Green v. New Kent County, VA School Board Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    I n  t h e

kapron* (Enter! ni %  Irntrfr Jitate
October Term, 1967 

No........... .

C harles C. G r e e n , et al.,
Petitioners,

-v-

Co unty  S chool B oard op N e w  K e n t  C o u n ty , 
V ir g in ia , et al.,

Respondents.

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

FOR THE FOURTH CIRCUIT

J ack G reenberg  
J ames M. N abrit, III 
F r a n k l in  E. W h it e  

10 Columbus Circle 
New York, New York 10019

S. W. T ucker  
H en ry  L. M a rsh , III 

214 East Clay Street 
Richmond, Virginia

Attorneys for Petitioners



I N D E X

Citations to Opinions Below ........................................  1

Jurisdiction .......................    2

Question Presented ... .........    2

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

Statement ........................................................................   2
I. The Pleadings and Evidence ............................. 3

II. The Plan Adopted by the Board .....................  6
III. The District Court’s Decision .......................... 7
IV. The Court of Appeals’ Opinion ......................... 8

R easons foe Granting  t h e  W b i t :

I. Introduction ......................................................  10
II. A Freedom of Choice Plan is Constitutionally 

Unacceptable Where There Are Other Methods,
No More Difficult to Administer, Which Would 
More Speedily Disestablish the Dual System .... 20
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.....................  21

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 ....... . 26

PAGE

Conclusion 33



11

A ppen d ix  : page

A. Memorandum Opinion of May 17, 1966 ......... , la
B. Order of May 17, 1966 ...................................... 3a
C. Memorandum Opinion of June 28, 1966 ..........  4a
D. Order of June 28, 1966 ...................................... 13a

E. Opinions of June 12, 1961 ................................  14a
F. Judgment dated June 12, 1961...........................  41a

TABLE OF CASES

Anderson v. Martin, 375 U.S. 399 .............................. 15,16

Blocker v. Board of Education of Manhasset, 226 F.
Supp. 208, 220-221 (E.D. N.Y. 1964) .........................  22

Board of Education of Oklahoma City Public Schools
v. Dowell, 372 F.2d 158 (10th Cir. 1967) .................. 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

TT.S. 103 ...................................................... 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,
1967 .................................................................. -..........  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

294 ..........................................7,12,15,19, 21, 22, 26, 27, 30
Burton v. Wilmington Parking Authority, 365 U.S.

715 15



I l l

Calhoun v. Latimer, 377 U.S. 263 ................................  23
Clark v. Board of Education, Little Bock School Dis­

trict, 369 F.2d 661 (8th Cir. 1966) ........................... 28
Cooper v. Aaron, 358 U.S. 1 ................................. -.....22, 31
Coppedge v. Franklin County Board of Education,

C.A. No. 1796, decided August 17, 1967 ................. 17, 32
Corbin v. County School Board of Loudon County, 

Virginia, C.A. No. 2737, August 27, 1967 .................. 32

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

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

Gilson v. Board of Public Instruction of Dade County,
272 F.2d 763 (5th Cir. 1959) ....................................  12

Green v. County School Board of the City of Roanoke,
304 F.2d 118 (4th Cir. 1962) ....................................  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 (1964) ............................ 20, 23, 31

Jeffers v. Whitley, 309 F.2d 621 (4th Cir., 1962) ......  21

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

Kelley v. Board of Education of the City of Nashville,
270 F.2d 209 (6th Cir., 1959) ....................................  21

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

Lane v. Wilson, 307 U.S. 268 ........................................ 29
Louisiana v. United States, 380 U.S. 145 --------------  29

Manning v. Board of Public Instruction of Hillsboro 
County, 277 F.2d 370 (5th Cir., 1960) .....................  12

PAGE



IV

PAGE

Marsh v. County School Board of Roanoke County,
Va., 305 F.2d 94 (4th Cir., 1962) ............................. 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 
U.S. 294 .......................................... ..... ........................  25

Reitman v. Mulkey, 18 L.Ed. 831 ..................................  15
Robinson v. Florida, 378 U.S. 153 ................................  15
Rogers v. Paul, 382 U.S. 198 ................................ 23, 28, 31

Singleton v. Jackson Municipal Separate School Dis
trict, 348 F.2d 729 (5th Cir. 1965) .......................... .

Singleton v. Jackson Municipal Separate School Dis
trict, 355 F.2d 865 (5th Cir. 1966) ________ _____

Skidmore v. Swift <& Co., 323 U.S. 134 ....... ..... ...........

United States v. American Trucking Associations, Inc.,
310 U.S. 534 ........ .......................................................... 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, 301 ...... 7, 8,13,15,

19, 21, 23, 25, 28, 29

Vick v. Board of Education of Obion County, 205 F. 
Supp. 436 (W.D. Tenn. 1962) ..................................  21

21

13
25

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



V

STATUTES page

Code of Va., 1950 (1964 Replacement Vol.), § 22.232.1 4

45 C.F.R. Part 181 ...................................................... 16, 24
Civil Rights Act of 1964, 78 Stat. 241 ....... .................  3

28 U.S.C. § 1331 ......................................................   3
28 U.S.C. § 1343 ............................................................  3
42 U.S.C. § 1981 ............................................................  3
42 U.S.C. § 1983 ............................................................  3

OTHER AUTHORITIES

Campbell, Cunningham and McPhee, The Organisa­
tion and Control of American Schools, 1965 ..........  14

Dunn, Title VI, The Guidelines and School Desegrega­
tion in the South, 53 Va. L. Rev. 42 (1967) -............. 25

Equality of Educational Opportunity: A Report of 
the 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 
Rights 1967 ................................................................ - 20

Revised Statement of Policies for School Desegrega­
tion Plans Under Title VI of the Civil Rights Act of 
1964 .....................................................-...................... 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

Survey of School Desegregation in the Southern and 
Border States, 1965-1966, U.S. Commission on Civil 
Rights, February, 1966 ........................................13,14,18

U.S. Bureau of the Census. U.S. Census of Population:
1960 General Population Characteristics, Virginia. 
Final Report PC (1)-48B .........................................  4

PAGE



I n  t h e

g>ttpr£jn? ©curt nf tty InttTft I to ta
October Term, 1967 

No.............

Charles C. Gr e e n , et al., 

—v.—
Petitioners,

C ounty  S chool B oard of N ew  K e n t  C o u nty , 
V ir g in ia , 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. l-15a. The June 12, 
1967 opinion of the Court of Appeals, reprinted in the 
appendix at p. 16a, is reported at —-— F.2d ——.



2

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).

Q uestion Presented

Whether—13 years after Brown v. Board of Education— 
a school board adequately discharges its obligation to 
effect a unitary non-racial school system, by adopting a 
freedom of choice desegregation plan, where the evidence 
shows that such plan is not likely to disestablish the dual 
system and where there are other methods, no more diffi­
cult to administer, which would immediately produce sub­
stantial desegregation.

Statutes and Constitutional Provisions Involved

This case involves Section I of the Fourteenth Amend­
ment to the Constitution of the United States.

Statement

Petitioners seek review of the adequacy of a freedom of 
choice desegregation plan adopted by defendant School 
Board and approved by the Court below en banc, Judges 
Sobeloff and Winter disagreeing with the majority opinion.



3

I. T h e  Pleadings and Evidence

Petitioners, Negro parents and children of New Kent 
County, Virginia, filed on March 15, 1965, in the United 
States District Court for the Eastern District of Virginia, 
a class action seeking injunctive relief against the main­
tenance of separate schools for the races. The complaint 
named as defendants the County School Board, its in­
dividual members, and the Superintendent of Schools.1

To comply with Title VI of the Civil Rights Act of 1964, 
78 Stat. 241, and regulations of the United States Depart­
ment of Health, Education and Welfare, the New Kent 
County School Board, on August 2, 1965, adopted a free­
dom of choice desegregation plan and on May 10, 1966 
filed copies thereof with the District Court.

New Kent is a rural county in Eastern Virginia, east 
of the City of Richmond. There is no residential segre­
gation; both races are diffused generally throughout the 1

1 The action was filed pursuant to 28 U.S.C. § 1331 and § 1343, and 
42 U.S.C. §1981 and § 1983. The complaint alleged that (R. Vol. 2,
p. 8) :

Notwithstanding the holding and admonitions in Brown v. Board of 
Education, 347 U.S. 483 (1954) and 349 U.S. 294 (1955), the de­
fendant school board maintains and operates a biracial school sys­
tem. . . .
[that the defendants] ha[d] not devoted efforts toward initiating 
non-segregation in the public school system, [and had failed to make] 
a reasonable start to effectuate a transition to a racially non-diserimi- 
natory school system as under paramount law it [was] their duty 
to do.

The defendants filed, on April 5, 1965, a Motion to Dismiss the complaint 
on the sole ground that it failed to state a claim upon which relief could 
be granted (R. Vol. 2, p. 13). In an order entered on May 5, 1965, the 
district court deferred ruling on the motion and directed the defendants 
to file an answer by June 1, 1965 (R. Vol. 2, p. 15).



4

Students:2 3 4 * 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 
transported 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. Eighteen In­
dian pupils living in New Kent were bussed to the Indian 
school in adjoining Charles City County.

Prom 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-

county.2 (cf. PX “A” and “B” ; see also the opinion of
Judge Sobeloff at p. 23a.)3

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.

3 The 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. Yol. 2, pp. 27-36).



5

ginia, 1950 (1964 Replacement Volume), repealed by Acts 
of Assembly, 1966, c. 590, under which any pupil could 
request assignment to any school in the county; children 
making no request were assigned to the school previously 
maintained for their race. The free choice plan the Board 
adopted in August, 1965 was not placed into effect until 
the 1966-67 school year by which time it had been approved 
by the district court.

Up to and including the 1964-65 school year, no Negro 
pupil ever sought admission to New Kent School and no 
white pupil ever sought admission to Watkins (R. Vol. 2, 
p. 28). Thus, at the close of the 1964-65 school year, 11 
years after Brown v. Board of Education, 347 U.S. 483, 
none of the 739 Negro pupils in the county were in, or 
had ever attended, school with white students.

As the following table6 indicates, the Negro school was 
more overcrowded and had a substantially higher pupil- 
teacher ratio, and larger class sizes than the white school:

Name of School

Pupil-
Teacher

Ratio

Average
Class
Size

Overcrowding 
Variance from 

Capacity 
(Elem. Schools)

Number
Buses

Average 
Pupils 

Per Bus

New Kent (white) 
1-12

22 21 +  37 (9%) 10 54.8

G-eorge W. 
Watkins (Negro) 

1-12
28 26 +118 (28%) 11 64.5

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.

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



6

No white students attended Watkins; all 628 pupils at 
Watkins were Negroes. Thus, as late as 13 years after 
the decision in Brown, 85% of the Negro students in the 
County attended school only with other Negroes.6

Faculty: Contracts with teachers are executed for a 
period of one year. No white teachers were assigned to 
the all-Negro Watkins School during 1964-65 nor Negro 
teachers to the all-white New Kent School, and none had 
ever been so assigned. The policy remained unchanged 
for 1965-66. During 1966-67 the extent of teacher desegre­
gation was the assignment of a single Negro teacher two 
days each week to New Kent.

II. T he P lan A dop ted  by the  B oard

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.7 
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.” 8

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

8 By failing to require, at least in its initial year, that every student 
make a choice, the plan permits some students to be assigned under the 
former dual assignment system until approximately 1973. Under the plan



7

It states that no choice will be denied other than for over­
crowding in which case students living nearest the school 
chosen will be given preference.

III. T h e  D istrict C ourt’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 filed on June 6, 1966, a supplement to its 
plan dealing with school faculties. On June 10, 1966, 
plaintiffs filed exceptions to the supplement contending

students entering other than grades one or eight who do not 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 seven years (in the case of 
a first grader) to schools to which they originally had been assigned on 
the basis of race. I t 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 Education, 372 F.2d 836, 
890-891, aff’d with modifications on rehearing en banc, No. 23345, March 
29, 1967, petition for certiorari pending, Nos. 256, 282, 301. We point 
this out only in the interest of careful analysis. For overturning the deci­
sion below on this ground would be insufficient to protect petitioners’ 
rights. As we more fully develop later what is objectionable about this 
plan is its employment of free choice assignment provisions to perpetuate 
segregation in an area, where, because of the lack of residential segrega­
tion, it could not otherwise result.



8

(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. Yol. 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. Yol. 1, pp. 7-19; 4a.)

IY. The Court of A ppeals’ O pin ion

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 it.

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

9 This case was decided together with a companion case Bowman v. 
County School Board of Charles City County, Virginia, No. 10793, for 
which no review is sought. While the opinion discussed herein was ren­
dered in the Charles City case, it was expressly made applicable to New 
Kent (p. 15a); similarly Judge Sobeloff stated that his opinion in Charles 
City applied to New Kent (p. 22a).



9

I think that the District Court should be directed not 
only to incorporate an objective time table in the 
School Board’s plans but also to set up procedures 
for periodically evaluating the effectiveness of the 
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 
(27-28a):

As it is, the plans manifestly perpetuate discrimina­
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 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 School.
Although a geographical formula is not universally 
appropriate, it is evident that here the Board, by 
separately busing Negro children across the entire 
county to the “Negro” school, and the white children 
to the “white” school, is deliberately maintaining a



10

segregated system which would vanish with non-racial 
geographic zoning. The conditions in this county rep­
resent a classical case for this expedient. (Emphasis 
added.)

While the majority implied that 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,10 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.

10 347 U.S. 483 (Brown I ) ; 349 U.S. 294 (Brown II).



11

The most marked and widespread innovation in school 
administration in the southern and border states in the 
last fifty years has been the change in pupil assignment 
method in the years since Brown,11 from a geographic 
attendance zone system to so-called “free choice.” Prior to 
Brown, systems in the North and South, with rare ex­
ception, assigned pupils by means of zone lines drawn 
around each school.11 12

Under an attendance zone system, unless a transfer 
request is granted for some special reason, students living 
in the zone of the school serving their grade would nor­
mally attend that school.

Prior to the relatively recent controversy concerning 
segregation in large urban systems, assignment by geo­
graphic attendance zones was viewed as the soundest 
method of pupil assignment. This was not without good 
reason; for placing children in the school nearest their 
home would often eliminate the need to furnish transporta­
tion, encourage the use of schools as community centers 
and generally facilitate the task of planning for an ever- 
expanding school population.13

In states where separate systems were required by law, 
the zone assignment method was implemented by drawing 
around each white school attendance zones designed to

11 See generally, Campbell, Cunningham and MePhee, The Organization 
and Control of American Schools, 196S. (“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 been 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 MePhee, 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,14 switched to what has in practice 
worked the same way—the so-called free choice.15

14 The Virginia Pupil Placement Law was invalidated in Green v. 
County School Board of the City of Boanoke, 304 F.2d 118 (4th Cir., 
1962) and Marsh v. County School Board of Boanolce County, Va., 305 
F.2d 94 (4th Cir., 1962). For other cases invalidating or disapproving 
similar laws, see Northcross v. Board of Education of the City of 
Memphis, 302 F,2d 818 (6th Cir., 1962) ; Gibson v. Board of Public In­
struction of Dade County, 272 F.2d 763 (5th Cir., 1959) ; Manning v. 
Board of Public Instruction of Hillsboro County, 277 F.2d 370 (5th Cir., 
1960) ; Dove v. Parham, 282 F.2d 256 (8th Cir., 1960).

15 According to the Civil Eights Commission, the vast majority of 
school districts in the south use freedom of choice plans. See Southern 
School Desegregation, 1966-67, A Eeport of the U.S. Commission on Civil 
Rights, July, 1967. The Report states, at pp. 71-72:

All . . . districts [desegregating under voluntary plans] in Alabama, 
Mississippi, and South Carolina, without exception, and 83% of 
such districts in Georgia have adopted free choice plans. . . .



13

Under a so-called free choice plan of desegregation, 
students are given a privilege rarely enjoyed in the past 
—the opportunity to attend the school of their choice. Most 
often they are permitted to choose any school in the sys­
tem, but in some areas, they are permitted to choose only 
either the previously all-Negro or previously all-white 
school in a limited geographic area. Not only are such 
plans more difficult to administer (choice forms now have 
to be processed and standards developed for passing on 
them, with provision for notice of the right to choose and 
for dealing with students who fail to exercise a choice),16 
they are, in addition, far less likely to disestablish the

The great majority of districts under eourt 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 Civil 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 United States v. Jefferson County 
Board of Education, 372 F.2d 836, aff’d with modification on rehearing 
en banc, 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 
Separate School District, 355 F.2d 865, 871 (5th Cir. 1966).

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-performanee or non-perform­
ance. The Civil Rights Commission has reported on non-compliance by 
school authorities with their desegregation plans:

In Webster County, Mississippi, school officials assigned on a racial 
basis about 200 white and Negro students whose freedom of choice 
forms had not been returned to the school office, even though the 
desegregation plan stated that it was mandatory for parents to exer­
cise a choice and that assignments would be based on that choice 
[footnote omitted]. In McCarty, Missouri after the school board had



14

Under free choice plans, the extent of actual desegre­
gation varies directly with the number of students seek­
ing, and actually being permitted to transfer to schools 
previously maintained for the other race. It should have 
been obvious, however, that white students—in view of 
general notions of Negro inferiority and the hard fact 
that in far too many areas Negro schools were vastly 
inferior to those furnished whites17—would not seek trans-

dual system. And, as demonstrated below, experience bas
proved them largely incapable of disestablishing the dual
system.

distributed freedom of choice forms and students had filled out and 
returned the forms, the board ignored them.

Survey of School Desegregation in the Southern and Border States, at 
p. 47. Given the other shortcomings of free choice plans, there is serious 
doubt whether the constitutional duty to effect a non-racial system is sat­
isfied by the promulgation of rules so susceptible of manipulation by hos­
tile school officials. As Judge Sobeloff has observed:

A procedure which might well succeed under sympathetic administra­
tion could prove woefully inadequate in an antagonistic environment.

Bradley v. School Board of the City of Richmond, 345 E.2d 310 (4th Cir. 
1965) (concurring in part and dissenting in part).

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

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

Essentially the same was said of Negro schools in the non-metropolitan 
South (Id. at 210-211). I t is not surprising, therefore, quite apart from 
race, that white students have unanimously refrained from choosing Negro 
schools.



15

fers to the formerly Negro schools; and, indeed, very few 
ever have.18 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 II  
(349 IT.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.19

18 “During the past school year, as in previous years, white students 
rarely chose to attend Negro schools.” Southern School Desegregation, 
1966-67 at p. 142, United States v. Jefferson County, supra at 889.

19 The free choice plan adopted in this case is subject to serious question 
on the ground that it promotes invidious discrimination. By permitting 
students to choose a school, instead of assigning them on some rational 
non-racial basis, the school 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 discriminatory conduct of individ­
uals or lend support to that end. See Beitman 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



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 wras not surprising, 
therefore, that individuals, reared in that system and 
schooled in the ways of subservience (by segregation, not 
only in schools, but in every other conceivable aspect of 
human existence) when gratuitously asked to “make a 
choice,” chose, by their inaction, that their children should 
remain in the Negro schools. In its Revised Statement of 
Policies for School Desegregation Plans Under Title VI 
of the Civil Rights Act of 1964 (hereinafter referred to as 
Revised Guidelines), the Department of Health, Education 
and Welfare states (45 C.F.R. Part 181.54):

A free choice plan tends to place the burden of 
desegregation on Negro or other minority group stu­
dents and their parents. Even when school authorities 
undertake good faith efforts to assure its fair opera­
tion, the very nature of a free choice plan and the

the voters’ succumbing to raeial prejudice. So too here, giving students 
in a district formerly segregated by law the right to choose a school facili­
tates and promotes choices based on race.

I t is no answer that some students may not, in fact, use race as a 
factor in the choice process. In Anderson, the statute was not saved be­
cause some persons might vote without regard to the race of the candi­
date. It is the furnishing of the opportunity that is prohibited by the 
Constitution.

We do not argue that a sehool board may never permit students to 
choose schools. And certainly systems using attendance zones would not 
run afoul of the Constitution by permitting students to transfer for good 
cause shown. Presumably in such instances a legitimate non-racial reason 
would have to be supplied.

Nor do we argue that freedom of choice may never be used where race 
is intended to be a factor. For in a system in which residential segrega­
tion is deeply entrenched, the allowance of a choice of schools based on 
race may be a useful way to achieve desegregation. There, however, the 
plan is being used to undo rather than perpetuate segregation as the plan 
in this case is being used to do. Cf. Goss, supra at 688, where this Court 
stated that “no plan or provision of which racial segregation is the in­
evitable consequence may stand under the Fourteenth Amendment.”



17

Beyond that, by making the Negro’s exercise of choice the 
critical factor upon which the conversion depended, school 
authorities virtually insured its failure. Every community 
pressure militates against the affirmative choice by Negro 
parents of white schools. Moreover, intimidation of Ne­
groes, a weapon well-known throughout the south, could 
equally be employed to deter them from seeking transfers 
to the white school. At best, school officials must have 
reasoned, only a few hardy souls would venture from the 
more comfortable atmosphere of the Negro school, with 
their all-Negro faculties and staff. Those that “dared,” 
would soon be taught their place.20

Nor were they mistaken. The Civil Rights Commission, 
in its most recent reports on school desegregation in 
Brown-affected states, reports exhaustively of the violence, 
threats of violence and economic reprisals to which Ne­
groes have been and are subjected to deter them from

effect of longstanding community attitudes often tend
to preclude or inhibit the exercise of a truly free choice
by or for minority group students. (Emphasis added.)

20 A good example is Goppedge v. Franklin County Board of Education, 
C.A. No. 1796 (E.D. No. Car.), decided August 17, 1967. The Court 
found that there was marked hostility to desegregation in Franklin 
County, that Negroes had been subjected to violence, intimidation and 
reprisals, and that each successive year under the freedom of choice plan 
it had approved earlier had resulted in fewer requests by Negroes for 
reassignment to formerly all-white schools. Concluding that (slip op. 15) : 

Community attitudes and pressures . . . have effectively inhibited the 
exercise of free choice of schools by Negro pupils and their parents

the Court directed that the defendants
prepare and submit to the Court, on or before October, 1967, a plan 
for the assignment, at the earliest practicable date, of all students 
upon the basis of a unitary system of non-racial geographic at­
tendance zones, or a plan for the consolidation of grades, or schools, 
or both. (Id. at 17.)



18

placing their children in white schools.21 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 can be achieved. There are a number 
of factors which have prevented such affirmative action by substantial 
numbers of parents and pupils of both races:

(a) Fear of retaliation and hostility from the white community . . .
(b) [V]iolenee, threats of violence and economic reprisal by white 

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

(c) [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 districts, therefore, 
as in the case before the Court, the vast majority of Negro 
pupils continue to attend school only with Negroes.

Although the proportion of Negroes in all-Negro schools 
has declined since Brown, more Negro children are now 
attending such schools than in 1954.22 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.23 And, in the case before 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.” 24 * Tims, as the Fifth Circuit has 
said, “ [f]or 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.” 26

In its most recent report, the Civil Rights Commission 
states:

22 Southern School Desegregation, 1966-67, at p. 11.
23 Id. at 165.
24 Id. at 147.
26 United States v. Jefferson County Board of Education, supra, 372

F.2d 836 at 845.



20

The review of desegregation under freedom of choice 
plans contained in this report, and that presented in 
last years commission’s survey of southern school de­
segregation, show that the freedom of choice plan is 
inadequate in the great majority of cases as an instru­
ment for disestablishing a dual school system. Such 
plans have not resulted in desegregation of Negro 
schools and therefore perpetuate one-half of the dual 
school system virtually intact. [Emphasis added]26

II.

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

The duty of a school hoard under Brown, in the mid­
sixties (by now, the time for “deliberate speed” has long 
run out27) is to adopt that plan which will most speedily 
accomplish the effective desegregation of the system. We 
quite willingly concede that a court should not enforce its 
will where alternative methods are not likely to produce 
dissimilar results—that much discretion should still be the 
province of the school hoard. We submit, however, that a

26 Southern School Desegregation, 1966-1967, pp. 152-153. In an earlier 
report, Racial Isolation in the Public Schools, the Civil Eights 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 . . Griffin v. County School Board of Prince Edward County, 
377 U.S. 218, 229. Cf. Watson v. Memphis, 373 U.S. 526, 533.



21

court may not-—at this late date, in the absence of persua­
sive evidence showing the need for delay—-permit the use 
of any plan other than that which will most speedily and 
effectively desegregate the system. Put another wTay, at 
this point, that method must be mandated which will do the 
job more quickly and effectively.

A. T h e O bligation o f a School B oard Under B row n  v.
B oard o f  E ducation is to Disestablish the Dual 
School System  and to  A chieve a U nitary, Non-racial 
System .

At bottom, this controversy concerns the precise point at 
which a school board has fulfilled its obligations under 
Brown I and 11. When free choice plans initially were con­
ceived, courts generally adhered—mistakenly, we submit— 
to the belief that it was sufficient to permit each student an 
unrestricted free choice of schools. It was said that “de­
segregation” did not mean “integration” and that the 
availability of a free choice of schools, unencumbered by 
violence and other restrictions, was sufficient quite apart 
from whether any integration actually resulted.28 Despite

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 Jeffers v. Whitley, 309 F.2d 621, 629 (4th 
Cir. 1962); Borders v. Bi.ppy, 247 F.2d 268, 271 (5th Cir. 1957); Boson 
v. Hippy, 285 F.2d 43, 48 (5th Cir. 1960); Vick v. Board of Education of 
Obion County, 205 F.Supp. 436 (W.D. Tenn. 1962); Kelley v. Board of 
Education of the City of Nashville, 270 F.2d 209, 229 (6th Cir. 1959).

In recent years, several courts in addition to that in United States v. 
Jefferson County Board of Education, supra (See discussion infra at pp. 
23-25), have rejected the dictum in Briggs. Even before Jefferson 
County, Judge Wisdom had tersely observed that “Judge Parker’s well 
known dictum. . . . should be laid to rest”. Singleton v. Jackson Municipal 
Separate School District, 348 F.2d 729, 730 (5th Cir. 1965). In Kemp 
v. Beasley, 352 F.2d 14, 21 (1965), the Eighth Circuit stated that “The 
dictum in Briggs has not been followed or adopted by this Circuit and is 
logically inconsistent with Brown.” To the same effect is Kelley v. 
Altheimer Arkansas Public School District, 378 F.2d 483, 488 (8th Cir. 
1967). See also Evans v. Ennis, 281 F.2d 385, 389 (3rd Cir. 1960) where



22

its protestations, the majority below manifested much of 
this thinking (17-18a, 19a):

Employed as descriptive of a system of permissive 
transfers out of segregated schools in which the initial 
assignments are both involuntary and dictated by racial 
criteria, [freedom of choice] is an illusion and an op­
pression which is constitutionally impermissible . . .
Employed as descriptive of a system in which each 
pupil or his parents, must annually exercise an un­
inhibited choice, and the choices govern the assign­
ments, it is a very different thing. * * *
Since plaintiffs here concede that their annual choice 
is unrestricted and unencumbered, we find in its ex­
istence no denial of any constitutional right not to be 
subjected to racial discrimination. (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 Manhassel, 226 F.Supp. 208, 220, 221 (E.D.N.Y, 1964) and Board of 
Education of Oklahoma City Public Schools, et al. v. Dowell, 372 F.2d 
158 (10th Cir. 1967).



23

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 decision29 30 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—lock,

School Board of the City of Richmond, 382 U.S. 103 and the
entire series of school cases it has decided.29 The Eighth
Circuit has said:

29 See Rogers v. Paul, 382 U.S. 198; Calhoun v. Latimer, 377 U.S. 263; 
Griffin v. County School Board of Prince Edward County, 377 U.S. 218; 
Goss v. Board of Education, 373 U.S. 683.

30 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.



24

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

On rehearing en banc the majority put it this way (slip 
op. at 5):

[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).31 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

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. 
Elliot, and embraces freedom of choice as a final answer 
to school desegregation in the absence of intimidation 
and harrassment.32

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 Eighth33 
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

scribe to that view and urge its plain and explicit adoption
by this Court.

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 
& Go., 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).

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



substantial and entrenched, a free choice plan might well be 
the most effective method of desegregation. Rather, our 
position is that a freedom of choice plan is not an “ade­
quate” desegregation plan (Brown II, supra, 349 TJ.S. at 
301), if there is another plan, equally feasible to administer, 
which will more speedily and effectively disestablish the 
dual system.

B. T he R ecord  Clearly Show ed T hat a F reedom  o f 
Choice P lan W as Not L ike ly  to D isestablish and  
Has Not D isestablished the Dual School System  
and T ha t a Geographic Zone P lan W o u ld  Im m e­
diately Have P roduced  Substantia l 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,34 
and as it most certainly would have done had all children 
been of the same race, the School Board gratuitously 
adopted a free choice plan thereby incurring the adminis­
trative hardship of processing choice forms and of furnish­
ing transportation to children choosing the school farthest 
from their homes. Indeed, in view of the lack of residential 
segregation it can fairly be concluded that the dual school 
system could not continue, as Judge Sobeloff has said (see 
p. 9 supra), but for free choice. Freedom of choice, then, 
has been, at least in this community, the means by which the

34 Compare Judge Sobeloff’s suggestion quoted at pp. 9-10, supra 
(27-28a) that the dual system could immediately be eliminated and a 
unitary non-racial system achieved by the assignment of students in the 
eastern half of the county to New Kent and those in the western half to 
Watkins.



27

State has continued, under the guise of desegregation, to 
maintain segregated schools.

The Board could not, in good faith, have hoped that 
enough students would choose the school previously closed 
to them to produce a truly integrated system. The evidence 
belies this. The Board had, for several years prior to the 
adoption of free choice in 196 5,35 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) :

3S Although the Board adopted its plan in August, 1965, it was not ap­
proved by the Court and actually implemented until the Fall term of 
1966.



28

The burden rests upon the defendants to establish 
that such time [in which to effectuate a transition 
to a racially non-discriminatory system] is necessary 
in the public interest and is consistent with good 
faith compliance at the earliest practicable date.

It was, therefore, error for the Court below to approve 
the freedom of choice plan in the face of petitioner’s proof, 
especially when the Board failed to show administrative 
reasons, cognizable by Brown II, justifying delay.

The data regarding assignment of teachers also reveal 
the failure of the Board to disestablish the dual system. 
The racial composition of the faculty at each school dur­
ing the year just ended (1966-67) mirrored the racial com­
position of the student bodies. There were no Negroes 
among the 28 full-time teachers at the formerly all-white 
New Kent school. Only one Negro teacher was assigned 
there and that was for the equivalent of two days each 
week. No white teachers were assigned to the only Negro 
school, Watkins—all full-time teachers there were Negroes. 
Thus, neither of the only two schools in the county had 
lost, either in terms of its students or faculty, its racial 
identification.36

86 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] acuity segregation encourages 
pupil segregation and is detrimental to achieving a constitutionally re­
quired non-raeially operated school system”. Clark v. Board of Education, 
Little Bock School District, 369 F.2d 661, 669-670 (8th Cir. 1966) ; United 
States v. Jefferson County Board of Education, supra (at 883-885); 
Bradley v. School Board of the City of Richmond, 382 U.S. 103; Rogers 
v. Paul, 382 U.S. 198.



29

The duty of the School Board was to convert the dual 
school system it had created in derogation of petitioners’ 
rights into a “unitary non-racial system.” As we have 
previously noticed it had alternatives—such as utilizing 
geographic zones or reshaping grade structures—which the 
record shows would have disestablished the dual system 
more speedily and with much less administrative hardship 
than that which it ultimately chose. More importantly, 
the success of its free choice plan depended on the ability 
of Negroes to unshackle themselves from the psychological 
effects of imposed racial discriminations of the past, and 
to withstand the fear and intimidation of the present and 
future. Neither of the other methods under which assign­
ment would be involuntary—as it had been until Brown 
—would subject Negroes to the possibility of intimidation 
or give undue weight, as does free choice, to the very 
psychological effects of the dual system that this court 
found objectionable.3- 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 37

37 In 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 eneourage 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
tricts utilizing free choice, one-half of the dual system 
has been retained intact. Nothing but race can explain 
the continued existence of this all-Negro school and defer 
indefinitely its elimination, where all races are scattered 
throughout the county. Freedom of choice has been in 
this county, the instrument by which the State has used 
its resources and authority to maintain the momentum 
of racial segregation.

The statistics demonstrate that freedom of choice has 
not effected, either in the county before the Court or in 
most districts in the southern and border states generally, 
a unitary non-discriminatory system. While its use in the 
immediate post-Brown years might have been justified as 
an interim or transitional device, one can hardly conceive 
any justification for its adoption as late as 1966, twelve 
years after Brown. Certainly, the record furnishes no 
administrative or other reasons for its retention in this 
county.

In the 13 years since Brown I and II, this Court—con­
sistent with its early statement in Brown II  that “the 
[district] courts, because of their proximity to local con­
ditions . . . can best perform this judicial appraisal (349 
U.S. at 298)”—has rarely reviewed cases challenging de­
segregation plans (or provisions thereof) approved by 
the lower courts. But the rule is not without its excep­
tions and there have been several instances in which this 
Court has found it necessary to overturn the judgment of 
a lower court in a school desegregation case.38

38 The school desegregation eases 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,39 
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.40 The 
constitutionality of the continued use of a free choice plan 
in that context merits the attention of this Court.

39 See Note 15, supra.

40 A trend away from freedom of choice seems to have developed re­
cently in some of the lower courts. And a recent order of a district court 
in Virginia appears to have adopted the view we urge. See Corbin v. 
County School Board of Loudon County, Virginia, C.A. No. 2737, August 
27, 1967. In Loudon County, as in this case, Negroes were scattered 
throughout the County. The district court had approved in May, 1963 a 
freedom of choice plan of desegregation. In April, 1967, plaintiffs and the 
United States filed motions for further relief contending that the freedom 
of choice plan had resulted in only token or minimal desegregation with 
the majority of Negroes still attending all Negro Schools. They requested 
that the district be ordered to desegregate 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 tha t:

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.



33

CONCLUSION

W h erefo re , f o r  th e  fo re g o in g  re a so n s  i t  is  re sp e c tfu lly  
s u b m itte d  th a t  th e  p e t i t io n  fo r  c e r t io ra r i  sh o u ld  be g ra n te d .

R esp e c tfu lly  su b m itted ,

J ack Greenberg  
J ames M. N abrit, III 
F r a n k l in  E. W h it e  

10 Columbus Circle 
New York, New York 10019

S. W. T ucker  
H en ry  L. M a rsh , III 

214 East Clay Street 
Richmond, Virginia

Attorneys for Petitioners



A P P E N D I X



APPENDIX

(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-l, 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

Memorandum of the Court



2 a

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 /  J o h n  D . B u tzn er , J r .
United States District Judge

Memorandum of the Court



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 (E.D. Va., Jan. 27, 1966),

It is ad ju d g ed  and o b d eb ed :

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 ease 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.

/ s /  J o h n  D. B u tzn er , J b .
United States District Judge



4a

(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.
A n n u a l  F reedom oe Choice  of S chools

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.

Memorandum of the Court

II.

P u pil s  E n ter in g  O t h er  Grades

Begistration 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



5a

School Form for the child. The child may he 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.

III.
P u pil s  E n ter in g  O t h eb  Grades

A. Each 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 year. Pupils entering grade one (1) 
of the elementary school or grade eight (8) of the high 
school must express a choice as a condition for enrollment. 
Any pupil in grades other than grades 1 and 8 for whom 
a choice of school is not obtained will be assigned to the 
school he is now attending.

IV.
P u pils  N ew ly  E n terin g  S chool S ystem  or 

C hang ing  R esidence  W it h in  I t

A. Parents of children moving into the area served by 
this school system, or changing their residence within it,

Memorandum of the Court



6a

after tlie 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.

V.

R esid ent  and N on-eesid en t  A ttendance

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.

Memorandum of the Court



7a

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.
T ransportation

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.
S ervices, F a cilities , A ctivities and P rograms .

There shall be no discrimination based on race, color, or 
national origin with respect to any services, facilities, ac­
tivities and programs sponsored by or affiliated with the 
schools of this school system.

Memorandum of the Court



8a

Memorandum of the Court

IX.
S taff D esegregation

A. Teacher and staff desegregation is a necessary part 
of school desegregation. Steps shall be taken beginning 
with school year 1965-66 toward elimination of segregation 
of teaching and staff personnel based on race, color, or 
national origin, including joint faculty meetings, in-service 
programs, workshops, other professional meetings and 
other steps as set forth in Attachment C.

B. The race, color, or national origin of pupils will not 
be a factor in the initial assignment to a particular school 
or within a school of teachers, administrators or other em­
ployees who serve pupils, beginning in 1966-67.

C. This school system will not demote or refuse to re­
employ principals, teachers and other staff members who 
serve pupils, on the basis of race, color, or national origin; 
this includes any demotion or failure to reemploy staff 
members because of actual or expected loss of enrollment 
in a school.

D. Attachment D hereto consists of a tabular statement, 
broken down by race, showing: 1) the number of faculty 
and staff members employed by this system in 1964-65; 
2) comparable data for 1965-66; 3) the number of such per­
sonnel demoted, discharged or not re-employed for 1965- 
66; 4) the number of such personnel newly employed for 
1965-66. Attachment D further consists of a certification 
that in each case of demotion, discharge or failure to re­
employ, such action was taken wholly without regard to 
race, color, or national origin.



9a

Memorandum of the Court

X.
P ublicity  and C o m m u n ity  P kepabation

Immediately upon the acceptance of this plan by the U. S. 
Commissioner of Education, and once a month before final 
date of making choices in 1966, copies of this plan will be 
made available to all interested citizens and will be given to 
all television and radio stations and all newspapers serving 
this area. They will be asked to give conspicuous publicity 
to the plan in local news sections of the Richmond papers. 
The newspaper coverage will set forth the text of the plan, 
the letter to parents and Choice of School Form. Similar 
prominent notice of the choice provision will be arranged 
for at least one a month thereafter until the final date for 
making choice. In addition, meetings and conferences have 
been and will be called to inform all school system staff 
members of, and to prepare them for, the school desegrega­
tion process, including staff desegregation. Similar meet­
ings will be held to inform Parent-Teacher Associations 
and other local community organizations of the details of 
the plan, to prepare them for the changes that will take 
place.

S u ppl e m e n t

“The School Board of New Kent County recognizes its 
responsibility to employ, assign, promote and discharge 
teachers and other professional personnel of the school sys­
tems without regard to race, color or national origin. We 
further recognize our obligation to take all reasonable steps 
to eliminate existing racial segregation of faculty that has 
resulted from the past operation of a dual system based 
upon race or color.



10a

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

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

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

1. The best person will be sought for each position 
without regard to race, and the Board will follow the 
policy of assigning new personnel in a manner that 
will work toward the desegregation of faculties. We 
will not select a person of less ability just to accomp­
lish desegregation.

2. Institutions, agencies, organization, and individ­
uals that refer teacher applicants to the schools system 
will be informed of the above stated policy for faculty 
desegregation and will be asked to so inform persons 
seeking referrals.

3. The School Board will take affirmative steps to 
allow teachers presently employed to accept transfers 
to schools in which the majority of the faculty members

Memorandum of the Court



11a

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.

Memorandum of the Court



12a

The plan for faculty desegregation is not as definite as 
some plans received from other school districts. The court 
is of the opinion, however, that no rigid formula should be 
required. The plan will enable the school board to achieve 
allocation of faculty and staff on a non-racial basis. The 
plan and supplement satisfy the criteria mentioned in 
Wright v. School Board of Greensville County, Va., No. 
4263 (E.D. Va., Jan. 27 and May 13, 1966).

Provision should be made for a registration period in the 
summer or immediately prior to the beginning of the 1966- 
67 term to allow pupils to exercise their choice of school. 
This is necessary because the supplement to the plan was 
adopted late in the school year. The summer or fall regis­
tration should present no administrative difficulties. Many 
of the schools which have adopted a freedom of choice plan 
provide for such registration as a matter of course.

It may become necessary for the board to modify the 
plan. It may become necessary to revoke in full or in part 
the approval that the court has given the plan. The case 
will remain on the docket for any of the parties to seek 
relief which future circumstances may require.

/ s /  J o h n  D. B tttzner, J s .
United States District Judge

Memorandum of the Court



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 A djudged  and Ordered 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.

/ s /  J o h n  D. B u tzn er , J e.
United States District Judge



14a

Decision of tlie 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 0. 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.

A ppeal  from  t h e  U nited  S tates D istrict  C ourt for 
t h e  E astern D istrict of V irg in ia , at R ic h m o n d . 

J o h n  D . B u tzn er , J r ., D istrict  J udge.

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

Before H aynsw orth , Chief Judge, and S obeloff, B oreman , 
B ryan , J. S pen c er  B ell ,* W in t e r  and Craven, Circuit 
Judges, sitting en banc.

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

* Judge Bell sat as a member of the Court when the ease 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.1 
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........  F.2d .....  (Decided this day). The special concurring
opinion of Judge Sobeloff, in which Judge Winter joins, in Bowman is 
applicable to this case also.



16a

Opinion of the United States Court of Appeals
For the Fourth Circuit

No. 10,793.

Shirlette L. Bowman, Rhoda M. Bowman, Mildred A. 
Bowman, Richard M. Bowman and Sandra L. Bowman, 
infants, by Richard M. Bowman, their father and nest 

friend, and all others of the plaintiffs, 
Appellants,

versus
County School Board of Charles City County, 

Virginia, et ah,
Appellees.

A ppeal  peom  t h e  U n ited  S tates D istkict C oubt foe 
THE E asTEEN DlSTEICT OF VlBGINIA, AT RICHMOND.

J o h n  D. B u tzn eb , J b ., D isteict  J udge.

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

Before H aynsw obth , Chief Judge, and S obeloff, B oeem an , 
B byan , J. S pen c ee  B ell ,* W in t e b  and Cbaven , Circuit 
Judges, sitting en banc. S.

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

* Judge Bell sat as a member of the Court when the ease was heard
but died before it was decided.



17a

H aynsw obth , Chief Judge:

In this school case, the Negro plaintiffs attack, as a dep­
rivation of their constitutional rights, a “freedom of 
choice” plan, under which each Negro pupil has an ac­
knowledged “unrestricted right” to attend any school in the 
system he wishes. They contend that compulsive assign­
ments to achieve a greater intermixture of the races, not­
withstanding their individual choices, is their due. We 
cannot accept that contention, though a related point af­
fecting the assignment of teachers is not without merit.

I

“Freedom of choice” is a phrase of many connotations.
Employed as descriptive of a system of permissive trans­

fers out of segregated schools in which the initial assign­
ments are both involuntary and dictated by racial criteria, 
it is an illusion and an oppression which is constitutionally 
impermissible. Long since, this court has condemned it.1 
The burden of extracting individual pupils from discrimi­
natory, racial assignments may not be cast upon the pupils 
or their parents. It is the duty of the school boards to 
eliminate the discrimination which inheres in such a system.

Employed as descriptive of a system in which each pupil, 
or his parents, must annually exercise an uninhibited choice, 
and the choices govern the assignments, it is a very different

Opinion of the United States Court of Appeals
For the Fourth Circuit

1Nesbit v. Statesville City Bd. of Educ., 4 Cir., 345 F.2d 333, 334 n. 3; 
Bradley v. School Bd. of Educ. of City of Richmond, 4 Cir., 345 F.2d 310, 
319 & n. 18; Wheeler v. Durham City Bd. of Educ., 4 Cir., 309 F.2d 
630, 633; Jeffers v. Whitley, 4 Cir., 309 F.2d 621; Marsh v. County 
School Bd. of Roanoke County, 4 Cir., 305 F.2d 94; Green v. School 
Bd. of City of Roanoke, 4 Cir., 304 F.2d 118; Hill v. School Bd. of City 
of Norfolk, 4 Cir., 282 F.2d 473; Jones v. School Bd. of City of Alex­
andria, 4 Cir., 278 F.2d 72.



18a

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,2 and we adhere to our holdings.

Whether or not the choice is free may depend upon cir­
cumstances extraneous to the formal plan of the school 
board. If there is a contention that economic or other 
pressures in the community inhibit the free exercise of the 
choice, there must be a judicial appraisal of it, for “freedom 
of choice” is acceptable only if the choice is free in the 
practical context of its exercise. If there are extraneous 
pressures whih deprive the choice of its freedom, the school 
board may be required to adopt affirmative measures to 
counter them.

A panel of the Fifth Circuit3 recently had occasion to con­
centrate its guns upon the sort of “freedom of choice” plan 
we have not tolerated, but, significantly, the decree it pre­
scribed for its district courts requires the kind of “freedom 
of choice” plan we have held requisite and embodies stan­
dards no more exacting than those we have imposed and 
sanctioned.

The fact that the Department of Health, Education and 
Welfare has approved the School Board’s plan is not deter­
minative. The actions of that department, as its guidelines, 
are entitled to respectful consideration, for, in large mea-

Opinion of the United States Court of Appeals
For the Fourth Circuit

2 Wheeler v. Durham City Bd. of Educ., 4 Cir., 346 F.2d 768, 773; 
Bradley v. School Bd. of Educ. of City of Richmond, 4 Cir., 345 F.2d 310, 
313, vacated and remanded on other grounds, 382 U.S. 103. See Jeffers v. 
Whitley, 4 Cir., 309 F.2d 621.

8 United States v. Jefferson County Board of Education, 5 Cir., 372 
F.2d 836, aff’d on rehearing en bane, .....  F .2 d ..... ; see also, Deal v. Cin­
cinnati Board of Education, 6 Cir., 369 F.2d 55.



19a

sure or entirely, they are a reflection of earlier judicial 
opinions. We reach our conclusion independently, for, while 
administrative interpretation may lend a persuasive gloss 
to a statute, the definition of constitutional standards con­
trolling the actions of states and their subdivisions is 
peculiarly a judicial function.

Since the plaintiffs here concede that their annual choice 
is unrestricted and unencumbered, we find in its existence 
no denial of any constitutional right not to be subjected to 
racial discrimination.

Opinion of the United States Court of Appeals
For the Fourth Circuit

II

Appropriately, the School Board’s plan included provi­
sions for desegregation of the faculties. Supplemented at 
the direction of the District Court, those provisions are 
set forth in the margin.4 * 1

4 The School Board of Charles City County recognizes its responsibility 
to employ, assign, promote and discharge teachers and other professional 
personnel of the school systems without regard to race, color or national 
origin. We further recognize our obligation to take all reasonable steps 
to eliminate existing racial segregation of faculty that has resulted from 
the past operation of a dual system based upon race or color.

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

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

1. The best person will be sought for each position without regard 
to race, and the Board will follow the policy of assigning new 
personnel in a manner that will work toward the desegregation of 
faculties.

2. Institutions, agencies, organizations, and individuals that refer 
teacher applicants to the school system will be informed of the



20a

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”

Opinion of the United States Court of Appeals
For the Fourth Circuit

above stated policy for faculty desegregation and will be asked to 
so inform persons seeking referrals.

3. The School Board will take affirmative steps including personal 
conferences with members of the present faculty to allow and en­
courage teachers presently employed to accept transfers to schools 
in which the majority of the faculty members are of a race differ­
ent from that of the teacher to be transferred.

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 completely desegregated basis.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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

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,6 but involuntary reassignment 
of teachers to achieve racial blending of faculties in each 
school is 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.

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.

Opinion of the United States Court of Appeals
For the Fourth Circuit

6 Bradley v. School Bd. of Educ. of City of Richmond, 382 U.S. 103; 
Wheeler v. Durham City Bd. of Educ., 4 Cir., 363 E.2d 738.



22a

Quite recently, a panel of the Fifth Circuit Court of Ap­
peals6 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.

Concurring Opinion of Judges Sobeloff and Winter

S obeloff, Circuit Judge, with whom W in t e r , 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-

6 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, .....  F.2d ..... , decided this day.



23a

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 Negro students and 
carry them to the Watkins School, located in the western 
half of the county, and ten other buses traverse the entire 
county to pick up the white students for the New Kent 
School, located in the eastern half of the county. One ad­
ditional bus takes the county’s 18 Indian children to the 
“Indian” school, located in an adjoining county. Each of 
the county’s two schools has 26 teachers and they offer 
identical programs of instruction.

Concurring Opinion of Judges Sobeloff and Winter



24a

Eepated 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.1

The above data relate to the 1964-1965 school year.2 
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. As in New Kent 
County, Negroes and whites live in the same neighborhoods 
and, similarly, segregated buses (Negro, Indian and white) 
traverse many of the same routes to pick up their respective

Concurring Opinion of Judges Sobeloff and Winter

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 , .....F .2 d ......., .....  (4th Cir. Mar. 9, 1967).
See also Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966). Of 
course, in the present case, the District Court has noted that the plan 
was adopted in order to comply with Title VI of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000.d-l (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

charges.3 The Board operates four schools in all—Ruth- 
ville, a combined elementary and high school exclusively 
for Negroes; Barnetts, a Negro elementary school; Charles 
City, a combined elementary and high school for whites; 
and Samaria, a combined elementary and high school for 
Indian children. Thus, as plaintiffs point out, the Board, 
well into the second decade after the 1954 Brown decision, 
still maintains “what is in effect three distinct school sys­
tems—each organized along racial lines—with hardly 
enough pupils for one system!” 4 The District Court found 
that “the Negro elementary schools serve geographical 
areas. The other schools serve the entire county.” 5 6 This 
contrasting treatment of the races plainly exposes the pre­
vailing discrimination. For the 1964-65 school year, only 
eight Negro children were assigned to grades 4, 6, 7, 8, 9, 
10 and 11 at the all-white Charles City School—an instance 
of the feeblest and most inconsequential tokenism.

Again, as in New Kent County, Negro parents on several 
occasions fruitlessly petitioned the School Board to adopt a 
desegregation plan. This suit was instituted on March 15,

Concurring Opinion of Judges Soheloff and Winter

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).

4 The Board seems to go to an extreme of inefficiency and expense in
order to maintain the segregated character of its schools, indulging in the 
luxury of three separate high school departments to serve a total of 
approximately 600 pupils, 437 of whom are in one school, and three 
separate and overlapping bus services.

6.....  F.Supp....... , .....  (1966).



26a

1965 and the Board adopted the plan presently under con­
sideration on August 6, 1965. Not until June 1966 did the 
Board assign a single Negro teacher to the all-white faculty 
at Charles City School. Apart from this faint gesture, how­
ever, the faculties of the Negro and white schools remain 
totally segregated.6

The majority opinion implies that this court has gone as 
far as the Fifth Circuit and that the “freedom of choice” 
plan which that circuit has directed its district courts to 
prescribe “embodies standards no more exacting than those 
we have imposed and sanctioned.” If this court is willing to 
go as far as the Fifth Circuit has gone, I welcome the re­
solve.6 7 It may be profitable, therefore, to examine closely 
what the Court of Appeals of that jurisdiction has recently 
said and done.8 We may then see how much further our 
court needs to go to bring itself abreast of the Fifth Circuit.

Concurring Opinion of Judges Sobeloff and Winter

6 Three of the Board’s eight teachers in the 175 pupil “Indian” school 
are white, the other five are Indian.

The Board asserts that it is “earnestly” seeking white teachers for the 
nine existing vacancies in the Negro schools, but so far its efforts have 
not met with success. This is not surprising, considering that the Board 
has formally declared that it “does not propose to advertise vacancies in 
papers as this would likely cause people of both races to apply who 
are not qualified to teach.”

7 A recent article in the Virginia Law Review declares the Fifth Cir­
cuit to be “at once the most prolific and the most progressive court in 
the nation on the subject of school desegregation.” Dunn, Title VI, the 
Guidelines and School Desegregation in the South, 53 VA. L. REV. 42, 
73 (1967).

8 United States v. Jefferson County Bd. of Educ., .....  F.2d .....  (5th
Cir. 1966), aff’d on rehearing en banc, .....  F.2d ..... (5th Cir., Mar. 29,
1967).



27a

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 is now attending.”

In sharp contrast, the Fifth Circuit has expressly abol­
ished “permissive” freedom of choice and ordered manda­
tory annual free choice for all grades, and “any student who 
has not exercised his choice of school within a week after 
school opens shall be assigned to the school nearest his 
home * * * 9 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 plans manifestly perpetuate 
discrimination. In view of the situation found in New Kent 
County, where there is no residential segregation, the elim­
ination of the dual school system and the establishment of a 
“unitary, non-racial system” could be readily achieved with 
a minimum of administrative difficulty by means of geo­
graphic zoning—simply by assigning students living in the 
eastern half of the county to the New Kent School and those 
living in the western half of the county to the Catkins 9

Concurring Opinion of Judges Sobeloff and Winter

9 United States v. Jefferson County Bd. of Edue,, .....
(5th Cir., Mar. 29, 1967) (en banc). (Emphasis supplied.)



28a

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. 
* * * In fulfilling this duty it is not enough for 
school authorities to offer Negro children the oppor­
tunity to attend formerly all-white schools. The neces­
sity of overcoming the effects of the dual school system 
in this circuit requires integration of faculties, facili­
ties, and activities, as well as students.” 10

The Fifth Circuit stresses that the goal is “a unitary, non- 
racial system” and the question is whether a free choice 
plan will materially further the attainment of this goal.

Concurring Opinion of Judges Sobeloff and Winter

10 p.2d at .....  (en banc). (Emphasis supplied.)



29a

Stating that courts must continually check the sufficiency of 
school boards’ progress 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.” In fashioning its decree, that 
circuit gave great weight to the percentages referred to in 
the HEW Guidelines,11 declaring that they establish “mini­
mum” standards

“for measuring the effectiveness of freedom of choice 
as a useful tool. * * * If the plan is ineffective, longer 
on promises than performance, the school officials 
charged with initiating and administering a unitary 
system have not met the constitutional requirements 
of the Fourteenth Amendment; they should try other 
tools.” 11 12

Concurring Opinion of Judges Sobeloff and Winter

11 “ [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. [Eootnote 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 Bights Act of 1964. In evaluating desegrega­
tion plans, district courts should make few exceptions to the Giiide- 
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 Educ., ....- F.2d ... ., ...... (5th
Cir., Dec. 29, 1966), adopted en banc, ..... F.2d .....  (5th Cir., Mar. 29,
1967). Gf. Cypress v. Newport News Gen. Hosp., ..... F.2d ..... , .....  n.15
(4th Cir., Mar. 9, 1967).

1 2  ............... p .2 d .... (Emphasis supplied.) The HEW Guidelines provide:
(1) if 8 or 9 percent of the Negro students in a school district transferred 
from segregated schools during the first year of the plan, the total trans­
fers the following year must be on the order of at least twice that 
percentage; (2) if only 4 or 5 percent transferred, a “substantial” in­
crease in the transfers will be expected the following year—bringing the



30a

“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.13 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

Concurring Opinion of Judges Sobeloff and Winter

total to at least triple the percentage of the previous year; (3) if less 
than 4 percent transferred the previous year, then the rate of increase 
in total transfers for the following year must be proportionately greater 
than that under (2); and (4) if no students transferred under a free 
choice plan, then unless a very “substantial start” is made in the following 
year, the school authorities will “be required to adopt a different type of 
plan.” HEW Keg. 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 6% 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.

18 Judge Wisdom, in Singleton v. Jackson Munic. Separate School Dist., 
355 F.2d 865, 871 (5th Cir. 1966), referred to “freedom of choice” plans 
as a “haphazard basis” for the administration of schools.



31a

plan is materially furthering the achievement of “a unitary, 
non-racial system.” 14

A significant aspect of the Fifth Circuit’s recent decree 
that, by implication, this court has adopted, deserves ex­
plicit recognition. The Jefferson County decree orders 
school officials, “without delay,” to take appropriate mea­
sures for the protection of Negro students who exercise a 
choice from “harassment, intimidation, threats, hostile 
words or acts, and similar behavior.” Counsel for the 
school boards assured us in oral argument that relations 
between the races are good in these counties, and that no 
incidents would occur. Nevertheless, the fear of incidents 
may well intimidate Negroes who might otherwise elect to 
attend a “white” school.15 16 To minimize this fear school

Concurring Opinion of Judges Sobeloff and Winter

14 See Section IX of the decree issued in United States v. Jefferson
Comity Bd. of Educ., ..... F.2d ..... , .....  (5th Cir. Mar. 29, 1967) (en
banc) providing for detailed reports to the district courts.

16 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 Bights:

“Freedom of choice 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; c. Some Negro students are reluctant to sever 
normal school ties, made stronger by the racial identification of their 
schools; d. Many Negro children and parents in Southern States, 
having lived for decades in positions of subservience, are reluctant 
to assert their rights; e. Negro children and parents in Southern 
States frequently will not choose a formerly all-white school 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

officials must demonstrate unequivocally that protection will 
be provided. It is the duty of the school boards actively to 
oversee the process, to publicize its policy in all segments 
of the population and to enlist the cooperation of police 
and other community agencies.16

The plaintiffs vigorously assert that the adoption of the 
Board’s free choice plan in Charles City County, without 
further action toward equalization of facilities, will not cure 
present gross inequities characterizing the dual school sys­
tem. A glaring example is the assignment of 135 commer­
cial students to one teacher in the Negro school in contrast 
to the assignment of 45 commercial students per teacher in 
the white school and 36 in the Indian school. In the Jeffer­
son County decree, the Fifth Circuit directs its attention 
to such matters and explicitly orders school officials to take 
“prompt steps” to correct such inequalities. School authori­
ties, who hold responsibility for administration, are not 
allowed to sit back complacently and expect unorganized 
pupils or parents to effect a cure for these shockingly dis­
criminatory conditions. The decree provides:

“Conditions of overcrowding, as determined by pupil- 
teacher ratios and pupil-classroom ratios shall, to the

munity has been subjected to retaliatory violence, evictions, loss of 
jobs, and other forms of intimidation.”

U.S. COMM’N ON CIVIL RIGHTS, SURVEY OE SCHOOL DESEG­
REGATION IN THE SOUTHERN AND BORDER STATES—1965-66, 
at 51 (1966). In addition to the above enumeration, a report of the Office 
of Education has pointed out that Negro children in the high school 
grades refrain from choosing to transfer because of reluctance to assume 
additional risks close to graduation. Coleman & Campbell, Equality of 
Educational Opportunity (U.S. Office of Education, 1966). See also 
Hearings Before the Special Subcommittee on Civil Bights of the House 
Committee on the Judiciary, 89th Cong., 2d Sess., ser. 23 (1966). 16

16 HEW Reg. A, 45 C.F.R. § 181.17(c) (Supp. 1966).

Concurring Opinion of Judges Sobeloff and Winter



33a

extent feasible, be distributed evenly between schools 
formerly maintained for Negro students and those 
formerly maintained for white students. If for any 
reason it is not feasible to improve sufficiently any 
school formerly maintained for Negro students, * * * 
such school shall be closed as soon as possible, and 
students enrolled in the school shall be reassigned on 
the basis of freedom of choice.” 17

II. Faculty

Defendants unabashedly argue that they cannot be com­
pelled to take any affirmative action in reassigning teachers, 
despite the fact that teachers are hired to teach in the 
system, not in a particular school. They assert categorically 
that “they are not required under the Constitution to de­
segregate the faculty.” This is in the teeth of Bradley v. 
School Bd. of Richmond, 382 U.S. 103 (1965).

Having made this declaration, they say that they have 
nevertheless submitted a plan which does provide for fac­
ulty desegregation, but circumspectly they add that “it will 
require time and patience.” They protest that they have 
done all that could possibly be demanded of them by pro­
viding a plan which would permit “a constructive begin­
ning.” This argument lacks appeal an eighth of a century 
after Brown.1* Children too young for the first grade at

Concurring Opinion of Judges Sobeloff and Winter

17.....  p.2d at .....  (en banc). (Emphasis supplied.)
is “The rule has become: the later the start the shorter the time allowed 

for transition.” Lockett v. Bd. of Educ. of Muscogee County, 342 F.2d 
225, 228 (5th Cir. 1965). See Rogers v. Paul, 382 U.S. 198, 199 (1965); 
Bradley v. School Bd. of Richmond, 382 U.S. 103 (1965); Griffin v. County 
School Bd., 377 U.S. 218, 229 (1964); Watson v. City of Memphis, 373 
U.S. 526, 530 (1963).



34a

the time of that decision are beyond high school age by 
now. Yet their entire school experience, like that of their 
elder brothers and sisters, parents and grandparents, has 
been one of total segregation. They have attended only a 
“Negro” school with an all Negro staff and an all Negro 
student body. If their studies encompassed Brown v. Bd. 
of Educ. they must surely have concluded sadly that “the 
law of the land” is singularly ineffective as to them.

The plans of both counties grandly profess that the pat­
tern of staff assignment “will not be such that only white 
teachers are sought for predominantly white schools and 
only Negro teachers are sought for predominantly Negro 
schools.” No specific steps are set out, however, by which 
the boards mean to integrate faculties. It cannot escape 
notice that the plans provide only for assignments of “new 
personnel in a manner that will work towards the desegre­
gation of faculties.” As for teachers presently employed by 
the systems, they will be “allowed” (in Charles City County, 
the plan reads “allowed and encouraged”) to accept trans­
fers to schools in which the majority of the faculty members 
are of the opposite race. We are told that heretofore an 
average of only 2.6 new white teachers have been employed 
annually in New Kent County. Thus the plan would lead to 
desegregation only by slow attrition. There is no excuse 
for thus protracting the corrective process. School authori­
ties may not abdicate their plain duty in this fashion. The 
plans filed in these cases leave it to the teachers, rather than 
the Board, to “disestablish dual, racially segregated school 
systems” and to establish “a unitary, non-racial system.” 
This the law does not permit.

Concurring Opinion of Judges Sobeloff and Winter



35a

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

“ [U]ntil school authorities recognize and carry out 
their affirmative duty to integrate faculties as well as 
facilities, there is not the slightest possibility of their 
ever establishing an operative non-discriminatory 
school system.” 20

In contrast to the frail and irresolute plans submitted by 
the appellees, the Fifth Circuit has ordered school officials 
within its jurisdiction not only to make initial assignments 
on a non-discriminatory basis, but also to reassign staff 
members “to eliminate past discriminatory patterns.”

For this reason, I 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. I also join the majority in 
calling upon the District Court to fashion a specific and 
comprehensive order requiring the boards to take firm steps 
to achieve substantial desegregation of the faculties. At 
this late date a desegregation plan containing only an in­
definite pious statement of future good intentions does not 
merit judicial approval.

19 ...  F.2d a t .......
20 United States v. Jefferson County Bd. of Edue., ..... F.2d ..... , .....

(5th Cir. 1966), adopted en banc, ....... F .2 d   (5th Cir. Mar. 29, 1967).
This thought has been similarly expressed in Bradley v. School Bd. of 
City of Richmond, 345 F.2d 310, 323 (4th Cir. 1965) (concurring opinion) :

“I t 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 perpetuated.” (Emphasis 
in the original.)

Concurring Opinion of Judges Sobeloff and Winter



36a

I must disagree with, the prevailing opinion, however, 
where it states that the record is insufficiently developed to 
order the school systems to take further steps at this stage. 
No legally acceptable justification appears, or is even 
faintly intimated, for not immediately integrating the 
faculties. The court underestimates the clarity and force 
of the facts in the present record, particularly with respect 
to New Kent County, where there are only two schools, 
with identical programs of instruction, and each with a 
staff of 26 teachers. The situation presented in the records 
before us is so patently wrong that it cries out for im­
mediate remedial action, not an inquest to discover what 
is obvious and undisputed.

It is time for this circuit to speak plainly to its district 
courts and tell them to require the school boards to get on 
with their task—no longer avoidable or deferrable—to inte­
grate their faculties. In Kier v. County School Bd. of Au­
gusta County, 249 F. Supp. 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 F. Supp. 971, 977-78 (W.D. 
Okla. 1965), aff’cl, 35 TJ.S.L. W ee k  2484 (10th Cir., Jan. 
23, 1967), cert, denied, 35 U.S.L. W ee k  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.

Concurring Opinion of Judges Sobeloff and Winter



III. The Briggs v. Elliott Dictum
The defendants persist in their view that it is constitu­

tionally permissible for parents to make a choice and assign 
their children; that courts have no role to play where 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.21 22

The court’s opinion recognizes that “it is the duty of the 
school boards 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-.” I 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” in such a sys­
tem. Whether or not the schools now permit “freedom of 
choice,” the segregated conditions initially created by law 
are still perpetuated by relying primarily on Negro pupils 
“to extricate themselves from the segregation which has 
long been firmly established and resolutely maintained 
* * * .” 22 “[Tjimge 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 discrimination.” 132 F. Supp. 776, 777 (E.D.S.C 
1955).

22 Bradley v. School Bd. of City of Richmond, 345 F.2d 310, 322 (4th 
Cir. 1965) (concurring opinion).

Concurring Opinion of Judges Sobeloff and Winter



38a

gated by law, and not those who attend, are responsible for 
school desegregation.” 23 * *

It is worth recalling the circumstances that gave birth 
to the Briggs v. Elliott dictum—it is no more that dictum. 
A three-judge district court over which Judge Parker 
presided had denied relief to South Carolina Negro pupils 
and when this decision came before the Supreme Court as 
part of the group of cases reviewed in Brown v. Bd. of 
Educ., the Court overruled the three-judge court and issued 
its mandate to admit the complaining pupils to public 
schools “on a racially non-discriminatory 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.21 
This catchy apothegm immediately became the refuge of 
defenders of the segregation system, and it has been quoted 
uncritically to eviscerate the Supreme Court’s mandate.26

23 Dunn, Title VI, the Guidelines and School Desegregation in the 
South, 53 VA, L. REV. 42, 45 (1967).

See Dowell v. School Bd., 244 F. Supp. 971, 975, 981 (W.D. Okla. 1965), 
aff’d, 35 U.S.L. WEEK 2484 (10th Cir. Jan. 23, 1967), cert, denied, 35 
U.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.)

21 See n.21, supra.

26 Judge Wisdom, in the course of a penetrating criticism of the Briggs 
decision, says:

Concurring Opinion of Judges Sobeloff and Winter



39a

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 is unnecessary for me to 
speculate how long he would have adhered to his view, or 
when he would have abandoned the dictum as unworkable 
and inherently contradictory.26 In 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 v. 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).

Concurring Opinion of Judges Sobeloff and Winter

“Briggs overlooks the fact 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 a 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 in­
dividual’s application for transfer, therefore, may satisfy that par­
ticular individual; it will not satisfy the class. The class is all Negro 
children in a school 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 comes 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.”
F.2d at ..... , .......  (Emphasis supplied.)

26 Shortly after pronouncing his dictum, in another school ease 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 cannot be shifted to the pupils or their 
parents. Carson v. Warlick, 238 F.2d 724, 728 (1956).



40a

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.” 27

We should move out from under the incubus of the Briggs 
v. Elliott dictum and take our stand beside the Fifth and 
the Eighth Circuits.

Concurring Opinion of Judges Soheloff and Winter

27 Dunn, Title VI, the Guidelines and School Desegregation in the South, 
53 YA. L. REV. 42, 72 (1967). See United States v. Jefferson County
Bd. of Ednc., .....  F.2d .....  (5th Cir., Mar. 29, 1967) (en banc); 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. I t is inconsistent with Brown and the later development of 
decisional and statutory law in the area of civil rights.” ) ; Kemp v. 
Beasley, 352 F.2d 14, 21 (8th Cir. 1965) (“The dictum in Briggs has 
not been followed or adopted by this Circuit and it is logically inconsistent 
with Brown and subsequent decisional law on this subject.” )

Cf. Evans v. Ennis, 281 F.2d 385, 389 (3d Cir. 1960), cert, denied, 364 
U.S. 933 (1961) : “The Supreme Court has unqualifiedly declared inte­
gration to be their constitutional right.” (Emphasis supplied.)



41a

Ju d g m en t o f U nited  S tates C ourt o f A ppeals 
F o r th e  F o u rth  C ircu it

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.

A ppea l  prom  t h e  U nited  S tates D istrict C ourt 
for t h e  E astern D istrict of V irginia

This cause came on to be heard on the record from the 
United States District Court for the Eastern 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.

Clem en t  F. H aynsw orth , J r .
Chief Judge, Fourth Circuit

Filed: June 12, 1967 
Maurice S. Dean, Clerk



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