrestricted ang tiencumbered, we find in itg existence 
no denial of any constitutiong] right not to be subjecteq to 
racial discriminatioy, 

4) 
Appropriately, the Schoo] Board's plan includeg provi- 

sions for desegregation of the faculties, Supplemented at 
the directioy of the District Court, those Provisions are 
set forth in the margin, * 
r—— 

The Schoo] Board of Charles City County recognizes itg responsibility 

to employ, assign, promote and discharge teachers ang other professional origin. We further recognize our obligation to take al] reasonable steps 

to eliminate existing raeig] Segregation of faculty that has resylteg from 

the past Operation of a dug] System based upon race or ploy, , 
In the recruitment, selection ang assignment of staff, the chief obliga- 

tion is to provide the best possible education for all children, The pattern 

of assignment of teachers ang other staff members among the various 

schools of this System will not he such that only white teachers are sought 

for predominantly white schools and only Negro teachers are sought for The following Procedures wil] pe followed to tarry out the above stated 

policy: 

1. The best berson will pe sought for each position without regard 

to race, and the Board wij] follow the policy of assigning pew 
Personnel in a mapper that will work toward the desegregation of 
faculties, 

2. Institutions, agencies, Organizations, and individuals 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 Education, 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” 
  

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 8f 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-service 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 solicit 
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 ssytem 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 involuntary reassignment 
of teachers to achieve racal blending of faculties in each 
school 1s not a present requirement on the kind of record 
before us. Clearly, the District 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 which 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. ot 

While the District 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 Educ. of City of Richmond, 382 U.S. 103; 
Wheeler v. Durham City Bd. of Educ., 4 Cir., 363 F.2d 738. 

 



  

a 

22a 

Concurring Opinion of Judges Sobeleff 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. 

  

Soserorr, 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 I 

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- 

8 United States v. Jefferson County Bd. of Edue., 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, ..... Yad... , decided this day. 

 



  

  
      

  

      

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 direc- 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- gated by the school authorities, it is necessary to explore 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 by 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 N egro 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. Hach of the county’s two schools has 26 teachers and they offer identical programs of instruction. 

 



  

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 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 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. Asin 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, “Such a last minute change of heart is suspect, to say the least.” Cypress v. The Newport News General & Nonsectarian Hospital Ass'n, ¥2a... 3 series (4th Cir. Mar. 9, 1967). See also Lankford v. Gelston, 364 F.24 197, 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 1964, 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. 

 



  

      

    

  

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 ig in effect three distinct school sys- tems—each organized along racial lines—with hardly enough pupils for one system!” * The District Court found that “the Negro elementary schools serve geographical areas. The other schools serve the entire county.” 5 This contrasting treatment of the races plainly exposes the pre- vailing discrimination. For the 1964-65 schoo] year, only eight Negro children were assigned to grades 4, 6,7,89, 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 Eighth Circuit has recently 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 costly and inefficient, we must strike them down if their operation serves to discourage the desegregation of the school systems.” Kelley v. Arkansas Public School District, 35 U.S.L. WEEK 2619 (8th Cir. Apr. 12, 1967). 
The Board seems to go to an extreme of inefficiency and expense in order to maintain the segregated character of itg 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, 

5... F.Supp. ....., ..... (1966).



  

26a 

Concurring Opinion of Judges Sobeloff and Winter 
1965 and the Board adopted the plan prese ily 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 fa; \L gesture, how- ever, the faculties of the Negro ang white schools remain totally segregated.® 
The majority opinion implies that this court hag gone as far as the Fifty Circuit and that the “freedom of choice” plan which that circuit hag directed its di trict courts to Prescribe “embodies standards no more exacting than those we have imposed and sanctioned.” If this court is willing to 80 as far as the Fifty Circuit hag gone, I welcome the re. solve.” Tt 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 myc further our 3 

court needs to go to bring itself abreast of the ) {th Cirenit, 

I TR 
® Three of the Board’s eight teachers in the 17; pupil “Indian” schoo] 

are white, the other five are Indian. The Board asserts that it is “earnestly” seeking white t chers for the 
nine existing vacancies in the Negro schools, but sq far its efforts have 
not met with Success. This is not surprising, considering that the Board 
has formally declared that it “does not bropose to adverts vacancies in 
Papers as this would likely cause people of both races to apply who 
are not qualified to teach 

    

"A recent article in the Virginia Law Review declares tha Fifth Cir- 
> cuit to be “at once the most prolific and the most Progressive court in 

the nation op the subject of schoo] desegregation.” Dunn, 7 o o 
Guidelines ang School Desegregation in the South, 53 VA. L. REV. 42, 

  

8 United States v. Jefferson County. Bd. of Fdue,, F.2d ...... (5th 
Cir. 1966), af’d on rehearing en bane, .... F2q (5th Cir, Map. 29, 
1967). 

 



  

            
      

27a 

Concurring Opinion of Judges Sobeloff and Winter 

I. 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 will be assigned to the school he jis now attending.” In sharp contrast, the Fifth Circuit hag expressly abol- ished “permissive” freedom of choice and ordered manda- tory annual free choice for gl] grades, and “any student who has not exercised his chojce of school within a week after school opens shall be assigned to the school nearest his home * * * 7% 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 Fifth 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 plang 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 

  

? United States v. Jefferson County Bd. of Educ. ..... rad... 3 gates (5th 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, AEE Tn fulfilling this duty it is not enough for school authorities to offer N egro children the oppor- tunity to attend formerly all-white schools, The neces- sity of overcoming the effects of the duql 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. 

    

10 Fld at... (en banc). (Emphasis supplied.) 

 



  

29a 

Concurring Opinion of Judges Sobeloff and Winter 
~ Stating that courts must continually check the sufficiency of school boards’ brogress toward the goal, the Fifth Circuit decree requires school authorities to report regularly to the district courts to enable them to evaluate compliance “by measuring the performance.” Ip fashioning its decree, that circuit gave great weight to the percentages referred to ip the HEW Guidelines, declaring that they establish “minj- mum” standards 

“for measuring the effectiveness of freedom of chojee as a useful tool. * * * T¢ 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 tools.” 12 
mn 

: n “[S]trong policy considerations Support our holding that the stan- dards of court-supervised desegregation should not be lower than the standards of HEW-supervised desegregation. The Guidelines, of 
- course, cannot bind the courts; we are not abdicating any judicial responsibilities. [Footnote omitted.] But we hold that HEW’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,, ..... Yoda 2. = (5th 

Cir., Dee. 29, 1966), adopted en bang, ...... rad... (5th Cir., Mar. 29, 
1967). Cf. Cypress v. Newport News Gen. Hosp., .... Poa. ¥ paris nl15 (4th Cir., Mar. 9, 1967). 

nh $23... (Emphasis supplied.) The HEW Guidelines provide : 
(1) if 8or 9 percent of the Negro students in a schoo] 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, g “substantial” in- 
crease in the transfers will be expected the following year—bringing the 

 



  

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 he 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 Circuit, 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 chojce” plans as a “haphazard basis” for the administration of schools. 

 



  

31a 

Concurring Opinion of Judges Sobeloff and Winter 

plan is materially furthering the achievement of “4 unitary, non-racial system.” 1¢ A 
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 N egroes who might otherwise elect to attend a “white” schoo! 15 To minimize this fear school 

  

14 See Section IX of the decree issued in United States v. Jefferson County Bd. of Edue,, $23... yin (5th Cir. Mar. 29, 1967) (en bane) providing for detailed reports to the district courts. 
15 Various factors, some subtle and some not so subtle, operate effiec- 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 R ghts: 

i “Freedom of chojce plans accepted by the Office of Education 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 racial identity; b. White students rarely elect to attend Negro schools; ¢. Some Negro students are reluctant to sever normal school ties, made stronger by the racial identification of thejr 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 because 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 ang Winter 
officials must demonstrate unequivocally that Protection wij 
be provided. It 1S the duty of the school boards actively tq 
oversee the Process, to publicize its policy in al] segmentg 
of the population ang t, enlist the Cooperation of police 
and other Community agencieg. 16 The plaintiffs vigorously assert that the adoption of the 
Board’s free choice plan ip Charles City County, without 
further actiop toward equalization of facilities, wil] not cure 
Present gross inequities characterizing the dual schoo] Sys- 
fem, A glaring example is the assignment of 135 commer. 
cial students to one teacher in the Negro schoo] In contrast 
to the assignment of 45 commercial students per teacher ip 
the white schoo] and 36 in the Indian schoo]. In the Jeffers. 
son County decree, the Fifth Circuit directs itg attention 
to such matters anc explicitly orders school officials to take 
“prompt steps” to correct such inequalities. School authori. 
ties, who holg responsibility for administration, are not 
pupils or parents to effect a cure for these shockingly dis. 
criminatory conditiors. The decree provides: 

“Conditions of overcrowding, as determined by pupil- teacher ratios and pupil-clagsroom ratios shall, to the 
munity has been subjected to retaliatory violence, evictions, loss of 
Jobs, and othe forms of intimidation 

=! U.S. cox 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, report of the Office 
of Education hag pointed out that Negro children in the high school 
grades refrain from choosing to transfer becayse of reluctance to assume 

 



  

i 

| 
} 
i 

| 
i 

Concurring Opinion of Judges Sobeloff ang Winter 
extent feasible, be distributed evenly between schools 
formerly maintained for Negro students ang those 
formerly maintained for white students, If for any 
reason it is not feasible to Improve sufficiently any 
school formerly maintained for Negro students, * * * 
Such school shal be closed ag Soon ag possible, ang 
students enrolleq in the schoo] shall be reassigned on 
the basig of freedom of choice,” 17 

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 g particular schoo]. They assert categorically 
that “they are not required under the Constitution to de- 
Segregate the faculty,” This is in the teeth of Bradley v. 
School Bq. of Richmond, 382 U.S. 103 (1965). Having made this declaration, they say that they have 
nevertheless submitted g plan which does provide for fae. 
ulty desegregation, but circumspectly they add that “it will 
require time and patience,” They brotest that they have 
done all that could possibly be demanded of them by pro- 
viding a plan which would permit «gy constructive begin- 
ning.” This argument Jacks appeal an eighth of a century 
after Bro, 1s Children tog young for the first grade at 

  

7. P2d at... (en bane). (Emphasis supplied.) 18 “The rule has become : the later the start the shortep the time allowed 

for transition Lockett v, Bq. of Edue. of Muscogee County, 349 F.24 

225, 228 (5th Cir. 1965). See Rogers v. Paul, 382 Ug. 198, 199 (1965) ; 
Bradley v. School Bd. of Richmond, 382 U.S. 103 (1965) ; Griffin v. County 

Schoo] Bd, 377 US. 218, 229 (1964) ; Watson v. City of Memphis, 373 

 



  

34a 

Concurring Opinion of J udges 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. 

 



  

—
—
—
—
—
—
 

35a 

Concurring Opinion of Judges Sobeloff and Winter 
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.” 19 “[Ulntil schoo] authorities recognize and carry out their affirmative duty to integrate faculties as wel] as facilities, there is not the slightest possibility of their ever establishing ap Operative non-diseriminatory school system.” 20 

In contrast to the frail ang irresolute plans submitted by the appellees, the Fifth Circuit hag ordered schoo] officials within its Jurisdiction pnt only to make initigl assignments on a non-diseriminator, basis, but also to reassign staff members “tq eliminate pgsy discriminatory patterns.” For this reason, | wholeheartedly 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, T also join the majority in calling upon the District Court to fashion a specific and comprehensive order requiring the hoards to take firm steps to achieve substantial desegregation of the faculties, At this Jate date a desegregation plan containing only an in- definite pious statement of future good intentions does not merit judicial approval. 
- 

  

20 United States v. Jefferson County Bd. of Kdue, ... rod... SR 
(5th Cir. 1966), adopted en bang, <...... Poa... (5th Cir. Mar, 29, 1967). 
This thought has been similarly expressed in Bradley v. School Bd. of 
City of Richmond, 345 F.24 310, 323 (4th Cir, 19635) (concurring opinion) : “It is now 1965 and high time for the court to insist that good faith 

compliance requires administrators of schools to proceed actively with 
their nontransferable duty to undo the segregation which both by 
action and inaction has been persistently berpetuated.” (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 ever 

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 Ps 

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. 239, 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 ¥. Supp. 971, 977-78 (W.D 

Okla. 1965), aff’d, 35 U.S.L. Week 2484 (10th Cir., Jan. 

23, 1967), cert. denied, 35 U.S.L. Week 3418 (U.S. May 

29, 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 

 



  

/ 
37a 

Concurring Opinion of Judges Sobeloff and Winter 

IIT. 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 segre- gation is not actively enforced, They say that Brown only proscribes enforced Segregation, and does not command] action to undo existing consequences of earlier enforced segregation, repeating the facile formula of Briggs v. Elliott. 2 

The court’s opinion recognizes that “it ig the duty of the school hoards to eliminate the discrimination which inheres” in a system of Segregated schools where the “initial assign- ments are both involuntary and dictated by racial criteria,” but seems to think the system under consideration today “a very different thing.” T fail to perceive any basis for a dis- tinction, Certainly the two 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” jn 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 establisheq and resolutely maintained RIE I hons 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.” 139 F. Supp. 776, 777 (ED.S.C. 1955). 
: 

22 Bradley v. Schoo] 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 . 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 
uncritically t. 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), 
afd, 35 U.S.L. WEEK 2484 (10th Cir. Jan. 23, 1967), cert. denied, 35 
U.S.L. 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 static, 
and the failure to adopt an affirmative policy is itself a policy, ad- 
herence to which, at least in this case, has slowed up—in some cases— 
reversed the desegregation process. 

* * # 

The duty to disestablish segregation is 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 course of a penetrating criticism of the Briggs 
decision, says: 

 



  

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 contradictor -2% Jn any event, the dictum 

cannot withstand the authority of the Supreme Court or 

survive its exposition of the spirit of the Brown holding, as 

elaborated in Bradley Vv. School Bd., 382 U.S. 103 (1965) ; 

Goss v. Bd. of Educ., 373 U.S. 683 (1963); Cooper V. 

Aaron, 358 U.S. 1 (1958). 

  

  

  

    

“Briggs overlooks the act that Negroes collectively are harmed when 

the state, by law or custom, operates segregated schools or a school 

system with uncorrected effects of segregation. 

Adequate redress therefore calls for much more than allowing a few 

Negro 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 2 formerly de jure segregated public school system 

is apartheid by dual zoning * * *. Dual zoning persists in the continu- 

ing operation of Negro schools identified as Negro, historically and 

because the faculty and students are Negroes. Acceptance of an n- 

dividual’s application for transfer, therefore, may satisfy that par- 

ticular individual; it will not satisfy the elass. The class is all Negro 

children in a school district 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 cores as well as the school to which he goes. 

= ¢ * [T]he overriding right of Negroes as a class [is] to a com- 

pletely integrated public education.” 

aan 724d at ery ev (Emphasis supplied.) 

26 Shortly after pronouncing his dictum, in another school case Judge 

Parker nevertheless recognized that children cannot enroll 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, 938 F.2d 724, 728 (1956). 

 



  

t 

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.” ¥ 

We should move out from under the incubus of the B riggs 

v. Elliott dictum and + ke our stand beside the Fifth and 

the Eighth 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 Bdue,, .... ¥24d... (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 second 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 Vv. 

Beasley, 352 F.2d 14, 21 (8th Cir. 1965) (“The dictum in Briggs has 

not been followed or adopted by this Circuit and it 1s 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.) 

 



  

ty 41a 

Judgment of United States Cour 

For the Fourth Cireuit 

EE 

| | 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. 

  

Ly APPEAL FROM THE UNITED STATES DISTRICT Court 

A ror THE TASTERN DISTRICT OF VIRGINIA 

  

This cause came on to be heard on the record from the 

United States District Court for the Tastern District of 

Virginia, and was argued by counsel. 

On consideration whereof, it is 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. 

CremeNT F. HAYNSWORTH, JE. 

Chief Judge, Fourth Circuit 

Filed: June 12, 1967 

Maurice S. Dean, Clerk